Banks v. AT&T Wireless

United States Court of Appeals
Fifth Circuit
F I L E D
November 1, 2004
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-40468
Summary Calendar
_______________
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,
Circuit Judges.
PER CURIAM:*
Tulisha Banks appeals a summary judgment
on her claim of race discrimination under title
VII. Because Banks failed to establish a prima
facie case, we affirm.
I.
Banks worked for defendant AT&T Wire-
less, Inc. (“AT&T”), for close to eight years
before being terminated. Banks, an at-will em-
ployee, was discharged after allegedly vio-
lating AT&T’s policy regarding the handling
of the accounts of an employee’s friends or
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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families.
After filing a charge of discrimination with
the Equal Employment Opportunity Commis-
sion, Banks was issued a right to sue letter and
filed this lawsuit. On AT&T’s motion for
summary judgment, the district court found
that Banks could not establish a prima facie
case of discrimination, and that even if one
could be shown, AT&T had conclusively dem-
onstrated that Banks’s dismissal was the result
of a legitimate business decision. Con-
sequently, the court granted AT&T’s motion
for summary judgment and dismissed Banks’s
claim with prejudice.
II.
We review a summary judgment de novo
and are bound by the same standards as those
that govern the district court. See Chaplin v.
NationsCredit Corp., 307 F.3d 368, 371 (5th
Cir. 2002). Namely, summary judgment is
appropriate only where “‘the pleadings, depo-
sitions, answers to interrogatories, and admis-
sions on file, together with the affidavits, if
any,’ when viewed in the light most favorable
to the non-movant, ‘show that there is no gen-
uine issue as to any material fact.’” TIG Ins.
Co. v. Sedgwick James, 276 F.3d 754, 759
(5th Cir. 2002) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50 (1986)).
Once the moving party has demonstrated that
the non-moving party has no evidence such
that a reasonable jury could support a verdict
in its favor, the non-moving party must put
forth specific facts that demonstrate a genuine
factual issue for trial. Id.
In the title VII context, to make out a claim
for discrimination, Banks must establish a pri-
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-
ployment action; and (4) was replaced by
someone outside the protected class.1 Once a
prima facie case has been made, a defendant
must demonstrate a legitimate nondiscrimina-
tory reason for its action. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-03 (1973).
At that point, the burden returns to the plain-
tiff to show that the offered explanation is
mere pretext and that intentional discrimina-
tion was present. Id. Thus, if Banks can show
genuine issues of material fact as to one or
more of the elements of her prima facie case,
as well as a genuine issue of fact as to the
veracity of AT&T’s non-discriminatory expla-
nation, she survives summary judgment.
III.
As we have said, a prima facie race dis-
crimination claim includes four elements, the
presence of three of which is not disputed.
Banks is undoubtedly black (and thus part of
the protected class); AT&T does not dispute
at the summary judgment stage that she was
qualified for her position; and being dismissed
certainly qualifies as an adverse employment
action. Nevertheless, because Banks was not
replaced by someone outside the protected
class, and she proffered no other evidence of
discriminatory intent on AT&T’s part, she
cannot prevail.
AT&T provided evidence that Banks was
replaced by another black who was transferred
to the store in which Banks had worked. To
counter this showing, Banks offers that no
blacks were hired in the eighteen months
following her termination. Further, she as-
serts, in her opposition to summary judgment,
that she “made visits to the store and knows
she was replaced by a white female.”
1 See, e.g., Shackelford v. Deloitte & Touche,
L.L.P., 190 F.3d 398, 404 (5th Cir. 1999).

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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).

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