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

                                                 FILED
                                                                         December 21, 2009

                                     No. 09-10130                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



DANIEL G MOORE,

                                                   Plaintiff – Appellant
v.

DUNCANVILLE INDEPENDENT SCHOOL DISTRICT,

                                                   Defendant – Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:06-CV-2085


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Daniel G. Moore appeals the district court’s grant of summary judgment
in favor of Duncanville Independent School District on his national origin
discrimination action. For the following reasons, the judgment is affirmed.
                           FACTS AND PROCEEDINGS
       Moore was employed by the Independent School District as an Assistant
Security Operations Officer for schools in the City of Duncanville, Texas. In May


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-10130

2006, the District terminated his employment. Moore filed suit, alleging that his
termination was based on his Hispanic origin in violation of Title VII. Following
discovery, the District filed a motion for summary judgment, to which Moore
failed to reply. The district court granted the motion and dismissed the case
with prejudice. The court concluded that Moore had not adduced sufficient
evidence to demonstrate termination on account of his national origin. It also
noted the District’s evidence that Moore was terminated for repeated tardiness,
repeated absences, unprofessional remarks, insubordination, and improperly
seeking to adjust his time sheets.
      Following the entry of final judgment, Moore moved for a new trial, which
was construed as a motion to alter or amend the judgment under Federal Rule
of Civil Procedure 59(e). His attorney first asserted that he had never received
notice of the District’s summary judgment motion and had failed to respond for
that reason. Moore further contended that numerous issues of material fact
existed which precluded dismissal of his case. The district court denied relief.
It found no evidence of direct discrimination and further found that the
circumstantial evidence Moore cited did not make out a prima facie case of
intentional discrimination. It alternatively found that the District provided
legitimate, nondiscriminatory reasons for terminating Moore, and that Moore
failed to demonstrate that those reasons were pretextual.         Moore timely
appealed.
                          STANDARD OF REVIEW
      The applicable standard of review of the denial of a Rule 59(e) motion to
alter or amend depends upon whether the district court considered material
attached to the motion which had not been previously provided to the court.
Templet v. HyrdoChem Inc., 367 F.3d 473, 477 (5th Cir. 2004). Because the court
considered Moore’s proffered evidence, and nonetheless granted summary
judgment, the appropriate standard of review is de novo.         Id.   Summary

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judgment is appropriate if no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. F ED. R. C IV. P. 56(c).
                                   DISCUSSION
      Moore challenges two aspects of the district court’s ruling.        First, he
challenges its refusal to allow him additional time to respond to the summary
judgment motion because of his alleged non-receipt of that motion. Second, he
argues that genuine issues of material fact precluded summary judgment in the
District’s favor.
A.    Electronic Receipt of the District’s Motion
      Moore’s attorney, Frank P. Hernandez, contends that he never received
the District’s motion for summary judgment. Without citing any evidence,
Hernandez blames “the electronic filing system in the Federal clerk’s office” for
his alleged non-receipt. However, during an evidentiary hearing in the district
court and contrary to his current contention on appeal, Hernandez conceded that
he had electronically received the motion, stating that it had been filed in a
“spam” folder. In light of Hernandez’s contradictory assertions and the lack of
supporting evidence, the argument that Moore was entitled to a deadline
extension or other relief fails.
B.    Summary Judgment
      Moore argues that numerous material fact issues exist concerning whether
the District’s proffered reasons for termination were pretextual. His argument
ignores the district court’s conclusion that he failed to establish a prima facie
case of discrimination.
      In order to show a prima facie case of discriminatory termination, a
plaintiff must first establish that he (1) is a member of a protected class; (2) was
subjected to an adverse employment action; (3) was qualified for his position;
and (4) was replaced by someone outside of the protected class. Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 345 (5th Cir. 2007). As Moore admits, his

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replacement was, like him, of Hispanic national origin and was therefore not
“outside of the protected class.” Moore has presented no evidence which would
challenge the district court’s finding.1
       Moore also argues that there is longstanding unequal treatment by the
District of other individuals in violation of Title VII. Specifically, he contends
that the District did not raise the proportion of Hispanic employees on its
security staff as the Hispanic population of the surrounding area increased. As
the District points out, Moore provides no evidence of the actual demographic
composition of the City of Duncanville. Moreover, this argument has little, if
any, bearing on whether Moore himself suffered unlawful discrimination.
       Finally, Moore’s brief refers to a written grievance he filed about another
security officer as the basis for his “theory of retaliation.”            His complaint,
however, did not assert a retaliation claim. These allegations are therefore
immaterial to his claim of discrimination on the basis of national origin.
                                    CONCLUSION
       For the foregoing reasons, the judgment of the district court is
AFFIRMED.




       1
         Because Moore failed to establish a prima facie case of discrimination, we need not
reach his argument that the District’s proffered reasons for termination were pretextual.

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