Christ Christianity v. TX Dept Cr Justice

United States Court of Appeals
Fifth Circuit
F I L E D
December 7, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
Summary Calendar
m 06-10114
_______________
CHRIST CHRISTIANITY PARTY, ET AL.,
Plaintiffs,
SENECA L. LEE,
Plaintiff-Appellant,
VERSUS
TEXAS DEPARTMENT OF CRIMINAL JUSTICE; ET AL.,
Defendants,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 4:04-CV-108
_________________________

-- 1 of 3 --

Before SMITH, WIENER, and OWEN,
Circuit Judges.
PER CURIAM:*
Seneca Lee appeals a judgment in favor of
the Texas Department of Criminal Justice
(TDCJ”) dismissing his employment discrimi-
nation claim. Because Lee has failed to estab-
lish a prima facie case of discrimination, and
because the district court did not abuse its dis-
cretion in refusing to allow him to amend his
complaint, we affirm.
I.
Because Lee is pro se, we liberally construe
his briefs and apply less stringent standards in
interpreting his arguments than we would in
the case of a counseled party. Grant v. Cuel-
lar, 59 F.3d 523, 524 (5th Cir. 1995). We
read Lee’s brief as arguing that the district
court incorrectly applied the McDonnell
Douglas burden-shifting standard in holding
that Lee had failed to prove a prima facie case
of employment discrimination. See McDonnell
Douglas v. Green, 411 U.S. 792 (1973). We
also read Lee’s brief as arguing that he should
have been allowed to amend his pleadings to
add claims pursuant to chapter 10 of the Texas
Civil Practice and Remedies Code and titles II,
III, and VII of the Civil Rights Act of 1964.
Lee is a former employee of the TDCJ. In
January 2001 he was terminated for cause
from his position as a Correctional Officer. It
is undisputed that the TDCJ issued guidelines
before June 2003 that did not permit rehiring
of applicants who had been dismissed for
cause within the previous ten years. In June
2003 Lee applied for reinstatement, but his
application was denied. He alleges, through
conclusional affidavits, that the TDCJ has re-
hired correctional officers in violation of these
guidelines.
Lee brought claims on behalf of himself and
the Christ Christianity Party under titles II and
VII, the First and Fifth Amendments, and
chapter 10 of the Texas Civil Practice and
Remedies code, alleging that the TDCJ refused
to reinstate him because he is black and had
distributed Christian literature to inmates. All
claims by the Christ Christianity Party and Lee
were dismissed except for Lee’s title VII claim
based on racial discrimination. An appeal from
the partial dismissal was dismissed for lack of
appellate jurisdiction.
Lee sought to amend his complaint to add
claims under chapter 10 of the Texas Civil
Practice and Remedies Code, Titles II, III, and
VII, and the First Amendment. His motion to
amend was denied, and the TDCJ’s motion for
summary judgment was granted.
II.
We review a summary judgment de novo.
Morris v. Powell, 449 F.3d 682, 684 (5th Cir.
2005). All justifiable inferences to be drawn
from the underlying facts must be viewed in
the light most favorable to the nonmoving par-
ty. Minter v. Great Am. Ins. Co., 423 F.3d
460, 465 (5th Cir. 2005). Summary judgment
is appropriate where the record demonstrates
that there is no issue of material fact and the
moving party is entitled to judgment as a mat-
ter of law. Martinez v. Bally’s La., Inc., 244
F.3d 474, 476 (5th Cir. 2001).
To survive summary judgment, a plaintiff in
a discrimination case must establish a prima
facie case of discrimination through direct evi-
dence of discriminatory intent or the shifting-
burden test of McDonnell Douglas. See
Reeves v. Sanderson Plumbing Prods. Inc.,
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

-- 2 of 3 --

530 U.S. 133, 141 (2000). Lee has presented
no direct evidence of discrimination, so he
must proceed under the shifting-burden test.
A plaintiff can establish a prima facie case by
showing that he (1) is a member of a protected
class; (2) was qualified for the position; and
(3) was not hired; and (4) the position was
filled by someone outside the protected class,
or other similarly situated persons were treated
more favorably. See, e.g., Septimus v. Univ.
of Houston, 399 F.2d 601, 609 (5th Cir.
2005).
The TDCJ has presented undisputed evi-
dence that one qualification for the position of
Correctional Officer is that the applicant not
have been terminated for cause within the pre-
vious ten years. Lee has not presented any
competent evidence that this requirement is a
pretext.1 He cannot establish a prima facie
case, because he is not qualified for the posi-
tion. The TDCJ is entitled to summary judg-
ment.
III.
Lee appeals the denial of his motion to
amend his pleadings to add claims pursuant to
additional legal theories. A ruling on a motion
to amend pleadings is reviewed for abuse of
discretion. Smith v. EMC Corp., 393 F.3d
590, 595 (5th Cir. 2004). Without addressing
whether Lee has a statutory right to bring a
discrimination claim under his other legal the-
ories, we note that for him to bring a claim of
discrimination under any theory, he will need
to prove a prima facie case of discrimination.
Because he has presented no evidence of direct
discrimination, no evidence sufficient to meet
the burden-shifting test under McDonnell
Douglas, and no evidence of a disparate
impact from the TDCJ’s policies, Lee’s claims
would be legally insufficient under any theory
of discrimination.2 The district court did not
abuse its discretion in denying the motion to
file an amended complaint.
AFFIRMED.
1 See, e.g., Young v. Equifax Credit Info.
Servs., Inc., 294 F.3d 631, 639 (5th Cir. 2002)
(“Conclusory affidavits are not sufficient to defeat
a motion for summary judgment.”).
2 Cf. Fabela v. Socorro Indep. Sch. Dist., 329
F.3d 414-15 (5th Cir. 2003) (outlining the methods
of proving a prima facie case of discrimination un-
der title VII); Reeves, 530 U.S. at 141-42 (apply-
ing McDonnell Douglas framework to ADEA
claim).

-- 3 of 3 --