*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this opinion should not be published and is not precedent except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. 97-20497

Summary Calendar

GENEVIEVE COMEAUX

Plaintiff-Appellant

VERSUS

TEXAS DEPARTMENT OF TRANSPORTATION ET AL

 Defendants

TEXAS DEPARTMENT OF TRANSPORTATION

Defendant-Appellee

Appeal from the United States District Court

For the Southern District of Texas

(H-95-CV-5650)

November 19, 1997

Before JOLLY, BENAVIDES and PARKER, Circuit Judges.

PER CURIAM:*

Appellant Genevieve Comeaux appeals the summary judgment

dismissing her Title VII employment discrimination action against

the Texas Department of Transporation (“DOT”). Since Appellant has
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failed to establish a prima facie case of discrimination, we

affirm.

Appellant filed this action against her employer, the DOT,

alleging that she had been discriminated against on the basis of

her race and gender. Specifically, Ms. Comeaux alleges that she

was persistently not promoted and not given a raise, because she is

an African-American female. 

“In employment discrimination cases, we review summary

judgments de novo, applying the same standard as the district

court.” Bodenheimer v. PPG Indus., 5 F.3d 955, 956 (5th Cir. 1993),

citing Waltman v. Int’l, Paper Co., 875 F.2d 468, 474 (5th Cir.

1989). Ms. Comeaux has no direct evidence that any particular

employment action was taken against her on the basis of her race or

gender. Therefore, this case may be analyzed under the McDonnell

Douglas/Burdine paradigm for cases using circumstantial evidence to

prove intentional employment discrimination. McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668

(1973); Texas Dep’t. of Community Affairs v. Burdine, 450 U.S. 248,

101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). 

In order to survive a motion for summary judgment, Ms. Comeaux

must have initially produced appropriate summary judgment evidence

supporting the inference: 1) that she is a member of a protected

group; 2) that she was not promoted or given a raise; 3) that she

was qualified for a promotion or raise; and 4) that a person
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outside her protected class was given a promotion or raise.

McDonnel Douglas Corp., supra, at 802, 93 S. Ct. at 1824; St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 503, 506, 113 S. Ct. 2742,

2747, 125 L. Ed. 2d 407 (1993). If Comeaux could establish her

prima facie case, that would “in effect create[] a presumption that

the [DOT] unlawfully discriminated against [her].” Burdine, supra,

at 254, 101 S. Ct. 1094. This presumption places upon the

defendant the onus of “‘set[ting] forth, through the introduction

of admissible evidence,’ reasons for its actions which, if believed

by the trier of fact, would support a finding that unlawful

discrimination was not the cause of the employment action.” St.

Mary’s, supra, at 507, 113 S. Ct. at 2747, citing Burdine, supra,

at 254-255, and n. 8, 101 S. Ct. at 1094-1095, and n. 8. Once

defendant meets his burden of production by articulating a

legitimate non-discriminatory reason and supporting it with the

appropriate summary judgment evidence, the presumption of

discrimination dissolves, and we are back to the plaintiff, who

carries the burden of persuasion throughout. Id., citing Burdine,

supra, at 253, 101 S. Ct. at 1093. Thereafter, “a jury issue will

be presented and a plaintiff can avoid summary judgment ... if the

evidence taken as a whole (1) creates a fact issue as to whether

each of the employer’s stated reasons was what actually motivated

the employer and (2) creates a reasonable inference that [race or

sex] was a determinative factor in the actions of which plaintiff
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complains.” Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th

Cir. 1996). 

In response to DOT’s motion for summary judgment, Comeaux

produced her own affidavit, and the deposition testimony of Ms.

Kathleen Graves, an employee representative from the state

employee’s union, who followed Comeaux’s inter-agency grievance.

Comeaux attached as Exhibit “A” to her affidavit a copy of a

memorandum to DOT management, dated May 13, 1994, which Comeaux

apparently prepared, outlining many of the instances of alleged

discriminatory conduct toward her over the course of her employment

at DOT.

Ms. Comeaux insists in her affidavit that she performed her

job as an administrative technician (clerical position) well enough

to receive a merit raise or promotion, but never received a raise

or promotion because of her race. Comeaux’s affidavit is simply a

conclusory restatement of her claims, which references no

independent proof that she was qualified for a raise or promotion.

Ms. Graves deposition is also wholly conclusory, reflecting only

her conclusion, upon observing the inter-agency grievance process,

that Comeaux was not being treated fairly. Ms. Grave’s deposition

testimony merely assumes the truth of Comeaux’s discrimination

claim, but offers no proof in support of that claim. 

On the other hand, Comeaux’s immediate supervisor, Ms. Maureen

Wakeland in her affidavit, attached to DOT’s motion for summary
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judgment, insisted that Comeaux never got a merit raise or

promotion, because she was not qualified and in fact was not even

very good at the job she already had. Ironically, the memorandum

Comeaux attached as Exhibit “A” to her own affidavit, being full of

malapropisms, incorrect subject-verb agreement, faulty punctuation,

sentence fragments, and grammatical mistakes of all kinds,

corroborates Ms. Wakeland’s claim that Comeaux was not competent as

an administrative technician and therefore was not qualified for a

merit raise or promotion.

Therefore, having failed to create a fact issue as to whether

she was even qualified for a raise or promotion, Comeaux cannot

make out a prima facie case under the McDonnell Douglas/Burdine

paradigm, and summary judgment in favor of the DOT was appropriate.

AFFIRMED.