Angus v. Mayorkas ( 2023 )

Case: 22-50600 Document: 00516781098 Page: 1 Date Filed: 06/09/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 22-50600 June 9, 2023
____________ Lyle W. Cayce
Clerk
Diann H. Angus,
Plaintiff—Appellant,
versus
Alejandro Mayorkas, Secretary, U.S. Department of Homeland
Security,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:20-CV-242
______________________________
Before Smith, Higginson, and Willett, Circuit Judges.
Stephen A. Higginson, Circuit Judge:*
Between 2012 and 2017, Plaintiff-Appellant Diann Angus applied to
three job openings posted by Immigration and Customs Enforcement
(“ICE”), an agency within the Defendant-Appellee Department of
Homeland Security (“DHS”). Angus was not selected for any of these
positions. According to Angus, these non-selections were the result of
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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various forms of discrimination and retaliation. Eventually, after attempting
to pursue an administrative remedy, Angus filed suit. The district court
dismissed fourteen of her fifteen claims pursuant to Federal Rule of Civil
Procedure 12(b)(6), and later granted summary judgment in favor of DHS on
the surviving retaliation claim, Angus timely appealed, and we now
AFFIRM.
I.
This case arises out of Plaintiff-Appellant’s so-far unsuccessful
pursuit of her ultimate career goal—working as an intelligence research
specialist for the federal government. As alleged in her complaint, Angus
thrice applied for positions related to intelligence research at ICE and was
rejected each time.1
First, in 2012, she applied for both the Intelligence Research Specialist
and Intelligence Assistant positions at ICE. When she applied for these
positions, Angus requested to be placed on the “Schedule A” certificate.2
Under the “Schedule A” hiring authority, “[a]n agency may [non-
competitively] appoint, on a permanent . . . basis, a person with an
_____________________
1
Because Angus appeals both the dismissal of claims under Rule 12(b)(6) and a
grant of summary judgment in favor of DHS, we divide this background section between
the allegations in the complaint and the facts produced at summary judgment.
2
A certificate is a list of all candidates who are minimally eligible for a given
position under a specific hiring authority. So, for example, as in this case, there may be one
certificate listing all eligible “competitive merit selection” candidates and one containing
a list of all eligible “Schedule A” candidates. These certificates are compiled through the
following process. First, each USAJOBS (the hiring platform for federal positions)
applicant is asked a series of questions related to federal employment, experience, and
education. Based on the applicant’s answers, USA Staffing—a hiring platform for ICE—
automatically generates selection certificates for each designated hiring authority. A
Human Resources specialist will then review these certificates and verify that each
applicant is eligible under the hiring authority and qualifies for the position before
forwarding the selection certificate to the selecting official.
2
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intellectual disability, a severe physical disability, or a psychiatric
disability.”3 5 C.F.R. § 213.3102(u)(1); see id. § 213.3101. As Angus
acknowledges, the Schedule A hiring authority is meant to allow agencies to
proactively recruit and hire certain individuals, including those with
disabilities.
However, although Angus qualified for the Schedule A certificate, she
was also eligible for inclusion on the competitive service certificate for these
positions. Pursuant to ICE policy, her applications were therefore forwarded
to the selecting official, Special Agent in Charge for San Antonio Homeland
Security Investigations Jerry Robinette, under the competitive service
certificate. In other words, the selecting official was not informed that she
was a Schedule A candidate with a targeted disability.
On October 16, 2012, Angus was informed that she was not selected
for the Intelligence Research Specialist position, and on November 9, 2012,
was similarly notified that she was not selected for the Intelligence Assistant
position. Angus contacted an EEO counselor as to both non-selections on
December 4, 2012. Then, on March 19, 2013, Angus filed a formal complaint
with the ICE Equal Opportunity Office (“EEO”), alleging that her non-
selections were the result of discrimination based on sex, age, and disability,
as well as for retaliation for prior EEO activity.4 On January 30, 2019, DHS
issued a Final Agency Decision, later affirmed by the EEOC, concluding that
_____________________
3
An individual may also be eligible under Schedule A hiring authority if they satisfy
other criteria, none of which is applicable to Angus. See 5 C.F.R. § 213.3102.
4
According to the complaint, Angus had filed an earlier EEO complaint related to
her non-selection for an ICE position in 2010. This prior complaint formed the basis of her
retaliation claim.
3
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Angus’s claims were untimely and that, in any event, ICE did not
discriminate or retaliate against her.5
In 2016 or 2017, Angus again applied for the position of an
Investigative Research Specialist at ICE. On January 24, 2017, Angus was
once more informed that she was not selected for the position. Angus reached
out to an EEO counselor on May 4, 2017, and soon after, on June 16, 2017,
filed another formal complaint with the ICE EEO related to this non-
selection. This time, Angus alleged sex and age discrimination (but not
disability discrimination) as well as a retaliation claim. In February 2020,
DHS resolved the complaint by issuing a Final Agency Decision affirming the
dismissal of her case based on her intent to file a federal action.
Soon after, in March 2020, Angus filed a 49-page pro se complaint in
federal court. The complaint contained fifteen overlapping “counts” against
DHS, alleging various claims for disability, sex, and age discrimination, as
well as for improper processing of her EEO complaints and for retaliation.
DHS moved to dismiss all the claims pursuant to Rule 12(b)(6). The district
court, adopting the report and recommendation of the magistrate judge,
granted the dismissal as to fourteen claims but denied the motion as to
Angus’s retaliation claim.
Following discovery, both DHS and Angus moved for summary
judgment on the remaining retaliation claim. In connection with these
motions, both parties produced more evidence as to the circumstances
surrounding each of Angus’s non-selections. We address each in turn,
beginning with Angus’s 2012 applications.
_____________________
5
Although Angus initially requested a hearing before the Equal Employment
Opportunity Commission (“EEOC”), she later asked that her case be remanded to DHS
for a final agency decision.
4
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First, as to the position of Intelligence Research Specialist, Robinette
received over one hundred applications for four positions. Although
Robinette was the selecting officer, he delegated the task of screening
resumes, conducting interviews, and making a final recommendation to two
other officials, Assistant Special Agent in Charge Sammy Ashurst and
Supervisory Intelligence Officer David Salazar. Neither Ashurst nor Salazar
was aware of Angus’s prior EEO activity.
When she applied to the 2012 positions, Angus, who had an
associate’s degree in liberal arts from Louisiana Tech University, was at GS-
8 with sixteen years of federal experience.6 Much of her experience was
administrative and primarily included preparing, updating, and maintaining
files.7 Although Angus self-classified her work in these positions as
“intelligence work” because she was privy to nonpublic information, she
admitted that her work was not as “in depth” or “fully involved” as
intelligence work. Additionally, there were numerous punctuation and
grammatical errors in the resume attached to her application.
The four selected candidates were J.W., A.K., R.K., and N.R.
According to Ashurst, the position was “very competitive,” and Angus was
not interviewed because “other candidates were more qualified than her.”
Salazar also stated that, “[t]o the best of [his] recollection[,] Ms. Angus did
_____________________
6
The General Schedule (“GS”) classification system is a 15-grade scale which
governs the qualifications, pay structure, and other human resources policies for federal
employees, with GS-1 being the lowest grade and GS-15 being the highest.
7
Angus held the following positions: Mail and File Clerk at the Immigration and
Naturalization Service (“INS”) (1996-1997); Immigration Records Technician at INS
(1997-1998); Investigations Clerk at ICE (1998-2006); Investigative Assistant at ICE
(2006-2010); Office Assistant at the Drug Enforcement Agency (“DEA”) (2010-2011);
and Investigative Support Assistant at the U.S. Secret Service (Angus’s position at the time
of her 2012 applications).
5
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not have the qualifications sought after” for the position because she lacked
an intelligence background.
J.W. was the only selected candidate who was employed by ICE when
he applied. In his role as a mission support specialist at ICE, J.W. had
received positive feedback from colleagues and supervisors. He had a military
background, having earned an associate’s degree in instruction of technology
and military science and served in the United States Air Force for six years.
A.K. had a comparable background. She held a bachelor’s degree in
business administration and two associate’s of applied science degrees (one
in Instructor of Technology and Military Science, the other in
Communication Applications Technology). She had also spent time (ten
years) in the military. Additionally, A.K. had thirteen years of experience in
the intelligence field, and had, in her prior position as a criminal investigative
analyst with the Texas Air National Guard, worked with ICE.
Similarly, R.K. had a military and intelligence background.
Specifically, R.K. had served in the United States Marine Corps as an Arabic
linguist, and reconnaissance expert. Moreover, R.K. had had previously
worked with ICE Intelligence Research Specialists as an analyst consultant
with a private contractor. At the time of his application, R.K. was finishing
his bachelor’s degree and was an analyst consultant with a private company.
Finally, and as with the other selected candidates, both N.R.’s
educational and work experience related to the military and intelligence
fields. Specifically, N.R. had a Bachelor of Science degree from the United
States Air Force Academy, had served as a United States Army Military
intelligence officer, and had worked as a military intelligence company
commander in Iraq.
As to the Intelligence Assistant position, Robinette received over 60
applications for one opening. Ultimately, Robinette offered the job to J.C.,
6
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who held both a bachelor’s and master’s degree. J.C. had twenty-eight years
of federal service and was currently employed as an Administrative Officer
in the Houston office at a GS-14. J.C. was highly recommended by her
current supervisor, who told Robinette that J.C. was willing to apply to a
lower level because she was relocating to the Austin area. Robinette also
believed that J.C.’s prior experience as an Administrative Officer would be
an asset to the Austin office, which often needed additional administrative
support.
As noted, Angus filed an EEO complaint after she was not selected for
either position. During the resulting investigation, an EEO investigator
contacted Robinette, who had since retired. Robinette responded by email,
stating that “[I] can assure you my selection of candidates were [sic] based
on who [was] the best candidate for the overall job and position.” He then
noted that “[his] recollection [was] that this employee [Angus] use[d] to
work for one of [his] offices” and “ha[d] been applying for multiple vacancies
and when not selected she file[d] a discrimination allegation.” Robinette then
reiterated that he stood behind the selections and did not discriminate or
retaliate against Angus.
Over 70 candidates applied for the one open Intelligence Research
Specialist in 2016/2017. Three individuals were involved in the selection.
First, Ashurst and Group Supervisor Todd West reviewed the submitted
resumes and selected the top five candidates. Then, Ashurst, West, and
Assistant Special Agent in Charge Monica Mapel conducted the interviews.
The panel selected T.H., who was described as “far exceed[ing] the
qualifications” required, to fill the position.
As with the candidates selected for the Intelligence Research
Specialist position in 2012, T.H. had prior military and intelligence
experience. His experience included time spent as an intelligence research
7
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specialist for the U.S. Coast Guard, an open-source intelligence analyst with
the U.S. Marine Corps Forces Cyber Command, and an all-source
intelligence analyst at the U.S. Northern Command. He had also held
positions in Signals Intelligence (“SIGINT”), was fluent in both Spanish and
Portuguese, and held a bachelor’s degree.
After considering the record and both parties’ arguments, the
magistrate judge recommended granting summary judgment in favor of DHS
and dismissing Angus’s motion for summary judgment as moot.8 The district
court again adopted the report and recommendation in full and entered a final
judgment in favor of DHS. Angus timely appealed.
II.
We first address the claims dismissed by the district court before
turning to the district court’s grant of summary judgment on the remaining
claim.
A.
We review a grant of a motion to dismiss under Rule 12(b)(6) de novo.
Olivarez v. T-Mobile USA, Inc., 997 F.3d 595, 599 (5th Cir. 2021). In so doing,
we “accept[] all well-pleaded facts in the complaint as true and viewed in the
light most favorable to the plaintiff.” Raj v. La. State Univ., 714 F.3d 322,
329-30 (5th Cir. 2013). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief
_____________________
8
Specifically, the magistrate judge found that Angus failed to exhaust her
retaliation claims as to her 2012 non-selection for the Intelligence Research Specialist
position and 2016/2017 non-selection for the Investigative Research Specialist position,
and concluded that Angus’s retaliation claim as to her 2012 non-selection for the
Intelligence Assistant position failed on the merits.
8
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that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
i.
We begin with Angus’s claims for disability discrimination, which can
be broadly sorted into two groups. First, Angus asserted claims for disparate
treatment, all related to her own non-selections and all stemming from ICE’s
failure to forward her applications to the selecting officer under the Schedule
A certificate. Second, and similarly, Angus asserted claims for disparate
impact, alleging that ICE’s policy of not placing candidates who qualify for
both the Schedule A certificate and the competitive service certificate on
both certificates, but rather only forwarding the candidate’s application
under the competitive service certificate, disparately impacted Schedule A
applicants with disabilities.
First, we must address the threshold issue of exhaustion. A plaintiff
must exhaust her administrative remedies by timely filing a charge of
discrimination with the EEOC before filing an ADA claim in federal court.
Patton v. Jacobs Eng’g Grp., Inc., 874 F.3d 437, 443 (5th Cir. 2017). When
determining whether a plaintiff has exhausted a claim, we consider not only
those claims contained in the administrative charge, but also those that could
have reasonably grown out of the charge. Pacheo v. Mineta, 448 F.3d 783, 789
(5th Cir. 2006).9
The ADA recognizes claims for both disparate treatment and
disparate impact. Raytheon Co. v. Hernandez, 540 U.S. 44, 53 (2003).
Disparate-treatment and disparate-impact claims address “two largely
_____________________
9
Although Pacheo addresses the exhaustion requirement for Title VII claims, the
ADA incorporates by reference Title VII’s administrative procedures. Dao v. Auchan
Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996) (per curiam).
9
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separate theories of discrimination.” Pacheo, 448 F.3d at 787 (citing Int’l
Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977)). A
disparate-treatment claim, “the most easily understood type of
discrimination,” Int’l Brotherhood, 431 U.S. at 335 n.15, arises where a
plaintiff alleges that an employer treated individuals less favorably than
others on account of their protected class (here, disability). Raytheon, 540
U.S. at 52 (citing Int’l Brotherhood, 431 U.S. at 335 n.15)). That is, “[l]iability
in a disparate-treatment case ‘depends on whether the protected
trait . . . actually motivated the employer’s decision.’” Id. (alteration in
original) (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). “By
contrast, disparate-impact claims ‘involve employment practices that are
facially neutral in their treatment of different groups but that in fact fall more
harshly on one group than another and cannot be justified by business
necessity.’” Id. (quoting Int’l Brotherhood, 431 U.S. at 335 n.15).
Here, Angus failed to exhaust her administrative remedies as to any
disparate-impact claims. Her 2013 EEO complaint referenced only her own
non-selections, with no mention of any facially neutral policy or practice
affecting other candidates with disabilities.10 Accordingly, the ICE Office of
Diversity and Civil Rights limited the scope of its inquiry to “[w]hether
complainant . . . was subjected to discrimination . . . when the agency did not
select her,” and DHS’s Final Agency Decision expressly referred to her
claims regarding her non-selections as “disparate treatment claims.”
Because we do not find that a disparate-impact claim could “reasonably have
been expected to grow” from this administrative charge, see, e.g., Pacheo, 48
_____________________
10
Angus’s 2017 EEO complaint did not mention disability discrimination and
instead asserted only claims for sex and age discrimination, as well as for retaliation.
10
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F.3d at 792, we find that the district court correctly found that Angus did not
exhaust her disparate-impact claims.
Turning to the merits of Angus’s remaining disability discrimination
claims, Angus failed to state a claim for which relief could be granted.
Angus’s disability discrimination claims were all rooted in ICE’s alleged
policy of declining to place job applicants (including her) on the Schedule A
certificate when they otherwise qualify for placement on another certificate
(in her case, the competitive service certificate). On appeal, Angus reiterates
this argument, essentially contending that an agency engages in disability
discrimination when it fails to proactively prioritize applicants with a
disability.
Schedule A is a hiring authority that allows agencies to non-
competitively fill certain positions. See 5 C.F.R. § 213.3102(u). As other
courts have recognized, Schedule A authority is permissive, not mandatory.
See Ward-Johnson v. Glin, No. 19-CV-00534, 2020 WL 2770018, at *9
(D.D.C. May 28, 2020) (“But the regulation’s language is permissive; there
is no obligation to hire a disabled applicant.”); see also Hylton v. Calabria, No.
17-2023, 2020 WL 6134673, at *8 (D.D.C. Oct. 19, 2020). Put another way,
although Schedule A gives agencies a “means to avoid competitive
placement,” it “does not impose an obligation to use this authority in any
specific case.” MacDonald v. Cohen, 233 F.3d 648, 653 (1st Cir. 2000) (citing
Van Wersch v. Dep’t of Health & Human Servs., 197 F.3d 1144, 1146 (Fed. Cir.
1999)). Thus, contrary to Angus’s contention, the regulation does not confer
a “civil right” to be on the Schedule A certificate such that the failure to
utilize the Schedule A hiring authority can, on its own, sustain a cause of
11
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action for discrimination.11 Accordingly, the district court properly dismissed
her disparate-treatment claims for failure to state a claim.12
For these reasons, we AFFIRM the district court’s dismissal of
Angus’s claims for disability discrimination.
ii.
Next, Angus brought several claims challenging ICE’s actions in
processing and investigating her EEO complaints. Specifically, Angus alleged
that ICE’s EEO office (the Office of Diversity and Civil Rights) failed to
timely process her complaints, properly document aspects of its
investigation, cooperate in discovery, and follow the EEOC’s administrative
judge’s orders. She further alleged that the EEO investigators were
improperly biased. As the district court accurately noted, however, neither
Title VII nor any of the statutes or regulations upon which Angus relies
confers a right of action for improper investigation or processing of a federal
administrative employment discrimination complaint. Gibson v. Mo. Pac. R.R.
Co., 579 F.2d 890, 891 (5th Cir. 1978) (holding that Title VII does not confer
a right of action against the EEOC for improper investigation or processing
of an employment complaint); see also Daniels v. Caldera, 237 F.3d 631, 2000
WL 1701699, at *3 (5th Cir. 2000) (“There is no compelling justification to
confer upon federal employee plaintiffs an ‘improper complaint processing’
_____________________
11
In her briefing, Angus appears to believe that, had she been considered for the
open positions under the Schedule A certificate, she would have been hired. She does not,
however, otherwise plead that her (or others’) non-selection was because of her disability—
in other words, her only evidence of discrimination is ICE’s alleged failure to use its
Schedule A hiring authority.
12
We note that Angus’s disparate-impact claims are similarly premised upon ICE’s
failure to place qualified candidates with disabilities on the Schedule A certificate in
addition to the competitive service certificate. Accordingly, these claims, even if they had
been properly exhausted, would fail for the same reasons as her disparate-treatment claims.
12
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cause of action under Title VII . . . .”). We therefore AFFIRM the district
court’s dismissal of these claims.
iii.
Angus’s complaint also contained a single count of sex discrimination.
Title VII prohibits discrimination in hiring on the basis of sex. 42 U.S.C.
§ 2000e-2(a)(1). Where there is no direct evidence of intentional
discrimination, a plaintiff must establish a prima facie case of sex
discrimination by showing “(1) she is a member of a protected class; (2) she
was qualified for the position she sought; (3) she suffered an adverse
employment action; and (4) others similarly situated but outside the
protected class were treated more favorably.”13 Alvarado v. Tex. Rangers, 492
F.3d 605, 611 (5th Cir. 2007).
Although Angus satisfactorily alleged the first three requirements of a
prima facie claim for sex discrimination, she failed to allege that comparators
outside her protected class were treated more favorably in the selection
process. While Angus did allege that the selected candidates were outside of
_____________________
13
Although, at the pleading stage, “an employment discrimination plaintiff need
not plead a prima facie case of discrimination,” Swierkiewicz v. Sorema N.A., 534 U.S. 506,
515 (2002), we have nonetheless found it “helpful to refer to McDonnell Douglas to
understand whether a plaintiff has sufficiently pleaded an adverse employment action taken
“because of” [her] protected status.” Olivarez v. T-Mobile USA, Inc., 997 F.3d 595, 600 (5th
Cir. 2021); see also Chhim v. Univ. of Tex.at Austin, 836 F.3d 467, 470 (5th Cir. 2016)
(“Although Chhim did not have to submit evidence to establish a prima facie case of
discrimination at this stage, he had to plead sufficient facts on all of the ultimate elements
of a disparate treatment claim to make his case plausible. In that inquiry, it can be helpful
to reference the McDonnell Douglas framework, on which Chhim would continue to rely if
he based his claim on circumstantial evidence[.]”). As in Olivarez and Chhim, we similarly
refer to the prima facie elements of a discrimination claim to guide our analysis as to whether
Angus has pleaded sufficient facts to support a plausible claim for discrimination.
13
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her protected class,14 she failed to allege any other facts as to the candidates’
experience, qualifications, or other relevant attributes. See Saketkoo v. Adm’rs
of Tulane Educ. Fund, 31 F.4th 990, 998 (5th Cir. 2022) (explaining that
courts look to a variety of factors, including past performance, job
responsibility, experience, and qualifications to determine whether
individuals are similarly situated). Nor did Angus otherwise plead that her
non-selection was on account of discriminatory animus against her on
account of her sex.15 We thus AFFIRM the district court’s dismissal of her
sex-discrimination claim.
iv.
Similarly, Angus alleged that her non-selection for the 2012
Intelligence Research Specialist position was the result of age discrimination.
Pursuant to the public-sector provisions of the Age Discrimination in
Employment Act (“ADEA”), “[a]ll personnel actions affecting employees
or applicants for employment who are at least 40 years of age . . . . shall be
made free from any discrimination based on age.” 29 U.S.C. § 633a(a). As
with a claim for sex discrimination, in the absence of direct evidence of
discrimination, a plaintiff must show that (1) she was within the protected
class; (2) she was qualified for the position; (3) she suffered an adverse
employment decision (here, non-selection for a position); and (4) she was
replaced by someone younger or treated less favorably than similarly situated
_____________________
14
Angus alleged that three of the four selected candidates for the 2012 Intelligence
Research Specialist position were men (the chosen candidate for the 2012 Intelligence
Assistant position was a woman), and that ICE hired a man for the 2016/2017 Investigative
Research Specialist position.
15
In her complaint, Angus cited reports indicating that women are
underrepresented compared to men at ICE. Yet the existence of a gender gap in
employment at the agency does not suffice to show that a given employment decision was
motivated by discriminatory animus.
14
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younger employees to establish a prima facie case of age discrimination.16
Smith v. City of Jackson, 351 F.3d 183, 196 (5th Cir. 2003). As with her claim
for sex discrimination, although Angus alleged that each of the four selected
candidates were “approximately 20 or more years younger than” her, she
failed to allege that these candidates were similarly situated to her.
Accordingly, we AFFIRM the dismissal of her age-discrimination claim.
B.
As with a grant of a motion to dismiss, we review a district court’s
grant of summary judgment de novo. Sanders v. Christwood, 970 F.3d 558, 561
(5th Cir. 2020). “Summary judgment is proper ‘if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). “A
genuine issue of material fact exists when there is evidence sufficient for a
rational trier of fact to find for the non-moving party.” Perez v. Region 20
Educ. Serv. Ctr., 307 F.3d 318, 323 (5th Cir. 2002) (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). When
reviewing an appeal from summary judgment, we view the facts and evidence
in the light most favorable to the non-movant and draw all reasonable
inferences in her favor. Hanks v. Rogers, 853 F.3d 738, 743-44 (5th Cir. 2017).
We may affirm the district court on any ground supported by the record, even
if different from the one relied upon by the district court. Bluebonnet Hotel
Ventures, LLC v. Wells Fargo Bank, N.A., 754 F.3d 272, 276 (5th Cir. 2014)
(citations omitted).
Only Angus’s claim for retaliation under Title VII proceeded to
summary judgment. We evaluate a claim for retaliation based on
circumstantial, rather than direct, evidence under the burden-shifting
_____________________
16
See supra note 13.
15
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framework first established in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-05 (1973). Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th
Cir. 2000). First, Angus must establish a prima facie case of retaliation by
showing that “(1) [she] participated in an activity protected by Title VII;
(2) [her] employer took an adverse employment action against [her] [here,
the failure to hire]; and (3) a causal connection exists between the protected
activity and the adverse employment action.” McCoy v. City of Shreveport,
492 F.3d 551, 556-57 (5th Cir. 2007). If she makes this showing, the burden
shifts to DHS to articulate a legitimate, nondiscriminatory or nonretaliatory
reason for its failure to hire Angus. Id. at 557. Should DHS satisfy this burden,
Angus “bears the ultimate burden of proving that the employer’s proffered
reason is not true but instead is a pretext for the real. . . retaliatory purpose.”
Id.Here, assuming Angus established a prima facie case of retaliation,
DHS provided legitimate, non-retaliatory reasons as to its hiring decisions
for each of the three positions to which Angus applied—each of the selected
candidates possessed qualifications superior to Angus’s.17 For both the 2012
Intelligence Research Specialist position and 2016/2017 Investigative
Research Specialist position, each of the five selected candidates either had
prior substantive intelligence experience, military experience, or both. In
contrast, Angus, who at the time of her application was not working for ICE,
self-admittedly had neither substantive intelligence experience (at best, she
had provided investigative assistance and support) nor military experience.
Additionally, each candidate had attained greater or more relevant academic
_____________________
17
Because we can dispose of Angus’s retaliation claims on the merits, we need not
address the alternative argument that she failed to exhaust any retaliation claims related to
her 2012 and 2016/2017 non-selections. See Fort Bend Cnty. v. Davis, 139 S. Ct. 1843, 1846
(2019) (holding that prerequisites to suit such as Title VII’s charge-filing precondition are
not jurisdictional in nature).
16
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No. 22-50600
achievement than Angus, who had an associate’s degree in liberal arts.
Similarly, the candidate selected for the 2012 Investigative Assistant position
had attained a higher GS level than Angus, had more years of federal service
than Angus, and had obtained both a bachelor’s and a master’s degree. Put
plainly, this gap in qualifications is more than enough to demonstrate that
DHS had legitimate, non-retaliatory reasons for selecting other candidates
over Angus.
Therefore, Angus bore the burden of rebutting DHS’s proffered
explanation and showing that the reason given was “merely pretextual.”
Brown v. Wal-Mart Stores East, LP, 969 F.3d 571, 578 (5th Cir. 2020).
“Pretext can be proven by any evidence that casts doubt on the credence of
the employer’s proffered justification for the adverse employment action.”
Id. None of the evidence to which Angus points, however, creates an issue of
fact as to whether ICE’s stated reasons were pretextual.
First, Angus refers to ICE’s failure to forward her application under
the Schedule A certificate and seemingly implies that this failure was
somehow nefarious. These arguments, however, speak not to pretext, but to
her already-dismissed claims for disability discrimination.18
Next, Angus points to the email from Robinette, written after he had
retired from DHS and in response to the EEO investigation, in which he
recalled that Angus “ha[d] been applying for multiple vacancies and when
not selected she files a discrimination allegation.” As a preliminary matter,
because Robinette was not involved in the selection process for the
_____________________
18
To the extent that Angus is implying that the failure to place her application on
the Schedule A certificate was retaliation for her prior EEO activity, we note that this
argument conflicts with her own disparate-impact claims, which assert that her non-
placement on the Schedule A certificate was the result of a general policy at ICE.
17
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No. 22-50600
2016/2017 position, this email only speaks to the existence of pretext as to
the 2012 non-selections.
More importantly, considered in light of the record as a whole, this
statement does not constitute evidence of pretext. To begin, it is factually
true—at the time Robinette responded to the email, Angus had applied for
multiple positions and had filed discrimination allegations as to those non-
selections. Additionally, Robinette provided a written declaration stating
that, at the time of selection, he had not been aware that Angus was on the
list of eligible applicants for the Intelligence Research Specialist position,19
and that he had never considered any candidate beyond J.C. for the
Intelligence Assistant position. An email written more than a year after that
decision does not cast doubt upon these statements, nor does it reflect
Robinette’s state of mind when making the hiring decision.
Finally, Angus appears to argue that some of the selected candidates
(specifically, J.W. and J.C.) were not actually qualified for the job. To the
extent that Angus contends that she was more qualified than these
candidates, as already discussed above, the evidence shows the contrary is
true. See EEOC v. La. Off. of Cmty. Servs., 47 F.3d 1438, 1444 (5th Cir. 1995)
(“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.”). And, insofar as Angus argues that other
candidates misrepresented their qualifications on their own applications, she
_____________________
19
Indeed, Robinette did not even conduct the interview screening for the
position—he had delegated that task to Ashurst and Salazar.
18
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No. 22-50600
fails to explain how such misstatements demonstrate that ICE’s stated
reasons for not selecting her were pretextual.20
In conclusion, even assuming that Angus’s claims have been properly
exhausted and that she can establish a prima facie case of retaliation, she has
failed to show that the proffered reasons for her non-selection were
pretextual. We therefore find that the district court properly granted
summary judgment in favor of DHS and AFFIRM.
* * *
For the foregoing reasons, we AFFIRM.
_____________________
20
Indeed, Angus concedes that ICE would not have been aware of J.C.’s alleged
misrepresentations until December 2012, after the positions had been filled.
19