IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-50098

Summary Calendar

CONNY B. HATCH III,

Plaintiff-Appellant

v.

DEL VALLE INDEPENDENT SCHOOL DISTRICT,

Defendant-Appellee

Appeal from the United States District Court

for the Southern District of Texas

1:10-CV-453

Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.

PER CURIAM:*

The defendant school district terminated the African-American male

plaintiff, Conny B. Hatch III (“Hatch”), from his teaching assistant position in

May 2009. Hatch, proceeding pro se, subsequently brought suit against the

defendant-appellee, alleging various violations of Title VII’s anti-discrimination

and anti-retaliation provisions. The district court granted summary judgment

against Hatch and dismissed all of his claims. We AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

November 7, 2012

Lyle W. Cayce

Clerk

 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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I.

Appellant Conny Hatch is an African-American male and former employee

of the Del Valle Independent School District (“DVISD”). Between October 2007

and May 2009, Hatch was employed with DVISD as a substitute teacher and

teaching assistant at the Disciplinary Alternative Education Program (“DAEP”).

After completing his college degree in December 2008, Hatch expressed his

interest in becoming a fully-certified teacher with the school district.

During the 2008-2009 school year, DAEP principal Holly Tarter (“Tarter”)

and DAEP assistant principal Mario Palacios (“Palacios”) began to see that

Hatch was not meeting their professional expectations. According to their

affidavits, Hatch failed to actively monitor the students, failed to properly

supervise students, and despite instructions to the contrary, continued to remain

seated in the classroom and wear sunglasses in the classroom. Principal Tarter

identified each of these shortcomings to Hatch in a February 16, 2009

memorandum. Hatch immediately objected to the memo, claiming that it was

racially and sexually discriminatory. Hatch alleged in his complaint that white

female teaching assistants were permitted to sit in the classroom, and he had

seen other teachers wear sunglasses in the classroom, yet he was being “singled

out.”

In March 2009, a science teacher position opened up at DAEP. It was

temporarily filled by another long-term substitute, Regan Dowdy (“Dowdy”).

Though Hatch applied for the permanent position, Dowdy was eventually

selected to fill the position permanently.

Around May 1, 2009, Assistant Principal Palacios received a complaint

about Hatch from another teacher, Nicole Arenas (“Arenas”). Arenas had left her

classroom under Hatch’s supervision while she went on her lunch break. Arenas

returned to the classroom to find that her students had apparently engaged in

a “paint fight” while Hatch sat idly nearby with his sunglasses on. Another

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disciplinary memorandum was sent to Hatch, again directing him to better

monitor student discipline issues and not to wear sunglasses in the classroom.

Hatch refused to sign the memorandum.

After this incident, Principal Tarter determined that she would not offer

Hatch a teaching assistant position at DAEP for the following year. In a meeting

on May 7, 2009, Palacios and Tarter advised Hatch that he was going to be given

the opportunity to resign rather than be terminated. The following day, Hatch

filed a grievance with DVISD. Before Hatch’s grievance was resolved, Arenas

lodged another complaint with Principal Tarter about Hatch. This time, she

complained that Hatch had initiated an unsupervised meeting with a parent,

something which teaching assistants were not permitted to do. After this

incident, Principal Tarter advised DVISD’s human resources department that

Hatch would not be offered a teaching assistant position at DAEP during the

2009-2010 school year.

Hatch brought suit against DVISD under Title VII of the Civil Rights Act

of 1964, alleging racial discrimination, gender discrimination, and retaliation.

Hatch first argued that by disciplining him for sitting and wearing sunglasses

in the classroom and meeting with parents, and by terminating his employment,

DVISD had discriminated against him based on his race. Second, Hatch argued

that DVISD discriminated against him based on his gender by passing him over

for the permanent science teacher position and by paying him less than his

female counterparts. Third, Hatch argued that DVISD retaliated against him for

his grievance by disciplining him and refusing to renew his employment. Lastly,

in response to DVISD’s summary judgment motion, Hatch asserted that

DVISD’s disciplinary process deprived him of due process.

In a magistrate opinion and order adopted by the district court, the

magistrate judge granted summary judgment for DVISD, dismissing all of

Hatch’s claims. Specifically, the court found that Hatch failed to present

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summary judgment evidence that the February 2009 memorandum was

motivated by discrimination. The court also found that Hatch failed to offer any

summary judgment evidence that his later termination was based on his race.

The court next found that Hatch failed to state a prima facie claim of gender

discrimination when he was passed over for a permanent teaching job, because

Hatch was not qualified for the science teacher job which he sought. The court

also found that Hatch failed to offer any evidence that he was paid differently

from other workers in his position. The court found further that Hatch failed to

offer any summary judgment evidence that his termination or discipline was

retaliatory in nature. Lastly, the court refused to entertain Hatch’s due process

objection because it was raised for the first time in his response to the

defendant’s summary judgment motion.1

II.

We review an order granting a motion for summary judgment de novo.

Storebrand Ins. Co. U.K., Ltd. v. Employers Ins. of Wausau, 139 F.3d 1052, 1055

(5th Cir. 1998). Summary judgment is warranted when the pleadings,

depositions, interrogatories, and admissions on file, together with the affidavits,

if any, show that there is no genuine issue as to any material fact. FED. R. CIV.

P. 56; Celotex v. Catrett, 477 U.S. 317, 322 (1986).

III.

Title VII makes it “an unlawful employment practice for an employer to

discriminate against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual’s race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1) (2006). To state a

Hatch twice mentions in his brief that his “rights of due process” have been abridged. 1

Although Hatch has not briefed the issue, we find that the district court did not abuse its

discretion by declining to allow Hatch to amend his complaint to state a due process claim

after DVISD filed its motion for summary judgment. See, e.g., Overseas Inns S.A. P.A. v.

United States, 911 F.2d 1146, 1151 (5th Cir. 1990).

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prima facie case of discrimination under Title VII, a plaintiff must establish that

(1) the plaintiff is a member of a protected class, (2) the plaintiff is qualified for

the position, (3) the plaintiff suffered an adverse employment action, and (4) the

plaintiff was treated less favorably than someone outside the class. Septimus v.

University of Houston, 399 F.3d 601, 609 (5th Cir. 2005).

On appeal, Hatch first argues that the district court erred by granting

DVISD summary judgment because there exists sufficient evidence for a

reasonable trier of fact to conclude that the February 2009 disciplinary

memorandum was motivated by illegal discrimination. Hatch also argues that

there exists sufficient evidence for a reasonable trier of fact to conclude that

DVISD discriminated against him by paying him less than white female

substitute teachers and teaching assistants. In a similar vein, Hatch also argues

that he presented enough evidence from which a trier of fact could conclude that

his termination was motivated by racial discrimination, gender discrimination,

or retaliation.

Assuming that Hatch has established prima facie cases of retaliation or

discrimination, the burden then shifts to DVISD to offer a legitimate, nonretaliatory or non-discriminatory reason for the employment action. See

Septimus, 399 F.3d at 608; Turner v. Kansas City Southern Ry. Co., 675 F.3d

887, 892 (5th Cir. 2012). After this, “[t]he burden . . . shifts back to the plaintiff

to prove that the defendant’s proffered reasons were a pretext for

discrimination.” Turner, 675 F.3d at 892. 

We begin with Hatch’s argument that the February 2009 memorandum

was motivated by racial or sexual discrimination. However, DVISD has

established that the memo was drafted in response to Hatch’s failure to properly

supervise his classroom, and his habit of sitting and wearing sunglasses in the

classroom. Because Hatch has presented no evidence to refute this explanation,

DVISD is entitled to summary judgment on this issue.

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As to Hatch’s discriminatory compensation argument, DVISD has

established that Hatch was paid according to the pay scale that governed all

teaching assistants and substitute teachers. Hatch has presented no evidence

to cast doubt on this explanation, and DVISD is thus entitled to summary

judgment on this issue.

Turning to Hatch’s discriminatory and retaliatory termination arguments,

DVISD has presented evidence that Hatch was not offered a permanent teaching

position because the job was one for which he was not qualified. DVISD has 2

further presented evidence that Hatch’s employment was not renewed because

of his failure to adequately monitor students and correct his classroom behavior.

Hatch has failed to present any summary judgment evidence other than his

subjective belief that these reasons are pretextual and that his termination was

discriminatory or retaliatory. DVISD is thus entitled to summary judgment on

this issue.3

IV.

For the reasons stated above, we affirm the district court’s order granting

summary judgment and dismissing all of appellant’s claims.

AFFIRMED

Specifically, Hatch sought the position of science teacher. To qualify for the position, 2

an applicant must demonstrate competency in science by completing twenty-four semester

hours, including twelve upper-division hours, in the field of science. Hatch’s transcript does

not reflect the requisite coursework.

Hatch argues that the district court erred by crediting the affidavits of Principal 3

Tarter and Assistant Principal Palacios because they “are full of inconsistencies and

misrepresentations.” It is apparent from Hatch’s brief that the inconsistencies which he

alleges center on matters which have no bearing on the ultimate questions of discrimination

or retaliation. Because “[o]nly disputes over facts that might affect the outcome of the suit .

. . will properly preclude the entry of summary judgment,” Hatch’s objections to these

immaterial matters, even if valid, did not preclude the district court from crediting the

affidavits. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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