                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                     UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT                   November 18, 2004

                        _______________________                Charles R. Fulbruge III
                                                                       Clerk
                           Cause No. 04-30480
                            Summary Calendar
                        _______________________


                              DIANE S. ROY,

                                                     Plaintiff-Appellant,

                                   versus


               UNITED STATES DEPARTMENT OF AGRICULTURE,
                      Ann M. Veneman, Secretary,

                                                      Defendant-Appellee.



            Appeal from the United States District Court
                for the Eastern District of Louisiana
                   Civil Action No. 02-CV899"A”(4)


Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

           This is an appeal from the district court’s grant of

summary   judgment    in   favor   the   United   States    Department       of

Agriculture (“USDA”).      For the reasons stated below, we AFFIRM.

           Diane S. Roy (“Roy”), a black female, sued the USDA,

alleging racial discrimination in violation of Title VII of the

Civil Rights Act of 1964. Roy worked at the USDA as an Accounting

Technician in the National Finance Center.         Roy applied for one of


     *
            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opinion should not be published and is not precedent except under the limited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.
five vacant paralegal positions within the USDA.            Applicants were

instructed to file a package consisting of an application, their

most recent performance appraisal, a college transcript or a

paralegal certificate, proof of eligibility, and a supplemental

statement    discussing   the    applicant’s      knowledge,   skills,      and

abilities.    Soon after submitting her application, Roy received a

hand-delivered notice that she would not be considered for any of

the vacant positions because her application was deficient.                She

was not permitted to amend her application.

            Other application packages were reviewed and rated by a

promotions panel, which used a five-criterion evaluation system.

The system resulted in two rosters, “Best Qualified” and “Non-

Competitive Eligibles,” which were then submitted to two selection

officials in alphabetical order and minus the scoring and ratings.

The two selection officials then interviewed in identical manner

the candidates who made the “Best Qualified” roster, excepting one

candidate who withdrew. Thereafter, each official individually

selected five persons from the roster.             They then convened to

compare   their   choices.      Both   officials    chose   the     same   five

candidates,    hired   those    persons,   and,     as   required    by    law,

contemporaneously filed justifications for the selection of each

candidate.    All of the five selectees were women: one Black, one

Native American, and three Caucasians. After the hiring decisions

were posted, Roy filed a Freedom of Information Act request for

copies of the hired persons applications.           After reviewing these

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documents, Roy filed suit.      The USDA responded with a motion for

summary judgment, which the district court granted in its favor.

Roy appeals from that decision.

          This court reviews a district court’s grant of summary

judgment de novo, applying the same standards as that court.

Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994).

          Pursuant to the burden-shifting framework operative in

Title VII disparate treatment cases, if Roy demonstrates a prima

facie case of discrimination, the burden shifts to the USDA to

articulate   a    legitimate,    non-discriminatory   basis   for   its

employment decision.    If the defendant meets this burden, Roy must

demonstrate that the USDA’s articulated reason is a pretext for

discrimination.    McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668(1973).

          The prima facie burden is extremely low, and Roy had no

problem meeting it here.        As a black woman she qualifies as a

member of a protected class; she applied for a paralegal position

and was qualified for the job; she did not get the job; and non-

protected persons with similar qualifications were hired for the

position she sought.    See McDonnell Douglas, 411 U.S. at 802, 93

S.Ct. at 1824 (setting forth the four requirements of prima facie

case).   The USDA also meets its burden – one of production, not

persuasion – to articulate a legitimate, nondiscriminatory reason

for its employment decision: that the qualifications of the five



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persons hired were superior to Roy’s qualifications,1 including

those of the two minorities hired to the exclusion of Roy.                   See

Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 142, 120

S. Ct. 2097, 2106, 147 L.Ed.2d 105 (2000) (stating that “[t]his

burden is one of production, not persuasion; it ‘can involve no

credibility assessment’”) (quoting St. Mary's Honor Center v.

Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742, 2748, 125 L.Ed.2d 407

(1993).     The USDA supported this articulation with production of

summary judgment evidence, including affidavits from the selecting

officials regarding hiring procedures and criteria as discussed

above, more than sufficiently rebutting the presumption established

by Roy’s prima facie case.

            Fatally, Roy fails to establish pretext.              As discussed

above,    the    selection    officials    filed    statements,    as   legally

required, affirmatively explaining the employment decision as to

each hired applicant and detailing each individual’s relevant

knowledge, skills, and abilities, including written communications.

The officials were only required to justify their reasons for

declining       Roy   the   position   during      the   EEOC   administrative



      1
             Roy argues that the district court erred in identifying the USDA’s
legitimate, nondiscriminatory reason as the superior qualifications of the five
hired persons, instead of the reason that the selection officials offered during
an EEOC administrative investigation – that Roy’s application was poorly prepared
and contained numerous grammatical and spelling errors. Roy’s distinction is
without a difference. The USDA’s reason – superior qualifications of the five
hired persons – necessarily encompasses the application review procedures wherein
hiring personnel found Roy’s application deficient for, among other reasons, poor
preparation as reflected in the high number of grammatical and spelling errors.
The USDA’s position has been consistent.

                                       4
investigation.       At that time, the officials maintained that Roy’s

application    was    rejected     because   it   was     poorly   written   and

contained numerous grammatical and spelling errors. As evidence of

pretext, Roy maintains that the applications of the five hired

persons were as poorly written as her own, submits an unsigned

document from a school teacher in support thereof, and maintains

that she is better qualified than the persons hired.

            First, because an unsigned affidavit is not competent

summary evidence pursuant to Rule 56(e) of the Federal Rules of

Civil Procedure, the Court will not consider it for purposes of de

novo review.     Fed. R. Civ. P. 56(e); Duplantis v. Shell Offshore,

Inc., 948 F.2d 187, 192 (5th Cir. 1991).                   Assuming technical

competency,    arguendo,     the    document,     which    asserts   that    the

applications of the five persons hired also contained grammatical

and spelling errors, is insufficient to establish pretext because

its substance does not adequately dispute the more than competent

summary judgment declarations of the selection officials, which

aver that the degree and extent of grammatical and spelling errors

contained in Roy’s application was unacceptable under the relevant

application requirements and hiring procedures.

            Additionally, Roy’s argument that she was “clearly better

qualified” than the hired persons also fails.2                As a Title VII


      2
             Although Roy tries to back away from this argument now, contending
that the district court incorrectly applied the “clearly better qualified”
standard when it should have simply addressed whether she demonstrated pretext,
Roy raised both standards below and, thus, the district court properly addressed

                                       5
plaintiff, Roy may survive summary judgment by demonstrating that

she    was    “clearly    better    qualified”     than      the   persons      hired.

Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 356-57 (5th

Cir. 1992) (citation omitted).          However, unlike Roy’s prima facie

burden, the “clearly better qualified” standard is extremely high

— evidence of the plaintiff’s qualifications must be “of such

weight and significance that no reasonable person, in the exercise

of impartial judgment, could have chosen the candidate selected

over the plaintiff for the job in question” – and Roy does not

satisfy it.     Celestine, 266 F.3d at 357.         Contrary to Roy’s conten-

tions, the fact that she has a paralegal certificate does not make

her “clearly better qualified” than the candidate(s) who had no

certification because certification was not an exclusive education

requirement.        Rather,   an    applicant     had   to    possess       a   college

education      or   a   paralegal    certificate.         Even     if   specialized

paralegal certification was a requirement, the white hiree with

whom    Roy    takes    greatest    issue   was   employed         as   a   paralegal

specialist at the time she was hired and had significant relevant

prior work experience.        The other hirees had similarly extensive

legal employment backgrounds.           Roy’s certification and one-year

trainee experience at a law firm pale in comparison and fail under

the “clearly better qualified” standard.




both standards below. Therefore, we address those same standards here, and Roy
loses on both counts.

                                        6
          Finally, Roy similarly fails on her “pattern and practice

of discrimination” claim as it is inapplicable to her individual

claim of racial discrimination. See Celestine, 266 F.3d at 355-356

(holding that an individual failure-to-promote race-based claim is

properly analyzed     under   the   McDonnell   Douglas   burden-shifting

framework at summary judgment stage because “pattern and practice”

claims are unavailable outside of a class action).

          For these reasons, we AFFIRM the district court’s summary

judgment grant in favor of the USDA.

          AFFIRMED.




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