* 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that this opinion should not be published and is not precedent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.

-1-

United States Court of Appeals

Fifth Circuit

FILED

May 18, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-50954

Summary Calendar

JOHN T EBERLE, JR

Plaintiff - Appellant

v.

ALBERTO R GONZALES, U S ATTORNEY GENERAL; FEDERAL BUREAU OF

PRISONS

Defendants - Appellees

Appeal from the United States District Court 

for the Western District of Texas, Austin

No. 1:05-CV-192

Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant John T. Eberle, Jr. (“Eberle”),

proceeding pro se, appeals the district court’s order granting

summary judgment in favor of his employer, United States Attorney

General Alberto Gonzales and the Federal Bureau of Prisons

(collectively, “Defendants”), on his claims of age, race, and
-2-

disability discrimination and retaliation. Exercising

jurisdiction under 28 U.S.C. § 1291, we now AFFIRM. 

I. FACTUAL AND PROCEDURAL BACKGROUND

Eberle, a fifty-four year old Caucasian man who suffers from

bipolar disorder, has been employed by the Federal Bureau of

Prisons (“BOP”) at the Federal Correctional Institution in

Bastrop, Texas, since approximately 1988. During his employment

with BOP, Eberle has received over fifty awards and has served as

an Equal Employment Opportunity (“EEO”) Program Manager.

This appeal concerns Eberle’s non-selections for six General

Foreman positions. During 2003 and 2004, Eberle applied for the

General Foreman position at the Federal Detention Centers in

Houston, Texas, Safford, Arizona, Williamsburg, South Carolina,

Sheridan, Oregon, and Edgefield, South Carolina, the last of

which had two openings. At the time, Eberle was in his early

fifties and was a Maintenance Worker Supervisor. 

The Federal Prison System Merit Promotion Plan set forth the

manner in which applicants were to be promoted in the BOP. After

applications were submitted, a promotion board selected the

candidates who ranked at the top when compared with other

eligible candidates for promotion. Those highly ranked

candidates were then grouped together as the best qualified

applicants. A promotion certificate including the names and

applications of the best qualified applicants was then forwarded
-3-

to the selecting official. The selecting official could either:

(1) select any best qualified applicant; (2) fill the position

through some other type of placement action; or (3) decide not to

fill the position. 

Each time Eberle applied for the General Foreman position,

he was found to be one of the best qualified applicants, but he

was not promoted to the General Foreman position. Rather, other

applicants from the best qualified list were chosen by the

selecting officials. The selecting officials for each location

were different, except that the selecting official for Edgefield

filled both openings.

In late September 2003, after being notified that he had not

been selected for the Houston position, Eberle contacted EEO

counselor Debra Parks, who in October 2003 referred Eberle to EEO

counselor Deborah Warren. In January 2004, Eberle contacted

Deborah Warren, alleging that he was not selected for the General

Foreman positions in Houston, Safford, or for either position in

Edgefield because of his age. He did not complain of race or

disability discrimination or retaliation. 

On March 31, 2004, Eberle filed a complaint with the Equal

Employment Opportunity Commission (“EEOC”), alleging age

discrimination for failure to promote. The EEOC accepted for

investigation Eberle’s claims for the General Foreman positions

in Edgefield and Safford, but rejected the allegation regarding

the position in Houston as untimely. 
-4-

In April 2004, Eberle requested that the EEOC add Houston to

its investigation, arguing that he had met with EEO counselor

Debra Parks within forty-five days of his non-selection but that

she was too busy and had “bounced” him to Deborah Warren, which

delayed the filing of his complaint. Eberle also requested that

the EEOC add his non-promotions for the General Foreman positions

in Williamsburg and Sheridan to his complaint. 

The EEOC accepted the allegation related to the position in

Houston for investigation, but denied Eberle’s request to include

his non-promotions in Williamsburg and Sheridan. The EEOC

informed Eberle that his allegations regarding Williamsburg and

Sheridan were not like or related to his pending EEOC complaint

and recommended that Eberle seek EEO counseling for these

allegations.

In September 2004, Eberle received a copy of the EEOC

investigation. He also received his right to sue letter.

On March 18, 2005, Eberle filed this lawsuit. Eberle

alleges that he was discriminated and retaliated against when he

was not selected for any of the General Foreman positions based

on his age, in violation of the Age Discrimination in Employment

Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq., his race, in

violation of Title VII of the Civil Rights Act of 1964 (“Title

VII”), 42 U.S.C. § 2000e et seq., and his physical disability or

handicap, in violation of section 504 of the Rehabilitation Act

of 1973, 29 U.S.C. § 794 et seq. Defendants moved for summary
-5-

judgment on all of Eberle’s claims.

The action was referred to a magistrate judge. The

magistrate judge recommended that the district court grant

Defendants’ summary judgment motion. The district court accepted

the magistrate judge’s Report and Recommendation, granting

summary judgment to Defendants on Eberle’s claims. On June 28,

2006, the district court entered its final judgment. Eberle now

appeals.

II. STANDARD OF REVIEW

“The grant of summary judgment is reviewed de novo and may

be affirmed on any ground raised below and supported by the

record.” Administaff Cos. v. N.Y. Joint Bd., Shirt & Leisurewear

Div., 337 F.3d 454, 456 (5th Cir. 2003). Summary judgment is

appropriate only “if the pleadings, depositions, answers to

interrogatories, 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.” FED. R. CIV. P. 56(c). If the movant

satisfies his initial burden of demonstrating the absence of a

material fact issue, then “‘the non-movant must identify specific

evidence in the summary judgment record demonstrating that there

is a material fact issue concerning the essential elements of

[his] case for which [he] will bear the burden of proof at

trial.’” Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415,
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1429 (5th Cir. 1996) (en banc) (quoting Forsyth v. Barr, 19 F.3d

1527, 1533 (5th Cir. 1994) (citations omitted)). “[T]here is no

material fact issue unless ‘the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.’”

Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)). In addition, “conclusory allegations, speculation, and

unsubstantiated assertions are inadequate to satisfy the

nonmovant’s burden.” Id.

III. DISCUSSION

Eberle raises several issues on appeal. He argues that the

district court erred in holding that his claims for race and

disability discrimination were not administratively exhausted. 

He also contends that the district court erred by not considering

his claims related to his non-promotions in Williamsburg and

Sheridan. Eberle further maintains that the district court

should have considered the merits of his retaliation claims

instead of holding that these claims were not exhausted. 

Eberle next asserts that the district court erred in

granting summary judgment on his age discrimination claims

because he asserts that he was better qualified and more

experienced than those applicants who were selected for the

General Foreman positions. Finally, he complains that the

district court’s grant of summary judgment was inappropriate

because he is entitled to a trial by jury and because he was
1 Eberle also argues that the district court never

addressed his “Motion to Suspend the Legal Standard.” He appears

to be contending that the “motion to dismiss” and not “motion for

summary judgment” standards should govern his case. However, we

are not dealing with a motion to dismiss for failure to state a

claim. The appropriate standard is that governing summary

judgment, which is the motion Defendants filed in this case. To

the extent Eberle is making some other argument, it is waived for

failure to adequately brief the issue. See Grant v. Cuellar, 59

F.3d 523, 524 (5th Cir. 1995) (stating that pro se litigants must

reasonably comply with the Federal Rules of Appellate Procedure).

-7-

denied discovery.1 We will address each of these issues in turn.

A. Eberle’s claims for race and disability discrimination, his

claims related to his non-promotions in Williamsburg and

Sheridan, and his claims for retaliation were not

administratively exhausted

1. Race and Disability Discrimination Claims

Eberle argues that he did not know about his claims for race

and disability discrimination until he received a copy of the

EEOC investigation in September 2004. Based on his lack of

knowledge of the claims, he contends that the district court

erred in dismissing these claims for failure to exhaust

administrative remedies.

Prior to bringing suit for employment discrimination claims,

a federal employee must exhaust his administrative remedies. See

Fitzgerald v. Sec’y, U.S. Dep’t of Veterans Affairs, 121 F.3d

203, 206 (5th Cir. 1997). Federal regulations require an

employee who believes that he has been discriminated against on

the basis of race, color, religion, sex, national origin, age, or

handicap to initiate contact with an EEO counselor within forty-
-8-

five days of the date of the matter alleged to be discriminatory

or, in the case of personnel action, within forty-five days of

the effective date of the action. 29 C.F.R. § 1614.105(a)(1). 

“Failure to notify the EEO counselor in timely fashion may bar a

claim, absent a defense of waiver, estoppel, or equitable

tolling.” Pacheco v. Rice, 966 F.2d 904, 905 (5th Cir. 1992). 

The employee bears the burden of establishing waiver, estoppel,

or equitable tolling to circumvent this EEO requirement. Teemac

v. Henderson, 298 F.3d 452, 454, 457 (5th Cir. 2002).

Eberle never initiated contact with an EEO counselor

regarding his claims of race and disability discrimination for

any of his non-promotions, thus failing to comply with the fortyfive day period prescribed by 29 C.F.R. § 1614.105. Instead,

Eberle attempts to toll the forty-five day requirement by arguing

that he was not aware of these claims. We are not persuaded. 

This court has refused to toll the requirement in 29 C.F.R.

§ 1614.105 in other instances where the defendant claimed he

lacked the necessary knowledge to pursue his claims. In Pacheco

v. Rice, the plaintiff argued that the time limit for notifying

an EEO counselor should be tolled because he did not learn that

his employer had treated another employee more favorably than him

until three years after he was terminated. 966 F.2d at 905-06. 

The plaintiff contended that he did not perceive that the

circumstances surrounding his discharge were discriminatory until

he discovered this disparate treatment. Id. at 906. In refusing
-9-

to toll the EEO requirement, this court held that the doctrine of

equitable tolling “does not permit plaintiffs to suspend the time

for filing discrimination complaints indefinitely when they

discover instances of disparate treatment of other employees

months or years after their discharge.” Id. at 907. The court

recognized that although it was to be expected that some relevant

facts would come to light after the complained-of action, “one

purpose of filing an administrative complaint is to uncover

them.” Id. The court concluded that “[t]he requirement of

diligent inquiry imposes an affirmative duty on the potential

plaintiff to proceed with a reasonable investigation in response

to an adverse event.” Id.

The reasoning in Pacheco applies here. There is no reason

that Eberle could not have raised his claims of race and

disability discrimination at the time he raised his claims of age

discrimination. As a former EEO program manager who received

annual EEO training, Eberle was familiar with the EEO process. 

If Eberle suspected that he was being singled out because of his

race or disability, he could easily have complained. Eberle

never consulted with an EEO counselor regarding these claims, nor

did he attempt to amend his formal EEOC complaint with these

additional claims. Instead, he sat on his rights until he filed

his case in federal court. Consequently, Eberle is not entitled

to equitable tolling. See Teemac, 298 F.3d at 457 (“Equitable

tolling applies only in rare and exceptional circumstances.”)
-10-

(internal quotation marks and citation omitted). 

Because we conclude that the district court correctly held

that Eberle failed to exhaust his administrative remedies and

because the grounds for equitable tolling are inapplicable, we

affirm the district court’s judgment as to these claims.

2. Claims Related to Non-Promotions in Williamsburg and

Sheridan

Eberle next contends that the district court erred by not

considering his claims for his non-promotions in Williamsburg and

Sheridan. He argues that these allegations are “alike and the

same” as his allegations for his non-promotions in Houston,

Safford, and Edgefield.

Again, we cannot agree. As explained earlier, failure to

notify an EEO counselor within forty-five days of the alleged

discriminatory action may bar the plaintiff’s claim. See

Pacheco, 966 F.2d at 905. It is undisputed that Eberle never

initiated contact with an EEO counselor regarding his allegations

related to his non-promotions in Williamsburg and Sheridan. In

fact, when Eberle attempted to get the EEOC to amend his

complaint to include these claims, the EEOC refused, advising

Eberle to seek EEO counseling first. Eberle did not heed the

EEOC’s advice.

Eberle’s contention that his Williamsburg and Sheridan

claims are “the same” as his other claims is not persuasive. 

While a plaintiff may complain of otherwise time-barred
-11-

discriminatory acts if it can be shown that the discrimination

manifested itself over time, discrete discriminatory acts are not

entitled to the shelter of the continuing violation doctrine. 

See Frank v. Xerox Corp., 347 F.3d 130, 136 (5th Cir. 2003). 

Failure to promote is a discrete discriminatory act. See Nat’l

R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). 

Accordingly, Eberle was required to seek EEO counseling within

forty-five days of the non-promotions in Williamsburg and

Sheridan. See 29 C.F.R. § 1614.105. Because he failed to do so,

Eberle’s claims related to Williamsburg and Sheridan are

procedurally barred. Thus, the district court committed no error

in refusing to entertain these allegations.

3. Retaliation Claims

Eberle argues that the district court erred in dismissing

his retaliation claims for failure to exhaust administrative

remedies. He claims that he was not required to exhaust his

retaliation claims under this court’s decision in Gupta v. East

Texas State University, 654 F.2d 411 (5th Cir. 1981). 

Eberle’s argument misunderstands the import of our

precedent. In Gupta, this court held that “it is unnecessary for

a plaintiff to exhaust administrative remedies prior to urging a

retaliation claim growing out of an earlier charge; the district

court has ancillary jurisdiction to hear such a claim when it

grows out of an administrative charge that is properly before the

court.” 654 F.2d at 414. We explained the practical reasons and
-12-

policy justifications for this rule as follows:

It is the nature of retaliation claims that they arise

after the filing of the EEOC charge. Requiring prior

resort to the EEOC would mean that two charges would have

to be filed in a retaliation case[,] a double filing that

would serve no purpose except to create additional

procedural technicalities . . . .

Id. (emphasis added).

However, Gupta and its rationale are not applicable when, as

here, the alleged retaliation occurs before the filing of the

EEOC charge. Eberle alleges that Defendants retaliated against

him by not promoting him to any of the General Foreman positions. 

It is undisputed that Eberle found out he was not promoted for

the positions in Houston, Edgefield, and Safford, on September

10, 2003, December 24, 2003, and January 26, 2004, respectively,

well before he filed his EEOC complaint on March 31, 2004. Since

the alleged retaliation (i.e., non-promotion) occurred prior to

the filing of his EEOC complaint, Eberle was well aware of the

conduct and actions that would give rise to his claims of

retaliation. Given these factual circumstances, Eberle’s

retaliation claims do not fall under the Gupta exception. 

See Miller v. Sw. Bell Tel. Co., No. 01-21318, 2002 WL 31415083,

at *8 (5th Cir. Oct. 7, 2002) (unpublished) (explaining that the

Gupta exception does not apply where the alleged adverse

employment action prompting the plaintiff’s claim for retaliation

occurred prior to the filing of his discrimination charge). 

Because the alleged retaliation in the instant case occurred
-13-

before Eberle filed his EEOC complaint, Eberle should have

exhausted his administrative remedies on his retaliation claims.

Alternatively, to the extent Eberle is claiming that he was

retaliated against after he filed his EEOC complaint in March

2004, this claim would be covered by the Gupta exception. 

Ultimately, however, this claim would still fail because Eberle

cannot raise a genuine issue of material fact to support a prima

facie case of retaliation. 

To establish a prima facie case of unlawful retaliation, the

employee must show that: (1) he engaged in protected activity;

(2) he suffered an adverse employment decision; and (3) a causal

link exists between the protected activity and the adverse

employment decision. Medina v. Ramsey Steel Co., 238 F.3d 674,

684 (5th Cir. 2001). A “causal link” is established when the

evidence demonstrates that the employer’s adverse employment

decision was based in part on knowledge of the employee’s

protected activity. Id. In order to establish this causal link

prong, “the employee should demonstrate that the employer knew

about the employee’s protected activity.” Manning v. Chevron

Chem. Co., 332 F.3d 874, 883 (5th Cir. 2003). 

Eberle’s brief is not clear as to whether he is alleging

that he suffered an adverse employment decision as a result of

filing his EEOC complaint in March 2004. He points to “74 pieces

of evidence,” but this is not competent summary judgment evidence
2 Eberle contends that he set forth summary judgment

evidence in the form of seventy-four facts and exhibits and that

the district court ignored this evidence in ruling on his

retaliation and discrimination claims. The magistrate judge

rejected the submission of these facts and exhibits because

Eberle had not submitted an affidavit based on his personal

knowledge, had not presented facts that would be admissible into

evidence, and had not properly authenticated his exhibits. 

After filing his brief in this court, on January 10,

2007, Eberle filed his personal affidavit in support of the

seventy-four exhibits and facts. However, Eberle’s attempt is

too little, too late. This court will not consider evidence as

part of the appellant’s summary judgment record that was not

properly before the district court. See John v. Louisiana, 757

F.2d 698, 710-11 (5th Cir. 1985).

3 Because we conclude that Eberle either failed to exhaust

his administrative remedies or failed to establish a prima facie

case of retaliation, we need not reach Defendants’ alternative

argument that the government has not waived sovereign immunity

under the ADEA for retaliation claims. 

-14-

that we can consider on appeal.2 To the extent he is arguing

that his non-promotions in Williamsburg and Sheridan were the

adverse employment decisions, Eberle still fails to establish a

prima facie case of retaliation. There is no competent summary

judgment evidence of a causal link between Eberle’s EEOC

complaint and his failure to receive any position. His

subjective belief that he was retaliated against, without more,

is not sufficient to survive summary judgment. Cf. Douglass, 79

F.3d at 1429. We therefore affirm the district court’s judgment

on Eberle’s retaliation claims.3

B. Eberle’s claims for age discrimination under the ADEA based

on his non-promotions in Houston, Safford, and Edgefield

fail to raise a genuine issue of material fact

1. ADEA Claim for Non-Promotion in Houston
4 See 29 U.S.C. § 631 (stating that the prohibitions in the

ADEA “shall be limited to individuals who are at least 40 years

of age”).

-15-

Eberle next argues that the district court did not

thoroughly consider the evidence regarding his failure-to-promote

claim for the Houston position. Specifically, Eberle claims that

he was better qualified and more experienced than Ken Brooks, the

applicant selected for the position. 

Because Eberle’s ADEA claim is based on circumstantial

evidence, it is governed by the burden-shifting framework set

forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973). See Medina, 238 F.3d at 680. Under McDonnell Douglas,

the employee must first establish a prima facie case of age

discrimination, which requires the employee to prove that: (1) he

belongs to the protected class;4 (2) he applied for and was

qualified for a position for which applicants were being sought;

(3) he was rejected; and (4) either (i) someone outside the

protected class was selected, (ii) someone younger was selected,

or (iii) he was otherwise rejected because of his age. See

Rachid v. Jack in the Box, Inc., 376 F.3d 305, 309 (5th Cir.

2004). It is undisputed that Eberle belongs to the protected

class, he applied for and was qualified for the position, he was

passed over for promotion, and an applicant not within the

protected class was promoted. 

The burden therefore shifts to Defendants to articulate a
5 Eberle has not argued a mixed-motive theory. See Rachid,

376 F.3d at 312.

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legitimate, nondiscriminatory reason for their decision to select

Brooks instead of Eberle. See Medina, 238 F.3d at 680. 

Defendants offer several justifications: first, that the

selecting official for Houston did not know the ages of the

applicants on the best qualified list (a list that included

Eberle, Brooks, and six other applicants); second, that the

promotion plan allowed the selecting official to select any

applicant from the best qualified list; and finally, that the

selecting official was looking for someone with a background in

electronics and communications and that Brooks fit that

description.

Because Defendants have sustained their burden of

production, Eberle must raise a genuine issue of material fact as

to whether Defendants’ proffered reasons were a pretext for age

discrimination.5 See id. Eberle does not confront all of

Defendants’ legitimate, nondiscriminatory reasons for selecting

Brooks; instead, he raises essentially two arguments in an effort

to show pretext. First, Eberle contends that he was clearly

better qualified than Brooks because he had taken over 104

classes at the BOP, had won numerous awards, had served as an

instructor, was bilingual, and had worked for the BOP longer than

Brooks. Second, Eberle asserts that he scored higher than Brooks

on the merit promotion ranking form, a form used to determine the
6 The “clearly better qualified” standard for showing

pretext by comparison to the preferred employee has survived the

Supreme Court’s recent rejection, in Ash v. Tyson Foods, Inc.,

546 U.S. 454, 126 S. Ct. 1195, 1197-98 (2006), of the “slap you

in the face” standard previously used by the Fifth Circuit. See

Stiner v. IBM Corp., No. 06-20588, 2007 WL 30837, at *2 n.2 (5th

Cir. Jan. 5, 2007) (unpublished).

-17-

best qualified list. For both of these reasons, Eberle argues

that he should have been selected for the Houston position.

Eberle’s belief that he was better qualified and had more

experience than Brooks does not establish pretext. Although a

genuine issue of material fact exists when evidence shows the

plaintiff was “clearly better qualified” than younger employees

who were promoted, “this evidence must be more than merely

subjective and speculative.” Nichols v. Loral Vought Sys. Corp.,

81 F.3d 38, 42 (5th Cir. 1996). Put another way, “differences in

qualifications between job candidates are generally not probative

evidence of discrimination unless those differences are so

favorable to the plaintiff that there can be no dispute among

reasonable persons of impartial judgment that the plaintiff was

clearly better qualified for the position at issue.” Deines v.

Tex. Dep’t of Protective & Regulatory Servs., 164 F.3d 277, 279

(5th Cir. 1999).6

Here, the differences in qualifications between Eberle and

Brooks are not “so widely disparate that no reasonable employer

would have made the same decision.” Id. at 282. In addition,

“greater experience alone will not suffice to raise a fact
-18-

question as to whether one person is clearly more qualified than

another. More evidence, such as comparative work performance, is

needed.” Nichols, 81 F.3d at 42. Eberle’s summary judgment

evidence does not contain sufficiently specific reasons to

support his subjective opinion that he was more qualified than

Brooks for the General Foreman position. 

Eberle’s contention that he scored higher on the merit

promotion ranking form than Brooks also does not establish that

Defendants’ reason for selecting Brooks was pretextual. 

According to the promotion plan, the scores were used to

determine which candidates would be selected for the best

qualified applicant list. Once the best qualified applicants

were selected, the selecting official could choose any candidate

from the best qualified list regardless of that applicant’s score

on the ranking form. Eberle has not adduced any competent

summary judgment evidence that the promotion plan was not

followed. 

In sum, Eberle merely speculates that age was a factor in

Defendants’ selection, but such unsubstantiated assertions are

not competent summary judgment evidence. Because Eberle has

failed to raise a genuine issue of material fact as to whether

Defendants’ proffered reasons were a pretext for age

discrimination, the district court’s summary judgment on this

issue is affirmed.

2. ADEA Claims for Non-Promotions in Edgefield
-19-

Eberle raises almost identical arguments for his nonpromotions in Edgefield as he did for his non-promotion in

Houston. He argues that neither of the selected applicants,

David Goff and Christopher Mayson, was qualified for the General

Foreman position. He again points to his awards, training

classes, and years of service with the BOP as evidence of

pretext.

Turning to the McDonnell Douglas framework, Eberle has

established a prima facie case of age discrimination. Defendants

have also met their burden of producing a legitimate,

nondiscriminatory reason for selecting Goff and Mayson instead of

Eberle. Defendants assert that the selecting official did not

consider age as a factor in his decision. Defendants also

maintain that the selecting official considered the nine best

qualified applicants, which included Eberle, Goff, and Mayson,

and selected Goff and Mayson based on their strong

administrative, communication, and written communication skills,

skills the selecting official thought were crucial for the

Edgefield positions.

The focus therefore becomes whether Eberle has met his

burden of showing that Defendants’ explanation was merely a

pretext for discrimination. Eberle makes the same attempt to

establish pretext as he did for the Houston position: that he is

clearly better qualified than Goff and Mayson, and that his score

on the ranking form used for determining the best qualified list
-20-

was higher than those of the applicants ultimately selected. For

all of the reasons stated above, Eberle has failed to create a

jury issue that Defendants’ stated reasons for not promoting

Eberle were pretextual. See Nichols, 81 F.3d at 42. In

addition, none of the other evidence presented by Eberle creates

a genuine issue of material fact regarding pretext. We thus

conclude that the district court did not err in granting summary

judgment to Defendants on these Edgefield claims of age

discrimination.

3. ADEA Claim for Non-Promotion in Safford

Finally, Eberle asserts that he should have been promoted to

the General Foreman in Safford because he was more qualified and

more experienced than John Hughes, the applicant who was selected

from the best qualified list, a list that also included Eberle

and four other applicants. 

Under McDonnell Douglas, Eberle must first raise a genuine

issue of material fact as to each element of his prima facie case

for age discrimination. See Rachid, 376 F.3d at 309. Eberle has

failed to satisfy his burden. John Hughes is one and one-half

years older than Eberle. In addition, Eberle has not set forth

any competent summary judgment evidence that he was otherwise not

promoted because of his age. Accordingly, we affirm the district

court’s judgment on this issue. 

C. Eberle’s arguments that he is entitled to a jury trial and

that he was denied discovery lack merit
-21-

Finally, Eberle argues that it was inappropriate for the

district court to dismiss his case on summary judgment grounds

and to deny him the opportunity to present his evidence to a

jury. He further claims that he was denied discovery.

These contentions are frivolous. Federal Rule of Civil

Procedure 56(c) requires the court to render summary judgment if

the appropriate materials on file “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.” As this court has

explained, “[t]he function of the jury is to try the material

facts; where no such facts are in dispute, there is no occasion

for jury trial. Thus the right to trial by jury does not prevent

a court from granting summary judgment.” Plaisance v. Phelps,

845 F.2d 107, 108 (5th Cir. 1988). When the district court

properly entered summary judgment on Eberle’s claims, his demand

for a jury trial became moot. See id.

Equally without merit is Eberle’s argument that he was

denied discovery. All discovery in Eberle’s case was to be

completed on or before January 31, 2006, approximately three

weeks before the deadline for dispositive motions. These dates

were established in a September 1, 2005, scheduling order. The

district court allowed Eberle adequate time to complete his

discovery. Eberle never requested to continue discovery beyond

the deadline. Consequently, the district court committed no

error. 
-22-

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.

AFFIRMED.