     Case: 14-50391       Document: 00512885589          Page: 1     Date Filed: 12/30/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 14-50391                          United States Court of Appeals
                                   Summary Calendar                                 Fifth Circuit

                                                                                  FILED
                                                                          December 30, 2014
RODOLFO MARTINEZ,                                                            Lyle W. Cayce
                                                                                  Clerk
               Plaintiff - Appellant

v.

TEXAS WORKFORCE COMMISSION - CIVIL RIGHTS DIVISION,

               Defendant - Appellee




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


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM:
       Rodolfo Martinez appeals the district court’s order granting summary
judgment in favor of the Texas Workforce Commission-Civil Rights Division
(“TWC”) on Martinez’s claims of national origin discrimination under Title VII,
42 U.S.C. § 2000e-2(a). 1 Martinez, a Mexican-American, argues that the TWC
discriminated against him when it appointed Janet Quesnel, a white woman,



       1We note that Martinez was represented by counsel at various points below, but he
proceeds with this appeal pro se. As such, we review his brief and other filings liberally. See
Abdul-Alim Amin v. Universal Life Ins. Co. of Memphis, Tenn., 706 F.2d 638, 640 n.1 (5th
Cir. 1983).
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                                 No. 14-50391
to a management position over him in May 2011. The TWC counters that it
promoted Quesnel because she was more qualified and performed better
during the interview process than Martinez. A magistrate judge issued a
Report and Recommendation (“R&R”) recommending that the district court
grant summary judgment in favor of the TWC because Martinez failed to show
that the TWC’s reasons for promoting Martinez were a pretext for unlawful
discrimination; the district court agreed. For the following reasons, we agree
with the district court and AFFIRM the grant of summary judgment.
                                       I.
      We review the district court’s grant of summary judgment de novo and
apply the same standard as the district court. Day v. Wells Fargo Bank Nat’l
Ass’n, 768 F.3d 435, 435 (5th Cir. 2014). The district court is entitled to grant
summary judgment only “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). At the summary judgment stage, we “review the
facts in the light most favorable to the non-movant.” Price v. Fed. Express
Corp., 283 F.3d 715, 719 (5th Cir. 2002).
      As Martinez presents a Title VII claim based on circumstantial evidence,
we review the case in accordance with the traditional burden-shifting
framework for such claims. See Meinecke v. H&R Block of Houston, 66 F.3d
77, 83 (5th Cir. 1995) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973)).    The plaintiff must first present a prima facie case of
discrimination, and if the plaintiff does so, the defendant must respond by
offering a legitimate, non-discriminatory reason behind its decision. Id. If the
defendant satisfies its burden, the burden shifts back to the plaintiff to
demonstrate that the defendant’s proffered reason is a pretext for
discrimination. Id.


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                                  No. 14-50391
                                       II.
      The parties do not dispute that Martinez made out a prima facie case of
national origin discrimination based on a failure to promote theory.          See
Haynes v. Pennzoil Co., 207 F.3d 296, 300 (5th Cir. 2000) (identifying the prima
facie elements of a failure to promote claim). The TWC then proffered a non-
discriminatory reason for failing to promote Martinez—Quesnel was more
qualified than Martinez. Specifically, the TWC pointed to Quesnel’s extensive
experience within the TWC and in state government—she had over thirty
years of state government experience, she had worked for the TWC
continuously for over seventeen years, and she was already employed in a
managerial capacity at the time of her promotion. Additionally, Quesnel out-
scored Martinez during the interview process.         We must decide whether
Martinez produced sufficient evidence to suggest that TWC’s reasons were
pretext for discrimination.
      Martinez argues that he has shown pretext because “the evidence in the
record establishes that he was substantially more qualified for the position of
Manager in May 2011 than [Quesnel].” We have held that a plaintiff may
establish pretext by demonstrating that he was “clearly better qualified” such
that “the qualifications are so widely disparate that no reasonable employer
would have made the same decision.” Moss v. BMC Software, Inc., 610 F.3d
917, 923 (5th Cir. 2010) (internal quotation marks omitted). Martinez does not
cite the record on appeal, nor does he identify such qualifications in his brief.
      For guidance, we turn to the R&R, in which the magistrate judge noted
that Martinez claimed he had four superior qualifications: (1) he had more
supervisory experience; (2) he had higher-level experience; (3) he had spent
more years as an investigator; and (4) he had more education. We agree with
the magistrate judge that these factors do not suggest that Martinez was
clearly more qualified than Quesnel. Even accepting that Martinez had more
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                                 No. 14-50391
supervisory experience and higher-level experience generally, an employer
may discount both years of service and general experience in favor of specific
qualifications. Moss, 610 F.3d at 923–24. As the magistrate judge noted,
Martinez’s supervisory experience came from 1990 through 1997, whereas
Quesnel was currently working in a supervisory role at the TWC when she was
promoted. Indeed, it is clear from the record that the TWC valued Quesnel’s
strong record of service within the TWC, which included regular promotions
from investigatory to supervisory roles. See Nichols v. Lewis Grocer, 138 F.3d
563, 567–69 (5th Cir. 1998) (finding that an employee was not clearly more
qualified than another in part because the employee selected had experience
in the department of the available position).
      We also reject the notion that the magistrate judge weighed the evidence
in reaching his conclusion. Instead, our precedents recognize that employers
are generally free to weigh the qualifications of prospective employees, so long
as they are not motivated by race. Indeed, an employee’s “better education,
work experience, and longer tenure with the company do not establish that he
is clearly better qualified.” Price, 283 F.3d at 723. Here, Quesnel had the
longer tenure at the TWC, a strong service record at the TWC, a supervisory
position at the TWC, and a stronger performance than Martinez in her
interview.   We cannot say that Martinez’s other qualifications make him
clearly more qualified than Quesnel. See id. (concluding that the employer was
entitled to summary judgment when it valued a candidate’s military
experience and other skills over the plaintiff’s college degree, greater
management experience, and other qualifications).
      Second, Martinez argues that the TWC improperly relied on the results
of a “subjective” interview score to select Quesnel over him. An employer may
rely on subjective reasons to select one candidate over another, however, “such
as a subjective assessment of the candidate’s performance in an interview.”
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                                    No. 14-50391
Alvarado v. Tex. Rangers, 492 F.3d 605, 616 (5th Cir. 2007). Here, the TWC
asked the candidates an identical set of questions and scored them based on
the similarity of their answers to a model answer. Cf. id. at 617 (finding that
there was no evidence as to how the interviewers arrived at their scores).
Because the TWC has provided some evidence demonstrating how it scored the
applicants in the interview process, we conclude that the subjective assessment
may serve as a legitimate, non-discriminatory reason for its decision, and the
use of the subjective assessment does not serve as evidence of pretext.
      Finally, Martinez claims that the TWC “misrepresented the bases for the
selection of [Quesnel], rather than truthfully stating that the only basis for
promotion of [Quesnel] was . . . the subjective scoring during the interview.”
We see no evidence of a misrepresentation. Instead, the TWC consistently
stated that it selected Quesnel based both on her qualifications, namely her
record at the TWC, and her performance in the interview. 2
                                         III.
      In sum, Martinez has failed to show that he was clearly better qualified
for the manager position or that the TWC’s bases for its decision were
otherwise affected by his national origin.         Accordingly, the district court
properly adopted the magistrate’s R&R granting summary judgment in favor
of the TWC.
                                                                        AFFIRMED.




      2  We note that the magistrate judge also considered and rejected a number of
additional arguments in his R&R. Although Martinez has not raised those issues here, we
have nonetheless reviewed the R&R and the record evidence and have found no error.
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