                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
                         REVISED JULY 13, 2007
                IN THE UNITED STATES COURT OF APPEALS            January 30, 2007
                         FOR THE FIFTH CIRCUIT
                                                             Charles R. Fulbruge III
                       ))))))))))))))))))))))))))                    Clerk

                             No. 06-40751

                       ))))))))))))))))))))))))))

ALMA RAMIREZ,

                 Plaintiff-Appellant,

     versus

ALBERTO GONZALES, ATTORNEY GENERAL OF THE UNITED STATES,

                 Defendant-Appellee.


           Appeal from the United States District Court
                for the Southern District of Texas
                          No. 5:03-CV-372



Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant    Alma   Ramirez   (“Ramirez”)     appeals      the

district court’s granting of Defendant-Appellee Alberto Gonzales’s1

motion for summary judgment on Ramirez’s race/national origin

discrimination and retaliation claims under Title VII of the Civil



     *
       Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT RULE
47.5.4.
     1
       Though the Attorney General is the named party to the
lawsuit, this opinion shall refer to the Defendant-Appellee as the
United States Attorney’s Office, Corpus Christi office, (“USAO”)
because Ramirez’s Title VII claims arise from her employment there.
Rights Act of 1964.         Because no genuine issues of material fact

exist with respect to Ramirez’s claims, we AFFIRM the district

court’s grant of summary judgment.

                     I. FACTUAL AND PROCEDURAL HISTORY

       In July 2001, the USAO hired Ramirez, a Hispanic,                  as    a

Litigation Support Specialist with a one-year probationary period.

The primary duties of the position included providing technology and

automated litigation services to the attorneys and support staff,

aiding      Assistant   United   States    Attorneys    (“AUSAs”)    in   trial

preparation and presentations, coordinating and providing personnel

training on litigation support equipment and research techniques,

and    developing       databases   and    reports     for   litigation       and

administrative purposes. Ramirez would not survive the probationary

period.       On January 7, 2002, the USAO sent Ramirez a letter

informing her that she would be terminated for her “inability to

follow office procedures essential to the proper handling of cases

in    the   United   States   Attorney’s   office”     and   her   “failure    to

recognize and react to office needs.”           Ramirez alleges that her

termination was the result of race/national origin discrimination

and in retaliation for engaging in protected Title VII activities.

       Ramirez contends that Debra Hohle (“Hohle”), her supervisor and

the Office Manager, subjected her to disparate treatment throughout

her employment.      First, Ramirez argues that Hohle treated her like

a secretary instead of a Litigation Support Specialist and made her



                                      2
perform secretarial tasks such as answering the phone, serving as

a   receptionist,   processing       mail,   and   acknowledging    visitors.

Second, Ramirez maintains that she was treated differently than two

white employees, Diana Winstead (“Winstead”) and Julie Gerardi

(“Gerardi”), who she alleges had similar workplace performance

deficiencies, but who were allowed to pass their probationary

periods. Third, Ramirez argues that Hohle improperly terminated her

because   Hohle   did   not   give    her    a   formal   written   letter   of

counseling, warning Ramirez of her deficiencies and giving her a

chance to respond to the allegations.

      In addition to race/national origin discrimination, Ramirez

alleges that her termination was the result of unlawful retaliation.

Ramirez alleges that Hohle retaliated against her because of her

friendship and close association with Adel Garcia (“Garcia”), a

Hispanic employee who had filed an EEOC charge of discrimination and

retaliation against the USAO before Ramirez began her employment

there.    Ramirez also contends that she was retaliated against

because in October 2001, the American Federation of Government

Employees, Local 3966 (“Union”) filed a grievance against the USAO

which alleged, in part, a hostile working environment, preferential

treatment of certain employees, and discrimination against certain

employees.   Finally, Ramirez recounts an incident in which she

overheard co-workers joking about another employee’s hostile work

environment claim.       Ramirez asked the co-workers to stop and

reported the comments to Gerardi, who was acting as Office Manager

                                       3
in Hohle’s absence.       Ramirez alleges that this incident was a

predicate for retaliation.

      After her termination, Ramirez brought a Title VII suit against

the   USAO,    alleging   race/national   origin   discrimination   and

retaliation.     The USAO filed for summary judgment, which the

district court granted on February 23, 2006.       Ramirez now appeals.

               II. JURISDICTION AND STANDARD OF REVIEW

      This appeal arises from a final judgment of the district court,

so we have jurisdiction over this appeal under 28 U.S.C. § 1291.

      This court reviews a summary judgment de novo.      Dallas County

Hosp. Dist. v. Assocs. Health & Welfare Plan, 293 F.3d 282, 285 (5th

Cir. 2002). Summary judgment is proper when the pleadings, discovery

responses, and affidavits show that there is no genuine issue of

material fact and that the moving party is entitled to a judgment

as a matter of law.       FED. R. CIV. P. 56(c).    A dispute about a

material fact is genuine if the evidence is such that a reasonable

jury could return a verdict for the non-moving party.       Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).            When deciding

whether there is a genuine issue of material fact, this court must

view all evidence in the light most favorable to the non-moving

party.   Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir.

2001).

                            III. DISCUSSION

      Title    VII   prohibits   an    employer    from   intentionally


                                   4
discriminating against any employee based on the employee’s race or

national    origin,     42       U.S.C.       §     2000e-2(a)(1).          Intentional

discrimination    may       be    established         through      either   direct   or

circumstantial evidence.          Wallace v. Methodist Hosp. Sys., 271 F.3d

212, 219 (5th Cir. 2001).            When there is no direct evidence of

discrimination, as in this case, the Title VII claims are subject

to the burden-shifting framework established in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973).                See Davis v. Dallas Area Rapid

Transit, 383 F.3d 309, 316 (5th Cir. 2004).

     Under the McDonnell Douglas framework, the employee must create

a presumption of intentional discrimination or retaliation by

presenting evidence to establish a prima facie case.                        Davis, 383

F.3d at 317.     Once the employee has established the prima facie

case, the burden then shifts to the employer to articulate a

legitimate, non-discriminatory or non-retaliatory reason for the

underlying employment action.             Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 142 (2000).               The employer’s burden is “one of

production,    not     persuasion;         it       can     involve   no    credibility

assessment.”     Id.        If the employer sustains this burden, the

presumption of discrimination or retaliation falls away, and the

burden shifts back to the employee to establish that the employer’s

proffered   reason     is    merely       a       pretext    for   discrimination    or

retaliation.   Davis, 383 F.3d at 317.                 Courts must be mindful that

despite the shifting evidentiary framework, the “ultimate burden of

persuading the trier of fact . . . remains at all times with the

                                              5
plaintiff.”    Reeves, 530 U.S. at 143.

     A. Race/National Origin Discrimination

     Ramirez   contends   that    her       termination   was   the   result   of

race/national origin discrimination in violation of Title VII.                 In

order to establish a prima facie case of discriminatory discharge,

Ramirez must prove that: (1) she is a member of a protected class;

(2) she was qualified for the position she held; (3) she suffered

an adverse employment action; and (4) she was replaced by a person

outside of her protected class.         See Wheeler v. BL Dev. Corp., 415

F.3d 399, 405 (5th Cir. 2005).               It is undisputed that Ramirez

established a prima facie case of discriminatory discharge.

     Because Ramirez has met her initial burden of establishing a

prima facie case of discriminatory discharge, the burden then shifts

to the USAO to articulate a legitimate, non-discriminatory reason

for Ramirez’s termination.       The USAO points to its January 7, 2002

termination letter as evidence of its legitimate, non-discriminatory

reasons for terminating Ramirez.             The letter stated that Ramirez

“demonstrated an inability to follow office procedures essential to

the proper handling of cases” in the USAO.             As evidence in support

of this claim, the letter cites to the facts that Ramirez (1) failed

to complete reports, (2) refused to answer telephone calls despite

being instructed to do so by Hohle, (3) did not assist an AUSA

because   Ramirez   believed     the    task     was   not   within    her     job

description, (4) made excessive personal telephone calls, and (5)

left a training program early without permission.               The letter also

                                        6
noted that Ramirez failed to “recognize and react to office needs.”

Examples of this alleged deficiency included Ramirez’s failure to

(1) respond to or acknowledge visitors when they entered the office

and (2) mention that an attorney who was unexpectedly unable to

return to the office had charged her with preparing photo exhibits

in two pending cases.      The USAO produced deposition testimony to

substantiate the allegations in the termination letter.

     Having    met   its   burden    of    establishing   legitimate,       non-

discriminatory reasons for Ramirez’s termination, the burden now

shifts to Ramirez to establish that these reasons were merely

pretexts for discrimination.         Ramirez first attempts to meet this

burden   by   disputing    the   USAO’s     characterization    of    her   job

performance    and   providing      some   explanations   for   her   alleged

deficiencies.    To take one example, Ramirez contends that she made

personal telephone calls before work.

     Ramirez cannot survive summary judgment simply by denying or

explaining her alleged deficiencies. The proper inquiry is “whether

[the USAO]’s perception of [Ramirez]’s performance, accurate or not,

was the real reason for her termination.”         Shackleford v. Deloitte

& Touche, LLP, 190 F.3d 398, 408-409 (5th Cir. 1999); see also

Laxton v. Gap Inc., 333 F.3d 572, 579 (5th Cir. 2003) (“[The

inquiry] is not whether [the employer]’s proffered reason was an

incorrect reason for [the discharge]”). As we explained in Mayberry

v. Vought Aircraft Co.:


                                       7
     [E]ven an incorrect belief that an employee’s performance
     is inadequate constitutes a legitimate, nondiscriminatory
     reason.   We do not try in court the validity of good
     faith beliefs as to an employee’s competence. Motive is
     the issue . . . [A] dispute in the evidence concerning
     . . . job performance does not provide a sufficient basis
     for a reasonable factfinder to infer that [the] proffered
     justification is unworthy of credence.

55 F.3d 1086, 1091 (5th Cir. 1991).                      Ramirez has provided no

evidence    that   Hohle     and    the    USAO      did    not   perceive    her     job

performance as deficient.           In fact, the incontrovertible summary

judgment evidence shows that Hohle received numerous complaints

about Ramirez’s job performance from staff colleagues, AUSAs, and

an outside caller.

     Ramirez also attempts to show pretext by arguing that two white

employees,    Winstead     and     Gerardi,       were      allowed   to   pass   their

probationary period despite deficiencies similar to those which

resulted in Ramirez’s termination.                   In order to prove disparate

treatment, Ramirez must demonstrate “that the misconduct for which

she was discharged was nearly identical to that engaged in by a[n]

employee [not within her protected class] whom [the employer]

retained.”    Wallace, 271 F.3d at 221.               As the district court ably

demonstrated, the summary judgment record does not support Ramirez’s

contention that she was treated differently under nearly identical

circumstances.      First,       Ramirez       was    not    similarly     situated    to

Winstead, a legal secretary, and Gerardi, a paralegal specialist,

because they both held positions different from that of Ramirez with

different    job   duties.         Although     all      three    shared   some   minor


                                           8
secretarial     duties,   Ramirez’s     own   self-prepared      weekly   work

assignment reports showed that the majority of her tasks were not

the same as or similar to the work performed by Winstead and

Gerardi.     Further, Gerardi was a permanent employee throughout

Ramirez’s employment and Winstead completed her probationary period

two months after Ramirez began working for the USAO.

       At her deposition, Ramirez testified that Hohle reprimanded

Winstead for leaving the telephone unattended while she had copier

training and for filling out vouchers incorrectly.            While there is

some similarity between these allegations and some of deficiencies

noted   in   Ramirez’s    termination     letter,   they   are   not   “nearly

identical” because Ramirez’s termination letter notes numerous other

deficiencies.    Cf. Wallace, 271 F.3d at 221.         Ramirez does make a

general allegation that Winstead and Gerardi were “found to have the

same deficiencies in conduct and performance”–-this could suggest

that there were other unspecified deficiencies which would make the

cases more similar–-but general, conclusory, and unsubstantiated

statements do not constitute competent summary judgment evidence.

See Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1429 (5th

Cir. 1996).

       Ramirez next attempts to establish pretext by relying on the

testimony of Christina Ybarra, an employee of the USAO, who stated

that the Anglo Litigation Support Specialist hired to replace

Ramirez does not have to perform the secretarial duties that Ramirez

did.    The unrebutted evidence produced by the USAO provides a

                                      9
reasonable explanation for this disparity.          First, at the time of

Ramirez’s    employment,    all   support   staff   had     to   perform   some

secretarial duties, not just Ramirez.         Second,       Ramirez concedes

that a full-time receptionist was hired some time after Ramirez’s

termination, reducing the reception duties for all support staff.

Third, the administrative/secretarial load has been reduced for all

members of the USAO support staff because they no longer have to

perform certain duties, such as preparing jail lists, which were

required while Ramirez was employed there.

      Finally, Ramirez raises a potpourri of issues which she alleges

establishes pretext.       As evidence of pretext, Ramirez cites to the

facts that (1) there has been no Hispanic lead AUSA while Hohle has

been employed in the Corpus Christi office, (2) the USAO failed to

follow Office of Personnel Management procedures in terminating her,

(3) comments were made that Ramirez dressed elegantly, which she

interprets as suggesting that Hispanics should not be dressed nicely

and (4) Garcia testified that Hohle did not like Hispanics and that

Hohle felt there were certain jobs only white employees could do.

All   of    these   allegations   suffer    from    being    conclusory     and

unsubstantiated.      As such, they do not constitute proper summary

judgment evidence.     See Douglass, 79 F.3d at 1429.

      Though Ramirez established a prima facie case of race/national

origin discrimination, the USAO provided numerous legitimate, non-

discriminatory reasons for Ramirez’s termination.                 Ramirez has

provided no evidence which creates an issue of material fact

                                     10
demonstrating that these reasons were a mere pretext for intentional

discrimination.     Therefore, Ramirez’s claims for race/national

origin discrimination must fail.          We next turn to whether the USAO

violated   Title   VII   by   terminating    Ramirez   in   retaliation   for

engaging in protected activities.

     B. Retaliation

     In order to establish a prima facie case of retaliation,

Ramirez must demonstrate that: (1) she engaged in a statutorily

protected activity, (2) she suffered an adverse employment action,

and (3) there was a causal link between the protected activity and

the adverse employment action.            Webb v. Cardiothoracic Surgery

Assoc., 139 F.3d 532, 540 (5th Cir. 1998).             Undoubtedly, Ramirez

experienced an adverse employment action when she was terminated.

See Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2415

(2006) (defining adverse employment action as an action which would

dissuade “a reasonable worker from making or supporting a charge of

discrimination”). The primary issue on appeal is whether Ramirez

engaged in any protected activities.

     Ramirez alleges four instances in which she engaged in a

protected activity, namely: (1) Ramirez’s close association with

Garcia, an employee who filed a EEOC charge of discrimination

against the USAO, (2) her complaint to Gerardi about co-workers

making jokes about another employee’s hostile work environment

claim, (3) her being represented by the Union, which filed a

grievance alleging discrimination, and (4) Hohle’s comments about

                                     11
Ramirez’s association with unions.       None of these allegations are

sufficient to establish a prima facie case of retaliation.

     Ramirez’s close association with Garcia, who filed an EEOC

complaint before Ramirez joined the office, does not establish that

Ramirez engaged in a protected activity.      Filing an EEOC complaint

is clearly a protected activity.    See Harvill v. Westward Commc’ns,

L.L.C., 433 F.3d 428, 439 (5th Cir. 2005). We have previously held,

however, that an individual does not have automatic standing to sue

for retaliation simply because a friend or spouse engaged in a

protected   activity;   rather,   the   individual   herself   must   have

participated in some manner in the protected conduct. Holt v. JTM

Indus., Inc., 89 F.3d 1224, 1226-27 (5th Cir. 1996) (applying this

holding to an ADEA case, but noting that “the anti-retaliation

provisions of the ADEA and Title VII are similar”).        With respect

to her close association with Garcia, Ramirez did not engage in a

protected activity because she has not alleged that she participated

in any manner in Garcia’s complaint.2

     2
       Ramirez cites to the EEOC website for the proposition that
an individual is a “covered individual” for Title VII retaliation
through mere association with an individual who engages in a
protected activity.    http://www.eeoc.gov/types/retaliation.html
(last accessed Jan. 2, 2007). The website states:
     Covered individuals are people who have opposed unlawful
     practices, participated in proceedings, or requested
     accommodations related to employment discrimination based
     on race, color, sex, religion, national origin, age, or
     disability. Individuals who have a close association with
     someone who has engaged in such protected activity also
     are covered individuals. For example, it is illegal to
     terminate an employee because his spouse participated in
     employment discrimination litigation.

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     Ramirez’s complaint to Gerardi, who was acting as Office

Manager in Hohle’s absence, that her co-workers were making jokes

about another employee who had filed an EEOC complaint also fails

to establish a prima facie case of retaliation.         The district court

correctly concluded that there was no causal link between Ramirez’s

complaint to Gerardi and her termination three months later.3 Fifth

Circuit precedent requires evidence of knowledge of the protected

activity on the part of the decision maker and temporal proximity

between the protected activity and the adverse employment action.

See Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir.

1997).   In this case, Hohle, not Gerardi, was the decision maker in

Ramirez’s termination.      Ramirez concedes that she does not know if

Hohle ever found out about her complaint to Gerardi.           Further, upon

review of Hohle’s deposition testimony, the district court concluded

that there was no testimony from which it could infer that Hohle

knew of the complaint and considered it in her decision to terminate

Ramirez.    Without   any    evidence    that   Hohle   knew   of   Ramirez’s



Id. This non-binding advisory document aimed at the general public
clearly conflicts with Fifth Circuit precedent as articulated in
Holt. 89 F.3d at 1226-27 (finding no automatic standing to sue for
retaliation simply because a friend or spouse engaged in a
protected activity; rather, the individual herself must have
participated in some manner in the protected conduct).
     3
       The USAO objected to the district court that Ramirez’s
complaint to Gerardi did not constitute a protected activity.
Because we agree with the district court that there is no causal
connection between Ramirez’s making the complaint and her
termination, we do not decide whether Ramirez’s complaint was a
protected activity.

                                    13
complaint when she decided to terminate Ramirez three months later,

Ramirez cannot establish a prima facie case of retaliation.

     Ramirez next relies on a Union grievance which complained of

a hostile work environment and discriminatory treatment as well as

allegedly anti-union comments made by Hohle to establish that she

engaged in a protected activity.    These allegations raise a matter

which this circuit has never squarely determined, namely, whether

union activities are protected activities under Title VII.    We do

not need to determine this issue to resolve the merits of Ramirez’s

appeal.     Though the Union did file a grievance which alleged

discrimination and a hostile work environment, this evidence alone

does not demonstrate that Ramirez engaged in a protected activity.

Ramirez would need to show that she participated in some manner in

filing the Union grievance. See Holt, 89 F.3d at 1226-27.

     Finally, Ramirez attempts to link anti-union comments made by

Hohle to her termination.   To establish that Hohle made anti-union

comments, Ramirez cites to the deposition testimony of Jeanell

Walker, the Union president.    Walker recounts a conversation with

Nora Longoria, a legal secretary, in which Longoria recounted how

Hohle told her that she had a problem with Ramirez being part of a

union.    The district court correctly ruled that this statement was

hearsay.   Ramirez argues that the statements are admissible as non-

hearsay under the party opponent exception to the hearsay rule.

Ramirez’s argument fails because Walker’s testimony is double

hearsay.    Under the Federal Rules of Evidence, “[h]earsay within

                                  14
hearsay is not excluded under the hearsay rule if each part of the

combined statements conforms with an exception to the hearsay rule

provided in these rules.”        FED. R. EVID. 805.    Hohle’s remarks to

Longoria would probably fall within the party opponent exception.

However, Longoria’s comments to Walker do not fall within the party

opponent exception because they concerned matters outside the scope

of her employment, since Longoria was not involved in the decision

to terminate Ramirez.        See FED. R. EVID. 801(d)(2)(D) (requiring

statement by a party’s agent or servant to be made within the scope

of employment); see also Breneman v. Kennecott Corp., 799 F.2d 470,

473   (9th   Cir.   1986)   (finding   statements   not     within   scope   of

employment when declarants relating what decision maker said were

not involved in the company’s discharge of plaintiff).

      Ramirez   has   failed   to   establish   a   prima    facie   case    of

retaliation.    Therefore, the district court did not err in granting

summary judgment on Ramirez’s Title VII retaliation claim.

                               IV. CONCLUSION

      For the reasons stated above, we AFFIRM the judgment of the

district court.

      AFFIRMED.




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