* 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. 07-20757

ROBERT BUGOS

Plaintiff-Appellant

v.

RICOH CORPORATION, doing business as Ricoh Business Systems

Defendant-Appellee

Appeal from the United States District Court 

for the Southern District of Texas 

4:06-CV-123

Before HIGGINBOTHAM, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:*

This appeal is from a district court’s order granting summary judgmentin

favor of the employer in an employment discrimination action based on gender

under Texas law. The district court found that the employee failed to meet his

burden of showing that the employer’s legitimate non-discriminatory reason for

terminating him was a pretext for discrimination. We agree with the district

court and thus affirm the grant of summary judgment. 

United States Court of Appeals

Fifth Circuit

F I L E D

August 21, 2008

Charles R. Fulbruge III

Clerk
No. 07-20757

1 According to Ricoh, maintaining corporate business hours means that account

executives check in at the office with sales managers both at the beginning and end of the

workday. 

2 At the time of his termination, Bugos’s admits his performance was the worst of all

of the Houston Sales Managers. 

2

I.

Appellee Ricoh Corporation (“Ricoh”) sells copiers, printers, scanners, and

other similar office products. In September 2004, Houston Branch Manager

Doug Stewart (“Stewart”) hired Appellant, Robert Bugos (“Bugos”), as a sales

manager in its Houston office. Bugos’s job as sales manager required his

oversight, development, and management of a team of sales representatives

called “account executives.” At any given time, up to eight account executives

were part of Bugos’s sales team, including Philip Farmer (“Farmer”), Kathy

Reynolds (“Reynolds”), and Tab Figueiredo (“Figueiredo”). Bugos was also

responsible for ensuring that his account executives adhered to Ricoh policies,

including basic standards of corporate professionalism, inter alia, being punctual

and maintaining corporate business hours.1

Bugos was also required to monitor his account executives’ compliance

with the “50-point plan,” a system by which Ricoh assigns point values to specific

sales activities, with the expectation that account executives earn 50 points

daily. Bugos was informed that his own performance would be based on the

performance of his account executives. Based on this fact, Bugos was given a

six-month sales goal of $975,000.00. After five months of employment, and at

the time of his termination, he had only reached 22% of this sales goal.2

In November 2004, Dora Lee Brown (“Brown”) became Bugos’s immediate

supervisor. Shortly thereafter, she met with Bugos to discuss development of his

sales team. At that time, she encouraged Bugos to hire more women on his sales

team. In subsequent conversations with Bugos and with others, Brown made

such statements as:“women work harder than men;”“women are better received
No. 07-20757

3

by the customer than men;” “women have done better sales at Ricoh than men;”

“women are better employees than men.” 

In December 2004, Farmer requested a transfer off of Bugos’s team based

on his frustration with the inexperience ofthe team and with Bugos’s ineffective

management. In February 2005, Brown noticed that Figueiredo, who had never

completed a single sale, was frequently absent from work, and she addressed

this situation with Bugos. Despite this discussion, Figueiredo continued to be

absent. Brown instructed Bugos to call Figueiredo and demand that he be

present in the office the next day, March 2, 2005. Bugos spoke with Figueiredo

who explained that his absences from work were based on a personal conflict

with a co-worker,the factthat his sales territory was closer to his home than the

office, and that the requirement of physical presence in the office was not

uniformly enforced. Bugos relayed Figueiredo’s excuses to Brown, and she

demanded that Bugos issue an “action plan” to Figueiredo mandating his

physical presence in the office and warning that a failure to do so could result

in his termination. Bugos challenged Brown’s demand that he issue the “action

plan,” and a Ricoh human resources department representative intervened. As

a result of the telephone conference between Brown, Bugos, and the human

resources representative, on March 2, 2005, Bugos issued the “action plan” to

Figueiredo.

Later that day, Brown emailed the human resources department and her

supervisor and recommended that Bugos be terminated. In this email, Brown

discussed her reasons for the recommendation: her struggle with Bugos on the

Figueiredo situation, his struggles with developing his sales team, his failure to

utilize development tools provided to him, and his general lack of leadership

skills. Based on this information, Brown received clearance from human

resources to terminate Bugos’s employment. Bugos was terminated on March
No. 07-20757

3 Both Foreman and Reynolds are women. 

4 See TEX. LAB. CODE ANN. § 21.001 et seq. (Vernon 2006). 

5 411 U.S. 792, 802 (1973). 

4

3, 2005. Figueiredo was also fired the next day for failure to adhere to his

“action plan.”

Brown subsequently filled Bugos’s position with Dianne Foreman

(“Foreman”). Soon thereafter, Brown discussed with Foreman the performance

of Reynolds (a member of Bugos’s sales team Foreman inherited). When Brown

recommended that Foreman place Reynolds on an “action plan,” Foreman

disagreed and requested additional time to work with Reynolds, which Brown

allowed without any disciplinary action toward either Foreman or Reynolds.3

In December 2005, Figueiredo filed a charge of gender discrimination with

the Equal Employment Opportunity Commission (“EEOC”), which issued a

determination letter stating that its investigation revealed sufficient evidence

to establish that Brown created an environment in the Houston office that was

hostile to males and that females were treated more favorably than males in

terms of attendance issues and disciplinary actions. Although he offered

testimony on Bugos’s behalf, Figueiredo is not a party to the case sub judice. 

Bugos also filed a separate charge of gender discrimination with the EEOC

and the Civil Rights Division oftheTexas Workforce Commission (“TWC”). Both

the EEOC and TWC issued right to sue notices, and pursuant to an agreement

between the parties, this lawsuit was filed and then was removed to federal

district court on diversity grounds. Although this case arises under the Texas

Commission on Human Rights Act (“TCHRA”)4, the district court, following

Texas precedent, assessed the claim using analogous federal statutes and the

cases interpreting them; thus, in this gender discrimination case, the district

court applied the standard set forth in McDonnell Douglas Corp. v. Green.

5 The
No. 07-20757

6 Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 507 (5th Cir. 2003) (citing Walker

v. Thompson, 214 F.3d 615, 624 (5th Cir. 2000)). 

7

Id. (quoting FED. R. CIV.P. 56(c); citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23

(1986)). 

8

Id. (quoting Allen v. Rapides Parish Sch. Bd., 204 F.3d 619, 621 (5th Cir. 2000)

(internal quotations and citations omitted)). 

9

Id. (citing Burch v. City of Nacogdoches, 174 F.3d 615, 619 (5th Cir. 1999)). 

10 Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998); Grimes

v. Tex. Dept. of Mental Health and Mental Retardation, 102 F.3d 137, 139–40 (5th Cir. 1996)

(citing, inter alia, Douglass v. United Servs. Automobile Assn., 79 F.3d 1415, 1429 (5th Cir.

1996) (en banc)); Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871

(1994); Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825 (1992).

5

district court granted Ricoh’s Motion for Summary Judgment, finding that Bugos

failed to establish a genuine issue of material fact on the issue of pretext under

that standard. Bugos timely appealed. 

II.

“We review de novo a district court’s grant of summary judgment, applying

the same standard as the district court.”6“Summary judgment is appropriate

‘ifthe pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.’”7“‘If the moving party meets the initial burden of showing there is no

genuine issue of material fact, the burden shifts to the nonmoving party to

produce evidence or designate specific facts showing the existence of a genuine

issue for trial.’”8“‘Doubts are to be resolved in favor of the nonmoving party, and

any reasonable inferences are to be drawn in favor of that party.’”9

Unsubstantiated and subjective beliefs and conclusory allegations and opinions

are not competent summary judgment evidence.10
No. 07-20757

11 TEX. LAB. CODE ANN. § 21.051(1) (Vernon 1996). 

12 Id. § 21.125(a). 

13 TEX. LAB. CODE ANN. § 21.001(a) (Vernon 1996); Pineda v. United Parcel Svc., 360

F.3d 483, 487 (5th Cir. 2004) (citing Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476

(Tex. 2001)). 

14 Id.; see also Machinchick v. PB Power, Inc, 398 F.3d 345, 356 (5th Cir. 2005); Wallace

v. Methodist Hosp. Sys., 271 F.3d 212, 219 n.10 (5th Cir. 2001). 

15 Machinchick, 398 F.3d at 356 (citing, inter alia, Wal-Mart Stores, Inc. v. Canchola,

121 S.W.3d 735, 739 (Tex. 2003)). It should be noted that this Circuit has applied a “modified

McDonnell Douglas” approach in discrimination cases, as setforth in Rachid v. Jack in the Box,

Inc., 376 F.3d 305, 311 n.8 & 312 (5th Cir. 2004) (following the Supreme Court’s decision, after

Title VII’s amendment, in Desert Palace, Inc. v. Costa, 539 U.S. 90, 101 (2003)). 

16 Machinchick, 398 F.3d at 356; see also Davis v. Dallas Area Rapid Transit, 383 F.3d

309, 317 (5th Cir. 2004). 

6

III.

Bugos’s gender discrimination claim arises under § 21.051 of the Texas

Labor Code, the TCHRA, which prohibits, in relevant part, the discharge of an

individual on the basis of sex.11 An “unlawful employment practice is

established when the complainant demonstrates that . . . sex . . . was a

motivating factor for the employment practice, even if other factors also

motivated the practice.”12 The purpose of the TCHRA is to provide for the

execution ofthe policies of Title VII ofthe Civil Rights Act of 1964, as amended.13

Therefore, analogous federal cases and statutes guide the interpretation of this

Texas law.14 Specifically, McDonnell Douglas, and cases further developing the

McDonnell Douglas test, apply to discrimination claims brought under the

TCHRA.15

Thus, under the McDonnell Douglas framework, the Plaintiff has the

initial burden to plead a prima facie case of gender discrimination.16 To

establish a prima facie case, Bugos must show(1) that he is a member of a

protected class; (2) that he was qualified for the position; (3) that he suffered an
No. 07-20757

17 See Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512–13 (5th Cir.

2001).

18 Machinchick, 398 F.3d at 356 (internal quotations omitted).

19 Id.

20 Id. at 354. 

7

adverse employment action; and (4)that he was replaced by someone outside the

protected class or that similarly-situated employees outside the protected class

were more favorably treated.17 Once Bugos has established a prima facie case,

“the burden of production shifts to the employer to articulate a legitimate,

nondiscriminatory reason for the disparate treatment.”18 If the employer comes

forward with legitimate nondiscriminatory reasons for the adverse employment

action, Bugos must then prove(1)thatthe reasons proffered were false and were

thus a pretext for discrimination or (2) that even if the reasons are true, gender

was a motivating factor.19 Bugos can meet this burden “by producing

circumstantial evidence sufficient to create a fact issue as to whether the

employer’s non-discriminatory reasons are merely pretext for discrimination.”20

In this case, the parties concede that Bugos has made out a prima facie case of

gender discrimination and that Ricoh has proffered a legitimate, nondiscriminatory reason for Bugos’s termination: that he was a failing and

ineffective sales manager. Although gender discrimination may be proven either

by showing a defendant’s legitimate, nondiscriminatory reason to be pretext or

by showing that discrimination was a motivating factor,the only issue preserved

in this appeal is whether Bugos raised a genuine issue of fact on pretext; thus,

we only consider whether Ricoh’s legitimate, non-discriminatory reason was a

pretext for gender discrimination. 

Bugos argues that the district court erred by (1) not considering, in the

pretext determination, evidence that was presented in his prima facie case
No. 07-20757

21 530 U.S 133, 143 (2000) (citing Tex. Dept. of Comm. Affairs v. Burdine, 450 U.S. 248,

255 n.10 (1981)). 

8

regarding the fact that he was replaced by a woman, comments made about

Brown by co-employees, and an EEOC determination letter in Figueiredo’s case;

(2) not finding that a fact issue was created because the proffered facts in

support of Bugos being an ineffective manager were allegedly false; (3)

concluding that Ricoh’s failure to give him prior notice of his performance

problems was not probative of pretext; (4) not finding that a similarly situated

female employee was treated differently; and (5) not concluding that Brown’s

gender-based comments support an inference of pretext. 

Ricoh counters by arguing (1) that Bugos’s prima facie evidence is not

probative of pretext; (2) that Bugos failed to present evidence demonstrating

that Ricoh’s proffered reason was false; (3) that Ricoh’s policy specifically does

not require progressive discipline; (4) that Bugos has not presented a similarly

situated person who was treated more favorably than he was; and (5) that

Brown’s comments are not probative of pretext and are, in any event, “stray

remarks” not considered in a pretext inquiry and, alternatively, cannot be

considered where they are the only evidence of pretext. 

As to the first issue, whether Bugos’s prima facie evidence supports a

finding of pretext, the United States Supreme Court, in Reeves v. Sanderson

Plumbing Prods., has clearly established that“the trier of fact may still consider

the evidence establishing the plaintiff’s prima facie case ‘and inferences properly

drawn therefrom . . . on the issue of whether the defendant’s explanation is

pretextual.”21 Regarding Bugos’s argument that co-employees’ impressions of

Brown’s motivations present an issue of fact on pretext, those employees

speculate that Brown assigned accounts, evaluated the performance of, and

generally treated men differently from women and hypothesize that Brown fired

Bugos so that she could fill his position with a female. However, we have held
No. 07-20757

22 Roberson v. Alltel Info. Servs., 373 F.3d 647, 654 (5th Cir. 2004) (citing, inter alia,

Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002) (“This Court has cautioned that

conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy

the nonmovant’s burden in a motion for summary judgment.”)). 

23 Bugos presented testimony of three former Ricoh employees — Dianna Victoria,

David Shapiro, and Tab Figueiredo — that Brown generally treated women better than men.

Shapiro also hypothesized that Brown fired Bugos so that she could fill his position with a

female employee. 

24 Price v. Marathon Cheese Corp., 119 F.3d 330, 337 (5th Cir. 1997). 

9

that pretext cannot be established by mere subjective beliefs that discrimination

motivated an employer’s actions.22 Here, the conclusory statements of former

Ricoh employees relaying their subjective general beliefs that Brown treated

men less favorably than women are insufficient to show pretext with regard to

Bugos’s termination.23 Pretext may not be established by mere subjective belief;

instead, “[t]he plaintiff must prove that [the protected characteristic] ‘actually

played a role in’ and ‘had a determinative influence on’ the employer’s decisionmaking process.”24

Bugos next argues that his prima facie evidence of the EEOC

determination letter in Figueiredo’s case is probative of pretext. While we have

held that EEOC determination letters can be probative of discriminatory intent,

in this case, the EEOC letter was written in Figueiredo’s case, and, as the

district court noted, he is not a party to this action. Thus, because the EEOC

determination was presented in Figueiredo’s case rather than Bugos’ case and

was not argued as evidence of pretext in Bugos’s opposition to summary

judgment, the district court did not abuse its discretion in not discussing it. 

Second, Bugos alleges that the legitimate nondiscriminatory reason

proffered by Ricoh was in fact false, and thus he has raised a fact issue on

pretext. However, “[a] dispute in the evidence concerning . . . job performance

does not provide a sufficient basis for a reasonable factfinder to infer that [the]
No. 07-20757

25 Mayberry, 55 F.3d at 1091 (citing Little v. Republic Refining Co., Ltd., 924 F.2d 93,

97 (5th Cir. 1991) (“The existence of competing evidence about the objective correctness of a

fact underlying a defendant’s proffered explanation does not in itself make reasonable an

inference that the defendant was not truly motivated by its proffered justification.”)). 

26 Id.

27 See Waggoner v. City of Garland, Tex., 987 F.2d 1160, 1165–66 (5th Cir. 1993). 

28 See Machinchick, 398 F.3d at 355 n.29. 

10

proffered justification is unworthy of credence.”25 “The question is not whether

an employer made an erroneous decision; it is whether the decision was made

with a discriminatory motive.”26 Thus, we consider whether an employer’s good

faith perception of Bugos’s performance, accurate or not, was the real reason for

his termination.27 Brown set forth a number of problems with Bugos — that he

did not utilize Ricoh’s “50 point plan,” that he did not take advantage of the

suggestions of a co-worker, Dave Higbie, to improve his performance, and that

he had difficulty in managing Figueiredo. Bugos has not shown that Brown did

not in good faith believe these reasons given for Bugos’s termination or,

accordingly, that these reasons were not the real reason for his termination. 

Third, Bugos contends that Ricoh’s progressive discipline policy was not

followed leading up to his termination, which is probative of pretext. While we

have considered evidence that an employer did not follow its discipline policy,

which by its language should have been “followed in most circumstances,” prior

to terminating an employee as evidence of pretext,28 Ricoh’s policy simply did not

require progressive discipline leading up to termination. Rather, Ricoh’s policy,

though it provided generally for progressive discipline, stated that “[e]ach

individual situation must be considered on its own merits to determine the

appropriate measures to be taken, including under certain circumstances,

termination without prior notice.” It further states that “[d]epending on the

individual circumstances and the time frame involved, it may be appropriate to
No. 07-20757

29 Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917–18 (Tex. 2005). 

30 See, e.g., Russell v. McKinney Hosp. Venture, 235 F.3d 219, 225 n.9 (5th Cir. 2000).

11

bypass one or more steps ofthis policy.” Thus, as the district court noted, Brown

was within her discretion to bypass the graduated disciplinary procedure in

terminating Bugos. 

Fourth, Bugos contends that a similarly-situated female employee was

treated differently than he, which creates an inference of pretext. Additionally,

Bugos argues that the fact that he was replaced by this female employee is

probative of pretext. An employee is “similarly situated” to the plaintiff,

however, if her circumstances “are comparable in all material respects . . . [and]

the plaintiff must usually show thatthe misconductfor which he was discharged

was nearly identical to that engaged in by [the other] employee whom [the

employer] retained.”29 The district court rightly noted that Foreman, whom

Bugos alleges is a similarly situated female employee, is distinguishable from

Bugos in material aspects. Foreman was at 126% to quota on sales while Bugos

was only at 22%. Furthermore, Bugos was terminated in part for his failure to

manage Figueiredo by opposing disciplining him for his failure to come to the

office while Foreman was not disciplined because she was requesting more time

to help a sales associate succeed at selling, not making excuses for her absence.

As such, Foreman is not a similarly situated female employee to Bugos, and

Brown’s actions toward Foreman are not probative of pretext in Bugos’s

termination. Additionally, although Bugos was replaced by this female

employee, this fact is not probative of pretext in light of Foreman’s success and

Bugos’s failure as a manager. 

Finally, Bugos points out that under our jurisprudence Brown’s genderbased workplace remarks can be circumstantial evidence of discriminatory

intent and can be used to prove pretext.30 Ricoh argues that the comments are
No. 07-20757

31 Palasota v. Haggar Clothing Co., 342 F.3d 569, 578 (5th Cir. 2003). 

32 Id.

33 Id. at 577 (emphasis added). 

12

not probative because they are “stray remarks” unconnected to Bugos’s

termination. Post-Reeves, however, this Court has taken a cautious view of the

“stray remarks” doctrine.31 Such remarks “are appropriately taken into account

when analyzing the evidence . . . even where the comment is not in the direct

context of the termination and even if uttered by one other than the formal

decision maker, provided that the individual is in a position to influence the

decision.”32 However, post-Reeves, in Palasota v. Haggar Clothing Co., we held

that “so long as remarks are not the only evidence of pretext, they are probative

of discriminatory intent.”33 Here, the district court held that the comments were

not probative because they were the only evidence of pretext. As determined in

the foregoing analysis, we agree that Brown’s comments are indeed the only

evidence of pretext, and as such, they are not probative. 

IV. 

For the foregoing reasons, we agree with the district court that Bugos

failed to present a genuine issue of material fact as to pretext. Because Brown’s

workplace comments are the only circumstantial evidence of pretext, and,

standing alone, they are not probative, we affirm the district court’s grant of

summary judgment. 

AFFIRMED.