1 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

March 17, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 05-10961

Summary Calendar

_____________________

MARY BELL,

Plaintiff - Appellant,

versus

BANK OF AMERICA,

Defendant - Appellee.

________________________________________________________________

Appeal from the United States District Court 

for the Northern District of Texas, Dallas

USDC No. 3:03-CV-2650

_________________________________________________________________

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:1

Appellant Mary Bell challenges the district court’s grant of

summary judgment in favor of Bell’s former employer, Bank of

America. Bell, an African American, brought suit claiming that

Bank of America violated Title VII by discriminating against her

because of her race and for retaliating against her for engaging in

protected activity. Bell alleges that the district court erred in

finding no genuine issue of material fact. Reviewing this summary

judgment de novo, respecting the same legal standards that the

district court applied, see Lamar Adver. Co. v. Cont’l Cas. Co.,
2 Bell incorrectly asserts that this court should review the

district court’s summary judgment for an abuse of discretion. 

3 The Bank now has two senior investment administrator

positions. Those positions are located in Sarasota, Florida with

West and Schultz. 

4 Although these incidents are difficult to decipher from

Bell’s appellate brief, it appears that Bell is raising the same

incidents she relied on below, specifically that the Bank: 1)

denied her a merit pay increase for 2002; 2) provided Barnhart

assistance with data input two weeks before providing it to Bell;

2

396 F.3d 654, 659 (5th Cir. 2005) (citations omitted),2 we affirm

for the reasons stated below.

I

Bell was employed by Bank of America in the Community

Development Financial Institution Department (CDFI) as an

investment administrator. Bank of America employed two investment

administrators -- Bell, and Janice Barnhart, a Caucasian, both in

the Dallas office. Both Bell and Barnhart reported to Larry West,

who then reported to Mary Schultz. 

In 2003 Bank of America went through a restructuring, part of

which involved moving the CDFI into a different department of the

Bank. As a part of this restructuring Bell and Barnhart both

received notice from the Bank on October 2, 2003 that the position

of investment administrator in Dallas was being eliminated and that

their employment would be terminated.3

II

Bell raises a claim of discrimination based on several

incidents she alleges were racially motivated.4 For the following
3) gave Bell unreasonable deadlines, specifically by asking her to

get a cashier’s check by February 5, 2003, and giving her short

notice of a closing; 4) failed to give necessary information to

Bell directly, but rather required her to get it from Barnhart; 5)

placed a written warning in her personnel file on March 7, 2003; 6)

failed to give her necessary internet passwords around March 31,

2003; 7) placed a customer complaint in her personnel file; 8)

failed to inform her about updates in the Bank’s computer system;

and 9) failed to give her as many “reward points” as she deserved,

while giving Barnhart more reward points than Bell thought Barnhart

deserved.

To the extent Bell relies on any additional evidence not

presented below, we are barred from considering it as it was not

before the district court. DeBardelenben v. Cummings, 453 F.2d

320, 325 (5th Cir. 1972) (“Where the moving papers do not reveal

the presence of a factual controversy on a material issue, the

adversary cannot . . . assert . . . on appeal as grounds for

reversal a purported factual disagreement never before revealed.”).

3

reasons the district court correctly found that the plaintiff has

failed to present the required evidence to survive a summary

judgment on her claim of discrimination:

A

With the exception of the failure to give a merit pay increase

in 2002, Bell’s alleged incidents of discrimination do not relate

to “ultimate employment decisions” such as hiring, granting leave,

discharging, promoting, and compensating her. Consequently,

because Title VII requires the racial discrimination to result in

an “ultimate employment decision,” Bell’s discrimination claim

fails as to these incidents. Dollis v. Rubin, 77 F.3d 777, 781-82

(5th Cir. 1995).
5 Further, there is no evidence that even assuming West

treated Barnhart preferentially that he did so based on Bell’s

race. In fact Bell herself argues that the driving force for this

alleged disparity in treatment was West’s jealousy of Bell -- not

racial animus. 

6 The record indicates that the merit pay was denied due to

Bell’s poor performance. Thus, Bank of America has a legitimate

non-discriminatory reason for denying the pay. Bell’s attempt to

create a fact issue as to the Bank’s non-discriminatory reason by

arguing that West, her supervisor, was jealous of Bell and thus

essentially sabotaged her performance reviews, does not create a

fact question that would survive summary judgment. 

4

B

As to the merit pay increase in 2002, Bell failed to produce

credible evidence demonstrating that she was qualified for the

merit pay increase. Although Bell put forth evidence attempting to

show that West favored Barnhart over Bell, there was no evidence to

connect these alleged actions to the Bank’s decision denying Bell

the 2002 merit pay increase.5 Consequently, Bell’s claim that she

1) was a member of the protected class, 2) sought the pay increase,

and 3) she did not receive the requested pay increase fails to

create a prima facie case of discrimination as she has failed to

demonstrate that she was qualified to receive the pay increase.6

III

In addition to discrimination, Bell asserts a claim of

retaliation alleging that she was terminated in November 2003 as a

result of a claim she filed with the EEOC in March 2003. The

district court did not err in granting summary judgment for the

Bank as to the retaliation claim as Bell has neither demonstrated
5

a prima facie case, nor a fact issue as to the Bank’s legitimate

non-discriminatory reason.

A

To succeed on her claim of retaliation Bell must first present

evidence establishing a prima facie case -- she has failed to do

so. Specifically, Bell has not, and cannot demonstrate that she

was terminated because of the EEOC claim she filed. Bell contends

that the fact that her termination came seven months after her EEOC

claim provides evidence of the causal connection. Mere timing

alone is insufficient in this instance to satisfy the causation

element of the prima facie case. 

B 

Even were a prima facie case established, Bell has failed to

adequately refute the Bank’s legitimate non-discriminatory reason

for its actions. Bank of America contends that it eliminated Bell

and Barnhart’s positions due to restructuring in the corporation.

See E.E.O.C. v. Tex. Instruments, Inc., 100 F.3d. 1173, 1181 (5th

Cir. 1996) (recognizing that an employer’s decision to eliminate a

position is a legitimate non-discriminatory reason for terminating

a position or employee). Thus it falls to Bell to demonstrate that

this reason is either 1) false, or 2) that the Bank was motivated

by retaliation in addition to restructuring. As demonstrated by

the following, Bell has done neither:

1. Bell’s argument relating to her failure to be terminated

for perceived poor performance, although not totally understood, is
7 From our reading it appears that Bell is contending that

Bank of America falsely labeled her as an under- or poor performer.

Bell seems to be arguing that if the Bank truly believed this

rating it would have, under its policy, terminated her employment

on the grounds of performance. 

6

insufficient to create a fact issue surviving summary judgment as

performance, whether good or bad, does not demonstrate that the

Bank’s articulated reason (restructuring) was false.7

2. Bell contends that the newly created positions in Florida

are not, as the Bank argues, at a “higher level” than the position

she held in Dallas. Yet, by Bell’s own admission the Bank

eliminated all of the investment administrator positions in Dallas.

The new positions, at whatever level, exist in the location of

Bell’s former supervisors West and Schultz. The fact that the

position was totally eliminated in one location and moved to

another supports the Bank’s articulated reason for Bell’s

termination. 

3. Bell argues that the 30-day delay between the actual date

the CDFI was moved to the new department and the date of her

termination indicates that she was terminated for reasons other

than the restructuring. We are not persuaded by this argument.

Corporate restructuring can be complicated and stretch out over

long periods of time. A thirty-day period is certainly not a delay

that would arouse suspicion of the Bank’s purpose in terminating

Bell.
7

4. Finally, Bell questions the appropriateness of the Bank’s

business reasons for restructuring. However, the law is clear that

“discrimination laws [are not] vehicles for judicial secondguessing of business decisions.” Walton v. Bisco Indus., Inc., 119

F.3d 368, 372 (5th Cir. 1997). Further, Bell has presented no

evidence that the restructuring was in fact motivated by racial

discrimination. See Armendariz v. Pinkerton Tobacco Co., 58 F.3d

144, 151 n.7 (5th Cir. 1995) (holding that establishing the

employer’s reason as misguided is insufficient; rather “the

employee at all times has the burden of proving . . . that those

reasons were a pretext for unlawful discrimination”); see also

Deines v. Tex. Dept. of Protective and Regulatory Servs., 164 F.3d

277, 278 (5th Cir. 1999) (“Whether an employer’s decision was the

correct one, or the fair one, or the best one is not a question

within the jury’s province to decide. The single issue for the

trier of fact is whether the employer’s [action] was motivated by

discrimination.”). Consequently, without evidence of

discrimination, we decline to probe the business judgment of the

Bank.

IV

For these reasons we find that there is an absence of any

genuine issue of material fact. Thus, the judgment of the district

court is

AFFIRMED.