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this opinion should not be published and is not precedent except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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