                                      No. 06-11204

                     REVISED MAY 28, 2008
           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                           FILED
                                                                          May 13, 2008
                                      No. 06-11204                   Charles R. Fulbruge III
                                                                             Clerk

JUDIE C. GILLASPY

                                                 Plaintiff-Appellant
v.

DALLAS INDEPENDENT SCHOOL DISTRICT

                                                 Defendant-Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:04-CV-2055


Before KING, DeMOSS and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Appellant Judie C. Gillaspy appeals the district court’s order granting
summary judgment to Dallas Independent School District (DISD) on her Title
VII claims for gender discrimination and retaliation brought pursuant to 42
U.S.C. §§ 2000e–2000e-17. We affirm in part and reverse and remand in part.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
                                 No. 06-11204

                                       I.
      Gillaspy is a twenty year employee of DISD’s Custodial Services
Department. After various promotions, she held the position of “Field
Supervisor.” As a Field Supervisor, Gillaspy was responsible for supervising
several DISD campuses and over 200 employees. In March 2003, DISD
outsourced the management of the Custodial Services Department to Aramark
Service Master (Aramark). Aramark instituted a restructuring of the Custodial
Services Department, which eliminated the Field Supervisor position. Two new
positions, “Area Custodial Supervisor” (ACS) and “Facility Supervisor” were
created. The ACS position closely resembled the former Field Supervisor
position, with two notable differences. First, ACS worked at night; Field
Supervisors worked during the day. Second, ACS were assigned to a smaller
number of DISD campuses in specific areas; Field Supervisors were assigned to
a larger number of campuses on an “as-needed” basis. An ACS reported directly
to his or her individual Area Manager, an Aramark employee. Despite the
similarities between the Field Supervisor and ACS positions, all existing Field
Supervisors were required to apply for one of the eight new ACS positions. Of
the six former Field Supervisors, only Gillaspy and four male employees applied.
The remaining applicants were other DISD employees and non-employees.
      In May 2003, ten individuals were interviewed by seven Area Managers.
Gillaspy was the only female applicant selected to interview. Each Area
Manager interviewed the applicants one-on-one and scored the applicant in five
areas: technical knowledge, customer service, teamwork, portrayed image, and
leadership. The scores were then submitted to Rica Hernaez, Resident District
Manager and Executive Director of the Custodial Services Department, an
Aramark employee who directly supervised the Area Managers. Hernaez also
participated in the one-on-one interview process.
      One of the Area Managers who conducted the interviews was Gillaspy’s
former supervisor, Marcus Miller. Gillaspy alleges that on the day of her
                                      No. 06-11204

interview Miller stated that although she was qualified for the job,“only men”
would be hired for the open ACS positions.1 Miller denies making the statement.
All eight positions were filled with male applicants. Gillaspy was the only Field
Supervisor not selected.
       DISD provided two reasons for Gillaspy’s nonselection: Gillaspy received
the lowest total interview scores, and Hernaez believed that Gillaspy lacked the
supervisory, leadership, and motivational skills necessary for the ACS position.
Hernaez stated that her opinion was based on having personally interviewed
Gillaspy for an Area Manager position earlier in the year, and information
received from Miller and another Area Manager who had previously worked with
Gillaspy. Gillaspy was thus “reassigned” to the position of Facility Supervisor.
In her capacity as Facility Supervisor, Gillaspy supervised only one campus.
       In July 2003, Gillaspy filed a charge with the Equal Employment
Opportunity Commission (EEOC) against DISD, alleging gender discrimination
by not selecting her for an ACS position in May 2003 and her subsequent
“demotion” to Facility Supervisor. Gillaspy also alleged that the employment
decisions were made in retaliation for prior complaints she had made regarding
discriminatory wage practices. She did not allege any “continuing violations.”
Following the filing of her EEOC charge, Gillaspy received her first negative
performance review, which cited poor leadership and teamwork skills. Although
Gillaspy received the review on July 15, 2003, the review was prepared on June
25, 2003, before she filed her EEOC charge.
       In August 2003 and July 2004, additional ACS positions became available
in the Custodial Services Department. Gillaspy applied for both positions, but
was not re-interviewed or selected to fill them. DISD relied on Gillaspy’s low
interview scores and Hernaez’s prior evaluation from her May 2003 interview


       1
         There is a slight discrepancy in the record as to the exact statement allegedly made
by Miller. In her brief to this court and in her personal diary, Gillaspy alleges that Miller
stated that “they [DISD] only wanted to hire men.” However, in her deposition, Gillaspy
alleges that Miller told her that “only men would be hired” for the open positions.
                                 No. 06-11204

to deny her the positions. In January 2004 and February 2004, Field Supervisor
positions became available in the Maintenance Services Department. Gillaspy
applied for and was denied these positions. DISD alleges that Gillaspy failed to
meet the minimum requirements for these positions, which Gillaspy disputes.
All of the positions were filled by male applicants, however Gillaspy did not
amend her EEOC charge or file a new charge alleging discrimination or
retaliation based on her nonselection for these positions.
      On March 10, 2004, the EEOC found reasonable cause to believe that a
violation of Title VII had occurred and issued Gillapsy a right-to-sue letter. On
September 22, 2004, Gillaspy filed gender discrimination and retaliation claims
against DISD pursuant to Title VII of the Civil Rights Act of 1964. Specifically,
Gillaspy alleged gender discrimination for: (1) non-selection for ACS in May
2003, (2) demotion to Facility Supervisor in May 2003, (3) failure to promote to
ACS in August 2003 and July 2004, and (4) failure to promote to Field
Supervisor in the Maintenance Department in January 2004 and February 2004.
Gillaspy also alleged retaliation for filing an EEOC claim by failing to promote
her to open positions following the filing of her claim and for giving her a
negative performance review.
      The DISD moved for summary judgment on all of Gillaspy’s claims. The
district court granted the motion, dismissing all of Gillaspy’s claims with
prejudice. In regard to Gillaspy’s discrimination claims, the district court
concluded that Gillaspy failed to produce direct evidence of discrimination and
that DISD offered legitimate, non-discriminatory reasons for its employment
decisions, which Gillaspy failed to rebut with evidence of pretext or mixed
motive. Gillaspy’s retaliation claims were dismissed for a variety of reasons.
First, in regard to the January 2004 and February 2004 Field Supervisor
positions in the Maintenance Services Department, the district court concluded
that Gillaspy’s EEOC charge failed to put DISD on notice of her retaliation
claims. Second, the district court held that even if DISD had adequate notice,
                                   No. 06-11204

Gillaspy failed to establish a causal connection between her filing of the EEOC
charge and DISD’s employment decisions. Third, in regard to the August 2003
ACS position in the Custodial Services Department, the district court found that
Gillaspy failed to establish the causal connection prong for a prima facie
retaliation case because no one was actually hired for that position. Finally, the
district court held that DISD offered a legitimate, nonretaliatory motive for its
decision not to hire Gillaspy for the July 2004 ACS position—Gillaspy’s low
interview scores from May 2003—and that Gillaspy failed to establish a
retaliatory motive.
      Gillaspy timely filed her notice of appeal on October 23, 2006. On appeal,
Gillaspy argues that the district court: (1) did not apply the correct summary
judgment standard; (2) erred in finding no direct evidence and that Miller was
not a person with authority over the challenged employment decision; (3) applied
a “slap in the face” standard to her “clearly better qualified” argument; (4) erred
in refusing to consider Miller’s statement as circumstantial evidence of
discrimination; and (5) erred in granting summary judgment on her retaliation
claims because DISD failed to properly move for summary judgment on these
claims.
                                         II.
      As an initial matter, Gillaspy has failed to adequately brief the alleged
error of the district court in disposing of her discrimination claims relating to the
January 2004 and February 2004 Field Supervisor positions in the Maintenance
Services Department and her retaliation claim based on the July 2003 negative
performance review. As such, any challenge to the judgment with respect to
those claims is waived. See FED R. APP. P. 28(a)(9) (requiring appellant’s brief to
include “the argument, which must contain . . . appellant’s contentions and the
reasons for them, with citations to the authorities and parts of the record on
which the appellant relies.”); Robinson v. Guar. Trust Life Ins. Co., 389 F.3d 475,
481 n.3 (5th Cir. 2004). Gillaspy has withdrawn her retaliation claim based on
                                       No. 06-11204

the May 2003 ACS position and has not appealed her retaliation claims based
on the January 2004 and February 2004 Field Supervisor positions, thus any
challenge to the district court’s judgment with respect to those claims is also
waived. We now turn to the remaining claims properly before the court:
Gillaspy’s discrimination claims relating to her nonselection for the May 2003,
August 2003, and July 2004 ACS positions and her August 2003 and July 2004
retaliation claims.2
A.     Standard of Review
       This court reviews a district court’s order granting summary judgment de
novo, applying the same standard as the district court. Ballard v. Burton, 444
F.3d 391, 396 (5th Cir. 2006). Summary judgment is appropriate where there is
no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law. FED. R. CIV. P. 56(c). A genuine issue of material
fact exists when the evidence is such that a reasonable jury could return a
verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). In considering a motion for summary judgment, “the court must draw all
reasonable inferences in favor of the nonmovant and may not make credibility
determinations or weigh the evidence.” See Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150-51 (2000).
B.     Discrimination Claims
       Gillaspy can demonstrate gender discrimination under Title VII through
either direct or circumstantial evidence. See Rachid v. Jack in the Box, Inc., 376
F.3d 305, 309 (5th Cir. 2004). Gillaspy contends that there is direct and
circumstantial evidence to support her discrimination claim. We turn first to
Gillaspy’s direct-evidence claim.
       “Direct evidence is evidence that, if believed, proves the fact of


       2
        We note that Gillaspy’s demotion to facility supervisor in June 2003 resulted from
her nonselection for one of the initial ACS positions; therefore, the demotion claim is part-
and-parcel of the failure to promote claim and will not be analyzed separately.
                                  No. 06-11204

discriminatory animus without inference or presumption.” Sandstad v. CB
Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002). When a plaintiff produces
direct evidence of discrimination, “the burden of proof shifts to the employer to
show that the same adverse employment decisions would have been made
regardless of discriminatory animus.” Rachid, 376 F.3d at 309. Gillaspy asserts
that she produced direct evidence in the form of Miller’s alleged comment that
“only men” would be hired for the ACS positions. Miller denies making the
statement, and there were no witnesses present for the exchange; however, for
summary judgment purposes, the court must assume the truth of Gillaspy’s
claim. See Reeves, 530 U.S. at 150-51. The fact that only Gillaspy offers the
statement does not preclude this evidence from being sufficient to survive
summary judgment. See Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 195 (5th
Cir. 2001).
      When the plaintiff establishes that a party demonstrating discriminatory
animus exercised leverage or influence over a formal decision maker, it is proper
to impute the discriminatory animus to that formal decision maker. Russell v.
McKinney Hosp. Venture, 235 F.3d 219, 226-27 (5th Cir. 2000). To succeed on her
direct–evidence claim, Gillaspy must demonstrate that the formal decision
maker, in this case Hernaez, “actually relied on the forbidden factor in making
[her] decision.” Haas v. ADVO Sys., Inc., 168 F.3d 732, 734 & n.2 (5th Cir. 1999).
Gillaspy claims that she has introduced evidence that raises an inference that
Miller exercised extraordinary influence over the other interviewers and
Hernaez, and that his discriminatory animus affected the results of the
interview process. However, because this evidence requires an inference, the
district court did not err in finding no direct evidence of discrimination. See id.;
Sandstad, 309 F.3d at 897-98.
      Circumstantial evidence of discrimination is evaluated under the three-
step McDonnell Douglas framework. Fierros, 274 F.3d at 191. First, Gillaspy
must establish a prima facie case of discrimination, which “creates the
                                  No. 06-11204

presumption that the employer unlawfully discriminated against the employee.”
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981); Rutherford v.
Harris County, Tex., 197 F.3d 173, 179 (5th Cir. 1999). DISD concedes that
Gillaspy has established a prima facie case of discrimination on her May 2003,
August 2003, and July 2004 claims. Thus, the burden shifted to DISD to produce
evidence of a legitimate, nondiscriminatory reason for the disputed employment
decision. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
      To satisfy its burden, DISD produced evidence that Gillaspy was not hired
for the May 2003 ACS position because she received the lowest interview scores
and Hernaez believed that Gillaspy lacked the necessary supervisory,
motivational and leadership skills. Gillaspy concedes that DISD met its burden
in regard to the May 2003 claim. DISD offered evidence that it relied on
Gillaspy’s performance during the May 2003 interview process to justify its
decision not to hire Gillaspy for the July 2004 ACS position. Although DISD’s
proffered reason is questionable because it has not offered evidence that the man
hired for this position was subjected to a similar interview process or that
Gillaspy was reevaluated in any way, DISD need not convince the court it was
actually motivated by its stated reasons at this stage. Burdine, 450 U.S. at 254.
Finally, DISD offered departmental restructuring as a reason for not hiring
Gillaspy for the August 2003 ACS position. Specifically, DISD has offered
evidence that due to restructuring, the number of ACS positions was reduced
from eight to seven, and thus no one was hired to fill the August 2003 position.
This is a legitimate, nondiscriminatory reason.
      Because DISD produced evidence of legitimate, nondiscriminatory reasons
to rebut the presumption of discrimination, the burden shifted to Gillaspy to
show that reason to be pretextual or part of a “mixed motive.” See Rachid, 376
F.3d at 312. This required Gillaspy to show “either (1) that the defendant’s
reason is not true, but instead a pretext for discrimination (pretext alternative);
or (2) that the defendant’s reason, while true, is only one of the reasons for its
                                     No. 06-11204

conduct, and another ‘motivating factor’ is the plaintiff’s protected characteristic
(mixed-motive alternative).” Id. (internal citations omitted).
       To meet her burden, Gillaspy again offers Miller’s comment that “only
men” would be hired for the open ACS positions, arguing that Miller’s comment
indicates DISD’s stated reasons for the challenged employment decisions are
pretextual.3 Use of Miller’s alleged statement is governed by the four-part test
set forth in Krystek v. University of Southern Miss., 164 F.3d 251, 256 (5th Cir.
1999). Gillaspy must establish that Miller’s comment was: (1) related to a
protected class of persons of which Gillaspy is a member, (2) proximate in time
to the employment decisions at issue, (3) made by an individual with authority
over the employment decisions at issue, and (4) related to the employment
decisions at issue. Id. “Comments that are ‘vague and remote in time’ are
insufficient.” Haas, 168 F.3d at 733 (quoting Brown v. CSC Logic, Inc., 82 F.3d
651, 655-56 (5th Cir. 1996)).
       The first and fourth requirements have been met. The second requirement
has been met in regard to the May 2003 ACS position; however, Miller’s
comment is too remote in time from the July 2004 ACS position. See Auguster
v. Vermilion Parish Sch. Bd., 249 F.3d 400, 405 (5th Cir. 2001) (finding a
comment made “nearly a year” before the employment decisions at issue to be
too remote); CSC Logic, 82 F.3d at 656 (finding a comment made sixteen months
before the employment decision at issue to be too remote). Finally, to meet the
third requirement, Gillaspy must establish only that Miller exercised influence
or leverage over Hernaez sufficient to impute Miller’s discriminatory animus to
Hernaez. See Gee v. Principi, 289 F.3d 342, 346 (5th Cir. 2002). Because Gillaspy
has produced evidence that Hernaez relied on Miller’s recommendations in
making her decision not to hire Gillaspy and there is evidence that Miller met
with other members of the interview panel to discuss the applicants, we can


       3
       Gillaspy has not sufficiently briefed this case under a mixed-motive analysis. The
argument is, therefore, waived. See FED. R. APP. P. 28(a)(9).
                                  No. 06-11204

infer that Miller exercised such influence. See Long v. Eastfield Coll., 88 F.3d
300, 307 (5th Cir. 1996) (inferring that a final decision-maker relied on the
recommendation of supervisors who were alleged to be acting in retaliation
because there was a genuine issue of material fact regarding whether the final
decision maker acted independently). Miller’s comment is thus evidence that
DISD’s legitimate, nondiscriminatory reason for its decision not to hire Gillaspy
for the May 2003 ACS position is pretextual.
      Gillaspy also offers evidence that she was “clearly better qualified” for the
ACS positions than the men hired. The district court held that in order for
Gillaspy to demonstrate she was “clearly better qualified,” the disparities
between her qualifications and those of the men hired “must virtually jump of
the page and slap [the court] in the face.” However, the “slap in the face”
standard was rejected by the Supreme Court in Ash v. Tyson Foods, Inc. as
“unhelpful and imprecise.” 546 U.S. 454, 457-58 (2006). This court also
recognized, before Ash, that the “slap in the face” standard was a “colloquial
expression,” which we defined more precisely to require the employee to show
that the “disparities in qualifications [are] 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. Tex.
Dep’t. of Protective & Regulatory Servs., 164 F.3d 277, 280-81 (5th Cir. 1999). We
are confident that this standard comports with the directive in Ash to formulate
a better standard to govern pretext claims based on superior qualifications, and
we apply it here.
      Gillaspy has produced evidence that in her twenty years of employment
with DISD, she received a satisfactory rating or higher on all performance
reviews, including two “performing above expectations” reviews, and one “clearly
outstanding” review. Gillaspy worked in supervisory positions for ten years, the
last three years as a Field Supervisor. Gillaspy has produced evidence that the
Field Supervisor position is nearly identical to the ACS position and that she
                                      No. 06-11204

had the necessary skills to serve in that position.4 Further, Gillaspy does not rely
on her qualifications alone. Two of the men hired for the May 2003 ACS position
and one of the men hired for the July 2003 ACS position failed to meet the
minimum education and experience requirements established by DISD. In light
of Gillaspy’s qualifications, this evidence is sufficient to create a fact issue as to
whether DISD’s nondiscriminatory reasons for its employment decisions in May
2003 and July 2004 ACS are pretextual.
       Gillaspy has also produced evidence that Hernaez had not yet received the
interview scores from the Area Managers at the time she made her selections for
the May 2003 ACS positions. Specifically, Gillaspy argues that documents listing
the applicants’ scores was sent from DISD’s human resources department to
Hernaez two months after Hernaez had made her decision. DISD has offered no
explanation for the timing of the documents transmittal. Gillaspy has thus
created a fact issue on whether DISD’s nondiscriminatory reason for not
selecting Gillaspy for the May 2003 and July 2004 ACS positions are pretextual.
       Finally, Gillaspy argues that DISD’s claim—and the district court’s
conclusion—that no one was hired for the August 2003 ACS position due to
restructuring is false. Gillaspy argues that Tyrone Haynes was hired as an ACS
in October 2004, thus “filling” the August 2003 ACS position. Gillaspy offers no
evidence other than her personal belief that Haynes was, in fact, hired to fill the
specific position from over one year earlier. Because Gillaspy failed to rebut
DISD’s legitimate, nondiscriminatory reason for her nonselection of the August
2003 position, this claim was properly dismissed. See Laxton v. Gap, Inc., 333
F.3d 572, 578 (5th Cir. 2003)(A plaintiff must rebut each nondiscriminatory
reason articulated by the employer).
C.     Retaliation Claims



       4
         DISD offered evidence that Gillaspy was verbally counseled about the deficiencies
in her supervisory skills; however her written evaluations do not indicate any deficiencies
in those areas and Gillaspy denies ever being counseled about such matters.
                                  No. 06-11204

      DISD argues that Gillaspy failed to exhaust her administrative remedies
on any claims arising after she filed her EEOC charge on July 7, 2003. It is
undisputed that Gillaspy did not file a new charge or amend her existing charge
to include her discrimination and retaliation claims for the August 2003 and
July 2004 ACS positions, nor did Gillaspy allege a “continuing violation” in her
charge. However, DISD’s motion for summary judgment and brief in support did
not argue that the discrimination and retaliation claims on appeal were
unexhausted. DISD did not raise the exhaustion argument as to the claims on
appeal until its reply brief in the district court. See John Deere Co. v. Am. Nat’l
Bank, 809 F.2d 1190, 1192 (5th Cir. 1987) (noting that a district court may not
grant summary judgment on grounds not advanced by the moving party). The
district court dismissed her retaliation claims on the merits, concluding that
Gillaspy’s claims related to the August 2003 and July 2003 ACS positions failed
because of the absence of causal-link evidence. Gillaspy argues that she was
denied an adequate opportunity to respond to these arguments and that
summary judgment was thus improper.
      “[We] have not comprehensively identified all the circumstances under
which a district court may rely on arguments and evidence presented for the
first time in a reply brief, [but] we have stated that ‘Rule 56(c) merely requires
the court to give the non-movant an adequate opportunity to respond prior to
ruling.’” Vais Arms, Inc. v. Vais, 383 F.3d 287, 292 (5th Cir. 2004). It is the
practice of this court and the district courts to refuse to consider arguments
raised for the first time in reply briefs. Peteet v. Dow Chem. Co., 868 F.2d 1428,
1437 (5th Cir. 1989); Senior Unsecured Creditors’ Comm. of First RepublicBank
Corp. v. FDIC, 749 F. Supp. 758, 772 (N.D. Tex. 1990). Although a number of
months passed between the filing of DISD’s reply brief and the district court’s
granting of summary judgment, there is no indication that Gillaspy requested
an opportunity to respond, nor any indication that the district court invited or
allowed Gillaspy an opportunity to file supplemental briefing. Because our
                                No. 06-11204

jurisprudence is less than clear, we think it prudent to reverse the summary
judgment as to these claims and remand the case to the district court to allow
Gillaspy to respond and offer additional argument and evidence if she has any.
                                     III.
      For the foregoing reasons, we REVERSE the district court’s order granting
summary judgment in DISD’s favor on Gillaspy’s discrimination claims for
failure to promote her to ACS in May 2003 and July 2004, and on her retaliation
claims arising from the failure to promote her in August 2003 and July 2004.
Otherwise, summary judgment is AFFIRMED. This matter is REMANDED for
further proceedings consistent with this opinion. We express no views as to the
ultimate merits of the claim; we conclude only that the matter should not be
resolved on summary judgment.
      AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.
