     Case: 13-30233       Document: 00512355193         Page: 1     Date Filed: 08/27/2013




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

                                                                            FILED
                                                                          August 27, 2013

                                     No. 13-30233                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



CALDWELL BURGESS,

                                                  Plaintiff - Appellant
v.

CLECO CORPORATION,

                                                  Defendant - Appellee



               Appeal from the United States District Court for the
                   Western District of Louisiana, Shreveport
                            USDC No. 5:11-CV-1704


Before KING, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
      Plaintiff-Appellant Caldwell Burgess is one of a number of African-
American employees or former employees of Defendant-Appellee Cleco
Corporation who filed employment discrimination and retaliation lawsuits
against Cleco, alleging mostly race-based claims under Title VII, §1981, the
ADEA, and various Louisiana statutes. In response to Cleco’s initial motion for
summary judgment, the court dismissed Burgess’s claims under Title VII, the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 13-30233

ADEA, and the state statutes in question, leaving in place his claims for failure
to promote, racial discrimination, retaliation, hostile work environment, and
constructive discharge.
      Over objections from Burgess, the court entertained a second motion for
summary judgment by Cleco which the court granted, dismissing Burgess’s
remaining claims. The district court concluded, inter alia, that the summary
judgment evidence proffered by Burgess was uniformly conclusional and
irrelevant, never rising to a level sufficient to create a genuine issue of material
fact in opposition to Cleco‘s summary judgment evidence and legal arguments.
      Our review of the record on appeal, including briefs of counsel for the
parties and the district court’s admirably patient, detailed, and comprehensive
22-page Memorandum Ruling, leaves us with no doubt but that Burgess has
failed to support his insistence on appeal that the district court committed
reversible error in hearing and granting Cleco’s motions for summary judgment
and dismissing all claims asserted on his behalf as wholly wanting in fact and
in law.
      As counsel for Burgess did not bother to file a reply brief, we reiterate —
and adopt — the Summary of the Argument from the brief of Appellee:
      A.    Allowing Cleco To File A Second Motion for Summary
            Judgment Was Proper: The district court did not err in allowing
            Cleco to file a second motion for summary judgment because it had
            the discretion to do so, even with no new facts presented or changes
            in the law.

      B.    Burgess Offers Insufficient Facts and Legal Authority.
            Burgess asserts the district court erred in its decision, but fails to
            support his arguments with accurate citations to material facts and
            legal authority, thus waiving many of his arguments.

      C.    Dismissal Of Burgess’s Failure To Promote Claims Was
            Proper. The district court properly dismissed Burgess’s failure to
            promote claims because he abandoned them and they are untimely.


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                                 No. 13-30233

            It properly dismissed Burgess’s allegation regarding the 2008
            Director-Marketing and Contracts position because it is actually a
            failure to hire claim that is untimely and because Burgess conceded
            that he never applied for the position.

      D.    Dismissal Of Burgess’s Pay Discrimination Claim Was
            Proper. The district court properly dismissed Burgess’s pay
            discrimination claim because Burgess has no evidence of pretext
            sufficient to rebut Cleco’s legitimate, non-discriminatory reasons for
            its actions. Additionally, Cleco demonstrated that the claim is
            untimely.

      E.    Dismissal Of Burgess’s Miscellaneous Racial Discrimination
            And Retaliation Claims Was Proper. The district court property
            dismissed Burgess’s miscellaneous discrimination and retaliation
            claims because he abandoned them, because they are untimely, and
            because they are without merit.

      F.    Dismissal Of Burgess’s Hostile Work Environment Claims
            Was Proper. The district court properly dismissed Burgess’s
            hostile work environment claims finding Burgess could not prove
            that he was subjected to unwelcome harassment or that the alleged
            harassment was sufficiently severe or pervasive. Additionally, Cleco
            demonstrated that Burgess’s hostile work environment claim is
            untimely and the complained of conduct was not race-based.

      G.    Dismissal Of Burgess’s Constructive Discharge Claim Was
            Proper.     The district court properly dismissed Burgess’s
            constructive discharge claim because he did not present evidence
            that the working conditions at Cleco were so intolerable that a
            reasonable person would have felt compelled to resign.
            Additionally, Cleco demonstrated that the claim is untimely.

      For these reasons and those detailed in the district court’s aforesaid

Memorandum Ruling, its dismissal of Burgess’s action is, in all respects,

AFFIRMED.




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