UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 97-11189
(Summary Calendar)
_________________
GABEYNESH TAFESSE,
Plaintiff - Appellant,
versus
SALLY BEAUTY COMPANY, INCORPORATED,
Defendant - Appellee.
Appeal from the United States District Court
For the Northern District of Texas
(3:96-CV-2465-P)
June 24, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Gabeynesh Tafesse appeals the district court’s decision
granting summary judgment in favor of Sally Beauty Company, Inc.
(“Sally”) on Tafesse’s Title VII racial discrimination claim. We
affirm.
I
Sally sells professional beauty supplies through a network of
*
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that this opinion should not be published and is not precedent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.
small store outlets that are staffed with a store manager and
several hourly sales associates. In August 1995, Tafesse, a part-
time employee, was transferred to Sally’s Oak Lawn store from the
Lovers Lane store. After the transfer, Tafesse continually
expressed her interest in promotion to a full-time position to the
Oak Lawn manager, Robbie Hunter. Hunter decided, however, not to
promote Tafesse. He instead promoted two white employees to full-
time positions. Tafesse, a black, Ethiopian national, subsequently
filed a charge of discrimination with Texas Commission on Human
Rights and later this lawsuit against Sally, alleging, among other
things, racial discrimination in violation of Title VII of the
Civil Rights Act of 1964. The district court granted summary
judgment in favor of Sally on all claims.
With respect to Tafesse’s racial discrimination claim, the
district court first found that because Tafesse was unavailable to
work on Mondays, she had failed to demonstrate that she was
qualified for the full-time position, thus failing to establish an
element of her prima facie case of discrimination. The court
further held that even if Tafesse could demonstrate a prima facie
case of racial discrimination, she was unable to show a dispute of
fact about the legitimate, nondiscriminatory reasons proffered by
Sally for not promoting her.
On appeal, Tafesse claims that the district court erred in
dismissing her Title VII claim of racial discrimination1 (1) by
1
Tafesse does not appeal the summary judgment granted in
favor of Sally on any other claims.
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failing to recognize that a dispute of fact existed about Tafesse’s
availability for work, (2) by failing to recognize that a dispute
of fact existed about Tafesse’s job performance, and (3) by finding
that Tafesse did not meet her burden of establishing a fact issue
concerning the pretextual reason for her discharge.
II
We review a district court’s grant of summary judgment de
novo. See Doddy v. Oxy USA, Inc., 101 F. 3d 448, 460 (5th Cir.
1996). We analyze Title VII employment discrimination cases such
as Tafesse’s under the McDonnell Douglas burden-shifting framework,
recently set forth in St. Mary’s Honor Center v. Hicks, 509 U.S.
502, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993). See Rhodes v.
Guiberson Oil Tools, 75 F.3d 989,992 (5th Cir. 1996) (en banc).
We agree with the district court that Tafesse failed to
demonstrate a dispute of fact about whether she was qualified for
the full-time position. When Hunter discussed the full-time
position with Tafesse, he outlined several reasons why he was
unable to promote her to the position. Principal in Hunter’s
reasoning was the fact that Tafesse had scheduling problems due to
a second job and her school schedule. Specifically, Tafesse could
not work on Mondays due to the second job, and she needed a
flexible schedule to complete her school requirements. According
to store policy, however, to meet the qualifications for full-time
employment, the employee had to be available to work at all times
the store was open so that he or she could fill in for the manager
when he was not in the store. The fact that Tafesse was unable to
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work on Mondays due to a second job goes undisputed in both her
affidavit and deposition. More importantly, Tafesse never
evidenced a willingness to alter her schedule should she be
promoted to the full-time position, despite her claims to the
contrary in her brief to this court. Because Tafesse has failed to
show a dispute of fact about an element of her prima facie case,
Sally is entitled to summary judgment on the racial discrimination
claim. See Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1088 (5th
Cir. 1994) (holding that because plaintiff was unable to show that
she was qualified for the applied-for position, she could not
establish a prima facie case of discrimination and therefore
appropriately suffered summary judgment against her).
We also affirm the district court’s decision on the
alternative grounds that Tafesse failed to create a fact issue
about whether the legitimate, nondiscriminatory reasons proffered
by Sally for not hiring Tafesse were pretextual for discrimination.
See Rhodes, 75 F.3d at 994 (“[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] was a
determinative factor in the actions of which plaintiff
complains.”). According to Sally’s summary judgment evidence,
Hunter noted that in addition to Tafesse’s lack of availability,
Tafesse had been cited several times for her poor job performance
and that any employee who occupied a full-time position needed to
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have a better record of efficiency. Tafesse was written up several
times for various reasons. Hunter issued two written corrective
action reports describing Tafesse’s cash register shortages, the
latter one noting that her failure to correct the problem would
result in her termination, and one report noting her failure to
follow instructions regarding the store’s refund policy. Citing
Tafesse’s unreliability as another reason for not promoting her,
Hunter noted that Tafesse was often late to or absent from work, a
problem that led him to issue another written report for her
unacceptable absenteeism. Hunter also stated that Tafesse had to
be repeatedly corrected regarding her shortcomings in stocking the
shelves and operating the computer and that she was often rude to
customers or in front of customers. Finally, he noted her
inability to communicate effectively with the home office,
explaining that being able to communicate items of inventory to the
home office was essential to any full-time position and that
Tafesse was unable to meet this requirement due to the reluctance
of the home office in dealing with her.
In response to these reasons for not promoting her to a full-
time position, Tafesse asserts that disapproval of her performance
came only from Hunter and that his dissatisfaction stemmed from his
racist mentality. However, the record clearly indicates that
Tafesse’s previous manager, Darlene Copeland, had issued two
corrective action reports to Tafesse))one for failing to watch a
required training video and one for being rude to a customer))and
had indicated on Tafesse’s performance appraisal that Tafesse
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needed improvement in several areas.
Tafesse also claims that her employment record calls into
question the legitimate, nondiscriminatory reasons proffered by
Sally for not promoting her. She does not, however, present any
specific evidence creating a dispute of fact about these reasons.
Instead, Tafesse offers only her own conclusory statements about
her good job performance and points to facts that fail to refute
Sally’s proffered reasons.2 For example, while Tafesse notes,
correctly, that Copeland’s overall rating of Tafesse in her
performance appraisal was “good,” she points to nothing to refute
Copeland’s comments regarding areas Tafesse needed improvement.
Such evidence is not sufficient to avoid summary judgment. See
Pfau v. Reed, 125 F.3d 927, 940 (5th Cir. 1997) (conclusory
assertions, unsupported by specific facts, are insufficient to
defeat a proper motion for summary judgment); Hall v. Gillman Inc,
81 F.3d 35, 37 (5th Cir. 1996) (reversing summary judgment for
employer when the plaintiff-employee presented sufficient, specific
evidence contradicting the employer’s claim of his poor sales
2
Tafesse also presents the affidavit of Sonia Reyes, a
past supervisor, to counter Sally’s charges of incompetency. This
unsworn affidavit is, however, not competent summary judgment
evidence because it lacks a statement that it is made “under
penalty of perjury.” See Nissho-Iwai Amer. Corp. v. Kline, 845
F.2d 1300, 1306 (5th Cir. 1988) (“It is a settled rule in this
circuit that an unsworn affidavit is incompetent to raise a fact
issue precluding summary judgment [unless it meets the] statutory
exception [existing] under 28 U.S.C. § 1746, which permits unsworn
declarations to substitute for an affiant’s oath if the statement
contained therein is made ‘under penalty of perjury’ and verified
as ‘true and correct.’”). Furthermore, even if we were to consider
this affidavit as competent summary judgment evidence, it also
fails to present specific facts contradicting most of Sally’s
proffered reasons for not promoting Tafesse.
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performance).
III
For the foregoing reasons, we affirm the decision of the
district court.
AFFIRMED.
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