     Case: 13-40453      Document: 00512476541         Page: 1    Date Filed: 12/19/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                               Fifth Circuit

                                                                              FILED
                                    No. 13-40453                        December 19, 2013
                                  Summary Calendar                         Lyle W. Cayce
                                                                                Clerk

MARIA ANGELA VASQUEZ,

                                                 Plaintiff - Appellant
v.

NUECES COUNTY, TEXAS,

                                                 Defendant - Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:11-CV-45


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Maria Vasquez appeals the district court’s grant of Nueces County’s
motions to dismiss and motions for summary judgment based on her claims of
retaliation; hostile work environment; and age, gender, national origin, and
color discrimination. She further appeals the district court’s denial of her
motion to amend her pleadings and the dismissal of her appeal from the




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                       No. 13-40453
decision of the Nueces County Civil Service Commission (“the Commission”).
We AFFIRM in part and VACATE and remand in part.
                                          I. Background
      Vasquez, a Hispanic woman who was 57 years old when terminated,
began her employment with the Nueces County Tax Assessor-Collector’s Office
as a seasonal clerk and was quickly promoted to a full-time clerk in the Motor
Vehicle Registration Section.            In 2010, Vasquez received a notice of
contemplated        termination      following     an    alleged     incident      involving
insubordinate behavior that disrupted office operations. She was placed on
leave following the incident and terminated shortly thereafter.
      Following termination, Vasquez filed a grievance with the Commission,
which unanimously upheld her termination. Vasquez also filed complaints
with the Texas Workforce Commission (“TWC”) and the Equal Employment
Opportunity Commission (“EEOC”), alleging discrimination based on sex,
national origin, race, color, and age, as well as retaliation. Both the TWC and
the EEOC found no merit to her claims.
      While awaiting the TWC and EEOC decisions, Vasquez filed this action
against Nueces County alleging violations of Title VII of the Civil Rights Act
of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq.; the Texas Commission on
Human Rights Act (“TCHRA”), TEX. LABOR CODE §§ 21.001 et seq. (West 2006);
the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq.;
and 42 U.S.C. §§ 1981 and 1983. 1
      After the district court dismissed her retaliation, hostile work
environment, and §§ 1981 and 1983 claims, Vasquez filed a Second Amended
Complaint, in which she re-alleged discrimination based on color, national




      1   Vasquez does not appeal the dismissal of her § 1981 and § 1983 claims.
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                                  No. 13-40453
origin, gender, and age and appealed the Commission’s decision. The district
court granted summary judgment on all claims. She timely appealed.
                                 II. Discussion
      We review de novo a district court’s grant of motions to dismiss and
motions for summary judgment. See Leal v. McHugh, 731 F.3d 405, 410 (5th
Cir. 2013); Ibarra v. United Parcel Serv., 695 F.3d 354, 355 (5th Cir. 2012)
(citation omitted).
      To state a claim of retaliation under Title VII, the TCHRA, or the ADEA,
a plaintiff must show, inter alia, that she suffered an adverse employment
action. See Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 484 (5th Cir.
2008); Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 487 (5th Cir. 2004);
Holtzclaw v. DSC Commc’ns Corp., 255 F.3d 254, 259 (5th Cir. 2001). Because
Vasquez did not file her grievances with the EEOC, the TWC, or the
Commission until after her termination, she did not suffer an adverse
employment action in retaliation for filing them, as she alleges, and the district
court properly dismissed this claim.
      Further, under Title VII, the TCHRA, and the ADEA a plaintiff who
asserts a hostile work environment claim must establish, inter alia, that the
harassment was based on her race, sex, national origin, color, or age. See e.g.,
Septimus v. Univ. of Hous., 399 F.3d 601, 611 (5th Cir. 2005); Dediol v. Best
Chevrolet, Inc., 655 F.3d 435, 441 (5th Cir. 2011). The district court properly
dismissed her Title VII, TCHRA, and ADEA claims because Vasquez failed to
allege in her complaint that the harassment she alleges occurred during the
incident leading up to her termination was based on her race, color, religion,
sex, national origin, or age.




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                                    No. 13-40453
      The district court also properly granted Nueces County’s motion for
summary judgment on all of Vasquez’s discrimination claims.             2   Vasquez, at
most, presents circumstantial evidence of discrimination, and therefore we
apply the burden shifting paradigm in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); see also Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473,
476 (Tex. 2001) (applying the same framework to analysis of the TCHRA).
      To establish a prima facie case of discrimination under Title VII,
Vasquez must show, inter alia, that she was replaced by someone outside the
protected class, or that other similarly situated persons outside the class were
treated more favorably. See Okoye v. Univ. of Tex. Hous. Health Sci. Ctr., 245
F.3d 507, 512–13 (5th Cir. 2001).         To establish a prima facie case of age
discrimination under the ADEA, Vasquez must show, inter alia, that she was
either replaced by someone under 40, “replaced by someone younger, or [ ]
otherwise discharged because of [her] age.”          Jackson v. Cal-W. Packaging
Corp., 602 F.3d 374, 378 (5th Cir. 2010).
      Here, the record shows Vasquez was replaced by someone in the same
protected class: a 42-year old Hispanic female. Indeed, the vast majority of
employees performing the same duties as Vasquez were female, Hispanic, and
over the age of 40. The only evidence offered to support her complaint is her
own affidavit, asserting that the motivation for her termination was her age,
gender, national origin, or race. However, we have held that the subjective
belief of a plaintiff is not sufficient to establish a prima facie case of
discrimination under Title VII, the ADEA, or the TCHRA. See Baltazor v.




      2   Vasquez argues that she should have been allowed to replead following the
Commission’s hearings. The record shows that the district court granted Vasquez’s motion
to file her Second Amended Complaint. There is no subsequent motion requesting leave to
further amend her complaint. Therefore, this contention is without merit.
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Holmes, 162 F.3d 368, 377 n.11 (5th Cir. 1998). Therefore, the district court
properly granted summary judgment on these claims. 3
       Vasquez also appeals the district court’s grant of summary judgment on
her appeal of the Commission’s decision by amending her complaint after the
Commission upheld her termination. Under the Texas Local Government
Code, “A county employee who, on a final decision by the [C]ommission, is . . .
removed from the employee’s position may appeal the decision by filing a
petition in a district court in the county within 30 days after the date of the
decision.” TEX. LOC. GOV’T CODE § 158.012(a) (West 2008). In Texas, the right
to appeal the decision of an administrative agency is a statutory right, and the
applicable statutory provisions are mandatory, exclusive, and must be
complied with fully for an action to be maintainable. See Hous. Mun. Emps.
Pension Sys. v. Ferrell, 248 S.W.3d 151, 157-58 (Tex. 2007). Nueces County
argues that, although Vasquez timely 4 filed her amended complaint
challenging the Commission’s decision in a federal district court located in
Nueces County, because she did not file a petition within thirty days in a state




       3 Even if we concluded that Vasquez arguably satisfies the prima facie case for her
ADEA claim because she was replaced by someone younger, she does not present any
competent evidence to suggest that Nueces County’s claim that she was terminated for
insubordinate behavior was pretextual, as required by the burden shifting paradigm set forth
in McDonnell Douglas, 411 U.S. at 804. Therefore, the district court properly granted
summary judgment. See Crawford v. Formosa Plastics Corp., 234 F.3d 899, 903-04 (5th Cir.
2000) (holding that where the plaintiff does not present evidence that the defendant’s
proffered, nondiscriminatory reason for termination is false, summary judgment is proper
under the burden-shifting paradigm).

       4  Nueces County does not challenge the timeliness of Vasquez’s filings, only the
propriety of filing in federal, rather than state, court. Thus, we need not address the effect
of the district court’s striking of the (timely filed) first amended complaint containing the civil
service appeal and then later granting leave to include those allegations in a second amended
complaint. The district court’s summary judgment on this point was based entirely upon the
conclusion that the filing in federal court rather than state court was improper.
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                                 No. 13-40453
district court located in Nueces County, the district court properly granted
summary judgment.
      In her complaint, Vasquez premised jurisdiction over this claim on the
district court’s supplemental jurisdiction. We have previously held that a
similar state statute specifying which district court should hear a case was “no
barrier to the exercise of supplemental jurisdiction in federal court.” Bradberry
v. Jefferson Cnty., 732 F.3d 540, 554-55 (5th Cir. 2013). Although Bradberry
involved an original lawsuit rather than an appeal of an administrative
decision, the Supreme Court has allowed supplemental jurisdiction to be
exercised over review of state administrative decisions.     City of Chi. v. Int’l
Coll. of Surgeons, 522 U.S. 156, 169 (1997) (“There is nothing in the text of [28
U.S.C.] § 1367(a) that indicates an exception to supplemental jurisdiction for
claims that require on-the-record review of a state or local administrative
determination.”). Thus, the district court’s conclusion that Vasquez’s filing in
federal court rather than state court was impermissible was in error. As a
result of that ruling, the district court did not consider whether, as a
discretionary matter, it should exercise its supplemental jurisdiction over this
claim, particularly now that all federal claims have been determined. See id.
at 172-73 (supplemental jurisdiction is discretionary in the district court); see
also Noble v. White, 996 F.2d 797, 799-800 (5th Cir. 1993) (holding it is proper
to decline supplemental jurisdiction over state-law claims when all federal
claims have been determined).      Accordingly, we vacate the portion of the
district court’s judgment regarding the appeal of the Civil Service
Commission’s decision and remand to the district court to decide whether to
exercise supplemental jurisdiction over this claim and conduct any associated
further proceedings consistent with this opinion.
      AFFIRMED in part; VACATED and remanded in part.


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