United States Court of Appeals

Fifth Circuit

FILED

December 7, 2006

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

_______________

Summary Calendar

m 06-10114

_______________

CHRIST CHRISTIANITY PARTY, ET AL.,

Plaintiffs,

SENECA L. LEE,

Plaintiff-Appellant,

VERSUS

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; ET AL.,

Defendants,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Northern District of Texas

m 4:04-CV-108

_________________________
Before SMITH, WIENER, and OWEN, 

Circuit Judges.

PER CURIAM:

*

Seneca Lee appeals a judgment in favor of

the Texas Department of Criminal Justice

(TDCJ”) dismissing his employment discrimination claim. Because Lee has failed to establish a prima facie case of discrimination, and

because the district court did not abuse its discretion in refusing to allow him to amend his

complaint, we affirm.

I.

Because Lee is pro se, we liberally construe

his briefs and apply less stringent standards in

interpreting his arguments than we would in

the case of a counseled party. Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995). We

read Lee’s brief as arguing that the district

court incorrectly applied the McDonnell

Douglas burden-shifting standard in holding

that Lee had failed to prove a prima facie case

ofemployment discrimination. SeeMcDonnell

Douglas v. Green, 411 U.S. 792 (1973). We

also read Lee’s brief as arguing that he should

have been allowed to amend his pleadings to

add claims pursuant to chapter 10 ofthe Texas

Civil Practice and Remedies Code and titlesII,

III, and VII of the Civil Rights Act of 1964.

Lee is a former employee of the TDCJ. In

January 2001 he was terminated for cause

from his position as a Correctional Officer. It

is undisputed that the TDCJ issued guidelines

before June 2003 that did not permit rehiring

of applicants who had been dismissed for

cause within the previous ten years. In June

2003 Lee applied for reinstatement, but his

application was denied. He alleges, through

conclusional affidavits, that the TDCJ has rehired correctional officers in violation of these

guidelines.

Lee brought claims on behalf of himself and

the Christ Christianity Party under titles II and

VII, the First and Fifth Amendments, and

chapter 10 of the Texas Civil Practice and

Remedies code, alleging that theTDCJrefused

to reinstate him because he is black and had

distributed Christian literature to inmates. All

claims by the Christ Christianity Party and Lee

were dismissed except for Lee’stitle VII claim

based on racial discrimination. An appeal from

the partial dismissal was dismissed for lack of

appellate jurisdiction.

Lee sought to amend his complaint to add

claims under chapter 10 of the Texas Civil

Practice and Remedies Code, TitlesII, III, and

VII, and the First Amendment. His motion to

amend was denied, and the TDCJ’s motion for

summary judgment was granted.

II.

We review a summary judgment de novo.

Morris v. Powell, 449 F.3d 682, 684 (5th Cir.

2005). All justifiable inferences to be drawn

from the underlying facts must be viewed in

the light most favorable to the nonmoving party. Minter v. Great Am. Ins. Co., 423 F.3d

460, 465 (5th Cir. 2005). Summary judgment

is appropriate where the record demonstrates

that there is no issue of material fact and the

moving party is entitled to judgment as a matter of law. Martinez v. Bally’s La., Inc., 244

F.3d 474, 476 (5th Cir. 2001).

To survive summaryjudgment, a plaintiffin

a discrimination case must establish a prima

facie case of discrimination through direct evidence of discriminatory intent or the shiftingburden test of McDonnell Douglas. See

Reeves v. Sanderson Plumbing Prods. Inc.,

* 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.
530 U.S. 133, 141 (2000). Lee has presented

no direct evidence of discrimination, so he

must proceed under the shifting-burden test.

A plaintiff can establish a prima facie case by

showing that he (1) is a member of a protected

class; (2) was qualified for the position; and

(3) was not hired; and (4) the position was

filled by someone outside the protected class,

or othersimilarlysituated personswere treated

more favorably. See, e.g., Septimus v. Univ.

of Houston, 399 F.2d 601, 609 (5th Cir.

2005).

The TDCJ has presented undisputed evidence that one qualification for the position of

Correctional Officer is that the applicant not

have been terminated for cause within the previous ten years. Lee has not presented any

competent evidence that this requirement is a

pretext.1 He cannot establish a prima facie

case, because he is not qualified for the position. The TDCJ is entitled to summary judgment.

III.

Lee appeals the denial of his motion to

amend his pleadings to add claims pursuant to

additional legal theories. A ruling on a motion

to amend pleadings is reviewed for abuse of

discretion. Smith v. EMC Corp., 393 F.3d

590, 595 (5th Cir. 2004). Without addressing

whether Lee has a statutory right to bring a

discrimination claim under his other legal theories, we note that for him to bring a claim of

discrimination under any theory, he will need

to prove a prima facie case of discrimination.

Because he has presented no evidence of direct

discrimination, no evidence sufficient to meet

the burden-shifting test under McDonnell

Douglas, and no evidence of a disparate

impact from the TDCJ’s policies, Lee’s claims

would be legally insufficient under any theory

of discrimination.2 The district court did not

abuse its discretion in denying the motion to

file an amended complaint.

AFFIRMED.

1 See, e.g., Young v. Equifax Credit Info.

Servs., Inc., 294 F.3d 631, 639 (5th Cir. 2002)

(“Conclusory affidavits are not sufficient to defeat

a motion for summary judgment.”).

2 Cf. Fabela v. Socorro Indep. Sch. Dist., 329

F.3d 414-15 (5th Cir. 2003) (outlining themethods

of proving a prima facie case of discrimination under title VII); Reeves, 530 U.S. at 141-42 (applying McDonnell Douglas framework to ADEA

claim).