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

                                                                                 FILED
                                      No. 18-20176                           May 22, 2019
                                                                            Lyle W. Cayce
JOSE INOCENCIO,                                                                  Clerk


              Plaintiff - Appellant

v.

CHIEF MARTHA MONTALVO; CITY OF HOUSTON,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CV-2115


Before STEWART, Chief Judge, and SOUTHWICK and ENGELHARDT,
Circuit Judges.

PER CURIAM:*
       Plaintiff-Appellant Jose Inocencio, a former Lieutenant with the
Houston Police Department, appeals the district court’s grant of summary
judgment in favor of Defendant-Appellee City of Houston. For the reasons set
forth below, we AFFIRM the judgment of the district court.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-20176
                               I. BACKGROUND
      Inocencio, a Hispanic man, was employed by the Houston Police
Department (HPD) from 1982 until his retirement in 2014. Inocencio was
promoted to the rank of Sergeant in 1992. In 2004, Inocencio was promoted to
Lieutenant and assigned to the Narcotics Division, where he remained for the
duration of his career until he retired. 1 Inocencio’s claims arise out of the
HPD’s denial of his requests to transfer to a Lieutenant position in the High
Intensity Drug Trafficking Area (HIDTA) program on three separate occasions,
denials he claims were based on his race and/or national origin.
      Inocencio alleges that the Narcotics Division had a long-standing policy
of promoting into HIDTA positions only officers who had first worked in the
street-level units within that division. Inocencio also maintains that he was
highly qualified for the HIDTA positions, claiming that he led the “most
productive” squad in General Narcotics and achieved high productivity by
cultivating and managing about 60 confidential informants.
      Inocencio’s first allegation of discrimination pertains to the selection of
the Narcotics Lieutenant with the HIDTA Narcotics Operational Control
Center (NOCC) in 2009. He suggests that Captain Gerstner 2 first deviated
from the “promote from within” policy by awarding the HIDTA NOCC
Lieutenant position to Lt. C.J. Day, a white male who had never worked in the
Narcotics Division. 3 In accordance with the HPD policy at the time, the HIDTA
position was not posted and no interviews were conducted. It is undisputed
that Inocencio did not apply for the NOCC position, but he claims he would
have applied if he had known about the position because he “held a strong


      1  The rank system of HPD was as follows, from lowest rank to highest: Officer;
Sergeant (promoted); Lieutenant (promoted); Captain (promoted); Assistant Chief
(appointed); Executive Assistant Chief (appointed); Chief of Police.
       2 Captain Gerstner became head of the Narcotics Division in 2008.
       3 Lt. C.J. Day was previously a Lieutenant in the North Patrol, TACT.

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                                  No. 18-20176
desire for the HIDTA position.” Although Inocencio began questioning whether
he was not promoted because he was Hispanic, the summary judgment
evidence is uncontroverted that Inocencio made no complaint of discrimination
in the selection of the NOCC position until several years later when he filed
his EEOC charge dated August 15, 2013.
      Inocencio alleges that he next suffered discrimination in 2011 when
Captain Gerstner failed to promote Inocencio for a second time, instead
selecting Lt. Leslie Martinez, a white non-Hispanic female, for the open
HIDTA Targeted Narcotics Enforcement Team (TNET) Lieutenant position.
Captain Gerstner made his recommendation after formally interviewing five
candidates, including Inocencio. Captain Gerstner initially recommended Lt.
Irving, a white male, based on his investigative, tactical, and communication
skills. Captain Gerstner also expressed his concern regarding Inocencio’s
eligibility for the position based on his alleged membership in a motorcycle
club, Los Carnales.
      After Lt. Irving declined the position, Gerstner recommended Lt.
Martinez, a white female from the Homicide Division, concluding that she
would be a valuable addition to the Narcotics Division based on her
investigative and tactical skills, excellent writing skills, and strong work ethic.
Inocencio did not make a claim of discrimination regarding the TNET selection
until his 2013 EEOC charge. Inocencio claims he subsequently began more
actively expressing his concerns about racial discrimination in the Narcotics
Division and requested an open-door meeting with Martha Montalvo, then the
Executive Assistant Chief, on March 30, 2013.
      Inocencio contends that the City discriminatorily failed to promote him
for a third time when he was not selected for the HIDTA position in 2013,
despite the fact that he had notified both Captain Gerstner (on April 1, 2013)


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                                       No. 18-20176
and Captain Brown 4 (on May 22, 2013) of his interest in the vacant HIDTA
Truck, Air, Rail and Port Task Force (TARP) Lieutenant position. In
compliance with Assistant Chief Curran’s “3-2s” assignment, 5 Inocencio
drafted a memorandum on May 30, 2013 addressed to Captain Brown and
Assistant Chief Curran complaining about the prior failure to promote him to
the HIDTA program and alleging that the Hispanic Lieutenants in the
Narcotics Division were being treated unfairly because they were not selected
for the HIDTA positions.
       The next day, on May 31, 2013, Captain Brown sent out a department-
wide email announcing the position and implemented a panel interviewing
procedure. Captain Brown conducted preliminary interviews of at least ten
applicants, including Inocencio and Lt. Williams, selecting the top four most
qualified candidates to proceed to the panel interviews. Captain Brown formed
an advisory board to interview the top four applicants for the TARP position.
       Captain Brown asserts that the panel was intended to provide more
input on the numerous candidates and to create a fairer, more objective hiring
process. The interview panel was composed of five members (three members
were white, and two members were Hispanic), including HPD personnel and
representatives of HIDTA. According to Assistant Chief Curran, comprising
the board of people from partner agencies outside the department reduced bias.
The panel scored the candidates based on a series of predetermined job-related
questions and made a recommendation to Captain Brown. Although Captain
Brown and Assistant Chief Curran selected the panel members and drafted



       4  Captain Gerstner transferred out of the Narcotics Division in 2013 and was replaced
by Captain Brown.
        5 Assistant Chief Curran directed the divisions to participate in a “3-2s” assignment,

eliciting input from Lieutenants regarding two things that need to be changed immediately,
two things that that should be maintained, and two things that should be changed in the
future.
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                                 No. 18-20176
interview questions based on the job description, Chief McKinney determined
the panel selection process, selected the interview questions, and developed the
scoring matrix.
      The panel recommended Lt. Williams, the highest scoring candidate.
Although Captain Brown told Inocencio it was a “horse race” between Inocencio
and Lt. Williams, Lt. Williams was ultimately promoted to the HIDTA position
over Inocencio. Lt. Williams, a black male, had never worked as a Lieutenant
in the Narcotics Division. Inocencio now criticizes the selection process,
alleging that Captain Brown did not have any specific training to develop
testing methodology for the newly established board and claims that the
interview questions purposely undervalued hands-on narcotics experience.
      In August 2013, Inocencio filed a complaint with the Equal Employment
Opportunity Commission (EEOC). Inocencio claims that in its response to his
EEOC charge, the City misrepresented that Inocencio’s transfer to the Internal
Affairs Division (IAD) was negated because of his “disciplinary history.”
Inocencio argues that this statement is not supported by the evidence and that
it was controverted by Lt. Zera, who had approved the IAD transfer. Inocencio
points to Dr. Zamora’s testimony that labelling an officer with vague references
to disciplinary problems is a phrase utilized to show that the officer has
violated the code of silence in retaliation for speaking out about discrimination
within the department.
      On November 8, 2014, Inocencio retired from the HPD after 32 years of
service. Inocencio states that his retirement was premature and was a result
of his inability to cope with discrimination, retaliation, and the lack of
advancement opportunities. Inocencio alleges that Captain Brown and
Assistant Chief Curran did not continue to employ the panel procedure
consistently in subsequent promotions.


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                                    No. 18-20176
      Inocencio received a Notice of Right to Sue from the EEOC on April 20,
2016. In July 2016, Inocencio filed this suit against the City of Houston, and
Martha Montalvo, in her official capacity as Police Chief of the City of Houston.
Inocencio alleges that he was discriminated against based on his race and/or
national origin, in violation of Title VII of the Civil Rights Act of 1964. He also
claims the failure to promote was the result of Defendants’ retaliation against
him based on his complaints of discrimination. Further, he alleges that the
discrimination and retaliation led to his constructive discharge in 2014.
      On November 24, 2017, the City of Houston filed a motion for summary
judgment. Inocencio filed a response in opposition to the City’s motion. The
district court granted summary judgment on March 13, 2018, dismissing
Inocencio’s claims with prejudice. This appeal ensued. 6
Arguments on Appeal
      Inocencio now appeals the district court’s grant of summary judgment in
favor of Defendant-Appellee City of Houston. Although Inocencio did not timely
file EEOC discrimination charges for the first two challenged HIDTA positions,
he argues—and the City disputes—that the first two positions are evidence of
discrimination in not selecting him for the third HIDTA position (TARP). On
appeal, Inocencio argues that he raised sufficient evidence for a reasonable
jury to conclude that the Lt. Williams’ board was pretextual, and the decision
not to promote Inocencio was made because he was Hispanic, because he was
opposed to discriminatory employment practices, or both.
      After Inocencio was not promoted for the first two HIDTA positions in
contravention of what he refers to as the “promote from within” policy, he



      6 Upon consideration of the parties’ stipulation of dismissal of Defendant Martha
Montalvo, the district court granted the motion and dismissed with prejudice all claims
against Martha Montalvo, in her official capacity as Police Chief of the City of Houston.
Inocencio does not challenge this dismissal on appeal.
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                                  No. 18-20176
complained to his superiors in the “3-2s” memorandum, and also had several
open-door meetings with executive command. Inocencio claims this protected
activity led to the formation of Captain Brown’s interview committee, which
Inocencio claims was created to disadvantage him by deemphasizing his
experience as a veteran Lieutenant in the Narcotics Division.
      Inocencio contends that he presented sufficient evidence to show that the
creation of the board was pretext not to promote him, disagreeing with the
district court’s finding that the City was using a more “formal, transparent,
and inclusive” process. Inocencio claims that Captain Smith’s warning to
“watch his back” and the inconsistent use of the board in awarding promotions
following his departure from the department suggest that the creation of the
board was motivated by discrimination and retaliation.
      Appellees, Chief Martha Montalvo and the City of Houston (collectively,
the City), highlight that Inocencio’s claims regarding the first two HIDTA
positions—which they refer to as “lateral positions” rather than promotions—
were properly dismissed by the district court as time-barred. Nevertheless, the
City contends that the first two challenged HIDTA selections were consistent
with General Order 300-02, which provided that transfers of Lieutenants
would be made at the discretion of the Chief of Police and that a division
commander having a vacancy could request a resume from any lieutenant.
      Appellees argue that Inocencio’s discrimination charge regarding the
third HIDTA position (TARP) was properly dismissed because he did not, and
cannot, show pretext to rebut the City’s nondiscriminatory, legitimate business
reasons for its selections. Appellees also reject Inocencio’s contention that there
is evidentiary value in his non-selection for the first position; they assert that
because he did not apply for the position, he cannot claim that the decision to
fill that position with someone else was discriminatory. According to Appellees,
the City had legitimate business reasons for its selection for all three positions
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                                 No. 18-20176
that are unrelated to race or national origin. Appellees argue that an
employee’s unsupported subjective belief of discrimination is insufficient to
overcome the summary judgment burden.
      Finally, Appellees contend that Inocencio’s retaliation claim was
properly dismissed because he did not raise a genuine issue of material fact
that “but for” his protected activity, he would have received the TARP position
instead of Lt. Williams—the highest scoring candidate. Appellees also dispute
that the meetings constituted a protected activity. Appellees suggest that
Inocencio did not present evidence of a hostile work environment, which is
necessary for his constructive discharge claim.
      In his reply brief, Inocencio rejects the City’s references to the HIDTA
positions as “lateral positions.” Instead, he maintains that—as the district
court found—he provided sufficient evidence that his non-selection for the
TARP position was tantamount to a denial of promotion because HIDTA
positions have greater benefits, require greater skill, and are more prestigious.
Inocencio also responds that he presented sufficient circumstantial evidence of
pretext in both his discrimination and retaliation claims based on the
circumstances surrounding the three denials of promotions.
      Contrary to the City’s argument that Inocencio did not apply for the first
position, Inocencio asserts that he did not have an opportunity to apply because
the job was not posted and the Narcotics Division Lieutenants were not polled,
in contravention of the promote from within policy. Furthermore, Inocencio
argues that the City’s proffered legitimate business reason for the second
promotion is suspicious because Inocencio’s membership in a restricted
motorcycle gang was unsupported by evidence. Inocencio explains his initial
failure to timely file an EEOC charge was a result of his reasonable fear of




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                                       No. 18-20176
retaliation, citing to his personal knowledge from being a witness in the
Zamora case. 7
       Inocencio     summarizes other          circumstantial      evidence     of   pretext
presented in his initial appellate brief as follows: (1) abandonment of the
“promote from within policy” when the next two lieutenants 8 in line were
Hispanic; (2) shortly after he expressed interest in the third HIDTA position,
Inocencio claims he was told he was being involuntarily transferred to IAD—a
transfer that was never executed as a result of Inocencio’s protests; 9 (3) the
City’s misrepresentation that Inocencio had a disciplinary history in its EEOC
response and Dr. Zamora’s testimonial explanation regarding the code of
silence; (4) the close-timing between the meetings and Inocencio’s non-
selection for the position; (5) the timing of the formation of Captain Brown’s
committee, the composition of its members, and its de-emphasis on narcotics
experience; and (6) the inconsistent use of the panel after Inocencio left the
department.
                            II. STANDARD OF REVIEW
       We review a district court’s “grant of a motion for summary judgment de
novo, applying the same standard as the district court.” Howell v. Town of Ball,
827 F.3d 515, 521 (5th Cir. 2016) (quoting Moss v. BMC Software, Inc., 610
F.3d 917, 922 (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



       7 See generally Zamora v. City of Houston, 798 F.3d 326 (5th Cir. 2015).
       8 Notably, Captain Smith testified that Lt. Gonzales, the second referenced Hispanic
Lieutenant in the Narcotics Division, had no desire to work HIDTA and had not applied for
the position.
       9 Captain Zera testified that Inocencio’s potential transfer to IAD was to occur on

March 25, 2013, prior to Gray Smith’s announcement that he was retiring from the TARP
position. Additionally, the potential transfer was prior to Inocencio’s April 1, 2013 email to
Captain Gerstner requesting to be transferred into the TARP position and prior to his
meeting with Martha Montalvo.
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                                  No. 18-20176
movant is entitled to judgment as a matter of law.” Id. (quoting FED. R. CIV. P.
56(a)). A moving party is entitled to summary judgment if the nonmovant “fails
to make a showing sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute about a
material fact is genuine if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
      All facts and evidence are viewed in the light most favorable to the
nonmoving party. Howell, 827 F.3d at 522 (citation omitted). However, a party
cannot defeat summary judgment with “conclus[ory] allegations, unsupported
assertions, or presentation of only a scintilla of evidence.” McFaul v.
Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012) (citing Hathaway v. Bazany, 507
F.3d 312, 319 (5th Cir. 2007)). Instead, the nonmovant must go beyond the
pleadings and designate specific facts that prove that a genuine issue of
material fact exists. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994) (citing Celotex Corp., 477 U.S. at 323).
                               III. DISCUSSION
      We have carefully reviewed the briefs, the applicable law, and the
relevant parts of the record. We conclude that summary judgment was
appropriate for essentially the reasons set forth in the district court’s thorough,
well-reasoned opinion. As an initial matter, we conclude—and Inocencio
appears to concede—that Inocencio’s discrimination claims associated with the
first two HIDTA positions are time-barred because he did not file a charge of
discrimination with the EEOC until August 15, 2013. See 42 U.S.C. § 2000e-
5(e)(1) (A timely charge of discrimination must be filed before an individual
may file or obtain relief on a Title VII lawsuit.); see also Frank v. Xerox Corp.,
347 F.3d 130, 136 (5th Cir. 2003) (A Texas claimant must file a Title VII
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                                       No. 18-20176
employment discrimination charge with the EEOC within 300 days of the
challenged discrimination.)
       Even if we consider the circumstances surrounding the first and second
transfer denials, 10 we would still find summary judgment was properly granted
to the City of Houston based on our analysis under the framework set out in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 11 Assuming without
deciding that Inocencio established a prima facie case of discriminatory failure
to promote, he has not presented sufficient evidence to create a genuine issue
of material fact that the City’s articulated legitimate, non-discriminatory
reasons for its selection decision were pretextual. See Scales v. Slater, 181 F.3d
703, 712 (5th Cir. 1999); Solorzano v. Shell Chem. Co., 254 F.3d 1082 (5th Cir.
2001) (unpublished).
       “An employer’s subjective reason for not selecting a candidate, such as a
[clearly articulated] 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). The top four candidates, including Inocencio, were interviewed and
scored by an unbiased panel based upon neutral performance-related factors.
Distinguishable from Alvarado, the panel’s procedure is extensively


       10  See Ray v. Tandem Computers, Inc., 63 F.3d 429, 434 n.12 (5th Cir. 1995) (noting
that time-barred actions can be used as evidence of discriminatory intent in later actions).
        11 In Title VII cases relying on circumstantial evidence of discrimination, courts apply

the three-step, burden-shifting approach set forth in McDonnell Douglas Corp., 411 U.S. 792.
Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (5th Cir. 2011). Under this approach, a
plaintiff must first establish a prima facie case of discrimination. Id. If the plaintiff makes
out a prima facie case, the burden shifts to the defendant to proffer a legitimate,
nondiscriminatory reason for the adverse employment action taken. Id. The plaintiff must
then “prove by a preponderance of the evidence that the employer intentionally discriminated
against [him] because of [his] protected status” by putting forth evidence rebutting the
nondiscriminatory reasons articulated by the defendant. Id. at 637. A plaintiff must offer
sufficient evidence to create a genuine issue of material fact by establishing that the offered
reason is a pretext for discrimination or that the plaintiff’s protected characteristic was a
motivating factor for the employer’s conduct. Id. at 636.
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                                     No. 18-20176
documented in the summary judgment record, which includes records of the
job description, panel questions, the master score sheet, interviewee score
sheets, and comments/observations from the panelists. See Assariathu v. Lone
Star Health Mgmt. Assocs., L.P., 516 F. App’x 315, 319 (5th Cir. 2013).
       At the conclusion of the interviews, Lt. Williams scored the highest with
503 points, receiving the largest number of points from four of the five
panelists. Inocencio received 430 points, which was the second highest score.
A number of panel members made comments that suggested that Inocencio
lacked relevant knowledge about the HIDTA position. After ensuring the
scores were accurate, Captain Brown accepted the panel’s findings and
recommended Lt. Williams for the TARP position.
      Because the City sustained its burden of proffering a legitimate,
nondiscriminatory reason for its actions, the burden shifts back to Inocencio to
offer sufficient evidence to create a genuine issue of material fact that the
stated reason is pretext for racial discrimination. Jackson v. Watkins, 619 F.3d
463, 466 (5th Cir. 2010). 12 Inocencio has failed to sufficiently demonstrate
pretext. We concur in the district court’s analysis finding Inocencio’s
unsubstantiated allegations of pretext insufficient to raise a genuine issue of
material fact as to whether the City’s nondiscriminatory reasons for its hiring
decisions were pretextual.
      Furthermore, we are unpersuaded by Inocencio’s heavy reliance on the
City’s abandonment of what he refers to as a “promote from within” policy as
evidence of discrimination. It is undisputed that the Captain and Chief of
Police were granted discretion in transferring and reassigning Lieutenants
based on the needs of the division. Although Captain Smith, a former Captain


      12 In his opposition to Defendants’ motion for summary judgment, Inocencio conceded
that he was not asserting a mixed-motive theory. Accordingly, we consider any mixed-motive
arguments waived. See Jackson, 619 F.3d at 466 n.1.
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                                 No. 18-20176
in the Narcotics Division, testifies that he would have chosen to promote
someone already assigned to the division and that he considered hands-on
narcotics experience to be the most advantageous qualification for a HIDTA
position, he unequivocally states that no such transfer policy existed and that
it was within the Captain’s discretion to select any person for the Lieutenant
position with any method he or she chooses. This is also consistent with the
testimony of Captain Brown and Chief McLelland, as well as the Houston
Police Department’s General Order 300-02.
      According to Inocencio, it was common practice to give the Lieutenants
in the Narcotics Division preference when filling HIDTA positions. However,
there is nothing in the record that suggests the most senior employee was
automatically selected. The HIDTA transfers criticized by Inocencio all
involved an application process and, in some cases, an interview. Further,
contrary to Inocencio’s assertion, Lt. Gonzales, the second Hispanic Narcotics
Lieutenant identified by Inocencio as being passed over for the HIDTA
positions, never applied for or expressed interest in transferring to HIDTA.
      Even if a policy existed as Inocencio alleges, the change in procedure
alone is insufficient to establish pretext without evidence that the change was
based on discriminatory motives. See EEOC v. Tex. Instruments Inc., 100 F.3d
1173, 1182 (5th Cir. 1996) (“This court has observed that an employer’s
disregard of its own hiring system does not of itself conclusively establish that
improper discrimination occurred or that a nondiscriminatory explanation for
an action is pretextual.”). Here, it is undisputed that the interview process—
implemented by an objective panel—applied to all candidates without regard
to race, gender, or national origin. See Scales, 181 F.3d at 711. Moreover, the
use of an interview panel was not a novel concept and was previously used by
the HPD.


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                                    No. 18-20176
      For this reason, we reject Inocencio’s contention that the modified use of
the panel procedure in subsequent job appointments evinces pretext. The main
modification Inocencio cites pertains to the composition of the interview panel
to include Captain Brown and members of the Narcotics Department. 13
Inocencio also identifies positions, including non-HIDTA positions, that he
claims were filled without approval by an interview board. However, there are
no allegations that there were multiple applicants that would have
necessitated an interview panel and no competent evidence that the
modifications were motivated by a discriminatory purpose. See Churchill v.
Tex. Dep’t of Criminal Justice, 539 F. App’x 315, 320–21 (5th Cir. 2013).
      A crucial piece of evidence considered by the dissent in its pretext
analysis is the “abandonment” of the panel interview process. The dissent
inaccurately states that the panel interview procedure was abandoned in favor
of the original practice of promoting from within the Narcotics Division shortly
after Inocencio retired. In actuality, while subsequent applicants were not
subject to an identical interview process, a panel procedure remained in place
for various open positions after Inocencio’s transfer request was denied.
Additionally, promotions identified by Inocencio as evidence of pretext are
distinguishable and/or serve to demonstrate that Inocencio was not treated in
a discriminatory manner.
      Two of the subsequent promotions identified by Inocencio are non-
HIDTA positions. Lt. Waterwall succeeded Inocencio as Lieutenant in General
Narcotics North, a non-HIDTA position. 14 Although Lt. Waterwall was not




      13  If the two HIDTA panel members’ scores are excluded and we only consider the
scores of the HPD officers, Lt. Williams would still have received the highest score.
       14 When Inocencio was promoted to Narcotics Lieutenant in 2004, he had no previous

experience in the Narcotics Division.
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                                 No. 18-20176
interviewed by a panel for that position, Lt. Waterwall was selected for a
position under Captain Brown through an interview panel several years prior.
      Inocencio next references Lt. Stephen Casko’s administrative promotion
process as evidence that the panel was inconsistently used after Inocencio left
the Narcotics Division. The relevancy is not readily apparent because this was,
again, not a HIDTA position. Lt. Casko was selected for the administrative
position by a board of HPD officers, which differed from the board that selected
Lt. Williams. Lt. Casko’s subsequent transfer to TNET HIDTA Lieutenant
under Captain Brown is more relevant to our discussion. Like the position
Inocencio had applied for, this open HIDTA position was posted in a
department-wide email. Lt. Casko’s selection procedure consisted of a three-
member panel interview, comprised of Captain Brown and two other HPD
Captains. Similar to Inocencio’s interview, Lt. Casko was asked a series of
questions and scored accordingly. Lt. Casko had minimal Narcotics experience:
he was assigned to be an officer (non-supervisory position) in the Narcotics
Division for four months in 1998 and had worked as the administrative
lieutenant in the Narcotics Division for six months prior to transferring to
HIDTA.
      Lt. Rachel Garza—who was previously denied the same TARP HIDTA
position now being challenged by Inocencio—interviewed a second time for the
posted TARP HIDTA position, this time under Captain Follis. Lt. Garza, an
administrative lieutenant in the Narcotics Division, was selected after
receiving the highest score by a three-member interview panel. This time the
panel was comprised of HPD personnel, however, the same type of interview
questions and scoring system was utilized.
      Finally, Lt. Marsha Todd, an administrative lieutenant, was selected by
Captain Follis for a HIDTA Lieutenant position without a formal interview
before a board. Importantly, however, Lt. Todd testified that she was the only
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                                      No. 18-20176
applicant that responded to the email so there was no need for an interview.
Additionally, Todd was previously a Sergeant in the FAST unit of HIDTA.
         The panel interview process was modified, but it was certainly not
abandoned. “Employment discrimination laws are ‘not intended to be a vehicle
for judicial second-guessing of business decisions, nor . . . to transform the
courts into personnel managers.”” Bryant v. Compass Grp. USA Inc., 413 F.3d
471, 478 (5th Cir. 2005) (quoting Beinkowski v. Am. Airlines, Inc., 851 F.2d
1503, 1507–08 (5th Cir. 1988)).
         We agree with the dissent that an apparently objective interview process
is discriminatory if the reason for adopting the objective procedure was to
thwart Inocencio for discriminatory reasons. The disagreement is whether
there exists any evidence—beyond sheer speculation—of discriminatory
animus. We find no evidence to support an inference of pretext based on these
facts.
         Moreover, Inocencio failed to rebut the City’s explanation that it hired
Lt. Williams based on his qualifications and higher interview score. Inocencio’s
“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); see also Nunley v. City of Waco, 440 F. App’x 275, 279 (5th Cir. 2011)
(“[G]reater experience alone will not suffice to raise a fact question as to
whether one person is clearly more qualified than another.”). Lt. Williams had
experience in numerous HPD divisions, including narcotics, and had previous
HIDTA experience. Thus, Inocencio’s arguments regarding his alleged superior
qualifications also fail to establish pretext. 15



          Additionally, in his 3-2s memo, Inocencio expressed his concerns about the racial
         15

make-up of the HIDTA positions, citing the low number of Hispanics and Blacks in HIDTA
positions. Notably, the Lieutenant selected over Inocencio by the panel was a black male who
had previous HIDTA experience.
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                                      No. 18-20176
       Inocencio’s subjective belief that discriminatory intent motivated the
City’s actions is insufficient to establish a material question of fact regarding
the City’s motives. Ray v. Tandem Computers, Inc., 63 F.3d 429, 435 (5th Cir.
1995) (citing Molnar v. Ebasco Constructors, Inc., 986 F.2d 115 (5th Cir. 1993));
E.E.O.C v. Exxon Shipping Co., 745 F.2d 967, 976 (5th Cir.1984) (Speculation
and conclusory statements are insufficient to create a fact issue as to pretext.);
see also Price, 283 F.3d at 722–23; Churchill, 539 F. App’x at 320–21. No
reasonable jury could find that the City of Houston’s selection of the highest-
scoring candidate, Lt. Williams, for the TARP position was pretextual for
discrimination against Inocencio. Thus, the City was entitled to summary
judgment on Inocencio’s discrimination claim.
       Moreover, we conclude that Inocencio’s retaliation claim was properly
dismissed on summary judgment. Despite viewing all evidence and facts in a
light most favorable to Inocencio, there is no evidence in the record that “but
for” the protected activity (meetings and the “3-2s” memorandum), the adverse
employment action (denial of his application for the TARP position) would not
have occurred. 16 See Alkhawaldeh v. Dow Chemical Co., 851 F.3d 422, 427 (5th
Cir. 2017) (citing University of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360
(2013)). The interview panel recommended Lt. Williams over Inocencio based
on its clear consensus that Lt. Williams was the most qualified candidate.
Captain Brown’s formation of an objective panel and his acceptance of the
disinterested panel’s recommendation does not permit a plausible inference of
retaliation. Inocencio admits that no person on the interview panel harbored



       16 Inocencio complained that it was unfair that he had to compete for the position and
requested an “immediate change” to the HIDTA hiring procedure. When an interview panel
was implemented, he complained that it was discriminatory and in retaliation for his
complaint. The dissent appears to suggest, as does Inocencio, that the only appropriate non-
discriminatory response to Inocencio’s 3-2s memo would have been for Captain Brown to
transfer Inocencio to the HIDTA position without consideration of any other applicants.
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                                No. 18-20176
animus towards him and points to no evidence that any person on the interview
panel was aware of his prior complaints to Captain Brown, Assistant Chief
Montalvo, or Chief McClelland. Thus, Inocencio has not raised a genuine issue
of material fact that “but for” his complaints of discrimination, he would not
have been denied the TARP position. See Ray, 63 F.3d at 436; Nunley, 440 F.
App’x at 280.
      Finally, Inocencio did not present evidence to support a finding that his
employment conditions were so intolerable that a reasonable employee would
have felt compelled to retire. Inocencio was not demoted, he had no reduction
in salary, none of his job responsibilities were reduced, he was never
reassigned to perform menial or degrading work, and he was not given an offer
of early retirement. McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir.
2007). Inocencio’s mere speculation of heightened scrutiny is insufficient. See
Hayley v. All. Compressor LLC, 391 F.3d 644, 652 (5th Cir. 2004). Failure to
make such a showing is fatal to Inocencio’s constructive discharge claim. See
Tyler v. Union Oil Co. of Ca., 304 F.3d 379, 394–95 (5th Cir. 2002) (citing
Barrow v. New Orleans S.S. Ass’n, 10 F.3d 292, 297 (5th Cir. 1994)).
                             IV. CONCLUSION
      For these reasons, summary judgment is AFFIRMED.




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                                 No. 18-20176
LESLIE H. SOUTHWICK, Circuit Judge, dissenting in part.
      I concur with the majority’s decision on the constructive discharge claim.
Respectfully, I dissent to the resolution of Inocencio’s discrimination and
retaliation claims.
      My objections derive from the link between the failure to promote
Inocencio and the departure from prior departmental practices that seemingly
would have promoted him.        Inocencio’s complaint about prior promotion
decisions led to a new procedure being adopted. The dispute is about the new
procedure’s purpose and operation.
      Inocencio claims that the procedure was a sham, one designed to deny
him a promotion either because of his race or else to retaliate against him for
complaining that his prior non-selections were motivated by racial animus.
The City claims that, to the contrary, this new procedure reflected that the
HPD took Inocencio’s complaint seriously and ensured that the selection
process was non-discriminatory.      Facially, such purposes may justify the
majority’s decision. The rest of the story, though, creates genuine fact issues.
      The majority primarily relies on the evidence that the new procedure
was non-discriminatory. Other evidence we must consider shows this:
            (1) a longstanding practice of internal promotion was
      discarded just as Inocencio would have benefitted;
            (2) a new panel interview procedure was implemented after
      Inocencio complained the departure from the practice of internal
      promotion was discriminatory; and
            (3) this new procedure was then abandoned in favor of the
      original practice of promoting from within the Narcotics Division
      shortly after Inocencio left the department.
      The majority assumes without deciding that Inocencio established a
prima facie case. I decide, based on no real dispute, that Inocencio clearly did
establish a prima facie case for discrimination.

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                                      No. 18-20176
       For both his claims, then, it comes down to whether Inocencio made the
required showings of pretext. The showing would have to be from the totality
of the evidence and whether it supported an inference of discrimination or of
retaliation, with retaliation judged by a higher “but for” causation standard.
See Nall v. BNSF Ry. Co., 917 F.3d 335, 348-49 (5th Cir. 2019) (citation
omitted).
       The district court found that the “practice during those years” prior to
the failures to promote Inocencio “evidently was to give preference to
lieutenants in the Narcotics Division.” The majority’s focus on the fact that
captains ostensibly had discretion on transfers fails in my view to give weight
to the reality that the discretion was consistently exercised to select for HIDTA
positions from within the Narcotics Division.               A “plaintiff may rebut an
employer’s proffered justifications by showing how a policy operates in
practice.” Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1355 (2015).
       I agree with the majority “that an employer’s ‘disregard of its own hiring
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) (citation
omitted). That does not change the fact that it can be evidence of both. See
Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 346 (5th Cir. 2007).
       The sheer novelty 1 of the panel interview process, combined with its
abandonment shortly after its invention, together represent circumstantial



       1  The majority indicates that the HPD had used panels prior to the one Inocencio
encountered. There is no dispute, though, that panels had never been used in connection
with lieutenant transfers until Inocenio’s interview for the HIDTA position. I do not see
record support for the assertion that Captain Brown had used a panel to interview Lt.
Waterwall “several years prior.” The panel interview appears to have been to replace Lt.
Follis as administrative lieutenant, which only occurred after Lt. Williams was selected over
Inocencio for the HIDTA position formerly held by Lt. Smith. The few examples in the record
of an outside panel previously being used for non-lieutenant positions seem readily
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                                    No. 18-20176
evidence to support an inference that the proffered reason for the change,
namely, to measure objectively the most qualified candidate, was pretextual.
“At summary judgment, evidence demonstrating that the employer’s
explanation is false or unworthy of credence, taken together with the plaintiff’s
prima facie case, is likely to support an inference . . . even without further
evidence of [the] defendant’s true motive.” Nall, 917 F.3d at 348 (citation
omitted).
      As to the needed evidence on retaliation, the majority concludes that
“there is no evidence in the record” Inocencio’s complaints were a “but for”
cause of his non-selection. The record does support that the selection itself was
an objective process leading to finding a different candidate to be the most
qualified. Though perhaps it is a novel twist on such facts, I cannot accept that
the objective process is enough if the reason for adopting an objective procedure
was to thwart Inocencio for discriminatory reasons.
      Indeed, there is evidence that “but for” the protected activity, the
interview panel would never have been created. That distinguishes this case
from others where we have rejected a change to a selection procedure as
relevant evidence. In one, the changes that did not support an inference of
discrimination were “modifications of agency policy as set forth in the FAA’s
internal procedures necessitated by” a recent “FAA-wide reorganization
implemented to comply” with a recently passed federal law. Scales v. Slater,
181 F.3d 703, 710-11 (5th Cir. 1999). The changes ultimately affected the
employee, but they had nothing to do with her. The new procedure here may
have had everything to do with Inocencio — it was even referred to within the
department as the “Inocencio Rule.” But for the departure from the long-


distinguishable because of the special skills needed: an interview for positions like an
“explosive detection dog handler” and an occasion a panel included “people from the City
Controller’s office for auditing purposes.”
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                                No. 18-20176
standing practice of promoting lieutenants from within the Narcotics Division,
there is evidence Inocencio would have been selected for the HIDTA.
      This is also not the only evidence offered by Inocencio that raises
questions about the new procedure and the City’s proffered purpose for it. The
adoption of the procedure caused Captain Smith to warn Inocencio to “watch
his back.” Sergeant Montalvo and Captain Zera both testified that they saw
no reason for involving individuals from outside HDP in the process. After
Inocencio retired, the Narcotics Division reverted to “promoting from within”
when it selected non-Hispanic Lieutenants Casko, Garza, and Todd for the
next three HIDTA openings. Casko and Garza were selected through a panel
interview process that varied in some respects from the one used for Inocencio,
but Todd obtained the HIDTA position without any interview at all after
responding to an email sent only to the lieutenants in the Narcotics Division,
as had been the practice until the occasions complained of by Inocencio.
      The majority’s conclusion that “there was no need for an interview”
because Todd was the only narcotics lieutenant who expressed interest
overlooks that this was also true of Inocencio when he applied for the HIDTA
openings.   The difference is that when Inocencio was the only interested
narcotics lieutenant, Captain Brown also invited interest from outside the
Narcotics Division by sending an email to the entire Houston Police
Department. Inocencio’s entire point is that if the invitation to apply for the
third HIDTA opening had been limited to the Narcotics Division — like it had
been in the past and like it would later be for Todd — he would have been
selected for an HIDTA position. The contrast between the crowded field that
confronted him and the utter lack of competition faced by Todd is precisely the
problem.
      It may be that the panel interview process was not imposed for
discriminatory reasons, but “the difficult task of resolving this ‘conflict in
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                                 No. 18-20176
substantial evidence’ falls to the jury.” EEOC. v. Rite Way Serv., Inc., 819 F.3d
235, 244-45 (5th Cir. 2016) (citation omitted). I would reverse the district
court’s grant of summary judgment on the discrimination and retaliation
claims.
      Respectfully, I dissent.




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