                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                 UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                     October 7, 2003

                      _______________________               Charles R. Fulbruge III
                                                                    Clerk
                          Summary Calendar
                            No. 03-60118
                      _______________________

                       WILLIE MAE ROBINSON,
                                                 Plaintiff-Appellant,

                               versus

   INTERNAL REVENUE SERVICE, Charles Rossotti, Commissioner,

                                                  Defendant-Appellee.

_________________________________________________________________

           Appeal from the United States District Court
             for the Southern District of Mississippi
                          3:00-CV-643-BN
_________________________________________________________________


Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

          Plaintiff   Willie   Mae   Robinson   appeals   the    district

court’s grant of summary judgment in favor of the Internal Revenue

Service (“IRS”) on Robinson’s Title VII race discrimination claim.

Robinson appeals on two grounds: (1) the district court erred in

dismissing the case on summary judgment and (2) the district court

erred when it struck Robinson’s claim for compensatory damages.




     *
      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this opinion should not be published and is not precedent except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.
Because we find no error in the district court’s judgment, we

AFFIRM.

                                 I.   Background

           In March 1987, Robinson was hired by the IRS to be a tax

auditor.        Starting    in     1988,    Robinson    began    receiving   poor

performance reports from her supervisor.                    These poor reviews

continued for the next three years.                    In 1991, at Robinson’s

request, she was demoted to a clerical position.                    In this new

position, Robinson’s supervisor was Ron Lively.                 In 1993, Robinson

filed an internal grievance against Lively contending that he had

not fairly evaluated her. Notably, in this grievance, Robinson did

not allege racial discrimination. As part of the settlement of her

grievance, Robinson took on the duties of the SS-8 coordinator, a

position that had previously been held by a more senior employee.

Robinson received special training to perform the SS-8 coordinator

duties and was also given a temporary promotion.

           In    March     1995,    Robinson     received    yet   another   poor

evaluation with scores that all but eliminated the possibility that

she would be promoted to the job she aspired to: revenue agent.

Nonetheless, Robinson applied for a revenue agent position and was

rejected in favor of Don Carter, an outside applicant.                  Robinson

then filed a complaint with the Department of the Treasury alleging

racial discrimination.             After being denied relief internally,

Robinson turned to the Equal Employment Opportunity Commission



                                           -2-
(“EEOC”) and was similarly denied relief.       Robinson then initiated

this action in district court.        The district court granted summary

judgment in favor of the IRS.

                           II.    Discussion

Summary Judgment

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

novo. See Price v. Fed. Express Corp., 283 F.3d 715, 719 (5th Cir.

2002).    Summary    judgment    is    appropriate   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 summary judgment as a matter of law.”         Fed. R. Civ. P. 56(c).

On a motion for summary judgment, the court must review the facts

in the light most favorable to the non-moving party.             Price, 283

F.3d at 719.     Summary judgment must be granted under the Federal

Rules when a party that will bear the burden of proof on an

essential element at trial fails to make a showing sufficient to

establish the existence of such an element.          See Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986).

          Claims of racial discrimination under Title VII are

evaluated under the burden-shifting framework set forth by the

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802-05 (1973).    Under this approach, Robinson must first establish

a prima facie case of discrimination by showing: (1) she belongs to


                                      -3-
a protected group; (2) she was qualified for the position sought;

(3) she suffered an adverse employment action; (4) the position

remained open and was eventually filled by someone outside the

protected class.   See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,

506 (1993).    In this case, the district court found that Robinson

established a prima facie case of discrimination.1      Once Robinson

has established a prima facie case, the burden then shifts to the

IRS to provide a legitimate, non-discriminatory reason for its

actions.      See McDonnell Douglas, 411 U.S. at 802. Here, the

district court found that the IRS’s stated reasons for Robinson’s

poor reviews and denial of the revenue agent position - her

inability to complete her work in a timely manner - constituted the

requisite reason for its actions.       On appeal, the parties do not

dispute the district court’s finding that the IRS had met its

burden in this regard.    Because the IRS has offered a legitimate,

non-discriminatory reason for its actions, the burden shifts back

to Robinson to show that the reasons proffered are a pretext for

unlawful racial discrimination.     See Price, 283 F.3d at 720.

           This court has repeatedly made clear that on summary

judgment, “the plaintiff must substantiate his claim of pretext

through evidence demonstrating that discrimination lay at the heart

of the employer’s decision.”    Id. (citing Rubenstein v. Adm’rs of

     1
        While there is some disagreement as to Robinson’s
qualifications for the revenue agent position, on appeal the
parties do not dispute the district court’s determination that a
prima facie case had been established.

                                  -4-
the   Tulane    Educ.   Fund,   218    F.3d     392,   400   (5th   Cir.    2000)).

However, even where such a showing is made, it will not necessarily

be    sufficient   to    prevent      summary    judgment      if   “no    rational

factfinder could conclude the action was discriminatory.”                        See

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148

(2000).   To determine whether summary judgment was appropriate, we

examine a      number   of   factors,    including      “the   strength     of   the

plaintiff’s prima facie case, the probative value of the proof that

the employer’s explanation is false, and any other evidence that

supports the employer’s case and that properly may be considered.”

Id. at 148-49.

            In this case, Robinson has completely failed to show that

racial discrimination lay at the heart of her poor performance

reviews or the decision not to hire her for the revenue agent

position. The poor evaluation Robinson received in March 1995 from

Lively was hardly the first time she had been criticized for her

on-the-job performance.         Indeed, the subpar reviews that Robinson

received in her prior position were the very reason she requested

a demotion and began working for Lively in 1994.                Moreover, early

on during her time working under Lively, Robinson received a poor

review and filed an administrative complaint that did not allege

any form of race-based discrimination.             It was only after Robinson

received another poor evaluation and was turned down for the

revenue agent position that Robinson alleged racial discrimination.

       As the district court noted, Lively has supervised both black

                                        -5-
and white employees in the past and has given a range of positive

and negative evaluations to his subordinates regardless of their

race. The record below indicates that Lively has only been accused

of racial discrimination once in the past, a claim that was

adjudicated and found to be without merit.          The same is true here -

the evidence presented to the district court makes it clear that

Robinson’s substandard performance reviews were not the result of

racial discrimination but were the product of a poor work ethic.

          Robinson’s claim that she was denied a promotion as a

result of racial discrimination also fails.           Robinson has offered

no evidence that she would have been promoted even if she had

received a     positive   review   from   Lively,    nor   has   she   offered

evidence that she was clearly better qualified for the revenue

agent position than the person selected.             This is particularly

important given Robinson’s voluntary downgrade from a position less

complex than that of a revenue agent.       Thus, Robinson has failed to

create a genuine issue of material fact as to her claim of racial

discrimination and the district court’s grant of summary judgment

was proper.2

          The judgment of the district court is AFFIRMED.




     2
       Robinson also claims that the district court erred when it
struck her claim for compensatory damages for failing to exhaust
her administrative remedies. We do not reach this issue in view of
the affirmance of summary judgment against Robinson.

                                    -6-
