     Case: 09-20680     Document: 00511066793          Page: 1    Date Filed: 03/30/2010




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

                                                  FILED
                                                                           March 30, 2010

                                     No. 09-20680                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



SHELBY STEWART; KENNETH PERKINS; ADRIAN WHITE; RAUL
COLLINS,

                                                   Plaintiffs - Appellants

WILSEY EPPS; CHARLES MICKENS,

                                                   Intervenor Plaintiffs - Appellants
v.

CITY OF HOUSTON POLICE DEPARTMENT; CITY OF HOUSTON; CHIEF
HAROLD HURT,

                                                   Defendants - Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:07-CV-4021


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Officers of the City of Houston Police Department alleged unlawful racial
discrimination arising from the Department’s grooming policy. The district court
granted summary judgment to the defendants on all claims. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-20680

      The City of Houston Police Department has a policy prohibiting police
officers serving in four divisions from having beards.        The Department’s
reasoning is that the respirators purchased for response to a possible chemical,
biological, radiological, or nuclear attack cannot be safely worn with beards. The
four divisions with the restriction are those deemed most likely to serve as first
responders to such an attack.
      Four police officers filed suit challenging the policy. Two other officers
joined the action as intervenors. The officers are African-American males who
suffer from pseudofolliculitis barbae, a skin condition causing infection after
shaving. They alleged that the no-beard policy discriminates against African-
American males, who are disproportionately affected by the condition.
      The officers claimed that the policy violates 42 U.S.C. § 1981, the
Rehabilitation Act of 1973, and Title VII.           Adopting the report and
recommendations of the magistrate judge, the district court granted the
Department’s motion for summary judgment on all claims.
      We review a grant of summary judgment de novo and apply the same
standard as did the district court. QBE Ins. Corp. v. Brown & Mitchell, Inc., 591
F.3d 439, 442 (5th Cir. 2009).      We consider the evidence in the light most
favorable to the nonmoving party, affirming if there is no genuine issue of
material fact and the movant is entitled to judgment as a matter of law. Id. at
442-43; Fed. R. Civ. P. 56(c)(2).
      A cause of action for racial discrimination under Section 1981 requires a
demonstration of intentional discrimination. Gen. Bldg. Contractors Ass’n, Inc.
v. Penn., 458 U.S. 375, 391 (1982); Coleman v. Houston Indep. Sch. Dist., 113
F.3d 528, 533 (5th Cir. 1997). We agree with the district court that the officers
have no evidence of intentional discrimination.
      To show discrimination under the Rehabilitation Act, the officers must
show that they (1) have a disability, (2) were otherwise qualified for the

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                                    No. 09-20680

particular job, (3) worked for a program or activity that receives federal financial
assistance, and (4) were discriminated against solely on the basis of the
disability. 29 U.S.C. § 794(a); Hileman v. City of Dallas, 115 F.3d 352, 353 (5th
Cir. 1997). An individual has a disability under the Act if he or she (1) has “a
physical or mental impairment that substantially limits one or more major life
activities;” (2) has a record of such impairment, or (3) is regarded as having such
impairment.      42 U.S.C. § 12102(1).      Here, the officers allege the disability
impairs the major life activity of working. Id. § 12102(2)(A).
         The district court properly found no showing of a substantial limitation in
working. The officers have not alleged they are “unable to work in a broad class
of jobs,” only that they cannot work in four divisions of the Department. Sutton
v. United Air Lines, 527 U.S. 471, 491 (1999), superseded by statute on other
grounds, ADA Amendments Act of 2008, Pub. L. No. 110-325, 172 Stat. 3553.
“If jobs utilizing an individual’s skills . . . are available, one is not precluded from
a substantial class of jobs.” Id. at 492.
         The district court deemed the Title VII claim abandoned in the second
amended complaint, and denied leave to amend the complaint to include the
claim.     A district court’s denial of leave to amend is reviewed for abuse of
discretion. Sw. Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir. 2003).
After a scheduling order is issued, Rule 16(b) governs the amendment of
pleadings. Id. The complaint should not be modified absent a showing of good
cause. Id.; Fed. R. Civ. P. 16(b). To determine whether there is good cause, we
consider the following factors: “(1) the explanation for the failure to timely move
for leave to amend; (2) the importance of the amendment; (3) potential prejudice
in allowing the amendment; and (4) the availability of a continuance to cure such
prejudice.” Sw. Bell Tel. Co., 346 F.3d at 546 (citation and quotation marks
omitted).



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      We agree that the Title VII claim was abandoned. “An amended complaint
supersedes the original complaint and renders it of no legal effect unless the
amended complaint specifically refers to and adopts or incorporates by reference
the earlier pleading.” King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994).
      Further, the district court did not abuse its discretion in denying leave to
amend. As the magistrate judge noted, the officers offered no explanation for the
delay in asking to amend the complaint for the third time, and the request was
made three months before trial. Moreover, the proposed amendment would be
futile. The officers did not carry their burden under Title VII of showing that the
Department’s safety and security justifications for the grooming policy are
pretextual or that there is an equally effective, less discriminatory alternative
to the chosen respirators. Conn. v. Teal, 457 U.S. 440, 447 (1982); IBEW, AFL-
CIO, Local Unions Nos. 605 & 985 v. Miss. Power & Light, 442 F.3d 313, 316-18
(5th Cir. 2006).
      AFFIRMED.




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