IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

No. 97-50809 Summary Calendar _______________

MARTIN CUEVAS and RICARDO SALAZAR,

Plaintiffs-Appellants,

VERSUS

HARRAH’S OPERATING COMPANY, INC., d.b.a. EMBASSY SUITES HOTEL,

Defendants-Appellees.

_________________________

Appeal from the United States District Court for the Western District of Texas (SA-96-CV-1182) _________________________

April 8, 1998

Before JONES, SMITH, and STEWART, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

I.

Plaintiffs Martin Cuevas and Ricardo Salazar allege that their

former employer, Harrah’s Operating Company, Inc. (“Harrah’s”),

owner of an Embassy Suites Hotel, violated title VII by discharging

them on the basis of their race, sex, and national origin. Cuevas

had been working as a waiter in the hotel's restaurant for about a

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. year on November 22, 1994, when he was terminated. Salazar had

been a restaurant manager for two years when he was terminated on

October 1, 1994. Two months before the terminations occurred,

Terri Stout, a Caucasian female, had assumed the position of Food

and Beverage Manager.

Cuevas presented affidavits to the effect that he was

considered a “good waiter.” About a month before his termination,

however, two waitresses reported to management that Cuevas had been

“double-tipping.” In contravention of Embassy Suites’s restaurant

policy, Cuevas would add a gratuity to the checks of small parties

and allow them to add an additional gratuity on top of the total.

He knew that the restaurant added gratuities only for parties of

five or more. When confronted about his behavior, Cuevas initially

claimed that the computer was not working and then said he was

entitled to the additional tips because he provided “good service.”

Although Salazar was apparently a good manager in most

respects, he exhibited a pattern of tardiness, for which he was

reprimanded four times before his termination. About a week before

his termination, he received a “final warning” regarding his

tardiness. On or about September 22, 1994, Salazar altered the

evaluation of a co-employee without Salazar’s supervisor’s

knowledge or approval. Salazar was ultimately fired for his

continued failure to arrive at work and for falsifying company

records.

II.

2 Plaintiffs brought this suit in the district court,

establishing a prima facie case for discrimination under title VII:

plaintiffs were members of a protected class; they were qualified

for the positions held; they were subsequently discharged; and

those positions were ultimately filled by persons not members of

the protected class. In response, Embassy Suites presented

evidence that Cuevas was fired for double-tipping and that Salazar

was fired for tardiness and falsification of documents.

The defendants responded to the plaintiffs’ claims by pointing

to tardiness and dishonesty on Salazar’s part, and overcharging

customer’s on Cuevas’s part, to justify the terminations. Once a

defendant comes forward with one or more non-discriminatory

justifications for a termination, the plaintiff’s initial prima

facie case disappears, and the plaintiff is no longer entitled to

a presumption that the termination was discriminatory. St. Mary’s

Honor Ctr. v. Hicks,

(1993). To overcome the

defendant’s response, the plaintiff must show both that each of the

defendant’s justifications was a pretext for impermissible

discrimination and that race was a determinative factor. Grimes v.

Tex. Dep't of Mental Health,

(5th Cir. 1996).

III.

The district court held that plaintiffs failed to meet this

burden because they offered no evidence of discrimination other

than their own conclusions and because they failed to show that the

justifications were pretextual. We agree.

3 Plaintiffs brought forth evidence that purported to show that

Embassy Suites’s justifications were pretextual. In Salazar’s

case, the evidence consisted of his supervisor’s statement that

Salazar was performing at an acceptable level and that Humphrey’s

had given Salazar permission to come in late “when Salazar was in

court conducting 'court-interpreter' duties.” A supervisor of

Stout’s made the decision to terminate Salazar, but plaintiffs

emphasized that the decision was based upon a performance

evaluation in which Humphrey initially rated Salazar as

“acceptable”; Stout insisted on changing the evaluation to

“unacceptable.” Humphreys stated that although he thought Stout

disliked Salazar, he did not think that she disliked Hispanics or

men, and he did not believe that Salazar was terminated because of

his race.

Cuevas presented Humphrey’s statement that Cuevas was a good

waiter, and he allegedly demonstrated that the tickets that formed

the basis of the “double-tipping” evidence were hard to read and

did not state the number of people in the party. Aside from that,

his only evidence of pretext was the fact that Stout did not use

customer complaints to verify the accusations and that the tickets

were unclear. In no way did he impeach the credibility of the two

waitresses who had reported his behavior to hotel management.

Plaintiffs’ evidence proves nothing more than that Stout was

a harsher taskmaster than was Humphreys. Contrary to their claims,

plaintiffs have not offered evidence tending to establish that

Stout lied; at most, they have offered evidence demonstrating that

4 she was hasty in passing judgment upon them. It is highly unlikely

that a finder of fact would conclude that Embassy Suites did not

actually terminate them for the reasons offered.

Furthermore, to succeed on their discrimination claim,

plaintiffs must do more than prove that Embassy Suites’s

justifications were false. Now that the defendant has met its

burden of producing nondiscriminatory reasons for its conduct, the

plaintiffs must demonstrate both that the justifications were

pretextual and that race was a determinative factor. St. Mary’s,

; Grimes,

.

Plaintiffs have offered no evidence affirmatively to

demonstrate a discriminatory motive. They present no evidence of

derogatory racial comments or sexist attitudes, no consistent

pattern of hiring or firing members of certain groups, and no other

facts to suggest that Stout had a racist motive. To be sure, the

Supreme Court has stated that, in some cases, discrimination may be

inferred from the pretextual nature of the defendant’s

justifications. St. Mary’s,

. The Court has also

stated, however, that “the defendant need not persuade the court

that it was actually motivated by the proffered reasons.” Tex.

Dep't of Community Affairs v. Burdine,

(1981).

A holding “that rejection of the defendant’s proffered reasons

compels judgment for the plaintiff disregards the fundamental

principle of [FED. R. EVID.] 301 that a presumption does not shift

the burden of proof, and ignores our repeated admonition that the

Title VII plaintiff at all times bears 'the ultimate burden of

5 persuasion.'” St. Mary’s,

.

Once the defendant offers any non-discriminatory reasons at

all, the burden shifts to the plaintiffs to prove not only that the

defendant did not terminate them for the reasons offered, but also

that the defendant terminated them for some other, improper,

reason. The pleadings in this case demonstrate that the plaintiffs

would fail to convince a reasonable jury of this. Even if the jury

were to find that Stout did not terminate the defendants for the

reasons stated, its decision on that issue would be a close one;

the record demonstrates that Stout had ample reason to believe the

plaintiffs were not performing adequately, even if she was

ultimately hasty or incorrect in her belief. No reasonable jury

would use such borderline evidence to infer the requisite

discriminatory intent. Accordingly, the plaintiffs have failed to

present a genuine material issue of fact on the question of Stout’s

discriminatory intent.

Plaintiffs argue that the district court applied the wrong

legal test by requiring plaintiffs to demonstrate that they were

terminated solely for discriminatory reasons, rather than on the

basis of a combination of discriminatory and other factors. On the

contrary, the district court correctly applied our circuit’s test,

which requires that race be “a determinative factor” in the

termination. See Grimes,

. Nothing in the district

court’s opinion suggests otherwise. In any event, our de novo

review leads us to the conclusion that the plaintiffs failed to

create a reasonable inference of any discriminatory intent.

6 AFFIRMED.

7