                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                       F I L E D
                     UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT                     December 28, 2004

                           _______________________                Charles R. Fulbruge III
                                                                          Clerk
                               Summary Calendar
                                 No. 03-20942
                           _______________________

                 BEKEE C. NWAKANMA, Doctor of Education,

                                                     Plaintiff-Appellant,

                                   versus

                        VICTOR RODRIGUEZ, et al.,

                                                                  Defendants,

                  TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

                                                         Defendant-Appellee.


               Appeal from the United States District Court
          for the Southern District of Texas - Houston Division
                        Civil Action No. H-01-4269


Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

              Appellant Nwakanma raises five claims of error arising

out of his Title VII suit, on which Appellees Rodriguez and the

Texas Department of Criminal Justice (“TDCJ”) prevailed in the

district court.       Specifically, Nwakanma contends the district

court: (1) erred in granting partial summary judgment to Appellees

on the basis that he failed to meet the minimum qualifications for

an   Internal    Affairs    Division   position;   (2)    erred   in    denying


      *
            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opinion should not be published and is not precedent except under the limited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.
Nwakanma’s motion for default judgment; (3) erred in failing to

determine whether Nwakanma was harassed, intimidated, or retaliated

against for engaging in protected activities; and (4) erred in

failing to address whether Nwakanma was denied fringe benefits,

overtime, and compensatory time. Finally, Nwakanma argues that the

jury verdict in Appellees’ favor as to Nwakanma’s claim relating to

a position with the Youthful Offender Program was against the

weight of the evidence.   We DISMISS the appeal in part, and AFFIRM

the judgment of the district court.

                             Background

          Nwakanma sued Appellees under 42 U.S.C. §§ 1981, 1983,

2000e (Title VII), and 12112, for discriminating against him based

on his race and national origin in refusing to promote him to two

supervisory positions.    Nwakanma, a black male of Nigerian origin,

works for the TDCJ as a supervisor in the Parole Division.        On

June 26, 2000, Nwakanma applied for a managerial position with the

TDCJ’s Internal Affairs Division.      The listed qualifications for

this job included that applicants be a currently licensed Texas

Police Officer (or eligible to be licensed) by the Texas Commission

on Law Enforcement Officer Standards and Education (TCLEOSE).

Although Nwakanma was certified in firearms training, he did not

hold the requisite certification.     The applicant receiving the job

held the appropriate certification, as well as more than fifteen

years of peace officer experience.



                                  2
           In September of the same year, TDCJ advertised an opening

for a program manager with its Youthful Offender Program.    Minimum

qualifications for the position included a bachelor’s degree from

an accredited college or university, five years of experience in

counseling within criminal justice programs, and two years of

experience in the supervision of employees.    The announcement also

stated a preference for major course work in behavioral science and

sensitivity (and cultural) training.       On September 13, 2000,

Nwakanma applied for the position.    His application included his

educational background — a doctorate in education and over ten

years of experience with the TDCJ Parole Division — as well as

sixteen years of experience as a program administrator and nearly

ten years of experience as a supervisor.      Having met the minimum

requirements for the position, Nwakanma was interviewed for the

job.   The interviewer, Diana Coates, ultimately did not recommend

him for the job.   Instead, Coates recommended Robert Seale for the

position, based on his practical experience and his responses to

interview questions.

           After being denied both positions, Nwakanma filed suit in

the district court against Appellees for discriminating against him

in violation of federal law.     After what Nwakanma perceived as

procedural default by Appellees, Nwakanma moved for a default

judgment, which the district court denied.       The district court

granted summary judgment to Appellees on the claim relating to the

Internal Affairs Division job, and a jury rendered a verdict in

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Appellees’ favor on the claim relating to the Youthful Offender

Program position.     Nwakanma timely filed notice of appeal to this

court.

                   Internal Affairs Division Position

           The district court granted partial summary judgment to

Appellees on Nwakanma’s claim that he was discriminated against in

being denied the promotion to the managerial position with the

Internal Affairs Division.       We review a district court’s summary

judgment decision de novo, using the same standard as that court.

See Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 506 (5th

Cir. 2003); Fed. R. Civ. P. 56.

           Claims of racial discrimination based on circumstantial

evidence   are     evaluated   under       the    burden-shifting     framework

established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-

05, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973).             Under this formula, a

plaintiff must first establish a prima facie case of discrimination

by demonstrating: (1) he belongs to a racial minority; (2) he

applied for and was qualified for the position sought; and (3) he

suffered an adverse employment action; and (4) he was replaced by

someone outside his protected class.             Cf. St. Mary’s Honor Ctr. v.

Hicks, 509 U.S. 502, 506, 113 S. Ct. 2742, 125 L.Ed.2d 407 (1993).

Nwakanma met his burden as to elements 1, 3, and 4 of this frame-

work: Nwakanma is black, he was denied the promotion, and              instead

the TDCJ   hired    someone    outside     a     protected   class.   However,



                                       4
Nwakanma failed to offer any evidence that he was qualified for the

position. Nwakanma offered only a TCLEOSE-issued firearms certifi-

cate; the position required all applicants to have valid TCLEOSE

peace officer licenses. Because Nwakanma failed to offer competent

summary judgment evidence that he met the second requirement, the

district court properly awarded Appellees summary judgment as to

the discrimination claim based on the Internal Affairs position.

                Youthful Offender Program Position

           The district court determined that a material issue of

triable fact existed as to Nwakanma’s discrimination claim based on

the position for which he was denied with the Youthful Offender

Program.   After a three-day trial, the jury found in Appellees’

favor.     Nwakanma   challenges   this   jury   verdict   based    on   the

sufficiency of the evidence.

           Unfortunately, we must dismiss Nwakanma’s appeal as to

this claim. “If the appellant intends to urge on appeal that a

finding or conclusion is unsupported by the evidence or is contrary

to the evidence, the appellant must include in the record or

transcript of all evidence relevant to that finding or conclusion.”

FED. R. APP. P. 10(b)(2).    Failure of an appellant to provide a

complete transcript is a proper ground for dismissal of the appeal.

Coats v. Pierre, 890 F.2d 728, 731 (5th Cir. 1989).                Nwakanma




                                   5
included only portions of the transcript in the record.                      We thus

dismiss this aspect of his appeal.1

                       Motion for Default Judgment

            Nwakanma appeals the district court’s denial of his

motion    for    default   judgment,       which     was   based   on   Appellees’

supposedly      untimely   response       to   his   complaint.       This   act    is

reviewed for abuse of discretion.              Federal Sav. & Loan Ins. Corp.

v. Kroenke, 858 F.2d 1067, 1069 (5th Cir. 1988); United States v.

One 1978 Piper Navajo PA-31 Aircraft, 748 F.2d 316, 318 (5th Cir.

1984).     Even assuming that Nwakanma’s contention that Appellees

filed their Answer four days late is true, Nwakanma suffered no

prejudice in this delay.         Cf. Mason & Hanger-Silas Mason Co. v.

Metal Trades Council, 726 F.2d 166, 168 (5th Cir. 1984) (noting

that default judgments are disfavored and should generally not be

granted    without    more   than     a    defendant’s      failure     to   meet   a

procedural time requirement). The district court did not abuse its

discretion in denying this motion.

           Denial of Fringe Benefits, Unfair and Disparate
                   Treatment, and Disparate Effects

            Nwakanma’s original complaint included claims of denial

of fringe benefits, unfair and disparate treatment, and disparate

effects.    However, Nwakanma also filed an Amended Complaint which


      1
            Even if we did not dismiss this aspect of the appeal, the record
excerpts submitted by Nwakanma do not appear to meet the high threshold required
to overturn the jury verdict. See Hiltgen v. Sunrall, 47 F.3d 695, 700 (5th Cir.
1995) (explaining that a jury verdict must be upheld unless “there is no legally
sufficient evidentiary basis for a reasonable jury to find” as it did).

                                           6
did    not   raise      these   issues,           either   specifically    or   by

incorporation.     We will not address issues not raised below unless

the newly raised issues concern pure questions of law and refusing

to    consider   them    will   result       in    a   miscarriage   of   justice.

See Dollis v. Rubin, 77 F.3d 777, 779 n.2 (5th Cir. 1995).

Nwakanma cannot meet this high burden, and we therefore will not

address these claims that he now resurrects on appeal.

             The appeal is DISMISSED in part and the judgment of the

district court is AFFIRMED.




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