                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                     F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                    November 24, 2004
                          FOR THE FIFTH CIRCUIT
                          _____________________                   Charles R. Fulbruge III
                                                                          Clerk
                               No. 04-50298
                            Summary Calendar
                          _____________________

NORMA MARQUEZ,

                                                   Plaintiff - Appellant,

                                  versus

VOICESTREAM WIRELESS CORPORATION,

                                                    Defendant - Appellee.

__________________________________________________________________

           Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. EP-02-CV-551-DB
_________________________________________________________________

Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.

PER CURIAM:1

                                     I

     Norma     Marquez   filed   suit    against   her   former     employer,

Voicestream Wireless Corporation (Voicestream), arising out of its

termination of her employment.          Marquez asserted a claim of quid

pro quo sexual harassment and a claim of retaliation, all under the

Texas Commission on Human Rights Act2, Texas Labor Code § 21.051.3

     1
       Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 CIR. R. 47.5.4.
     2
       The TCHRA provides for the enforcement of the policies of
Title VII of the Civil Rights Act of 1964, so “analogous federal
statutes and the cases interpreting them” inform the interpretation
of the Texas statute. Quantum Chem. Corp. v. Toennies, 47 S.W. 3d
     Marquez first claims that she was fired because she refused

the invitations of her supervisor, Robert Thomas, to have drinks

after work   and,   secondly,   she       claims   her   discharge   was   also

retaliation for reporting these invitations to Rachel Brock, an

office manager for Voicestream.

     In its motion for summary judgment, Voicestream contended that

Marquez failed even to establish a prima facie case of sexual

harassment and retaliation.     Additionally, it submitted evidence

that Marquez was fired because she failed to meet the minimum

requirements outlined in Voicestream’s Retail Sales Management

Minimum Expectations Policy (“RSMMEP”).

     With respect to the sexual harassment claim, the district

court granted the motion for summary judgment because Marquez



473, 476 (Tex. 2001).
     3
          An employer commits an unlawful employment
          practice   if   because    of   race,   color,
          disability, religion, sex, national origin, or
          age the employer:

          (1) fails or refuses to hire an individual,
          discharges an individual, or discriminates in
          any other manner against an individual in
          connection with compensation or the terms,
          conditions, or privileges of employment; or

          (2) limits, segregates, or classifies an
          employee or applicant for employment in a
          manner that would deprive or tend to deprive
          an individual of any employment opportunity or
          adversely affect in any other manner the
          status of an employee.

Tex. Lab. Code Ann. § 21.051 (Vernon 1996).

                                      2
failed to present evidence of unwelcome sexual harassment, one of

the five elements of a prima facie case for quid pro quo sexual

harassment.    It also held that even if Marquez had been successful

in making a prima facie case for sexual harassment, she failed to

rebut   Voicestream’s       proffered,     nondiscriminatory        motive     for

terminating her employment.

     The district court also granted summary judgment on Marquez’s

retaliation claim after finding that Marquez did not make a prima

facie case for retaliation because she failed to produce evidence

that would support a good faith, objectively reasonable belief that

she had    been    subjected   to   unlawful    activity.      Moreover,       the

district   court    found   that    she    failed   to   establish    a    causal

connection    between   her    alleged     protected     activity   (her     phone

conversations with Brock reporting her contact with Thomas) and the

termination of her employment because she did not show that the

ultimate decision-makers involved in her firing were aware of those

conversations. Thus, the district court dismissed the complaint in

its entirety.

                                      II

     On appeal, Marquez argues that she made a prima facie case for

sexual harassment and retaliation.          Furthermore, she contends that

she successfully rebutted Voicestream’s nondiscriminatory reason

for terminating her employment.




                                      3
     Marquez contends that she presented evidence showing that she

was subjected to “unwelcome sexual harassment.”             She argues that

Thomas’s two invitations to have drinks with him were sexual in

nature, and that they constituted the requisite unwelcome sexual

conduct.4

     We have defined “unwelcome sexual harassment” as “sexual

advances, requests for sexual favors, and other verbal or physical

conduct of a sexual nature that is unwelcome in the sense that it

is unsolicited or unincited and is undesirable or offensive to the

employee.”    Wyerick v. Bayou Steel Corp., 887 F.2d 1271, 1274 (5th

Cir. 1989).    Thus, in Ellert v. Univ. of Texas at Dallas, we found

no sexual harassment where there was no evidence that the alleged

harasser discussed sexual matters, initiated any physical contact,

or made any threats or promises conditioned on the plaintiff’s

response to his advances.       52 F.3d 543, 545 (5th Cir. 1995).

Similarly, Thomas did not make any overt sexual advances, did not

request any sexual favors, did not engage in any verbal or physical

conduct that was sexual in nature, and, after Marquez declined his

second   invitation,   Thomas   did       not   extend   subsequent   similar

invitations to her.     We therefore agree with the district court

that Marquez has failed to show evidence of unwelcome sexual

harassment on the part of Thomas.

     4
       In her deposition, Marquez initially indicated that she did
not view Thomas’s invitations as a request for a date, but she
later said that she did consider them as sexual in nature and as
invitations for a date.

                                      4
      Although that should end the point, we will take time to

address Marquez’s contention that she presented evidence that

Voicestream’s stated reason for terminating her employment was

pretextual.   She accurately notes that the RSMMEP does not mandate

termination for managers who score below 75% on the first audit and

below 85% on the second audit.   The RSMMEP provides that managers

whose scores do not meet the minimum requirements may be subject to

disciplinary action, which may include termination.    Marquez cites

the fact that no other managers have been subjected to termination

for failing to meet the minimum requirements.         This evidence,

however, ultimately fails to show that she was treated differently;

she presented no evidence that any manager, except herself, had

failed to achieve the required scores.

      Marquez further contends that the RSMMEP provides that only a

manager who scores less than 85% on two re-audits may be terminated

and that her termination after only one re-audit is evidence of

discrimination.    Voicestream disputes her interpretation of the

RSMMEP, arguing that the RSMMEP allows for termination after only

one   re-audit.5    Regardless   of   Marquez’s   understanding   of

Voicestream’s disciplinary policy, she was warned by her supervisor

at the time that if she failed to score at least 85% on her re-

audit, she could be subject to termination.   She does not dispute

      5
      The RSMMEP section entitled “Operational Discipline” reads:
“If a score of at least 85% is not achieved during either of the
two follow-up audits, the manager will be subject to disciplinary
action, up to and including termination.”

                                 5
the accuracy of the scores.6           Because she does not show that she

was treated differently from similarly situated managers, and

because she knew that she could be fired if she scored less than

85%, Marquez did not present evidence of pretext sufficient to

raise a genuine issue of material fact concerning the pretextual

nature    of   Voicestream’s      proffered       reason     for   terminating      her

employment.     Therefore, even if Marquez could be said to have made

a prima facie case, the district court’s granting of Voicestream’s

motion for summary judgment would have been proper because her

evidence fails to show that the stated reason for her discharge was

pretext.

     Next,     we   turn   to    the   grant     of    summary     judgment    on   the

retaliation claim.         To make a prima facie case for retaliation,

Marquez    must     produce     evidence       that    she   engaged   in     activity

protected under Title VII, suffered an adverse employment action,

and that there is a causal connection between the Title VII

protected activity and the adverse employment action.                          Gee v.

Principi, 289 F.3d 342, 345 (5th Cir. 2002).

         We need only address whether Marquez produced evidence that

she engaged in protected activity.                    In doing so, we find that

Marquez has failed to make a prima facie retaliation claim because

her phone conversations with Brock in which she described Thomas’s



     6
         She scored 64% on the initial audit and 83% on the re-audit.


                                           6
conduct do not constitute protected activity.           Brock was an office

manager   in    Albuquerque,    New   Mexico    and   was   responsible    for

compiling sales and inventory data from all of the New Mexico and

El Paso stores.     The phone conversations relied on by Marquez were

initiated by Brock—not by Marquez—and occurred in the routine

course of compiling this data.         There is no evidence that Marquez

alleged any unlawful activity (sexual harassment) on Thomas’s part

during these conversations. Marquez only mentioned that Thomas had

asked her to go out for a drink on two occasions.           There is nothing

in the record that she protested or objected that these invitations

were   sexual    harassment    or   otherwise   unwelcomed.      Without   an

allegation that she reported unlawful activity (even assuming Brock

to be an appropriate person to receive such a report) Marquez’

conversations with Brock were not protected activity. See Watts v.

Kroger Co., 170 F.3d 505, 511 (5th Cir. 1999).

       We have examined the briefs, the record, and the district

court’s opinion, and we find no reversible error in its legal

analysis or in its application of that analysis to the facts of

this case.      Therefore, for the above reasons the judgment of the

district court is in all respects

                                                                  AFFIRMED.




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