     Case: 16-20135      Document: 00513808634         Page: 1    Date Filed: 12/21/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                      No. 16-20135                                FILED
                                                                          December 21, 2016

WILLIAM B. HERNANDEZ,                                                        Lyle W. Cayce
                                                                                  Clerk
              Plaintiff - Appellant

v.

METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:14-CV-2763


Before ELROD, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:*
       William Hernandez, a police officer with the Metropolitan Transit
Authority of Harris County (“METRO”), appeals from a summary judgment
that rejected his Title VII discrimination and retaliation claims against his
employer. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-20135
                 FACTUAL AND PROCEDURAL BACKGROUND
       Officer William Hernandez, a Hispanic-American, has served as a police
officer for METRO for the past twenty years.                 In 2009 and 2010, Officer
Hernandez applied and was passed over for promotion to the ranks of Sergeant
and Lieutenant. In February 2011, Officer Hernandez filed a lawsuit under
Title VII alleging METRO had discriminated against him by failing to promote
him on the basis of his age, race, and national origin. On January 22, 2013, a
federal jury found METRO liable for retaliation due to the department’s
elimination of a position for which Officer Hernandez applied and awarded him
compensatory and punitive damages.
       While his 2011 lawsuit against METRO was pending, Officer Hernandez
sought promotions to the rank of Sergeant (April 2012), Lieutenant (April
2012), and Captain (February 2012), which are the positions at the center of
this appeal. 1     Since at least 2011, each advancement within METRO’s
hierarchy requires a candidate to have progressive experience and a minimum
period of supervisory experience.
       METRO used two contractors to administer the promotion process.
First, METRO requested the Bill Blackwood Law Enforcement Management
Institute of Texas (“LEMIT”) provide a positional analysis of the relevant
duties and responsibilities for the ranks of Sergeant and Lieutenant.
Thereafter, LEMIT produced a job description and identified behavioral
competencies commensurate with the duties and responsibilities of each
position. Second, METRO tasked VME Testing Training and Consulting to
conduct the testing and provide METRO’s Chief, Victor Rodriguez, with a
scoring matrix of all viable candidates.


       1  Officer Hernandez failed to exhaust his administrative remedies with the EEOC for
all of his non-promotion claims from 2009 through 2011, so those claims are barred. See 42
U.S.C. § 2000e–5(e)(1); Price v. Choctaw Glove & Safety Co., 459 F.3d 595, 598 (5th Cir. 2006).
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      The first stage of METRO’s promotional testing process consisted of a
written examination, weighted 40%. The second stage of the process, which
provided the remaining 60% of the evaluation, was called the Assessment
Center. It consisted of another written exercise and two job-skill simulations.
Candidates submitted all their completed work products for the Assessment-
Center portion under a randomly drawn candidate number. Each stage of
testing required candidates to score a minimum of 70 points to qualify for
promotion. On the written test, Officer Hernandez scored a 94. For the three
components of the Assessment Center, Officer Hernandez received a
consolidated score of 61.13. Therefore, Officer Hernandez was not included in
the final rankings for possible promotion.
      Upon completion of the testing process, VME provided the overall scores
and rankings to Chief Rodriguez. Chief Rodriguez then promoted the highest
ranked individuals: (1) seven to the rank of Sergeant; (2) six to the rank of
Lieutenant; and (3) two to the rank of Captain.       At some point after the
promotion lists were released, Officer Hernandez sent Chief Rodriguez a letter
alleging mathematical errors in his calculated score for one of the Assessment
Center practical exercises. Although METRO never formally adjusted Officer
Hernandez’s final Assessment-Center score to reflect these errors, there is no
dispute that a correction would have given a score of only 67.41, leaving Officer
Hernandez still below the 70-point threshold.
      Officer Hernandez then brought this suit against METRO. He alleged,
among other things, that METRO denied him promotional opportunities based
upon his race and that the department retaliated against him for his 2011
lawsuit. METRO moved for summary judgment, arguing Officer Hernandez
did not have an actionable claim for discrimination or retaliation under Title
VII. At a motion hearing on January 28, 2016, the district court granted
METRO’s motion in full.
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                                 No. 16-20135
      The district court first determined that Officer Hernandez had not
exhausted his administrative remedies regarding his non-promotion to
Captain in February 2012. Based on the undisputed record evidence, the court
also held Officer Hernandez failed to establish his prima facie case for his non-
promotion to Lieutenant and Captain because he was unqualified for both
positions.   The district court also held that Officer Hernandez failed to
establish an additional element of his prima facie case because individuals
within his protected class were promoted.
      Additionally, the district court determined that METRO had a
legitimate, nondiscriminatory reason for not promoting Officer Hernandez to
Sergeant because his overall ranking (twelfth) fell outside that of the top seven
candidates. Although the district court found the presence of a causal link, the
court determined it was insufficient to sustain Officer Hernandez’s retaliation
claim when viewed in context. This appeal timely followed.


                                 DISCUSSION
      We review a “district court’s grant of summary judgment de novo,
applying the same standards as the district court.” DePree v. Saunders, 588
F.3d 282, 286 (5th Cir. 2009) (citation omitted).         Summary judgment is
appropriate when the movant shows there are no genuine issues of material
fact and “the movant is entitled to judgment as a matter of law.” FED. R. CIV.
P. 56(a). A genuine dispute of material fact exists when the “evidence is
sufficient for a reasonable jury to return a verdict for the non-moving party.”
Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014).
      All evidence and factual inferences are viewed “in the light most
favorable to the [nonmovant] and all reasonable doubts about the facts are
resolved in favor of the [nonmovant].” Bryan v. McKinsey & Co., 375 F.3d 358,
360 (5th Cir. 2004) (citation omitted).      Though we draw all reasonable
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inferences in favor of the nonmovant, “a party cannot defeat summary
judgment with conclusory allegations, unsubstantiated assertions, or ‘only a
scintilla of evidence.’” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337,
343 (5th Cir. 2007) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc)). Instead, “[t]he party opposing summary judgment is
required to identify specific evidence in the record and to articulate the precise
manner in which that evidence supports his or her claim.” Ragas v. Tenn. Gas
Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
      “We may affirm summary judgment on any legal ground raised below,
even if it was not the basis for the district court’s decision.” Performance
Autoplex II Ltd. v. Mid-Continent Cas. Co., 322 F.3d 847, 853 (5th Cir. 2003)
(citation omitted).


I.    Title VII discrimination claim
      We first examine Officer Hernandez’s contention that the district court
erred in granting summary judgment on his Title VII discrimination claim.
      A Title VII discrimination claim based on circumstantial evidence is
analyzed using the burden-shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). See McCoy v. City of
Shreveport, 492 F.3d 551, 556 (5th Cir. 2007). To survive summary judgment,
a plaintiff must first present a prima facie case of discrimination. Thomas v.
Johnson, 788 F.3d 177, 179 (5th Cir. 2015). Once a plaintiff establishes a
prima facie case, a presumption of discrimination is established. Id. A burden
of production then is placed on the employer “to articulate some legitimate,
nondiscriminatory reason” for the adverse employment action. Tex. Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) (quotation marks omitted).
If the employer meets this burden, the presumption of discrimination


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                                     No. 16-20135
disappears and the burden shifts back to the plaintiff to establish that the
employer’s proffered reason is pretextual. Id.
       At the outset, Officer Hernandez must establish his prima facie case of
discrimination by demonstrating that:
       (1) he is a member of a protected class, (2) he was qualified for the
       position at issue, (3) he was the subject of an adverse employment
       action, and (4) he was treated less favorably because of his
       membership in that protected class than were other similarly
       situated employees who were not members of the protected class,
       under nearly identical circumstances.

Paske v. Fitzgerald, 785 F.3d 977, 985 (5th Cir. 2015) (citation omitted).
       The first and third elements are not in dispute: Officer Hernandez is
Hispanic-American, and he was passed over for promotion. Officer Hernandez
must still show that he was qualified for the promotions 2 he sought (the second
element) and treated less favorably than similarly situated employees who
were not members of his protected group (the fourth element).
      We first consider Officer Hernandez’s non-promotion to Lieutenant. The
undisputed record evidence supports the district court’s conclusion that he was
not qualified for the position because he lacked the requisite supervisory
experience at the rank of Sergeant within the two years immediately preceding
his application for promotion. Notably, Officer Hernandez concedes that he
failed to meet the objective criteria METRO set forth to judge its employees’
qualifications for promotion. 3 See Burdine, 450 U.S. at 259 (“[T]he employer



      2  As an initial matter, Officer Hernandez does not dispute that he failed to exhaust
his administrative remedies regarding the promotion to Captain. Accordingly, he has
abandoned this issue on appeal. Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (“An
appellant abandons all issues not raised and argued in its initial brief on appeal.”).

      3  Instead, Officer Hernandez argues METRO’s revamping of the promotional
requirements impermissibly favored African-American candidates over Hispanic candidates.
This argument is belied by the record as the supervisory experience requirement was
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                                       No. 16-20135
has discretion to choose among equally qualified candidates, provided the
decision is not based upon unlawful criteria.”).
       Finally, we consider Officer Hernandez’s being denied a promotion to
Sergeant. On this challenge, we do not decide if Officer Hernandez established
his prima facie case. The more certain conclusion is that METRO had a
legitimate, nondiscriminatory reason for not promoting him. We explain.
       We start with the question of Officer Hernandez’s score calculation for
the Assessment Center portion of the testing. It is conceded that his initial
score was erroneous, but he still did not meet the 70-point threshold for
promotion eligibility upon a scoring revision nor was he one of the top seven
candidates for promotion to Sergeant. Further, the record does not support
Officer Hernandez’s assertion that he deserved the addition of three
educational points to his revised 67.41 score, which would have pushed him
across the 70-point threshold. Instead, those additional points are relevant if
an applicant has reached the minimum score of 70. 4
       Beyond the question of his score, Officer Hernandez had the burden of
producing sufficient evidence from which a reasonable trier of fact could
conclude that METRO’s explanation for not promoting him was pretextual. An
employee’s showing that he was “clearly better qualified is enough to prove
that [his] employer’s proffered reasons are pretextual.” Price v. Fed. Express
Corp., 283 F.3d 715, 723 (5th Cir. 2002) (citations omitted). In contrast to the
minimal burden that a plaintiff bears when establishing his prima facie case,



published and in effect approximately seven months before Officer Hernandez applied for
promotion to Lieutenant. The district court did not err on this issue.

       4  The VME Testing Training and Consulting Booklet clearly sets forth a rule that
“[c]andidates who successfully complete each phase of the promotional process with a score
of 70 or higher will be awarded additional points to the final score for the highest education
level attained.” Because Officer Hernandez did not meet the minimum threshold of 70, he
did not qualify for the additional education points.
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                                     No. 16-20135
a plaintiff must produce “substantial evidence of pretext.”                 Auguster v.
Vermilion Par. Sch. Bd., 249 F.3d 400, 402–03 (5th Cir. 2001). “Our job as a
reviewing court conducting a pretext analysis is not to engage in second-
guessing of an employer’s business decisions.” LeMaire v. La. Dep’t. of Transp.
& Dev., 480 F.3d 383, 391 (5th Cir. 2007).
      Officer Hernandez claims that METRO’s actions in this case are
reflective of the type of inconsistencies that we have held to be pretextual in
similar circumstances. Specifically, he asserts that METRO’s response when
African-American police officers complained of the testing process is
inconsistent when compared to its response to Officer Hernandez’s complaint
to Chief Rodriguez about his test scores. Yet, Officer Hernandez has not
adduced any evidence that METRO’s varied responses were the result of the
agency’s failure to follow its own internal policies. In fact, METRO’s decision
to overhaul its promotion system based on systematic concerns versus an
individual’s complaints about scoring errors is not the sort of “unexplained
inconsistency” from which a jury could infer pretext. 5                  Burrell v. Dr.
Pepper/Seven Up Bottling Grp., 482 F.3d 408, 415 (5th Cir. 2007).
      Officer Hernandez has also failed to offer evidence that would permit a
reasonable jury to conclude that METRO’s stated reasons are “false or
unworthy of credence, and thus                  pretextual.”     Burton v. Freescale
Semiconductor, Inc., 798 F.3d 222, 233 (5th Cir. 2015) (quotation marks and
citation omitted). Other than speculation and his own subjective belief that
METRO’s decision was discriminatory, Officer Hernandez does not point to any
summary judgment evidence, let alone “substantial evidence,” that race had



      5    Courts regularly “decline[] to serve as a super-personnel department that
reexamines an entity’s business decisions.” Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir.
2006) (citation and quotation marks omitted); see also Hudson v. Chicago Transit Auth., 375
F.3d 552, 561 (7th Cir. 2004). We agree with our sister circuits on this approach.
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                                        No. 16-20135
anything to do with him being passed over for promotion to Sergeant. See
Auguster, 249 F.3d at 403.
         In sum, because Officer Hernandez has not put forth evidence that
METRO’s legitimate, nondiscriminatory reasons for not promoting him were
pretextual, the district court properly granted summary judgment in METRO’s
favor.


II.      Title VII retaliation claim
         Officer Hernandez also appeals the district court’s dismissal of his
retaliation claim. 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 between the protected activity and the adverse employment
action.” McCoy, 492 F.3d at 556–57. “Title VII retaliation claims must be
proved according to traditional principles of but-for causation, not the lessened
[motivating factor] causation test[.]” 6 Univ. of Tex. Sw. Med. Ctr. v. Nassar,
133 S. Ct. 2517, 2533 (2013). This heightened standard “requires proof that
the unlawful retaliation would not have occurred in the absence of the alleged
wrongful action or actions of the employer.” Id. We also employ the McDonnell
Douglas burden-shifting framework to analyze Title VII retaliation claims.
Long v. Eastfield Coll., 88 F.3d 300, 304–05 (5th Cir. 1996).
         Because our review of the district court’s decision is de novo, we need not
decide if the lower court was correct in its determination that Officer



         6We recently noted the existence of a circuit split “regarding whether the Supreme
Court’s holding in [Nassar] requires a plaintiff to show but-for causation as part of [his] prima
facie case of retaliation, or only at the third step of the McDonnell Douglas framework. . . .”
Smith v. Bd. of Supervisors of S. Univ., No. 16-30097, 2016 WL 4254380, at *2 n.4 (5th Cir.
Aug. 11, 2016). As in Smith, we need not resolve this issue because Officer Hernandez fails
to meet his burden even under the most favorable standard.
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Hernandez failed to establish his prima facie case of retaliation. Instead, we
begin with an analysis of whether METRO met its burden to introduce
evidence of a legitimate, nonretaliatory reason for Officer Hernandez’s non-
promotion. As with Officer Hernandez’s claim for discrimination, METRO
offers that it did not promote him to the rank of Sergeant because he did not
meet the 70-point threshold and because Officer Hernandez was not one of the
top seven eligible candidates.             Once METRO produces a legitimate,
nonretaliatory reason for failing to promote Officer Hernandez, the burden
shifts back to Officer Hernandez to raise an issue of material fact showing that
METRO’s offered reason is in fact pretext for the real retaliatory purpose.
Outley v. Luke & Assocs., 840 F.3d 212, 219 (5th Cir. 2016). Officer Hernandez
must demonstrate that his non-promotion “would not have occurred but for
[METRO’s] retaliatory motive.” Id. (quotation marks omitted).
       Officer Hernandez has also failed to meet his summary judgment burden
on his Title VII retaliation claim.            In response to METRO’s legitimate,
nonretaliatory reason, Hernandez appears to rely on the temporal proximity
between his 2011 lawsuit against METRO and his 2012 non-promotion to
Sergeant to establish causation.           We have held that “temporal proximity
between protected activity and alleged retaliation is sometimes enough to
establish causation at the prima facie stage.” 7 Porter v. Houma Terrebonne
Hous. Auth. Bd. of Comm’rs, 810 F.3d 940, 948 (5th Cir. 2015). However, the
burden has now shifted to a heightened standard of “but-for” causation, for



       7  “The cases that accept mere temporal proximity between an employer’s knowledge
of protected activity and an adverse employment action as sufficient evidence of causality to
establish a prima facie case uniformly hold that the temporal proximity must be ‘very close.’”
Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). Here, a period of twelve months
passed between Officer Hernandez’s first Title VII action and 2012 applications for promotion
to Lieutenant and Sergeant, such that the temporal proximity between Officer Hernandez’s
protected activity and his adverse employment action is insufficient to support an inference
of causality.
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                                 No. 16-20135
which temporal proximity, without more, will not suffice. Strong v. Univ.
Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007).
      Although Officer Hernandez did present evidence of a 2011 lawsuit,
which the district court considered protected Title VII activity, he failed to
demonstrate any connection, let alone the requisite but-for causation, between
his protected activity in 2011 and his non-promotion in 2012. See Nassar, 133
S. Ct. at 2533. The fact that Officer Hernandez was not promoted based on his
low overall ranking, which he achieved during an external vendor’s anonymous
testing process, directly undermines his argument that his protected activities
were a but-for cause of his adverse employment action.         At most, Officer
Hernandez offers his subjective belief of retaliation, which we have repeatedly
held is insufficient to warrant relief. Aryain v. Wal-Mart Stores Tex. LP, 534
F.3d 473, 487 (5th Cir. 2008) (citations omitted).
      For the reasons discussed above, we conclude that Officer Hernandez has
not met his burden to show that a genuine issue of material fact exists as to
whether METRO’s offered legitimate reason was a pretext for retaliation.
      AFFIRMED.




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