     Case: 13-20343      Document: 00512650966         Page: 1    Date Filed: 06/03/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-20343
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             June 3, 2014
JACQUELINE MARIE PATTERSON,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellant
v.

HOUSTON INDEPENDENT SCHOOL DISTRICT; MARK MIRANDA,
Compliance Manager, HISD, Individually and as agent for Aramark;
CHANDRA BAILEY, Food Services Student Eligibility and Accountability
Manager, HISD, Individually and as an Agent for Aramark and the HISD,
also known as Chandra C. Robertson,

                                                 Defendants-Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CV-1984


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Jacqueline Marie Patterson (“Patterson”) worked for
Defendant-Appellee Houston Independent School District (“HISD”) in the
Human Resources Department as a Food Service Training Supervisor. After



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-20343
HISD terminated Patterson’s employment, she filed suit asserting sixteen
claims against sixteen defendants. Over the course of the litigation most of the
claims and defendants have been dismissed. The district court then granted
summary judgment for Appellees—HISD and its employees Mark Miranda
and Chandra Bailey—on Patterson’s remaining claims: that HISD terminated
and failed to promote her on the basis of her age, in violation of the Fourteenth
Amendment; that HISD terminated and failed to promote her on the basis of
her disability, in violation of the Fourteenth Amendment; that HISD failed to
promote her on the basis of her race and gender, in violation of the Fourteenth
Amendment and 42 U.S.C. § 1981; and that HISD terminated her on the basis
of her race and gender, in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000, et seq., 42 U.S. § 1981, and the Fourteenth Amendment.
Patterson timely appealed.
      Patterson raises only three issues on appeal. First, Patterson argues that
the district court abused its discretion in denying her leave to amend her
complaint to “provide for definite statements of facts, clarify which causes of
action applies [sic] to which defendants, eliminate causes of action against a
number of defendants in their individual capacities, and correct a misnomer in
the captioning and naming of a party, among other changes.” “Leave to amend
should be freely granted when justice requires.” Fin. Acquisition Partners LP
v. Blackwell, 440 F.3d 278, 291 (5th Cir. 2006) (citing Fed. R. Civ. P. 15(a)).
However, “leave to amend is by no means automatic.” Jones v. Robinson
Property Grp., L.P., 427 F.3d 987, 994 (5th Cir. 2005) (internal quotation marks
and citation omitted). District courts have discretion to manage their dockets,
Blackwell, 440 F.3d at 291, and “[d]ecisions concerning motions to amend are
entrusted to the sound discretion of the district court.” Jones, 427 F.3d at 994
(internal quotation marks and citation omitted). The district court may
consider multiple factors, “including undue delay, bad faith or dilatory motive
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                                  No. 13-20343
on the part of the movant, repeated failures to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, and futility of the amendment.” Id.
      The district court did not abuse its discretion in denying Patterson leave
to amend her complaint for a third time. See Blackwell, 440 F.3d at 291-92.
Patterson did not articulate with specificity any basis for allowing her to
amend her complaint again, and the court explained to Patterson that her only
stated reasons for seeking leave to amend (to remove defendants that already
had been dismissed from the case and to add evidence produced during
discovery) were unnecessary. See id. (finding no abuse of discretion where
plaintiff had three opportunities to amend and did not provide the requisite
specificity for leave to file fourth); Goldstein v. MCI WorldCom, 340 F.3d 238,
254-55 (5th Cir. 2003) (finding no abuse of discretion where plaintiff had one
opportunity to amend, could not correct deficiencies in complaint, and could
not show how another amendment would correct deficiencies); ABC Arbitrage
Plaintiffs Grp. v. Tchuruk, 291 F.3d 336, 362 (5th Cir. 2002) (finding no abuse
of discretion where plaintiffs had two prior opportunities to amend and provide
more details to support their allegations).
      Second, Patterson argues that the district court abused its discretion in
striking her summary-judgment evidence under Fed. R. Civ. P. Rule 37(c)
because the final discovery deadline had not yet passed and there was no trial
date set. Rule 37(c) provides: “If a party fails to provide information or identify
a witness as required by Rule 26(a) or (e), the party is not allowed to use that
information or witness to supply evidence on a motion, at a hearing, or at a
trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ.
P. 37(c)(1). We review for abuse of discretion a district court’s decision to
exclude evidence pursuant to Rule 37(c). CQ, Inc. v. TXU Min. Co., L.P., 565
F.3d 268, 277 (5th Cir. 2009). In evaluating this, we look to: “(1) the importance
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of the evidence; (2) the prejudice to the opposing party of including the
evidence; (3) the possibility of curing such prejudice by granting a continuance;
and (4) the explanation for the party's failure to disclose.” Texas A&M Research
Found. v. Magna Transp., Inc., 338 F.3d 394, 402 (5th Cir. 2003).
      The district court did not abuse its discretion in striking Patterson’s
summary-judgment evidence, particularly an email from another HISD
employee allegedly documenting comments made by an HISD supervisor who
previously was dismissed as a defendant in this case on the grounds that there
were no relevant factual allegations against him. See CQ, Inc., 565 F.3d at 280.
Throughout years of litigation, including in Patterson’s charge to the EEOC,
her original complaint and two amended complaints, her responses to motions
to dismiss, her deposition, and her responses to interrogatories and requests
for production, Patterson never mentioned that she had such an email or that
she had had a conversation with the other employee about its contents. She
produced this evidence only in her response to HISD’s motion for summary
judgment and did not proffer any justification for her failure to disclose it or
explanation of its significance. See Sobrino-Barrera v. Anderson Shipping Co.,
Ltd., 495 F. App’x 430, 433 (5th Cir. 2012) (unpublished) (finding no abuse of
discretion in exclusion of affidavit that contained new opinions not contained
in original expert report); CQ, Inc., 565 F.3d at 280 (finding no abuse of
discretion in exclusion of evidence where, even though evidence was important,
plaintiff did not offer any justification for its failure to disclose, and litigation
was at an advanced stage and therefore new evidence would not have been
harmless); Terrance v. Pointe Coupee Parish Police Jury, 177 F. App’x 457, 459
(5th Cir. 2006) (unpublished) (finding no abuse of discretion in exclusion of
testimony where, even though disclosure occurred several months prior to
trial, plaintiffs failed to provide a reason for the late disclosure or identify
importance of testimony).
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       Third, Patterson argues that the district court erred in granting
summary judgment for Appellees because Patterson’s allegation that HISD
withdrew, without her permission or knowledge, the twenty applications for
promotions that she filed while employed there creates a genuine issue of
material fact regarding her discrimination claims. 1 We review a district court’s
grant of summary judgment de novo. Milton v. Tex. Dep’t of Criminal Justice,
707 F.3d 570, 572 (5th Cir. 2013).
       The district court did not err in granting summary judgment for
Appellees. Although Patterson cites Title VII case law in her brief, the district
court ruled that Patterson could not assert her failure-to-promote claims under
Title VII because she had failed to exhaust them and because some were time
barred, and Patterson does not appeal that ruling. Therefore, the district
court’s summary-judgment ruling was based on Patterson’s failure-to-promote
claims under the Fourteenth Amendment and §§ 1983 and 1981. In any event,
Patterson offered no evidence that the alleged withdrawal of her applications
was in any way related to her race or that the people who were hired for those
positions were clearly less qualified than she was. See Coleman v. Hous. Indep.
Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997) (“In order to state a claim of racial
discrimination under the Equal Protection Clause and § 1983, a plaintiff must
demonstrate that the governmental official was motivated by intentional
discrimination on the basis of race.”); Byers v. Dall. Morning News, Inc., 209
F.3d 419, 427 (5th Cir. 2000) (explaining that plaintiff’s subjective belief that
he was discriminated against because of his race is insufficient to create fact
issue); Manning v. Chevron Chem. Co., 332 F.3d 874, 882 (5th Cir. 2003)
(explaining that to prove that asserted legitimate reason not to promote was


       1 To the extent that Patterson argues that the district court abused its discretion in
striking summary-judgment evidence allegedly related to these applications, we reject that
argument for the same reasons stated above.
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                                 No. 13-20343
pretext for discrimination plaintiff must show that he was “clearly better
qualified” for the position). Indeed, Patterson conceded that she did not know
who was hired for any of the positions but one and that she did not know who
made those hiring decisions.
      Finally, we note that even pro se litigants must brief arguments to avoid
waiving them. The arguments that Patterson raises for the first time in her
reply brief are waived. See Hannah v. United States, 523 F.3d 597, 600 n.1 (5th
Cir. 2008) (citing Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993)).
      We AFFIRM the district court’s judgment, DENY Appellees’ opposed
motion for leave to file a sur-reply brief, and DENY AS MOOT Appellant’s
motion to strike the opposed motion for leave to file a sur-reply brief.




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