Shepherd v. Gulf Coast Community Services , 221 F. App'x 308 ( 2007 )

United States Court of Appeals
Fifth Circuit
UNITED STATES COURT OF APPEALS F I L E D
FIFTH CIRCUIT
January 30, 2007
Charles R. Fulbruge III
Clerk
No. 06-20429
Summary Calendar
DONALD R SHEPHERD,
Plaintiff - Appellant,
versus
GULF COAST COMMUNITY SERVICES; CHUBB GROUP OF INSURANCE
COMPANIES,
Defendants - Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(4:05-CV-4330)
_________________________________________________________________
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges
PER CURIAM:*
Donald R. Shepherd challenges an adverse summary judgment. He
does so only on procedural grounds.
Shepherd, a black male, was hired by the Gulf Coast Community
Services Association (Gulf Coast) in March 1998. Gulf Coast is a
non-profit organization which provides community service programs
to low-income and disadvantaged families in Harris County, Texas.
*
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this opinion should not be published and is not precedent except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.
Soon after he was hired, Shepherd was promoted to Finance Director
and served in this capacity throughout his tenure at Gulf Coast.
Because of Gulf Coast’s non-profit status, Shepherd’s
responsibilities included ensuring compliance with various federal
regulations.
In December 2003, Dr. Jonita Solomon, a black female, became
the Executive Director of Gulf Coast. In March 2004, Solomon
terminated Shepherd.
Pursuant to Gulf Coast’s internal grievance procedures,
Shepherd appealed his termination, contending that, because a
majority of his salary came through a Head Start grant, only Gulf
Coast’s Head Start Policy Council (Policy Council) had the
authority to approve his termination. The Policy Council
“disapprove[d]” Solomon’s termination recommendation. Gulf Coast’s
Board of Directors, however, affirmed Solomon’s decision. In June
2004, Shepherd’s was placed on paid administrative leave while a
neutral arbitrator was engaged to resolve the dispute. On 19
January 2005, Shepherd’s termination was approved by the Policy
Council and Gulf Coast’s Board of Directors; Shepherd was notified
on 31 January.
Shepherd filed a complaint with the Equal Employment
Opportunity Commission (EEOC) on 5 April 2005, claiming he was
terminated because of: his “refus[al] to violate federal laws,
regulations, and polices and procedures”; and his race. In
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September 2005, the EEOC dismissed his claim and provided Shepherd
a “right to sue” letter.
Shepherd filed this action claiming, inter alia: termination
on account of race and exposure to a hostile work environment, in
violation of 42 U.S.C. § 2000e-2(a); retaliatory discharge, in
violation of the “whistleblower” protection provision of the False
Claims Act, 31 U.S.C. § 3730(h), for refusing to approve fraudulent
transactions in violation of federal law; and, under state law,
intentional infliction of emotional distress.
In April 2006, the district court held a pre-trial conference.
The court’s order setting the conference noted the court could rule
on motions “pending or made at the conference”. In addition, the
court’s internal procedures, referenced in the order and available
online, stated: “At every pretrial conference, counsel must be
prepared to address the facts and law, all pending and anticipated
motions, jurisdictional and procedural matters, narrowing
substantive issues, and stipulations. The court will dismiss
claims and defenses with no realistic, articulable factual or legal
basis”.
At the pretrial conference, the court questioned Shepherd’s
counsel extensively with regard to each claim. Shepherd’s counsel
failed to properly articulate the basis of any of them, at one
point even telling the court Shepherd “never alleged race”. The
district court then advised Shepherd’s counsel that he was
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considering taking Gulf Coast’s oral summary-judgment motion and
asked whether he had any objections. (Gulf Coast had not moved for
summary judgment, however.) Shepherd’s counsel said he did not.
The court then sua sponte granted summary judgment for Gulf Coast.
Again, Shepherd’s counsel did not object. (In addition, the court
subsequently granted attorney’s fees against Shepherd and his
counsel, who is also counsel on appeal.)
Shepherd contests only the summary-judgment procedures
followed by the court. Shepherd first claims that, under Federal
Rule of Civil Procedure 56(c), a summary-judgment motion may be
initiated only by a party. As this court has noted previously,
however, “it is well-settled that a district court may grant
summary judgment sua sponte, so long as the losing party has ten
days notice to come forward with all of its evidence in opposition
to summary judgment”. Love v. Nat’l Med. Enters., 230 F.3d 765,
770 (5th Cir. 2000) (internal citations and quotations omitted).
Shepherd next contends that, even if the sua sponte motion was
proper, the district court erred by not giving the requisite ten-
day notice. The failure to do so is generally reviewed for
harmless error. Ross v. Univ. of Tex. at San Antonio, 139 F.3d
521, 527 (5th Cir. 1998). Error may be harmless where either the
“nonmovant has no additional evidence or if all of the nonmovant’s
additional evidence is reviewed by the appellate court and none of
the evidence presents a genuine issue of material fact”.
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Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Unit, 28 F.3d 1388, 1398 (5th Cir. 1990) (internal
quotations and citations omitted). But, because Shepherd did not
object to this lack of notice or challenge the “procedural
propriety of the summary judgment ruling” and does so now for the
first time on appeal, we review only for plain error. Love, 230
F.3d at 771. (Arguably, because Shepherd’s counsel stated he had
no objections, any claimed error was invited.)
We find none. Shepherd does not state how he was prejudiced
by the lack of notice or what evidence he would have produced to
create a material fact issue. Cf. Exxon Corp. v. St. Paul Fire &
Marine Ins. Co., 129 F.3d 781, 787 (5th Cir. 1997) (“The fact that
St. Paul did not object to the district court’s [sua sponte summary
judgment grant] or request a new trial or rehearing ... indicates
that St. Paul had no further evidence to present or argument to
make regarding any material dispute of fact”).
Shepherd does claim that, given the opportunity for discovery
he would have uncovered more evidence in support of his claims.
“Rule 56 does not require that any discovery take place before
summary judgment can be granted; if a party cannot adequately
defend such a motion Rule 56(f) is his remedy.” Washington v.
Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990) (internal
citation omitted). Shepherd was given the opportunity to present
this contention to the district court but he neglected to do so.
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Even now, he does not articulate what evidence in support of his
claim would be found with additional discovery. See id. (Rule 56
“may not be invoked by the mere assertion that discovery is
incomplete; the opposing party must demonstrate how the additional
time will enable him to rebut the movant's allegations of no
genuine issue of fact”) (internal citations and quotations
omitted).
AFFIRMED
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