IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________

No. 96-10870

___________

ROBYN SANDERS; CYNTHIA MULLANIX,

Plaintiffs-Appellants-Appellees,

v.

CASA VIEW BAPTIST CHURCH, ET AL.,

Defendants,

CASA VIEW BAPTIST CHURCH,

Defendant-Appellee,

SHELBY BAUCUM,

Defendant-Appellant.

________________

Appeals from the United States District Court

for the Northern District of Texas

________________

February 11, 1998

Before POLITZ, Chief Judge, BENAVIDES, and PARKER, Circuit Judges.

BENAVIDES, Circuit Judge: 

The plaintiffs, Robyn Sanders and Lisa Mullanix, brought suit

against their employer, Casa View Baptist Church (CVBC), and one of

its ministers, Shelby Baucum, for alleged violations of Title VII

and Texas law arising out of Baucum’s conduct as their marriage

counselor and supervisor at CVBC. The district court granted

summary judgment in favor of CVBC. The claims against Baucum—that

he committed malpractice and breached his fiduciary duties as a

marriage counselor by, among other things, encouraging and
 

1 We apply a similar standard of review when considering a

district court’s denial of a motion for judgment as a matter of

law. Bellows v. Amoco Oil Co., 118 F.3d 268, 273 (5th Cir. 1997).

Because Baucum does not challenge the sufficiency of the

plaintiffs’ evidence, we describe the facts regarding his behavior

as a counselor as they were found by the jury.

2

consummating a sexual relationship with each plaintiff—proceeded to

trial. The jury found for the plaintiffs and awarded punitive

damages on each claim.

On appeal, Baucum asserts that the plaintiffs’ claims and the

district court’s jury instructions were barred by the First

Amendment, and that the plaintiffs’ punitive damages awards were

excessive. Also before us are the plaintiffs’ contentions that

CVBC was not entitled to summary judgment and that the district

court abused its discretion by excluding an untimely affidavit from

the summary judgment record. We affirm.

I.

We review a grant of summary judgment de novo “under the same

standards as that applied by the district court. Summary judgment

is required when the evidence, viewed in the light most favorable

to the nonmoving party, presents no genuine issue of material fact

and the moving party is entitled to judgment as a matter of law.”

Ellert v. University of Texas, 52 F.3d 543, 545 (5th Cir. 1995).

Consequently, we set forth the pertinent facts in the light most

favorable to the plaintiffs.1

In 1988, CVBC hired Baucum to be its Minister of Education and

Administration (MEA). As MEA, Baucum’s duties did not include

counseling, and he knew that he was not a member of the CVBC staff
3

responsible for providing spiritual counseling to CVBC members. He

also knew that CVBC had a written policy of referring church

members in need of non-pastoral counseling to a licensed

professional counselor.

In December 1990, Mullanix, a member of CVBC, began seeing

Baucum for marital counseling. In February 1991, CVBC hired

Sanders as an administrative secretary, with Baucum as her

immediate supervisor. Shortly thereafter, Sanders, like Mullanix,

began seeing Baucum for marital counseling.

Mullanix and Sanders each began this counseling at Baucum’s

invitation after he represented that he was qualified by education

and experience to provide marriage counseling. They believed that

Baucum was authorized by CVBC to provide marital counseling, in

part because he told each of them that he counseled other women at

CVBC. The jury found that Baucum entered into fiduciary

relationships with the plaintiffs because he acquired influence and

gained their trust and confidence during the course of these

separate counseling relationships. 

Although Baucum testified that he sometimes discussed

scripture in his counseling sessions with Mullanix and Sanders, the

jury found that the counseling he provided was “essentially

secular” in nature. At trial, the plaintiffs presented evidence

that Baucum breached his duties as a marriage counselor, not only

by expressing love and affection for each of them and encouraging

them both to express these feelings for him, but also by engaging

in sexual intercourse with each of them on a number of occasions.
4

They also presented evidence that Baucum breached his fiduciary

duties, not only by having sexual intercourse with them, but also

by disclosing their confidences, including intimate details of

their marriages and sexual histories. 

In March 1991, CVBC hired Mullanix as a receptionist, and like

Sanders, she was supervised by Baucum. The plaintiffs’ sexual

relationships with Baucum continued while he was their supervisor,

and each plaintiff claims that on at least one occasion, she slept

with him because of her belief that his behavior implied that she

would be discharged if she did not. Further, after his counseling

relationship with each plaintiff ended in September 1991, Baucum

began both to criticize their work performance and discourage their

hopes of promotions. He also engaged in behavior and conversation

of a sexual nature that was unwelcome at that time.

On September 22, 1991, the plaintiffs informed one another of

their relationships and problems with Baucum. Together they

disclosed the existence of these relationships and Baucum’s

behavior to a member of CVBC’s Personnel Committee (PC) on

September 23, 1991. Baucum was forced to resign his position as

MEA on September 25, 1991. On November 22, 1991, CVBC fired

Mullanix and Sanders because they committed adultery in violation

of church policies. 

II.

After discovery, the district court granted CVBC’s motion for

summary judgment on the plaintiffs’ Title VII and state law claims,

thereby disposing of the entire case against CVBC. With respect to
5

their discriminatory discharge, hostile work environment, and quid

pro quo claims, the district court held that the plaintiffs did not

produce evidence indicating that CVBC’s justification for their

dismissals was pretextual or that CVBC knew or should have known of

Baucum’s alleged sexual harassment. Concerning their claims under

Texas law, the district court held that there was no basis in the

record for holding CVBC legally responsible for Baucum’s misconduct

under the doctrine of respondeat superior or for concluding that

CVBC knew or should have known that Baucum presented a risk of harm

to the plaintiffs. The district court then refused to allow the

plaintiffs to supplement the summary judgment record with an

untimely affidavit.

The district court granted partial summary judgment in favor

of Baucum, but allowed the plaintiffs’ claims that he committed

malpractice as a marriage counselor and breached his fiduciary

duties to go to trial. At the close of the evidence, the district

court denied Baucum’s motion for judgment as a matter of law and

overruled his objection to the jury instructions. The jury found

for the plaintiffs on each count and awarded them each $42,500 in

punitive damages for Baucum’s malpractice and $42,500 in punitive

damages for his breach of his fiduciary duties. After the verdict,

Baucum renewed his motion for judgment as a matter of law, again

arguing that these claims were barred by the Free Exercise Clause

of the First Amendment. This motion was denied, as was his claim

that the punitive damages were excessive because they twice

punished him for the same conduct. 
 

2 Baucum also argues that the plaintiffs were twice awarded

punitive damages for his sexual misconduct and that their punitive

damages awards should accordingly be reduced by half. We reject

this argument because it ignores the differences between the

malpractice and fiduciary duty claims before the jury and because

it mischaracterizes Baucum’s misconduct as solely sexual in nature.

The jury, therefore, did not necessarily twice award punitive

damages for the same misconduct.

 

3 Baucum does not challenge the availability of these

causes of action, nor the propriety of the jury instructions, under

6

III.

A.

On appeal, Baucum argues that because the First Amendment

precludes judicial review of certain ecclesiastical disputes, his

secular misconduct as the plaintiffs’ counselor was not actionable

because it occurred within two inherently ecclesiastical, rather

than “purely secular,” counseling relationships.2 Specifically, he

contends: 1) that he was entitled to judgment as a matter of law

on the plaintiffs’ claims that he committed malpractice as a

marriage counselor and breached his fiduciary duties because his

trial testimony—that he occasionally discussed scripture in his

counseling sessions with the plaintiffs—demonstrated that the

counseling he provided was not purely secular; 2) that in the

alternative, the case should be remanded because he was entitled to

a jury instruction that required the jury to find that the

counseling he provided was purely secular in nature and thus a

matter of judicial rather than ecclesiastical concern; or 3) that

he was otherwise entitled to judgment as a matter of law because

the evidence demonstrated that the plaintiffs’ claims were in

essence noncognizable claims for “clergy malpractice.”3 We
Texas law.

7

disagree.

The First Amendment does not categorically insulate religious

relationships from judicial scrutiny, for to do so would

necessarily extend constitutional protection to the secular

components of these relationships. Although Baucum’s contention

that the Free Exercise Clause prohibits the judiciary from

reviewing the conduct of those involved in relationships that are

not purely secular in nature might, if adopted, foster the

development of some important spiritual relationships by

eliminating the possibility of civil or criminal liability for

participating members of the clergy, the constitutional guarantee

of religious freedom cannot be construed to protect secular beliefs

and behavior, even when they comprise part of an otherwise

religious relationship between a minister and a member of his or

her congregation. To hold otherwise would impermissibly place a

religious leader in a preferred position in our society. Cf.

County of Allegheny v. ACLU, 492 U.S. 573, 593-94 (1989)

(interpreting the First Amendment to preclude the state from

favoring religion over nonreligion). The district court,

therefore, did not err by denying Baucum’s motion for judgment as

a matter of law nor by rejecting his proposed jury instructions,

which would have required the jury to find that his counseling

relationships with the plaintiffs were purely secular in order for

it to find that his secular misconduct within these relationships

was actionable. In fact, by instructing the jury to consider
 

4 In fact, one member of the panel in Dausch expressly

reached this conclusion. Judge Ripple, in his concurring opinion,

noted that a plaintiff claiming “that the provider held himself out

to be providing the services of a psychological counselor” would

survive a motion to dismiss predicated upon the Free Exercise

8

whether Baucum’s counseling, rather than his alleged misconduct,

was “essentially secular” in nature, the district court provided

Baucum with more than adequate protection under the Free Exercise

Clause. 

Contrary to Baucum’s suggestion, this conclusion is entirely

consistent with the Seventh Circuit’s decision in Dausch, 52 F.3d

1425 (7th Cir. 1994). Like the plaintiffs in this case, the

plaintiff in Dausch alleged that her minister “held himself out” to

“be a duly qualified person engaged in providing psychological

counseling” and committed “professional negligence” by engaging in

“sexual relations” with her during counseling sessions. Id. at

1427-28. Foreshadowing Baucum’s argument on appeal, the district

court in Dausch dismissed this malpractice claim because it found

that the plaintiff “`failed to adequately allege that Rykse’s

counseling was purely secular.’” Id. at 1431 (Ripple, J.,

concurring) (quoting the district court’s order) (emphasis added).

The Seventh Circuit, in a per curiam opinion, reversed and

reinstated the plaintiff’s malpractice claim. This disposition,

therefore, supports our view that the First Amendment’s respect for

religious relationships does not require a minister’s counseling

relationship with a parishioner to be purely secular in order for

a court to review the propriety of the conduct occurring within

that relationship.4
Clause. Dausch, 52 F.3d at 1433. Although Judge Coffey also wrote

separately to express his view that “some combination of spiritual

and secular counseling remains shielded by the First Amendment,”

id. at 1429 (Coffey, J., concurring), this position cannot be

interpreted to mean that a minister’s counseling activities must be

purely secular in order for any of his or her conduct to be

actionable, for this view would conflict with the panel’s decision

to reverse the district court.

9

Instead, the Free Exercise Clause protects religious

relationships, including the counseling relationship between a

minister and his or her parishioner, primarily by preventing the

judicial resolution of ecclesiastical disputes turning on matters

of “religious doctrine or practice.” Presbyterian Church in the

U.S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393

U.S. 440, 449-50 (1969); see also Thomas v. Review Bd. of Ind.

Employment Security Div., 450 U.S. 707, 715-16 (1981) (“Courts are

not arbiters of scriptural interpretation.”). The sanctity of

these relationships is further protected by other religious

freedoms, including the limited right to engage in conduct that is

rooted in religious belief. Employment Div. v. Smith, 494 U.S.

872, 877-78, 881 (1990); Wisconsin v. Yoder, 406 U.S. 205, 215

(1972). Under the evidence produced at trial, however, neither of

these constitutional protections prevents Baucum from being held

liable for his misconduct as a marriage counselor and a fiduciary

who occasionally discussed scripture within the context of two

otherwise secular counseling relationships with members of his

congregation.

Because the judiciary must abstain from ecclesiastical

disputes involving questions of doctrine or practice, state courts
10

have “rejected uniformly” claims for “clergy malpractice.” Dausch,

52 F.3d at 1432 (Ripple, J., concurring) (citing, for example,

Destefano v. Gabrian, 763 P.2d 275 (Colo. 1988) (en banc)); see,

e.g., F.G. v. MacDonell, 696 A.2d 697, 703 (N.J. 1997). This is

because

such a claim requires definition of the relevant standard

of care. Defining that standard could embroil courts in

establishing the training, skill, and standards

applicable for members of the clergy in a diversity of

religions with widely varying beliefs. Furthermore,

defining such a standard would require courts to identify

the beliefs and practices of the relevant religion and

then to determine whether the clergyman had acted in

accordance with them.

MacDonell, 696 A.2d at 703. Thus, as these courts have correctly

concluded, to recognize a claim for clergy malpractice would

require courts to identify and apply the teachings of a particular

faith, thereby making the judiciary responsible for determining

what conduct and beliefs are part of a particular religion.

The First Amendment difficulties posed by a claim for clergy

malpractice are not, however, present in this case because the

duties underlying the plaintiffs’ claims for malpractice by a

marriage counselor and breach of fiduciary duties are not derived

from religious doctrine. That is, because the jury found that

Baucum held himself out as possessing the education and experience

of a professional marriage counselor, his counseling activities

with the plaintiffs were judged, not by a standard of care defined

by religious teachings, but by a professional standard of care

developed through expert testimony describing what a reasonably

prudent counselor would have done under the same or similar
 

5 The district court instructed the jury that Baucum could

not be held liable for malpractice unless “he made representations

that he possessed the skill, knowledge or competence of a secular

marital or mental health counselor.”

 

6 Our holding is consistent with Dausch, which affirmed on

both state law and First Amendment grounds the dismissal of a

parishioner’s breach of fiduciary duty claim against her minister.

52 F.3d at 1438 (Ripple, J., concurring). Judge Ripple explained

that Dausch’s fiduciary duty claim was dismissed, in part, because

she alleged, in “contrast to the other counts of [her] complaint,”

that “the breach of fiduciary duty occurred in the context of a

pastor-parishioner relationship.” Id. That is, Dausch asserted

that her pastor was her fiduciary, not because of his conduct as

her counselor, but simply because of her status “as a member of the

congregation . . . seeking counseling” and his status as her

“pastor and counselor.” Id. In contrast, the jury in this case

was instructed that the primary relationship between a minister and

a parishioner is not a fiduciary one, and that Baucum could not be

held liable for breaching his fiduciary duties unless he “acquired

and abused” influence and “betrayed” confidences learned in a

“relationship of trust.” 

11

circumstances. See Dausch, 52 F.3d at 1429, 1431, 1433 (allowing

a parishioner to claim that her minister had a “`duty to possess

and apply the skill and knowledge of a reasonably well qualified

person providing psychological counseling’” because the minister

“held himself out to be providing the services of a psychological

counselor”).5 Similarly, because the jury found that he entered

into a fiduciary relationship with the plaintiffs, Baucum’s conduct

was to be consistent with “something stricter than the morals of

the marketplace.” Meinhard v. Salmon, 164 N.E. 545, 546 (N.Y.

1928). But that “something” was “the finer loyalties exacted by

courts of equity,” Johnson v. Peckham, 120 S.W.2d 786, 788 (Tex.

1938), rather than the teachings of his faith.6 Thus, Baucum was

not entitled to judgment as a matter of law on the grounds that

these claims were barred by the constitutional principle that the
 

7 Like the Colorado and New Jersey Supreme Courts, we do

not decide whether the First Amendment would protect a minister

asserting that his civil misconduct was rooted in religious belief.

See, e.g., Destefano, 763 P.2d at 284 (noting that this raises a

“difficult First Amendment issue”); MacDonell, 696 A.2d at 560-61.

12

judiciary must abstain from ecclesiastical disputes concerning

questions of religious doctrine and practice. 

Consequently, to invoke the protection of the First Amendment

for conduct taking place within his counseling relationships with

the plaintiffs, Baucum must assert that the specific conduct

allegedly constituting a breach of his professional and fiduciary

duties was rooted in religious belief. See Smith, 494 U.S. at 881;

Yoder, 406 U.S. at 215; see also Destefano, 763 P.2d at 283-84 (“In

the spiritual counseling context, the free exercise clause is

relevant only if the defendant can show that the conduct that

allegedly caused plaintiff’s distress was in fact part of the

belief and practices of the religious group.”); MacDonell, 696 A.2d

at 558 (holding that in order to be protected, the “conduct at

issue must have been part of the beliefs and practices of the

defendant’s religion”). Baucum’s First Amendment arguments before

the district court, however, reflected the obvious truth that the

activities complained of by the plaintiffs were not part of his

religious beliefs and practices and he is not so brazen as to now

contend otherwise. We therefore hold that he was not entitled to

judgment as a matter of law on the ground that the plaintiffs’

claims were barred by the First Amendment.7

B.

Turning now to the plaintiffs’ claims against CVBC, they
 

8 Baucum was married when he engaged in sexual intercourse

with the plaintiffs.

13

contend on appeal that they have met their burdens of production on

summary judgment under Title VII because they adduced evidence

showing that their discharges were discriminatory, that they were

victims of quid pro quo sexual harassment for which they claim CVBC

is automatically liable, and that they were each subjected to a

hostile work environment of which CVBC should have been aware. The

plaintiffs further assert that their evidence creates a genuine

issue of material fact regarding CVBC’s liability for Baucum’s

breach of his professional duties under general agency principles

and the theory of ratification. They also argue that they have

produced evidence justifying a finding that CVBC knew or should

have known of the risks posed by Baucum’s counseling and harassing

activities. Finally, they claim that the district court abused its

discretion by refusing to supplement the summary judgment record

with an untimely affidavit. Having carefully reviewed the record

in this case, we address and reject each of these contentions in

turn.

The plaintiffs argue that their evidence creates a fact issue

regarding whether their discharges were discriminatory. They did

not, however, produce any evidence suggesting that they were fired

because of their gender. In fact, the record shows that Baucum,

who also committed adultery,8 was forced to resign, and that CVBC’s

position against adultery was neutral with respect to sex,

longstanding, and understood by both plaintiffs at the time they
14

engaged in sexual conduct with Baucum.

To survive summary judgment on their hostile work environment

claims, the plaintiffs needed to produce evidence showing, among

other things, “that [CVBC] knew or should have known of the

harassment in question and failed to take prompt remedial action.”

Jones v. Flagship Int’l, 793 F.2d 714, 719-20 (5th Cir. 1986)

(quoting Henson v. City of Dundee, 682 F.2d 897, 903-05 (11th Cir.

1982)). Because there is no dispute that CVBC took prompt remedial

action upon learning of Baucum’s misconduct on September 23, 1991,

the plaintiffs were required to produce evidence that CVBC should

have known of Baucum’s behavior as a supervisor before it was

disclosed in order to survive summary judgment on this claim. 

The record, however, does not reveal a basis for finding that

CVBC should have known that Baucum created a hostile work

environment for Sanders and Mullanix. This is because the evidence

relied on by the plaintiffs indicates, at most, that CVBC knew that

Baucum had offended a few women by complimenting them on their

appearances and hugging them. Evidence of this conduct, however,

does not preclude summary judgment. See. e.g., Pfau v. Reed, 125

F.3d 927, 939 n.10 (5th Cir. 1997) (“[I]n the cases that have held

employers liable on the basis that the pervasiveness of sexual

harassment implies constructive knowledge, the pervasive conduct is

the conduct of which the plaintiff complains.”).

To withstand summary judgment on their quid pro quo claims,

the plaintiffs were required to produce evidence showing, among

other things, that “the harassment complained of affected tangible
15

aspects of” their “compensation, terms, conditions, or privileges

of employment.” Jones, 793 F.2d at 722. In addition, they were

required to develop evidence demonstrating that their “acceptance

or rejection of the harassment” was “an express or implied

condition to the receipt of a job benefit or the cause of a

tangible job detriment.” Id. The plaintiffs’ own testimony—that

they were subjected to mild criticism of their work and told that

they would not be promoted to positions they knew did not

exist—indicates that their jobs were not tangibly and detrimentally

affected by their decisions to end their sexual relationships with

Baucum. See Farley v. American Cast Iron Pipe Co., 115 F.3d 1548,

1552-53 (11th Cir. 1997); cf. Mattern v. Eastman Kodak Co., 104

F.3d 702, 708 (5th Cir.) (noting, in the context of a retaliation

claim, that “the verbal threat of being fired” and a “reprimand”

are not “adverse employment actions” because they “lack . . .

consequence”), cert. denied, 118 S. Ct. 336 (1997); Bryson v.

Chicago St. Univ., 96 F.3d 912, 916 (7th Cir. 1996) (noting that a

tangible job detriment is a substantially adverse employment

action, such as being transferred, relieved of responsibilities,

denied the use of an office and telephone, or stripped of an

official title). Further, there is no objective evidence in the

record supporting the plaintiffs’ claims that they engaged in sex

with Baucum under an implied threat of discharge if they did not.

See Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir.

1996) (noting that “subjective speculation” will not establish a

fact question in a discrimination case).
 

9 The plaintiffs also argue that CVBC is liable for

Baucum’s misconduct as a counselor under Section 219 of the

Restatement (Second) of Agency, which provides for employer

liability when the powers it entrusts to an employee aid that

employee in breaching professional and fiduciary duties. As noted

above, there is no basis in the record for finding that CVBC

entrusted Baucum with marital counseling powers. Further, this

provision of the Restatement has not been adopted in Texas and thus

will not be recognized by this Court. See, e.g., Folks v. Kirby

Forest Indus., Inc., 10 F.3d 1173, 1182 (5th Cir. 1994). 

16

In order for the plaintiffs to have proceeded to trial on

their claim that CVBC is liable under the doctrine of respondeat

superior for Baucum’s tortious conduct as one of the church’s

employees, they needed to produce evidence that Baucum’s misconduct

“f[e]ll within the scope of [his] general authority . . . and [was]

in furtherance of [CVBC’s] business and for the accomplishment of

the object for which [Baucum] was hired.” Dieter v. Bakers Serv.

Tools, 739 S.W.2d 405, 407 (Tex. Ct. App. 1987) (emphasis added).

The plaintiffs’ evidence, however, failed to create a genuine issue

of material fact regarding Baucum’s actual or apparent authority to

engage in counseling. In fact, the record indicates that Baucum

did not have this authority because his job description and

responsibilities as MEA indicate that he was not hired to provide

counseling, that he knew that counseling was not part of his job

description, that the MEA was not responsible for providing

spiritual counseling, and that CVBC had a policy of referring nonpastoral counseling to a licensed professional counselor.9

The plaintiffs also contend that CVBC was liable for Baucum’s

misconduct as a counselor under the doctrine of ratification.

Prunty v. Arkansas Freightways, Inc., 16 F.3d 649, 652-53 (5th Cir.
 

10 Further, even if a principal can ratify the acts of an

agent of which it should have been aware, there is no basis for

finding that CVBC had constructive notice of Baucum’s counseling

activities. See infra.

17

1994). This doctrine imposes liability on an employer when that

employer adopts, confirms, or fails to repudiate the unlawful acts

of an employee of which the employer is aware. Id. There is,

however, no evidence in the record indicating that CVBC was

actually aware of Baucum’s counseling activities.10

Aside from principles of agency, the plaintiffs also sought to

hold CVBC liable on the theory that an employer that negligently

“retains in his employ an individual who is incompetent or unfit

for the job may be liable to a third party whose injury was

proximately caused by the employer’s negligence.” Akins v. Estes,

888 S.W.2d 35, 42 (Tex. Ct. App. 1994), affirmed in part and

reversed in part sub nom. Golden Spread Council, Inc. v. Akins, 926

S.W.2d 287 (Tex. 1996) (reversing on grounds unrelated to the

existence of his theory of negligence). To withstand CVBC’s motion

for summary judgment on this negligence claim, the plaintiffs

needed to show that CVBC knew or should have known that Baucum’s

conduct as a supervisor or counselor presented an unreasonable risk

of harm to others. As noted in conjunction with the plaintiffs’

hostile work environment claims, however, the record does not

indicate that CVBC should have known of Baucum’s sexual harassment

of Sanders and Mullanix. Further, even if the plaintiffs’ evidence

suggested that CVBC should have known that Baucum was counseling

the plaintiffs, there is simply no evidence that CVBC should have
18

known that Baucum was likely to engage in sexual misconduct or

disclose confidences as a marriage counselor.

The plaintiffs’ final claim on appeal is that the district

court abused its discretion by denying their motion to supplement

the summary judgment record after summary judgment had been granted

in favor of CVBC. This argument is without merit because the

evidence was cumulative and did not support the plaintiffs’ theory

of constructive notice. Therefore, the district did not abuse its

discretion in denying this untimely motion. See, e.g., Bernhardt

v. Richardson-Merrell, Inc., 892 F.2d 440 (5th Cir. 1990).

IV.

For the foregoing reasons, we AFFIRM.