Case: 22-10758 Document: 00516703747 Page: 1 Date Filed: 04/06/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-10758
Summary Calendar FILED
____________ April 6, 2023
Lyle W. Cayce
Patrick Lewis, Clerk
Plaintiff—Appellant,
versus
Greenwood Motor Lines, Incorporated; R&L Carriers
Shared Services, L.L.C.,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:21-CV-1161
______________________________
Before King, Higginson, and Willett, Circuit Judges.
Per Curiam: *
Patrick Lewis filed this employment-discrimination lawsuit against
Greenwood Motor Lines, Inc., and R&L Carriers Shared Services, LLC,
alleging discrimination and harassment based on race and disability, and
retaliation for engaging in protected activity, in violation of Title VII of the
Civil Rights Act of 1964, the Americans with Disabilities Act, 42 U.S.C.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-10758
§ 1981, and 42 U.S.C. § 1983. When the defendants moved for summary
judgment on all claims, Lewis did not file a response or seek an extension of
time to do so. Based on the evidence submitted by the defendants in support
of their motion, the district court deemed the material facts undisputed and
granted the motion. We find no error and AFFIRM.
As an initial matter, by failing to raise the issues in his opening brief
Lewis forfeited any challenge to the court’s grant of summary judgment on
his disability-discrimination and § 1983 claims. As a result, we review only
those claims relating to race discrimination and retaliation.
With respect to Lewis’s race-discrimination claims, the uncontested
summary-judgment evidence confirms that Lewis was fired not on the basis
of his race or in retaliation for filing an EEO complaint, but because he
violated his employer’s attendance policy. Separately, Lewis points to no
record evidence supporting the existence of a similarly situated comparator
outside his protected class. See Ernst v. Methodist Hosp. Sys., 1 F.4th 333, 339
(5th Cir. 2021) (one element of a prima facie Title VII case under McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), is a “similarly situated”
comparator outside the protected class who was treated more favorably); see
also Jones v. Robinson Prop. Grp., LP, 427 F.3d 987, 992 (5th Cir. 2005) (same
for § 1981 claims).
And as for Lewis’s retaliation claims, he offers no evidence that he
was fired in retaliation for filing an EEO complaint. See Cabral v. Brennan,
853 F.3d 763, 766–67 (5th Cir. 2017) (a plaintiff claiming retaliation must
show a “causal connection exists between the protected activity and the
adverse action” (internal quotation marks omitted)). Although temporal
proximity can sometimes satisfy the causation element of a retaliation claim,
“once the employer offers a legitimate, nondiscriminatory reason that
explains both the adverse action and the timing, the plaintiff must offer some
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evidence from which the jury may infer that retaliation was the real motive.”
Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997). Here,
Lewis was fired the very day of his third unexcused absence, having been
warned previously that any future absences would result in his termination.
The record lacks evidence supporting a retaliatory motive.
Lewis’s arguments on appeal are unpersuasive. He first argues that
the district court erred by granting summary judgment solely because he failed
to respond to the defendants’ motion. But he is wrong. Indeed, the district
court was careful to explain that it was not basing its decision solely on that
ground and, instead, would simply accept the defendants’ facts as
undisputed. The court was right to do so. See Eversley v. MBank Dall., 843
F.2d 172, 173–74 (5th Cir. 1988). Next, Lewis suggests the allegations in his
pleadings overcome the defendants’ summary-judgment evidence. This, too,
is incorrect. See Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir.
2007) (a party opposing summary judgment “may not rest upon allegations
in the pleadings”).
Finally, Lewis draws our attention to excerpts from his own
deposition, which is in the record, to make the case that his absences should
be excused and that retaliation was a motivating factor in his termination. But
even assuming the materiality of such facts in the relevant legal analysis, they
were not brought to the attention of the district court. Reversal on this basis
is thus improper because that court was not required to review the entire
summary-judgment record to search for fact disputes supporting Lewis’s
opposition to the defendants’ summary-judgment motion. Ragas v. Tenn. Gas
Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998); see United States v. del Carpio
Frescas, 932 F.3d 324, 331 (5th Cir. 2019) (per curiam) (“Judges are not like
pigs, hunting for truffles buried in the record.” (quoting Albrechsten v. Bd. of
Regents of Univ. of Wisc. Sys., 309 F.3d 433, 436 (7th Cir. 2002))). That was
Lewis’s job. He may not use his briefs in this forum as a substitute
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memorandum in opposition to the defendants’ motion for summary
judgment below.
AFFIRMED.
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Lewis v. Greenwood Motor Lines
Combined Opinion