Hale v. Burns Intl Security

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
July 28, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-21339
Summary Calendar
MARCIA HALE,
Plaintiff - Counter Defendant-Appellant,
versus
BURNS INTERNATIONAL SECURITY SERVICES CORPORATION,
Defendant - Counter Plaintiff- Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H:01-CV-3423
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Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Marcia Hale initiated this action
against her employer, Defendant-Appellee Burns International
Security Services Corporation (Burns), alleging that she was
denied a promotion because of her gender in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq.

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1 Hale also challenges the district court’s evidentiary
rulings in which the district court properly excluded
unauthenticated exhibits as inadmissible hearsay. However, Hale
fails to direct this Court to any basis for disagreement with the
district court’s hearsay conclusion, and consequently Hale’s
argument lacks merit.
2
Burns filed a motion for summary judgment arguing that Hale
failed to meet her prima facie burden demonstrating gender
discrimination, and the district court granted summary judgment
in favor of Burns. Hale appeals now from that final order,
contesting the district court’s legal conclusion that she failed
to establish a prima facie case of gender discrimination. Hale
also argues that the district court erred in failing to give her
notice of the procedural requirements regarding motions for
summary judgment, and that the district court erred in failing to
sua sponte appoint her counsel. However, Hale is in error on all
three points.1
First, this Court reviews a granting of summary judgment de
novo. Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1119
(5th Cir. 1998). In the instant case, summary judgment is
properly granted if Burns, as the movant, demonstrates the
absence of a dispute of material fact, and if, in rebuttal, Hale
fails to demonstrate that a dispute of material fact exists.
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
To establish gender discrimination pursuant to Title VII under
the circumstantial evidence burden-shifting framework, a

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plaintiff must show that (1) she is a member of a protected
class; (2)she was qualified for the position in question; (3) she
was not chosen for the position in question; and (4) the position
was filled by someone outside the protected class, or other
indicia that she was denied the position because of her sex.
Rutherford v. Harris County, Tex., 197 F.3d 173, 179 (5th Cir.
1999). Here, the district court correctly found that Hale failed
to establish the second prong of her prima facie case of
discrimination, as she failed to provide evidence that she had
the particular communication skills which the position she sought
specifically required. Therefore, the district court did not err
in granting summary judgment in favor of Burns.
Next, Hale is incorrect in asserting that the district court
was required to apprise her of the procedural requirements
concerning summary judgment. On the contrary, this Court has
consistently held that the Federal Rules of Civil Procedure and
the relevant local rules of the district court are sufficient to
provide pro se litigants with notice of the requirements of
summary judgment. Martin v. Harrison County Jail, 975 F.2d 192,
193 (5th Cir. 1992).
Finally, Hale’s claim that the district court was required
to sua sponte appoint her counsel is not only incorrect, but is
indeed somewhat audacious considering the detailed colloquy which
occurred between the district court and Hale, concerning Hale’s

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lack of counsel. Upon authorizing the withdrawal of Hale’s
counsel, the district court stated from the bench that further
action in the case was suspended for 30 days “in order to permit
Mrs. Hale the opportunity to retain other counsel and to make an
appearance herein.” The district court also observed that Hale
was free to represent herself, “as is every citizen’s right.”
The district court then specifically asked Hale if she wished to
retain new counsel, to which Hale responded: “I’ve lost my faith
in counsel. I’ll probably end up representing myself....” Hale
now urges this Court to find that the district court was obliged
to sua sponte appoint counsel to represent her despite Hale’s
express wishes to the contrary. This contention is obviously
without merit.
Therefore, for the reasons stated herein, the judgment of
the district court is AFFIRMED.

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