IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-60632

MICHELLE TIMBERLAKE,

Plaintiff–Appellant,

v.

TEAMSTERS LOCAL UNION NUMBER 891; ROADWAY EXPRESS,

INCORPORATED; WAYNE PHILLIPS, in both his individual and official

capacities,

Defendants–Appellees.

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 4:08-CV-91

Before DAVIS, PRADO, and OWEN, Circuit Judges.

PER CURIAM:

*

Michelle Timberlake filed suit against Roadway Express, Inc., the

Teamsters Local Union Number 891, and Wayne Phillips. Roadway Express was

her employer, the Teamsters her union, and Phillips a union supervisor.

Timberlake alleged racial and sexual harassment, racial and gender

discrimination, unlawful retaliation, breach of contract, intentional infliction of

United States Court of Appeals

Fifth Circuit

F I L E D

June 8, 2011

Lyle W. Cayce

Clerk

 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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emotional distress, defamation, and false light. The United States District Court

for the Southern District of Mississippi granted summary judgment in favor of

Roadway Express, the Teamsters, and Phillips. Timberlake appealed. Pursuant

to 28 U.S.C. § 1291, our jurisdiction is properly vested over an appeal of a final

judgment.

Timberlake proceeds pro se on appeal. In light of her pro se status, we

interpret her “brief liberally to afford all reasonable inferences which can be

drawn from” it. That said, we have nonetheless observed that it is important

1

for such pro se appellants to include “‘citation to the authorities, statutes and

parts of the record relied on’” in their briefs. In short, “‘[a]lthough we liberally

2

construe the briefs of pro se appellants, we also require that arguments must be

briefed to be preserved.’”

3

Timberlake appears to assert error in the grant of summary judgment

with respect to her harassment claims, her retaliation claims, and her

discrimination claims. She argues that issues of material fact remain, and that

summary judgment was improperly granted as a result. Her briefing on this

point, however, suffers from the absence of citations indicating the locations in

the record of these purported material facts.

Timberlake has included only five citations to the record in her “Facts”

section. She cites to her own unsworn letter describing the conduct of a fellow

driver, yet unsworn documents are not appropriate evidence to consider on a

Tex. Comptroller of Pub. Accounts v. Liuzza (In re Tex. Pig Stands, Inc.), 610 F.3d 937, 1

941 n.4 (5th Cir. 2010). 

Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (quoting Weaver v. Puckett, 896 2

F.2d 126, 128 (5th Cir. 1990)).

Id. (quoting Price v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988)). 3

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motion for summary judgment. She offers a partial citation regarding her fight

4

with a different fellow driver. She only indicates, however, that the relevant

evidence is within the record, while failing to provide a page. She also cites to

her own deposition statement that another driver told her that he had heard

others discussing a plan to fire her. This—the statement of another offered for

the truth of the matter asserted—constitutes hearsay, and deposition hearsay

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is not competent summary judgment evidence. She further offers a typed

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account of her interactions with various Roadway employees, yet—as discussed

above—unsworn statements are not competent evidence insofar as Timberlake

seeks to establish the truth of the matter asserted. Finally, she purports to cite

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to a favorable ruling from the EEOC in this matter, but the pages referenced

appear, instead, to be pay stubs.

Similarly, in the “Argument” section of her brief, Timberlake has included

only a single citation to the record. That reference is purportedly to the district

court opinion, although the opinion is not located at the listed pages. As a result,

neither the “Facts” nor “Argument” sections of the brief include citations to

relevant facts that could overcome summary judgment. We have recognized that

when an appellant fails to provide “the reasons [s]he deserves the requested

relief with citation to the authorities, statutes and parts of the record relied on,”

that failure constitutes waiver. The need for such a linkage between relevant

8

Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987) (per 4

curiam).

 FED. R. EVID. 801. 5

Martin, 819 F.2d at 549.

6

Id. 7

Turner v. Quarterman, 481 F.3d 292, 295 n.1 (5th Cir. 2007) (quoting Hughes v. 8

Dretke, 412 F.3d 582, 597 (5th Cir. 2005)); see also FED. R. APP. P. 28(a)(9)(A) (requiring an

appellant’s argument section to contain her “contentions and the reasons for them, with

citations to the authorities and parts of the record on which the appellant relies”).

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legal arguments and specific facts in the record is heightened by our inability to

consider facts outside the summary judgment record on appeal. This further

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precludes Timberlake’s express desire for this court to consider new evidence.

As a result of the defects in her brief, she has waived her contention on appeal

that an issue of material fact precludes the grant of summary judgment.

Timberlake appears to argue that reversal is also required because of the

district court’s purported misapplication of “Pegran v. Honevwell Inc. [sic].” She

contends that the district court improperly quoted a section of that opinion

discussing transfers as adverse employment actions, whereas the instant case

involved a firing and rehiring. That said, the district court’s opinion does not

appear to have quoted our decision in Pegram v. Honeywell, Inc., and the

10

citation Timberlake provided to the record leads to her own deposition

testimony. Further, Timberlake’s analysis of the case is limited to her claim that

the “quoted language” is inapplicable to the instant factual posture. Thereafter,

she does not go beyond her conclusory statement that her temporary termination

constituted an adverse action—declining to cite to case law or statutory

authority. As she has failed to direct the court to the purportedly erroneous

application of the law by the district court and to offer a legal argument

providing the reasons—in lieu of a conclusory assertion—for which she should

be granted relief, her claim is waived. Alternatively, we observe that

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Timberlake has cited to Pegram’s discussion of adverse employment actions for

discrimination claims. The district court also noted that Timberlake had failed

12

Little v. Liquid Air Corp., 37 F.3d 1069, 1071 n.1 (5th Cir. 1994) (en banc) (per 9

curiam).

 361 F.3d 272 (5th Cir. 2004).

10

Hinojosa v. Butler, 547 F.3d 285, 291 n.2 (5th Cir. 2008).

11

 361 F.3d at 282. 12

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to adduce evidence that she had been treated less favorably than similarly

situated employees who were not members of her protected class. Nonetheless,

Timberlake does not argue legal error with respect to that element of our

standard, which is also required to prove discrimination.

13

Timberlake additionally includes a discussion of “[p]rescription” in her

brief. Any argument of error on this point is unavailing, however, as her case

was not dismissed on the grounds of prescription.

Timberlake further states that papers were “filed fraudulently” in the

district court, permitting the substitution of law firms when her attorney moved

his practice. Timberlake’s attorney, Kevin White, submitted a motion to

substitute counsel of record, stating that “[a]n understanding has been reached”

between Timberlake and White that his new firm would be substituted for his

prior firm. We have previously noted the district court’s “broad discretion” in

evaluating motions to withdraw. Insofar as Timberlake asserts error in

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permitting this substitution of counsel, her contention is unavailing.

Liberally construing her brief, Timberlake appears to argue that the

purported deficiencies of her counsel are relevant to reversal of the summary

judgment. To the extent that Timberlake seeks to assert a constitutional right

to effective counsel, no such right exists in this civil context. Even assuming,

15

arguendo, that her attorney did mishandle her case, we have recognized that

such an appellant’s cause of action against her attorney “remains separate and

Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009) (requiring an employee 13

alleging racial discrimination to show “that (1) he is a member of a protected class, (2) he was

qualified for the position at issue, (3) he was the subject of an adverse employment action, and

(4) he was treated less favorably because of his membership in that protected class than were

other similarly situated employees who were not members of the protected class, under nearly

identical circumstances”).

Augustson v. Linea Aerea Nacional-Chile S.A., 76 F.3d 658, 664 (5th Cir. 1996); see 14

also Fleming v. Harris, 39 F.3d 905, 908 (8th Cir. 1994).

Sanchez v. U.S. Postal Serv., 785 F.2d 1236, 1237 (5th Cir. 1986) (per curiam). 15

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distinct” from the underlying suit, and “therefore, we cannot grant h[er] any

relief” on appeal.

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* * *

We AFFIRM.

Id. 16

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