               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                       _____________________

                            No. 00-60658
                          Summary Calendar
                       _____________________


          LINDA MCLENDON

                                         Plaintiff - Appellant

          v.

          INGALLS SHIPBUILDING INC

                                         Defendant - Appellee

_________________________________________________________________

           Appeal from the United States District Court
             for the Southern District of Mississippi
                      USDC No. 1:99-CV-181-GR
_________________________________________________________________
                            May 31, 2001

Before KING, Chief Judge, and JONES and STEWART, Circuit Judges.

PER CURIAM:*

     In this employment sex discrimination case, Plaintiff-

Appellant Linda McLendon appeals from the district court’s grant

of summary judgment in favor of Defendant-Appellee Ingalls

Shipbuilding, Inc.   For the following reasons, we AFFIRM.




     *
      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this opinion should not be published and is not precedent except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.
                I.   FACTUAL AND PROCEDURAL BACKGROUND

     In February 1990, Plaintiff-Appellant Linda McLendon began

her employment at Defendant-Appellee Ingalls Shipbuilding, Inc.

(“Ingalls”) in the position of Designer, Labor Grade 42.

McLendon was transferred to the Quality Assurance Department in

1995.    From August 1995 to late 1998, McLendon applied for

thirteen different promotions within Ingalls and received none.

In each case, she was either denied the promotion, or the

requisition for the promotion was cancelled.1

     On December 8, 1997, McLendon filed a complaint with the

Equal Employment Opportunity Commission (“EEOC”) alleging that

Ingalls denied her promotions from August 2, 1995 to June 18,

1997 because of her gender.    The EEOC investigated her complaint

and issued a right-to-sue letter on February 26, 1999.

     In April 1998, McLendon was finally promoted to Design


     1
          Following is a list of the promotions for which
McLendon applied and the subsequent disposition of each
application:

Requisition Number                     Disposition
52-1556 (Design Specialist)            Denied September 11, 1995
52-1590 (Design Specialist)            Denied December 6, 1995
52-1620 (Design Specialist)            Denied December 6, 1995
52-1667 (Engineering Supervisor)       Denied March 11, 1996
52-1704 (Engineering Supervisor)       Denied May 10, 1996
52-1751 (Design Specialist)            Denied November 11, 1996
52-1777 (Design Specialist)            Denied December 11, 1996
52-1783 (Design Specialist)            Denied December 11, 1996
52-1825 (Design Specialist)            Denied June 19, 1997
52-1861 (Design Specialist)            Denied July 15, 1997
52-1788 (Design Specialist)            Denied July 25, 1997
52-1982 (Design Specialist)            Cancelled February 18, 1998
52-1962 (Design Specialist)            Denied March 4, 1998

                                   2
Specialist.       Shortly thereafter, on May 7, 1998, McLendon filed a

second charge with the EEOC, claiming that Ingalls denied her a

prior promotion on March 4, 1998 because of her gender and in

retaliation for her first EEOC complaint.       Then, on November 30,

1998, the EEOC issued its right-to-sue letter on this complaint.2

       In early 1999, McLendon resigned from Ingalls, and on May

17, 1999, she filed suit against Ingalls alleging violations of

Title VII of the Civil Rights Act of 1964 (“Title VII”) and

intentional infliction of emotional distress under Mississippi

law.       After the completion of discovery, Ingalls filed a motion

for summary judgment, which the district court granted on August

11, 2000.

       McLendon timely appeals.



                          II.   STANDARD OF REVIEW

       This court reviews a district court’s grant of summary

judgment de novo, applying the same standards as the district

court.       See Burch v. City of Nacogdoches, 174 F.3d 615, 618 (5th

Cir. 1999).       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 a judgment as a matter of law.”       FED. R. CIV. P.


       2
          The EEOC issued its right-to-sue letter on McLendon’s
second charge before doing so on her initial complaint.

                                      3
56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986).

     “If the moving party meets the initial burden of showing

there is no genuine issue of material fact, the burden shifts to

the nonmoving party to produce evidence or designate specific

facts showing the existence of a genuine issue for trial.”      Allen

v. Rapides Parish Sch. Bd., 204 F.3d 619, 621 (5th Cir. 2000)

(internal quotations and citation omitted).      Doubts are to be

resolved in favor of the nonmoving party, and any reasonable

inferences are to be drawn in favor of that party.      See Burch,

174 F.3d at 619.

     In conducting this de novo review, “[w]e can and frequently

do affirm the judgment of a district court for reasons other than

those expressed by that court.”       Casiano v. AT&T Corp., 213 F.3d

278, 283 (5th Cir. 2000).



     III.   PROPRIETY OF SUMMARY JUDGMENT IN FAVOR OF INGALLS

     McLendon argues that genuine issues of material fact exist

as to her claims against Ingalls.      Ingalls counters that

McLendon’s Title VII claims are partially time-barred, and even

if those claims were not so prohibited, they do not survive

summary judgment on the merits.   As to the timely filed Title VII

and intentional infliction of emotional distress claims, Ingalls

asserts that McLendon also failed to present sufficient evidence

to survive summary judgment.   McLendon responds that all of her

                                  4
Title VII claims are timely under the continuing violation

doctrine.

     As both parties agree that claims relating to requisitions

52-1825, 52-1861, and 52-1788 are timely, we examine first the

merits of those claims.    We then analyze the remaining Title VII

claims that Ingalls asserts are time-barred.    Finally, we assess

the merits of McLendon’s state law intentional infliction of

emotional distress claim.

              A. McLendon’s Title VII Claims Regarding

               Requisitions 52-1825, 52-1861, 52-1788

     A plaintiff may establish a claim of intentional

discrimination by either direct or circumstantial evidence.

Absent direct evidence of discriminatory intent, as is typically

the case, proof via circumstantial evidence is accomplished using

the framework set forth in the seminal case of McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973).    First, the plaintiff must

demonstrate that a prima facie case of discrimination exists.

See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142

(2000).3    To establish a prima facie case of sex discrimination


     3
          We note that the district court did not refer to
Reeves, which is the Supreme Court’s most recent clarification on
the standard for judgment as a matter of law in employment
discrimination cases. In Reeves, “[a] unanimous Court held that
this circuit had ‘misconceived the evidentiary burden borne by
plaintiffs who attempt to prove intentional discrimination
through indirect evidence.’” Russell v. McKinney Hosp. Venture,
235 F.3d 219, 223 (5th Cir. 2000) (quoting Reeves, 530 U.S. at
146). As will be seen, a Reeves analysis does not alter the
result reached by the district court. See infra Parts III.A.1,

                                  5
in failure-to-promote claims, a plaintiff must show that “(1) she

was not promoted, (2) she was qualified for the position she

sought, (3) she was within the protected class at the time of the

failure to promote, and (4) either the position she sought was

filled by someone outside the protected class or she was

otherwise not promoted because of her sex.”    Rutherford v. Harris

County, Tex., 197 F.3d 173, 179 (5th Cir. 1999).

     “If a plaintiff is successful in establishing a prima facie

case of discrimination, the burden then shifts to the defendant

to produce a legitimate, nondiscriminatory justification for its

actions.”   (Lee) Evans v. City of Houston, --- F.3d ----, 2001 WL

277839, at *3 (5th Cir. Mar. 21, 2001); see also McDonnell

Douglas, 411 U.S. at 802.    This is only a burden of production,

not persuasion.   See Texas Dep’t of Cmty. Affairs v. Burdine, 450

U.S. 248, 255-56 (1981).    “Third, if the employer carries its

burden, the mandatory inference of discrimination created by the

plaintiff’s prima facie case drops out of the picture and the

fact finder must decide the ultimate question: whether the

plaintiff has proven intentional discrimination.”    Russell v.

McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000)

(internal quotations, citations, and alterations omitted).

     In this regard, the plaintiff may put forth evidence that

the employer’s asserted reasons for its employment actions were a


2, & 3 (examining McLendon’s evidence under Reeves and finding it
insufficient to survive summary judgment).

                                  6
pretext for discrimination.       See McDonnell Douglas, 411 U.S. at

804.       “[T]he trier of fact may still consider the evidence

establishing the plaintiff’s prima facie case ‘and inferences

properly drawn therefrom . . . on the issue of whether the

defendant’s explanation is pretextual.’”       Reeves, 530 U.S. at 143

(quoting Burdine, 450 U.S. at 255 n.10).       The Supreme Court has

pointed out that “once the employer’s justification has been

eliminated, discrimination may well be the most likely

alternative explanation, especially since the employer is in the

best position to put forth the actual reason for its decision.”

Id. at 147.       Therefore, “a plaintiff’s prima facie case, combined

with sufficient evidence to find that the employer’s asserted

justification is false, may permit the trier of fact to conclude

that the employer unlawfully discriminated.”       Id. at 148.

                          1. Requisition 52-1825

       McLendon established a prima facie case for the denial of

the requisition 52-1825 promotion to Design Specialist (in the

field of piping).       She was not selected; she was qualified for

the position4; she (as a woman) is within a protected class; and

the position was filled by someone outside the protected class,

Patrick Albritton.       The burden then shifted to Ingalls to put



       4
          Although the district court stated that McLendon was
not qualified for this promotion, Ingalls concedes that McLendon
was qualified by stating that she did establish a prima facie
case in this regard. We also find that the record supports the
fact that McLendon was qualified for this position.

                                     7
forth a non-discriminatory reason for its action.   By asserting

that it “chose a more suitable candidate,” Ingalls met this

burden of production.5

     McLendon must now create a jury issue that this

justification was pretextual.   She states that Ingalls relied

upon the fact that Albritton had pipefitter experience and

complains that neither the job posting nor the employee

requisition contained this criterion.   We note, however, that

while not a requirement, the requisition form did state that the

ideal candidate “should have pipefitter experience.”

     McLendon also contends that the position required at least

twelve years of experience in the specialized field of piping and

that Albritton failed to meet that requirement.   She asserts that

Albritton had only six years of design experience and four years

as a pipefitter and that she had eighteen years of experience as

a pipe design drafter.   McLendon points out that she had more

overall piping design experience and that Albritton did not even

meet the twelve-year minimum required for the position.   Ingalls

responds that Albritton had worked continuously as a design

associate, designer, and senior logistics analyst for fifteen

years (thus meeting the minimum twelve years) and also had worked

at Ingalls twelve years longer than McLendon.

     Ingalls further points out that the job interviewer noted


     5
          This reason is found in one of Ingalls’s documents,
entitled “Transfer/Promotion Summary.”

                                 8
that McLendon had difficulty working the math problem given to

her in the interview and that Albritton had no such difficulty.

McLendon responds that, unlike Albritton, she had a very strong

mathematics background, including training in Engineering

Calculus I and II and Quantitative Analysis.   She also states

that Ingalls’s Fair Employment Office had recommended that a

minority be chosen for that position.

     McLendon has not created a genuine issue that Ingalls’s

reason for selecting Albritton was pretextual.    With all

reasonable inferences in favor of McLendon, the most that can be

said is that it was a judgment call as to who was more qualified

for the position.   See Scott v. Univ. of Miss., 148 F.3d 493, 509

(5th Cir. 1998) (“Disagreements over which applicant is more

qualified are employment decisions in which we will not engage in

the practice of second guessing.”), abrogated on other grounds by

Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000); Hutson v.

McDonnell Douglas Corp., 63 F.3d 771, 781 (8th Cir. 1995)

(stating that “the employment-discrimination laws have not vested

in the federal courts the authority to sit as super-personnel

departments reviewing the wisdom or fairness of the business

judgments made by employers, except to the extent that those

judgments involve intentional discrimination”).    A rational fact

finder could find only that both candidates had different

strengths and weaknesses and that Ingalls chose Albritton.    Any

alleged disparity in qualifications is not of such a degree as to

                                9
create a jury issue that Ingalls’s proffered justification was

pretextual.   See Vance v. Union Planters Corp., 209 F.3d 438, 444

(5th Cir. 2000) (stating that the plaintiff in the case need not

establish that she was “clearly better qualified” as she also

presented other evidence of discriminatory intent).

     As McLendon fails to create a fact issue that Ingalls’s

justification regarding this promotion was pretextual, this claim

does not survive summary judgment.

                      2. Requisition 52-1861

     McLendon also established a prima facie case as to the

denial of the requisition 52-1861 promotion.    She was not

selected; she was qualified for the position6; she (as a woman)

is within a protected class; and the position was filled by

someone outside the protected class, Dallas Lizana.    Ingalls met

its burden of producing a non-discriminatory reason by stating

that McLendon (along with a majority of the other candidates) was

not selected because she had “no label plate [experience].”7

     The burden now shifts back to McLendon to create a jury

issue that this justification was pretextual.    She points out

that the original typewritten requirements for this position on

the requisition form (twelve years of engineering experience with

at least five years of label plate experience) were crossed out



     6
          See supra note 4.
     7
          See supra note 5.

                                10
and replaced with the handwritten words “10 years design.”

Ingalls responds that while label plate experience itself was no

longer a requirement, the description of the duties and

responsibilities of the position emphasized the desirability of

label plate experience (i.e., the requisition states that the

successful applicant would “develop and maintain label plate

drawings on all contracts”).   McLendon replies that even if the

position entailed label plate work, she had the requisite

experience.   She states that she spent her entire nine years at

Ingalls creating and checking drawings, almost all of which

included label plating.   Ingalls counters first that McLendon did

not indicate on her application that she had label plate

experience.   Ingalls states further that even if McLendon’s

drawing background included label plates, Lizana’s experience was

far more extensive.   Lizana had ten years more seniority at

Ingalls and had worked on label plates for twelve years,

including the six years immediately prior to this promotion.

     As the preceding discussion demonstrates, McLendon has not

created a jury issue that Ingalls’s justification for not

selecting her for this promotion was pretextual.   As such, this

claim also does not survive summary judgment.

                      3. Requisition 52-1788

     McLendon does not pass muster in the first step of the

McDonnell-Douglas tripartite analysis with respect to requisition

52-1788 because she did not establish a prima facie case for the

                                11
denial of this promotion.    While McLendon is clearly in the

protected class and was not selected for the position, she

provided no evidence and made no arguments that she was qualified

for the position.   The only evidence in the record regarding this

promotion is a letter from Ingalls to McLendon stating that she

was not selected because she “did not meet the minimum

requirements.”

     Therefore, McLendon does not survive summary judgment on

this claim.

     B. Timeliness of McLendon’s Remaining Title VII Claims

                    1. 42 U.S.C. § 2000e-5(e)(1)

     “A Title VII claimant must file charges with the EEOC within

180 days after the alleged illegal conduct.”    Hood v. Sears

Roebuck and Co., 168 F.3d 231, 232 (5th Cir. 1999) (citing 42

U.S.C. § 2000e-5(e)(1)).    The Supreme Court has held that this

time limit is akin to a statute of limitations:    “[F]iling a

timely charge of discrimination with the EEOC is not a

jurisdictional prerequisite to suit in federal court, but a

requirement that, like a statute of limitations, is subject to

waiver, estoppel, and equitable tolling.”    Zipes v. Trans World

Airlines, Inc., 455 U.S. 385, 393 (1982) (emphasis added); see

also Hood, 168 F.3d at 232; Espinoza v. Mo. Pac. R.R. Co., 754

F.2d 1247, 1248 n.1 (5th Cir. 1985).

     McLendon filed her first EEOC complaint on December 8, 1997.

As such, her claims regarding requisitions 52-1825 (June 19,

                                 12
1997), 52-1861 (July 15, 1997), and 52-1788 (July 25, 1997) fall

within the mandated 180-day period.8   On their face, the

remaining claims as to the prior promotion denials are time-

barred under § 2000e-5(e)(1).

     However, actions outside the 180-day period are still viable

if they meet the requirements of the continuing violation

doctrine.   See Messer v. Meno, 130 F.3d 130, 134-35 (5th Cir.

1997), cert. denied, 525 U.S. 1067 (1999); Glass v. Petro-Tex

Chem. Corp., 757 F.2d 1554, 1560-61 (5th Cir. 1985).   “The

continuing violation theory relieves a plaintiff of establishing

that all of the complained-of conduct occurred within the

actionable period if the plaintiff can show a series of related

acts, one or more of which falls within the limitations period.”

Messer, 130 F.3d at 134-35; see also Waltman v. Int’l Paper Co.,

875 F.2d 468, 474 (5th Cir. 1989) (“This equitable exception

arises ‘[w]here the unlawful employment practice manifests itself

over time, rather than as a series of discrete acts.’”

(alteration in original) (quoting Abrams v. Baylor Coll. of Med.,

805 F.2d 528, 532 (5th Cir.1986))).

     In order to utilize the continuing violation doctrine, the


     8
          The claim concerning requisition 52-1962 is also timely
because it falls within the 180-day window of McLendon’s second
EEOC complaint of May 7, 1998. However, as discussed infra in
Part III.B.2, this claim is barred under 42 U.S.C. § 2000e-
5(f)(1). Requisition 52-1982, which is also within this time
frame, is irrelevant because it is undisputed that the
requisition was cancelled. Furthermore, McLendon did not include
requisition 52-1982 in her second EEOC complaint.

                                13
plaintiff must satisfy a two-pronged test.     First, the plaintiff

“must demonstrate that at least one act occurred within the

filing period.”    West v. Phila. Elec. Co., 45 F.3d 744, 754 (3d

Cir. 1995); see also Huckabay v. Moore, 142 F.3d 233, 239 (5th

Cir. 1998); Abrams v. Baylor Coll. of Med., 805 F.2d 528, 533

(5th Cir. 1986).   Second, the plaintiff must illustrate the

requisite nexus among the incidents of discrimination or

harassment within and outside the limitations period.     See

Huckabay, 142 F.3d at 239 (stating that this second inquiry

involves several factors such as subject matter, frequency, and

degree of permanence); Glass, 757 F.2d at 1560, 1561 (noting that

the “core idea” of the doctrine is what, “in fairness and logic,

should have alerted the average lay person to act to protect his

rights”).

     As discussed supra in Part III.A, McLendon failed to create

jury issues regarding her timely claims.   She therefore does not

satisfy the first prong of the continuing violation analysis, and

we need not address the second prong.   As such, McLendon cannot

take advantage of the continuing violation doctrine to overcome

the timeliness bar to promotion denials occurring prior to

requisitions 52-1825, 52-1861, and 52-1788.9


     9
          While the district court noted that Ingalls had raised
the timeliness defense in its motion for summary judgment, the
court disposed of McLendon’s claims on the merits. “We may
affirm a grant of summary judgment on any ground raised to the
district court and upon which both parties had the opportunity to
present evidence.” Shepherd v. Comptroller of Pub. Accounts, 168

                                 14
                    2. 42 U.S.C. § 2000e-5(f)(1)

       Section 2000e-5(f)(1) provides that a civil action must be

commenced “within ninety days” after the plaintiff has received a

right-to-sue letter from the EEOC.     See 42 U.S.C. § 2000e-

5(f)(1).    This timing requirement, similar to the one in § 2000e-

5(e)(1), is non-jurisdictional and thus subject to waiver,

estoppel, and tolling.    See Crown, Cork & Seal Co., Inc. v.

Parker, 462 U.S. 345, 349 n.3 (1983); Espinoza, 754 F.2d at 1248

n.1.

       The EEOC issued its right-to-sue letter regarding

requisition 52-1962 on November 30, 1998.    McLendon filed suit on

May 17, 1999, well past the ninety-day window.10    Therefore, her

claim regarding this promotion denial is time-barred as well.11

   C. Merits of McLendon’s State Law Emotional Distress Claim

       McLendon’s intentional infliction of emotional distress

claim is a pendent state law claim.    Therefore, we apply

Mississippi substantive law in determining whether McLendon

created a jury issue in this regard.     See Sommers Drug Stores Co.

Employee Profit Sharing Trust v. Corrigan, 883 F.2d 345, 353 (5th

Cir. 1989).


F.3d 871, 873 n.1 (5th Cir.), cert. denied, 528 U.S. 963 (1999);
see also supra Part II (discussing the standard of review).

       10
          McLendon does not make any waiver, estoppel, or tolling
arguments in this regard.
       11
            See supra note 9.

                                 15
     “[U]nder Mississippi law, [a plaintiff] must show that [the

employer’s] actions were ‘extreme and outrageous,’ and ‘beyond

all possible bounds of decency’ to win a claim of intentional

infliction of emotional distress.”   Stafford v. True Temper

Sports, 123 F.3d 291, 296 (5th Cir. 1997) (citations omitted);

see also Dawkins v. Sears Roebuck and Co., 109 F.3d 241, 244 (5th

Cir. 1997) (“To recover for intentional infliction of emotional

distress [under Mississippi law], a plaintiff must prove that the

defendant’s conduct was ‘wanton or willful and that it would

evoke outrage or revulsion.’” (citations omitted)).   We have

recognized that a plaintiff is required to meet a high standard

in order to state a claim for intentional infliction of emotional

distress:

     “It has not been enough that the defendant has acted
     with an intent which is tortious or even criminal, or
     that he has intended to inflict emotional distress, or
     even that his conduct has been characterized by
     ‘malice,’ or a degree of aggravation which would
     entitle the plaintiff to punitive damages for another
     tort. Liability has been found only where the conduct
     has been so outrageous in character, and so extreme in
     degree, as to go beyond all possible bounds of decency,
     and to be regarded as atrocious, and utterly
     intolerable in a civilized community.”

Haun v. Ideal Indus., Inc., 81 F.3d 541, 548 (5th Cir. 1996)

(quoting White v. Walker, 950 F.2d 972, 978 (5th Cir. 1991)); see

also Jenkins v. City of Grenada, 813 F. Supp. 443, 446 (N.D.

Miss. 1993) (stating that “meeting the requisites of a claim for

intentional infliction of emotional distress is a tall order in

Mississippi”).

                               16
     McLendon makes the following allegations regarding this

claim:   After her EEOC complaint, Ingalls harassed her by (1)

reprimanding her for filing the complaint, (2) removing her from

her office and placing her in an aisle across from the men’s

restroom, (3) allowing its employees to shoot rubber bands at

her, (4) encouraging her supervisor to pace back and forth by her

desk and to eavesdrop on her telephone conversations, and (5)

putting pressure on her to sign a settlement agreement to force

her to drop her claims.   McLendon claims that although she had

been given a Design Specialist promotion in April 1998, this

treatment eventually caused her to resign and obtain other

employment.

     A rational factfinder could not find that such incidents

were “beyond all possible bounds of decency.”   McLendon does not

create a jury issue as to this claim under the stringent

Mississippi standard, and therefore, the district court did not

err in granting Ingalls summary judgment in this regard.



                          IV.   CONCLUSION

     For the foregoing reasons, we AFFIRM the judgment of the

district court.




                                 17
