“Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c
How later courts described this case
- “Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c
Written by the judges who cited it.
The opinion
Case: 25-20297 Document: 48-1 Page: 1 Date Filed: 04/14/2026
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 25-20297 FILED
Summary Calendar April 14, 2026
____________ Lyle W. Cayce
Clerk
Babu K. Thomas,
Plaintiff—Appellant,
versus
David Steiner, U.S. Postmaster; Todd Wallace Blanche,
Acting U.S. Attorney General; John G.E. Marck, United States Attorney
for the Southern District of Texas,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:22-CV-3157
______________________________
Before Jones, Richman, and Southwick, Circuit Judges.
Per Curiam:*
Babu K. Thomas appeals from the district court’s grant of summary
judgment to his former employer on claims of age, race, and disability
discrimination, retaliation, and hostile workplace environment, as well as the
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 25-20297
court’s denial of his motion for reconsideration and assessment of bill of costs
against him. We affirm.
I
Babu K. Thomas is an Asian-American man born in 1963. He began
working for the United States Postal Service (USPS) in 2000. As early as
2007, USPS began documenting problems with his work performance. In
2010, Thomas was given a medical accommodation limiting his workday to 8
hours. However, he did not abide by the conditions of the accommodation.
In June of 2014, Thomas instituted an investigation with USPS Equal
Employment Opportunity (“EEO”) alleging retaliation and a hostile work
environment based on race, national origin, age, and disability.
Thomas stopped going to work after August 13, 2014. On September
6, 2014, USPS notified Thomas he failed to keep his supervisor informed of
his status and failed to provide documentation to support his inability to
work. On January 24, 2015, Thomas was informed he had been placed on
Leave Without Pay status since August 13. Thomas sent several letters to
USPS representatives between 2014 and 2017 asking to discuss reasonable
accommodations and his claims of harassment and hostile work environment,
but none include supporting medical documentation.
On November 1, 2017, Thomas was ordered to “provide acceptable
evidence of [his] inability to report [for work] from August 2014 to present”
or be declared absent without leave and possibly terminated. USPS
conducted an investigative interview with Thomas on January 12, 2018, at
which Thomas declined to provide any documentation of his need to be
absent from work. Thomas was terminated effective March 23, 2018.
Thomas filed a charge with the EEO on April 20, 2018 asserting
discrimination, harassment, and retaliation based on race, age, and disability
beginning in December 2017. The EEOC issued a notice of right to sue letter
2
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on June 18, 2022. Thomas filed suit in federal district court on September 15,
2022.
Following discovery, the defendants moved for summary judgment on
September 12, 2024. On October 18, 2024, Thomas filed a motion to compel
alleging that the defendants had not complied with discovery requests. The
district court ordered the defendants to supplement discovery by November
14, 2024. On February 7, 2025, Thomas filed another motion to compel.
The magistrate judge issued a report and recommendation
recommending the defendants’ motion for summary judgment be granted in
full on February 12, 2025. The magistrate denied Thomas’s motion to
compel on March 4, 2025. The district court then adopted the report and
recommendation on March 14, 2025 and dismissed Thomas’s claims with
prejudice. The court also awarded costs in favor of defendants. Thomas
objected to this, but the court overruled his objection. Thomas also filed a
motion for reconsideration, which the court denied. He timely appealed.
II
We begin with Thomas’s challenge to the district court’s denial of his
motion to compel discovery. “Discovery rulings are ‘committed to the
sound discretion of the trial court’ and will not be reversed on appeal unless
‘arbitrary or clearly unreasonable.’”1
The district court denied Thomas’s motion because the court
“conclude[d] that Defendant complied with the Court’s [previous] Order
compelling them to supplement their discovery responses” and that
Thomas’s motion “was filed belatedly and months after the [] deadline and
_____________________
1
McCreary v. Richardson, 738 F.3d 651, 654 (5th Cir. 2013) (quoting Williamson v.
USDA, 815 F.2d 368, 373, 382 (5th Cir. 1987)).
3
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without conferring with Defendant as required by Local Rule 7.1(D).”
Thomas maintains he “filed timely before the motion deadlines” and that
“Defendant did not produce the documents that the Court ordered them to
produce.”
The district court did not abuse its discretion in denying Thomas’s
motion to compel. The supplemental discovery deadline was set as
November 14, 2024. Thomas’s motion was filed on February 7, 2025. “A
district court has discretion to deny as untimely a motion filed after the
discovery deadline.”2 Its decision to do so was therefore not “arbitrary or
clearly unreasonable.”3
Thomas’s further argument that summary judgment was improper
because he “did not have a full opportunity to conduct discovery” as “[t]he
Court had not yet ruled on [his] motion to compel” is without merit. The
magistrate judge ruled on his motion to compel on March 4, 2025. The
district court did not adopt the magistrate’s report and recommendation on
the motion for summary judgment until March 14, 2025. By that time, the
magistrate had already found the defendants complied with its previous
discovery orders and that Thomas’s motion to compel was untimely.
III
Thomas challenges the district court’s grant of summary judgment to
the defendants. “We review the district court’s grant of summary judgment
de novo.”4 Summary judgment is proper “if the movant shows that there is
_____________________
2
Brand Servs., L.L.C. v. Irex Corp., 909 F.3d 151, 156 (5th Cir. 2018).
3
McCreary, 738 F.3d at 654 (quoting Williamson, 815 F.2d 382).
4
Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).
4
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no genuine dispute as to any material fact.”5 In response to the movant, the
summary judgment standard “requires the nonmoving party to go beyond
the pleadings and by her own affidavits, or by the ‘depositions, answers to
interrogatories, and admissions on file,’ designate ‘specific facts showing
that there is a genuine issue for trial.’”6
A
First, we consider Thomas’s claim of disability discrimination. The
Rehabilitation Act provides the exclusive remedy for federal employees
alleging disability discrimination in the workplace.7 “To qualify for relief
under the Rehabilitation Act, a plaintiff must prove that (1) he is an
‘individual with a disability’; (2) who is ‘otherwise qualified’; (3) who
worked for a ‘program or activity receiving Federal financial assistance’; and
(4) that he was discriminated against ‘solely by reason of her or his
disability.’”8 “An individual with a disability is any person who (1) has a
physical or mental impairment which ‘substantially limits one or more of
such person’s major life activities’; (2) has a ‘record’ of such an impairment;
or (3) is ‘regarded’ as having such an impairment.”9 Major life activities
include “caring for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working.”10
_____________________
5
Fed. R. Civ. P. 56(a).
6
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
7
Dark v. Potter, 293 F. App'x 254, 258 (5th Cir. 2008).
8
Hileman v. City of Dallas, 115 F.3d 352, 353 (5th Cir. 1997) (quoting 29 U.S.C.
§ 794(a)).
9
Id. (quoting 29 U.S.C. § 706(8)(B)).
10
Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995).
5
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Thomas alleges a diagnosis of diabetes in 2005 and depression in 2009
as the basis for disabilities. In one of the letters Thomas submitted as
summary judgment evidence, he wrote: “I told you I am a type-2 diabetic
during our conversations at work and while you were riding with me. I have
been on an 8hr day restriction for long time. I had to use an umbrella in the
sun at NBUs and sometimes check my blood sugar if I feel weak and use the
bathroom if needed and such.” This is the extent of the record evidence
establishing the impacts of Thomas’s diagnoses. However, this is
insufficient to create a genuine issue of material fact as to whether Thomas is
“[a]n individual with a disability” because it does not demonstrate that his
physical or mental impairment “substantially limits one or more of [his]
major life activities.”11 Indeed, Thomas continued to work for years after
these diagnoses.
Because Thomas fails to show a genuine dispute of material fact as to
whether he is an individual with a disability, summary judgment was proper
on his disability discrimination and failure to accommodate claims.
B
With regard to Thomas’s race discrimination claim, to establish a
prima facie case of racial discrimination, a plaintiff must show he “1) is a
member of a protected class; 2) was qualified for h[is] position; 3) was
subjected to an adverse employment action; and 4) was replaced by someone
outside the protected class, or that other similarly situated persons were
treated more favorably.”12 “Employees are similarly situated when they
(1) ‘held the same job or responsibilities,’ (2) ‘shared the same supervisor or
_____________________
11
Hileman, 115 F.3d at 353.
12
Septimus v. Univ. of Hous., 399 F.3d 601, 609 (5th Cir. 2005).
6
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had their employment status determined by the same person,’ and (3) ‘have
essentially comparable violation histories.’”13
Thomas proffers five comparators. For the first two, Thomas points
to a USPS pre-complaint counseling information form in the record that he
completed. The form names one comparator as a “female, European-
American” who “was given special accommodations, no harassments” and
“was awarded [Thomas’s] adjusted route by supervisor.” It names the
second as a “male, European-American” who “was provided
accommodation to work only half of the route for a long period of time for a
medical condition. He was away from carrier craft for over 10 y[ea]rs but
allowed to bid on route (my adjusted route) at the same time I was denied
opportunity to bid open routes.” This evidence is insufficient to create a
genuine issue of material fact as to whether these employees are similarly
situated. Thomas points to no evidence that suggests these employees
“shared the same supervisor or had their employment status determined by
the same person” and offers nothing regarding these employee’s “violation
histories.”14 As for Thomas’s three other proffered comparators, Thomas
points to no record evidence whatsoever. Thomas therefore does not show
a genuine issue of material fact as to whether they are similarly situated.
Because Thomas does not point to any record evidence creating a
genuine issue of material fact as to whether his proffered comparators are
“similarly situated persons [who] were treated more favorably” and does not
argue he was “replaced by someone outside the protected class,” he did not
raise a genuine issue of material fact as to the fourth element of his prima
_____________________
13
West v. City of Hous., 960 F.3d 736, 740 (5th Cir. 2020) (quoting Lee v. Kan. City
S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009)).
14
West, 960 F.3d at 740 (quoting Lee, 574 F.3d at 260).
7
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facie case of racial discrimination.15 Summary judgment was therefore proper
on his race discrimination claim.
C
As to Thomas’s age discrimination claim, “[t]o establish h[is] prima
facie case of age discrimination, [Thomas] must show that (1) [he] was
discharged, (2) [he] was qualified for the position, (3) [he] was within the
protected class when [he] was discharged, and (4) [he] was ‘either i) replaced
by someone outside the protected class, ii) replaced by someone younger, or
iii) otherwise discharged because of h[is] age.’”16
Thomas alleges “his carrier route was given to much younger part-
time and casual employees.” However, Thomas does not point to any
competent summary judgment evidence demonstrating he was replaced by
younger employees or even identifying who those employees were.17 Indeed,
Thomas admits he “did not get their names and other information” during
discovery. Thomas therefore has not shown a genuine issue of material fact
as to the fourth element of his prima facie case. Summary judgment was
proper on his age discrimination claim.
D
“To present a prima facie case of retaliation under either Title VII or
§ 1981, a plaintiff must show that: (1) he engaged in an activity protected by
_____________________
15
Septimus, 399 F.3d at 609.
16
Allen v. U.S. Postal Serv., 63 F.4th 292, 301 (5th Cir. 2023) (quoting Jackson v.
Cal-W. Packaging Corp., 602 F.3d 374, 378 (5th Cir. 2010)).
17
See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (“Rule 56(e) permits a
proper summary judgment motion to be opposed by any of the kinds of evidentiary
materials listed in Rule 56(c), except the mere pleadings themselves, and it is from this list
that one would normally expect the nonmoving party to make the showing to which we
have referred.”)
8
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Title VII; (2) he was subjected to an adverse employment action; and (3) a
causal link exists between the protected activity and the adverse employment
action.”18 “If [the plaintiff] successfully establishes her prima facie case, the
burden then shifts to the [defendant] to state a legitimate non-retaliatory
reason for its action. . . . [The plaintiff] must [then] show that the
[defendant]’s stated reason is actually a pretext for retaliation.”19 “The
proper standard of proof on the causation element of a Title VII retaliation
claim is that the adverse employment action taken against the plaintiff would
not have occurred ‘but for’ her protected conduct.”20
Thomas argues record evidence showing his EEO complaints,
congressional complaints, and reasonable accommodation requests, among
others, are protected activity for which he was fired in retaliation. Assuming
without deciding that Thomas has created a genuine issue of material fact
with respect to each element of his prima facie case, USPS has articulated a
legitimate non-retaliatory reason for the employment action—that is, that
Thomas was absent from work for three years and continually failed to
provide the necessary requested medical information to justify his absence.
As we have previously held, “an employee’s failure to show up for work is a
legitimate reason for firing her.”21
Thomas does not respond to USPS’s non-retaliatory reason, arguing
instead that “the defendant presents no non-discriminatory reasons for
termination of [his] employment.” Thomas therefore does not create a
_____________________
18
Davis v. Dall. Area Rapid Transit, 383 F.3d 309, 319 (5th Cir. 2004).
19
Septimus v. Univ. of Hous., 399 F.3d 601, 610 (5th Cir. 2005).
20
Id. at 608.
21
Amedee v. Shell Chem., L.P., 953 F.3d 831, 835 (5th Cir. 2020) (quoting
Trautman v. Time Warner Cable Tex., L.L.C., 756 F. App’x 421, 428 (5th Cir. 2018)).
9
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genuine issue of material fact as to whether the adverse employment action
taken against him would have occurred but-for his protected conduct.
Summary judgment was accordingly proper on this claim as well.
E
We now turn to Thomas’s harassment and hostile work environment
claim. To establish a hostile work environment claim based on race, age, or
disability, a plaintiff must show: (1) he belongs to a protected group; (2) he
was subjected to unwelcome harassment; (3) the harassment complained of
was based on race, age, or disability; (4) the harassment complained of
affected a term, condition, or privilege of employment; (5) the employer
knew or should have known of the harassment in question and failed to take
prompt remedial action.22
Thomas points to a coworker’s EEO investigative affidavit filed on
March 8, 2013, a complaint Thomas wrote on a USPS routing slip to the
postmaster detailing an incident of bullying by coworkers and a supervisor
dated June 17, 2014, and several letters Thomas wrote between 2014 and
2017. However, Thomas’ last day of work was August 13, 2014. All the
incidents of harassment reflected in the record necessarily occurred on or
before that date. But the EEO only accepted Thomas’s hostile work
environment and discriminatory harassment claim insofar as it related to
harassment and bullying “[b]eginning on or about December of 2017.”
Thomas cannot point to any record evidence demonstrating harassment from
2017 onwards. Summary judgment was therefore proper on this claim.
_____________________
22
See Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002) (race); Thompson v.
Microsoft Corp., 2 F.4th 460, 471 (5th Cir. 2021) (disability); Dediol v. Best Chevrolet, Inc.,
655 F.3d 435, 441 (5th Cir. 2011) (age).
10
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IV
Finally, Thomas argues “USPS management terminated [him] from
his employment without just cause” and there was an “unfair and improper
grievance arbitration process.” However, Thomas did not plead that his
termination was improper aside from his prior discrimination and retaliation
claims in his underlying administrative complaint, nor in his complaint in
federal district court. Nor did he plead a claim about the arbitration process
in the district court. We will not consider claims raised for the first time on
appeal.23
V
Thomas asserts that “[t]he memorandum and recommendation
contain several factual errors.”24 Because “[w]e give pro se briefs a liberal
construction,”25 we construe this argument to be an appeal of the denial of
Thomas’s motion for reconsideration. “[W]e review a district court’s
decision on a Rule 59 motion to reconsider for abuse of discretion.”26
“A motion to alter or amend the judgment under Rule 59(e) ‘must
clearly establish either a manifest error of law or fact or must present newly
discovered evidence’ and ‘cannot be used to raise arguments which could,
and should, have been made before the judgment issued.’”27 In denying
Thomas’s motion, the district court noted his “[m]otion establishes only that
[he] disagrees with the Court’s ruling.” We agree. Because Thomas failed
_____________________
23
See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
24
Thomas Br. at 35.
25
Brown v. Sudduth, 675 F.3d 472, 477 (5th Cir. 2012).
26
In re La. Crawfish Producers, 852 F.3d 456, 462 (5th Cir. 2017).
27
Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 567 (5th Cir. 2003) (quoting
Rosenzweig v. Azurix Corp., 332 F.3d 854, 863-64 (5th Cir. 2003)).
11
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to establish a manifest error of law or fact or present newly discovered
evidence, the district court did not abuse its discretion in denying his motion
for reconsideration.
VI
Finally, Thomas argues the district court erred in granting a bill of
costs in favor of the defendants. Federal Rule of Civil Procedure 54(d)(1)
states “costs—other than attorney’s fees—should be allowed to the
prevailing party.”28 This rule “contains a strong presumption that the
prevailing party will be awarded costs.”29 “Only when a clear abuse of
discretion is shown can an award of cost be overturned.”30
Thomas argues the district court’s grant of deposition-related costs to
the defendants was an abuse of discretion because his deposition was not used
in the defendant’s motion for summary judgment. However, we have
previously held that “[a] deposition or deposition copy ‘need not be
introduced into evidence . . . in order to be ‘necessarily obtained for use in
the case.’”31 “Whether a deposition or copy was necessarily obtained for use
in the case is a factual determination within the district court’s discretion,
and ‘[w]e accord the district court great latitude in this determination.’”32
The district court found the deposition of Thomas “was clearly obtained for
use in this case even though Defendant did not cite the deposition in its
summary judgment briefing.” Thomas presents no compelling reason to
_____________________
28
Fed. R. Civ. P. 54(d)(1).
29
Pacheco v. Mineta, 448 F.3d 783, 793 (5th Cir. 2006).
30
Id.
31
United States ex rel. Long v. GSDMIdea City, L.L.C., 807 F.3d 125, 130 (5th Cir.
2015) (quoting Fogleman v. ARAMCO, 920 F.2d 278, 285-86 (5th Cir. 1991)).
32
Id. (alteration in original) (quoting Fogleman, 920 F.2d at 286).
12
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disturb the district court’s factual determination. The district court did not
abuse its discretion in granting the bill of costs.
* * *
For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment to the defendants, denial of Thomas’s motion for
reconsideration, and assessment of bill of costs.
13