     Case: 16-20573      Document: 00513977725         Page: 1    Date Filed: 05/03/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit
                                    No. 16-20573                             FILED
                                  Summary Calendar                        May 3, 2017
                                                                        Lyle W. Cayce
                                                                             Clerk
LARRY ALLEN,

              Plaintiff - Appellant

v.

HOUSTON INDEPENDENT SCHOOL DISTRICT,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:14-CV-1717


Before STEWART, Chief Judge, and JOLLY and JONES, Circuit Judges.
PER CURIAM:*
       This matter involves a lawsuit filed by Plaintiff Larry Allen against his
former employer, Defendant Houston Independent School District (HISD),
alleging violations of the Age Discrimination in Employment Act of 1967
(ADEA), Title VII of the Civil Rights Act of 1964, and the Texas Commission
on Human Rights Act (TCHRA). Allen appeals a final judgment entered by the



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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 District Court for the Southern District of Texas, denying Allen
leave to amend his complaint to assert additional claims and granting
summary judgment in favor of HISD on his hostile work environment and
retaliation claims. For the reasons that follow, we AFFIRM.
                                       I. Background
      Larry Allen is an African American man over the age of fifty. He began
working in Senior Manager Support 1 in HISD’s Transportation Department in
November of 2010, under a “Non-Certified Administrator Performance
Contract.” On August 12, 2012, his supervisor, Nathan Graf, allegedly sent an
email to a number of Allen’s co-workers that incorrectly averred that Allen had
failed to complete a “high-priority” task.
      Following that incident, Allen alleges that Graf began reassigning his
duties and responsibilities to younger HISD employees and harassing him by:
(1) allegedly distorting his face on an iPad and sharing that distorted photo
with others in the office, against his wishes; (2) remarking to another co-worker
that Allen was slow in getting around; and (3) making a comment about Allen’s
graying hair. On September 28 2012, Allen met with Graf’s supervisor, Leo
Bobadilla, to discuss his concerns—Allen contends that Bobadilla took no
action to restrain Graf’s behavior, which allegedly continued.
      Next, on October 2, 2012, Graf issued Allen a “written reprimand,” which
included allegations regarding a bus stop assignment. According to Allen, he
sent both Graf and Bobadilla a letter to request that Graf cease harassing him
and creating a hostile work environment. Allen then claims to have met with
Graf and a human resources representative, Gary Estes, to discuss these
events. During this meeting, Graf allegedly said that he “knew how to



      1    Allen’s precise job title is not consistently stated in the record and is therefore
unclear.

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discipline” Allen, but that he “did not know how to discipline” a white co-
worker, Mark Swackhamer, HISD Senior Manager of Vehicle Maintenance.
Allen took this comment to signify that Swackhamer had received preferential
treatment.
      Allen then alleges that his work duties “continued to be removed and
reassigned” over the next four months, and complains that on December 21,
2012, Graf promoted two of Allen’s subordinates without Allen’s knowledge.
Allen then lodged a complaint with the “HISD Equal Opportunity Office,”
alleging age discrimination, race discrimination, and a hostile work
environment. According to Allen, he soon learned from a co-worker that his
position was being “eliminated,” and that his employment contract “would not
be renewed.” Graf reportedly decided to combine the positions of “Senior
Management Support” and “Senior Manager of Operations” around this time,
to “increase departmental efficiency.” He chose Chester Glaude, a forty-six
year-old African American male, for the new position, and he recommended
that Allen’s employment contract not be renewed. Allen attended an HISD
“conference for the record” on July 27, 2013, where he was officially informed
that his position had been eliminated and was offered the option of resigning
with severance pay in lieu of termination. Allen rejected that option, and HISD
terminated his employment a short time later.
      Allen then filed a discrimination charge with the Equal Employment
Opportunity Commission (EEOC), wherein Allen claimed that HISD had
discriminated against him based on his age and race and retaliated against
him for complaining about that discrimination. Allen filed this action on June
19, 2014, after receiving notice of his right to sue from the EEOC. In his
Amended Complaint, Allen made claims for race discrimination under Title
VII, age discrimination under the ADEA and the TCHRA, hostile work


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environment under all three statutes, and retaliation under Title VII and the
TCHRA.
      Defendant moved for summary judgment on Allen’s discrimination
claims, but not on the hostile work environment or retaliation claims. The
district court granted summary judgment on Allen’s discrimination claims, and
entered final judgment on February 11, 2016, mistakenly dismissing the case
as to all claims. Allen filed a motion for reconsideration on June 9, 2016, on the
grounds that the magistrate judge’s recommended order that the district court
ultimately adopted did not address his remaining claims. The district court
granted Allen’s motion for reconsideration on June 9, 2016, and, in the same
order, determined that HISD’s reply to that motion would constitute a second
motion for summary judgment as to the hostile work environment and
retaliation claims. The district court required Allen to respond no later than
July 7, 2016.
      On June 16, 2016 Allen filed a motion for leave to amend his complaint
and attached the second amended complaint. The chief purpose of the second
amended complaint appears to have been the addition of claims under 42
U.S.C. §§ 1981 and 1983—for hostile work environment and retaliation. HISD
filed a response to this motion, arguing that leave should not be granted
because: (1) claims under these sections require a showing that the challenged
acts were undertaken pursuant to a government custom, policy, or practice,
and Allen’s choice to proffer these claims after depositions were taken and
discovery had closed—despite having “ample time” prior—makes it difficult for
HISD to explore that requirement via fact witnesses; (2) the factual basis for
Allen’s hostile work environment claim under § 1981 represented a “rehash” of
his previously dismissed ADEA claim; (3) the same evidentiary framework
applied to Allen’s Title VII claims for employment discrimination also governs


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§ 1981 claims, and because the Title VII claim based on the same predicate
facts was dismissed, the amendment to add the § 1981 claim was futile.
       The district court held a hearing on both the motion for leave to amend
and for summary judgment on July 29, 2016, ruling from the bench on both
motions. First, the district court denied leave to amend on the basis of three
disfavored facts: (1) the length of time (exemplified here by the fact that there
had already been an amendment in August 2014, and the new motion did not
come until June 2016); (2) discovery had long closed; and (3) the motion came
only after a second motion for summary judgment to dispose of all the claims
already pleaded. The district court also noted that leave to amend was
unnecessary, because the elements of the proposed claims were before the court
in the claims already pleaded. 2 Second, the district court granted summary
judgment to HISD on the remaining hostile work environment and retaliation
claims contained in the First Amended Complaint.
       The district court concluded that there was not sufficient evidence to
meet the standard applicable to hostile work environment claims under any
statute. In particular, it ruled that the totality of the circumstances revealed
only isolated, “occasional utterances that were viewed as offensive” and were
“not severe in any fashion,” and that there was no evidence raising any fact
issue as to interference with Allen’s work.
       As to retaliation, the district court held that (1) Allen had made out a
prima facie case based on temporal proximity between the protected activity
and “the alleged transferring of responsibilities that led up to the




       2The district court also noted that to the extent that the elements of the new claims
were not already before the court, they would still be precluded for the three reasons already
mentioned.

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termination,” 3 and that (2) HISD had presented sufficient evidence of
“legitimate non-retaliatory reasons” for failing to renew Allen’s contract—
specifically, that there was no further need for his position, given the
consolidation of that position with another to improve departmental efficiency.
      The burden then shifted back to Allen to show evidence establishing a
genuine issue as to pretext—whether HISD would have taken the action but
for the protected conduct. The district court found Allen’s evidence insufficient
on this point, insofar as Allen could not: (1) present evidence that HISD
departed from the standard reorganization procedure in failing to renew
Allen’s contract, or that such a standard procedure existed at all; (2) present
evidence that the individual with whom Allen was replaced, Glaude—who was
only somewhat younger and was also African American—was so significantly
less qualified as to support an inference of pretext. Accordingly, the district
court granted summary judgment to HISD. Allen appeals the district court’s
denial of leave to amend and its grant of summary judgment on his retaliation
claims.
                              II. Standard of Review
      This court reviews denial of a motion to amend for abuse of discretion.
Cambridge Toxicology Grp., Inc. v. Exnicios, 495 F.3d 169, 177 (5th Cir. 2007).
In the context of a motion seeking leave to amend, the court’s discretion is
limited insofar as Federal Rule of Civil Procedure 15(a) evinces a bias in favor
of leave to amend. Martin’s Herend Imports, Inc. v. Diamond & Gem Trading
U.S.A. Co., 195 F.3d 765, 770 (5th Cir. 1999). Indeed, the district court lacks
discretion to deny such a motion in the absence of a “‘substantial reason,’ such



      3  In particular, the evidence the district court pointed to included (1) Allen’s
September 2012 complaint; (2) his March 23 EEO complaint; and (3) the reduction of job
responsibilities over the following four months, culminating in termination.

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as undue delay, bad faith, dilatory motive, or undue prejudice to the opposing
party.” Id. (quoting Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597 (5th
Cir. 1981)).
      This court reviews a district court’s grant of summary judgment de novo
under the standard applied by the district court. Sanders-Burns v. City of
Plano, 594 F.3d 366, 380 (5th Cir. 2010) (citing Riverwood Int’l Corp. v. Emp’rs
Ins. Of Wausau, 420 F.3d 378, 382 (5th Cir. 2005)). “The moving party is
entitled to judgment as a matter of law when the pleadings, answers to
interrogatories, admissions and affidavits on file indicate no genuine issue as
to any material fact.” Byers v. Dall. Morning News, Inc., 209 F.3d 419, 424 (5th
Cir. 2000).
                                III. Discussion
                                    A.
      Allen first challenges the district court’s ruling denying him leave to
amend his complaint. He contends that none of the grounds on which the
district court denied the motion can justify the denial. Allen argues that there
was no undue delay, since his decision to seek leave to amend “was a result of
the Court’s summary judgment dismissing [Allen’s] racial discrimination
claims and incorrectly dismissing his retaliation claim,” and the leave he
sought was to “expand his remaining claims’ legal theories” following summary
judgment. He argues that the closure of discovery cannot be a reason to deny
leave; since Title VII and § 1981 claims are governed by the same evidentiary
standard, the fact that he pleaded Title VII claims should have given notice of
possible § 1981 claims. He points out that the motion to amend post-dated
HISD’s second motion for summary judgment only because the district court
chose to consider HISD’s reply to the motion for reconsideration as a motion
for summary judgment. Lastly, he objects that, although the elements of a Title


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VII and § 1981 claim are concededly the same, the claims are legally distinct
and should not be treated as though they were equivalent. See e.g., Johnson v.
Ry. Express Agency, Inc., 421 U.S. 454, 460 (1975) (noting that “the remedies
under Title VII and under § 1981, although related, and although directed to
most of the same ends, are separate, distinct, and independent”).
      We hold that the district court did not abuse its discretion in denying
Allen leave to amend his complaint. The district court properly considered the
combination of Allen’s delay in filing and the fact that discovery had closed as
factors weighing against granting leave to amend. For delay to form a basis for
denial of leave, that delay must be “undue, i.e. it must prejudice the nonmoving
party or impose unwarranted burdens on the court.” Mayeaux v. La. Health
Serv. & Indem. Co., 376 F.3d 420, 427 (5th Cir. 2004). The prejudice in this
case is derived from the fact that addition of discrimination claims under §
1981 and § 1983 imports a new element into the proceedings; namely, that a
state or state actor violated these sections pursuant to a “custom or policy.”
Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 736 (1989). Had Allen moved for
leave to amend before or during discovery, rather than after its closure, HISD
would probably have explored issues related to this requirement by deposing
witnesses. That the late timing of the motion makes such exploration difficult
is prejudicial, and if the only way the court could alleviate that prejudice is by
reopening discovery, then that delay also places an unwarranted burden on the
court—especially when the court stood on the verge of resolving the
proceedings altogether. In sum, the district court explicitly provided a
substantial reason for denial of leave to amend and did not abuse its discretion
in doing so. See Martin’s Herend Imps., 195 F.3d at 770.




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                                                  B.
       Allen next challenges the district court’s grant of summary judgment in
favor of HISD on his retaliation claims under Title VII and the TCHRA. In
particular, Allen argues that a dispute of material fact exists as to pretext
because: (1) there is a temporal relationship between the protected activity and
the ultimate termination; (2) HISD did not offer evidence of an increase of
efficiency after Allen’s termination; (3) a relevant comparator exists in the
experience of Aaron Hobbs, whose position was also terminated, allegedly
pursuant to a “reorganization”; (4) that Glaude was comparatively
inexperienced as concerned the managerial position he assumed in place of
Allen. 4
       “The substantive law governing Title VII and TCHRA retaliation claims
is identical.” Gorman v. Verizon Wireless Tex., L.L.C., 753 F.3d 165, 170 (5th
Cir. 2014). Both statutes require a plaintiff to make out a prima facie case
showing that: (1) he engaged in a protected activity; (2) some adverse
employment action occurred; and (3) a causal link exists between the protected
activity and the adverse employment action. See id. Where a prima facie case
is established, and where the “retaliation claim . . . is premised on a pretextual
rationale for dismissal,” Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396,
400 (5th Cir. 2013), the claim is evaluated under a burden shifting framework:
“(1) first, the employee must demonstrate a prima facie case of retaliation; (2)
the burden then shifts to the employer, who must state a legitimate non-
retaliatory reason for the employment action; and (3) if that burden is satisfied,



       4 Allen raises a number of arguments for the first time in his reply brief, including that HISD
lacked a legitimate business reason for separation and that, contrary to the district court’s
determination, Allen did make out a prima facie claim as to hostile work environment. As these
arguments were not raised in Allen’s opening brief, they are waived. See United States v. Jimenez, 509
F.3d 682, 693 n.10 (5th Cir. 2007) (“Issues not raised in an appellant’s initial brief . . . are deemed
waived.”).

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the burden then ultimately falls to the employee to establish that the
employer’s stated reason is actually a pretext for unlawful retaliation.” Id.; see
also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973).
Importantly, once the defendant articulates a legitimate reason for the
allegedly problematic employment action, the inference of retaliation created
by the prima facie case disappears, and the plaintiff bears the burden of
proving that the articulated reason is pretextual by a preponderance of the
evidence. See Lawrence v. U.T. Med. Branch, 163 F.3d 309, 312 (5th Cir. 1999).
       Allen identifies only two additional pieces of evidence in the record to
support the existence of a genuine issue as to pretext. 5 Both provide too weak
and speculative a basis to infer that Allen’s termination was carried out for a
retaliatory purpose. See McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th
Cir. 2007) (noting that the plaintiff bears burden of proving that an employer’s
proffered reason is pretextual). First, Allen’s attempt to identify a relevant
comparator by which to establish a “standard reorganization procedure” from
which his termination deviated consists entirely of Allen’s depositional
reference to Aaron Hobbs’s experience. This perspective lacks independent
confirmation from Hobbs, and in any case, there is nothing in the record to
support that the one reorganization in the past to which Allen refers
established a “standard” for the future, such that a purported deviation from
that standard could be reliably assessed.




       5  As recounted above, Allen argues that the temporal connection between the
termination and protected activity should weigh in his favor on this issue. But because the
district court already based its finding of a prima facie case on that ground, Allen must point
to additional facts to carry his burden at the pretext stage. See Lawrence, 163 F.3d at 312.
Allen’s additional argument that HISD’s failure to identify efficiency gains from the
reorganization it cites as the reason for terminating Allen must also fail. Such an argument
represents an impermissible attempt to shift the burden on the issue of pretext. See id.

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      Second, although there exists something of a disparity in educational
attainment between Allen and Glaude, Allen provides no significant evidence
that Glaude’s qualifications are so out of sync with the requirements of the new
position he was slated to assume as to raise an inference of pretext—especially
given evidence of Glaude’s extensive experience with HISD and the record
evidence as to his knowledge of the school district’s mode of operation. In sum,
the district court did not err in granting summary judgment to HISD on the
issue of pretext. See Sanders-Burns, 594 F.3d at 380.
                                IV. Conclusion
      For the reasons stated, we AFFIRM the ruling of the district court as to
all issues.




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