                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                   March 24, 2005
                      _____________________
                                                          Charles R. Fulbruge III
                              No. 04-10935                        Clerk
                            Summary Calendar
                         _____________________

                             OLLIE DAILEY,

                      Plaintiff - Appellant,

                                versus

                VOUGHT AIRCRAFT INDUSTRIES, INC.,

                         Defendant - Appellee.

_________________________________________________________________

           Appeal from the United States District Court
                 for the Northern District of Texas
              District Court Cause No. 3:03-CV-1633-H
_________________________________________________________________

Before JONES, BARKSDALE and PRADO, Circuit Judges.

PRADO, Circuit Judge.*

     Appellant Ollie Dailey sued appellee Vought Aircraft

Industries (Vought) claiming that Vought denied him a supervisory

position because of his race and in retaliation for his previous

complaints about racial discrimination.      For the following

reasons, this court affirms the district court’s summary judgment

in favor of Vought.




     *
      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that this opinion should not be published and is not precedent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
I. Factual Background

     Dailey, a black male, works in Vought’s “High Bay” machine

shop as a machinist.    Dailey has worked for Vought and its

predecessor since 1984.    In January 2000, four supervisory

positions opened in the High Bay shop and in another one of

Vought’s machine shops known as Building 1.    A group of

interviewers interviewed each applicant and selected the four

highest-ranked applicants for the supervisor positions.     Dailey

was ranked tenth out of twelve applicants and was not selected

for one of the positions.    Shortly thereafter, another

supervisory position opened.    Instead of conducting another

interview process, Vought selected the next highest ranked

interviewee from the previous interviews.    Each of the five

individuals selected for a supervisory position was a white male.

     After the selection process for January 2000 was completed,

Dailey complained that the interview process was unfair because

not all candidates were interviewed by all of the interviewers.

Vought agreed that the selection process was not optimal, and

when another supervisory position opened in September of 2000,

Vought returned to the old process whereby each applicant was

interviewed by a single interviewer.    Dailey, along with eight

other applicants, applied for the supervisory position.     Vought

ranked Dailey fifth out of the eight applicants.    Dailey was not

selected; a Hispanic applicant was selected.



                                  2
     On October 18, 2000, Dailey filed a charge of discrimination

with the Equal Employment Opportunity Commission (EEOC), alleging

racial discrimination and retaliation for both the January 2000

and September 2000 promotion decisions.    The EEOC issued Dailey a

“right to sue” letter on April 28, 2003.   Dailey brought suit in

the Northern District of Texas on July 18, 2003.

     Vought moved for summary judgment and asserted that Dailey

was not selected because the other candidates were better

qualified and received better scores in the interviews.      Dailey

claimed that Vought’s asserted reason for not promoting him was a

pretext for racial discrimination and retaliation.    The district

court granted summary judgment on both claims in favor of Vought.

Dailey appealed.

II. Standard of Review

     This court reviews a grant of summary judgment de novo.1

Summary judgment is proper if the movant can demonstrate that

there is no genuine issue of material fact and he is entitled to

judgment as a matter of law.2   In deciding whether a fact

question exists, the court must view the facts and reasonable




     1
      See Flock v. Scripto-Tokai Corp., 319 F.3d 231, 236 (5th
Cir. 2003).
     2
      See FED R. CIV. PROC. 56(c); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986).

                                 3
inferences in the light most favorable to the non-moving party.3

A genuine issue of material fact exists if the evidence is such

that a reasonable jury could return a verdict in favor of the

non-moving party.4

III. Whether Summary Judgment Was Proper

     Dailey claims that Vought’s decisions not to promote him to

a supervisory position in January 2000 and September 2000 were

based on racial discrimination and retaliation.   The district

court entered summary judgment on Dailey’s racial discrimination

claims because it determined no fact question existed about

pretext.   The district court entered summary judgment on Dailey’s

retaliation claims because it determined no fact question existed

about the causal connection between Dailey’s past complaints and

Vought’s promotion decisions.

     A. Dailey’s Racial Discrimination Claim

     Title VII of the Civil Rights Act of 1964 makes it unlawful

for an employer to discriminate against an employee based on the

individual’s race.5   In an employment discrimination case, this

court applies the burden-shifting framework articulated by the



     3
      See Daniels v. City of Arlington, Tex., 246 F.3d 500, 502
(5th Cir. 2001).
     4
      See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
     5
      See 42 U.S.C. § 2000e-2(a)(1).

                                 4
Supreme Court in McDonnell Douglas Corp. v. Green.6     Under this

framework, the plaintiff must first establish a prima facie case

of discrimination.7     To meet this burden, the plaintiff must

show: 1) he is a member of a protected class, 2) he was qualified

for the job, 3) he suffered an adverse employment action, and 4)

others outside the protected group were treated more favorably.8

     If the plaintiff succeeds in making a prima facie case, the

burden shifts to the defendant-employer to produce evidence of a

legitimate, nondiscriminatory reason for the treatment of the

plaintiff.9   If the employer offers a nondiscriminatory reason,

the burden shifts back to the plaintiff to show that the

employer’s reason for the disparate treatment is merely a pretext

for discrimination.10    To survive summary judgment, the plaintiff

must provide evidence that raises a genuine issue of material

fact about whether the employer’s reason for the plaintiff’s

treatment is a pretext for discrimination.11



     6
      411 U.S. 792, 802-04 (1973).
     7
      McDonnell Douglas Corp., 411 U.S. at 802.
     8
      See id. at 802.
     9
      See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133,
142 (2000).
     10
      See Reeves, 530 U.S. at 143; St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 507-508 (1993).
     11
      See Nicols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th
Cir. 1996).

                                   5
     In this case, Dailey claims that Vought did not promote him

to a supervisory position because he is black.     The parties do

not dispute that Dailey made a prima facie case of racial

discrimination.   The parties disagree, however, about whether

Vought’s reason for not promoting Dailey is a pretext for racial

discrimination.

     Vought maintains that it did not promote Dailey to a

supervisory position because the other applicants were more

qualified than Dailey.   Vought’s summary judgment evidence shows

the following.    For the January 2000 positions, Dailey was ranked

tenth out of the twelve candidates who applied for the positions.

Vought selected the four highest ranked individuals.     When

another supervisory position became available after the interview

process, Vought offered the position to the next highest-ranked

candidate.   Dailey ranked fifth out of nine applicants during the

September 2000 interview process.     The interviewer selected an

applicant with prior supervisory experience in the High Bay area

and considered that experience to make the applicant the best

qualified candidate.

     This evidence established a nondiscriminatory reason for not

promoting Dailey—the applicants selected for promotion were more

qualified than Dailey and ranked higher during interviews.      Thus,

the burden shifted to Dailey to demonstrate a fact question about

whether Vought’s reason for not promoting him—that he was less

qualified—was pretextual.   Meeting this burden required Dailey to

                                  6
demonstrate that he was clearly better qualified than the other

applicants.12     This is a very high burden that required Dailey to

show that “no reasonable person . . . could have chosen the

candidate selected over [Dailey].”13     To survive summary

judgment, the unfairness of the employer’s decision must be so

apparent as to jump off the record and “slap [the court] in the

face.”14

     Dailey did not meet this burden.     Although Dailey’s summary

judgment evidence shows that he may be qualified for the

positions he sought, he did not show that he is clearly better

qualified than those selected for promotion.     His summary

judgment evidence amounts to no more than his own assertions that

he is better qualified and the deposition statements of

associates that Dailey is qualified for promotion.     This court

will not second guess business decisions of an employer with

experience in evaluating applicants for high level promotions

where the evidence does not show that the plaintiff is clearly

better qualified.15     Although Dailey complains about the

subjective nature of Vought’s interviewing process, the “mere


     12
      See Manning v. Chevron Chem. Co., 332 F.3d 874, 882 (5th
Cir. 2003).
     13
      Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 357
(5th Cir. 2001).
     14
          See Odom v. Frank, 3 F.3d 839, 847 (5th Cir. 1993).
     15
          See Odom, 3 F.3d at 847.

                                     7
fact that an employer uses subjective criteria is not . . .

sufficient evidence of pretext.”16        In this case, Dailey showed

that he is an experienced machinist and that he has a college

degree.     This evidence is probative of Dailey’s qualifications,

but it does not raise a fact question about whether Vought’s

reason for not promoting him to a supervisory position was a

pretext for racial discrimination.        The district court did not

err in entering summary judgment for Vought on Dailey’s racial

discrimination claims.

     B. Dailey’s Retaliation Claim

     Dailey also claims that Vought failed to promote him because

he complained about racial discrimination in the past.        Dailey

complained about discrimination in the early 1990s and filed a

lawsuit against Vought.     Dailey also participated in

demonstrations outside of Vought’s plant, protesting what Dailey

claims were Vought’s discriminatory practices.        Dailey maintains

that he was denied a supervisory position in retaliation for

these complaints and protests.

     Title VII prohibits retaliation by employers against

employees who have opposed unlawful employment practices or who

have filed a charge of discrimination.17        To survive summary

judgment on a retaliation claim, a plaintiff must make a prima


     16
          Manning, 332 F.3d at 882.
     17
          See 42 U.S.C. § 2000e-3(a).

                                      8
facie showing that 1) he engaged in protected activity, 2) he

suffered an adverse employment action, and 3) there was a causal

connection between participation in the protected activity and

the adverse employment decision.18      Dailey satisfied the first

part of this burden because Title VII specifically states that an

employer may not retaliate against an employee for having made a

charge of discrimination.19     Thus, Dailey’s complaints about

racial discrimination are protected activities under Title VII.

Dailey satisfied the second part of the prima facie showing

because Vought’s decision not to promote Dailey constitutes an

adverse employment action.20     Vought, however, contends that

Dailey did not satisfy the third part of his burden because he

failed to show a causal connection between participation in the

protected activity and the adverse employment action.

     To demonstrate causation, the employee must demonstrate that

he would have been promoted but for engaging in protected

activity.21     Here, both parties acknowledge Dailey’s complaints


     18
      See Ackel v. Nat’l Comm. Inc., 339 F.3d 376, 385 (5th Cir.
2003); see also Mota v. Univ. of Tex. Houston Health Ctr., 261
F.3d 512, 519 (5th Cir. 2001).
     19
          See 42 U.S.C. § 2000e-3(a).
     20
      See Walker v. Thompson, 214 F.3d 615, 629 (5th Cir. 2000)
(stating that an adverse employment action includes employment
decisions on hiring, granting leave, discharging, promoting, and
compensating).
     21
      See Mota, 261 F.3d at 519; Medina v. Ramsey Steel Co.,
Inc., 238 F.3d 674, 684 (5th Cir. 2001).

                                   9
about race discrimination in the early 1990s.     The summary

judgment evidence indicates that some of the individuals involved

in the promotion decision knew about Dailey’s past complaints,

but Dailey offered no evidence that raised a fact question about

a causal link between his prior complaints and Vought’s decision

not to promote him.   Dailey presented nothing more than Vought’s

knowledge of his prior criticism.     No evidence exists of a

hostile reaction to any of Dailey’s complaints.22     Instead,

Dailey asks the court to infer that his complaints in the early

1990s caused the interviewers in 2000 not to promote him.

Although a lapse of time is not necessarily dispositive in a

retaliation case,23 here, so much time passed since Dailey’s

complaints that he cannot rely on Vought’s knowledge of his

complaints alone.24   The district court did not err in entering


     22
      See Grizzle v. Travelers Health Network, 14 F.3d 261, 268
(5th Cir. 1994) (upholding a judgment not withstanding the
verdict and observing that no evidence existed of a hostile
reaction to the plaintiff’s protected activity).
     23
      See Shirley v. Chrysler First, Inc., 970 F.2d 39, 43 (5th
Cir. 1992) (finding that the passage of 14 months between the
filing of an EEOC charge and employee’s discharge was
insufficient proof against retaliation claim).
     24
      See Meiners v. Univ. of Kan., 359 F.3d 1222, 1231 (10th
Cir. 2004) (holding that three and one-half months between the
filing of an EEOC charge and the adverse employment action was
insufficient by itself to establish causation); Fabela v. Socorro
Ind. Sch. Dist., 329 F.3d 409, 414-15 (5th Cir. 2003)
(recognizing that a six-year lapse between the filing of an EEOC
charge and the employee’s dismissal did not necessarily mean the
plaintiff failed to show causation where the plaintiff presented
direct evidence of retaliation); Strouss v. Mich. Dep’t of Corr.,

                                 10
summary judgment on Dailey’s retaliation claims.

IV. Conclusion

     Dailey failed to raise a fact question about Vought’s reason

for not promoting him or about a causal connection between his

past complaints and Vought’s failure to promote him.

Consequently, the district court did not err in entering summary

judgment on Dailey’s claims of racial discrimination and

retaliation.   Accordingly, this court AFFIRMS the summary

judgment.

AFFIRMED.




250 F.3d 336, 344 (6th Cir. 2001) (holding that a three-year gap
between the protected activity and the adverse employment action
was insufficient to support an inference of causation).

                                11
