     Case: 12-20691       Document: 00512346297         Page: 1     Date Filed: 08/19/2013




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

                                                                            FILED
                                                                          August 19, 2013

                                       No. 12-20691                        Lyle W. Cayce
                                                                                Clerk

WILL CHURCHILL,

                                                  Plaintiff-Appellant
v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CV-2458


Before STEWART, Chief Judge, DAVIS, and WIENER, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Will Churchill (“Churchill”) appeals the dismissal on
summary judgment of his employment discrimination claim against Defendant
Texas Department of Criminal Justice (“TDCJ”). Finding no error, we AFFIRM
for the reasons more fully set forth below.
                                             I.
       Churchill, a 55-year-old, African American male, alleges that he was
discriminated against based on his race when TDCJ failed to hire him for the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-20691

position of Sergeant of Correctional Officer, Correctional Training Instructor
(“Training Instructor”).1 The position instead went to Vickie Mossbarger
(“Mossbarger”), a white female, who Churchill contends was substantially less
qualified for the position.
       Before applying for the instructor position, Churchill worked for the TDCJ
for approximately twenty-five years, retiring in January 2010. After six months
of retirement, Churchill sought to return to work and applied for the Training
Instructor position. In order to qualify for the position, a candidate needed a
high school diploma or GED and a minimum of two years of full time correctional
custody     or   law    enforcement       experience.     Churchill      and    nine    other
candidates—including Mossbarger—met the minimum qualifications and
interviewed for the position. Major Charles Siringi, who is also African
American, was the primary interviewer and he, along with Brian Blanchard,
TDCJ’s assistant director of training, conducted the interviews. While he did not
participate in the interview process or make the hiring decision, Jason Heaton,
the Director of TDCJ’s Correctional Training and Staff Development
Department, reviewed the packet of candidate selection documents and signed
off on the decision.
       The interview of each applicant lasted approximately fifteen minutes. For
ten minutes, candidates were asked a specific set of identical questions. Siringi
transcribed the candidates’ answers. For five minutes, candidates gave a
presentation on a topic of their choosing. Churchill spoke on investigating
employee-offender relationships; Mossbarger gave a PowerPoint presentation on
time management accompanied with handouts. In evaluating the candidates,
Siringi used a standardized instructor evaluation form which assessed



       1
         While Churchill initially alleged age discrimination as well, that claim was dismissed
and is not at issue in this appeal.

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                                      No. 12-20691

performance on a 1-5 scale in 14 different categories. Out of a possible 70 points,
Churchill scored 64; Mossbarger scored 68.2
       After Siringi and Blanchard agreed to select Mossbarger, Siringi gathered
the required documents to be submitted to Director Heaton for his review. TDCJ
policy lists a number of documents to be included in the packet, and the
presentation grading sheets and the question and answer documents for each
candidate interviewed are among those.3 One specific form in the packet asked
for “all job-related factors upon which the decision was based.” Under the
heading “Rationale for Selection,” Siringi wrote: “Training background along
with agency policies experience related to Human Resources and offender
classification knowledge.”
       Once Churchill learned of Mossbarger’s selection for the position, he filed
a charge of discrimination with the Equal Employment Opportunity Commission
and subsequently filed suit. Churchill admitted that he had no direct evidence
of racial animus on the part of Siringi, Blanchard, or Heaton, but he contended
that race motivated the hiring decision because Mossbarger was a white female
with “less experience and less education” than he.
       The district court granted summary judgment for TDCJ, finding that
Churchill failed to raise a genuine issue of material fact that discrimination
occurred. Churchill now appeals.




       2
          Of the fourteen different categories, Mossbarger and Churchill received the same
score in nine categories; Mossbarger outscored Churchill in four categories: “Voice Control,”
“Trainee Participation,” “Training Aids,” and “Overall Presentation Skills”; and Churchill
outscored Mossbarger in one category: “Gestures.”
       3
       According to the “Checklist for Selection Packets,” Form “PERS 287, Interview
Documentation Form (one [1] for each applicant interviewed)” is to be included.


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                                        II.
      This court reviews a district court’s grant of summary judgment de novo,
viewing all disputed facts and inferences in the light most favorable to the
non-movant. Rockwell v. Brown, 664 F.3d 985, 990 (5th Cir. 2011). Summary
judgment is appropriate when 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). Mere conclusory allegations are insufficient to defeat summary judgment.
Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).
                                        III.
      Under Title VII of the Civil Rights Act of 1964, it is unlawful for an
employer to discriminate against an employee “because of such individual’s race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). Intentional
discrimination may be proven by either direct or circumstantial evidence.
Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000). When
there is no direct evidence of discrimination, a claim will be analyzed under the
familiar McDonnell Douglas burden-shifting framework. Burrell v. Dr.
Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir. 2007); see
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Because there is
no direct evidence of discrimination here, the McDonnell Douglas framework
applies.
      Accordingly, the plaintiff alleging discrimination must first make a prima
facie showing that: “(1) he belongs to a protected class; (2) he applied for and was
qualified for a position for which applicants were being sought; (3) he was
rejected; and (4) a person outside of his protected class was hired for the
position.” Burrell, 482 F.3d at 412. If the plaintiff succeeds in making the prima
facie case, the burden shifts to the employer to “articulate some legitimate,
nondiscriminatory reason” for the employer’s action. McDonnell Douglas, 411
U.S. at 802. If the employer offers a nondiscriminatory reason, the burden shifts

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                                  No. 12-20691

back to the plaintiff to show that “the defendant’s proffered reason is not true,
but instead is a pretext for intentional discrimination.” Price v. Fed. Exp. Corp.,
283 F.3d 715, 720 (5th Cir. 2002); see Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 143 (2000). A plaintiff may demonstrate pretext by “showing that
the employer’s proffered explanation is false or unworthy of credence.” Laxton
v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003) (internal quotation marks omitted).
“An explanation is false or unworthy of credence if it is not the real reason for
the adverse employment action.” Id. Alternatively, a “fact finder can infer
pretext if it finds that the employee was ‘clearly better qualified’ (as opposed to
merely better or as qualified) than the employees who are selected.” EEOC. v.
La. Office of Cmty. Servs., 47 F.3d 1438, 1444 (5th Cir. 1995); see also Price, 283
F.3d at 723.
      On appeal, the parties do not dispute that Churchill established a prima
facie case. In articulating a legitimate, nondiscriminatory reason, TDCJ
contends that Mossbarger outperformed Churchill and the other candidates in
the interview and that interview performance is the most important criterion.
Consequently, she was offered the job.
      This court has held that “[a]n employer’s subjective reason for not
selecting a candidate, such as a subjective assessment of the candidate’s
performance in an interview, may serve as a legitimate, nondiscriminatory
reason for the candidate’s non-selection.” Alvarado v. Tex. Rangers, 492 F.3d
605, 616 (5th Cir. 2007). Even so, an employer “must articulate in some detail
a more specific reason than its own vague and conclusional feeling about the
employee.” Patrick v. Ridge, 394 F.3d 311, 317 (5th Cir. 2004).
      Here Heaton found Mossbarger’s interview answers superior to
Churchill’s, as her answers were “more thorough and more specific to the
questions that were asked.” And Blanchard stated that Mossbarger’s
presentation was “demonstrably more professional and focused than Mr.

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                                  No. 12-20691

Churchill’s and certainly more original.” Siringi found that Churchill did not
demonstrate much enthusiasm about his topic and that the handouts he used
with his presentation were appropriate, but they could have been taken from
existing TDCJ materials. These conclusions are reflected in the high score
(68/70) that Mossbarger received on her presentation score sheet.
      Because TDCJ offered a nondiscriminatory reason for its decision, the
burden shifts back to Churchill to show that TDCJ’s reason is merely a pretext
for discrimination. Churchill has two methods available to try to prove that
TDCJ’s proffered reason was a pretext for racial discrimination: (1) Churchill
could show that TDCJ’s proffered explanation is false or unworthy of credence;
or (2) Churchill could try to prove that he is “clearly better qualified” than the
person selected for the position. Burrell, 482 F.3d at 412. Churchill argues both.
                                        A.
      Churchill first argues that TDCJ’s proffered reasons for selecting
Mossbarger are false or unworthy of credence. Namely, Churchill argues that
Siringi’s written rationale for selecting Mossbarger (“Training background along
with Agency policies experience related to Human Resources and offender
classification knowledge”) were unmentioned job requirements that were not
listed in the posting for the position, but were nonetheless given as the rationale
for selecting Mossbarger. Churchill invokes dicta from this court’s decision in
Moss v. BMC Software, Inc., 610 F.3d 917, 926 (5th Cir. 2010), which states: “An
employer’s reliance on a previously unmentioned job requirement to justify a
challenged hiring decision would raise a genuine issue of material fact as to
pretext.”
      Churchill also argues that TDCJ Policy PD-71 lists as “factors to be
considered when selecting an applicant”: “applicant’s response to interview
questions”; “[j]ob-related education, experience, certification, and training”;
“communication skills”; and “[e]mployer reference information.” Siringi and

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                                  No. 12-20691

Blanchard stated that the interview is the most important factor and thus they
did not consider applicants’ education, experience, certification, or training after
they were satisfied the candidates had met the minimum education and
experience requirements to qualify for an interview.
      Further, Churchill claims that TDCJ has provided inconsistent reasons for
its hiring decision and that such inconsistency is evidence of pretext. See Burrell,
482 F.3d at 415 (finding that when a rationale for a hiring decision does not
remain the same, a jury can infer pretext from this “unexplained inconsistency”).
Churchill argues that in response to an interrogatory, TDCJ stated that
Mossbarger was selected, in part, because of her “varied experience with the
agency,” but that this statement is inconsistent with Siringi’s written rationale
for selecting Mossbarger, which did not mention her varied experience with the
agency.
      Our review of the record reveals the following. Blanchard stated that years
of experience and formal education are not the best indicators of who will make
the best training instructor; rather, in the search for an effective instructor,
prior tenure or education are “of little consequence.” Further, Blanchard claimed
that the length of service has never been a primary consideration on any
selection board on which he has served. Moreover, Siringi indicated that he was
“puzzled” by Churchill’s suit as Siringi is the same race as Churchill, and Siringi
has recently selected African Americans as trainers in “three out of four selection
boards”—this instance being the one exception in which he did not select an
African American.
      While Churchill has offered at least some evidence of pretext, it is clear to
us on this record that TDCJ must prevail nonetheless. First, the “mere fact that
an employer uses subjective criteria is not . . . sufficient evidence of pretext.”
Manning v. Chevron Chem. Co., 332 F.3d 874, 882 (5th Cir. 2003). Additionally,
as this court has stated many times, “[A]n employer’s ‘disregard of its own hiring

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                                     No. 12-20691

system does not of itself conclusively establish that improper discrimination
occurred or that a nondiscriminatory explanation for an action is pretextual.’”
EEOC v. Tex. Instruments Inc., 100 F.3d 1173, 1182 (5th Cir.1996) (quoting
Risher v. Aldridge, 889 F.2d 592, 597 (5th Cir. 1989)).4
      It is true that Siringi and Blanchard may not have followed “by the book”
TDCJ hiring policy, and in retrospect Siringi admitted in his deposition that the
rationale he wrote for selecting Mossbarger did not include everything he
“wanted to put in it.” He asserts that the information in the blank was accurate,
but her interview performance was an additional justification for her selection.
      Even so, we must remain cognizant that the ultimate issue is “whether the
employer’s selection of a particular applicant over the plaintiff was motivated by
discrimination.” Deines v. Tex. Dep’t. of Protective & Regulatory Servs., 164 F.3d
277, 281 (5th Cir. 1999) (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511
(1993)). In Reeves, the Supreme Court explained that although a plaintiff may
have set forth sufficient evidence to reject the defendant’s proffered explanation,
it may still present a circumstance where “no rational factfinder could conclude
that the action was discriminatory.” 530 U.S. at 148. This could occur when “the
record conclusively revealed some other, nondiscriminatory reason for the
employer’s decision, or if the plaintiff created only a weak issue of fact as to
whether the employer’s reason was untrue and there was abundant and
uncontroverted independent evidence that no discrimination had occurred.” Id.;
see Rubinstein v. Adm’r of Tulane Educ. Fund, 218 F.3d 392, 400 (5th Cir. 2000)
(affirming summary judgment for employer even though employee demonstrated
some evidence of pretext because there was “an overall lack of any evidence of




      4
         See also Sanchez v. Tex. Comm’n on Alcoholism, 660 F.2d 658, 662 (5th Cir.1981)
(“The Commission’s disregard of its own hiring system does not prove racial discrimination
absent a showing that discrimination was a motive in the action taken.”).

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                                        No. 12-20691

discriminatory intent” and employee’s evidence of pretext was “not so persuasive
so as to support an inference that the real reason was discrimination”).5
       While Churchill presented some evidence of pretext, our careful review of
the record, viewed in the light most favorable to Churchill’s claim, compels the
conclusion that the evidence taken together does not raise a legitimate fact issue
as to discriminatory intent.
       Though Title VII plaintiffs need not always present evidence above and
beyond their prima facie case and pretext, see Reeves, 530 U.S. at 148, recovery
under Title VII still requires discrimination. Here the packet Siringi completed
and submitted included the form with the written rationale for selection along
with the presentation score sheet and interview answers. Siringi, an African
American, functioned as the principal decision maker and it is uncontested that
he had selected African Americans for training positions in the last three
openings he filled. There is no evidence of any racial remarks or discriminatory
animus exhibited by Siringi, Blanchard, or Heaton. Churchill’s subjective belief
that race was a motivating factor in the hiring decision because Mossbarger was
white, female, and younger than he finds no support in the record. Churchill has
raised “only a weak issue of fact” and therefore cannot survive summary
judgment. See id.
                                               B.
       Churchill      additionally     argues       that   he    established      pretext     by
demonstrating he is “clearly better qualified” than Mossbarger. He argues that
“evidence of [a] plaintiff’s superior qualification is . . . probative of pretext.”
Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 357 (5th Cir. 2001) (citing


       5
        See also Pratt v. City of Hous., Tex., 247 F.3d 601, 606 (5th Cir. 2001) (“‘A prima facie
case and sufficient evidence to reject the employer’s explanation’ may permit a trier of fact to
determine that an employer unlawfully discriminated, and may therefore be enough to prevent
summary judgment. This showing, however, is not always enough to prevent summary
judgment in favor of the employer.” (citation omitted) (quoting Reeves, 530 U.S. at 148)).

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Deines, 164 F.3d at 281). One can hardly find mendacity by the employer when
“its judgments on qualifications are somewhere within the realm of reason.”
Deines, 164 F.3d at 282. The fact that one candidate has “better education, work
experience, and longer tenure with the company do[es] not establish that he is
clearly better qualified.” Price, 283 F.3d at 723.
      Here Churchill points to his education, certifications, and training
experience to argue that he is clearly more qualified than Mossbarger. Churchill
compares himself to Mossbarger in nine areas in which his qualifications exceed
Mossbarger’s. As the district court noted, however, Mossbarger met the
minimum job qualifications and had her own array of                 qualifications and
certifications not considered or accounted for by Churchill.6
      The district court rejected Churchill’s argument that he was clearly more
qualified. Churchill claims that in doing so it used an incorrect legal standard
when it articulated that a losing candidate’s qualifications must “leap from the
record and cry out to all who would listen that he was vastly—or even
clearly—more qualified for the subject job.” Id. (quoting Odom v. Frank, 3 F.3d
839, 847 (5th Cir. 1993)). Churchill argues that this is no longer the correct legal
standard because it was rejected by the Supreme Court in Ash v. Tyson, 546 U.S.
454 (2006). In Ash, the Supreme Court considered and rejected the Eleventh
Circuit’s formulation that “[p]retext can be established through comparing
qualifications only when the disparity in qualifications is so apparent as
virtually to jump off the page and slap you in the face,” because it was “unhelpful
and imprecise.” Id. at 456-57.




      6
        Mossbarger had, for example, certificates in Basic Supervisory Training, Hostage
Negotiator Training, Classification Case Manager Training, Foundation Skills for Trainers,
TDCJ Pre-Service and In-Service Training, HR Rep Training, Safe Prison Program Training,
Techniques for Group Instruction, and Training for Trainers.

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          We agree with Churchill that the district court’s recitation of the “leap
from the record” standard is similarly “unhelpful and imprecise.” See id. Even
so, it is clear that a plaintiff must still establish that he is “clearly better
qualified” under Ash.7 Moreover, it is clear that the “clearly better qualified”
standard “should be understood to mean that 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.” Bright v. GB Bioscience Inc., 305 F. App’x 197, 205 n.8
(5th Cir. 2008) (quoting Deines, 164 F.3d at 280-81).
          Regardless of the terminology used by the district court, our review of the
record reveals that the conclusion reached by the district court was plainly
correct. Demonstrating that one is “clearly better qualified” is understandably
very difficult to meet so as to avoid judicial second-guessing of business
decisions; and it is well-established that better education, work experience,
and/or longer tenure with the company does not necessarily make a candidate
clearly better qualified. See Price, 283 F.3d at 723. Selecting Mossbarger over
Churchill was well within the “realm of reason,” see Deines, 164 F.3d at 282, and
as discussed above, Churchill failed to raise a genuine issue of material fact that
TDCJ’s selection decision was motivated by discrimination. Therefore, summary
judgment was appropriate.
                                                   IV.
          For the reasons set forth above, we AFFIRM the judgment of the district
court.




          7
              Moss, 610 F.3d at 927 (“The standard articulated . . . ‘clearly better qualified,’ is good
law.”).

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