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

                                                 FILED
                                                                             May 1, 2009

                                     No. 08-20740                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



ROBERT O WALLRATH

                                                   Plaintiff-Appellant
v.

ERIC K SHINSEKI, Secretary, Department of Veterans Affairs

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:07-CV-3089


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Robert O. Wallrath appeals the district court’s grant of summary judgment
to the Department of Veterans Affairs (“DVA”) in this employment
discrimination case. Finding no error, we AFFIRM.
       Wallrath was a longtime employee of a Houston-area DVA medical facility.
When an opening for a supervisory position was announced, Wallrath applied
for the job and was selected for an interview, but was ultimately rejected in favor


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-20740

of another candidate. Wallrath claims that the he was discriminated against on
the basis of a disability (being hard of hearing) and in retaliation for prior Equal
Employment Opportunity (“EEO”) activities. In a separate incident, Wallrath
applied for a DVA leadership training program known as LDI, but was not
selected. He claims that this nonselection was due to his age, race, and sex. On
appeal Wallrath explicitly waives his race and sex-based claims and claims only
age discrimination.
      This court reviews a grant of summary judgment de novo. Facility Ins.
Corp. v. Employers Ins. of Wausau, 357 F.3d 508, 512 (5th Cir. 2004). Summary
judgment is only appropriate if the evidence reveals no genuine issue of material
fact, and the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c).
      The district court found that Wallrath failed to make a prima facie case
with respect to the retaliation claim, as much of his evidence of engagement in
prior EEO activities was vague and conclusory, while the closest substantiated
EEO activity had occurred three years prior to the interviews for the promotion.
Nor could he offer any direct evidence that his failure to receive the promotion
was the result of retaliation. See 42 U.S.C. 2000e-3(a); Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 56 (2006); Fabela v. Socorro Indep. Sch. Dist.,
329 F.3d 409, 414 (5th Cir. 2003).
      Moreover, the district court found that the DVA presented legitimate,
nondiscriminatory reasons for not giving Wallrath the promotion. A panel
interviewed five candidates, asking each the same questions and evaluating and
scoring their responses. Wallrath scored third; the first-place finisher was hired.
Wallrath contends that the panel was improperly influenced by other DVA
officials who had an animus for him. There is no evidence of that.
      Wallrath’s disability-related claim is based on the Rehabilitation Act. 29
U.S.C. § 794(a). The district court found that while Wallrath was disabled

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within the meaning of the Act at the time of the selection process, he offered no
evidence that the panel took his hearing loss into account when deciding not to
offer him the job. He accordingly could not establish that he “was adversely
treated solely because of his disability,” as required by the Act. Kelly v. Boeing
Petroleum Servs., Inc., 61 F.3d 350, 365 (5th Cir. 1995).
      The district court also rejected Wallrath’s claims concerning his
nonselection for the LDI program.           An element of an age, race, or sex
discrimination claim is that the plaintiff has suffered an adverse employment
action. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000);
Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir. 2007). Using the test
employed by this court in Alvarado, the district court found that the denial of
admission to the LDI program was not an adverse employment action.
      We need not decide whether Wallrath’s rejection for this program was an
adverse action. Instead, we rely on the fact that he did not offer evidence of
being treated differently than other similarly situated individuals on account of
his age. In addition, the DVA presented legitimate, nondiscriminatory, and
nonpretextual grounds for his nonselection. Wallrath’s application, from which
personally identifying information was removed, scored 26th out of the 30
applicants who were competing for seven slots from the Houston area. Wallrath
was not invited to participate in the second round of the selection process, which
was an interview. He claims that selection committee members would, despite
the redactions of personal information, have been aware of his age through the
dates and length of his resume. He fails to present, however, any evidence from
which a reasonable finder of fact could conclude that the selection committee
intentionally discriminated against him on the basis of his age. He claims that
the DVA’s reasons were pretextual, citing a statistical analysis from an expert
he retained. Such studies may be “probative” in “an unusual case,” but “are not
enough to rebut a valid, nondiscriminatory reason for” an action suffered by a

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particular employee. EEOC v. Tex. Instruments, Inc., 100 F.3d 1173, 1185 (5th
Cir. 1996) (emphasis removed). The district court found the study flawed, and
in any event, it is not enough to show that Wallrath’s poor score at the first
round of selection was merely a pretext for rejecting him.
      The judgment of the district court is AFFIRMED.




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