     Case: 18-30011       Document: 00514550924         Page: 1     Date Filed: 07/11/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 18-30011                         United States Court of Appeals
                                   Summary Calendar                                Fifth Circuit

                                                                                 FILED
                                                                             July 11, 2018
JOSEPH CHHIM,                                                               Lyle W. Cayce
                                                                                 Clerk
               Plaintiff-Appellant,

v.

GOLDEN NUGGET LAKE CHARLES, L.L.C., improperly referred
to as Golden Nugget Casino Lake Charles,

               Defendant-Appellee.


                   Appeals from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 2:16-CV-1094


Before REAVLEY, GRAVES, and HO, Circuit Judges.
PER CURIAM: *
       Plaintiff-Appellant Joseph Chhim, who proceeds in this action pro se, ap-
peals from the district court’s grant of summary judgment in favor of Defendant-
Appellee Golden Nugget Lake Charles, L.L.C. (“Golden Nugget”), on his claims
that Golden Nugget failed to hire him in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment
Act of 1967, 29 U.S.C. § 621 et seq. For the reasons that follow, 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       *Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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. 18-30011

      In June 2014, Golden Nugget was in the midst of a mass recruiting effort
to attract employment candidates in advance of the December 2014 opening of
its casino resort in Lake Charles, Louisiana. Chhim, a now-seventy-three-year
old U.S. citizen of Cambodian descent, applied for a position as facilities super-
visor through Golden Nugget’s online application system. His application was
automatically rejected. In a subsequent email exchange, Golden Nugget’s Direc-
tor of Human Resources, Laura Jasso, informed Chhim that the rejection was
due to his failure to complete an online assessment, required of all employment
applicants, that is designed to gauge an applicant’s strength in customer service
and engagement. Chhim completed the assessment, scoring a twelve percent—
well below the recommended minimum of thirty percent. Based on this low score,
Golden Nugget’s system generated and sent an automated rejection to Chhim on
July 12, 2014. Golden Nugget never filled the position for which Chhim applied.
      Chhim later filed the instant action, alleging that Golden Nugget discrim-
inated against him on the basis of race, national origin, and age by not hiring
him as facilities supervisor. The district court granted summary judgment in
favor of Golden Nugget, and Chhim timely appealed.
      We review a grant of summary judgment de novo, applying the same stand-
ards as the district court. Ezell v. Kan. City S. Ry. Co., 866 F.3d 294, 297 (5th
Cir. 2017). Summary judgment “is appropriate only if the movant shows that
there is no genuine issue as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Tolan v. Cotton, 134
S. Ct. 1861, 1866 (2014) (per curiam). We construe the evidence in the light most
favorable to the nonmoving party and draw all reasonable inferences in that
party’s favor. R & L Inv. Prop., LLC v. Hamm, 715 F.3d 145, 149 (5th Cir. 2013).
      In both Title VII and ADEA failure-to-hire cases based on circumstantial
evidence, federal courts analyze plaintiffs’ claims using the well-trod framework
established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S.


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                                  No. 18-30011

792 (1973). See, e.g., Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 n.2
(5th Cir. 2002) (“This circuit applies the McDonnell Douglas rubric to both Title
VII and ADEA claims.”). As this court explained to Chhim in a previous appeal,
under this framework, a plaintiff must first establish a prima facie case of dis-
crimination by demonstrating that “(1) he is a member of a protected class; (2) he
was qualified and applied for the job; (3) the employer rejected him for the job
despite his qualifications; and (4) a similarly situated applicant outside the pro-
tected class was hired.” Chhim v. Univ. of Tex., 836 F.3d 467, 470 (5th Cir. 2016)
(per curiam); see also Rogers v. Pearland Indep. Sch. Dist., 827 F.3d 403, 408
(5th Cir. 2016); Blow v. City of San Antonio, 236 F.3d 293, 296 (5th Cir. 2001).
It is undisputed that Chhim satisfies the first prong of this test as well as half
of the second (he applied for the facilities supervisor position) and half of the
third (Golden Nugget rejected him). But even if we were to assume that Chhim
was qualified for the job (the district court found he was not) and that he was
rejected despite those qualifications, he has failed to establish a genuine issue
on the fourth prong, because he has offered no evidence to refute Golden Nug-
get’s contention, supported by competent evidence, that the facilities supervisor
position was never filled. Specifically, Golden Nugget submitted a declaration
by Elizabeth Guest, Manager of Corporate Recruiting for Landry’s Management,
LP, a company that provides human resources support to Golden Nugget, at-
testing that Golden Nugget never hired anyone to fill the position for which
Chhim applied.
      Although we usually draw reasonable inferences in favor of the nonmoving
party in reviewing a summary judgment motion, we do so only where both par-
ties have submitted evidence of contradictory facts; we cannot assume, in the
absence of proof, that the nonmoving party could or would prove the necessary
facts. McCarty v. Hillstone Rest. Grp., Inc., 864 F.3d 354, 358 (5th Cir. 2017).
Golden Nugget proffered evidence on the fourth prong of the prima facie case,


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and Chhim proffered nothing to counter it. Thus, he fails to satisfy this prong,
which alone is fatal to his claims. E.g., McClaine v. Boeing Co., 544 F. App’x 474,
477 (5th Cir. 2013) (per curiam). His status as a pro se litigant does not alter
this conclusion. See EEOC v. Simbaki, Ltd., 767 F.3d 475, 484 (5th Cir. 2014)
(“Despite our general willingness to construe pro se filings liberally, we still re-
quire pro se parties to fundamentally abide by the rules that govern the federal
courts. . . . Pro se litigants must properly . . . present summary judgment evi-
dence . . . .” (citations and internal quotation marks omitted)).
      The judgment of the district court is AFFIRMED.




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