                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 17, 2004

                       _____________________             Charles R. Fulbruge III
                                                                 Clerk
                            No. 03-21061
                          Summary Calendar
                       _____________________

                   LANA SANDERS; BARBARA TURNER,

                     Plaintiffs - Appellants,

                               versus

                 ANADARKO PETROLEUM CORP.; ET AL.,

                            Defendants,

         ANADARKO PETROLEUM CORP.; PHILLIPS PETROLEUM CO.,

                      Defendants - Appellees.

_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
               District Court Cause No. H-02-CV-423
_________________________________________________________________

Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.1

EDWARD C. PRADO, Circuit Judge.

     In this appeal, plaintiffs-appellants Lana Sanders and

Barbara Turner challenge the dismissal of their employment

discrimination claims against defendants-appellees Anadarko

Petroleum Corporation (Anadarko) and Phillips Petroleum Company

(Phillips).   After considering the appellants’ arguments, this

     1
      Pursuant to 5TH CIRCUIT RULE 47.5, this Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.

                                  1
court reverses the district court’s order dismissing Turner’s

Title VII claim and affirms the district court in all other

respects.

                    Background for the Lawsuit

     The appellants were longtime employees of Phillips.    During

the time period of the appellants’ allegations, the appellants

worked for Phillips as operators on the Mahogany, an oil

production platform located off the shore of Louisiana.    The

Mahogany is jointly owned by Phillips, Anadarko, and a non-party.

In June 2000, Anadarko purchased the controlling interest in the

Mahogany.   At that time, two eight-person crews operated the

Mahogany.   Each crew was comprised of seven men and one woman.

     After gaining control of the Mahogany, Anadarko accepted

applications from the sixteen members of the Phillips crew who

operated the Mahogany.    Anadarko hired the fourteen male crew

members, but did not hire Sanders and Turner, the only females

who worked on the Mahogany.

     In response, Sanders and Turner sued Anadarko and Phillips

for various claims under Title VII, the Texas Commission on Human

Rights Act (THCRA), and the Age Discrimination Employment Act

(ADEA).   The district court referred the appellants’ lawsuit to

the magistrate judge.    After considering motions for summary

judgment from Anadarko and Phillips, the magistrate judge

recommended dismissing all the appellants’ claims except for



                                  2
Turner’s Title VII claim.   The district court adopted the

magistrate judge’s recommendation.

     Anadarko then moved for reconsideration and asked the

district court to dismiss Turner’s remaining claim.    After

reviewing the record, the district court dismissed Turner’s last

claim.   On appeal, the appellants challenge the dismissal of

Turner’s Title VII claim against Anadarko and the dismissal of

Sanders’s gender discrimination and retaliation claims against

Phillips.

               Turner’s Gender Discrimination Claim

     Turner alleges that Anadarko failed to hire her to work as

an operator on the Mahogany because she is female.    Anadarko,

however, contends that Turner is not qualified to work as an

operator on the Mahogany.   Anadarko maintains that a person

qualified to work on the Mahogany must have a strong background

in one of six fields of expertise.    Anadarko also maintains that

its operators must have the ability to perform all oil-platform

tasks, including crane operation.    Anadarko claims that Turner

does not meet its qualifications.

     In its motion for summary judgment and its motion for

reconsideration, Anadarko argued that Turner failed to establish

a prima facie case of gender discrimination under Title VII

because she does not meet its requirements for working on the

Mahogany.   The district court agreed, reasoning that Turner



                                 3
failed to present evidence to show that Anadarko’s stated

qualifications are not requirements for working on the Mahogany

or that the men who were hired failed to satisfy Anadarko’s

qualifications.   In her first issue, Turner contends the district

court erred by finding that she failed to establish a prima facie

case for her failure to hire claim against Anadarko.

     We review the district court’s grant of summary judgment de

novo, applying the same process used by the district court.2

“Summary judgment is proper ‘if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to

judgment as a matter of law.’”3

     Prima Facie Case.   In an employment discrimination case, the

plaintiff bears the initial burden of first establishing a prima

facie case of unlawful discrimination.4   To meet this burden, the

plaintiff must show: (1) she is a member of a protected class,

(2) she was qualified to do the job, (3) she suffered an adverse

employment action, and (4) others outside the protected group



     2
      See FED. R. CIV. P. 56(c); Rios v. Rossotti, 252 F.3d 375,
378 (5th Cir. 2001).
     3
      Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912 (5th Cir.
1992)(quoting FED. R. CIV. P. 56(c)).
     4
      See Reeves v. Sanderson Plumbing Prod., 530 U.S. 133, 142
(2000).

                                  4
were treated more favorably than she was.5   The plaintiff’s

burden of establishing a prima facie case is “not onerous.”6     “To

establish a prima facie case, a plaintiff need only make a very

minimal showing.”7

     In the instant case, Turner presented evidence that shows

that Andarko hired all of the males who worked on the Mahogany,

but that Anadarko did not hire the only two women who worked on

the Mahogany.   Turner also presented evidence that she worked for

Phillips for nineteen years – including fourteen years on oil

platforms and four years on the Mahogany – and that she received

high performance evaluations during the time she worked on the

Mahogany.   In addition, Turner presented evidence that she is

certified to operate the Mahogany’s crane.   Turner’s satisfactory

job performance as an operator on the Mahogany for four years and

her nineteen years of experience as an employee of Phillips

provides evidence that she met the minimum qualifications for

working as an operator on the Mahogany.   Turner’s evidence

satisfies her burden to make a prima facie case of unlawful

discrimination.   The district court erred by requiring Turner to

present evidence that Anadarko’s stated qualifications were not

     5
      See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973).
     6
      See Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54
(1981).
     7
      Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th
Cir. 1996) (citations omitted).

                                 5
required for working on the Mahogany or that the men who were

hired failed to satisfy Anadarko’s qualifications.8

     Pretext.     “Establishing the prima facie case raises an

inference of unlawful discrimination, and the burden of

production then shifts to the defendant-employer to proffer a

legitimate, nondiscriminatory reason for the challenged

employment action.”9     If the defendant-employer meets this

burden, the plaintiff must then produce evidence to demonstrate

that the employer’s presumably nondiscriminatory reason for not

hiring her was a pretext for intentional discrimination.10

“Whether summary judgment is appropriate depends on numerous

factors, including ‘the strength of the plaintiff's prima facie

case, the probative value of the proof that the employer's

explanation is false, and any other evidence that supports the

employer's case and that properly may be considered.’”11

     The district court found that Turner failed to raise a



     8
      See Celestine v. Petroleos de Venezuella SA, 266 F.3d 343,
356 (5th Cir. 2001) (holding that district court erred by
requiring plaintiffs to show that they were better qualified than
employees who were promoted in order to make a prima facie case).
     9
      Blow v. City of San Antonio, 236 F.3d 293, 296-97 (5th Cir.
2001) (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 253-54 (1981)).
     10
          See McDonnell Douglas, 411 U.S. at 804.
     11
      Price v. Fed. Exp. Corp., 283 F.3d 715, 720 (5th Cir.
2002) (quoting Reeves v. Sanderson Plumbing Prods., 530 U.S. 133,
148-49 (2000).

                                   6
question of fact about whether Anadarko’s reason for not hiring

her was a pretext for gender discrimination.       The district court

reasoned that Turner failed “to present evidence demonstrating

that she was clearly better qualified . . . than the men who

received the employment offers.”       In her next issue, Turner

argues that the district court erred by requiring her to show

that she was clearly better qualified for the position she sought

with Anadarko.

     A plaintiff may raise a fact question about pretext by

presenting evidence that she is "clearly better qualified” than

the employee selected for the position in dispute.12        To raise a

fact question about whether she is clearly better qualified, the

plaintiff must show that “disparities in curricula vitae are so

apparent as virtually to jump off the page and slap us in the

face.”13     Pointing to clearly superior qualifications is one way

to demonstrate intentional discrimination, but it is not the only

way.14     A plaintiff may also establish pretext by presenting

evidence that the employer's proffered explanation is false or

unworthy of credence,15 because “it is not the real reason for

     12
      See Celestine v. Petroleos de Venezuella SA, 266 F.3d at
356-57.
     13
          Odom v. Frank, 3 F.3d 839, 847 (5th Cir. 1993).
     14
      See Julian v. City of Houston, Tex., 314 F.3d 721, 728
(5th Cir. 2002).
     15
      See Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003);
Nichols v. Lewis Grocer, 138 F.3d 563, 566 (5th Cir. 1998).

                                   7
the adverse employment action.”16        If, however, a plaintiff

relies on comparative qualifications alone, she must present

evidence that she is clearly better qualified than those

individuals who were hired.17

     In its motion for summary judgment, Anadarko articulated two

non-discriminatory reasons for not hiring Turner.        Anadarko

asserted that it relied on the recommendations of Turner’s

supervisor, George Faulk, in determining who to hire and that

Faulk did not recommend Turner.      Anadarko also asserted that it

decided to hire the seven best qualified members of Turner’s

shift on the Mahogany and that the other seven members of

Turner’s crew were better qualified than Turner.

     In making its case for summary judgment, Anadarko emphasized

its decision to lower the Mahogany’s operating costs by reducing

the number of crew members.     Rather than operate the Mahogany

with eight crew members per shift as Phillips had, Anadarko

explained that it chose to operate the Mahogany with seven crew

members per shift.     Anadarko maintained that operating the

     16
          Laxton, 333 F.3d at 578.
     17
      See Rutherford v. Harris County, Tex., 197 F.3d 173, 182
n.9 (5th Cir. 1999) (not requiring plaintiff to prove that she
was clearly better qualified than males who were promoted because
she did not attempt to prove pretext solely on the basis of her
comparative qualifications); E.E.O.C. v. Manville Sales Corp., 27
F.3d 1089, 1096 n.5 (5th Cir. 1994) (explaining that showing he
is clearly better qualified than those who were not terminated is
one way a plaintiff can show that a reduction-in-force was a
pretext for unlawful discrimination, a plaintiff may prevail
without showing that he is clearly better qualified).

                                     8
Mahogany with fewer people required each crew member to have a

strong background in one of six areas: electrical,18 pneumatic,

mechanical, instrumentation, measurement and crane repair.

Anadarko explained that each crew member worked as an operator.

Anadarko maintained that an operator must also be able to operate

a crane and meet certain medical and physical requirements, which

include climbing ladders and stairs.19    Anadarko contends that

the men who work on the Mahogany meet these requirements, but

that the women do not.   As for Turner, Anadarko asserts that

Turner cannot operate a crane because of problems with depth

perception and she cannot climb stairs.    Anadarko also asserts

Turner lacks a background in any of the six required areas of

expertise.

     In response to the motion for summary judgment, Turner

maintained that: (1) Anadarko’s explanation for not hiring her is

false, (2) Anadarko’s position that it sought to cut operating

costs is not credible, (3) the men who work on the Anadarko are

not more qualified than she is, and (4) she is qualified to work

as an operator on the Mahogany.   To raise a fact question about

Anadarko’s reason for not hiring her, Turner first challenged


     18
      At one point in its motion, Anadarko refers to
“electronics.” Rather than a substantive difference, the
reference appears to be a typo.
     19
      The job requirements Anadarko distributed to the
Mahogany’s crew does not indicate that a background in one of the
six areas or crane operation is required for an operator’s job.

                                  9
Anadarko’s hiring process.    Turner presented evidence that showed

that even though Anadarko insists that its operators must possess

certain qualifications, the person who made the hiring decisions

never ascertained whether the applicants actually met Anadarko’s

requirements.   Specifically, Anadarko employee Tommy Ward

testified during his deposition that he made the hiring decisions

for the Mahogany, and that he made his decisions based on his

review of the crew members’ applications and recommendations from

the crew members’ supervisors.   Ward admitted, however, that he

never actually interviewed the applicants or conducted an

independent investigation into the abilities of the Mahogany’s

crew members.   This evidence raises a fact question about the

legitimacy of Anadarko’s position about its requirements for

operators for the Mahogany and about why Anadarko did not hire

Turner.

     To show that Anadarko’s position about cutting operating

costs is not credible, Turner relied on Ward’s deposition

testimony.   Ward’s testimony clearly indicates that he did not

act on specific instructions to reduce the number of crew members

who worked on the Mahogany.   Instead of specific instructions,

Ward testified that he reduced the number of crew members as part

of a general company policy of operating the Mahogany as cost-

efficiently as possible.   Although this evidence does not prove

that reducing the crew was pretext for gender discrimination, it

is nevertheless probative of whether the decision to reduce

                                 10
personnel was motivated by unlawful animus towards women.

Considering that Anadarko did not hire either of the women who

worked on the Mahogany, but hired all of the men, a reasonable

jury could conclude that Ward’s explanation for reducing the

number of crew members was not the real reason for reducing the

crew.

     Turner also presented evidence to show the falsity of

Anadarko’s position that the men who work on the Mahogany are

better qualified than she is.20   In part, Turner relied on her

deposition testimony that she is better qualified than two male

roustabouts who were hired, Scotty Hazelton and Rod Phillips.

Turner explained that Hazelton was not able to bring the platform

up without her or the other operator directing him.   She also

explained that Rod Phillips did not pay as much attention as she

did to what occurred on the platform and that Phillips did not

understand the flow of the platform to the degree that she did.

Performance evaluations prepared by shift supervisor George Faulk

indicate that Turner received higher performance ratings than

Hazelton and Phillips during the time period they worked together


     20
      If Turner relied on comparative qualifications alone to
show pretext, she would have to raise a fact question about
whether she is “clearly better qualified” than the men Anadarko
hired to survive summary judgment. But because she relies on more
than comparative qualifications, Turner must raise a fact
question about whether the men on her crew are “better qualified”
because one of Anadarko’s non-discriminatory reasons for not
hiring Turner is that the other seven members of Turner’s crew
are better qualified than Turner.

                                  11
on the Mahogany.    Notably, it was Faulk who purportedly provided

the adverse recommendation about Turner.     Turner’s evidence about

the abilities of Hazelton and Phillips raised a question of fact

about whether the men Anadarko hired are actually better

qualified than she is.    The disparity between Faulk’s performance

ratings of Turner and what Faulk purportedly reported to Ward –

that he did not recommend Turner – raises a question about the

truth of Anadarko’s explanation for why it did not hire Turner.

     The training records Turner presented also raise a question

about whether the men who work on the Mahogany are more qualified

than the women.    Ward testified that unlike Phillips, which

classified crew members by specific job titles, Anadarko required

all crew members to work as operators.    Logically, a person with

operator experience is more qualified to work as an operator on

the Mahogany than a person without operator experience.    Yet,

Hazelton’s training record reflects less than one year of

experience as an operator and fifteen years experience as a

roustabout.   A roustabout, unlike an operator, is an unskilled,

general laborer, lacking specialization.21    Similarly, Rod


     21
      See Brown v. Nabors Offshore Corp., 339 F.3d 391, 393 (5th
Cir. 2003) (referring to roustabout as a general laborer on a
jack up drilling or workover rig); Davis v. Odeco, Inc., 18 F.3d
1237, 1239-40 (5th Cir. 1994) (describing roustabout as a
position involving unskilled labor); Leonard v. Dixie Well Serv.
& Supply, Inc., 828 F.2d 291, 293 (5th Cir. 1987) (characterizing
roustabout as a general laborer); Vaughn v. Pool Offshore Co.,
683 F.2d 922, 923 (5th Cir. 1982) (stating that the roustabout
was the rig’s lowest rung on the employment ladder).

                                 12
Phillips’s training record reflects eleven years experience as a

roustabout and no experience as an operator.   The training

records of Patrick Melancon — a crew member on Sanders’s shift –

reflects eleven years experience as a roustabout and no

experience as an operator.22   Jerome Scroggins’s record indicates

he had five years experience as an operator.

     In contrast, Turner’s training record reflects nine years

experience as an operator, following ten years as a roustabout.

Sanders’s training record reflects nine years experience as an

operator, after working as a roustabout for ten years.    The

disparities in the experience levels of Hazelton, Rod Phillips,

Melancon, and Scroggins, as compared to those of Turner and

Sanders, raise a fact question about whether the men are better

qualified than the women and about the credibility of Anadarko’s

explanation for its hiring decisions.   After considering this

evidence, a reasonable jury could conclude that Anadarko’s

position – that the other seven members of Turner’s crew were

better qualified than Turner – is a pretext for unlawful

discrimination.   Even though Turner does not rely on comparative

qualifications alone, this evidence also raises a question of

fact about whether Turner is clearly better qualified than the

men who Anadarko hired.   A reasonable jury could conclude that


     22
      Greg Case, the supervisor for Sanders’s shift on the
Mahogany, indicated in his recommendations to Ward, “[d]on’t let
the title fool you.”

                                 13
Turner is clearly better qualified.

     Finally, Turner also challenged the truth of Anadarko’s

position that she was not qualified to work as an operator

because she lacked experience in one of the six areas, because

she cannot operate a crane, and because she cannot climb stairs.

To show the falsity of this position, Turner presented her

testimony that one of her primary duties was reading the

platform’s instruments and recording the readings.   This evidence

raises a question about whether Turner was unqualified because it

shows that Turner has a background in one of the six areas —

specifically, instrumentation.   As for the crane-operation

requirement, Turner admitted during her deposition that she has

problems with depth perception that make it unsafe for her to

load or unload a boat, but explained that she is certified to

operate a crane to move things on the deck of the platform.    As

for her ability to climb stairs, Turner attested that she passed

Phillips’s physical fitness exam four months before Andarko

obtained control of the Mahogany, and testified in her deposition

that she climbed ladders as part of her work on the Mahogany.

     In determining that Turner did not raise a fact question

about pretext, the district court focused on whether Turner

demonstrated that she was clearly better qualified than the men

Anadarko hired.   Turner, however, was not required to make this

showing for two reasons.   First, Turner did not rely on



                                 14
comparative qualifications alone.      Turner also challenged the

legitimacy of Anadarko’s purported hiring criteria and its

decision to reduce the Mahogany’s crew, and presented evidence

that raised fact questions about these matters.       Second, even if

Turner had relied on comparative qualifications alone, Turner is

not required to demonstrate that she is clearly better qualified

at the summary judgment stage.    Instead, she is required to raise

a question of fact about whether she is clearly better qualified.

Here, a reasonable jury could conclude that Turner is clearly

better qualified.

     Considering Turner’s nine years experience as an operator

and her four years as an operator on the Mahogany, and the fact

that Andarko did not hire either of the women who worked on the

Mahogany, a reasonable jury could conclude that Anadarko’s

purported reason for not hiring Turner is a pretext for gender

discrimination.   The district court erred by requiring Turner to

demonstrate that she is clearly better qualified than the men who

were hired, rather than raise a genuine issue of material fact

about whether Anadarko’s reason for not hiring her is a pretext

for unlawful discrimination.

                    Sanders’s Claim Under the TCHRA

     In its motion for summary judgment, Phillips argued that

Sanders lacked standing to pursue her claims under the TCHRA

because Sanders did not live or work in Texas, nor was she



                                  15
seeking employment in Texas.         After considering this argument,

the magistrate judge recommended dismissing Sanders’s TCHRA

claims.      The magistrate judge reasoned that the plain language of

the statute precludes a person employed, or seeking employment,

outside of Texas from bringing a claim against her employer under

the TCHRA.      The district court adopted the magistrate judge’s

recommendation and dismissed Sanders’s claims under the TCHRA.

On appeal, Sanders challenges the dismissal of her claims against

Phillips.

     The TCHRA23 was enacted to coordinate and conform with

federal law under Title VII and the ADEA.24        The statute clearly

indicates that it is intended to protect “persons in [Texas] . .

. from discrimination in . . . employment.”25        The statute

explicitly precludes coverage of “an employer with respect to the

employment of a person outside this state.”26

     In this case, it is undisputed that Sanders does not live,

and did not work, in Texas.         Instead of working in Texas, Sanders

worked on the Mahogany which is located 77 miles off the shore of

Louisiana.      Sanders, however, contends the district court erred

based on an affidavit she filed in response to Phillips’s motion

     23
          See TEX. LAB. CODE ANN. § 21.001-22.004 (Vernon Supp. 2004).
     24
      See Caballero v. Central Power and Light Co., 858 S.W.2d
359, 361 (Tex. 1993).
     25
          TEX. LAB. CODE ANN. § 21.001 (Vernon 1996).
     26
          TEX. LAB. CODE ANN. §   21.111 (Vernon 1996).

                                      16
for summary judgment.    In the affidavit, Sanders attested that

she was discriminated against throughout her employment with

Phillips – most of which she maintains occurred in Texas – and

that she suffered retaliation when she complained about the

discrimination.   Sanders further attested that at the time she

was terminated from Phillips she had applied for a job in Texas.

Sanders contends that the district court should have conducted an

evidentiary hearing to resolve the disputes in the jurisdictional

facts.

     Where issues of disputed fact exist about a plaintiff’s

standing to pursue her claim, the district court is required to

hold an evidentiary hearing before summarily dismissing the

plaintiff’s claim.27    But the district court does not err by not

holding a hearing where the only relevant issues of fact are

undisputed.28

     In this case, Sanders filed her Charge of Discrimination

against Phillips on January 12, 2001.    Only those acts that

allegedly occurred within 180 days of that filing are actionable

as a matter of law.29    Consequently, Sanders may only pursue


     27
      See Martin v. Morgan Drive Away, Inc., 665 F.2d 598, 602
(5th Cir. 1982).
     28
          Id.
     29
      See TEX. LAB. CODE ANN. § 21.202 (Vernon 1996) (complaint
under TCHRA must be filed no later than the 180 days after the
date the alleged unlawful employment practice occurred or
complaint shall be dismissed as untimely complaint).

                                  17
claims based on acts that allegedly occurred on or after July 16,

2000.     It is undisputed that Sanders worked on the Mahogany from

September 1999 through July 2000.      Thus, Sanders’s only

actionable complaints relate to her employment on the Mahogany,

employment which was not within the state of Texas.      Although

Sanders maintains that she worked for Phillips in Texas for many

years, that employment is outside of the time period she can

complain about here.

     In addition, this lawsuit is limited to the scope of the

administrative investigation that could reasonably be expected to

grow out of Sanders’s initial charge.30     In her charge, Sanders

complained about not being hired by Anadarko.31     Neither

Sanders’s charge nor the notes of the administrative investigator

mention Phillips’s alleged failure to hire Sanders.      Thus, in

this lawsuit, Sanders cannot pursue a claim based on Phillips’s

failure to hire her for another job.      Consequently, the district

court did not err by dismissing Sanders’s claims under the TCHRA.

     In her last argument, Sanders contends the district court

erred by failing to conduct a conflict of laws analysis to

determine whether Arkansas or Louisiana law applies to her


     30
      See Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995)
(Title VII cause of action is limited by the scope of the EEOC
investigation that could reasonably be expected to grow out of
the initial charges of discrimination).
     31
      Likewise, the second amended complaint alleges that
Anadarko, not Phillips, did not hire Sanders for the Mahogany.

                                  18
claims.   Sanders maintains that if Arkansas law or Louisiana law

applies, she should be permitted to amend her complaint to

conform to applicable state law.       Sanders, however, never alleged

a violation of either Arkansas law or Louisiana law.      As a

result, the district court properly limited its consideration to

Texas law – here, the TCHRA.

                            Conclusion

     Because the district court erred by dismissing Turner’s

Title VII claim, this court REVERSES that portion of the district

court’s judgment and REMANDS the case for further proceedings on

that claim.   Because the district court did not err in dismissing

Sanders’s claims brought under the TCHRA, the court AFFIRMS the

judgment in all other respects.

REVERSED and REMANDED in part; AFFIRMED in part.




                                  19
