     Case: 11-10373     Document: 00511636217         Page: 1     Date Filed: 10/18/2011




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

                                                                            FILED
                                                                         October 18, 2011

                                     No. 11-10373                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



RICHARD A. ARRIETA; ROGER JOHNSON,

                                                  Plaintiffs–Appellants
v.

LOCAL 745 OF THE INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, Jointly and Severally; INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, Jointly and Severally,

                                                  Defendants–Appellees



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:08-CV-1722


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        This case involves a claim that Local 745 of the International Brotherhood
of Teamsters (“Local 745”) and the International Brotherhood of Teamsters
(“IBT”), collectively, the Appellees or the “Union,” contributed to the hostile work
environment at Yellow Transportation, where Appellants Richard Arrietta and
Roger Johnson worked. Because we find that Local 745 met its initial burden

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-10373

on summary judgment and the district court did not abuse its discretion in
denying Appellants’ motion to alter or amend the judgment, we AFFIRM the
district court’s grants of summary judgment to Local 745 and IBT, respectively,
and its denial of Appellants’ motion to alter or amend the judgment.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      Arrietta and Johnson were employees of Yellow Transportation in Dallas,
Texas. Both Arrietta and Johnson were members of IBT and were represented
locally by Local 745. Local 745 had been receiving reports of a racially hostile
work environment at Yellow Transportation since as early as 2001. A fellow
employee of Arrietta and Johnson, Fred Brooks, wrote a letter to IBT about
these conditions in September 2004 and requested that the Union investigate.
IBT forwarded that complaint along to Local 745 for follow-up. In response to
Brooks’s letter, Local 745 hired an independent investigator, Ruben Amendariz,
to look into the complaints that Brooks had sent to IBT.
      Amendariz tried to gather further details regarding the conditions about
which Brooks complained, but neither Brooks nor the Appellants cooperated
with Amendariz’s investigation. Brooks finally did respond to some written
questions from Amendariz, but there was little detail or substance to the
answers. At no point did Brooks or the Appellants request the filing of a
grievance or any other legal process. Amendariz concluded his investigation by
sending a report to Local 745 that found Brooks’s claims unsubstantiated in part
due to a lack of cooperation from Brooks and the Appellants. As a result, Local
745 decided to take no further action on Brooks’s letter.
      Appellants, along with other Yellow Transportation employees, filed a
lawsuit against Yellow Transportation for discrimination. Following a verdict
for Johnson in that suit, Appellants and other non-parties to this appeal filed a
lawsuit under § 1981 against the Appellees, claiming a hostile work
environment. The district court granted summary judgment to the Appellees.

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                                   No. 11-10373

Arrietta and Johnson then sought to alter or amend the judgment, but the
district court denied that motion as well. Arrietta and Johnson appealed both
of those decisions.
                        II. STANDARDS OF REVIEW
        We review a district court’s grant of summary judgment de novo, applying
the same standards as the district court. Hernandez v. Yellow Transp., Inc., 641
F.3d 118, 124 (5th Cir. 2011). Summary judgment is appropriate where the
movant shows that there is no genuine issue of material fact and that the
movant is entitled to judgment as a matter of law. Id. (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986); Fed. R. Civ. P. 56(a)). If the movant
“meets the initial burden of demonstrating that there exists no genuine issue of
material fact,” then absent rebutting evidence by the non-movant, summary
judgment should be granted. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317[,
322] (1986)). In making the summary judgment determination, all inferences
are drawn in favor of the non-movant. Id.
        The district court may grant a motion to alter or amend the judgment
under Rule 59(e) where there is “(1) an intervening change in controlling law; (2)
the availability of new evidence not previously available; or (3) the need to
correct a clear error of law or prevent manifest injustice.” See In re Benjamin
Moore & Co., 318 F.3d 626, 629 (5th Cr. 2002). We review a district court’s
denial of a Rule 59(e) motion for abuse of discretion. Johnson v. Diversicare
Afton Oaks, LLC, 597 F.3d 673, 677 (5th Cir. 2010).          Moreover, we have
described a Rule 59(e) motion as an “extraordinary remedy that should be used
sparingly.” Templet v. HydroChem, Inc., 367 F.3d 473, 479 (5th Cir. 2004).
                               III. DISCUSSION
A.      Claims Against IBT
        Appellants claim to raise error as to IBT, but their “Statement of Issues”
does not address any conduct of IBT. Moreover, nowhere in their brief do they

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contend that summary judgment for IBT was improperly granted. Therefore, no
claims against IBT have been properly presented to this court. Fed. R. App. P.
28(a)(9)(A); Quick Techs., Inc. v. Sage Group PLC, 313 F.3d 338, 343 n.3 (5th Cir.
2002) (“[An] argument . . . not listed in the ‘Statement of Issues Presented for
Appeal’ nor addressed in the body of the brief . . . is deemed waived.”).
B.      Summary Judgment
        Appellants assert error based on Local 745’s failure to meet its initial
burden on summary judgment to show that there were no disputed issues of
material fact. Appellants cite to Ashe v. Corley, where we said, “It is not enough
for the moving party to merely make a conclusory statement that the other party
has no evidence to prove his case.” 992 F.2d 540, 543 (5th Cir. 1993); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 328 (1986) (White, J., concurring) (“It is
not enough to move for summary judgment without supporting the motion in
any way or with a conclusory assertion that the plaintiff has no evidence to prove
his case.”). Appellants claim that Local 745’s brief in support of summary
judgment only made such conclusory statements, and therefore, summary
judgment should not have been granted. We have also said that the summary
judgment movant may discharge her initial burden by “pointing out the absence
of evidence supporting the nonmoving party’s case.” Duffy v. Leading Edge
Prods., 44 F.3d 308, 312 (5th Cir. 1995) (internal quotation marks omitted).
        Although Local 745’s brief does not point specifically to portions of the
summary judgment record that show that Appellants could not make out their
prima facie case at trial, there are instances where Local 745 notes the lack of
evidence underlying Appellants’ case. Local 745, in its brief in support of
summary judgment, states that there was “no dispute” that it “did not
participate in the creation of the alleged hostile work environment” and that
there are “no allegations that any of the [Appellants] ever complained to Local
745 about the alleged hostile work environment.” These were sufficient to

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                                  No. 11-10373

discharge Local 745’s burden under our caselaw. See, e.g., Russ v. Int’l Paper
Co., 943 F.2d 589, 592 (5th Cir. 1991).
C.      Motion to Alter or Amend
        Appellants filed a Rule 59(e) motion wherein they sought to supplement
the summary judgment record with deposition testimonies of Arrietta and Taylor
that were not previously in the summary judgment record. Appellants wanted
to enter this evidence to show that the Union refused to file a grievance alleging
racial discrimination on Arrietta’s behalf. The district court denied the motion
because the Arrietta and Taylor deposition testimonies were available to the
Appellants at the summary judgment phase but just went unintroduced.
Therefore, the district court concluded that they were not “new evidence” under
Benjamin Moore such that a Rule 59(e) motion would be appropriate. All of this
is true, and therefore, we cannot say that the district court abused its discretion
in denying the Appellants’ Rule 59(e) motion.
                              IV. CONCLUSION
        For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment to the Appellees and its denial of Appellants’ Rule 59(e)
motion.
        AFFIRMED.




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