                  UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT



                              No. 00-11225
                            Summary Calendar


                        BLANDINA A M FRITZ,

                                                  Plaintiff-Appellant,

                                 VERSUS

     MINERAL WELLS INDEPENDENT SCHOOL DISTRICT; RAY M CRASS,
Superintendant,

                                                 Defendants-Appellees.



           Appeal from the United States District Court
                for the Northern District of Texas
                            (99-CV-888)
                            October 5, 2001
Before JOLLY, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

                       I.    PROCEEDINGS BELOW

      Pursuant to a complaint filed with the Equal Employment

Opportunity Commission ("EEOC"), Blandina Fritz, acting pro se,

filed a complaint against her former employer, the Mineral Wells,

Texas,   Independent    School      District     ("MWISD")   and   its



  *
   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opinion should not be published and is not precedent except under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.

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Superintendent.    The trial court found it impossible to determine

the nature of the complaint from its face, but presumed from the

volume of papers submitted with the complaint that it probably

asserted an employment discrimination claim under Title VII, 42

U.S.C. § 2000e, et. seq., on the basis of sex and national origin

and under the Age Discrimination in Employment Act, 29 U.S.C. §

631, et. seq. ("ADEA").    The court granted Ms. Fritz time to amend

her complaint, which she did.     The amended complaint still did not

specify the nature of her claim.       The district judge proceeded on

the basis that the claims were those stated in Ms. Fritz' EEOC

complaint, namely, for violations of Title VII and the ADEA.          The

trial court granted Ms. Fritz' motion to proceed in forma pauperis

and denied her motion for assigned counsel.          On August 31, 2000,

MWISD moved for summary judgment.          Ms. Fritz did not file a

response to MWISD's motion, which was granted on October 10, 2000.

     Ms. Fritz now appeals on the issues of whether the district

court erred (1) in not finding discrimination and retaliation by

the defendant; (2) in granting summary judgment; and (3) "by

disregarding Appellant's shock and physical deterioration as an

incontrovertible   proof   of   innocence."    The    broadest   possible

reading of Ms. Fritz' complaint and arguments does not reveal any

issue of retaliation in the Title VII and ADEA context before the

trial court and we will not consider it here.        Further, Ms. Fritz'

third issue is incomprehensible and will not be considered.           Our


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review will focus on whether summary judgment for MWISD on Ms.

Fritz' claims of discrimination under Title VII and the ADEA is

appropriate.   Because our analysis leads us to the same conclusion

as the trial court, we AFFIRM.

                          II.    BACKGROUND

     Ms. Fritz, a native of Mexico, was hired as a teacher's aide

by the Mineral Wells Independent School District on August 11,

1995, as an at-will employee.    She worked at the Travis Elementary

School until January 20, 1998, when she transferred to the Life

Skills Class at Mineral Wells High School.      Although the record

reflects that MWISD was concerned with Ms. Fritz' ability to follow

directions while employed at Travis Elementary, the thrust of this

case centers on her employment at Mineral Wells High School.

     The Life Skills Class teaches special education students

certain skills for coping with day to day life and includes

students with both learning and physical disabilities.    Ms. Fritz

worked subject to Ms. Barbara Cranfill's direction.

     Ms. Cranfill found that Ms. Fritz frequently disobeyed her

direct instructions.   These included to refrain from contradicting

Ms. Cranfill to the students, how and when to talk to various

students, whether to assist them in cleaning their stations, and

how to assist them physically.     Ms. Cranfill provided in-service

training to Ms. Fritz on the use of hydraulic lift equipment

required by some students, to find her instructions ignored at the

peril of a student.    Ms. Cranfill attempted to correct Ms. Fritz

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verbally and in writing, and kept a detailed written notebook of

events. MWISD terminated Ms. Fritz on October 5, 1998, for failing

to follow instructions and for putting students' safety at risk.

She was replaced by Ms. Deloris Suffka.

     Ms. Fritz originally brought her complaint against MWISD and

its Superintendent, Ray Crass.     Her amended complaint did not name

Mr. Crass as a defendant.

                            III.   ANALYSIS

     This court conducts a de novo review of a grant of summary

judgment, ensuring that no genuine issue of material fact exists

and that judgment in favor of the appellee was warranted as a

matter of law.    See Haynes v. Pennzoil Co., 207 F.3d 296, 299 (5th

Cir. 2000).      Under FED. R. CIV. P. 56(c), summary judgment is

appropriate when the evidence, viewed in the light most favorable

to the non-movant, reflects no genuine issues of material fact.

See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct.

2548, 2552-53, 91 L. Ed. 2d 265 (1986); Hall v. Gillman, Inc., 81

F.3d 35, 36-37 (5th Cir. 1996).

     A plaintiff's failure to respond to a motion for summary

judgment does not, by itself, support granting summary judgment.

The moving defendant must establish the absence of a genuine issue

of material fact.    See John v. Louisiana, 757 F.2d 698, 709 (5th

Cir. 1985); Ceasar v. Lamar Univ., 147 F. Supp. 2d 547, 550 (E.D.

Tex. 2001). However, the court will assume that the movant's facts


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as claimed and supported by admissible evidence are admitted to

exist without controversy, unless controverted in an opposing

statement of genuine issues which is supported by proper summary

judgment evidence.         Ceasar, 147 F. Supp. 2d at 550.

                                A. TITLE VII CLAIMS.

     Under Title VII analysis, (1) a plaintiff must establish a

prima facie case of discrimination; (2) the defendant may then

offer     a     valid,    non-discriminatory     reason   for    the   alleged

discriminatory action; and, (3) the plaintiff then must show that

the defendant’s offered reason is merely pretext.               See McDonnell

Douglas v. Green, 411 U.S. 792, 802-03, 93 S. Ct. 1817, 1824, 36 L.

Ed. 2d 668 (1973).         The Title VII plaintiff bears at all times the

“ultimate burden of persuasion.”             See St. Mary’s Honor Center v.

Hicks, 509 U.S. 502, 511, 113 S. Ct. 2742, 2749, 125 L. Ed. 2d 407

(1993).

     A prima facie claim is established when a plaintiff shows that

she is a member of a protected class under Title VII; that she was

qualified for the position; that she suffered an adverse employment

decision;        and     that    the   adverse   employment     decision   was

differentially applied to her.           See McDonnell Douglas, 411 U.S. at

802; Rubenstein v. Adm'rs of the Tulane Educ. Fund, 218 F.3d 392,

399 (5th Cir. 2000).

     Ms. Fritz meets the first three elements of the prima facie

cases.        She is both female and of Mexican origin and appears to

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have asserted that she was fired because of one or both of those

reasons.     She was employed by MWISD for over three years as a

qualified aide.       Her termination was an adverse employment action.

However, she has not adduced a single piece of competent evidence

of any type to show that her treatment was different in any way

because    of    either   her     gender       or    her   national   origin.       Her

voluminous filings at the district court level and on appeal are

replete with her perspective that she was humiliated and sorely put

upon by MWISD and its employees, most notably Ms. Cranfill.                         She

does not show how her perceived mistreatment relates to either sex

or nationality.       None of her opinions and personal observations

regarding       her   general      dissatisfaction           constitute      evidence.

Therefore, she has failed to establish a prima facie case under

Title VII.

     Furthermore,         MWISD    has     offered         two    legitimate,      non-

discriminatory reasons for Ms. Fritz's termination.                       Those reasons

were her     inability     and    failure       to    follow     verbal    and   written

instructions, and her endangerment of students by using improper

safety techniques.        MWISD has supported its reasons with competent

summary judgment evidence, including detailed notes taken by Ms.

Cranfill in the course of Ms. Fritz' employment and Ms. Fritz' own

deposition testimony. Ms. Fritz submitted nothing in opposition in

the district court and none of the material she has submitted on

appeal creates a genuine issue of material fact.



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       Because Ms. Fritz failed to establish a prima facie case and

because MWISD has demonstrated that there is no genuine issue of

material fact while Ms. Fritz has offered nothing in opposition,

her Title VII claim fails.

                             B. ADEA CLAIM.

       ADEA analysis is similar to that of Title VII.           The protected

class under the ADEA includes all those who "are at least 40 years

of age."    29 U.S.C. § 631(a).       The fourth element the plaintiff

must show in making her prima facie case is different from that

under Title VII.      In the ADEA context, the fourth element requires

the plaintiff to prove that she was (1) replaced by someone outside

the    class,   (2)   replaced   by   someone   younger,   or    (3)   simply

discharged because of age.       See Bauer v. Albemarle Corp., 169 F.3d

962, 966 (5th Cir. 1999).

       Here, Ms. Fritz was replaced by Ms. Deloris Suffka which makes

the third alternative immaterial.         At the time she was terminated

and replaced, Ms. Fritz was fifty-nine years old, well within the

class protected by the ADEA.      Ms. Suffka was also fifty-nine years

old.    Therefore, Ms. Suffka was not "outside the class" and the

first alternative is eliminated.          Ms. Suffka was three months

younger than Ms. Fritz.     Such a minor difference is insignificant.

See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308,

312-13, 116 S. Ct. 1307, 1310, 134 L. Ed. 2d 433 (1996); Ross v.

Univ. of Texas at San Antonio, 139 F.3d 521, 525 (5th Cir. 1998).


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Therefore, the second alternative is eliminated.

     Because Ms. Fritz cannot establish a prima facie case, her

ADEA claim fails.   Even had she established a prima facie case,

MWISD's   legitimate,   non-discriminatory   reasons    for   having

terminated her remain well supported with summary judgment evidence

and uncontroverted by Ms. Fritz.

                          IV. CONCLUSION

     For all the reasons stated herein, IT IS ORDERED that the

judgment of the trial court is AFFIRMED.

     IT IS FURTHER ORDERED that Appellant’s motion attempting a

modification of the discovery control plan is DENIED.

     IT IS FURTHER ORDERED that Appellant’s motion to recover the

cost of the transcript of deposition from the Appellee is DENIED.

     IT IS FURTHER ORDERED that Appellee’s motion for partial

dismissal of appeal as to Ray M. Crass only is GRANTED.

     IT IS FURTHER ORDERED that Appellant’s motion to amend her

brief of June 6, 2001 adding two missing brochures treated as

motion to allow attachment to brief as a supplement is DENIED.

     IT IS FURTHER ORDERED that Appellee’s motion to file out of

time its reply to Appellant’s response to the Appellee’s motion to

dismiss Ray M. Crass is DENIED as MOOT.




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