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this opinion should not be published and is not precedent except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

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United States Court of Appeals

Fifth Circuit

FILED

May 24, 2006

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 05-20467

Summary Calendar

WILL H. EVANS, III,

Plaintiff-Appellant,

versus

IBM CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

(4:03-CV-4805)

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Will H. Evans contests the summary judgment awarded IBM,

including the denial of his motions requesting discovery and

delaying consideration of the summary judgment motion.

In August 2001, Evans, an IBM employee for nearly 24 years,

was terminated from his sales position. IBM maintains Evans was

terminated for declining performance and an improper commitment he

made to a customer that violated IBM policies. He counters that
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his female supervisor became intimidated by his “seniority,

experience and success”, consequently harassed and humiliated him

and made false allegations, and ultimately had him terminated and

replaced with a younger, non-minority employee. 

Following an unsuccessful internal appeal and EEOC

discrimination charge, Evans filed this action under Title VII of

the Civil Rights Act of 1964 and the Age Discrimination in

Employment Act; he further claimed IBM retaliated, and

intentionally discriminated, against him, violating 42 U.S.C. §

1981. 

Ten days before the district-court discovery deadline, Evans

moved to extend the deadline (denied); after the deadline, he moved

to compel discovery (denied) and to reconsider (denied). After IBM

moved for summary judgment, Evans moved under Federal Rule of Civil

Procedure 56(f) for a continuance. It was denied; summary judgment

was awarded IBM. 

The denial of the continuance motions is reviewed for abuse of

discretion. Shields v. Twiss, 389 F.3d 142, 149 (5th Cir. 2004).

Evans moved for a continuance on 20 January 2005; under Rule 56(f),

on 24 March 2005. There was no abuse of discretion.

For the discovery-continuance motion, Evans had ample

opportunity to conduct discovery prior to the deadline. His motion

did not adequately explain his failure to do so.

Evans’ Rule 56(f) motion appears to have been untimely filed;

in any event, it failed to specify how additional discovery would
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have created a fact issue to defeat summary judgment. See Wichita

Falls Office Assocs. v. Banc One Corp., 978 F.2d 915, 919 (5th Cir.

1992) (providing “[t]hree general requirements” a non-movant must

establish for a court to grant a continuance of discovery: “(i)

requesting extended discovery prior to the court’s ruling on

summary judgment; (ii) put[ting] the trial court on notice that

further discovery pertaining to the summary judgment motion is

being sought; and (iii) demonstrating to the trial court

specifically how the requested discovery pertains to the pending

motion”), cert. denied, 508 U.S. 910 (1993). 

The summary judgment is reviewed de novo, applying the same

standard used by the district court. Shields, 389 F.3d at 149.

Such 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); see Celotex

Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Where the nonmovant will ultimately bear the burden of production at trial, “the

movant must merely demonstrate an absence of evidentiary support in

the record for the non-movant’s case”. Shields, 389 F.3d at 149

(internal citation and quotation marks omitted). (In addition to

age and race discrimination, Evans claimed retaliation. He does
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not address this claim in his brief to our court; therefore, it is

waived. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).)

Evans has not provided any direct evidence of age or race

discrimination, nor can his allegations withstand the burdenshifting test of McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802-04 (1973) (requiring (1) a plaintiff to show a prima facie case

of race discrimination; (2) shifting the burden to the defendant to

provide a nondiscriminatory reason for the termination; and (3)

shifting the burden back to the plaintiff to show the alleged

nondiscriminatory reason was a mere pretext). See, e.g.,

Machinchick v. PB Power, Inc., 398 F.3d 345, 350-51 (5th Cir. 2005)

(age discrimination). Even assuming Evans’ unsupported allegations

of age and race discrimination constituted a prima facie case of

discrimination (as the district court did), IBM has provided

evidence of a nondiscriminatory reason for his termination. Evans

has not shown any evidence suggesting this reason was a mere

pretext. McDonnell Douglas Corp., 411 U.S. at 802-04. In sum, no

genuine issue of material fact exists; the summary judgment was

proper.

Finally, IBM moves for appellate sanctions under Federal Rule

of Appellate Procedure 38. They are appropriate where an appeal is

frivolous and, as here, the party seeking sanctions has “separately

filed [a] motion or notice”. FED. R. APP. P. 38. IBM cites

Trowbridge v. Comm’r of Internal Revenue, 378 F.3d 432 (5th Cir.
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2004), where our court imposed sanctions after the district court

had imposed sanctions against a pro se litigant whose claims were

“institut[ed] and maintain[ed] ... primarily for delay”. Id. at

432; see Buck v. United States, 967 F.2d 1060, 1062 (5th Cir. 1992)

(“[A] frivolous appeal is an appeal in which ‘the result is obvious

or the arguments of error are wholly without merit.’”) (alteration

in original) (quoting Montgomery v. United States, 933 F.2d 348,

350 (5th Cir. 1991)); Corpus Christi Taxpayer’s Ass’n v. City of

Corpus Christi, 858 F.2d 973, 977 (5th Cir. 1988) (concluding “that

the ... appeal involve[d] legal points not arguable on their

merits, and that the appeal was accordingly frivolous”). Evans’

appeal is not so without merit as to warrant sanctions.

AFFIRMED; SANCTIONS DENIED