                                                                                    United States Court of Appeals
                                                                                             Fifth Circuit
                                                                                           F I L E D
                                                                                            April 14, 2004
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                       Charles R. Fulbruge III
                                   FOR THE FIFTH CIRCUIT                                       Clerk



                                            No. 03-30401



WALDO M. BARNES,
                                                                                    Plaintiff-Appellant,

                                                 versus


UNITED STATES DEPARTMENT OF THE NAVY,
Gordon Englad, Secretary,

                                                                                  Defendant-Appellee.



                            Appeal from the United States District Court
                               for the Eastern District of Louisiana
                                            01-CV-3887-B




Before JOLLY, DUHE, and STEWART, Circuit Judges.

       CARL E. STEWART, Circuit Judge:*

        In this employment discrimination action, at issue is whether Waldo M. Barnes (“Barnes”)

presented evidence sufficient to create a genuine issue of material fact, precluding the district court’s




   *
   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 R. 47.5, the court has determined that this opinion should not be published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.
grant of summary judgment to the Secretary of the Navy (“Navy”). For the following reasons, we

affirm.



                             FACTUAL AND PROCEDURAL HISTORY

          The following facts are taken in the light most favorable to the plaintiff. Barnes, a 64-year-old

African-American male, has been employed by the Navy since 1967. In 1999, Barnes was one of two

candidates for a Navy position as an Equal Employment Opportunity (“EEO”) manager at the Navy’s

Commander Naval Reserve Force in New Orleans. Barnes and the other applicant, Angelina Salayon,

were interviewed by a panel comprised of three voting members and one non-voting member

providing EEO oversight; the panel member in charge of the selection was Charles Martino. In

December of 1999, the panel unanimously selected Salayon, who is: a female, younger than Barnes,

and identified as being of Asian-Pacific Islander descent.

          Prior to the 1999 employment decision, Barnes was employed as an EEO counselor. There

is evidence that, in this role, Barnes took a complaint from a Navy employee who believed that

Martino had violated her trust by revealing a confidential conversation to management. In

investigating this complaint, Barnes interviewed Martino at some time prior to March 16, 1999.

Barnes’s complaint was still pending when he applied for the promotion as an EEO manager.

          Post completion of administrative procedures, Barnes’s complaint alleged that his federal

employer violated the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.,

and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Specifically, Barnes alleges

that the Navy discriminated against him because of his age, race, and gender. Barnes also alleges that




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the Navy retaliated against him for filing prior employment discrimination complaints and for being

the EEO manager who interviewed the selecting official for a position for which Barnes applied.

       The district court granted summary judgment in favor of the Navy. The district court

reasoned that although under the ADEA and Title VII Barnes was qualified for the position, the

Navy’s articulated reasons for failing to select him were not pretextual because Barnes failed to show

that he was clearly better qualified than Salayon. The district court also granted summary judgment

on Barnes’s retaliation claim because he demonstrated no causation between a protected activity and

an adverse employment action. Barnes timely filed a notice of appeal.

                                    STANDARD OF REVIEW

       This court reviews the grant of summary judgment de novo. Flock v. Scripto-Tokai Corp.,

319 F.3d 231, 236 (5th Cir. 2003). A summary judgment motion is properly granted only when,

viewing the evidence in the light most favorable to the nonmovant, the record indicates that there is

“no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

                                           DISCUSSION

       On appeal, Barnes argues that he presented evidence sufficient to avoid summary judgment

on his claims that he: was discriminated against when he did not receive the position in 1999; and

suffered retaliation when he did not receive that position. Specifically, Barnes contends that the

Navy’s proffered reasons for failing to select him as an EEO manager were pretextual because his

qualifications were far superior to Salayon’s qualifications, and thus demonstrates discriminatory

intent. Barnes also contends that he established his retaliation claim because a causal link exists

between Barnes’s participation as an EEO counselor on a complaint which accused Martino, the


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person respo nsible for selecting the EEO manager, and being denied the promotion. We do not

agree.

I.       Discrimination Due to Age, Race, and Gender

         The framework for discrimination claims such as Barnes’s is well-established. In a Title VII

action, the plaintiff has the burden of proving a prima facie case of discrimination by a preponderance

of the evidence. McDonnell Douglass Corp. v. Green, 411 U.S. 792, 802 (1973). To establish an

inference of discrimination, a plaintiff must show a prima facie case by establishing that he is a

member of a protected class, he was qualified for the position that he held, he suffered an adverse

employment action; and after his discharge he was replaced with a person who is not a member of

the protected class. Bauer v. Albermarle Corp., 169 F.3d 962, 966 (5th Cir. 1999). After a prima

facie case is made, the defendant must articulate a legitimate, non-discriminatory reason for its

actions. Id. If this is done, the plaintiff must then prove that the proffered reason was a pretext. Id.

The same evidentiary framework applies in cases of alleged discrimination under the ADEA. St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993).

         The Navy acknowledges that Barnes satisfied the first step of establishing a prima facie

inference of discrimination. The Navy provided a substantial explanation for its decision to hire

Salayon — she was the better qualified candidate. The Navy provided evidence about the position

Barnes applied for, including evidence that the position had policy-making responsibilities, and

evidence that supported its decision that Salayon was better qualified for the position. Specifically,

the Navy provided evidence that Salayon had experience at the policy-making level; that she had more

experience at the Navy Headquarters command than Barnes; that in her time at Navy Headquarters,

she worked on several EEO programs; that she demonstrated analytical ability; that her membership


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on the quality inspection team increased her qualifications for the position; and that the hiring panel

was impressed with Salayon’s confidence during the interview process.

        The Navy does not argue that Barnes was not qualified; instead, the Navy has presented

reasons why Barnes’s experience did not make him as qualified as Salayon. Given the requirements

for the position of EEO manager, it is particularly relevant that Marti no noted Barnes’s 15 years

experience as a deputy EEO were spent in a non-policy-making level, implementing policies

developed by others. These are legitimate, non-discriminatory reasons why the Navy could

permissibly choose to promote Salayon instead of Barnes.

        Once the Navy offered its non-discriminatory explanation, Barnes had the burden of

producing evidence that the Navy rationale was false and a mere pretext for discrimination. See

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142-43 (2000). Here, Barnes attempted

to do so, by showing that he was clearly better qualified for the EEO manager position.

        We have previously held that a showing that the unsuccessful employee was clearly better

qualified is enough to prove that the employer’s proffered reasons are pretextual. Price v. Federal

Express Corp., 283 F.3d 715, 723 (5th Cir. 2002). This evidentiary basis for creating a permissible

inference of discrimination is a limited one; the standard for being “clearly better qualified” is high.

The bar is high for such evidence “because differences in qualifications are generally not probative

evidence of discrimination unless those disparities are of such weight and significance that no

reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected

over the plaintiff for the job in question.” Celestine v. Petroleos de Venezuella SA, 266 F.3d 343,

357 (5th Cir. 2001) (quotation marks omitted). In other words, we do not review personnel decisions




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for their wisdom. See Mato v. Baldauf, 267 F.3d 444, 453 (5th Cir. 2001), cert. denied, 536 U.S.

922 (2002).

       The pretext evidence Barnes present s includes: he served for 15 years as a deputy EEO

officer; Salayon had never been a permanent full time deputy EEO officer; he had instructed Salayon

when she was “coming up through the ranks”; and he had been temporarily promoted to the EEO

manager position. In addition, Barnes presented two declarations from those familiar with his work,

testifying to his excellent performance, and his qualifications for the EEO manager position.

       Assuming, as we must, that Barnes’s factual assertions are correct, we cannot say that

rational, non-discriminatory individuals would always choose someone, like Barnes, with management

experience over someone without it. A unanimous panel of three individuals, with EEO guidance,

chose Salayon for reasons they recited at length. More importantly, even assuming Barnes’s

significant management experience demonstrates that he was “qualified” for the EEO manager

position, Barnes lacked the policy-making experience Salayon possessed. Due to her experience at

Navy Headquarters of interpret ing and developing policy for subordinate field commands and

activities, the Navy could reasonably find that Salayon was in fact “better qualified” than Barnes for

the position of EEO manager. Therefore, Barnes’s lack of policy-making experience precludes him

from making the requisite showing that he was a “clearly better qualified” candidate.

       Although most of Barnes’s evidence of pretext is directed at establishing that he was clearly

more qualified, he also presented other evidence of pretext. Reportedly, one member of the hiring

panel respo nded to Barnes’s claim that he had been working at EEO since 1977 by saying, “oh I

wasn’t born then.” We find, however, that this comment was not related to the decision to promote

Salayon rather than Barnes; rat her, this comment is a stray remark which alone cannot establish a


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genuine issue of material fact concerning a discrimination claim. Wallace v. Methodist Hospital

System, 271 F.3d 212, 222 (5th Cir.), cert. denied, 535 U.S. 1078 (2002). Accordingly, we find that

the dist rict court correctly granted summary judgment in favor of the Navy on the discrimination

claims.

II.       Retaliation for a Protected Activity

          Barnes asserts that the 1999 decision not to promote him was made in retaliation for his

investigation of Martino’s alleged violation of trust. To establish a prima facie retaliation claim, a

plaintiff must show, inter alia, that there was a causal link between the participation in the protected

activity (here, fulfilling EEO duties) and the adverse employment action (here, failure to receive

promotion). E.g. Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir.), cert. denied, 522

U.S. 932 (1997). Although Barnes co nducted an interview with Martino, there is no evidence of

accusations or rancor. Indeed, when the complaint being investigated was formally filed, it did not

complain of Martino’s conduct. The interview was in March; the employment decision was in

December. See Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 268 (5th Cir. 1994) (stating

that it is highly unlikely that an adverse employment decision ten months after protected activity was

prompted by retaliatory motive). Here, the report of interpersonal contact in the form of an

interview, at least nine months prior to the adverse employment decision is insufficient to create a

material fact issue. Accordingly, we find that the district court correctly granted summary judgment

on the issue of retaliation.

Affirmed.




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