                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS           May 25, 2004
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                             No. 03-41238
                           Summary Calendar


     THOMAS F SNODDY

                       Plaintiff - Appellant

     v.

     CITY OF NACOGDOCHES

                       Defendant - Appellee


          Appeal from the United States District Court
                for the Eastern District of Texas
                          No. 9:00-CV-12


Before KING, Chief Judge, and DAVIS and BARKSDALE, Circuit
Judges.

PER CURIAM:*

     Plaintiff-Appellant Thomas F. Snoddy, a former police

officer for Defendant-Appellee the City of Nacogdoches, brought a

Title VII lawsuit against the City alleging that he was denied a

promotion, demoted, harassed, and constructively discharged both

on account of his race and in retaliation for his past complaints

of discrimination.     Snoddy appeals from the district court’s




     *
        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that this opinion should not be published and is not precedent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.
                           No. 03-41238
                                -2-

grant of the City’s motion for summary judgment on each of these

claims.   For the following reasons, we AFFIRM.

                           I. BACKGROUND

     Snoddy, an African-American, was employed by the City as a

police officer from 1993 until he resigned in April 1999.     In

early 1994, according to Snoddy, he began reporting to his

superiors various incidents of racial discrimination within the

police department.   Snoddy alleges that his complaints did

nothing to end the discrimination and instead caused a backlash

as his supervisors within the department subjected him to

“trumped-up” disciplinary actions and unfair performance

evaluations, denied him a promotion, and removed him from the

department’s Field Officer Training (“FTO”) program.   Snoddy

further claims that he felt compelled to resign as a result of

this series of discriminatory incidents.

     In January 2000, Snoddy brought suit against the City

alleging employment discrimination and retaliation, in violation

of Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. § 2000e et seq., based on his non-promotion, demotion,

harassment, and constructive discharge claims.1   In May 2003,

Snoddy noticed a deposition under Rule 30(b)(6), requiring the

City to provide a witness with information about the police


     1
          According to the district court, Snoddy also brought
claims under 42 U.S.C. § 1983, alleging that the City had
retaliated against him in violation of his First Amendment
rights. But because Snoddy does not reassert these claims on
appeal, we will not address them.
                             No. 03-41238
                                  -3-

department’s promotion practices during Snoddy’s tenure as a

police officer.    The City filed a motion to quash this deposition

and subsequently filed a motion for summary judgment.   The

district court granted both motions and entered a final order

dismissing Snoddy’s claims with prejudice.   Snoddy now appeals

the district court’s resolution of both motions.

                            II. DISCUSSION

A.   Quashing the Deposition

     Snoddy first asserts that the district court erred in

granting the City’s motion to quash his Rule 30(b)(6) deposition.

The district court found that the deposition was “unreasonably

cumulative and duplicative” since it believed that Snoddy had

already obtained the information he was seeking by deposing both

Elizabeth Sanchez and Police Chief William Lujan.2   In addition,

the district court found that Snoddy had more than ample time, in

the years that the case was pending, to develop the facts of his

case.    It therefore quashed the deposition under Federal Rule of

Civil Procedure 26(b)(2).

     “We review a district court’s decision denying discovery,

including quashing deposition subpoenas, for abuse of

discretion.”    Theriot v. Parish of Jefferson, 185 F.3d 477, 491



     2
          The district court also observed that these witnesses
were provided by the City under Rule 30(b)(6). In fact, both
before the district court and this court the City claims that,
had it been required to cooperate with this third deposition, it
would have considered Chief Lujan the appropriate witness to
testify regarding the police department’s promotion policies.
                           No. 03-41238
                                -4-

(5th Cir. 1999).   Snoddy argues that the deposition should not

have been quashed because he did not obtain the information he

was seeking––the identity of the official responsible for the

promotion decision and the educational and experiential

qualifications of the white candidate who was selected––in either

of the previous depositions.    Snoddy also claims that the

district court should have granted his request for a continuance,

under Rule 56(f), which would have allowed him to conduct the

deposition before the court ruled on the City’s pending summary-

judgment motion.   We disagree.   The Federal Rules expressly state

that a district court may limit a party’s discovery if that party

“has had ample opportunity . . . to obtain the information

sought.” FED. R. CIV. P. 26(b)(2)(ii).    Furthermore, a party who

“has not diligently pursued discovery” is not entitled to a

continuance under Rule 56(f).     See, e.g., Beattie v. Madison

County Sch. Dist., 254 F.3d 595, 606 (5th Cir. 2001).     Thus, the

district court did not abuse its discretion in quashing the

deposition and ruling on the City’s motion for summary judgment

without granting a continuance.     Cf. Walls v. General Motors,

Inc., 906 F.2d 143, 147 (5th Cir. 1990) (“[The plaintiff] had

ample time and sufficient opportunities to conduct the discovery

procedures which he complains were denied him.    He cannot now lay

his failure to conduct discovery at the feet of the district

court.”).

B.   Summary Judgment
                            No. 03-41238
                                 -5-
     Snoddy also attacks the district court’s grant of summary

judgment to the City on his discrimination and retaliation

claims.   We review a district court’s grant of summary judgment

de novo, applying the same standard as the district court.

Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 190 (5th Cir.

2001).    Summary judgment is proper when the record, viewed in the

light most favorable to the non-moving party, demonstrates no

genuine issue of material fact and where the moving party is

entitled to judgment as a matter of law.    See FED. R. CIV. P.

56(c); see also Blow v. City of San Antonio, 236 F.3d 293, 296

(5th Cir. 2001).    Moreover, “[t]he moving party is entitled to a

judgment as a matter of law [if] the nonmoving party has failed

to make a sufficient showing on an essential element of her case

with respect to which she has the burden of proof.”    Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation

marks omitted).

1. Non-Promotion

     Before the district court, Snoddy alleged that the City did

not promote him to a detective position in the fall of

1997––choosing instead to promote Greg Johnson, a white

male––both on account of Snoddy’s race and in retaliation for his

previous complaints of racial prejudice within the police

department.   To prove intentional discrimination under the now-

familiar McDonnell Douglas burden-shifting framework, Snoddy was

first required to establish a prima facie case by a preponderance
                            No. 03-41238
                                 -6-
of the evidence.   See McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802 (1973).   It is undisputed that Snoddy met this burden:

(1) he is African-American, (2) he was qualified for the

position, (3) he was not selected, and (4) the position was

filled by a white applicant.   Cf. Blow, 236 F.3d at 296

(discussing the elements of a prima facie case).    Snoddy’s prima

facie case created a presumption of discrimination, shifting to

the City the burden of producing a legitimate, nondiscriminatory

reason for not promoting Snoddy.   Id. at 296-97.   The district

court found that the City fulfilled its burden by showing that it

selected Greg Johnson because he outscored Snoddy on all three of

the relevant criteria––the performance review, the interview, and

the number of years of service in the department.

     Thus, to overcome the City’s motion for summary judgment,

Snoddy bore the burden of providing sufficient evidence from

which a reasonable jury could conclude that the City’s reason was

pretextual.   Price v. Fed. Express Corp., 283 F.3d 715, 720, 723

(5th Cir. 2002).   Snoddy could have satisfied this burden by

demonstrating that he was “clearly better qualified” for the

detective position than the employee selected by the City.      See

id. at 722.   Nevertheless, we have cautioned that, “unless

disparities in curricula vitae are so apparent as virtually to

jump off the page and slap us in the face,” we will not second-

guess an employer’s promotion decisions.   Odom v. Frank, 3 F.3d

839, 847 (5th Cir. 1993).   Snoddy believes that his two college
                           No. 03-41238
                                -7-
degrees in criminal justice, compared to Johnson’s high school

education, demonstrate his superior qualifications.    There is no

evidence that a college degree was required for the detective

position, however.   Thus, in light of Johnson’s higher scores in

each of the selection criteria, Snoddy has not demonstrated that

he was clearly more qualified for the detective position.      See

Manning v. Chevron Chem. Co., 332 F.3d 874, 882 (5th Cir. 2003).

Snoddy also attempts to prove pretext by pointing out that most

of the City’s selection criterial were inherently subjective.

But this fact alone does not create an inference that the City’s

proffered reasons for choosing Johnson were pretextual.      See id.

Accordingly, we affirm the district court’s grant of summary

judgment on Snoddy’s discriminatory non-promotion claim.

     Snoddy also alleged that the City chose not to promote him

in retaliation for voicing his complaints of racial

discrimination within the department.     To establish a prima facie

case of retaliation under Title VII, Snoddy was required to

demonstrate: “(1) that [he] engaged in activity protected by

Title VII, (2) that an adverse employment action occurred, and

(3) that a causal link existed between the protected activity and

the adverse employment action.”   Fierros, 274 F.3d at 191

(internal quotation marks omitted).   The district court held that

Snoddy did not satisfy the third prong of this test because he

proffered no evidence––other than his own subjective

beliefs––that retaliation played a role in the City’s promotion
                            No. 03-41238
                                 -8-
decision.    Critically, the court noted that Snoddy did not allege

or prove that the officials responsible for choosing among the

candidates for the detective position were aware of his previous

complaints of race discrimination.   Notwithstanding Snoddy’s

other arguments to the contrary, we affirm the district court’s

grant of summary judgment on this basis.    Cf. Manning, 332 F.3d

at 883-84 (affirming the grant of summary judgment to an employer

on a retaliation claim because the employee did not prove that

the individuals who denied his transfer request knew he had

engaged in a protected activity).

2.   Demotion

     In his complaint, Snoddy also alleged that the City removed

his duties as an FTO in the spring of 1998 both because of his

race and in retaliation for his past complaints of race

discrimination.   The district court held that Snoddy had not

satisfied a prima facie case of discrimination or of retaliation

under Title VII because withdrawing Snoddy from the FTO program

was neither a demotion nor any other type of adverse employment

action.   Specifically, the district court noted that while Snoddy

was no longer required to perform additional training duties as a

result of the department’s decision, his primary job title, pay,

hours, and benefits remained the same.

     Snoddy does not attack the legal basis of these conclusions

on appeal.   Instead, he contends that the district court erred by

not noticing the City’s concession, in its motion for summary
                           No. 03-41238
                                -9-
judgment, that removing Snoddy from the FTO program was the

equivalent of demoting him.   Our review of the City’s motion,

however, did not reveal any such concession.3   We therefore

uphold the district court’s grant of summary judgment on Snoddy’s

demotion claims.

3.   Harassment

     Snoddy presents two arguments against the district court’s

grant of the City’s motion for summary judgment on his claim of

racial harassment.   First, Snoddy points out “that a district

court may not grant summary judgment sua sponte on grounds not

requested by the moving party.”   John Deere Co. v. Am. Nat’l

Bank, Stafford, 809 F.2d 1190, 1192 (5th Cir. 1987).   While this

is a correct statement of law, the City explicitly challenged the

validity of Snoddy’s harassment claim in its motion for summary

judgment.4   Thus, John Deere does not apply to the case at bar.

     Second, Snoddy asserts that the district court erred in

     3
          Snoddy relies on the following sentence in the City’s
motion: “The City asserts that the removal of [Snoddy] from his
FTO duties was not a promotion/demotion decision, but is
confined, for summary judgment purposes, to [Snoddy’s] pleadings
in which he asserts that this was a demotion.” In our view, the
latter half of this statement merely explains that the City chose
to address Snoddy’s removal from the FTO program as a demotion
claim––not as a second non-promotion claim. This interpretation
comports with the first half of the sentence, which more clearly
states that the City does not agree that Snoddy was demoted.
     4
          In fact, the City’s motion discusses the legal
standards for proving harassment, defends the department’s
treatment of Snoddy, and then concludes: “Since any alleged
harassment conjured up from the evidence . . . cannot meet the
stringent requirements of a hostile working environment claim,
this claim should fail as a matter of law and summary judgment is
appropriate” (emphasis added).
                            No. 03-41238
                                -10-
holding that there was insufficient evidence for a reasonable

jury to conclude that he was racially harassed by his supervisors

in the police department.    To prevail on his claim of racial

harassment, Snoddy was required to prove that: “(1) [he] belongs

to a protected group; (2) [he] was subjected to unwelcome

harassment; (3) the harassment complained of was based on race;

[and] (4) the harassment complained of affected a term[,]

condition or privilege of employment.”     Celestine v. Petroleos de

Venezuella SA, 266 F.3d 343, 353 (5th Cir. 2001).     A court will

not find that the harassment “affected a term[,] condition or

privilege of employment” unless it was “‘sufficiently severe or

pervasive so as to alter the conditions of employment and create

an abusive working environment.’”     Id. (quoting Watts v. Kroger

Co., 170 F.3d 505, 509 (5th Cir.1999)).    According to the

district court, Snoddy did not meet either the third or the

fourth prong of the Celestine test.

     In challenging this conclusion, Snoddy asserts that the

district court overlooked the record evidence that supported his

claim.   For example, he points to his sworn statement that:

“Negative comments were included in my performance evaluations as

a result of my race and my reporting racial prejudice within the

Police Department.”    The district court was not required to

credit this conclusory allegation of discrimination, however.

See Auguster v. Vermillion Parish Sch. Bd., 249 F.3d 400, 403 &

n.3 (5th Cir. 2001).
                           No. 03-41238
                               -11-
     Snoddy also highlights the fact that the City was unable to

identify a single white employee who received a reprimand, as

Snoddy did, for arriving two minutes late to roll call.    This

argument rests on a fundamental misunderstanding of the burden of

proof.   While Snoddy could have created an inference that the

reprimand was racially motivated by showing that similarly

situated white employees were treated differently, see, e.g.,

Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir.

1995), the City was not required to demonstrate that a white

employee committed an identical violation, and received an

identical reprimand, in its motion for summary judgment.

     Furthermore, Snoddy’s contention that the district court

ignored evidence, which tended to demonstrate that he was

unjustly disciplined by the City for conducting off-duty work in

a criminal trial without department approval, is similarly

unavailing.   In its motion for summary judgment, the City

proffered evidence that Snoddy had requested, and had been

denied, permission to conduct this type of off-duty work.    In

addition, the City proffered evidence of its investigation into

this incident, which demonstrated that the department based its

disciplinary action on testimony from witnesses who attended the

trial and overheard Snoddy bragging about his work on the trial

and the amount of money he was being paid.   In response, Snoddy

simply argues that, had the City conducted a more thorough

investigation, it would have discovered that he attended the
                           No. 03-41238
                               -12-
trial as an observer, not as an employee of the defense team.

Yet, Snoddy has proffered neither circumstantial nor direct

evidence that the City’s disciplinary decision was influenced by

his race.   Thus, the district court correctly held that Snoddy’s

disciplinary sanction was not an act of racial harassment.     Cf.

id. at 1090-92 (holding that an employee could not demonstrate

race discrimination merely by showing that his employer’s reason

for suspending him was “wrong,” because the employer’s decision

was made in good faith and the employee did not also show that

similarly situated white employees were treated differently).

     Snoddy’s final complaint about the district court’s

resolution of his harassment claim centers on the City’s decision

to remove his training duties.   Snoddy argues that the City’s

reliance on multiple, inconsistent reasons for withdrawing his

participation in the FTO program is itself probative of pretext.

Yet, even if we assume that the evidence in the record supports

an inference that the officials who removed Snoddy’s duties were

motivated by his race, Snoddy has not demonstrated that this one

action was so “sufficiently severe or pervasive” that he was

subject to an “abusive working environment.”   Thus, the district

court correctly concluded that the City was entitled to judgment

as a matter of law on Snoddy’s racial harassment claim.

4.   Constructive Discharge

     Finally, Snoddy contends that he presented sufficient

evidence to survive the City’s motion for summary judgment on his
                          No. 03-41238
                              -13-
constructive-discharge claim.   We agree with the district court,

however, that because no reasonable jury could find that Snoddy

was subjected to a hostile work environment based on the evidence

in the summary-judgment record, a reasonable jury also could not

find that he was constructively discharged.   See Brown v. Kinney

Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001) (“Constructive

discharge requires a greater degree of harassment than that

required by a hostile environment claim.”).

                         III. CONCLUSION

     Accordingly, we AFFIRM the judgment of the district court.
