     Case: 14-41085   Document: 00513066584     Page: 1   Date Filed: 06/04/2015




                        REVISED JUNE 4, 2015

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 14-41085                   United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
JONATHAN ADAMS THOMAS,                                              June 2, 2015
                                                                  Lyle W. Cayce
             Plaintiff - Appellant                                     Clerk

v.

JEH JOHNSON, Department of Homeland Security,

             Defendant - Appellee




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


Before REAVLEY, OWEN, and HIGGINSON, Circuit Judges.
REAVLEY, Circuit Judge:
      This case involves a Title VII claim arising out of Appellant Jonathan
Adams Thomas’s termination from his position with the Department of
Homeland Security as a probationary Border Patrol Agent. The district court
granted summary judgment in favor of the government, Thomas’s employer,
and we affirm.
      Thomas was a probationary Border Patrol agent with the Department of
Homeland Security. On April 13, 2010, Thomas and his partner diverted from
their assigned patrol area to visit a Border Patrol checkpoint (“the
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                                 No. 14-41085
Checkpoint”). Thomas did not ask his partner why they were straying from
the assigned area, and his partner did not tell him.          That day at the
Checkpoint, a pair of brand new recruits were subjected to brief but intensive
workouts that resulted in injuries. There was a question about the probability
that the recruits had been subjected to objectionable hazing. Accordingly, all
Border Patrol agents at the Checkpoint that day were required to submit
memoranda addressing the incident. In pertinent part, Thomas wrote:
      When we arrived at the checkpoint, I was introduced to the new
      interns and then went inside to check my government email. I did
      not witness and [was] unaware of anything that went on outside of
      the checkpoint.
      Video evidence showed Thomas had not been in the Checkpoint building
long enough to check his e-mail and a subsequent forensic scan provided
corroborating, but not conclusive, evidence that he had not checked his e-mail.
Additionally, the injured probationary agents, or interns, told investigators
that an African American agent had needled one of them about certain tattoos
and suggested they indicated gang affiliation. Thomas was the only African
American agent at the Checkpoint that day, and he was therefore investigated
for possible lack of candor and racist statements.
      Thomas was suspended from active duty during the investigation,
whereupon he elected to submit a second, unsolicited memorandum that
repeated the version of his conduct as in the first memorandum and described
his own PT experiences upon first entering service as a Border Patrol agent.
After ICE investigators concluded that no criminal conduct had occurred at the
Checkpoint, Thomas’s case was transferred to Internal Affairs and assigned to
John Berent.    Berent interviewed Thomas, who told him the previously
submitted memoranda were “factually accurate” but clarified that while he had
originally “decided to” check his e-mail, he then “decided not to” after entering
the building and realizing no one was there. Berent “closed” his investigation
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                                 No. 14-41085
with a report favorable to Thomas. He reported that neither of the interns had
identified Thomas in a photo line-up and that both testified to a belief that the
comments regarding tattoos were not racially motivated. Further, the report
indicated Thomas had “provided additional information to address the candor
concern.”
      Notwithstanding the favorable report, Thomas’s supervisor, Chief
Rosendo Hinojosa terminated Thomas’s employment on October 25, 2010 for
“lack of candor.” Chief Hinojosa found Thomas’ assertion that he knew nothing
of the physical training exercises “nothing short of incredible” and further
found his “assertion that [he] responded to the checkpoint without knowing a
reason for leaving [his] assigned position in the field [] incredible.” He also
noted how Thomas’ story had shifted with respect to the original claim that he
had checked his e-mail during the time of the physical training.
      After exhausting his remedies with the EEOC, Thomas filed this lawsuit
alleging he had been unlawfully terminated because of his race and color. The
government moved for summary judgment.           Reasoning that Thomas had
shown no evidence that the given reason for his termination, lack of candor,
was pretextual, the district court granted the motion. Thomas appealed.
      “We review a district court’s grant or denial of summary judgment de
novo, applying the same standard as the district court.” Robinson v. Orient
Marine Co., 505 F.3d 364, 365 (5th Cir. 2007).
      A plaintiff lacking direct evidence of race- or color-based discrimination
may yet prevail in a Title VII case by providing circumstantial evidence
sufficient to raise an inference of discrimination.        See McCoy v. City of
Shreveport, 492 F.3d 551, 556 (5th Cir. 2007). In such cases, courts apply the
McDonnell Douglas burden-shifting framework.         See id. (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973)).


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                                    No. 14-41085
      Under this framework, the plaintiff must make a prima facie showing of
discrimination.      Id.      Once the showing is made, a presumption of
discrimination arises, and the employer must “articulate a legitimate, non-
discriminatory reason” for the adverse employment action. See id. at 557. The
burden then shifts back to the plaintiff, who must show the articulated reason
is pretextual. Id.
      We will assume, as the district court found, that Thomas carried his
initial burden of establishing a prima facie case of discrimination. See Britt v.
Grocers Supp. Co., 978 F.2d 1441, 1450 (5th Cir. 1992).           Based on Chief
Hinojosa’s termination letter citing “lack of candor,” the government has
asserted a legitimate, non-discriminatory reason for Thomas’s termination.
See Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (5th Cir. 2011).
      “A plaintiff may establish pretext either through evidence of disparate
treatment or by showing that the employer’s proffered explanation is false or
‘unworthy of credence.’” Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003).
Thomas argues that the given reason for his termination (lack of candor) is
false or unworthy of credence because he was, strictly speaking, truthful at all
times. He also argues he has presented evidence of disparate treatment.
      Thomas argues that the factual dispute over whether he actually lacked
candor necessarily means he has shown pretext. This argument is foreclosed.
See Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995) (“The
question is not whether an employer made an erroneous decision; it is whether
the decision was made with discriminatory motive.”). Thomas was required to
show not only that the determination was wrong, but also that it was reached
in bad faith. See Waggoner v. City of Garland, Tex., 987 F.2d 1160, 1166 (5th
Cir. 1993). He has not done so.
      Further, there is no evidence of disparate treatment. Thomas contends
that the other probationary Border Patrol agents who were present at the
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                                 No. 14-41085
Checkpoint on April 13, and who participated in the physical training
exercises, also lacked candor, either because they misidentified him or because
they gave accounts inconsistent in varying ways.       This is not evidence of
pretext. A misidentification is not a lack of candor and inconsistent stories can
be the product of different recollections or experiences. Thomas was the only
probationary Border Patrol agent who gave an easily falsifiable story that was
seemingly falsified and was the only agent that changed and refined his story—
emphasizing a trip “inside” when it seems to give him an alibi regarding what
happened “outside,” then explaining away as insubstantial the entire
substance of his initial memo when questioned further. Even more, Thomas
was the only probationary Border Patrol agent who was thought to have been
involved in the physical training incident and not as a participant. The conduct
of the other probationary Border Patrol agents was not “nearly identical” and
does not provide a basis for finding disparate treatment. See Vaughn, 665 F.3d
at 637. Significantly, Thomas admits that one of the other probationary Border
Patrol agents was also terminated by Chief Hinojosa for lack of candor
regarding an unrelated topic, which cuts against Thomas’s claim that lack of
candor was merely pretext with respect to his termination.
      Finally, Thomas asserts that he was similarly situated to permanent
Border Patrol agents who were present at the Checkpoint on April 13 and who,
like Thomas, denied knowing anything about the hazing incident. As a matter
of law, Thomas (an intern) is not similarly situated with permanent Border
Patrol agents.    The D.C. Circuit has “held that [federal] probationary
employees and permanent employees are not similarly situated,” because
“under federal regulations, probationary employees may be terminated for
problems even if those problems would not be good cause for terminating a
permanent employee.”      George v. Leavitt, 407 F.3d 405, 415 (D.C. Cir.
2005). Our own unpublished cases are in accord. Lewis v. Jefferson Parish
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                                   No. 14-41085
Hosp. Serv. Dist. No. 2, 562 F.App’x 209, 212 (5th Cir. 2014) (finding employees
not similarly situated where one was fired during her “probationary period”
and the permanent employee had different job responsibilities); Jones v. Am.
Airlines, Inc., 100 F.3d 953 (5th Cir. 1996) (per curiam) (“The non-probationary
employees to whom [plaintiff] points were not similarly situated because they
were protected by collective bargaining agreements, they had different
supervisors, and they had different employment records.”). Other Circuits
agree. See Green v. New Mexico, 420 F.3d 1189, 1195 (10th Cir. 2005) (finding
employees not similarly situated where, among other things, the asserted
comparators were not probationary employees); Steinhauer v. DeGolier, 359
F.3d 481, 484–85 (7th Cir. 2004) (“Purifoy and Steinhauer were not similarly
situated because Steinhauer was still on probation while Purifoy was
not.”); Bogren v. Minnesota, 236 F.3d 399, 405 (8th Cir. 2000) (“[T]roopers
beyond the probationary period are not similarly situated to a probationary
trooper.”); Blanding v. Pennsylvania State Police, 12 F.3d 1303, 1309–10 (3d
Cir. 1993) (“Probationary troopers have traditionally been terminated more
readily . . . than non-probationary troopers.”).
      It is undisputed that Thomas was a probationary employee entitled to
less procedural protections and a different disciplinary scheme than
permanent employees.       Chief Hinojosa testified that, when dealing with
probationary employees, “just about any disciplinary action would lead to []
termination.”   Moreover,    the    Code    of   Federal     Regulations   provides
probationary employees such as Thomas “shall” be “terminate[d]” if the intern
“fails to demonstrate fully his qualifications for continued employment.” 5
C.F.R. § 315.803.      The difference between the Border Patrol agents’
employment status accounts for their difference in treatment, and they are not
similarly situated. See Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 260 (5th
Cir. 2009).
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                          No. 14-41085
 The district court’s grant of summary judgment is AFFIRMED.




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