     Case: 13-40973      Document: 00512653817         Page: 1    Date Filed: 06/05/2014




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

                                    No. 13-40973
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                            June 5, 2014
                                                                            Lyle W. Cayce
RAYFORD ALEXANDER CALLOWAY,                                                      Clerk


                                                 Plaintiff - Appellant
v.

HEALTH & HUMAN SERVICE COMMISSION 1-1000, State of Texas;
DONALD CLARK; MARY MCCLAIN; HOPE MORGAN,

                                                 Defendants - Appellees




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                               No. 6:11-CV-00502


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
       Plaintiff Rayford Alexander Calloway, proceeding pro se, timely appeals
the dismissal of his lawsuit alleging claims for race and age discrimination. In
his lawsuit, Calloway alleges that he was subject to unlawful discrimination
based on his race and age, leading to his eventual termination.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-40973
       On a Rule 12(b)(6) motion, the district court dismissed Calloway’s claims
for age discrimination and hostile work environment, as well as his claims
against the individual defendants. The district court held that Calloway’s
complaint failed to allege that his age motivated an adverse employment
decision, and failed to allege that he was treated less favorably than a similarly
situated younger employee. It also held that Calloway failed to allege a hostile
work environment claim separate and apart from his retaliation claim.
Finally, the district court held that the suit could not be maintained against
the individual employees of the Texas Health & Human Services Commission
(“HHSC”).
       On HHSC’s motion for summary judgment, the district court dismissed
Calloway’s remaining claims. As to the remaining race discrimination claim,
the district court concluded that because Calloway presented no direct
evidence of discrimination, he had to proceed through the circumstantial
evidence McDonnell-Douglas 1 framework. 2 It held that Calloway failed to
establish all four elements of the prima facie case; specifically, the district
court concluded that Calloway failed to show that he was treated differently
than similarly situated employees outside of his protected class. Moreover, the
district court held that even if Calloway established the prima facie case, he
failed to demonstrate that HHSC’s non-discriminatory reason for terminating
him was pretextual. 3 Likewise, as to Calloway’s retaliation claim, the district


       1 McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973);
       2 “Under that framework, the plaintiff must first establish a prima facie case of
discrimination, which requires a showing that the plaintiff (1) is a member of a protected
group; (2) was qualified for the position at issue; (3) was discharged or suffered some adverse
employment action by the employer; and (4) was replaced by someone outside his protected
group or was treated less favorably than other similarly situated employees outside the
protected group.” McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007) (citing
Wheeler v. BL Dev. Corp., 415 F.3d 399, 405 (5th Cir. 2005)).
       3 Once “the plaintiff makes a prima facie showing, the burden then shifts to the

employer to articulate a legitimate, nondiscriminatory or nonretaliatory reason for its
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                                        No. 13-40973
court held that he failed to establish any causal connection between his
protected activity, here an internal EEOC complaint, and the adverse
employment action. 4 Accordingly, the district court dismissed these claims.
       On appeal, Calloway argues that the district court erred in dismissing
his claims. On de novo review of the district court’s Rule 12(b)(6) dismissal and
grant of summary judgment to defendants, we AFFIRM for essentially the
same reasons given by the district court.




employment action. The employer’s burden is only one of production . . . . If the employer
meets its burden of production, the plaintiff then bears the ultimate burden of proving that
the employer’s proffered reason is not true but instead is a pretext for the real discriminatory
or retaliatory purpose.” Id. at 557.
        4 “To establish a prima facie case of retaliation, the plaintiff must establish that: (1)

he participated in an activity protected by Title VII; (2) his employer took an adverse
employment action against him; and (3) a causal connection exists between the protected
activity and the adverse employment action.” Id. at 556–57 (citing Banks v. E. Baton Rouge
Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003)).
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