United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 20, 2006
Charles R. Fulbruge III
Clerk
No. 05-20861
Summary Calendar
GEORGE THOMAS,
Plaintiff - Appellant,
v.
TPI STAFFING INC.,
Defendant - Appellee.
Appeal from the United States District Court
for the Southern District of Texas
4:04-CV-1488
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
George Thomas filed this action against his former employer,
TPI Staffing Inc., claiming racial discrimination and hostile work
environment under 42 U.S.C. § 2000e (2000), 42 U.S.C. § 1981
(2000), and TEX. LAB. CODE ANN. §§ 21.051 and 21.055 (Vernon 1998).
Thomas alleges that TPI terminated his employment as a computer
technician because of his Asian Indian heritage. He also contends
*
Pursuant to 5TH CIR. R. 47.5, this 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this opinion should not be published and is not precedent except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.
that TPI created a hostile work environment because TPI employees
frequently called him “bin Laden” and “terrorist.” TPI disputes
both claims, arguing that the termination was the result of Thomas
violating the company’s sexual harassment policy. The district
court granted summary judgment to TPI. Thomas appealed.
We review the district court’s decision de novo, recognizing
that summary judgment is only appropriate if no genuine issue of
material fact exists and the moving party is entitled to judgment
as a matter of law. Am. Home Assurance Co. v. United Space
Alliance, 378 F.3d 482, 486 (5th Cir. 2004). To defeat summary
judgment, the nonmoving party must direct the court to specific
evidence that shows it can prove to a reasonable jury that it is
entitled to a verdict in its favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986); Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (explaining that a party cannot defeat
summary judgment with “conclusory allegations,” “unsubstantiated
assertions,” or “only a scintilla of evidence”). Thomas has failed
to meet this standard.
After reviewing the record and the arguments of the parties,
we affirm on the grounds enumerated by the district court. Thomas
v. TPI Staffing, Inc., No. H-04-1488, 2005 WL 1562462 (S.D. Tex.
June 19, 2005) (unpublished). Thomas has not established a prima
facie case of discrimination. He did not provide the district
court with evidence showing that someone outside his protected
2
class replaced him after the termination. Shackelford v. Deloitte
& Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999). He also failed
to show that TPI treated him differently than similarly situated,
non-Indian employees. Okoye v. Univ. of Tex. Houston Health Sci.
Ctr., 245 F.3d 507, 512–13 (5th Cir. 2001). As explained by the
district court, even if Thomas had established a prima facie case
of discrimination, he has not provided sufficient evidence to rebut
the nondiscriminatory reason for his termination. Waggoner v. City
of Garland, Texas, 987 F.2d 1160, 1165 (5th Cir. 1993). Finally,
Thomas has failed to establish a prima facie case of a hostile work
environment, given that he provided the district court
unsubstantiated, inconclusive evidence on this claim. Walker v.
Thompson, 214 F.3d 615, 625 (5th Cir. 2000).
We note that Thomas, proceeding pro se, expresses his adamant
belief in the truthfulness of his claims. His belief, however, is
not enough. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415,
1430 (5th Cir. 1996) (en banc) (explaining that “an employee’s
subjective belief that he suffered an adverse employment action as
a result of discrimination” cannot alone defeat summary judgment).
In addition, we cannot consider the new evidence proffered by
Thomas at this stage in the litigation. Guillory v. Domtar Indus.,
Inc., 95 F.3d 1320, 1327 (5th Cir. 1996). Our review is limited to
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the record before the district court.1 Id.
AFFIRMED.
1
Because our review is limited to the evidence before the
district court at the time of the summary judgement, we deny
Appellant's Motion for Leave to File Supplemental Appendix with
documents not properly before the district court. With respect
to the documents at issue that were in the record below, we deny
the motion because Thomas failed to serve copies to opposing
counsel as required by Court rules. FED. R. APP. P. 25(b)–(d).
4