                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                            November 1, 2005
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk
                       ____________________

                           No. 05-60097

                         Summary Calendar
                       ____________________


     ANDREA AUDIBERT

                                    Plaintiff-Appellant

          v.

     LOWE’S HOME CENTERS, INC

                                    Defendant-Appellee


_________________________________________________________________

           Appeal from the United States District Court
        for the Southern District of Mississippi, Biloxi
                          No. 1:03-CV-306
_________________________________________________________________

Before KING, Chief Judge, and SMITH and GARZA, Circuit Judges.

PER CURIAM:*


     Plaintiff-appellant Andrea Audibert filed this suit for

employment discrimination after her employer, defendant-appellee

Lowe’s Home Centers, Inc., fired her.     Audibert now claims the

district court erred in granting Lowe’s motion for summary



     *
        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that this opinion should not be published and is not precedent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.   For the following reasons, we AFFIRM the judgment of

the district court.

               I.   FACTUAL AND PROCEDURAL BACKGROUND

     Plaintiff-appellant Andrea Audibert (“Audibert”) began work

as a Cabinet Specialist with defendant-appellee Lowe’s Home

Centers, Inc. (“Lowe’s”), in Gulfport, Mississippi, on February

22, 2002.   During her first ninety days of employment, Audibert

worked with and was trained by Nancy Clingon (“Clingon”), another

Cabinet Specialist who was, by all accounts, one of the top

Cabinet Specialists in the region.    After ninety days, Clingon

left on maternity leave, and Audibert worked with and was trained

by Tammy White, a Special Order Specialist at Lowe’s.    On August

14, 2002, Lowe’s terminated Audibert’s employment.

     Audibert filed suit on May 7, 2003, alleging that her

termination constituted unlawful employment discrimination in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ § 2000e et seq. [hereinafter “Title VII”].    Specifically, her

complaint alleged she was supervised by white males who failed to

provide her with adequate training, issued spurious disciplinary

reports, “stalked, watched, followed, spied on, talked to

differently, and harassed” her “throughout her tenure,” and

ultimately fired her on the basis of her sex.    (Pl.’s Compl. at

3-5.)   When this complaint was filed, Audibert was represented by

counsel.



                                  2
     Soon thereafter, and for the majority of all subsequent

proceedings, Audibert proceeded pro se.    Unfortunately, Audibert

provided very little evidence to support her case before the

district court.1   In her briefs before this court, Audibert

suggests this dearth of evidence is due to unfair discovery

limitations.   Audibert submitted at least five extremely broad

discovery requests, demanding the full records for several former

co-workers, biographical and statistical information for every

Lowe’s kitchen design employee “thru [sic] the entire United

States,” and “all things, all documents, all statements, all

knowledge of facts, sworn or unsworn, relating to this case.”

See, e.g., Pl.’s Fifth Disc. Req. at 5.    With the permission of

the lower court, Lowe’s refused to comply with the majority of

these discovery requests.

     On September 15, 2004, Lowe’s moved for summary judgment

pursuant to FED. R. CIV. P. 56.   The district court granted this

     1
        Beyond her own conclusory allegations, the only piece of
evidence supporting Audibert’s case is a two-page affidavit
provided by Nancy Clingon on November 30, 2004. Clingon, who had
not been employed by Lowe’s for at least a year at the time of
the affidavit, stated that Audibert
          was singled out for unwarranted criticism and
          demeaning assignments by an inner circle of
          males . . . . Ms. Audibert was targeted with
          a concerted campaign to run her out of the
          workplace by questioning her every action and
          following up with repeated, bogus write-ups.
          In contrast, male Cabinet Specialists . . .
          were not exposed to these hostile conditions
          . . . and received extensive training . . .
          that was not offered to Ms. Audibert.
(Aff. of Nancy Clingon at 2.)

                                  3
motion on December 30, 2004, and issued a memorandum opinion and

order explaining its reasoning.      Audibert filed a pro se notice

of appeal on February 1, 2005, one day after the deadline for

filing a timely notice of appeal.       According to Audibert, she

missed this deadline due to her child’s serious medical problems.

On May 16, 2005, this court reinstated her appeal.

                      II.    STANDARD OF REVIEW

     The Supreme Court has held that “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 a judgment as a matter of law.’”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting FED.

R. CIV. P. 56(c)).   We review “the grant of summary judgment de

novo, applying the same standard as the district court.”        Pratt

v. City of Houston, 247 F.3d 601, 605-06 (5th Cir. 2001) (citing

Walker v. Thompson, 214 F.3d 615, 624 (5th Cir. 2000)).

                            III.   DISCUSSION

     Lowe’s argues that we should strike Audibert’s brief as

defective.   Although her brief is lacking in many respects, we

decline to strike it entirely.      We hold the pleadings and briefs

of pro se litigants and appellants “to less stringent standards”

than those “drafted by lawyers.”        Haines v. Kerner, 404 U.S. 519,

520 (1972); see also Calhoun v. Hargrove, 312 F.3d 730, 733-34


                                    4
(5th Cir. 2002) (noting that this court has long held that “‘pro

se complaints are held to less stringent standards than formal

pleadings drafted by lawyers’”) (quoting Miller v. Stanmore, 636

F.2d 986, 988 (5th Cir. 1981)).

     However, “regardless of whether the plaintiff is proceeding

[pro se] or represented by counsel, ‘conclusory allegations or

legal conclusions masquerading as factual conclusions will not

suffice to prevent a motion to dismiss.’”     Taylor v. Books a

Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (quoting S.

Christian Leadership Conference v. Sup. Ct. of the State of La.,

252 F.3d 781, 786 (5th Cir. 2001)).   As the district court

correctly observed, Audibert’s conclusory allegations,

speculation, conjecture, and unsubstantiated assertions do not

satisfy her burden of proof and production.     See, e.g., Grimes v.

Tex. Dep’t of Mental Health and Mental Retardation, 102 F.3d 137,

139-40 (5th Cir. 1996) (stating that “unsubstantiated assertions

are not competent summary judgment evidence”); Grizzle v.

Travelers Health Network, Inc., 14 F.3d 261, 268 (5th Cir. 1994)

(stating that an employee’s “own self-serving generalized

testimony stating her subjective belief that discrimination

occurred . . . . is simply insufficient to support a jury

verdict”).

     In order “[t]o survive a motion for summary judgment, a

Title VII plaintiff” such as Audibert “must first establish a

prima facie case of discrimination by a preponderance of the

                                  5
evidence.”   Pratt, 247 F.3d at 606 (citing McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-804 (1973)).   The district

court correctly recognized that Audibert’s conclusory allegations

fail to establish a prima facie case.   See District Ct. Mem. Op.

and Order at 5-6 (stating that Audibert failed to prove the

second and fourth elements of a prima facie case of

discrimination).2

     In her briefs before this court, Audibert suggests this

absence of evidence actually provides positive justification for

overturning the district court’s summary judgment.    See, e.g.,

Appellant’s Reply Br. at 4 (stating that “we are asking the

Courts to deny Summary Judgment due to a lack of discovery

information”).   This argument is entirely unfounded, and its

reasoning is exactly backward.   We have repeatedly held that “a


     2
        To establish a prima facie disparate treatment case
under Title VII, Audibert needed to show “‘that she: (1) is a
member of a protected class; (2) was qualified for her position;
(3) was subject to an adverse employment action; and (4) . . .
that others similarly situated were treated more favorably.’”
Okoye v. Univ. of Tex. Houston Health Science Center, 245 F.3d
507, 512-13 (5th Cir. 2003) (quoting Shackelford v. Deloitte &
Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999)).
     Lowe’s conceded that Audibert satisfied the first and third
elements of a prima facie case. But Lowe’s contended, and the
district court correctly accepted, that “[b]ecause Audibert has
failed to provide any evidence that tends to show that she was
qualified for the position, she has failed to establish the
second element of a prima facie case.” (District Ct. Mem. Op.
and Order at 6.) Lowe’s also contended, and the district court
also correctly accepted, that Audibert “failed to establish this
[fourth] element” of a prima facie case because she “failed . . .
to identify any similarly situated male coworker who was treated
more favorably.” Id.

                                 6
summary judgment motion can be decided without any discovery.”

Bauer v. Albemarle Corp., 169 F.3d 962, 968 (5th Cir. 1999)

(citing United States v. Bloom, 112 F.3d 200, 205 n.17 (5th Cir.

1997)).   It is well established “that a plaintiff’s entitlement

to discovery prior to a ruling on a motion for summary judgment

is not unlimited, and may be cut off when the record shows that

the requested discovery is not likely to produce the facts needed

by the plaintiff to withstand a motion for summary judgment.”

Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir.

1990) (citing Paul Kadair, Inc. v. Sony Corp. of Am., 694 F.2d

1017, 1029-30 (5th Cir. 1983)).   Audibert’s overbroad discovery

requests were properly denied, and these denials furnish

absolutely no reason to overturn the district court’s decision.

     Moreover, even if Audibert’s evidence sufficed to establish

a prima facie case, the district court correctly recognized that

she could not establish that Lowe’s stated reason for terminating

her was pretextual.   Once an employer articulates a legitimate,

nondiscriminatory purpose for terminating an employee, the

employee must demonstrate that the employer’s purpose was a mere

pretext for prohibited discrimination.   See, e.g., McDonnell

Douglas, 411 U.S. at 802-805 (stating that once the initial

burden of a Title VII prima facie case has been satisfied, and

the employer states a “legitimate, nondiscriminatory reason” for

the challenged action, the plaintiff must “demonstrate by

competent evidence that the presumptively valid reasons” given

                                  7
for the challenged action “were in fact a coverup” for

discrimination); Pratt, 247 F.3d at 606 (stating that once a

prima facie case pursuant to Title VII has been established, and

the defendant articulates “some legitimate, non-discriminatory

reason for the challenged employment action,” the burden rests on

“the plaintiff to demonstrate that the articulated reason was

merely a pretext for discrimination”).   Clingon’s affidavit, the

only substantive piece of evidence provided by Audibert, fails to

show that Lowe’s stated reason for terminating her was

pretextual.

     Audibert attempted to use Clingon’s affidavit to establish

pretext by showing that male employees were given preferential

treatment under circumstances similar to her own.   But even if

Clingon’s affidavit is accepted as true, it can only demonstrate

that these male employees were given preferential treatment

because they were not subjected to the same hostile conditions as

Audibert.   To demonstrate that these male employees were given

preferential treatment in situations similar to her own, Audibert

needed to provide evidence that they engaged in misconduct nearly

identical to the misconduct for which she was allegedly

discharged.   Alternatively, she needed to provide evidence to

show that she did not engage in the misconduct for which she was

allegedly discharged.   Beyond her unsubstantiated assertions and

conclusory allegations, she failed on both counts, and therefore

the district court correctly recognized that she failed to create

                                 8
a fact issue about whether Lowe’s stated reason for firing her

was a pretext for discrimination.     In her briefs before this

court, she provides no additional authority or argument to

overturn this decision.

                          IV.   CONCLUSION

     For the foregoing reasons, the decision of the district

court is

     AFFIRMED.




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