               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT



                           No. 01-20568
                         Summary Calendar



JENNIFER J. LONG,

          Plaintiff-Appellant,

                              versus

PAUL H. O'NEILL, Secretary of the Treasury, and DEBORA KELLOUGH, an
Individual,

          Defendants-Appellees.



          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. H-97-CV-3239

                         January 10, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Jennifer J. Long appeals from the district court's orders

dismissing, inter alia, her state law claims against her immediate

supervisor Debora Kellough and granting summary judgment in favor

of the defendants on Long's Title VII race discrimination and

retaliation, age discrimination, and First Amendment retaliation




     *
      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this opinion should not be published and is not precedent except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.
claims.     Long raises several challenges to the district court's

judgment.

     First, Long argues that the district court erred in denying

her request for additional discovery pursuant to Fed. R. Civ. P.

56(f).    We review such denials for abuse of discretion only.1   Long

argues that the district court abused its discretion in denying her

request for discovery regarding (1) the defendants' submission of

affidavits from her former supervisors in support of their motion

for summary judgment, (2) evidence of retaliation against other

employees who testified before the Senate Finance Committee, and

(3) the Internal Revenue Service's notice of intent to discharge

Long filed the same day as the motion for summary judgment.        We

find no abuse of discretion because, as aptly discussed by the

district court in its order denying Long's request, the requested

discovery as to other employees' experience and the withdrawn

notice of intent to discharge would not provide evidence creating

a genuine issue of material fact as to the claims that Long

actually pled in her amended complaint.2       Moreover, we find no

abuse of discretion in the district court's conclusion that Long




     1
        Beattie v. Madison County Sch. Dist., 254 F.3d 595, 605
(5th Cir. 2001).
     2
       See Access Telecom, Inc. v. MCI Telecomms. Corp., 197 F.3d
694, 720 (5th Cir. 1999).

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failed to diligently pursue the requested discovery prior to the

filing of the defendants' motion for summary judgment.3

     Long next argues that the district court erred in granting

summary    judgment   on    the   ground    of    Civil   Service           Reform   Act

preemption, which was not raised in the defendants' motion for

summary judgment and was not addressed in Long's response.                           This

issue, however, was raised in the defendants' motion to dismiss and

addressed in the district court's order on that motion, in which

the court determined that the issue of whether CSRA preemption

applied to Long's specific claims could not be decided on the

pleadings alone.      Thereafter, it was appropriate for the district

court    to   grant   summary     judgment       on   Long's        First    Amendment

retaliation claim based on "personnel actions" on the basis of the

court's consideration of the record, particularly where Long had

notice of this issue from the prior motion to dismiss.4                      We find no

error in the district court's determination that Long's First

Amendment     retaliation    claim    was    precluded         by     the    CSRA,    as

interpreted by our binding precedent.5                 Moreover, the district

court did not err in granting summary judgment on Long's First

Amendment retaliation claim based on the EEO office's dismissal of


     3
          See Beattie, 254 F.3d at 606.
     4
        See Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1093
(5th Cir. 1996) (per curiam).
     5
        See Grisham v. United States, 103 F.3d 24, 26-27 (5th Cir.
1997); Rollins v. Marsh, 937 F.2d 134, 138-39 (5th Cir. 1991).

                                       3
Long's complaints, because this action is not an adverse employment

action.6

     Long also argues that the district court erred in failing to

consider evidence of a pattern of First Amendment retaliation by

the IRS.     However, in her amended complaint, Long pled only that

the dismissal of her claim by the EEO office was retaliatory based

on her exercise of her First Amendment rights and so a First

Amendment retaliation pattern claim was not before the district

court.     As for any such claim under Title VII, the district court

addressed the claim as a Title VII reverse race discrimination

pattern and practice claim and held that Long's evidence failed to

raise a genuine issue of material fact supporting a pattern of

reverse discrimination.      Additionally, Long complains that the

district court did not consider evidence of the IRS's withdrawn

notice of intent to discharge her, or "Opportunity Letter," but

Long made no request to amend her complaint to state a claim based

on this letter.       As such, the district court did not err in

refusing to analyze Long's First Amendment or Title VII claims in

light of it.    Finally, contrary to Long's suggestion, the district

court did consider her hostile work environment claim.        Long's

arguments for reversal and remand on these grounds are without

merit.


     6
        See Breaux v. City of Garland, 205 F.3d 150, 157 (5th
Cir.), cert. denied, 531 U.S. 816 (2000); Pierce v. Tex. Dep't of
Criminal Justice, 37 F.3d 1146, 1149 (5th Cir. 1994).

                                   4
     Long further argues that genuine issues of material fact

precluded summary judgment on her Title VII retaliation claim based

on the IRS's failure to promote Long and that the district court

improperly interpreted and applied Reeves v. Sanderson Plumbing

Products, Inc.7    We disagree.     There is no inconsistency in the

district court applying the Reeves Court's clear holding that a

plaintiff may put forth marginally sufficient evidence of a prima

facie case   and   pretext   and   yet   no   rational   factfinder   could

conclude that the employment action was discriminatory.8

     The defendants, however, complain that the failure to promote

was not included in Long's amended complaint.        This alone provides

sufficient reason to affirm the summary judgment in favor of the

defendants on this claim, but, because the district court addressed

Long's lately-raised Title VII failure to promote claim, we will

address the district court's reasoning on appeal.9          Our review of

the record convinces us that the district court did not err in

concluding that this is an instance in which no rational factfinder




     7
         530 U.S. 133 (2000).
     8
        See id. at 148; see also Okoye v. Univ. of Tex. Houston
Health Science Ctr., 245 F.3d 507, 513-14 (5th Cir. 2001); Vadie v.
Miss. State Univ., 218 F.3d 365, 373 n.23 (5th Cir. 2000), cert.
denied, 531 U.S. 1113 (2001), and cert denied, 531 U.S. 1150
(2001).
     9
        Cf. Gilley v. Protective Life Ins. Co., 17 F.3d 775, 781
(5th Cir. 1994).

                                    5
could conclude that the failure to promote Long was based on

discriminatory retaliation.10

     Finally,    Long   argues   that   the   district   court   erred   in

dismissing her state law claims against Kellough.        We cannot agree

because we are persuaded that the district court properly applied

our holding in Pfau v. Reed11 and did not err in dismissing these

claims as preempted by Title VII.

     AFFIRMED.




     10
        See Russell v. McKinney Hosp. Venture, 235 F.3d 219, 223
(5th Cir. 2000); Vadie, 218 F.3d at 374; cf. Blow v. City of San
Antonio, 236 F.3d 293, 297 (5th Cir. 2001) (following Reeves,
summary judgment was inappropriate where "[t]he plaintiff has
proved her prima facie case; she has presented sufficient evidence
to create a material issue of disputed fact as to whether the
employer's explanation was false; and there are no unusual
circumstances that would prevent a rational fact-finder from
concluding that the employer's reasons for failing to promote her
were discriminatory and in violation of Title VII" (footnote
omitted)); Evans v. City of Bishop, 238 F.3d 586, 591 (5th Cir.
2000) (following Reeves, summary judgment was inappropriate where
the plaintiff "put forth evidence beyond that of the prima facie
case and pretext").
     11
         125 F.3d 927, 933-34 (5th Cir. 1997), vacated on other
grounds, 525 U.S. 801 (1998), and reinstated on remand, 167 F.3d
228, 299 (5th Cir.) (per curiam), cert. denied, 528 U.S. 813
(1999).

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