Dieter Finch v. Texas Dept of Criminal Justice

Case: 13-20292 Document: 00512471627 Page: 1 Date Filed: 12/16/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-20292
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
December 16, 2013
DIETER M. FINCH,
Lyle W. Cayce
Clerk
Plaintiff - Appellant
v.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CV-3675
Before KING, DAVIS, and SMITH, Circuit Judges.
PER CURIAM:*
Dieter M. Finch filed a lawsuit in federal district court alleging that he
was unlawfully terminated from his employment at the Texas Department of
Criminal Justice (“TDCJ”) on the basis of age, race, and national origin, and in
retaliation for prior reporting of discrimination. The district court dismissed
Finch’s age discrimination claim with prejudice and later entered summary
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-20292 Document: 00512471627 Page: 2 Date Filed: 12/16/2013
No. 13-20292
judgment in favor of TDCJ on his remaining claims. Finch appeals the
judgment of the district court. For the reasons that follow, we AFFIRM.
Finch worked as a law library supervisor for TDCJ at a state prison
located in Sugarland, Texas. Finch was terminated in March 2011; thereafter,
he filed a charge of discrimination with the EEOC. In a check-the-box section
of the form, Finch indicated that the unlawful discrimination was based on
age, national origin, and retaliation.
After receiving a right-to-sue letter from the EEOC, Finch filed this
lawsuit in federal court. He submitted a form employment discrimination
complaint, which alleged he was terminated from his employment on the basis
of race, national origin, age, and retaliation. The district court dismissed
Finch’s age-discrimination claim with prejudice because TDCJ had not waived
sovereign immunity, rendering the district court without subject-matter
jurisdiction over the claim. TDCJ later moved for summary judgment on the
remaining claims. The district court held a motion hearing, at which time it
granted summary judgment and orally explained its findings on the record.
The district court held that Finch had failed to exhaust his race claim since it
was not included in his EEOC complaint. Turning to the national origin and
retaliation claims, the court found that Finch had not plead any facts in the
narrative summary section of his charge of discrimination to support these
claims. Thus, the claims were not properly exhausted even though the related
boxes had been marked. Nonetheless, the court proceeded to address the
merits of these claims and held that Finch had not established a prima facie
case for either claim. The court entered a final judgment in TDCJ’s favor that
day.
Finch timely appealed the judgment of the district court. On appeal, he
identifies one issue for review: “Did the District Court err in holding that TDCJ
had the right to terminate Finch’s employment on the basis of the AT-WILL
2
Case: 13-20292 Document: 00512471627 Page: 3 Date Filed: 12/16/2013
No. 13-20292
employment doctrine.” Finch’s appeal enumerates a myriad of exceptions to
the at-will doctrine, including, inter alia, “federal law,” “Title VII,” and the
“ADEA.”
Finch is proceeding pro se, and we liberally construe the briefs of pro se
litigants. Andrade v. Gonzales, 459 F.3d 538, 543 (5th Cir. 2006). However,
we still require that a pro se litigant brief an argument in order for it to be
preserved. Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). “As a general
rule, this Court does not review issues raised for the first time on appeal,” even
when the appellant is pro se. Id.
Finch’s lawsuit alleged claims of employment discrimination on the basis
of age, race, national origin, and retaliation. His appeal is the first time that
he has raised the matter of at-will employment. A liberal reading of his brief
reveals that he tangentially mentions the relevant federal law on which he
based his original discrimination claims, but he does not discuss these statutes
in a meaningful way. He does not directly address either the district court’s
order dismissing his ADEA claim or the court’s oral ruling entering summary
judgment on his race, national origin, and retaliation claims; rather, Finch
generally asserts that the rulings were erroneous. Furthermore, the district
court did not discuss contract issues such as at-will employment as a
justification for denying Finch’s Title VII discrimination claims. Since we may
not consider his at-will employment argument, and since Finch does not
challenge the specific legal reasoning of the district court, we AFFIRM the
judgment of the district court.
AFFIRMED.
3