               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT


                       ____________________

                           No. 97-20771
                         Summary Calendar
                       ____________________


          ROSE J. WOODS,

                                    Plaintiff-Appellant,

          v.

          THE TEXAS DEPARTMENT OF HUMAN SERVICES;
          SHIRLEY BARKER,
                                   Defendants-Appellees.


_________________________________________________________________

          Appeals from the United States District Court
                for the Southern District of Texas
                          (H-96-CV-2707)
_________________________________________________________________
                          March 31, 1998
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PER CURIAM:*


     Plaintiff-appellant Rose Woods appeals the district court’s

grant of summary judgment in favor of defendants-appellees Texas

Department of Human Services and Shirley Barker on her employment

discrimination claims under Title VII of the Civil Rights Act of

1964 and the Age Discrimination in Employment Act.     We affirm the


     *
      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this opinion should not be published and is not precedent except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.
judgment of the district court.




               I.   FACTUAL AND PROCEDURAL BACKGROUND

     At the time of her discharge on December 5, 1994, Rose

Woods, a black female age fifty-six years, had worked for the

Texas Department of Human Services (DHS) for twenty-two years.

For the twelve years immediately preceding her discharge, Woods

worked as a Medical Eligibility Specialist (ME) II in the

La Grange office of DHS Medical Eligibility Unit 25.    As part of

her responsibilities as an ME II, Woods screened clients for

Medicaid eligibility, including making determinations as to

Medicaid payments for nursing home care and Medicare premiums.

Additionally, she provided information and referral services to

clients, providers’ staff members, and the general public.

     In December 1992, DHS appointed Shirley Barker as supervisor

of Unit 25.   Barker supervised Unit 25 from her office in Temple,

Texas.   During her supervision of Woods, pursuant to the case

reading policy in effect for the DHS region that included Unit

25, Barker became aware of numerous errors Woods made in her

eligibility determinations.   Each month the state office would

send Barker a list of case names by worker that were to be

reviewed by the supervisory staff.    A committee consisting of

Barker and two ME III workers reviewed each case on the list.



                                  2
After the committee reviewed the cases, the affected employee

would have the opportunity to re-examine the cases and rebut any

disputed errors.     Barker routinely met with Woods to discuss her

errors and to refer her to the appropriate sections in the

Medicaid Eligibility Handbook.

     Woods’s 1993 performance evaluation contains a “does not

meet requirements” rating, her first such rating during her

twenty-two years with DHS.     Barker placed Woods on corrective

action from February 1, 1994 through April 30, 1994 and on

probationary status from September 1, 1994 through November 1,

1994.     On December 5, 1994, Woods was discharged.

     Woods filed her Original Complaint against the DHS and

Barker (collectively DHS) alleging race and age-based

discrimination in violation of Title VII of the Civil Rights Act

of 1964 (Title VII), 42 U.S.C. § 2000e-2(a), and the Age

Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.

§§ 621-634.     Woods also alleged that DHS illegally deprived her

of rights under the Civil Rights Act of 1871, 42 U.S.C. § 1983,

by terminating her and by denying her employment in the Community

Service Worker position for which she applied.1

         DHS filed their Motion for Summary Judgment on July 14,

     1
        Because Woods failed to include the failure-to-hire claim
in the charge filed with the EEOC, the district court determined
that this claim was barred. See Fine v. GAF Chem. Corp., 995
F.2d 576, 577-78 (5th Cir. 1993). Woods does not challenge this
determination. Consequently, this claim is not before this court
on appeal.

                                   3
1997.   The judge assigned to the Woods case died on July 23,

1997.   Woods asserts that the court manager informed her that

“all pending motions were vacated,” that she would be advised

when the case was transferred to another court, and that she

should timely file her joint pre-trial motion due August 25,

1997.   Based on this conversation with the court manager, Woods

did not file a response to the Motion for Summary Judgment.      The

district court granted DHS’s Motion for Summary Judgment and

entered judgment in favor of DHS on August 8, 1997.

     On August 10, 1997, Woods filed a rule 60(b) Motion for

Relief from Judgment, FED. R. CIV. P. 60(b)(1); a Motion to

Enlarge Time to Respond to Defendant’s Motion for Summary

Judgment, FED R. CIV. P. 6(b); and a Response in Opposition to

Defendant’s Motion for Summary Judgment.     After reviewing Woods’s

motions and late-filed response, the district court concluded

that even if Woods’s response had been timely, her arguments and

exhibits would have been insufficient to defeat DHS’s Motion for

Summary Judgment.   Accordingly, on September 9, 1997, the

district court denied Woods’s Motion for Relief from Judgment.

                          II.   DISCUSSION

     Woods contends that the district court erred in granting

DHS’s Motion for Summary Judgment.    We review the granting of

summary judgment de novo, applying the same criteria employed by

the district court in the first instance.     Texas Med. Ass’n v.



                                  4
Aetna Life Ins. Co., 80 F.3d 153, 156 (5th Cir. 1996).     Summary

judgment is proper “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment

as a matter of law.”   FED. R. CIV. P. 56(c).   In applying this

standard, we first consult the applicable substantive law to

ascertain the material factual issues.    King v. Chide, 974 F.2d

653, 655-56 (5th Cir. 1992).   We then review the evidence

pertaining to those issues, viewing the facts and inferences in

the light most favorable to the non-moving party.      Lemelle v.

Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994).

     The moving party bears the initial burden of “informing the

district court of the basis for its motion and identifying” the

portions of the record that “it believes demonstrate the absence

of a genuine issue of material fact.”    Wallace v. Texas Tech

Univ., 80 F.3d 1042, 1046-47 (5th Cir. 1996) (quoting Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986)).     If the moving party

meets its burden, the burden shifts to the non-moving party to

establish the existence of a genuine issue for trial.      Matsushita

Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 585-87 (1986).

     In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),

the Supreme Court established a three step process for analyzing

employment discrimination under Title VII.      Id. at 803-04.   This

                                 5
court applies the same requirements and evidentiary analysis to

cases brought under the ADEA.    Meinecke v. H & R Block, 66 F.3d

77, 83 (5th Cir. 1995); Bodenheimer v. PPG Indus., 5 F.3d 955,

957 n.4 (5th Cir. 1993).    To establish a prima facie case, the

“plaintiff must prove that (1) she is a member of a protected

class; (2) she was qualified for the position she held; (3) she

was discharged; and (4) after being discharged, her employer

replaced her with a person who is not a member of the protected

class.”   Id.   In age discrimination cases, the plaintiff may

alternatively show either that she was replaced by someone

younger or that she was discharged because of her age.    Id.

     If the plaintiff has successfully established her prima

facie case, the burden of production shifts to the defendant to

articulate a legitimate, nondiscriminatory reason for the

employment decision.    Marcantel v. Louisiana Dep’t. of Transp. &

Dev., 37 F.3d 197, 199 (5th Cir. 1994).    If the defendant

produces a legitimate, nondiscriminatory reason for the

challenged action, it has successfully removed the inference of

unlawful discrimination raised by the plaintiff’s prima facie

case.   LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 (5th

Cir. 1996); see also Texas Dep’t. of Community Affairs v.

Burdine, 450 U.S. 248, 255 (1980).    The plaintiff must then

persuade the trier-of-fact that the defendant’s articulated

reason is merely a pretext for an intentional act of


                                  6
discrimination against the employee.     LaPierre, 86 F.3d at 448

(citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510-11

(1993)).

       Woods asserts that her failure to timely file a response to

DHS’s Motion for Summary Judgment was due to “excusable neglect,”

such that the court should relieve her from the judgment pursuant

to Rule 60(b).    Woods does not explicitly argue that the district

court erred in denying her Rule 60(b) Motion for Relief from

Judgment.    Rather, in articulating the standard employed to

review the denial of Rule 60(b) motions, she argues that the

district court granted summary judgment without considering the

merits of her belated response.    Assuming arguendo that Woods

could successfully demonstrate excusable neglect in failing to

timely respond to the Motion for Summary Judgment, her claims of

race and age-based discrimination nonetheless fail as a matter of

law.    The summary judgment evidence included in Woods’s late-

filed response fails to establish the existence of a genuine

issue of material fact.

       We note as an initial matter that, in arguing that a genuine

issue of material fact exists as to whether DHS’s proffered

reason for her discharge is pretextual, Woods relies heavily on

Bienkowski v. American Airlines, Inc., 851 F.2d 1503 (5th Cir.

1988).    Her reliance is misplaced.   The test she cites for

establishing intentional discrimination derives from language in


                                  7
Bienkowski, id. at 1506 (citing Burdine, 450 U.S. at 256), that

the Supreme Court has declared to be dictum.    See St. Mary’s

Honor Ctr., 509 U.S. at 517-18.

     This court analyzes the pretext prong of the McDonnell

Douglas test by the traditional sufficiency-of-the-evidence

standard.   Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th

Cir. 1996) (en banc).   “There must be a conflict in substantial

evidence to create a jury question.”     Id. (quoting Boeing Co. v.

Shipman, 411 F.2d 365, 375 (5th Cir. 1969) (en banc)).    Evidence

must exist that the employee’s protected trait prompted the

employment decision and “had a determinative influence on the

outcome.”   Id. (quoting Hazen Paper co. v. Biggins, 507 U.S. 604,

610 (1993)).

     In her late-filed response, Woods submitted the Unit 25

staff directory, Barker’s travel records, interoffice memoranda,

discovery requests and responses, a list entitled “CCAD staff,”

letters from the nursing homes she serviced, her Employment and

Development Plan and Evaluation, and her Original Complaint.

Much of Woods’s evidence substantiates DHS’s proffered reason for

her discharge rather than refuting it.    In her unsworn memoranda

responding to her supervisor’s conferences, Woods admits errors

and delinquency in her work.   Nothing in her exhibits contradicts

her deposition statements in which she admits errors in her

casework.   Her annual evaluation demonstrates that she failed to


                                  8
satisfy the statistical performance criteria DHS employs to

measure whether ME employees “meet” or “exceed requirements” of

the job.   Woods maintains that the errors resulted from a

personal situation requiring her attention during the latter part

of 1993 and a turnover in staff in the La Grange office.

However, she has admitted that, during the pertinent time frame,

she never informed Barker of problems in completing applications

nor did she request assistance with her casework.   Even if DHS

had ignored requests for assistance, this fact would not entitle

Woods to relief under Title VII or the ADEA.   Neither of these

statutes “protects against unfair business practices, only

against decisions motivated by unlawful animus.”    Nieto v. L & H

Packing Co., 108 F.3d 621, 624 (5th Cir. 1997).

     Woods argues that, after her discharge, “only white, younger

similarly situated workers remained in her unit.”   However, the

evidence she cites as establishing this fact is a list entitled

“CCAD Staff” containing the names of seven white female employees

ranging in age from thirty-three to forty-nine, all but one in

her forties.   Woods does not indicate what position any of these

employees held.   The Unit 25 directory which she submitted with

her late-file response contained the names of ten ME specialists

and trainees and five secretarial and clerk-typist employees.

This list does not categorize employees by race or age.    Only one

name appears on both lists, that of Lynette Wiederhold, who is


                                 9
identified as a clerk-typist on the Unit 25 directory.   Woods

submits no other evidence to indicate that the employees named on

the list are similarly situated.

     Moreover, DHS presented evidence (1) that Barker lowered

Woods’s caseload in 1993, (2) that her caseload remained lower

than the average caseload of the remaining eight workers in Unit

25, and (3) that Barker and other supervisory personnel provided

assistance and training to Woods to improve her performance.

Woods failed to discredit this evidence.   Although Woods claims

that DHS never assigned any of her cases to other workers under

the lend-lease program, she does not dispute DHS’s contention

that she did not meet the criteria for having her cases removed

and assigned to other workers through the lend-lease program.2

DHS submitted evidence that the absence of documented problems

and unacceptable evaluations prior to Barker becoming supervisor

in 1992 resulted from leniency and upward adjustments by a prior

supervisor and from a 1992 policy change by DHS in the manner in


     2
        The DHS lend-lease program provides a mechanism for
transferring cases from certain categories of workers to other,
tenured workers within the unit. Woods argues that Barker
required her to work lend-lease cases for other employees, yet
never assigned any of her cases to other workers during the time
of her personal problems or during her period of corrective
action or probation. DHS submitted evidence that cases were
assigned on a lend-lease basis only for new workers in training,
for workers on extended sick leave, or for vacant worker
positions. Woods never requested or took extended leave during
any of the applicable time periods. Nor did she meet the other
criteria for having her cases assigned. After July 5, 1994, no
lend-lease cases were assigned to Woods.

                               10
which files were reviewed for error.    Woods did not rebut this

evidence.

     Woods has offered no evidence that DHS’s discharge based on

repeated, significant errors in her work was merely a pretext for

intentional discrimination.     She has not sustained her burden of

establishing a genuine issue of material fact as to whether age

or race animus constituted a motivating factor in DHS’s decision

to fire her.   Accordingly, the district court did not err in

granting DHS’s Motion for Summary Judgment.

                         III.    CONCLUSION

     For the foregoing reasons, we AFFIRM the district court’s

judgment.




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