                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 24, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 04-10522
                          Summary Calendar



     JIMMIE L. DIXON,

                                          Plaintiff-Appellant,

          versus

     WILLIAM J. HENDERSON, Postmaster General;
     ROY MARTIN, Station Manager; WILLIAM
     R. (BILL) OLIVER, Supervisor,

                                          Defendants-Appellees.




           Appeal from the United States District Court
                for the Northern District of Texas
                      USDC No. 3:99-CV-834-L



Before KING, GARWOOD and SMITH, Circuit Judges.

PER CURIAM:*

     Jimmie L. Dixon, federal prisoner # 29531-077, appeals the

district court’s denial of his employment discrimination action

against his former employer, the United States Postal Service,

following a bench trial.     Dixon argues that the district court

clearly erred by denying his Title VII claims for employment



     *
      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opinion should not be published and is not precedent except under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.
discrimination and hostile work environment.

     The testimony at trial supported the district court’s finding

that Dixon’s alleged mistreatment was caused by a personality

conflict with his supervisor, not animus based upon race or gender.

Dixon   admitted   that    he   did    not   know   why   he   was   mistreated.

Accordingly, the district court’s denial of Dixon’s Title VII

employment discrimination and hostile work environment claims was

based upon a plausible account of the evidence and not clearly

erroneous.   See Anderson v. City of Bessemer City, N.C., 470 U.S.

564, 573-74 (1985); United States Postal Serv. Bd. of Governors v.

Aikens, 86 F.3d 424, 428 (5th Cir. 1996).                      Furthermore, the

evidence at trial established that Dixon resigned from his position

after his arrest on unrelated criminal charges, he was not fired or

demoted, and his duties had not changed.              Accordingly, Dixon has

not shown that the district court clearly erred by denying his

Title VII employment discrimination claim for lack of an adverse

employment action.        See Burlington Indus., Inc. v. Ellerth, 524

U.S. 742, 761 (1998).

     While   Dixon   concedes         that   the    district    court   properly

dismissed without prejudice his disability discrimination claim

under the Americans with Disabilities Act (ADA), 42 U.S.C. §§

12101-12213, he argues for the first time on this appeal that the

district court abused its discretion by not construing the claim as

arising under the Rehabilitation Act, 29 U.S.C. §§ 791-794e.


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Neither the Rehabilitation Act nor the contention that some sort of

amendment to the disability claim should be made was ever at any

time mentioned in the trial court, by motion for new trial or by

post-judgment    motion   or   otherwise.   Accordingly,   any   such

contention has been forfeited and we do not consider it. Moreover,

even if we considered it and even assuming arguendo that the

district court erred by not construing the claim as arising under

the Rehabilitation Act, any such error was harmless as the district

court’s finding that Dixon did not suffer an adverse employment

action would defeat the claim.      See Burlington Indus., Inc., 524

U.S. at 761; Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000)

(jurisprudence interpreting ADA or Rehabilitation Act is applicable

to both); McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 279-80

(5th Cir. 2000) (adverse employment action is one element of an

employment discrimination claim under the ADA).

     Dixon argues that the district court abused its discretion by

refusing to allow him to constructively amend his complaint and add

a retaliation claim.      Dixon did not raise his retaliation claim

until after answer and after the discovery period ended and more

than two and a half years had elapsed since he filed this action.

Given the undue delay and prejudice inherent in seeking to raise a

new claim at that juncture in the course of the litigation, the

district court did not abuse its discretion by refusing to allow

the amendment.   See Daves v. Payless Cashways, Inc., 661 F.2d 1022,


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1025 (5th Cir. Unit A Nov. 1981).

     Dixon argues that the district court abused its discretion by

denying his motions for appointment of counsel.     However, because

Dixon did not appeal the magistrate judge’s denial of his motions

for appointment of counsel to the district court, we have no

jurisdiction to consider this challenge and this portion of Dixon’s

appeal is dismissed.    See Singletary v. B.R.X., Inc., 828 F.2d

1135, 1137 (5th Cir. 1987).

     The remainder of Dixon’s contentions are also without merit.

Because Dixon’s discovery motions were denied in order to enforce

the district court’s scheduling order, the district court did not

abuse its discretion by denying the discovery motions. See Turnage

v. General Elec. Co., 953 R.2d 206, 208-09 (5th Cir. 1992).

Because Dixon did not make a jury trial demand until more than two

years after the last pleading was filed in the case, the district

court did not deny Dixon his right to a jury trial as the right had

been waived.   See FED. R. CIV. P. 38(b) and (d).   Because the trial

was a bench trial, not a jury trial, the provision of FED. R. EVID.

403 allowing for the exclusion of evidence if the probative value

is outweighed by the danger of unfair prejudice had no application,

and the district court did not abuse its discretion by admitting

the evidence of Dixon’s convictions.   See FED. R. EVID. 609(a); Gulf

States Utils. Co. v. Ecodyne Corp., 635 F.2d 517, 519 (5th Cir.

Unit A Jan. 1981).   The contention that the ADA’s exclusion of the


                                  4
federal government as a covered employer is unconstitutional is

raised for the first time on appeal; it is hence forfeited; in any

event, it is plainly without merit.

     We   modify   the   district   court’s   April   19,   2004   separate

document judgment to expressly reflect that (as provided in the

court’s accompanying April 19, 2004 order) the dismissal of Dixon’s

Americans with Disabilities Act (ADA) claims is without prejudice.

              APPEAL DISMISSED IN PART, and otherwise

                         AFFIRMED AS MODIFIED.




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