Summary Calendar JOHN TEBERLE, JR v. Alberto Rgonzales, U Sattorney General; Federal Bureau of Prisons

* 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that this opinion should not be published and is not precedent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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United States Court of Appeals
Fifth Circuit
F I L E D
May 18, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-50954
Summary Calendar
JOHN T EBERLE, JR
Plaintiff - Appellant
v.
ALBERTO R GONZALES, U S ATTORNEY GENERAL; FEDERAL BUREAU OF
PRISONS
Defendants - Appellees
Appeal from the United States District Court
for the Western District of Texas, Austin
No. 1:05-CV-192
Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant John T. Eberle, Jr. (“Eberle”),
proceeding pro se, appeals the district court’s order granting
summary judgment in favor of his employer, United States Attorney
General Alberto Gonzales and the Federal Bureau of Prisons
(collectively, “Defendants”), on his claims of age, race, and

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disability discrimination and retaliation. Exercising
jurisdiction under 28 U.S.C. § 1291, we now AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
Eberle, a fifty-four year old Caucasian man who suffers from
bipolar disorder, has been employed by the Federal Bureau of
Prisons (“BOP”) at the Federal Correctional Institution in
Bastrop, Texas, since approximately 1988. During his employment
with BOP, Eberle has received over fifty awards and has served as
an Equal Employment Opportunity (“EEO”) Program Manager.
This appeal concerns Eberle’s non-selections for six General
Foreman positions. During 2003 and 2004, Eberle applied for the
General Foreman position at the Federal Detention Centers in
Houston, Texas, Safford, Arizona, Williamsburg, South Carolina,
Sheridan, Oregon, and Edgefield, South Carolina, the last of
which had two openings. At the time, Eberle was in his early
fifties and was a Maintenance Worker Supervisor.
The Federal Prison System Merit Promotion Plan set forth the
manner in which applicants were to be promoted in the BOP. After
applications were submitted, a promotion board selected the
candidates who ranked at the top when compared with other
eligible candidates for promotion. Those highly ranked
candidates were then grouped together as the best qualified
applicants. A promotion certificate including the names and
applications of the best qualified applicants was then forwarded

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to the selecting official. The selecting official could either:
(1) select any best qualified applicant; (2) fill the position
through some other type of placement action; or (3) decide not to
fill the position.
Each time Eberle applied for the General Foreman position,
he was found to be one of the best qualified applicants, but he
was not promoted to the General Foreman position. Rather, other
applicants from the best qualified list were chosen by the
selecting officials. The selecting officials for each location
were different, except that the selecting official for Edgefield
filled both openings.
In late September 2003, after being notified that he had not
been selected for the Houston position, Eberle contacted EEO
counselor Debra Parks, who in October 2003 referred Eberle to EEO
counselor Deborah Warren. In January 2004, Eberle contacted
Deborah Warren, alleging that he was not selected for the General
Foreman positions in Houston, Safford, or for either position in
Edgefield because of his age. He did not complain of race or
disability discrimination or retaliation.
On March 31, 2004, Eberle filed a complaint with the Equal
Employment Opportunity Commission (“EEOC”), alleging age
discrimination for failure to promote. The EEOC accepted for
investigation Eberle’s claims for the General Foreman positions
in Edgefield and Safford, but rejected the allegation regarding
the position in Houston as untimely.

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In April 2004, Eberle requested that the EEOC add Houston to
its investigation, arguing that he had met with EEO counselor
Debra Parks within forty-five days of his non-selection but that
she was too busy and had “bounced” him to Deborah Warren, which
delayed the filing of his complaint. Eberle also requested that
the EEOC add his non-promotions for the General Foreman positions
in Williamsburg and Sheridan to his complaint.
The EEOC accepted the allegation related to the position in
Houston for investigation, but denied Eberle’s request to include
his non-promotions in Williamsburg and Sheridan. The EEOC
informed Eberle that his allegations regarding Williamsburg and
Sheridan were not like or related to his pending EEOC complaint
and recommended that Eberle seek EEO counseling for these
allegations.
In September 2004, Eberle received a copy of the EEOC
investigation. He also received his right to sue letter.
On March 18, 2005, Eberle filed this lawsuit. Eberle
alleges that he was discriminated and retaliated against when he
was not selected for any of the General Foreman positions based
on his age, in violation of the Age Discrimination in Employment
Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq., his race, in
violation of Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. § 2000e et seq., and his physical disability or
handicap, in violation of section 504 of the Rehabilitation Act
of 1973, 29 U.S.C. § 794 et seq. Defendants moved for summary

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judgment on all of Eberle’s claims.
The action was referred to a magistrate judge. The
magistrate judge recommended that the district court grant
Defendants’ summary judgment motion. The district court accepted
the magistrate judge’s Report and Recommendation, granting
summary judgment to Defendants on Eberle’s claims. On June 28,
2006, the district court entered its final judgment. Eberle now
appeals.
II. STANDARD OF REVIEW
“The grant of summary judgment is reviewed de novo and may
be affirmed on any ground raised below and supported by the
record.” Administaff Cos. v. N.Y. Joint Bd., Shirt & Leisurewear
Div., 337 F.3d 454, 456 (5th Cir. 2003). Summary judgment is
appropriate only “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.” FED. R. CIV. P. 56(c). If the movant
satisfies his initial burden of demonstrating the absence of a
material fact issue, then “‘the non-movant must identify specific
evidence in the summary judgment record demonstrating that there
is a material fact issue concerning the essential elements of
[his] case for which [he] will bear the burden of proof at
trial.’” Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415,

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1429 (5th Cir. 1996) (en banc) (quoting Forsyth v. Barr, 19 F.3d
1527, 1533 (5th Cir. 1994) (citations omitted)). “[T]here is no
material fact issue unless ‘the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’”
Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). In addition, “conclusory allegations, speculation, and
unsubstantiated assertions are inadequate to satisfy the
nonmovant’s burden.” Id.
III. DISCUSSION
Eberle raises several issues on appeal. He argues that the
district court erred in holding that his claims for race and
disability discrimination were not administratively exhausted.
He also contends that the district court erred by not considering
his claims related to his non-promotions in Williamsburg and
Sheridan. Eberle further maintains that the district court
should have considered the merits of his retaliation claims
instead of holding that these claims were not exhausted.
Eberle next asserts that the district court erred in
granting summary judgment on his age discrimination claims
because he asserts that he was better qualified and more
experienced than those applicants who were selected for the
General Foreman positions. Finally, he complains that the
district court’s grant of summary judgment was inappropriate
because he is entitled to a trial by jury and because he was

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1 Eberle also argues that the district court never
addressed his “Motion to Suspend the Legal Standard.” He appears
to be contending that the “motion to dismiss” and not “motion for
summary judgment” standards should govern his case. However, we
are not dealing with a motion to dismiss for failure to state a
claim. The appropriate standard is that governing summary
judgment, which is the motion Defendants filed in this case. To
the extent Eberle is making some other argument, it is waived for
failure to adequately brief the issue. See Grant v. Cuellar, 59
F.3d 523, 524 (5th Cir. 1995) (stating that pro se litigants must
reasonably comply with the Federal Rules of Appellate Procedure).
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denied discovery.1 We will address each of these issues in turn.
A. Eberle’s claims for race and disability discrimination, his
claims related to his non-promotions in Williamsburg and
Sheridan, and his claims for retaliation were not
administratively exhausted
1. Race and Disability Discrimination Claims
Eberle argues that he did not know about his claims for race
and disability discrimination until he received a copy of the
EEOC investigation in September 2004. Based on his lack of
knowledge of the claims, he contends that the district court
erred in dismissing these claims for failure to exhaust
administrative remedies.
Prior to bringing suit for employment discrimination claims,
a federal employee must exhaust his administrative remedies. See
Fitzgerald v. Sec’y, U.S. Dep’t of Veterans Affairs, 121 F.3d
203, 206 (5th Cir. 1997). Federal regulations require an
employee who believes that he has been discriminated against on
the basis of race, color, religion, sex, national origin, age, or
handicap to initiate contact with an EEO counselor within forty-

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five days of the date of the matter alleged to be discriminatory
or, in the case of personnel action, within forty-five days of
the effective date of the action. 29 C.F.R. § 1614.105(a)(1).
“Failure to notify the EEO counselor in timely fashion may bar a
claim, absent a defense of waiver, estoppel, or equitable
tolling.” Pacheco v. Rice, 966 F.2d 904, 905 (5th Cir. 1992).
The employee bears the burden of establishing waiver, estoppel,
or equitable tolling to circumvent this EEO requirement. Teemac
v. Henderson, 298 F.3d 452, 454, 457 (5th Cir. 2002).
Eberle never initiated contact with an EEO counselor
regarding his claims of race and disability discrimination for
any of his non-promotions, thus failing to comply with the forty-
five day period prescribed by 29 C.F.R. § 1614.105. Instead,
Eberle attempts to toll the forty-five day requirement by arguing
that he was not aware of these claims. We are not persuaded.
This court has refused to toll the requirement in 29 C.F.R.
§ 1614.105 in other instances where the defendant claimed he
lacked the necessary knowledge to pursue his claims. In Pacheco
v. Rice, the plaintiff argued that the time limit for notifying
an EEO counselor should be tolled because he did not learn that
his employer had treated another employee more favorably than him
until three years after he was terminated. 966 F.2d at 905-06.
The plaintiff contended that he did not perceive that the
circumstances surrounding his discharge were discriminatory until
he discovered this disparate treatment. Id. at 906. In refusing

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to toll the EEO requirement, this court held that the doctrine of
equitable tolling “does not permit plaintiffs to suspend the time
for filing discrimination complaints indefinitely when they
discover instances of disparate treatment of other employees
months or years after their discharge.” Id. at 907. The court
recognized that although it was to be expected that some relevant
facts would come to light after the complained-of action, “one
purpose of filing an administrative complaint is to uncover
them.” Id. The court concluded that “[t]he requirement of
diligent inquiry imposes an affirmative duty on the potential
plaintiff to proceed with a reasonable investigation in response
to an adverse event.” Id.
The reasoning in Pacheco applies here. There is no reason
that Eberle could not have raised his claims of race and
disability discrimination at the time he raised his claims of age
discrimination. As a former EEO program manager who received
annual EEO training, Eberle was familiar with the EEO process.
If Eberle suspected that he was being singled out because of his
race or disability, he could easily have complained. Eberle
never consulted with an EEO counselor regarding these claims, nor
did he attempt to amend his formal EEOC complaint with these
additional claims. Instead, he sat on his rights until he filed
his case in federal court. Consequently, Eberle is not entitled
to equitable tolling. See Teemac, 298 F.3d at 457 (“Equitable
tolling applies only in rare and exceptional circumstances.”)

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(internal quotation marks and citation omitted).
Because we conclude that the district court correctly held
that Eberle failed to exhaust his administrative remedies and
because the grounds for equitable tolling are inapplicable, we
affirm the district court’s judgment as to these claims.
2. Claims Related to Non-Promotions in Williamsburg and
Sheridan
Eberle next contends that the district court erred by not
considering his claims for his non-promotions in Williamsburg and
Sheridan. He argues that these allegations are “alike and the
same” as his allegations for his non-promotions in Houston,
Safford, and Edgefield.
Again, we cannot agree. As explained earlier, failure to
notify an EEO counselor within forty-five days of the alleged
discriminatory action may bar the plaintiff’s claim. See
Pacheco, 966 F.2d at 905. It is undisputed that Eberle never
initiated contact with an EEO counselor regarding his allegations
related to his non-promotions in Williamsburg and Sheridan. In
fact, when Eberle attempted to get the EEOC to amend his
complaint to include these claims, the EEOC refused, advising
Eberle to seek EEO counseling first. Eberle did not heed the
EEOC’s advice.
Eberle’s contention that his Williamsburg and Sheridan
claims are “the same” as his other claims is not persuasive.
While a plaintiff may complain of otherwise time-barred

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discriminatory acts if it can be shown that the discrimination
manifested itself over time, discrete discriminatory acts are not
entitled to the shelter of the continuing violation doctrine.
See Frank v. Xerox Corp., 347 F.3d 130, 136 (5th Cir. 2003).
Failure to promote is a discrete discriminatory act. See Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002).
Accordingly, Eberle was required to seek EEO counseling within
forty-five days of the non-promotions in Williamsburg and
Sheridan. See 29 C.F.R. § 1614.105. Because he failed to do so,
Eberle’s claims related to Williamsburg and Sheridan are
procedurally barred. Thus, the district court committed no error
in refusing to entertain these allegations.
3. Retaliation Claims
Eberle argues that the district court erred in dismissing
his retaliation claims for failure to exhaust administrative
remedies. He claims that he was not required to exhaust his
retaliation claims under this court’s decision in Gupta v. East
Texas State University, 654 F.2d 411 (5th Cir. 1981).
Eberle’s argument misunderstands the import of our
precedent. In Gupta, this court held that “it is unnecessary for
a plaintiff to exhaust administrative remedies prior to urging a
retaliation claim growing out of an earlier charge; the district
court has ancillary jurisdiction to hear such a claim when it
grows out of an administrative charge that is properly before the
court.” 654 F.2d at 414. We explained the practical reasons and

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policy justifications for this rule as follows:
It is the nature of retaliation claims that they arise
after the filing of the EEOC charge. Requiring prior
resort to the EEOC would mean that two charges would have
to be filed in a retaliation case[,] a double filing that
would serve no purpose except to create additional
procedural technicalities . . . .
Id. (emphasis added).
However, Gupta and its rationale are not applicable when, as
here, the alleged retaliation occurs before the filing of the
EEOC charge. Eberle alleges that Defendants retaliated against
him by not promoting him to any of the General Foreman positions.
It is undisputed that Eberle found out he was not promoted for
the positions in Houston, Edgefield, and Safford, on September
10, 2003, December 24, 2003, and January 26, 2004, respectively,
well before he filed his EEOC complaint on March 31, 2004. Since
the alleged retaliation (i.e., non-promotion) occurred prior to
the filing of his EEOC complaint, Eberle was well aware of the
conduct and actions that would give rise to his claims of
retaliation. Given these factual circumstances, Eberle’s
retaliation claims do not fall under the Gupta exception.
See Miller v. Sw. Bell Tel. Co., No. 01-21318, 2002 WL 31415083,
at *8 (5th Cir. Oct. 7, 2002) (unpublished) (explaining that the
Gupta exception does not apply where the alleged adverse
employment action prompting the plaintiff’s claim for retaliation
occurred prior to the filing of his discrimination charge).
Because the alleged retaliation in the instant case occurred

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before Eberle filed his EEOC complaint, Eberle should have
exhausted his administrative remedies on his retaliation claims.
Alternatively, to the extent Eberle is claiming that he was
retaliated against after he filed his EEOC complaint in March
2004, this claim would be covered by the Gupta exception.
Ultimately, however, this claim would still fail because Eberle
cannot raise a genuine issue of material fact to support a prima
facie case of retaliation.
To establish a prima facie case of unlawful retaliation, the
employee must show that: (1) he engaged in protected activity;
(2) he suffered an adverse employment decision; and (3) a causal
link exists between the protected activity and the adverse
employment decision. Medina v. Ramsey Steel Co., 238 F.3d 674,
684 (5th Cir. 2001). A “causal link” is established when the
evidence demonstrates that the employer’s adverse employment
decision was based in part on knowledge of the employee’s
protected activity. Id. In order to establish this causal link
prong, “the employee should demonstrate that the employer knew
about the employee’s protected activity.” Manning v. Chevron
Chem. Co., 332 F.3d 874, 883 (5th Cir. 2003).
Eberle’s brief is not clear as to whether he is alleging
that he suffered an adverse employment decision as a result of
filing his EEOC complaint in March 2004. He points to “74 pieces
of evidence,” but this is not competent summary judgment evidence

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2 Eberle contends that he set forth summary judgment
evidence in the form of seventy-four facts and exhibits and that
the district court ignored this evidence in ruling on his
retaliation and discrimination claims. The magistrate judge
rejected the submission of these facts and exhibits because
Eberle had not submitted an affidavit based on his personal
knowledge, had not presented facts that would be admissible into
evidence, and had not properly authenticated his exhibits.
After filing his brief in this court, on January 10,
2007, Eberle filed his personal affidavit in support of the
seventy-four exhibits and facts. However, Eberle’s attempt is
too little, too late. This court will not consider evidence as
part of the appellant’s summary judgment record that was not
properly before the district court. See John v. Louisiana, 757
F.2d 698, 710-11 (5th Cir. 1985).
3 Because we conclude that Eberle either failed to exhaust
his administrative remedies or failed to establish a prima facie
case of retaliation, we need not reach Defendants’ alternative
argument that the government has not waived sovereign immunity
under the ADEA for retaliation claims.
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that we can consider on appeal.2 To the extent he is arguing
that his non-promotions in Williamsburg and Sheridan were the
adverse employment decisions, Eberle still fails to establish a
prima facie case of retaliation. There is no competent summary
judgment evidence of a causal link between Eberle’s EEOC
complaint and his failure to receive any position. His
subjective belief that he was retaliated against, without more,
is not sufficient to survive summary judgment. Cf. Douglass, 79
F.3d at 1429. We therefore affirm the district court’s judgment
on Eberle’s retaliation claims.3
B. Eberle’s claims for age discrimination under the ADEA based
on his non-promotions in Houston, Safford, and Edgefield
fail to raise a genuine issue of material fact
1. ADEA Claim for Non-Promotion in Houston

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4 See 29 U.S.C. § 631 (stating that the prohibitions in the
ADEA “shall be limited to individuals who are at least 40 years
of age”).
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Eberle next argues that the district court did not
thoroughly consider the evidence regarding his failure-to-promote
claim for the Houston position. Specifically, Eberle claims that
he was better qualified and more experienced than Ken Brooks, the
applicant selected for the position.
Because Eberle’s ADEA claim is based on circumstantial
evidence, it is governed by the burden-shifting framework set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). See Medina, 238 F.3d at 680. Under McDonnell Douglas,
the employee must first establish a prima facie case of age
discrimination, which requires the employee to prove that: (1) he
belongs to the protected class;4 (2) he applied for and was
qualified for a position for which applicants were being sought;
(3) he was rejected; and (4) either (i) someone outside the
protected class was selected, (ii) someone younger was selected,
or (iii) he was otherwise rejected because of his age. See
Rachid v. Jack in the Box, Inc., 376 F.3d 305, 309 (5th Cir.
2004). It is undisputed that Eberle belongs to the protected
class, he applied for and was qualified for the position, he was
passed over for promotion, and an applicant not within the
protected class was promoted.
The burden therefore shifts to Defendants to articulate a

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5 Eberle has not argued a mixed-motive theory. See Rachid,
376 F.3d at 312.
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legitimate, nondiscriminatory reason for their decision to select
Brooks instead of Eberle. See Medina, 238 F.3d at 680.
Defendants offer several justifications: first, that the
selecting official for Houston did not know the ages of the
applicants on the best qualified list (a list that included
Eberle, Brooks, and six other applicants); second, that the
promotion plan allowed the selecting official to select any
applicant from the best qualified list; and finally, that the
selecting official was looking for someone with a background in
electronics and communications and that Brooks fit that
description.
Because Defendants have sustained their burden of
production, Eberle must raise a genuine issue of material fact as
to whether Defendants’ proffered reasons were a pretext for age
discrimination.5 See id. Eberle does not confront all of
Defendants’ legitimate, nondiscriminatory reasons for selecting
Brooks; instead, he raises essentially two arguments in an effort
to show pretext. First, Eberle contends that he was clearly
better qualified than Brooks because he had taken over 104
classes at the BOP, had won numerous awards, had served as an
instructor, was bilingual, and had worked for the BOP longer than
Brooks. Second, Eberle asserts that he scored higher than Brooks
on the merit promotion ranking form, a form used to determine the

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6 The “clearly better qualified” standard for showing
pretext by comparison to the preferred employee has survived the
Supreme Court’s recent rejection, in Ash v. Tyson Foods, Inc.,
546 U.S. 454, 126 S. Ct. 1195, 1197-98 (2006), of the “slap you
in the face” standard previously used by the Fifth Circuit. See
Stiner v. IBM Corp., No. 06-20588, 2007 WL 30837, at *2 n.2 (5th
Cir. Jan. 5, 2007) (unpublished).
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best qualified list. For both of these reasons, Eberle argues
that he should have been selected for the Houston position.
Eberle’s belief that he was better qualified and had more
experience than Brooks does not establish pretext. Although a
genuine issue of material fact exists when evidence shows the
plaintiff was “clearly better qualified” than younger employees
who were promoted, “this evidence must be more than merely
subjective and speculative.” Nichols v. Loral Vought Sys. Corp.,
81 F.3d 38, 42 (5th Cir. 1996). Put another way, “differences in
qualifications between job candidates are generally not probative
evidence of discrimination unless those differences are so
favorable to the plaintiff that there can be no dispute among
reasonable persons of impartial judgment that the plaintiff was
clearly better qualified for the position at issue.” Deines v.
Tex. Dep’t of Protective & Regulatory Servs., 164 F.3d 277, 279
(5th Cir. 1999).6
Here, the differences in qualifications between Eberle and
Brooks are not “so widely disparate that no reasonable employer
would have made the same decision.” Id. at 282. In addition,
“greater experience alone will not suffice to raise a fact

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question as to whether one person is clearly more qualified than
another. More evidence, such as comparative work performance, is
needed.” Nichols, 81 F.3d at 42. Eberle’s summary judgment
evidence does not contain sufficiently specific reasons to
support his subjective opinion that he was more qualified than
Brooks for the General Foreman position.
Eberle’s contention that he scored higher on the merit
promotion ranking form than Brooks also does not establish that
Defendants’ reason for selecting Brooks was pretextual.
According to the promotion plan, the scores were used to
determine which candidates would be selected for the best
qualified applicant list. Once the best qualified applicants
were selected, the selecting official could choose any candidate
from the best qualified list regardless of that applicant’s score
on the ranking form. Eberle has not adduced any competent
summary judgment evidence that the promotion plan was not
followed.
In sum, Eberle merely speculates that age was a factor in
Defendants’ selection, but such unsubstantiated assertions are
not competent summary judgment evidence. Because Eberle has
failed to raise a genuine issue of material fact as to whether
Defendants’ proffered reasons were a pretext for age
discrimination, the district court’s summary judgment on this
issue is affirmed.
2. ADEA Claims for Non-Promotions in Edgefield

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Eberle raises almost identical arguments for his non-
promotions in Edgefield as he did for his non-promotion in
Houston. He argues that neither of the selected applicants,
David Goff and Christopher Mayson, was qualified for the General
Foreman position. He again points to his awards, training
classes, and years of service with the BOP as evidence of
pretext.
Turning to the McDonnell Douglas framework, Eberle has
established a prima facie case of age discrimination. Defendants
have also met their burden of producing a legitimate,
nondiscriminatory reason for selecting Goff and Mayson instead of
Eberle. Defendants assert that the selecting official did not
consider age as a factor in his decision. Defendants also
maintain that the selecting official considered the nine best
qualified applicants, which included Eberle, Goff, and Mayson,
and selected Goff and Mayson based on their strong
administrative, communication, and written communication skills,
skills the selecting official thought were crucial for the
Edgefield positions.
The focus therefore becomes whether Eberle has met his
burden of showing that Defendants’ explanation was merely a
pretext for discrimination. Eberle makes the same attempt to
establish pretext as he did for the Houston position: that he is
clearly better qualified than Goff and Mayson, and that his score
on the ranking form used for determining the best qualified list

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was higher than those of the applicants ultimately selected. For
all of the reasons stated above, Eberle has failed to create a
jury issue that Defendants’ stated reasons for not promoting
Eberle were pretextual. See Nichols, 81 F.3d at 42. In
addition, none of the other evidence presented by Eberle creates
a genuine issue of material fact regarding pretext. We thus
conclude that the district court did not err in granting summary
judgment to Defendants on these Edgefield claims of age
discrimination.
3. ADEA Claim for Non-Promotion in Safford
Finally, Eberle asserts that he should have been promoted to
the General Foreman in Safford because he was more qualified and
more experienced than John Hughes, the applicant who was selected
from the best qualified list, a list that also included Eberle
and four other applicants.
Under McDonnell Douglas, Eberle must first raise a genuine
issue of material fact as to each element of his prima facie case
for age discrimination. See Rachid, 376 F.3d at 309. Eberle has
failed to satisfy his burden. John Hughes is one and one-half
years older than Eberle. In addition, Eberle has not set forth
any competent summary judgment evidence that he was otherwise not
promoted because of his age. Accordingly, we affirm the district
court’s judgment on this issue.
C. Eberle’s arguments that he is entitled to a jury trial and
that he was denied discovery lack merit

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Finally, Eberle argues that it was inappropriate for the
district court to dismiss his case on summary judgment grounds
and to deny him the opportunity to present his evidence to a
jury. He further claims that he was denied discovery.
These contentions are frivolous. Federal Rule of Civil
Procedure 56(c) requires the court to render summary judgment if
the appropriate materials on file “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.” As this court has
explained, “[t]he function of the jury is to try the material
facts; where no such facts are in dispute, there is no occasion
for jury trial. Thus the right to trial by jury does not prevent
a court from granting summary judgment.” Plaisance v. Phelps,
845 F.2d 107, 108 (5th Cir. 1988). When the district court
properly entered summary judgment on Eberle’s claims, his demand
for a jury trial became moot. See id.
Equally without merit is Eberle’s argument that he was
denied discovery. All discovery in Eberle’s case was to be
completed on or before January 31, 2006, approximately three
weeks before the deadline for dispositive motions. These dates
were established in a September 1, 2005, scheduling order. The
district court allowed Eberle adequate time to complete his
discovery. Eberle never requested to continue discovery beyond
the deadline. Consequently, the district court committed no
error.

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IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
AFFIRMED.

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