                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                              August 21, 2003
                        FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                            No. 02-31208


PEARL MOODY,

                                           Plaintiff-Appellant,

                               versus

UNITED STATES SECRETARY OF THE ARMY,

                                           Defendant-Appellee.



            Appeal from the United States District Court
                for the Western District of Louisiana
                             (01-CV-111)



Before JOLLY, HIGGINBOTHAM, and STEWART, Circuit Judges.

PER CURIAM:*

     Pearl Moody appeals the district court’s grant of summary

judgment, dismissing all of her claims.      Moody alleged that her

employer, the United States Army, discriminated against her because

of her age, in violation of the Age Discrimination in Employment

Act (ADEA),1 as well as Louisiana’s state age discrimination law.2


     *
      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this opinion should not be published and is not precedent except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.
     1
         29 U.S.C. § 621, et seq.
     2
       The district court dismissed Moody’s state law claims and
she has not appealed that decision here.
We affirm on the basis that Moody has failed to demonstrate a prima

facie case of age discrimination.

                                 I.

     Moody alleges that her supervisor, Ellis Smith, harassed her

for several years based on her age, and refused to give her a

promotion or reevaluate her job and upgrade her pay scale to

reflect the work she was actually doing.    Moody complained to the

Equal Employment Opportunity Office, and eventually entered a

settlement agreement to resolve the dispute.   However, after Moody

concluded that the Army was failing to follow through on the

settlement, she sued in district court.    The Army moved to dismiss

on the basis that the dispute had been resolved by the settlement

agreement, but the district court concluded that both parties

breached the terms of the agreement and therefore it was void.

Neither party appeals that decision.       The Army then moved for

summary judgment based on Moody’s alleged failure to exhaust

administrative remedies, or alternatively, failure to make out a

prima facie case of age discrimination. The district court granted

summary judgment in favor of the Army and dismissed Moody’s claims

with prejudice.   The district court also granted the Army’s motion

to strike several exhibits from Moody’s response, and denied

Moody’s Rule 59(e) Motion to Amend Judgment.         Moody has not

appealed either of these decisions.       Moody timely appealed the

grant of summary judgment.

                                II.

                                 2
       We review a grant of summary judgment de novo, applying the

same       standard   as   the   district   court.3     Summary   judgment   is

appropriate when, viewing the evidence in the light most favorable

to the nonmoving party, there is no genuine issue of material fact

and the moving party is entitled to judgment as a matter of law.4

An issue is genuine if the evidence is sufficient for a reasonable

jury to return a verdict for the nonmoving party.5                Although the

district court dismissed Moody’s claims for failure to exhaust

administrative remedies, the Army also urges that Moody failed to

make out a prima facie case of discrimination.               We turn to this

alternative basis first.6

       A claim for violation of the ADEA may be established by direct

or     circumstantial       evidence.        If   the    plaintiff    provides

circumstantial evidence of discrimination, the familiar burden




       3
       See Urbano v. Continental Airlines, Inc., 138 F.3d 204, 205
(5th Cir. 1998).
       4
       See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986);
see also Fed. R. Civ. P. 56(c).
       5
           Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
       6
        The timely filing requirements of the ADEA function as
statutes   of   limitations  rather   than  a  prerequisite   for
jurisdiction. See Rhodes v. Guiberson Oil Tools Div., 927 F.2d
876, 878 (5th Cir. 1991); Henderson v. United States Veterans
Admin., 790 F.2d 436, 440 (5th Cir. 1986). Therefore, we need not
decide the timeliness of Moody’s claims before addressing their
merits.

                                        3
shifting framework of McDonnell Douglas applies.7         Under McDonnell

Douglas, the plaintiff must first establish a prima facie case of

discrimination, which the defendant must then rebut by producing a

legitimate, nondiscriminatory justification for its actions.             The

plaintiff must then demonstrate that the proffered reasons are

pretextual,    and     establish   that   the   defendant’s   actions   were

discriminatory.8

     To establish a prima facie case of failure to promote based on

age discrimination, the employee must demonstrate that “1) he

belongs to the protected class, 2) he applied to and was qualified

for a position for which applicants were being sought, 3) he was

rejected, and 4) another applicant not belonging to the protected

class was hired.”9         Here, Moody alleges that she asked for a

promotion on numerous occasions, although she only cites a single

occasion in February of 1995 when she applied for an open position.

She claims that Smith changed the job description of the position

for which she applied, and “[t]he effect of this change was to deny

Moody the promotion.”         She also alleges that Smith gave the

promotion to a much younger employee.




     7
       See Evans v. City of Houston, 246 F.3d 344, 349 (5th Cir.
2001) (citing McDonnell Douglas v. Green, 411 U.S. 792 (1973)).
     8
         Id. at 350.
     9
         Medina v. Ramsey Steel Co., 238 F.3d 674, 680-81 (5th Cir.
2001).

                                      4
      It is clear that Moody, who is 62 years-old, is a member of

the protected class and that she was rejected for the promotion.

However, the summary judgment evidence does not establish that

Moody was     qualified    for    the   position    for   which   she   applied.

Likewise, there is no summary judgment evidence before us which

indicates that the position was given to someone who was not a

member of the protected class.10             Therefore, Moody has failed to

establish a prima facie case based on a failure to promote.

      Similarly, Moody has also failed to establish a prima facie

case for any claim that she failed to receive a pay raise or a

reevaluation of her pay scale to reflect the work she was actually

performing.    To establish such a claim, she must demonstrate that

younger employees who were similarly situated received raises or

reevaluation of their pay scales.11             Although she claims that she

is   the   lowest   paid   employee     in   her   department,    she   has   not

presented    any    evidence     that   other   similarly   situated     younger

employees are paid more.           The fact that she is the lowest paid

employee, without more, cannot establish a prima facie case of

discrimination.



      10
       Moody refers only to a stricken exhibit which states that
the position was given to “a friend” of Smith’s. Even if we were
to consider this stricken evidence, it does not establish that
Moody was qualified for the position or that it was given to
someone younger.
      11
       See Bennett v. Total Minatome Corp., 138 F.3d 1053, 1062
(5th Cir. 1998).

                                         5
     Because Moody has failed to establish a prima facie case of

discrimination under the McDonnell Douglas framework, she must

establish discrimination by direct evidence.12                  Although Moody

alleges that Smith engaged in a long-running pattern of harassment,

her detailed log of Smith’s behavior cites only four instances

where Smith’s behavior evidences discriminatory animus. In August,

1997, he asked Moody, “Granny have you not got anything to do?”; on

August 26, 1998, he directed someone to Moody by stating, “See that

old woman and she will take care of you”; on August 31, 1998, he

asked Moody, “old woman, when are you going to retire and go home

so someone younger can have a job?”; and again on September 17,

1998, he asked, “Granny, when are you going to retire and let

someone younger have a job?”13

     We    analyze    remarks   presented    as        direct     evidence    of

discrimination under the test articulated in Brown v. CSC Logic,

Inc.14     “For comments in the workplace to provide sufficient

evidence    of   discrimination,   they   must    be    1)   related   to    the



     12
       See Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400, 404
(5th Cir. 2001) (stating that where the plaintiff’s claims cannot
survive under the McDonnell Douglas framework, the plaintiff must
prove discrimination by direct evidence).
     13
       Moody also complains of other harassing behavior by Smith,
and alleges that it was motivated by her age. Even assuming that
this unsupported allegation is true, Smith’s other behavior is not
direct evidence of age discrimination.
     14
       See Laxton v. Gap, Inc., 333 F.3d 572, 583 n. 4 (5th Cir.
2003); Auguster, 249 F.3d at 405.

                                    6
protected class of persons of which the plaintiff is a member;               2)

proximate in time to the [employment decision];                 3) made by an

individual with authority over the employment decision at issue;

and 4) related to the employment decision at issue.”15

     We begin by noting that all of the remarks occurred well after

the denial of the promotion in 1995, and thus cannot be evidence of

discriminatory motive in denying the promotion.                   They could,

however, be evidence of discriminatory motive in failing to give

Moody a raise, or to reevaluate her pay scale.              Only the remarks

made on August 31 and September 17 are arguably related to a

failure to grant a pay raise, whereas the other two remarks merely

evidence animus directed at Moody based on her age and thus are not

direct evidence of discrimination. However, because Moody does not

indicate when she asked for and was denied a pay raise, other than

to state that she “repeatedly asked” for a promotion, we cannot

evaluate whether these comments are proximate in time to any

employment action.         We therefore find that these two comments do

not raise an issue of material fact sufficient to avoid summary

judgment.

     Finally,      Moody    alleges   that    the    comments   listed   above

constitute a hostile work environment.              While these comments are

offensive    and   boorish,    they   are    not    “sufficiently   severe   or




     15
          Id. (internal quotation marks and brackets omitted).

                                       7
pervasive to alter the conditions of the victim’s employment and

create an abusive working environment.”16

                               III.

     We therefore AFFIRM the district court’s grant of summary

judgment dismissing all of Moody’s claims with prejudice.




     16
        Shepard v. Comptroller of Pub. Accounts of the State of
Tex., 168 F.3d 871, 874 (5th Cir. 1999) (internal quotation marks
and brackets omitted).

                                8
