affirming district court's holding that claims "raised for the first time in response to the defendant's summary judgment motion, were not properly before the court."Summary of this case from Simms v. Barbour
No. 06-20796, Summary Calendar.
August 15, 2007.
Jose A. Gomez, Houston, TX, for Plaintiff-Appellant.
Fred Eric Wahrlich, Munsch, Hardt, Kopf Harr, Houston, TX, David K. Montgomery, Keating, Muething Klekamp, Cincinnati, OH, for Defendant-Appellee.
Appeal from the United States District Court for the Southern District of Texas, No. 4:05-CV-2222.
Before SMITH, WIENER, and OWEN, Circuit Judges.
After Jose Gomez was denied a promotion, he sued his employer, LSI Integrated L.P., alleging age, national origin, and religious discrimination pursuant to Title VII, the Age Discrimination in Employment Act (ADEA), and 42 U.S.C. § 1981. The district court granted LSI's motion for summary judgment on all of the plaintiffs discrimination claims. The district court also concluded that Gomez's retaliation claims, which were raised for the first time in response to the defendant's summary judgment motion, were not properly before the court and, in any event, meritless.
42 U.S.C. §§ 2000e to 2000e-17.
City of Shoreacres v. Waterworth, 420 F.3d 440, 445 (5th Cir. 2005).
1. To establish a prima facie case of discrimination in a failure to promote case, Gomez must show that he was qualified for the position he sought. According to LSI's neutral promotion policy, a position applied for must be the next level in the applicant's job progression or the applicant must be "otherwise qualified." Under the promotion policy, an applicant is "otherwise qualified" if he "worked previously in the applied for job progression at a qualifying grade." At the time Gomez applied for the promotion at issue, Gomez was employed as a grade 5 machine operator. The promotion Gomez sought was a grade 15 team leader position, which was not the next level in his job progression. Moreover, there was no evidence that Gomez was otherwise qualified.
Blow v. City of San Antonio, 236 F.3d 293, 296 (5th Cir. 2001).
2. Gomez alleges that a former supervisor's comments in 2001 are direct evidence of age and religious discrimination. However, that supervisor was terminated shortly after those comments were allegedly made, he was not employed by LSI at the time the promotion decision was made, and there is no allegation that he either participated in the decision to deny Gomez the promotion or otherwise influenced the decisionmakers. The comments are too remote in time to the 2004 employment decision to be considered direct evidence of age or religious discrimination.
See Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400, 405 (5th Cir. 2001) (finding a comment made "nearly a year" before the challenged employment decision too remote); Brown v. CSC Logic, 82 F.3d 651, 655-56 (5th Cir. 1996) (finding a supervisor's comments, including one comment made 16 months before the employment decision at issue, to be too "vague, indirect, and remote in time" to support a finding of discrimination).
3. Gomez did not assert a § 1981 retaliation claim in his original complaint before the district court and neither amended nor sought leave to amend his complaint to add a charge of retaliation. As a result, the district court correctly determined that the retaliation claim was not properly before the court, and such claim is beyond the scope of this appeal. Gomez has not appealed the district court's disposition of his similarly unpled Title VII and ADEA retaliation claims.
See FED.R.CIV.P. 3 ("A civil action is commenced by the filing of a complaint with the court."); FED.R.CIV.P. 15 (governing amended and supplemental pleadings); see also Roeder v. Am. Postal Workers Union, AFL-CIO, 180 F.3d 733, 737 n. 4 (6th Cir. 1999) (refusing to consider on appeal unpled claim that was raised for the first time in response to a motion for summary judgment); Wilson v. First Houston Inv. Corp., 566 F.2d 1235, 1243 (5th Cir. 1978) (finding claims not raised in the complaint beyond the scope of the appeal), judgment vacated on other grounds, 444 U.S. 959, 100 S.Ct. 442, 62 L.Ed.2d 371 (1979).