     Case: 10-10616 Document: 00511395251 Page: 1 Date Filed: 02/28/2011




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

                                                 FILED
                                                                          February 28, 2011

                                     No. 10-10616                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



O. B. BROOKS,

                                                   Plaintiff-Appellant
v.

SOUTH PLAINS ASSOCIATION OF GOVERNMENTS,

                                                   Defendant-Appellee




               Appeal from the United States District Court for the
                            Northern District of Texas
                               No. 05:09-CV-00128


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       O.B. Brooks sued his employer, South Plains Association of Governments
(“SPAG”), alleging that SPAG discriminated against him on the basis of race by
denying him the opportunity to apply for a promotion. The district court granted
SPAG summary judgment, and Brooks appeals. We AFFIRM.




       *
        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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-60616

                         FACTS AND PROCEEDINGS
      Brooks is a black male who was employed by SPAG as a “program
specialist” in its department of aging programs. In late May 2008, the program
director of SPAG’s department of aging programs, Pete Lara, was terminated.
At the meeting announcing Lara’s termination, the executive director of SPAG,
Tim Pierce, stated that the position would be posted in the local newspaper the
following Sunday.    At a meeting later that week, Pierce announced that
Elizabeth Castro, a Hispanic woman, had volunteered to act as the interim aging
program director.
      After Castro’s appointment as interim director was announced, Brooks e-
mailed his resume to Pierce, expressing an interest in the aging director
position. Pierce responded to Brooks, stating that SPAG would not post the job
for 60 days. SPAG never advertised or announced the aging director position
within SPAG or to the general public. SPAG later offered Castro the position on
a permanent basis.
      Brooks sued SPAG, alleging that SPAG discriminated against him in
violation of Title VII, 42 U.S.C. § 2000e-2(a)(1), because it promoted a less
qualified employee (Castro) to the aging director position without giving him an
equal opportunity to volunteer or apply for the position. SPAG moved for
summary judgment and the district court granted summary judgment in its
favor. Brooks appeals.
                          STANDARD OF REVIEW
      We review “a district court’s grant of summary judgment de novo, applying
the same legal standards as the district court.” Tradewinds Envtl. Restoration,
Inc. v. St. Tammany Park, LLC, 578 F.3d 255, 258 (5th Cir. 2009) (quotation
omitted). “[T]he evidence and inferences from the summary judgment record are
viewed in the light most favorable to the nonmovant.” Id. (quotation omitted).
                                DISCUSSION

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                                       No. 10-60616

       “The complainant in a Title VII [action] must carry the initial burden
under the statute of establishing a prima facie case of racial discrimination. This
may be done by showing (i) that he belongs to a racial minority; (ii) that he
applied and was qualified for a job for which the employer was seeking
applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that,
after his rejection, the position remained open and the employer continued to
seek applicants from persons of complainant’s qualifications.”                   McDonnell
Douglas Corp. v. Green, 411 U.S. 793, 802 (1973). The burden then shifts to the
employer to “articulate some legitimate, nondiscriminatory reason for the
employee’s rejection.” Id. If the employer meets its burden of production, the
complainant “must then offer sufficient evidence to create a genuine issue of
material fact either (1) that the defendant’s reason is not true, but is instead a
pretext for discrimination (pretext alternative); or (2) that the defendant’s
reason, while true, is only one of the reasons for its conduct, and another
motivating factor is the plaintiff’s protected characteristic (mixed-motive[s]
alternative).” Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004).
       We assume, arguendo, that Brooks has established a prima facie case of
racial discrimination. SPAG argues that it offered the aging program director
position to Castro because she had demonstrated that she was qualified for the
position during her temporary service.             This constitutes a legitimate, non-
discriminatory reason for hiring Castro instead of Brooks. Brooks’s claim fails
on the third step. Brooks cursorily argues that SPAG’s non-discriminatory
reason was pretextual because SPAG did not show Castro was more qualified
than Brooks.1 Brooks miscomprehends the law: he, not SPAG, bears the burden
of showing that Castro was a less qualified applicant. Celestine v. Petroleos de


       1
        Brooks did not argue a mixed-motive theory of discrimination before the district court,
therefore this argument is waived. Nasti v. CIBA Specialty Chems. Corp., 492 F.3d 589, 595
(5th Cir. 2007).

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                                  No. 10-60616

Venezuella SA, 266 F.3d 343, 356-57 (5th Cir. 2001). The bar for showing
pretext through superior qualifications is high “because differences in
qualifications are generally not probative evidence of discrimination unless those
disparities are of such weight and significance that no reasonable person, in the
exercise of impartial judgment, could have chosen the candidate selected over
the plaintiff for the job in question.” Id. at 357 (internal quotation omitted). By
failing to present any evidence of Castro’s qualifications, Brooks failed to raise
a question of material fact on his theory that SPAG’s reason for hiring Castro
was pretextual. The district court properly granted summary judgment in favor
of SPAG.
                                CONCLUSION
      For the reasons described above, the district court’s judgment is
AFFIRMED.




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