           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         October 30, 2007

                                     No. 06-41739                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


CONNIE ADAMS,

                                                  Plaintiff–Appellant,
v.

DAIMLERCHRYSLER SERVICES NA LLC,

                                                  Defendant–Appellee.



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                               No. 4:05-CV-00103


Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
       This is an appeal from a grant of summary judgment to DaimlerChrysler
Services (Chrysler). We affirm.
                                              I
       Connie Adams was an at-will employee of Chrysler from 2001 to 2005.
During her employment, she applied for a variety of internal promotions, but
other employees were promoted instead of her. Because of her tardiness and


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                 No. 06-41739

incomplete assignments, Adams was given performance improvement
assignments and warnings that her employment was at risk. Adams complained
to her supervisors that she was being discriminated against because of her race
(African-American) and age (over 40). On July 15, 2004, she filed a charge of
discrimination with the Equal Employment Opportunity Commission (EEOC),
which investigated and was unable to verify any illegal discrimination. On
November 11, 2004, the EEOC issued a right-to-sue letter. Adams filed this suit
in state court on February 16, 2005, and Chrysler timely removed to federal
court. Adams continued to work for Chrysler. Chrysler continued to monitor
Adams’s performance and to issue warnings to her that if her work completion
and timeliness did not improve she would be terminated. Adams took disability
leave from April 28, 2005 through July 22, 2005. She also requested additional
paid leave under the Family and Medical Leave Act (FMLA), but Chrysler
denied this request because it does not offer paid FMLA leave. When she
returned from leave on July 22, 2005, Chrysler terminated her employment.
      Adams amended her complaint. She claimed that Chrysler violated 42
U.S.C. § 2000e (Title VII), 29 U.S.C. § 623(d) (the ADEA), and Texas Labor Code
§ 21.055 (the TCHRA) by promoting four women—Lori Pearson, Wendy
Connerly, Jennie Fogg, and Kim Smith—into positions for which Adams had
applied (the failure-to-promote claims). She also claimed that Chrysler violated
Title VII, the ADEA, and the TCHRA by discharging her for complaining about
discrimination (the retaliatory termination claim). Finally, she claimed that
Chrysler violated the FMLA by discharging her in retaliation for taking FMLA
leave. During litigation before the district court, Adams and Chrysler reached
a settlement agreement, but Adams revoked this agreement on August 7, 2006.
Shortly before that settlement agreement, Adams’s attorney filed a motion to
withdraw from representation; shortly after Adams’s revocation of the
settlement, the district court granted the motion. Following discovery, Chrysler


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moved for summary judgment, and the motion was granted on November 3,
2006. Adams, pro se since her counsel’s withdrawal, timely appealed.
      We liberally construe briefs of pro se litigants. We have been able to
discern six assignments of error. Adams argues (i) that the magistrate judge
should have recused himself from the case; (ii) that the court punished Adams
for validly revoking the earlier settlement agreement; (iii) that the court ignored
certain evidence related to the FMLA claim; (iv) that the court erred in holding
that certain claims were time-barred; (v) that the court erred in its analysis of
the retaliatory termination claim; and (vi) that the court ignored certain
evidence related to the discriminatory failure-to-promote claims.
                                              II
      In Adams’s first argument, she claims for the first time on appeal that the
federal magistrate, to which the case was submitted, should have recused
himself in accordance with 28 U.S.C. § 455 because of an alleged prior affiliation
with Chrysler. Adams claims that on July 17, 2006, prior to a motion hearing,
the magistrate judge stated that he had a “past involvement with
DaimlerChrysler as an attorney.” Adams acknowledges that this statement
appears nowhere in the record.
      Delay in raising disqualification objections is greatly disfavored, and we
consider it “egregious delay” when a party “knows the facts purportedly showing
an appearance of impropriety but waits until after an adverse decision has been
made by the judge before raising the issue of recusal.”1 In this case, there is
absolutely no evidence in the record that the magistrate has had any prior
relationship with Chrysler or that there is or was any reason to question his
impartiality. Adams had more than enough time to complain of the conflict
between the alleged statement in July, 2006 and the court’s decision on



      1
          United States v. Sanford, 157 F.3d 987, 989 (5th Cir. 1998).

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Chrysler’s summary judgment motion in November, 2006. Without facts and
without a complaint at trial, we find no merit to Adams’s argument.
       Adams next argues that the court improperly punished her for revoking
a settlement agreement. Adams participated in a settlement conference with
Chrysler on July 21, 2006, and the parties reached a settlement agreement.
Adams signed the agreement on August 3, 2006, but later claimed she did not
understand its terms. On August 7, 2006, she wrote a letter to Chrysler
revoking her agreement, contending that the Older Workers Benefit Protection
Act of 19902 (OWBPA) allowed her to revoke the settlement agreement within
seven days of signing it. Adams also wrote a letter to the court requesting a
hearing on the revocation, which the court held on August 17, 2006. At the
hearing, Chrysler conceded that the OWBPA allowed Adams to revoke her
agreement, and the court granted Adams’s request to revoke.3 Adams now
argues that her revocation prejudiced the court against her and that the court
granted summary judgment to Chrysler “because she revoked the agreement.”
There is no evidence in the record to support this contention, and it is without
merit.
                                             III
       Adams argues that the court ignored evidence related to her FMLA claim.
The court found that Adams admitted in a deposition that the only reason
Chrysler fired her was in retaliation for her EEOC complaint and later lawsuit.
The court held that this admission contradicted the entire basis of her FMLA
claim, in which she alleged that she was terminated because she took leave. We




       2
           Pub. L. No. 101-433, 104 Stat. 978 (1990) (amending the ADEA).
       3
         The validity of the revocation is not before us on appeal, and we express no opinion
as to whether the OWBPA’s revocation provisions indeed cover the settlement agreement in
this case.

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agree with the court that Adams admitted in her deposition that she was not
fired for taking FMLA leave and that this admission vitiates her FMLA claim.
      Adams next argues that the court erred in holding that several of Adams’s
failure-to-promote claims were time-barred. Title VII and the ADEA require
plaintiffs to file an EEOC discrimination charge within 300 days of the
discrimination,4 while the TCHRA requires plaintiffs to file a Human Rights
discrimination charge within 180 days of the discrimination.5 Adams’s EEOC
filing of July 15, 2004 complained of failure-to-promote incidents that had
occurred from December 18, 2003 through May 17, 2004. The court dismissed
as time-barred all of the claims related to the promotion of Lori Pearson (April,
2003), and the TCHRA claims related to the promotion of Wendy Connerly
(December 18, 2003). The court did not dismiss as time-barred the Title VII and
ADEA claims related to Wendy Connerly (since the EEOC filing was within 300
days from her promotion) nor any other claims related to any other co-workers.
Because the record supports the court’s dismissal of the specific claims it
discussed, we find no merit to Adams’s assignment of error here.
      Adams next argues that the court erred in granting summary judgment
to Chrysler on the retaliatory discharge claim. Adams points to evidence that
some of her co-workers and supervisors were not held to the same standards for
violations of Chrysler’s code of conduct. The court held that Adams never filed
an EEOC retaliatory discharge complaint related to her termination; her only
EEOC filling dealt with the failure-to-promote claims. Because Adams never
perfected the discharge claim by filing with EEOC, it was properly dismissed on
summary judgment.            The court also explained that Chrysler’s summary
judgment motion would be granted on this claim even if it had been perfected by



      4
          See 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d)(2).
      5
          See TEX. LAB. CODE § 21.202(a) (2006).

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an EEOC filing because Adams’s termination was twelve months after her
EEOC filing, and five months after she filed this lawsuit. The court held that
this long time delay negated any inference that Adams’s complaint caused her
discharge. The court also observed that there was evidence that Adams had
received negative performance evaluations for tardiness to work and that
performance was Chrysler’s stated reason for termination, and that Adams
admitted that she did not meet Chrysler’s expectations. The court stated that
this was a legitimate, nondiscriminatory reason for the termination, citing our
holding in Mayberry v. Vought Aircraft Co.6                 Summary judgment on the
retaliatory discharge claim was not error.
      Adams’s final argument is that the court ignored evidence of her education
when considering the discriminatory failure-to-promote claims. She asserts that
her educational records show that she was at least as qualified as two other
candidates for promotion opportunities: Wendy Connerly and Jennie Fogg. The
court held that Adams had not established her prima facie case of discriminatory
failure-to-promote, but also explained that Adams’s claim would fail even if she
had made a prima facie showing, since she had not presented substantial
evidence that she was “clearly better qualified” than the individuals who
received the desired positions.7 We agree. Adams has not presented evidence
that she was clearly more qualified than Connerly and Fogg; if anything, the
record shows the opposite.           Therefore we find no merit to Adams’s final
assignment of error.
                                              IV
      For these reasons, we AFFIRM the order of the district court.




      6
          See 55 F.3d 1086, 1091 (5th Cir. 1995).
      7
          See Celestring v. Petroleos de Venezuela, 266 F.3d 343, 357 (5th Cir. 2001).

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