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

                                                                            FILED
                                                                        September 6, 2013

                                     No. 12-10983                          Lyle W. Cayce
                                   Summary Calendar                             Clerk




RONALD L. GILES,

                                                  Plaintiff - Appellant
v.

CITY OF DALLAS,

                                                  Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:10-CV-786


Before DAVIS, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
       In this case involving allegations of racial discrimination, racial
harassment, and retaliation in violation of Title VII, Plaintiff-Appellant Ronald
L. Giles appeals the district court’s order denying his motion for leave to amend
his complaint and granting summary judgment in favor of Defendant-Appellee,
the City of Dallas. Giles argues that the district court abused its discretion

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-10983

when it denied his motion for leave to amend his complaint to replace his time-
barred Title VII claim with a timely § 1983 claim. He further argues that the
district court erred in concluding, in the alternative, that no genuine issue of fact
existed as to the merits of his § 1983 claim. We agree with the district court and
find no evidence of discriminatory motive that raises a genuine issue of material
fact under either the original Title VII claim or under the amended 42 U.S.C.
§ 1983 claim. Accordingly, we AFFIRM the district court’s order on the merits
without reaching Giles’ threshold arguments asserting good cause for leave to
amend pursuant to Federal Rule of Civil Procedure 16(b).


                                         I.
                                         A.
      Plaintiff-Appellant Ronald L. Giles (“Giles”) was hired by the City of
Dallas in 1982 as a police officer assigned to the Dallas Police Department
(“DPD”). Giles, who is African-American, has been employed by the DPD for
approximately 29 years, and is currently a Sergeant in the DPD’s
Communications Section. He has worked in Communications for approximately
seven years. Giles’ role in the division involves supervising other employees. R.
148-52.
      Along with several African-American coworkers, Giles filed a complaint
with the City of Dallas’ Human Resources department in February 2008. The
complaint alleged pervasive employment discrimination, disparate treatment,
and retaliation in the DPD’s Communications Section.              Specifically, the
complaint alleged that: “Black supervisors are not allowed to take proper
corrective action against white subordinates”; “Black supervisors are not allowed
to exercise proper authority as it relates to white subordinates”; divisional
discrimination against African-American employees in the hiring, training,
discipline, and assignments of employees, and unfair representation in positions

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of status relative to white employees. Giles claims that the City of Dallas’
Internal Affairs Division did not provide any relief at all to the complaints
alleged in the claims. Giles further alleges that the City of Dallas retaliated
against him for filing the claim and seeking to assert his rights.
        In April 2009, DPD began an investigation into Giles’ off-duty work
practices following an internal allegation that Giles had violated Department
policy. Dallas police officers are given the privilege of engaging in “off-duty”
employment, such as providing private security services, subject to certain
restrictions and administrative requirements set forth in DPD General Order
421.00. The DPD policy governing off-duty work seeks to prevent the practice
from interfering with on-duty officer performance, and it provides that violators
may be subject to disciplinary action. The DPD investigated complaints that
Giles failed to submit off-duty work cards for the period from January to March
2009.    Although Giles disputes that he failed to turn in his cards, he
acknowledges that his work schedule resulted in violations of the DPD policy
governing off-duty work on multiple occasions during the relevant period.
        On July 8, 2009, DPD Lieutenant Madison (“Madison”) submitted a
memorandum to Assistant Chief Cynthia Villarreal through the chain of
command suggesting that Communications adopt a rule that limits the period
sergeants may work in the division to five years. The stated rationale for the
proposed rule was to improve training opportunities for new sergeants, increase
the exchange of skills throughout the department, and reinvigorate the
“stagnant” division. The memorandum did not reference the race or gender of
the sergeants working in Communications who would be affected by the rule.
Giles alleged in deposition that Madison proposed the policy with the purpose
of transferring African-American supervisors out of the division. However, the
policy was not ultimately implemented. Giles alleged that the policy was not
implemented because it would have negatively affected two Caucasian

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sergeants. Giles alleged that it was common knowledge that this was the reason
the policy was not implemented, but acknowledged that he was not aware of
other evidence to establish the DPD’s motivation for not implementing the
policy.
      On September 10, 2009, Giles was suspended from duty without pay for
three days on the grounds that he violated the DPD’s policy governing off-duty
work on seven occasions between January and March 2009. Giles was also
restricted from working any off-duty jobs for a period of ninety days. Giles
asserts that these actions were without basis and amounted to discrimination
and retaliation. Giles’ suspension was approved by his chain of command, and
like violators have been subject to similar disciplinary penalties.
      On October 16, 2009, Giles and two other sergeants received an email from
one of Giles’ supervisors announcing that he was going to be quizzed about his
job duties based Communications’ division’s “[Standard Operation Procedure].”
Giles alleges that this act amounted to discrimination and retaliation against
him. However, he acknowledges that one of the other two recipients of the email
was a white colleague.
      Giles continues to work in the DPD’s Communications division, but claims
that the investigation into his IAD complaint either did not take place or was
unsatisfactory. He further alleges that pervasive discrimination and retaliation
against him are “ongoing practices” within the division.


                                       B.
      Giles filed an Equal Employment Opportunity Commission (“EEOC”)
charge against the City on November 16, 2009, asserting claims of racial
discrimination, retaliation, and hostile work environment in violation of Title
VII. The EEOC issued Giles a right-to-sue letter on or about January 12, 2010,
which Giles acknowledges having received on January 14, 2010.

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      Giles’ first counsel of record, F. Benjamin Riek, III (“Riek”), filed the
present Title VII claim alleging racial discrimination and retaliation on April 19,
2010, ninety-five days after Giles received his EEOC letter and five days after
the statutory deadline had passed. See 42 U.S.C. § 2000e–5(f)(1). Riek was
permitted to withdraw as counsel from the case on January 7, 2011, pursuant
to an order from the Board of Disciplinary Appeals suspending him from law
practice for six months due to conduct in an unrelated case. After conducting
discovery and depositions, Giles’ second counsel of record also withdrew from the
case due to his wife’s terminal cancer on December 30, 2011.
      The City of Dallas subsequently filed a Motion for Summary Judgment on
January 3, 2012, arguing inter alia, that Giles’ Title VII claims were time-barred
because they were filed five days after the ninety-day statute of limitations. On
May 25, 2012, Giles, with the assistance of his third counsel of record, moved for
leave to amend his original complaint, seeking to replace his Title VII claims
with claims brought pursuant to 42 U.S.C. §§ 1981 and 1983 arising out of the
same facts.
      The district court issued an order denying Giles’ motion for leave to amend
and granting summary judgment for the City of Dallas on the grounds that
Giles’ Title VII claim was time-barred. Because the motion had been filed after
the deadline for adding new parties to the suit, the district court first reviewed
the motion using Rule 16(b), which “‘governs amendment of pleadings after a
scheduling order deadline has expired.’” Crostley v. Lamar Cnty., Texas, 717
F.3d 410, 419 (5th Cir. 2013) (quoting S&W Enters., L.L.C. v. Southtrust Bank
of Ala., NA, 315 F.3d 533, 536 (5th Cir. 2003)); see also Fed. R. Civ. P. 16(b)(4).
The district court rejected Giles’ argument that he had shown good cause
because, inter alia, his first attorney had been suspended from the practice of
law and his second attorney had withdrawn for personal reasons; the court
concluded that Giles had not explained “why his two prior attorneys failed to

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meet the deadline to move for leave to amend his complaint.” Because in the
district court’s estimation Giles had not shown good cause to modify the
scheduling order, it did not apply “‘the more liberal standard of Rule 15(a)’ to the
decision to grant or deny leave.” Crostley, 717 F.3d at 419. In the alternative,
however, the district court concluded that Giles’ § 1983 claim failed on the merits
because the record did not contain evidence that there was discriminatory intent
behind any of his employer’s actions. Giles timely appealed. See Fed. R. Civ. P.
4(a)(1)(A), 6(a)(1).


                                        II.
      Jurisdiction was proper in the district court pursuant to 28 U.S.C. § 1331.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Giles’ untimely filing of his
original Title VII action does not create a jurisdictional bar to suit. See Harris
v. Boyd Tunica, Inc., 628 F.3d 237, 239 (5th Cir. 2010) (holding that the ninety-
day filing requirement is not a jurisdictional prerequisite and is subject to
equitable tolling); see also 42 U.S.C. § 2000e–5(f)(1) (establishing ninety-day
deadline for filing suit following issuance of EEOC right-to-sue letter).


                                        III.
      “We review a summary judgment de novo, applying the same standard as
the district court.” United States ex rel. Jamison v. McKesson Corp., 649 F.3d
322, 326 (5th Cir. 2011). Summary judgment is appropriate when the pleadings,
viewed in the light most favorable to the non-moving party, “show that there is
no genuine issue as to any material fact.” Anderson v. Liberty Lobby Inc., 477
U.S. 242, 247 (1986); see Fed. R. Civ. P. 56(a). A genuine issue of material fact
exists “if the evidence is such that a reasonable jury could return a verdict for
the non-moving party.” Anderson, 477 U.S. at 249. Conclusory “allegations and
denials, speculation, improbable inferences, unsubstantiated assertions, and

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legalistic argumentation do not adequately substitute for specific facts showing
a genuine issue for trial.” TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d
754, 759 (5th Cir. 2002).


                                               IV.
       On appeal, Giles argues that the district court abused its discretion when
it denied his motion for leave to amend his complaint for lack of good cause, see
Fed. R. Civ. P. 16(b)(4), and that the district court erred in finding, in the
alternative, that his § 1983 claim would fail on substantive grounds. With
regard to whether Giles had good cause for seeking leave to amend his
concededly untimely Title VII claim to include a timely § 1983 claim, we note the
troubling circumstance that his first counsel of record, Riek, in another Title VII
case had been accused of misrepresenting his failure to meet an EEOC filing
deadline, and in January 2012 resigned from the practice of law in Texas in lieu
of discipline.1 While we may take judicial notice of this fact, we do not fault the
       1
           When Riek was permitted to resign from the practice of law in Texas, he had two
disciplinary matters pending, one of which alleged that he had misrepresented to a client his
failure to meet an EEOC deadline, an allegation which bears some similarity to what occurred
in Giles’ case. See In re F. Benjamin Riek, III, Tex. Misc. Docket No. 12-9006 (Jan. 24, 2012),
Commission for Lawyer Discipline Resp. to Mot. for Acceptance of Resignation, at 1; see also
In re Moity, 320 F. App’x 244, 249 (5th Cir. 2009) (approving judicial notice of attorney’s
disciplinary records because “[o]ne court may . . . take judicial notice of another court’s judicial
actions”); accord, e.g., Rose v. Utah State Bar, 471 F. App’x 818, 820 (10th Cir. 2012); Bridges
v. Bell, 238 F.3d 410 (4th Cir. 2000).
        While we do not take judicial notice of the disciplinary records for the truth of the
matter asserted therein, we may take notice of the fact that Riek was permitted to resign from
the practice of law in lieu of discipline and that, according to the Texas Commission for
Lawyer Discipline, those allegations against him were pending at that time. See, e.g., Charles
A. Wright & Arthur R. Miller, 21B Fed. Prac. & Proc. § 5106.4 (2d ed. & Supp. 2012); Fed. R.
Evid. 201; compare, e.g., Ferguson v. Extraco Mortg. Co., 264 F. App’x 351, 352 (5th Cir. 2007)
(opining that findings of fact in prior proceedings will generally be subject to dispute under
Rule 201), and Int’l Star Class Yacht Racing Ass’n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d
66, 70-71 (2d Cir. 1998) (“A court may take judicial notice of a document filed in another court
‘not for the truth of the matters asserted in the other litigation, but rather to establish the fact
of such litigation and related filings.’” (citation omitted)), with Gen. Elec. Capital Corp. v.
Lease Resolution Corp., 128 F.3d 1074, 1081 n.6 (7th Cir. 1997) (“To protect against improper
reliance on facts from prior proceedings, some appellate decisions have refused to allow a court

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district court for not doing so when Giles apparently did not bring it to the
court’s attention. However, we need not consider whether Giles set forth
circumstances sufficient to establish good cause for leave to amend under the
circumstances because, for the reasons that follow, we agree with the district
court’s assessment that Giles did not make out a § 1983 case on the merits.
Because we may affirm a grant of summary judgment on any ground supported
by the record, even if it is not the principal ground on which the district court
relied, see, e.g., Janvey v. Democratic Senatorial Campaign Comm., Inc., 712
F.3d 185, 193 (5th Cir. 2013), we reach the merits of Giles’ case and affirm the
district court’s order on substantive grounds.
       In adjudicating Title VII claims of racial discrimination, we apply the
burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). We also apply the same framework in adjudicating claims
brought under 42 U.S.C. §§ 1981 and 1983 alleging racial discrimination in
violation of the Equal Protection Clause. See Lee v. Conecuh Cty. Bd. of Ed., 634
F.2d 959, 961-62 (5th Cir. 1981); see also Mason v. United Air Lines, Inc., 274
F.3d 314, 318 (5th Cir. 2001). A plaintiff “may prove a claim of intentional
discrimination or retaliation either by direct or circumstantial evidence.” McCoy
v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007). To establish a prima
facie case of discrimination using circumstantial evidence under the McDonnell
Douglas framework, a plaintiff must show that he (1) was a member of a
protected group; (2) was qualified for his position; (3) suffered an adverse
employment action; and (4) received less favorable treatment than similarly
situated individuals outside of his protected group. See Wheeler v. BL Dev.


to take judicial notice of any adjudicative fact in a court record for the truth of the matter
asserted. . . . We agree that courts generally cannot take notice of findings of fact from other
proceedings for the truth asserted therein because these findings are disputable and usually
are disputed. However, it is conceivable that a finding of fact may satisfy the indisputability
requirement of Fed. R. Evid. 201(b).” (citations omitted)).

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Corp., 415 F.3d 399, 405 (5th Cir. 2005); see also McDonnell Douglas, 411 U.S.
at 802.
      Likewise, to establish a prima facie case of retaliation, the plaintiff must
establish that: (1) he participated in an activity protected by Title VII or § 1983;
(2) his employer took an adverse employment action against him; and (3) a
causal connection exists between the protected activity and the adverse
employment action. McCoy, 492 F.3d at 556-57. However, the anti-retaliation
provision, “unlike the substantive provision, is not limited to discriminatory
actions that affect the terms and conditions of employment.” Id. at 559-60.
       If the plaintiff makes such a showing, the burden shifts to the employer
to advance a legitimate, nondiscriminatory reason for its behavior. See Mason,
274 F.3d at 318; McDonnell Douglas, 411 U.S. at 802. If the employer provides
this reason, the presumption raised by the prima facie case is rebutted, and the
burden of proof returns to the plaintiff to demonstrate that the employer’s
articulated reason is pretext for the real, discriminatory or retaliatory purpose.
See Mason, 274 F.3d at 318; see also McDonnell Douglas, 411 U.S. at 804-05. To
carry this burden, the plaintiff must prove by a preponderance of the evidence
either that the employer’s proffered explanation is unworthy of credence or that
a discriminatory reason more likely motivated the employer. Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 256 (1981). “The ultimate burden of persuading
the trier of fact that the defendant intentionally discriminated against the
plaintiff remains at all times with the plaintiff.” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 143 (2000) (quoting Burdine, 450 U.S. at 253). To
survive summary judgment, “the employee [must] present sufficient evidence for
a reasonable factfinder to infer discrimination.” Memberu v. Allright Parking
Sys., 93 F. App’x 603, 606 (5th Cir. 2004) (per curiam) (unpublished) (citing
Crawford v. Formosa Plastics Corp., La., 234 F.3d 899, 902 (5th Cir. 2000)).



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      Giles alleges race discrimination, retaliation, and a racially hostile work
environment in violation of 42 U.S.C. §§ 1981 and 1983. These claims of racial
discrimination fail as a matter of law because Giles is unable to show disparate
treatment to establish a prima facie case of discrimination under the McDonnell
Douglas standard. Giles alleges that he suffered discrimination when his
supervisor informed him by email that he would be quizzed on his job duties.
However, in his deposition, Giles also acknowledges that the email was
addressed to other sergeants, including a Caucasian one. There is no evidence
in the record, and Giles does not allege, that the other recipients of the email
were not in fact quizzed on their job duties. The fourth prong of the standard is
thus left unsatisfied because Giles is unable to establish that employees of other
races received more favorable treatment.
      Giles also points to the DPD’s proposed five-year in-and-out rule for
Communications division employees, arguing that it amounted to an act of
discrimination allegedly because it targeted African-American employees like
him. However, this claim fails on the third prong of the standard. Because the
policy was never implemented, it cannot amount to an adverse employment
action. Giles further acknowledges that, even if it had been implemented, the
policy would have applied to African-American and Caucasian employees alike.
Thus, Giles’ claim fails also on the fourth prong, as there is no evidence of
disparate treatment.
      Likewise, Giles alleges that the requirement to mark in and out of the
Communications office on a dry erase board amounted to discrimination against
him. However, this claim also fails on the fourth prong as the record does not
indicate that Giles was treated less favorably than non-African American
employees in the division: all sergeants were required to comply with this policy.
Furthermore, even if Giles were able to establish a prima facie case of
discrimination for this claim, the City has rebutted it by offering legitimate non-

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discriminatory reasons for the policy; namely, to ensure that divisional sergeants
knew where their colleagues were, to avoid leaving a sergeant alone in the radio
room without assistance from his colleagues, and to better coordinate lunch
breaks. As Giles has not demonstrated that these reasons are unworthy of
credence, or that a discriminatory reason more likely motivated the City, this
claim also fails as a matter of law.
      The City is also able to rebut Giles’ claim that the internal affairs
investigations into his off-duty work practices amounted to discrimination and
retaliation. Here, the record does not indicate whether the other individuals
subject to like disciplinary action were also African-American. However, even
if Giles were able to establish a prima facie case of discrimination including
disparate treatment under the standard, he himself provides the City with a
legitimate, non-discriminatory reason for the action in his deposition by
acknowledging that he violated the City’s policy for off-duty work. At his
deposition, upon being shown exhibits detailing the investigation into his
missing off-duty work cards, Giles alleged that the cards were “sabotaged,” but
admitted that his only proof is that he “always” turned them in, and that he had
no reason not to do so. Thus, Giles is unable to prove that the City’s reasons for
suspending him were merely pretextual or unworthy of credence.
      Next, Giles also asserts that he was subject to a three-day suspension from
work and barred from working off-duty jobs for three months, allegedly on the
basis of his race and in retaliation for his IAD complaint. The record, however,
shows that both African-American and Caucasian members of his chain of
command approved his suspension, and that officers previously investigated for
similar infractions were also suspended from work for equally long, or longer,
periods of time. Giles thus fails to show that he was subject to disparate
treatment based on his race, and this claim fails as a matter of law under
McDonnell Douglas.

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      Finally, Giles makes a number of allegations in his complaint that he did
not support with evidence at the summary judgment stage. In his complaint,
Giles claims being “talked to harshly,” having his supervisory decisions
“overturned,” enduring disrespect, being called on his cell phone “numerous
times” for non-business related matters, having his lunch room privileges
denied, being disallowed from supervising Hispanic or Caucasian employees,
being unable to discipline a Caucasian employee, and having his restroom
privileges denied without supervision, amongst others. However, these claims
fail because Giles has not supplied, and the record does not reveal, any specific
evidence or facts related to these events that would create a genuine issue for
trial. They also fail as a matter of law within the framework of McDonnell
Douglas because Giles is unable to point to any evidence in the record that his
race was a motivating factor in these actions beyond his own subjective belief.
See Byers, 209 F.3d at 426.


                                CONCLUSION
      Because Giles failed to produce any evidence that, even in a light most
favorable to him, would suggest that the City of Dallas discriminated or
retaliated against him on the basis of his race, we affirm the district court’s
order granting summary judgment.




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