     Case: 12-30512       Document: 00512145867         Page: 1     Date Filed: 02/18/2013




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

                                                                            FILED
                                                                         February 18, 2013

                                       No. 12-30512                        Lyle W. Cayce
                                                                                Clerk

FERNANDO ITURRALDE,

                                                  Plaintiff-Appellant
v.

THE SHAW GROUP, INCORPORATED,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:05-CV-330


Before KING, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:*
       This case arises from an employment dispute between Plaintiff-Appellant
Fernando Iturralde and his former employer, Defendant-Appellee The Shaw
Group, Inc. (“Shaw”). After he was terminated, Iturralde sued Shaw for: (1)
unlawful termination, hostile work environment and failure to promote based
upon his race in violation of 42 U.S.C. § 1981; (2) unlawful termination and
failure to promote based upon his association with disabled individuals (his wife
and daughter) in violation of the Americans with Disabilities Act (“ADA”), 42

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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U.S.C. § 12101, et seq.; and (3) retaliation in violation of § 1981 and the ADA.
In addition, Iturralde asserted claims under Louisiana state law for: (4)
defamation; (5) conversion; and (6) intentional infliction of emotional distress
(“IIED”). Shaw filed a motion for summary judgment, which the district court
partially granted and partially denied. The presiding judge died, and the case
was reassigned. Shaw then filed a motion for reconsideration of the partial
denial of summary judgment and a motion to dismiss the surviving ADA claim
after the deadline for non-evidentiary motion practice had passed. The district
court modified its scheduling order, and granted both of Shaw’s motions.
       Iturralde timely appealed, raising four issues: (1) whether the district
court properly modified the scheduling order; (2) whether it properly granted
Shaw’s motion for reconsideration; (3) whether dismissal of his ADA claim was
proper; and (4) whether the grant of summary judgment as to the claims
remaining after reassignment—discriminatory termination based on race,
conversion, and IIED—was proper. For the following reasons, we affirm the
district court’s judgment in all respects.
                                     I. DISCUSSION
A.     Scheduling Order
       Shaw filed its motion for reconsideration and its motion to dismiss after
the deadline for non-evidentiary motion practice. To consider the motions, the
district court had to amend its October 20, 2011 Scheduling Order. The district
court cited Federal Rule of Civil Procedure 16(b) for the rule that scheduling
orders “may be modified only for good cause and with the judge’s consent,” where
good cause “varies with the circumstances of each case.” In revising the order,
the district court gave reasons that it found to be “good cause” under Rule 16.1


       1
        The district court offered the following reasons: (1) reconsideration would eliminate
the need for a trial; (2) the press of trial was no longer a factor; (3) Iturralde responded to
Shaw's motions on the merits, so the court could consider both sides; and (4) the court would

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       We may only overturn the district court’s decision to modify the
Scheduling Order pursuant to Rule 16(b) for an abuse of discretion. Spiller v.
Ella Smithers Geriatric Ctr., 919 F.2d 339, 343 (5th Cir. 1990); see also S&W
Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 535-36 (5th Cir.
2003) (reviewing a denial of leave to amend). Because Iturralde failed to brief
any challenge to the district court’s ruling under Rule 16(b), he has not shown
that the district court abused its discretion in modifying the Scheduling Order.
B.     Motion for Reconsideration
       Federal Rule of Civil Procedure 54(b) provides that an order adjudicating
fewer than all the claims among all the parties “may be revised at any time”
before the entry of a final judgment. Under Rule 54, a district court has “the
inherent procedural power to reconsider, rescind, or modify an interlocutory
order for cause seen by it to be sufficient.” See Melancon v. Texaco, Inc., 659 F.2d
551, 553 (5th Cir. Unit A 1981). The district court explained that its practice
generally has been to evaluate motions to reconsider interlocutory orders under
the standards that govern Rule 59(e) motions to alter or amend a final judgment,
but that the Rule 54 standard (i.e., revision at any time) was more appropriate
in this case. Citing various reasons for its decision to apply the Rule 54 standard,
the district court granted Shaw’s motion.2
       We may only overturn the district court’s decision to grant Shaw’s Rule
54(b) motion for reconsideration for abuse of discretion. See, e.g., Zimzores v.
Veterans Admin., 778 F.2d 264, 266-67 (5th Cir. 1985); Bon Air Hotel, Inc. v.


be required to dismiss the ADA claim notwithstanding the untimeliness of the motions if the
court lacked subject matter jurisdiction over that claim.
       2
          The district court cited three reasons for its application of the Rule 54 standard: (1)
it was not reexamining its own order, and trial preparation would take considerable time in
any event; (2) the order was based entirely on the magistrate judge's analysis and thus may
be entitled to less deference; and (3) the summary judgment motion was decided three years
prior to the district court's consideration of Shaw's motion, and recent judicial developments
could provide a disposition more in line with modern caselaw.

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Time, Inc., 426 F.2d 858, 862 (5th Cir. 1970), abrogated on other grounds by
Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994).
      Iturralde misidentifies the nature of the motion for reconsideration—it
was brought under Rule 54(b)—and discusses various irrelevant areas of law
(multidistrict litigation) and doctrines (law of the case) in arguing that the
district court erred. He fails to do what is necessary to challenge the district
court’s grant of Shaw’s Rule 54(b) motion: namely, prove that the district court
abused its discretion. Indeed, Iturralde nowhere alleges that the district court
abused its discretion in granting the motion for reconsideration, let alone
presents a cogent argument to this effect. Accordingly, we find that the district
court did not abuse its discretion in granting Shaw’s motion for reconsideration.
C.    Motion To Dismiss
      Shaw moved to dismiss Iturralde’s ADA claim because Iturralde did not
file a charge with the EEOC and thereby failed to exhaust his administrative
remedies. See EEOC v. Waffle House, Inc., 534 U.S. 279, 285-86 (2002). In
opposition to the motion, Iturralde did not dispute that he failed to exhaust
administrative remedies, or that exhaustion is an ADA requirement. Rather, he
argued that Shaw is estopped from raising the “failure-to-exhaust” argument
because it waited years after the suit was filed to bring this motion.
      The district court noted that there is a conflict in this circuit regarding
whether exhaustion is a prerequisite to suit subject to equitable defenses like
waiver and estoppel, or a requirement implicating subject matter jurisdiction.
See Pacheco v. Mineta, 448 F.3d 783, 788 n.7 (5th Cir. 2006) (collecting cases but
not resolving the split). The district court stated that it did not need to address
this intracircuit conflict because Iturralde did not and moreover could not
advance a valid waiver or estoppel argument. Finding that Iturralde failed to
exhaust his administrative remedies, the district court dismissed his ADA claim.



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On appeal, Iturralde asks us to consider the same estoppel and waiver
arguments that failed in the district court.3
       We review de novo the district court’s grant of a motion to dismiss. Fed.
R. Civ. P. 12(b)(6); In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th
Cir. 2007). To survive a Rule 12(b)(6) motion, the plaintiff must plead enough
facts “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547
(2007)). A claim is facially plausible if the plaintiff pleads facts that allow the
court to “draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 678. We must accept all well-pleaded facts as true
and draw all reasonable inferences in favor of the plaintiff. Lormand v. U.S.
Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir. 2009). We must dismiss the claim
if the factual allegations, assumed to be true, are insufficient to raise a right to
relief above the speculative level. Twombly, 550 U.S. at 555.
       Iturralde cannot advance a valid waiver or estoppel argument, so we do
not address the intracircuit conflict on these issues. A waiver argument would
fail because Shaw preserved its failure-to-exhaust defense in its answer, and
thus properly sought dismissal under Rule 12(b)(6). See Taylor v. United States
Treasury Dep’t, IRS, 127 F.3d 470, 478, n.8 (5th Cir. 1997). Any estoppel
argument would likewise fail because Iturralde did not establish the requisite
elements of estoppel. To invoke equitable estoppel against a private party, a
litigant must show that the party asserting estoppel “did not have knowledge of
the facts.” Mangaroo v. Nelson, 864 F.2d 1202, 1204 (5th Cir. 1989). Iturralde

       3
         Iturralde contends that a claim under Louisiana Employment Discrimination Law
(“LEDL”) has survived the motion to dismiss. He misleadingly redacts parts of a quote from
the magistrate judge’s ruling to suggest that he raised a claim under the LEDL in his
complaint. The full quote shows that the magistrate judge concluded that Iturralde never
alleged an LEDL claim. In any event, this claim would not be viable because the LEDL does
not include a cause of action for associational disability discrimination. Compare 42 U.S.C. §
12112(b)(4) with La. R.S. 23:323(B).

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cannot satisfy this element because he knew of material facts: chiefly, that he
had not exhausted his adiministrative remedies when he filed suit. Because
Shaw was not barred from moving for dismissal based on the passage of time,
and because Iturralde failed to exhaust his administrative remedies, the district
court properly dismissed the ADA claim.
D.    Summary Judgment
      The district court granted summary judgment for Shaw on Iturralde’s §
1981, IIED, and conversion claims. We consider these claims in turn.
      1.     Standard of Review
      We review a grant of summary judgment de novo. Reed v. Neopost USA,
Inc., 701 F.3d 434, 438 (5th Cir. 2012). Summary judgment is proper when there
is no genuine dispute as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a); Read, 701 F.3d at 438. This
panel may “affirm summary judgment on any ground supported by the record,
even if it is different from that relied on by the district court.” Reed, 701 F.3d at
438 (citation and internal quotation marks omitted).
      2.     § 1981
      We review Iturralde’s § 1981 claim pursuant to the modified McDonnell
Douglas approach. Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir.
2004); see Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003); McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Assuming that Shaw made a prima facie
showing of discrimination, we must ask whether Shaw offered a legitimate,
nondiscriminatory reason for the decision to terminate Iturralde; if Shaw has
done so, we must determine whether Iturralde offered substantial evidence that
Shaw’s legitimate, nondiscriminatory reason for the termination decision was
pretextual or motivated by race discrimination. See Rachid, 376 F.3d at 312.
      Shaw offered a legitimate, nondiscriminatory reason: namely, Iturralde
violated Shaw policy by submitting and obtaining reimbursement for personal

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expenses on company expense reports.4 However, Iturralde has not presented
sufficient evidence to create a fact issue such that a factfinder could conclude
either “(1) that [Shaw’s] reason is not true, but is instead a pretext for
discrimination (pretext alternative); or (2) that [Shaw’s] reason, while true, is
only one of the reasons for its conduct, and another motivating factor is the
plaintiff's protected characteristic (mixed-motives alternative).” Id.
      The record does not show evidence of pretext. And based on the evidence
Iturralde presented, a rational factfinder could not conclude that race
discrimination was a factor in Shaw’s firing decision. For one, Iturralde has
failed to establish a meaningful nexus between Tim Barfield—the only Shaw
employee Iturralde alleges to have acted in a racially discriminatory way—and
his termination decision. Iturralde also failed to provide sufficient evidence of
racially discriminatory intent. He has not introduced evidence that Malcolm
Jarrell (the person who made the termination decision) or the auditors who
reported his allegedly fraudulent expense reports had a racially discriminatory
motive. Rather, the record shows that Jarrell’s termination decision was based
on the expense reports that Iturralde filed, and that the auditors acted in
accordance with Shaw policy. Thus, we affirm the grant of summary judgment
as to Iturralde’s § 1981 claim.
      3.     IIED
      To prevail on a claim for IIED under Louisiana law, “a plaintiff must prove
that (1) the conduct was extreme and outrageous; (2) the emotional distress
suffered was severe; and (3) the defendant desired to inflict severe emotional
distress or knew that severe emotional distress would be certain or substantially
certain to result.” White v. Monsanto, 585 So. 2d 1205, 1209 (La. 1991). The


      4
        There is considerable record evidence that Iturralde violated Shaw policies. For
example, Iturralde does not dispute that the personal expense reports at issue were not in
compliance with Shaw policy.

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district court granted summary judgment with respect to Iturralde’s IIED claim
because it determined that neither the alleged racial harassment nor the
circumstances surrounding his termination rose to the requisite level of
outrageousness for a meritorious IIED claim under Louisiana law. We agree.
      Under Louisiana Civil Code Article 2315, plaintiffs must meet a high
burden of proof to prevail on an IIED claim. See White, 585 So. 2d at 1209-10.
Actionable behavior must be “so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.” Nicholas v. Allstate
Ins. Co., 765 So.2d 1017, 1022 (La. 2000); see also Hornsby v. Enter. Transp. Co.,
987 F. Supp. 512, 516 (M.D. La. 1997), quoting White, 585 So. 2d at 1209-10
(mere workplace disputes are not actionable under Article 2315.). Courts “have
consistently limited causes of action for IIED in the workplace to ‘cases which
involve a pattern of deliberate, repeated harassment over a period of time.’”
Nicholas, 765 So. 2d at 1026.
      Iturralde has argued that Barfield’s racial comments, the audit, and his
termination serve as the basis for his IIED claim. First, a termination in itself
is not extreme and outrageous, nor does it become extreme and outrageous
simply because the terminated individual has sick family members. Second,
Article 2315 does not create liability for employment discrimination. Hornsby,
987 F. Supp. at 515. Third, the record evidence does not indicate a pattern of
repeated harassment, and there is virtually no evidence that suggests the audit
was improper, let alone extreme and outrageous. Lastly, Barfield’s comments
about Iturralde’s Cuban heritage did not demonstrate racial animus of an
extreme or atrocious nature. We affirm the district court’s grant of summary
judgment for Shaw with respect to Iturralde’s IIED claim.




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      4.    Conversion
      Although Louisiana courts do not discuss conversion in terms of its
constituent elements, Iturralde’s failure to offer any evidence of damages was
fatal to his claim at the summary judgment stage. See Jarreau v. Quakenbush,
687 F. Supp. 2d 606, 618-19 (M.D. La. 2010) (although plaintiff’s refusal to
return defendants’ trailer constituted conversion, defendants did not offer
sufficient evidence to establish that they suffered any actual damages as a result
of the conversion). Summary judgment principles support Shaw’s position. In
cases involving state tort law claims, we have found that failure to identify
evidence of damages in a summary judgment response is fatal to the claim at
issue. See, e.g., Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003) (grant of
summary judgment on fraud claim affirmed because plaintiff did not identify
any evidence of damages in summary judgment response).
      However, summary judgment is inappropriate if the nonmovant lacks
notice that he must introduce evidence to withstand a motion for summary
judgment. See, e.g., John Deere Co. v. Am. Nat’l Bank, Stafford, 809 F.2d 1190,
1191-92 (5th Cir. 1987) (summary judgment was not appropriate where the
nonmoving party failed to present evidence of damages because the district court
relied on grounds not advanced by the moving party, and the nonmoving party
had no opportunity to respond); c.f. U.S. v. Houston Pipeline Co., 37 F.3d 224,
228 (5th Cir. 1994) (finding summary judgment appropriate where a plaintiff’s
claim was premised on the applicability of a case, the plaintiff knew that it
needed to introduce evidence to bring the claim within the holding of the case,
yet plaintiff introduced no such evidence). Iturralde had sufficient notice to
provide evidence of damages: Shaw raised the damages issue in its reply
memorandum in support of its motion for summary judgment, and Iturralde did
not address this issue in his sur-reply. Accordingly, we find that the district
court properly granted summary judgment as to Iturralde’s conversion claim.

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                        II. CONCLUSION
  For the reasons given, we AFFIRM the district court’s judgment.




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