UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________

No. 00-30184 Summary Calendar _________________

SYLVESTER PALMER,

Plaintiff-Appellant,

versus

TRANSIT MANAGEMENT SOUTHEAST LOUISIANA (TMSEL) REGIONAL TRANSIT AUTHORITY; REGIONAL TRANSIT AUTHORITY; AMALGAMATED TRANSIT UNION, Division 1611; UNIDENTIFIED PARTY,

Defendants-Appellees. _________________________________________________________________

Appeal from the United States District Court for the Eastern District of Louisiana (98-CV-594-K) _________________________________________________________________ August 21, 2000

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

Sylvester Palmer, terminated as part of a reduction in force,

appeals the summary judgment dismissing his claims under Title VII

(gender discrimination), ERISA, and state law (breach of contract).

He contends that summary judgment should not have been granted,

because: discovery was not complete; there was a material fact

issue on whether he had suffered an adverse employment action; he

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. was protected from layoffs under a collective bargaining agreement;

and he demonstrated that pension interference motivated his

termination.

NOPSI hired Palmer in July 1978 as a bus driver. He was a

member of Amalgamated Transportation Union Local Union 1611. In

1983, NOPSI was acquired by the Transit Management Southeast

Louisiana Regional Transit Authority (TSMEL). The union negotiated

agreements between its members and TSMEL concerning this

transaction.

In October 1995, Palmer was transferred, along with several

male and female co-workers, from the transportation department to

non-union positions in the maintenance department.

That December, a female co-worker was transferred back to the

transportation department at no change in salary. A year later,

another female co-worker was transferred from the maintenance

department to the transportation department. As part of a

reduction in force in March 1997, Palmer was terminated from his

non-union position in the maintenance department.

The parties consented to trial before a magistrate judge.

Defendants were awarded summary judgement, the magistrate judge

holding, in pertinent part, that: (1) Palmer had not suffered an

adverse employment action in being denied lateral transfers and

receiving shift changes and less training; (2) the reduction in

force that resulted in his termination, which included 20 females

- 2 - and eight other males, did not support his gender discrimination

claim; (3) Palmer’s position in the maintenance department was not

covered by the collective bargaining agreement, therefore, he was

an at-will employee subject to being terminated at any time; and,

(4) for his pension rights claim, he had failed to provide any

evidence that his employer intended to violate ERISA.

We review a summary judgment de novo; it is proper if, viewing

the summary judgment record in the light most favorable to the non-

movant, there is no material fact issue and the movant is entitled

to judgment as a matter of law. E.g., Drake v. Advance Const.

Serv., Inc.

(5th Cir. 1997); FED. R. CIV. P. 56.

Palmer contends the magistrate judge erred by ruling on

summary judgment before completion of discovery. Two of the three

sets of interrogatories he propounded in August 1999 were quashed

prior to the summary judgment ruling. The remaining set was

propounded to the EEOC.

Rule 56(f) permits a nonmovant to obtain a continuance in

order to gather additional evidence to respond to a summary

judgment motion. But, the nonmovant must demonstrate how the

additional discovery will defeat the summary judgment motion.

Vague assertions are not sufficient. See International Shortstop,

Inc. v. Rally’s, Inc.,

(5th Cir. 1991), cert.

denied,

(1992). Palmer, in a cursory manner, merely

- 3 - asserts that the proposed discovery will create a material fact

issue.

In addition, Palmer was dilatory in seeking discovery. This

action was filed in February 1998. Trial was scheduled initially

for 21 June 1999. Defendants moved for summary judgment on 13 July

1999. The magistrate judge scheduled a hearing on the motion for

that August, but did not rule on the motion until 18 January 2000.

Yet, the discovery that Palmer contends the court should have

waited on was not requested until 9 August 1999, after the

originally scheduled trial date. If a party has not diligently

pursued discovery, the court does not have to grant additional time

to gather it prior to ruling on summary judgment. Id.

Accordingly, because Palmer neither diligently pursued

discovery, nor stated with specificity how it would create a

material fact issue, the magistrate judge did not err in not

allowing a continuance of the summary judgment motion.

On the remaining issues, and based upon our de novo review of

the record and review of the briefs, summary judgment was proper

essentially for the reasons stated by the district court. Palmer

v. Transit Management Southeast La. Reg’l Transit Auth., No. 98-CV-

594-K (E.D. La. 18 Jan. 2000).

AFFIRMED

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