           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                           July 30, 2008

                                     No. 08-20037                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


JAMES FONTENEAUX

                                                  Plaintiff - Appellant
v.

SHELL OIL CO; SHELL INFORMATION TECHNOLOGY
INTERNATIONAL INC

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                  4:05-CV-4033


Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       James Fonteneaux filed suit against Shell Oil Co. and Shell Information
Technology International Inc. alleging race and age discrimination. The district
court granted the Defendants’ motion for summary judgment.
       On appeal, Fonteneaux argues that there were factual issues and legal
errors that require reversal. We disagree and 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                   No. 08-20037

                               I. BACKGROUND
      We will refer to the Defendants collectively as “Shell.” Fonteneaux was
employed at Shell from May 1976 through February 2005, where he progressed
through various positions. Throughout the 1990s, Fonteneaux worked with
Shell’s information technology systems. In 1998, Shell began implementing a
new global information technology services strategy which remained in a state
of change until 2003. It is during this transitional period that Fonteneaux
believed he was more qualified to fill certain positions than the persons selected.
In September 2001, Jay Crotts was selected as the interim manager of Shell’s
Strategic Relations & Procurement (“SR&P”) division. In 2002, Fonteneaux
began working under Crotts as an interim Strategic Relations Manager (“SRM”),
a position in the SR&P division.
      In July 2003, Shell hired Kristine Moore as the SR&P division’s
permanent manager. After Moore became the SR&P division manager, she
reevaluated positions as part of a reorganization. The decision was made to
replace all of the SRM positions with Strategic Relations Account Manager
(“SRAM”) positions. The new positions required 10-15 years of external sales
experience, i.e., with vendors outside of Shell itself. None of the fourteen Shell
employees who applied for the new positions, including current SRMs, had the
required sales experience.
      All except one of the SRAM positions were filled from outside of Shell. The
exception was a position filled by a citizen of the United Kingdom. That
country’s employment law was interpreted to entitle the employee to a transfer.
The remaining Shell employees were provided a list of Shell position vacancies
and offered a severance package. All of the other internal Shell candidates for
the new SRAM positions were notified of their non-selection in September 2004.
Fonteneaux did not obtain another Shell position, refused a severance package,
and his employment was terminated at the end of February 2005.


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      Fonteneaux filed his charge of discrimination with the Equal Employment
Opportunity Commission on March 14, 2005. Fonteneaux made no specific
allegations in his charge. The EEOC issued a right to sue letter, and suit was
filed on November 30, 2005. The district court on August 22, 2007, granted
Shell’s motion for summary judgment on all claims. In a supplemental order
dated December 14, 2007, the court addressed claims under 42 U.S.C. Section
1981 and denied them as well. Fonteneaux appeals.
                                II. DISCUSSION
      In our review of the district court’s grant of summary judgment, we apply
the same analysis as did that court, examining the facts and inferences in the
light most favorable to the party opposing judgment. Armstrong v. American
Home Shield Corp., 333 F.3d 566, 568 (5th Cir. 2003).
      Fonteneaux argues that there were fact issues that should have prevented
summary judgment. He organizes his brief by sections that address five specific
claims that were denied, and then a sixth section dealing with the limited
acceptance of his affidavit. We will follow that organization except that the
validity of the affidavit will be discussed where relevant as to specific claims.
      1. New SRAM positions
      Fonteneaux is an African-American, a member of a protected class, who
was not selected for the new SRAM position, and the positions were filled by
persons outside of his protected class. The district court found that those facts
satisfied three of the four factors for a prima facie case of discrimination, but
that there was no evidence that Fonteneaux was qualified for the position. See
Blow v. City of San Antonio, 236 F.3d 293, 296 (5th Cir. 2001). The qualification
for the new SRAM positions that he did not meet, nor did any other of the
occupants of the SRM positions at Shell, was 10-15 years of sales experience.
      Fonteneaux argues that the shorter-term sales experience he did have,
taken with evidence that Shell’s human resource office thought that the new

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SRAM position was not more than 30% different than the SRM position, reveal
that he was actually qualified for the new position. This argument is a challenge
to Shell’s decision setting the minimum qualifications for the position.
Substantial weight is given to an employer’s decision on necessary credentials;
there was no evidence sufficient to block summary judgment that the sales
experience requirement had a discriminatory purpose. See Deines v. Texas Dep’t
of Protective and Regulatory Servs., 164 F.3d 277, 281 (5th Cir. 1999). Shell
justified the requirement of lengthy sales experience external to Shell on the fact
that the new SRAM positions would have an enhanced role in the company
compared to the older SRM position. Fonteneaux had no such experience. Any
sales experience Fonteneaux acquired was from within the Shell entity.
      There is no material fact in dispute on this point. The only SRM who
gained a new SRAM position was the citizen of the United Kingdom, and all
lacked the required experience established by Shell.        Fonteneaux did not
demonstrate a prima facie case of discrimination in not being selected for one of
the new SRAM positions.
      2. Retaliation
      Fonteneaux argues that he demonstrated a prima facie case of retaliation
because his old SRM position was terminated within five months from the date
he complained of discrimination for not being selected for a new SRAM position.
      To establish a prima facie case of retaliation, Fonteneaux must establish
the following: “(1) he participated in an activity protected by Title VII; (2) his
employer took an adverse employment action against him; and (3) a causal
connection exists between the protected activity and the adverse employment
action.” McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007).
      Based on Fonteneaux’s allegations, he was informed that his SRM
position, along with the others, would be replaced with new SRAM positions
which required advanced sales experience. It was only after receiving this

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information and being notified that none of the current SRM’s, with the
exception of the U.K. citizen, were eligible to transfer into a new SRAM position,
that Fonteneaux complained of discrimination.
       The protected activity Fonteneaux complains of took place after the
decision to terminate his SRM position was already made. A September 2004
meeting in which he complained about discrimination occurred after Fonteneaux
was not selected for a new SRAM position; the complaint could not have caused
the non-selection. There are no facts alleged that create a basis for a retaliation
claim. Summary judgment was proper.
       3. Statute of limitations for claims relating to SR&P division positions
       Fonteneaux argues that he was the most qualified person for the interim
manager and permanent manager of the SR&P division. Fonteneaux included
a claim of discriminatory failure to promote under 42 U.S.C. § 1981. The proper
statute of limitations for a claim under that statute is determined by whether
the claim would have been viable before certain 1991 congressional enactments.
       Fonteneaux concludes that the district court improperly applied Texas’s
two-year statute of limitations instead of a four-year federal limitations period.
Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (Vernon 2002) (two-year statute
of limitations); 28 U.S.C. § 1658(a) (four-year statute of limitations for “a civil
action arising under an Act of Congress enacted” after December 1, 1990”).1
       Because Section 1981 does not contain a statute of limitations,
traditionally the most analogous state statute of limitations has been applied.
Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 371 (2004). After enactment
of the 1991 Civil Rights Bill by Congress, a four-year statute of limitations

       1
        We note that alternatively, Fonteneaux argues even if the federal limitations period
does not apply, Texas applies a four-year statute of limitations for contractual matters and
Section 1981 allows a cause of action based on a contractual relationship. Tex. Civ. Prac. &
Rem. Code Ann. § 16.004(a). However, this Circuit has recognized that claims of racial
discrimination are subject to Texas’s two-year statute of limitations. Jones v. ALCOA, Inc.,
339 F.3d 359, 368 (2003).

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applies “if the plaintiff’s claim against the defendant was made possible” by the
1991 or later statute. Id. at 382.
      Fonteneaux’s claim of failure to promote based on alleged racial
discrimination would have been actionable without the 1991 statutory changes
if “the nature of the change in position was such that it involved the opportunity
to enter into a new contract with the employer. If so, then the employer’s refusal
to enter the new contract is actionable under § 1981.” Patterson v. McLean
Credit Union, 491 U.S. 164, 185 (1989) superseded by statute on other grounds
as stated in CBOCS West, Inc. v. Humphries, 128 S. Ct. 1951 (2008).
      The 1991 amendment to Section 1981 was in response to the holding in
Patterson that claims of post-contract-formation racial discrimination in
retaliation for engaging in protected activity were not actionable under Section
1981. Humphries, 128 S. Ct. at 1956-58. The Patterson holding, excluding post-
contract-formation conduct from Section 1981’s scope, is what gave rise to the
1991 amendment. Id. at 1956. Discriminatory refusal to enter into a new
employment contract was actionable under Section 1981, as the language we
quoted from Patterson reveals.
      “In deciding whether a change of position rises to the level of a new and
distinct relation, the court must compare the employee’s current duties, salary,
and benefits with those incident to the new position.” Police Ass’n ex rel.
Cannatella v. City of New Orleans, 100 F.3d 1159, 1170-71 (5th Cir. 1996). Shell
argues that Fonteneaux, if promoted, would have attained supervisory status
over SR&P division employees.        Where a routine promotion involves the
attainment of supervisory status, that alone does not create a new and distinct
employment relationship. Johnson v. Uncle Ben’s, 965 F.2d 1363, 1371 (5th Cir.
1992). However, a non-routine promotion that involves the attainment of
supervisory status may be categorized as creating a new and distinct
employment relationship. See Harrison v. Associates Corp. of North America,

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917 F.2d 195, 198 (5th Cir. 1990). There is no evidence that Fonteneaux had any
supervisory capacity in his SRM position. The promotions which he sought
involved the ability to make employment decisions as a Shell manager. A
promotion that would allow an employee to hire and fire subordinates is the type
of relationship that creates a new and distinct employment relationship.
      Therefore, the two-year Texas statute of limitations applied. Fonteneaux
was aware of his not being promoted no later than July 2003 for the permanent
position and much earlier for the interim manager position. He did not file suit
until November 2005. These claims are therefore barred.
      4. Disparity in pay
      Fonteneaux argues that he provided sufficient evidence to survive
summary judgment on his disparate pay claim. He alleged that his white
coworkers in the old SRM positions received higher compensation. In support
of this allegation, Fonteneaux offered his affidavit and a document that
purportedly contained salary information of his coworkers from 2003-2005. The
district court ruled that this evidence was not competent. The salary table did
not include all of Fonteneaux’s coworkers, and did not indicate its source.
      Evidence that would not be admissible at trial is not competent evidence
to be considered during summary judgment. Duplantis v. Shell Offshore, Inc.,
948 F.2d 187, 192 (1991). Affidavits certainly may be sufficient evidence, but
“unsubstantiated assertions are not competent summary judgment evidence.”
Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994). On its face, Fonteneaux’s
affidavit is comprised of mere allegations and hearsay. The district court
properly concluded that the pay table document and Fonteneaux’s affidavit are
not proper summary judgment evidence. Summary judgment was proper on the
disparity in pay claim.


      5. Category Manager of IT-Hardware and IT-Software positions

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      Fonteneaux argues that the district court failed to consider his claims of
race and age discrimination based on not being selected for two separate
positions as Category Manager. He argues that, despite his being qualified for
each position, the positions were filled with white females under the age of forty.
      The district court held that Fonteneaux failed to state any specific facts
regarding discrimination in not being selected for these Category Manager
positions. As discovery progressed in this case, Fonteneaux did not seek any
information pertinent to the Category Manager positions.
      Fonteneaux concedes that this issue was first raised in his response to
Shell’s motion for summary judgment. Fonteneaux provided no facts or details
to Shell on these claims even after Shell filed a motion for a more definite
statement. Fonteneaux, in his district court filings, provided no dates in relation
to the Category Manager positions. On appeal, Fonteneaux does not provide any
specific date or factual description of alleged discrimination regarding these
positions.   The district court properly concluded that Fonteneaux did not
prosecute these claims. To the extent these claims were raised, summary
judgment was proper.
      The judgment of the district court is AFFIRMED.




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