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

                                                 FILED
                                                                           March 12, 2009

                                     No. 08-20595                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



LUIS SALINAS

                                                   Plaintiff - Appellant
v.

AT&T CORPORATION; SOUTHWESTERN BELL TELEPHONE, LP, doing
business as AT&T Texas

                                                   Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 No. 4:07-CV-1952


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
       Luis Salinas appeals the district court’s grant of summary judgment in
favor of Southwestern Bell Telephone, L.P. doing business as AT&T Texas
(“AT&T”). Because we find that Salinas has not produced sufficient evidence to
survive summary judgment on his claims of unlawful discrimination and
retaliation, we affirm.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-20595

      Salinas worked as a technician for AT&T in the Houston Network
Translation Center for approximately six years. As part of his job duties, he had
access to the Mechanized Business Ordering System (“MBOS”), a computer
system that allowed him to view pending sales orders including information
about the customers who had placed those orders. Salinas also participated in
the company’s Employee Referral & Information Channel (“ERIC”), which allows
employees to refer sales leads generated through contacts with friends, family,
acquaintances and business contacts. Successful sales based upon those leads
enable the employee to generate points which can be redeemed for merchandise
or debit cards. In 2006 Salinas made a large number of ERIC referrals, thereby
amassing a large number of ERIC points.
      AT&T became suspicious of the large number of referrals and the fact that
Salinas was referring numerous large businesses.            Referrals from large
companies were typically submitted by “direct sales associates,” not by
employees with Salinas’ “background, experience and skill level.” AT&T began
an investigation to confirm their suspicion about Salinas’ conduct.          AT&T
concluded that Salinas fraudulently submitted ERIC referrals and terminated
him. AT&T did not replace Salinas with another technician.
      Six days prior to his termination, Salinas filed a Charge of Discrimination
with the Texas Workforce Commission. He then filed suit in Texas state court,
and AT&T removed the case to federal district court. Salinas disputes AT&T’s
account of his conduct and termination, alleging that the reasons offered for his
termination were a pretext for discrimination based on his race and gender. He
also alleges that he was terminated in retaliation for asserting claims under
federal and state anti-discrimination statutes.       The district court granted
AT&T’s motion for summary judgment, finding that Salinas (1) failed to prove
his prima facie case of gender, color or race discrimination and (2) failed to prove
AT&T’s legitimate non-discriminatory reasons were a pretext for discrimination.

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      We review a district court’s grant of summary judgment de novo, applying
the same standards as the district court. Turner v. Baylor Richardson Med. Ctr.,
476 F.3d 337, 343 (5th Cir. 2007). Summary judgment is appropriate when the
evidence shows that “there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.” F ED. R. C IV. P. 56(c).
      Under Title VII it is “an unlawful employment practice for an employer .
. . to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1). A plaintiff may prove Title VII discrimination
through direct or circumstantial evidence. Turner, 476 F.3d at 343. Salinas has
not provided direct evidence of discrimination, therefore, his Title VII claim
based on circumstantial evidence is analyzed under the McDonnell Douglas
burden-shifting evidentiary framework. McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973). Under this framework, a plaintiff can establish a prima
facie case of discrimination by establishing “that [he]: (1) is a member of a
protected class; (2) was qualified for [his] position; (3) was subject to an adverse
employment action; and (4) was replaced by someone outside the protected class,
or, in the case of disparate treatment, [ ] 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) (internal quotations omitted). If the plaintiff
successfully establishes a prima facie case of discrimination, the burden shifts
to the defendant to set forth its legitimate, non-discriminatory reason for its
decision. Septimus v. Univ. of Houston, 399 F.3d 601, 609 (5th Cir. 2005). “The
plaintiff may still avoid summary judgment if [he] demonstrates a genuine issue
of material fact whether the legitimate reasons proffered by the defendant are
not its true reasons, but instead are a pretext for discrimination.” Id.
      With regard to Salinas’ discrimination claim, the district court found that

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he failed to show a prima facie case of discrimination because he could not
establish the fourth element of the McDonnell Douglas framework.           Since
Salinas was not replaced by AT&T, under the fourth element he must
demonstrate that AT&T gave preferential treatment to a non-Hispanic or female
employee under “nearly identical circumstances.” Okoye, 245 F.3d at 514.
Salinas has offered no evidence of AT&T's favorable treatment of similarly
situated employees outside his protected class, and fails to even assert that
AT&T treated him less favorably than non-Hispanic or female employees.
Because Salinas cannot establish a prima facie case, summary judgment is
appropriate as to his discrimination claim and we need not reach the issue of
pretext.
      With regard to Salinas’ allegation that he was terminated in retaliation
for asserting claims under federal and state anti-discrimination statutes, the
district court found that he had shown a prima facie case but that he had not
alleged evidence sufficient to create a genuine issue of fact that AT&T's non-
retaliatory reason for termination was pretextual.      Title VII makes it “an
unlawful employment practice for an employer to discriminate against any of
[its] employees . . . because [the employee] has opposed any practice made an
unlawful employment practice by this title [42 USCS §§ 2000e-2000e-17] . . . .”
42 U.S.C. § 2000e-3(a). Title VII retaliation claims are also subject to the
McDonnell Douglas burden-shifting standard. “A plaintiff establishes a prima
facie case for unlawful retaliation by proving (1) that [he] engaged in activity
protected by Title VII, (2) that an adverse employment action occurred, and (3)
that a causal link existed between the protected activity and the adverse
employment action.” Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996).
If a prima facie case is shown, the burden shifts to the employer to articulate a
legitimate, non-discriminatory reason for the adverse employment action; to
overcome this, the employee must offer sufficient evidence to create a genuine

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issue of fact that the employer’s proffered reason is a pretext for discrimination.
See Richardson v. Monitronics Int'l, Inc., 434 F.3d 327, 333 (5th Cir. 2005).
      Salinas did not offer sufficient evidence to create a genuine issue of fact
that AT&T’s proffered reason for terminating him was a pretext for
discrimination. AT&T produced competent summary judgment evidence that
it terminated Salinas because he violated the Code of Business Conduct when
he committed ERIC fraud and could no longer be trusted with customers’
confidential information.    Salinas’ affidavit offers no evidence that AT&T’s
reason for terminating him was a pretext for discrimination. He supports his
claim with nothing more than his subjective belief that he was the victim of
unlawful discrimination. A plaintiff's subjective beliefs are not sufficient to
create an issue of fact. See Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144,
153 (5th Cir. 1995).
      For the above reasons, we AFFIRM the district court’s order granting
summary judgment.




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