United States Court of Appeals

Fifth Circuit



## FILED

July 16, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 03-20648

Summary Calendar

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BARBARA NORTON, et al.,

Plaintiffs,

THERESA FUENTEZ

Plaintiff-Appellant,

versus

HOUSTON INDUSTRIES INC., et al,

Defendants

HOUSTON INDUSTRIES INC.; THE HOUSTON LIGHTING & POWER COMPANY;

DON D. JORDAN; DON D. SYKORA; SUSAN FABRE; MCKINSEY & COMPANY

INC.,

Defendants - Appellees

______________________________________________________________________________

IVIS W. JOHNSON, SR., et al,

Plaintiffs,

MARIA T. FUENTEZ,

Plaintiff-Appellant,

versus

THE HOUSTON LIGHTING & POWER COMPANY; HOUSTON INDUSTRIES INC.;

DON D. JORDAN; DON D. SYKORA,

Defendants-Appellees*

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not be published and is not precedent except under the limited circumstances set forth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.

2 ______________________________________________________________________________

MARIA TERESA FUENTEZ

Plaintiff-Appellant,

versus

THE HOUSTON LIGHTING & POWER COMPANY

Defendant-Appellee.

___________________________________________________

Appeal from the United States District Court

Southern District of Texas, Houston Division

(No. H-92-CV-323-9 )

___________________________________________________

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM: *

Maria Teresa Fuentez (“Fuentez”), a Hispanic woman, was hi red by Houston

Lighting & Power Company (“Houston”) i n 1984. In 1990, Houston hired an outside

consultant to perform a climate assessment of the comp any; shortly after the climate

assessment Houston reassigned Fuentez to a new position. Fuentez filed a grievance with

Houston’s human resources department, asserting that she was reassigned because of her

race and sex. In October 1991, several months after Fuentez’ reassignment, Houston

instituted a program, called “Success Through Excellence in Performance” (“STEP”), that3

was designed to reduce costs. Soon after STEP, more than 900 employees—including

Fuentez —lost their jobs as part of an RIF (reduction in force). Fuentez sued Houston

arguing, among other things, that her demotion and termination were violations of Title

VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e et seq

. (2000), because they were

based on her race and sex. At trial, Houston moved for judgment as a matter of law. The

judge granted the motion; Fuentez appeals.

We review the district court’s granting of judgme nt as a matter of law d e novo

,

applying the same standard as the district court. S ee, e.g.

, Laxton v. Gap Inc.

, 333 F.3d 572,

577 (5th Cir. 2003). Judgment as a matter of law is proper when “there is no legally

sufficient evidentiary basis for a reasonable jury to have found for that party.” Foreman

v. Babcock & Wilcox Co. , 117 F.3d 800, 804 (5th Cir. 1997) (quoting F ED

. R. C IV

. P. 50(a)).

First, Fuentez argues that Houston demoted her on June 26, 1991 because she is a

Hispanic woman, in violation of Title VII. Adverse actions that occur more than 300 days

before the filing of an EEOC complaint are time-barred. S ee 42 U.S.C. § 2000e-5(e)(1).

Here, Fuentez filed her EEOC com plaint on May 26, 1992; consequently, suits based on

actions occurring before July 30, 1991—including her demotion—are barred by statute.

Second, Fuentez argues that Houston fired her because she is a Hispanic female,

in violation of Title VII. Under the burden-shifting framework for Title VII , Fuentez must

first make a prima facie case of a violation; if she does then Houston has an opportunity

to offer a legitimate, non-discriminatory reas on for the disputed action, in which case

Fuentez must

provide evidence rebutting the offered reason. S ee McDonnell Douglas2

One of the (four) requirements of the McDonnell Douglas framework is that the

plaintiff be replaced by someone not in a protected class. 411 U.S. at 802–05. It is

unclear whether Fuentez satisfies this prong because, while someone did take on at

least part of her duties, no one was specifically hired for her position.

4 Corp. v. Green

, 411 U.S. 792, 802–04 (1973). Even assuming, a rguen do , that Fuentez

establishes a prima facie case of discrimina tion, 2 we reject her claim because she fails to

rebut the legitimate, non-discriminatory reason proffered by Houston. Houston maintains

that her position was eliminated in order to cut costs, an argument bolstered by both the

cost-saving STEP program closely preceding Fuentez’ termination and the fact that more

than 900 other employees were fired as well. Fuentez offers no evidence, other than her

own subjective belief, to rebut Houston’s cost-cutting move. Subjective belief alone is

insufficient. L ittle v. Republic Ref. Co.

, 924 F.2d 93, 96 (5th Cir. 1991) (noting that the

Court was “not prepared to hold that a subjective belief of dis crimination, however

genu i ne, can be the basis of judicial relief”) (quoting Elliott v. Group Med. & Surgical

Servs ., 714 F.2d 556, 567 (5th Cir. 1983) (quotations omitted)).

Third, Fuentez argues that Houston fired her in retaliation for her filed grievance.

For a valid retaliation claim, Fuentez must show that there w as a causal connection

between the filing of the grievance and her discharge. See, e.g

, Fierros v. Texas Dep’t of

Health

, 274 F.3d 187, 191 (5th Cir. 2001). The only evidence that Fuentez offers is that she

was discharged after she filed the grievance. The mere fact that an adverse employment

action occurred after a complaint was filed is not sufficient to establish a causal connection.

See Raggs v. Miss. Power & Light Co. , 278 F.3d 463, 471–72 (5th Cir. 2002).3

Fuentez also asserts that Houston conspiratorially acted against her. The

argument, however, is limited to the section headings of her brief: she offers no

substantiation to her claim, and this Court finds none.

5 Finally, 3 Fuentez brings a claim of intentional infliction of emotional distress. This

Court requires a high threshold of harm for this type of claim. S ee Walker v. Thompson,

214 F.3d 615, 628 (5th Cir. 2000) (“Insults, indignities, threats, annoyances, or petty

oppressions, without more, do not rise to the level of intentional infliction of emotional

distress.”); Ugalde v. W.A. McKenzie Asphalt Co.

, 990 F.2d 239, 2 43 (5th Cir. 1993)

(holding that a supervisor’s use of racial epithets, while condemnable, does not rise to the

level of extreme or outrageous conduct). Fuentez’ complaints of emotional

harm—stemming from her firing and the fact that she was not given a baby shower—do

not meet that high standard.

Accordingly, the judgment of the district court is AFFIRMED.