United States Court of Appeals
Fifth Circuit
F I L E D
In the November 1, 2004
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 04-40468
Summary Calendar
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TULISHA L. BANKS,
Plaintiff-Appellant,
VERSUS
AT&T WIRELESS, INC.,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
m 6:03-CV-84
_________________________
Before, DAVIS, SMITH, and DENNIS, on her claim of race discrimination under title
Circuit Judges. VII. Because Banks failed to establish a prima
facie case, we affirm.
PER CURIAM:*
I.
Tulisha Banks appeals a summary judgment Banks worked for defendant AT&T Wire-
less, Inc. (“AT&T”), for close to eight years
before being terminated. Banks, an at-will em-
*
Pursuant to 5TH CIR. R. 47.5, the court has de- ployee, was discharged after allegedly vio-
termined that this opinion should not be published lating AT&T’s policy regarding the handling
and is not precedent except under the limited cir- of the accounts of an employee’s friends or
cumstances set forth in 5TH CIR. R. 47.5.4.
families. ployment action; and (4) was replaced by
someone outside the protected class.1 Once a
After filing a charge of discrimination with prima facie case has been made, a defendant
the Equal Employment Opportunity Commis- must demonstrate a legitimate nondiscrimina-
sion, Banks was issued a right to sue letter and tory reason for its action. McDonnell Douglas
filed this lawsuit. On AT&T’s motion for Corp. v. Green, 411 U.S. 792, 802-03 (1973).
summary judgment, the district court found At that point, the burden returns to the plain-
that Banks could not establish a prima facie tiff to show that the offered explanation is
case of discrimination, and that even if one mere pretext and that intentional discrimina-
could be shown, AT&T had conclusively dem- tion was present. Id. Thus, if Banks can show
onstrated that Banks’s dismissal was the result genuine issues of material fact as to one or
of a legitimate business decision. Con- more of the elements of her prima facie case,
sequently, the court granted AT&T’s motion as well as a genuine issue of fact as to the
for summary judgment and dismissed Banks’s veracity of AT&T’s non-discriminatory expla-
claim with prejudice. nation, she survives summary judgment.
II. III.
We review a summary judgment de novo As we have said, a prima facie race dis-
and are bound by the same standards as those crimination claim includes four elements, the
that govern the district court. See Chaplin v. presence of three of which is not disputed.
NationsCredit Corp., 307 F.3d 368, 371 (5th Banks is undoubtedly black (and thus part of
Cir. 2002). Namely, summary judgment is the protected class); AT&T does not dispute
appropriate only where “‘the pleadings, depo- at the summary judgment stage that she was
sitions, answers to interrogatories, and admis- qualified for her position; and being dismissed
sions on file, together with the affidavits, if certainly qualifies as an adverse employment
any,’ when viewed in the light most favorable action. Nevertheless, because Banks was not
to the non-movant, ‘show that there is no gen- replaced by someone outside the protected
uine issue as to any material fact.’” TIG Ins. class, and she proffered no other evidence of
Co. v. Sedgwick James, 276 F.3d 754, 759 discriminatory intent on AT&T’s part, she
(5th Cir. 2002) (quoting Anderson v. Liberty cannot prevail.
Lobby, Inc., 477 U.S. 242, 249-50 (1986)).
Once the moving party has demonstrated that AT&T provided evidence that Banks was
the non-moving party has no evidence such replaced by another black who was transferred
that a reasonable jury could support a verdict to the store in which Banks had worked. To
in its favor, the non-moving party must put counter this showing, Banks offers that no
forth specific facts that demonstrate a genuine blacks were hired in the eighteen months
factual issue for trial. Id. following her termination. Further, she as-
serts, in her opposition to summary judgment,
In the title VII context, to make out a claim that she “made visits to the store and knows
for discrimination, Banks must establish a pri- she was replaced by a white female.”
ma facie case showing that she (1) was a
member of the protected class; (2) was quali-
fied for her job; (3) suffered an adverse em- 1
See, e.g., Shackelford v. Deloitte & Touche,
L.L.P., 190 F.3d 398, 404 (5th Cir. 1999).
2
An employee’s subjective belief of discrim-
ination alone is not sufficient to warrant
judicial relief.2 In the face of AT&T’s demon-
stration that another member of the protected
class replaced Banks, Banks rebuts only with
the fact that others hired from the outside were
not in the protected class and that she some-
how “knew” that these white females replaced
her. Such assertions are not sufficient to de-
feat summary judgment in the face of direct
evidence that Banks was replaced by a black
employee.
Banks is further unable to demonstrate that
any employees outside the protected class have
been treated differently or more favorably
under similar circumstances. To the contrary,
AT&T provides an affidavit to the effect that
white males were terminated for similar
misconduct. Although the mere fact that
Banks was not replaced by someone outside
the protected class is not enough to warrant
summary judgment, Banks’s failure effectively
to counter AT&T’s evidence of similar treat-
ment dispels any notion of discriminatory
intent. As a result, Banks cannot establish a
prima facie case.
AFFIRMED.
2
See, e.g., Auguster v. Vermilion Parish Sch.
Bd., 249 F.3d 400, 403 (5th Cir. 2001); Bauer v.
Abermarle Corp., 169 F.3d 962, 967 (5th Cir.
1999); E.E.O.C. v. La. Office of Cmty. Servs., 47
F.3d 1438, 1448 (5th Cir. 1995).
3