               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT


                       ____________________

                             No. 01-21132

                         Summary Calendar
                       ____________________


     RONALD F. WILLIAMS

                                     Plaintiff – Appellant

          v.

     TACO BELL CORPORATION

                                     Defendant – Appellee


_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                           No. H-00-3141
_________________________________________________________________
                          August 2, 2002

Before KING, Chief Judge, and HIGGINBOTHAM and BENAVIDES, Circuit
Judges.

PER CURIAM:*

     In federal district court, Plaintiff-Appellant Ronald F.

Williams asserted racial discrimination and retaliation claims

pursuant to Title VII of the Civil Rights Act of 1964 against his

employer, Defendant–Appellee Taco Bell Corporation.    42 U.S.C. §


     *
        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that this opinion should not be published and is not precedent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.
2000e et seq. (1994).     Williams appeals from the district court’s

grant of summary judgment in favor of Taco Bell Corporation.       For

the following reasons, we AFFIRM the judgment of the district

court.

                 I.   Factual and Procedural History

     Defendant–Appellee Taco Bell Corporation (“Taco Bell”) hired

Plaintiff–Appellant Ronald F. Williams, an African-American, on

February 3, 1999.     In September 1999, after Williams completed

manager training at two other Taco Bell locations, Taco Bell

transferred Williams to manage its “Store #16172.”     As the

manager of Store #16172, Williams was supervised by Mark Bridges,

a restaurant support manager charged with supervising several

Taco Bell locations.     Bridges was the primary contact for the

managers of stores under his supervision, and he was responsible

for evaluating the performance of the supervised restaurants and

their personnel.

     Store #16172 experienced production problems and was audited

by Taco Bell on September 3, 1999, just prior to Williams’s

assignment to the management position there.     In an effort to

increase production at Store #16172, supervisor Bridges asked

Williams to create an “action” plan for the store by October 24,

1999.    As requested, Williams prepared the plan and submitted it

to Bridges.




                                   2
       During Williams’s tenure as the manager of Store #16172, the

store’s employees were primarily Hispanic and African-American.

Williams asserts that, during Bridges’s multiple visits to Store

#16172, Bridges occasionally made racially discriminatory

statements to Williams and his staff.    Specifically, Williams

asserts that Bridges asked the employees why they drove such nice

cars when they worked at a low-performing Taco Bell restaurant.

Williams complained to Bridges about his disparaging comments,

and when Bridges “laughed it off,” Williams complained to

Bridges’s supervisor, Chad Montsinger, in October of 1999.

       After the meeting with Montsinger, Williams asserts that

Bridges told Williams that Williams should transfer to a Taco

Bell location in the “ghetto” so that another white manager who

had been “in the ghetto too long” could transfer to Store #16172.

Williams declined to transfer to another Taco Bell location.

Williams further asserts that, after Store #16172 was robbed,

Bridges warned Williams not to arrive at the store driving a new

car.    Additionally, according to Williams, Bridges encouraged

Williams to hire more white employees because Bridges was unhappy

with the fact that ninety percent of the staff at Store #16172

was Hispanic.

       Because Store #16172 continued to have production problems

under Williams’s management, Bridges placed Williams on a

“success” plan in December of 1999.    The plan outlined specific

goals for Williams to meet in order to improve the store’s

                                  3
performance.   Taco Bell asserts that Bridges warned Williams that

Williams would be terminated if he did not meet the goals

outlined in this success plan.    Store #16172 was re-audited on

January 26, 2000 and received an unacceptable rating.     On January

28, 2000, Williams called Taco Bell’s Business Abuse Hotline and

reported alleged illegal practices by Bridges.    On February 3,

2000, Taco Bell terminated Williams.    Williams’s position at

Store #16172 was filled by a white manager.    According to Taco

Bell, the new manager resolved the store’s performance problems

and passed an audit conducted within forty-five days of his

arrival.

     On February 23, 2000, Williams filed a formal charge of

discrimination with the Equal Employment Opportunity Commission

(the “EEOC”) against Taco Bell.    Williams received a letter from

the EEOC, dated June 14, 2000, informing him of his right to sue

Taco Bell.   Williams filed suit against Taco Bell in federal

district court on September 8, 2000.    In the district court,

Williams asserted claims of discrimination, retaliation, and

wrongful discharge under Title VII of the Civil Rights Act of

1964 (“Title VII”).   42 U.S.C. § 2000e et seq. (1994).    Williams

further asserted a state law claim for intentional infliction of

emotional distress.




                                  4
     On August 1, 2001, Taco Bell filed a motion for summary

judgment on all of Williams’s claims.1    The district court

granted summary judgment in favor of Taco Bell on all of

Williams’s claims.   Williams timely appealed the district court’s

summary judgment with respect to his Title VII discrimination,

retaliation, and wrongful discharge claims.2

                       II.   Standard of Review

     We review a grant of summary judgment de novo, applying the

same standards as the district court.     Chaney v. New Orleans Pub.

Facility Mgmt., Inc., 179 F.3d 164, 167 (5th Cir. 1999).       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).     We view the evidence

in a light most favorable to the non-movant.       Coleman v. Houston

Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997).       However,

if the moving party presents sufficient evidence to support

summary judgment, the non-movant must go beyond the pleadings and

come forward with specific facts indicating a genuine issue for


     1
        Williams filed a response to Taco Bell’s motion on
August 27, 2001. Although Williams’s response was untimely
pursuant to a local rule, the district court considered the
response “[i]n the interest of justice.” For purposes of this
appeal, we follow the district court’s lead and consider
Williams’s response to Taco Bell’s motion for summary judgment.
     2
        Williams’s does not assert on appeal that the district
court erred in granting summary judgment in favor of Taco Bell
with respect to Williams’s claim for intentional infliction of
emotional distress. Therefore, we consider that claim abandoned.

                                   5
trial in order to avoid summary judgment.    Celotex Corp. v.

Catrett, 477 U.S. 317, 324 (1986).

                          III.   Analysis

     Williams’s Title VII discrimination and retaliation claims

are governed by the burden shifting framework established by

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).      See St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993)

(discrimination claim); see also Long v. Eastfield Coll., 88 F.3d

300, 304 (5th Cir. 1996) (retaliation claim).   Under the

McDonnell Douglas framework, the plaintiff bears the initial

burden of establishing a prima facie case of discrimination or

retaliation by a preponderance of the evidence.    St. Mary’s Honor

Ctr., 509 U.S. at 506.   If the plaintiff establishes a prima

facie case, an inference of discrimination or retaliation arises,

and the burden shifts to the defendant to articulate a

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

employment action.   Id. at 506-07.   At that point, “the McDonnell

Douglas framework – with its presumptions and burdens –

disappear[s], and the sole remaining issue [is] discrimination

vel non.”   Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 142-43 (2000) (internal citations and quotations omitted).

If the plaintiff shows that the defendant’s proffered

justification is mere pretext, that showing, coupled with the

prima facie case, is generally sufficient to survive summary



                                 6
judgment.   Id. at 148-49.   However, an employer is entitled to

summary judgment “if the plaintiff created only a weak issue of

fact as to whether the employer’s reason was untrue and there was

abundant and uncontroverted independent evidence that no

discrimination had occurred.”    Id. at 148.

A.   Williams’s Racial Discrimination/Wrongful Discharge Claim3

      To establish a prima facie case of racial discrimination

under Title VII, Williams must show that: (1) he is a member of a

protected class; (2) he was qualified for the position he held;

(3) he was subject to an adverse employment action; and (4) he

was replaced by someone outside the protected class, or that

others similarly situated were treated more favorably.      Okoye v.

Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512-13 (5th

Cir. 2001).   The parties do not dispute that Williams satisfies

the first, third, and fourth prongs of his prima facie case.        As

an African-American, Williams is a member of a protected class,

and Taco Bell’s termination of Williams’s employment constitutes

an adverse employment action.   Further, Williams was replaced by

someone outside the protected class because Taco Bell filled

Williams’s position with a white manager.      The district court

concluded, however, that Williams failed to establish a prima

      3
        Williams does not assert a wrongful discharge claim
under state tort law. Rather, Williams asserts separate claims
for racial discrimination and wrongful discharge pursuant to
Title VII. The district court addressed these claims separately.
Because the basis of both of these claims is Williams’s
termination, we analyze these claims together.

                                  7
facie case of discrimination because Williams did not present

sufficient evidence that he was qualified to manage Store #16172.

     We agree with the district court’s conclusion.   Taco Bell

asserts that Store #16172 suffered from multiple problems during

Williams’s tenure, including customer complaints, slow service,

lack of employee training, excessive number of labor hours used,

and poor cash management.   It is undisputed that Williams failed

to meet the goals outlined in the October action plan and the

December success plan, and the store received an unacceptable

rating in the January audit.   Williams does not controvert Taco

Bell’s assertion that he was a poor performing manager at Store

#16172.   Rather, Williams asserts that his “only performance

evaluation in a management capacity qualified him for the

management position at store 16172.”   In support of this

statement, Williams points to the following excerpt from his own

deposition testimony:

           Q: Had you ever met Gregg Flagg prior to
           working with him at [store] 15214?
           A: No.
           Q: Is that the first time you ever
           encountered him?
           A: Definitely.
           . . .
           Q: Now, he gave you a performance review,
           correct?
           A: Yes.
           Q: Okay. And from what I can tell, that is
           the only performance review of you in a
           management capacity. Is that a fair
           statement?
           A: Absolutely.
           Q: But you were not evaluated by anybody but
           Gregg Flagg?

                                 8
          A: That’s it.
          Q: Now at some point you go to another store,
          16172; and this is where things start
          happening –

Contrary to William’s assertions, this testimony does not support

the claim that Williams was qualified to manage Store #16172.

This testimony merely establishes that a performance evaluation

occurred while Williams was in management training at another

Taco Bell location.   Because Williams did not produce the

evaluation as part of his evidence opposing summary judgment, the

evaluation is not part of the record, and we cannot consider the

evaluation’s contents or conclusions.   Thus, Williams fails to

produce any evidence, even if viewed in a light most favorable to

Williams, establishing that he was qualified to manage Store

#16172.

     Williams also argues that, because he was placed in a store

with a history of poor performance, the store’s performance

should not reflect on his qualifications.   After Williams’s

termination, however, the subsequent manager was able to pass an

objective audit within forty-five days.   This fact suggests that

the store’s performance is linked to managerial ability rather

than performance history.    Even viewing the evidence in a light

most favorable to Williams, given all of the performance problems

at Store #16172 under Williams’s management, an oblique mention

of an old performance evaluation does not raise a genuine issue

of material fact regarding whether Williams was qualified for the


                                 9
position.    Accordingly, we agree with the district court that

Williams fails to establish a prima facie case of discrimination,

and the district court properly granted summary judgment in favor

of Taco Bell on Williams’s discrimination claim.

B.   Williams’s Retaliation Claim

     To establish a prima facie case of retaliation under Title

VII, Williams must show that: (1) he engaged in a protected

activity; (2) an adverse employment action occurred; and (3)

there is a causal link between participation in the protected

activity and the adverse employment action.     Evans v. City of

Houston, 246 F.3d 344, 352 (5th Cir. 2001).    “Protected activity”

is defined as opposition to any practice rendered unlawful by

Title VII.    See 42 U.S.C. § 2000e-3(a).   A “causal link” exists

when “the employer’s decision to terminate was based in part on

knowledge of the employee’s protected activity.”     Medina v.

Ramsey Steel Co., Inc., 238 F.3d 674, 684 (5th Cir. 2001)

(internal citations and quotations omitted).    Thus, to

demonstrate the causal link required to establish a prima facie

case, a plaintiff need not prove that his protected activity was

the sole factor motivating the employment decision.     Long, 88

F.3d at 305 n.4.

     In this case, the district court concluded that Williams

established a prima facie case of retaliation.    We agree.

Williams engaged in a protected activity when he complained to

Montsinger, Bridges’s supervisor, and to Taco Bell’s Business

                                 10
Abuse Hotline regarding alleged racially discriminatory

statements made by Bridges.   Furthermore, Taco Bell’s termination

of Williams’s employment clearly constitutes an adverse

employment action.   Thus, Williams satisfies the first two prongs

of his prima facie case of retaliation.

     Although it is a closer question, we conclude that Williams

also satisfies the third prong of his prima facie case.

Williams’s complaints to Montsinger and to the hotline occurred

not long before Taco Bell terminated Williams.   Moreover, it is

undisputed that Taco Bell knew about Williams’s complaints.

Viewing the evidence in a light most favorable to Williams,

Williams establishes a causal link between his complaints of

alleged discrimination and Taco Bell’s decision to terminate him

sufficient for the purposes of his prima facie case.   See Swanson

v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997)

(noting that “[c]lose timing between an employee’s protected

activity and an adverse action against him may provide the

‘causal connection’ required to make out a prima facie case of

retaliation”) (emphasis omitted); see also Evans, 246 F.3d at 354

(commenting that “a time lapse of up to four months has been

found sufficient to satisfy the causal connection for summary

judgment purposes”) (internal citations and quotations omitted).

     Because Williams establishes a prima facie case, an

inference of retaliation arises, and the burden shifts to Taco

Bell to articulate a legitimate, non-retaliatory reason for the

                                11
employment action.   St. Mary’s Honor Ctr., 509 U.S. at 506-07.

Taco Bell met its burden by asserting several legitimate, non-

retaliatory reasons for Williams’s termination.     Specifically,

Taco Bell offers evidence that, among other problems, Store

#16172 was the lowest performing store out of the seven stores

supervised by Bridges, that Williams did not properly control the

store’s inventory within Taco Bell guidelines, that Williams once

falsified records so that the store appeared to be within

inventory guidelines, that Williams did not properly train

employees, that the store struggled with public relations and

customer complaints, that Williams failed to meet goals outlined

in specific plans for improvement, and that the store received an

unacceptable rating in the January audit.

     Because Taco Bell has satisfied its burden, Williams must

demonstrate that Taco Bell’s proffered justifications for his

termination are a mere pretext for retaliation in order to

maintain his retaliation claim.     Seaman v. CSPH, Inc., 179 F.3d

297, 301 (5th Cir. 1999).    Ultimately, Williams “must show that

‘but for’ the protected activity, the adverse employment action

would not have occurred.”4   Id.    Thus, even if retaliation was a

     4
        “[T]he ultimate issue in an unlawful retaliation
case–whether the defendant discriminated against the plaintiff
because the plaintiff engaged in conduct protected by Title
VII–seems identical to the third element of the plaintiff’s prima
facie case–whether a causal link exists between the adverse
employment action and the protected activity. However, the
standards of proof applicable to these questions differ
significantly.” Long, 88 F.3d at 305 n.4 (emphasis in original).

                                   12
motivating factor in Williams’s termination, “no liability for

unlawful retaliation arises if the employee would have been

terminated even in the absence of the protected conduct.”         Long,

88 F.3d at 305 n.4.   We afford a great deal of deference to

employers in their hiring and promotion decisions.      Rios v.

Rossotti, 252 F.3d 375, 380 (5th Cir. 2001).

     The district court concluded that Williams fails to produce

sufficient evidence that Taco Bell’s reasons for terminating him

were pretextual.   We agree.   Beyond mere allegations and his own

deposition testimony asserting that he was discriminated against,

Williams has produced no evidence of pretext.     At this stage of

the inquiry, the suspicious timing of Williams’s termination is

not enough to suggest that Taco Bell’s reasons are pretextual.

See Swanson, 110 F.3d at 1188 (stating that once the employer

offers a legitimate, nondiscriminatory reason that explains both

the adverse action and the timing, the plaintiff must offer some

evidence of actual retaliation).      Bridges’s alleged comments –

regarding the cars driven by the staff, the fact that the staff

was majority Hispanic, and Bridges’s desire to transfer Williams

to the “ghetto” – while inappropriate, do not rise to the level

of intentional discrimination against an African-American.



The causal link element only requires that the employment
decision be “based in part on knowledge of the employee’s
protected activity,” Medina, 238 F.3d at 684 (internal citations
and quotations omitted), while the ultimate issue is a ‘but-for’
inquiry. See Seaman, 179 F.3d at 301.

                                 13
Moreover, Williams produces no evidence to controvert any of Taco

Bell’s assertions regarding the poor performance of Store #16172

under Williams’s management.    We conclude that Williams fails to

raise a genuine issue of material fact regarding whether the

reasons given by Taco Bell for terminating Williams are

pretextual.   Conclusory assertions and subjective beliefs are

insufficient to support a retaliation claim at the summary

judgment stage.   See Travis v. Bd. of Regents of the Univ. of

Tex. Sys., 122 F.3d 259, 266 (5th Cir. 1997) (holding that the

plaintiff’s assertion of retaliation “is merely her own

subjective belief, which is insufficient to create a jury

question”).   Thus, the district court properly granted summary

judgment in favor of Taco Bell on Williams’s retaliation claim.

                          IV.   Conclusion

     For the foregoing reasons, we AFFIRM the summary judgment of

the district court in favor of Taco Bell.




                                 14
