*Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-11094

Summary Calendar

 

LORETTA ANDERSON,

Plaintiff-Appellant,

versus

CITY OF DALLAS,

Defendant-Appellee.

 

Appeal from the United States District Court for the

Northern District of Texas

(3:95-CV-1962-P)

 

March 19, 1997

Before GARWOOD, JOLLY and DENNIS, Circuit Judges.*

PER CURIAM:

Plaintiff-appellant Loretta Anderson (Anderson) appeals the

district court’s summary judgment dismissal of her suit against

defendant-appellee City of Dallas (the City) based on alleged race

and gender discrimination and retaliation contrary to Title VII and

age discrimination contrary to the Age Discrimination in Employment

Act in denial of three promotions in 1993 and one promotion in

1994.
2

In its well-considered memorandum opinion, the district court

held that Anderson’s claims as to the 1993 promotions were time

barred because the promotions occurred and she knew she had not

been promoted, and who had been, not later than August 12, 1993;

but she did not file her EEOC charge until February 24, 1995. The

district court alternatively held that the EEOC charge did not

encompass these promotions, as it related only to the 1994

promotion. Finally, the district court held that in any event

Anderson had not produced adequate summary judgment evidence to

sustain a finding that the City’s reasons for not selecting

Anderson for the 1993 positions, as reflected in its summary

judgment evidence, were pretextual. As to the 1994 promotion, the

district court held that Anderson had not produced adequate summary

judgment evidence to sustain a finding that the City’s reason for

not selecting Anderson——that of the four eligible applicants she

scored lowest on the tests administered for the purpose of

selecting the person to be promoted, while the individual who was

then promoted had by far the highest score——was pretextual.

In her appeal, Anderson has demonstrated no reversible error

in the district court’s judgment. To begin with, Anderson’s brief

is largely lacking in record citations, contrary to Fifth Circuit

Rule 28.2.3. Moreover, several of its contentions are only stated

in wholly conclusory form, without supporting explanation, factual

particulars, or legal argument, contrary to Fed. R. App. P.

28(a)(6). This is true, for example, of her contentions that the

summary judgment evidence shows that the City “is either equitably
3

estopped from asserting that the claims are time barred or that the

limitations was equitably tolled.” See, e.g., Al-Ra’id v. Ingle,

69 F.3d 28, 31 (5th Cir. 1995). Anderson’s pro se status counsels

indulgence, but does not justify such extensive departure from the

briefing rules. Ingle.

In any event, no reversible error is shown, and we affirm

essentially for the reasons given by the district court.

We note that Anderson did not raise her continuing violation

theory below so it is not available for her on appeal, see Savers

Federal Savings & Loan Ass’n v. Reetz, 888 F.2d 1497, 1501 (5th

Cir. 1989). Further, complaint that another is chosen for a

particular promotion position instead of the plaintiff does not

invoke the continuing violation theory, because the promotion

decision is one having “the degree of permanence . . . which should

indicate to the employee that the continued existence of the

adverse consequences of the act is to be expected without being

dependent on a continuing intent to discriminate.” Berry v. Board

of Supervisors, 715 F.2d 971, 981 (5th Cir. 1983), cert. denied,

107 S.Ct. 232 (1986). Moreover, the Title VII limitations period

commences to run at least when the plaintiff knows that she has not

been selected and that one outside of the protected class has been,

not when plaintiff “first perceives that a discriminatory motive

caused the act.” Merrill v. Southern Methodist University, 806

F.2d 600, 605 (5th Cir. 1986). See also Pacheco v. Rice, 966 F.2d

904, 906 (5th Cir. 1992); Chapman v. Homco, Inc., 886 F.2d 756, 758

(5th Cir. 1989).
4

That a position having a vacancy in which Anderson initially

expressed interest was upgraded more than two years later, and that

an upgrade had long previously unsuccessfully been sought, would

not support a finding of intentional concealment of facts giving

rise to the claim so as to establish equitable tolling. See Barrow

v. New Orleans S.S. Ass’n, 932 F.2d 473, 478 (5th Cir. 1991). That

is particularly so as there is no evidence of any inquiry in this

respect by Anderson or of any misleading by the City, nor of any

reliance by Anderson, nor of any then knowledge by Anderson’s

supervisor that the upgrade would likely take place over two years

later. And, that an upgrade had been requested is not a fact

tending to establish discrimination, there being no evidence or

assertion that any others who inquired about or applied for the job

were furnished or had information as to a possible future upgrade

which Anderson was not furnished and did not have. Anderson has

demonstrated no basis for equitable tolling as to any of the 1993

promotions.

Finally, as the district court held, Anderson has not produced

evidence which would sustain a finding that the City’s reasons for

any of its challenged promotion decisions were pretextual.

The judgment of the district court is

AFFIRMED.