* Pursuant to 5 T H C IR

. R

. 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

September 16, 2003

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 03-60216

(Summary Calendar)

____________

CHARLEAN MCDONALD,

Plaintiff-Appellant,

versus

ENTERGY OPERATIONS INC.; WILLIAM EATON,

Defendants-Appellees.

Appeal from the United States District Court

For the Southern District of Mississippi

No. 5:01-CV-24-BN

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM: *

Charlean McDonald, who is proceeding pro se

, appeals the district court’s summary judgment

dismissal of her employment discrimination cl aims against Entergy Operations, Inc. and one of its-2-

vice-presidents, William Eaton. McDonald also alleges that various individuals committed fraud on

the court or otherwise engaged in wrongdoing during the district court proceedings.

Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to

i nt errogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter

of law.” F E D

. R. C IV

. P. 56(c). We review the grant of summary judgment d e novo

, using the same

criteria employed by the district court. Patterson v. Mobil Oil Corp.

, 335 F.3d 476, 487 (5th Cir.

2003).

McDonald does not contest the district court’ s constructi on of her p ro se complaint as

alleging Title VII and 28 U.S.C. § 1981 racial discrimination claims for (1) fa ilure to prom ote;

(2) disparate pay; and (3) adverse working conditions. “This Court considers claims of intentional

discrim inat io n, which include racial discrimination and retaliation claims based on Title VII and

42 U.S.C. § 1981, under the same rubric of analysis.” R aggs v. Miss. Power & Light Co.

, 278 F.3d

463, 468 (5th Cir. 2002).

Under the burden-shifting framework applied in Reeves v. Sanderson Plumbing Products,

Inc.

, 530 U.S. 133 (2000), the plaint iff mu st first establish a p rima facie case of discrimination.

Raggs

, 278 F.3d at 468. In order establish a p rima facie case of a discriminatory failure to prom ote,

the plaint iff must show that: (1) sh e was within a protected class; (2) she was qualified for the

position sought; (3) she was not prom oted; and (4) the position was filled by someone outside the

protected class. Oden v. Oktibbeha County, Miss. , 246 F.3d 458, 468 (5th Cir. 2001).

On appeal, McDonald, who is an African-American woman, contends that her applications

for supervisory openings posted in January and March of 2000 were rejected because of h er race.1 McDonald concedes that the district court properly dismissed her failure to prom ote claim

as to an August 1999 posting because that position was filled by an African-American female.

-3- Both positions were filled by individuals outside McDonald’s protected class. 1 McDonald failed to

establish a prima facie case with respect to the January 2000 posting because that position required

three years of supervisory experience, a qualification which the successful applicant possessed and

which McDonald, by her own admission, lacked.

McDonald did, however, meet the qualifications for the March 2000 posting and thus made

the required prima facie showing. Once a p rima facie case is established, there is a presumption of

discrimination and the burden shifts to the employer to produce evidence that its actions were justified

by a legitimate, non-discriminatory reason. R eeves

, 530 U.S. at 142. If the employer is successful,

then the burden shifts back to the plaint iff to show by a preponderance of the evidence that the

employer’s non-discriminatory expla nat ion is pretextual. I d

. at 143. A p rima facie case and

sufficient evidence to reject the employer’s explanation may permit a trier of fact to determine that

an employer unlawfully discriminated. Id . at 148.

Here, the defendants produced the affidavit of the hiring official for the March 2000 posting,

which stated that McDonald was not selected for that position due to her lack of skills and leadership

qualities relative to th e o ther applicants. The defendants also produced a 1999 employment

evaluation for the succes sful applicant, which praised her leadership skills, experience and

performance. In response, McDonald stated that she was the most qualified candidate and reiterated

her belief that her a pplicat ion was rejected based on race. She did not, however, produce any

evidence to supp o rt these assertions. Accordingly, the district court properly granted summary

judgment as to McDonald’s failure to promote claims.-4-

Similarly, with respect to her disparate pay claim, McDonald failed to produce any evidence

that she was paid at a lower level than similarly situated individuals outside her protected class or that

her compensation was ever decreased or altered in any fashion. Indeed, it appears that this claim is

based solely on McDonald’s failure to receive the promotions discussed above. Accordingly,

summary judgment was also proper as to McDonald’s disparate pay claim.

McDonald does not dispute the district court’s construal of her working conditions claim as

alleging retaliation based on the requirement that she undergo a psychological examination to retain

her access to high security areas. McDonald also concedes that the district court correctly dismissed

this claim because the examination did not rise to the level of an “adverse employment action.” S ee

Green v. Adm’rs of the Tulane Educ. Fund , 284 F.3d 642, 657 (5th Cir. 2002) (“Adverse

employment actions include only ultimate employment decision s such as hiring, granting leave,

discharging, promoting, or compensating.”).

McDonald next asserts that the district court erred in denying her motion to alter or amend

judgment by not con sidering her “Motions, Objections, Oppositions, Rebuttals etc.” She fails,

however, to provide any specific ground for reversing the district court’s order. S ee Lott v. Hargett

,

80 F.3d 161, 166 (5th Cir. 1996) (“Although we liberally construe the briefs of pro se appellants, we

also require that arguments must be briefed to be preserved.” (internal quotati on marks omitted)).

Finally, McDonald makes a variety of unsubstantiated accusations of fraud and wrongdoing

against the district court, defense counsel, the court reporter, and her former supervisor. These

accusations are frivolous and wholly without merit.

For the foregoing reasons, we AFFIRM the judgment of the district court.