*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this opinion should not be published and is not precedent except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.

1 Coutcher, who is Caucasian, was 61 when terminated.

2 We are only asked to decide the propriety of the court's

grant of judgment on Coutcher's 42 U.S.C. § 1981 and § 1983 claims.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 00-30662 

Summary Calendar

 

HAROLD COUTCHER, Plaintiff-Appellant,

versus

LOUISIANA LOTTERY CORPORATION; 

DANNY JACKSON Defendant-Appellee.

 

Appeal from the United States District Court

For the Western District of Louisiana 

(97-CV-372)

 

October 6, 2000

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Appellant contends that he was terminated from his job as a

regional manager for the Louisiana Lottery Corporation ("LLC")

because of his race and age.

1 Coutcher urges us to overturn the

decision of the district court granting summary judgment in favor

of defendants.2 He also asks us to overturn the court's denial of
3 120 S. Ct. 2097 (2000).

4 See Reeves, 120 S. Ct. at 2106.

5 See Wyvill v. United Companies Life Ins. Co., 212 F.3d 296,

304 (5th Cir. 2000).

2

his motion to stay federal proceedings in favor of a parallel state

proceeding, as well as his motion to amend his complaint. We

decline this invitation.

The district court had ample, uncontroverted evidence upon

which to base its grant of summary judgment. Although the court did

not have the guidance of the Supreme Court's decision in Reeves v.

Sanderson Plumbing Products Co.,

3 it specifically held that

Coutcher failed to demonstrate that the reasons for his discharge

were pretextual.4 The court cited "overwhelming" evidence that the

discharge was based on Coutcher's inadequate job performance.

Coutcher failed to dispute the fact that numerous employees filed

complaints; that Jackson investigated the complaints and ordered

him to rectify the situation; and that he disobeyed Jackson's clear

directive that regional managers not leave the office on days when

terminal extractions were undertaken. 

Croutcher's evidence of pretext is either irrelevant or

insufficient as a matter of law. Plaintiff's claim that a

similarly-situated black male was not terminated fails to meet the

requirement that such evidence be "nearly identical" to the facts

at issue.5 Moreover, the allegedly racist comments by Jackson were
6 See Sreeram v. Louisiana State Univ. Med. Center-Shreveport,

188 F.3d 314, 320-21 (5th Cir. 1999); Bennett v. Total Minatome

Corp., 138 F.3d 1053, 1061 (5th Cir. 1998).

7 See Scott v. University of Mississippi, 148 F.3d 493, 510

(5th Cir. 1998); Smith v. Western Electr. Co., 770 F.2d 520, 525-28

(5th Cir. 1985). 

8 Coutcher cites Reeves, 120 S.Ct. at 2110.

9 See Boze v. Branstetter, 912 F.2d 801, 807 (5th Cir. 1990)

(condemning restriction on summary judgment motions that would

render them "meaningless, time-consuming, and expensive

exercises").

3

stray remarks not relevant to Coutcher's termination.6 Inadequate

sample size invalidates Coutcher's statistical evidence regarding

the hiring and termination of regional managers.7 At the district

court level, Coutcher also failed to contradict testimony that the

proposed disciplinary procedures were not in effect at the time of

his termination; his argument on this ground therefore fails.

The fact that Jackson and Shuford were employees of LLC does

not mean that this Court must disregard their testimony as

"interested witnesses" for purposes of summary judgment. Adoption

of such a position is not compelled by Reeves,

8 and would render it

virtually impossible for defendants to obtain summary judgment in

discrimination cases, where the testimony of other employees is

central to their resolution.9

The district court did not abuse its discretion in refusing to

grant Coutcher's motion to stay. The putative impact on state

finances by an adverse judgment in this case - i.e., a possibly
10 See Pendergrass v. Greater New Orleans Expressway Comm'n,

144 F.3d 342, 345 (5th Cir. 1998).

11 See Colorado River Water Conservation Dist. v. United

States, 424 U.S. 800, 813-14 (1976); Murphy v. Uncle Ben's, Inc.,

168 F.3d 734, 738 (5th Cir. 1999) (finding that parallel litigation

was duplicative, not piecemeal, and stating that "the prevention of

duplicative litigation is not a factor to be considered in an

abstention determination").

12 See Avatar Exploration, Inc. v. Chevron, U.S.A., Inc., 933

F.2d 314, 320 (5th Cir. 1991).

13 See Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139-40 (5th Cir.

1993).

14 See Addington v. Farmer's Elevator Mut. Ins. Co., 650 F.2d

663, 667 (5th Cir. 1981).

4

diminished contribution from the LLC's surplus to the State - is

too indirect and attenuated for Eleventh Amendment purposes.10 Nor

do extraordinary circumstances mandate abstention.11

Finally, we do not discern an abuse of discretion in the

court's refusal to grant leave to amend. The motion was untimely

filed12 and was entered after Coutcher repeatedly failed to amend

his complaint to include state law claims. The questionable timing

of the filing - i.e., on the eve of the district court's summary

judgment determination - indicates possible bad faith.13 Granting

the motion also would have conceivably prejudiced defendants.14 In

light of the preceding, the district court's judgment is therefore

AFFIRMED.

AFFIRMED.