     Case: 12-20578       Document: 00512198953         Page: 1     Date Filed: 04/05/2013




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

                                                                            FILED
                                                                            April 5, 2013

                                     No. 12-20578                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



THERESA CALDWELL,

                                                  Plaintiff-Appellant,
v.

UNIVERSITY OF HOUSTON SYSTEM, UNIVERSITY OF HOUSTON–MAIN
CAMPUS, EDWARD CRAIG NESS, Individually and in his Official Capacity,
JOHN ANTEL, in his Official Capacity, and ELAINE CHARLSON, in her
Official Capacity,

                                                  Defendants-Appellees.



                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CV-2014


Before STEWART, Chief Judge, and OWEN and GRAVES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Theresa Caldwell (“Caldwell”) appeals the district
court’s grant of summary judgment to Defendants-Appellees on Caldwell’s
employment discrimination claims of both disparate treatment and disparate




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-20578

impact based on race and gender, pursuant to Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e-2.1 We AFFIRM.
                                             I.
       Caldwell is a black female of at least fifty-five years of age. She began
working for Appellee University of Houston System, University of
Houston–Main Campus (“the University”) as an office assistant in 1983. She
currently works as the Manager of Academic Fees in the Academic
Budgets/Administration and Provost Central Business Office. Throughout her
employment with the University, Caldwell consistently has received favorable
employment evaluations, although she has been counseled multiple times to
work on her interpersonal skills. Appellee Edward Craig Ness (“Ness”), the
Assistant Vice President of Academic Budgets and Administration, is Caldwell’s
direct supervisor and has been for over ten years.
       While Caldwell worked in the Provost Business Office as the Academic
Affairs Administrator, the University implemented a university-wide overhaul
of its job classification system in March 2009. The purpose of this overhaul was
to increase the fairness of the pay grade system. As a result, Caldwell’s job
assignment numerical pay grade was changed, along with forty-six other
employees.     Her job duties and salary were unaffected by this change in
classification.




       1
         The district court also dismissed Caldwell’s age discrimination claim under the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(a), and it granted summary
judgment to Appellees on Caldwell’s pay discrimination claim under the Equal Pay Act, 29
U.S.C. § 206(d). Caldwell has not challenged these rulings on appeal. She also has not
challenged the district court’s grant of summary judgment in favor of the three individually-
named Appellees in their individual and/or official capacities. Specifically, any passing
reference in Caldwell’s brief to her claims against Ness in his individual capacity is
insufficient to preserve these claims for review on appeal. Accordingly, all of the foregoing
claims are waived. See Turner v. Quarterman, 481 F.3d 292, 295 n.1 (5th Cir. 2007); see also
Fed. R. App. P. 28.

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      In December 2009, Ness eliminated Caldwell’s position of Academic Affairs
Administrator and created two positions in its place: Manager of Academic Fees
and Administrator of the Provost Business Office. Ness asked Caldwell to
assume the manager position, and Maura Capper, a white female, was selected
for the administrator position. Organizationally, the two positions are equal.
      Additionally, Caldwell applied, but was not hired, for four other positions
within the University:
            (1) In March 2009, Caldwell applied to be the Business
            Administrator for the College of Pharmacy. Shaki
            Commissariat, a white male, was hired instead, as he
            already had worked in the College of Pharmacy for two
            years as an accounting specialist, in addition to his
            sixteen years of other relevant experience.

            (2) In March 2010, Caldwell applied to be the College
            Administrator in the College of Natural Sciences &
            Mathematics. Joyce Collins was hired instead, and she
            is also a black female over the age of forty.

            (3) In April of 2010, Caldwell applied to be the
            Executive Director of Academic Budgets and
            Operations. Dr. Sabrina Hassumani was hired instead,
            and has more education than Caldwell.

            (4) In January 2011, Caldwell applied to be the
            Executive Director in the College of Arts and Sciences.
            Andrea Short was hired instead, having worked within
            that college for twelve years.

      On January 27, 2010, Caldwell filed charges against the University with
the Equal Employment Opportunity Commission (“EEOC”), which she
subsequently amended multiple times. On January 7, 2011, the EEOC issued
her a Notice of Right to Sue. The district court subsequently granted Appellees’
motion to dismiss Caldwell’s ADEA claim and Appellees’ motion for summary



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judgment on Caldwell’s remaining claims alleging race and gender
discrimination. Caldwell timely appeals.
                                         II.
      We review a district court’s grant of summary judgment de novo. Garcia
v. LumaCorp, Inc., 429 F.3d 549, 553 (5th Cir. 2005). “The court shall grant
summary judgment 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). “In deciding whether a fact issue has been created, the
court must view the facts and the inferences to be drawn therefrom in the light
most favorable to the nonmoving party.” Daniels v. City of Arlington, Tex., 246
F.3d 500, 502 (5th Cir. 2001) (citation omitted). However, “[i]f the record, taken
as a whole, could not lead a rational trier of fact to find for the non-moving party,
then there is no genuine issue for trial.” Dediol v. Best Chevrolet, Inc., 655 F.3d
435, 439 (5th Cir. 2011).
                                        III.
      On appeal, Caldwell alleges several Title VII claims against the
University. Specifically, she alleges that the University demoted her and failed
to promote her based on her race, and that it employs a neutral policy or practice
with a disparate impact on black women.
      Title VII makes it “an unlawful employment practice for an employer to
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race, color,
religion, sex, or national origin.”    42 U.S.C. § 2000e-2(a)(1).      Further, an
unlawful employment practice based on disparate impact is established under
Title VII only if, as relevant here,
             (i) a complaining party demonstrates that a respondent
             uses a particular employment practice that causes a
             disparate impact on the basis of race, color, religion,
             sex, or national origin and the respondent fails to

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                                   No. 12-20578

             demonstrate that the challenged practice is job related
             for the position in question and consistent with
             business necessity[.]

42 U.S.C. § 2000e–2(k)(1)(A)(i).
      Where a plaintiff offers no direct evidence of the defendant’s
discriminatory intent, we must evaluate proof of circumstantial evidence using
the familiar burden-shifting framework established in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). See Alvarado v. Tex. Rangers, 492 F.3d 605, 611
(5th Cir. 2007) (citation omitted). Under the McDonnell Douglas burden-shifting
framework:
             [A] plaintiff must first create a presumption of
             intentional discrimination by establishing a prima facie
             case. The burden then shifts to the employer to
             articulate a legitimate, nondiscriminatory reason for its
             actions. The burden on the employer at this stage is
             one of production, not persuasion; it can involve no
             credibility assessment. If the employer sustains its
             burden . . . the burden shifts back to the plaintiff to
             establish either: (1) that the employer’s proffered
             reason is not true but is instead a pretext for
             discrimination; or (2) that the employer’s reason, while
             true, is not the only reason for its conduct, and another
             motivating factor is the plaintiff’s protected
             characteristic.

Alvarado, 492 F.3d at 611 (internal quotations and citations omitted). While the
“intermediate evidentiary burdens shift back and forth under [the McDonnell
Douglas] framework, the ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff remains at all times
with the plaintiff.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143
(2000) (citation, internal quotation marks, and alterations omitted).
      Accordingly, a plaintiff can avoid summary judgment if the evidence, taken
as a whole, creates a fact issue either “(1) that the employer’s proffered reason


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is not true but is instead a pretext for discrimination; or (2) that the employer’s
reason, while true, is not the only reason for its conduct, and another ‘motivating
factor’ is the plaintiff’s protected characteristic.” Alvarado, 492 F.3d at 611
(citation omitted); see also Grimes v. Tex. Dep’t of Mental Health & Mental
Retardation, 102 F.3d 137, 141 (5th Cir. 1996) (citations omitted).
                                       IV.
      Caldwell has failed to establish a prima facie case on her demotion claim
because she has failed to present evidence that her job reclassification was a
demotion. To prove a prima facie case of discrimination based on demotion,
Caldwell must prove that she: (1) suffered a demotion; (2) she was qualified for
the position she occupied; (3) she was a member of a protected class at the time
of the demotion; and (4) she was replaced by a person outside of that protected
class. Crawford v. Formosa Plastics Corp., La., 234 F.3d 899, 902 (5th Cir. 2000)
(citations omitted). While Caldwell’s Academic Affairs Administrator position
was bifurcated into two separate positions, she received one of those positions,
and she maintained the same salary and benefits. She also received additional
job responsibilities, including duties related to tuition, fees, and budgetary and
financial matters that other employees previously handled. Moreover, Caldwell
actually received a higher salary than Capper, the white female who was
appointed to the second position.
      Further, even if Caldwell has demonstrated that the reclassification was
a demotion, summary judgment is proper nevertheless because the University
has articulated a legitimate reason for it, i.e., business necessity and
convenience. Caldwell’s supervisor, Ness, reassigned Caldwell because his
department needed only one person managing the accounts and academic fees,
and he needed Caldwell’s experience and skill set to refocus that area of his
office. Caldwell has failed to rebut that explanation or to demonstrate some
other evidence of discriminatory motive. Moreover, it is not our place to second-

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                                     No. 12-20578

guess an employer’s business decisions such at this one. See Waggoner v. City
of Garland, Tex., 987 F.2d 1160, 1165 (5th Cir. 1993) (citation omitted).
Accordingly, summary judgment was appropriate on Caldwell’s claim that she
was demoted based on her race.
      Caldwell also has failed to present evidence raising a fact issue on her
failure-to-promote claim.2 A plaintiff alleging that an employer failed to promote
her for a discriminatory purpose must prove that: (1) she is a member of the
protected class; (2) she sought a position for which she was qualified; (3) she was
rejected for the position; and (4) after she was rejected, the employer continued
to seek applicants with the plaintiff’s qualifications. Davis v. Dall. Area Rapid
Transit, 383 F.3d 309, 317 (5th Cir. 2004). Here again, Caldwell must establish
a prima facie case of discrimination, and the University then must articulate a
legitimate, nondiscriminatory reason for its actions. See Price v. Fed. Express
Corp., 283 F.3d 715, 720 (5th Cir. 2002).              An employer’s choosing the
best-qualified    candidate     “constitutes    a   legitimate,     non-discriminatory
justification for its failure to promote [an employee].” Manning v. Chevron
Chem. Co., LLC, 332 F.3d 874, 881-82 (5th Cir. 2003) (citation omitted). If the
defendant meets this burden, then the plaintiff must offer sufficient evidence
that the defendant’s reason is not true, but is instead a pretext for
discrimination. See Price, 283 F.3d at 720.
      Caldwell argues that she was clearly more qualified than Commissariat,
who was selected for the College of Pharmacy Business Administrator position.
To show that she was clearly more qualified and to raise a fact question as to
whether discrimination was a factor in the University’s hiring decision, Caldwell
“must present evidence from which a jury could conclude that ‘no reasonable
person, in the exercise of impartial judgment, could have chosen the candidate

      2
        On appeal, Caldwell challenges only her non-selection for the position of College
Business Administrator, School of Pharmacy.

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selected over the plaintiff for the job in question.’” Moss v. BMC Software, Inc.,
610 F.3d 917, 923 (5th Cir. 2010) (citation omitted). “Unless the qualifications
are so widely disparate that no reasonable employer would have made the same
decision, any differences in qualifications are generally not probative evidence
of discrimination.” Id. (alterations, citations, and internal quotation marks
omitted).
      While Caldwell points to her twenty years of service at the University, the
University determined that her experience was less relevant than
Commissariat’s eighteen years of service, including his two years working in the
College of Pharmacy prior to his selection. Further, Caldwell offered no evidence
of discriminatory intent and failed to show either that the University’s proffered
reason for selecting Commissariat was unworthy of credence or that some other
evidence indicated discrimination was also a motivating factor. Accordingly, the
district    court   properly   granted   summary     judgment     on   Caldwell’s
failure-to-promote claim.
      Finally, Caldwell presented no competent summary judgment evidence of
the essential elements of a proper disparate impact claim. To establish a
disparate impact claim, a plaintiff must show a facially neutral employment
practice that disproportionately affects one racial group and that this disparity
cannot be justified by business necessity. See 42 U.S.C. § 2000e–2(k)(1)(A)(I).
Disparate impact claims do not require proof of discriminatory intent. Munoz
v. Orr, 200 F.3d 291, 299 (5th Cir. 2000). Rather, disparate impact claims “focus
on facially neutral employment practices that create such statistical disparities
disadvantaging members of a protected group that they are functionally
equivalent to intentional discrimination.” Id. (citation and internal quotation
marks omitted). Accordingly, a prima facie case of discrimination by disparate
impact requires that Caldwell: (1) identify the challenged employment practice
or policy, and pinpoint the University’s use of it; (2) demonstrate a disparate

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                                     No. 12-20578

impact on a protected group under Title VII; and (3) demonstrate a causal
relationship between the identified practice and the disparate impact. See
Gonzales v. City of New Braunfels, 176 F.3d 834, 839 n.26 (5th Cir. 1999)
(citations omitted).
      The district court concluded that Caldwell failed to identify a facially
neutral employment practice that disproportionately impacts black employees
at the University, or to proffer any statistical evidence demonstrating that such
practice has resulted in discrimination. Caldwell now alleges (apparently for the
first time on appeal) that the University engages in a routine practice of failing
to follow its own policies concerning reclassification of job positions, and that this
practice impacts black women more harshly than others. To support this
contention, Caldwell points to the “facts” that no black women at the University
earn more than $120,000 per year, supervise white males, or hold “Mid-Level
Management” positions. While the University disputes these allegations, even
if they are true, Caldwell presents no evidence or analysis to demonstrate how
the University’s failure to follow its own job reclassification procedures has
caused this alleged disparate impact on black female employees. See 42 U.S.C.
§ 2000e–2(k)(1)(A)(i) (requiring proof of “a particular employment practice that
causes a disparate impact on the basis of race” (emphasis added)); see also
Gonzales, 176 F.3d at 839 n.26. As Caldwell has provided no such evidence or
even attempted to explain this causal link, the district court properly granted
summary judgment on her disparate impact claim.3
                                           V.
      For the foregoing reasons, the district court’s grant of Appellees’ motion
to dismiss and motion for summary judgment is AFFIRMED.


      3
          Because we conclude that Caldwell failed to proffer sufficient summary judgment
evidence on her disparate impact claim, we do not address Appellee’s contention that she
failed to exhaust administrative remedies on this claim.

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