### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 10599 Summary Calendar

TERESA WARD COOPER , Plaintiff

- Appellant

v.
DALLAS POLICE ASSOCIATION , Defendant

- Appellee

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:11

- CV

- 2607

Before PRADO, OWEN, and GRAVES, Circuit Judges. PER CURIAM: * Teresa Ward Cooper, a non

- prisoner , pro se litigant, moves this court for leave to appeal in forma pauperis (IFP) from the district court’s order granting summary judgment and dismissing her Title VII complaint alleging gender discrimination and retaliation by the Dallas Police Association (DPA). The district court denied Cooper’s IFP motion and certified that the appea l was not taken in good faith.

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED July 6, 2015 Lyle W. Cayce Clerk Case: 14-10599 Document: 00513105034 Page: 1 Date Filed: 07/06/2015No. 14

- 10599

2 Cooper’s motion for leave to proceed IFP on appeal is construed as a challenge to the district court’s certification decision. Baugh v. Taylo r , 117 F.3d 197, 202 (5th Cir. 1997); F ED . R. A PP . P. 24(a). This court’s inquiry into whether the appeal is taken in good faith “is limited to whether the appeal involves legal points arguable on their merits (a nd therefore not frivolous).”
Howard v. Ki ng , 707 F.2d 215, 220 (5th Cir. 1983) (internal quotatio n marks and citations omitted). We reject Cooper’s argument that the district court should have applied equitable tolling to the limitation s period because the DPA failed to notify her of the termina tion of her membership and the loss of associated benefits

. Equitable tolling is applied only in circumstances such as when the defendant purposefully concealed facts concerning the alleged adverse action or otherwise

engage d in misconduct to impe de the p laintiff’s filing of the discrimination charge. Granger v. Aaron’s Inc., 636 F.3d 708, 712 (5th Cir. 2011). Cooper admitted that she learned prior to January 26, 2009, that the DPA was not paying her counsel’s fees in association with her appeal from her August 2005 termination from the Dallas Police Department

. She filed the c laim with t he Equal Employment Opportunity Commission (EEOC) no earlier than December 23 , 2009, which was not within the limitation s period of 300 days after obtain ing knowledge of the adverse action

. See Nat’l R.R. Passenger Corp. V. Morgan , 536 U.S. 101, 109 (2002) ; Granger , 636 F.3d at 712. Cooper failed to carry her burden of presenting competent summary judgment evidence that the DPA misled her about her membersh ip status after she learned of the adverse action or made any false representations concerning her entitlement to funding for her appeal of the August 2005 termination. See McGregor v. Louisiana State Univ. Bd. of Supervisors , 3 F.3d 850, 865 (5th Cir.
19 93). The district court did not abuse its discretion in failing to apply Case: 14-10599 Document: 00513105034 Page: 2 Date Filed: 07/06/2015No. 14

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3 equitable tolling in the case. Granger , 636 F.3d at 712. The dismissal of the complaint as time barred does not raise a nonfrivolous issue on appeal.
Howard , 707 F.2d at 220.
Nor has Cooper shown that the district court erred in it s alternative holding that Cooper failed to make a prima facie showing of gender discrimination or retaliation and also failed to raise a genuine dispute of material fact concerning pretext for the DPA’s actions. She has not provided any authority for her assertion that the defendant was required to file a motion to dismiss pursuant to F ED . R. C IV

. P. 12(b)(6) based on her failure to file a timely c laim . The fact that the EEOC reviewed an untimely filed claim d id not preclude the dismissal of the complaint by the federal court because the federal courts must make “an independent determination” of the petitioner’s compliance with Title VII filing requirements and not defer to the EEOC. Chappell v. Emco Ma ch. Works Co ., 601 F.2d 1295, 1304 (5th Cir. 1979)

. Cooper also failed to demonstrate that she was prejudiced by the district court’s consideration of affidavits of individuals who were not listed as witnesses in the defendant’s initial Federal Rule of Ci vil Procedure 26(a) disclosure. See Tex. A. & M. Research Found. v. Magna Transp., Inc., 338 F.3d 394, 402 (5th Cir. 2003). Cooper failed to make a prima facie showing of gender discrimination because she presented no competent summary judgment evidence that the DPA paid the legal expenses of similar ly situated individuals who were no longer member s in good standing of the organization as a result of failing to pay their dues. Septimus v. Univ. of Hous., 399 F.3d 601, 609 (5th Cir 2005). Further, Cooper failed to raise a genuine dispute of material fact regarding pretext because she did not present any competent summary judgment evidence show ing that the DPA’s legitimate nondiscriminatory reason for denying her benefits, her failure to pay dues, was untr ue and merely Case: 14-10599 Document: 00513105034 Page: 3 Date Filed: 07/06/2015No. 14

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4 a pretext for discrimination. McCoy v. City of Shreveport, 492 F.3d 551, 562 (5th Cir. 2007). Cooper has not briefed her argument that a prima facie case of retaliation was shown by the temporal proximity between her act ions and the DPA’s n on
- payment of legal fees. Thus, she has abandoned that claim on appeal. Yohey v. Collins, 985 F.2d 222, 224

- 25 (5th Cir. 1993)

. Nor has Cooper mad e a prima facie showing of a retaliation claim based on the untruthful representations of the DPA because she failed to show that she was denied legal benefits for any reason other than the non

- payment of dues to the DPA and not as a result of participation in a protected activity. See Banks v. E. Baton Rouge Parish Sch. Bd. , 320 F.3d 570, 575 (5th Ci r. 2003). Because Cooper has failed to raise a genuine dispute of material fact regarding the gender discrimination and retaliation claims, the district court did not err in granting the defendant’s motion for summary judgment and dismissing the complaint . Cooper has not raised a nonfrivolous issue on appeal. Howard , 707 F.2d at 220. Cooper’s motion to proceed IFP on appeal is DENIED, and the appeal is DISMISSED as frivolous. See Baugh , 112 F.3d at 202 n.24; 5 TH C IR

. R. 42.2. Case: 14-10599 Document: 00513105034 Page: 4 Date Filed: 07/06/2015