     Case: 14-31294      Document: 00513070557         Page: 1    Date Filed: 06/08/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-31294                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                             June 8, 2015
BRIAN TOVAL,                                                               Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

CHILDREN'S HOSPITAL,

              Defendant - Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:13-CV-5848


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Brian Toval appeals the district court’s grant of summary judgment
dismissing his Title VII claims against his former employer, Children’s
Hospital. We AFFIRM.
       Toval started working at Children’s Hospital in New Orleans in 1991 as
a medical technologist.         In 1999, he became a systems analyst in the



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-31294
Information Technology (“IT”) department. In 2002, he was promoted to the
position of senior systems analyst. Annette Perilloux and Tammy Reites were
Toval’s supervisors. Toval is black; Perilloux and Reites are white.
      In 2008, Toval met with Reites to express several complaints.           The
details of that meeting are not in the record. In August 2010, Toval told
Perilloux that he wanted to apply for the supervisory project team lead
position, which he had heard was to be filled. Perilloux informed Toval that
the position did not yet exist. But on November 9, 2010, Perilloux announced
that the project team lead position had been filled by another senior systems
analyst, Rhonda Zimmer. Children’s Hospital hired Zimmer, who is white,
without an interview and without announcing the opening to other analysts.
      Two days later, Toval filed a grievance with Doug Mittelstaedt in the
human resources department, claiming that he was more qualified for the
position and should have been selected over Zimmer.           After speaking to
Perilloux and Reites, Mittelstaedt concluded that Toval’s claims were
unfounded. Toval responded to Mittelstaedt that he “had to conclude” that he
was not promoted because “he is a [b]lack man.”            Toval alleges that he
thereafter endured extensive retaliation through public humiliation, heavy
workloads, and excessive scrutiny of his work.
      In June 2011, Toval started suffering from anxiety and depression. In
August, he took medical leave to address those conditions. On June 13, before
taking leave, Toval filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”), asserting that Children’s
Hospital discriminated against him by denying him a promotion because of his
race and in retaliation for his 2008 complaints. While on leave, Toval accepted
employment elsewhere and, in November, he resigned from Children’s
Hospital. Two days before resigning, Toval submitted a letter to the EEOC
(“November letter”) stating that he had resigned from his employment and
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                                       No. 14-31294
wanted to pursue his case. He also asserted that he had been retaliated
against “for filing a grievance with the hospital and with [the] EEOC.” The
EEOC never addressed the significance of the letter.
        In June 2013, Toval received a right-to-sue letter. He filed this suit in
the United States District Court for the Eastern District of Louisiana in
September, seeking damages for the claims asserted in the initial EEOC
charge and in the subsequent letter. The district court granted Children’s
Hospital’s motion for summary judgment and dismissed Toval’s claims with
prejudice. The court held that it did not have jurisdiction over the retaliation
claims that were raised for the first time in the November letter because the
EEOC never fully investigated those claims. It also held that even if Toval
could demonstrate a prima facie case of discriminatory failure to promote, he
could not rebut Children’s Hospital’s legitimate, non-discriminatory reason for
not promoting him. 1 Toval appeals.
                                      DISCUSSION
        We review a grant of summary judgment de novo, applying the same
standards as the district court. E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 694
(5th Cir. 2014) (citations omitted). Summary judgment is appropriate “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).
   I.       Failure to exhaust
        Toval argues that the district court erred in holding that he failed to
exhaust his administrative remedies with respect to the retaliation claims first
raised in the November letter. In the district court, Toval conceded that the
relevant claims were not raised in the initial EEOC complaint but argued that


        The district court also dismissed Toval’s retaliatory failure-to-promote claim, holding
        1

that Toval failed to show causation between his complaints to Reites in 2008 and the failure
to promote. Toval does not appeal that ruling.
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                                    No. 14-31294
they were sufficiently connected to the original EEOC claims that they related
back to the original charge. The district court rejected that argument, holding
that the new claims were actually “additions,” not amendments, because they
were based on largely new facts that occurred after the original EEOC charge
was filed. See Hornsby v. Conoco, Inc., 777 F.2d 243, 247 (5th Cir. 1985). Toval
does not challenge the district court’s reasoning, thus waiving review of the
district court’s ruling that the November letter was not an amendment. See
Davis v. Signal Int’l Tex. GP, L.L.C., 728 F.3d 482, 490 (5th Cir. 2013) (citation
omitted). Toval now asserts an entirely new argument, namely, that the
November letter was a “new charge” that the EEOC failed to investigate.
Therefore, he argues, he should not be penalized for the EEOC’s failures. Toval
has waived review of this argument by raising it for the first time on appeal.
See Lofton v. McNeil Consumer & Specialty Pharm., 672 F.3d 372, 381 (5th
Cir. 2012) (citation omitted).
   II.      Discriminatory failure to promote
         Toval also contends that the district court erred in holding that he failed
to rebut Children’s Hospital’s legitimate, non-discriminatory reason for
declining to promote him.          A Title VII discrimination claim based on
circumstantial evidence is analyzed using the familiar McDonnell Douglas
burden-shifting framework. Davis v. Dallas Area Rapid Transit, 383 F.3d 309,
316–17 (5th Cir. 2004) (citation omitted). To survive summary judgment, a
plaintiff must first present evidence of a prima facie case of discrimination. Id.
at 317 (citation omitted). If the plaintiff presents a prima facie case, the burden
then shifts to the employer to articulate a legitimate, non-discriminatory
reason for the underlying employment action. Id. (citation omitted). If the
employer satisfies that burden, the plaintiff must then show that the
employer’s proffered reason was mere pretext for racial discrimination. Id.
(citations omitted).
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                                  No. 14-31294
      To satisfy his burden of establishing a prima facie case of discriminatory
failure to promote, Toval was required to show that: (1) he is a member of a
protected class, (2) he sought and was qualified for the position, (3) he was
rejected for the position, and (4) the employer promoted an applicant with his
qualifications. Id. (citation omitted). Here, the district court held that genuine
issues remained regarding whether Toval was qualified for the position. The
court noted that Toval had consistently received positive performance reviews,
but that Toval’s supervisors had subsequently stated in depositions that Toval
had repeatedly had problems communicating with other employees and had
difficulty managing small projects. Because of the conflicting evidence, the
district court held that genuine issues remained.
      The court then held that even assuming arguendo that Toval had
established a prima facie case, Children’s Hospital had provided a legitimate,
non-discriminatory reason for its failure to promote.         The district court
accepted Children’s Hospital’s assertion that it promoted Zimmer because she
was more qualified for the job. That assertion was based on the fact that
Zimmer had worked for the hospital for over twenty years, including in the IT
department, held a degree in management, had significant managerial
experience, and had successfully managed IT projects.
      Once Children’s Hospital provided a legitimate, non-discriminatory
reason for its failure to promote, the burden shifted back to Toval to show that
the proffered reason was pretextual. A plaintiff may establish pretext by
showing “that a discriminatory motive more likely motivated” the employer’s
decision or that the employer’s explanation is “unworthy of credence.” Wallace
v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001) (quotations and
citation omitted).
      The district court held that Toval failed to make the required showing.
First, the court rejected Toval’s attempt to prove pretext by undermining
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                                 No. 14-31294
Zimmer’s qualifications. The court explained that while Zimmer had less IT
education and experience than Toval, she had substantial managerial
experience and knowledge. Toval failed to show that he had any significant
managerial experience or education.        Second, the court refused to accept
Toval’s attempt to prove pretext by pointing to Children’s Hospital’s failure to
post the opening on an HR bulletin board, as required by written hospital
policy. The policy had not been substantially revised since it was enacted in
the 1980s; Toval admitted that the practice was abandoned in 2007.
      Toval challenges only the district court’s ruling on pretext. He urges that
he has produced sufficient evidence to show that Children’s Hospital’s
proffered reason is not worthy of credence. First, Toval argues that he has
shown that he was clearly more qualified than Zimmer.            An employee’s
showing that he was “clearly better qualified is enough to prove that [his]
employer’s proffered reasons are pretextual.” Price v. Fed. Express Corp., 283
F.3d 715, 723 (5th Cir. 2002) (citations omitted). Showing that two candidates
are similarly qualified is insufficient. Id. (citation omitted). Instead, “the
losing candidate’s qualifications must leap from the record and cry out to all
who would listen that he was vastly – or even clearly – more qualified for the
subject job.” Id. (quotations and citation omitted). Toval has failed to meet
that burden. While Toval does have more formal IT education, Zimmer has far
more managerial education and experience. Because the project team lead
position is primarily a managerial position, Toval has failed to show that his
additional IT education made him “clearly better qualified.”
      Next, Toval asserts that because the district court found that a genuine
issue existed regarding whether he was qualified for the job, the court should
have also found that a genuine issue existed with respect to pretext. Toval
contends that “[c]ourts have recognized that it is possible for strong evidence
of a prima facie case to present a factual issue on pretext.” Though that may
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be possible, we conclude that no such factual support exists here. Whether a
plaintiff has established a prima facie case of discrimination and whether he
has shown pretext are two separate inquiries. Though we accept that a prima
facie case was shown, we agree there is no genuine dispute of material fact
regarding pretext.
     AFFIRMED.




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