Fuhr v. City of Sherman ( 2023 )

Case: 23-40116 Document: 00516921192 Page: 1 Date Filed: 10/05/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
October 5, 2023
No. 23-40116
Lyle W. Cayce
____________ Clerk
Benjamin Robert Fuhr,
Plaintiff—Appellant,
versus
City of Sherman, Texas,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:21-CV-549
______________________________
Before Stewart, Dennis, and Wilson, Circuit Judges.
Per Curiam: *
Benjamin Robert Fuhr (“Fuhr”) appeals the district court’s summary
judgment in favor of the City of Sherman, Texas (“the City”). Because Fuhr
fails to establish that the City’s proffered reasons for hiring Ty Coleman, and
not promoting him, for the position of Animal Services Manager were merely
pretextual, we AFFIRM.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 23-40116
I. FACTUAL & PROCEDURAL BACKGROUND
Fuhr, a white male, was an animal control officer for the Sherman
Animal Shelter. In the Spring of 2019, the position of Animal Services
Manager came open. At the same time, the City was looking to hire someone
for the position of Animal Services Supervisor, a mid-level supervisory
position. On April 25, 2019, Fuhr applied for both positions. The City
appointed a three-member committee to interview qualified applicants and
make hiring decisions for the open positions. Three internal candidates—
Fuhr, Matt Harmon, and David Ulch, all of whom are white males—and one
external candidate—Ty Coleman, a Black male—were interviewed for the
Animal Services Manager position.
The committee utilized a scoresheet, comprised of a standard set of
fifteen interview questions, and five other criteria to evaluate each candidate.
Each member of the committee assigned a score to each candidate in
reference to each question and criteria. Coleman received an average score
of 91 out of 100, Fuhr and Ulch each received average scores of 82 out of 100,
and Harmon received an average score of 65 out of 100. Coleman also
received the highest scores in several additional criteria. At the time of his
application, Coleman had approximately 8 ½ years of relevant work
experience, including three years of experience in a supervisory role.
Ultimately, the committee unanimously decided to hire Coleman.
Fuhr filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) in November 2019, following the
hiring of Coleman. After receiving his right to sue letter from the EEOC,
Fuhr filed suit in the Eastern District of Texas alleging that the City’s failure
to promote him was because of his race in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e, et seq. and Chapter 21 of the Texas
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Labor Code. 1 Following the district court’s dismissal of Fuhr’s state law
claim, the City moved for summary judgment on his remaining Title VII
claim, which the district court granted. Fuhr timely appealed.
II. Standard of Review
We review a district court’s grant of summary judgment de novo.
Hudson v. Lincare, Inc., 58 F.4th 222, 228 (5th Cir. 2023); United States v.
Lawrence, 276 F.3d 193, 195 (5th Cir. 2001). Summary judgment is
appropriate when a party 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). The court should grant summary judgment when “there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed R. Civ. P. 56(a).
III. Discussion
Fuhr argues that the district court erred in granting the City’s motion
for summary judgment because he provided sufficient evidence through
which a properly instructed jury could have reasonably concluded that the
City’s proffered reasons for hiring Coleman, instead of promoting Fuhr, for
the Animal Services Manager position, were racially motivated. We are
unpersuaded.
A. Establishing a Prima Facie Case of Racial Discrimination
In accordance with a Title VII racial employment discrimination
claim, the complainant has the burden of establishing a prima facie case.
McDonnell Douglas Corp. v. Green, 411 U.S. 802 (1973). To establish a prima
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1
TEX. LAB. CODE ANN. § 201.001, et seq., also known as the Texas
Commission on Human Rights Act (“TCHRA”).
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facie case of discrimination based on his race, Fuhr must establish that “(1)
he was not promoted, (2) he was qualified for the position he sought, (3) he
fell within a protected class at the time of the failure to promote, and (4) the
defendant either gave the promotion to someone outside of that protected
class or otherwise failed to promote the plaintiff because of his race.” Autry
v. Fort Bend Indep. Sch. Dist., 704 F.3d 344, 346–347 (5th Cir. 2013); see also
Ernst v. Methodist Hosp. Sys., 1 F.4th 333, 339 (5th Cir. 2021) (quoting Stroy
v. Gibson on behalf of Dep’t of Veterans Affs., 896 F.3d 693, 698 (5th Cir.
2018)). If Fuhr successfully establishes a prima facie case, the burden would
then shift to the City to prove a legitimate, nondiscriminatory reason for
failing to promote Fuhr. Byers v. Dall. Morning News, Inc., 209 F.3d 419, 425
(5th Cir. 2000); see, e.g., Saketkoo v. Admins. of Tulane Educ. Fund, 31 F.4th
990, 1000 (5th Cir. 2022) (“If the plaintiff establishes a prima facie case, then
the employer has the burden of production to provide ‘a legitimate, non-
discriminatory reason’ for the adverse employment action.”). Upon doing
so, the burden would then shift back to Fuhr to prove, by a preponderance of
the evidence, that the proffered reason was mere pretext for racial
discrimination. Byers, 209 F.3d at 425.
Although there is no dispute that Fuhr satisfied the first three
elements of his prima facie case, the parties disagree on the fourth.
Nevertheless, the district court determined that Fuhr established a prima
facie case of discrimination because “(1) there is no dispute that he was not
promoted to the Animal Services Department Manager role, (2) the City
does not contest that [Fuhr] was qualified for the position, (3) Fuhr’s white
skin color is his protected class, and (4) a non-white individual—a [B]lack
man—was given the position instead.” Fuhr v. City of Sherman, Texas, No.
4:21-CV-549-SDJ, 2023 WL 1765914 at *3 (E.D. Tex. Feb. 3, 2023). This
court agrees.
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B. The Veracity of the City’s Proffered Reasons and Evidence of Pretext
Because Fuhr established a prima facie case of racial discrimination,
the City becomes tasked with providing a legitimate and nondiscriminatory
reason for hiring Coleman instead of promoting Fuhr. See Autry, 704 F.3d at
347. The City easily meets its burden. The City’s many reasons for its hiring
decision include Coleman receiving the highest overall score based on
interviews, having over eight years of experience in animal services, and
being the only candidate with management and supervisory experience. Fuhr
is thus required to establish that the proffered reasons from the City to hire
Coleman and not promote him were merely pretextual. See McDonnell, 411
U.S. at 804; see also Sanders v. Christwood, 970 F.3d 558, 562 (5th Cir. 2020)
(“If the employer has articulated [some legitimate, nondiscriminatory reason
for the employee’s rejection], then the plaintiff must show that the stated
reason ‘was in fact pretext.’” (quoting McDonnell, 411 U.S. at 804)). He fails
to do so.
This court has repeatedly held that “differences in qualifications
between job candidates are generally not probative evidence of
discrimination unless those differences are so favorable to the plaintiff that
there can be no dispute among reasonable persons of impartial judgment that
the plaintiff was clearly better qualified for the position at issue.” Deines v.
Tex. Dep’t of Protective & Regul. Servs., 164 F.3d 277, 279 (5th Cir. 1999); see
also Roberson-King v. La. Workforce Comm’n, Off. of Workforce Dev., 904 F.3d
377, 381 (5th Cir. 2018). Whether Fuhr’s credentials qualify him for the
position of Animal Services Manager is not dispositive in this case. Rather,
Fuhr must establish that he was clearly better qualified than Coleman. Deines,
164 F.3d at 279. He has not and, likewise, cannot.
“A plaintiff may also establish pretext ‘by showing that the
employer’s proffered explanation is false or ‘unworthy of credence.’”
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Roberson-King, 904 F.3d at 381. Fuhr attempts to demonstrate evidence of
pretext through several additional means, including (1) statements made by
members of the committee; (2) the hiring of Harmon for the position of
Animal Services Supervisor; (3) Fuhr’s belief that the ideas he presented to
the committee were met with indifference; (4) a prior lawsuit against the City
regarding its failure to promote minorities; and (5) Coleman’s age. Fuhr’s
assertions are insufficient to show pretext. Fuhr cannot establish pretext
based on a committee member stating that Coleman was “the first African
American to hold the director position” as this statement does not indicate
that the committee discriminated against white applicants simply because it
recognized the accomplishment of a Black applicant. Additionally, the hiring
of another white candidate for an entirely separate position, Animal Services
Supervisor, is irrelevant to whether the City’s proffered reasons regarding
the committee’s hiring rationale for the Animal Services Manager position
were pretextual. Lastly, Fuhr’s assertions, that (1) the committee’s
perceived indifference to his presented ideas and (2) a prior lawsuit fueled its
decision to hire Coleman for the position, amount to nothing more than
speculation that does not substantiate a finding of pretext. See Britt v. Grocers
Supply Co., 978 F.2d 1441, 1451 (5th Cir. 1992) (noting that speculation and
belief are insufficient to create a fact issue regarding pretext). Finally, noting
Coleman’s age at the time of the hiring, 22 years old, is of no moment in this
case as a claim for racial discrimination is distinct from a claim for age
discrimination. See e.g., Evans v. City of Houston, 246 F.3d 344, 350 (5th Cir.
2001) (showing that establishing a prima facie case of racial discrimination is
distinct from establishing a prima facie case of age discrimination).
Consequently, given the lack of competent summary judgment
evidence, Fuhr is unable to establish that the City’s proffered reasons for
hiring Coleman, and not promoting him, for the position of Animal Services
Manager were merely pretextual. See McDonnell, 411 U.S. at 804.
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Accordingly, we hold that the district court did not err in granting the City’s
motion for summary judgment. See Hudson v. Lincare, Inc., 58 F.4th 222, 228
(5th Cir. 2023); United States v. Lawrence, 276 F.3d 193, 195 (5th Cir. 2001).
IV. Conclusion
For the foregoing reasons, the district court’s judgment is
AFFIRMED.
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