     Case: 19-20228      Document: 00515386110         Page: 1    Date Filed: 04/17/2020




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


                                    No. 19-20228                                FILED
                                  Summary Calendar
                                                                            April 17, 2020
                                                                           Lyle W. Cayce
                                                                                Clerk
EDWARD CHRISTIAN BEDFORD,

              Plaintiff - Appellant

v.

TEXAS DEPARTMENT OF TRANSPORTATION,

              Defendant - Appellee



                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:17-CV-3231


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Edward Christian Bedford appeals from the district court’s grant of
summary judgment in favor of the Texas Department of Transportation. He
had claimed disparate treatment, hostile work environment, and retaliation.
Bedford also challenges the denial of his motion for an extension of the
discovery deadline.
       We AFFIRM.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-20228
              FACTUAL AND PROCEDURAL BACKGROUND
      Edward Christian Bedford is proceeding pro se on appeal, but in the
district court he had the assistance of counsel. He is an African American who
was employed by Texas Department of Transportation (“TxDOT”) as a Ferry
Maintenance Technician III at the Galveston Port Bolivar Ferry System from
April 15, 2013 until March 12, 2018. Bedford took Family Medical Leave from
February 16, 2017 until that leave expired, and he then took leave without pay
until October 30.      On November 9, Bedford requested a reasonable
accommodation for his inability to be exposed to the ferry engine room and
bilge. Because an appropriate accommodation or position could not be found,
TxDOT terminated Bedford’s employment on March 12, 2018.
      Before Bedford took leave, he had filed a charge of discrimination with
the Equal Employment Opportunity Commission (“EEOC”) on November 10,
2016, alleging discrimination based on his race, color, and national origin, and
alleging retaliation. The EEOC gave Bedford a notice of right to sue on July
31, 2017. Bedford then filed his initial complaint in the United States District
Court for the Southern District of Texas on October 24, 2017. Bedford filed the
operative complaint on December 27, bringing claims against TxDOT for
disparate treatment, hostile work environment, and retaliation.
      On April 27, 2018, the district court granted TxDOT’s unopposed motion
for partial dismissal on Bedford’s discrimination claims based on acts that
occurred before January 16, 2016, because they were time barred. TxDOT
later moved for summary judgment on the remainder of Bedford’s claims. The
district court denied Bedford’s motion for an extension of discovery and granted
summary judgment. Bedford appealed.




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                                  No. 19-20228
                                 DISCUSSION
      Arguments in a pro se brief are liberally construed. Haines v. Kerner,
404 U.S. 519, 520–21 (1972). The emphasis in Bedford’s pro se brief is the
failure of the district court to ensure that thorough discovery was obtained and
failures of Bedford’s trial counsel in presenting the case.       The degree of
discovery to be sought is for counsel to determine within his or her professional
judgment, and oversights in counsel’s discovery pursuit are not for the district
court to point out or correct. Bedford also argues that his trial counsel colluded
with the defendant. Perhaps indicative of his relationship with counsel is
Bedford’s assertion that he needed to get the Texas State Bar involved before
he was able to have his own files returned for the appeal. To the extent these
matters were addressed by the district court, we could consider the possibility
of error in how that court resolved them. We are not empowered, though, to
consider and remedy various disagreements that arose between a party and
his counsel during litigation.
      Regarding the possibility of the ineffective assistance of Bedford’s
counsel, the constitutional right to reasonably effective counsel does not apply
in civil proceedings. Sanchez v. USPS, 785 F.2d 1236, 1237 (5th Cir. 1986).
We cannot grant any relief based on those arguments.
      Though those improper arguments seem central in the briefing, Bedford
does provide some discussion of the dismissal of his claims of disparate
treatment, retaliation, and a hostile work environment. Liberally construed,
the brief presents arguments for us to review. Summary judgment in favor of
TxDOT was entered on those claims. Our review of that judgment is de novo.
Hyatt v. Thomas, 843 F.3d 172, 176 (5th Cir. 2016). We also address one
discovery issue.




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                                   No. 19-20228
I.     Discovery extension
       The one issue Bedford raises about discovery that is properly before us
is his argument that the district court erred in denying an extension of time
for its completion. Bedford sued in October 2017, and the scheduling order
provided for a close of discovery in February 2019. Two weeks before the
discovery deadline, TxDOT filed for summary judgment. The district court
denied Bedford’s motion for an extension of discovery. A scheduling order,
including one that involves discovery deadlines, may be modified “only for good
cause and with the judge’s consent.” FED. R. CIV. P. 16(b). Decisions on such
motions are reviewed for abuse of discretion. Marathon Fin. Ins., Inc., RRG v.
Ford Motor Co., 591 F.3d 458, 469 (5th Cir. 2009). One justification Bedford
offered for the extension was to allow Bedford time to review his work journals
and identify TxDOT employees who were treated more favorably than him.
Bedford’s work journals, though, were always in Bedford’s possession. TxDOT
requested those journals in its own discovery requests, but Bedford failed to
produce them. Further, Bedford’s deposition testimony indicated Bedford was
not aware of any similarly situated employees treated more favorably.
       Based on these facts, there was no abuse of discretion in denying an
extension of time for discovery.


II.    Discrimination claims
       Bedford’s appeal from the summary judgment was timely, though it took
a grant of an extension nunc pro tunc by the district court. That brings to us
the rulings of the district court, prior to and at final judgment, to the extent
Bedford challenges them. One challenge Bedford does not make is to the
dismissal of any claims of discrimination based on defendants’ acts prior to
January 16, 2016 as time barred. Thus, we do not have that decision before us
for review. Bedford argues the district court erred in denying him relief under
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                                  No. 19-20228
Rule 60(b). The record, though, contains no Rule 60(b) motion and no district
court ruling on such a motion. Of course, then, there is nothing as to Rule 60(b)
for us to review.
      After the dismissal of claims based on the earliest events in his TxDOT
employment, what was left were Bedford’s grievances about being
“marginalized,” criticized for “his tardiness and attendance,” refused time off
to take a certification exam, and “written-up” for refusing to leave his post.
Again, using liberal construction, we consider Bedford’s brief to have
sufficiently challenged the merits of the district court’s dismissal of his claims.
We conclude that the best way for us to proceed is to discuss what was needed
under each claim and then analyze the dismissal of each.
      To survive summary judgment on a Title VII disparate treatment claim,
the plaintiff must first establish a prima facie case of discrimination by
showing “(1) he is a member of a protected class, (2) he was qualified for the
position at issue, (3) he was the subject of an adverse employment action, and
(4) he was treated less favorably” than similarly situated employees under
nearly identical circumstances. Lee v. Kansas City S. Ry. Co., 574 F.3d 253,
259 (5th Cir. 2009). It is undisputed that Bedford, an African American, is a
member of a protected class. The district court held, however, that none of the
four allegations we just identified “constitute adverse employment actions.” It
is true that TxDOT terminated Bedford’s employment. Nevertheless, Bedford’s
EEOC charge of discrimination and his operative complaint contained no
allegation of discriminatory termination. In fact, Bedford filed his EEOC
charge, received his notice of right to sue, and filed his operative complaint
before his employment was terminated. No allegation of improper termination
was before the district court.
      A claim of hostile work environment under Title VII requires that a
plaintiff prove
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                                No. 19-20228
      (1) [he] belongs to a protected group; (2) [he] was subjected to
      unwelcome harassment; (3) the harassment complained of was
      based on race; (4) the harassment complained of affected a term,
      condition, or privilege of employment; (5) the employer knew or
      should have known of the harassment in question and failed to
      take prompt remedial action.
Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002). The district court
granted judgment on this claim because Bedford failed to provide record
evidence for the claim or adequate argument. That was not error.
      Next, to prevail on a Title VII retaliation claim, a plaintiff must show
that (1) he engaged in a protected activity; (2) an adverse employment action
occurred; and (3) a causal link exists between the protected activity and the
adverse action. Septimus v. Univ. of Houston, 399 F.3d 601, 610 (5th Cir.
2005). The district court held that Bedford abandoned his retaliation claim
because Bedford failed to respond to TxDOT’s motion for summary judgment
on the claim. We see no error in that conclusion.
      AFFIRMED.




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