           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                                                                 F I L E D
                                     No. 06-20796                                 August 15, 2007
                                   Summary Calendar
                                                                              Charles R. Fulbruge III
                                                                                      Clerk
JOSE A GOMEZ

                                                  Plaintiff-Appellant
v.

LSI INTEGRATED LP, doing business as Graphic Solutions Plus an Ohio
Corporation

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 No. 4:05-CV-2222


Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
       After Jose Gomez was denied a promotion, he sued his employer, LSI
Integrated L.P., alleging age, national origin, and religious discrimination




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                      No. 06-20796
                                    Summary Calendar

pursuant to Title VII,1 the Age Discrimination in Employment Act (ADEA),2 and
42 U.S.C. § 1981. The district court granted LSI’s motion for summary judgment
on all of the plaintiff’s discrimination claims. The district court also concluded
that Gomez’s retaliation claims, which were raised for the first time in response
to the defendant’s summary judgment motion, were not properly before the court
and, in any event, meritless.
      The district court’s judgment, which we review de novo,3 is affirmed for the
following reasons:
      1.       To establish a prima facie case of discrimination in a failure to
promote case, Gomez must show that he was qualified for the position he
sought.4 According to LSI’s neutral promotion policy, a position applied for must
be the next level in the applicant’s job progression or the applicant must be
“otherwise qualified.” Under the promotion policy, an applicant is “otherwise
qualified” if he “worked previously in the applied for job progression at a
qualifying grade.” At the time Gomez applied for the promotion at issue, Gomez
was employed as a grade 5 machine operator. The promotion Gomez sought was
a grade 15 team leader position, which was not the next level in his job
progression. Moreover, there was no evidence that Gomez was otherwise
qualified.
      2.       Gomez alleges that a former supervisor’s comments in 2001 are
direct evidence of age and religious discrimination. However, that supervisor
was terminated shortly after those comments were allegedly made, he was not



      1
          42 U.S.C. §§ 2000e to 2000e-17.
      2
          29 U.S.C. §§ 621-34.
      3
          City of Shoreacres v. Waterworth, 420 F.3d 440, 445 (5th Cir. 2005).
      4
          Blow v. City of San Antonio, 236 F.3d 293, 296 (5th Cir. 2001).

                                               2
                                       No. 06-20796
                                     Summary Calendar

employed by LSI at the time the promotion decision was made, and there is no
allegation that he either participated in the decision to deny Gomez the
promotion or otherwise influenced the decisionmakers. The comments are too
remote in time to the 2004 employment decision to be considered direct evidence
of age or religious discrimination.5
       3.      Gomez did not assert a § 1981 retaliation claim in his original
complaint before the district court and neither amended nor sought leave to
amend his complaint to add a charge of retaliation. As a result, the district court
correctly determined that the retaliation claim was not properly before the court,
and such claim is beyond the scope of this appeal.6 Gomez has not appealed the
district court’s disposition of his similarly unpled Title VII and ADEA retaliation
claims.


AFFIRMED.




       5
         See Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400, 405 (5th Cir. 2001) (finding
a comment made “nearly a year” before the challenged employment decision too remote);
Brown v. CSC Logic, 82 F.3d 651, 655-56 (5th Cir. 1996) (finding a supervisor’s comments,
including one comment made 16 months before the employment decision at issue, to be too
“vague, indirect, and remote in time” to support a finding of discrimination).
       6
          See FED. R. CIV. P. 3 (“A civil action is commenced by the filing of a complaint with the
court.”); FED. R. CIV. P. 15 (governing amended and supplemental pleadings); see also Roeder
v. Am. Postal Workers Union, AFL-CIO, 180 F.3d 733, 737 n.4 (6th Cir. 1999) (refusing to
consider on appeal unpled claim that was raised for the first time in response to a motion for
summary judgment); Wilson v. First Houston Inv. Corp., 566 F.2d 1235, 1243 (5th Cir. 1978)
(finding claims not raised in the complaint beyond the scope of the appeal), judgment vacated
on other grounds, 444 U.S. 959 (1979).

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