                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                                                  In the                                  June 1, 2005
                         United States Court of Appeals                             Charles R. Fulbruge III
                                       for the Fifth Circuit                                Clerk
                                            _______________

                                              m 04-20578
                                            Summary Calendar
                                            _______________




                                          JEWEL MCADAMS,

                                                               Plaintiff-Appellant,

                                                 VERSUS

                       CITY OF HUNTSVILLE, WALKER COUNTY, TEXAS,

                                                               Defendant-Appellee.


                                  _________________________

                             Appeal from the United States District Court
                                 for the Southern District of Texas
                                         m 4:03-CV-1353
                               ______________________________




Before DAVIS, SMITH, and DENNIS,                          Pro se plaintiff Jewel McAdams was termi-
  Circuit Judges.                                      nated from her employment with the City of
                                                       Huntsville, Texas, after allegedly stealing
PER CURIAM:*                                           money from a cash drawer. After an investiga-
                                                       tion that included polygraph examinations and
                                                       the conclusion that there had been a pattern of
                                                       missing funds when McAdams was working,
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-    she was terminated. After filing a charge of
termined that this opinion should not be published     discrimination with the Texas Commission on
and is not precedent except under the limited cir-     Human Rights, she sued the city, alleging race
cumstances set forth in 5TH CIR. R. 47.5.4.
discrimination and the violation of her consti-             motion is therefore denied.
tutional right against self incrimination.1
                                                                                   II.
   As the district court noted, however, “Oth-                  In its motion for summary judgment, the
er than filing this suit, McAdams has not                   city contended that McAdams had failed to
engaged in steps necessary to prosecute it.”                establish even a prima facie case of discrimi-
McAdams failed to respond to requests for                   nation, and even assuming, arguendo, that
admissions and otherwise neglected to conduct               such a case could be made, it argued that it has
any discovery or place any evidence in the                  provided a legitimate non-discriminatory
record. Consequently, on the city’s motion for              reason for McAdams’s termination. As the
summary judgment, the district court dis-                   district court noted, the city “presented evi-
missed McAdams’s claims and entered judg-                   dence as to the basis for its conclusion that
ment in favor of Huntsville. The court then                 McAdams had taken money from her cash
granted McAdams’s motion to proceed in                      drawer.” McAdams, on the other hand, “failed
forma pauperis for purposes of appeal. Mc-                  to show any disputed facts supporting her
Adams later filed a “Motion To Appeal Peti-                 claim that the City did not actually believe that
tion to Dismiss,” which the district court                  allegation but instead used it as a pretext for
treated as a notice of appeal.2                             an otherwise discriminatory dismissal.” Be-
                                                            cause McAdams raised no genuine issues of
                        I.                                  material fact, summary judgment was appro-
    Pending before this court is McAdams’s                  priate.
“Motion for Transcript,” which requests an
order directing the city to provide her with a                 Similarly, McAdams failed to enter into the
copy of the transcript of her grievance hearing             record any evidence supporting her claims of
held by the city council. We treat this motion              deprivation of her Fifth Amendment or due
as tantamount to a motion to compel. This                   process rights under 42 U.S.C. § 1983. Those
court is not the correct forum in which to                  claims were also, therefore, properly dis-
conduct discovery. The proper method for                    missed.
pursuing this evidence would have been the
filing of a similar motion in the district court               On appeal, McAdams argues that her fail-
before the discovery cut-off deadline. See                  ure to respond to repeated discovery requests
FED. R. CIV. P. 37(a); 16(b). A court of ap-                and to the city’s motion for summary judgment
peals will not consider evidence not presented              was the result of her eviction from her home
to the district court. Stults v. Conoco, Inc., 76           and therefore constituted excusable neglect.3
F.3d 651, 657 (5th Cir. 1996). McAdams’s                    Nevertheless, the record reflects that either the
                                                            plaintiff or someone else named “McAdams”
                                                            signed for all of the relevant correspondence,
   1
     Although McAdadams’s complaint did not                 including the Joint Case Management Plan,
explicitly reference the operative statutes, the city
and the court have interpreted McAdams’s com-
plaint as alleging violations of title VII, 42 U.S.C.
                                                               3
§ 2000e-(a)(1), and 42 U.S.C. § 1983.                            There is no evidence in the record to confirm
                                                            this claim, and it does not appear that McAdams
   2
     A panel of this court denied the city’s motion         ever raised this issue with the district court before
to dismiss this appeal for lack of jurisdiction.            entry of judgment.

                                                        2
discovery requests, and motion for summary
judgment. In the end, regardless of her lack of
response to correspondence, McAdams never
provided any evidence to support her claims.

   The judgment is AFFIRMED, and all pend-
ing motions are DENIED.




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