United States Court of Appeals

for the Fifth Circuit

No. 21-30533

Summary Calendar

Marcus S. Babaoye, 

Plaintiff—Appellant,

versus

Board of Supervisors of the Louisiana Community and 

Technical College System, incorrectly named as South 

Louisiana Community College; Natalie Harder, 

Defendants—Appellees.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 6:17-CV-960

Before Smith, Stewart, and Graves, Circuit Judges.

Per Curiam:*

Marcus Babaoye (“Babaoye”) was terminated from his position as a 

vice chancellor at South Louisiana Community College (“SLCC”). He sued, 

alleging discrimination and retaliation under Title VII, interference with 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 17, 2022

Lyle W. Cayce

Clerk

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contracts, hostile work environment, and defamation. Defendants SLCC and 

Babaoye’s former supervisor, Natalie Harder, (“Harder,” collectively, 

“Defendants”) moved for summary judgment. Plaintiff failed to timely file a

response, and the district court granted summary judgment for Defendants. 

Babaoye moved for reconsideration, which the district court denied. He now 

appeals. We AFFIRM.

I. BACKGROUND

Marcus Babaoye, former Vice Chancellor of Institutional 

Effectiveness and Innovation at South Louisiana Community College 

(“SLCC”), claims his employerterminated him because of his race (AfricanAmerican) and national origin (Nigerian) and that he was retaliated against 

because he recommended hiring a minority employee. His complaint also 

alleges hostile work environment, interference with contracts, and 

defamation. 

On June 23, 2021, after discovery concluded and Babaoye and Harder 

had been deposed, Defendants moved for summary judgment arguing that 

the evidence showed there were no genuine issues of fact that Babaoye’s 

termination was due to race or national origin, that Babaoye failed to show

Defendants’ proffered reason for his termination was pretextual, and that 

Babaoye’s claims failed as a matter of law. Babaoye filed a response on July 

16,2021, one day after the deadline set by the district court’s scheduling 

order. The district court granted summary judgment for Defendants six days 

later, on July 22, 2021, and declined to consider Babaoye’s untimely 

response. In its brief ruling, the district court held that there were no genuine 

issues of fact based on its review of the pleadings, the depositions, the motion 

for summary judgment, and the evidence. 

On July 26, 2021, Babaoye filed a document styled “MOTION FOR 

RECONSIDERATION AND FOR PERMISSION TO CONSIDER 

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PLAINTIFF’S TARDY BRIEF” which stated that “the tardy brief was due 

to an inadvertent error in counting the days for submission.” Babaoye also

asserted that the district court had failed to analyze the law on summary 

judgment and was unclear in its reasoning. On July 28, 2021, the district 

court, noting the “heavy burden” borne by Babaoye to show “manifest error 

of law or fact,” denied the motion, treating it as a request to alter judgment 

under Federal Rule 59(e). The district court reiterated that it granted 

summary judgment based on the merits of Defendants’ motion and that 

Babaoye had both failed to show the existence of genuine fact disputes and 

establish prima facie cases for discrimination. 

II. DISCUSSION

On appeal, Babaoye asserts that the district court erred when it (1) 

granted summary judgment for Defendants on the discrimination and 

retaliation claims, 1 and (2) denied his motion for reconsideration. We 

disagree.

A. Grant of Summary Judgment

We review a grant of summary judgment de novo. Wiltz v. Bayer 

CropScience, Ltd. P’ship, 645 F.3d 690, 694 (5th Cir. 2011). Although a 

district court may not grant summary judgment simply because a party’s 

motion is unopposed, “[i]f a party . . . fails to properly address another party's 

assertion of fact as required by Rule 56(c),” then “the [district] court may . . 

1 Because Babaoye does not challenge summary judgment as to any of his other 

claims, including interference with the right to make and enforce contracts, hostile work 

environment, and defamation, he has abandoned these claims. See 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 . . . A party who inadequately briefs an issue is considered to have 

abandoned the claim.”).

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. consider the fact undisputed for the purposes of the motion [and] grant 

summary judgment if the motion and supporting materials—including the 

facts considered undisputed—show that the movant is entitled to it.” Fed. 

R. Civ. P. 56(e); see also Calais v. Theriot, 589 Fed.App’x. 310, 311 & n.4 

(5th Cir. 2015) (per curiam).

Babaoye argues that the following instances—among others—should 

have precluded summary judgment despite his failure to timely file an 

opposition: (1) the termination of several members of his staff; (2) SLCC’s 

failure to provide him with a secretary or assistant; (3) the lack of cooperation 

he experienced from his co-workers; (4) his being reprimanded for correcting 

false enrollment data; and (5) the purported publication of his termination 

online. Defendants point to written documentation from Babaoye’s 

personnel file to support their assertion that Babaoye was terminated due to 

poor performance. They also argue that Babaoye failed to show all essential 

elements of his claims. 

Upon review of Defendants’ motion for summary judgment, as well 

as the supporting evidence, we conclude that the district court did not err in 

granting summary judgment. Babaoye has failed to establish a genuine issue 

of fact that his termination was due to any discriminatory intent. See Tanik v. 

S. Methodist Univ., 116 F.3d 775, 776 (5th Cir. 1997) (per curiam). To 

establish a prima facie case of discrimination, Babaoye must show: (1) he is a 

member of a protected class; (2) he was qualified for the position at issue; (3) 

he was the subject of an adverse employment action; and (4) he was treated 

less favorably because of his membership in that protected class than were 

other similarly situated employees who were not members of the protected 

class, under nearly identical circumstances. Lee v. Kan. City S. Ry. Co., 574 

F.3d 253, 259 (5th Cir. 2009).

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Assuming without deciding the first three elements have been met, 

Babaoye hasfailed to provide any evidence to evaluate whether the other vice 

chancellors were similarly situated to him either in job requirements or 

disciplinary history or whether and how they operated in “nearly identical 

circumstances.” Id. (reasoning that the fourth element is satisfied where 

“the employees being compared held the same job or responsibilities, shared 

the same supervisor or had their employment status determined by the same 

person, and have essentially comparable violation histories.” (citing cases)).

So he has failed to satisfy the fourth element for discrimination.

Even if Babaoye had established a prima facie case of discrimination, 

he has failed to refute Defendants’ contention that he was terminated due to 

numerous workplace violations. These documented violations—which were 

submitted as evidence in Defendants’ motion for summary judgment—

included providing incorrect data to his supervisor, failing to perform certain 

job responsibilities, and failing to follow instructions on multiple occasions.

The record also supports granting summary judgment on Babaoye’s 

retaliation claim because he has not provided evidence that Defendants

retaliated against him because he recommended hiring a minority employee.2

To establish a prima facie case of retaliation under Title VII, a plaintiff must 

show that: (1) he engaged in a Title VII protected activity; (2) he was subject 

to an adverse employment action; and (3) there was a but-for causal 

connection between his employment in the protected activity and the adverse 

employment action. Harville v. City of Houston, Mississippi, 945 F.3d 870 (5th 

2 To the extent Babaoye now bases his retaliation claim on the allegation that 

Defendants “post[ed] his termination on the school website, when no other postings are 

made,” this argument was not raised before the district court. It was only raised in the 

context of his now-abandoned defamation claim. As such, we do not consider this 

argument. See Rollins v. Home Depot USA, 8 F.4th 393, 398 (5th Cir. 2021)

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Cir. 2019). The Fifth Circuit has stated that “the ultimate issue on summary 

judgment” is whether the evidence “support[s] a finding that [the plaintiff] 

would not have been fired in the absence of [him] having engaged in 

protected conduct.” Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 409 

(5th Cir. 1999).As discussed supra, Babaoye does not rebut any of the reasons

Defendants have proffered for his termination. Assuming that Babaoye’s 

recommendation of a minority hire was indeed a protected activity, the 

undisputed facts nonetheless indicate that Babaoye was not fired for any 

protected conduct but rather for poor performance. 

Accordingly, because the uncontroverted evidence presented by 

Defendants showed no genuine disputes of material fact, summary judgment 

was appropriate. Wiltz, 645 F.3d at 694.

B. Denial of Motion to Reconsider or Alter Judgment

While not explicitly articulated in Babaoye’s briefing as a reason for 

reversal, Babaoye questions the district court’s denial of his “motion for 

reconsideration.” Although Babaoye’s motion is styled “MOTION FOR 

RECONSIDERATION AND FOR PERMISSION TO CONSIDER 

PLAINTIFF’S TARDY BRIEF,” this court considers “a motion for 

reconsideration filed within 28 days of final judgment as a Federal Rule of 

Civil Procedure 59(e) motion to alter or amend the district court’s 

judgment.”3 In re Life Partners Holdings, Inc., 926 F.3d 103, 128 (5th Cir. 

2019). Our court reviews the district court’s denial of a motion to alter or 

3 To the extent Babaoye’s motion could be construed as a motion for leave to file 

an out of time opposition, see Fed. R. Civ. P. 6(b)(2), the district court did not abuse its 

discretion by refusing to consider Babaoye’s opposition given that the only provided

explanation for tardiness was an “inadvertent error in counting the days for submission.” 

See Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 161 (5th Cir. 2006) (listing factors 

to be considered in granting leave to untimely file).

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amend the judgment for abuse of discretion. See ICEE Distribs., Inc. v. J & J 

Snack Foods Corp., 445 F.3d 841, 847 (5th Cir. 2006).

To prevail under Rule 59(e), the movant “must clearly establish either 

a manifest error of law or fact or must present newly discovered evidence and 

cannot . . . raise arguments which could, and should, have been made before 

the judgment issued.” In re Life Partners Holding, Inc., 926 F.3d at 128.

(internal quotation marks and citation omitted). Relevant here, a “manifest 

error” is an obvious error that “is plain and indisputable, and that amounts 

to a complete disregard of the controlling law.” Guy v. Crown Equip. Corp., 

394 F.3d 320, 325 (5th Cir. 2004) (internal quotation marks and citation 

omitted). Babaoye asserts that the district court’s denial of his motion was 

ambiguous and does not “promote the purposes of [s]ummary [j]udgment.”

But, the district court was clear—it denied the motion because Babaoye 

“merely recite[d]” arguments that could have been raised earlier but failed 

to do so. Babaoye fails to “clearly establish either a manifest error of law or 

fact,” and we perceive no abuse of discretion in the district court’s denial of 

Babaoye’s motion for reconsideration. See Schiller v. Physicians Res. Grp. Inc., 

342 F.3d 563, 567 (5th Cir. 2003).

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment and the denial 

of the motion for reconsideration.

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