     Case: 11-50259     Document: 00511651028         Page: 1     Date Filed: 11/01/2011




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

                                                                            FILED
                                                                         November 1, 2011

                                     No. 11-50259                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



SUSAN DIXON,

                                                  Plaintiff-Appellant,
v.

COMAL COUNTY, TEXAS; COMAL COUNTY DISTRICT ATTORNEY’S
OFFICE,

                                                  Defendants-Appellees.



                   Appeal from the United States District Court
                        for the Western District of Texas
                               USDC 5:09-CV-831


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Susan Dixon appeals the district court’s summary
judgment in favor of Defendants-Appellees Comal County, Texas and Comal
County District Attorney’s office on her claims that she was not promoted based
on her race and national origin and terminated in violation of Title VII of the
Civil Rights Act of 1964. We AFFIRM.


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 11-50259

                                        I.
      The Comal County District Attorney’s office hired Susan Dixon, an
English-born black woman, as a Clerk I receptionist on July 10, 2006. Dixon
complains that co-workers made fun of her because of her accent. Dixon applied
for a Clerk IV position in January 2007, but the county chose a Hispanic woman
for the position. Then, in March 2007, Dixon interviewed for a Clerk V position
that would serve as an assistant to various prosecutors. Dixon did not receive
that position either, and this time the county hired a white woman instead.
      Beginning in November 2007, Dixon’s supervisor began receiving several
complaints about Dixon’s job performance. The head of the county’s civil section
reported to Dixon’s supervisor that her section often missed deadlines because
Dixon did not properly record phone messages, transfer calls, or place documents
in the correct boxes. She was unable to go forward with the forfeiture of
valuable contraband in one case because Dixon did not properly route a seizure
affidavit. Dixon received a performance correction notice that mentioned she
could face termination if her job performance did not improve. Subsequently,
Dixon circulated e-mails to all county receptionists that included an article
reporting a co-worker’s estranged husband’s arrest, as well as his confidential
booking record and mug shot that Dixon retrieved from the county’s computer
system.
      In March 2008, the county hired another white woman for an unfilled
Clerk IV position. Dixon complained to several co-workers and office visitors
about not being considered for the position. On April 10, 2008, an office manager
met with Dixon to discuss the county’s concern that Dixon was discussing
internal office affairs outside the office. Dixon told the office manager that she
believed she could sue the county because her co-workers harassed her because
of her accent and the county did not promote her based on her race and accent.



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      On April 21, 2008, the county terminated Dixon’s at-will employment. The
termination notice listed Dixon’s violation of the county’s chain of command
policy and insubordinate outbursts when confronted with the inappropriate
email. On June 5, 2008, Dixon filed discrimination and retaliation charges with
the Equal Employment Opportunity Commission. After receiving a letter of
determination, Dixon filed a complaint against the county in the District Court
for the Western District of Texas, alleging discrimination based on race and
national origin and retaliation in violation of Title VII. The district court
granted the county’s motion for summary judgment, dismissing all of Dixon’s
claims.
                                       II.
      We review the district court’s grant of summary judgment de novo.
LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 386 (5th Cir. 2007).
“Summary judgment is appropriate when the discovery and disclosure materials
on file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.” Breaux v.
Halliburton Energy Servs., 562 F.3d 358, 364 (5th Cir. 2009) (internal quotation
marks omitted). This court must take all the facts and evidence in the light
most favorable to Dixon. Kemp v. Holder, 610 F.3d 231, 234 (5th Cir. 2010).
      Dixon’s complaint only alleges discrimination for the county’s failure to
promote her to the March 2007 and March 2008 positions. To overcome a
summary judgment motion in a Title VII employment discrimination claim, a
plaintiff must establish a prima facie case of discrimination, and the defendant
must then articulate a legitimate, nondiscriminatory reason for its actions. See
Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002). We have
acknowledged that choosing the best-qualified candidate “constitutes a
legitimate, non-discriminatory justification for its failure to promote [an
employee].” Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 881–82 (5th

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Cir. 2003). If this burden is met by the defendant, the plaintiff must then offer
sufficient evidence that the defendant’s reason is not true, but is instead a
pretext for discrimination. See Price, 283 F.3d at 720. We have also held that
a plaintiff’s showing that the plaintiff was clearly better qualified is enough to
prove that the defendant’s proffered reason is a pretext. See id. at 723. We
assume, arguendo, that Dixon made prima facie showings for both claims.
      With regard to the 2007 position, the county claims it did not promote
Dixon because the selected woman was a better candidate. The county presents
evidence that the selected woman received the highest interview scores,
interviewers perceived her to be more qualified, and interviewers believed she
conducted herself in a more professional manner than Dixon. Turning to the
2008 position, the county claims that it hired someone with twenty years of
crime analyst experience to meet the county’s institutional needs. The county
presents the affidavit of the hiring attorney to argue it hired the white woman
without interviewing anyone else because her twenty years of experience in
evidence gathering, locating defendants and witnesses, and helping with asset
seizures would help the “office [fulfill] its mission.” The district attorney states
that the county also valued the woman’s “well-developed network of contacts
with law enforcement agencies” throughout Texas, specifically her twelve years
with a local police department.
      Dixon argues that her application materials for the 2007 position show
that she was clearly a better candidate than the woman selected for the Clerk
V position.   However, as the district court observed, a comparison of the
application materials submitted by Dixon and the selected woman does not show
that Dixon was clearly better qualified. Instead, the application materials show
that Dixon and the selected woman had similar clerical and probation-related
experience.   We have held that “showing that two candidates are similarly
qualified does not establish pretext.” Price, 283 F.3d at 723. As for the 2008

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position, Dixon did not respond specifically to the county’s contention that due
to institutional needs this position was converted to crime analyst, but instead
argued generally that “the true effect of the secret creation of the [position] was
to keep [Dixon] from once again seeking and demanding a promotion.” Dixon
cannot rely merely on her subjective belief to establish pretext. See Roberson v.
Alltel Info. Servs., 373 F.3d 647, 654 (5th Cir. 2004). Because Dixon did not
produce evidence such that a reasonable factfinder could conclude that the
county’s proffered reasons are false, we affirm summary judgment for the county
on all of Dixon’s discrimination claims.1
                                             III.
       We now turn to Dixon’s unlawful retaliation claim. “To establish a prima
facie retaliation claim, a plaintiff must show that (1) she participated in a Title
VII protected activity, (2) she suffered an adverse employment action by her
employer, and (3) there is a causal connection between the protected activity and
the adverse action.” Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 331 (5th
Cir. 2009). This court has held that the three-part McDonnell Douglas test
applies to Title VII unlawful retaliation cases. Long v. Eastfield College, 88 F.3d
300, 304 (5th Cir. 1996). In order to survive summary judgment, Dixon must
raise a genuine issue of material fact that the county unlawfully terminated her
employment as retaliation for complaining to the office manager that she was
not promoted based on race and national origin. The close timing between
plaintiff’s protected activity and alleged retaliatory action may help establish the
causal connection element of a prima facie retaliation claim. See Swanson v.
Gen. Serv. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997). However, summary



       1
         Dixon complains that the trial court failed to consider the EEOC determination letter.
However, there is no evidence the district court did not consider the letter, and we have upheld
summary judgment in cases where the EEOC made a positive finding of discrimination. See
Price, 283 F.3d at 725.

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judgment for defendant is proper when plaintiff presents “no evidence of
retaliation save temporal proximity” to rebut defendant’s proffered reason and
overwhelming evidence that plaintiff was fired because of poor performance and
improper work conduct. Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802,
808 (5th Cir. 2007).
      As the district court noted, the county provided substantial evidence to
show that its proffered reasons for Dixon’s termination—her history of violating
standards of performance, conduct, and chain of command—were not pretexual.
Dixon’s termination notice specifically states Dixon was terminated because she
violated the DA’s chain of command policy by complaining about internal office
issues with non-employees and was insubordinate when confronted about
inappropriate office behavior. On the other hand, the only evidence Dixon offers
to support an inference of pretext is that she was fired less than two weeks after
her protected activity. See Roberson, 373 F.3d at 656 (“Without more than
timing allegations, and based on [the] legitimate, nondiscriminatory reason in
this case, summary judgment . . . was proper.”).         Accordingly, summary
judgment was proper.
      For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment in favor of the county dismissing Dixon’s discrimination and
retaliation claims.




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