IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20568
Summary Calendar
JENNIFER J. LONG,
Plaintiff-Appellant,
versus
PAUL H. O'NEILL, Secretary of the Treasury, and DEBORA KELLOUGH, an
Individual,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-97-CV-3239
January 10, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Jennifer J. Long appeals from the district court's orders
dismissing, inter alia, her state law claims against her immediate
supervisor Debora Kellough and granting summary judgment in favor
of the defendants on Long's Title VII race discrimination and
retaliation, age discrimination, and First Amendment retaliation
*
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this opinion should not be published and is not precedent except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.
claims. Long raises several challenges to the district court's
judgment.
First, Long argues that the district court erred in denying
her request for additional discovery pursuant to Fed. R. Civ. P.
56(f). We review such denials for abuse of discretion only.1 Long
argues that the district court abused its discretion in denying her
request for discovery regarding (1) the defendants' submission of
affidavits from her former supervisors in support of their motion
for summary judgment, (2) evidence of retaliation against other
employees who testified before the Senate Finance Committee, and
(3) the Internal Revenue Service's notice of intent to discharge
Long filed the same day as the motion for summary judgment. We
find no abuse of discretion because, as aptly discussed by the
district court in its order denying Long's request, the requested
discovery as to other employees' experience and the withdrawn
notice of intent to discharge would not provide evidence creating
a genuine issue of material fact as to the claims that Long
actually pled in her amended complaint.2 Moreover, we find no
abuse of discretion in the district court's conclusion that Long
1
Beattie v. Madison County Sch. Dist., 254 F.3d 595, 605
(5th Cir. 2001).
2
See Access Telecom, Inc. v. MCI Telecomms. Corp., 197 F.3d
694, 720 (5th Cir. 1999).
2
failed to diligently pursue the requested discovery prior to the
filing of the defendants' motion for summary judgment.3
Long next argues that the district court erred in granting
summary judgment on the ground of Civil Service Reform Act
preemption, which was not raised in the defendants' motion for
summary judgment and was not addressed in Long's response. This
issue, however, was raised in the defendants' motion to dismiss and
addressed in the district court's order on that motion, in which
the court determined that the issue of whether CSRA preemption
applied to Long's specific claims could not be decided on the
pleadings alone. Thereafter, it was appropriate for the district
court to grant summary judgment on Long's First Amendment
retaliation claim based on "personnel actions" on the basis of the
court's consideration of the record, particularly where Long had
notice of this issue from the prior motion to dismiss.4 We find no
error in the district court's determination that Long's First
Amendment retaliation claim was precluded by the CSRA, as
interpreted by our binding precedent.5 Moreover, the district
court did not err in granting summary judgment on Long's First
Amendment retaliation claim based on the EEO office's dismissal of
3
See Beattie, 254 F.3d at 606.
4
See Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1093
(5th Cir. 1996) (per curiam).
5
See Grisham v. United States, 103 F.3d 24, 26-27 (5th Cir.
1997); Rollins v. Marsh, 937 F.2d 134, 138-39 (5th Cir. 1991).
3
Long's complaints, because this action is not an adverse employment
action.6
Long also argues that the district court erred in failing to
consider evidence of a pattern of First Amendment retaliation by
the IRS. However, in her amended complaint, Long pled only that
the dismissal of her claim by the EEO office was retaliatory based
on her exercise of her First Amendment rights and so a First
Amendment retaliation pattern claim was not before the district
court. As for any such claim under Title VII, the district court
addressed the claim as a Title VII reverse race discrimination
pattern and practice claim and held that Long's evidence failed to
raise a genuine issue of material fact supporting a pattern of
reverse discrimination. Additionally, Long complains that the
district court did not consider evidence of the IRS's withdrawn
notice of intent to discharge her, or "Opportunity Letter," but
Long made no request to amend her complaint to state a claim based
on this letter. As such, the district court did not err in
refusing to analyze Long's First Amendment or Title VII claims in
light of it. Finally, contrary to Long's suggestion, the district
court did consider her hostile work environment claim. Long's
arguments for reversal and remand on these grounds are without
merit.
6
See Breaux v. City of Garland, 205 F.3d 150, 157 (5th
Cir.), cert. denied, 531 U.S. 816 (2000); Pierce v. Tex. Dep't of
Criminal Justice, 37 F.3d 1146, 1149 (5th Cir. 1994).
4
Long further argues that genuine issues of material fact
precluded summary judgment on her Title VII retaliation claim based
on the IRS's failure to promote Long and that the district court
improperly interpreted and applied Reeves v. Sanderson Plumbing
Products, Inc.7 We disagree. There is no inconsistency in the
district court applying the Reeves Court's clear holding that a
plaintiff may put forth marginally sufficient evidence of a prima
facie case and pretext and yet no rational factfinder could
conclude that the employment action was discriminatory.8
The defendants, however, complain that the failure to promote
was not included in Long's amended complaint. This alone provides
sufficient reason to affirm the summary judgment in favor of the
defendants on this claim, but, because the district court addressed
Long's lately-raised Title VII failure to promote claim, we will
address the district court's reasoning on appeal.9 Our review of
the record convinces us that the district court did not err in
concluding that this is an instance in which no rational factfinder
7
530 U.S. 133 (2000).
8
See id. at 148; see also Okoye v. Univ. of Tex. Houston
Health Science Ctr., 245 F.3d 507, 513-14 (5th Cir. 2001); Vadie v.
Miss. State Univ., 218 F.3d 365, 373 n.23 (5th Cir. 2000), cert.
denied, 531 U.S. 1113 (2001), and cert denied, 531 U.S. 1150
(2001).
9
Cf. Gilley v. Protective Life Ins. Co., 17 F.3d 775, 781
(5th Cir. 1994).
5
could conclude that the failure to promote Long was based on
discriminatory retaliation.10
Finally, Long argues that the district court erred in
dismissing her state law claims against Kellough. We cannot agree
because we are persuaded that the district court properly applied
our holding in Pfau v. Reed11 and did not err in dismissing these
claims as preempted by Title VII.
AFFIRMED.
10
See Russell v. McKinney Hosp. Venture, 235 F.3d 219, 223
(5th Cir. 2000); Vadie, 218 F.3d at 374; cf. Blow v. City of San
Antonio, 236 F.3d 293, 297 (5th Cir. 2001) (following Reeves,
summary judgment was inappropriate where "[t]he plaintiff has
proved her prima facie case; she has presented sufficient evidence
to create a material issue of disputed fact as to whether the
employer's explanation was false; and there are no unusual
circumstances that would prevent a rational fact-finder from
concluding that the employer's reasons for failing to promote her
were discriminatory and in violation of Title VII" (footnote
omitted)); Evans v. City of Bishop, 238 F.3d 586, 591 (5th Cir.
2000) (following Reeves, summary judgment was inappropriate where
the plaintiff "put forth evidence beyond that of the prima facie
case and pretext").
11
125 F.3d 927, 933-34 (5th Cir. 1997), vacated on other
grounds, 525 U.S. 801 (1998), and reinstated on remand, 167 F.3d
228, 299 (5th Cir.) (per curiam), cert. denied, 528 U.S. 813
(1999).
6
Long v. O'Neill
Combined Opinion