     Case: 11-50119     Document: 00511590163         Page: 1     Date Filed: 09/01/2011




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

                                                                            FILED
                                                                        September 1, 2011

                                       No. 11-50119                        Lyle W. Cayce
                                                                                Clerk

KENNETH W. NUNLEY

                                                  Plaintiff-Appellant
v.

CITY OF WACO

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:09-CV-197


Before KING, GARZA, and GRAVES, Circuit Judges.
PER CURIAM:*
        Kenneth W. Nunley challenges the district court’s grant of a motion for
summary judgment in favor of Defendant City of Waco. For the reasons stated
herein, we affirm the ruling of the district court.
                                              I
        Plaintiff Kenneth Nunley has been an employee of the City of Waco (“the
City”) since May 1994, during which time several disputes occurred, all of which
are of relevance to the present litigation. In 1999, Nunley was involved in a

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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dispute with a fellow employee, Cynthia Simms, and both parties registered
complaints with their supervisors.          In 2001, a department reorganization
resulted in Nunley being demoted to a non-supervisory position. Five white
employees received lesser demotions to supervisory positions, and Nunley
allegedly complained about this, though there is no documentation of it on
record. Finally, in 2004, an operations coordinator (“OC”) position came open,
and Nunley applied. Another person was selected, and Nunley subsequently
filed a complaint with the EEOC, alleging that the decision was racially
motivated.
      In 2006, the City posted a job opening for another OC position in the Parks
and Recreation Department. The posting stated that a high school diploma was
required and an associate’s degree desired; that two years of previous
supervisory experience in a related field was required and athletic field
maintenance experience desired; and that pest applicator’s and irrigator’s
licenses were desired. Mr. Nunley, along with seven other individuals, applied
and, along with four other applicants, was selected to be interviewed by a panel
of four persons. The panel, which included Steve Miller, was chosen by Rusty
Black, the director of the Parks and Recreation Department.
      After interviews, the panel chose Ken Griffin, a white male, over Nunley,
a black male, citing Griffin’s possession of an associate’s degree in turf
management and an irrigator’s license, his experience maintaining irrigation
systems and ballfields at Baylor University, and his favorable impression during
the interview.      The panel concluded that Nunley, who had considerable
experience working for the city and a pest applicator’s license, was qualified for
the job, but not as qualified as Griffin.
      Nunley subsequently filed a complaint with the EEOC, claiming race
discrimination.     The City filed two responses to the complaint, citing the
foregoing reasons for choosing Griffin, referencing “certain incidents” which had

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                                  No. 11-50119
“caused some reservations” about how well Nunley would get along with others,
and raising concerns about his leadership and communication skills. However,
in subsequent deposition testimony, Miller stated that he did not recall the
interview panel discussing how well Nunley got along with others and that he
did not know how well Nunley had performed as a supervisor. He did not
mention Nunley’s communication skills. The EEOC issued a determination
letter of discrimination.
      Nunley filed suit, alleging discrimination under Title VII and basing his
claim on (1) an alleged conflict between Miller’s deposition testimony and the
City’s EEOC responses, (2) an assertion that he was “clearly better qualified”
than Griffin, and (3) the EEOC determination letter. Nunley also claims that
the City chose Griffin over Nunley in retaliation for his 2001 and 2004
complaints. The district court granted the City’s motion for summary judgment
on all of Nunley’s claims. Nunley now appeals.
                                        II
      We review the district court’s grant of summary judgment de novo,
applying the same standards as the district court. Burge v. Parish of St.
Tammany, 157 F.3d 452, 465 (5th Cir. 1999). 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).
A dispute is “genuine” if the evidence is sufficient for a reasonable jury to return
a verdict for the non-moving party. Hamilton v. Segue Software, Inc., 232 F.3d
473, 477 (5th Cir. 2000). A fact issue is “material” if its resolution could affect
the outcome of the action. Id. When reviewing a summary judgment, we
construe all facts and inferences in the light most favorable to the non-moving
party. Cooper Tire & Rubber Co. v. Farese, 423 F.3d 446, 454 (5th Cir. 2005).




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                                       III
      In order to overcome a summary judgment motion in a Title VII
employment discrimination claim, a plaintiff must establish a prima facie case
of discrimination, and the defendant must then articulate a legitimate, non-
discriminatory reason for its actions. See Rachid v. Jack In The Box, Inc., 376
F.3d 305, 312 (5th Cir. 2004) (citing McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973)). If this burden is met by the defendant, the plaintiff must then offer
sufficient evidence that either (1) the defendant's reason is not true, but is
instead a pretext for discrimination or (2) the reason, while true, is only one of
the reasons, and another motivating factor is the plaintiff’s protected
characteristic. Id.
      The city concedes that Nunley has established a prima facie case and
Nunley concedes that the City has articulated legitimate, non-discriminatory
reasons for its decision not to hire Nunley. The issue on appeal is thus whether
Nunley has raised a genuine issue of material fact as to pretext or mixed-
motives.
                                        A
      Nunley first argues that conflict between the City’s EEOC response and
Miller’s deposition raises a fact issue under Burrell v. Dr. Pepper, 482 F.3d 408
(5th Cir. 2007). In Burrell, we concluded that the defendant’s rationale for a
hiring decision was “suspect because it [had] not remained the same” and that
“a reasonable factfinder could conclude that [the defendant’s] asserted
justification . . . [was] ‘unworthy of credence’ and a pretext for intentional
discrimination.” Id. at 415 (quoting Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 147 (2000)). Nunley argues that because Miller’s statements
regarding Nunley’s interpersonal skills conflict with the EEOC response, the




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                                      No. 11-50119
City’s rationale is similarly “suspect.”1 We note, however, that the conflicting
statements concern one of many justifications, and we conclude that the City’s
rationale has essentially remained the same. In other words, in arguing that he
only needs some conflicting statements concerning any one part of a multi-
faceted rationale, we think Nunley asks too much of Burrell.
       In Burrell, the inconsistent explanations by the employer concerned the
candidate’s experience, which was, in all of the proffered explanations, the
deciding factor. Id.; see also Gee v. Principi, 289 F.3d 342 (5th Cir. 2002) (in
which conflicting testimony went to the core of the employer’s hiring decision).
In contrast, the subject of the inconsistent statements in the present
case—Nunley’s ability to get along with others—was but one item in a long list
of reasons why the City hired Griffin instead. The City’s 2007 EEOC response
lists the following reasons for its decision: (1) Griffin’s possession of an
associate’s degree in a relevant field, (2) the good reputation of the institution
from which he received the degree, (3) his possession of an irrigation license and
experience maintaining irrigation systems, (4) his experience and track record
as a groundskeeper at Baylor, and (5) the favorable impression he made in his
interview. All of these items were discussed before the response mentions any
concerns about Nunley’s interpersonal skills. Thus, the great bulk of the City’s
rationale was not even implicated by the inconsistent statements.
       Furthermore, Nunley has not offered sufficient evidence that the rationale
which was the subject of the inconsistent statements was “unworthy of
credence.” Reeves, 530 U.S. at 147. The plaintiff in Burrell presented evidence


       1
        The 2008 EEOC response stated that “there had been certain incidents involving Mr.
Nunley, which caused some reservations related to how he would get along with others if he
became the OC and how he would supervise.” In response to subsequent deposition
questioning concerning whether there was any discussion about how well Nunley got along
with others, Miller stated, “No, sir, not that I can recall.” The City contends that Miller’s
statement and the EEOC response do not actually conflict, i.e., that Miller merely testified
that he could not remember. We disagree.

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                                   No. 11-50119
that the very criterion by which he was allegedly disqualified actually cut in his
favor, a fact on which the Burrell decision was predicated. Burrell, 482 F.3d at
414; see also Gee, 289 F.3d at 348 (“Gee, however, has provided sufficient
evidence to cast doubt on [the employer’s] explanation, thereby enabling a
reasonable factfinder to conclude that it was false . . . .”); Rachid, 376 F.3d at 312
(“the plaintiff must then offer sufficient evidence to create a genuine issue of
material fact . . . that the defendant's reason is not true, but is instead a pretext
for discrimination (emphasis added)).
      Nunley’s briefing admits that he and a fellow employee had “some
interactions and problems” which resulted in complaints to supervisors from
both, and accordingly the City’s EEOC response makes reference to “certain
incidents” which “caused some reservations related to how he would get along
with others.” Yet, in an attempt to prove this rationale false and mere pretext,
Nunley only cites positive remarks about his interview performance, a “6 out of
10” for “communication” on an employee evaluation, and the absence of
complaints about his personal skills in a response to his 2004 complaint. We
think the foregoing evidence proffered by Nunley insufficient to declare the
City’s determination “unworthy of credence” and “a pretext for intentional
discrimination.” See Burrell, 482 F.3d at 415.
                                          B
      Nunley also contends that a jury could conclude that he is “clearly better
qualified” for the position than Griffin. See Moss v. BMC Software, Inc., 610
F.3d 917, 923 (5th Cir. 2010). In order to create a permissible inference of
discrimination under this theory, “disparities in qualifications must be of such
weight and significance that no reasonable person, in the exercise of impartial
judgment, could have chosen the candidate selected over the plaintiff for the job
in question.” Deines v. Dep’t of Protective & Regulatory Servs., 164 F.3d 277,



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280–81 (5th Cir. 1999). If there are any disparities, we do not think them so
great.
         First, Griffin possessed an associate’s degree in turf management, a
qualification which was desired by the City and which Nunley did not possess.
Second, Griffin possessed an irrigation license and experience maintaining
irrigation systems, including a stint at Baylor University, during which he
performed many of the same functions for which he would be responsible as OC.
Finally, the City felt his interpersonal, supervisory, and administrative
experience were better.
         Nunley, on the other hand, leans heavily on his length of service to the
City; however, as the district court noted, “greater experience alone will not
suffice to raise a fact question as to whether one person is clearly more qualified
than another.” Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir.
1996). He also cites his ability to operate heavy machinery and contends that
this was a minimum requirement which Griffin did not meet. As Nunley notes,
in Gillaspy v. Dallas Indep. School Dist., 278 Fed. Appx. 307, 314 (5th Cir. 2008),
we considered the awarding of a position to someone who did not meet minimum
job requirements to be sufficient evidence of discrimination to overcome a motion
for summary judgment. However, the official job posting in this case did not list
operating heavy equipment as a requirement. Furthermore, we do not think the
interview questions and answers from Griffin’s interview cited by Nunley
amount to a failure to meet a minimum job requirement.2




         2
         As indicated from the four sets of interview notes contained in the trial record, the
ninth interview question was as follows: “In this position, you will be asked to operate a full
range of heavy and light equipment. What types of equipment can you operate effectively?”
All four interviewers recorded substantially similar lists, which include “tractor,” “mower,”
“bobcat,” and other types of equipment. None of the interviewers’ notes reflect a negative
response to the question.

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                                  No. 11-50119
      In short, no reasonable jury could conclude that Nunley was “clearly better
qualified.” Nunley’s own chart, which is included in briefing and sets forth each
applicant’s qualifications, does not indicate such a disparity. Even if Nunley
were more qualified, this Court has repeatedly said that it would not be enough.
See, e.g., EEOC v. La. Office of Cmty. Servs., 47 F.3d 1438, 1444 (5th Cir. 1995)
(“A fact finder can infer pretext if it finds that the employee was ‘clearly better
qualified’ (as opposed to merely better or as qualified).”).
                                        C
      Nunley next suggests that the district court committed reversible error in
not taking the EEOC determination letter into consideration. We do not agree.
This Court has stated that “the EEOC’s findings of racial discrimination are not
dispositive on later racial discrimination suits,” Price v. Fed. Express Corp., 283
F.3d 715, 725 (5th Cir. 2002), and has also, in numerous instances, entered
summary judgment or granted judgment as a matter of law despite an EEOC
determination to the contrary. See, e.g., id.; Vadie v. Miss. State Univ., 218 F.3d
365, 370 (5th Cir. 2000) (upholding judgment as a matter of law in defendant’s
favor after plaintiff had received a right to sue letter from the EEOC); Odom v.
Frank, 3 F.3d 839, 843 (5th Cir. 1993) (holding that the district court's finding
that plaintiff was discriminated against was clearly erroneous, despite EEOC's
contrary conclusion); cf. Smith v. Universal Servs., Inc., 454 F.2d 154, 157 (5th
Cir. 1972) (stating that subsequent civil litigation is a de novo proceeding,
“completely separate from the actions of the EEOC”). We do not think the
district court, as Nunley puts it, “ignored” the determination, but rather that the
court simply looked at the facts in the summary judgment record and came to
a different conclusion.
                                        IV
      Finally, Nunley argues that the City’s failure to promote him to the OC



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                                     No. 11-50119
position amounted to retaliation for his earlier complaints of racial
discrimination in 2001 and 2004. In order to make out a prima facie case of
retaliation under Title VII, Nunley must show that (1) he engaged in a protected
activity; (2) an adverse employment action occurred; and (3) a causal link existed
between the protected activity and the adverse employment action. Hernandez
v. Yellow Transp., Inc., 641 F.3d 118, 129 (5th Cir. 2011). Once a plaintiff has
made out a prima facie case of retaliation, the burden shifts to the defendant to
offer proof of a legitimate, non-retaliatory reason for the adverse employment
action. Id. Upon the defendant’s offering such proof, the burden shifts back to
the plaintiff to show that “but for” the protected activity, the adverse
employment action would not have occurred. Id.
       Assuming, arguendo, that Nunley has made out a prima facie case3 and
the City has offered a legitimate, non-retaliatory reason for the adverse
employment action (a fact which Nunley has conceded), Nunley failed to
establish the “but for” causation required by the McDonnell Douglas framework,
as he fails to offer sufficient proof that any alleged retaliatory motive was a
necessary cause of the decision not to hire. A plaintiff can only avoid summary
judgment on “but for” causation by demonstrating “a conflict in substantial
evidence on this ultimate issue.” Id. at 132 (quoting Long v. Eastfield College,
88 F.3d 300, 308 (5th Cir. 1996)). Evidence is “substantial” if it is of a quality
and weight such that “reasonable and fair-minded men in the exercise of
impartial judgment might reach different conclusions.” Id. We do not believe
Nunley has demonstrated such a conflict.
       Nunley calls to our attention Smith v. Xerox Corp., 602 F.3d 320 (5th Cir.
2010), in which we held that the Price Waterhouse “mixed motive” framework


      3
         The City maintains that Nunley has offered no proof that he actually complained in
2001, in which case that instance would not qualify as protected activity, and Nunley would
not have made out a prima facie case of retaliation as to that incident.

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applies to Title VII retaliation cases, and a plaintiff may show that a protected
activity was a “motivating” or “substantial” factor. Id. at 329 (quoting Price
Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989)). Furthermore, in Xerox, we
also dispensed with our previous requirement that a plaintiff offer direct
evidence of retaliation in order to proceed on the mixed-motive theory. Id. at 332
(citing Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003)). Thus, Nunley
argues, a plaintiff bringing a Title VII retaliation claim need only offer evidence
that retaliation was a factor, i.e., that the City had “mixed motives,” and such
evidence may be circumstantial.
      But as we explained in Long v. Eastfield College, 88 F.3d 300 (5th Cir.
1996), there are different tests for causation within the McDonnell Douglas
framework—the initial “causal-link” required for making out a prima facie case,
and the “but for” causation required after the employer has offered a legitimate,
non-discriminatory justification. Id. at 305 n.4 (“At first glance, the ultimate
issue in an unlawful retaliation case—whether the defendant discriminated
against the plaintiff because the plaintiff engaged in conduct protected by Title
VII—seems identical to the third element of the plaintiff’s prima facie
case—whether a causal link exists between the adverse employment action and
the protected activity. However, the standards of proof applicable to these
questions differ significantly. . . . The standard for establishing the ‘causal link’
element of the plaintiff's prima facie case is much less stringent.”). Indeed, the
Court’s opinion in Xerox affirms that the Price Waterhouse mixed-motive
approach as applied in the retaliation context preserves an employer’s ability to
escape liability by refuting but for causation. Xerox, 602 F.3d at 333 (“[T]he
mixed-motives theory is probably best viewed as a defense for an employer. This
‘defense’ allows the employer—once the employee presents evidence that an
illegitimate reason was a motivating factor, even if not the sole factor, for the
challenged employment action—to show that it would have made the same

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                                  No. 11-50119
decision even without consideration of the prohibited factor.” (emphasis added)
(footnote and internal quotation marks omitted)); see also Manaway v. Med. Ctr.
of Southeast Tex., 2011 WL 2496626 (5th Cir. 2011) (“The burden then shifts
back to the employee to ‘prove that the protected conduct was a ‘but for’ cause
of the adverse employment decision.’” (quoting Hernandez, 641 F.3d at 129)).
Thus, our decision in Xerox did not dispense with this final “but for” requirement
for avoiding summary judgment.
      In attempting to show causation, Nunley references (1) his 2001 and 2004
complaints, (2) the implication in those complaints of Miller and Black, (3)
Miller’s picking of the panel members who interviewed Nunley in 2007, and (4)
Black’s supervision over that interview process. We think the City is correct in
noting that this amounts to nothing more than an observation that the same
people were involved in all three instances. We are certain the summary
judgment standard requires something more than this, lest a plaintiff get to a
jury with nothing more than proof of a prior accusation, a subsequent negative
employment action, and no intervening change in supervision. See Hernandez,
641 F.3d at 132–33 (upholding summary judgment for employer on a retaliation
claim where plaintiff alleged (1) employer’s investigation was not governed by
normal procedures; (2) post-termination grievance process was unfair; (3)
employees were treated unequally; and (4) similarly-situated employees were
treated more fairly); Manaway, 2011 WL 2496626, at *7 (upholding summary
judgment for employer where employer had other documented reasons for
dismissal). Accordingly, and for the other reasons stated herein, the district
court was correct to grant the City’s motion for summary judgment on the
retaliation claim.




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                                    V
     In conclusion, we find the plaintiff’s arguments on appeal unconvincing
and uphold the district court’s grant of summary judgment in favor of the
defendant.
     AFFIRMED.




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