Roy v. US Dept Agriculture

* 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opinion should not be published and is not precedent except under the limited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 18, 2004
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
Cause No. 04-30480
Summary Calendar
_______________________
DIANE S. ROY,
Plaintiff-Appellant,
versus
UNITED STATES DEPARTMENT OF AGRICULTURE,
Ann M. Veneman, Secretary,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
Civil Action No. 02-CV899"A”(4)
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
This is an appeal from the district court’s grant of
summary judgment in favor the United States Department of
Agriculture (“USDA”). For the reasons stated below, we AFFIRM.
Diane S. Roy (“Roy”), a black female, sued the USDA,
alleging racial discrimination in violation of Title VII of the
Civil Rights Act of 1964. Roy worked at the USDA as an Accounting
Technician in the National Finance Center. Roy applied for one of

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five vacant paralegal positions within the USDA. Applicants were
instructed to file a package consisting of an application, their
most recent performance appraisal, a college transcript or a
paralegal certificate, proof of eligibility, and a supplemental
statement discussing the applicant’s knowledge, skills, and
abilities. Soon after submitting her application, Roy received a
hand-delivered notice that she would not be considered for any of
the vacant positions because her application was deficient. She
was not permitted to amend her application.
Other application packages were reviewed and rated by a
promotions panel, which used a five-criterion evaluation system.
The system resulted in two rosters, “Best Qualified” and “Non-
Competitive Eligibles,” which were then submitted to two selection
officials in alphabetical order and minus the scoring and ratings.
The two selection officials then interviewed in identical manner
the candidates who made the “Best Qualified” roster, excepting one
candidate who withdrew. Thereafter, each official individually
selected five persons from the roster. They then convened to
compare their choices. Both officials chose the same five
candidates, hired those persons, and, as required by law,
contemporaneously filed justifications for the selection of each
candidate. All of the five selectees were women: one Black, one
Native American, and three Caucasians. After the hiring decisions
were posted, Roy filed a Freedom of Information Act request for
copies of the hired persons applications. After reviewing these

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documents, Roy filed suit. The USDA responded with a motion for
summary judgment, which the district court granted in its favor.
Roy appeals from that decision.
This court reviews a district court’s grant of summary
judgment de novo, applying the same standards as that court.
Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994).
Pursuant to the burden-shifting framework operative in
Title VII disparate treatment cases, if Roy demonstrates a prima
facie case of discrimination, the burden shifts to the USDA to
articulate a legitimate, non-discriminatory basis for its
employment decision. If the defendant meets this burden, Roy must
demonstrate that the USDA’s articulated reason is a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668(1973).
The prima facie burden is extremely low, and Roy had no
problem meeting it here. As a black woman she qualifies as a
member of a protected class; she applied for a paralegal position
and was qualified for the job; she did not get the job; and non-
protected persons with similar qualifications were hired for the
position she sought. See McDonnell Douglas, 411 U.S. at 802, 93
S.Ct. at 1824 (setting forth the four requirements of prima facie
case). The USDA also meets its burden – one of production, not
persuasion – to articulate a legitimate, nondiscriminatory reason
for its employment decision: that the qualifications of the five

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1 Roy argues that the district court erred in identifying the USDA’s
legitimate, nondiscriminatory reason as the superior qualifications of the five
hired persons, instead of the reason that the selection officials offered during
an EEOC administrative investigation – that Roy’s application was poorly prepared
and contained numerous grammatical and spelling errors. Roy’s distinction is
without a difference. The USDA’s reason – superior qualifications of the five
hired persons – necessarily encompasses the application review procedures wherein
hiring personnel found Roy’s application deficient for, among other reasons, poor
preparation as reflected in the high number of grammatical and spelling errors.
The USDA’s position has been consistent.
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persons hired were superior to Roy’s qualifications,1 including
those of the two minorities hired to the exclusion of Roy. See
Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 142, 120
S. Ct. 2097, 2106, 147 L.Ed.2d 105 (2000) (stating that “[t]his
burden is one of production, not persuasion; it ‘can involve no
credibility assessment’”) (quoting St. Mary's Honor Center v.
Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742, 2748, 125 L.Ed.2d 407
(1993). The USDA supported this articulation with production of
summary judgment evidence, including affidavits from the selecting
officials regarding hiring procedures and criteria as discussed
above, more than sufficiently rebutting the presumption established
by Roy’s prima facie case.
Fatally, Roy fails to establish pretext. As discussed
above, the selection officials filed statements, as legally
required, affirmatively explaining the employment decision as to
each hired applicant and detailing each individual’s relevant
knowledge, skills, and abilities, including written communications.
The officials were only required to justify their reasons for
declining Roy the position during the EEOC administrative

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2 Although Roy tries to back away from this argument now, contending
that the district court incorrectly applied the “clearly better qualified”
standard when it should have simply addressed whether she demonstrated pretext,
Roy raised both standards below and, thus, the district court properly addressed
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investigation. At that time, the officials maintained that Roy’s
application was rejected because it was poorly written and
contained numerous grammatical and spelling errors. As evidence of
pretext, Roy maintains that the applications of the five hired
persons were as poorly written as her own, submits an unsigned
document from a school teacher in support thereof, and maintains
that she is better qualified than the persons hired.
First, because an unsigned affidavit is not competent
summary evidence pursuant to Rule 56(e) of the Federal Rules of
Civil Procedure, the Court will not consider it for purposes of de
novo review. Fed. R. Civ. P. 56(e); Duplantis v. Shell Offshore,
Inc., 948 F.2d 187, 192 (5th Cir. 1991). Assuming technical
competency, arguendo, the document, which asserts that the
applications of the five persons hired also contained grammatical
and spelling errors, is insufficient to establish pretext because
its substance does not adequately dispute the more than competent
summary judgment declarations of the selection officials, which
aver that the degree and extent of grammatical and spelling errors
contained in Roy’s application was unacceptable under the relevant
application requirements and hiring procedures.
Additionally, Roy’s argument that she was “clearly better
qualified” than the hired persons also fails.2 As a Title VII

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both standards below. Therefore, we address those same standards here, and Roy
loses on both counts.
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plaintiff, Roy may survive summary judgment by demonstrating that
she was “clearly better qualified” than the persons hired.
Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 356-57 (5th
Cir. 1992) (citation omitted). However, unlike Roy’s prima facie
burden, the “clearly better qualified” standard is extremely high
— evidence of the plaintiff’s qualifications must be “of such
weight and significance that no reasonable person, in the exercise
of impartial judgment, could have chosen the candidate selected
over the plaintiff for the job in question” – and Roy does not
satisfy it. Celestine, 266 F.3d at 357. Contrary to Roy’s conten-
tions, the fact that she has a paralegal certificate does not make
her “clearly better qualified” than the candidate(s) who had no
certification because certification was not an exclusive education
requirement. Rather, an applicant had to possess a college
education or a paralegal certificate. Even if specialized
paralegal certification was a requirement, the white hiree with
whom Roy takes greatest issue was employed as a paralegal
specialist at the time she was hired and had significant relevant
prior work experience. The other hirees had similarly extensive
legal employment backgrounds. Roy’s certification and one-year
trainee experience at a law firm pale in comparison and fail under
the “clearly better qualified” standard.

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Finally, Roy similarly fails on her “pattern and practice
of discrimination” claim as it is inapplicable to her individual
claim of racial discrimination. See Celestine, 266 F.3d at 355-356
(holding that an individual failure-to-promote race-based claim is
properly analyzed under the McDonnell Douglas burden-shifting
framework at summary judgment stage because “pattern and practice”
claims are unavailable outside of a class action).
For these reasons, we AFFIRM the district court’s summary
judgment grant in favor of the USDA.
AFFIRMED.

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