     Case: 19-20153      Document: 00515133558         Page: 1    Date Filed: 09/26/2019




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

                                                                                 FILED
                                                                           September 26, 2019
                                    No. 19-20153
                                  Summary Calendar                            Lyle W. Cayce
                                                                                   Clerk

JOSEPH CHHIM,

               Plaintiff - Appellant

v.

CITY OF HOUSTON; LUNA NELSON, In the Official Capacity,

               Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:17-CV-1975


Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM:*
       Plaintiff Joseph Chhim appeals the district court’s grant of summary
judgment in favor of the City of Houston (the “City”) in his Title VII failure-to-
hire employment discrimination and retaliation action.                    Upon Chhim’s
rejection from several positions with the City, he alleged discrimination based
on his race, color, and national origin. Chhim also alleged retaliation due to



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-20153
his filing of numerous complaints against the City with the Equal Employment
Opportunity Commission (the “EEOC”). Prior to filing his current action,
Chhim was employed by the City in separate capacities at the City’s
Department of Aviation and Civic Center Department. Chhim was terminated
from the latter position.
      We review the district court’s grant of summary judgment de novo,
applying the same standard as the district court. Rachid v. Jack in The Box,
Inc. 376 F.3d 305, 307 (5th Cir. 2004). Viewing the facts in the light most
favorable to the nonmovant, a grant of summary judgment is appropriate when
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).
      Chhim alleges circumstantial evidence of discrimination and retaliation,
which we evaluate using the burden-shifting approach adopted by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802—805 (1973).
See Morris v. Town of Independence, 827 F.3d 396, 400 (5th Cir. 2016); see also
McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007) (per curiam).
Under the McDonnell Douglas test, a plaintiff must initially establish a prima
facie case of discrimination. 411 U.S. at 802. To establish a prima facie case
of employment discrimination, a plaintiff must show that he: “(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.” Morris, 827 F.3d at 400 (citing Willis v. Cleco Corp., 749 F.3d 314,
319—20 (5th Cir. 2014)). To establish a prima facie case of retaliation, a
plaintiff must show 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
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                                 No. 19-20153
employment action.” McCoy, 492 F.3d at 557. If the plaintiff is successful in
establishing a prima facie case, the burden shifts to the defendant to proffer a
legitimate non-discriminatory or non-retaliatory reason, as applicable, for its
failure to hire the plaintiff. If the defendant meets its burden, the plaintiff
must provide evidence to rebut the defendant’s legitimate non-discriminatory
or non-retaliatory reason as mere pretext. See Morris, 827 F.3d at 400; see also
McCoy, 492 F.3d at 557.
      Viewing the facts in the light most favorable to Chhim, the district court
correctly held that Chhim could not establish a prima facie case of
discrimination as to at least one of the positions from which he was rejected.
In one case, Chhim was unqualified: In his online application for a position
that required an applicant have a valid driver’s license, Chhim noted that he
did not possess one. In another case, a member of his protected racial class
(Asian) was hired for a mechanic position for which Chhim had applied, which,
at a minimum, negated his racial discrimination claim in relation to that
position.
      Regarding Chhim’s color and national origin discrimination claims
relating to the mechanic position, as well as his discrimination claims relating
to his rejection from the several other positions at issue, we assume Chhim
established prima facie cases and consider whether the City proffered a
legitimate and non-discriminatory reason for failing to hire him. Here, the
City employee conducting applicant screening did not refer Chhim to her hiring
manager because Chhim’s application, in conjunction with his employment
record, disclosed that he had been previously terminated from the City’s
employment. Chhim claims that the City’s reasoning is pretextual because the
screening employee forwarded the applications of eleven other candidates to
her hiring manager.    As the district court explained, Chhim has not shown
that the employee’s referral of other candidates to her hiring manager was
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                                No. 19-20153
pretextual because he has not presented evidence that those candidates’
applications also disclosed prior terminations from City employment.        We
conclude that City’s reason for not hiring Chhim is legitimate and non-
discriminatory.
      Chhim also argues that the City’s failure to hire him was in retaliation
for the multiple complaints he filed with the EEOC. Assuming that Chhim has
established a prima facie showing, we conclude that the City’s proffered reason
for not hiring Chhim—that he was previously terminated from City’s employ—
is legitimate and non-retaliatory. Chhim has not offered any evidence to show
that the City’s choice to reject his employment applications was pretextual, or
put differently, that his complaints with the EEOC in any way affected the
City’s hiring decisions.
      Chhim, a pro se appellant, has also moved for appointment of counsel.
Given our holding that the district court did not err in granting summary
judgment in favor of the City, and the lack of an impending oral argument, we
see no need to appoint Chhim counsel.
      Accordingly, the judgment of the district court is AFFIRMED, and
Chhim’s request for appointment of counsel is DENIED.




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