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


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  •                                                  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    this opinion should not be published and is not precedent except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
    2
    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
    3
    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”.
    4
    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.
    5
    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
    6
    

Document Info

Docket Number: 06-20429

Citation Numbers: 221 F. App'x 308

Judges: Davis, Barksdale, Benavides

Filed Date: 1/30/2007

Precedential Status: Non-Precedential

Modified Date: 11/5/2024