     Case: 16-51092      Document: 00513905680         Page: 1    Date Filed: 03/10/2017




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

                                    No. 16-51092                                     FILED
                                  Summary Calendar                             March 10, 2017
                                                                                Lyle W. Cayce
                                                                                     Clerk
DAVID W. STANDLEY,

              Plaintiff - Appellant

v.

MICHAEL S. ROGERS, United States Director of National Security Agency,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:14-CV-977


Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
       David W. Standley, a former employee of the National Security Agency
(“NSA”), brought claims under Title VII for race-based discrimination,
retaliation, and hostile work environment against Michael Rogers, Director of
the NSA. The district court granted summary judgment to Rogers and against
Standley on all claims. Standley appeals the district court’s judgment as to his



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-51092
race-based discrimination and retaliation claims. 1 We AFFIRM the judgment
of the district court.
       We review de novo a district court’s decision to grant a motion for
summary judgment, “applying the same standard as the district court.” Fennell
v. Marion Indep. Sch. Dist., 804 F.3d 398, 407 (5th Cir. 2015). Summary
judgment is proper “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The evidence must be viewed “in the light most favorable
to the nonmoving party.” Cuadra v. Hous. Indep. Sch. Dist., 626 F.3d 808, 812
(5th Cir. 2010).
       In the absence of direct evidence of discrimination or retaliation, Title
VII claims are analyzed under the three-step McDonnell Douglas burden-
shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–
04 (1973); Wheat v. Fla. Par. Juvenile Justice Comm’n, 811 F.3d 702, 705–06
(5th Cir. 2016). The plaintiff must first show a prima facie case of race-based
discrimination or retaliation. McDonnell Douglas, 411 U.S. at 802. If the
plaintiff establishes a prima facie case of race-based discrimination or
retaliation, the burden of production then shifts to the employer to state a
legitimate, nondiscriminatory or non-retaliatory reason for the employment
action at issue. See id.; Royal, 736 F.3d at 400. If the employer meets its
burden, the burden then shifts back to the plaintiff to offer evidence that the
employer’s stated reason was only pretext for discrimination or retaliation. See
Rogers v. Pearland Indep. Sch. Dist., 827 F.3d 403, 408 (5th Cir. 2016) (citing
McDonnell Douglas, 411 U.S. at 804); Royal, 736 F.3d at 400.




       1Because Standley failed to brief any argument regarding the district court’s grant of
summary judgment as to his hostile work environment claim, he waived his appeal as to that
claim. See Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013).
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                                       No. 16-51092
       A plaintiff establishes a prima facie case of race-based discrimination if
he demonstrates that he “(1) is a member of a protected class; (2) was qualified
for the position; (3) was subject to an adverse employment action; and (4) was
replaced by someone outside of the protected class, or, in the case of disparate
treatment, shows that other similarly situated employees were treated more
favorably.” Bryan v. McKinsey & Co., 375 F.3d 358, 360 (5th Cir. 2004). The
district court held that Standley failed to establish a prima facie case of race-
based discrimination because he did not present evidence of the fourth
element—that a similarly-situated employee was treated more favorably.
Standley concedes that he did not present evidence of a similarly-situated
employee under this circuit’s standard. He instead argues that this court
“should modify its current position” regarding the similarly-situated standard.
This argument is foreclosed by Fifth Circuit precedent. 2 The district court
correctly granted summary judgment to Rogers on Standley’s claim for race-
based discrimination.
       A plaintiff establishes a prima facie case of retaliation if he
demonstrates: “(1) []he engaged in protected activity; (2) the employer took a
materially adverse action again h[im]; and (3) a causal link exists between h[is]
protected activity and the adverse action.” Wheat, 811 F.3d at 705. The district
court held that Standley failed to establish a prima facie case of retaliation
because he did not present a genuine issue of material fact as to the third
element—that there was a causal nexus between his protected activity and the
NSA’s adverse employment actions. “[T]o satisfy the ‘causal link’ requirement
of a Title VII retaliation claim, the employee must provide substantial evidence



       2 “It is a well-settled Fifth Circuit rule of orderliness that one panel of our court may
not overturn another panel’s decision, absent an intervening change in the law. . . .” Jacobs
v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008). Standley does not argue
that there was an intervening change in the law.
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that ‘but for’ exercising protected rights, []he would not have been discharged.”
Id. (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013)).
The district court properly determined that Standley’s subjective beliefs and
speculation about the reasons for the NSA’s adverse employment actions did
not create a genuine issue of material fact as to but-for causation. The district
court correctly granted summary judgment to Rogers on Standley’s claim for
retaliation.
      We AFFIRM the judgment of the district court.




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