* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10344

Summary Calendar

PROBODH ARORA

Plaintiff - Appellant

v.

STARWOOD HOTELS & RESORTS WORLDWIDE, INC.

Defendant - Appellee

Appeal from the United States District Court 

for the Northern District of Texas

3:06-CV-1553

Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.

PER CURIAM:*

Probodh Arora appeals the district court’s grant of summary judgment in

his action against Starwood Hotels for illegal discharge due to his race, national

origin, age, and retaliation. We affirm.

Arora began working for Starwood Hotels in 1990 as a banquet manager.

He was promoted to the position of Director of Banquets and Outlets in 2004.

In 2005, Starwood discharged Arora, along with three other assistant banquet

United States Court of Appeals

Fifth Circuit

F I L E D

September 30, 2008

Charles R. Fulbruge III

Clerk
No. 08-10344

1 42 U.S.C. § 2000e; Texas Commission on Human Rights Act, TEX.LAB.CODE§ 21.001.

2 42 U.S.C. § 2000e-2(a).

3 FED. R. CIV. P. 56(c).

4 Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 956 (5th Cir. 1993).

5 Keelan v. Majesco Software, Inc., 407 F.3d 332, 338 (5th Cir. 2005).

2

managers, following an investigation into alleged misconduct that occurred in

the administration of the company’s 2005 annual employment satisfaction

survey. 

Arora sued Starwood alleging his discharge was in violation of Title VII

and the Texas Commission on Human Rights Act.1 Title VII and the TCHRA

make it unlawful for an employer “to fail or refuse to hire or to discharge any

individual . . . because of such individual’s race, color, religion, sex, or national

origin.”2 Arora is originally from India, is a naturalized United States citizen,

and, at the time of his discharge, was 47 years of age. 

I

Summary judgment is proper when the “pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine

issue as to any material fact and that the movant is entitled to judgment as a

matter of law.”3 When making its determination, the court must draw all

justifiable inferences in favor of the nonmovant.4 Our review of the district

court’s grant of summary judgment is de novo.

5
No. 08-10344

6 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The framework requires a

plaintiff to first create a presumption of discrimination by making out a prima facie case of

discrimination. The burden of production then shifts to the defendant to establish legitimate

non-discriminatory reasons for its actions. The plaintiff then bears the burden of persuading

the trier of fact by a preponderance of the evidence that the employer intentionally

discriminated against the plaintiff because of the plaintiff’s protected status. Laxton v. Gap

Inc., 333 F.3d 572, 578 (5th Cir. 2003).

7 Smith v. City of Jackson, Miss., 351 F.3d 183, 196 (5th Cir. 2003).

8 Arora’s testimony includes: “[A]s I understand it, [McKee] was thirty years of age

when hired,” and “He was in his 30s. I don’t know. I never met him.” 

9 See Clary v. Computer Assocs. Intern, Inc., 109 F.3d 765, 765 (5th Cir. 1997) (“Clary’s

attempt to establish that he was subjected to disparate treatment discrimination by offering

evidence of a pattern or practice of discrimination cannot succeed because his own deposition

3

Under the McDonnell Douglas6framework, Arora is required to make a

prima facie case of discrimination by showing: (1) he is within a protected class,

(2) he was qualified for the position, (3) he suffered an adverse employment

decision, and (4) he was replaced by someone outside the protected class or

treated less favorably than similarly situated employees outside the protected

class.7

The district court ruled that Arora failed to establish a prima facie case

because he did not raise a material fact issue as to the fourth element; whether

he was replaced by someone outside the protected class or treated less favorably

than similarly situated employees outside the protected class. 

Starwood replaced Arora with Ian McKee. The only evidence raised to

show McKee was outside the protected class was unsupported statements in

Arora’s briefs, and Arora’s own declaration and deposition testimony. The

summary judgment record did not include any other basis for determining

McKee’s race or age. Arora admits his allegations are not based on first-hand

knowledge.8

Unsubstantiated hearsay evidence that would not be admissible at trial

does not suffice to raise a genuine issue of material fact.9 Arora’s failure to
No. 08-10344

refutes personal knowledge of the ages of other allegedly terminated employees.”); Pritchard

v. S. Co., Servs., 92 F.3d 1130, 1135 (11th Cir. 1996) (“Pritchard cannot use inadmissable

hearsay to defeat summary judgment when that hearsay will not be reducible to admissible

form at trial. There is nothing to indicate that Pritchard’s statements (which were based on

the statements of unknown co-workers) will lead to admissible evidence.”) (internal citation

omitted).

10 Appellant attempts to raise an issue of spoilation to bolster his prima facie case.

Spoilation was not raised at the district court and cannot be raised for the first time here.

Keelan v. Majesco Software, Inc., 407 F.3d 332, 339 (5th Cir.2005) (“It is well settled in this

Circuit that the scope of appellate review on a summary judgment order is limited to matters

presented to the district court.”). 

4

produce competent summary judgment evidence regarding the race or age of his

replacement, when evidence of this nature was readily ascertainable through

discovery, precludes him from establishing an issue of fact as to whether he was

replaced by someone outside the protected class.

We also agree with the district court that there is no genuine issue of

material fact regarding whether Arora was treated less favorably than similarly

situated employees outside the protected class. Arora was discharged along with

two other banquet department employees implicated in the survey incident. One

was 26 years old and Caucasian, the other 34 years old and Indian.

Additionally, two other banquet department employees were investigated but

not terminated, one of whom was Indian and one of whom was the same age as

Arora. This evidence indicates Arora was treated on par with similarly situated

employees that were younger and Caucasian. 

Arora failed to raise a genuine issue of material fact regarding the fourth

element of a prima facie discrimination claim. Accordingly, the district court did

not err by granting Starwood’s motion for summary judgment on those claims.10

II

The district court also did not err in granting Starwood’s summary

judgment motion regarding Arora’s retaliation claim. Both Title VII and the

Texas Commission on Human Rights Act prohibit discrimination against
No. 08-10344

11 42 U.S.C. § 2000e-3(a); TEX. LAB. CODE § 21.055.

12 See Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 319 (5th Cir. 2004) (“To

present a prima facie case of retaliation under either Title VII or § 1981, a plaintiff must show

that: (1) he engaged in an activity protected by Title VII; (2) he was subjected to an adverse

employment action; and (3) a causal link exists between the protected activity and the adverse

employment action.”).

13 See Harris-Childs v. Medco Health Solutions, Inc., 169 Fed. Appx. 913, 916 (5th Cir.

2006).

5

employees who have opposed an unlawful employment practice, or made a

charge, testified, assisted, or participated in an investigation, proceeding, or

hearing under the employment practices statute.11

Arora failed to establish a prima facie case of retaliation. He raised no

genuine issue of material fact as to whether he engaged in an activity protected

by Title VII.12 Arora alleges he told supervisors that an employee was drinking

at the bar without paying and that two managers were engaging in sexually

provocative behavior. While ungainly, the complained about behavior does not

involve an employee being treated unfairly due to race or sex, thus the

complaints are not protected activity.13

For the foregoing reasons, the district court’s grant of summary judgment

is AFFIRMED.