* 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should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 96-20948

Summary Calender

_______________

DORA M. PERKINS,

Plaintiff-Appellant,

VERSUS

NATIONSBANK OF TEXAS, N.A.,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

CA-H-96-570

_________________________

May 13, 1997

Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Dora Perkins appeals a summary judgment. Finding no error, we

affirm.

I.

Perkins worked for NationsBank from 1984 to 1995. In 1990,
 

1 The “outage” was caused by Perkins's accounting error; NationsBank did

not lose any money. Apparently, NationsBank disciplined Perkins because her lax

security methods made it difficult for NationsBank to trace and rectify the

error.

2

she was promoted to Teller Coordinator at the motorbank. Her

employment records and evaluations show strong customer relation

and technical skills but poor management skills and occasional

problems with security.

On March 20, 1995, Perkins held a meeting with members of her

group and her supervisor, Mary Barta, in which she complained that

she was being treated unfairly because of her age. On April 18,

1995, NationsBank placed her on “formal warning” for lax internal

controls and for an incident in which she left the cash vault open

and unattended. On May 4, 1995, she was again placed on formal

warning for a $1316 outage.1

On June 16, 1995, a $20,000 outage was discovered at the

motorbank. NationsBank immediately began an investigation. It

decided that Perkins had defeated the bank’s dual control policy by

instructing her supervisees to sign off on balance counts they did

not witness. It also concluded that she had engaged in “forced

balancing” on seven of the ten days prior to the outage, making it

impossible to track the lost $20,000. 

NationsBank did not accuse Perkins of taking the money but

concluded that her lax security procedures had made the incident

possible. On August 17, 1995, NationsBank terminated her.

Perkins believes that Barta plotted with other employees to
3

frame her for the disappearance of the money. Her evidence

consists of the facts that (1) Geddes, a hired investigator, never

investigated Barta and Pam Ramsey, another supervisor; (2) Ramsey

and Geddes “would meet, once they had a meeting”; and (3) Raymond

Jackson, another investigator, instructed her not to mention her

inconclusive polygraph test to anyone. The “smoking gun,”

according to Perkins, was that Ramsey used the word “perfect” in a

conversation with herSSthe same word Geddes later used while

talking to her. She said that “that’s about as thorough as a

conspiracy can get.” 

II.

Perkins sued for race discrimination, retaliation for making

a complaint of race discrimination, age discrimination, intentional

infliction of emotional distress, and slander. The district court

dismissed the two state law claims and allowed limited discovery on

the discrimination and retaliation claims.

Two days before NationsBank was scheduled to file its motion

for summary judgment, Perkins moved for leave to file an amended

complaint, dropping all claims but the title VII retaliation claim

and substantially changing the factual allegations. NationsBank

opposed this motion.

Perkins filed a memorandum in opposition to summary judgment

and moved for sanctions under FED. R. CIV. P. 11 for alleged

discovery abuses by NationsBank. She complained that she had
4

received inadequate discovery but did not request a continuance

under FED. R. CIV. P. 56(f). The district court granted NationsBank

summary judgment on all claims, without written comment, and denied

all of Perkins's pending motions.

III.

A.

We review a summary judgment de novo. See Hanks v. Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir. 1992).

Summary judgment is appropriate “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law.” FED. R. CIV. P. 56(c). The party

seeking summary judgment carries the burden of demonstrating that

there is an absence of evidence to support the non-moving party’s

case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

After a proper motion for summary judgment is made, the non-movant

must set forth specific facts showing that there is a genuine issue

for trial. See Hanks, 953 F.2d at 997.

B.

In responding to the motion for summary judgment, Perkins

dropped any argument about race or age discrimination. Instead,
 

2 The original complaint alleges title VII retaliation but not ADEA

retaliation. The proposed amended complaint similarly alleges title VII

retaliation only. It is not obvious from the record whether the district court

considered the allegations in the amended complaint. Because Perkins has not

demonstrated a genuine issue of material fact under either complaint, we need not

resolve that question.

5

she contended that she had demonstrated a genuine issue of material

fact regarding unlawful retaliation. Similarly, in her brief on

appeal, she argues that she produced enough evidence to support a

finding of retaliation, but does not raise race or age discrimination claims. Consequently, she has waived any challenge to summary

judgment on those claims. See Cathey v. Guenther, 47 F.3d 162, 163

n.2 (5th Cir. 1995) (stating that issues not raised in the district

court are waived); Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir.

1994) (“An appellant abandons all issues not raised and argued in

its initial brief on appeal.”).

C.

All that remains is Perkins's claim for retaliation under

title VII.2 See 42 U.S.C. § 2000e-3(a). To recover, she must

demonstrate that she engaged in an activity protected by title VII.

See Grimes v. Texas Dep’t of Mental Health & Mental Retardation,

102 F.3d 137, 140 (5th Cir. 1996).

Perkins's sole theory of retaliation, expressed in her

proposed amended complaint, is that Barta and others retaliated

against her for her charges of discrimination made at the March 20

meeting. Specifically, she theorizes that, as a punishment for her
6

complaints, Barta and others conspired to frame her for the

disappearance of the $20,000. Therefore, to proceed to trial, she

must demonstrate a genuine issue of material fact that she engaged

in an activity protected by title VII at the March 20 meeting.

1.

At deposition, Perkins testified that, at the March 20

meeting, she complained of inappropriate comments directed at her

regarding her age. Contrary to Perkins's counsel’s assertions,

however, she did not testify that she talked about racial discrimination and has produced no evidence that she mentioned it.

2.

Perkins argues that she was not given enough time to complete

discovery. Under FED. R. CIV. P. 56(f), a party is not entitled to

a continuance of a motion for summary judgment, in order to conduct

further discovery, unless he requests such a continuance. See

Stults v. Conoco, Inc., 76 F.3d 651, 657-58 (5th Cir. 1996). The

request need not be in affidavit form but must (1) request extended

discovery prior to the ruling on the motion; (2) inform the court

that more discovery is being sought; and (3) demonstrate how the

requested discovery will create a genuine issue of material fact.

See Wichita Falls Office Assocs. v. BancOne Corp., 978 F.2d 915,

919 (5th Cir. 1992). We review for abuse of discretion. See
7

International Shortstop, Inc. v. Ralley’s Inc., 939 F.2d 1257, 1267

(5th Cir. 1991).

Perkins fails the first and third prongs. Her response to the

motion for summary judgment complained of the limitations on

discovery and NationsBank’s behavior but never requested a

continuance. Instead, it requested sanctions and a denial of

summary judgment on the merits.

In addition, although Perkins described her intention to

depose other NationsBank employees, none of those employees were

present at the March 20 meeting. Thus, any information from them

would have been useless to show that Perkins complained of racial

discrimination at the meeting.

Finally, a party is not eligible for a continuance unless he

has diligently pursued discovery. See International Shortstop,

939 F.2d at 1267. Although Perkins has been deposed, she has not

testified that she complained of racial discrimination in the

March 20 meeting. A diligent party would have testified or

provided an affidavit in a timely manner.

AFFIRMED.