IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 97-20642

Summary Calendar ____________________

THEODORE HAYNES, JR,

Plaintiff-Appellant,

v.

PENNZOIL COMPANY,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (H-96-CV-2217) _________________________________________________________________ March 31, 1998 Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PER CURIAM:*

Plaintiff-appellant Theodore Haynes, Jr. appeals the

district court’s grant of summary judgment in favor of defendant-

appellee Pennzoil Company on his claims of race discrimination

and retaliation. We reverse the judgment of the district court

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. and remand the case for further proceedings consistent with this opinion.

I. FACTUAL & PROCEDURAL BACKGROUND

Plaintiff-appellant Theodore Haynes, Jr. began working for

defendant-appellee Pennzoil Company’s (Pennzoil) Treasury

Department in March 1985. Between March 1985 and May 1990,

Pennzoil promoted Haynes four times and gave him seven pay

raises. In addition, during that period, Pennzoil paid Haynes’s

tuition and related expenses. In December 1988, Haynes earned a

B.B.A. in Accounting from the University of Houston.

In the summer of 1989, Haynes applied for tuition

reimbursement so that he could attend paralegal school. Pennzoil

denied his request because its educational assistance policy

required that the course of study be related to the employee’s

position within the company. In the summer of 1991, Haynes

requested an educational leave of absence so that he could attend

law school. Pennzoil denied his request on the grounds that its

educational leave policy stated that “[s]uch leaves should be for

advanced degrees (beyond the bachelor level) associated with the

employee’s work-related activities and are subject to management

approval.” In addition, Pennzoil’s policy permitted an

educational leave to extend for a maximum of two years. After

Pennzoil denied his request on the grounds that law school was

not related to his work as an accountant, Haynes stopped going to

work and began attending law school. Because he failed to submit

2 a letter of resignation, which he was instructed to do, his file

reflected that he was terminated for failing to report to work.

In January 1991, Haynes filed an EEOC complaint alleging

that Pennzoil denied his request for an educational leave because

of his race. On April 28, 1992, the EEOC determined that

Pennzoil’s decision had not been discriminatory. In July 1992,

Haynes filed suit against Pennzoil, claiming that it had

discriminated against him on the basis of his race in violation

of Title VII of the Civil Rights Act of 1964, codified at 42

U.S.C. § 2000e, and of

. In 1993, the parties

agreed to a settlement and the suit was dismissed. The

settlement included, among other things, Pennzoil’s reinstatement

of Haynes to his former position with credit for continuous

service. In addition, the settlement acknowledged that Pennzoil

did not “undertake any obligation to assign [Haynes] to or

consider him for any position in Pennzoil’s legal department.”

Haynes returned to Pennzoil’s accounting department in

August 1993. On November 18, 1993, Haynes began inquiring about

legal positions within Pennzoil. Pennzoil responded that it

would post “openings for entry-level legal positions (defined as

jobs that require a law degree and license) in the Legal

Department.” From that time until Haynes’s termination, Pennzoil

neither posted for nor hired any attorneys that it considered to

be “entry-level.” However, in the spring of 1995, Pennzoil did

hire two attorneys--one was a gas marketing attorney with over

3 fifteen years of experience and the other was an oil and gas

attorney with approximately three years of experience.

Pennzoil claims that in October 1995, it began a program of

streamlining its corporate structure to cut costs. The program

required the elimination of over 600 jobs and resulted in the

merger of Haynes’s group and another group. The management of

the new group determined that the department should be reduced by

two accountants. Pennzoil claims that in order to accomplish

this reduction, it ranked the employees in the department and

discharged the two lowest ranked employees, one of whom was

Haynes.

On July 5, 1996, Haynes filed this lawsuit, alleging, among

other things, that Pennzoil discriminated against him by not

considering him for the two attorney openings and by later firing

him. On October 4, 1996, Pennzoil moved for partial summary

judgment on several of Haynes’s claims, arguing that they had

been settled and released in his previous lawsuit.

The district court held hearings on November 14 and December

17, 1996, to discuss Pennzoil’s motion for partial summary

judgment. At the hearings, the district court indicated its

willingness to go beyond the scope of the summary judgment motion

and eliminate any issues in the case for which there existed no

genuine issues of material fact. On July 3, 1997, the district

court entered summary judgment in favor of Pennzoil on all claims

and dismissed the case.

4 II. SUMMARY JUDGMENT STANDARD

“We review a grant of summary judgment de novo, ‘including

the question whether the court provided the notice required by

Fed. R. Civ. P. 56.’” United States v. Houston Pipeline Co.,

(5th Cir. 1994) (quoting Resolution Trust Corp.

v. Sharif-Munir-Davidson Dev. Corp.,

, 1401 (5th

Cir. 1993)). We consult the applicable law in order to ascertain

the material factual issues, and we then review the evidence

bearing on those issues, viewing the facts and inferences to be

drawn therefrom in the light most favorable to the nonmovant.

King v. Chide,

(5th Cir. 1992). 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

judgment as a matter of law.” FED. R. CIV. P. 56(c).

III. DISCUSSION

Haynes raises several points of error on appeal. First, he

contends that the court relied on inadmissible evidence and that

it was biased against him in its consideration of the case.

Second, he argues that the court erred in failing to permit him

to conduct an adequate amount of discovery. Finally, he asserts

5 that the court failed to consider his retaliatory discharge

claim.1 We address each of these claims in turn.

Haynes first argues that the district court considered

inadmissible evidence offered by Pennzoil. Haynes bases this

complaint on the district court’s statement in the December

hearing that if Haynes required the authentication of certain

documents2 submitted by Pennzoil without any reason for

questioning their authenticity then the court would assess the

resulting costs against him if the documents proved to be

authentic. Pennzoil responds that the district court was

justified in giving Haynes such a warning and notes that he

remained free to require authentication of the documents and to

appeal any resulting allocation of costs.

1 Haynes also contends that the district court’s sua sponte decision to grant summary judgment on all of his claims was improper because he did not receive adequate notice of the court’s intention to do so. Because we conclude that the district court’s grant of summary judgment was improper for other reasons, we need not address this issue. 2 Pennzoil submitted the documents in question in response to the district court’s request for information on Haynes’s termination and his not being considered for the two attorney positions. The documents included the following: (1) job descriptions for the two available attorney positions; (2) information forms submitted by the two successful applicants for the positions and by Haynes; (3) internal Pennzoil newsletters detailing the reduction-in-force; (4) several documents involving Haynes’s termination, including a chart showing the rankings of accounting personnel and an evaluation of Haynes.

6 It is well-settled that, “[t]o be admissible [as summary

judgment evidence], documents must be authenticated by and

attached to an affidavit that meets the requirements of [Federal

Rule of Civil Procedure] 56(e) and the affiant must be a person

through whom the exhibits could be admitted into evidence.” 10A

CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2722, at 59-60

(2d ed. 1983) (footnotes omitted). The documents submitted by

Pennzoil in its supplement to its motion for summary judgment

were not authenticated. Pennzoil argues that Haynes’s attorney’s

colloquy3 with the district court about this issue resulted in

3 Lopez and the district court engaged in the following exchange on this issue:

MR. LOPEZ: All we have is, you know, this unverified sheet of paper purporting to show the rankings. I have no idea what it is --

THE COURT: I’ll be happy to have somebody from Pennzoil verify it, if it turns out not to be any change, then you pay the cost of all that. There is no sense in going through the empty exercises. Mr. Smith and the lawyers from Pennzoil and Pennzoil itself are here representing. These are the documents from Pennzoil.

MR. LOPEZ: All I’m asking is they comply with the rules.

THE COURT: And if you want them to comply pointlessly to what you have no reason to believe is necessary, then I’ll assess the cost. This is not a game. This is a legitimate purpose. You tell me what’s wrong with this printout. . . .

. . .

THE COURT: . . . you feel free, if you really want to depose any of the records custodian to see whether they

7 its being waived, claiming that Haynes should have requested the

authentication and then later appealed any cost shifting imposed

by the district court. We disagree.

The requirement of authentication is subject to waiver if it

is not raised before the trial court by the opposing party. See

United States v. “Monkey”,

, 1011 n.4 (5th Cir.

1984) (“Objections to authenticity . . . are waived by a failure

to raise them in the District Court, where the [opponent] could

have remedied any technical deficiencies.”); 10A WRIGHT ET AL.,

supra, § 2722, at 60 (“As is true of other material introduced on

a summary judgment motion, uncertified or otherwise inadmissible

documents may be considered by the court if not challenged.”).

The purpose of the requirement that objections be raised before

the district court is to prevent the unnecessary appeal of an

issue that could have been cured at the district court and to

insure that the district court has had an opportunity to rule on

the issue. In this case, Haynes’s attorney clearly objected to

the consideration of the unauthenticated documents offered by

Pennzoil, and at no time after raising the authentication issue

did he indicate that he wished to waive the requirement.

Contrary to what the district court’s discussion of the

issue implies, it is the burden of the party offering documentary

evidence to provide proof of its authenticity; it is not the

produced this from their records or not.

8 burden of the opposing party to prove that the evidence is not

authentic. See United States v. Sutherland,

(5th Cir. Unit A 1981). Moreover, the error in this case was not

harmless. The district court’s Opinion on Judgment relies on the

document containing the employee rankings as the primary evidence

that Pennzoil’s decision to terminate Haynes was based on a valid

business reason and not on illegal discrimination. In addition,

the Opinion indicates that the district court relied on the

application forms submitted by the two new attorneys in disposing

of Haynes’s claim that he should have been considered for and was

qualified for the legal positions. These documents were not

competent summary judgment evidence. As Pennzoil introduced no

competent summary judgment evidence to rebut Haynes’s claim of

discrimination, entry of summary judgment was not proper.4

Haynes next contends that the district court erred in not

allowing him adequate time for discovery before granting summary

judgment and in conducting its own discovery on behalf of

4 Haynes contends that the admission of the unauthenticated documents demonstrated that the district court was biased against him. He further contends that, throughout the proceedings, the district court “exhibited an unreasoning [sic] prejudice against [his] claims and a bias for the company,” and he suggests that some of the statements by the district court regarding the racial characteristics of Haynes’s department also demonstrate that bias. We disagree. The majority of the statements to which Haynes refers have been taken out of context. When read in the context of a relevant discussion of the racial composition of the department, the comments in question, although perhaps insensitive, do not suggest that the court was biased against Haynes. Thus, we decline to reassign the case to a different judge on remand.

9 Pennzoil. This argument lacks merit. The district court did not

grant summary judgment until July 3, 1997, more than six months

after the December hearing in which Haynes requested additional

discovery. Haynes points to no specific material that the

district court prevented him from discovering or that he was

lacking when the district court entered the judgment.5 Moreover,

the fact that the district court directed Pennzoil to provide

certain documents to Haynes does not indicate that the court

“conducted its own discovery and sought to prevent [Haynes] from

obtaining discovery.”

Lastly, Haynes contends that the district court failed to

address his claim of retaliatory discharge.6 In order to

establish a prima facie case of retaliation in violation of Title

VII, the plaintiff must establish three elements: (1) “the

plaintiff must have engaged in protected participation or

opposition;” (2) “the employer must have imposed upon the

plaintiff some adverse employment action;” and (3) “the employer

must have taken the adverse employment action because the

plaintiff engaged in protected activity (i.e., the employer must

5 Indeed, Haynes does not dispute Pennzoil’s contention that, shortly after the December hearing, Pennzoil responded to the discovery requests that were outstanding and that it responded to his subsequent discovery request on April 18, 1997. 6 In its Opinion on Judgment, the district court addressed Haynes’s termination, but did not mention the retaliation issue, instead focusing only on the reduction-in- force.

10 have had a retaliatory motive).” 2 BARBARA LINDEMANN & PAUL GROSSMAN,

EMPLOYMENT DISCRIMINATION LAW 672 (3d ed. 1996) (footnotes omitted);

see also Shirley v. Chrysler First, Inc.,

(5th

Cir. 1992).

Haynes filed a discrimination complaint with the EEOC (a

protected participation), and Pennzoil fired him (an adverse

employment action) after he filed the complaint (a temporal

causal connection to the protected activity that permits an

inference that Pennzoil had a discriminatory motive). Thus,

Haynes established a prima facie case of retaliation, and the

burden was on Pennzoil to produce evidence that it had a

nonretaliatory reason for terminating him. LINDEMANN & GROSSMAN,

supra, at 675. As Pennzoil’s evidence of nonretaliatory reasons

for Haynes’s termination (i.e., the reduction-in-force and his

low ranking among accountants) was not authenticated and was

therefore inadmissible, it has failed to rebut Haynes’s prima

facie case of retaliation.7 On remand, the district court is

instructed to give due consideration to Haynes’s claim of

retaliatory discharge.

IV. CONCLUSION

For the foregoing reasons, we REVERSE the judgment of the

7 Pennzoil contends that Haynes has waived his retaliation claim by failing to raise it at either of the conferences. We disagree. The retaliation claim is one aspect of the termination claim, which was clearly raised and preserved at the conferences.

11 district court, and we REMAND the case for further proceedings

consistent with this opinion on the issues of (1) Haynes’s

termination (including his retaliatory discharge claim) and (2)

Pennzoil’s failure to consider Haynes for an attorney position.

Costs shall be borne by Pennzoil.

12