     Case: 11-20639    Document: 00512102712     Page: 1   Date Filed: 01/07/2013




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

                                                                     FILED
                                                                January 7, 2013

                                  No. 11-20639                      Lyle W. Cayce
                                                                         Clerk



MR. ALBERT J. AUTRY, Individually,

                                            Plaintiff - Appellant

v.

FORT BEND INDEPENDENT SCHOOL DISTRICT,

                                            Defendant - Appellee



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



Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      In 2008, Albert Autry sued the Fort Bend Independent School District
(“FBISD”), alleging that the district’s decision to hire a Caucasian woman in lieu
of promoting Autry amounted to race discrimination in violation of Title VII.
The district court granted summary judgment to FBISD and ordered Autry to
pay attorneys’ fees. We affirm the district court’s grant of summary judgment
but vacate its fee award.
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                                 No. 11-20639

                                       I.
      In July 2008, FBISD hired Michael Johnson as its new director of
facilities. Johnson immediately began reorganizing the facilities department.
As part of the reorganization, Johnson created a new administrative position
entitled “support manager.” Johnson drafted a job description, and in October
2008, the human relations department issued a vacancy posting. The posting
provided that the new position entailed “a wide range of administrative
oversight tasks relating to supervision, monitoring, and quality control of FBISD
support.” Under the heading “Qualifications,” the posting listed “Bachelor’s
Degree in engineering, business administration, facilities management or
related field.”
      At the prompting of two other facilities department employees, Albert
Autry applied for the new position. Autry had joined the FBISD facilities
department two years earlier, in 2006. In his capacity as an operations area
supervisor, Autry managed the custodial staffs of at least sixteen school
buildings. Autry also administered the payroll, investigated accidents, and
managed each building’s custodial budget and supplies. Prior to starting work
at FBISD, Autry spent eleven years as an area manager in the Cypress-
Fairbanks Independent School District (“CFISD”). In 2002, while employed by
CFISD, Autry earned a bachelors degree in social work from Prairie View A&M
University in Texas. Before joining CFISD, Autry served for twenty-two years
in the Navy, twice receiving Navy achievement medals for outstanding
leadership.
      At some point in late October 2008, facilities director Johnson and a
committee of FBISD facilities department employees met with Autry to discuss
his application for the support manager job opening.          However, FBISD
ultimately awarded the new position to Jo Ann Baker. Baker is Caucasian and
has no formal education beyond the high-school level. At the time FBISD offered

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Baker the job, she apparently had no prior connection to the district, having
worked for eleven years as an escrow coordinator for a title insurance company.
The record does not reflect what Ms. Baker’s prior work as an escrow coordinator
entailed.
       On November 10, 2008, Autry lodged a complaint with the Equal
Employment Opportunity Commission (“EEOC”), asserting that FBISD’s
decision to offer the new support manager position to a less-qualified Caucasian
woman was racial. On October 18, 2010, the EEOC issued Autry a right-to-sue
letter, and on January 13, 2011, Autry initiated the instant litigation in the
Southern District of Texas. In his complaint, Autry claimed that FBISD denied
him the promotion because of his sex and race in violation of Title VII, also
asserting an age-discrimination claim under the Age Discrimination in
Employment Act.
       On April 11, 2011, the district court entered an order dismissing Autry’s
age- and sex-discrimination claims. Thereafter, FBISD moved for summary
judgment on Autry’s race-discrimination claim. At a hearing held on July 13,
2011, the district court orally ruled that Autry would “take nothing” and invited
the school district to move for attorneys’ fees pursuant to § 706(k) of Title VII.
FBISD took the court’s invitation, and on August 8, 2011, the court issued a final
order granting FBISD’s motion for summary judgment and awarding the school
district $24,380.50 in attorneys’ fees. By separate opinion, the district court
explained its fee award, reasoning that Autry’s claims were “frivolous,
unreasonable, and groundless.” Autry appeals both the summary judgment
ruling and the award of attorneys’ fees.1

       1
         FBISD insists that Autry has waived his right to appeal the fee award by failing to
raise the issue in his brief. We disagree. Autry’s arguments for reversing the district court’s
award of summary judgment are, a fortiori, arguments that his discrimination claim was not
frivolous. Moreover, Autry expressly states in his brief that the “[a]ward of attorney’s fees was
not warranted on the facts.”

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                                              II.
      We begin by reviewing de novo the district court’s award of summary
judgment to FBISD, applying the familiar McDonnell-Douglas burden-shifting
framework that governs Title VII race-discrimination claims.                   Under that
framework, a plaintiff challenging a failure to promote must first establish a
prima facie case, demonstrating that (1) he was not promoted, (2) he was
qualified for the position he sought, (3) he fell within a protected class at the
time of the failure to promote, and (4) the defendant either gave the promotion
to someone outside of that protected class or otherwise failed to promote the
plaintiff because of his race.2 If the plaintiff meets this obligation, he raises an
inference of unlawful discrimination, which shifts the burden of production to
the defendant to proffer a legitimate, nondiscriminatory reason for not
promoting the plaintiff.3 If the defendant satisfies this burden, the onus shifts
back to the plaintiff to prove either that the defendant’s articulated reason is
merely a pretext for race discrimination (the pretext alternative), or that the
defendant’s reason, while true, is only one of the reasons for its decision, and
another “motivating factor” is the plaintiff’s protected characteristic (the mixed-
motives alternative).4
      FBISD concedes that Autry has established a prima facie race-
discrimination case but asserts that it hired Baker through a nondiscriminatory,
merit-based selection process.           In support of its claim, FBISD submitted
affidavits and documentation that establish the following facts: In October 2008,
facilities director Johnson and a facilities department employee screened fifteen
applications for the support manager position, meeting with each applicant and

      2
          Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002).
      3
          Id.
      4
          Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (5th Cir. 2011).

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ultimately selecting Autry, Baker and two other individuals as finalists.
Thereafter, Johnson convened a committee including himself and six facilities
department employees — two of whom were African American — to interview
the four finalists. After the interviews, the seven-member committee met to
discuss the candidates and their respective qualifications and interview
performances. Approximately one week after the interviews, Johnson created
a chart on which he set forth each committee member’s rank ordering of the four
finalists, from one (most preferred) to four (least preferred). Johnson based the
committee members’ rank orderings on his understanding of their preferences.
He then approached each of the committee members, asking them to
acknowledge their rank ordering on the chart. As Baker had the lowest point
total, Johnson awarded the new position to her.
       Because FBISD has met its burden to proffer a legitimate, non-
discriminatory reason for hiring Baker in lieu of promoting Autry,5 this case
hinges on whether Autry has made the evidentiary showing to carry his burden
at stage three of the McDonnell-Douglas inquiry. Autry argues that FBISD’s
proferred reason is pretextual, urging that he was more qualified for the support
manager position than Baker. In the Title VII failure-to-promote context, we
have found pretext on a showing that the unsuccessful employee was “clearly
better qualified” than the successful candidate.6                 Here, though Autry’s
qualifications are sterling, Autry failed to introduce any evidence shedding light
on Baker’s credentials or work experience. Indeed, in his deposition, Autry
conceded that he had never met Baker, did not know how Baker had performed
in her interview, had no idea what Baker’s former job as an escrow officer

       5
        Price, 283 F.3d at 720 (“The defendant’s burden during th[e] second step is satisfied
by producing evidence, which, taken as true, would permit the conclusion that there was a
nondiscriminatory reason for the adverse action.”).
       6
           Id. at 723.

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                                       No. 11-20639

entailed, and had never seen Baker’s résumé. While Autry points out that Baker
did not satisfy the job posting’s degree qualification, Autry’s bachelors degree in
social work also failed to satisfy that requirement.7 Moreover, FBISD introduced
an affidavit from the human relations employee who posted the support manager
job opening, who verified that he erroneously failed to indicate that degree-
equivalent work experience was to be an acceptable alternative.8 Ultimately, the
record gives a trier of fact no reasonable basis upon which to compare Autry and
Baker’s respective qualifications for the support manager position, and Autry’s
first theory of pretext must therefore fail at the summary judgment stage.
       Autry also argues that FBISD’s purportedly meritocratic, committee-based
selection process was a sham, urging that the process was inconsistent with the
district’s established procedures and suggesting that facilities director Johnson
held absolute control over the ultimate hiring decision. A Title VII plaintiff can
establish pretext by presenting evidence that his employer’s proffered
explanation for an adverse employment decision is “false or unworthy of
credence.”9 In this case, Autry’s allegations of procedural irregularities are
unsubstantiated in the record,10 and would not be conclusive of pretext even if



       7
        FBISD’s job posting noted that support manager position requires a “Bachelor’s
Degree in engineering, business administration, facilities management or related field.”
(emphasis added.)
       8
        FBISD also introduced a job posting for a similar facilities management position,
published on the same date as the support manager opening, that correctly contains the
equivalency option.
       9
           Vaughn, 665 F.3d at 637.
       10
         For example, Autry reasons that facilities director Johnson could not have properly
interviewed all fifteen applicants in a single day, as supposedly sworn in Johnson’s affidavit.
But Johnson’s affidavit does not state that he interviewed all fifteen candidates on the same
day. Similarly, Autry complains that the facilities employee who assisted Johnson with the
screening process was not qualified to serve on the screening panel. But Autry points to no
record support for this naked allegation, and we could find none.

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accepted as true.11 Nor does the summary judgment record contain any evidence
to contradict FBISD’s affidavits and documentation, which establish that
Johnson offered Baker the support manager position because the facilities
department hiring committee had determined that she was the most qualified
finalist for the position.12 Sheer speculation aside, the record gives a reasonable
juror no reason to doubt FBISD’s version of events.
       Autry’s only other evidence that race played a role in FBISD’s hiring
decision comes from certain comments allegedly made by facilities director
Johnson at and around the time of Autry’s October 2008 interview. We have
held that comments may be circumstantial evidence of discrimination if they
reflect discriminatory animus and are uttered by a person who wields influence
over the challenged employment action.13 In the present case, Autry testified
that during his interview, Johnson noted that President Obama “will ruin the
damn country if he gets elected.” Johnson submitted an affidavit in which he
denies making the comment. But even assuming Autry’s deposition testimony
is accurate, Autry himself admitted that Johnson’s comment was political, not
racial, in nature.




       11
            See E.E.O.C. v. Texas Instruments, Inc., 100 F.3d 1173, 1182 (5th Cir. 1996).
       12
          The EEOC issued a letter of determination finding that Johnson had made the
ultimate decision to hire Baker and concluding that FBISD had “violated Title VII by hiring
a Caucasian applicant who did not meet the minimum qualifications for the vacancy
announcement.” Autry does not reference the contents of the letter in his brief, nor was it part
of the record before the district court when it orally ruled on FBISD’s motion for summary
judgment. Even if Autry had properly introduced the letter into the summary judgment
record, the letter would be insufficient to create a fact issue for trial, as it is relies on hearsay
and is plainly contradicted by the competent summary judgment evidence. E.g., Cruz v.
Aramark Services, Inc., 213 Fed. Appx. 329 (5th Cir. 2007); Wright v. Columbia Women &
Children’s Hosp., 34 Fed. App’x. 151 (5th Cir. 2002).
       13
         Reed v. Neopost USA, Inc., — F.3d — , 2012 WL 5476909 at *3 (5th Cir. 2012) (citing
Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226 (5th Cir.2000)).

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       Autry also testified that shortly after his October 2008 job interview,
Mario Carrera — one of the committee members present at the interview — told
Autry that Johnson had said that “[i]f President Obama’s elected, they’re going
to have to take the Statute of Liberty and put a piece of fried chicken in his [sic]
hand.” While FBISD challenged the statement as rank hearsay, the district
judge rejected it as political, observing that “no black individually and no blacks
collectively owns [sic] the sensitivity rights to fried chicken or anything else.”
The district judge’s comment misses the mark, as it overlooks the racial
component of Johnson’s alleged statement.14 However, we must agree with
FBISD (and the district court’s implicit ruling) that Autry’s deposition testimony
was without force in the face of a motion for summary judgment.
       After searching the record and liberally construing Autry’s arguments on
appeal, we find no competent evidence from which a reasonable juror could infer
that FBISD’s decision to hire Baker in lieu of promoting Autry was motivated
by impermissible racial considerations.


                                              III.
       We next assess whether the district court abused its discretion in
awarding FBISD attorneys’ fees under § 706(k) of Title VII.15 As Congress
enacted § 706(k) in part to “promote the vigorous enforcement of the provisions
of Title VII,” the Supreme Court has held that a successful defendant can only
recover §706(k) fees if “the plaintiff’s action was frivolous, unreasonable, or


       14
         Cf. Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006) (holding that the term “boy”
may be evidence of racial animus, depending on the context in which it is used). When Autry’s
lawyer tentatively suggested that Johnson’s alleged reference to fried chicken was “a
long-standing racial slur,” the district judge rejoined that “[t]hat’s really surprising to Colonel
Sanders.”
       15
         Cf. Jason D.W. v. Houston Indep. Sch. Dist., 158 F.3d 205, 208 (5th Cir.1998) (“We
review an award of attorneys’ fees for abuse of discretion.”).

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without foundation.”16 The Court has cautioned district judges to “resist the
understandable temptation to . . . conclud[e] that, because a plaintiff did not
ultimately prevail, his action must have been unreasonable or without
foundation.”17 In this case, Autry’s deposition testimony is forthright, and
though his submissions ultimately prove inadequate to withstand a motion for
summary judgment, we cannot agree that his Title VII discrimination claim was
“frivolous, unreasonable or without foundation.”18 The district court’s fee award
constitutes an abuse of discretion.


                                           IV.
       The summary judgment award to FBISD is AFFIRMED. The award of
attorneys’ fees to FBISD is VACATED.




      16
           Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421–22 (1978).
      17
           Id.
      18
          Id. at 421. Though the EEOC’s letter of determination in this case may not have
been in the summary judgment record, it was before the district court on FBISD’s motion for
attorneys’ fees, providing further evidence that Autry’s prosecution of his claim was not
baseless.

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