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

                                                 FILED
                                                                           March 13, 2009

                                     No. 08-60703                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



RICHARD EVANS

                                                   Plaintiff-Appellant
v.

DAVID GREUSCHOW

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 07-CV-18



Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Richard Evans filed suit below against David
Greuschow, his supervisor at the Coca Cola Bottling Plant in Laurel,
Mississippi, and Dustyn Aultman, another defendant who is not otherwise
identified and who apparently was not served with process, alleging violations
of the Fifth, Eighth, and Fourteenth Amendments to the United States



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-60703

Constitution, as well as violations of 42 U.S.C. § 1981 and Title VII. The district
court granted Greuschow’s motion to dismiss under Fed. R. Civ. P. 12(b)(6). We
affirm.
      Evans’ claims arise out of two incidents he alleges took place in the course
of his employment. First, Evans alleges that on July 6, 2006 Greuschow asked
Evans and a coworker why the work area was dirty and that when Evans tried
to respond Greuschow told him to “shut up N___A.” Second, Evans alleges that
on January 7, 2007, Greuschow refused to provide Evans with help in loading
a truck and told Evans he should do it himself.
      We review the grant of a motion to dismiss de novo, construing all evidence
in the light most favorable to the plaintiff. Copeland v. Wasserstein, Parella &
Co., Inc., 278 F.3d 472, 477 (5th Cir. 2002). Greuschow argues as a preliminary
matter that because the district court’s order did not address the claims against
Aultman and did not specify that it was made under Fed. R. Civ. P. 54(b), it was
not a final judgment and an appeal is premature. We have jurisdiction over final
decisions of the district courts. 28 U.S.C. § 1921. A judgment is generally final
only when it resolves all questions as to all parties and leaves a court with
nothing to do but execute the judgment. Askanase v. Livingwell, Inc., 981 F.2d
807, 810 (5th Cir.1993).
      Federal Rule of Civil Procedure 54(b), however, provides an exception,
such that a district court “may direct entry of a final judgment as to one or more,
but fewer than all, claims or parties only if the court expressly determines that
there is no just reason for delay.” Fed. R. Civ. P. 54(b). We have held that a
district court need not “mechanically recite the words ‘no just reason for delay,’”
Kelly v. Lee’s Old Fashioned Hamburgers, Inc., 908 F.2d 1218, 1220 (5th Cir.
1990) (en banc), but the district court’s intent to utilize 54(b) must be
unmistakable and discernable from the order or from documents referenced in
the order, Briargrove Shopping Ctr. Joint Venture v. Pilgrim Enters., Inc., 170

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                                  No. 08-60703

F.3d 536, 539 (5th Cir. 1999). In this case, the judgment is styled a “Final
Judgment of Dismissal Without Prejudice.” Although simply calling an order a
final judgment does not satisfy 54(b), Briargrove, 170 F.3d at 540, the district
court in this case issued an order on the same date, in response to a motion by
Evans for leave to appeal, holding that “the Motion for Leave to Appeal is moot.
Mr. Evans has a right to appeal final judgment of this Court to the United States
Court of Appeal for the Fifth Circuit. The order entered herein granting David
Greuschow Motion to Dismiss [19] and the Judgment entered herein are final
orders and are appealable.” Thus the district court clearly intended the ruling
on the Motion for Leave to Appeal to be part of the order dismissing the case
(“order entered herein granting . . . and the Judgment entered herein”) and
considered the order dismissing the case to be a final appealable order. This
satisfies the requirements of 54(b) and we thus have jurisdiction over this
appeal.
      Applying the liberal construction due pro se plaintiffs, Mapes v. Bishop,
541 F.3d 582, 584 (5th Cir. 2008), Evans appears to assert on appeal, of his
many claims below, only the Title VII claim, as well as new claims under 42
U.S.C. § 1981, and potentially a claim for harassment under the ADEA and state
law claims for libel, slander and harassment.
      Although pro se litigants are afforded liberal construction, they must brief
arguments in order to preserve them. Mapes, 541 F.3d at 584. The § 1981 claim,
ADEA claim, and state law claims were not raised in the district court and so we
will not consider them on appeal. Texas Commercial Energy v. TXU Energy, Inc.,
413 F.3d 503, 510 (5th Cir. 2005). With respect to the Title VII claim, the district
court was correct in holding that Title VII does not create individual liability for
private employees and in finding that Evans had, in any case, not exhausted his
administrative remedies under the statute. See Grant v. Lone Star Co., 21 F.3d



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                                No. 08-60703

649, 651-53 (5th Cir. 1994); Barnes v. Levitt, 118 F.3d 404, 408-09 (5th Cir.
1997). For the foregoing reasons we AFFIRM.




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