* 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that this opinion should not be published and is not precedent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. 97-10655

Summary Calendar

____________________

JANET TIMMERMAN,

Plaintiff-Appellant,

v.

IAS CLAIM SERVICES INCORPORATED,

Defendant-Appellee.

________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

(3:96-CV-16-R)

_________________________________________________________________

February 20, 1998

Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PER CURIAM:*

Plaintiff-appellant Janet Timmerman appeals the district

court’s grant of summary judgment in favor of defendant-appellee

IAS Claim Services, Inc. on her claims of age discrimination,

reverse race discrimination, and retaliation. We affirm the
2

judgment of the district court.

I. FACTUAL & PROCEDURAL BACKGROUND

In September 1993, defendant-appellee IAS Claim Services,

Inc. (IAS) hired plaintiff-appellant Janet Timmerman as a

temporary employee in its accounting department. In May 1994,

Timmerman resigned and accepted a position at another company,

but within approximately two weeks she returned to her previous

temporary position at IAS.

In August 1994, IAS reorganized its accounting department in

a manner that included the elimination of some temporary

accounting positions and the creation of permanent ones. On

August 30, 1994, IAS notified Timmerman in writing that her

services would not be required after September 15, 1994. IAS

indicated that Timmerman was terminated because she was

overqualified for the available permanent position and her

temporary position was being eliminated.

On September 2, 1994, however, Timmerman received another

letter informing her that she was being terminated as of that

day. The letter indicated that the reason for her early

termination was that she had conducted herself in an

unprofessional manner and disrupted the department by complaining

to her supervisor, Leigh Walk, and to other employees that she

was being treated unfairly.

At the time of her termination, Timmerman, who is white, was
3

fifty-five years old and had worked in IAS’s accounting

department for almost one year. IAS hired a black man who was

younger than Timmerman to fill the permanent position.

Approximately five months after her termination, Timmerman

filed an administrative complaint with the Texas Commission on

Human Rights, claiming that she was “discriminated against on the

basis of [her] race, color, sex, and age and in retaliation for

protected activity in violation of Title VII.”

On December 1, 1995, Timmerman filed suit against IAS in

state court claiming that IAS violated her rights by engaging in

age discrimination, reverse racial discrimination, and

retaliation in violation of state and federal law. IAS removed

the case to federal court and later filed a motion for summary

judgment on all of Timmerman’s claims. On May 19, 1997, the

district court granted IAS’s motion and dismissed the case with

prejudice. Timmerman timely filed this appeal.

II. SUMMARY JUDGMENT STANDARD

We review a grant of summary judgment de novo, applying the

same criteria that the district court used in the first instance. 

Kemp v. G.D. Searle & Co., 103 F.3d 405, 407 (5th Cir. 1997). We

consult the applicable law in order to ascertain the material

factual issues, and we then review the evidence bearing on those

issues, viewing the facts and inferences to be drawn therefrom in

the light most favorable to the nonmovant. King v. Chide, 974
4

F.2d 653, 656 (5th Cir. 1992). 

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 judgment as a matter of law.” FED. R. CIV. P.

56(c). We note, however, that “[t]he mere existence of a

scintilla of evidence in support of the plaintiff’s position will

be insufficient” to preclude summary judgment; “there must be

evidence on which the jury could reasonably find for the

plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252

(1985). 

III. DISCUSSION

A. Retaliation

The district court concluded that Timmerman failed to

establish even a prima facie case of retaliation. This court has

held that 

[t]o establish a prima facie case of retaliatory

discharge under § 2000e-3(a) of Title 42, a plaintiff

must demonstrate (1) that he engaged in activity

protected by Title VII, (2) that an adverse employment

action occurred, and (3) that a causal link between

participation in the protected activity and the adverse

employment decision exists. 

Anderson v. Douglas & Lomason Co., 26 F.3d 1277, 1300 (5th Cir.

1994) (footnote omitted). The district court found that

Timmerman did not engage in any protected activities and
1 As we conclude that Timmerman failed to establish a

prima facie case of retaliatory discharge, we do not address her

complaint that the district court considered incompetent summary

judgment evidence pertaining to IAS’s stated business reason for

her termination.

5

therefore failed to meet the first prong of this test. Timmerman

contends that her complaints that she was being treated

“unfairly” equate to complaints of discrimination and that she

therefore did engage in activity protected by Title VII. We

disagree.

Despite Timmerman’s protestations to the contrary, illegal

discrimination is indeed something different from simple unfair

treatment. As we have previously stated, “it has long been the

law in this circuit that Title VII . . . do[es] not protect

against unfair business decisions[,] only against decisions

motivated by unlawful animus.” Nieto v. L&H Packing Co., 108

F.3d 621, 624 (5th Cir. 1997) (internal quotation marks omitted)

(alteration in original). As Timmerman has offered no evidence

that she complained of discrimination prohibited by Title VII,

she has failed to establish a prima facie case of retaliatory

discharge, and the district court was correct to grant summary

judgment on this claim.1 

B. Reverse Racial Discrimination & Age Discrimination

The district court determined that although Timmerman

alleged facts sufficient to establish a prima facie case of both

reverse racial discrimination and age discrimination, she failed
2 As the same issues pervade each of these claims, we

discuss them together. Guthrie v. Tifco Indus., 941 F.2d 374,

376 (5th Cir. 1991) (“The elements of a Title VII case . . .

apply to suits arising under the ADEA.”); see also Burns v. Texas

City Ref., Inc., 890 F.2d 747, 750 (5th Cir. 1989) (“In ADEA

cases in which there is no direct evidence of age discrimination,

the same evidentiary procedure formulated for Title VII cases

applies.”).

 

3 There is some confusion in this circuit as to when a

white plaintiff may satisfy the first prong of this test. 

Compare Flanagan v. Aaron E. Henry Community Health Servs. Ctr.,

876 F.2d 1231, 1233 (5th Cir. 1989) (requiring that a white

plaintiff show that she was a minority within the Health Center

in order to establish a prima facie case of reverse racial

discrimination), with Singh v. Shoney’s, Inc., 64 F.3d 217, 219

(5th Cir. 1995) (stating only that a plaintiff must show that she

6

to create a fact issue as to whether IAS’s proffered business

reason for not hiring her as a permanent employee was a pretext

for race or age discrimination.2 Timmerman argues on appeal that

the district court (1) incorrectly required her to present

“conclusive proof” of discrimination in order to survive summary

judgment, (2) improperly construed IAS’s assertion that Timmerman

was overqualified for the job as a nondiscriminatory reason for

not offering her a permanent position, (3) considered incompetent

evidence supporting IAS’s proffered reason for not offering her a

permanent position, and (4) erred in refusing to consider her

evidence rebutting IAS’s proffered reason for not hiring her. 

These arguments lack merit.

The district court determined that Timmerman established a

prima facie case of reverse racial discrimination by showing that

she was a member of a protected class,3 she was qualified for the
was a member of a “protected group” in order to make out a prima

facie case of reverse racial discrimination and implying that a

white plaintiff claiming race discrimination satisfies this

standard). See generally, 1 BARBARA LINDEMANN ET AL., EMPLOYMENT

DISCRIMINATION LAW 1041 (3d ed. 1996) (noting that “most courts have

suggested that majority-group plaintiffs must offer some

evidence, beyond the remaining elements of the McDonnell Douglas

test, in order to establish a prima facie case” of reverse racial

discrimination). For purposes of this discussion, however, we

assume that Timmerman has established a prima facie case of

reverse racial discrimination.

7

job, she was discharged, and the position was filled by someone

not within her protected class. See Young v. City of Houston,

Texas, 906 F.2d 177, 180 (5th Cir. 1990). Both sides agreed for

purposes of the summary judgment motion that Timmerman

established a prima facie case of age discrimination. 

Although the plaintiff always retains the “ultimate burden

of persuasion” to demonstrate that a challenged employment action

was the result of intentional discrimination, once Timmerman

established a prima facie case of each type of discrimination,

the burden of going forward shifted to the defendant to provide

evidence of a legitimate, nondiscriminatory reason for its

decision. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511,

506-08 (1993); see also Texas Dep’t of Community Affairs v.

Burdine, 450 U.S. 248, 252-53 (1981). IAS claims that it

legitimately refused to offer Timmerman permanent employment

because its restructuring of the accounting department eliminated

her temporary position and because she was overqualified for the

newly created permanent position dealing exclusively with the
4 Timmerman complains that the district court improperly

relied on incompetent and controverted summary judgment evidence

supporting IAS’s business reason for not offering her a permanent

position. Specifically, Timmerman argues that the district court

considered an unverified letter written to Timmerman by Walk and

the affidavit of Keith Weitzman, Timmerman’s immediate

supervisor. In addition, Timmerman argues that the district

court erred in relying on statistical studies offered by IAS. 

These claims lack merit. Assuming that Timmerman preserved these

objections, which is not entirely clear from the record, we are

not persuaded that the district court improperly considered any

inadmissible summary judgment evidence. 

The letter from Walk was properly authenticated in

Weitzman’s affidavit. Moreover, Timmerman herself identified it

in her deposition as the letter she received from Leigh Walk. 

As to Weitzman’s affidavit, we have held that “‘on a motion

for summary judgment a court will disregard only the inadmissible

portions of a challenged affidavit offered in support of or

opposition to the motion and will consider the admissible

portions in determining whether to grant or deny the motions.’” 

Williamson v. United Stated Dep’t of Agriculture, 815 F.2d 368,

383 (5th Cir. 1987) (quoting Lee v. National Life Assurance Co.,

632 F.2d 524, 529 (5th Cir. 1980)). In the absence of any

evidence supporting Timmerman’s assertion that the district court

improperly relied on any inadmissible portions of the affidavit,

we presume that it did not. See id. 

Finally, Timmerman claims that the trial court erroneously

relied on statistics, derived from a list containing the names,

positions, sex, race, and age of all of IAS’s employees, that

indicated that “upon Plaintiff’s termination, 58% of IAS

employees were age 40 or older, and 41% were at least age 50.” 

While Timmerman may be correct that better evidence would include

a comparison of the percentages of temporary and permanent

employees in each group, that argument alone does not make the

list irrelevant, especially as Timmerman failed to offer such

statistics herself even though they were easily ascertainable

from the list submitted by IAS. Thus, we conclude that it was

not improper for the district court to consider the summary

judgment evidence about which Timmerman complains.

8

collection of past-due accounts and had expressed dissatisfaction

when doing such work in the past.4 

Once IAS proffered its reason for the discharge, the burden
9

of going forward shifted back to Timmerman, who, in order to

survive IAS’s motion for summary judgment, was required to

demonstrate that a material question of fact existed as to

whether IAS’s proffered reason for not hiring her was merely a

pretext for discrimination. See St. Mary’s Honor Ctr., 509 U.S.

at 509 (“By producing evidence (whether ultimately persuasive or

not) of nondiscriminatory reasons, [defendants] sustained their

burden of production.”). The district court found that Timmerman

failed to offer any evidence to support her argument that IAS’s

purported explanation was pretextual, and it therefore granted

summary judgment for IAS. We agree. 

In both her opposition to IAS’s motion for summary judgment

and her briefs on appeal, Timmerman consistently argues that IAS

has failed to prove that its stated reason for discharging her

was not a pretext for discrimination. However, once the

defendant has satisfied its burden of producing evidence of a

nondiscriminatory reason for the discharge, the presumption of

discrimination created by the plaintiff’s prima facie case is

rebutted. Texas Dep’t of Community Affairs, 450 U.S. at 255. 

Thus, unless Timmerman produced some evidence that a genuine

issue of material fact existed as to whether the purported reason

for not hiring her was a pretext for age or race discrimination,

IAS was under no obligation to provide any further evidence

supporting its proffered justification. See, e.g., Waggoner v.

City of Garland, Texas, 987 F.2d 1160, 1166 (5th Cir. 1993)
5 Timmerman calls our attention to several cases from

other jurisdictions in which courts have cautioned that

overqualification is sometimes a pretext for age discrimination. 

See, e.g., Taggart v. Time Inc., 924 F.2d 43, 47-48 (2d Cir.

1991). But see Equal Employment Opportunity Comm’n v. Insurance

Co. of N. A., 49 F.3d 1418, 1421 (9th Cir. 1996) (disagreeing

with Taggart court that overqualification is always tantamount to

age discrimination). However, she cites no cases from this

circuit indicating that overqualification is always an

illegitimate reason for refusing to hire someone, and she offers

no evidence tending to indicate that it was a pretext for age

discrimination in this case. 

10

(“[Waggoner’s supervisors] may have disliked Waggoner; they may

have even sought to concoct a reason for his discharge. Yet,

unless Waggoner can connect that dislike to his age, there is no

genuine issue of material fact regarding age or age based

discrimination.”). 

Timmerman contends that the facts that she was qualified for

the position and that she was offered a permanent position four

months prior to her termination are sufficient to meet this

burden.5 In support of her arguments, Timmerman cites several

cases in which this circuit has reversed a district court’s grant

of summary judgment on the ground that the plaintiff raised a

genuine issue of material fact on the issue of pretext. These

cases are inapposite. In each instance, as Timmerman herself

notes in her brief, the plaintiff offered evidence that tended to

disprove the defendant’s proffered nondiscriminatory reason for

the discharge. See, e.g., Atkinson v. Denton Publ’g Co., 84

F.3d 144, 152 (5th Cir. 1996) (reversing a grant of summary

judgment where the plaintiff raised a fact issue as to whether
11

the employer’s explanation that the plaintiff had performance

problems was pretextual by presenting evidence that he had been

told he was doing a good job and had never received negative

performance evaluations); Hall v. Gillman, Inc., 81 F.3d 35, 37

(5th Cir. 1996) (reversing a grant of summary judgment in an age

discrimination case where the plaintiff’s evidence that he had

recently won a major sales award created a fact issue as to

whether the employer’s stated reason for the discharge--poor

sales performance--was pretextual). 

In contrast to the cases discussed above, neither

Timmerman’s argument that she is qualified for the position nor

her reliance on the fact that she was previously offered a

permanent position contradicts the employer’s explanation that

she was overqualified for the more limited duties that the new

position would entail. Moreover, the fact that IAS offered her a

permanent position four months earlier tends to disprove her

theory that IAS’s actions were motivated by illegal

discrimination on the basis of her race or her age. Cf. Brown v.

CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996) (“‘From the

standpoint of the putative discriminator, “[i]t hardly makes

sense to hire workers from a group one dislikes (thereby

incurring the psychological costs of associating with them), only

to fire them once they are on the job.”’” (quoting Proud v.

Stone, 945 F.2d 796, 797 (4th Cir. 1991) (quoting John J. Donohue

III & Peter Siegelman, The Changing Nature of Employment
12

Discrimination Litigation, 43 STAN. L. REV. 983, 1017 (1991)))). 

Finally, Timmmerman has offered no other evidence to rebut IAS’s

assertion, and “[a]bsent countervailing evidence, the trier of

fact must accept the defendant’s explanation as the real reason

for the discharge.” Guthrie v. Tifco Indus., 941 F.2d 374, 378

(5th Cir. 1991). Thus, we conclude that Timmerman has failed to

raise a genuine issue of material fact sufficient to survive a

motion for summary judgment on her claims of reverse race

discrimination and age discrimination. 

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.