IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30662
Summary Calendar
HAROLD COUTCHER, Plaintiff-Appellant,
versus
LOUISIANA LOTTERY CORPORATION;
DANNY JACKSON Defendant-Appellee.
Appeal from the United States District Court
For the Western District of Louisiana
(97-CV-372)
October 6, 2000
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Appellant contends that he was terminated from his job as a
regional manager for the Louisiana Lottery Corporation ("LLC")
because of his race and age.1 Coutcher urges us to overturn the
decision of the district court granting summary judgment in favor
of defendants.2 He also asks us to overturn the court's denial of
*
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this opinion should not be published and is not precedent except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
Coutcher, who is Caucasian, was 61 when terminated.
2
We are only asked to decide the propriety of the court's
grant of judgment on Coutcher's 42 U.S.C. § 1981 and § 1983 claims.
his motion to stay federal proceedings in favor of a parallel state
proceeding, as well as his motion to amend his complaint. We
decline this invitation.
The district court had ample, uncontroverted evidence upon
which to base its grant of summary judgment. Although the court did
not have the guidance of the Supreme Court's decision in Reeves v.
Sanderson Plumbing Products Co.,3 it specifically held that
Coutcher failed to demonstrate that the reasons for his discharge
were pretextual.4 The court cited "overwhelming" evidence that the
discharge was based on Coutcher's inadequate job performance.
Coutcher failed to dispute the fact that numerous employees filed
complaints; that Jackson investigated the complaints and ordered
him to rectify the situation; and that he disobeyed Jackson's clear
directive that regional managers not leave the office on days when
terminal extractions were undertaken.
Croutcher's evidence of pretext is either irrelevant or
insufficient as a matter of law. Plaintiff's claim that a
similarly-situated black male was not terminated fails to meet the
requirement that such evidence be "nearly identical" to the facts
at issue.5 Moreover, the allegedly racist comments by Jackson were
3
120 S. Ct. 2097 (2000).
4
See Reeves, 120 S. Ct. at 2106.
5
See Wyvill v. United Companies Life Ins. Co., 212 F.3d 296,
304 (5th Cir. 2000).
2
stray remarks not relevant to Coutcher's termination.6 Inadequate
sample size invalidates Coutcher's statistical evidence regarding
the hiring and termination of regional managers.7 At the district
court level, Coutcher also failed to contradict testimony that the
proposed disciplinary procedures were not in effect at the time of
his termination; his argument on this ground therefore fails.
The fact that Jackson and Shuford were employees of LLC does
not mean that this Court must disregard their testimony as
"interested witnesses" for purposes of summary judgment. Adoption
of such a position is not compelled by Reeves,8 and would render it
virtually impossible for defendants to obtain summary judgment in
discrimination cases, where the testimony of other employees is
central to their resolution.9
The district court did not abuse its discretion in refusing to
grant Coutcher's motion to stay. The putative impact on state
finances by an adverse judgment in this case - i.e., a possibly
6
See Sreeram v. Louisiana State Univ. Med. Center-Shreveport,
188 F.3d 314, 320-21 (5th Cir. 1999); Bennett v. Total Minatome
Corp., 138 F.3d 1053, 1061 (5th Cir. 1998).
7
See Scott v. University of Mississippi, 148 F.3d 493, 510
(5th Cir. 1998); Smith v. Western Electr. Co., 770 F.2d 520, 525-28
(5th Cir. 1985).
8
Coutcher cites Reeves, 120 S.Ct. at 2110.
9
See Boze v. Branstetter, 912 F.2d 801, 807 (5th Cir. 1990)
(condemning restriction on summary judgment motions that would
render them "meaningless, time-consuming, and expensive
exercises").
3
diminished contribution from the LLC's surplus to the State - is
too indirect and attenuated for Eleventh Amendment purposes.10 Nor
do extraordinary circumstances mandate abstention.11
Finally, we do not discern an abuse of discretion in the
court's refusal to grant leave to amend. The motion was untimely
filed12 and was entered after Coutcher repeatedly failed to amend
his complaint to include state law claims. The questionable timing
of the filing - i.e., on the eve of the district court's summary
judgment determination - indicates possible bad faith.13 Granting
the motion also would have conceivably prejudiced defendants.14 In
light of the preceding, the district court's judgment is therefore
AFFIRMED.
AFFIRMED.
10
See Pendergrass v. Greater New Orleans Expressway Comm'n,
144 F.3d 342, 345 (5th Cir. 1998).
11
See Colorado River Water Conservation Dist. v. United
States, 424 U.S. 800, 813-14 (1976); Murphy v. Uncle Ben's, Inc.,
168 F.3d 734, 738 (5th Cir. 1999) (finding that parallel litigation
was duplicative, not piecemeal, and stating that "the prevention of
duplicative litigation is not a factor to be considered in an
abstention determination").
12
See Avatar Exploration, Inc. v. Chevron, U.S.A., Inc., 933
F.2d 314, 320 (5th Cir. 1991).
13
See Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139-40 (5th Cir.
1993).
14
See Addington v. Farmer's Elevator Mut. Ins. Co., 650 F.2d
663, 667 (5th Cir. 1981).
4