United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT May 24, 2006
Charles R. Fulbruge III
Clerk
No. 05-20467
Summary Calendar
WILL H. EVANS, III,
Plaintiff-Appellant,
versus
IBM CORPORATION,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
(4:03-CV-4805)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Will H. Evans contests the summary judgment awarded IBM,
including the denial of his motions requesting discovery and
delaying consideration of the summary judgment motion.
In August 2001, Evans, an IBM employee for nearly 24 years,
was terminated from his sales position. IBM maintains Evans was
terminated for declining performance and an improper commitment he
made to a customer that violated IBM policies. He counters that
*
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this opinion should not be published and is not precedent except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.
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his female supervisor became intimidated by his “seniority,
experience and success”, consequently harassed and humiliated him
and made false allegations, and ultimately had him terminated and
replaced with a younger, non-minority employee.
Following an unsuccessful internal appeal and EEOC
discrimination charge, Evans filed this action under Title VII of
the Civil Rights Act of 1964 and the Age Discrimination in
Employment Act; he further claimed IBM retaliated, and
intentionally discriminated, against him, violating 42 U.S.C. §
1981.
Ten days before the district-court discovery deadline, Evans
moved to extend the deadline (denied); after the deadline, he moved
to compel discovery (denied) and to reconsider (denied). After IBM
moved for summary judgment, Evans moved under Federal Rule of Civil
Procedure 56(f) for a continuance. It was denied; summary judgment
was awarded IBM.
The denial of the continuance motions is reviewed for abuse of
discretion. Shields v. Twiss, 389 F.3d 142, 149 (5th Cir. 2004).
Evans moved for a continuance on 20 January 2005; under Rule 56(f),
on 24 March 2005. There was no abuse of discretion.
For the discovery-continuance motion, Evans had ample
opportunity to conduct discovery prior to the deadline. His motion
did not adequately explain his failure to do so.
Evans’ Rule 56(f) motion appears to have been untimely filed;
in any event, it failed to specify how additional discovery would
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have created a fact issue to defeat summary judgment. See Wichita
Falls Office Assocs. v. Banc One Corp., 978 F.2d 915, 919 (5th Cir.
1992) (providing “[t]hree general requirements” a non-movant must
establish for a court to grant a continuance of discovery: “(i)
requesting extended discovery prior to the court’s ruling on
summary judgment; (ii) put[ting] the trial court on notice that
further discovery pertaining to the summary judgment motion is
being sought; and (iii) demonstrating to the trial court
specifically how the requested discovery pertains to the pending
motion”), cert. denied, 508 U.S. 910 (1993).
The summary judgment is reviewed de novo, applying the same
standard used by the district court. Shields, 389 F.3d at 149.
Such judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law”. FED. R. CIV. P. 56(c); see Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Where the non-
movant will ultimately bear the burden of production at trial, “the
movant must merely demonstrate an absence of evidentiary support in
the record for the non-movant’s case”. Shields, 389 F.3d at 149
(internal citation and quotation marks omitted). (In addition to
age and race discrimination, Evans claimed retaliation. He does
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not address this claim in his brief to our court; therefore, it is
waived. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).)
Evans has not provided any direct evidence of age or race
discrimination, nor can his allegations withstand the burden-
shifting test of McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-04 (1973) (requiring (1) a plaintiff to show a prima facie case
of race discrimination; (2) shifting the burden to the defendant to
provide a nondiscriminatory reason for the termination; and (3)
shifting the burden back to the plaintiff to show the alleged
nondiscriminatory reason was a mere pretext). See, e.g.,
Machinchick v. PB Power, Inc., 398 F.3d 345, 350-51 (5th Cir. 2005)
(age discrimination). Even assuming Evans’ unsupported allegations
of age and race discrimination constituted a prima facie case of
discrimination (as the district court did), IBM has provided
evidence of a nondiscriminatory reason for his termination. Evans
has not shown any evidence suggesting this reason was a mere
pretext. McDonnell Douglas Corp., 411 U.S. at 802-04. In sum, no
genuine issue of material fact exists; the summary judgment was
proper.
Finally, IBM moves for appellate sanctions under Federal Rule
of Appellate Procedure 38. They are appropriate where an appeal is
frivolous and, as here, the party seeking sanctions has “separately
filed [a] motion or notice”. FED. R. APP. P. 38. IBM cites
Trowbridge v. Comm’r of Internal Revenue, 378 F.3d 432 (5th Cir.
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2004), where our court imposed sanctions after the district court
had imposed sanctions against a pro se litigant whose claims were
“institut[ed] and maintain[ed] ... primarily for delay”. Id. at
432; see Buck v. United States, 967 F.2d 1060, 1062 (5th Cir. 1992)
(“[A] frivolous appeal is an appeal in which ‘the result is obvious
or the arguments of error are wholly without merit.’”) (alteration
in original) (quoting Montgomery v. United States, 933 F.2d 348,
350 (5th Cir. 1991)); Corpus Christi Taxpayer’s Ass’n v. City of
Corpus Christi, 858 F.2d 973, 977 (5th Cir. 1988) (concluding “that
the ... appeal involve[d] legal points not arguable on their
merits, and that the appeal was accordingly frivolous”). Evans’
appeal is not so without merit as to warrant sanctions.
AFFIRMED; SANCTIONS DENIED
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