UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 02-30351 Summary Calendar

KAREN S. DEAN,

Plaintiff-Appellant,

VERSUS

PROPERTY ONE, INC.,

Defendant-Appellee.

Appeal from the United States District Court For the Western District of Louisiana (2:00-CV-1534) October 10, 2002

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

In this employment discrimination case, Plaintiff-Appellant

Karen S. Dean (“Dean”) sues her former employer, Defendant-Appellee

Property One, Inc. (“Property One”), alleging she was discharged on

the basis of her age, race, and gender, in violation of the Age

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Discrimination in Employment Act of 1967 (“ADEA”),

et seq., and Title VII of the Civil Rights Act of 1964 (“Title VII”),

42 U.S.C. §§ 2000e et seq. The District Court for the Western

District of Louisiana (Trimble, J.) granted Property One’s motion for

summary judgment and dismissed Dean’s lawsuit. Dean now appeals that

decision. We AFFIRM.

I.

Property One leases and manages commercial properties throughout

Louisiana. It manages the Hibernia Tower in Lake Charles, Louisiana

for the Hibernia National Bank (“Hibernia”). At the time of the

events giving rise to this lawsuit, Property One had thirteen

employees working at the Hibernia Tower, including Dean. Hibernia

reimbursed Property One for the cost of eleven of these employees,

including Dean. The office manager of Property One’s Hibernia Tower

office was Mark Politz.

Dean is an African American woman born in 1949. She began

working for Property One as a maintenance helper on September 1,

1983. On June 28, 1999, she was discharged. At the time, she held

the position of day maid/housekeeper. In her deposition, Dean

testified that Politz told her he had to lay off either her or Anna

Theriot. Theriot, a younger white woman, was Property One’s

facilities manager at the Hibernia Tower. Dean was Property One’s

only African American employee at the Hibernia Tower at the time of

her discharge.

2 Dean initially asserted that she was replaced by Glenn Granger,

a white man; however, in response to Property One’s motion for

summary judgment, she instead asserted that her duties had been

reassigned to Theriot. Dean offered no direct evidence of either

racial or gender discrimination. The only direct evidence of age-

based comments she offered concerned a co-worker, who on several

occasions called her “an old lady.”

Politiz testified by affidavit that Property One eliminated

Dean’s position as a cost-cutting measure. He explained that

Hibernia maintained a separate janitorial services contract with

another company, through which it enjoyed the services of a day

porter whose responsibilities overlapped with Dean’s. Hibernia asked

Politz to eliminate Dean’s position because it was redundant. Politz

also testified that in response to Hibernia’s request for further

savings he eliminated two additional positions. He eliminated the

leasing agent position when its occupant voluntarily resigned, and he

eliminated Theriot’s facilities manager position when he transferred

her into the service coordinator/receptionist position vacated by

another voluntary resignation.

II.

We review a grant of summary judgment de novo, applying the same

standards that governed the district court’s ruling. Conner v.

Lavaca Hosp. Dist.,

(5th Cir. 2001); Grimes v.

Texas Dep’t of Mental Health & Mental Retardation,

, 139

3 (5th Cir. 1996). “Summary judgment is appropriate when there is no

genuine issue as to any material fact and the movant is entitled to

judgment as a matter of law.” Grimes,

(citing Fed.

R. Civ. P. 56(c)). In employment discrimination cases, the question

is whether a genuine issue of fact exists as to whether the defendant

intentionally discriminated against the plaintiff.

Unsubstantiated assertions are not competent summary judgment

evidence. Chaney v. New Orleans Pub. Facility Mgmt., Inc.,

, 167 (5th Cir. 1999); Grimes,

. Questions of fact

are viewed in the light most favorable to the nonmovant, while

questions of law are reviewed de novo. Bauer v. Albemarle Corp.,

(5th Cir. 1999).

III.

Title VII prohibits an employer from failing or refusing to hire

or discharge an individual “because of such individual’s race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The

ADEA proscribes similar treatment on the basis of age.

(a)(1). The same evidentiary procedure for allocating burdens of

production and proof applies to discrimination claims under both

statutes. Bauer,

.

Initially, a plaintiff must establish a prima facie case of

discrimination. McDonnell Douglas Corp. v. Green,

,

,

(1973). This burden is

slight. See Texas Dep’t of Cmty. Affairs v. Burdine,

,

4 253,

(1981).

To establish a prima facie case of age discrimination under the

ADEA, the plaintiff must prove that (1) she is a member of a

protected class, (2) she was qualified for the position that she

held, and (3) she was discharged. Bauer,

. The

plaintiff must also show that she was replaced by someone outside the

protected class or by someone younger, or if she was not replaced,

that she was otherwise discharged because of her age.

To establish a prima facie case of gender or race discrimination

under Title VII, a plaintiff must show that (1) she is a member of a

protected class; (2) she was qualified for the position that she

held; (3) she was discharged; and (4) the employer replaced her with

an individual outside the protected class. See Byers v. Dallas

Morning News, Inc.,

(5th Cir. 2000); Bauer,

. “When the employer does not plan to replace the

discharged plaintiff, the fourth element is ‘that after [the]

discharge others who were not members of the protected class remained

in similar positions.’” Bauer,

(citing Vaughn v.

Edel,

(5th Cir. 1990)).

The establishment of a prima facie case under either the ADEA or

Title VII raises a presumption of discrimination, “which the

defendant must rebut by articulating a legitimate, nondiscriminatory

reason for its actions.” Shackelford v. Deloitte & Touche, LLP,

(5th Cir. 1999). The defendant can meet this burden by

5 presenting evidence that, “if believed by the trier of fact, would

support a finding that unlawful discrimination was not the cause of

the employment action.” St. Mary’s Honor Ctr. v. Hicks,

,

,

(1993). “If the

defendant succeeds in carrying its burden of production, the

presumption, having fulfilled its role of forcing the defendant to

come forward with some response, simply drops out of the picture, and

the trier of fact proceeds to decide the ultimate question of whether

the plaintiff has proved that the defendant intentionally

discriminated against her.” Bauer,

.

Once the defendant presents sufficient evidence of a legitimate,

nondiscriminatory reason for its actions, the burden shifts back to

the plaintiff, who must demonstrate by a preponderance of the

evidence that the defendant’s reasons are not “‘true reasons, but

were a pretext for discrimination.’” Reeves v. Sanderson Plumbing

Prods., Inc.,

,

, 147 L. Ed.

2d. 105 (2000) (quoting Burdine, 450 U.S.at 253,

).

In the summary judgment context, the plaintiff at this stage must

substantiate her claim of pretext through evidence demonstrating that

discrimination lay at the heart of the employer’s decision. See

Rubinstein v. Administrators of the Tulane Educ. Fund,

(5th Cir. 2000), cert. denied,

,

(2001).

The parties do not contest Dean’s ability to establish the first

6 three elements of a prima facie case of age, race, or gender

discrimination. Hence, the Court need only focus on the fourth

element. Because Dean concedes she was not replaced by a man, and

because she offers no evidence that men remained in positions similar

to hers after her discharge, she fails to establish a prima facie

case of gender discrimination. Dean sufficiently establishes a prima

facie case of discrimination based on age and race, however, through

her testimony that Politz said he had to chose between laying off her

or the younger, white Theriot.

Through Politz’s affidavit, Property One articulated a

legitimate, nondiscriminatory reason for its decision to discharge

Dean. Politz explained that Hibernia had instructed Property One to

trim its expenses at the Hibernia Tower. In particular, he testified

that Hibernia specifically asked him to eliminate Dean’s position

because her job duties overlapped with those of a janitor under

contract with it.

Dean asserts that Property One’s reason for her termination was

pretextual. In support of her assertion, however, she offers only

her conclusion that she was fired because she is an older black

woman. This is insufficient. Because she fails to substantiate her

claim with any competent evidence demonstrating that discrimination

lay at the heart of Property One’s decision, Dean fails to meet her

burden of proof and, thus, fails to demonstrate there is a genuine

issue of material fact remaining to be decided as to whether Property

7 One intentionally discriminated against her.1

For these reasons, we AFFIRM the district court’s grant of

summary judgment.

1 The fact that a co-worker on several occasions had called her “an old lady” is irrelevant in the absence of evidence that he had authority over the decision to discharge her, that his comments were related to her discharge, or that his comments were temporally proximate to her discharge. See Rubinstein,

-01 (citing Brown v. CSC Logic, Inc.,

(5th Cir. 1996)).

8