                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                     F I L E D
                          UNITED STATES COURT OF APPEALS
                                   FIFTH CIRCUIT                                   November 26, 2003

                                                                                 Charles R. Fulbruge III
                                                                                         Clerk
                                       No. 03-50460


                                 CYNTHIA R. WILLIAMS,

                                                                   Plaintiff-Appellant,

                                            versus

              JUPE COMPANY, INC., Women Business Enterprise,

                                                                     Defendant-Appellee.


               Appeal from the United States District Court
                     for the Western District of Texas
                              (SA-01-CV-1025)


Before SMITH, BARKSDALE, and CLEMENT, Circuit Judges.

PER CURIAM:*

       In her pro se complaint, Cynthia Williams claimed Jupe Company

discriminated against her on the basis of race, in violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et

seq.       Summary judgment was awarded Jupe.                  AFFIRMED.

                                               I.

       Through a temporary employment agency, Jupe hired Williams to

work for 45 days as a receptionist.                      After her first day on the

job, however, Jupe contacted the agency and stated it did not want



       *
               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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Williams to return.   According to Jupe, Williams’ performance had

been unsatisfactory because she took too long to perform simple

tasks (such as typing a letter).

                                  II.

     In response to Jupe’s summary judgment motion, Williams filed

an “objection to the motion for summary judgment”; she stated in

the objection that it was a “motion for continuance” and requested

a jury trial.   It is not clear whether Williams appeals, pro se,

the denial of her continuance motion or the summary judgment.          We

consider both issues.

                                   A.

     Williams   contends   the   denial   of   her   continuance   motion

precluded her obtaining witness statements and discovery necessary

for her discrimination action.      We review rulings on Rule 56(f)

continuance motions for abuse of discretion.         Daly v. Sprague, 675

F.2d 716, 724 n.10 (5th Cir. 1982), cert. denied, 460 U.S. 1047

(1983).   Williams did not submit mandatory disclosures, failed to

respond to discovery until the magistrate judge threatened to

dismiss her action, and demanded the magistrate judge summon

witnesses to testify (no live testimony for summary judgment

proceedings).   The district court did not abuse its discretion in

denying the motion.




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                                    B.

     A summary judgment is reviewed de novo, applying the same

legal standard as the district court.        E.g., Wyatt v. Hunt Plywood

Co., 297 F.3d 405, 408 (5th Cir. 2002), cert. denied, 537 U.S. 1188

(2003).     Such judgment should be granted if the evidence shows

there is “no genuine issue as to any material fact and ... the

moving party is entitled to a judgment as a matter of law”.                 FED.

R. CIV. P. 56(c); see Wyatt, 297 F.3d at 408-09.          A fact issue is

material only “if its resolution could affect the outcome of the

action”.    Wyatt, 297 F.3d at 409.

     In determining whether there is a material fact issue, we

consider all of the evidence in the record but do not make

credibility determinations or weigh the evidence.            E.g., Reeves v.

Sanderson    Plumbing    Prods.,   Inc.,   530   U.S.   133,    150    (2000).

Instead, we    “draw    all   reasonable   inferences   in     favor   of   the

nonmoving party”.       Id.; Wyatt, 297 F.3d at 409.

     Williams attempts to prove her race discrimination claim by

indirect evidence.        As a result, we apply the burden-shifting

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

Under this three-part scheme, a plaintiff must first present a

prima facie case of discrimination.              A plaintiff does so by

showing:     (1) she belongs to a protected group; (2) she was

qualified for the position sought; (3) she suffered an adverse

employment action; and (4) she was replaced by someone outside the

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protected class.      E.g., Price v. Fed. Express Corp., 283 F.3d 715,

720 (5th Cir. 2002).     If the plaintiff presents a prima facie case,

the burden shifts to the defendant to rebut the plaintiff’s case by

demonstrating a “legitimate, nondiscriminatory justification for

its actions”.    Id.    If the defendant does so, the burden shifts to

the plaintiff to attempt to show that the defendant’s proffered

reason is instead a pretext for discrimination.         Id.

     We assume that Williams presented a prima facie case.           Jupe

responded by stating that it terminated her because of her poor

performance.    This proffered reason constitutes a legitimate, non-

discriminatory justification for Jupe’s adverse employment action.

See Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 408 (5th

Cir. 1999).

     Williams attempts to show that Jupe’s claimed justification is

a   pretext     for    discrimination.     She     contends   that   Jupe

mischaracterized her work performance.           Mr. Jupe stated in his

affidavit that Williams spent three hours typing a simple letter.

Williams stated in her affidavit that instead it took her 50

minutes.

     Again, at the summary judgment stage, we take the nonmovant’s

(Williams’) representation of the facts as true. Even if we assume

that Jupe is mistaken about precisely how long it took Williams to

type the letter, this does not satisfy Williams’ burden to create




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a material fact issue on whether Jupe’s asserted justification

(poor performance) was a pretext for discrimination.

                              III.

     For the foregoing reasons, the summary judgment is

                                                       AFFIRMED.




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