     Case: 12-20472       Document: 00512187277         Page: 1     Date Filed: 03/26/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          March 26, 2013

                                     No. 12-20472                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



CLAIR M. BRANCH,

                                                  Plaintiff-Appellant
v.

CEMEX, INCORPORATED; RINKER MATERIALS CORPORATION, Agent
of PolyPipe, Incorporated,

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CV-1953


Before WIENER, ELROD, and GRAVES, Circuit Judges.
WIENER, Circuit Judge:*
       Plaintiff-Appellant Clair M. Branch appeals from the district court’s grant
of summary judgment in favor of Defendants-Appellees Cemex, Incorporated;
Rinker Materials Corporation, Agent of Polypipe, Incorporated, (“Appellees”),
dismissing Branch’s employment discrimination action with prejudice. Like both
the EEOC investigator and the district court before us, we conclude that Branch


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-20472      Document: 00512187277        Page: 2    Date Filed: 03/26/2013



                                     No. 12-20472

– who was in his seventies when his employment was terminated and,
thereafter, when his independent-contractor consulting agreement expired on
its own terms (and his duties were assumed by a mid level manager in his
sixties) – has not only failed to demonstrate the existence of a genuine issue of
material fact sufficient to avoid summary judgment, but has substantially
misstated the operable facts of this case. Even worse, Branch’s counsel on
appeal wrote, signed, and filed a brief with this court in which she
misrepresents numerous facts of the case and of the proceedings in the district
court, to a point approaching sanctionability. In affirming the district court’s
judgment dismissing Branch’s action for cogent reasons patiently, objectively,
and extensively set forth in that court’s thirty-five page Memorandum and
Opinion, the facts of which are totally supported by the record on appeal and the
legal basis of which is unassailable, we caution counsel against filing such
pleadings in the future, lest she incur sanctions for such unprofessional and
unacceptable submissions. Although we appreciate and encourage vigorous
representation by counsel, we will not tolerate representation that is “zealous”
to the point of false or misleading statements.1
AFFIRMED.




      1
         We remind counsel that “zealous” is derived from “Zealots,” the sect that, when
besieged by the Roman Legions at Masada, took the extreme action of slaying their own
families and then committing suicide rather than surrendering or fighting a losing battle.

                                            2
