Derrick Allen v. Envirogreen Landscape Prof Inc ( 2017 )


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  •      Case: 16-31247      Document: 00514265433         Page: 1    Date Filed: 12/07/2017
    REVISED December 7, 2017
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    No. 16-31247
    Fifth Circuit
    FILED
    November 28, 2017
    DERRICK ALLEN,                                                             Lyle W. Cayce
    Clerk
    Plaintiff–Appellant,
    v.
    ENVIROGREEN LANDSCAPE PROFESSIONALS, INCORPORATED,
    Defendant–Appellee.
    Appeal from the United States District Court
    for the Middle District of Louisiana
    USDC No. 3:14-CV-506
    Before JONES, SMITH, and PRADO, Circuit Judges.
    PER CURIAM:*
    Derrick Allen appeals the summary judgment dismissal of his retaliation
    claim based on Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
    § 2000e et seq., and the denial of his motion for reconsideration of the judgment.
    For the following reasons, 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-31247    Document: 00514265433      Page: 2    Date Filed: 12/07/2017
    No. 16-31247
    I. BACKGROUND
    A.    Factual Background
    Plaintiff–Appellant Derrick Allen, an African-American male, was hired
    by   Defendant–Appellee       Envirogreen      Landscape     Professionals,    Inc.
    (“Envirogreen”) on September 17, 2010. Envirogreen is a landscaping company
    that provides services in Baton Rouge and other cities. Allen left his supervisor
    job that paid $15 per hour at another landscaping company, White Oak
    Plantation, for a position at Envirogreen. Allen interviewed with Envirogreen’s
    owner, Mark Willie, and landscape architect, Todd Griffin. He was given the
    title of “supervisor” but never explicitly told the scope of his duties. According
    to Allen, he and Willie were supposed to review an employment agreement to
    set his exact duties and terms of employment, but Willie “continued to put that
    off.” Allen claims that Willie agreed to pay him $15 per hour.
    Allen describes his work as “doing pretty much a little bit of everything,
    not just -- little to none if so supervising but mainly just routine labor.” Despite
    the agreed upon pay rate of $15 per hour, Allen’s first paycheck reflected a rate
    of $14 per hour. At the time, Allen did not know whether other employees were
    being paid $14 or $15 per hour. After receiving his paycheck, Allen complained
    to both Willie and Griffin regarding his pay rate. He also complained to them
    about Envirogreen’s failure to pay overtime.
    After he complained about his pay, Allen believes that Envirogreen
    retaliated against him by placing him in “inappropriate working conditions.”
    According to Allen, he was sent to jobs where he was not familiar with the
    work, and check on jobs that he didn’t initiate. Altogether, Allen reports
    working between six and eight jobs for Envirogreen, and he alleges that all of
    them involved inappropriate working conditions since he complained to Willie.
    Allen inferred that Envirogreen’s motive in assigning him to inappropriate
    working conditions was based on his wage and overtime complaint, not his
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    race. When asked if race had something to do with his adverse treatment by
    Envirogreen, Allen responded that race was a factor, because the field workers
    were predominantly black, but his case was based “on retaliation, not race.”
    Griffin terminated Allen on December 31, 2010, soon after his 90-day
    evaluation. According to Allen, he requested an evaluation so he could
    potentially request a pay increase, but he was fired instead. Griffin told him
    that “it was apparent that . . . Allen was not satisfied with the way things were
    going on the job.” Willie justified Allen’s termination because Allen’s
    employment was “not working out,” Allen had poor job performance, and Allen
    “did not have skills originally agreed upon.” Allen reported that he never
    received a complaint from his employer regarding his performance, nor did he
    receive any verbal or written warning before he was terminated. Allen thought
    that he was terminated as retaliation for complaining about his wages, not his
    race. Envirogreen eventually compensated Allen for “back wages” as a result
    of a payroll audit.
    B.    Procedural History
    On May 27, 2011, Allen filed a charge of discrimination with the
    Louisiana Commission on Human Rights (“LCHR”) and the Equal
    Employment Opportunity Commission (“EEOC”). Allen’s complaint alleged
    that he was discriminated against based on race, and retaliated against in
    violation of LSA R.S. 23:301 et seq. and Title VII of the Civil Rights Act of 1964.
    Specifically, he complained that “as a supervisor . . . he was not render[ed] the
    opportunities and training that was agreed upon, he did not get paid the agreed
    upon wage of $15 an hour, and he worked over 40 hours a week on several
    occasions and did not get paid overtime wages because of his Race, and he was
    assigned revolting assignments and fired because of his race and opposition to
    his employers unlawful practices.”
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    After exhausting his administrative remedies, 1 Allen sued Envirogreen
    pro se alleging retaliation in violation of Title VII of the Civil Rights Act of
    1964. Allen’s complaint argues that he informed Envirogreen of its
    discriminatory employment practices, such as “wages paid, hours of work, and
    working conditions.” Allen claims that as a result, Envirogreen took adverse
    action by withdrawing his initial salary agreement, not paying overtime,
    placing Allen in “inappropriate working conditions,” and terminating him.
    Allen did not mention race in his complaint. Since filing his complaint, he
    repeatedly maintained that his case is “based on [r]etaliation not race, but race
    surely is a component.”
    Envirogreen filed a motion for summary judgment arguing that Allen
    failed to establish a prima facie case for his retaliation claim under Title VII.
    Allen filed a sur-reply in response, arguing that “he was discriminated against
    based on race” and that he was treated differently than a similarly situated
    white employee, Rick, with respect to job assignment, wages, and hours. No
    details are provided about Rick other than the fact he is a white supervisor at
    Envirogreen. After a review of the record, the district court found that no
    reasonable juror could conclude from the uncontested facts that Allen engaged
    in activity protected by Title VII. The court reasoned that Allen’s legal
    arguments were unsupported, and his factual assertions were conclusory. The
    district court granted Envirogreen’s motion for summary judgment and
    dismissed Allen’s claims with prejudice on May 3, 2016.
    1  The LCHR issued a finding that the evidence did not support Allen’s allegations of
    employment discrimination. After conducting a substantial weight review of the finding, the
    EEOC concurred, and “determined that no appropriate evidence was overlooked or
    misinterpreted in evaluating [Allen’s] charge.” The EEOC issued a determination letter on
    May 29, 2014, notifying Allen of his right to bring a private lawsuit within 90 days of
    receiving the letter.
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    On May 16, 2016, Allen filed a motion for reconsideration of the
    judgment invoking Rule 59. He first asserted that the court made a mistake of
    law in holding that Title VII does not protect “wage issues.” He also argued
    that the court disregarded evidence that supported his claim of discrimination,
    specifically his charge of discrimination filed with the EEOC. And Allen
    contended that Envirogreen provided no support for its claim that its actions
    were not racially motivated. The district court denied Allen’s motion on
    November 21, 2016. Allen timely appealed both the district court’s grant of
    summary judgment in favor of Envirogreen and the court’s denial of his motion
    for reconsideration.
    II. DISCUSSION
    “We review a district court’s grant of summary judgment de novo,
    viewing all facts and drawing all inferences in a light most favorable to the
    non-moving party.” Alkhawaldeh v. Dow Chem. Co., 
    851 F.3d 422
    , 425–26 (5th
    Cir. 2017) (citation omitted). Summary judgment is proper when there is “no
    genuine dispute as to any material fact and the movant is entitled to judgment
    as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact
    exists if the evidence is such that a reasonable jury could return a verdict for
    the nonmoving party. Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 248 (1986).
    “Where, as here, ‘the burden at trial rests on the non-movant, the movant must
    merely demonstrate an absence of evidentiary support in the record for the
    non-movant’s case.’” 
    Alkhawaldeh, 851 F.3d at 425
    –26 (quoting Byers v. Dall.
    Morning News, Inc., 
    209 F.3d 419
    , 424 (5th Cir. 2000)). “Once a party meets
    the initial burden of demonstrating that there exists no genuine issue of
    material fact for trial, the burden shifts to the non-movant to produce evidence
    of the existence of such an issue for trial.” Bayle v. Allstate Ins. Co., 
    615 F.3d 350
    , 355 (5th Cir. 2010) (citing Celotex Corp. v. Catrett, 
    477 U.S. 317
    (1986)).
    “Summary judgment may not be thwarted by conclusional allegations,
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    unsupported assertions, or presentation of only a scintilla of evidence.” McFaul
    v. Valenzuela, 
    684 F.3d 564
    , 571 (5th Cir. 2012) (citing Hathaway v. Bazany,
    
    507 F.3d 312
    , 319 (5th Cir. 2007)). “On appeal we may affirm a grant of
    summary judgment on any legal ground raised below, even if it was not the
    basis for the district court’s decision.” 
    Alkhawaldeh, 851 F.3d at 426
    (quoting
    
    Bayle, 615 F.3d at 355
    ).
    A.    Summary Judgment
    Title VII prohibits employers from retaliating against employees who
    oppose an employment practice made unlawful by Title VII. EEOC v. Rite Way
    Serv., Inc., 
    819 F.3d 235
    , 239 (5th Cir. 2016) (quoting 42 U.S.C. § 2000e-3(a)).
    Unlawful employment practices under Title VII include “fail[ing] or refus[ing]
    to hire or to discharge any individual, or otherwise to discriminate against any
    individual with respect to his compensation, terms, conditions, or privileges of
    employment, because of such individual’s race, color, religion, sex, or national
    origin.” 42 U.S.C. § 2000e-2(a)(1). To establish a prima facie case of retaliation
    under Title VII, “a plaintiff must show that (1) she participated in an activity
    protected under the statute; (2) her employer took an adverse employment
    action against her; and (3) a causal connection exists between the protected
    activity and the adverse action.” Feist v. La. Dep’t of Justice, Office of the
    Attorney Gen., 
    730 F.3d 450
    , 454 (5th Cir. 2013) (citing McCoy v. City of
    Shreveport, 
    492 F.3d 551
    , 556–57 (5th Cir. 2007)). “If the employee establishes
    a prima facie case [of retaliation], the burden shifts to the employer to state a
    legitimate, non-retaliatory reason for its decision.” LeMaire v. Louisiana, 
    480 F.3d 383
    , 388–89 (5th Cir. 2007) (citing Baker v. Am. Airlines, Inc., 
    430 F.3d 750
    , 754–55 (5th Cir. 2005)). Once an employer does so, the burden shifts back
    to the employee to demonstrate that the employer’s reason is pretext for
    retaliation. 
    Id. “In order
    to avoid summary judgment, the plaintiff must show
    ‘a conflict in substantial evidence’ on the question of whether the employer
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    would not have taken the action ‘but for’ the protected activity.” 
    Feist, 730 F.3d at 454
    (quoting Long v. Eastfield Coll., 
    88 F.3d 300
    , 308 (5th Cir. 1996)).
    Allen argues that the district court erred in granting summary judgment
    on his Title VII retaliation claim. The district court concluded that before he
    was retaliated against, Allen only complained about his wages and had not
    complained to Envirogreen about racially discriminatory employment
    practices. Thus, Allen failed to establish a prima facie case for retaliation
    under Title VII because he did not show that he engaged in activity protected
    under Title VII. This Circuit has defined protected activity to include
    “opposition to any practice rendered unlawful by Title VII, including making a
    charge, testifying, assisting, or participating in any investigation, proceeding,
    or hearing under Title VII.” Mota v. Univ. of Tex. Hous. Health Sci. Ctr., 
    261 F.3d 512
    , 519 (5th Cir. 2001) (citing 42 U.S.C. § 2000e-3(a) (2001); Evans v.
    City of Hous., 
    246 F.3d 344
    , 352–53 (5th Cir. 2001)). On appeal, Allen offers
    two sources of proof for his claim that he engaged in activity protected under
    Title VII: his written LHCR and EEOC complaint and his verbal complaints to
    Willie and Griffin. After reviewing these sources, neither is sufficient to
    establish a prima facie case for retaliation. We therefore conclude that Allen
    has failed to create a genuine issue of material fact that he engaged in
    protected activity under Title VII.
    First, Allen argues that his LHCR and EEOC complaint regarding
    Envirogreen’s employment practices supports finding that he engaged in
    activity protected under Title VII. There is no question that Allen engaged in
    a protected activity when he filed his complaint on May 27, 2011. See 42 U.S.C.
    2000e-3(a). In his EEOC charge, Allen specifically alleged that “he worked over
    40 hours a week on several occasions and did not get paid overtime wages
    because of his [r]ace, and he was assigned revolting assignments and fired
    because of his race and opposition to his employer’s unlawful practices.”
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    Making a charge that he was discharged or otherwise discriminated against
    with respect to compensation or conditions of employment because of his race
    is protected under Title VII. See 
    Feist, 730 F.3d at 454
    . However, this complaint
    cannot prove that Envirogreen retaliated against him; Allen submitted his
    complaint with the LHCR and EEOC months after he was fired. Any alleged
    workplace retaliation necessarily pre-dated his submission of the complaint.
    Therefore, the LHCR and EEOC complaint cannot support his retaliation
    claim.
    Second, Allen contends that his verbal complaints to Willie and Griffin
    about the “wages paid, hours of work, and working conditions” constituted
    “opposition to [Envirogreen’s] discriminatory employment practices” and thus
    he engaged in activity protected under Title VII. In a claim of protected
    opposition, an employee must at least have referred to conduct that could
    plausibly be considered discriminatory in intent or effect, thereby alerting the
    employer of its discriminatory practices. See, e.g., Turner v. Baylor Richardson
    Med. Ctr., 
    476 F.3d 337
    , 349 (5th Cir. 2007). A vague complaint or general
    allegation of unfair treatment, without any reference to an unlawful
    employment practice under Title VII, does not constitute protected activity.
    See Davis v. Dall. Indep. Sch. Dist., 448 F. App’x 485, 493 (5th Cir. 2011)
    (unpublished) (per curiam) (finding that a statement complaining about a
    “hostile work environment” did not constitute protected activity under Title
    VII because it “lacked a racial or gender basis”); Tratree v. BP N. Am. Pipelines,
    Inc., 277 F. App’x 390, 396 (5th Cir. 2008) (unpublished) (per curiam)
    (“Complaining about unfair treatment without specifying why the treatment
    is unfair, however, is not a protected activity”); Harris-Childs v. Medco Health
    Sols., Inc., 169 F. App’x 913, 916 (5th Cir. 2006) (per curiam) (finding that an
    employee did not engage in protected activity when she complained of
    harassment but did not mention race or sex). Complaints about wages, hours
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    of work, and working conditions are protected under § 15(a)(3) of the Fair
    Labor Standards Act (“FLSA”) of 1938, 29 U.S.C. § 215(a)(3), but protected
    activity under Title VII must relate to discriminatory practices based on race,
    color, religion, sex, or national origin. See 42 U.S.C. § 2000e-2(a)(1).
    When his pro se complaint is liberally construed, 2 Allen claims that he
    complained to Willie and Griffin about a wage disparity based on race. He then
    argues that he was retaliated against after complaining about this pay
    disparity, and that he was paid less because of his race. On appeal, Allen
    maintains that “the true basis of the case” was his race. In support of his
    assertion, Allen points to interrogatories where he attributed his incorrect pay
    rate to “race and my opposition to their discriminatory action.” Taken at face
    value, Allen has consistently argued that race was an underlying factor in his
    complaint, and he appears to have engaged in protected activity under Title
    VII.
    On the other hand, Envirogreen demonstrates that Allen has
    consistently downplayed the role that race played in his complaint to Willie
    and Griffin. When Allen describes his opposition to “discriminatory
    employment practices,” he refers only to his complaint to Willie regarding
    “wages paid, hours of work, and working conditions.” On appeal, he describes
    his opposition as “first, explicitly confronting Mark Willie . . . about the
    contract agreement, pay rate, failure to pay overtime, and supervisor position.”
    In his deposition, Allen testified that he complained about his wages, a breach
    of what he believed to be a salary agreement between him and Willie, and a
    lack of overtime pay. Allen believed that he and Willie agreed that Allen would
    be paid $15 per hour, but Allen was instead paid $14 per hour and denied
    This court liberally construes pro se litigant briefs, but pro se litigants must still
    2
    argue issues to preserve them for appeal. Thomas v. La., Dep’t of Soc. Servs., 406 F. App’x
    890, 894 (5th Cir. 2010) (citing Longoria v. Dretke, 
    507 F.3d 898
    , 901 (5th Cir. 2007)).
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    overtime pay. Importantly, Allen did not know what other employees were
    paid. Thus, he could not have complained about unfair treatment by comparing
    his wages to a similarly situated white employee. When asked if Envirogreen’s
    wage practices had anything to do with race, Allen responded that he thought
    “mostly [Willie] was doing it because he was greedy.” Instead of explicitly
    describing that his complaint was about racial discrimination, he only
    surmises that Envirogreen’s motives in originally failing to pay him overtime
    pay and at the agreed upon rate “were a result of the appellant’s RACE.” In
    pointing to these responses, Envirogreen, as movant, has shown that the
    record does not support Allen’s claim that he engaged in protected activity
    under Title VII.
    In response, Allen does not provide evidence suggesting a dispute of
    material fact. Allen describes many of Envirogreen’s actions as discriminatory,
    but these allegedly discriminatory actions provide little support for a finding
    that Allen complained to Willie and Griffin about discriminatory practices
    based on race. For example, Allen argued that Envirogreen engaged in wage
    discrimination based on race, and Envirogreen “reneged on all his verbal
    agreements” because Allen was blackHe supports this assertion by offering a
    comparator, arguing that “[a] white supervisor by the name of Rick Steele was
    paid accordingly.” Allen similarly testified that he believed he was terminated
    due to his complaint because “all the blacks was working on this level and the
    whites, but my reason I think it was retaliation because I complained.” These
    examples appear to describe unlawful employment practices under Title VII,
    see 42 U.S.C. § 2000e-2, and perhaps would suffice to support a claim of
    discrimination, but they do little to clarify the nature of Allen’s complaint to
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    Willie and Griffin. 3 In describing that conversation, Allen only asserts that he
    complained about Envirogreen’s “discriminatory employment practices” and
    that Envirogreen’s took discriminatory action “because of his race.” However,
    Allen does not provide supporting evidence for these statements by reference
    to the record. “Summary judgment may not be thwarted by conclusional
    allegations, unsupported assertions, or presentation of only a scintilla of
    evidence.” 
    McFaul, 684 F.3d at 571
    . Allen thus has not demonstrated that his
    complaint was made in opposition to discrimination based on race.
    Although we review the summary judgment record in the light most
    favorable to the non-movant, we do not believe that Allen has demonstrated
    that he complained to Envirogreen about racial discrimination. A party
    contesting summary judgment by asserting that a fact is genuinely disputed
    must support the assertion by citing particular materials in the record. Fed. R.
    Civ. P. 56(c). Because Allen has not shown that he engaged in an activity
    protected under Title VII by reference to specific facts in the record, he has not
    established a prima facie case for retaliation. Thus, the district court’s grant of
    summary judgment was proper.
    B.     Motion for Reconsideration
    We review a district court’s decision on a Rule 59 motion to reconsider
    for abuse of discretion. In re La. Crawfish Producers, 
    852 F.3d 456
    , 462 (5th
    Cir. 2017). “Under this standard of review, the district court’s decision and
    3 Allen cites to EEOC filings in support of his claim, but these cases address the issue
    of wage discrimination based on race, not retaliation for opposing unlawful practices under
    Title VII. See EEOC v. Corp. Express Office Prods., No. 3:09-cv-00516, 2009 BL 251569 (M.D.
    La. Nov. 23, 2009); EEOC v. Orkin, Inc., No. 05-2657-Ma/P (W.D. Tenn. May 26, 2006);
    EEOC, United Air Temp / Air Conditioning & Heating, Inc. Sued by EEOC for Race
    Discrimination, 
    2011 WL 970470
    (Mar. 21, 2011). As mentioned above, Allen’s argument
    could perhaps support a claim of retaliation under the FLSA or discrimination under Title
    VII, but Allen brought neither of those claims in district court. Although pro se complaints
    are liberally construed, issues still must be briefed to be considered. See Thomas, 406 F. App’x
    at 894.
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    decision-making process need only be reasonable.” Templet v. HydroChem Inc.,
    
    367 F.3d 473
    , 477 (5th Cir. 2004) (citing Ford Motor Credit Co. v. Bright, 
    34 F.3d 322
    , 324 (5th Cir. 1994)). But to the extent that a ruling involved a
    reconsideration of a question of law, “the standard of review is de novo.” Ross
    v. Marshall, 
    426 F.3d 745
    , 763 (5th Cir. 2005) (citation omitted). Because
    Allen’s motion “calls into question the correctness” of the judgment, we
    consider it under Rule 59(e). See 
    Templet, 367 F.3d at 478
    (quoting In re
    Transtexas Gas Corp., 
    303 F.3d 571
    , 581 (5th Cir. 2002)). Rule 59(e) motions
    serve “the narrow purpose of allowing a party to correct manifest errors of law
    or fact or to present newly discovered evidence.” 
    Id. (quoting Waltman
    v. Int’l
    Paper Co., 
    875 F.2d 468
    , 473 (5th Cir. 1989)). “Reconsideration of a judgment
    after its entry is an extraordinary remedy that should be used sparingly.” 
    Id. at 479
    (citation omitted). Accordingly, a motion for reconsideration “is not the
    proper vehicle for rehashing evidence, legal theories, or arguments that could
    have been offered or raised before the entry of judgment.” 
    Id. (citation omitted).
    A party’s “unexcused failure to present evidence available at the time of
    summary judgment provides a valid basis for denying a subsequent motion for
    reconsideration.” ICEE Distribs., Inc. v. J&J Snack Foods Corp., 
    445 F.3d 841
    ,
    847 (5th Cir. 2006) (quoting 
    Templet, 367 F.3d at 479
    ). As a result, a Rule 59(e)
    motion “should only be granted where there is new evidence that (1) probably
    changes the outcome of the case; (2) could not have been discovered earlier by
    proper diligence; and (3) is not merely cumulative or impeaching.” Molina v.
    Equistar Chems. L.P., 261 F. App’x 729, 733 (5th Cir. 2008) (unpublished).
    Allen argues that the court erred in denying his Rule 59 motion to
    reconsider the judgment. Allen raised three issues in his motion: (1) the court
    made a mistake of law in regard to Title VII not protecting wage issues; (2) the
    court overlooked record evidence; and (3) Envirogreen never offered
    evidentiary support that it did not discriminate against Allen. The district
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    court rejected all three arguments. On appeal, Allen argues that the court did
    not apply the appropriate law in ruling on his Motion for Reconsideration in
    light of new evidence, specifically his Review of Action letter to the EEOC, and
    showed clear error based on false statements made by Envirogreen in its
    motion for summary judgment. We conclude that the district court did not
    abuse its discretion when it refused to reconsider the judgment.
    First, Allen argued that the court made a mistake of law in regard to
    Title VII not protecting wage issues. The district court rejected this argument,
    reasoning that Allen cited no authority in support of his argument that Title
    VII protects wage issues. Unlawful activities under Title VII are limited to
    “fail[ing] or refus[ing] to hire or to discharge any individual, or otherwise to
    discriminate against any individual with respect to his compensation, terms,
    conditions, or privileges of employment, because of such individual’s race,
    color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Although Title
    VII    prohibits   racial   discrimination   with    respect     to   compensation,
    compensation issues are not protected by Title VII when they do not allege
    discrimination based on race, color, religion, sex, or national origin. The district
    court’s conclusion was thus not a “manifest error of law.” 
    Waltman, 875 F.2d at 473
    . The district court therefore did not commit legal error.
    Next, the district court noted that the evidence Allen presented in his
    motion was available and considered by the court in its ruling on the summary
    judgment motion. We find the district court’s approach reasonable. Allen did
    not present new evidence in his motion for reconsideration. Allen cannot use
    his motion for reconsideration to rehash evidence, legal theories, or arguments
    that could have been offered or raised before the entry of judgment. 
    Templet, 367 F.3d at 479
    . Thus, Allen’s motion for reconsideration did not serve the
    narrow purpose of Rule 59, and the district court did not act improperly when
    it denied his motion.
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    On appeal, Allen raises a different issue by presenting “new” evidence in
    the form of an EEOC review letter dated May 10, 2014. The district court,
    however, granted summary judgment on May 3, 2016. Allen offers no excuse
    for his failure to timely present this letter as evidence. Thus, this new evidence
    cannot justify granting his motion for reconsideration. See 
    Templet, 367 F.3d at 479
    . We conclude that the district court did not err in denying Allen’s Rule
    59 Motion for Reconsideration of the judgment.
    III. CONCLUSION
    For the foregoing reasons, we AFFIRM the district court’s grant of
    summary judgment and denial of Allen’s motion for reconsideration of the
    judgment under Rule 59.
    14