                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                               F I L E D
                       In the                                 December 7, 2006

United States Court of AppealsCharles R. Fulbruge III
                                                                    Clerk
          for the Fifth Circuit
                  _______________

                  Summary Calendar
                    m 06-10114
                  _______________



      CHRIST CHRISTIANITY PARTY, ET AL.,

                                       Plaintiffs,

                   SENECA L. LEE,

                                       Plaintiff-Appellant,

                       VERSUS

 TEXAS DEPARTMENT OF CRIMINAL JUSTICE; ET AL.,

                                       Defendants,

    TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

                                       Defendants-Appellees.

            _________________________

      Appeal from the United States District Court
          for the Northern District of Texas
                   m 4:04-CV-108
           _________________________
Before SMITH, WIENER, and OWEN,                        application was denied. He alleges, through
  Circuit Judges.                                      conclusional affidavits, that the TDCJ has re-
                                                       hired correctional officers in violation of these
PER CURIAM:*                                           guidelines.

    Seneca Lee appeals a judgment in favor of             Lee brought claims on behalf of himself and
the Texas Department of Criminal Justice               the Christ Christianity Party under titles II and
(TDCJ”) dismissing his employment discrimi-            VII, the First and Fifth Amendments, and
nation claim. Because Lee has failed to estab-         chapter 10 of the Texas Civil Practice and
lish a prima facie case of discrimination, and         Remedies code, alleging that the TDCJ refused
because the district court did not abuse its dis-      to reinstate him because he is black and had
cretion in refusing to allow him to amend his          distributed Christian literature to inmates. All
complaint, we affirm.                                  claims by the Christ Christianity Party and Lee
                                                       were dismissed except for Lee’s title VII claim
                        I.                             based on racial discrimination. An appeal from
    Because Lee is pro se, we liberally construe       the partial dismissal was dismissed for lack of
his briefs and apply less stringent standards in       appellate jurisdiction.
interpreting his arguments than we would in
the case of a counseled party. Grant v. Cuel-             Lee sought to amend his complaint to add
lar, 59 F.3d 523, 524 (5th Cir. 1995). We              claims under chapter 10 of the Texas Civil
read Lee’s brief as arguing that the district          Practice and Remedies Code, Titles II, III, and
court incorrectly applied the McDonnell                VII, and the First Amendment. His motion to
Douglas burden-shifting standard in holding            amend was denied, and the TDCJ’s motion for
that Lee had failed to prove a prima facie case        summary judgment was granted.
of employment discrimination. See McDonnell
Douglas v. Green, 411 U.S. 792 (1973). We                                     II.
also read Lee’s brief as arguing that he should            We review a summary judgment de novo.
have been allowed to amend his pleadings to            Morris v. Powell, 449 F.3d 682, 684 (5th Cir.
add claims pursuant to chapter 10 of the Texas         2005). All justifiable inferences to be drawn
Civil Practice and Remedies Code and titles II,        from the underlying facts must be viewed in
III, and VII of the Civil Rights Act of 1964.          the light most favorable to the nonmoving par-
                                                       ty. Minter v. Great Am. Ins. Co., 423 F.3d
    Lee is a former employee of the TDCJ. In           460, 465 (5th Cir. 2005). Summary judgment
January 2001 he was terminated for cause               is appropriate where the record demonstrates
from his position as a Correctional Officer. It        that there is no issue of material fact and the
is undisputed that the TDCJ issued guidelines          moving party is entitled to judgment as a mat-
before June 2003 that did not permit rehiring          ter of law. Martinez v. Bally’s La., Inc., 244
of applicants who had been dismissed for               F.3d 474, 476 (5th Cir. 2001).
cause within the previous ten years. In June
2003 Lee applied for reinstatement, but his               To survive summary judgment, a plaintiff in
                                                       a discrimination case must establish a prima
                                                       facie case of discrimination through direct evi-
   *
      Pursuant to 5TH CIR. R. 47.5, the court has      dence of discriminatory intent or the shifting-
determined that this opinion should not be pub-        burden test of McDonnell Douglas. See
lished and is not precedent except under the limited   Reeves v. Sanderson Plumbing Prods. Inc.,
circumstances set forth in 5TH CIR. R. 47.5.4.
530 U.S. 133, 141 (2000). Lee has presented            impact from the TDCJ’s policies, Lee’s claims
no direct evidence of discrimination, so he            would be legally insufficient under any theory
must proceed under the shifting-burden test.           of discrimination.2 The district court did not
A plaintiff can establish a prima facie case by        abuse its discretion in denying the motion to
showing that he (1) is a member of a protected         file an amended complaint.
class; (2) was qualified for the position; and
(3) was not hired; and (4) the position was               AFFIRMED.
filled by someone outside the protected class,
or other similarly situated persons were treated
more favorably. See, e.g., Septimus v. Univ.
of Houston, 399 F.2d 601, 609 (5th Cir.
2005).

   The TDCJ has presented undisputed evi-
dence that one qualification for the position of
Correctional Officer is that the applicant not
have been terminated for cause within the pre-
vious ten years. Lee has not presented any
competent evidence that this requirement is a
pretext.1 He cannot establish a prima facie
case, because he is not qualified for the posi-
tion. The TDCJ is entitled to summary judg-
ment.

                       III.
   Lee appeals the denial of his motion to
amend his pleadings to add claims pursuant to
additional legal theories. A ruling on a motion
to amend pleadings is reviewed for abuse of
discretion. Smith v. EMC Corp., 393 F.3d
590, 595 (5th Cir. 2004). Without addressing
whether Lee has a statutory right to bring a
discrimination claim under his other legal the-
ories, we note that for him to bring a claim of
discrimination under any theory, he will need
to prove a prima facie case of discrimination.
Because he has presented no evidence of direct
discrimination, no evidence sufficient to meet
the burden-shifting test under McDonnell
Douglas, and no evidence of a disparate
                                                          2
                                                              Cf. Fabela v. Socorro Indep. Sch. Dist., 329
                                                       F.3d 414-15 (5th Cir. 2003) (outlining the methods
   1
     See, e.g., Young v. Equifax Credit Info.          of proving a prima facie case of discrimination un-
Servs., Inc., 294 F.3d 631, 639 (5th Cir. 2002)        der title VII); Reeves, 530 U.S. at 141-42 (apply-
(“Conclusory affidavits are not sufficient to defeat   ing McDonnell Douglas framework to ADEA
a motion for summary judgment.”).                      claim).
