*District Judge of the Southern District of Texas, sitting by

designation.

**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this opinion should not be published and is not precedent except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.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 98-20155

_______________________

NASAIRA AGUIRRE-REED,

Plaintiff-Appellant,

versus

GALLERY MODEL HOMES INCORPORATED,

doing business as Gallery Furniture,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(H-97-CV-3807)

_________________________________________________________________

November 30, 1998

Before JOLLY, and JONES, Circuit Judges, and LAKE*, District Judge.

PER CURIAM:**

Ms. Aguirre-Reed filed a complaint against her former

employer, Gallery Furniture of Houston, initially alleging national

origin discrimination in violation of 42 U.S.C. § 1981 and related

state law claims. Gallery furniture moved to dismiss under Rule
2

12(b)(6), provoking appellant’s attempt to amend her complaint to

allege racial rather than national-origin discrimination. The

district court refused to permit her to amend her complaint and

dismissed the case with prejudice. We affirm.

On appeal, Aguirre-Reed argues that the district court

abused its discretion in denying her motion to amend and that under

§ 1981, her amended complaint stated a viable cause of action. She

does not brief on appeal the district court’s dismissal of her

state law claims, so we treat that part of the judgment as

uncontested.

It may be that the district court abused his discretion

in denying leave to amend pursuant Fed. R. Civ. P. 15(a).

Ordinarily, leave to amend should be freely given when justice so

requires. Any such error of the district court is, however, easily

corrected in this appeal by our consideration of the appellant’s

amended complaint as if leave had been given to file it.

Aguirre-Reed next argues that, whatever the district

court thought about this matter, 42 U.S.C. § 1981 affords a cause

of action for racial discrimination to a person who is employed on

an at-will basis under state law. Indeed, this court has very

recently so held. Fadeyi v. Planned Parenthood Association of

Lubbock, Inc., No. 97-11310 (5th Cir. Nov. 11, 1998) (1998 WL

784204). But even allowing credit for a correct interpretation of

applicable law, Aguirre-Reed’s amended complaint falls short of

stating a violation of § 1981. She alleges only that she was
3

transferred from an office job to a sales position in the store

after her husband was arrested for and convicted of embezzlement.

She does not allege that she was demoted, that her pay or benefits

were cut, that she was subjected to extraordinarily harsher

conditions than other employees, or that she was fired.

Appellant’s allegations, in short, do not encompass any essential

change in her contractual relationship with her employer, nor do

they involve a course of overtly racially discriminatory conduct.

Compare Fadeyi, supra. That she was transferred from the office to

the sales floor, while an “Anglo” employee whose husband was “on

federal probation” was not similarly transferred, fails to imply

either racial discrimination or a breach in Aguirre-Reed’s contract

of employment with Gallery Furniture. As these are the only facts

appellant alleges in her amended complaint, the conclusional

allegations of a § 1981 violation are insufficient.

For the foregoing reasons, we conclude that even if the

district court had permitted appellant to file her amended

complaint, that complaint still falls short of stating a cognizable

claim under 42 U.S.C. § 1981. The judgment of the district court

is AFFIRMED.