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that this opinion should not be published and is not precedent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

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 01-10655 

Summary Calendar

____________________

JANET SCOTT

Plaintiff-Appellant

v.

DMN INC, doing business as THE DALLAS MORNING NEWS

Defendant-Appellee

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

No. 3:99-CV-2776-L

_________________________________________________________________

January 22, 2002

Before KING, Chief Judge, and JOLLY and DeMOSS, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Janet Scott appeals the district court’s

summary judgment in favor of Defendant-Appellee DMN, Inc., d/b/a

The Dallas Morning News on her claim alleging employment
2 Scott was actually employed by DMN’s subsidiary, DFW

Suburban Newspapers, Inc.

2

discrimination based on race. For the following reasons, we

AFFIRM.

I. FACTUAL AND PROCEDURAL HISTORY

In June of 1998, Defendant-Appellee DMN, Inc. d/b/a The

Dallas Morning News (“DMN”) terminated its telemarketing

employee, Plaintiff-Appellant Janet Scott. Beginning on April

24, 1998, Scott failed to report to work, and after April 28,

1998, she failed to contact the employer at any time. Scott also

failed to provide any documentation explaining her absence.2 On

December 8, 1999, Scott filed an employment discrimination claim

against DMN, alleging that her discharge was based on race in

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

VII”), 42 U.S.C. § 2000e et seq. (1994). On February 7, 2001,

DMN moved for summary judgment. Scott failed to file any brief

in opposition to DMN’s motion for summary judgment. The district

court then granted summary judgment in favor of DMN.

II. STANDARD OF REVIEW

We review summary judgment de novo, applying the same

standard as the district court. Chaney v. New Orleans Pub.

Facility Mgmt., Inc., 179 F.3d 164, 167 (5th Cir. 1999). Summary

judgment is appropriate when there is no genuine issue as to any

material fact, and the moving party is entitled to judgment as a
3

matter of law. FED. R. CIV. P. 56(c). We view the evidence in

the light most favorable to the non-movant. Coleman v. Houston

Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997). However,

the non-movant must go beyond the pleadings and come forward with

specific facts indicating a genuine issue for trial. Celotex

Corp. v. Catrett, 477 U.S. 317, 324 (1986). When the non-movant

fails to oppose the motion for summary judgment, the non-movant

may not rest on the unverified complaint, but must point to

evidence in the record in the form of affidavits, filed

depositions, filed answers to interrogatories, or filed

admissions. Solo Serve Corp. v. Westowne Associates, 929 F.2d

160, 165, n.17 (5th Cir. 1991) (citing FED. R. CIV. P. 56(c)).

III. DISCUSSION

To establish a claim of racial discrimination in violation

of Title VII based on discriminatory discharge, a plaintiff must

first establish a prima facie case, including four elements: (1)

that she is a member of a protected group; (2) that she was

qualified for the position held; (3) that she was discharged; and

(4) that she was replaced by someone outside of the protected

group. Byers v. Dallas Morning News, Inc., 209 F.3d 419, 426

(5th Cir. 2000). If the plaintiff discharges this burden, the

burden then shifts to the defendant employer to come forward with

a legitimate non-discriminatory reason for the challenged

discharge. Id. at 425 (citing McDonnell Douglas Corp. v. Green,
3 Scott does not point to any evidence in the record

indicating that she was replaced by a worker outside her

protected minority class to satisfy the fourth prima facie

element. The district court did not address this failure,

apparently assuming that Scott established a prima facie case. 

In Byers, we noted that the fact that an employee was not

replaced by someone outside her protected class, while not

“irrelevant,” is not dispositive and “‘does not negate the

possibility that the discharge was motivated [by] discriminatory

reasons.’” 209 F.3d at 426-27 (quoting Nieto v. L & H Packing

Co., 108 F.3d 621, 624 n.7 (5th Cir. 1997)). We also noted,

however, that a plaintiff must still come forward with sufficient

evidence of discriminatory intent to succeed on her claim. Id.

4 Scott claims that the fact that there is no express rule

in DMN’s written employee policies indicating that an employee

will be terminated after three consecutive days absence offers

evidence of pretext. Although Scott is correct that DMN’s

written company policy in evidence fails to indicate any express

three-day rule, Scott admits in her deposition testimony that she

was informed of the three-day rule by DMN human resources

personnel at the time she was hired. Thus, the existence of the

4

411 U.S. 792, 802-04 (1973)). Finally, the plaintiff must come

forward with evidence establishing that the employer’s proffered

reason is pretext for discrimination based on race. Id.

(citation omitted). 

The parties do not dispute that Scott established a prima

facie case and discharged her initial burden within the

applicable McDonnell Douglas framework.3 We agree with the

district court that DMN then discharged its burden by coming

forth with a legitimate non-discriminatory reason for terminating

Scott - namely, that Scott violated DMN’s established attendance

policy by failing to report to work for at least three

consecutive days without providing documentation explaining her

absence and thus was terminated for job abandonment.4 We further
three-day rule as an established DMN termination policy is

uncontroverted.

5 Scott also claims that Davie manipulated calculation of

her pay from telemarketing sales to reduce it after the

altercation. Scott admits in her deposition, however, that she

5

agree with the district court that Scott failed to adduce

evidence indicating a material issue of fact as to whether DMN’s

proffered reason for discharging her was pretext for racial

discrimination.

It is uncontroverted in the record that Scott had an

altercation with her direct supervisor, Roland Davie, on December

16, 1997. In Scott’s deposition testimony supplied by DMN as

part of the employer’s motion for summary judgment, Scott claims

that during this altercation, Davie called her a “nigger” and hit

her in the face. Scott further testified that she provided

written documentation of her version of events to DMN’s human

resources personnel. Scott also testified that Davie told racial

jokes on a regular basis, at a frequency of two or three times

per week, two of which Scott recounted in detail. 

DMN disputes these facts and claims, via the affidavit of

its human resources manager, Rita Olivarez, that Scott never

included reference to any racial epithets allegedly uttered by

Davie in her descriptions to Olivarez of the altercation with

Davie, nor provided any written documentation of the altercation,

nor ever informed any DMN human resources employee that Davie

told racial jokes or used racial epithets at any other time.5
was aware that other employees experienced the same problems with

improperly calculated pay and that a DMN customer service

manager, Justice Thornburg, informed her that it was due to

computer malfunction.

6

DMN further disputes Scott’s claim that a company employee told

Scott several days after the December altercation that Scott

could only return to DMN’s employ if she would not sue them,

presumably for any claim arising from the altercation with Davie. 

It is undisputed that after the December altercation, Scott

returned to her telemarketing position and continued to work

through April 23, 1998. Although Scott’s claims may create an

issue of fact permitting an inference of impropriety in Davie’s

behavior toward her up to and including the events of December

16, 1997, they are not material to Scott’s claim that her

discharge five months later was based on race and not her

unexplained absences.

Scott offers no evidence linking her alleged racially

offensive interactions and altercation with Davie, up to and

including December 16, 1997, to her discharge in June of 1998. 

Scott points to no evidence controverting DMN human resources

manager Olivarez’s affidavit testimony that Scott was terminated

not because of Scott’s interaction with Davie, but because Scott

failed to report to work for at least three consecutive days

commencing April 24, 1998, more than five months after the

altercation with Davie. Olivarez testified that she was never

made aware of any further problems between Davie and Scott
7

occurring after the December 16 incident. Scott admits in her

own deposition that neither Davie, nor any other employee of DMN,

used any racial epithets or behaved in any other offensive manner

toward her with respect to race after the alleged December

incident. 

Scott further fails to offer any evidence controverting

Olivarez’s testimony that on April 28, after Scott had been

absent three consecutive days, Olivarez warned Scott that Scott

would need to provide documentation of her claimed medical excuse

for the absence. Scott admits that she never supplied any such

documentation and that she never reported to work after April 23

or contacted DMN after April 28. It is likewise uncontroverted

that DMN terminated Scott in early June 1998, at least a month

after Scott failed to return to work at DMN or to contact the

employer. Scott further admitted in her deposition that she

believed that if she had continued to report to work, DMN would

not have terminated her. Finally, Scott offers no evidence that

Davie participated in any way in DMN’s decision to discharge her. 

Even viewing the evidence in the record in the light most

favorable to Scott, she fails to point to evidence in dispute

that would allow a reasonable trier of fact to conclude that

DMN’s decision to terminate her because of consecutive

unexplained absences was pretext for discrimination based on

race. The district court did not err, therefore, in granting
8

summary judgment to DMN on Scott’s claim that her discharge was

based on race.

IV. CONCLUSION

For the foregoing reasons, the district court’s summary

judgment in favor of DMN on Scott’s Title VII race discrimination

claim is AFFIRMED.