Myers v. Dallas Indep Sch

*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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
November 27, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-10141
SUMMARY CALENDAR
RAYMOND T. MYERS, SR.,
Plaintiff-Appellant,
versus
DALLAS INDEPENDENT SCHOOL DISTRICT,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
Case No. #:04-CV-1951-K
Before JONES, Chief Judge, and JOLLY and OWEN, Circuit Judges.
PER CURIAM:*
Pro Se Appellant, Raymond T. Myers, appeals the district
court’s grant of summary judgment to the Dallas Independent School
District (“DISD”) in this action brought under the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq.
We find no genuine issue of material fact concerning Myers’s claim
that DISD failed to hire him due to his age and therefore AFFIRM
the district court ruling.
We review a summary judgment grant de novo, applying the
same standard as the district court. Rachid v. Jack in the Box,

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2
Inc., 376 F.3d 305, 308 (5th Cir. 2004). A district court’s grant
of summary judgment is proper when the pleadings, affidavits, and
other evidence, when viewed in the light most favorable to the
nonmovant, show that no genuine issue of material fact exists. TIG
Ins. Co. v. Sedgwick James of Washington, 276 F.3d 754, 759 (5th
Cir. 2002).
To prevail on an ADEA claim, a plaintiff presenting no
direct evidence of age discrimination must make a prima facie
showing of discriminatory treatment by demonstrating that: (1) he
is a member of the protected class; (2) he was qualified for the
employment he sought; (3) in spite of his qualifications, he was
not hired and the employer continued to seek applicants with
similar qualifications; and (4) the employer ultimately hired
someone outside of the protected class or otherwise declined to
hire the applicant because of his age. Rachid, 376 F.3d at 309.
Myers was seventy-seven years old at the time of the
alleged discrimination, placing him within the class of persons
protected by the ADEA. Aside from satisfying this criterion, Myers
adduced no summary judgment evidence raising a material issue of
fact concerning the other elements of his prima facie case. DISD,
in contrast, has presented evidence that Myers’s applications were
sloppily prepared, that he interviewed poorly, and that he made
inappropriate comments to interviewers. DISD has also demonstrated
that because it considered Myers unqualified, it did not continue
to seek individuals with his qualifications. Finally, Myers

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1We do not consider on appeal “evidence” recited by Myers
that was not included in the trial court record.
3
offered no evidence that the position he sought was filled by a
younger applicant. Neither Myers’s unsubstantiated assertions to
the contrary nor his subjective belief that he was the subject of
discrimination is sufficient to controvert DISD’s evidence. See
Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir.
2000); Ray v. Tandem Computers, Inc., 63 F.3d 429, 434 (5th Cir.
1995).1
Because Myers produced no material evidence of age
discrimination, the district court’s grant of summary judgment to
DISD is AFFIRMED.

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