IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-30649

Summary Calendar

SHIRLEY BENNETT, 

 Plaintiff–Appellant,

v.

CONSOLIDATED GRAVITY DRAINAGE DISTRICT NO. 1, 

 Defendant–Appellee.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:14-CV-217

Before KING, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Following her termination from Consolidated Gravity Drainage District 

No. 1 of Tangipahoa Parish (Consolidated), Plaintiff-Appellant Shirley 

Bennett, an African-American female, brought suit under Title VII of the Civil 

Rights Act of 1964, alleging discrimination and retaliation on the basis of her 

race. The district court denied Bennett’s motion to amend her complaint to 

add a claim under Louisiana’s whistleblower statute and a claim under § 1983 

 

* 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 16, 2016

Lyle W. Cayce

Clerk

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for violations of procedural due process, then granted Consolidated’s motion 

for summary judgement as to the Title VII claims. We affirm.

I

Bennett worked at Consolidated from 1991 until her termination in 

2012. Her annual reviews during the period of employment reveal a mixed 

record involving periods of tardiness and excessive personal phone calls, but 

also periods of stronger performance.

The “key event” at the center of this litigation occurred on March 26, 

2012. That morning, Bennett drank ice water from a styrofoam cup in her 

office. After leaving her office for an indeterminate period of time, she returned 

and took a sip from the same cup, expecting cold water from melted ice. 

However, the liquid she drank “started burning” her mouth, suggesting to her 

that there was more than just water in the cup. After investigating, Bennett 

determined that the contents of her cup smelled like the hand sanitizer in a 

bottle on her desk. She concluded that someone had put hand sanitizer in the

cup.

After discussing the incident with her superiors, Clyde Martin and 

Nancy Galofaro, Bennett reported the incident to Tangipahoa County Sheriff’s 

Office (TCSO) the next morning. The TCSO interviewed Bennett, Martin, and 

Galofaro and took the cup into evidence to investigate. No criminal charges 

were brought. However, the incident was greatly distressing for Bennett, 

causing her to cry on multiple occasions. According to Bennett, her superiors

treated her poorly in the aftermath of the hand sanitizer incident as she 

pressed for further investigation, and they yelled and screamed at her because 

they “wanted [her] to drop” it.

After her 2012 evaluation, Martin recommended that Bennett receive a 

2% cost of living salary increase. Bennett wrote a letter to Board of 

Commissioners’ (BOC) Personnel Committee—a four-member committee that 

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makes personnel recommendations to the full nine-member BOC, which 

governs Consolidated—protesting the insubstantial nature of her pay increase 

and questioning whether the lack of a larger raise was related to the hand 

sanitizer incident and her reaction thereto.

The Personnel Committee scheduled a meeting with Bennett to discuss 

her salary-related complaints. At the meeting, Bennett presented the 

committee with a second letter detailing the hand sanitizer incident. The 

Personnel Committee then deliberated. According to a member of the 

committee, Carlo Bruno, a consensus was reached during the deliberation that 

Bennett’s employment should be terminated for three reasons: (1) her

“documented history of tardiness, excessive personal telephone calls, excessive 

personal visitors, and lack of initiative”; (2) a belief among the committee that 

“Bennett manufactured the entire . . . hand sanitizer incident”; and (3) Bennett 

“misled the Personnel Committee into believing that the purpose” of her

meeting with the committee “was to discuss her 2012 evaluation and pay 

raise,” but instead “she focused the meeting almost entirely” on the hand 

sanitizer incident. The full BOC then voted to terminate Bennett, with one 

dissenting vote, and Bennett was fired the next day.

Following her termination, Bennett filed a charge with the EEOC 

alleging discrimination and retaliation. In response to the charge, 

Consolidated filed a position statement with the EEOC, denying that Bennett’s 

termination was discriminatory or retaliatory and asserting that, “[i]n 

summary, Ms. Bennett was terminated due to her poor performance and 

failure to perform the assigned work – not for any other reason.” The position 

statement specifically referenced Bennett’s “receipt of personal phone calls and 

visitors at work, her failure to be punctual, and her unproductiveness” as 

factors that influenced her termination, all of which “had nothing to do with 

her race, age, or disability.” The EEOC issued a right to sue letter. 

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Subsequently, Bennett filed a workers’ compensation claim based on the hand 

sanitizer incident.

Bennett then filed suit in the United States District Court for the 

Eastern District of Louisiana, alleging discriminatory and retaliatory 

termination under Title VII. Following the close of discovery, Consolidated 

filed a motion for summary judgment. Along with her opposition brief, Bennett 

filed a motion to amend her complaint. She sought to add a procedural due 

process claim under Loudermill1 and a claim under Louisiana’s whistleblower 

statute alleging that she was terminated in retaliation for reporting the hand 

sanitizer incident to authorities. The district court denied Bennett’s motion to 

amend and granted Consolidated’s motion for summary judgment in its 

entirety. Bennett timely appealed from both of these decisions.

II

We review a district court’s grant of summary judgment de novo, viewing 

the facts in the light most favorable to the non-moving party and applying the 

same standard as the district court.2 Summary judgment is appropriate when 

“there is no genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law.”3

We review a district court’s denial of a motion to amend the complaint 

for abuse of discretion, unless the denial was solely based on the futility of the 

proposed amendment, in which case we review de novo.4

III

 

1 Cleveland Bd. of Edu. v. Loudermill, 470 U.S. 532 (1985).

2 Lawyers Title Ins. Corp. v. Doubletree Partners, L.P., 739 F.3d 848, 856 (5th Cir. 

2014).

3 FED. R. CIV. P. 56(a).

4 S&W Enters., L.L.C. v. SouthTrust Bank of Alabama, NA, 315 F.3d 533, 535 (5th 

Cir. 2003); Wilson v. Bruks-Klockner, Inc., 602 F.3d 363, 368 (5th Cir. 2010).

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The district court denied Bennett’s motion to amend the complaint both 

because it was filed months after the deadline for motions to amend pleadings 

set by the district court’s scheduling order and because Bennett’s proposed 

amendment would be futile in light of the statutes of limitations applicable to 

the contemplated new claims. Bennett contends that both of these grounds 

were erroneous. Because we conclude that the district court did not err in 

denying Bennett’s motion on the ground that she failed to establish “good 

cause” to amend after the scheduling order deadline, we need not reach the

futility ground.

Where a motion to amend under Federal Rule of Civil Procedure 15(a) is 

filed after the deadline for such motions set by a scheduling order in the district 

court, Rule 16(b) governs the amendment.5 Under Rule 16(b), once a 

scheduling order is entered, it “may be modified only for good cause and with 

the judge’s consent.”6 That is, “[a]s to post-deadline amendment, a party must 

show good cause for not meeting the deadline before the more liberal standard 

of Rule 15(a) will apply to the district court’s denial.”7 Good cause under Rule 

16(b) “requires a party to show that the deadlines cannot reasonably be met 

despite the diligence of the party needing the extension.”8 Four factors in 

particular are relevant to the determination: “(1) the explanation for the failure 

to timely move for leave to amend; (2) the importance of the amendment; (3) 

potential prejudice in allowing the amendment; and (4) the availability of a 

continuance to cure such prejudice.”9 

 

5 S&W Enters., 315 F.3d at 535-36.

6 FED. R. CIV. P. 16(b)(4).

7 Fahim v. Marriott Hotel Servs., Inc., 551 F.3d 344, 348 (5th Cir. 2008) (citation and 

internal quotation marks omitted).

8 Id. (citation and internal quotation marks omitted).

9 Sw. Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir. 2003) (quoting S&W 

Enters., 315 F.3d at 536).

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We conclude that the district court did not abuse its discretion in finding 

that Bennett failed to establish “good cause.” Bennett claims that she only 

learned that she had viable whistleblower and procedural due process claims 

after reading the declarations of Martin, Galofaro, and Bruno, submitted by 

Consolidated in connection with its motion for summary judgment, which 

attributed her termination in part to the Personnel Committee’s shared belief 

that Bennett manufactured the hand sanitizer incident. However, Bennett 

conducted no discovery at all. Had she inquired in discovery as to the reasons 

for her termination, she would have learned prior to the close of discovery and 

prior to the amendment deadline that the hand sanitizer incident played a role 

in her termination. Thus, it cannot be said that Bennett exercised diligence, 

and the first factor weighs heavily in favor of Consolidated.

Additionally, allowing Bennett to amend her complaint at this late stage 

would require the district court to reopen discovery and necessitate new 

dispositive motions. Thus, Consolidated would suffer prejudice in a manner 

that cannot be ameliorated by a continuance.10 Our conclusion that the district 

court’s determination was a reasonable exercise of discretion is bolstered by 

the fact that “we more carefully scrutinize a party’s attempt to raise new 

theories of recovery by amendment when the opposing party has filed a motion 

for summary judgment.”11

The district court did not abuse its discretion in denying Bennett’s 

motion to amend.

 

10 See, e.g., Squyres v. Heico Companies, L.L.C., 782 F.3d 224, 239 (5th Cir. 2015)

(“Squyres . . . did not file his motion until . . . after discovery had closed, after Appellees had 

filed their motion for summary judgment, and just two days before Squyres’s response to the 

summary judgment motion was due. It was therefore not an abuse of discretion for the 

district court to conclude that Squyres’s motion came too late in the litigation.”).

11 Parish v. Frazier, 195 F.3d 761, 764 (5th Cir. 1999) (per curiam).

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IV

Bennett also contends that the district court erred in granting summary 

judgment on her Title VII discrimination claim. Under the McDonnell

Douglas12 burden-shifting framework, the plaintiff bears the initial burden of 

setting forth a prima facie case of discrimination, which requires her to 

“establish that she (1) is a member of a protected class, (2) was subjected to an 

adverse employment action, (3) was qualified for her position, and (4) was 

replaced by someone outside of the protected class.”13 If the plaintiff makes 

this showing, the burden of production shifts to the defendant to “articulat[e]

a legitimate, nondiscriminatory reason for the adverse employment action.”14 

If the defendant carries this burden, the plaintiff must establish that the 

proffered reason is not the true basis for the adverse employment action, but 

is instead a pretext.15 The plaintiff also carries the ultimate burden of proving 

intentional discrimination.16

Here, the district court concluded, and Consolidated does not contest, 

that Bennett has established a prima facie case of discrimination. Bennett

does not dispute that the three reasons offered by Consolidated for her 

termination—specifically, (1) that Bennett has a “history of tardiness, 

excessive personal telephone calls, excessive personal visitors, and a lack of 

initiative”; (2) that she manufactured the hand sanitizer incident; and (3) that 

she misled the Personnel Committee regarding the nature of her request for a 

meeting—are nondiscriminatory. 

Instead, Bennett asserts that she has carried her burden of showing that

the reasons are pretextual. Specifically, she argues that the explanations

 

12 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

13 Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 345 (5th Cir. 2007). 14 Id. 15 Id. 16 See, e.g., Price v. Fed. Exp. Corp., 283 F.3d 715, 723-24 (5th Cir. 2002).

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given by Consolidated in the district court and on appeal are inconsistent with 

the reason given by Consolidated in its position statement to the EEOC, and 

that this inconsistency alone satisfies her burden of demonstrating pretext.

In its EEOC position statement, Consolidated denied Bennett’s charges 

of discrimination and retaliation, stating, “[i]n summary, Ms. Bennett was 

terminated due to her poor performance and failure to perform the assigned 

work – not for any other reason.” Consolidated specifically cited Bennett’s 

“receipt of personal phone calls and visitors at work, her failure to be punctual, 

and her unproductiveness” as factors supporting the BOC’s decision to 

terminate. According to Bennett, the fact that Consolidated gave only one 

reason to the EEOC but has given three reasons for terminating Bennett in 

this litigation suggests that the reasons now given are pretextual. 

In support of her argument, Bennett claims that in Burton v. Freescale 

Semiconductor, Inc.,17 the Fifth Circuit set forth a per se rule that 

inconsistencies between the explanation given to the EEOC and that given to 

the district court suffice to carry a plaintiff’s burden of showing pretext.

However, in Burton, we simply held, commonsensically, that a purported 

reason that only comes to light after the decision to terminate has been made 

cannot be the real reason for termination; we did not suggest that 

inconsistencies render a reason “necessarily illegitimate,” as Bennett asserts.18 

To be sure, we also noted that a rationale may be “‘suspect’ where it ha[s] ‘not 

remained the same’ between the time of the EEOC’s investigation and the 

ultimate litigation.”19 However, in those cases in which we have focused on 

 

17 798 F.3d 222, 238 (5th Cir. 2015).

18 Id.

19 Id. at 237 (quoting Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 

415 (5th Cir. 2007)).

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inconsistent rationales, there has been otherwise strong evidence of pretext.20

No such independent evidence exists here at all, as Bennett’s case depends 

entirely on the purported inconsistency.

More importantly, the three reasons given to the district court are not 

actually inconsistent with the reason given to the EEOC. Rather, the first 

reason—a performance-based one involving a history of personal phone calls 

and visitors, as well as a lack of initiative—is identical to the explanation given 

in the position statement, and the other two reasons do not contradict what 

was told to the EEOC. In Burton, we recognized that reasons for a termination

that are merely “additional,” and not contradictory, do not necessarily suggest

pretext.21 Indeed, we have never held that an employer giving additional 

reasons to the district court to supplement those given to the EEOC supports

an inference of pretext.22 The mere fact that Consolidated’s attorneys provided 

the EEOC with only one of Consolidated’s three justifications for terminating 

Bennett’s employment does not constitute a substantial showing of pretext.

 

20 See id. (purported rationales post-dated decision, key witnesses testified 

inconsistently, and employer sought to create paper trail after termination decision); Burrell, 

482 F.3d at 415 (rationales given to EEOC versus district court were contradictory rather 

than supplementary and qualifications of person actually hired were worse than those of 

plaintiff).

21 Burton, 798 F.3d at 238-39.

22 See Johnson v. Nordstrom, Inc., 260 F.3d 727, 733-34 (7th Cir. 2001) (“In [cases

relied on by plaintiff], pretext was demonstrated by not only shifting but also conflicting, and 

at times retracted, justifications for adverse treatment. Here, [defendant] simply 

supplemented its explanations in the context of EEOC charges and litigation; there has been 

no retraction of any of its reasons for failing to promote [plaintiff] nor are any its reasons

inconsistent or conflicting.”); see also Aragon v. Republic Silver State Disposal Inc., 292 F.3d 

654, 661 (9th Cir. 2002) (no pretext where different reasons given to state equal rights 

commission and district court but reasons were not contradictory); Simpson v. Kay Jewelers, 

Div. of Sterling, Inc., 142 F.3d 639, 649 n.15 (3d Cir. 1998) (no pretext where reason given to 

district court was not given to EEOC); Tidwell v. Carter Products, 135 F.3d 1422, 1428 (11th 

Cir. 1998) (“At most, the jury could find that performance was an additional, but undisclosed, 

reason for the decision; the existence of a possible additional non-discriminatory basis for 

Tidwell’s termination does not, however, prove pretext.”).

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The closest Bennett comes to showing that the reasons given to the 

district court are inconsistent with the reason given to the EEOC is the fact 

that in the EEOC position statement, Consolidated stated that Bennett was 

fired based on her performance and “not for any other reason.” According to 

Bennett, the disclaimer of other grounds for termination renders any 

supplementary reason inconsistent. We disagree. 

In any event, even were Bennett correct that the three rationales offered 

by Consolidated in this litigation are inconsistent with the reason provided to 

the EEOC, and that this inconsistency carries her burden of demonstrating 

pretext, summary judgment would still be appropriate with respect to 

Bennett’s ultimate burden. For an employer to be liable for discrimination 

under Title VII, the employee must establish not only that the employer’s 

purported basis for termination was pretextual, but also “that the real reason 

was intentional discrimination.”23 Although in many circumstances a plaintiff 

may defeat summary judgment merely by carrying her burden of showing that 

the defendant’s proffered reason was false, coupled with meeting her initial 

burden of establishing a prima facie case,24 this result does not follow in every 

case.25 

 

23 St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515-17 (1993). 24 See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000) (“Thus, 

a plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s 

asserted justification is false, may permit the trier of fact to conclude that the employer 

unlawfully discriminated.”); see also Blow v. City of San Antonio, 236 F.3d 293, 297 (5th Cir. 

2001) (“Reeves held that a trier of fact may infer the ultimate fact of discrimination from the 

falsity of the employer’s explanation.”).

25 See Reeves, 530 U.S. at 146-47 (“[T]he factfinder’s rejection of the employer’s 

legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff.

The ultimate question is whether the employer intentionally discriminated, and proof that 

‘the employer’s proffered reason is unpersuasive, or even obviously contrived, does not 

necessarily establish that the plaintiff’s proffered reason is correct.’” (alteration and citation 

omitted) (emphasis in original) (quoting Hicks, 509 U.S. at 519 (1993)); see also Hicks, 509 

U.S. at 519 (“It is not enough . . . to dis believe the employer; the factfinder must believe the 

plaintiff’s explanation of intentional discrimination.” (emphasis in original)).

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In Reeves v. Sanderson Plumbing Products, Inc., the Supreme Court held 

that judgment as a matter of law in favor of the employer would be appropriate, 

notwithstanding a plaintiff raising an issue of fact as to pretext, “if the record 

conclusively revealed some other, nondiscriminatory reason for the employer’s 

decision, or if the plaintiff created only a weak issue of fact as to whether the 

employer’s reason was untrue and there was abundant and uncontroverted 

independent evidence that no discrimination had occurred.”26 Interpreting 

Reeves, we have held that “whether summary judgment is appropriate” once 

an employee raises a triable issue as to pretext “depends on numerous factors, 

including ‘the strength of the plaintiff’s prima facie case, the probative value 

of the proof that the employer’s explanation is false, and any other evidence 

that supports the employer’s case and that properly may be considered.’”27 

Here, even if Bennett has cast some minimal degree of doubt on any of 

Consolidated’s reasons for terminating her employment, her evidence of 

pretext is weak at best. Additionally, she has not offered even a scintilla of 

evidence that race had anything to do with the termination.28 Accordingly, no 

reasonable jury could conclude that the real reason for Bennett’s termination 

was race, and under the framework of Reeves, Consolidated would be entitled 

to summary judgment even if Bennett carried her burden of showing pretext.

Additionally, Bennett does not attempt to call into question the 

explanation Consolidated gave to both the EEOC and the courts—her 

 

26 530 U.S. at 148.

27 Price v. Fed. Exp. Corp., 283 F.3d 715, 720 (5th Cir. 2002) (quoting Reeves, 530 U.S. 

at 148-49); see also id. at 720 n.1 (noting that “[a]lthough Reeves was based on a motion for 

judgment as a matter of law, the standard is the same for summary judgment”); Vadie v. 

Miss. State Univ., 218 F.3d 365, 373-74 (5th Cir. 2000) (holding that, even assuming jury 

credited pretext argument, “[t]here simply is not a scintilla of evidence that Dr. Vadie’s 

national origin played any role in any decision that the defendant made with respect to him 

during his tenure.”).

28 Vadie, 218 F.3d at 373-74.

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lackluster performance. Accordingly, she has failed to carry her burden of

“rebut[ting] each discrete reason proffered by the employer.”29 

In sum, Bennett has not put forth evidence that Consolidated’s 

legitimate, nondiscriminatory reasons for firing her were pretextual, and the 

district court properly granted summary judgment.

V

In a single sentence of her brief, Bennett also asserts that “[a]lthough 

[she] did not oppose the motion for summary judgment on the retaliation claim 

[in the district court], that decision must also be reversed for the same reasons 

that the decision on the discrimination claim must be reversed.” Plainly, even 

if the retaliation claim had merit, she has waived it.30 Moreover, contrary to 

arguments in Bennett’s reply brief, the position statement’s insistence that 

Bennett was not terminated in retaliation for reporting the hand sanitizer 

incident is not inconsistent with Consolidated’s acknowledgment that 

Bennett’s extended discussion of that incident at her meeting to discuss her 

raise was a factor in her termination. 

* * *

For the reasons set forth above, we AFFIRM the district court’s decision 

in its entirety.

 

29 Burton, 798 F.3d at 233; see also Rutherford v. Harris Cty., 197 F.3d 173, 184 (5th 

Cir. 1999) (A plaintiff “must provide some evidence, direct or circumstantial, to rebut each of 

the employer’s proffered reasons and allow the jury to infer that the employer’s explanation 

was a pretext for discrimination.”).

30 See, e.g., Martco Ltd. P’ship v. Wellons, Inc., 588 F.3d 864, 877 (5th Cir. 2009).

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