IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-11094
Summary Calendar
LORETTA ANDERSON,
Plaintiff-Appellant,
versus
CITY OF DALLAS,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Texas
(3:95-CV-1962-P)
March 19, 1997
Before GARWOOD, JOLLY and DENNIS, Circuit Judges.*
PER CURIAM:
Plaintiff-appellant Loretta Anderson (Anderson) appeals the
district court’s summary judgment dismissal of her suit against
defendant-appellee City of Dallas (the City) based on alleged race
and gender discrimination and retaliation contrary to Title VII and
age discrimination contrary to the Age Discrimination in Employment
Act in denial of three promotions in 1993 and one promotion in
1994.
*
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this opinion should not be published and is not precedent except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.
In its well-considered memorandum opinion, the district court
held that Anderson’s claims as to the 1993 promotions were time
barred because the promotions occurred and she knew she had not
been promoted, and who had been, not later than August 12, 1993;
but she did not file her EEOC charge until February 24, 1995. The
district court alternatively held that the EEOC charge did not
encompass these promotions, as it related only to the 1994
promotion. Finally, the district court held that in any event
Anderson had not produced adequate summary judgment evidence to
sustain a finding that the City’s reasons for not selecting
Anderson for the 1993 positions, as reflected in its summary
judgment evidence, were pretextual. As to the 1994 promotion, the
district court held that Anderson had not produced adequate summary
judgment evidence to sustain a finding that the City’s reason for
not selecting Anderson——that of the four eligible applicants she
scored lowest on the tests administered for the purpose of
selecting the person to be promoted, while the individual who was
then promoted had by far the highest score——was pretextual.
In her appeal, Anderson has demonstrated no reversible error
in the district court’s judgment. To begin with, Anderson’s brief
is largely lacking in record citations, contrary to Fifth Circuit
Rule 28.2.3. Moreover, several of its contentions are only stated
in wholly conclusory form, without supporting explanation, factual
particulars, or legal argument, contrary to Fed. R. App. P.
28(a)(6). This is true, for example, of her contentions that the
summary judgment evidence shows that the City “is either equitably
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estopped from asserting that the claims are time barred or that the
limitations was equitably tolled.” See, e.g., Al-Ra’id v. Ingle,
69 F.3d 28, 31 (5th Cir. 1995). Anderson’s pro se status counsels
indulgence, but does not justify such extensive departure from the
briefing rules. Ingle.
In any event, no reversible error is shown, and we affirm
essentially for the reasons given by the district court.
We note that Anderson did not raise her continuing violation
theory below so it is not available for her on appeal, see Savers
Federal Savings & Loan Ass’n v. Reetz, 888 F.2d 1497, 1501 (5th
Cir. 1989). Further, complaint that another is chosen for a
particular promotion position instead of the plaintiff does not
invoke the continuing violation theory, because the promotion
decision is one having “the degree of permanence . . . which should
indicate to the employee that the continued existence of the
adverse consequences of the act is to be expected without being
dependent on a continuing intent to discriminate.” Berry v. Board
of Supervisors, 715 F.2d 971, 981 (5th Cir. 1983), cert. denied,
107 S.Ct. 232 (1986). Moreover, the Title VII limitations period
commences to run at least when the plaintiff knows that she has not
been selected and that one outside of the protected class has been,
not when plaintiff “first perceives that a discriminatory motive
caused the act.” Merrill v. Southern Methodist University, 806
F.2d 600, 605 (5th Cir. 1986). See also Pacheco v. Rice, 966 F.2d
904, 906 (5th Cir. 1992); Chapman v. Homco, Inc., 886 F.2d 756, 758
(5th Cir. 1989).
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That a position having a vacancy in which Anderson initially
expressed interest was upgraded more than two years later, and that
an upgrade had long previously unsuccessfully been sought, would
not support a finding of intentional concealment of facts giving
rise to the claim so as to establish equitable tolling. See Barrow
v. New Orleans S.S. Ass’n, 932 F.2d 473, 478 (5th Cir. 1991). That
is particularly so as there is no evidence of any inquiry in this
respect by Anderson or of any misleading by the City, nor of any
reliance by Anderson, nor of any then knowledge by Anderson’s
supervisor that the upgrade would likely take place over two years
later. And, that an upgrade had been requested is not a fact
tending to establish discrimination, there being no evidence or
assertion that any others who inquired about or applied for the job
were furnished or had information as to a possible future upgrade
which Anderson was not furnished and did not have. Anderson has
demonstrated no basis for equitable tolling as to any of the 1993
promotions.
Finally, as the district court held, Anderson has not produced
evidence which would sustain a finding that the City’s reasons for
any of its challenged promotion decisions were pretextual.
The judgment of the district court is
AFFIRMED.
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