Case: 10-10636 Document: 00511442425 Page: 1 Date Filed: 04/12/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 12, 2011
No. 10-10636 Lyle W. Cayce
Summary Calendar Clerk
KIMMIE JONES,
Plaintiff–Appellant,
v.
CINGULAR WIRELESS EMPLOYEE SERVICES, L.L.C.;
BETH BOOKER; PAM ROSSMAN,
Defendants–Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:09-CV-818
Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Kimmie Jones was employed by Cingular Wireless Employee Services,
L.L.C. (CWES). She applied for and was denied employment as a “trainer” with
a related entity, AT&T Services, Inc., and was later terminated from her position
at CWES. She sued CWES and two supervisors, Beth Booker and Pam Rossman
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 10-10636 Document: 00511442425 Page: 2 Date Filed: 04/12/2011
No. 10-10636
(together, “Cingular”), alleging discrimination and retaliation prohibited under
Title VII 1 and 42 U.S.C. § 1981.
We review the judgment of the district court de novo, evaluating
discrimination and retaliation claims based on circumstantial evidence under
the familiar McDonnell Douglas burden-shifting framework.2 Cingular concedes
that Jones established a prima facie case with respect to her claim that she was
not hired as a trainer due to racial discrimination. Cingular produced evidence,
however, demonstrating that the hiring process for the trainer position included
performing a mock training session before a panel as well as a panel interview.
The evidence also demonstrates that at the conclusion of that process, the
employee in charge of hiring, Dawn McKenzie, selected another candidate
because she believed he was better qualified. Jones argues that this justification
is pretextual because McKenzie told her that she was not hired due to lack of
fraud experience. There is no evidence that McKenzie’s decision was racially
motivated. Accordingly, even if we assume Cingular’s justifications are
inconsistent—a doubtful proposition—they are not sufficient to raise an issue of
disputed fact as to whether McKenzie’s ultimate decision not to hire Jones was
racially motivated.3
Jones also alleges that her subsequent termination was a result of racial
discrimination. Much of Jones’s summary judgment evidence is not competent
1
42 U.S.C. §§ 2000e to 2000e-17.
2
See, e.g., Jackson v. Watkins, 619 F.3d 463, 465-66 (5th Cir. 2010) (per curiam).
3
See Nasti v. CIBA Specialty Chems. Corp., 492 F.3d 589, 594 (5th Cir. 2007)
(concluding that even if justifications were inconsistent, the discrepancy was not sufficient to
raise a fact issue regarding pretext).
2
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No. 10-10636
evidence because it consists either of unsubstantiated assertions 4 or hearsay,5
and we agree with the district court that the competent evidence raises no
inference of racial discrimination. It is therefore insufficient to establish a prima
facie case of such discrimination.
Finally, Jones did not establish a prima facie case of retaliation because
she did not engage in a protected activity, opposing “any practice made an
unlawful employment practice” under Title VII.6 Though she lodged complaints
about some of her boss’s actions toward her, none of her complaints suggest that
she opposed those actions because they were discriminatory or otherwise
unlawful.
For the above reasons, together with the reasons advanced by the district
court in its careful opinion of May 25, 2010, the judgment of the district court is
AFFIRMED.
4
See VRV Dev. L.P. v. Mid-Continent Cas. Co., 630 F.3d 451, 455 (5th Cir. 2011) (“[A]
party cannot defeat summary judgment with conclusory allegations or unsubstantiated
assertions.”).
5
See Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 510 n.5 (5th Cir.
2001) (“Because these statements are hearsay, they are not competent summary judgment
evidence.”).
6
Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 348 (5th Cir. 2007) (internal
quotation marks and citation omitted).
3