Nelson Toala v. Marriott Wh Lodging Corporate , 456 F. App'x 476 ( 2012 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 4, 2012
No. 11-50418 Lyle W. Cayce
Summary Calendar Clerk
NELSON TOALA,
Plaintiff - Appellant
v.
MARRIOTT WHITE LODGING CORPORATE,
Defendant - Appellee
Appeal from the United States District Court
for the Western District of Texas
1:10-CV-309
Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Nelson Toala, a former employee at Marriott White Lodging (“White”) in
South Austin, Texas, proceeding pro se, appeals the district court’s grant of
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 11-50418
summary judgment on his racial and national origin discrimination and age
discrimination lawsuits.
Toala alleged racial and national origin discrimination in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and age discrimination in
violation of The Age Discrimination in Employment Act, 29 U.S.C. § 621. He
claimed that he was demoted, had his hours reduced, and was not promoted from
his position as a buffet attendant at the hotel. He further contended that his
workplace was hostile. The district court granted summary judgment after it
found that Toala was unable to establish viable claims because he voluntarily
resigned his position, had never applied for a promotion, and could not allege
any specific instances of harassment.
On appeal, Toala does not state grounds on which this court should reverse
the district court’s judgment. White contends Toala’s brief fails to conform to
Rule 28 of the Federal Rules of Appellate Procedure and asks this court to
dismiss the appeal for failure to brief any issue. This court liberally construes
briefs of pro se litigants and applies less stringent standards to their briefs, but
“pro se parties must still brief the issues and reasonably comply with the
standards of Rule 28.” Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995).
We have criticized briefs and yet found them sufficient to consider issues
when they make some minimal claim of error below. Toala “fails to meet even
this minimal requirement. Aside from the implication raised by its existence,
his brief does not argue that the district court erred in any way.” Id. at 525.
“[His] appellate brief does little more than restate the relevant factual events
leading to his original complaint.” See Id. at 524. Thus, his brief does not
comply with the Federal Rules of Appellate Procedure.
Noncompliant briefs filed by pro se appellants may, however, be considered
at this court’s discretion so long as the opposing party is not prejudiced. Price
v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988). “Accordingly, we
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No. 11-50418
look to whether [Toala’s] noncompliance with procedural rules caused [White]
harm or unfair surprise.” Grant, 59 F.3d at 525. Toala’s brief explains the facts
as he sees them, but fails to identify any particular errors by the district court.
“Because [Toala] does not state whether the basis for his challenge to the district
court’s [grant of summary judgment] is legal, factual, or both, he forced [White]
to speculate as to the relevant issues when [it prepared its] own brief.” Id. at
525. Toala’s failure to articulate the basis of his challenge prejudiced White.
Toala’s brief does not comply with the Federal Rules of Appellate
Procedure and does not sufficiently identify the issues raised on appeal to
prevent the prejudice of White. Therefore, we DISMISS Toala’s appeal for want
of prosecution.
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