                                                 United States Court of Appeals
                                                          Fifth Circuit
                 UNITED STATES COURT OF APPEALS        F I L E D
                          FIFTH CIRCUIT
                                                       January 30, 2007

                                                   Charles R. Fulbruge III
                                                           Clerk
                           No. 06-20429
                         Summary Calendar


                        DONALD R SHEPHERD,

                                      Plaintiff - Appellant,

                              versus

     GULF COAST COMMUNITY SERVICES; CHUBB GROUP OF INSURANCE
                            COMPANIES,

                                      Defendants - Appellees.

_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                          (4:05-CV-4330)
_________________________________________________________________

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges

PER CURIAM:*

     Donald R. Shepherd challenges an adverse summary judgment. He

does so only on procedural grounds.

     Shepherd, a black male, was hired by the Gulf Coast Community

Services Association (Gulf Coast) in March 1998.     Gulf Coast is a

non-profit organization which provides community service programs

to low-income and disadvantaged families in Harris County, Texas.



     *
       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this opinion should not be published and is not precedent except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.
Soon after he was hired, Shepherd was promoted to Finance Director

and served in this capacity throughout his tenure at Gulf Coast.

Because     of     Gulf      Coast’s       non-profit        status,     Shepherd’s

responsibilities included ensuring compliance with various federal

regulations.

     In December 2003, Dr. Jonita Solomon, a black female, became

the Executive Director of Gulf Coast.                     In March 2004, Solomon

terminated Shepherd.

     Pursuant      to   Gulf     Coast’s       internal    grievance     procedures,

Shepherd appealed his termination, contending that, because a

majority of his salary came through a Head Start grant, only Gulf

Coast’s   Head     Start   Policy      Council      (Policy     Council)    had   the

authority    to    approve       his   termination.          The   Policy   Council

“disapprove[d]” Solomon’s termination recommendation. Gulf Coast’s

Board of Directors, however, affirmed Solomon’s decision.                    In June

2004, Shepherd’s was placed on paid administrative leave while a

neutral arbitrator was engaged to resolve the dispute.                        On 19

January 2005, Shepherd’s termination was approved by the Policy

Council and Gulf Coast’s Board of Directors; Shepherd was notified

on 31 January.

     Shepherd      filed     a    complaint       with    the   Equal    Employment

Opportunity Commission (EEOC) on 5 April 2005, claiming he was

terminated because of:           his “refus[al] to violate federal laws,

regulations,      and   polices     and    procedures”;      and   his   race.     In


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September 2005, the EEOC dismissed his claim and provided Shepherd

a “right to sue” letter.

     Shepherd filed this action claiming, inter alia:          termination

on account of race and exposure to a hostile work environment, in

violation of 42 U.S.C. § 2000e-2(a); retaliatory discharge, in

violation of the “whistleblower” protection provision of the False

Claims Act, 31 U.S.C. § 3730(h), for refusing to approve fraudulent

transactions in violation of federal law; and, under state law,

intentional infliction of emotional distress.

     In April 2006, the district court held a pre-trial conference.

The court’s order setting the conference noted the court could rule

on motions “pending or made at the conference”.         In addition, the

court’s internal procedures, referenced in the order and available

online, stated:    “At every pretrial conference, counsel must be

prepared to address the facts and law, all pending and anticipated

motions,   jurisdictional     and    procedural     matters,    narrowing

substantive issues, and stipulations.            The court will dismiss

claims and defenses with no realistic, articulable factual or legal

basis”.

     At the pretrial conference, the court questioned Shepherd’s

counsel extensively with regard to each claim.        Shepherd’s counsel

failed to properly articulate the basis of any of them, at one

point even telling the court Shepherd “never alleged race”.             The

district   court   then   advised   Shepherd’s    counsel   that   he   was


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considering taking Gulf Coast’s oral summary-judgment motion and

asked whether he had any objections.          (Gulf Coast had not moved for

summary judgment, however.)          Shepherd’s counsel said he did not.

The court then sua sponte granted summary judgment for Gulf Coast.

Again, Shepherd’s counsel did not object.          (In addition, the court

subsequently granted attorney’s fees against Shepherd and his

counsel, who is also counsel on appeal.)

      Shepherd    contests     only    the    summary-judgment   procedures

followed by the court.       Shepherd first claims that, under Federal

Rule of Civil Procedure 56(c), a summary-judgment motion may be

initiated only by a party.           As this court has noted previously,

however, “it is well-settled that a district court may grant

summary judgment sua sponte, so long as the losing party has ten

days notice to come forward with all of its evidence in opposition

to summary judgment”.        Love v. Nat’l Med. Enters., 230 F.3d 765,

770 (5th Cir. 2000) (internal citations and quotations omitted).

      Shepherd next contends that, even if the sua sponte motion was

proper, the district court erred by not giving the requisite ten-

day notice.      The failure to do so is generally reviewed for

harmless error.     Ross v. Univ. of Tex. at San Antonio, 139 F.3d

521, 527 (5th Cir. 1998).          Error may be harmless where either the

“nonmovant has no additional evidence or if all of the nonmovant’s

additional evidence is reviewed by the appellate court and none of

the   evidence    presents     a    genuine   issue   of   material   fact”.

                                        4
Leatherman     v.    Tarrant     County    Narcotics   Intelligence      and

Coordination Unit, 28 F.3d 1388, 1398 (5th Cir. 1990) (internal

quotations and citations omitted).         But, because Shepherd did not

object   to   this   lack   of   notice   or   challenge   the   “procedural

propriety of the summary judgment ruling” and does so now for the

first time on appeal, we review only for plain error.             Love, 230

F.3d at 771.    (Arguably, because Shepherd’s counsel stated he had

no objections, any claimed error was invited.)

     We find none.     Shepherd does not state how he was prejudiced

by the lack of notice or what evidence he would have produced to

create a material fact issue.        Cf. Exxon Corp. v. St. Paul Fire &

Marine Ins. Co., 129 F.3d 781, 787 (5th Cir. 1997) (“The fact that

St. Paul did not object to the district court’s [sua sponte summary

judgment grant] or request a new trial or rehearing ... indicates

that St. Paul had no further evidence to present or argument to

make regarding any material dispute of fact”).

     Shepherd does claim that, given the opportunity for discovery

he would have uncovered more evidence in support of his claims.

“Rule 56 does not require that any discovery take place before

summary judgment can be granted; if a party cannot adequately

defend such a motion Rule 56(f) is his remedy.”              Washington v.

Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990) (internal

citation omitted).     Shepherd was given the opportunity to present

this contention to the district court but he neglected to do so.

                                      5
Even now, he does not articulate what evidence in support of his

claim would be found with additional discovery.         See id.   (Rule 56

“may not be invoked by the mere assertion that discovery is

incomplete; the opposing party must demonstrate how the additional

time will enable him to rebut the movant's allegations of no

genuine   issue   of   fact”)   (internal   citations    and   quotations

omitted).

                                                               AFFIRMED




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