* 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opinion should not be published and is not precedent except under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 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-10382

Summary Calendar

KARLA GARZA,

Plaintiff - Appellant,

VERSUS

PRESTIGE FORD GARLAND LIMITED PARTNERSHIP, doing business as

Prestige Ford,

Defendant - Appellee.

Appeal from the United States District Court

for the Northern District of Texas

(3:00-CV-400)

September 26, 2001

Before JOLLY, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM: *

I. PROCEEDINGS BELOW

Pursuant to a complaint filed wi th the Equal Employment

Opportunity Commission (EEOC), Karla Garza brought a Title VII2

claim of discrimination on the basis of sex against her former

employer, Prestige Ford. She subsequently added a claim of

impermissible retaliation by Prestige Ford in reaction to her

lawsuit. Prestige Ford moved for summary judgment under F E D

. R

.

C IV

. P. 56. Following a hearing on that motion, the trial court

granted summary judgment for Prestige Ford. Garza appeals the

grant of summary judgment (1) as to her Title VII claim of sex

discrimination; (2) as to her claim of retaliation; and (3) in

light of her claim of serious credibil ity issues on the part of

Prestige Ford’s representatives. Garza has also asked whether it

would have been error if the trial court had granted summary

judgment on t he issue of whether she had sustained damages. The

opinion of the district court did not address the issue of damages

nor base its judgment on any determination of Garza’s claim for

damages. Therefore, we will not address that issue. The judgment

of the district court is AFFIRMED.

II. BACKGROUND

Prestige Ford hired Garza as a used car salesperson although

she had no experience in car sales. She did have some experience

in retail sales, which led Prestige Ford to give her an opportunity

to “sin k or swim,” although the dealership did not have a formal

training program for novices. She contends that she successfully

sold five automobiles in eight days between being hired on April 22

and being termina ted on or about May 3, 1999. Prestige Ford

asserts that Garza was unable to close any of t hose sales on her3

own, required the assistance of other salespersons (including her

brother, who was also employed by Prestige Ford), objected to

splitting her commissions with those other salespersons after they

had assisted her and was generally disruptive to the conduct of

business because of her inexperience.

Supervisor Pablo Villarreal ultimately told her she would be

terminated as a car salesperson. The termination document reflects

the reason for he r termination as her lack of experience. Mr.

Villareal offered Garza an alternative position assisting another

salesperson, from which she could gain the necessary skil ls, but

she refused. Garza asserts that Mr. Villarreal initially told her

that she was being terminated because she could not work at

Prestige Ford’s place of business while her brother was also

employed there. She challenged Villarreal’s statement on the basis

that there were other sets of brothers working at the dealership

and claims he then changed his stated reason of termination to

Garza’s lack of experience. Finally, Prestige Ford arranged a job

for Garza with Skyline Ford, a dealership which had a formal

training program.

Garza remained with Skyline for four months and resigned in

September, 1999. She worked for the Accident and Injury Clinic

until December, 1999, when she quit to take a trip to Mexico.

On her return in February, 2000, Garza took a job with

Allstate Insurance Company under Agent Teresa Fuston. Ms. Fuston

later received a phone call from Juan Carlos Olvera, one of4

Prestige Ford’s employees. Mr. Olvera informed Ms. Fuston of

Garza’s EEOC complaint and lawsuit. He and other employees

regularly referred customers to Ms. Fuston for car insurance. He

advised her that neither he nor his co-workers wanted to have any

contact with Garza. Mr. Olvera was not a supervisor nor did he

have power to hire, fire or direct other employees. He did not

state that he was representing Prestige Ford and Ms. Fuston did not

believe that he was acting on the dealership's behalf. Ms. Fuston

informed Garza of the phone call and advised her that her

employment would not be affected in any way.

Garza asserts that she used a false name in th e office to

avoid contact with Prestige Ford’s employees and was paid by

personal check to avoid identifying her with the Allstate office.

She agrees that Ms. Fuston treated her no differently after Mr.

Olvera’s phone call. In March, 2000, Garza and Ms. Fuston argued

over how Garza handled certain customers, which resulted in their

departure. Garza resigned after that disagreement, although Ms.

F uston asked her to remain. Garza then amended her Title VII

compl aint, adding a complaint of retaliation by Prestige Ford,

based on Mr. Olvera’s phone call which Garza clai ms led to her

“constructive discharge” from Allstate.

During the February 16, 2001, hearing on summary judgment, the

trial court ruled from the bench that Garza’s prima facie case,

though weak, had been established. The court further ruled that5

Prestige Ford had offered a legitimate, non-pretextual reason for

Garza’s termination against which Garza had not presented adequate

summary judgment evidence to create an issue of material fact.

Also, the court ruled that Garza’s departure from Allstate was

predicated on her disagreement with Ms. Fus ton over the lost

customers, which had no causal conn ection to Mr. Olvera’s phone

call. Therefore, the trial court held that Garza’s resignation was

not a constructive discharge caused by any act of retaliation on

the part of Prestige Ford.

III. ANALYSIS

This court conducts a de novo review of a grant of summary

judgment, ensuring that no genuine issue of material fact exists

and that judgment in favor of the appellee was warranted as a

matter of law. S ee Haynes v. Pennzoil Co.

, 207 F.3d 296, 299 (5th

Cir. 2000). Under F E D

. R. C IV

. P. 56(c), summary judgment is

appropriate when the evidence, viewed in the light most favorable

to the nonmovant, reflects no genuine issues of material fact. S ee

Celotex Corp. v. Catrett

, 477 U.S. 317, 322-23, 106 S. Ct. 2548,

2552-53, 91 L. Ed. 2d 265 (1986); H all v. Gillman, Inc.

, 81 F.3d

35, 36-37 (5th Cir. 1996).

A.

Under Title VII analysis, (1) a plaintiff must establish a

prima facie case of discrimination; (2) the defendant may then

offer a valid, non-discriminatory reason for the alleged6

discriminatory action; and, (3) the plaintiff then must show that

the defendant’s offered reason is merely pre text. S ee McDonnell

Douglas v. Green

, 411 U.S. 792, 802-03, 93 S. Ct. 1817, 1824, 36 L.

Ed. 2d 668 (1973). The Title VII plaintiff bears at all times the

“ultimate burden of persuasion.” S ee St. Mary’s Honor Center v.

Hicks

, 509 U.S. 502, 511, 113 S. Ct. 2742, 2749, 125 L. Ed. 2d 407

(1993).

A prima facie claim is established when a plaintiff shows that

she is a member of a protected class under Title VII; that she was

qualified for the position; that she suffered an adverse employment

d e cision; and that the adverse employment decision was

differentially applied to her. S ee McDonnell Douglas

, 411 U.S. at

802; Rubenstein v. Adm'rs of the Tulane Educ. Fund , 218 F.3d 392,

399 (5th Cir. 2000). Here, we determine, as did the trial court,

that Garza met the prima f acie case requirements. Her claim is

discrimination on the basis of sex because she is female; she was

in fact terminated; and, by her claim of the circumstances, males

who were co-employed by Prestige Ford with their siblings were not

also terminated. As the district court explained, Garza was not

qualified for the specific position, but the fact that Prestige

Ford hired her for the position sufficed to show she met the basic

qualification for being hired. On that basis, we agree that Garza

established her prima facie case.

Prestige Ford offers as its reason for terminating Garza’s7

employmen t that Garza in fact lacked experience required in the

position. It hired Garza originally in the expectation that she

would be able to pick up the ski lls needed for car sales on the

job, even though Prestige Ford did not offer a formal training

program. Instead, Prestige Ford found that her reliance on others

to close her sales and her objections to splitting her commission

were disruptive. Garza was offered the choice of a lower level job

under qualified supervision, from which she could learn the sales

skills, or termination. She refused the lower level job. This is

a legit i mate and non-discriminatory reason for terminating an

employee and is consistent with an earlier decision to hire an

individual expected to learn on the job.

To prevail at trial, Garza would have to prove that Prestige

Ford’s offered reas on is merely pretext for its actual

discriminatory intent. In the summary judgment context, however,

Garza is only required to show an issue of material fact regarding

pretext. S ee Hall v. Gillman, Inc.

, 81 F.3d 35, 37 (5th Cir.

1996). Garza still must present competent summary judgment

evidence in doing so. Unsubstantiated assertions are not competent

summary judgment evidence. S ee Celotex Corp. v. Catrett

, 477 U.S.

317, 324, 106 S.Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986); Forsyth v.

Barr , 19 F.3d 1527, 1533 (5th Cir. 1994).

In this case, Garza has offered no evidence other than her own

assertion by affidavit dated November 1, 2000, that Mr. Villareal8

told her that she was being terminated because her brother also

worked at the Prestige Ford dealership. That assertion has not

been borne out in any of the evidence, other than her own

affidavit, submitted in this case. Further, her affidavit is

founded extensively on hearsay evidence which the trial court

properly excluded from consideration. We will do the same.

Additionally, the reason for termin ation Mr. Villareal gave on

Garza’s Employment History form was “ lack of experience,” citing

the reports of several employees and unit supervisors of Prestige

Ford. The remarks entered on the form go on to indicate that Garza

was in a ninety day probationary period and that Prestige Ford “got

employee new work arrangements at Skyline Ford.” This, along with

substantiating deposition testimony, is convincing.

Garza cites “seriou s credibility issues on the part of

Defendant’s representat ives” to bolster her assertion of sex

discrimination. She characterizes statements made by Mr. Villareal

and Mr. Gutierrez in deposition, for example, as being so

contradictory as to be patently “false.” Those statements show

only that their memories in retrospect differ as to whether they

made the deci sion to terminate Garza jointly or whether they

discussed the matter together and one of them made the actual

decision. Another “credibility issue” claimed by Garza takes

umbrage with Mr. Villareal’s comment on Garza’s Employment History

form that he had “discussed options” relating to Garza’s

termination with Bill Peace, Prestige Ford’s Special Projects9

Manager. Garza points out that Mr. Peace stated in deposition that

he did not discuss “options” with Mr. Villareal. What he did say,

however, was that Mr. Vil lareal consulted him regarding the

impending termination and asked him for input, which Mr. Peace

provided. Again, this is little more than a minor differentiation

of language or a subtle difference of individual memory.

The most important “credibility issue” Garza points to is in

the affidavit of Charlie Nixon, Prest ige Ford’s General Manager.

He asserted “pe rsonal knowledge” of the individuals involved and

the facts surrounding Garza’s termination when, in fact, he based

his affidavit on second-hand reports. However, the trial court

sustained Garza’s objection to Mr. Nixon’s affidavit on that point

and excluded it from consideration in reaching its summary judgment

determination. The court considered only that portion identifying

Mr. Nixon as Prestige Ford’s custodian of records and

authenticating the Employment History form. Again, we have done

the same and thus avoid any credibility issue engendered in Mr.

Nixon’s affidavit.

Garza’s claim of Prestige Ford’s lack of credibility is thus

resolved and casts no issue of material fact of pretext on Prestige

Ford’s reasons for Garza’s termination.

On these bases, Garza’s Title VII claim is unsupported and

Prestige Ford’s legitimate, non-discriminatory reason for

terminating her survives Garza’s claim of pretext.

B.10

A prim a facie case of retaliation exists if Plaintiff

establi shes that (1) she participated in statutorily protected

activity, (2) she received an adverse employment action and (3) a

causal connection exists between the protected activity and the

adverse action. S ee Mayberry v. Vought Aircraft Co.

, 55 F.3d 1086,

1092 (5th Cir. 1995).

Here, Garza’s action in filing an EEOC complaint and lawsuit

is obviously protected activity. She claims that she suffered an

adverse employment action when Mr. Olvera contacted Ms. Fuston to

inform Ms. Fuston of Garza’s complaints. Garza characterizes Mr.

Olvera as an agent for Prestige Ford and her resignation from Ms.

Fuston as a const ructive discharge caused by Prestige Ford’s

retaliatory phone call. Her analysis fails.

Title VII defines “employer” to include “any agent of such a[n

employer].” S ee 42 U.S.C. § 2000e(b). Agency in the Title VII

context requires that, for an employee’s action to be imputed to an

employer, the employee must be acting in a managerial capacity and

in the scope of employment when committing the wrong. S ee

Rubinstein, supra, 218 F.3d at 405. Evidence must support such a

finding. I d. Whether an agent is a manager is a fact-intensive

inquiry. S ee Deffenbaugh-Williams v. Wal-Mart Stores, Inc. , 188

F.3d 278, 285 (5th Cir. 1999)(en banc). Considerations include a

determination of what the individual is authorized to do by the

principal; whether the individual has discretion as to what is done11

and how it is done; and whether the individual has the power to

make independent decision s regarding personnel matters or to

determine policy. Id.

The fact that Mr. Olvera is a salesperson without managerial

discretion or authority is uncontested. Garza's agency claim is

predicated on her assertion that Mr. Olvera called Ms. Fuston at

the behest of one of Prestige Ford’s managers, Mr. Felix Gutierrez.

On that basis, she asserts that Mr. Olvera acted with Prestige

Ford’s authorization via its manager, Mr. Gutierrez. Garza claims,

in her affidavit, that Ms. Fuston told Garza that Mr. Olvera told

Ms. Fuston that he had been ask ed by Mr. Gutierrez to call and

threaten to withhold referrals. Presumably, the trial court

disregarded this double hearsay testimony as we do. She offers no

other evidence whatsoever that Mr. Olvera acted other than on his

own behalf. Ms. Fuston has testified that Mr. Olvera made no such

statement to her, that he spoke to her as her friend and that she

r ecognized that he was not representing Prestige Ford in any

official capacity.

U nder these circumstances, Mr. Olvera was not acting as an

agent of Prestige Ford and therefore any statement he may have made

to Ms. Fuston cannot be considered as “retaliation.”

Finally, Garza quit her employment with Ms. Fuston because of

an argument betw een the two of them relating to the handling of

potential i nsurance customers. There is no evidence, other than12

Garza’s claim, showing any causal connectivity whatsoever between

Mr. Olvera’s phone call and her decision to quit.

On these bases, Garza’s claim of retaliation is meritless.

IV. CONCLUSION.

For the foregoing reasons, the judgment is AFFIRMED.