Traci Roberts v. Unitrin Specialty Lines Ins, et a

Case: 09-10350 Document: 00511329020 Page: 1 Date Filed: 12/21/2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

December 21, 2010

No. 09-10350

Summary Calendar Lyle W. Cayce

Clerk

TRACI ROBERTS,

Plaintiff-Appellant

v.

UNITRIN SPECIALTY LINES INSURANCE CO; TRINITY UNIVERSAL

INSURANCE COMPANY; UNITRIN INC; JOHN MULLEN; DAN MALONEY;

JAMES DICKEY; LAWRENCE KUFEL; UNITRIN COUNTY MUTUAL

INSURANCE CO,

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:06-CV-380

Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.

PER CURIAM:*

Traci Roberts, acting pro se, filed an in forma pauperis (IFP) complaint

against her former employer, several of its related companies, and several of its

employees, alleging that they discriminated and retaliated against her in

violation of Title VII of the Civil Rights Act, the Americans with Disabilities Act

*

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.

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No. 09-10350

(ADA), the Family and Medical Leave Act (FMLA), the Employee Retirement

Income Security Act (ERISA), the Consolidated Omnibus Budget Reconciliation

Act of 1985 (COBRA), and numerous Texas statutes. The district court granted

defendants’ motion for summary judgment, dismissed Roberts’s claims, and

denied her request to proceed IFP on appeal, certifying that the appeal was not

taken in good faith. She now moves to proceed IFP in this court. We DENY IFP

status, DISMISS the appeal as frivolous, and DENY all other motions.

I. Factual Background

Roberts began working for Unitrin on September 8, 2003, as a marketing

manager; shortly after she arrived at Unitrin, James Dickey became her

supervisor. In April or May 2004, Roberts was assigned to correct problems with

the “Texas Contract Project,” which was an ongoing, highly visible project that

had been rife with problems. Roberts contends that her supervisors blamed her

for the failure of the project, although she allegedly was not responsible for its

continued failures. On April 15, 2004, Cliff Shumway, a sales manager,

allegedly “verbally assaulted” her; she reported the incident to Dan Maloney,

vice president of human resources, on April 29, 2004. On May 24, 2004,

Shumway again allegedly verbally attacked her. On May 29, 2004, Dickey

allegedly transferred 50% of Roberts’s job duties to Mike Bascue; Roberts did not

suffer any loss of pay as a result.

Roberts further alleges that on June 4 and 15, 2004, Roberts injured her

back at work. At some point in early June 2004, Dickey removed a project from

Roberts, and Roberts heard Shumway say he won a bet that the project would

be removed from her. On June 21, 2004, Roberts sent an email to Maloney

complaining about the work environment. On June 23, 2004, Dickey, Larry

Kufel, and Shumway made a presentation to management blaming Roberts, and

Dickey interrogated her and brought her to tears. On July 7, 2004, Dickey

issued a disciplinary action notice to Roberts, requiring her to complete seven

large projects by July 30, 2004, or be terminated. Roberts worked from home

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due to pain on July 23, 2004, and never returned to work. She began receiving

short-term disability benefits on July 26, 2004, and thereafter her ability to

check voicemail and emails was cut off, her telephone extension was deleted, and

her direct reports were transferred. In January 2005, Unitrin notified Roberts

that her short-term leave would expire on January 21, 2005, and that she was

required to return to work by January 24, 2005, or she would be terminated.

Roberts did not return to work and produced a doctor’s note to the effect that she

was unable to return to work. Unitrin contends that she was terminated on

January 31, 2005 for failure to comply with its return to work policy following

a period of short-term disability.

II. Standard of Review

Roberts’s motion to proceed IFP on appeal is construed as a challenge to

the district court’s certification decision. Baugh v. Taylor, 117 F.3d 197, 202 (5th

Cir. 1997). Thus, her request “must be directed solely to the trial court’s reasons

for the certification decision.” Id. This court’s inquiry into whether the appeal

is taken in good faith “is limited to whether the appeal involves legal points

arguable on their merits (and therefore not frivolous).” Howard v. King, 707

F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citation omitted).

This court reviews the grant of summary judgment de novo. Dillon v.

Rogers, 596 F.3d 260, 266 (5th Cir. 2010). Under the version of Rule 56 in effect

at the time of the district court’s judgment, summary judgment is appropriate

“if the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that

the movant is entitled to a judgment as a matter of law.” F ED. R. C IV . P.

56(c)(2).1

1

Effective December 1, 2010, Rule 56 was amended.

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III. Discussion

A. Title VII Claims

1. Time Bar and Continuing Violations Doctrine

Roberts first claims that the district court erred in determining that

conduct that occurred prior to June 18, 2004, was time barred because it

occurred greater than 300 days from the date that Roberts filed her complaint

with the EEOC. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109

(2002); see also Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998). She

alleges that that conduct is not time barred based on the continuing violations

doctrine.

The continuing violations doctrine is an equitable doctrine that extends

the limitations period on otherwise time-barred claims when the unlawful

employment practice in question “manifests itself over time, rather than as a

series of discrete acts.” Pegram v. Honeywell, Inc., 361 F.3d 272, 279 (5th Cir.

2004). This court has noted that:

the core idea [of the continuing violation theory] is that equitable

considerations may very well require that the filing periods not

begin to run until facts supportive of a Title VII charge or civil

rights action are or should be apparent to a reasonably prudent

person similarly situated. The focus is on what event, in fairness

and logic, should have alerted the average lay person to act to

protect his rights.

Glass v. Petro-Tex Chem. Corp., 757 F.2d 1554, 1560-61 (5th Cir. 1985) (internal

citation and quotation omitted).

The parties dispute here whether Roberts raised that argument in the

district court. Regardless of whether it was properly raised in the district court,

the continuing violations doctrine is not applicable here because Roberts

acknowledged that she was aware of her Title VII rights on July 26, 2004, when

she signed a document entitled “Decision Not to File or to Drop Issues” after

being interviewed by an EEOC investigator. Thus, defendants’ alleged

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discriminatory practices did not manifest themselves over time, and the

continuing violations theory is therefore not relevant here. See Pegram, 361

F.3d at 279.

Roberts’s remaining Title VII discrimination claims are without merit

because she has failed to set forth a prima face case of discrimination with

respect to all conduct other than her termination, and with respect to her

termination, she has failed to show that defendants’ reason for her discharge,

her failure to return to work after her short-term leave expired, was a pretext.

2. Absence of Evidence That Reason for Termination Was Pretextual

Title VII prohibits discrimination in employment decisions on the basis of

“race, color, religion, sex or national origin.” 42 U.S.C. § 2000e-2(a)(1). Absent

direct proof of discrimination, a plaintiff may assemble proof via circumstantial

evidence using the framework set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). “First, the plaintiff must establish a prima facie case of

discrimination. Second, the employer must respond with a legitimate,

nondiscriminatory reason for its decision. This burden on the employer is only

one of production, not persuasion, involving no credibility assessments.” Russell

v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000) (internal quotation

marks and citations omitted). If the employer meets its burden of production,

the plaintiff must then offer evidence to create a genuine issue of material fact

as to whether the nondiscriminatory reason is a pretext or is only one of the

reasons for the employer’s conduct and the plaintiff’s protected characteristic is

another motivating factor. Burrell v. Dr Pepper/Seven Up Bottling Group, Inc.,

482 F.3d 408, 412 (5th Cir. 2007). A reason is pretextual if it is false, “unworthy

of credence,” or otherwise unpersuasive. Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 147 (2000).

To establish a prima facie case of discrimination, a plaintiff must show

that she is a member of a protected class; is qualified for the job; suffered an

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adverse employment action by the employer; and was either replaced by

someone outside her protected group or received less favorable treatment than

a similarly situated individual outside the protected group. McCoy v. City of

Shreveport, 492 F.3d 551, 556 (5th Cir. 2007).

With respect to conduct other than her termination, Roberts has failed to

show that she suffered an adverse employment action because none of the post-

June 18, 2004 conduct constituted an “ultimate employment decision,” which

includes hiring, granting leave, discharging, promoting, or compensating. See

Burger v. Cent. Apartment Mgmt., Inc., 168 F.3d 875, 878 (5th Cir. 1999); see

also Hernandez v. Crawford Bldg. Material Co., 321 F.3d 528, 532 n.2 (5th Cir.

2003) (noting that “removal of employee’s name from letterhead, ostracism by

coworkers, and loss of some job duties” are not ultimate employment decisions).

With respect to her termination, assuming for the sake of argument that

Roberts has set forth a prima facie case of sex discrimination,2 Roberts has not

shown that Unitrin’s reason for her termination was a pretext.

Specifically, the record reflects that Unitrin’s policy was to terminate any

employee who did not return to work after his or her qualified leave had expired

and that it consistently enforced that policy. The record also reflects that

Roberts was terminated because she failed to return to work after her short-

term disability leave expired and that Roberts admitted that she was unable to

return to work after her leave expired. Roberts has set forth no evidence that

Unitrin’s reason for her termination was false, unworthy of credence, or

otherwise unpersuasive, see Reeves, 530 U.S. at 147, or that her sex was a

motivating factor in her termination. See Burrell, 482 F.3d at 412.3

2

Unitrin argues that Roberts was not replaced with someone outside the protected

class. Because we conclude that Roberts failed to establish that Unitrin’s proffered reason for

discharging her was pretextual, we need not reach this issue.

3

Roberts cites a remote-in-time statement by Dickey that he liked to have men in

managerial positions as support for her claim of sex discrimination. However, because Roberts

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3. Constructive Discharge and Retaliation

Roberts’s constructive discharge claim is without merit because she was

terminated; she did not resign. See Brown v. Bunge Corp. 207 F.3d 776, 782

(5th Cir. 2000) (“When an employee resigns, he may satisfy the discharge

requirement by proving constructive discharge.”).

Roberts’s Title VII retaliation claims also fail. To establish a prima facie

case of retaliation, “a plaintiff must show that (1) she participated in a Title VII

protected activity, (2) she suffered an adverse employment action by her

employer, and (3) there is a causal connection between the protected activity and

the adverse action.” Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 331 (5th

Cir. 2009). With respect to the third element, the plaintiff must demonstrate

that the defendant knew about her protected activity. See Manning v. Chevron

Chem. Co., 332 F.3d 874, 884 (5th Cir. 2003). The causation element may be

proved by temporal proximity between the protected activity and the adverse

employment action when they occur “very close” in time. Washburn v. Harvey,

504 F.3d 505, 511 (5th Cir. 2007) (internal quotation and citation omitted).

An adverse employment action is one that “a reasonable employee would

have found . . . [to be] materially adverse, which in this context means it well

might have dissuaded a reasonable worker from making or supporting a charge

of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68

(2006) (quotation marks omitted). A Title VII retaliation case is also subject to

the burden-shifting framework set forth in McDonnell Douglas. LeMaire v.

Louisiana, 480 F.3d 383, 388–89 (5th Cir. 2007).

The only adverse employment action that Roberts has identified is her

termination; the transfer of some of her job duties to Bascue is not an adverse

employment action under these circumstances, particularly in light of the fact

was ultimately terminated by the human resources department for failing to return to work,

rather than by Dickey for her performance deficiencies, we need not address whether this

alleged statement provides evidence of Dickey’s discriminatory intent.

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that Roberts acknowledges that she was overworked prior to the transfer. Cf.

Stewart, 586 F.3d at 332–33 (evaluating whether allegedly retaliatory acts were

“adverse” in light of surrounding facts and noting that “‘the significance of any

given act of retaliation will often depend upon the particular circumstances’”)

(citing and quoting White, 548 U.S. at 69, 71). Assuming for the sake of

argument that she engaged in protected activity (1) when she reported

Shumway’s assault to Maloney on April 29, 2004; (2) when she reported

Shumway’s assault to Maloney on June 21, 2004, (3) when she reported her back

injury to Dickey on June 23, 2004, and (4) when she reported to Dickey

regarding Shumway’s bet about her, she has failed to establish a causal

connection between the protected activities and her termination. The record

reveals that Roberts was terminated on January 31, 2005. Thus, she was

terminated approximately nine months after she alleges that she first

complained about Shumway and approximately eight months after she alleges

that she next complained about Shumway, complained to Dickey regarding her

back injury, and complained about Shumway’s bet. The several-month spans

between the alleged protected activities and her termination negate any

argument that a causal connection existed between the activities and the

termination. See Washburn, 504 F.3d at 511.

4. Hostile Work Environment

Roberts’s claims that she was subjected to a hostile work environment

when Dickey allegedly stated that the marketing department would be better off

without females; when Dickey hired Bascue to replace her; when Shumway

verbally attacked her twice and acted violent toward other females; when Dickey

and Shumway referred to her as “poor Traci”; when Dickey, Shumway, and Kufel

blamed her for the problems with the Texas Contract Project; and when Dickey

gave her “physically demanding workloads” and threatened to fire her are

without merit.

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To prevail on a hostile work environment claim, Roberts must establish

that: “(1) [she] belongs to a protected class; (2) was subjected to unwelcome

sexual harassment; (3) the harassment was based on [her] sex; (4) the

harassment affected a term, condition, or privilege of [her] employment; and (5)

the employer knew or should have known of the harassment and failed to take

remedial action.” Mota v. Univ. of Tex. Hous. Health Sci. Ctr., 261 F.3d 512, 523

(5th Cir. 2003). To affect a term, condition, or privilege of employment, the

harassing conduct “‘must be sufficiently severe or pervasive to alter the

conditions of [the victim’s] employment and create an abusive working

environment.’” Meritor Sav. Bank FSB v. Vinson, 477 U.S. 57, 67 (1986)

(internal quotation marks omitted).

At the very least, Roberts has failed to establish that any harassment was

based on her sex. See Mota, 261 F.3d at 523. She has established nothing more

than “simple teasing, offhand comments, and isolated incidents” that do not rise

to the level of actionable harassment. Faragher v. City of Boca Raton, 524 U.S.

775, 788 (1998) (internal quotation marks omitted).4

B. ADA Claims

Roberts has not shouldered her burden with respect to her ADA claims.

To establish a prima facie case of discrimination under the ADA, a plaintiff must

establish the following: (1) she suffers from a disability; (2) she is qualified for

the job despite the disability; (3) she was subjected to an adverse employment

action due to the disability; and (4) she was treated less favorably than non-

disabled employees. McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 279-80

(5th Cir. 2000). However, even assuming that one has a disability, to be a

qualified individual with a disability, the plaintiff must be “an individual with

a disability who, with or without reasonable accommodation, can perform the

4

The Supreme Court in Faragher appended the important caveat “unless extremely

serious” to this list of non-actionable conduct. 524 U.S. at 788. The conduct of which Roberts

complains is not, under our precedent, “extremely serious.”

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essential functions of the employment position that such individual holds or

desires.” 42 U.S.C. § 12111(8). Under the ADA, a covered employer must

provide “reasonable accommodations to the known physical or mental limitations

of an otherwise qualified individual with a disability who is an applicant or

employee, unless [the employer] can demonstrate that the accommodation would

impose an undue hardship.” 42 U.S.C. § 12112(b)(5)(A).

The record in the instant case reflects that Roberts has not established

that she is a qualified individual with a disability because she has not shown

that she can perform the essential functions of her job with or without

reasonable accommodations. On January 10, 2005, her doctor stated that she

was “unable to function at work,” and “when she can return to work is unknown

- certainly not for another 4 to 6 weeks probably.” Moreover, on January 20,

2005, Roberts conceded that she could not return to work. Roberts has produced

no evidence showing that she was able to perform the essential functions of her

job as marketing manager with or without reasonable accommodations; thus,

even if she had a disability, she has not shown that she is a qualified individual

with a disability. See, e.g., Rogers v. Int’l Marine Terminals, Inc., 87 F.3d 755,

759 (5th Cir. 1996) (noting that the ability to appear for work is an essential

element of any job and that a “reasonable accommodation” does not require an

employer to wait an indefinite period of time for the employee’s medical

condition to improve).

Roberts’s ADA retaliation claim is likewise without merit. To make a

prima facie case of retaliation under the ADA, Roberts must demonstrate that:

(1) she engaged in protected activity, (2) an adverse employment action occurred,

and (3) a causal link exists between the protected activity and the adverse

employment action. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 348

(5th Cir. 2007).

Even if Roberts has satisfied the first and second elements of her prima

facie case of ADA retaliation, her claim fails because the record establishes that

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Roberts was terminated for her failure to return to work after her leave expired.

Thus, she cannot show a causal connection between her participation in a

protected activity and her termination. Id.

C. FMLA Claims

Roberts alleged that her FMLA rights were violated because she was

denied FMLA leave after she was eligible for and requested it. The FMLA

entitles eligible employees to 12 workweeks of leave in any 12-month period for

various qualifying events, including a “serious health condition that makes the

employee unable to perform the functions” of her position. 29 U.S.C.

§ 2612(a)(1)(D). An employee is “eligible” for FMLA leave if the employee has

been employed “(i) for at least 12 months by the employer . . . and (ii) for at least

1,250 hours of service with such employer during the previous 12-month period.”

29 U.S.C. § 2611(2)(A).

The record reveals that when Roberts first took leave on July 26, 2004, she

had only been employed by Unitrin for 11 months; thus, she was not eligible for

FMLA leave. See id. When Roberts allegedly requested FMLA leave in

December 2004, she was eligible for FMLA leave, see id., but she had already

been on leave for greater than 12 weeks, or for approximately 20 weeks. Thus,

she was not entitled to additional FMLA leave at that point. Cf. Ragsdale v.

Wolverine World Wide, 535 U.S. 81, 96 (2000).

Roberts’s FMLA retaliation claim likewise fails. Retaliation claims under

the FMLA are analyzed using the McDonnell Douglas burden-shifting

framework. See Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 768 (5th

Cir. 2001). To make a prima facie case of retaliation under the FMLA, the

plaintiff must show that: “(1) she was protected under the FMLA; (2) she

suffered an adverse employment decision; and either (3a) that she was treated

less favorably than an employee who had not required leave under the FMLA;

or (3b) the adverse decision was made because she took FMLA leave.” Id.

(citation omitted). Once the plaintiff makes a prima facie showing, the burden

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shifts to the defendant “to articulate a legitimate nondiscriminatory or

nonretaliatory reason for the employment action.” Id. If the defendant makes

such a showing, the plaintiff “must show by a preponderance of the evidence

that [the defendant’s] reason is a pretext for retaliation.” Id.

Roberts’s FMLA retaliation claims are without merit because, as shown

above, at the very least, she has failed to show that she was entitled to FMLA

leave. See id. Thus, she has failed to establish a prima facie case for FMLA

retaliation. See id.

D. ERISA,5 HIPAA,6 and COBRA 7 Claims

Roberts claims that her ERISA, HIPAA, and COBRA rights were violated

because Unitrin retaliated against her by cancelling her COBRA benefits after

Unitrin “was served with” her EEOC charge.

“To establish a prima facie case of discrimination under ERISA, a plaintiff

must establish that his employer [discriminated against him] in retaliation for

exercising an ERISA right or to prevent attainment of benefits to which he

would have become entitled under an employee benefit plan.” Holtzclaw v. DSC

Commc’ns Corp., 255 F.3d 254, 260 (5th Cir. 2001). “An essential element of a

[29 U.S.C. § 1140] claim is proof of [the] defendant’s specific discriminatory

intent.” Hines v. Mass. Mut. Life Ins. Co., 43 F.3d 207, 209 (5th Cir. 1995).

Roberts cannot prevail on this claim because she has failed to establish

that defendants acted with specific discriminatory intent. When her benefits

were cancelled in June and July 2005, she was no longer employed at Unitrin,

and her benefits were promptly reinstated. Moreover, Roberts has not shown

any causal connection between defendants’ alleged receipt of her EEOC charge

5

29 U.S.C. §§ 1001 et seq.

6

Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191,

110 Stat. 1936.

7

Pub. L. No. 99-272, 100 Stat. 82.

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and the cancellation of her benefits because she has failed to show that the

person who cancelled her benefits had knowledge of her EEOC charge. See

Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001) (holding that a

plaintiff can establish a causal link by showing that “the employer’s decision . . .

was based in part on knowledge of the employee’s protected activity”) (internal

quotation marks and citation omitted).

Roberts’s HIPAA claims are without merit because HIPAA does not

provide her with a private cause of action. Acara v. Banks, 470 F.3d 569, 572

(5th Cir. 2006).8

E. Motion to Reconsider and Motion for Sanctions

A review of the record establishes that the district court did not abuse its

discretion by denying Roberts’s motion for reconsideration, which attached

copies of “newly discovered” evidence or evidence that she inadvertently failed

to attach to her opposition to defendants’ motion for summary judgment, because

she failed to demonstrate that “(1) the facts discovered are of such a nature that

they would probably change the outcome; (2) the facts alleged are actually newly

discovered and could not have been discovered earlier by proper diligence; and

(3) the facts are not merely cumulative or impeaching.” See Infusion Res., Inc.

v. Minimed, Inc., 351 F.3d 688, 696–97 (5th Cir. 2003).

Roberts’s complaint that the district court improperly sanctioned her

because she was punished for a mistake “that had no ill intent” regarding the

incorrect date stamp on one of her filings in the district court is without merit.

A district court’s sua sponte imposition of sanctions is reviewed for an

abuse of discretion. Goldin v. Bartholow, 166 F.3d 710, 722 (5th Cir. 1999).

“Generally, an abuse of discretion only occurs where no reasonable person could

8

While 42 U.S.C. § 1320d-5 has been amended since our decision in Acara, that

amendment added only authorization for state attorneys general to sue for violations of

HIPAA. See American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, § 13410,

123 Stat. 115, 271–76. Our holding in Acara that no private right of action exists under the

statute is, if anything, strengthened by this amendment.

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take the view adopted by the trial court.” Friends for Am. Free Enter. Ass’n v.

Wal-Mart Stores, Inc., 284 F.3d 575, 578 (5th Cir. 2002) (internal quotation

marks and citations omitted).

The district court sanctioned Roberts after hearing live testimony that

one of Roberts’s filings in the district court was date stamped June 13, 2008 (a

filing deadline imposed by the district court), but that that document was not

found in the court’s drop box until June 17, 2008. Roberts explained that the

date stamp did not correspond with the date that the filing was placed in the

drop box because after date stamping the document on June 13, 2008, Roberts’s

sister discovered that Roberts had not signed the pleading; her sister therefore

did not drop the pleading in the drop box until June 17, 2008, after Roberts

signed it. Based on this testimony, the district court did not abuse its discretion

in sanctioning Roberts.

F. Other Motions

Roberts has failed to present any argument in support of her claims that

the district court erred in denying her motion for a continuance of the summary

judgment hearing, her motion requesting pretrial discovery management, and

the agreed motion to continue and to modify the scheduling order; she has

therefore failed to adequately brief these arguments. Yohey v. Collins, 985 F.2d

222, 224-25 (5th Cir. 1993).

With respect to Roberts’s motion to compel discovery, she has failed to

show that the district court, which denied her discovery motion because

defendants had not been properly served with the discovery, abused its

discretion. See Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 817 (5th Cir.

2004) (“We review a district court's discovery rulings, including the denial of a

motion to compel, for abuse of discretion. We will affirm such decisions unless

they are arbitrary or clearly unreasonable.” (internal quotation marks and

footnote omitted)). Likewise, with respect to Roberts’s motion to modify the

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scheduling order, she has failed to show that good cause existed for modifying

that order; accordingly, the district court did not abuse its discretion in denying

that motion. See S & W Enters., L.L.C. v. SouthTrust Bank of Ala., 315 F.3d

533, 535-36 (5th Cir. 2003).

IV. Conclusion

Roberts’s appeal does not involve legal points that are arguable on the

merits, see Howard, 707 F.2d at 220, and her IFP motion is therefore denied.

See Baugh, 117 F.3d at 197. Because the resolution of Roberts’s challenge to the

district court’s certification order requires resolution of the merits of her appeal,

the appeal is dismissed as frivolous. See id.; see also 5 TH C IR. R. 42.2. Roberts’s

motions for appointment of counsel, for a stay of the sanctions order, for free

transcripts, and for referral to the appellate mediation program are denied.

Defendants’ motion to dismiss is denied as moot.

MOTIONS DENIED; APPEAL DISMISSED.

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