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. 08-11060

Summary Calendar

DALE MICHELE STINGLEY

Plaintiff-Appellant

v.

DEN-MAR INC; RAIL UNLIMITED INC

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:07-cv-673

Before DAVIS, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Dale Michele Stingley, pro se, appeals the district

court’s order granting summary judgment to Defendants-Appellees Den-Mar,

Inc. and Rail Unlimited, Inc. (collectively “Den-Mar”) on her sexual harassment

and retaliation claims under Title VII. For the following reasons, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 9, 2006, Stingley began working as a clerk at Den-Mar under

United States Court of Appeals

Fifth Circuit

F I L E D

September 1, 2009

Charles R. Fulbruge III

Clerk
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2

the supervision of John Muldrow. One month later, Stingley reported to DenMar’s human resources director, Kenneth Doake, that Muldrow had been

sexually harassing her. That afternoon (a Friday), Doake contacted Muldrow to

advise him of the complaint. The following Tuesday, Muldrow stopped reporting

to work. As of the second no-show day, he effectively resigned per company

policy. Doake promptly notified Stingley of Muldrow’s resignation, and she

agreed with Doake that further action was unnecessary. Ron French became

Stingley’s new supervisor.

On December 30, 2006, Stingley sent Doake another letter to report

disagreeable conduct by a coworker, Nina Tillmon. In the letter, Stingley stated

that she felt uncomfortable when Tillmon engaged in extensive phone calls with

Muldrow at the office, allegedly discussing what had happened to him. She

further alleged that Tillmon—as a result of these calls—maliciously disparaged

her to other co-workers, causing at least one other person to treat her less

cordially and implied that Tillmon’s actions were leading to an untenable work

environment. Due to severe weather problems delaying mail delivery, Doake

received the letter on January 18, 2007, and quickly asked French to investigate

the matter. On January 25, 2007, French met with Tillmon to discuss his

investigation. The next day, Tillmon abandoned her position and effectively

resigned. Thereafter, Stingley reported no further acts of harassment or

retaliation to Doake.

On March 7, 2007, French contacted Doake to suggest eliminating the

clerk position, along with a permanent layoff of Stingley, purportedly as part of

a company-wide plan to cut costs after the loss of a lucrative contract. Doake

agreed and scheduled Stingley’s employment termination for March 17, 2007.

On March 12, 2007, Stingley left French a note on his desk, in which she

objected to his “rude and moody” treatment of her. This led French to contact

Doake the next day and suggest accelerating her termination. Doake responded
No. 08-11060

3

that, despite the note, they would “stay with the plan.” Den-Mar terminated

Stingley’s employment on March 17, 2007, as scheduled.

After submitting a complaint to the EEOC and receiving a Dismissal and

Notice of Rights, Stingley timely filed suit against Den-Mar asserting three Title

VII claims, which she characterized as sexual harassment, hostile work

environment, and wrongful termination. Den-Mar later moved for summary

judgment on Stingley’s claims. The district court denied summary judgment on

Singley’s sexual harassment claim but granted Den-Mar’s motion for summary

judgment on her remaining claims.

The district court later ordered Stingley to present evidence on a necessary

(but unchallenged) element of the sexual harassment claim—that the alleged

harassment affected a term or condition of her employment—to avoid a sua

sponte grant of summary judgment for Den-Mar on that claim as well. Stingley

filed a motion for reconsideration of the first summary judgment order and a

response to the court’s sua sponte order regarding her sexual harassment claim.

The district court denied Stingley’s motion for reconsideration, granted summary

judgment in favor of Den-Mar on Stingley’s sexual harassment claim, and

entered a final judgment dismissing all of her claims. Stingley timely appealed.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to review the final judgment of the district court

pursuant to 28 U.S.C. § 1291.

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

standard as the district court. Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d

802, 805 (5th Cir. 2007). A district court’s grant of summary judgment is proper

when “there is no genuine issue as to any material fact and . . . the movant is

entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c); see also

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We may affirm

summary judgment, regardless of the district court’s rulings, if the record
No. 08-11060

4

contains an adequate and independent basis for that result. Degan v. Ford

Motor Co., 869 F.2d 889, 892 (5th Cir. 1989).

III. DISCUSSION

Because Stingley proceeds pro se, we construe her arguments liberally.

See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). Broadly construing

Stingley’s brief, she argues that (1) the district court erred in granting summary

judgment on her sexual harassment claim sua sponte, (2) a genuine issue of

material fact existed on her sexual harassment claim, (3) the district court erred

in “merging” her retaliation and retaliatory discharge claims, and (4) the

district court erred in granting summary judgment on her retaliation and

retaliatory discharge claims on grounds different from those that Den-Mar

raised.

A. Sexual Harassment Claim

We first address the issues concerning Stingley’s sexual harassment

claim. To establish a prima facie case of sexual harassment by a supervisor

under Title VII, an employee must show: “(1) that [she] belongs to a protected

class; (2) that [she] was subject to unwelcome sexual harassment; (3) that the

harassment was based on sex; and (4) that the harassment affected a term,

condition, or privilege of employment.” Aryain v. Wal-Mart Stores Tex. LP, 534

F.3d 473, 479 (5th Cir. 2008) (quotation marks omitted). The district court

notified Stingley of its intention to sua sponte grant summary judgment on

Stingley’s sexual harassment claim. After considering her response, the court

held that Stingley had failed to establish a genuine issue of material fact as to

whether the alleged harassment affected a term or condition of her employment.

We agree.

Stingley first argues that the district court erred in acting sua sponte to
No. 08-11060

Stingley also asserts that the district court’s sua sponte decision, after denying Den- 1

Mar’s motion for summary judgment on the same claim, amounts to a form of double jeopardy

and abuse of discretion. These arguments lack merit. The Double Jeopardy Clause applies

to the imposition of punishment, see Hudson v. United States, 522 U.S. 93, 99 (1997), and

neither the district court’s initial denial nor subsequent grant of summary judgment can be

considered a punishment. The district court also had inherent authority to re-examine the

merits of summary judgment and could not abuse its discretion by doing so.

5

grant Den-Mar summary judgment on her sexual harassment claim. It is well 1

settled that a district court can grant summary judgement sua sponte so long

as the adverse party had adequate notice to come forward with all of its

evidence. See Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986); see also Love

v. Nat’l Med. Enters., 230 F.3d 765, 770–71 (5th Cir. 2000). A court provides a

party with adequate notice by adhering to the same time frame prescribed for

a party’s motion for summary judgment, which is at least ten days before the

day set for the hearing. See Love, 230 F.3d at 770; see also FED. R. CIV. P. 56(c).

Here, the district court notified Stingley—in an order dated September 12,

2008—to “file whatever she wishe[d] to file” by September 26, 2008, on whether

it should make a sua sponte ruling. Because the court provided Stingley ten

business days (within which she in fact filed a response) and implicit

instructions to present sufficient evidence, we find she had adequate notice.

Therefore, the district court did not err in acting sua sponte to grant summary

judgment on Stingley’s sexual harassment claim.

Stingley also argues that she presented genuine issues of material fact

that warranted the denial of summary judgment on her sexual harassment

claim. Upon receiving the district court’s notice of potential sua sponte ruling,

which pointed out a lack of evidence that the alleged harassment affected a

term or condition of Stingley’s employment, Stingley bore the burden of going

beyond her pleadings and presenting sufficient evidence to the contrary. See

Celotex, 477 U.S. at 325. To do so, she had to present evidence establishing that

the alleged harassment was sufficiently severe or pervasive so as to alter her
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6

working conditions or create an abusive working environment. Aryain, 534

F.3d at 479.

This Stingley failed to do, as most of the materials she presented did not

constitute competent summary judgment evidence. Federal Rule of Civil

Procedure 56 sets out the standards for summary judgment and generally

requires that evidence be sworn, certified, or verified material for a court to

consider it. See FED. R. CIV. P. 56(c), (e); Lodge Hall Music, Inc. v. Waco

Wrangler Club, Inc., 831 F.2d 77, 80 (5th Cir. 1987); see also King v. Dogan, 31

F.3d 344, 346 (5th Cir. 1994). Here, the competent summary judgment evidence

consists of Doake’s affidavit submitted in support of Den-Mar’s motion, DenMar’s thirteen referenced and verified exhibits, and Stingley’s one opposing

affidavit. Although Stingley’s affidavit references many—but not all—of her

exhibits, as well as her response to Den-Mar’s motion for summary judgment,

she had neither her exhibits nor her response properly sworn or certified as

required. Stingley’s complaint and other pleadings were similarly unverified.

Thus, neither the factual allegations in Stingley’s complaint or response, nor

any of the facts in the unauthenticated documents attached and referred to in

her affidavit, are competent summary judgment evidence.

Further, none of the competent summary judgment evidence sets forth

any facts substantiating Stingley’s allegations of sexual harassment. As

Stingley admits, she wrote her affidavit to dispute the factual assertions in

Doake’s affidavit. But none of the facts Stingley disputes help her meet the

burden of proving that the alleged harassment affected a term or condition of

her employment. For example, Stingley disputes that her initial call to Doake

occurred on November 10 instead of November 11, that Doake incorrectly

recounted what he told Muldrow, and that Doake actually investigated her

claim. None of these facts tend to show severe or pervasive harassment by

Muldrow; rather, they reflect disputes as to whether Den-Mar promptly and
No. 08-11060

 Stingley contends on appeal that Den-Mar mischaracterized her hostile work 2

environment claim as a retaliation claim. But neither Stingley’s complaint nor her response

to Den-Mar’s motion for summary judgment alleged that Tillmon’s hostile treatment,

individually or in concert with Muldrow, was based on her gender or any other characteristic

protected under Title VII. Rather, Stingley alleged that Tillmon mistreated her because of the

sexual harassment complaint against Muldrow. Stingley’s further allegations in her response

regarding French’s conduct similarly sound of retaliation. Therefore, liberally construing

Stingley’s pro se brief, we construe her second and third claims as claims of retaliation.

7

adequately addressed her complaint. The competent evidence, viewed in the

light most favorable to Stingley, establishes that she reported acts of sexual

harassment by Muldrow to Doake, that Doake took action in response, and that

Muldrow resigned several days later. Beyond these basic facts, we will not

presume as true any of Stingley’s allegations and assertions because she did not

present sworn statements as to Muldrow’s acts of sexual harassment. In sum,

none of the competent summary judgment evidence sets forth specific facts

demonstrating the severity or pervasiveness of the alleged sexual harassment.

We conclude that Stingley did not present a genuine issue of material fact

that would warrant a denial of summary judgment on her sexual harassment

claim. We therefore affirm the district court’s decision on this claim.

B. Retaliation and Retaliatory Discharge Claims

Stingley also appeals the district court’s decision on her retaliation and

retaliatory discharge claims. To establish a prima facie case of retaliation 2

under Title VII, an employee must show: “(1) that she engaged in a protected

activity; (2) that an adverse employment action occurred; and (3) that a causal

link existed between the protected activity and the adverse action.” Baker v.

Am. Airlines, Inc., 430 F.3d 750, 754 (5th Cir. 2005) (quotation marks omitted,

numbering added). Stingley asserts that the district court erred in “merging”

her claims and in granting summary judgment on grounds other than those

raised by Den-Mar. We need not address these issues, however, because we

find that the record contains an adequate and independent basis to grant
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8

summary judgment when assessing these claims on the grounds that Den-Mar

did raise.

As to Stingley’s retaliation claim, she contends that Tillmon and French

perpetuated a hostile work environment in retaliation for Muldrow’s

termination due to Stingley’s sexual harassment complaint. In its motion for

summary judgment, Den-Mar asserted that Stingley could not prove Tillmon’s

alleged retaliatory conduct amounted to an adverse employment action. We

agree.

An adverse employment action is one that “a reasonable employee would

have found . . . [to be] materially adverse, which in this context means it well

might have dissuaded a reasonable worker from making or supporting a charge

of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68

(2006) (quotation marks omitted). As with Stingley’s sexual harassment claim,

the record contains no competent evidence to substantiate Stingley’s allegation

that she was subject to an adverse employment action. Stingley offered two

pieces of evidence: (1) a letter she sent to Doake, reporting her belief that

Tillmon maliciously talked about her and caused others to treat her less

cordially, and (2) the note Stingley left on French’s desk, protesting his rude

and disrespectful treatment of her. But Stingley’s letter to Doake does nothing

to substantiate the alleged harassment, as it is only evidence that she sent a

letter and not that the events described in the letter actually occurred. And

Stingley’s note to French, in addition to being unverified, fails to recount any

specific facts regarding French’s behavior. In short, we find the record

insufficient to raise a genuine issue of fact as to whether Stingley suffered a

materially adverse employment action for this claim. Given that Den-Mar’s

motion for summary judgment provided Stingley proper notice to present

sufficient evidence to prove an adverse employment action, we affirm the

district court’s grant of summary judgment on Stingley’s retaliation claim.
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Finally, as to Stingley’s retaliatory discharge claim, she asserts that she

was terminated in retaliation for engaging in Title VII-protected activity. In its

motion for summary judgment, Den-Mar argued that Stingley could not prove

a causal link between the protected activity of her filing a sexual harassment

complaint and her employment termination. We agree.

When a plaintiff presents no direct evidence of retaliation, she bears the

initial burden of establishing a causal link “through circumstantial evidence of

a retaliatory motive.” Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 n.6

(5th Cir. 2003). “If the plaintiff succeeds in offering circumstantial evidence in

support of each element of her claim, she creates a . . . presumption of

retaliation, and the burden shifts to the employer to demonstrate a legitimate

reason for the adverse employment action.” Id. “If the employer produces

evidence of a legitimate reason for the action, the burden shifts again to the

plaintiff to rebut the employer’s non-retaliatory rationale.” Id.

Even assuming that Stingley satisfied her initial burden, she has not

shown that Den-Mar’s legitimate, non-retaliatory reason for terminating her

employment—to reduce its workforce after losing a lucrative contract—was

pretext for an actual retaliatory reason. The only fact Stingley specifically

disputes as to pretext is an inconsistency in the reason Doake provided for her

discharge. In his affidavit, Doake asserted that Den-Mar lost the lucrative

contract, but in his position statement to the EEOC, he asserted that Rail

Unlimited—the sister company named as co-defendant—lost the lucrative

contract. We find this discrepancy, without more, insufficient to cast doubt on

the legitimacy of Den-Mar’s business reason for terminating Stingley’s

employment. The same goes for the temporal proximity between any protected

activity and Stingley’s termination; although temporal proximity can establish

a prima facie case of retaliation, it cannot—standing alone—rebut an

employer’s legitimate, nondiscriminatory reason for the employment action. See
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Strong, 482 F.3d at 808.

Given that Den-Mar’s motion for summary judgment provided Stingley

with proper notice to present sufficient evidence to prove a causal link, and that

she failed to do so, we affirm the district court’s dismissal of Stingley’s

retaliatory discharge claim.

IV. CONCLUSION

Although Stingley appears to ultimately and unknowingly lose on a

procedural misstep related to the presentation of her evidence rather than on

the potential merits of her claims, a district court has no obligation to provide

a pro se litigant with particularized instructions on the requirements and

consequences of summary judgment. See Martin v. Harrison County Jail, 975

F.2d 192, 193 (5th Cir. 1992). The published rules of procedure afford pro se

litigants sufficient notice of what steps to take in a summary judgment

proceeding, see id., and the decision of whether to give parties the opportunity

to remedy material presented for summary judgment is within the discretion

of the district court, see Gordon v. Watson, 622 F.2d 120, 123 (5th Cir. 1980)

(per curiam).

Accordingly, we conclude that the competent summary judgment evidence

presents neither disputed material facts nor a basis upon which a reasonable

jury could return a verdict for Stingley. The absence of evidence to support

Stingley’s claims entitles Den-Mar to summary judgment. We therefore

AFFIRM the judgment of the district court.

AFFIRMED.