     Case: 11-10987     Document: 00511970215         Page: 1     Date Filed: 08/27/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          August 27, 2012
                                    No. 11-10987
                                USDC No. 3:10-CV-2113                      Lyle W. Cayce
                                                                                Clerk

OLUMUYIWA A. ADELEKE, also known as Olumuyiwa Ayodeji Adeleke,

                                                  Plaintiff-Appellant

v.

DALLAS AREA RAPID TRANSIT,

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas


Before SMITH, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
        Olumuyiwa A. Adeleke is appealing the district court’s denial of his motion
to proceed in forma pauperis (IFP) on appeal following the entry of an order
granting Dallas Area Rapid Transit (DART) summary judgment and dismissing
his complaint under Title VII of the Civil Rights Act (Title VII), 42 U.S.C.
§ 2000e, et seq., and the Americans with Disabilities Act (ADA), 42 U.S.C.
§ 12101, et seq. He is challenging the district court’s certification that he should




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-10987      Document: 00511970215         Page: 2     Date Filed: 08/27/2012

                                      No. 11-10987

not be granted IFP status because his appeal is not taken in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3).
       We review de novo a district court’s rulings on a motion for summary
judgment. Threadgill v. Prudential Sec. Grp., Inc., 145 F.3d 286, 292 (5th Cir.
1998). Summary judgment is proper if the record discloses “that there is no
genuine dispute as to any material fact and the movant is entitled to a judgment
as a matter of law.” FED. R. CIV. P. 56(a). All facts and inferences are construed
in the light most favorable to the nonmoving party. Dillon v. Rogers, 596 F.3d
260, 266 (5th Cir. 2010).
       Adeleke sought to demonstrate that DART refused to hire him for various
positions on account of his race (i.e., black), his national origin (which he
characterized as his dislike of Mexican nationals and his association with
Caucasians),1 and his disability (i.e., schizophrenia).            We review claims of
employment discrimination under Title VII and the ADA that rely on
circumstantial evidence through the framework set out in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973). Under that framework, (1) the plaintiff
must first establish a prima facie case of discrimination; (2) if such a showing is
made, the burden shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for the challenged employment action; and (3) if the
defendant satisfies that requirement, then the burden shifts back to the plaintiff
to establish that the defendant’s reason either is a pretext for discrimination or
is only one of the reasons for its conduct and another motivating factor is the



       1
         Although we have recognized certain association claims in the past, we have found no
case in which dislike of a racial or ethnic group qualified for purposes of an associational
claim. Cf. Hernandez v. Yellow Transp., Inc. 670 F.3d 644, 654-55 (5th Cir. 2012)(addressing
an associational claim involving being friendly with persons of another race). As far as his
associational claim based upon his association with Caucasians, he points to no evidence
whatsoever that the company knew of or had any response to his alleged association with
Caucasians and, therefore, we conclude that the “national original associational claim” is
wholly frivolous. See id. Thus, we discuss further only his claims based upon racial and
disability discrimination, as well as his retaliation claim.

                                             2
   Case: 11-10987       Document: 00511970215   Page: 3    Date Filed: 08/27/2012

                                   No. 11-10987

plaintiff’s protected characteristic. McCoy v. City of Shreveport, 492 F.3d 551,
556 (5th Cir. 2007).
      In this case, DART proffered summary judgment evidence that some of the
disputed positions were filled by individuals within Adeleke’s protected class,
which precludes Adeleke from making a prima facie claim of discrimination, see
McCoy, 492 F.3d at 556, and articulated a legitimate, non-discriminatory reason
for not hiring Adeleke for the remaining positions, i.e., the other candidates were
more qualified. Adelke’s subjective opinions regarding his relative qualification
for the positions are insufficient to establish that he clearly was better qualified
and that DART’s reason for not hiring him is a pretext for discrimination. See
Jamerson v. Board of Trustees, 662 F.2d 320, 324 (5th Cir. 1981)(affirming
dismissal of a Title VII claim where evidence was based solely on plaintiff’s
subjective feelings).
      Regarding Adeleke’s claim of disability discrimination, DART also offered
summary judgment evidence that none of the decisionmakers knew or believed
that Adeleke suffered from a disability, and Adeleke failed to present competent
summary judgment evidence that DART knew that he was limited by mental
illness or regarded him as impaired. See Taylor v. Principal Fin. Grp., Inc., 93
F.3d 155, 163 (5th Cir. 1996) Thus, Adeleke did not satisfy his burden of
demonstrating that there was a genuine dispute as to a material fact regarding
whether DART discriminated against him in its hiring decisions. See McCoy,
492 F.3d at 556.
      Adeleke also sought to demonstrate that DART denied him employment
in retaliation for filing a charge of discrimination and a consequent lawsuit
against Bank of America, his former employer, which is headquartered near
DART. To establish a prima facie case of retaliation, a plaintiff must show that:
(1) he participated in an activity protected by Title VII; (2) his employer took an
adverse employment action against him; and (3) a causal connection exists



                                         3
   Case: 11-10987     Document: 00511970215   Page: 4   Date Filed: 08/27/2012

                                 No. 11-10987

between the protected activity and the adverse employment action. See McCoy,
492 F.3d at 556-57.
      Adeleke failed to proffer any competent summary judgment evidence that
established a causal connection between his complaint against Bank of America
and an adverse employment action taken by DART. The multi-year gap between
Adelke’s filing of his complaint and the purported adverse employment actions
taken by DART is too temporally remote to show a causal link. See Washburn v.
Harvey, 504 F.3d 505, 511 (5th Cir. 2007). Adeleke also failed to present any
evidence that the geographic proximity of the companies shows that DART’s
hiring decisions were connected to his protected activity while employed at Bank
of America; Adeleke set forth no evidence that DART knew of his complaint at
Bank of America and did not hire him because of that complaint. See Manning
v. Chevron Chem. Co., LLC, 332 F.3d 874, 884 (5th Cir. 2003).
      Because there was no genuine dispute as to any material fact and DART
was entitled to judgment as a matter of law, the district court’s determination
that Adeleke’s appeal was not taken in good faith was correct. See Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983).
      Because Adeleke has failed to show that he has a nonfrivolous issue for
appeal, we uphold the district court’s order certifying that the appeal is not
taken in good faith. Adeleke’s request to proceed IFP on appeal is DENIED, and
his appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH
CIR. R. 42.2.




                                       4
