IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-20628

Summary Calendar

TYRONE HAMILTON, Plaintiff-Appellant,

versus

TEXAS DEPARTMENT OF TRANSPORTATION, Defendant-Appellee.

Appeal from the United States District Court For the Southern District of Texas

(H-99-CV-1907) March 19, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Appellant Tyrone Hamilton brought this action against Appellee

Texas Department of Transportation (TDOT), alleging racial

discrimination in violation of Title VII of the Civil Rights Act of

1964. The district court granted summary judgment on both of

Hamilton’s claims, and he appeals.

In a case alleging intentional discrimination, the plaintiff

has the burden of proving by the preponderance of the evidence a

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. prima facie case of discrimination.1 A prima facie case is

established by a showing that the plaintiff is a member of a

protected group, that he was qualified for this position, that he

was subjected to an adverse employment action, and that he was

replaced by someone outside the protected class.2

Hamilton alleges that TDOT discriminated against him on the

basis of his race by failing to promote him to the position of

District Traffic Section Manager in 1997 and instead promoting Carl

T. Reilly, a white male. It is undisputed that the qualifications

for that position included a minimum of nine years of experience in

traffic studies and analysis or a related area, which could include

years of college or graduate-level work in a related field. In

order to have the requisite nine years of experience in traffic

studies and analysis, Hamilton must count his college years

studying engineering and a year of work experience that he does not

specify or corroborate in his affidavit. The district court

correctly held that Hamilton has failed to produce summary judgment

evidence creating a genuine issue of disputed fact as to whether he

had the minimum qualifications for the position he sought.

Even if Hamilton could make a prima facie showing of

discrimination based on the 1997 failure to promote, TDOT had

nondiscriminatory reasons for selecting Reilly in 1997. As evidence

1 Texas Dept. of Community Affairs v. Burdine,

(1981). 2 See Ward v. Bechtel Corp.,

(5th Cir. 1997). of pretext, Hamilton claims that TDOT failed to follow its own

regulations by promoting Reilly without posting the position for

competitive applications. TDOT does not dispute this claim, however

it provides undisputed evidence that once it was aware of the

error, TDOT stripped Reilly of his promotion and posted the job

opening competitively, filling the position in 1999 with a Latino

male, a decision that Hamilton does not challenge.

Hamilton has not provided evidence by which a rational jury

could infer that TDOT discriminated against him by promoting

Reilly. Hamilton received yearly recommendations of promotions and

pay raises from the same individual who allegedly discriminated

against him on the basis of race. He also does not dispute that

Reilly was qualified, and has not provided sufficient evidence that

he was qualified for the promotion. The district court properly

granted TDOT’s motion for summary judgment. AFFIRMED.