                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                              October 13, 2005
                       FOR THE FIFTH CIRCUIT
                       _____________________              Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-41726
                          Summary Calendar
                       _____________________

ASHOK K. RAINA,
                                               Plaintiff - Appellant,

                              versus

ANN M. VENEMAN, SECRETARY,
U.S. DEPARTMENT OF AGRICULTURE,

                                               Defendant - Appellee.

__________________________________________________________________

           Appeal from the United States District Court
            for the Southern District of Texas, McAllen
                       USDC No. 7:03-CV-133
_________________________________________________________________

Before and JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     In this Title VII employment discrimination suit, Ashok K.

Raina contends that the defendant discriminated against him, based

on race and national origin, when it removed him from his position

as Research Leader and transferred him to his former position. The

trial court did not agree and entered summary judgment against him.

On appeal, he argues that he presented enough “circumstantial

evidence” to survive summary judgment, and further that his claim




     *
       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this opinion should not be published and is not precedent except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.
is not untimely because he suffered a pattern of continuing discrimination.

     The parties consented to have the case heard by a magistrate

judge, and we apply the same standard of review as did the trial

court.    McAvey v. Lee, 260 F.3d 359, 363 (5th Cir. 2001).       Summary

judgment is proper when “there is no genuine issue as to any

material fact and [] the moving party is entitled to a judgment as

a matter of law.”    Fed. R. Civ. P. 56(c); see also McAvey, 260 F.3d

at 363.    We examine the record on summary judgment “in the light

most favorable to the party opposing the motion.”       United States v.

Diebold, Inc., 369 U.S. 654, 655 (1962); see also S&W Enters.,

L.L.C. v. SouthTrust Bank of Alabama, 315 F.3d 533, 537 (5th Cir.

2003).    When a proper motion for summary judgment is made and

supported, the party opposing the motion “may not rest upon the

mere allegations or denials of the [opposing] party’s pleading, but

... must set forth specific facts showing there is a genuine issue

for trial.” Fed. R. Civ. P. 56(e); see also Celotex Corp. v.

Catrett, 477 U.S. 317 (1986).

     To establish a prima facie case of discrimination, a plaintiff

must show that he belongs to a protected class, that he was

qualified for the position, that he suffered an adverse employment

action, and that he was replaced by someone outside the protected

class. Price v. Fed. Express Corp., 283 F.3d 715, 719-20 (5th Cir.

2002); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1981).     Once this is established, the burden shifts to the


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defendant employer to articulate a legitimate, nondiscriminatory

reason for the action.     McDonnell Douglas, 411 U.S. at 802; Price,

283 F.3d at 720.        In this case, the Department of Agriculture

presented evidence that Raina’s transfer and change in job title

were a result of inappropriate conduct with a much younger female

employee whom Raina supervised.

     After the defendant offers a legitimate, nondiscriminatory

reason, the burden shifts back to the plaintiff to show that the

defendant’s proffered reason is merely a pretext for intentional

discrimination.      Price, 283 F.3d at 720.           After review of the

record and the briefs of the parties, we agree with the magistrate

judge   that    Raina   failed   to   produce   sufficient     evidence   of

discriminatory intent. Raina’s “evidence” of discriminatory intent

rests entirely on his subjective belief that he was discriminated

against because of his race and national origin.              An employee’s

subjective belief that he was discriminated against, standing

alone, is not adequate evidence to survive a motion for summary

judgment.      Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427

(5th Cir. 2000); see also Hornsby v. Conoco, Inc., 777 F.2d 243

(5th Cir. 1985) (subjective belief of discrimination not sufficient

to defeat dismissal of sex discrimination claim).

     It also appears that Raina’s claim is time-barred.            A federal

employee who feels he has been discriminated against must contact

an   EEO    counselor   within   forty-five     days    of   the   allegedly


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discriminatory action.   29 C.F.R. § 1614.105 (2005).   If he does

not timely raise issues at the administrative level, judicial

action is not appropriate.   See, e.g., Pacheco v. Rice, 966 F.2d

904 (5th Cir. 1992).     Raina waited two months after the only

employment action complained of –- that is his removal and transfer

-- to contact the EEOC, and he does not advance a sufficient excuse

for this delay; nor are there any facts presented to support a

theory of continuing violation.

     Accordingly, for the reasons set forth herein, the summary

judgment dismissing the complaint is

                                                         AFFIRMED.




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