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

                                                                            FILED
                                                                           August 9, 2013
                                       No. 12-51123
                                                                           Lyle W. Cayce
                                                                                Clerk
CURTIS L. HINER,

                                                  Plaintiff–Appellant
v.

JOHN M. MCHUGH, Secretary of the Department of the Army,

                                                  Defendant–Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:11-CV-184



Before HIGGINBOTHAM, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
       Curtis Hiner, an African-American civilian U.S. Army employee, brought
a Title VII discrimination action against John McHugh, the Secretary of the
Army (“the Army”), alleging that he was denied a promotion because he is black
and that he had experienced a racially hostile workplace environment. The
district court granted summary judgment in favor of the Army on all claims, and
Hiner appealed. Because Hiner has failed to establish that the reasons given for
his non-promotion were pretextual and because the circumstances he alleges do


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-51123

not rise to the level of a hostile work environment, we affirm the decisions of the
district court.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       Hiner is a GS-13-equivalent civilian employee of the Department of the
Army. Since 2006, he has held the position of Chief of the Administration,
Logistics and Service Support Division in the Civil Support Training Activity
(“CSTA”) at Fort Sam Houston, Texas.1 On January 15, 2009, Joseph Hunt, the
director of CSTA, notified all eligible employees that a new Division Chief
position would soon be opening and that any interested employee should submit
a resume for consideration. Division Chiefs are GS-14 employees, and in this
case, the Division Chief’s job duties would include training and providing
support to state National Guard Weapons of Mass Destruction, Chemical,
Biological, Radiological/Nuclear, and Explosive (“CBRNE”) Civil Support
Response Teams.
       Hunt’s supervisor had authorized Hunt to execute “management-directed
reassignments,” of which the filling of the Division Chief position was one.
Management-directed reassignments are “noncompetitive,” which meant that
Hunt was authorized to select a candidate unilaterally.                 However, in an
apparent abundance of caution, Hunt convened a three-person selection panel,
similar to those used in “competitive” actions, to fill the position. The panel
Hunt chose consisted of three white males: William Sherman, William Havlic,
and Hunt himself. The same three people had comprised the panel that in 2006
had selected Hiner for his current GS-13 position. Neither Sherman nor Havlic
is in Hiner’s chain of command.              Jesus Daniel Ramirez, Hiner’s direct
supervisor, assembled the submitted resumes but did not serve on the panel or
otherwise evaluate candidates.

       1
        CSTA provides training, evaluation oversight, and support for various National Guard
groups and other teams who respond to mass disasters.

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                                   No. 12-51123
      Five candidates submitted resumes and were reviewed for the position:
Hiner, John Branum, Ed Hrna, James Barkley, and Mark Welch. Hiner,
Barkley, and Welch are black; Branum and Hrna are white. Each panel member
independently ranked each of the five candidates on a five-point scale in seven
categories, for a total of 105 possible points per candidate. After the panel
members’ scores for each of the candidates had been added together, the results
were as follows:
                   Branum     96
                   Barkley    91
                   Welch      80
                   Hrna       76
                   Hiner      57.5
The panel members were unanimous in their ranking of Branum as the best-
qualified, apparently based on Branum’s CBRNE, operations, and leadership
experience, as well as his time as a Marine Corps Officer. The panel was also
unanimous in its choice of Barkley as the second-best-qualified candidate. On
January 22, 2009, Hunt submitted his recommendation that Branum be offered
the position. When the Civilian Personnel Advisory Center (“CPAC”) received
the recommendation, it notified Hunt that anyone being promoted to a GS-14
position was required to have at least a year’s experience in a GS-13 position.
CPAC apparently notified Hunt because the version of Branum’s resume that
CPAC accessed was outdated and did not indicate that he had fulfilled that
requirement. There is some confusion as to what then took place, but it appears
Branum subsequently submitted his current resume—the same one he had
submitted for review by the selection panel—that reflected his time as a Marine


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Corps battalion commander, which CPAC viewed as sufficient to qualify him for
the position. After Hiner indicated that he had concerns about the way the
selection process had been conducted, Hunt’s supervisor also independently
reviewed and approved Hunt’s recommendation that Branum be hired as
Division Chief.
      When another Division Chief position opened in mid-February, rather
than conduct a new candidate search, Hunt used the same panel rankings to
select someone for the position. Barkley, who had been unanimously ranked
second and therefore as the first alternate, was chosen for the second Division
Chief position. Barkley and Branum were both assigned to their new Division
Chief positions on March 29, 2009.
      During several conversations that took place after the selection had been
made, Ramirez allegedly told Hiner, “Joe [Hunt] doesn’t like your black ass.
He’s going to fire your black ass.” Hunt apparently never used that language
himself.
      On April 23, 2009, Hiner filed an Equal Employment Opportunity
Commission (“EEOC”) complaint alleging he had been passed over for the
Division Chief position because of his race.2 After he filed his complaint, there
occurred a number of events that ultimately led Hiner to amend his complaint
to include the additional claim that he had been subjected to a hostile work
environment.
      First, on May 14, Hiner received a fax indicating that two CSTA employees
had been exposed to radiation. While Hunt and Ramirez were discussing the


      2
         Hiner’s complaint initially indicated that Hiner was also complaining of
discrimination on the basis of his sex, but the claim was later withdrawn.

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matter, Hiner received a second fax about the incident. When Hiner went to
discuss the fax with Hunt, Hunt allegedly snatched the fax from Hiner and said,
“Well, let me read the damn thing.” Hunt later apologized to Hiner for swearing.
      Second, in June 2009, Hiner experienced an increase in his workload
related to intake and processing for newly hired CSTA personnel. Other CSTA
employees also saw an increase in their work duties as a result of this
organizational growth. Hiner complained to Ramirez about the amount of work
he had, and eventually additional staff was hired to help Hiner with his duties.
      Third, in late June 2009, Hiner requested temporary duty assignment
(“TDY”) so that he could assist another Division Chief on an upcoming trip to
Puerto Rico. Initially, Ramirez gave Hiner permission to go, but he later asked
Hiner why he was going on TDY when he was having difficulty fulfilling his
existing work duties. Ultimately, Ramirez formally denied Hiner’s TDY request
after learning it would be less expensive to send someone from Atlanta to Puerto
Rico than to send Hiner.
      In July 2009, citing these three incidents, Hiner amended his EEOC
complaint in order to make the additional claim that he had experienced a
hostile work environment, which he alleged was inflicted both because of his
race and in retaliation for his having filed an EEOC claim. On May 18, 2010,
following an investigation and a fact-finding conference, the Administrative
Judge assigned to Hiner’s case found in favor of the Army. The Army adopted
the Administrative Judge’s decision as its Final Agency Decision, and the EEOC
Office of Federal Operations affirmed that Final Agency Decision on December
1, 2010.




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      On March 4, 2011, Hiner sued the Army in the Western District of Texas
for, inter alia, violations of Title VII. In his complaint, he reiterated his claims
that he was not offered the Division Chief position because of his race and that
he was subjected to a hostile work environment from May 14 to June 29, 2009.
Hiner sought damages for backpay and mental anguish, employment in a GS-14
position, and attorney’s fees. The Army filed a motion for summary judgment
on June 29, 2012, asking the court to dismiss all of Hiner’s claims.
      The district court granted the Army’s summary judgment motion in full.
With respect to Hiner’s non-selection claim, the court found that Hiner was
unable to demonstrate that the Army’s proffered reason for his non-promotion
was pretextual. With respect to Hiner’s hostile work environment claim, the
court found that none of the three specific incidents Hiner complained of were
motivated by Hiner’s race, and that neither those incidents nor Ramirez’s
admittedly inappropriate comments unreasonably interfered with his work
performance. Finally, the district court determined that Hiner’s retaliation
claim failed because he had not established a causal link between the three
incidents complained of and the filing of the EEOC complaint. Hiner timely
appealed the district court’s order.
                                II. DISCUSSION
A.    Standard of Review
      “We review a grant of summary judgment de novo, viewing all evidence in
the light most favorable to the nonmoving party and drawing all reasonable
inferences in that party’s favor.” Pierce v. Dep’t of the U.S. Air Force, 512 F.3d
184, 186 (5th Cir. 2007). “[S]ummary judgment is proper if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the


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                                  No. 12-51123
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (internal quotation marks omitted).
B.    Hiner’s Discrimination Claim
      When, as here, there is no direct evidence of discrimination, an employee
must meet his burden under the familiar McDonnell Douglas burden-shifting
framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973);
Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009). First, the plaintiff
must make out a prima facie case of racial discrimination. McDonnell Douglas,
411 U.S. at 802. To establish a prima facie case of racial discrimination in a non-
promotion context, the plaintiff must demonstrate that (1) he is a member of a
protected class, (2) he applied and was qualified for the position at issue, (3) he
was not selected, and (4) the position was given to someone outside the protected
class or the employer continued to seek applicants with the same qualifications
as the plaintiff. Id.; Medina v. Ramsey Steel Co., 238 F.3d 674, 680–81 (5th Cir.
2001). “If established, a prima facie case raises an inference of discrimination,
and the burden shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for its adverse decision. If the defendant presents
such a reason, . . . the plaintiff must offer evidence that the proffered reason is
a pretext for racial discrimination.” Patel v. Midland Mem’l Hosp. & Med. Ctr.,
298 F.3d 333, 342 (5th Cir. 2002) (citations omitted).
      The Army concedes that Hiner has made out a prima facie case of
discrimination.    In response, however, the Army presents a legitimate,
nondiscriminatory reason for Hiner’s non-promotion, namely that “the selection
panel determined in good faith that [Hiner] was not as qualified as the selectee.”


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                                  No. 12-51123
Therefore, the issue before this court is whether Hiner has offered sufficient
evidence that the Army’s articulated reason is mere pretext for racial
discrimination.
      In support of its proffered reason, the Army cites the fact that Branum was
unanimously deemed the most qualified by the panel members, while Hiner was
ranked the least qualified of all five candidates. The Army also emphasizes that
Barkley, who is also black, was hired for the second Division Chief position using
the same panel rankings. Hiner, meanwhile, offers essentially three arguments
to show pretext. First, he argues that not only was he objectively more qualified
than Branum, Branum did not even have the required qualifications for the job
because he had not worked in a GS-13 position for at least one year. Second, he
claims that Branum was “pre-selected” for the position, i.e., that Hunt planned
to hire Branum before the panel reviewed the other four candidates’ resumes.
Third, he argues that the Army did not follow the normal process for reviewing
application packets during the review process.
      Hiner has not met his burden of demonstrating pretext in this case. Hiner
is correct that, if he can show he was “clearly better qualified [than Branum] (as
opposed to merely better or as qualified),” this would allow a factfinder to infer
pretext. EEOC v. La. Office of Cmty. Servs., 47 F.3d 1438, 1444 (5th Cir. 1995)
(internal quotation marks omitted); see also Deines v. Tex. Dep’t of Protective &
Regulatory Servs., 164 F.3d 277, 280–81 (5th Cir. 1999). However, the factual
claims undergirding his argument that he was clearly more qualified than
Branum have been thoroughly and convincingly rebutted by the Army. First, far
from the evidence being “clear” that Branum was “unqualified for the position,”
the record indicates that Branum was widely considered the best candidate for


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the job. CPAC’s request that Branum submit an updated resume reflects only
the fact that CPAC did not have Branum’s current resume (the one submitted
to the selection panel) in its centralized system and was therefore unable to
verify that Branum possessed the required qualifications, not—as Hiner
contends—that he was actually unqualified. When his resume was updated,
CPAC quickly concluded that Branum’s Marine Corps experience qualified him
for the Division Chief position, a conclusion later affirmed by Hunt’s supervisor.
Additionally, in his deposition, Hiner indicated that he believed his resume and
Branum’s resume were comparable, and stated, “[Branum] is more experienced
than I am in certain areas, I’m more experienced than he is in other areas.”
Later in the deposition he went so far as to say that if he were to “compare[]
resumes, we stack up equal in most cases except for [Civilian Support Skills
Course],” a course that Branum had taken but Hiner had not. We conclude that
Hiner has not shown he was more qualified—or even as qualified—for the
Division Chief position, much less that he was “clearly more qualified,” as our
precedent requires.
      Nor can Hiner demonstrate pretext with his argument that Branum was
“pre-selected,”a claim that the Army disputes, but that we assume is true for
purposes of evaluating whether the district court should have granted summary
judgment. See Pierce, 512 F.3d at 186. As Hiner concedes in his own briefing,
“[p]re-selection, in and of itself, does not establish pretext unless the pre-
selection was motivated by discriminatory animus.” Cf. Walsdorf v. Bd. of
Comm’rs for the E. Jefferson Levee Dist., 857 F.2d 1047, 1051 (5th Cir. 1988)
(“Plaintiff’s analysis would have us ignore the evidence that [defendant]
preselected [selectee] for the position in a process which, at least initially, may


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                                   No. 12-51123
not have been motivated in any way by his animus toward women in the
workplace.”); Glass v. Lahood, 786 F. Supp. 2d 189, 224 (D.D.C. 2011) (“[T]here
is nothing per se improper about ‘pre-selection,’ at least from the standpoint of
Title VII. For evidence of preselection to be relevant, there must be indicia of
discrimination attached to the preselection.”). Even if Hiner’s allegation of pre-
selection is true, there is no contention that racial animus was a reason for the
pre-selection. We therefore cannot find that this argument establishes pretext.
        Finally, Hiner’s claim that the Army violated its own hiring procedures is
not accurate and would not establish pretext even if it were. Hiner claims that
the Army was required to follow “FSH Reg. 690-4” in hiring the new Division
Chief, but that the selection process violated that regulation in a number of
ways.     However, Branum was hired pursuant to a management-directed
reassignment, a “noncompetitive action” to which FSH Reg. 690-4 does not
apply. But even if Hiner were correct that the Army had violated its own hiring
regulations, the Army’s “disregard of its own hiring system does not prove racial
discrimination absent a showing that discrimination was a motive in the action
taken.” Sanchez v. Tex. Comm’n on Alcoholism, 660 F.2d 658, 662 (5th Cir.
1981). Not only was no such showing made, the very same process Hiner
challenges led to the hiring of Barkley, another black male, for an identical
Division Chief position. For all these reasons, Hiner has failed to meet his
burden under the McDonnell Douglas framework, and we conclude that the
district court correctly dismissed his discrete discrimination claim.
C.      Hiner’s Hostile Work Environment Claim
        To make out a successful hostile work environment claim, the plaintiff
must show that (1) he is a member of a protected group; (2) he was a victim of


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                                  No. 12-51123
harassment; (3) the harassment was based on race; (4) the harassment affected
a “term, condition or privilege” of his employment (i.e., the harassment was so
pervasive or severe as to alter his conditions of employment and create an
abusive working environment); and (5) the employer knew or should have known
of the harassment and failed to take prompt remedial action. See Hernandez v.
Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012); Ramsey v. Henderson,
286 F.3d 264, 268 (5th Cir. 2002); Farpella-Crosby v. Horizon Health Care, 97
F.3d 803, 806 (5th Cir. 1996). Whether an environment is hostile or abusive
depends on the totality of the circumstances, including the frequency and
severity of the discriminatory conduct; whether it is physically threatening or
humiliating, or “a mere offensive utterance”; and whether it unreasonably
interferes with an employee’s ability to perform his job. Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 23 (1993).
      We affirm the district court’s dismissal of Hiner’s hostile work
environment claims. Hiner never articulates any connection between his race
and the three incidents he complains of: Hunt’s harsh language when asking for
the fax, Hiner’s increased workload, or the denial of Hiner’s TDY request.
Regarding the swearing incident on May 14, Hiner admits that this behavior
was not abnormal for Hunt and that Hunt treated all subordinates in a similar
manner, regardless of race, an assessment corroborated by other CSTA
employees. Because Hiner’s increased workload was the result of the influx of
newly hired CSTA employees, other employees were also given more work,
again, regardless of race.      Moreover, Hiner was eventually granted the
additional staff he requested. The reasons Hiner’s TDY request was denied were
his heavy existing workload and the fact that it was less expensive to send an


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employee from Atlanta instead. Indeed, Hiner’s race was never mentioned in the
course of any of the events he describes. Hiner simply provides no evidence that
race was a factor in any of the three incidents that form the basis of his hostile
work environment claim, and we therefore affirm the district court’s decision.
      In his EEOC complaint, Hiner did not raise the argument that Ramirez’s
remarks about Hunt not liking Hiner’s “black ass” contributed to a hostile work
environment, and his claim is therefore likely unexhausted. See, e.g., Fine v.
GAF Chem. Corp., 995 F.2d 576, 577–78 (5th Cir. 1993) (holding that a plaintiff’s
administrative remedies were not exhausted with respect to an incident of
sexual discrimination because the incident sued upon was separate from the one
raised in her administrative charge). Even assuming arguendo that Hiner’s
claim was properly exhausted, however, his claim still fails. While the remarks
were clearly “based on race,” Hiner presents no evidence that they were
“sufficiently severe or pervasive to alter the conditions of [his] employment and
create an abusive working environment.” Harris, 510 U.S. at 21. Hiner neither
makes any claim that Hunt himself ever made similar comments, such that
racial animus could explain the three events Hiner elsewhere complains of, nor
does Hiner point to any evidence that the comments themselves unreasonably
interfered with his work performance. Cf. Stewart v. Miss. Transp. Comm’n, 586
F.3d 321, 331 (5th Cir. 2009) (“These occasional [inappropriately sexual]
statements did not create a hostile work environment because they were not
severe, physically threatening, or humiliating . . . . This is not the kind of
conduct that would interfere unreasonably with a reasonable person’s work
performance.”). Because Hiner does not offer a single example of how a “term,




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                                        No. 12-51123
condition, or privilege” of his employment was affected by Ramirez’s comments,
we affirm the district court’s disposition of this issue.3
D.     Hiner’s Retaliation Claim
       Hiner argues that the three events that together constituted a hostile work
environment occurred both because of his race and as retaliation for his filing
an EEOC claim. In order to make out a prima facie case of unlawful retaliation
under Title VII, the plaintiff must show that he (1) engaged in protected activity,
(2) an adverse employment action occurred, and (3) there is a causal link
between the protected activity and the adverse employment action. Long v.
Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996).                     As with a discrete
discrimination claim, the employer may rebut the plaintiff’s prima facie case by
articulating a legitimate, nondiscriminatory reason for the adverse employment
action. See id. at 304–05. The plaintiff then has the burden of demonstrating
pretext. Id. Hiner has established the first element of his prima facie case.
However, even assuming the second two elements have been established (which
is not at all clear), the Army has offered a legitimate, nondiscriminatory reason

       3
         Hiner also makes much of the fact that during some period before 2008, Hunt
displayed a portrait of Nathan Bedford Forrest, the first leader of the Ku Klux Klan, near his
office. After Hiner complained about the portrait to the CSTA’s Deputy Chief of Staff, the
portrait was removed. Hiner did not raise the argument that the display of this portrait
constituted a hostile work environment before the EEOC, but even if his claim had been
properly exhausted, it would matter little because the parties do not dispute that the portrait
was removed in 2006 or 2007. In order for the “continuing violation doctrine” to apply—which
it must for this claim to avoid being time-barred—Hiner would have to “show an organized
scheme leading to and including a present violation, such that it is the cumulative effect of the
discriminatory practice, rather than any discrete occurrence, that gives rise to the cause of
action.” Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 352 (5th Cir. 2001) (quoting
Huckabay v. Moore, 142 F.3d 233, 239 (5th Cir.1998)). The display of the portrait ended
several years before the incidents forming the basis of Hiner’s hostile work environment claim,
and Hiner makes no argument that it was in any way related to those events, other than the
conclusory assertion that they were all part of a hostile work environment.

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for each of the three cited incidents, namely that Hunt’s harsh language is
typical of his management style, that many CSTA employees other than Hiner
experienced increased workloads, and that it was cheaper to send someone from
Atlanta to Puerto Rico than from San Antonio. Hiner has not argued that any
of these reasons is merely pretext for retaliation.
                             III. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s judgment.




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