* Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4.

### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-20037 Summary Calendar

JAMES FONTENEAUX Plaintiff - Appellant v. SHELL OIL CO; SHELL INFORMATION TECHNOLOGY INTERNATIONAL INC Defendants - Appellees

Appeal from the United States District Court for the Southern District of Texas

4:05-CV-4033

Before STEWART, OWEN, and SOUTHWICK, Circuit Judges. PER CURIAM: * James Fonteneaux filed suit against Shell Oil Co. and Shell Information Technology International Inc. alleging race and age discrimination. The district court granted the Defendants’ motion for summary judgment. On appeal, Fonteneaux argues that there were factual issues and legal errors that require reversal. We disagree and affirm. United States Court of Appeals Fifth Circuit 

### F I L E D July 30, 2008 Charles R. Fulbruge III ClerkNo. 08-20037

2 I. BACKGROUND We will refer to the Defendants collectively as “Shell.” Fonteneaux was employed at Shell from May 1976 through February 2005, where he progressed through various positions. Throughout the 1990s, Fonteneaux worked with Shell’s information technology systems. In 1998, Shell began implementing a new global information technology services strategy which remained in a state of change until 2003. It is during this transitional period that Fonteneaux believed hewas more qualified tofill certain positions than the persons selected. In September 2001, Jay Crotts was selected as the interim manager of Shell’s Strategic Relations & Procurement (“SR&P”) division. In 2002, Fonteneaux began working under Crotts as an interim Strategic Relations Manager (“SRM”), a position in the SR&P division. In July 2003, Shell hired Kristine Moore as the SR&P division’s permanent manager. After Moore became the SR&P division manager, she reevaluated positions as part of a reorganization. The decision was made to replace all of the SRM positions with Strategic Relations Account Manager (“SRAM”) positions. The new positions required 10-15 years of external sales experience, i.e., with vendors outside of Shell itself. None of the fourteen Shell employees who applied for the new positions, including current SRMs, had the required sales experience. All except one ofthe SRAM positionswere filled from outside ofShell. The exception was a position filled by a citizen of the United Kingdom. That country’s employment lawwas interpreted to entitle the employee to a transfer. The remaining Shell employees were provided a list of Shell position vacancies and offered a severance package. All of the other internal Shell candidates for the newSRAM positionswere notified oftheir non-selection in September 2004. Fonteneaux did not obtain another Shell position, refused a severance package, and his employment was terminated at the end of February 2005.No. 08-20037

3 Fonteneaux filed hisc

hargeofdiscrimination with the Equal Employment Opportunity Commission on March 14, 2005. Fonteneaux made no specific allegations in his charge. The EEOC issued a right to sue letter, and suit was filed on November 30, 2005. The district court on August 22, 2007, granted Shell’s motion for summary judgment on all claims. In a supplemental order dated December 14, 2007, the court addressed claims under 42 U.S.C. Section 1981 and denied them as well. Fonteneaux appeals. II. DISCUSSION In our reviewofthe district court’s grant ofsummaryjudgment, we apply the same analysis as did that court, examining the facts and inferences in the light most favorable to the party opposing judgment. A rmstrong v. American Home Shield Corp., 333 F.3d 566, 568 (5th Cir. 2003). Fonteneaux argues that therewerefact issues that should have prevented summaryjudgment. He organizes his brief by sections that address five specific claims that w

ere denied, and then a sixth section dealing with the limited

acceptance of his affidavit. We will follow that organization except that the validity of the affidavit will be discussed where relevant as to specific claims. 1. New SRAM positions Fonteneaux is an African-American, a member of a protected class, who

was not selected for the new SRAM position, and the positions were filled by persons outside of his protected class. The district court found that those facts satisfied three of the four factors for a prima facie case of discrimination, but that there was no evidence that Fonteneaux was qualified for the position. See Blowv. City ofSan Antonio, 236 F.3d 293, 296 (5th Cir. 2001). The qualification for the new SRAM positions that he did not meet, nor did any other of the occupants of the SRM positions at Shell, was 10-15 years of sales experience. F onteneaux argues that the shorter-term sales experience he did have, taken with evidence that Shell’s human resourc e office thought that the newNo. 08-20037

4 SRAM position was not more than 30% different than the SRM position, reveal that hewasactually qualified for the newposition. This argument is a challenge to Shell’s decision setting the minimum qualifications for the position. Substantial weight is given to an employer’s decision on necessary credentials; there was no evidence sufficient to block summary judgment that the sales experience requirement had a discriminatory purpose. SeeDeinesv. Texas Dep’t of Protective and Regulatory Servs., 164 F.3d 277, 281 (5th Cir. 1999). Shell justified the requirement oflengthy sales experience external toShell on thefact that the new SRAM positions would have an enhanced role in the company compared to the older SRM position. Fonteneaux had no such experience. Any sales experience Fonteneaux acquired was from within the Shell entity. There is no material fact in dispute on this point. The only SRM who gained a new SRAM position was the citizen of the United Kingdom, and all lacked the required experience established by Shell. Fonteneaux did not demonstrate a prima faciecase ofdiscrimination in not being selected for one of the new SRAM positions. 2. Retaliation Fonteneaux argues that he demonstrated a prima faciecase ofretaliation because his old SRM position was terminated within five months from the date he complained ofdiscrimination for not being selected for a newSRAM position. To establish a prima facie case of retaliation, Fonteneaux must establish the following: “(1) he participated in an activity protected by Title V II; (2) his employer took an adverse employment action against him; and (3) a causal connection exists between the protected activity and the adverse employment action.” McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007). Based on Fonteneaux’s allegations, he was informed that his SRM position, along with the others, would be replaced with new SRAM positions which required advanced sales experience. It was only after receiving thisNo. 08-20037

1 We note that alternatively, Fonteneaux argues even if the federal limitations period does not apply, Texas applies a four-year statute o f limitations for contractual matters and Section 1981 allows a cause of action based on a contractual relationship. Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a). However, this Circuit has recognized that claims of racial discrimination are subject to Texas’s two-year statute of limitations. J ones v. ALCOA, Inc., 339 F.3d 359, 368 (2003). 5 information and being notified that none of the current SRM’s, with the exception ofthe U.K. citizen, were eligible totransfer intoa newSRAM position, that Fonteneaux complained of discrimination. The protected activity Fonteneaux complains of took place after the decision to terminate his SRM position was already made. A September 2004 meeting in which hecomplained about discrimination occurred af ter Fonteneaux

was not selected for a newSRAM position; the complaint could not have caused the non-selection. There are no facts alleged that create a basis for a retaliation claim. Summary judgment was proper. 3. Statute of limitations for claims relating to SR&P division positions Fonteneaux argues that he was the most qualified person for the interim manager and permanent manager of the SR&P division. Fonteneaux included

a claim ofdiscriminatory failure to promote under 42 U.S.C. § 1981. The proper statute of limitations for a claim under that statute is determined by whether the claim would have been viable before certain 1991 congressional enactments. Fonteneaux concludes that the district court improperly applied Texas’s two-year statute of limitations instead ofa four-year federal limitations period. Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (Vernon 2002) (two-year statute of limitations); 28 U.S.C. § 1658(a) (four-year statute of limitations for “a civil action arising under an Act of Congress enacted” after December 1, 1990”). 1 Because Section 1981 does not contain a statute of limitations, traditionally the most analogous state statute of limitations has been applied. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 371 (2004). After enactment of the 1991 Civil Rights B ill by Congress, a four-year statute of limitationsNo. 08-20037

6 applies “ifthe plaintiff’s claim against the defendant was made possible” by the 1991 or later statute. Id. at 382. Fonteneaux’s claim of failure to promote based on alleged racial discrimination would have been actionable without the 1991 statutory changes if“the nature ofthe change in position was such that it involved the opportunity to enter intoa newcontract with the employer. If so, then the employer’s refusal to enter the new contract is actionable under § 1981.” Patterson v. McLean Credit Union, 491 U.S. 164, 185 (1989) superseded by statute on other grounds as stated in CBOCS West, Inc. v. Humphries, 128 S. Ct. 1951 (2008). The 1991 amendment to Section 1981 was in response to the holding in Patterson that claims of post-contract-formation racial discrimination in retaliation for engaging in protected activity were not actionable under Section 1981. H umphries, 128 S. Ct. at 1956-58. The Patterson holding, excluding postcontract-formation conduct from Section 1981’s scope, is what gave rise to the 1991 amendment. I d

. at 1956. Discriminatory refusal to enter into a new emplo yment contract was actionable under Section 1981, as the language we quoted from Patterson reveals

. “In deciding whether a change of position rises to the level of a new and distinct relation, the court must compare the employee’s current duties, salary, and benefits with those incident to the new position.” Police Ass’n ex rel. Cannatella v. City ofNewOrleans, 100 F.3d 1159, 1170-71 (5th Cir. 1996). Shell argues that Fonteneaux, if promoted, would have attained supervisory status

over SR&P division employees. Where a routine promotion involves the attainment ofsupervisory status, that alone does not create a new and distinct employment relationship. J ohnson v. Uncle Ben’s, 965 F.2d 1363, 1371 (5th Cir. 1992). However, a non-routine promotion that involves the attainment of supervisory status may be categorized as creating a new and distinct employment relationship. See Harrison v. Associates Corp. of North America,No. 08-20037

7 917 F.2d 195, 198 (5th Cir. 1990). There is no evidence that Fonteneaux had any supervisory capacity in his SRM position. The promotions which he sought involved the ability to make employment decisions as a Shell manager. A promotion thatwould allowan employee to hire and fire subordinates is the type of relationship that creates a new and distinct employment relationship. Therefore, the two-year Texas statute of limitations applied. Fonteneaux

was aware of his not being promoted no later than July 2003 for the permanent position and much earlier for the interim manager position. He did not file suit until November 2005. These claims are therefore barred. 4. Disparity in pay F onteneaux argues that he provided sufficient evidence to survive summary judgment on his disparate pay claim. He alleged that his white coworkers in the old SRM positions received higher compensation. In support of this allegation, Fonteneaux offered his affidavit and a document that purportedly contained salary information ofhis coworkers from 2003-2005. The district court ruled that this evidence was not competent. The salary table did not include all of Fonteneaux’s coworkers, and did not indicate its source. Evidence that would not be admissible at trial is not competent evidence to be considered during summary judgment. Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 192 (1991). Affidavits certainly may be sufficient evidence, but “unsubstantiated assertions are not competent summary judgment evidence.” Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994). On its face, Fonteneaux’s affidavi t is comprised of mere allegations and hearsay. The district court properly concluded that the pay table document and Fonteneaux’s affidavit are not proper summaryjudgment evidence. Summary judgment was proper on the disparity in pay claim.

5. Category Manager of IT-Hardware and IT-Software positionsNo. 08-20037

8 Fonteneaux argues that the district court failed to consider his claims of

race and age discrimination based on not being selected for two separate positions as Category Manager. He argues that, despite his being qualified for each position, the positionswere filled with white females under the age offorty. The district court held that Fonteneaux failed to state any specific facts regarding discrimination in not being selected for these Category Manager positions. As discovery progressed in this case, Fonteneaux did not seek any information pertinent to the Category Manager positions. Fonteneaux concedes that this issue was first raised in his response to Shell’s motion for summaryjudgment. Fonteneaux provided no facts or details to Shell on these claims even after Shell filed a motion for a more definite statement. Fonteneaux, in his district court filings, provided no dates in relation totheCategory Manager positions. On appeal, Fonteneaux does not provide any specific date or factual description of alleged discrimination regarding these positions. The district court properly concluded that Fonteneaux did not prosecute these claims. To the extent these claims were raised, summary judgment was proper. The judgment of the district court is AFFIRMED.