                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 30, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 03-61073
                           Summary Calendar



     LINDA K EVERETT

                       Plaintiff - Appellant

     v.

     STATE OF MISSISSIPPI; ET AL

                       Defendants

     STATE OF MISSISSIPPI; DEPARTMENT OF WILDLIFE, FISHERIES
     AND PARKS
                    Defendants - Appellees



          Appeal from the United States District Court
            for the Southern District of Mississippi
                       No. 1:99-CV-477-BRR


Before KING, Chief Judge, and HIGGINBOTHAM and WIENER, Circuit
Judges.

PER CURIAM:*

     Plaintiff-Appellant Linda Everett filed a Title VII lawsuit

alleging that Defendants-Appellees, the State of Mississippi and

its Department of Wildlife, Fisheries and Parks, unlawfully

discriminated against her on the basis of her gender by promoting



     *
        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that this opinion should not be published and is not precedent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. 03-61073
                                -2-

a male employee to a position in her geographic area while

concealing the position’s location from her, thus dissuading her

from applying for the promotion.    The district court granted the

State’s motion for summary judgment, concluding that Everett

failed to state a prima facie case of sex discrimination.      For

the following reasons, we AFFIRM.

                           I. BACKGROUND

     Everett is a permanent, part-time General Service Employee

(“GSE”) employed by the Mississippi Department of Wildlife,

Fisheries and Parks at the Lower Pascagoula River Wildlife

Management Area (“WMA”).   In early 1998, the Mississippi

Legislature approved upgrading a similar GSE position in the

Upper Pascagoula WMA and Red Creek and Old River WMA to a

“conservation technician” position.    The upgrade was to become

effective on July 1, 1998; however, Donnie Dickerson, who held

the post, received a promotion and the job was reallocated to

another employee, Mike Holland.    Dissatisfied with the job,

Holland resigned, leaving the soon-to-be-upgraded position

vacant.

     The Department then sought to fill the vacancy through an

informal application process.   Gary Welford, the supervisor for

the subdistrict, discussed the opening with Michael Everett, the

plaintiff’s supervisor and husband.    Mr. Everett mentioned one

individual whom he thought would be interested in the position,

but he did not mention his wife.    Eventually, in May 1998,
                             No. 03-61073
                                  -3-

Welford hired Ben Hare, who had previously held the GSE position

at the same location.   After passing the qualifying test, Hare

was promoted in accordance with the position upgrade.

     Everett admits that she was aware the GSE position was open

and subject to an upgrade.    She claims that she chose not to

apply for the position, however, because she believed it involved

working only on the Upper Pascagoula WMA, twenty miles from her

home.   Nevertheless, after Hare received the promotion, Everett

alleges that she discovered that Hare’s duties actually spanned

both the Upper and the Lower Pascagoula WMAs.    She claims that,

had she been aware of this aspect of the job, she would have

applied for the position.    In addition, Everett contends that she

eventually asked Lonnie Rayburn, the District Manager, why she

had not been considered for the vacancy.    Rayburn stated that he

was not involved in the selection process and therefore did not

know why she was not asked to apply.    But he speculated that, if

he had been involved, he might not have considered her because he

would have assumed that she was not interested in working at a

location (the Upper Pascagoula WMA) far from her husband, her

home, and her children.

     Everett subsequently filed a complaint with the Equal

Employment Opportunity Commission alleging that she was denied

the promotion due to sex discrimination.    After exhausting her

administrative remedies, she filed suit under Title VII in

federal district court.   The district court granted the
                           No. 03-61073
                                -4-

Department’s motion for summary judgment, after finding that

Everett could not establish a prima facie case of employment

discrimination because she knew about the opening and its

promotion potential but failed to apply for the position.

Further, the court found that, although Everett may have been

confused about the location of the job, she had not shown that

this confusion was caused by the Department since the position

was, in fact, located on the Upper Pascagoula WMA.   Everett

appeals from that judgment.

                          II. DISCUSSION

     We review a district court’s grant of summary judgment de

novo, applying the same standard as the district court.     Fierros

v. Tex. Dep’t of Health, 274 F.3d 187, 190 (5th Cir. 2001).

Summary judgment is appropriate when the record, viewed in the

light most favorable to the non-moving party, demonstrates no

genuine issue of material fact and where the moving party is

entitled to judgment as a matter of law.   See FED. R. CIV. P.

56(c); see also Blow v. City of San Antonio, 236 F.3d 293, 296

(5th Cir. 2001).   We will affirm the district court’s conclusion

that the moving party is entitled to judgment as a matter of law

if “the nonmoving party has failed to make a sufficient showing

on an essential element of her case with respect to which she has

the burden of proof.”   Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986) (internal quotation marks omitted).   Importantly,

however, “the nonmoving party must do more than allege an issue
                          No. 03-61073
                               -5-
of material fact: ‘Rule 56(e) . . . requires the nonmoving party

to go beyond the pleadings and by her own affidavits, or by the

depositions, answers to interrogatories, and admissions on file,

designate specific facts showing that there is a genuine issue

for trial.’” Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400,

402 (5th Cir. 2001) (alteration in original) (quoting Celotex,

477 U.S. at 324).

     Under the familiar McDonnell Douglas burden-shifting

framework, to establish a prima facie claim of sex discrimination

based on a failure to promote, a plaintiff must demonstrate: “(1)

that she was a member of a protected group; (2) that she applied

for a position for which she was qualified; (3) that she was

rejected; and (4) that . . . the employer promoted . . . a member

of the opposite sex for the job.”   Jones v. Flagship Int’l, 793

F.2d 714, 724 (5th Cir. 1986).1   “The application requirement is

important to establishing” the prima facie case “because it shows


     1
          Everett appears to argue that Rayburn’s statements
constitute direct evidence of sex discrimination and that she
need not follow the McDonnel Douglas framework. See Auguster,
249 F.3d at 404 n.7. We disagree. While Everett argues that
Rayburn had the apparent authority to make the adverse employment
decision, she has not proffered any evidence showing that Rayburn
was the decision-maker responsible for filling the vacancy or
that he exerted influence or leverage over the actual decision-
maker. Instead, the undisputed evidence in the summary-judgment
record demonstrates that Welford was responsible for selecting
Hare for the position in question. Thus, Rayburn’s speculative
statement––that, had he been responsible for the promotion
decision, he might not have considered Everett because she was a
married woman with children who lived far from the job site––does
not constitute direct evidence of intentional discrimination or
relieve Everett of her prima facie burden of proof. Cf. Russell
v. McKinney Hosp. Venture, 235 F.3d 219, 225-27 (5th Cir. 2000).
                            No. 03-61073
                                 -6-
that the decision-maker knew about the plaintiff and the

plaintiff’s interest in the position.”     Walker v. Prudential

Prop. & Cas. Ins. Co., 286 F.3d 1270, 1275 (11th Cir. 2002).

Everett argues that she need not demonstrate that she applied for

the position, however, because she has alleged that the

Department deliberately concealed from both her and her husband

an important fact regarding the job (i.e., its geographic

location), specifically to prevent her from expressing interest

in the position.   In the past, we have held that, where an

employer does not publish a vacancy or create a formal

application process, a plaintiff need not prove that she applied

for the position in order to make out a prima facie case of

discrimination.    See Bernard v. Gulf Oil Corp., 841 F.2d 547, 570

(5th Cir. 1988); see also Dews v. A.B. Dick Co., 231 F.3d 1016,

1021-22 (6th Cir. 2000) (following Carmichael v. Birmingham Saw

Works, 738 F.2d 1126, 1132-33 (11th Cir. 1984)).    Instead, a

plaintiff may satisfy her prima facie burden by proffering

evidence “that the company had some reason or duty to consider

her for the post.”   Jones, 793 F.2d at 724; accord Johnson v.

Louisiana, 351 F.2d 616, 622 (5th Cir. 2003); Bernard, 841 F.2d

at 570 (“It is not legally sufficient or legitimate for an

employer to reject an employee who does not have notice or an

opportunity to apply for a promotion.”).

     Our precedents have not addressed the question whether an

employee who is aware of a promotion opportunity, but does not
                           No. 03-61073
                                -7-
find it attractive due to misinformation, may similarly avoid the

application requirement.   While we are cognizant of the logic

behind applying the exception in these situations, we do not

believe that Everett has proffered any evidence suggesting that

the Department affirmatively concealed this information from her.

She admitted in her deposition that she believed the to-be-

upgraded position was located in the Upper Pascagoula WMA because

it was labeled with PIN # 706, the number that had been assigned

to the GSE position previously held by Hare, Dickerson, and

Holland, whose only duties involved the Upper Pascagoula.     After

Hare was hired and promoted, Everett claims that she read a

letter sent by one member of the Department administration to

another, which identified Hare’s duties as including both the

Upper and the Lower Pascagoula locations.   While her sworn

statement regarding the contents of this letter may create a

question of fact about the scope of Hare’s actual duties, it does

not reasonably create an inference that the Department

deliberately misled either her or her husband.   Everett provides

no evidence, for example, that Hare or other potential applicants

were provided different, potentially more accurate information

about the job or that the Department’s sole motivation for

retaining the PIN number was to prevent only her from applying.

Therefore, because Everett had notice of the promotion

opportunity and has admitted that she had a mechanism for
                          No. 03-61073
                               -8-
expressing interest but chose not to do so, we hold that she has

failed to state a prima facie case of discrimination.

                         III. CONCLUSION

     Accordingly, we AFFIRM the judgment of the district court.
