United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 28, 2004
_______________________ Charles R. Fulbruge III
Clerk
Summary Calendar
No. 03-20942
_______________________
BEKEE C. NWAKANMA, Doctor of Education,
Plaintiff-Appellant,
versus
VICTOR RODRIGUEZ, et al.,
Defendants,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas - Houston Division
Civil Action No. H-01-4269
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Appellant Nwakanma raises five claims of error arising
out of his Title VII suit, on which Appellees Rodriguez and the
Texas Department of Criminal Justice (“TDCJ”) prevailed in the
district court. Specifically, Nwakanma contends the district
court: (1) erred in granting partial summary judgment to Appellees
on the basis that he failed to meet the minimum qualifications for
an Internal Affairs Division position; (2) erred in denying
*
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opinion should not be published and is not precedent except under the limited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.
Nwakanma’s motion for default judgment; (3) erred in failing to
determine whether Nwakanma was harassed, intimidated, or retaliated
against for engaging in protected activities; and (4) erred in
failing to address whether Nwakanma was denied fringe benefits,
overtime, and compensatory time. Finally, Nwakanma argues that the
jury verdict in Appellees’ favor as to Nwakanma’s claim relating to
a position with the Youthful Offender Program was against the
weight of the evidence. We DISMISS the appeal in part, and AFFIRM
the judgment of the district court.
Background
Nwakanma sued Appellees under 42 U.S.C. §§ 1981, 1983,
2000e (Title VII), and 12112, for discriminating against him based
on his race and national origin in refusing to promote him to two
supervisory positions. Nwakanma, a black male of Nigerian origin,
works for the TDCJ as a supervisor in the Parole Division. On
June 26, 2000, Nwakanma applied for a managerial position with the
TDCJ’s Internal Affairs Division. The listed qualifications for
this job included that applicants be a currently licensed Texas
Police Officer (or eligible to be licensed) by the Texas Commission
on Law Enforcement Officer Standards and Education (TCLEOSE).
Although Nwakanma was certified in firearms training, he did not
hold the requisite certification. The applicant receiving the job
held the appropriate certification, as well as more than fifteen
years of peace officer experience.
2
In September of the same year, TDCJ advertised an opening
for a program manager with its Youthful Offender Program. Minimum
qualifications for the position included a bachelor’s degree from
an accredited college or university, five years of experience in
counseling within criminal justice programs, and two years of
experience in the supervision of employees. The announcement also
stated a preference for major course work in behavioral science and
sensitivity (and cultural) training. On September 13, 2000,
Nwakanma applied for the position. His application included his
educational background — a doctorate in education and over ten
years of experience with the TDCJ Parole Division — as well as
sixteen years of experience as a program administrator and nearly
ten years of experience as a supervisor. Having met the minimum
requirements for the position, Nwakanma was interviewed for the
job. The interviewer, Diana Coates, ultimately did not recommend
him for the job. Instead, Coates recommended Robert Seale for the
position, based on his practical experience and his responses to
interview questions.
After being denied both positions, Nwakanma filed suit in
the district court against Appellees for discriminating against him
in violation of federal law. After what Nwakanma perceived as
procedural default by Appellees, Nwakanma moved for a default
judgment, which the district court denied. The district court
granted summary judgment to Appellees on the claim relating to the
Internal Affairs Division job, and a jury rendered a verdict in
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Appellees’ favor on the claim relating to the Youthful Offender
Program position. Nwakanma timely filed notice of appeal to this
court.
Internal Affairs Division Position
The district court granted partial summary judgment to
Appellees on Nwakanma’s claim that he was discriminated against in
being denied the promotion to the managerial position with the
Internal Affairs Division. We review a district court’s summary
judgment decision de novo, using the same standard as that court.
See Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 506 (5th
Cir. 2003); Fed. R. Civ. P. 56.
Claims of racial discrimination based on circumstantial
evidence are evaluated under the burden-shifting framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-
05, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973). Under this formula, a
plaintiff must first establish a prima facie case of discrimination
by demonstrating: (1) he belongs to a racial minority; (2) he
applied for and was qualified for the position sought; and (3) he
suffered an adverse employment action; and (4) he was replaced by
someone outside his protected class. Cf. St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 506, 113 S. Ct. 2742, 125 L.Ed.2d 407 (1993).
Nwakanma met his burden as to elements 1, 3, and 4 of this frame-
work: Nwakanma is black, he was denied the promotion, and instead
the TDCJ hired someone outside a protected class. However,
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Nwakanma failed to offer any evidence that he was qualified for the
position. Nwakanma offered only a TCLEOSE-issued firearms certifi-
cate; the position required all applicants to have valid TCLEOSE
peace officer licenses. Because Nwakanma failed to offer competent
summary judgment evidence that he met the second requirement, the
district court properly awarded Appellees summary judgment as to
the discrimination claim based on the Internal Affairs position.
Youthful Offender Program Position
The district court determined that a material issue of
triable fact existed as to Nwakanma’s discrimination claim based on
the position for which he was denied with the Youthful Offender
Program. After a three-day trial, the jury found in Appellees’
favor. Nwakanma challenges this jury verdict based on the
sufficiency of the evidence.
Unfortunately, we must dismiss Nwakanma’s appeal as to
this claim. “If the appellant intends to urge on appeal that a
finding or conclusion is unsupported by the evidence or is contrary
to the evidence, the appellant must include in the record or
transcript of all evidence relevant to that finding or conclusion.”
FED. R. APP. P. 10(b)(2). Failure of an appellant to provide a
complete transcript is a proper ground for dismissal of the appeal.
Coats v. Pierre, 890 F.2d 728, 731 (5th Cir. 1989). Nwakanma
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included only portions of the transcript in the record. We thus
dismiss this aspect of his appeal.1
Motion for Default Judgment
Nwakanma appeals the district court’s denial of his
motion for default judgment, which was based on Appellees’
supposedly untimely response to his complaint. This act is
reviewed for abuse of discretion. Federal Sav. & Loan Ins. Corp.
v. Kroenke, 858 F.2d 1067, 1069 (5th Cir. 1988); United States v.
One 1978 Piper Navajo PA-31 Aircraft, 748 F.2d 316, 318 (5th Cir.
1984). Even assuming that Nwakanma’s contention that Appellees
filed their Answer four days late is true, Nwakanma suffered no
prejudice in this delay. Cf. Mason & Hanger-Silas Mason Co. v.
Metal Trades Council, 726 F.2d 166, 168 (5th Cir. 1984) (noting
that default judgments are disfavored and should generally not be
granted without more than a defendant’s failure to meet a
procedural time requirement). The district court did not abuse its
discretion in denying this motion.
Denial of Fringe Benefits, Unfair and Disparate
Treatment, and Disparate Effects
Nwakanma’s original complaint included claims of denial
of fringe benefits, unfair and disparate treatment, and disparate
effects. However, Nwakanma also filed an Amended Complaint which
1
Even if we did not dismiss this aspect of the appeal, the record
excerpts submitted by Nwakanma do not appear to meet the high threshold required
to overturn the jury verdict. See Hiltgen v. Sunrall, 47 F.3d 695, 700 (5th Cir.
1995) (explaining that a jury verdict must be upheld unless “there is no legally
sufficient evidentiary basis for a reasonable jury to find” as it did).
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did not raise these issues, either specifically or by
incorporation. We will not address issues not raised below unless
the newly raised issues concern pure questions of law and refusing
to consider them will result in a miscarriage of justice.
See Dollis v. Rubin, 77 F.3d 777, 779 n.2 (5th Cir. 1995).
Nwakanma cannot meet this high burden, and we therefore will not
address these claims that he now resurrects on appeal.
The appeal is DISMISSED in part and the judgment of the
district court is AFFIRMED.
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