* Pursuant to 5 TH C IR

. 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 5 TH C IR

. R. 47.5.4.

1 42 U.S.C. § 2000e et seq.

2 42 U.S.C. § 1981.

3 29 U.S.C. § 621 et seq.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-20354

Summary Calendar

CECILE MITCHELL; AMELIA THOMPSON,

Plaintiffs-Appellants,

versus

MARINER HEALTH; BARBARA MARTIN,

Defendants-Appellees.

Appeal from the United States District Court

For the Southern District of Texas

(H-96-CV-2968)

December 10, 1998

Before POLITZ, Chief Judge, HIGGINBOTHAM and SMITH, Circuit Judges.

PER CURIAM: *

Cecile Mitchell and Amelia M. Thompson appeal an adverse summary

judgment in their claims under Title VII, 1 sec tion 1981, 2 the Age Discrimination

in Employment Act (ADEA), 3 and under state law against Mariner Health, Villa

Northwest Nursing Home, and Barbara Martin. For the reasons assigned we affirm.4 Mitchell and Thompson had been suspended before because of alleged deficiencies in

patient care and had been warned that any further such allegations would result in discharge.

5 They also asserted that they had been defamed by the charges, but they withdrew that

claim.

6 To establish a prima facie case (under Title VII and § 1981 to prove race discrimination

or under the ADEA to prove age discrimination), the plaintiff must show that: (1) she is a member of a protected group; (2) she is qualified; (3) she was terminated; and (3) she was

replaced with an individual outside her protected group or, in the case of age discrimination,

someone substantially younger than she. S ee McDonnell Douglas Corp. v. Green

, 411 U.S.

792 (1973); O’Connor v. Consolidated Coin Caterers Corp.

, 5 1 7 U.S. 308 (1996);

Urbano v. Continental Airlines, Inc. , 138 F.2d 204 (5 th Cir. 1998).

7 See Texas Dep’t of Community Affairs v. Burdine , 450 U.S. 248 (1981).

2 BACKGROUND

Mitchell and Thompson

– nursing assistants formerly employed by Mariner

– were fired after Martin, the Mariner administrator, received complaints from an

elderly patient that she had been abused by them. 4 Mitchell and Thompson, both

black, filed t he instant action alleging that race played a role in their discharge.

Mitchell, who is fifty-eight, added that age factored into the decision regarding her

termination. Further, both contend that the accusations of patient abuse were false

and constituted intentional infliction of emotional distress. 5

ANALYSIS

In its disposition, the district cou rt assumed, a rguendo, that Mitchell and

Thompson had made out a prima facie case of race discrimination in violation of

T itle VII and § 1981, and age discrimination in violation of the ADEA. 6

Thereafter, the court found that Martin had satisfied the d efendants’ burden of

articulating a legitimate, nondiscriminatory reason for the discharge, specifically

the allegations of patient abuse. 7 To rebut the charges of patient abuse as a pretext8 See Rhodes v. Guiberson Oil Tools , 75 F.3d 989 (5 th Cir. 1996) (en banc).

9 Wornick Co. v . Casas , 856 S.W.2d 732, 734 (Tex. 1993) (internal quotations and

citation omitted).

3 for race discrimination, Mitchell and Thompson offered evidence that white

employee s charged with patient abuse had not been discharged. They failed,

however, to establish that the circumstances surrounding those instances were

similar to theirs. To show pretext for age discrimination, Mitchell introduced an

affidavit stating that Martin had commented on her long tenure and her age several

times; additionally, she claimed that older workers had been termin ated. The

district court was not persuaded that this was evidence from which a rational factfinder could infer pretext. 8

As to the state law claim, the district court determined that charges relating

to pat ient abuse – the sole basis of that claim – did not satisfy the applicable

standard, which requires conduct “so outrageous in character, an d so extreme in

degree, as to go b e yond all possible bounds of decency and to be regarded as

atrocious, and utterly intolerable in a civilized society.” 9

A de novo review of the record leads us to the sam e conclusion as that

reached by the district court. Viewing the evidence in the light most favorable to

the appellants, we must conclude that no reasonable trier of fact could find that they

were discharged either because of race or age. Nor can there can be any viable

claim that the patient abuse accusations against appellants constitute an intentional

infliction of emotional distress under dispositive state law.

For these reasons and those discus sed in the district court’s opinion, the4

judgment appealed is AFFIRMED.