Basilene Henson v. Timothy Geithner ( 2013 )

Case: 13-10097 Document: 00512480876 Page: 1 Date Filed: 12/23/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 23, 2013
No. 13-10097
Summary Calendar Lyle W. Cayce
Clerk
BASILENE L. HENSON,
Plaintiff-Appellant
v.
TIMOTHY F. GEITHNER, Secretary of the Treasury,
Defendant-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC Nos. 3:11-CV-1892 & 3:12-CV-673
Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Basilene L. Henson moves for leave to appeal in forma pauperis (IFP) and
for appointment of counsel. The district court granted summary judgment
dismissing her claims of racial discrimination and retaliation. The court also
denied her IFP motion and certified that her appeal was not taken in good faith.
By moving to proceed IFP, Henson challenges the district court’s
certification that her appeal is not taken in good faith. See Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997); FED. R. APP. P. 24(a)(3)(A). We ask only “whether
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 13-10097 Document: 00512480876 Page: 2 Date Filed: 12/23/2013
No. 13-10097
the appeal involves legal points arguable on their merits (and therefore not
frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal
quotation marks and citation omitted). Further, we will rule on the merits of
this appeal because the merits “are so intertwined with the certification decision
as to constitute the same issue.” Id.
We review de novo the grant of summary judgment and apply the same
standards as the district court. Hernandez v. Yellow Transp., Inc., 670 F.3d 644,
650 (5th Cir.), cert. denied, 133 S. Ct. 136 (2012). Henson has offered only
“conclusory allegations, speculation, and unsubstantiated assertions [that] are
inadequate” to defeat summary judgment. Id. at 660 (internal quotation marks
and citation omitted). Even if she were assumed, despite the record, to have
stated prima facie claims of discrimination, harassment, or retaliation, she failed
to offer any summary judgment evidence to rebut the Government’s evidence
that she was monitored, cautioned, disciplined, suspended, and fired because her
performance was unsatisfactory. Cf. id. at 658-59 (describing the parties’
burdens in a discrimination case).
Henson has identified “no genuine dispute as to any material fact” to
defeat summary judgment, and she thus fails to show that her appeal involves
any nonfrivolous issue. See FED. R. CIV. P. 56(a); Howard, 707 F.2d at 220.
Because “the appeal is frivolous and entirely without merit,” the IFP motion is
DENIED, and the appeal is DISMISSED. 5TH CIR. RULE 42.2; see Baugh, 117
F.3d at 202. Henson’s motion for appointment of counsel is DENIED.
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