IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________________________

No. 99-20660 (Summary Calendar) _______________________________________

BYRON KEITH BLUE, Plaintiff-Appellant,

versus

HARRIS COUNTY JUVENILE PROBATION DEPARTMENT; LARRY SMITH, Individually and in his official capacity as the Superintendent of the Harris County Juvenile Probation Department Delta-3 Boot Camp; ELMER BAILEY, Individually and in his official capacity as the Executive director of the Harris County Juvenile Probation Department, Defendants-Appellees. _________________________________________________

Appeal from the United States District Court for the Southern District of Texas (98-CV-3623) _________________________________________________ March 23, 2000

Before POLITZ, WIENER, and EMILIO GARZA, Circuit Judges:

Per Curiam*

In this appeal, Plaintiff-Appellant Byron Keith Blue, a black

male, challenges the district court’s grant of summary judgment to

Defendants-Appellees Harris County Juvenile Probation Department,

Larry Smith (Superintendent), and Elmer Bailey (Executive Director)

(collectively, “Defendants”) on his Title VII1 discriminatory

* Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. 1 28 U.S.C. § 2000e, et seq.

1 discharge claim. He also challenges the district court’s denial of

his motion for a continuance.

We review the district court’s grant of summary judgment de

novo, applying the same standard as that court.2 We review the

denial of a motion for a continuance for abuse of discretion.3

Blue was employed for nine years by Harris County Juvenile

Probation Department. He was working as a shift supervisor on the

night of the suicide of a juvenile detainee, the incident that

preceded his firing. It is undisputed that (1) part of Blue’s

responsibilities during the shift that night were to perform

quarter-hourly checks on the detainee who died, (2) at the start of

the shift, Blue initialed all the spaces on the unit surveillance

form so that it would appear that he had performed the checks as

scheduled, (3) after the suicide was discovered, he removed the

completely pre-initialed form and replaced it with a different one,

filling in his initials only up to the time the death was

discovered, (4) he admitted to Houston Police Department

investigators that he had replaced the form, explaining that

because of his busy schedule, he sometimes completed the

surveillance form in advance, (5) he was terminated from employment

the day he gave his statement to the police, and (6) subsequently,

he was convicted under state law of the felony offense of tampering

with/fabricating physical evidence.

2 United States v. Johnson,

(5th Cir. 1998). 3 Dorsey v. Scott Wetzel Services, Inc.,

(5th Cir. 1996).

2 Blue nevertheless contends that his termination was racially

motivated in violation of Title VII because other Harris County

Juvenile Probation Department employees who engaged in similarly

egregious treatment and negligent supervision of detainees were not

fired. In particular, Blue contends that a non-minority employee

who admitted to destroying documents on the night of the incident

was neither reprimanded nor terminated. Blue proffered no evidence

in support of his allegations of analogous misconduct or admissions

by other employees on the night of the suicide or at other times.

The district court, in an oral ruling, granted summary

judgment to Defendants on the ground that Blue failed to establish

a prima facie case of employment discrimination on the basis of

race.4 The district court determined that the fourth element of

the plaintiff’s prima facie case for discriminatory discharge

required him to show that his former position was filed by a non-

minority; he failed to do so, as a black male was hired to replace

him.

We have held, however, that the fourth element may also be

established by showing that the plaintiff was terminated and that

others not in the plaintiff’s protected class, “having comparable

4 To establish a prima facie case, a plaintiff must show that (1) he was a member of the protected class, (2) he was qualified for the job, (3) he was terminated, and (4) after his termination, the employer filled the position with a worker not in the protected class. Whiting v. Jackson State University,

(5th Cir. 1980) (citing McDonnell Douglas Corp. v. Green,

(1973)); see also Texas Dept. of Community Affairs v. Burdine,

(1981); Weaver v. Casa Gallardo, Inc.,

(11th Cir. 1991).

3 or lesser qualifications,”5 were retained, or that the plaintiff

suffered differential application of work or disciplinary rules.6

Blue, accordingly, made allegations which, if supported, could have

made out a prima facie case, contrary to the district court’s

ruling. We nevertheless affirm, albeit on different grounds, as

Blue failed to produce any evidence of his allegations that

comparably delinquent employees were retained.

Apparently aware of the fatal lack of proof for his claim,

Blue filed -- a few days after Defendants filed their motion for

summary judgment -- a Rule 56(f) motion for continuance, seeking

additional time to conduct discovery. The district court denied

the motion. Blue also appeals that order.

Rule 56(f) provides that the court may order a continuance to

allow time for the party opposing a motion for summary judgment to

obtain affidavits essential to justify the party’s position. A

party requesting a continuance for that reason must submit an

affidavit to the court stating why the relevant summary judgment

evidence could not timely be obtained.7

Blue contends that he was in the process of contacting

witnesses, reviewing Defendants’ responses to discovery, and

reviewing documents and videotapes prior to the time his response

to Defendants’ motion for summary judgment -- which they filed on

5 Whiting,

. 6 See id.; Weaver,

. 7 Paul Kadair, Inc. v. Sony Corp. of America,

(5th Cir. 1983).

4 order of the court -- was due. In his reply brief, Blue also

indicates that, as a named defendant to a lawsuit by the deceased

juvenile’s parents, he had become aware of evidence that would

support his Title VII claim. Defendants urge, however, that Blue

(1) did not file an affidavit with his motion for a continuance

explaining why discovery was delayed and (2) did not even request

discovery from Defendants until after their motion for summary

judgment was filed.

We conclude that the district court did not abuse its

discretion in denying Blue’s motion for a continuance, as he did

not file an affidavit as required by Rule 56(f), explaining his

need for additional time for discovery. Lacking any evidence to

support his allegations of discriminatory discharge, Blue could not

survive summary judgment, and the district court properly dismissed

his Title VII claim.

AFFIRMED

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