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

                                                                            FILED
                                                                           April 30, 2008

                                     No. 07-11089                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


TUYET LONGORIA

                                                  Plaintiff-Appellant
v.

MICHAEL CHERTOFF, SECRETARY, DEPARTMENT OF HOMELAND
SECURITY; U.S. INVESTIGATIONS SERVICES, Professional Services
Division Inc

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:06-CV-604


Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Tuyet Longoria primarily contests the summary judgment awarded
against her claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e, et seq.
       Longoria filed this action following her employment termination, claiming
it was based on her race, color, and national origin, and in retaliation for her


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-11089

previous EEO discrimination complaint.         Defendants moved for summary
judgment under Federal Rule of Civil Procedure 56, asserting: the reason for
Longoria’s termination was because all employees in her office were laid off; and
she was terminated before her sole remaining co-worker because Longoria had
a disciplinary charge in her record, while the other did not. Longoria moved to
compel discovery, and for a continuance of summary-judgment proceedings
under Rule 56(f).       She maintained that “full comparative performance
information for her peers”, requested in her motion to compel, could create a
genuine issue of material fact on whether discrimination and retaliation were
the true reasons Longoria was fired. The district court granted the summary-
judgment motion, ruling Longoria failed to establish a material fact issue.
         A summary judgment is reviewed de novo, applying the same standard as
the district court. E.g., Wheeler v. BL Dev. Corp., 415 F.3d 399, 401 (5th Cir.
2005). Such judgment is appropriate if there is no genuine issue of material fact
and the movant is entitled to a judgment as a matter of law. FED. R. CIV. P.
56(c).    “We resolve doubts in favor of the nonmoving party and make all
reasonable inferences in favor of that party.” Dean v. City of Shreveport, 438
F.3d 448, 454 (5th Cir. 2006). No genuine issue of material fact exists if the
summary-judgment evidence is such that no reasonable juror could find in favor
of the nonmovant. E.g., Jenkins v. Methodist Hosps. of Dallas, Inc., 478 F.3d
255, 260 (5th Cir.), cert. denied, 128 S. Ct. 181 (2007). Essentially for the
reasons stated by the district court, summary judgment was proper.
         As an initial matter, Longoria contends the district court abused its
discretion in failing to grant her motions to compel discovery and for a Rule 56(f)
continuance. See Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 161 (5th


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Cir. 2006) (reviewing Rule 56(f) ruling for abuse of discretion); Moore v. Willis
Indep. Sch. Dist., 233 F.3d 871, 876 (5th Cir. 2000) (stating discovery rulings are
reviewed for abuse of discretion). To obtain a Rule 56(f) continuance, Longoria
was required to specifically explain “both why [she] is currently unable to
present evidence creating a genuine issue of fact and how a continuance would
enable [her] to present such evidence”. Baker v. Am. Airlines, Inc., 430 F.3d 750,
756 (5th Cir. 2005) (citation and internal quotation marks omitted). Longoria
did not meet her burden of demonstrating how evidence of her co-workers’
performance could create a genuine issue of material fact on the reasons for her
termination. Accordingly, the district court did not abuse its discretion in failing
to grant her motions.
      Longoria maintains summary judgment was not proper because evidence
of her “previously-sterling performance” creates a genuine issue of material fact
on whether the true reasons for her termination were discrimination and
retaliation. See, e.g., Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir.
2004) (explaining burden on plaintiff in McDonnell Douglas framework); see also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 147 (2000)
(holding jury can infer discrimination from plaintiffs’ showing defendant’s
proffered reason for the adverse employment action is pretextual). Longoria
does not, however, dispute: the Department of Homeland Security informed
United States Investigations Services that layoffs were necessary (and layoffs
of all the office’s employees occurred); or that she had a disciplinary charge in
her record, while the remaining employee did not. The district court, assuming
arguendo Longoria could establish a prima facie case of discrimination or
retaliation, correctly concluded she failed to establish her performance – even if


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                                  No. 07-11089

inconsistent with the disciplinary charge – raises a genuine issue of material fact
on whether Defendants’ proffered legitimate, non-discriminatory reasons for her
termination were false. See Grimes v. Tex. Dep’t of Mental Health & Mental
Retardation, 102 F.3d 137 (5th Cir. 1996) (affirming summary judgment for
employer).
      AFFIRMED.




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