*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opinion should not be published and is not precedent except under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.

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UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 01-30999

Summary Calendar

PAUL CARTER,

Plaintiff - Appellant,

VERSUS

FARMERS RICE MILLING COMPANY, INC.,

Defendant - Appellee.

Appeal from the United States District Court

For the Western District of Louisiana, Lake Charles

(00-CV-2215)

February 28, 2002

Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

Paul Carter sued his employer, Farmers Rice Milling Company,

Inc. (FRMC), alleging that FRMC failed to promote him because he is

African American and suspended him without pay for filing a claim

with the Equal Employment Opportunity Commission. On FRMC’s motion
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for summary judgment, the district court dismissed Mr. Carter’s

claims. The court found that although Mr. Carter made prima facie

cases of racial discrimination and retaliation, he failed to show

that FRMC’s nondiscriminatory reasons for its actions were

pretextual. We affirm.

I.

Carter began working for FRMC in 1988. He initially worked as

an operator in FRMC’s Rough Rice Department. He resigned his

position on July 17, 1993 but was rehired on October 31, 1994. In

1997 he was promoted to the position of Operator I/Quality Control

Relief Technician in the Rough Rice Department. In October of

1998, Carter applied for a promotion to the position of Quality

Control Technician in the Milled Rice Department. Carter did not

get the promotion; rather, FRMC awarded the position to Michael

Fontenot, a white male who was previously employed as an operator

in the Milled Rice Department. Believing that FRMC passed him for

the promotion because he is African American, Carter filed a

complaint with the EEOC in January 1999. 

On April 27, 1999, FRMC suspended Carter for two weeks without

pay. Carter alleges that his suspension was in retaliation for

filing a claim with the EEOC; FRMC argues that it suspended him for

leaving work before completing his work assignment and before his

scheduled shift had ended. In June 2000, the EEOC issued Carter a

“no cause” determination and a “Notice of Right to Sue.”
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Carter sued FRMC in a Louisiana state court on September 27,

2000, claiming that FRMC had discriminated against him in violation

of Louisiana’s Employment Discrimination Laws, La. Rev. Stat. Ann.

§ 23:301, et seq., Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. Carter also alleged

that FRMC retaliated against him for asserting allegations of

discrimination in violation of La. Rev. Stat. Ann. § 51:2256(1),

and 42 U.S.C. § 2000e-3(a). FRMC removed the case to the Western

District of Louisiana and filed a motion for summary judgment. The

district court denied FRMC’s motion with respect to Carter’s

discrimination claims, but granted the motion with respect to

Carter’s § 1981 claims. FRMC then filed a motion for

reconsideration of summary judgment. In its second summary

judgment ruling, the district court granted summary judgment to

FRMC on all claims. Although Carter filed this suit with the

assistance of counsel, his attorney has since withdrawn as counsel

of record and Carter is proceeding pro se. 

Carter argues on appeal that we should reverse the district

court’s summary judgment ruling because FRMC’s motion to reconsider

summary judgment was not timely filed. Although it is difficult to

decipher Carter’s second argument, he also seems to suggest that

the district court erred in dismissing his discrimination claims

because FRMC’s “legitimate explanations” for not promoting him and

suspending him without pay were mere pretext. 
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II.

We review a district court’s grant of summary judgment de

novo. Chaney v. New Orleans Pub. Facility Mgmt., Inc., 179 F.3d

164, 167 (5th Cir. 1999); Grimes v. Texas Dep’t of Mental Health &

Mental Retardation, 102 F.3d 137, 139 (5th Cir. 1996). “Summary

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

material fact and the movant is entitled to judgment as a matter of

law.” Grimes, 102 F.3d at 139 (citing Fed. R. Civ. P. 56(c)). In

employment discrimination cases, the question is whether a genuine

issue of fact exists as to whether the defendant intentionally

discriminated against the plaintiff. Id. Unsubstantiated

assertions are not competent summary judgment evidence. Chaney,

179 F.3d at 167; Grimes, 102 F.3d at 139.

III.

Carter argues that FRMC’s motion to reconsider summary

judgment should be treated as a Rule 59 motion to amend a judgment

and must therefore be filed no later than ten days after the denial

of summary judgment. The district court entered its first summary

judgment ruling on April 5, 2001. On April 18, 2001, FRMC filed a

motion for the court to reconsider its previous motion for summary

judgment. Since FRMC filed its motion to reconsider thirteen days

after the district court entered its first summary judgment ruling,

Carter argues that the motion was not timely filed and therefore

should have been denied. That simply is not the law. We have held
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on several occasions that “a denial of summary judgment is an

interlocutory order, which the court may reconsider and reverse at

any time before entering final judgment.” Millar v. Houghton, 115

F.3d 348, 350 (5th Cir. 1997); McKethan v. Texas Farm Bureau, 996

F.2d 734, 738 n.6 (5th Cir. 1993); accord Lavespere v. Niagra

Machine & Tool Works, 910 F.2d 167, 184-85 (5th Cir. 1990);

Trustees of Sabine Area Carpenter’s Health & Welfare Fund v. Don

Lightfoot Home Builder, Inc., 704 F.2d 822, 828 (5th Cir. 1983).

Since the district court issued its second summary judgment ruling

before entering a final judgment in this case, the court was free

to vacate its previous ruling and submit a revised judgment.

IV.

Title VII prohibits employers from discriminating against

employees on the basis of race. 42 U.S.C. § 2000e-2(a)(1). To

defeat a motion for summary judgment, a Title VII plaintiff must

initially make a prima facie case of discrimination. A plaintiff

makes a prima facie case of promotion discrimination by showing

that: (1) he is a member of a protected class; (2) he applied for

a promotion to an available position for which he was qualified;

(3) he did not received the requested promotion; and (4) the

employer filled the position with an individual outside the

protected class. See EEOC v. Exxon Shipping Co., 745 F.2d 967, 972

n.3 (5th Cir. 1984).
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By establishing a prima facie case for discrimination, a

plaintiff raises a presumption of discrimination, “which the

defendant must rebut by articulating a legitimate,

nondiscriminatory reason for its actions.” Shackelford v. Deloitte

& Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999). The defendant

meets this burden “by presenting evidence that, ‘if believed by the

trier of fact, would support a finding that unlawful discrimination

was not the cause of the employment action.’” Rhodes v. Guiberson

Oil Tools, 75 F.3d 989, 993 (5th Cir. 1996) (en banc) (quoting St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993)). If the

defendant presents sufficient evidence of nondiscriminatory

reasons, the plaintiff must demonstrate by a preponderance of the

evidence that the defendant’s reasons are not “‘true reasons, but

were a pretext for discrimination.’” See Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (quoting Texas

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

Assuming arguendo that Carter established a prima facie case

of promotion discrimination, he did not show that FRMC’s

nondiscriminatory reasons for denying him the promotion were a

pretext for discrimination. Unlike Michael Fontenot, Mr. Carter

had no prior experience in the Milled Rice Department. Whereas

Carter had worked exclusively in the Rough Rice Department,

Fontenot was working in the Milled Rice Department at the time of

his promotion. FRMC’s decision to give Fontenot the promotion to
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Quality Control Technician in the Milled Rice Department was

consistent with FRMC’s documented policy of promoting employees

from within the same department whenever possible. 

V.

Title VII also prohibits an employer from discriminating

“against any of his employees . . . because he has made a charge,

testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under this subchapter.” 42

U.S.C. § 2000e3(a). A plaintiff makes a prima facie case of

discriminatory retaliation by showing that: (1) he engaged in

conduct protected under Title VII; (2) his employer thereafter

subjected him to an adverse employment action; and (3) the adverse

employment action was motivated by animus inspired by the protected

conduct. Chaney, 179 F.3d at 167. “If the plaintiff makes a prima

facie case, the burden shifts to the employer to provide a

legitimate, nonretaliatory reason for the adverse employment

action. Should the employer provide a permissible rationale, the

plaintiff then shoulders the ultimate burden of proving that the

employer’s proffered rationale was pretextual and that engaging in

the protected activity was the but-for cause of the adverse

employment action.” Id. To defeat summary judgment, Carter must

produce “substantial probative evidence” that the real reason for

his discharge was his filing of a complaint with the EEOC. Chaffin

v. Carter, 179 F.3d 316, 320 (5th Cir. 1999).
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Assuming arguendo that Carter established a prima facie case

of discriminatory retaliation, he did not show that FRMC’s

nondiscriminatory reasons for suspending him without pay were a

pretext for retaliation. FRMC’s records and affidavits establish

that Carter left work without asking his supervisor’s permission

and before completing his assigned task. Under FRMC’s standard

disciplinary policy, this sort of insubordination would warrant

termination, but FRMC instead chose the more lenient penalty of two

weeks unpaid suspension. “In a case in which the employer has

articulated a rational justification for terminating an employee,

and the facts supporting that justification are not seriously

disputed, the task of proving pretext becomes quite difficult.”

Id. at 168 (citing Elliot v. Group Med. & Surgical Serv., 714 F.2d

556, 567 (5th Cir. 1983)). Without explanation, Carter argues that

FRMC’s insubordination argument was a pretext for retaliation

because Fontenot was promoted despite having a sexual harassment

complaint in his employee file. We see no reason why the fact that

Fontenot had a sexual harassment record is probative evidence that

FRMC retaliated against Carter for filing a complaint with the

EEOC. 

VI.

Carter does not challenge the district court’s ruling that his

§ 1981 claims were prescribed. Those claims, and all other claims

not briefed on appeal, are therefore waived. Johnson v. Sawyer,
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120 F.3d 1307,1315-16 (5th Cir. 1997).

VII.

Carter’s argument that FRMC’s motion to reconsider summary

judgment was untimely has no basis in the law. Denials of summary

judgment are interlocutory orders and are amendable any time before

final judgment. Carter also has not demonstrated that FRMC’s

nondiscriminatory reasons for denying him the promotion and

suspending him without pay were pretexts for discrimination.

Because he has not carried his evidentiary burden, summary judgment

was warranted. The district court’s order dated June 12, 2001 is

AFFIRMED.