IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20573

Summary Calendar 

LARRY ALLEN, 

 Plaintiff - Appellant

v.

HOUSTON INDEPENDENT SCHOOL DISTRICT, 

 Defendant - Appellee

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. 4:14-CV-1717

Before STEWART, Chief Judge, and JOLLY and JONES, Circuit Judges.

PER CURIAM:*

This matter involves a lawsuit filed by Plaintiff Larry Allen against his 

former employer, Defendant Houston Independent School District (HISD), 

alleging violations of the Age Discrimination in Employment Act of 1967 

(ADEA), Title VII of the Civil Rights Act of 1964, and the Texas Commission 

on Human Rights Act (TCHRA). Allen appeals a final judgment entered by the 

 

* 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

Fifth Circuit

FILED

May 3, 2017

Lyle W. Cayce

Clerk

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United States District Court for the Southern District of Texas, denying Allen 

leave to amend his complaint to assert additional claims and granting 

summary judgment in favor of HISD on his hostile work environment and 

retaliation claims. For the reasons that follow, we AFFIRM. 

I. Background

Larry Allen is an African American man over the age of fifty. He began 

working in Senior Manager Support1 in HISD’s Transportation Department in 

November of 2010, under a “Non-Certified Administrator Performance 

Contract.” On August 12, 2012, his supervisor, Nathan Graf, allegedly sent an 

email to a number of Allen’s co-workers that incorrectly averred that Allen had 

failed to complete a “high-priority” task. 

Following that incident, Allen alleges that Graf began reassigning his 

duties and responsibilities to younger HISD employees and harassing him by: 

(1) allegedly distorting his face on an iPad and sharing that distorted photo 

with others in the office, against his wishes; (2) remarking to another co-worker 

that Allen was slow in getting around; and (3) making a comment about Allen’s 

graying hair. On September 28 2012, Allen met with Graf’s supervisor, Leo 

Bobadilla, to discuss his concerns—Allen contends that Bobadilla took no 

action to restrain Graf’s behavior, which allegedly continued. 

Next, on October 2, 2012, Graf issued Allen a “written reprimand,” which 

included allegations regarding a bus stop assignment. According to Allen, he 

sent both Graf and Bobadilla a letter to request that Graf cease harassing him 

and creating a hostile work environment. Allen then claims to have met with 

Graf and a human resources representative, Gary Estes, to discuss these 

events. During this meeting, Graf allegedly said that he “knew how to 

 

1 Allen’s precise job title is not consistently stated in the record and is therefore

unclear.

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discipline” Allen, but that he “did not know how to discipline” a white coworker, Mark Swackhamer, HISD Senior Manager of Vehicle Maintenance. 

Allen took this comment to signify that Swackhamer had received preferential 

treatment. 

Allen then alleges that his work duties “continued to be removed and 

reassigned” over the next four months, and complains that on December 21, 

2012, Graf promoted two of Allen’s subordinates without Allen’s knowledge. 

Allen then lodged a complaint with the “HISD Equal Opportunity Office,” 

alleging age discrimination, race discrimination, and a hostile work 

environment. According to Allen, he soon learned from a co-worker that his 

position was being “eliminated,” and that his employment contract “would not 

be renewed.” Graf reportedly decided to combine the positions of “Senior 

Management Support” and “Senior Manager of Operations” around this time, 

to “increase departmental efficiency.” He chose Chester Glaude, a forty-six 

year-old African American male, for the new position, and he recommended 

that Allen’s employment contract not be renewed. Allen attended an HISD 

“conference for the record” on July 27, 2013, where he was officially informed 

that his position had been eliminated and was offered the option of resigning

with severance pay in lieu of termination. Allen rejected that option, and HISD 

terminated his employment a short time later. 

Allen then filed a discrimination charge with the Equal Employment 

Opportunity Commission (EEOC), wherein Allen claimed that HISD had 

discriminated against him based on his age and race and retaliated against 

him for complaining about that discrimination. Allen filed this action on June 

19, 2014, after receiving notice of his right to sue from the EEOC. In his 

Amended Complaint, Allen made claims for race discrimination under Title 

VII, age discrimination under the ADEA and the TCHRA, hostile work 

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environment under all three statutes, and retaliation under Title VII and the 

TCHRA. 

Defendant moved for summary judgment on Allen’s discrimination 

claims, but not on the hostile work environment or retaliation claims. The 

district court granted summary judgment on Allen’s discrimination claims, and 

entered final judgment on February 11, 2016, mistakenly dismissing the case 

as to all claims. Allen filed a motion for reconsideration on June 9, 2016, on the 

grounds that the magistrate judge’s recommended order that the district court 

ultimately adopted did not address his remaining claims. The district court 

granted Allen’s motion for reconsideration on June 9, 2016, and, in the same 

order, determined that HISD’s reply to that motion would constitute a second 

motion for summary judgment as to the hostile work environment and 

retaliation claims. The district court required Allen to respond no later than 

July 7, 2016. 

On June 16, 2016 Allen filed a motion for leave to amend his complaint 

and attached the second amended complaint. The chief purpose of the second 

amended complaint appears to have been the addition of claims under 42 

U.S.C. §§ 1981 and 1983—for hostile work environment and retaliation. HISD 

filed a response to this motion, arguing that leave should not be granted 

because: (1) claims under these sections require a showing that the challenged 

acts were undertaken pursuant to a government custom, policy, or practice, 

and Allen’s choice to proffer these claims after depositions were taken and 

discovery had closed—despite having “ample time” prior—makes it difficult for 

HISD to explore that requirement via fact witnesses; (2) the factual basis for 

Allen’s hostile work environment claim under § 1981 represented a “rehash” of 

his previously dismissed ADEA claim; (3) the same evidentiary framework 

applied to Allen’s Title VII claims for employment discrimination also governs 

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§ 1981 claims, and because the Title VII claim based on the same predicate 

facts was dismissed, the amendment to add the § 1981 claim was futile. 

The district court held a hearing on both the motion for leave to amend 

and for summary judgment on July 29, 2016, ruling from the bench on both 

motions. First, the district court denied leave to amend on the basis of three 

disfavored facts: (1) the length of time (exemplified here by the fact that there 

had already been an amendment in August 2014, and the new motion did not 

come until June 2016); (2) discovery had long closed; and (3) the motion came 

only after a second motion for summary judgment to dispose of all the claims 

already pleaded. The district court also noted that leave to amend was 

unnecessary, because the elements of the proposed claims were before the court 

in the claims already pleaded.2 Second, the district court granted summary 

judgment to HISD on the remaining hostile work environment and retaliation 

claims contained in the First Amended Complaint. 

The district court concluded that there was not sufficient evidence to 

meet the standard applicable to hostile work environment claims under any 

statute. In particular, it ruled that the totality of the circumstances revealed 

only isolated, “occasional utterances that were viewed as offensive” and were 

“not severe in any fashion,” and that there was no evidence raising any fact 

issue as to interference with Allen’s work. 

As to retaliation, the district court held that (1) Allen had made out a 

prima facie case based on temporal proximity between the protected activity 

and “the alleged transferring of responsibilities that led up to the 

 

2 The district court also noted that to the extent that the elements of the new claims 

were not already before the court, they would still be precluded for the three reasons already 

mentioned.

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termination,”3 and that (2) HISD had presented sufficient evidence of 

“legitimate non-retaliatory reasons” for failing to renew Allen’s contract—

specifically, that there was no further need for his position, given the 

consolidation of that position with another to improve departmental efficiency.

The burden then shifted back to Allen to show evidence establishing a 

genuine issue as to pretext—whether HISD would have taken the action but 

for the protected conduct. The district court found Allen’s evidence insufficient 

on this point, insofar as Allen could not: (1) present evidence that HISD 

departed from the standard reorganization procedure in failing to renew 

Allen’s contract, or that such a standard procedure existed at all; (2) present 

evidence that the individual with whom Allen was replaced, Glaude—who was 

only somewhat younger and was also African American—was so significantly 

less qualified as to support an inference of pretext. Accordingly, the district 

court granted summary judgment to HISD. Allen appeals the district court’s 

denial of leave to amend and its grant of summary judgment on his retaliation 

claims. 

II. Standard of Review

This court reviews denial of a motion to amend for abuse of discretion. 

Cambridge Toxicology Grp., Inc. v. Exnicios, 495 F.3d 169, 177 (5th Cir. 2007). 

In the context of a motion seeking leave to amend, the court’s discretion is 

limited insofar as Federal Rule of Civil Procedure 15(a) evinces a bias in favor 

of leave to amend. Martin’s Herend Imports, Inc. v. Diamond & Gem Trading

U.S.A. Co., 195 F.3d 765, 770 (5th Cir. 1999). Indeed, the district court lacks 

discretion to deny such a motion in the absence of a “‘substantial reason,’ such 

 

3 In particular, the evidence the district court pointed to included (1) Allen’s 

September 2012 complaint; (2) his March 23 EEO complaint; and (3) the reduction of job 

responsibilities over the following four months, culminating in termination.

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as undue delay, bad faith, dilatory motive, or undue prejudice to the opposing 

party.” Id. (quoting Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597 (5th 

Cir. 1981)). 

This court reviews a district court’s grant of summary judgment de novo 

under the standard applied by the district court. Sanders-Burns v. City of 

Plano, 594 F.3d 366, 380 (5th Cir. 2010) (citing Riverwood Int’l Corp. v. Emp’rs 

Ins. Of Wausau, 420 F.3d 378, 382 (5th Cir. 2005)). “The moving party is 

entitled to judgment as a matter of law when the pleadings, answers to 

interrogatories, admissions and affidavits on file indicate no genuine issue as 

to any material fact.” Byers v. Dall. Morning News, Inc., 209 F.3d 419, 424 (5th 

Cir. 2000). 

III. Discussion

A.

Allen first challenges the district court’s ruling denying him leave to 

amend his complaint. He contends that none of the grounds on which the 

district court denied the motion can justify the denial. Allen argues that there 

was no undue delay, since his decision to seek leave to amend “was a result of 

the Court’s summary judgment dismissing [Allen’s] racial discrimination 

claims and incorrectly dismissing his retaliation claim,” and the leave he 

sought was to “expand his remaining claims’ legal theories” following summary 

judgment. He argues that the closure of discovery cannot be a reason to deny 

leave; since Title VII and § 1981 claims are governed by the same evidentiary 

standard, the fact that he pleaded Title VII claims should have given notice of 

possible § 1981 claims. He points out that the motion to amend post-dated 

HISD’s second motion for summary judgment only because the district court 

chose to consider HISD’s reply to the motion for reconsideration as a motion 

for summary judgment. Lastly, he objects that, although the elements of a Title 

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VII and § 1981 claim are concededly the same, the claims are legally distinct

and should not be treated as though they were equivalent. See e.g., Johnson v. 

Ry. Express Agency, Inc., 421 U.S. 454, 460 (1975) (noting that “the remedies 

under Title VII and under § 1981, although related, and although directed to 

most of the same ends, are separate, distinct, and independent”). 

We hold that the district court did not abuse its discretion in denying 

Allen leave to amend his complaint. The district court properly considered the 

combination of Allen’s delay in filing and the fact that discovery had closed as 

factors weighing against granting leave to amend. For delay to form a basis for 

denial of leave, that delay must be “undue, i.e. it must prejudice the nonmoving 

party or impose unwarranted burdens on the court.” Mayeaux v. La. Health 

Serv. & Indem. Co., 376 F.3d 420, 427 (5th Cir. 2004). The prejudice in this 

case is derived from the fact that addition of discrimination claims under § 

1981 and § 1983 imports a new element into the proceedings; namely, that a 

state or state actor violated these sections pursuant to a “custom or policy.” 

Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 736 (1989). Had Allen moved for 

leave to amend before or during discovery, rather than after its closure, HISD 

would probably have explored issues related to this requirement by deposing 

witnesses. That the late timing of the motion makes such exploration difficult 

is prejudicial, and if the only way the court could alleviate that prejudice is by 

reopening discovery, then that delay also places an unwarranted burden on the 

court—especially when the court stood on the verge of resolving the 

proceedings altogether. In sum, the district court explicitly provided a 

substantial reason for denial of leave to amend and did not abuse its discretion

in doing so. See Martin’s Herend Imps., 195 F.3d at 770.

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B.

Allen next challenges the district court’s grant of summary judgment in 

favor of HISD on his retaliation claims under Title VII and the TCHRA. In 

particular, Allen argues that a dispute of material fact exists as to pretext

because: (1) there is a temporal relationship between the protected activity and 

the ultimate termination; (2) HISD did not offer evidence of an increase of 

efficiency after Allen’s termination; (3) a relevant comparator exists in the 

experience of Aaron Hobbs, whose position was also terminated, allegedly 

pursuant to a “reorganization”; (4) that Glaude was comparatively 

inexperienced as concerned the managerial position he assumed in place of 

Allen.4

“The substantive law governing Title VII and TCHRA retaliation claims 

is identical.” Gorman v. Verizon Wireless Tex., L.L.C., 753 F.3d 165, 170 (5th 

Cir. 2014). Both statutes require a plaintiff to make out a prima facie case 

showing that: (1) he engaged in a protected activity; (2) some adverse 

employment action occurred; and (3) a causal link exists between the protected 

activity and the adverse employment action. See id. Where a prima facie case 

is established, and where the “retaliation claim . . . is premised on a pretextual 

rationale for dismissal,” Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 

400 (5th Cir. 2013), the claim is evaluated under a burden shifting framework: 

“(1) first, the employee must demonstrate a prima facie case of retaliation; (2) 

the burden then shifts to the employer, who must state a legitimate nonretaliatory reason for the employment action; and (3) if that burden is satisfied, 

 

4 Allen raises a number of arguments for the first time in his reply brief, including that HISD 

lacked a legitimate business reason for separation and that, contrary to the district court’s 

determination, Allen did make out a prima facie claim as to hostile work environment. As these 

arguments were not raised in Allen’s opening brief, they are waived. See United States v. Jimenez, 509 

F.3d 682, 693 n.10 (5th Cir. 2007) (“Issues not raised in an appellant’s initial brief . . . are deemed 

waived.”).

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the burden then ultimately falls to the employee to establish that the 

employer’s stated reason is actually a pretext for unlawful retaliation.” Id.; see 

also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973).

Importantly, once the defendant articulates a legitimate reason for the 

allegedly problematic employment action, the inference of retaliation created 

by the prima facie case disappears, and the plaintiff bears the burden of 

proving that the articulated reason is pretextual by a preponderance of the 

evidence. See Lawrence v. U.T. Med. Branch, 163 F.3d 309, 312 (5th Cir. 1999). 

Allen identifies only two additional pieces of evidence in the record to 

support the existence of a genuine issue as to pretext.5 Both provide too weak 

and speculative a basis to infer that Allen’s termination was carried out for a 

retaliatory purpose. See McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th 

Cir. 2007) (noting that the plaintiff bears burden of proving that an employer’s 

proffered reason is pretextual). First, Allen’s attempt to identify a relevant 

comparator by which to establish a “standard reorganization procedure” from 

which his termination deviated consists entirely of Allen’s depositional

reference to Aaron Hobbs’s experience. This perspective lacks independent 

confirmation from Hobbs, and in any case, there is nothing in the record to 

support that the one reorganization in the past to which Allen refers

established a “standard” for the future, such that a purported deviation from 

that standard could be reliably assessed. 

 

5 As recounted above, Allen argues that the temporal connection between the 

termination and protected activity should weigh in his favor on this issue. But because the

district court already based its finding of a prima facie case on that ground, Allen must point 

to additional facts to carry his burden at the pretext stage. See Lawrence, 163 F.3d at 312. 

Allen’s additional argument that HISD’s failure to identify efficiency gains from the 

reorganization it cites as the reason for terminating Allen must also fail. Such an argument 

represents an impermissible attempt to shift the burden on the issue of pretext. See id. 

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Second, although there exists something of a disparity in educational 

attainment between Allen and Glaude, Allen provides no significant evidence 

that Glaude’s qualifications are so out of sync with the requirements of the new

position he was slated to assume as to raise an inference of pretext—especially 

given evidence of Glaude’s extensive experience with HISD and the record 

evidence as to his knowledge of the school district’s mode of operation. In sum, 

the district court did not err in granting summary judgment to HISD on the 

issue of pretext. See Sanders-Burns, 594 F.3d at 380. 

IV. Conclusion

For the reasons stated, we AFFIRM the ruling of the district court as to 

all issues. 

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