     Case: 15-50544      Document: 00513256830         Page: 1    Date Filed: 11/03/2015




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

                                                                                    FILED
                                    No. 15-50544                             November 3, 2015
                                  Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk
REGINA E. VARGAS,

              Plaintiff - Appellant

v.

JOHN M. MCHUGH, Secretary Department of Army,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:12-CV-334


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Regina Vargas brought a claim of retaliation
pursuant to Title VII of the Civil Rights Act of 1964 against John M. McHugh,
arising from a decision by United States Army officials to not hire Plaintiff for
an information technology position in 2009. On appeal, Plaintiff challenges




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-50544
the district court’s grant of summary judgment. For the following reasons, we
AFFIRM the judgment of the district court.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      From 2002 to 2007, Regina Vargas, a civilian, worked as an information
technology (IT) specialist at the Army’s Directorate of Information
Management (DOIM) at Fort Hood, Texas. In July 2007, Vargas filed a formal
complaint alleging discrimination based on race, color, age, and reprisal for
participating in equal employment opportunity (EEO) activities. In September
2007, Vargas and the Army settled the complaint by agreeing that, in exchange
for a lump-sum payment, Vargas would resign her position and would “neither
seek [n]or be considered for future federal or contractor employment within the
[DOIM] at Fort Hood.”
      After resigning and receiving the settlement payment, Vargas sent two
emails to former coworkers. The first email referred to a former supervisor as
a “crazy woman,” and shared information regarding the settlement payment.
The second email included similar language and stated that Vargas would
create a website for a former coworker “on how to steal another man’s wife.”
Following these emails, a memorandum was included in Vargas’s file, noting
that the post-employment emails “exhibited a significant lack of judgment on
[Vargas’s] part.”
      In late 2008, Vargas applied for an IT position with the Army’s 120th
Infantry Brigade, which was moving to Fort Hood. Vargas was not selected for
the position, but the hiring official asked if Vargas would be interested in a
lower-level position. Vargas replied that she would be interested. The hiring
official asked her why she was no longer working at the DOIM, but Vargas did
not disclose all of the circumstances surrounding her departure, instead
mentioning family obligations and stress.


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                                 No. 15-50544
      After a human resources specialist extended a tentative offer, the
personnel office checked Vargas’s qualifications and suitability. ROA.233–36,
299. During that check, several problems were uncovered. ROA.313. First, a
review of Vargas’s résumé found numerous alleged exaggerations. Second,
Vargas represented on an employment form that she had not “[left] any job by
mutual agreement because of specific problems,” when in fact she had resigned
from her previous Army position by mutual agreement. Third, the human
resources specialist learned that Vargas would not be granted specialized
computer access, known as “elevated privileges,” necessary to perform the
prospective job because Vargas’s post-resignation emails had shown a
significant lack of judgment. Finally, the settlement agreement, which Vargas
had signed, was interpreted as barring Vargas from any position under DOIM
oversight, including the position she sought.       On January 12, 2009, the
specialist reported all of these findings to the hiring official, and the hiring
official withdrew the tentative officer the following day.
      In March 2009, Vargas filed a formal complaint alleging that the
withdrawal of the tentative offer was reprisal for her 2007 EEO activity. The
Army’s EEO investigator found no wrongdoing. Vargas then went before an
administrative judge for the Equal Employment Opportunity Commission
(EEOC), who held a hearing and concluded that “the reasons given by the
[Army] for withdrawing the job offer to [Vargas] were not shown to be pretext
for retaliatory motives.” Vargas appealed to the EEOC’s Office of Federal
Operations, which reviewed the case and affirmed the administrative judge’s
conclusion.
      On December 11, 2012, Vargas filed suit against the Secretary of the
Army in the United States District Court for the Western District of Texas. On
April 8, 2013, Vargas filed a motion to amend her complaint, which the district
court treated as an amended complaint. The amended complaint brought
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                                  No. 15-50544
claims of discrimination based on race, age, and retaliation, pursuant to Title
VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment
Act of 1967.
      On May 13, 2015, the district court granted the Army’s motion for
summary judgment. On the retaliation claim, the district court explained that
Vargas had to rely on circumstantial evidence because she had offered no direct
evidence of retaliation. The district court found that Vargas had failed to
establish a prima facie case for retaliation because she had not shown a causal
connection between her EEO activity and the Army’s decision not to re-hire
her. The district court also found that Vargas had not rebutted the reasons
articulated by the Army for not re-hiring her.              On the age and race
discrimination claims, the district court found that Vargas had failed to
exhaust her administrative remedies because she had never raised those
claims before filing suit. Accordingly, the district court granted summary
judgment on all claims, and entered judgment the same day. Vargas timely
appealed.
                         II. STANDARD OF REVIEW
      On appeal, Vargas contends that the district court erred in granting
summary judgment on her retaliation claim. We review a grant of summary
judgment de novo, applying the same standard as the district court. Feist v.
La., Dep’t of Justice, Office of the Att’y Gen., 730 F.3d 450, 452 (5th Cir. 2013).
Summary judgment is proper “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). All facts and evidence are viewed in the
light most favorable to the nonmovant. Feist, 730 F.3d at 452. “However,
conclusory statements, speculation, and unsubstantiated assertions cannot
defeat a motion for summary judgment.” RSR Corp. v. Int’l Ins. Co., 612 F.3d
851, 857 (5th Cir. 2010). “Rather, the party opposing the summary judgment
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                                          No. 15-50544
is required to identify specific evidence in the record and to articulate precisely
how this evidence supports [her] claim.” Id.
                III.    RETALIATION CLAIMS UNDER TITLE VII
       The anti-retaliation provision of Title VII forbids employers from
discriminating against a job applicant because she has “‘made a charge,
testified, assisted, or participated in’ a Title VII ‘investigation, proceeding, or
hearing.’” Burlington N. & Sante Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006)
(quoting 42 U.S.C. § 2000e-3(a)). 1 Title VII claims of unlawful retaliation
based on circumstantial evidence are analyzed under the burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–
05 (1973). 2 First, plaintiff must establish a prima facie case of retaliation by
showing “that (1) she participated in an activity protected under the statute;
(2) her employer took an adverse employment action against her; and (3) a


       1   The statutory text of the Title VII anti-retaliation provision provides, in full:

       It shall be an unlawful employment practice for an employer to discriminate
       against any of his employees or applicants for employment, for an employment
       agency, or joint labor-management committee controlling apprenticeship or
       other training or retraining, including on-the-job training programs, to
       discriminate against any individual, or for a labor organization to discriminate
       against any member thereof or applicant for membership, because he has
       opposed any practice made an unlawful employment practice by this
       subchapter, or because he has made a charge, testified, assisted, or
       participated in any manner in an investigation, proceeding, or hearing under
       this subchapter.

42 U.S.C. § 2000e-3(a).
       2 Vargas contends on appeal that there is direct evidence of retaliation. However, the

evidence cited by Vargas does not constitute direct evidence. The evidence cited is the closing
argument of Vargas’s attorney during the EEOC hearing. Moreover, while other evidence in
the record shows that individuals may have had knowledge of Vargas’s prior EEO activity,
that evidence alone is insufficient to show retaliatory animus without inference or
presumption. Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 992 (5th Cir. 2005) (“Direct
evidence is evidence which, if believed, proves the fact without inference or presumption.”).
We therefore analyze Vargas’s claim as based on circumstantial evidence. See Medina v.
Ramsey Steel Co., Inc., 238 F.3d 674, 684 (5th Cir. 2001) (analyzing similar evidence under
the McDonnell Douglas burden-shifting framework).
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                                  No. 15-50544
causal connection exists between the protected activity and the adverse
action.” Feist, 730 F.3d at 454. “If the plaintiff makes a prima facie showing,
the burden then shifts to the employer to articulate a legitimate
nondiscriminatory or nonretaliatory reason for its employment action.” McCoy
v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007). Finally, “the plaintiff
then bears the ultimate burden of proving that [each of] the employer’s
proffered reason[s] is not true but instead is a pretext for a real discriminatory
or retaliatory purpose.” Id.
      The parties here disagree whether Vargas has raised a genuine dispute
that a “causal connection” exists between the protected activity and adverse
action. Temporal proximity between the protected activity and the adverse
action can prove the causation element “when the protected act and the
adverse employment action are ‘very close’ in time.” Washburn v. Harvey, 504
F.3d 505, 511 (5th Cir. 2007) (quoting Clark Cty. Sch. Dist. v. Breeden, 532 U.S.
268, 273–74 (2001)). “However, we have made clear that ‘the mere fact that
some adverse action is taken after an employee engages in some protected
activity will not always be enough for a prima facie case.’” Roberson v. Alltel
Info. Servs., 373 F.3d 647, 655 (5th Cir. 2004) (quoting Swanson v. Gen. Servs.
Admin., 110 F.3d 1180, 1188 n.3 (5th Cir. 1997)). While a five-day time lapse
is sufficient to show a causal connection, Evans v. City of Houston, 246 F.3d
344, 354 (5th Cir. 2001), a five-month lapse is too great a gap, standing alone,
to show causation. Feist, 730 F.3d at 454 (citing Raggs v. Miss. Power & Light
Co., 278 F.3d 463, 472 (5th Cir. 2002)). Here, the gap was approximately fifteen
months between Vargas’s activity and the withdrawal of her job offer. Thus,
the temporal lapse was too great, standing alone, to raise a genuine dispute of
causation. Jackson v. Honeywell Intern., Inc., 601 F. App’x 280, 286–87 (5th
Cir. 2015) (unpublished) (holding that a fifteen-month gap was insufficient to
establish causation).
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                                       No. 15-50544
       A plaintiff may be able to show a causal connection despite a significant
time gap if there is other evidence of retaliation. See Feist, 730 F.3d at 454–55
(noting that a five-month lapse was insufficient to show causation “without
other evidence of retaliation”); Shirley v. Chrysler First, Inc., 970 F.2d 39, 42–
44 (5th Cir. 1992) (upholding a finding of causation based on other evidence
even though fourteen months passed between the protected activity and the
adverse action). “Such evidence may include an employment record that does
not support [the employer’s action], or an employer’s departure from typical
policies and procedures.” 3 Feist, 730 F.3d at 454–55. However, Vargas has not
shown that the employment record did not support the employer’s action; in
fact, the record contained a memorandum noting that post-employment emails
sent by Vargas “exhibited a significant lack of judgment.” Nor has Vargas
pointed to any express policy not followed by the Army. See Blow v. San
Antonio, 236 F.3d 293, 295, 297 (5th Cir. 2001) (noting that the employer had
“intentional[ly] and deliberate[ly] depart[ed] from stated policies” (emphasis
added)). The only “evidence” cited by Vargas is her attorney’s closing argument
at the EEOC hearing. However, the undisputed evidence in the record shows
that résumé reviews by former supervisors were a routine part of the inquiry
into prospective employees’ qualifications and suitability and that at least one
other job offer was withdrawn after such a review. See Gemtron Corp. v. Saint-
Gobain Corp., 572 F.3d 1371, 1380 (Fed. Cir. 2009) (noting that “unsworn
attorney argument to the contrary . . . is not evidence and cannot rebut” other




       3 Vargas also argues that causation may be established through circumstantial
evidence showing that the employer’s decision was based in part on the knowledge of the
employee’s protected activity. Medina, 238 F.3d at 684. However, we will not consider this
argument because it was raised for the first time on appeal. See Leverette v. Louisville Ladder
Co., 183 F.3d 339, 342 (5th Cir. 1999). Furthermore, even if this argument were to raise a
genuine dispute as to causation, Vargas has nonetheless failed to show that the Army’s
reasons were pretextual.
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                                        No. 15-50544
evidence). The district court therefore did not err in finding that Vargas had
failed to establish a prima face case of retaliation. 4
       Furthermore, Vargas has also failed to show that the nonretaliatory
reasons presented by the Army were pretextual. To show that the employer’s
reason is actually a pretext for retaliation, the applicant must show “that the
adverse action would not have occurred ‘but for’ the employer’s retaliatory
motive.” Feist, 730 F.3d at 454 (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar,
133 S. Ct. 2517, 2533 (2013)). “In order to avoid summary judgment, the
plaintiff must show ‘a conflict in substantial evidence’ on the question of
whether the employer would not have taken the action ‘but for’ the protected
activity.” Id. (quoting Long v. Eastfield Coll., 88 F.3d 300, 308 (5th Cir. 1996)).
In   particular,    “the    plaintiff    must    rebut    each     nondiscriminatory      or
nonretaliatory reason articulated by the employer.” McCoy, 492 F.3d at 557.
       The Army produced four legitimate, nonretaliatory reasons for its
employment action: (1) the settlement agreement’s terms, (2) exaggerations on
Vargas’s résumé, (3) a false statement on Vargas’s employment forms, and
(4) lack of elevated privileges. See id. at 556 (stating that an employer meets
its burden of production if it can “articulate a legitimate, nondiscriminatory or
nonretaliatory reason for its employment action”). On appeal, Vargas failed to
raise any argument that the third reason—the false statement on her
employment forms—was pretextual. Vargas has therefore abandoned this
argument. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (“A party
who inadequately briefs an issue is considered to have abandoned the claim.”).



       4 While Vargas contends that “blacklisting” can function as a form of retaliation, the
authority cited by Vargas relates to defamation claims and property interest claims under
the Due Process Clause. Vargas has not explained how such authority relates to Title VII
retaliation claims nor has Vargas cited any relevant Title VII precedent on this issue from
the Fifth Circuit. Vargas has therefore failed to adequately brief this argument and has
waived it. United States v. Scroggins, 599 F.3d 433, at 446–47 (5th Cir. 2010).
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                                      No. 15-50544
Because Vargas has failed to rebut every reason articulated by the Army, the
district court did not err in granting summary judgment as to Vargas’s
retaliation claim. 5
                                IV.    CONCLUSION
       For the foregoing reasons, we AFFIRM the judgment of the district court.




       5Moreover, even if Vargas had shown on appeal that the false statement reason was
pretextual, her retaliation claim would still fail because she has not shown that the résumé
exaggeration reason was pretextual. In her brief, Vargas conceded that at least some aspects
of her résumé were exaggerated. And, as discussed above, Vargas has failed to raise a
genuine dispute that the Army departed from its typical policies and procedures in having
her résumé reviewed by former supervisors.
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