                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS          April 28, 2006
                        FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                       ))))))))))))))))))))))))))                Clerk

                             No. 05-20010

                       ))))))))))))))))))))))))))

SAFWAT H. SHAKIR,

                 Plaintiff-Appellant,



  v.

PRAIRIE VIEW A&M UNIVERSITY; TEXAS A&M UNIVERSITY

SYSTEM; STATE OF TEXAS,



                 Defendants-Appellees.



            Appeal from the United States District Court
                 for the Southern District of Texas
                         No. 4:4:03-cv-02445



Before KING, BARKSDALE and PRADO, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:*

       After being turned down for promotion, Appellant Safwat H.

Shakir sued Appellees Prairie View A&M University (“Prairie View”



       *
       Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.

                                   1
or “the university”), the Texas A&M University System and the

State of Texas (collectively, “appellees”), alleging race and

national origin discrimination in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e.    The district court

granted appellees’ motion for summary judgment, and Shakir

appeals.   For the reasons below, we AFFIRM.

               I. Factual and Procedural Background

     Shakir, a white Egyptian national, has worked as an

instructor in the Computer Science department at Prairie View

since 1989.   He holds a Ph.D. in Soil Ecology-Terrestrial

Community Ecology, is the author of multiple articles and one

book on agricultural subjects, has fifteen years of lab

experience, and has conducted field research for the Egyptian

government.

     In February 2001, the Cooperative Agriculture Research

Center (“CARC”) at Prairie View created a new full-time,

permanent research position, “Research Scientist (Agronomist).”

It posted a position announcement, which called for a “Ph.D. in

Agronomy, Soil Science, Plant Science, or closely related

discipline [and a] proven track record of conducting greenhouse

and field research, and in managing resources.”    CARC director

Dr. Albert Parks testified that Prairie View sought a candidate

who had performed field research.    The announcement indicated

that the review of applicants would continue until the position

was filled.

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     Parks established a selection committee to review

candidates.    Each member scored the candidates according to four

criteria: research, education, experience and knowledge, skills

and ability.   The scores were weighted and aggregated to into a

point value, and candidates ranked accordingly.

     Shakir applied for the agronomist position, as did Dr.

Nathaniel Keys.   Keys, who is black, has a Ph.D. in

Horticulture/Entomology.   He was employed by Prairie View as

Program Leader in Agriculture and Natural Resources and the

Project Director of the Small Farmer Outreach Training and

Technical Assistance Project.   Keys had experience working with

farmers, participating in projects funded by outside grants and,

for approximately five years, conducting lab research.

     On July 24, 2001, Dr. Richard Griffin, the selection

committee chair, sent a memorandum to Parks ranking the seven top

candidates on a point scale.    Keys ranked fourth, and Shakir was

not on the list (he ranked nineteenth).   Parks testified that the

top three candidates either could not be reached or were no

longer interested.   Prairie View awarded the position to Keys.

On November 19, 2001, the Prairie View Human Resources Department

notified Shakir that he had not been awarded the position.

Through February 2002, Shakir contested the decision through

university channels.   Several university inquiries determined

that the committee selected the superior candidate.

     On July 9, 2003, Shakir filed the present action; and, on

                                  3
June 10, 2004, Prairie View moved for summary judgment.    The

district court granted the motion, determining that Shakir failed

to establish that Prairie View’s proffered justification for

failing to award the position to Shakir, that Keys was better

qualified, was pretext.    Shakir appeals.

                            II. Discussion

                         A. Standard of Review

     We review a district court’s grant of summary judgment de

novo.    Pegram v. Honeywell, Inc., 361 F.3d 272, 278 (5th Cir.

2004).    Summary judgment is appropriate if “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.”    FED. R. CIV. P.

56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986).    An issue as to a material fact is “genuine” if the

evidence would permit a reasonable jury to return a verdict for

the non-moving party.     Roberson v. Alltel Info. Servs., 373 F.3d

647, 651 (5th Cir. 2004)(citing Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986)).    The evidence must be construed in the

light most favorable to the non-moving party and doubts resolved

in their favor.    Id.

                          B. Summary Judgment

     McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and


                                  4
its progeny establish a burden-shifting analysis to be applied to

discrimination claims.   Once a plaintiff makes out a prima facie

case of discrimination under Title VII, he or she is entitled to

a presumption of discrimination, which the defendant may rebut by

presenting a legitimate nondiscriminatory reason for its actions.

Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 404 (5th

Cir. 1999).   If the defendant succeeds in rebutting the

presumption, the plaintiff must establish that the defendant’s

proffered reason for its action is pretextual.   Id.   In “mixed-

motive” cases, discussed infra, this court applies a modified

version of the framework.

     The district court determined that Shakir failed to

establish that Prairie View’s proffered legitimate

nondiscriminatory reason for hiring Keys was pretextual.

                     1. Skewed Hiring Process

     Shakir contends that an allegedly skewed hiring process

establishes that Prairie View’s justification for hiring Keys is

a pretext for discrimination.   He claims the process lacked

credibility, rules were applied disparately in favor of Keys and

the process was manipulated to favor Keys.   Proof that an

employer’s justification is pretextual is enough to support

survival of summary judgment on a discrimination claim.      Reeves

v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000).

However, in instances such as when “the plaintiff create[s] only


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a weak issue of fact as to whether the employer’s reason was

untrue and there [i]s abundant and uncontroverted independent

evidence that no discrimination ha[s] occurred,” no rational

factfinder can conclude the action is discriminatory.    Id.

     Shakir first claims that the selection committee’s alleged

violation of its own rules render its justification unworthy of

credence.   See Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir.

2003)(stating that where employer’s proffered reason is unworthy

of credence, no further evidence of animus is required).    The

committee choice of Keys over the second and third-ranked

candidates, which appellees explain as the result of

unavailability and lack of interest, does not make Prairie View’s

claim that Keys (#4) was better qualified than Shakir (#19)

unworthy of credence.    Nor do the alleged procedural anomalies,

which are little more than Shakir’s disagreements with the

committee’s scoring or his observation that the committee members

made immaterial addition errors in scoring.

     Second, Shakir claims the hiring rules were disparately

applied to favor Keys.   His contention that a deadline was

violated is based on testimony that the hiring process was closed

and then reopened.   Nothing indicates the presence of a deadline,

and the position announcement indicated the search process would

continue until the position was filled.   Shakir points to the

racial composition of the committee as a violation of university

policy calling for selection committees to be “appropriately

                                  6
diverse.”   The district court found that this policy did not

operate as a rule, and Shakir does not explain how the all-black

committee operated in favor of Keys over Shakir in the context of

a list of 26 candidates, the race of whom is unclear.

     Shakir’s third complaint about the hiring process is that it

was manipulated to favor Keys.    He claims the position

announcement departed from an earlier position description form

in order to emphasize field experience over research.      Nothing

save Shakir’s bald assertions substantiates that any change was

made in what the position required.    In Price v. Federal Express

Corp., a black Title VII plaintiff fit the actual letter of the

job description better than a white candidate.     283 F.3d 715 (5th

Cir. 2002).   Because the white candidate chosen instead of the

plaintiff had relevant skills and experience the employer found

useful, we upheld summary judgment.    Id. at 718-22.   Shakir’s

case is no better.

                     2. Clearly Better Qualified

     Shakir also claims that summary judgment in appellees’ favor

was inappropriate because he was clearly better qualified than

Keys for the position of agronomist.    A plaintiff may rebut a

defendant’s promoted employee’s superior qualification

justification for the failure to promote as pretext by

establishing that he, the plaintiff, was “clearly better

qualified” for the position.     Manning v. Chevron Chem. Co., 332

F.3d 874, 882 (5th Cir. 2003); Deines v. Texas Dept. of Prot. &

                                  7
Regulatory Servs., 164 F.3d 277, 279-80 (5th Cir. 1999).

However, “unless disparities in curricula vitae are so apparent

as virtually to jump off the page and slap us in the face, we

judges should be reluctant to substitute our views for those of

individuals charged with the evaluation duty by virtue of their

own years of experience and expertise in the field in question.”

Odom v. Frank, 3 F.3d 839, 847 (5th Cir. 1993).

     Shakir’s superiority is neither so acrobatic nor so

pugnacious.   He claims to have had more research and publishing

experience than Keys, but the qualifications for the agronomist

position were not so narrow.1   Keys’ record amply demonstrates his

participation in a wide variety of agronomic projects, and both

men had doctoral degrees in related fields and procured outside

funding for their work.   Remarks by Prairie View officials that

Shakir was qualified do not resuscitate his argument. See e.g.,

Deines, 164 F.3d at 279 (upholding summary judgment for defendant

where person charged with hiring concluded plaintiff met minimum

qualifications).   His allegation of inaccuracies in Keys’

curriculum vitae is simply unsupported.   Taken together, Shakir’s



     1
        The position announcement reads: “[t]he ideal candidate
will have experience in soils and natural resources management,
including field crops, forages, irrigation systems, and land use
management, a proven track record of productive outputs
(publications, extramural funding, etc.), strong oral and written
communications skills, a demonstrated affinity for strategic
planning, resource management, and evidence of ability to be a
team player.”

                                 8
arguments regarding superior qualifications fail to hurdle the

high bar our precedent sets for such a claim.

                     C. Mixed-Motive Analysis

     Shakir claims that the district court improperly failed to

apply the mixed-motive analysis for Title VII claims propounded

in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).2     A plaintiff

may plead the mixed-motive alternative using either direct or

circumstantial evidence of animus.   Keelan v. Majesco Software,

Inc., 407 F.3d 332, 340 (5th Cir. 2005).

     The evidence Shakir presents in his pleadings is neither,

and does not raise a material issue of fact as to whether Prairie

View based its decision not to promote on his race or national

origin.   His only substantiated allegations–that the

decisionmakers were all black and that Griffin may have been the

only one to evaluate Keys3–are categorically unlike the

discriminatory comments and policies that have led us to conclude

the presence of a material issue of fact and deny summary

judgment in past cases.   See, e.g., Machinchick v. PB Power,


     2
      The mixed-motive theory “comes into play where direct
evidence of discrimination is presented, but the employer asserts
that the same adverse employment decision would have been made
regardless of discrimination.” Rachid v. Jack in the Box, Inc.,
376 F.3d 305, 309 (5th Cir. 2004).
     3
      The record is not clear as to whether all the committee
members evaluated Keys, because Griffin’s scoring sheet was the
only one in Keys’ file. Shakir infers that only Griffin
evaluated Keys, and appellees reply that Griffin consulted the
other members.

                                 9
Inc., 398 F.3d 345, 353-54 (5th Cir. 2005)(evidence of

management’s plan to hire a younger workforce, age stereotyping

in the form of pejorative comments made about plaintiff’s

adaptability, retention of a younger worker where plaintiff fired

and supervisor’s question to plaintiff whether he planned to

retire); Rachid, 376 F.3d at 305 (numerous ageist comments by the

supervisor who terminated plaintiff); Bienkowski v. American

Airlines, Inc., 851 F.2d 1503, 1506-07 (5th Cir. 1998) (managers

commented that worker unable to adapt and should look “sharp” in

order to apply for other job).

     Shakir goes no further than imputing a large amount of

general unfairness to Prairie View.   We have cautioned that,

while anti-discrimination law works to safeguard the integrity of

the employment process with respect to rooting out animus, it is

not a palliative for all employment ills.    “Whether the

employer’s decision was the correct one, or the fair one, or the

best one is not a question within the jury’s province to decide.”

Deines, 164 F.3d at 281.   These are the questions Shakir wishes

to put before a jury, and there they cannot go.

                           III. Conclusion

     For the reasons above, the decision of the district court is

AFFIRMED.




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