     Case: 18-51086      Document: 00515206992         Page: 1    Date Filed: 11/20/2019




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


                                      No. 18-51086
                                                                                FILED
                                                                        November 20, 2019
                                                                           Lyle W. Cayce
ANTHONY CHAPPLE,                                                                Clerk

              Plaintiff - Appellant

v.

TEXAS HEALTH AND HUMAN SERVICES COMMISSION,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:17-CV-410


Before OWEN, Chief Judge, and SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
       Anthony Chapple brought claims of discriminatory and retaliatory
failure to rehire under Title VII, claiming he was well qualified for the
positions for which he applied and his former employer’s failure to rehire him
was based on his race and sex, and, with respect to positions he subsequently
applied for, his protected activity in filing a charge of discrimination with the
Equal Employment Opportunity Commission.                   The district court granted


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 18-51086    Document: 00515206992     Page: 2   Date Filed: 11/20/2019



                                No. 18-51086
summary judgment for the defendant, a Texas state agency.           On appeal,
Chapple contends the district court erred in granting summary judgment as to
three of the positions for which he applied. For the reasons set forth herein,
we AFFIRM.
                                       I
      Anthony Chapple, an African American male, worked most of his adult
life for Texas state agencies, often within the Texas Health and Human
Services Commission (HHSC). He worked as the Director of Licensing and
Credentialing (DLC) for the Texas Department of Aging and Disability
Services (DADS) for nearly eight years, from September 2004 until August
2012. Beginning in August 2012, he served as Director of Quality Mentoring
Program in DADS. Chapple left the position when he retired in May 2013 and
his replacement was hired shortly thereafter.
      Chapple decided to come out of retirement when the individual hired to
replace him as the DLC left the agency in 2014, at which point Chapple applied
to resume that position.    Mary Henderson, an associate commissioner at
DADS, was responsible for hiring a replacement DLC. Henderson obtained
the earlier job posting for the DLC position from human resources and made
several alterations; relevant here, Henderson changed the screening criteria
by (1) adding a preference for those with advanced degrees, and (2) removing
the use of experience to substitute for an advanced degree. Henderson testified
she did not know Chapple when overseeing hiring for the DLC position in 2014.
Chapple was considered despite not having an advanced degree, but
Henderson did not interview him; instead, she interviewed two other
candidates and ultimately hired Cynthia Bourland. Henderson testified that
Chapple was not selected for an interview because he did not have an advanced
degree, because of a typo in his resume she believed reflected inattention to
detail, and because he was not a current employee. Henderson also testified
                                      2
     Case: 18-51086       Document: 00515206992         Page: 3     Date Filed: 11/20/2019



                                       No. 18-51086
that she decided to interview Bourland because she had a bachelor’s degree in
special education, a master’s in education and education administration, and
background and experience in state health services and licensing and
certification.
       When Chapple learned the DLC position had been filled, he complained
of race and gender discrimination to John Weizenbaum, the commissioner of
DADS, and Chris Traylor, the executive commissioner of HHSC. Chapple filed
a charge of discrimination with the Equal Opportunity Employment
Commission (EEOC) in September or October 2015, which the HHSC received
in November.
       Chapple applied for multiple additional positions from 2015 to 2017, but
only two are relevant to this appeal. 1 In November 2015, Chapple applied for
the Assistant Deputy Inspector General for Policy and External Relations
(ADIGPER) position.          Rebecca Komkov was among those responsible for
deciding who would be hired for the ADIGPER position.                        Chapple was
interviewed for the position, but Komkov later informed Chapple that hiring
for that position had been put on hold. In October 2016, Chapple again applied
for the DLC position that had again become vacant. Henderson was still
responsible for filling this position and again decided not to hire Chapple.
       Chapple filed suit under Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e-2–2000e-3, alleging discrimination based on his race and sex,
as well as retaliation for the seven subsequent positions for which he applied.
Chapple later dropped his claims of retaliation as to four of the positions for



       1  Chapple applied for and was not hired for seven positions over this time period, but
his amended EEOC charge did not specify which failures to hire he claimed were retaliation.
Over the course of the litigation below, however, he amended his complaint several times to
narrow the positions he claims he was not hired for as retaliation for his EEOC charge. On
appeal, he raises only two positions that he was not hired for as retaliation, although the
district court was faced with three.
                                              3
    Case: 18-51086      Document: 00515206992       Page: 4    Date Filed: 11/20/2019



                                    No. 18-51086
which he applied. The district court granted summary judgment in favor of
HHSC (the successor to DADS for purposes of this litigation) 2 as to the
remaining retaliation claims and his claim of discrimination. Chapple appeals.
                                          II
      We review the grant of summary judgment de novo, applying the same
standard as the district court. Great Am. Ins. Co. v. AFS/IBEX Fin. Services,
Inc., 612 F.3d 800, 804 (5th Cir. 2010). “The court shall grant summary
judgment 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); see TIG Ins. Co. v. Sedgwick James of Washington, 276 F.3d
754, 759 (5th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247 (1986)). “Once the moving party has initially shown that there is an
absence of evidence to support the non-moving party’s cause, the non-movant
must come forward with specific facts showing a genuine factual [dispute] for
trial.” U.S. ex rel. Farmer v. City of Houston, 523 F.3d 333, 337 (5th Cir. 2008)
(cleaned up).
                                         III
      Chapple appeals the district court’s grant of summary judgment as to
three positions: (1) the 2014 DLC position, (2) the 2015 ADIGPER position, and
(3) the 2016 DLC position.       We first address his discrimination claim for
HHSC’s failure to hire him for the 2014 DLC position, then turn to his
retaliation claims for the 2015 ADIGPER and 2016 DLC positions.
                                          A
      Chapple first challenges HHSC’s failure to hire him for the DLC position
he previously held for almost eight years, arguing that Henderson, the



      2  DADS was abolished by statute in 2017, after which HHSC was substituted as the
sole defendant. We refer to the employer herein as HHSC.
                                          4
     Case: 18-51086        Document: 00515206992          Page: 5     Date Filed: 11/20/2019



                                        No. 18-51086
decisionmaker, updated the job posting’s preferred qualifications based on
application of an updated set of preferred qualifications and the decision-
maker’s apparent favoritism toward a woman she mentored over other
candidates. As to this position, the district court concluded that “Chapple has
not produced sufficient evidence to show HHSC’s proffered reasons for refusing
to hire him were mere pretexts for discrimination.” We agree.
       Title VII provides that “[i]t shall be an unlawful employment practice for
an employer . . . to fail or refuse to hire . . . any individual . . . because of such
individual’s race, color, religion, sex, or national origin.” 3 42 U.S.C. § 2000e-
2(a). At the summary judgment stage, we (and the district court) apply the
burden-shifting framework set out in McDonnell Douglas v. Green, 411 U.S.
792 (1973).        “First, the employee must prove a prima facie case of
discrimination,” which elements “vary slightly with the type of claim brought,”
but which, once shown, “creates a rebuttable presumption that the employer
unlawfully discriminated against the employee.” Patrick v. Ridge, 394 F.3d
311, 315 (5th Cir. 2004). To rebut this presumption, “the employer must
articulate a legitimate, nondiscriminatory reason for its decision,” which
requires the employer to produce, rather than prove, a nondiscriminatory
reason. Id. Once the employer meets its burden of production, “[t]o avoid



       3 Although a plaintiff may also prevail on summary judgment under a theory that his
or her protected characteristic “was a motivating factor for any employment practice, even
though other factors also motivated the practice,” 42 U.S.C. § 2000e-2(m), Chapple has not
proceeded on that basis and his brief assumes the standard pretext analysis applies to his
claims. See Keelan v. Majesco Software, Inc., 407 F.3d 332, 340–41 (5th Cir. 2005) (setting
out the Fifth Circuit’s analytical framework for pretext and mixed-motives cases on summary
judgment). In applying a mixed-motives analysis, this court asks, at the final stage of a
modified McDonnell-Douglas framework, whether “the defendant’s [proffered reason for not
hiring Chapple], while true, is only one of the reasons for its conduct, and another motivating
factor is the plaintiff’s protected characteristic.” Id. at 341 (quoting Rachid v. Jack In The
Box, 376 F.3d 305, 312 (5th Cir. 2004)). For the reasons set out in the analysis in this section,
Chapple cannot meet this lesser standard either. There is simply no evidence that
discriminatory animus was among the reasons HHSC failed to hire Chapple.
                                               5
    Case: 18-51086    Document: 00515206992     Page: 6   Date Filed: 11/20/2019



                                 No. 18-51086
dismissal on the employer’s motion for summary judgment, the employee must
show that the employer’s putative legitimate, nondiscriminatory reason was
not its real reason, but was merely a pretext for discrimination.” Id. (citations
omitted). Thus, at the final stage, “an employee plaintiff, like any other civil
plaintiff, must . . . demonstrate that there is a material issue of disputed fact
as to discrimination, the ultimate question vel non.” Id. at 315–16 (citing Long
v. Eastfield Coll., 88 F.3d 300, 308 (5th Cir. 1996)). However, “[i]n some
instances, proof of pretext alone will suffice.” Id. at 316 (citing Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000)).
      As the district court correctly notes, the prima facie case for Chapple’s
failure to rehire discrimination claim requires a showing that (1) Chapple
belongs to a protected group; (2) he applied for and was qualified for the job;
(3) he was not hired; and (4) the position was filled by someone outside the
protected class. Blow v. City of San Antonio, 236 F.3d 293, 296 (5th Cir. 2001)
(citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252–53
(1981); Grimes v. Texas Dep’t of Mental Health & Mental Retardation, 102 F.3d
137, 140 (5th Cir.1996)). Chapple easily meets these elements, as he worked
in the exact position for which he applied for almost eight years, and the
position was ultimately filled by a white woman while he is a black male.
HHSC has likewise proffered facially sufficient legitimate, nondiscriminatory
reasons for not hiring Chapple; namely, that he lacked an advanced degree,
that his bachelor’s degree was in an unrelated field, and his application
contained a typo demonstrating a lack of attention to detail.
      On the final, pretext stage, of the burden-shifting framework, the district
court held that Chapple failed to rebut HHSC’s legitimate, nondiscriminatory
reasons with evidence of discrimination. Chapple argues that the summary
judgment record supports his claim of pretext because it contains evidence that
the DLC position had not changed since he held it, the changes do not relate to
                                       6
     Case: 18-51086      Document: 00515206992         Page: 7    Date Filed: 11/20/2019



                                      No. 18-51086
DLC’s job duties, and the changes were counter to state policy. He further
contends that Henderson favored the ultimately successful candidate because
of their participation in a mentorship program together, through which they
developed a rapport. At most, Chapple’s evidence supports an inference that
Henderson favored another individual over him for reasons unrelated to
discrimination. 4 This alternative nondiscriminatory reason is insufficient to
raise an inference that HHSC’s reasons for not hiring him were pretext for
discrimination. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133, 148 (2000) (“[A]n employer would be entitled to judgment as a matter of
law if the record conclusively revealed some other, nondiscriminatory reason
for the employer’s decision.”). There is simply no evidence of discriminatory
animus on Henderson’s part.
       Chapple also cannot defeat summary judgment by showing he was
clearly better qualified for the position because it is not at all clear that
Chapple was better qualified for the DLC position. See Moss v. BMC Software,
Inc., 610 F.3d 917, 927–28 (5th Cir. 2010) (holding the “clearly better qualified”
standard remains one way to infer pretext). Despite his years of service in that
position, this court has held that an applicant’s “better education, work
experience, and longer tenure with the company do not establish that he is
clearly better qualified.” Price v. Fed. Exp. Corp., 283 F.3d 715, 723 (5th Cir.
2002). Chapple was unquestionably qualified, and he was appropriately
considered a finalist for the position. However, Bourland was at least equally
qualified. Bourland’s qualifications included a bachelor’s degree in a related



       4 John Weizenbaum’s testimony that the DLC’s job duties were basically the same as
when Chapple held the position supports this view of the evidence because it rebuts the idea
that an advanced degree is now required when previously it was not, and that experience
was not an adequate substitute. The fact that the State Auditor recommends that
“[e]xperience and education may be substituted for one another” provides some additional
support for this view.
                                             7
    Case: 18-51086     Document: 00515206992     Page: 8   Date Filed: 11/20/2019



                                  No. 18-51086
field, an advanced degree, and licensing and certification experience in another
Texas agency. On such a record, it does not appear that Chapple can be
characterized as “clearly better qualified.”
      For these reasons, the district court did not err in granting summary
judgment rejecting Chapple’s claim of race and sex discrimination in failing to
hire him for the DLC position in 2014.
                                        B
      Chapple next challenges the district court’s grant of summary judgment
as to his claim that he was retaliated against when HHSC failed to hire him
for the ADIGPER position in 2015 and the DLC position in 2016. As to the
2015 ADIGPER position, the district court held that Chapple could not
establish a prima facie case of retaliation because he “has failed to produce
sufficient evidence demonstrating the decision makers . . . knew of his EEOC
complaint when they decided not to hire him.” With respect to the 2016 DLC
position, the district court concluded that “Chapple has not established a prima
facie case of retaliation because he has not produced evidence demonstrating
Henderson would have hired him as the Licensing Director in 2016 but for the
EEOC complaint.” With respect to both positions, the district court relied on
the legal premise that “[i]n order to establish a causal connection” for a prima
facie case, “Chapple must produce evidence showing that but for his 2015
EEOC complaint, HHSC would have hired him for each of the positions to
which he applied.” The district court erred in this respect.
      Title VII prohibits discrimination against an employee or applicant for
employment “because [the applicant] has opposed any practice made an
unlawful employment practice by this subchapter, or because he has made a
charge . . . under this subchapter.” 42 U.S.C. § 2000e-3(a). This court employs
the McDonnell-Douglas burden-shifting framework for retaliation claims. See
Rios v. Rossotti, 252 F.3d 375, 380 (5th Cir. 2001). Accordingly, a plaintiff must
                                         8
    Case: 18-51086     Document: 00515206992      Page: 9   Date Filed: 11/20/2019



                                  No. 18-51086
first establish a prima facie case, after which the defendant must articulate a
legitimate, non-retaliatory reason for the adverse action, at which point the
burden shifts back to the plaintiff to “adduce sufficient evidence that would
permit a reasonable trier of fact to find that the proffered reason is a pretext
for retaliation.” Id. (cleaned up).
      A retaliation plaintiff can make out a prima facie case of retaliation with
three elements: “(1) the employee engaged in activity protected by Title VII; (2)
the employer took adverse employment action against the employee; and (3) a
causal connection exists between that protected activity and the adverse
employment action.” Fisher v. Lufkin Indus., Inc., 847 F.3d 752, 757 (5th Cir.
2017) (citing Zamora v. City of Houston, 798 F.3d 326, 331 (5th Cir. 2015)).
Contrary to the district court’s conclusion, the “causal connection” prong of a
retaliation plaintiff’s prima facie case does not incorporate a but-for standard
of causation. In University of Texas Southwestern Medical Center v. Nassar,
570 U.S. 338 (2013), the Supreme Court announced that “retaliation claims
must be proved according to traditional principles of but-for causation.” 570
U.S. at 360. The Supreme Court in Nassar did not specify at what stage of the
burden-shifting analysis the but-for causation should be incorporated.
However, we have placed the requirement of showing but-for causation at the
final, pretext stage, rather than the prima facie stage, in a Title VII retaliation
case. Feist v. Louisiana, 730 F.3d 450, 454 (5th Cir. 2013) (placing Nassar’s
but-for causation inquiry at the pretext stage in a Title VII retaliation case);
Garcia v. Prof’l Contract Servs., Inc., 938 F.3d 236, 241–42 (5th Cir. 2019). The
district court thus legally erred in requiring a showing of but-for causation at
the prima facie stage of Chapple’s retaliation claims.
      With respect to the 2015 ADIGPER position, the district court’s
conclusion that any evidence that a relevant decisionmaker knew of Chapple’s
EEOC charge when deciding not to hire him for the 2015 ADIGPER position
                                        9
   Case: 18-51086    Document: 00515206992      Page: 10   Date Filed: 11/20/2019



                                 No. 18-51086
was merely speculative is also incorrect. Chapple presented evidence that
Stuart Bowen, the inspector general who ultimately decided not to hire
Chapple for the position, may have contacted his references, who knew about
the charge, and that EEOC complaints were regularly discussed at executive
team meetings that Bowen attended. Although Chapple’s declaration is not a
model of clarity on this point, he does state that “[w]henever an executive team
member became aware that an employee was or had filed a complaint of racial
discrimination, it was immediately escalated to the commissioner,” as “[t]here
was concern that this issue would get in the media and paint the agency in a
negative light.” These statements, when read in the light most favorable to
Chapple, could lead a reasonable jury to infer that Bowen knew of Chapple’s
EEOC charge. See Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 241
(5th Cir. 2015).
      Despite these errors, we may affirm on any ground supported by the
record and raised below. See McIntosh v. Partridge, 540 F.3d 315, 326–27 (5th
Cir. 2008). We conclude that Chapple fails to raise a genuine dispute of
material fact that but for his EEOC charge, he would have been hired for the
2015 ADIGPER position. HHSC asserted in the district court, and contends
on appeal, that the position was ultimately cancelled and that this cancellation
constituted a legitimate, nonretaliatory reason that Chapple was not hired.
Chapple’s responsive evidence—that Bowen decided to withdraw the position
after Komkov, one of those responsible for hiring for the ADIGPER position,
told him that Chapple was a top candidate for the position—is insufficient to
show pretext. After all, Komkov testified that she had been skeptical from the
start of filling the ADIGPER position because “she was recommending that
[they] have two managers,” rather than the ADIGPER position. This evidence
is insufficient for a reasonable jury to conclude that the reason Komkov gave
for cancelling the position—that the position was “on hold pending
                                      10
    Case: 18-51086    Document: 00515206992      Page: 11   Date Filed: 11/20/2019



                                  No. 18-51086
confirmation of organizational structure and needs”—was pretext for
retaliation.   At best, Chapple’s evidence implicates suspicious timing, but
“[t]iming standing alone is not sufficient absent other evidence of pretext.”
Burton, 798 F.3d at 240 (internal quotations omitted).
      As for the 2016 DLC position, although the district court was wrong to
hold that Chapple’s failure to show but-for causation resulted in a failure of his
prima facie case, we find that this failure dooms his claim at the pretext stage.
HHSC contended below, and maintains on appeal, that Chapple was less
qualified than the ultimately successful candidate for the 2016 DLC position.
As the district court noted, each of the three candidates interviewed for the
position had an advanced degree (which Chapple lacked), and the candidate
that was eventually hired had a Ph.D. Chapple argues retaliation can be
inferred because he was in the top ten candidates who applied for the position
in 2014 but was not ranked in the top ten among applicants for the 2016 DLC
position.   However, Chapple’s ranking vis-à-vis other candidates does not
change the qualifications of those selected for interviews or otherwise rebut
the veracity of the reason for selecting them over Chapple. Moreover, as the
district court pointed out, there were far more applicants in 2016 for the DLC
position than in 2014, which accounts for his dropping out of the top ten. In
short, Chapple cannot raise a genuine dispute of material fact that, at the
ultimate pretext stage, his qualifications were not the true reason that HHSC
hired someone else, or that he would have been hired but for his EEOC charge.
See Rios, 252 F.3d at 380.
                                       ***
      For these reasons, the judgment of the district court is AFFIRMED.




                                       11
