IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-10880
Summary Calendar
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DELORES COOK-ADAMS,
Plaintiff-Appellant,
versus
SOUTHWESTERN BELL TELEPHONE COMPANY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
(97-CV-1629-G)
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July 6, 1999
Before JOLLY, SMITH and WIENER, Circuit Judges.
Per Curiam*
In this appeal from the dismissal of her employment
discrimination suit, asserted under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981,1
*
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this opinion should not be published and is not precedent except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.
1
Although Cook-Adams’s claims are not entirely clear from the
face of her complaint, the district court assumed, for purposes of
summary judgment, that she had alleged not only claims of race
discrimination under Title VII and § 1981 but also claims of age
discrimination under the ADEA, disability discrimination under the
ADA and intentional infliction of emotional distress under Texas
law. As Cook-Adams has failed to advance on appeal any claim other
than race discrimination, however, we deem any other claims
abandoned. Koetting v. Thompson, 995 F.2d 37, 39 n.1 (5th Cir.
1993).
Plaintiff-Appellant Delores Cook-Adams asks us to reverse the
district court’s grant of summary judgment in favor of Defendant-
Appellee Southwestern Bell Telephone Company (“SWBT”). Cook-Adams
complains that the district court (1) abused its discretion by
denying her motion to set aside the judgment to permit the filing
and consideration of a delinquent response to SWBT’s summary
judgment motion and (2) erred in finding her summary judgment
evidence insufficient to raise a genuine issue of material fact as
to whether SWBT’s proffered reason for firing her was in fact a
pretext for racial discrimination.
As a threshold matter, we conclude that the district court did
not abuse its discretion by denying Cook-Adams’s motion to set
aside the judgment. SWBT filed its motion for summary judgment on
June 4, 1998. Cook-Adams’s response was due 20 days later on June
24.1 The court entered judgment in favor of SWBT on June 30 and,
on July 1, Cook-Adams filed her motion to set aside that judgment
to permit the consideration of her late-filed opposition brief.
Seven days later on July 8, the district court denied Cook-Adams’s
motion concluding that an unexcused failure to present evidence
that is available at the time of summary judgment provides a valid
basis for denying a motion to alter or amend.2 Cook-Adams makes no
contention that the evidence on which she relies in her opposition
1
N.D. TEX. LOC. R. 7.1(e)(providing that “[a] response and brief
to an opposed motion must be filed within 20 days from the date the
motion is filed.”).
2
Russ v. International Paper Co., 943 F.2d 589, 593 (5th Cir.
1991).
2
was unavailable at the time the district court entered summary
judgment. Instead, Cook-Adams maintains that a clerical error in
her attorney’s office is to be blamed for her untimely response.
Cook-Adams has cited no authority, however, for the proposition
that the district court’s refusal to excuse this error amounts to
an abuse of discretion.3 Consequently, we affirm the district
court’s denial of Cook-Adams’s motion and decline her request to
enlarge the summary judgment record to include her belated summary
judgment opposition.
As to Cook-Adams’s second assignment of error, we have
carefully considered the Memorandum Opinion and Order of the
district court in light of the facts revealed by the summary
judgment record and the legal arguments set forth in counsels’
appellate briefs. Our de novo review of the district court’s grant
of summary judgment dismissing Cook-Adams’s race discrimination
claims against SWBT leads us to the same conclusions as those
reached by the district court and for essentially the same reasons.
Cook-Adams has cited no evidence in support of her assertion that
SWBT’s decision to terminate her employment was motivated by race
rather than poor attendance. As Cook-Adams’s subjective belief
that she was the recipient of discriminatory treatment is, by
itself, insufficient to raise a genuine issue of material fact, we
3
Cook-Adams cites the Texas Lawyers’ Creed in support of her
contention that SWBT acted unprofessionally by opposing her motion
to alter or amend the judgment. In addition, she argues that the
district court was obliged to excuse her tardy response given that
the court’s own opinion contains a clerical error. We find neither
of these arguments persuasive.
3
affirm the district court’s grant of summary judgment in favor of
SWBT.
AFFIRMED.
4