### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 assis t a nt position in May 2009. Hatch, proceeding pro se, subsequently b r o u ght 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. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Novembe r 7, 2 012 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 12-50098 Document: 00512046296 Page: 1 Date Filed: 11/07/2012No. 12-50098 I. Ap p ell ant C o nny H atch 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 t e a c h e r and t e achin g a s sistant at the Disciplinary Alternative Education Program (“DAE P”)

. After completing his college d e gree 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 t o s e e that H a t ch was not meeting their professional expectations. According to their affidavits, Hatch failed to a c tively monitor the students, failed to properly supervise students, and despite instructions to the c o ntr ary , continu e d to re main seated in the classroom and wear sunglasses in the classroom. Principal Tarter identified each of these shortcomings to Hatch i n a February 16, 2009

mem o r a n du m . 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 op e n e d up at DAEP. It was temporarily fill e d by another long-term substitute, Regan Dowdy (“Dowdy”). Though H a t ch applied for the permanent position, Dowdy was eventually selected to fill the position permanently. Around May 1, 2009, Assistant Principal Palacios r e ceived 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 Hat c h sat idly nearby with his sunglasses on. Another

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disciplinary memorandum was se n t t o H atch, 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. Th i s t i me, she complained that Hatch had initiated an unsupervised meeting with a parent, something which teach i ng assistants were not permitted to do. After this incident, Principal Tarter advised DVISD’s human r e sources department that Hatch would not be offered a teaching assistant p o s i t ion 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 r e t a l iation. 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 permanen t science teacher position and by paying him less than his female c ount erp art s . Third, Hatch argued that DVISD retaliated against him for his grievance by disciplining him and refusing to renew his employment. Lastly, in response to D VI S D ’s summary judgment motion, Hatch asserted that DVISD’s disciplinary process deprived him of due process. In a magistrate opinion and order adopted b y the district court, the magistrate judge granted summary judgment for DVISD, dism i s s i n g all of Hatch’s claims. Specifically, the court f o u n d that Hatch failed to present
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sum m a ry 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 a ny 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 di s c i p l i n e was retaliatory in nature. Lastly, the court refused to entertain Hatch’s due process objection because it was raised for the first tim e i n hi s r esponse to the defendant’s summary judgment motion. 1 II. We review an o r d e r gr a nting a motion for summary judgment de novo . Storebrand Ins. Co. U.K., Ltd. v. Employers Ins. of Wausau , 139 F.3d 1052, 1055 (5th Ci r . 1 9 9 8). 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. F E D
. R. C IV
. 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 nati o n al origin.” 42 U.S.C. § 2000e-2(a)(1) (2006). To state a

Ha tch tw ice me ntio ns in his brie f that his “ri ghts of due pr oce ss ” have been abrid ged. 1 Al t h o u gh Ha tch has not brie fed the iss ue, we find that the dis tri ct court did not abus e its d i s c r eti on by dec lining to allow Ha tch to ame nd his com plai nt to st ate a due pr oce ss clai m aft er DVIS D fil ed its mo tio n for sum mary judgm ent. See, e. g. , Ov ers eas Inns S. A

. P

. A

. v. Uni ted Sta tes , 911 F.2d114 6, 1151 (5t h 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. 200 5). On appeal, Hatch first a rgues that the district court erred by granting DVISD s u m m ary 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 eviden c e f o r a reasonable trier of fact to conclude that D VI S D 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 di scrimination, the burden then shifts to DVISD to offer a legitimate, nonreta l i a t o ry or non-discriminatory reason for the employment action. See Septimus , 399 F

. 3 d a t 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 p r e t e xt for discrimination.” Turner , 675 F.3d at 892. We begin with Hatch’s argument that the February 2009 memorandum

was m otivated 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 argu m e n t , DVISD has

e s t ab l i shed that Hatch was paid according to the pay scale that governed al l teaching assistants and substitute teache rs. Hatch has presented no evidence to cast doubt on this explanation, and DVISD is thus entitled to summary judgment on this issue. Turnin g to H atch’ s di s cri minatory and retaliatory termination ar gu m e nt s , DVISD has presented evidence that Hatch was not offered a p er m anent teaching position because the job was one for which he was not qu a lified. 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 p r e sent 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

Sp ecif ical ly, Ha tch so ught the pos itio n of sc ienc e teac her. To qualif y for the pos itio n, 2
an app lica nt mus t dem ons tra te com pet ency in sc ienc e by com ple ting tw ent y - f o u r se me st er hours , inclu ding tw elve upp er- divis ion hours , in the fie ld of sc ienc e. Ha tch ’s tra nsc rip t doe s not ref lectthe requ isi te cour se wo rk

. Hatch argues that the dis tri ct court err ed by cre dit in g t h e aff idavit s of Princ ipal 3 T a rt e r and Ass ist ant Princ ipal Palaci os beca use they “ar e full of inco nsi st enci es a n d mi sr epr es enta tio ns. ” It is app aren t fr om Ha tch ’s brie f that the inco nsi st e n c i e s w h ich he allege s center on mat ter s which have no bearing on the ultima te questi ons of disc rim inati on or ret aliat ion. Becaus e “[ o]n ly dis put es over fac ts that mi ght aff ect the outc om e of the sui t

.

. . wi ll pr ope rly pr eclu de the entry of sum mary judgm ent, ” Ha tch ’s objec tio ns to thes e im mat eria l mat ter s, even if valid, did not pr eclu de the dis tri ct court fr om cre dit ing the aff idavit s. See Ande rso n v . Libe rty Lobby, Inc ., 477U .S

. 242, 248( 1986)

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