   Case: 11-50265       Document: 00511621504         Page: 1     Date Filed: 10/04/2011




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

                                                                            FILED
                                                                          October 4, 2011

                                     No. 11-50265                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



ROQUE BARRIENTOS,

                                                  Plaintiff-Appellant,
versus

CITY OF EAGLE PASS, TEXAS,

                                                  Defendant-Appellee.



                   Appeal from the United States District Court
                        for the Western District of Texas
                       USDC Case No. 5:10-cv-00057-XR


Before KING, JOLLY and GRAVES, Circuit Judges.
PER CURIAM:*
       Plaintiff-appellant Roque Barrientos appeals the district court’s
granting of summary judgment in favor of defendant-appellee City of Eagle
Pass, Texas (“Eagle Pass”) in this gender discrimination case. For the
reasons stated herein, we affirm the ruling of the district court.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                 I. Essential Facts & Procedural History
      On May 27, 1997, Eagle Pass employed Mr. Barrientos as an Emergency
Medical Technician (“EMT”) - Basic / Firefighter. Mr. Barrientos remained
employed with the Eagle Pass Fire Department until September 11, 2008 when
Mr. Barrientos resigned from the Eagle Pass Fire Department to pursue a career
with the United States Border Patrol. Just nine days later on September 20,
2008, Mr. Barrientos resigned from the United States Border Patrol. On October
3, 2008, Mr. Barrientos met with the Eagle Pass City Manager to discuss his re-
hiring with the Eagle Pass Fire Department.

      On November 4, 2008, the Eagle Pass Fire Chief informed Mr. Barrientos
that Eagle Pass required him to take and pass a physical agility test for the
EMT/firefighter position.   On November 5, 2008, Mr. Barrientos took the
physical agility exam which was administered in the City of Del Rio, Texas (“Del
Rio”) at the Del Rio Fire Department training facility. Although the Texas
Commission on Fire Protection (“Commission”) recommends that a certified
training officer be present during any and all testing, the Del Rio Fire
Department training facility did not have, nor did the Eagle Pass Fire
Department provide, a certified training officer to be present on the day Mr.
Barrientos was administered the physical agility exam.

      On March 29, 2009, the Eagle Pass Fire Department hired Denisa Vera as
an EMT-Basic. Eagle Pass did not require Ms. Vera to take the physical agility
exam prior to being hired. The Eagle Pass Fire Chief contacted Ms. Vera and
offered her the position. That same day, Barrientos filed a discrimination claim
with the Equal Employment Opportunity Commission (“EEOC”) based on
alleged gender discrimination pursuant to Title VII of the Civil Rights Act of
1964. 42 U.S.C. Sec. 2000e-2(a) (“Title VII”). Mr. Barrientos alleges that the
Eagle Pass City Manager represented to him that his rehiring would be

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considered, though not necessarily to his previous position, since he had only
been gone from the Eagle Pass Fire Department for two weeks. Mr. Barrientos
further alleges that Eagle Pass did not advertise the position for which it hired
Ms. Vera.

        Eagle Pass filed a motion for summary judgment on the gender
discrimination claim.      The district court granted Eagle Pass' motion for
summary judgment. Mr. Barrientos appeals.

                             II. Standard of Review

        We review the district court’s grant of summary judgment de novo,
applying the same standards as the district court. Burge v. Parish of St.
Tammany, 157 F.3d 452, 465 (5th Cir. 1999). Summary judgment is appropriate
if “the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A dispute is “genuine” if the evidence is sufficient for a reasonable jury to return
a verdict for the non-moving party. Hamilton v. Segue Software, Inc., 232 F.3d
473, 477 (5th Cir. 2000). A fact issue is “material” if its resolution could affect
the outcome of the action. Id. When reviewing a summary judgment, we
construe all facts and inferences in the light most favorable to the non-moving
party. Cooper Tire & Rubber Co. v. Farese, 423 F.3d 446, 454 (5th Cir. 2005).

                                   III. Analysis

A.      Title VII of the Civil Rights Act of 1964

        Title VII of the Civil Rights Act of 1964 makes it unlawful “for an employer
to fail or refuse to hire or discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s…sex.” See 42 U.S.C.
§2000e-2(a)(1). In deciding cases regarding Title VII violations, the court’s

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inquiry is “whether the defendant intentionally discriminated against the
plaintiff.” See Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir. 2007) (citing
Roberson v. Alltell Info. Servs., 373 F.3d 647, 651 (5th Cir. 2004)). A plaintiff can
prove intentional discrimination through direct or circumstantial evidence. Id.

      1.     Direct Evidence of Intentional Discrimination

      Proving a gender discrimination case by direct evidence requires the
plaintiff to submit evidence that, if believed, proves the fact in question without
inference or presumption. Jones v. Robinson Prop. Group, 427 F.3d 987, 992
(5th Cir. 2005). “To qualify as direct evidence, a comment must be directly
related to sex-based animus; proximate in time to the termination; made by an
individual with authority over the employment decision; and related to the
employment decision.” Krystek v. Univ. of S. Miss., 164 F.3d 251, 256 (5th Cir.
1999); Price Waterhouse v. Hopkins, 490 U.S. 228, 235 (1989); Brockie v.
AmeriPath, Inc., 273 Fed.Appx. 375, 378 (5th Cir. 2008); Drystek v. University
of Southern Mississippi, 964 F.3d 251, 254 (5th Cir. 1999).

      Here, Mr. Barrientos argues that he was discriminated against because
two females were hired for part-time EMT positions.              To evaluate such
arguments for a case of gender discrimination, the district court would have to
make inferences and presumptions, which are not the standard for a direct
evidence discrimination case. Jones v. Robinson Prop. Group, L.P., 427 F.3d 987,
992 (5th Cir. 2006). However, Mr. Barrientos did not identify any statements,
comments, or other assertions by the Eagle Pass City Manager or the Fire Chief
for consideration of direct evidence of discriminatory intent against male
firefighters. Instead, Mr. Barrientos admits the Fire Chief held no grudges
against him. Mr. Barrientos also admits the Fire Chief never made negative
remarks against male firefighters.



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      2.     Circumstantial Evidence of Intentional Discrimination

      A plaintiff must first create a presumption of intentional discrimination
by establishing a prima facie case. McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). The burden then shifts to the employer to articulate a legitimate,
nondiscriminatory reason for its actions. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 142 (2000). The burden on the employer at this stage “is one
of production, not persuasion; it ‘can involve no credibility assessment.’” Id. If
the employer sustains its burden, the prima facie case is dissolved, and the
burden shifts back to the plaintiff to establish either: (1) that the employer’s
proffered reason is not true but is instead a pretext for discrimination; or (2) that
the employer’s reason, is not the only reason for the conduct, and another
“motivating factor” is the plaintiff’s protected characteristic. Rachid v. Jack in
the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004).

      Circumstantial evidence of discrimination is evaluated under the three-
step McDonnell Douglas framework. The prima facie gender discrimination case
requires Mr. Barrientos to establish (1) he is a member of a protected class; (2)
he applied for a position; (3) he was qualified for the position; (4) he was not
selected for the position; and (5) a person outside the protected class was treated
more favorably; in other words, a female was hired instead. See Davis v.
Chevron U.S.A., Inc. (Chevron), 14 F.3d 1082, 1087 (5th Cir. 1994). Failure to
physically perform job duties is a legitimate reason for not hiring an individual.
Harris v. West, 180 F.3d 263 (5th Cir. 1999) (failure to perform the “physical
efforts” portion was a legitimate, non-discriminatory reason for non-selection);
see Chevron, supra, 14 F.3d at 1087 (summary judgment in favor of employer
against female applicant who was not fit for duty at the time she applied to be
oil refinery operator); Septimus v. University of Houston, 399 F.3d 601, 610 (5th
Cir. 2005) (finding no gender discrimination because employee did not have the


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requisite management experience for the position); Smith v. Olin Chemical
Corp.,555 F.2d 1283, 1288 (5th Cir. 1977) (physical fitness tests related to
minimum standards of employment are recognized as factors not being
discriminatory against age).

      Here, Mr. Barrientos applied for a full-time firefighter position as a rehire.
The Eagle Pass personnel policy requires all rehires to meet the same criteria
of new employees. Eagle Pass’ criteria for new employment includes the “ability,
education, character, fitness, and the employee’s ability to meet the
qualifications in the employee’s job classifications.” The particular firefighter job
posting required “skill in performing strenuous work under adverse conditions
for an extended period of time.” A method of measuring abilities to perform
physical requirements of a firefighter involves the passing of an agility test.

      3.     Similarly Situated

      A gender discrimination plaintiff must identify individuals outside the
protected class that were “similarly situated” or in “nearly identical”
circumstances who were treated more favorably. Wheeler v. BL Development
Corp., 415 F.3d 399, 406 (5th Cir. 2005); Shackelford v. Deloitte & Touche,
L.L.P., 190 F.3d 398, 405-06 (5th Cir. 1999) (holding that similarly situated
means employees with the same position, qualifications, and pay rate); Gilbert
v. Brookshire Grocery Co., 354 Fed.Appx. 953 (5th Cir. 2009) (granting summary
judgment in favor of employer because employee failed to show how a deli
manager and a day stocker are similarly situated).

      Within the Eagle Pass Fire Department, there were two positions: full-
time firefighter or part-time EMT. The full-time firefighter position required the
passing of an agility test, a firefighter certification, and an EMT certification




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while the part-time EMT position only required a certification. The positions
differ in work responsibilities in that a part-time EMT does not respond to fires.

        Mr. Barrientos compares himself to Ms. Vera, an individual hired in a
position different from the one for which he applied. Ms. Vera was hired by
Eagle Pass as an EMT, not a firefighter. Mr. Barrientos argues that Eagle Pass
hired Ms. Vera as a firefighter. The Fire Chief implemented the part-time EMT
position for which he hired Ms. Vera to ensure that emergency services were
secured for Eagle Pass. Mr. Barrientos never applied for the part-time EMT
position even after learning about the position, so Mr. Barrientos was not
similarly situated to Ms. Vera.

B.      Non-Discriminatory Reason

        The issue at the pretext stage is whether Eagle Pass’ reason, even if
incorrect, was the real reason for not rehiring Mr. Barrientos. See Evans v. City
of Houston, 246 F.3d 344, 355 (5th Cir. 2001). Here, Eagle Pass had a legitimate
non-discriminatory reason for not rehiring Mr. Barrientos as a firefighter. Mr.
Barrientos took and failed the agility test required of all firefighters. The parties
do not dispute this material fact, so no genuine issue of material fact exists.

        Both Ms. Vera and Elizabeth De Luna, the female employees Mr.
Barrientos argues were treated more favorably, were not similarly situated with
Mr. Barrientos. Eagle Pass hired both Ms. Vera and Ms. De Luna as part-time
basic EMTs, not as Firefighters / Basic EMTs. Eagle Pass does not require basic
EMTs to take a physical agility test. Mr. Barrientos did not apply for either
position held by Ms. Vera or Ms. De Luna.

        Mr. Barrientos argues that Eagle Pass did not advertise the part-time
EMT position. He argues that only Ms. Vera and Ms. De Luna were hired as
part-time EMTs. Marcos Kypuros, Joshua Martinez, Eduardo Alvarez, Rogelio


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                                No. 11-50265

Guardiola, and Tony Ocegueda were some of the males who were hired as part-
time EMTs. Mr. Barrientos testified that the Fire Chief did not have gender
animus or negative feelings about Mr. Barrientos. Mr. Barrientos admits the
lack of grudges or negative comments by the Fire Chief against males. In
summary, there was no direct or indirect evidence that female firefighters were
treated more favorably or that there were any female firefighters in the Fire
Department at all.

                              IV. Conclusion

      The district court did not err in granting summary judgment in favor of
Eagle Pass. AFFIRMED.




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