Smith v. FTS USA/Unitek Global Service ( 2017 )

Case: 16-60425 Document: 00513842685 Page: 1 Date Filed: 01/20/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-60425 FILED
Summary Calendar January 20, 2017
Lyle W. Cayce
Clerk
HERMAN EUGENE SMITH, SR.,
Plaintiff - Appellant
v.
FTS USA/UNITEK GLOBAL SERVICE,
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:13-CV-312
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
Herman Eugene Smith, Sr., proceeding pro se, appeals the district
court’s grant of FTS USA, LLC’s motion for summary judgment and implied
denial of his motion to compel. For the reasons stated below, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 16-60425
I.
Smith is a black male who was hired to work as a cable installation
technician for FTS in 2010. Eighteen months later, when he was fifty-seven
years old, he applied for and was denied a promotion as a field trainer. The
promotion was instead given to a twenty-five year old white co-worker. Smith
sued, alleging discrimination under Title VII and the Age Discrimination in
Employment Act of 1967 (“ADEA”). Pursuant to the district court’s case
management order, the parties exchanged discovery requests. At the close of
discovery, FTS moved for summary judgment.
FTS raised a number of general and specific objections to Smith’s
interrogatories. Although dissatisfied with FTS’s responses, Smith did not file
a motion to compel until a month and a half after the close of discovery—after
FTS’s motion for summary judgment had been fully briefed. The district court
did not address Smith’s motion to compel, but instead granted FTS’s motion
for summary judgment and closed the case. Smith timely appealed.
II.
As an initial matter, Smith has failed to support his contentions with
“citations to the authorities and parts of the record on which [he] relies.” Fed.
R. App. P. 28(a)(8)(A). Although this court “liberally construe[s] briefs of pro se
litigants and appl[ies] less stringent standards to parties proceeding pro se
than to parties represented by counsel, pro se parties must still brief the issues
and reasonably comply with the standards of Rule 28.” Grant v. Cuellar, 59
F.3d 523, 524 (5th Cir. 1995) (per curiam) (footnote omitted). The court
nonetheless has discretion to consider a noncompliant brief “when the deficient
brief does not prejudice the opposing party.” People’s United Equip. Fin. Corp.
v. Hartmann, 447 F. App’x 522, 524 (5th Cir. 2011) (citing Price v. Digital
Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988)). Because FTS addresses all
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relevant issues on appeal, we find no prejudice and proceed to consider each
issue in turn.
A. Motion to Compel
Smith first argues that he is entitled to “declaration [sic] and injunctive
relief relating to the District Court’s failure to grant [his] Motion to Compel.”
Although not entirely clear, he appears to argue that by “fail[ing] to intervene
or inform plaintiff of any ruling on said motion to compel” the district court
abused its discretion by “allow[ing] critical information to remain suppressed.”
We disagree.
While the district court did not specifically address Smith’s motion, it
was denied by implication when the district court granted FTS’s motion for
summary judgment and closed the case. As we have previously held, a “court
may grant summary judgment any time before trial.” Guillory v. Domtar
Indus. Inc., 95 F.3d 1320, 1328 (5th Cir. 1996). A district court need not wait
to resolve a summary judgment motion until after all discovery motions have
been handled—especially if the pending discovery motions do not comport with
the court’s procedural requirements. Greer v. Bramhall, 77 F. App’x 254, 255
(5th Cir. 2003) (per curiam).
Here, the motion to compel clearly did not comply with the district court’s
procedural rules. Local Civil Rule 7(b)(11) of the Southern District of
Mississippi specifies that “[a]ny nondispositive motion served beyond the
motion deadline imposed in the Case Management Order may be denied solely
because the motion is not timely served.” Because Smith did not file his motion
to compel until approximately a month after the motion deadline, the district
court did not abuse its discretion by not addressing Smith’s motion to compel
before granting FTS’s motion for summary judgment.
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B. Motion for Summary Judgment
Smith also appeals the district court’s grant of summary judgment. “We
review a grant of summary judgment de novo, viewing all evidence in the light
most favorable to the nonmoving party and drawing all reasonable inferences
in that party’s favor.” Kariuki v. Tarango, 709 F.3d 495, 501 (5th Cir. 2013).
Summary judgment is appropriate where “the movant shows that 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).
In his amended complaint, Smith advanced three theories of race and
age discrimination under Title VII and the ADEA: (1) that FTS created a
hostile work environment where Smith was “subjected to a series of verbal
threats, intimidation, and unfair disciplinary actions based in whole or in part
upon his race and age”; (2) that FTS failed to promote Smith on account of his
age or race; and (3) that FTS unlawfully took away Smith’s privileges,
decreased his pay, and ultimately terminated his employment in retaliation
for complaining about being passed over for promotion. The district court
granted summary judgment on each of these claims, ultimately finding that
Smith failed to support his allegations with any evidence in the record, relying
instead on his unsworn pleadings and materials. We agree.
“Although pro se litigants are not held to the same standards of
compliance with formal or technical pleading rules applied to attorneys, we
have never allowed such litigants to oppose summary judgments by the use of
unsworn materials.” Gordon v. Watson, 622 F.2d 120, 123 (5th Cir. 1980) (per
curiam). On the contrary, we have held that district courts should “properly
discount[]” those materials which are “unsworn and uncertified.” Spencer v.
Cain, 480 F. App’x 259, 261 (5th Cir. 2010) (per curiam). Having failed to
provide other evidence to challenge FTS’s summary judgment claims, Smith
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has failed to raise a genuine issue of material fact on any of his Title VII or
ADEA counts.
III.
For the reasons stated above, we AFFIRM the district court’s grant of
FTS’s motion for summary judgment.
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