* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published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 Local Rule 47.5.4.

1 We find that Cordovi has waived her age discrimination and intentional inflict ion of emotional

di st ress claims by failing to address these issues in her original appellate brief. S ee In re HECI

Exploration Co.

, 862 F.2d 513, 519 n.8 (5th Cir. 1988); and Zeno v. Great Atlantic & Pacific Tea

Co. , 803 F.2d 178, 180-81 (5th Cir. 1986).

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________________

No. 95-20902

(Summary Calendar)

_________________________

MARILYN CORDOVI,

Plaintiff-Appellant,

versus

NORTHEAST MEDICAL CENTER HOSPITAL,

Defendant-Appellee.

____________________________________________________

Appeal from United States District Court

for the Southern District of Texas

(H-95-CV-132)

__________________________________________________

July 15, 1996

Before JOLLY, JONES and STEWART, Circuit Judges.

PER CURIAM: *

In this gender and ERISA discrimination action, 1 Marilyn Cordovi appeals the district court’s

judgment granting the defendant’s motion for summary judgment. Cordovi claims that she presented

a prima facie case of discrimination and rebutted the defendant’s stated reasons for her termination.2

She also asserts that she presented direct evidence of a discriminatory reason for the termination. For

the following reasons, we affirm the judgment of the district court.

FACTS

Forty-year-old Marilyn Cordovi was employed for nearly four years as the marketing director

of Northeast Medical Center Hospital. During her years of service with Northeast, Cordovi

consistently received favorable reviews from her supervisors. After her termination on December 2,

1993, Northeast immediately filled Cordovi’s position with a female, Carol Hubar, who was also forty

years old. Hubar resigned after three months and was replaced by a forty-six-year-old male.

Cordovi’s husband suffered from a chronic catastrophic illness. Northeast was responsible

for substantial hospital and medical expenses because her husband was covered by the self-insured

health insurance plan offer ed t o Co rdovi as an employee. Cordovi testified that Northeast

administrator Fred Mery repeatedly voiced his criticism of Northeast’s self-insured employee health

benefit plan. He urged managers to encourage employees not to use their health care benefit s.

Northeast would have remained liable for Mr. Cordovi’s medical expenses as long as Cordovi

remained employed by the hospital.

Northeast has provided several reasons on different o ccasions to explain its termination of

Cordovi: (1) outside agencies formulated Cordovi’s most successful campaigns, (2) unsatisfactory

work performance, (3) excessive reliance on outside contractors, (4) refusal to work after hours, and

(5) unsatisfactory presentation at an area health fair. Cordovi presented evidence attempting to refute

each of the proffered reasons. Nevertheless, the district court granted Northeast’s motion for

summary judgment, stating that Cordovi did not establish a prima facie case and did not prove that

Northeast’s reasons were pretextual. Cordovi timely appealed.3 DISCUSSION

A. STANDARD OF REVIEW

.

We review a grant of summary judgment under the parameters established by rule 56 of the

Federal Rules of Civil Procedure. Rule 56 governs the propriety of summary judgment. Summary

judgment shall be granted if the record, taken as a whole, “together with the affidavits, if any, show[s]

that there is no genuine issue as to any material fact and that the movin g party is entitled to a

judgment as a matter of law.” F E D

. R. C IV

. P. 56. We review the district court’s summary judgment

de novo. N ichols v. Loral Vought Sys. Corp.

, 81 F.3d 38, 40 (5th Cir. 1996). However, we resolve

factual controversies in favor of the nonmoving party, but only when there is an actual controversy;

that is, when both parties have submitted evidence of contradi ctory facts. L ittle v. Liquid Air Corp.

,

37 F.3d 1069, 1075 (5th Cir. 1994).

B. SEX DISCRIMINATION CLAIM

.

We must evaluate whether Cordovi’s summary judgment evidence raises a genuine issue of

material fact within the framework of the three-tier McDonnell Douglas analysis: (1) the plaint iff must

establish a prima facie case of employment discrimination, (2) if established, the burden shifts to the

defendant to produce a legitimate, nondiscriminatory reason for its actions, and (3) the burden returns

to the plaint iff to prove that the reason was a pretext for discrimination and that the real reason was

to discriminate. M arcantel v. Louisiana Dep't of Transp. & Dev.

, 37 F.3d 197, 199 (5th Cir. 1994)

(citing McDonnell Douglas Corp. v. Green

, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)).

The district court held that Cordovi failed to establish a prima facie case of sex discrimination

relying on the fact that Northeast replaced Cordovi with a female of the same age. The district court4

rejected Cordovi’s contention that Hubar was not actually her replacement, but rather a caretaker of

the position until a male was hired. Further, the district court concluded that the stray comments of

Cordovi’s supervisor regarding the appearance o f so me employees were unrelated to any adverse

employment action, and that Cordovi’s subjective belief of discriminati on coul d not wi thstand

summary judgment. We agree.

Though it is often difficult to prove employment discrimination, the plaintiff must establish

more than subjective beliefs and unrelated stray comments to prove her case. S ee Douglass v. United

Serv. Auto. Asso.

, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc). Generalized t estimony by an

employee regarding her subjective belief that her discharge was the res ult o f discrimination is

insufficient to make an issue for the jury when the beliefs are not substantiated by conduct or

comments that are directly related to an adverse employment action. S ee id. ; and Porti s v. First Nat’l

Bank of New Albany , 34 F.3d 325, 329 (5th Cir. 1994).

Cordovi’s evidence falls within the gambit of subjective speculation. We find that Cordovi’s

hypothesis that Hubar was not actually her replacement is completely unfounded. Hubar, a woman

t he same age as Cordovi, was permanently placed in Cordovi’s position. A male was hired for

Cordovi’s position seven months after her discharge only when Hubar decided not to remain in the

position.

Further, we conclude that the comments that Fred Mery, the hospital administrator, allegedly

made regarding the appearance of some females do not qualify as proof that Northeast otherwise

discharged Cordovi because of her sex. The isolated critical comments have not been connected with

any adverse employment decisions affecting female employees. Neither can Cordovi attri bute the

comments to the adverse employment action that she experienced. Mery consecutively hired a female5

for the marketing director position. Mery gave Cordovi favorable reviews and recommended her for

pay increases for the years preceding her discharge. Also, Mery’s criticisms regarding professional

app earance were directed to both male and female employees. Testimony from Walt Chapman

indicated that on two occasions Mery has commented critically on Chapman’s appearance.

We hold that Cordovi has failed to establish a prima facie case because she has presented no

evidence that she was replac ed by someone outside of her protected class (i.e., women) or was

o t herwise discharged because of her sex. S ee Brown v. CSC Logic, Inc.

,

__ F.3d

__, 1996 WL

20342 (5th Cir. May 13, 1996) (affirming summary judgment because the plaintiff, whose position

was completely eliminated, failed to establish a prima facie case of discrimination where he was not

replaced by someone outside of the protected class and failed to offer sufficient evidence that

otherwise indicated that he was discharged be cause of his age). Thus, the di stri ct court correctl y

concluded that Cordovi has not created a geniune issue o f mat erial fact precluding summary

judgment.

Our finding that Cordovi has failed to satisfy her burden of establishing a prima facie case of

sex discrimination obviates that need to discuss the validity of Northeast’s reasons for discharging

Cordovi. The three-tier M cDonnell Douglas analysis requires a party to satisfy her burden before the

burden shifts to the other party. S ee Brown

, __F.3d at

___ (noting that it would evaluate the validity

of the employer’s stated reasons because one of the two plaint iffs had successfully presented a prima

facie case). Exercising principles of judicial restraint, we decline the opportunity to address this issue.

C. ERISA DISCRIMINATION CLAIM

.6

Cordovi argues that the statements and actions of Fred Mery provide evidence that Northeast

violated ERISA by discharging her with the intent to relieve itself of the medical costs arising from

her husban d ’s illness. Northeast responds that Cordovi presents only speculation to support this

claim and does not present a scintilla of evidence establishing a causal connection between Mery’s

concerns and Cordovi’s discharge.

The district court held that Cordovi presented no facts permitting a reasonable inference that

Mery’s concerns regarding the cost of the health plan resulted in Cordovi’s discharge. It further held

that expressions of cost concerns, standing alone, cannot sustain a plaint iff’s burden of establishing

specific intent. We agree with the district court.

The United States Code make it unlawful for an employer “to discharge . .

. or discriminate

against the participant or beneficiary

. . . for the purpose of interfering with the attainment of any right

to which [she] may become entitled under the plan.” 29 U.S.C. § 1140. To survive summary

judgment, the claimant must present positive evidence of her employer’s specific intent to discriminate

against her by interfering with the attainment of a right to which she is entitled. M cGann v. H&H

Music Co.

, 946 F.2d 401, 494 (5th Cir. 1991), cert. denied

, 506 U.S. 981 (1992); see also Hines v.

Massachusetts Mut. Life Ins. Co.

, 43 F.3d 207, 209 (5th Cir. 1995). “A party against whom

summary judgment is sought cannot raise a fact issue simply by asserting a cause of action to which

state of mind is a ma t erial element. There must be some indication that [she] can produce the

requisite quantum of evidence to enable [her] to reach the jury with [her] claim.” C lark v. Resistoflex

Co. , 854 F.2d 762, 771 (5th Cir. 1988) (quotations omitted).

Cordovi’s evidence of ERISA discrimination cannot withs t and summary judgment. She

presents several statements made by Mery regarding the cost of the self-insured health plan offered7

to employe es. Mery allegedly urged managers to encourage employees not to use the plan and

stressed the effect of catastrophic illnesses on the plan. The statements, however, were not directed

to Cordovi, did not expressl y name Cordovi, and did not target her husband. The statements and

actions expressed cost concerns regarding all emplo yees’ use o f the health plan. Consequently,

Cordovi makes a

leap in logic to establish a connection between Mery’s cost concerns and her

discharge. Cordovi’s assumptions and speculations are insufficient to defeat Northeast’s motion for

summary judgment. S ee S immo ns v. Willco x

, 911 F.2d 1077, 1082 (5t h Cir. 1990) (noting that

speculative allegations are insufficient to create a genuine issue of material fact); and Clark

, 854 F.2d

at 771 (noting that the inferences from the facts the plaint iff adduced were speculative and failed to

raise a fact question precluding summary judgment). Therefore, the district court correctly granted

Northeast’s motion for summary judgment on Cordovi’s ERISA discrimination claim.

CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.