1Pursuant 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this opinion should not be published and is not precedent except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

For the Fifth Circuit

No. 98-50247

Summary Calendar

CHARLES A. BLACKWELL,

Plaintiff-Appellant,

VERSUS

UNIVERSITY OF TEXAS AT SAN ANTONIO,

Defendant-Appellee.

Appeal from the United States District Court

For the Western District of Texas

(SA-96-CV-865)

September 17, 1998

Before DAVIS, DUHÉ, and PARKER, Circuit Judges.

DUHÉ, Circuit Judge:1

Plaintiff-Appellant Charles Blackwell appeals the summary

judgment dismissal of his Title VII employment discrimination

claims against University of Texas at San Antonio and the district

court’s denial of his motion for reconsideration. We affirm.

I

Charles Blackwell (“Blackwell”) is a black male who has been

employed at the University of Texas at San Antonio (“UTSA”) since

1985. According to Blackwell, UTSA hired, promoted and gave merit
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raises to white employees with less experience and qualifications.

Further, on October 4, 1993, Blackwell injured his hand while

working, requiring several stitches. On October 6, 1993, Blackwell

submitted to his supervisor a doctor’s note prohibiting him from

returning to work before his follow-up appointment on October 7,

1993. On that same day, Blackwell submitted a request for light

duty work, which UTSA denied. 

In February 1994, Blackwell filed an employment discrimination

complaint with the Texas Commission on Human Rights and the Equal

Employment Opportunity Commission, alleging, inter alia, that UTSA

failed to provide him with light duty work, failed to promote him,

and failed to give him merit raises based on his race. In

September 1996, Blackwell sued UTSA, asserting various race-based

claims. 

On July 7, 1997, the dispositive motions deadline, UTSA

submitted a motion for summary judgment with a brief in support,

along with a motion for relief from briefing page limitations of

local Rule CV-7(c). The district court granted the motion for

relief July 15, 1997; Blackwell’s counsel received notice of this

order. The district court granted summary judgment August 20,

1997. Blackwell’s counsel had not filed a brief or evidence in

opposition.

Immediately upon receipt of the order granting summary

judgment, Blackwell’s counsel filed a brief in opposition with

affidavits and requested reconsideration of the summary judgment

order under Rule 60(b)(1). He asserted that the joint filing of
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the motion for summary judgment and the motion for relief from page

limitations created confusion. Further, Blackwell’s counsel,

unfamiliar with federal summary judgment motion practice, believed

that the court would fix a hearing date, and that he would have

until 10 days before that hearing date to respond to the summary

judgment motion. He did not realize that local Rule CV-7 required

him to respond to the summary judgment motion within 10 days. The

court denied Blackwell’s motion for reconsideration. Blackwell

appeals the denial of reconsideration of summary judgment, and

appeals the grant of summary judgment on his claims that UTSA

discriminated against him on the basis of race in denying him light

duty, and in failing to promote him and award him merit raises.

II

Decisions on Rule 60(b)(1) motions are within the district

court’s discretion. See Seven Elves, Inc. v. Eskenazi, 635 F.2d

396, 402 (5th Cir. 1981). We will set aside the district court’s

denial of relief only for abuse of that discretion. See id. “It is

not enough that the granting of relief might have been permissible,

or even warranted-denial must have been so unwarranted as to

constitute an abuse of discretion.” Id. (emphasis in the

original). We conclude that the district court did not abuse its

discretion.

Rule 60(b)(1) permits reconsideration of an order granting

summary judgment based on “mistake, inadvertence, surprise, or

excusable neglect.” Fed. R. Civ. P. 60(b)(1). However, “‘[g]ross

carelessness . . . [or] [i]gnorance of the rules is not enough, nor
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is ignorance of the law.’” Pryor v. U.S. Postal Service, 769 F.2d

281, 287 (5th Cir. 1985)(citation omitted). Blackwell’s counsel

claims mistake and inadvertence stemming from confusion over

whether the summary judgment motion would be accepted by the court

and a misinterpretation of the interaction between local Rule CV-7

and Federal Rule of Civil Procedure 56. The district court found

that the asserted confusion and misinterpretation did not satisfy

the Rule 60(b)(1) standard. This finding is not so unwarranted as

to be an abuse of his discretion.

III

We review a grant of summary judgment de novo, viewing the

facts and inferences in the light most favorable to the nonmovant.

See Hall v. Gillman Inc., 81 F.3d 35,36-37 (5th Cir. 1996).

Summary judgment is appropriate if the record discloses “that there

is no genuine issue as to any material fact and the moving party is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56 (c);

accord Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A

genuine issue of material fact exists only if “there is sufficient

evidence favoring the non-moving party for a jury to return a

verdict for that party. If the evidence is merely colorable, or is

not significantly probative, summary judgment may be granted.”

Anderson v. Liberty Lobby, 477 U.S. 242, 256 (1986). The moving

party bears the burden of establishing that there is no genuine

issue of material fact, or that there is no evidence to support the

nonmoving party’s case when the nonmoving party bears the burden of

proof. See id. 
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IV

Title VII prohibits an employer from discriminating on the

basis of race in making employment decisions. See 42 U.S.C. §

2000e-2(a)(1). To prove discrimination under Title VII, Blackwell

must establish a prima facie case by demonstrating that he: (1) is

a member of a protected class; (2) was qualified for the promotions

and for light duty; (3) experienced an adverse employment action;

(4) was treated less favorably than others outside of his class.

See Meinecke v. H & R Block of Houston, 66 F.3d 77, 83 (5th Cir.

1995).

Establishing a prima facie case raises a presumption of

discrimination, which the defendant must rebut by articulating a

legitimate, nondiscriminatory reason for its employment action.

See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

The defendant’s articulation of a legitimate, nondiscriminatory

reason destroys the presumption. See Texas Dep’t of Community

Affairs v. Burdine, 450 U.S. 248, 255 n.10 (1981). The plaintiff

must then prove that the defendant’s proffered reason is pretext

for discrimination by showing that the articulated reason is not

credible, and that the discriminatory reason is more likely. See

St. Mary’s Honor Center. v. Hicks, 509 U.S. 502, 507-08 (1993).

Summary judgment for the defendant is appropriate if the

evidence demonstrates that the plaintiff cannot establish an

element of his prima facie case, see Faruki v. Parsons S.I.P.,

Inc., 123 F.3d 315, 319 (5th Cir. 1997), or that the plaintiff

cannot raise a genuine issue of material fact concerning pretext,
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see id. at 256.

Blackwell contends that UTSA discriminated against him based

on race by refusing to grant him light duty following his on-duty

injury, and by failing to promote him and award him merit raises.

Because Blackwell fails to raise a genuine issue of material fact

that UTSA’s refusal of light duty and failure to promote and grant

merit raises is a pretext for racial discrimination, it is not

necessary to address whether Blackwell establishes a prima facie

case.

UTSA offered evidence establishing three reasons for denying

Blackwell light duty on October 6, 1993. First, UTSA policy

requires a medical release before an injured employee may return to

work, and Blackwell’s doctor specifically prohibited him from

performing any type of work until after a follow-up medical

examination on October 7, 1993. Second, UTSA light duty guidelines

permit light duty only when such duty poses no threat to the

employee, and an open wound in an environment of carpentry dust and

debris poses a risk to Blackwell. Third, no light duty jobs were

available that Blackwell could perform with the use of only one

hand, and with an open wound. Blackwell offered no evidence in

opposition to the summary judgment motion; therefore, he did not

raise a genuine issue of material fact that UTSA’s proffered

reasons were pretext.

UTSA offered evidence establishing two reasons for failing to

promote Blackwell and grant him merit raises. First, promotion

occurs only through reclassification or by applying and competing
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for higher level positions when they become available; Blackwell’s

job was reclassified from Laborer to Maintenance Worker I, and

Blackwell did not apply for any promotions. Second, Blackwell’s

excessive absenteeism precluded promotion and merit raises.

Blackwell offered no evidence in opposition to the summary judgment

motion; therefore, he did not raise a genuine issue of material

fact that UTSA’s proffered reasons were pretext.

Since Blackwell did not raise a genuine issue of material fact

that UTSA’s reasons for refusing to grant him light duty and for

failing to promote him and give him merit raises were pretext, we

affirm the district court’s order granting summary judgment.

AFFIRMED.