     Case: 12-50098     Document: 00512046296         Page: 1     Date Filed: 11/07/2012




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

                                                                            FILED
                                                                         November 7, 2012

                                     No. 12-50098                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



CONNY B. HATCH III,

                                                  Plaintiff-Appellant
v.

DEL VALLE INDEPENDENT SCHOOL DISTRICT,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                   1:10-CV-453


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
        The defendant school district terminated the African-American male
plaintiff, Conny B. Hatch III (“Hatch”), from his teaching assistant position in
May 2009. Hatch, proceeding pro se, subsequently brought suit against the
defendant-appellee, alleging various violations of Title VII’s anti-discrimination
and anti-retaliation provisions. The district court granted summary judgment
against Hatch and dismissed all of his claims. We AFFIRM.


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 12-50098

                                        I.
        Appellant Conny Hatch is an African-American male and former employee
of the Del Valle Independent School District (“DVISD”). Between October 2007
and May 2009, Hatch was employed with DVISD as a substitute teacher and
teaching assistant at the Disciplinary Alternative Education Program (“DAEP”).
After completing his college degree in December 2008, Hatch expressed his
interest in becoming a fully-certified teacher with the school district.
        During the 2008-2009 school year, DAEP principal Holly Tarter (“Tarter”)
and DAEP assistant principal Mario Palacios (“Palacios”) began to see that
Hatch was not meeting their professional expectations. According to their
affidavits, Hatch failed to actively monitor the students, failed to properly
supervise students, and despite instructions to the contrary, continued to remain
seated in the classroom and wear sunglasses in the classroom. Principal Tarter
identified each of these shortcomings to Hatch in a February 16, 2009
memorandum. Hatch immediately objected to the memo, claiming that it was
racially and sexually discriminatory. Hatch alleged in his complaint that white
female teaching assistants were permitted to sit in the classroom, and he had
seen other teachers wear sunglasses in the classroom, yet he was being “singled
out.”
        In March 2009, a science teacher position opened up at DAEP. It was
temporarily filled by another long-term substitute, Regan Dowdy (“Dowdy”).
Though Hatch applied for the permanent position, Dowdy was eventually
selected to fill the position permanently.
        Around May 1, 2009, Assistant Principal Palacios received a complaint
about Hatch from another teacher, Nicole Arenas (“Arenas”). Arenas had left her
classroom under Hatch’s supervision while she went on her lunch break. Arenas
returned to the classroom to find that her students had apparently engaged in
a “paint fight” while Hatch sat idly nearby with his sunglasses on. Another

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                                 No. 12-50098

disciplinary memorandum was sent to Hatch, again directing him to better
monitor student discipline issues and not to wear sunglasses in the classroom.
Hatch refused to sign the memorandum.
      After this incident, Principal Tarter determined that she would not offer
Hatch a teaching assistant position at DAEP for the following year. In a meeting
on May 7, 2009, Palacios and Tarter advised Hatch that he was going to be given
the opportunity to resign rather than be terminated. The following day, Hatch
filed a grievance with DVISD. Before Hatch’s grievance was resolved, Arenas
lodged another complaint with Principal Tarter about Hatch. This time, she
complained that Hatch had initiated an unsupervised meeting with a parent,
something which teaching assistants were not permitted to do. After this
incident, Principal Tarter advised DVISD’s human resources department that
Hatch would not be offered a teaching assistant position at DAEP during the
2009-2010 school year.
      Hatch brought suit against DVISD under Title VII of the Civil Rights Act
of 1964, alleging racial discrimination, gender discrimination, and retaliation.
Hatch first argued that by disciplining him for sitting and wearing sunglasses
in the classroom and meeting with parents, and by terminating his employment,
DVISD had discriminated against him based on his race. Second, Hatch argued
that DVISD discriminated against him based on his gender by passing him over
for the permanent science teacher position and by paying him less than his
female counterparts. Third, Hatch argued that DVISD retaliated against him for
his grievance by disciplining him and refusing to renew his employment. Lastly,
in response to DVISD’s summary judgment motion, Hatch asserted that
DVISD’s disciplinary process deprived him of due process.
      In a magistrate opinion and order adopted by the district court, the
magistrate judge granted summary judgment for DVISD, dismissing all of
Hatch’s claims. Specifically, the court found that Hatch failed to present

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summary judgment evidence that the February 2009 memorandum was
motivated by discrimination. The court also found that Hatch failed to offer any
summary judgment evidence that his later termination was based on his race.
The court next found that Hatch failed to state a prima facie claim of gender
discrimination when he was passed over for a permanent teaching job, because
Hatch was not qualified for the science teacher job which he sought. The court
also found that Hatch failed to offer any evidence that he was paid differently
from other workers in his position. The court found further that Hatch failed to
offer any summary judgment evidence that his termination or discipline was
retaliatory in nature. Lastly, the court refused to entertain Hatch’s due process
objection because it was raised for the first time in his response to the
defendant’s summary judgment motion.1
                                              II.
       We review an order granting a motion for summary judgment de novo.
Storebrand Ins. Co. U.K., Ltd. v. Employers Ins. of Wausau, 139 F.3d 1052, 1055
(5th Cir. 1998). Summary judgment is warranted when the pleadings,
depositions, interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact. FED. R. CIV.
P. 56; Celotex v. Catrett, 477 U.S. 317, 322 (1986).
                                             III.
       Title VII makes it “an unlawful employment practice for an employer to
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1) (2006). To state a


       1
         Hatch twice mentions in his brief that his “rights of due process” have been abridged.
Although Hatch has not briefed the issue, we find that the district court did not abuse its
discretion by declining to allow Hatch to amend his complaint to state a due process claim
after DVISD filed its motion for summary judgment. See, e.g., Overseas Inns S.A. P.A. v.
United States, 911 F.2d 1146, 1151 (5th Cir. 1990).

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                                   No. 12-50098

prima facie case of discrimination under Title VII, a plaintiff must establish that
(1) the plaintiff is a member of a protected class, (2) the plaintiff is qualified for
the position, (3) the plaintiff suffered an adverse employment action, and (4) the
plaintiff was treated less favorably than someone outside the class. Septimus v.
University of Houston, 399 F.3d 601, 609 (5th Cir. 2005).
      On appeal, Hatch first argues that the district court erred by granting
DVISD summary judgment because there exists sufficient evidence for a
reasonable trier of fact to conclude that the February 2009 disciplinary
memorandum was motivated by illegal discrimination. Hatch also argues that
there exists sufficient evidence for a reasonable trier of fact to conclude that
DVISD discriminated against him by paying him less than white female
substitute teachers and teaching assistants. In a similar vein, Hatch also argues
that he presented enough evidence from which a trier of fact could conclude that
his termination was motivated by racial discrimination, gender discrimination,
or retaliation.
      Assuming that Hatch has established prima facie cases of retaliation or
discrimination, the burden then shifts to DVISD to offer a legitimate, non-
retaliatory or non-discriminatory reason for the employment action. See
Septimus, 399 F.3d at 608; Turner v. Kansas City Southern Ry. Co., 675 F.3d
887, 892 (5th Cir. 2012). After this, “[t]he burden . . . shifts back to the plaintiff
to prove that the defendant’s proffered reasons were a pretext for
discrimination.” Turner, 675 F.3d at 892.
      We begin with Hatch’s argument that the February 2009 memorandum
was motivated by racial or sexual discrimination. However, DVISD has
established that the memo was drafted in response to Hatch’s failure to properly
supervise his classroom, and his habit of sitting and wearing sunglasses in the
classroom. Because Hatch has presented no evidence to refute this explanation,
DVISD is entitled to summary judgment on this issue.

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       As to Hatch’s discriminatory compensation argument, DVISD has
established that Hatch was paid according to the pay scale that governed all
teaching assistants and substitute teachers. Hatch has presented no evidence
to cast doubt on this explanation, and DVISD is thus entitled to summary
judgment on this issue.
       Turning to Hatch’s discriminatory and retaliatory termination arguments,
DVISD has presented evidence that Hatch was not offered a permanent teaching
position because the job was one for which he was not qualified.2 DVISD has
further presented evidence that Hatch’s employment was not renewed because
of his failure to adequately monitor students and correct his classroom behavior.
Hatch has failed to present any summary judgment evidence other than his
subjective belief that these reasons are pretextual and that his termination was
discriminatory or retaliatory. DVISD is thus entitled to summary judgment on
this issue.3
                                              IV.
       For the reasons stated above, we affirm the district court’s order granting
summary judgment and dismissing all of appellant’s claims.


AFFIRMED



       2
         Specifically, Hatch sought the position of science teacher. To qualify for the position,
an applicant must demonstrate competency in science by completing twenty-four semester
hours, including twelve upper-division hours, in the field of science. Hatch’s transcript does
not reflect the requisite coursework.
       3
         Hatch argues that the district court erred by crediting the affidavits of Principal
Tarter and Assistant Principal Palacios because they “are full of inconsistencies and
misrepresentations.” It is apparent from Hatch’s brief that the inconsistencies which he
alleges center on matters which have no bearing on the ultimate questions of discrimination
or retaliation. Because “[o]nly disputes over facts that might affect the outcome of the suit .
. . will properly preclude the entry of summary judgment,” Hatch’s objections to these
immaterial matters, even if valid, did not preclude the district court from crediting the
affidavits. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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