     Case: 14-41115   Document: 00513570251     Page: 1   Date Filed: 06/28/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                 No. 14-41115                             FILED
                                                                      June 28, 2016
                                                                     Lyle W. Cayce
NORIS ROGERS,                                                             Clerk

             Plaintiff–Appellant,

v.

PEARLAND INDEPENDENT SCHOOL DISTRICT,

             Defendant–Appellee.




                Appeal from the United States District Court
                     for the Southern District of Texas


Before OWEN, GRAVES, and HIGGINSON, Circuit Judges.
OWEN, Circuit Judge:
      After twice applying, and being rejected, for employment as a master
electrician with the Pearland Independent School District (the School District),
Noris Rogers brought suit under Title VII of the Civil Rights Act of 1964
claiming discrimination on the basis of race.      The district court granted
summary judgment in favor of the School District based on Rogers’s failure to
set forth a prima facie case of discrimination under either the disparate impact
theory or the disparate treatment theory of discrimination. We affirm.
                                       I
      Rogers, an African-American male, applied for employment as a master
electrician with the School District on two occasions in 2011. The first time he
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applied, Rogers completed a web-based application that included a consent to
allow the School District to perform a criminal history background check. On
the application, Rogers responded “No” to all questions regarding criminal
history, including whether he had ever been convicted of or pled guilty to a
criminal offense.    He then answered in the affirmative to the following
certification statement:
      I HEREBY CERTIFY THAT ALL INFORMATION PROVIDED IN
      THIS AUTHORIZATION IS TRUE, CORRECT AND
      COMPLETE. I UNDERSTAND THAT IF ANY INFORMATION
      PROVES TO BE INCORRECT OR INCOMPLETE THAT
      GROUNDS FOR THE CANCELING OF ANY AND ALL OFFERS
      OF EMPLOYMENT . . . WILL EXIST AND MAY BE USED AT
      THE DISCRETION OF THE EMPLOYER.
After Rogers submitted his application, the School District conducted a
criminal history background check, which indicated that Rogers had prior
felony convictions that he had failed to disclose. Rogers met with Robert L.
Crager, the School District’s Executive Director of Human Resource Services,
to discuss the results of the criminal background check. The parties dispute
exactly what transpired during that conversation; the School District has
offered a declaration from Crager stating that he confronted Rogers about the
incorrect information on the application, while Rogers appears to contend that
only the fact of his criminal history, and not the misrepresentation on his
application, was discussed. In any event, it is undisputed that Rogers became
angry during the meeting, raised his voice, and was ultimately asked to leave
by Crager. Rogers did not offer any explanation for failing to disclose his
convictions, other than to state that he had paid his debt to society.
      The School District hired 46-year-old Rodney Taylor—like Rogers, an
African-American male—for the position. Within months of accepting the job,
Taylor left the School District’s employ and the master electrician position was
vacant a second time. Rogers applied again, this time disclosing his criminal
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history. However, the School District informed Rogers that his lack of candor
on the first application, along with the seriousness of his criminal history,
rendered him ineligible for employment with the School District. In a letter
responding to an inquiry from Rogers as to why the School District considered
him ineligible for the position, Rogers was told “[a]lthough you disclosed your
criminal history in your second application, due to your failure to provide
truthful information in your first application and the serious nature of the
offenses reported on your criminal history, the District rendered you ineligible
for employment.” The School District subsequently filled the vacancy with
another African-American male who was 54 years old. After exhausting his
administrative remedies, Rogers filed this suit, claiming that his second
rejection for the master electrician position violated Title VII of the Civil Rights
Act of 1964. 1
      The School District and Rogers filed cross-motions for summary
judgment. The district court interpreted Rogers’s complaint and summary
judgment motion as alleging both disparate treatment and disparate impact
discrimination. 2      With respect to disparate treatment, the district court
concluded that Rogers had failed to set forth a prima facie case, or
alternatively, to demonstrate a genuine issue of material fact regarding
whether the School District’s proffered basis for denying his application was
pretextual. With respect to the disparate impact claim, the district court held
that Rogers had failed to establish a prima facie case. Additionally, the district
court denied Rogers’s motion to strike certain evidence offered by the School




      1   42 U.S.C. § 2000e-2.
      2 All references to the district court decision are to the Report and Recommendation
of Magistrate Judge Froeschner, which Judge Costa, sitting by designation, adopted with
minimal elaboration.
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District in connection with its motion for summary judgment.                           Rogers
appealed.
                                                 II
         We review a district court’s grant or denial of summary judgment de
novo, viewing the facts in the light most favorable to the non-moving party and
applying the same standard as the district court. 3 Summary judgment is
appropriate when “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” 4
                                                 III
         We note at the outset that Rogers argues, at least in his statement of
issues, that the district court erred by overruling his objections and motion to
strike certain documentary evidence. The only argument he offers regarding
this decision is that the evidence contains “[v]ariations, [d]iscrepancies, and
[c]ontradictions.”          He does not provide any legal basis for excluding the
evidence; the fact that evidence may contain discrepancies does not make it
inadmissible. We see no reason to disturb the district court’s wide discretion
on this issue, and conclude that the district court did not err in denying the
motion to strike. 5
         We therefore turn to the merits of Rogers’s Title VII claims. While
Rogers’s summary judgment motion in the district court pressed both
disparate treatment and disparate impact theories of Title VII liability,
contentions under the latter theory are absent from his appellate brief with
the exception of an introductory sentence in the brief’s “Statement of the Case”



         3   Lawyers Title Ins. Corp. v. Doubletree Partners, L.P., 739 F.3d 848, 856 (5th Cir.
2014).
         4   FED. R. CIV. P. 56(a).
         5   See United States v. Williams, 620 F.3d 483, 488-89 (5th Cir. 2010).
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section indicating that the case was brought “under both theories of
discrimination[:] disparate treatment and disparate impact.” Although we
must liberally construe Rogers’s brief, this lone, stray sentence—without any
development, and lacking corresponding reference in Rogers’s “Statement of
the Issues” section or elsewhere—is insufficient to preserve his disparate
impact contention. 6 Rogers is deemed to have abandoned the disparate impact
claim.
       Even had he adequately briefed the claim, Rogers failed to establish a
prima facie case for disparate impact. Rogers must show that the School
District had a facially neutral policy that had a disparate impact on a group of
individuals protected under Title VII. 7 Rogers argues that the School District
maintains a policy of “excluding from consideration for employment all persons
who have been convicted of a felony.” However, there is no evidence that the
School District has such a policy. Instead, the record reflects that a felony
conviction, while adverse to an application, is “not an automatic bar to
employment.” In addition, the record shows that the School District follows
procedures that require the opportunity for an in-person meeting with any
applicant to discuss the applicant’s criminal history. The record also shows
that the School District recently hired several employees who had felony and
misdemeanor convictions. Rogers does not offer any evidence that the School
District enforced a policy to exclude from employment all persons who had been
convicted of a felony.




       6 See, e.g., Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (“Although we liberally
construe the briefs of pro se appellants, we also require that arguments must be briefed to be
preserved.”); see also Longoria v. Dretke, 507 F.3d 898, 901 (5th Cir. 2007) (“This court will
not raise and discuss legal issues that [Appellant] has failed to assert.”).
       7   42 U.S.C. § 2000e-(2)(k); Pacheco v. Mineta, 448 F.3d 783, 791 (5th Cir. 2006).
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       The School District urges us not to reach the merits of Rogers’s disparate
treatment claim, arguing that his complaint focused solely on disparate impact
and noting that Rogers raised disparate treatment for the first time during
summary judgment briefing. However, because Rogers raised his disparate
treatment assertion early enough for the School District to respond, and for
the district court to rule on its merits, the disparate treatment issue is properly
before us. 8
       With respect to this theory of liability, Rogers contends that issues of fact
preclude summary judgment in the School District’s favor under either the
McDonnell Douglas burden-shifting framework or the “pattern-or-practice”
method of proving discrimination. However, he did not raise allegations of
pattern-or-practice liability—which is not a separate cause of action, but
simply one method of proving Title VII discrimination 9—in the district court,
either in the original complaint or in his summary judgment briefing.
Accordingly, we do not address these allegations, 10 except to note that the
pattern-or-practice method of proving discrimination is unavailable in a
private, non-class action, such that Rogers’s failure to bring this case as a class
action or seek certification would also defeat his claim. 11




       8See Foster Wheeler Energy Corp. v. An Ning Jiang MV, 383 F.3d 349, 353 n.6 (5th
Cir. 2004).
       9See Celestine v. Petroleos de Venezuela SA, 266 F.3d 343, 355 (5th Cir. 2001),
abrogated on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).
       10 See Vogel v. Veneman, 276 F.3d 729, 733 (5th Cir. 2002) (“Except in cases of
‘extraordinary circumstances,’ we do not consider issues raised for the first time on appeal.”
(quoting N. Alamo Water Supply Corp. v. City of San Juan, 90 F.3d 910, 916 (5th Cir. 1996));
see also Gilley v. Protective Life Ins. Co., 17 F.3d 775, 781 n.13 (5th Cir. 1994) (“We have held
that an argument is waived if the party fails to make the argument in response to summary
judgment.” (citation omitted)).
       11   See Frank v. Xerox Corp., 347 F.3d 130, 136 (5th Cir. 2003).
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       The framework for proving Title VII claims—the McDonnell Douglas
three step, burden-shifting approach—is a familiar one. 12 Under McDonnell
Douglas, a Title VII plaintiff must first set forth a prima facie case of race-
based discrimination. 13 “Establishment of the prima facie case in effect creates
a presumption that the employer unlawfully discriminated against the
employee.” 14 If the plaintiff successfully establishes a prima facie case, the
burden of production shifts to the employer “to articulate some legitimate,
nondiscriminatory reason for the employee’s rejection,” 15 which “must be
legally sufficient to justify a judgment for the defendant.” 16 If the employer
satisfies this burden, “the presumption of discrimination ‘drops out of the
picture,’” 17 and the employee must offer some evidence that the reason
proffered was a pretext for discrimination, 18 or that a “motivating factor” for
the employment decision was the plaintiff’s protected characteristic. 19
       In order to establish a prima facie case of discrimination under Title VII,
Rogers must demonstrate that (1) he belongs to a protected class; (2) he applied


       12   McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973).
       13   Id. at 802.
       14   Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981).
       15 McDonnell Douglas, 411 U.S. at 802; see also Burdine, 450 U.S. at 255 (“The
defendant need not persuade the court that it was actually motivated by the proffered
reasons. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether
it discriminated against the plaintiff.” (citation omitted)).
       16   Burdine, 450 U.S. at 255.
        Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000) (quoting St.
       17

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)).
       18McDonnell Douglas, 411 U.S. at 804; see also Swanson v. Gen. Servs. Admin., 110
F.3d 1180, 1185 (5th Cir. 1997) (“To satisfy the statutory burden, the plaintiff must offer
some evidence, whether direct or circumstantial, that permits the jury to infer that the
proffered explanation was a pretext for illegal discrimination.” (emphasis in original)).
       19 Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir. 2007); see also Manley v.
Invesco, 555 F. App’x 344, 348 (5th Cir.), cert. denied, 135 S. Ct. 335 (2014) (“Persons with
criminal records are not a protected class under Title VII . . . .”).
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for the position of master electrician, and was qualified for the job; (3) he was
not hired; and (4) the School District hired someone outside of his protected
class or otherwise treated him less favorably than others similarly situated
outside of his protected class. 20
       Rogers has failed to establish the fourth prong of the prima facie case.
We first note that each of the two times Rogers was rejected by the School
District, an African-American male was hired for the position he sought, so he
cannot establish a prima facie case by showing that someone outside his
protected class was hired instead of him. 21 Rogers argues, however, that a
similarly situated person outside his protected class was treated more
favorably than him. Specifically, he directs our attention to a white male
named Russell Leon Alvis who was hired by the School District to fill a position
materially similar to that sought by Rogers despite failing to disclose a drug-
related conviction on his 2010 job application. Alvis’s criminal history abstract
indicates that he was arrested in 1980 and convicted of “delivery of marijuana,”
for which adjudication was deferred and he received 10 years of probation.
       The School District has maintained that Alvis’s 1980 conviction was for
a misdemeanor. Rogers disputed that fact in the district court, asserting that
like himself, Alvis had been convicted of a felony and failed to disclose it. In
his briefing in this court, Rogers does not take issue with the School District’s
continued assertion that Alvis’s conviction was for a misdemeanor offense. The



       20 See, e.g., Blow v. City of San Antonio, 236 F.3d 293, 296 (5th Cir. 2001); Septimus v.
Univ. of Houston, 399 F.3d 601, 609 (5th Cir. 2005); see also Burdine, 450 U.S. at 253 (“The
plaintiff must prove by a preponderance of the evidence that she applied for an available
position for which she was qualified, but was rejected under circumstances which give rise to
an inference of unlawful discrimination.”).
       21 See, e.g., Wheeler v. BL Dev. Corp., 415 F.3d 399, 405-06 (5th Cir. 2005) (holding
that plaintiff did not establish prima facie claim for discrimination where white terminated
employee was replaced by white employee).
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notation on Alvis’s criminal history does not specify whether his conviction was
for a misdemeanor or a felony. Our independent research indicates that under
Texas law at the time of Alvis’s conviction (1980), delivery of marijuana could
be either a felony or a misdemeanor depending on the amount of marijuana
delivered and whether the defendant received remuneration, 22 but that a
sentence of ten years of probation would have been impermissible for the
misdemeanor version of the offense. 23 It therefore appears that the 1980
conviction Alvis failed to disclose was for a felony and not a misdemeanor.
       However, even if Alvis was convicted of a felony rather than a
misdemeanor, he is not a comparator for purposes of Rogers’s prima facie case.
A felony conviction is not an automatic bar to employment under the School
District’s employment policies. 24 Rather, the School District considers the
seriousness of the applicant’s criminal record. In order for a Title VII plaintiff
to establish his prima facie case through the use of a “similarly situated
comparator,” he must establish that the comparator was treated more
favorably than the plaintiff under “nearly identical circumstances.” 25



       22See Acts of 1973, 63rd Leg. R.S., ch. 429, § 4.05(d)-(f), 1973 Tex. Gen. Laws 1154
(current version at Tex. Health & Safety Code Ann. § 481.120) (indicating that delivery of
marijuana was felony in the third degree unless actor delivers one-quarter ounce or less
without receiving remuneration, in which case it is a class B misdemeanor).
       23Compare Tex. Code of Crim. Proc. Ann. Art. 42.13, § 3 (1979) (repealed by Acts 1995,
74th Leg., ch. 76, § 7.10, eff. Sept. 1, 1995) (limiting period of probation to maximum period
of imprisonment applicable for the offense), and Pedraza v. State, 562 S.W.2d 259, 259-60
(Tex. Crim. App. 1978) (explaining that under scheme applicable at the time, period of
probation could not exceed maximum term of confinement allowable for offense of conviction),
with Acts of 1973, 63rd Leg. R.S., ch. 399, § 12.22, 1973 Tex. Gen. Laws 907, codified at Tex.
Penal Code Ann. § 12.22 (imposing maximum sentence of 180 days imprisonment for class B
misdemeanors), and Ex parte Gutierrez, 600 S.W.2d 933, 934 (Tex. Crim. App. 1980) (noting
180 day maximum).
       24 But see Tex. Educ. Code Ann. § 22.085 (barring those convicted of certain specified
felonies from employment).
       25   See, e.g., Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009).
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                                 No. 14-41115
      Alvis’s criminal history was not comparable to that of Rogers. Alvis was
convicted in 1980 of delivery of marijuana and sentenced to 10 years of
probation, and there is no suggestion in the record that he was ever convicted
of another crime. In contrast, although the records are not entirely clear, it is
apparent from the record that Rogers was convicted of at least three drug
crimes and crimes for which Rogers received a much more severe sentence than
10 years of probation. He was convicted of possession in 1983, for which he
received a sentence of 10 years of probation. He was subsequently arrested on
two different dates in 1984 on charges, respectively, of possession of a
controlled substance and sale of heroin. He was sentenced to 10 years in prison
as a result of these incidents, and it appears that there were two, concurrent
10-year sentences imposed.      Even had he received only a single 10-year
sentence for a single offense in 1984, the seriousness of Rogers’s and Alvis’s
respective criminal records are not comparable, and accordingly, their failure
to disclose their convictions is also not comparable. Alvis was not treated more
favorably than Rogers under circumstances that were “nearly identical” to
those of Rogers 26 and is therefore not a legitimate comparator for purposes of
Rogers’s prima facie case.
      Rogers has failed to establish a prima facie case, and the district court
properly granted summary judgment.
                                   *        *     *
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




      26   Id.
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      JAMES E. GRAVES, Jr., Circuit Judge, concurring in part and
dissenting in part.
      While I agree with much of the majority opinion, I disagree with its
conclusion that Rogers’ failed to establish a prima facie case of disparate
treatment discrimination under Title VII because Russell Leon Alvis is not a
valid comparator.       The majority’s application of the “nearly identical
circumstances” test to establish a “similarly situated comparator” under the
McDonnell-Douglas framework is so strenuous that it effectively immunizes
employers from disparate treatment claims unless the plaintiff is able to show
that he shares identical traits with the alleged comparator.          Therefore, I
respectfully dissent.
                                         I.
      The majority concludes that Alvis is not a valid comparator because
Alvis’s failure to disclose his past criminal history was not “nearly identical” to
that of Rogers. I disagree. To be a valid comparator under the fourth prong of
the McDonnell-Douglas framework, a Title VII plaintiff must show that the
“employment     actions    at   issue   were    taken   ‘under   nearly   identical
circumstances.’” Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 260 (5th Cir.
2009) (quoting Little v. Republic Ref. Co., Ltd., 924 F.2d 93, 97 (5th Cir. 1991)).
Critically, this inquiry focuses on the action that caused the employment
decision, and whether that action elicited the same or a different response from
the employer with the alleged comparator. Perez v. Tex. Dep’t of Criminal
Justice, 395 F.3d 206, 213 (5th Cir. 2004). “Nearly identical,” however, is not
the same as identical. Lee, 574 F.3d at 260. Rather, at this part of the analysis,
we look for material similarity between the actions and the employer’s
response.
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                                          No. 14-41115
       The action leading to the decision not to hire was Rogers’ failure to
disclose his past criminal history, not the criminal history itself. In fact, the
school district admits that its policies permit hiring of those with past felony
convictions, and the school district has done so in the past. Therefore, the
question before us is whether Alvis’s failure to disclose his past criminal
history is nearly identical to Rogers’ failure to disclose his past criminal
history. I conclude that it is.
       Alvis, a white male, is an HVAC technician for the school district, meets
all employment qualifications for the position that he holds, has a past felony
drug conviction, failed to disclose the past felony drug conviction when
applying for employment with the school district, and the school district had
knowledge of his failure to disclose, yet hired him anyway. Rogers, a black
male, applied to be an electrician for the school district, meets all qualifications
required for the position, has past felony drug convictions, failed to disclose the
past felony drug convictions when applying for employment with the district,
and the school district discovered during the application process that he failed
to disclose his criminal history, yet did not hire him. The majority opinion’s
only justification for concluding that Alvis is not a valid comparator is that
Alvis appears to have one past felony drug conviction while Rogers has three.
This conclusion disregards every other shared circumstance between Rogers
and the alleged comparator. Rejecting Alvis as a similarly situated comparator
because of a single difference between Rogers’ and Alvis’s past criminal
histories conflicts with Perez’s mandate that “nearly identical circumstances”
need not be “identical.” 1



       1 It is also important to recognize that concluding that Alvis is a valid comparator at
this stage of the case does not conclusively determine that the school district unlawfully
treated them differently under the circumstances. Rather, doing so only determines that
Rogers has stated a prima facie case for discrimination and is allowed to proceed to trial.
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                                     No. 14-41115
      Based on these facts, there is no doubt that Rogers and Alvis are
similarly situated employees that were treated differently following the nearly
identical circumstances of failing to disclose past felony drug convictions. This,
coupled with other evidence showing hostility towards Rogers, is sufficient to
create an inference of discrimination and allow Rogers’ claims to proceed to
trial. Thus, I would reverse the district court and conclude that Rogers’ has
established a prima facie case of disparate treatment discrimination according
to Title VII.




                                       13
