     Case: 14-20628      Document: 00513121402         Page: 1    Date Filed: 07/20/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-20628                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                            July 20, 2015
CHARLES H. JULIAN,                                                         Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

CITY OF HOUSTON,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             U.S.D.C. 4:12-CV-02973


Before STEWART, Chief Judge, and ELROD and HIGGINSON, Circuit
Judges.
PER CURIAM:*
       Charles Julian appeals the district court’s partial grant of summary
judgment on his age and race discrimination and retaliation claims in favor of
the City of Houston. We AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-20628
                                           I.
      Julian is a long-time veteran of the Houston Fire Department (HFD or
the Department). Born in 1942, Julian joined the Department in 1968. By
1977, he had been promoted to Captain, and by 1980, he was serving as Senior
Captain. In 1984, he was promoted to District Chief. After unsuccessfully
applying for further promotions, Julian filed two successful lawsuits against
HFD alleging employment discrimination. See Julian v. City of Houston, No.
H-99-0628 (S.D. Tex. Mar. 1, 1999); see also Julian v. City of Houston, No. H-
06-0220 (S.D. Tex. Jan. 20, 2006). Throughout the aforementioned litigation
and this current suit, Julian claims that he has continuously failed to advance
within the Department. Specifically, Julian alleges that he sought several
times the position of Acting Deputy Chief/Shift Commander between 1992 and
2011, but was never promoted to that position.
      Soon after Annise Parker became Mayor of Houston in 2010, she
initiated a search for a new Fire Chief for the Department. The City hired an
outside firm, Emergency Services Consulting, Inc. (ESCI), to conduct the
search and to present the Mayor with two candidates. 1 Mayor Parker told
ESCI officials that she wanted a national search, with no preference for either
an internal or external candidate.
      In January 2010, Julian applied for Fire Chief, sending his application
directly to Mayor Parker’s office. Julian again submitted his application for
Fire Chief, this time to ESCI, in accordance with the City’s formal Fire Chief
selection process, on June 18, 2010. In all, 24 applicants were considered for
the Fire Chief position. ESCI first narrowed the field to 12 semifinalists based
on their applications and written answers to the submitted questions. Julian



      1  Mayor Parker was responsible for appointing the Fire Chief, with confirmation by
the City Council, but had no part in the candidate selection process.
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was not selected as a semifinalist; therefore, his application did not advance
beyond the initial stage. ESCI then conducted telephone interviews with the
semifinalists and narrowed the pool to seven finalists. From that group, ESCI
selected two applicants to submit to Mayor Parker: Rick Flanagan and Terry
Garrison.   Both are younger than Julian.       On August 25, 2010, the City
announced that Terry Garrison was chosen as Houston’s next Fire Chief.
      In November 2010, Garrison announced that he would create a new,
eighth Deputy Chief/Shift Commander position. In a memorandum circulated
that month, the Acting Executive Assistant Fire Chief announced that HFD
would be accepting applications to temporarily fill the new Deputy Chief/Shift
Commander position, until a permanent replacement was hired.              Julian
applied for this position, but in December 2010, the position was awarded to
three candidates: Richard Mann, Mark Donovan, and Greg Lewis. All are
younger than Julian.
      Julian filed complaints with the Equal Employment Opportunity
Commission and the Texas Commission on Human Rights (TCHR) on
February 1, 2011, alleging that the City discriminated against him because of
his race and age and retaliated against him for his previous litigation against
the City. Due to this discrimination and retaliation, Julian alleges that: 1) he
received low performance evaluations since 2005; 2) he was denied the position
of Fire Chief in June 2010; 3) he had been denied Acting Deputy Chief/Shift
Commander positions from 1992–2011; and 4) he was denied the new Deputy
Chief/Shift Commander position in 2010. On June 4, 2012, Julian sued the
City concerning these employment decisions in state court under the TCHR
Act, Texas Labor Code §§ 21.001–21.556. The City removed the case to the
Southern District of Texas in October 2012, after Julian added allegations




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under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–17, and the
Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621–634. 2
        On June 6, 2014, the City filed a motion for summary judgment on all
claims. The district court denied summary judgment on Julian’s race and age
discrimination claims relating to the denial of his opportunity to “ride up” into
the newly-created eighth Acting Deputy Chief/Shift Commander position.
However, the district court granted summary judgment on the remaining
allegations, including the age discrimination and retaliation claims related to
Julian not being chosen as Fire Chief.
        On appeal, Julian only refutes the grant of summary judgment on the
age discrimination and retaliation claims related to the Fire Chief position and
argues that he established prima facie cases for both claims. He also argues
that the City failed to meet its burden of production in refuting these claims.
As such, he argues that summary judgment was improperly granted.
                                              II.
        We review the district court's grant of summary judgment de novo.
Jenkins v. City of San Antonio Fire Dep’t, 784 F.3d 263, 267 (5th Cir. 2015).
Summary judgment is warranted if no genuine issue of material fact exists and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
        Because Julian’s discrimination case is built on circumstantial evidence,
his claims must be analyzed according to the McDonnell Douglas Corp. v.
Green burden-shifting framework. 411 U.S. 792, 802 (1973). Pursuant to this
analytical framework, a plaintiff must first put forward a prima facie case of
discrimination, demonstrating that: 1) the plaintiff was a member of a



        2   Julian makes the same four claims under federal law as he alleged under the TCHR
Act.
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                                 No. 14-20628
protected group; 2) the plaintiff was qualified for the position in question; 3)
the plaintiff suffered an adverse employment action; and 4) the plaintiff was
replaced by someone outside his protected group or was treated less favorably
than other similarly situated employees outside the protected group.         See
McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007) (per curiam). If
the plaintiff establishes a prima facie case, the defendant must then proffer a
legitimate, non-discriminatory reason for the challenged employment action.
Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010). However, this
legitimate reason is rebuttable by the plaintiff’s evidence that the defendant’s
reason is merely a pretext for discrimination. See Wallace v. Methodist Hosp.
Sys., 271 F.3d 212, 220 (5th Cir. 2001).
                                      III.
      “A showing that the unsuccessful employee was ‘clearly better qualified’
(as opposed to merely better or as qualified) than the employees who are
selected will be sufficient to prove that the employer's proffered reasons are
pretextual.” Moss v. BMC Software, Inc., 610 F.3d 917, 922–23 (5th Cir. 2010)
(citing EEOC v. La. Office of Cmty. Servs., 47 F.3d 1438, 1444 (5th Cir. 1995)
(internal quotation marks omitted).
      On appeal, Julian claims that he was denied the Fire Chief position in
June 2010 because of his age. However, the City asserts that Garrison is more
qualified for the position than Julian because Julian lacked both a four-year
college degree and a graduate degree, which were “highly preferred” and
“desired,” respectively, while Garrison held both undergraduate and graduate
degrees. The City also points to Garrison’s prior Fire Chief experience—he had
served as Fire Chief in two other fire departments and had risen to the rank of
Assistant Chief in the Phoenix, Arizona Fire Department, where he had
worked for over thirty years. By contrast, the City claims that Julian has no
such experience. Julian does not contest that the City has met its burden of
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                                        No. 14-20628
production with this evidence but responds that the City’s reasons are merely
pretextual, claiming that he was, in fact, better qualified for the Fire Chief
position than Mr. Garrison and that procedural irregularities 3 in the selection
process show that the City’s reasons are false.
       Although demonstrating a prima facie case of age discrimination, Julian
has not demonstrated pretext because he has failed to refute the City’s
legitimate, nondiscriminatory reason for not choosing him for Fire Chief: he
was not “clearly better qualified (as opposed to merely better or as qualified)”
than Garrison. Moss, 610 F.3d at 922; see also Price v. Fed. Exp. Corp., 283
F.3d 715, 723 (5th Cir. 2002) (“[A] showing that the unsuccessful employee was
clearly better qualified is enough to prove that the employer’s proffered reasons
are pretextual.”).      Julian’s “attempt to equate years served with superior
qualifications . . . [is] unpersuasive[,]” Nichols v. Loral Vought Sys. Corp., 81
F.3d 38, 42 (5th Cir. 1996) (internal citation omitted), and we simply cannot
say that just because Julian has been a firefighter for the City for many years
that “no reasonable person, in the exercise of impartial judgment, could have
chosen [Garrison] over [Julian] for the [Fire Chief position]” when comparing
their qualifications. Deines v. Tex. Dep’t of Protective & Regulatory Servs., 164
F.3d 277, 280–81 (5th Cir. 1999). Further, although the evidence regarding
Garrison’s application was somewhat troubling, 4 it is insufficient to


       3 While a company’s “failure to follow internal procedures is generally not enough to
create a genuine issue of fact as to discriminatory motives,” Grubb v. Southwest Airlines, 296
F. App’x 383, 390 (5th Cir. 2008) (per curiam) (citing Moore v. Eli Lilly & Co., 990 F.2d 812,
819 (5th Cir. 1993)), “the nature of the internal policy and the extent of the deviation in the
particular case could give rise to evidence of pretext in light of all the other relevant facts,”
Martinez v. Tex. Workforce Comm’n–Civil Rights Div., No. A-11-CA-837, 2014 WL 931425, at
*7 (W.D. Tex. Mar. 10, 2014) (citing Machinchick v. PB Power, Inc., 398 F.3d 345, 355 (5th
Cir. 2005)).
       4 Julian contends that Garrison neither timely applied for the Fire Chief position, nor

underwent a telephone interview, which was a component of the selection process. Julian
further claims that Garrison removed himself from selection with a telephone call and then
later revived his application with another telephone call. However, ESCI’s witness
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                                       No. 14-20628
demonstrate pretext because it does not serve to cast any doubt on the
legitimate, nondiscriminatory reason the City has proffered for its decision:
that Garrison was better qualified for the Fire Chief position than Julian.
Thus, summary judgment was warranted as to Julian’s age discrimination
claim, under federal and state law, 5 regarding the denial of the Fire Chief
position.
                                             IV.
       An employer is also prohibited from taking an adverse employment
action against an employee because that employee filed an employment
discrimination charge or took other similarly protected action. See Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006).
       Julian argues that he was denied the Fire Chief position because he had
previously successfully sued the City for employment discrimination in the
HFD. The parties’ arguments hinge upon whether Julian established a prima
facie case for retaliation. However, assuming without deciding that Julian
established a prima facie case for retaliation, summary judgment was also
warranted on this claim.           Given the City’s legitimate, nondiscriminatory
reasons for its selection of Garrison—that Julian did not advance through
ESCI’s selection process and that Garrison was clearly better qualified for the
position than Julian—and, given that Julian makes the same pretextual
arguments he made for his age discrimination claim, he has failed to show




repeatedly stated that ESCI did indeed have a timely application from Garrison, and Julian
pointed to no rule prohibiting such revival of an application. Although this evidence may
raise a fact question as to whether the rules were bent regarding Garrison’s application, it is
insufficient to demonstrate pretext in light of the City’s legitimate, nondiscriminatory
reasons for not hiring Julian.
        5 Texas courts evaluate discrimination claims under the TCHRA using federal

employment discrimination law, as the Texas Legislature, in adopting the act, “intended to
correlate state law with federal law in employment discrimination cases.” AutoZone, Inc. v.
Reyes, 272 S.W.3d 588, 592 (Tex. 2008) (internal quotation marks and citation omitted).
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pretext on this claim as well. As such, summary judgment on this claim was
also warranted.
     We AFFIRM.




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