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. 09-10130

Summary Calendar

DANIEL G MOORE,

Plaintiff – Appellant

v.

DUNCANVILLE INDEPENDENT SCHOOL DISTRICT,

Defendant – Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:06-CV-2085

Before GARZA, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Daniel G. Moore appeals the district court’s grant of summary judgment

in favor of Duncanville Independent School District on his national origin

discrimination action. For the following reasons, the judgment is affirmed.

FACTS AND PROCEEDINGS

Moore was employed by the Independent School District as an Assistant

Security Operations Officer for schools in the City of Duncanville, Texas. In May

United States Court of Appeals

Fifth Circuit

F I L E D

December 21, 2009

Charles R. Fulbruge III

Clerk
No. 09-10130

2

2006, the District terminated his employment. Moore filed suit, alleging that his

termination was based on his Hispanic origin in violation of Title VII. Following

discovery, the District filed a motion for summary judgment, to which Moore

failed to reply. The district court granted the motion and dismissed the case

with prejudice. The court concluded that Moore had not adduced sufficient

evidence to demonstrate termination on account of his national origin. It also

noted the District’s evidence that Moore was terminated for repeated tardiness,

repeated absences, unprofessional remarks, insubordination, and improperly

seeking to adjust his time sheets. 

Following the entry of final judgment, Moore moved for a new trial, which

was construed as a motion to alter or amend the judgment under Federal Rule

of Civil Procedure 59(e). His attorney first asserted that he had never received

notice of the District’s summary judgment motion and had failed to respond for

that reason. Moore further contended that numerous issues of material fact

existed which precluded dismissal of his case. The district court denied relief.

It found no evidence of direct discrimination and further found that the

circumstantial evidence Moore cited did not make out a prima facie case of

intentional discrimination. It alternatively found that the District provided

legitimate, nondiscriminatory reasons for terminating Moore, and that Moore

failed to demonstrate that those reasons were pretextual. Moore timely

appealed.

STANDARD OF REVIEW

The applicable standard of review of the denial of a Rule 59(e) motion to

alter or amend depends upon whether the district court considered material

attached to the motion which had not been previously provided to the court.

Templet v. HyrdoChem Inc., 367 F.3d 473, 477 (5th Cir. 2004). Because the court

considered Moore’s proffered evidence, and nonetheless granted summary

judgment, the appropriate standard of review is de novo. Id. Summary
No. 09-10130

3

judgment is appropriate if no genuine issue of material fact exists and the

moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). 

DISCUSSION

Moore challenges two aspects of the district court’s ruling. First, he

challenges its refusal to allow him additional time to respond to the summary

judgment motion because of his alleged non-receipt of that motion. Second, he

argues that genuine issues of material fact precluded summary judgment in the

District’s favor. 

A. Electronic Receipt of the District’s Motion

Moore’s attorney, Frank P. Hernandez, contends that he never received

the District’s motion for summary judgment. Without citing any evidence,

Hernandez blames “the electronic filing system in the Federal clerk’s office” for

his alleged non-receipt. However, during an evidentiary hearing in the district

court and contrary to his current contention on appeal, Hernandez conceded that

he had electronically received the motion, stating that it had been filed in a

“spam” folder. In light of Hernandez’s contradictory assertions and the lack of

supporting evidence, the argument that Moore was entitled to a deadline

extension or other relief fails.

B. Summary Judgment

Moore argues that numerous material fact issues exist concerning whether

the District’s proffered reasons for termination were pretextual. His argument

ignores the district court’s conclusion that he failed to establish a prima facie

case of discrimination. 

In order to show a prima facie case of discriminatory termination, a

plaintiff must first establish that he (1) is a member of a protected class; (2) was

subjected to an adverse employment action; (3) was qualified for his position;

and (4) was replaced by someone outside of the protected class. Turner v. Baylor

Richardson Med. Ctr., 476 F.3d 337, 345 (5th Cir. 2007). As Moore admits, his
No. 09-10130

 Because Moore failed to establish a prima facie case of discrimination, we need not 1

reach his argument that the District’s proffered reasons for termination were pretextual.

4

replacement was, like him, of Hispanic national origin and was therefore not

“outside of the protected class.” Moore has presented no evidence which would

challenge the district court’s finding.1

Moore also argues that there is longstanding unequal treatment by the

District of other individuals in violation of Title VII. Specifically, he contends

that the District did not raise the proportion of Hispanic employees on its

security staff as the Hispanic population of the surrounding area increased. As

the District points out, Moore provides no evidence of the actual demographic

composition of the City of Duncanville. Moreover, this argument has little, if

any, bearing on whether Moore himself suffered unlawful discrimination.

Finally, Moore’s brief refers to a written grievance he filed about another

security officer as the basis for his “theory of retaliation.” His complaint,

however, did not assert a retaliation claim. These allegations are therefore

immaterial to his claim of discrimination on the basis of national origin.

CONCLUSION

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

AFFIRMED.