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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-20410

Summary Calendar

HELEN JEFFERSON; DAPHNE GRANVILLE; THE ESTATE OF AMANDA

HERNANDEZ, Manuel Acevedo as Next Friend; AGNES ANYALEBEDHIL;

JOSIE JACOBS; PHILLIP MINAMBISSERIL; SYLVIA POTIER; RALPH

DAVIS; FAY BRUMFIELD; BERNADETTE ETOAMA, 

Plaintiffs - Appellants

v.

CHRISTUS ST. JOSEPH HOSPITAL; HOSPITAL PARTNERS OF

AMERICA, INC; CHRISTUS HEALTH GULF COAST,

Defendants - Appellees

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:08-CV-1535

Before KING, STEWART, and HAYNES, Circuit Judges.

PER CURIAM:*

Helen Jefferson, Daphne Granville, the Estate of Amanda Hernandez,

Agnes Anyalebedhil, Josie Jacobs, Phillip Minambisseril, Sylvia Potier, Ralph

United States Court of Appeals

Fifth Circuit

F I L E D

March 11, 2010

Charles R. Fulbruge III

Clerk

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An eleventh plaintiff, Abel Abad, did not appear in the district court below or defend

1

his claims in response to appellees’ motion for summary judgment. Accordingly, all of Abad’s

claims of error have been waived. Horton v. Bank One, N.A., 387 F.3d 426, 435 (5th Cir. 2004).

2

Davis, Fay Brumfield, and Bernadette Etoama appeal the district court’s grant 1

of summary judgment on their race, age, national origin, retaliation, and hostile

work environment claims against appellees, Christus St. Joseph Hospital

(“Christus”), Hospital Partners of America (“HPA”), and Christus Health Gulf

Coast. Appellants allege numerous grounds for reversal based on both the

circumstances and substance of the district court’s decision. Finding no merit

in these claimed errors, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts of this case, viewed in the light most favorable to appellants as

the non-moving party, are as follows. Appellants are behavioral medicine

nurses, psychiatric technicians, and therapists formerly employed by Christus.

In summary, they variously accuse Christus, and its successor HPA, of race, age,

and national origin discrimination.

The events giving rise to this suit began in late 2005 when Christus

informed its entire staff of behavioral medicine nurses, psychiatric technicians,

and therapists that they would be required to participate in an internet-based

research survey (“the Smilex Survey”) conducted by a third party. The Smilex

Survey consisted of a pre-test, vignettes depicting frequently-observed

behavioral issues in psychiatric patients, and a post-test. During the post-test,

participants who answered questions incorrectly were provided immediate

feedback explaining why their answer was incorrect and why another answer

was the better choice. The creator of the Smilex Survey, Colin McKay, testified

in his deposition that the training program typically required thirty to forty-five

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 Appellants argue that McKay testified the survey could be completed in less than ten 2

minutes. Actually, McKay also testified that such a result was highly unlikely, at least for a

first-time test-taker.

 Hernandez was the only appellant who was not required to retest. 3

3

minutes to complete. The opening screen of the survey also informed 2

participants that completion would take thirty to forty-five minutes.

In early 2006, McKay began reviewing the completion times and scores

logged by all of the Christus employees. In the process, he discovered several

instances of employees completing what was putatively a thirty-to-forty-five

minute survey in less than four minutes and still achieving very high scores.

McKay notified Susan Willmann, the then-Administrative Director for

Behavioral Medicine, of the irregularities in the testing data. Based on the

information received from McKay, Willmann began to suspect that the

employees with the fastest completion times had cheated on the survey. 

Consequently, Willmann, in consultation with several members of

Christus’s senior staff, decided to require all individuals who completed the

survey in less than fifteen minutes to retake the survey with a proctor. Under

the retesting policy, employees were required to score within five points of their

original score and finish within three minutes of their original time. Employees

were asked to complete the exact same survey with the exact same questions.

The only differences between the original survey and the retest were that

employees were monitored by a proctor and the pre-test was omitted, thus

shortening the exercise.

After reviewing the data, Willmann and the senior staff notified nine of

the appellants , all of whom subsequently resigned or were terminated, that they 3

would be required to retake the survey. Four other individuals who are not

parties to this appeal were also required to retake the survey: Liz Anderson,

Bassey Etim, Walter Foston, and Keith Moffitt. Bassey Etim refused to retake

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the survey. The record is silent as to whether Walter Foston was terminated

when he failed to duplicate or improve his score. Keith Moffitt, the one white

employee required to retake the survey, finished the proctored survey within

three minutes and five points of his original score as required. Liz Anderson, a

black employee, appears to have finished outside the appropriate time window

in her retest, but her score improved by six points, and she was not terminated.

As set out in the following table, however, none of the appellants were able to

meet the retesting standard or improve their performance:

Appellant First Score / Time Second Score / Time

Agnes Anyalebedhil 86 / 6.2 minutes 65 / 24.4 minutes

Faye Brumfield 92 / 5.3 minutes

90 / 9.2 minutes

56 / 73 minutes

Ralph Davis 86 / 6.1 minutes 73 / 43.4 minutes

Bernadette Etoama 77 / 8.2 minutes

79 / 2.9 minutes

64 / 25 minutes

Daphne Granville 82 / 12.9 minutes 74 / 15.4 minutes

Josie Jacobs 87 / 4.9 minutes 69 / 68.7 minutes

Helen Jefferson 86 / 4.0 minutes 72 / 74.2 minutes

Philip Minambisseril 75 / 5.0 minutes 71 / 20.1 minutes

Sylvia Potier 78 / 13.8 minutes 58 / 43.4 minutes

After the retesting was completed, Willman met individually with each of

the appellants. Anyalebedhil, Brumfield, Davis, Jacobs, Minambisseril, and

Potier admitted to Willmann that they received assistance navigating the survey

or answering questions during their first attempt. Willmann discovered that

Hernandez, who was not required to retest because her first completion time was

sufficient, was the individual who had assisted all of the plaintiffs except Jacobs.

Christus subsequently fired Anyalebedhil, Davis, Etoama, Granville, Hernandez,

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Jefferson, and Minambisseril between March 20 and April 7, 2006, for violating

Christus’s Code of Conduct. Brumfield, Jacobs, and Potier voluntarily resigned

after retaking the survey.

Appellants individually filed charges of discrimination with the Equal

Employment Opportunity Commission (“EEOC”) alleging a variety of claims. 

The EEOC issued right-to-sue letters to all of the appellants. Appellants filed

suit alleging racial discrimination under the Texas Civil and Human Rights Act

(“TCHRA”) in state court. The appellants amended their petition twice to add

additional defendants and include claims under 42 U.S.C. §§ 1981 and 1983

before appellees removed the case to federal court. Thereafter, appellants

amended their complaint yet again – this time to include claims of retaliation,

national origin discrimination, and defamation under Title VII and the Age

Discrimination in Employment Act (“ADEA”) as well as to drop their § 1983

claims. 

The appellees moved for summary judgment on February 23, 2009.

Appellants responded in piecemeal fashion with two different filings labeled

“Response to Motion for Summary Judgment” on March 13 and March 16 as well

as more than 600 pages of exhibits. Appellees filed their reply on March 31. On

April 20 and without leave of court, appellants filed a 41-page sur-reply and an

additional 80 pages of exhibits. On May 18, 2009, the district court ruled that

appellants’ sur-reply and the included exhibits were not properly before the

court and granted summary judgment. Appellants timely appealed.

II. STANDARD OF REVIEW

We review a grant of summary judgment de novo. N. Am. Specialty Ins.

Co. v. Royal Surplus Lines Ins. Co., 541 F.3d 552, 555 (5th Cir. 2008). Summary

judgment is proper “if the pleadings, the discovery and disclosure materials on

file, and any affidavits show that there is no genuine issue as to any material

fact and that the movant is entitled to judgment as a matter of law.” FED. R.

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 We do not address the appellants’ claims of error regarding the affidavits of Keith 4

Moffitt and Kathy Hennigan. In their opening brief, appellants allege in their “Statement

Regarding Oral Argument” and “Statement of the Issues” that the district court erred in

excluding both affidavits. Yet appellants provide no argument or authority supporting their

claim in the body of their brief. Instead, they repeatedly assert in conclusory fashion that the

district court erred and cite to the portion of the record containing the affidavits. A party must

“provide[] . . . argument or authority in support of [their] position. . . . [F]ailure to provide any

legal or factual analysis of an issue on appeal waives that issue.” Douglas W. ex rel. Jason

D.W. v. Houston Indep. Sch. Dist., 158 F.3d 205, 210 n.4 (5th Cir. 1998). Appellants have thus

6

CIV. P. 56(c). A genuine issue of material fact exists when the evidence is such

that a reasonable jury could return a verdict for the non-movant. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). When reviewing a grant of

summary judgment, the court should view all facts and evidence in the light

most favorable to the non-moving party. United Fire & Cas. Co. v. Hixson Bros.,

453 F.3d 283, 285 (5th Cir. 2006). However, to avoid summary judgment, the

non-movant who bears the burden of proof at trial must go beyond the pleadings

and come forward with specific facts indicating a genuine issue for trial.

Piazza’s Seafood World, LLC v. Odom, 448 F.3d 744, 752 (5th Cir. 2006). We

may “affirm a grant of summary judgment on any grounds supported by the

record and presented to the [district] court.” Hernandez v. Velasquez, 522 F.3d

556, 560 (5th Cir. 2008). 

We review the district court’s determinations of the admissibility or

competency of summary judgment evidence only for abuse of discretion.

McIntosh v. Partridge, 540 F.3d 315, 320, 322 (5th Cir. 2008) (reviewing a

district court’s decision to consider contested items as competent summary

judgment evidence for abuse of discretion).

III. DISCUSSION

Appellants raise what can be reduced, in the aggregate, to two errors on

appeal: 1) whether the district court abused its discretion when it sustained

appellees’ objections to appellants’ sur-reply and sur-reply exhibits and refused

to strike the EEOC’s determination letter ; and 2) whether the district court 4

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waived any error as to the district court’s exclusion of the Moffitt and Hennigan affidavits.

Accordingly, they are not before us in this appeal in any form.

 The district court expressly held that: “Although the Court declines to strike the

5

EEOC determination letter, it similarly declines to consider it in ruling on the pending motion

for summary judgment.” Jefferson v. Christus St. Joseph Hosp., No. 4:08-CV-1535, slip op. at

16 n.10 (S.D. Tex. May 18, 2009).

Appellants make no arguments in their appellate briefing pertaining to their 6

defamation claims. Accordingly, any claim of error as to these claims has been waived.

Justiss Oil Co. v. Kerr-McGee Ref. Corp., 75 F.3d 1057, 1067 (5th Cir. 1996).

7

erred in granting summary judgment on all of the appellants’ discrimination

claims. We address each claimed error in turn.

A. Claims of Errors as to the District Court’s Evidentiary Rulings

Appellants complain that the district court erred in its decision to exclude

their sur-reply and sur-reply exhibits. Appellants also claim the district court

erred when it disregarded, but declined to strike, an EEOC determination letter

proffered by the appellees.

We conclude that the district court’s decision to disregard appellants’ surreply and sur-reply exhibits on the basis of appellants’ failure to comply with

that court’s published procedures was not an abuse of discretion. FED. R. CIV.

P. 83(b). Similarly, we find no abuse of discretion in the district court’s decision

to disregard rather than strike the EEOC determination letter dated October 25,

2007.5

B. The District Court’s Grant of Summary Judgment

Appellants allege in their complaint that they were all subjected to

intentional discrimination and retaliation on the basis of their respective races,

ages, and national origins. Appellants also contend on appeal that their

complaint alleged claims of disparate impact discrimination and hostile work

environment. The district court granted summary judgment as to all of 6

appellants’ claims on the grounds that appellants: 1) failed to properly exhaust;

2) failed to plead certain claims prior to filing the sur-reply; 3) failed to make out

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 We also pretermit the question of whether HPA constituted an “employer” or could

7

otherwise be subjected to successor liability under the applicable statutes.

 In addressing their race and retaliation claims, appellants mix their discussion of 8

their Title VII and TCHRA race and retaliation claims with their discussion of their 42 U.S.C.

§ 1981 race and retaliation claims. Our holding as to exhaustion, like that of the district court,

only applies to those claims subject to an exhaustion requirement and does not reach

appellants’ various § 1981 claims.

8

a prima facie case; and/or 4) failed to demonstrate pretext in the appellees’

proffered reasons for taking adverse employment actions. We conclude that

appellants either failed to exhaust, failed to plead, or failed to make out a prima

facie case as to all of their claims. Accordingly, we affirm the district court’s

well-reasoned opinion without reaching appellees’ proffered justification or

appellants’ attempts to show pretext or mixed motives.7

1. Appellants’ Discrimination Claims

a. Administrative Exhaustion

As the district court correctly noted, a plaintiff must first exhaust his or

her administrative remedies for claims brought under the ADEA, the TCHRA,

and Title VII before filing suit. Foster v. Nat’l Bank of Bossier City, 857 F.2d 8

1058, 1060 (5th Cir. 1988) (ADEA); Jones v. Grinnell Corp., 235 F.3d 972, 975

(5th Cir. 2001) (TCHRA); McClain v. Lufkin Indus., 519 F.3d 264, 273 (5th Cir.

2008) (Title VII). To properly exhaust, a private employee must file an

administrative charge with the EEOC. Pacheco v. Mineta, 448 F.3d 783, 788 n.6

(2006). In assessing whether a charge properly exhausts a particular claim, we

“construe[] an EEOC complaint broadly,” but we will only find a claim was

exhausted if it could have been “reasonably . . . expected to grow out of the

charge of discrimination.” McClain, 519 F.3d at 273 (quotation omitted). 

Appellants uniformly allege race, age, and national origin discrimination

as well as retaliation in the Third Amended Complaint. Nonetheless, their

individual EEOC charges only identified certain claims as to each of them as

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follows: national origin (Anyalebedhil, Hernandez, and Minambisseril), race

(Brumfield, Etoama, and Granville), and race and age (Davis, Jacobs, Jefferson

and Potier) either by checking the appropriate box or otherwise describing the

alleged discriminatory conduct in the narrative section of their charge.

Appellants cite nothing that suggests otherewise. 

Accordingly, we find that the appellants all have failed to exhaust their

retaliation claims under Title VII, the ADEA, and the TCHRA because they

could not be “reasonably . . . expected to grow out of the charge of

discrimination,” McClain, 519 F.3d at 273 (quotation omitted). For the same

reason, we conclude that the district court did not err in determining that the

following claims were unexhausted for the appellants listed in parentheses: race

and age (Anyalebedhil, Hernandez and Minambisseril), national origin and age

(Brumfield, Etoama, and Granville) and national origin (Davis, Jacobs, and

Jefferson).

b. Age Discrimination under the ADEA and the TCHRA

Only four appellants present properly exhausted age discrimination

claims: Davis, Jacobs, Jefferson, and Potier. The district court concluded after

extensive analysis that appellants’ age discrimination claims failed for two

independent reasons: 1) termination of older employees to cut costs and prevent

the vesting of pension benefits does not constitute age discrimination under the

ADEA and TCHRA as a matter of law; and 2) appellants could not make out a

prima facie case on the record before the district court. We agree with the

district court’s first ground of decision and, therefore, need not address whether

appellants could make out a prima facie case or the attendant discovery issues

advanced in the appellate briefing.

Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993), holds that an employer’s

decision to take an adverse employment action because of an employee’s

seniority or because an employee’s pension is about to vest does not, in itself,

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 Appellants’ assert on appeal without citation that only the first three elements 9

discussed in McCoy are required to make out a prima facie case. As McCoy itself

demonstrates, this argument is wholly without merit. McCoy, 492 F.3d at 556.

10

violate the ADEA. Applying Hazen, we have subsequently held that “the ADEA

prohibits discrimination on the basis of age, not salary or seniority.” Armendariz

v. Pinkerton Tobacco Co., 58 F.3d 144, 152 (5th Cir. 1995). The testimony cited

by appellants as grounds for reversal does not change, and in part directly

supports, the outcome dictated by Hazen and Armendariz. 

c. Race and National Origin Discrimination under Title VII, the

TCHRA, and 42 U.S.C. § 1981

Turning next to appellants’ race and national origin claims, the district

court concluded below that all of appellants’ claims under all of the applicable

statutes failed because 1) appellants’ could not make out a prima facie case as

to any of their claims and 2) none of the appellants’ eight attempts to

demonstrate pretext in response to appellees’ proffer of a legitimate reason for

termination had merit. We agree with the district court’s conclusion that

appellants’ fail to make out a prima facie case as to any of their race or national

origin discrimination claims, and, again, we do not reach the question of pretext.

To establish a prima facie case of race or national origin discrimination,

a plaintiff must show she: 1) is a member of a protected class; 2) was qualified

for the position at issue; 3) was subjected to an adverse employment action; and

4) was replaced by someone outside the protected class, or that other similarly

situated persons were treated more favorably. McCoy v. City of Shreveport, 492

F.3d 551, 556 (5th Cir. 2007). Only the fourth element – treatment of similarly 9

situated employees – is in dispute.

Appellants have failed to adduce or cite any evidence in the record

demonstrating that other similarly situated employees were treated differently

by appellees. In their briefing, appellants point to the following items as

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We note that these four items were not the only parts of the record cited by 10

appellants. Instead, appellants included numerous citations that either failed to support the

contention advanced or misrepresented the contents of the record. Appellants also alleged new

arguments to support their disparate treatment claims in their appeal. Specifically,

appellants argue for the first time on appeal that: 1) they were passed over for promotions in

favor of white employees and 2) appellees allowed white employees, their families, and their

pets to seek shelter in Christus’s facility during Hurricane Rita but refused similar treatment

to black employees. Arguments such as these, presented for the first time on appeal, are

waived. LeMaire v. Louisiana, 480 F.3d 383, 387 (5th Cir. 2007) (“[A]rguments not raised

before the district court are waived and cannot be raised for the first time on appeal.”).

Appellants make no effort in any of their briefing to identify the national origins of 11

the alleged comparators or explain their failure to do so.

 Appellants appear to concede in their reply brief that the Moffitt Affidavit is the only 12

source of the missing comparator information when they assert that: “The allegations were

11

summary judgment evidence satisfying the fourth element of the prima facie

case: 1) the Smilex Proctored Tests List; 2) the Smilex RSP Training System

Summary Report; 3) excerpts of Willman’s deposition testimony; and 4) Keith

Moffitt’s affidavit. As noted above, appellants’ have failed to appeal the district 10

court’s exclusion of Keith Moffitt’s affidavit. The citations to Willman’s

deposition either do not support appellants’ argument or misrepresent her

testimony. As such, the only items of competent summary judgment evidence

advanced by appellants are the Proctored Test List and the Summary Report.

Neither of these items, however, make out a prima facie case. First, the

Proctored Test List actually cuts against appellants in that it shows appellees’

retest policy was applied to at least one non-minority individual, Keith Moffitt.

Second, the Summary Report, as explained by the district court, does not contain

sufficient information to make out a prima facie case. Appellants have

repeatedly relied upon a chart created by their counsel using the Summary

Report to demonstrate appellees’ disparate treatment of white employees. Yet

the Summary Report does not include any information regarding the race or

national origin of these supposed comparators. Appellants attempt to identify

the races of these comparators using the Moffitt Affidavit notwithstanding 11 12

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based also in part on the evidence in the declaration of Keith Moffitt . . . who identified the

races of the employees listed on the Smilex summary report below.” (emphasis in original).

 Though appellants also claim they were afforded insufficient discovery, they failed 13

to move for relief under Federal Rule of Civil Procedure 56(f) and therefore have waived this

argument on appeal. United States v. Bloom, 112 F.3d 200, 205 n.17 (5th Cir. 1997) (failure

to move under Rule 56(f) waives a party’s complaint that the district court ruled after

inadequate discovery); Potter v. Delta Air Lines, 98 F.3d 881, 887 (5th Cir. 1996) (failure to

seek relief under Rule 56(f) “foreclose[s] [a party] from arguing that [it] did not have adequate

time for discovery”); see generally 11 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE

§ 56.10(8)(b) (2010) (discussing the appellate consequences of failure to make a Rule 56(f)

motion).

12

the fact that it is not before the court. Accordingly, appellants have failed to

13

demonstrate a prima facie case of race or national origin discrimination as to all

appellants.

2. Appellants’ 42 U.S.C. § 1981 Retaliation Claims

The district court granted summary judgment on appellants’ § 1981

retaliation claims for two reasons: 1) appellants failed to state a plausible claim

for relief as to retaliation in their Third Amended Complaint; and 2) appellants

failed to advance competent summary judgment evidence demonstrating they

had engaged in protected activity. Appellants’ address the merits of this claim

only in their reply brief. Accordingly, any claimed error as to the grant of

summary judgment on appellants’ § 1981 retaliation claims has been waived.

See Tharling v. City of Port Lavaca, 329 F.3d 422, 430 (5th Cir. 2003) (holding

that appellant waived issue by failing to raise it in opening brief). 

3. Appellants’ Hostile Work Environment and Disparate Impact

Claims

Finally, we address appellants’ claim that the district court erred in

dismissing their hostile work environment and disparate impact claims.

Appellants’ Third Amended Complaint does not reference either a hostile work

environment claim or a disparate impact claim. The facts included in the

complaint do not describe a hostile work environment claim or a disparate

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13

impact claim. Neither of these claims are discussed anywhere in appellants’ 61-

page response to appellees’ original motion of summary judgment. The first time

appellants in any way suggest they are advancing either claim appears in their

improperly filed sur-reply. As the district court correctly explained below, a

plaintiff may not rely on new claims raised for the first time in a response – let

alone a sur-reply – to a motion for summary judgment. See Cutrera v. Bd. of

Supervisors of La. State Univ., 429 F.3d 108, 113 (5th Cir. 2005) (“A claim which

is not raised in the complaint, but, rather, is raised only in response to a motion

for summary judgment is not properly before the court.”). Additionally,

“[c]onclusory allegations, speculation, and unsubstantiated assertions are

inadequate to satisfy the nonmovant’s burden in a motion for summary

judgment,” Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002) (quotation

omitted), much less make out a claim. Accordingly, we agree with the decision

below that the appellants’ hostile work environment and disparate impact claims

were not properly before the court.

IV. CONCLUSION

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

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