UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-30488
Summary Calendar
LAWRENCE SPEARS, JR.,
Plaintiff-Appellant,
VERSUS
DSM COPOLYMER, INC.,
Defendant-Appellee.
Appeal from the United States District Court
For the Middle District of Louisiana
(94-CV-429)
November 11, 1996
Before JONES, DeMOSS and PARKER, Circuit Judges.
PER CURIAM:*
Lawrence Spears, Jr. ("Spears") appeals the district court's
granting of summary judgment on his claims of discrimination based
on race and age in violation of Title VII of the Civil Rights Act
of 1964 (42 U.S.C. § 2000e-2(a)) and the Age Discrimination in
*
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this opinion should not be published and is not precedent except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.
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Employment Act (29 U.S.C. § 621 et seq.)("ADEA"). After reviewing
the record and the applicable law, we conclude that the district
court's granting of summary judgment for DSM Copolymer, Inc. should
be affirmed.
We review the district court's grant of summary judgment de
novo. Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995). Summary
judgment is appropriate when the summary judgment record
demonstrates "that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter
of law." FED. R. CIV. P. 56(c).
The district court concluded that Spears' age discrimination
claim must be dismissed for failure to timely exhaust his
administrative remedies. An employee cannot commence a civil
action under the ADEA until 60 days after a charge alleging
unlawful discrimination has been filed with the EEOC. 29 U.S.C. §
626(d); Rhodes v. Guiberson Oil Tools Div., 927 F.2d 879 (5th
Cir.), cert. denied, 502 U.S. 868, 112 S. Ct. 198, 116 L. Ed. 2d
158 (1991). The EEOC charge filed by Spears only alleged
discrimination based on race, but not age. This circuit has
previously espoused that the scope of a Title VII action
may be based, not only upon the specific complaints made by
the employee's initial EEOC charge, but also upon any kind of
discrimination like or related to the charge's allegations,
limited only by the scope of the EEOC investigation that could
reasonably be expected to grow out of the initial charges of
discrimination.
Dollis v. Rubin, 77 F.3d at 781 (citations omitted). We agree with
the district court's conclusion that Spears' age discrimination
claim is not one that could reasonably be expected to grow out of
his initial EEOC charge, and because he did not file an age
discrimination claim within the requisite time period, his age
discrimination claim must be dismissed.
The district court also compared Spears' EEOC charge (failure
to promote based on race) to his federal complaint (discriminatory
disciplinary action, hostile work environment, discrimination in
pay, and retaliation for filing grievances), and found that the
claims in his complaint could not reasonably be expected to grow
out of his initial EEOC charge. We agree. Spears' EEOC charge
specifically states that he "learned he was not promoted" to
various positions, the alleged reasons why, i.e., not qualified,
and that he believed his discrimination was due to his race.
Nowhere in Spears' EEOC charge does he enunciate facts sufficient
to direct the EEOC to investigate the claims alleged in his
complaint. Because Spears failed to do so in his EEOC charge, the
district court correctly dismissed these claims for failing to
timely exhaust administrative remedies required in Title VII
actions. See Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir
1995)(requiring examination of the plaintiff's complaint in light
of his administrative charges to determine whether jurisdictional
prerequisite satisfied).
Lastly, turning to Spears' Title VII claim of race
discrimination, a plaintiff may prove a prima facie case of
discrimination by showing (1) that he is a member of a protected
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class, (2) that he sought and was qualified for an available
employment position, (3) that he was rejected for that position,
and (4) that the employer continued to seek applicants with the
plaintiff's qualifications. McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973);
Lapierre v. Benson Nissan, Inc., 86 F.3d 444, 448 (5th Cir. 1996).
The district court, based on the evidence submitted by DSM
Copolymer and Spears' failure to submit proper evidence, determined
that Spears was not a qualified individual for the positions he
sought and that he had not made out a prima facie case of
discrimination. We agree, based on the record before us, that
Spears failed to prove a prima facie case of discrimination.
Moreover, this court has previously stated that hearsay evidence in
affidavits, as well as unsworn documents, are not appropriate for
consideration in ruling on summary judgment. Martin v. John W.
Stone Oil Distributor, Inc., 819 F.2d 547 (5th Cir. 1987). Thus,
we find that Spears has failed to create a genuine issue of
material fact in order to preclude summary judgment on his claim of
race discrimination.
Because we find that the district court properly granted DSM
Copolymer's motion for summary judgment against Spears, we AFFIRM.
AFFIRMED.
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