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

_______________



### C HRIST 

### C HRISTIANITY 

### P ARTY 

### , ET 

### AL 

### ., Plaintiffs,


### S ENECA 

### L. L

EE 

### , Plaintiff-Appellant,

VERSUS


### T EXAS 

### D EPARTMENT OF 

### C RIMINAL 

### J USTICE 

### ; ET 

### AL 

### ., Defendants,


### T EXAS 

### D EPARTMENT OF 

### C RIMINAL 

### J USTICE 

### , Defendants-Appellees.

_________________________ Appeal from the United States District Court fo r the Northern District of Texas 

### m 4:04-CV-108

_________________________Before S MITH , WIENER , and O WEN ,

Circuit Judges.
P ER C URIAM : * Seneca Lee appeals a judgment in favor of t he Texas Department of Criminal Justice (TDCJ”) dismissing his emplo yment discrimination claim. Because Lee has failed to establish a prima facie case of discriminat io n, and because the district court did not abuse it s discretion in refusing to allo w him to amend hi s com plaint , we affirm.
I. Because Lee is pro se , we liberally construe his briefs and apply less stringent standards in int erpreting his argum

ents 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 th at the di strict court inco rrec tly applied the M cDonnell Douglas bu rden-shifting standard in holding th at Lee had failed to prove a prima facie case o f employment discriminat io n. See McDo nnell Douglas v. Green , 411 U.S. 792 (1973). We also read Lee’s brief as arguing th at he should have been allowed to amend his pleadings to add claims pursuant to chapter 10 of the Texas Civil Practice and Remedies Code and ti tles II, III, and VII of the Civil Rights Act of 1964. Lee is a former employee of the TDCJ. In January 2001 he was term inat ed fo r cause from his position as a Correctional Officer. It is undisputed th at the TDCJ issued guidelines before June 2003 th at did not perm it rehiring of applicants who had been dis missed for cause wit hin the previous ten years. In June 2003 Lee applied fo r rein statem ent, but his application was denied. He alleges, through

conclusional affidavit s, th at the TDCJ has rehired correctional of

ficers in vio lat io n of these guidelines.
Lee brought claims on behalf of himself and the Christ Christianity Party under ti tles II and VII, the First and Fift h Amend ments, and chapter 10 of the Texas Civil P ractice and Remedies code, alleging th at the TDCJ refused t o reinstate him because he is black and ha d distributed Christian lit erature to inmat es. All claims by the Christ Christianity Party and Lee were dismissed except fo r Lee’s ti tle VII claim based on racial discriminat io n. An appeal from the parti al dismissal was dismissed for lack of appellate jurisdiction.
Lee sought to amend his com plaint to add claims under chapter 10 of the Texas Civil Practice and Remedies Code, Ti tles II, III, and VII, and the First Amendment

. His mo tion to amend was denied, and the TDCJ’s mo tion fo r summary judgment was granted.

II. We review a summary judgment de novo . Morris v. Powell , 449 F.3d 682, 684 (5th Cir. 2005). All just ifiable inferences to be drawn from the underlying facts must be viewed in the light mo st favorable to the nonmoving party

. M inter v. Great Am. Ins. Co. , 423 F.3d 460, 465 (5th Cir. 2005). Summary judgment is appropri ate where the record demonstrates th at there is no issue of mat erial fact and the mo ving party is entitled to judgment as a mat

ter of law. Martinez v. Bally’s La., Inc. , 244 F.3d 474, 476 (5th Cir. 2001).
To survive summary judgment, a plaint iff in a discriminat io n case must establish a prima facie case of discriminat io n th rough direct evidence of discriminat ory int ent or the shift ingburden test of M

c Donnell Douglas

. See Reeves v. Sanderson Plumbing Prods. Inc. , * Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion s hould not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4.530 U.S. 133, 141 (2000). Lee has presented

no direct evidence of discriminat io n, so he must proceed under the shift ing-burden test. A plaint iff can est ablish a prima facie case by showing th at he (1) is a member of a protected class; (2) was qualified for the position; and (3) was not hired; and (4) the posi tion was filled by so meo ne outside the protected class, or other similarly sit uated persons were treated mo re fav orab ly. See, e.g., Septimus v. Univ. of Houston , 399 F.2d 601, 60 9 (5th Cir. 2005).
The TDCJ has presented undisputed evidence th at one qualification fo r the position of Correctional O fficer is that the applicant not have been term

inat ed fo r cause wit hin the previo us ten years. Lee has not presented any com petent evidence th at this requirement is a pretext. 1 He cannot establish a p rima facie case, because he is not qualified fo r the posi

tion. The TDCJ is entitled to summary judgment

. III. Lee appeals the deni al o f his mo tion to amend his pleadings to add claims pursuant to additional legal theories. A ruling on a motion to amend pleadings i s reviewed for abuse of discretion. Smith v. EMC Corp. , 393 F.3d 590, 595 (5th Cir. 2004). Wit hout addressing whether Lee has a statutory right to bring a discriminat io n claim under his other legal theories, we note that for him to bring a claim of discriminat io n under any theory, he will need to prove a prima facie case of discriminat io n. Because he has presented no evidence of direct discriminat io n, no evidence sufficient to meet the burde n-shifting test under M cDonnell Douglas , and no evidenc e of a disparate impact from the TDCJ’s pol icies, Lee’s claims would be legally insufficient under any theory of discriminat io n. 2 The district court did not abuse it s discretion in denying the m otion to file an amended complaint.
AFFIRMED.

1 See, e.g., You ng v. Equifax Credit Info. Servs., Inc. , 294 F.3d 631, 63 9 (5th Cir. 2002) (“Conclusory affidavits are not sufficient to defeat a m otion for summary judgment.”). 2 Cf. Fabela v. Socorro Indep. Sch. Dist. , 329 F.3d 414-15 (5th Cir. 2003) (outlining the methods of proving a prima facie case of discrimination under title VII); Reeves , 530 U.S. at 141-42 (applying McDonnell Douglas fram ework to ADEA claim).