UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 97-20497
Summary Calendar
GENEVIEVE COMEAUX
Plaintiff-Appellant
VERSUS
TEXAS DEPARTMENT OF TRANSPORTATION ET AL
Defendants
TEXAS DEPARTMENT OF TRANSPORTATION
Defendant-Appellee
Appeal from the United States District Court
For the Southern District of Texas
(H-95-CV-5650)
November 19, 1997
Before JOLLY, BENAVIDES and PARKER, Circuit Judges.
PER CURIAM:*
Appellant Genevieve Comeaux appeals the summary judgment
dismissing her Title VII employment discrimination action against
the Texas Department of Transporation (“DOT”). Since Appellant has
*
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this opinion should not be published and is not precedent except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.
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failed to establish a prima facie case of discrimination, we
affirm.
Appellant filed this action against her employer, the DOT,
alleging that she had been discriminated against on the basis of
her race and gender. Specifically, Ms. Comeaux alleges that she
was persistently not promoted and not given a raise, because she is
an African-American female.
“In employment discrimination cases, we review summary
judgments de novo, applying the same standard as the district
court.” Bodenheimer v. PPG Indus., 5 F.3d 955, 956 (5th Cir. 1993),
citing Waltman v. Int’l, Paper Co., 875 F.2d 468, 474 (5th Cir.
1989). Ms. Comeaux has no direct evidence that any particular
employment action was taken against her on the basis of her race or
gender. Therefore, this case may be analyzed under the McDonnell
Douglas/Burdine paradigm for cases using circumstantial evidence to
prove intentional employment discrimination. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668
(1973); Texas Dep’t. of Community Affairs v. Burdine, 450 U.S. 248,
101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).
In order to survive a motion for summary judgment, Ms. Comeaux
must have initially produced appropriate summary judgment evidence
supporting the inference: 1) that she is a member of a protected
group; 2) that she was not promoted or given a raise; 3) that she
was qualified for a promotion or raise; and 4) that a person
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outside her protected class was given a promotion or raise.
McDonnel Douglas Corp., supra, at 802, 93 S. Ct. at 1824; St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 503, 506, 113 S. Ct. 2742,
2747, 125 L. Ed. 2d 407 (1993). If Comeaux could establish her
prima facie case, that would “in effect create[] a presumption that
the [DOT] unlawfully discriminated against [her].” Burdine, supra,
at 254, 101 S. Ct. 1094. This presumption places upon the
defendant the onus of “‘set[ting] forth, through the introduction
of admissible evidence,’ reasons for its actions which, 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, supra, at 507, 113 S. Ct. at 2747, citing Burdine, supra,
at 254-255, and n. 8, 101 S. Ct. at 1094-1095, and n. 8. Once
defendant meets his burden of production by articulating a
legitimate non-discriminatory reason and supporting it with the
appropriate summary judgment evidence, the presumption of
discrimination dissolves, and we are back to the plaintiff, who
carries the burden of persuasion throughout. Id., citing Burdine,
supra, at 253, 101 S. Ct. at 1093. Thereafter, “a jury issue will
be presented and a plaintiff can avoid summary judgment ... if the
evidence taken as a whole (1) creates a fact issue as to whether
each of the employer’s stated reasons was what actually motivated
the employer and (2) creates a reasonable inference that [race or
sex] was a determinative factor in the actions of which plaintiff
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complains.” Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th
Cir. 1996).
In response to DOT’s motion for summary judgment, Comeaux
produced her own affidavit, and the deposition testimony of Ms.
Kathleen Graves, an employee representative from the state
employee’s union, who followed Comeaux’s inter-agency grievance.
Comeaux attached as Exhibit “A” to her affidavit a copy of a
memorandum to DOT management, dated May 13, 1994, which Comeaux
apparently prepared, outlining many of the instances of alleged
discriminatory conduct toward her over the course of her employment
at DOT.
Ms. Comeaux insists in her affidavit that she performed her
job as an administrative technician (clerical position) well enough
to receive a merit raise or promotion, but never received a raise
or promotion because of her race. Comeaux’s affidavit is simply a
conclusory restatement of her claims, which references no
independent proof that she was qualified for a raise or promotion.
Ms. Graves deposition is also wholly conclusory, reflecting only
her conclusion, upon observing the inter-agency grievance process,
that Comeaux was not being treated fairly. Ms. Grave’s deposition
testimony merely assumes the truth of Comeaux’s discrimination
claim, but offers no proof in support of that claim.
On the other hand, Comeaux’s immediate supervisor, Ms. Maureen
Wakeland in her affidavit, attached to DOT’s motion for summary
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judgment, insisted that Comeaux never got a merit raise or
promotion, because she was not qualified and in fact was not even
very good at the job she already had. Ironically, the memorandum
Comeaux attached as Exhibit “A” to her own affidavit, being full of
malapropisms, incorrect subject-verb agreement, faulty punctuation,
sentence fragments, and grammatical mistakes of all kinds,
corroborates Ms. Wakeland’s claim that Comeaux was not competent as
an administrative technician and therefore was not qualified for a
merit raise or promotion.
Therefore, having failed to create a fact issue as to whether
she was even qualified for a raise or promotion, Comeaux cannot
make out a prima facie case under the McDonnell Douglas/Burdine
paradigm, and summary judgment in favor of the DOT was appropriate.
AFFIRMED.
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