Angus v. Mayorkas

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

DIANN H. ANGUS, §

Plaintiff §

§

v. §

§ Case No. 1:20-CV-00242-LY-SH

ALEJANDRO MAYORKAS,

§

DIRECTOR OF THE

§

DEPARTMENT OF

§

HOMELAND SECURITY,

§

Defendant

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE LEE YEAKEL

UNITED STATES DISTRICT JUDGE

Before the Court are Plaintiff’s Motion for Summary Judgment (Dkt. 70) and Plaintiff’s

Memorandum in Support of Summary Judgment (Dkt. 71), both filed February 7, 2022;

Defendant’s Motion for Summary Judgment, filed February 14, 2022 (Dkt. 76); Defendant’s

Response to Plaintiff’s Motions for Summary Judgment, filed February 16, 2022 (Dkt. 77);

Plaintiff’s Response to Defendants’ Objection for Summary Judgment (Dkt. 78) and Plaintiff’s

Opposition to Defendant’s Motion for Summary Judgment (Dkt. 79), both filed February 22, 2022;

and Defendant’s Reply in Support of Motion for Summary Judgment (Dkt. 80), filed March 1,

2022. The District Court referred all nondispositive and dispositive motions in this case to the

undersigned Magistrate Judge for resolution and Report and Recommendation, respectively,

pursuant to 28 U.S.C. § 636(b)(1), Federal Rule of Civil Procedure 72, and Rule 1 of Appendix C

of the Local Rules of the United States District Court for the Western District of Texas. Dkt. 15.

I. Background

Plaintiff Diann Angus, proceeding pro se, is a federal employee who applied unsuccessfully

for three job openings posted by Immigration and Customs Enforcement (ICE), an agency in the

Department of Homeland Security (DHS). She is currently employed by ICE as an Enforcement

Removal Assistant. Dkt. 76-2 at 9 (Angus Tr. 24:6-10).

In 2012, Plaintiff applied for the positions of Intelligence Research Specialist and Intelligence

Assistant. Dkt. 1 ¶¶ 17, 23; Dkt. 76-13 at 2-3 (Brake Decl. ¶¶ 2, 4). DHS intelligence research

work requires effective verbal and written communication, knowledge of strategic intelligence

techniques, intelligence policies and management principles, and experience with evaluating

volatile and ambiguous situations to successfully resolve conflicts. Dkt. 76-8 at 4 (Ashurst

Statement ¶ 5(b)).

To fill vacant positions, ICE prepares a “certificate” for each category of eligible candidate.

Plaintiff was placed on the competitive service “merit selection” certificate for both positions,

despite her request to be considered as a “Schedule A” applicant due to a disability.1 Dkt. 76-13 at

3-4 (Brake Decl. ¶¶ 4-6). Her applications were forwarded to the selecting official, Special Agent

in Charge for San Antonio Homeland Security Investigations Jerry Robinette. Dkt. 76-11 at 2

(Robinette Decl. ¶ 1). There were more than 100 applicants on the selection certificates for the

Intelligence Research Specialist position. Id. at 3 (Robinette Decl. ¶ 3). Robinette designated

Assistant Special Agent in Charge Sammy Ashurst and Supervisory Intelligence Officer David

Salazar to screen resumes, conduct applicant interviews, and make final recommendations for the

Position. Id.

1 Applicants for federal positions may be eligible for listing on a Schedule A certificate if they have a

certified mental or physical disability or satisfy other criteria. See 5 C.F.R. §§ 213.3101, § 213.3102(u).

The four selected candidates, A.K., R.K., J.W., and N.R.,2 had the following qualifications:

• A.K. held a Bachelor of Science degree, graduated with a 3.9 GPA,

and taught courses in technology and military science. Dkt. 76-4 at

3. A.K. worked with ICE through the Texas Air National Guard as

a criminal investigative analyst, served 10 years in the military, and

had 13 years of experience in the intelligence field. Id. at 2-3.

• R.K. worked with ICE Intelligence Research Specialists through his

role as an analyst consultant with a private contractor. Dkt. 76-5 at

2. He also served in the United States Marine Corps as a

cryptologist, Arabic linguist, and a reconnaissance expert deployed

in the Middle East. Id. at 3. R.K. was completing his bachelor’s

degree when he applied. Id. at 2.

• J.W. was employed with ICE as a mission support specialist and

previously served in the United States Air Force as a security forces

instructor. Dkt. 76-6 at 2-4. He held an associate degree in

Instruction of Technology and Military Science and was a disabled

veteran with a 10-point veteran’s preference due to a disability

connected to his service. Id. at 2, 4. J.W. had a military intelligence

background and was regarded as a highly motivated, capable,

reliable, and dependable employee. Dkt. 76-11 at 3 (Robinette Decl.

¶ 4); Dkt. 76-14 at 5 (Ashurst Decl. ¶ 7).

• N.R. held a Bachelor of Science degree from the United States Air

Force Academy. Dkt. 76-7 at 3. N.R. served as United States Army

military intelligence officer and as a military intelligence company

commander in Iraq. Id. at 2-3.

There were 61 applicants for the Intelligence Assistant position. Dkt. 76-11 at 7 (Robinette

Decl. ¶ 11). Robinette selected J.C. to fill the position. Id. at 4-5 (Robinette Decl. ¶ 6). J.C. was a

GS-14 Administrative Officer in the Houston ICE Office who was relocating to Austin, which

prompted her to apply for the open position. Id. J.C. had 28 years of federal service and a master’s

degree. Id.; Dkt. 76-12 at 2-9. Robinette stated that J.C.’s experience as an Administrative Officer

in the Houston ICE Office “would not only provide a highly qualified Intelligence Assistant, but

would additionally provide a highly advantageous resource to the Austin office in that [she] would

2 The Court uses acronyms to refer to the selectees to preserve the confidentiality of their application

materials, which are marked “Confidential” under the Protective Order. Dkt. 52.

be available to provide expert guidance to managers on common administrative issues that

frequently arise such as personnel, purchasing and other administrative support matters.” Dkt. 76-

11 at 4-5 (Robinette Decl. ¶ 6).

Plaintiff graduated from Louisiana Tech University with a 2.3 GPA and an associate degree in

liberal arts. Dkt. 76-2 at 16-17 (Angus Tr. 42:21-25, 43:5-20); Dkt. 76-3 at 7. Plaintiff has never

served in the military nor held a position in intelligence. Id. at 1-9. At the time of her 2012

applications, Plaintiff was a GS-8 with 16 years of federal service. Dkt. 76-2 at 37, 64 (Angus Tr.

63:17-18, 104:23-25, 105:1). Ashurst “noticed numerous punctuation and grammatical errors” in

the resume Plaintiff submitted. Dkt. 76-14 at 4(Ashurst Decl. ¶ 5).

On October 16, 2012, Plaintiff was informed via an automatically generated disposition letter

sent by email that she had not been selected for the Intelligence Research Specialist position.

Dkt. 76-2 at 44 (Angus Tr. 70:1-25); Dkt. 76-10. Plaintiff also was not selected for the Intelligence

Assistant position. Dkt. 76-2 at 62-63 (Angus Tr. 95:17-25, 96:1-5). On December 4, 2012, she

contacted an EEO Counselor regarding her non-selections. Id. at 45 (Angus Tr. 71:18-21).

On March 19, 2013, Plaintiff filed a formal complaint with the ICE Equal Employment

Opportunity Office (ICE EEO), alleging that her non-selection for the Intelligence positions was

the result of discrimination based on her sex, age, and physical or mental disability, and in

retaliation for prior EEO activity. Dkt. 76-16 at 3 ¶ 3. Plaintiff had filed an earlier EEO complaint

relating to her non-selection for an ICE position in 2010 or 2011, which formed the basis of her

retaliation claim. Dkt. 1 ¶¶ 123, 142 (alleging that prior EEO complaint was in 2010); Dkt. 76-2

at 11-12 (Angus Tr. 37:14-25, 38:1-14) (stating that prior EEO complaint was in 2011). EEO

investigated Plaintiff’s allegations. Dkt. 76-18. During the investigation, the EEO investigator

contacted Robinette, who had retired from ICE, by email. Id. Robinette stated:

As a general response to the allegations, all [I] can say is that I don’t

know exactly what disability or protective group she is claiming

discrimination over. [I] can assure you my selection of candidates

were based on who [was] the best candidate for the overall job and

position. My recollection is that this employee use[d] to work for

one of my offices and left of her own decision to work for DEA [I]

believe. She apparently left DEA and has been applying for multiple

vacancies and when not selected she files a discrimination

allegation. I stand behind the selections and re-state that [I] did not

discriminate or retaliate against this applicant.

Id. at 2.

Although Plaintiff initially requested a hearing before the Equal Employment Opportunity

Commission (EEOC), she withdrew the request and asked that her case be remanded to DHS for

a Final Agency Decision. Dkt. 76-16 at 3. In January 2019, DHS issued a Final Agency Decision

concluding that ICE did not discriminate against Plaintiff and dismissed Plaintiff’s complaint as

untimely. Id. at 13. Plaintiff appealed to the EEOC’s Office of Federal Operations, which affirmed

the decision. Dkt. 76-17 at 5.

In 2016, Plaintiff applied to ICE a third time, for the position of an Investigative Research

Specialist. Dkt. 1 ¶ 46; Dkt. 76-2 at 70-71 (Angus Tr. 116:23-25, 117:1-13). Ashurst served as the

selecting official for the Investigative Research Specialist position; he included in the selection

process Group Supervisor T.W. and Assistant Special Agent in Charge M.M. Dkt. 76-20 at 5

(Folden Aff. ¶¶ 23, 25). Ashurst sought a candidate with experience in and knowledge of

intelligence-related databases and the Homeland Security Investigations National Security Group

and Financial Group. Id. at 6 (Folden Aff. ¶ 26). Ashurst ultimately selected T.H. to fill the

position. Dkt. 76-24 at 4. T.H. had served as an intelligence research specialist for the U.S. Coast

Guard, an open-source intelligence analyst with the U.S. Marine Corps Cyber Command, and an

all-source intelligence analyst at the U.S. Northern Command. Dkt. 76-21 at 5-6. T.H. also worked

as a deputy branch manager at Signals Intelligence (SIGINT) Geospatial Analyst Cell for the

Narcotics Operations Support Branch, an Officer in Charge of a SIGNIT Detachment in

Guantanamo Bay, and a Senior Spanish and Quality Control Linguist for the National Security

Agency’s Central Security Service. Id. at 6. T.H. holds a Bachelor of Science degree and is fluent

in Spanish and Portuguese. Id.

On January 24, 2017, Plaintiff received an automatically generated disposition letter sent via

email informing her that she had not been selected for the Investigative Research Specialist

position. Dkt. 1 ¶ 47; Dkt. 76-2 at 82-83 (Angus Tr. 128:22-25, 129:1-2); Dkt. 76-22. The same

day, Plaintiff submitted a Freedom of Information Act (FOIA) request to ICE regarding her

non-selection. Dkt. 1 ¶ 47; Dkt. 76-2 at 83 (Angus Tr. 129:8-20). On May 4, 2017, Plaintiff

contacted an EEO Counselor. Id. at 84 (Angus Tr. 130:4-17); Dkt. 76-19 at 2.

In 2017, Plaintiff filed another formal complaint with ICE EEO, alleging age and sex

discrimination and retaliation. Id. at 3. Plaintiff requested a hearing before the EEOC, but

subsequently withdrew the request to file an action in federal district court. Id. On February 19,

2020, the DHS issued a Final Agency Decision affirming the dismissal of Plaintiff’s case based

on her intent to file a federal action. Id. at 3-4.

On March 6, 2020, Plaintiff filed suit, alleging that her non-selection for the three positions

was the result of multiple forms of illegal discrimination in ICE’s hiring process and retaliation

for her participation in protected activities. Dkt. 1. In her 49-page original complaint, Plaintiff

asserted fifteen overlapping “counts” against Defendant. Her allegations can be condensed into the

following claims: (1) disability discrimination under Title II of the Americans with Disabilities

Act (ADA); (2) failure to properly process and investigate her previous equal employment

opportunity complaints; (3) sex discrimination under Title VII of the Civil Rights Act of 1964

(Title VII); (4) age discrimination under the Age Discrimination in Employment Act of 1967

(ADEA); and (5) retaliation under Title VII. The Court dismissed all but Plaintiff’s Title VII

retaliation claim (Count 12) for failure to state a claim under Rule 12(b)(6). Dkt. 27.

Both parties now move for summary judgment on Plaintiff’s remaining claim.

II. Legal Standard

Summary judgment shall be rendered when the pleadings, the discovery and disclosure

materials, and any affidavits on file show that there is no genuine dispute as to any material fact

and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex

Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir.

2007). A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable

jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to

view all inferences drawn from the factual record in the light most favorable to the nonmoving

party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Washburn, 504 F.3d

at 508. A court “may not make credibility determinations or weigh the evidence” in ruling on a

motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150

(2000); see also Anderson, 477 U.S. at 254-55.

Once the moving party has made an initial showing that there is no evidence to support the

nonmoving party’s case, the party opposing the motion must come forward with competent

summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586.

Mere conclusory allegations are not competent summary judgment evidence and thus are

insufficient to defeat a motion for summary judgment. Turner v. Baylor Richardson Med. Ctr.,

476 F.3d 337, 343 (5th Cir. 2007). Unsubstantiated assertions, improbable inferences, and

unsupported speculation also are not competent summary judgment evidence. Id. The party

opposing summary judgment is required to identify specific evidence in the record and to articulate

the precise manner in which that evidence supports its claim. Adams v. Travelers Indem. Co. of

Conn., 465 F.3d 156, 164 (5th Cir. 2006). If the nonmoving party fails to make a showing sufficient

to establish the existence of an element essential to its case and on which it will bear the burden of

proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.

On cross-motions for summary judgment, the Court reviews each party’s motion

independently, in the light most favorable to the nonmoving party. Amerisure Ins. v. Navigators

Ins. Co., 611 F.3d 299, 304 (5th Cir. 2010).

III. Defendant’s Motion for Summary Judgment

A. Summary Judgment Record

ICE submitted the following summary judgment evidence:

1) Transcripts from the Deposition of Diann Angus (Exh. 1, Dkt. 76-2);

2) Angus Resume (Exh. 2, Dkt. 76-3);

3) Selectee A.K. Resume (Exh. 3, Dkt. 76-4);

4) Selectee R.K. Resume (Exh. 4, Dkt. 76-5);

5) Selectee J.W. Resume (Exh. 5, Dkt. 76-6);

6) Selectee N.R. Resume (Exh. 6, Dkt. 76-7);

7) Sworn Statement of Sammy Ashurst (Exh. 7, Dkt. 76-8);

8) Sworn Statement of David Salazar (Exh. 8, Dkt. 76-9);

9) 2012 Notice of Non-Selection (Exh. 9, Dkt. 76-10);

10) Declaration of Jerry Robinette (Exh. 10, Dkt. 76-11);

11) Selectee J.C. Resume (Exh. 11, Dkt. 76-12);

12) Declaration of Peggy J. Brake (September 2014) (Exh. 12, Dkt. 76-13);

13) Declaration of Sammy H. Ashurst (Exh. 13, Dkt. 76-14);

14) Declaration of Peggy J. Brake (November 2019) (Exh. 14, Dkt. 76-15);

15) 2019 Final Agency Decision (Exh. 15, Dkt. 76-16);

16) EEOC Office of Federal Operations Order (Exh. 16, Dkt. 76-17);

17) EEOC Investigator’s Email Exchange (Exh. 17, Dkt. 76-18);

18) 2020 Final Agency Decision (Exh. 18, Dkt. 76-19);

19) Affidavit of Former Special Agent in Charge Shane Folden (Exh. 19, Dkt. 76-20);

20) Selectee T.H. Resume (Exh. 20, Dkt. 76-21);

21) 2017 Notice of Non-Selection (Exh. 21, Dkt. 76-22);

22) Angus Sworn Statement (Exh. 22, Dkt. 76-23); and

23) 2016 “Certificate of Eligibles” (Exh. 23, Dkt. 76-24).

In response to ICE’s motion, Plaintiff submitted the following evidence:

1) Declaration of Peggy J. Brake (Exh. 1, Dkt. 79-1 at 3-4);

2) Sworn Statement of Peggy Brake (Exh. 2, Dkt. 79-1 at 5-6);

3) A copy of the Office of Personnel Management webpage regarding Veterans’

Preference in Appointments (Exh. 3, Dkt. 79-1 at 7-8);

4) Selectee J.W.’s SF-50 Document (Exh. 4, Dkt. 79-1 at 9-10);

5) Proposal for the High Intensity Drug Trafficking Areas (“HIDTA”) Designation of

McLennan County, Texas (Exh. 5, Dkt. 79-1 at 11-34);

6) Affidavit of Jonas Ybarra, Jr. (Exh. 6, Dkt. 79-1 at 35-37);

7) Brad Rollins, Staples woman sentenced in smuggling case, SAN MARCOS MERCURY

(Exh. 7, Dkt. 79-1 at 38-41);

8) ICE Intelligence Assistant (OA) job posting (Exh. 8, Dkt. 79-1 at 42-43);

9) Occupational Questionnaire for Investigative Assistant (Exh. 9, Dkt. 79-1 at 44-

45); and

10) Email from Carol Kline to Angus dated November 17, 2012 (Exh. 10, Dkt. 79-1 at

46-47).

B. Analysis

ICE moves for summary judgment on the grounds that (1) Plaintiff’s retaliation claims relating

to her non-selection for the Intelligence Research Specialist and Investigative Research Specialist

positions fail because she did not exhaust her administrative remedies; and (2) the selected

candidates for all three ICE positions were hired because they had qualifications significantly

superior to Plaintiff’s, rather than in retaliation for her engagement in protected activity. Plaintiff

argues that ICE has failed to meet its burden to show a legitimate, non-retaliatory reason for

making selections for the three positions.3

1. Exhaustion of Administrative Remedies

Exhaustion of administrative remedies is a prerequisite to filing suit under Title VII. Taylor v.

Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir. 2002). To exhaust administrative remedies,

a federal employee plaintiff first must comply with the EEO regulations set forth in 29 C.F.R.

§ 1614.105. Ikekwere v. Mnuchin, No. 1:15-CV-418-DAE, 2017 WL 4479614, at *4 (W.D. Tex.

May 15, 2017). Under Section 1614.105(a)(1), federal employees must “initiate contact with [an

EEO] Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the

case of personnel action, within 45 days of the effective date of the action.” Generally, failure to

initiate contact within the 45-day limitations period and exhaust administrative remedies will bar

subsequent judicial review of a claim in federal court. Pacheco v. Mineta, 448 F.3d 783, 791 n.11

(5th Cir. 2006). Non-selection is a discrete act that requires separate reporting, even if it is related

to acts alleged in a timely filed charge. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,

114 (2002) (stating that refusal to hire is a “discrete act” and “each retaliatory adverse employment

3 Much of Plaintiff’s response is devoted to disability discrimination claims previously dismissed by the

District Court. Dkt. 79. This Report and Recommendation addresses only the arguments and evidence

relating to Plaintiff’s remaining claim for retaliation.

decision constitutes a separate actionable unlawful employment practice”); Pegram v. Honeywell,

Inc., 361 F.3d 272, 279 (5th Cir. 2004) (stating that “discrete discriminatory acts are not actionable

if time barred, even when they are related to acts alleged in timely filed charges”) (citing Nat’l

R.R. Passenger Corp., 536 U.S. at 113).

a. Intelligence Research Specialist (2012)

Plaintiff was notified of her non-selection for the Intelligence Research Specialist position on

October 16, 2012, and did not contact an EEO Counselor until December 4, 2012, 49 days after

the alleged act of retaliation. Dkt. 76-2 at 44-45 (Angus Tr. 70:1-25, 71:18-21); Dkt. 76-10.

Plaintiff argues that the “effective date” of her non-selection was the date the selectees “assumed

their acting assignments.” Dkt. 79 at 17. But “a non-selection claim accrues from the date of the

actual non-selection.” Ortega v. Chertoff, 600 F. Supp. 2d 828, 835 (W.D. Tex. 2008) (citing Vadie

v. Miss. State. Univ., 218 F.3d 365, 371) (5th Cir. 2000).

There is no dispute of material fact that Plaintiff failed to contact an EEO counselor within

45 days of her non-selection. Therefore, the undersigned Magistrate Judge recommends that the

District Court grant summary judgment that Plaintiff’s claim relating to the Intelligence Research

Specialist position is barred from judicial review due to her failure to exhaust administrative

remedies.

b. Investigative Research Specialist (2016)

Plaintiff was notified of her non-selection for the Investigative Research Specialist position on

January 24, 2017, and filed her FOIA request regarding her non-selection the same day. See Dkt. 1

¶ 47 (stating that “Plaintiff received the non-selection notice January 24, 2017”). She did not

contact an EEO Counselor until May 4, 2017, 100 days after the date of the alleged act of

retaliation.

In her response, Plaintiff argues that she only “became aware” of her non-selection on April 15,

2017, citing Exhibit 10. Dkt. 79 at 17-18. Exhibit 10 to Plaintiff’s summary judgment motion is

an email dated November 17, 2012, which contains no evidence regarding her non-selection in

2017. Dkt. 79-1 at 46-47. It appears that Plaintiff intended to cite her Exhibit 23, a page taken from

an EEO Counselor’s Report. Dkt. 71-2 at 65-66. The page lists the “Date of Allegedly

Discriminatory Event” as April 15, 2017, and calculates the “Deadline for Timely Contact” as

May 30, 2017. Id. at 66. As discussed above, the 45-day limitation period begins from the date of

non-selection, not from the date Plaintiff contends that she became aware of it.

Because Plaintiff submitted no evidence that she contacted the EEO Counselor within 45 days

of her January 24, 2017 non-selection for the Investigative Research Specialist position, there is

no dispute of material fact that she failed to exhaust her administrative remedies. Accordingly, the

undersigned Magistrate Judge recommends the District Court grant summary judgment that

Plaintiff’s claim relating to the Investigative Research Specialist position is barred from judicial

review.

2. Retaliation Claim

Plaintiff’s remaining retaliation claim arises from her non-selection for the Intelligence

Assistant position in 2012. Plaintiff alleges she was not selected for the 2012 Intelligence Assistant

position in retaliation for her previous EEO complaint in 2010 or 2011.

Absent direct evidence of discriminatory intent, the Court applies the burden-shifting

framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to determine the reason

for non-selection:

Once an employee propounds a prima facie case of interference or

retaliation, the burden shifts to the employer to articulate a

legitimate, nondiscriminatory reason for the adverse employment

action. Thereafter, the burden shifts back to the employee to show

by a preponderance of the evidence that the employer’s articulated

reason is a pretext for discrimination.

Tatum v. S. Co. Servs., 930 F.3d 709, 713 (5th Cir. 2019) (citations omitted).

a. Prima Facie Case

To establish a prima facie case of retaliation, a plaintiff must show that (1) she engaged in an

activity protected by Title VII; (2) an adverse employment action occurred; and (3) a causal link

exists between the protected activity and the adverse employment action. McCoy v. City of

Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007); Long v. Eastfield College, 88 F.3d 300, 304

(5th Cir. 1996). An adverse employment action consists of ultimate employment decisions, such

as hiring, granting leave, discharge, promotion, or compensation. Pegram, 361 F.3d at 282. A

causal link exists when the employer’s action was based in part on knowledge of the employee’s

protected activity. Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001). A plaintiff need

not prove that her protected activity was the sole factor motivating the adverse employment

decision. Long, 88 F.3d at 305 n.4.

For purposes of its motion, ICE assumes, but does not concede, that Plaintiff can establish a

prima facie case for retaliation. Dkt. 76 at 22. Accordingly, the burden shifts to ICE to articulate a

legitimate, nondiscriminatory reason for the adverse employment action. Long, 88 F.3d at 304-05.

b. Legitimate, Nondiscriminatory Reason

ICE submitted the following evidence that J.C., the candidate selected for the Intelligence

Assistant position in 2012 position, possessed qualifications superior to Plaintiff’s:

• J.C. had 28 years of federal service, compared to

Plaintiff’s 16 years;

• J.C. had a master’s degree, compared to Plaintiff’s

associate degree;

• J.C. was a current ICE employee, while Plaintiff was not;

• J.C. was a GS-14, while Plaintiff was a GS-8; and

• J.C. had served as an ICE Administrative Officer;

Plaintiff had not.

Dkt. 76 at 22; Dkt. 76-2 at 37, 64 (Angus Tr. 63:17-18, 104:23-25, 105:1); Dkt. 76-3; Dkt. 76-11

at 4-5 (Robinette Decl. ¶ 6); Dkt. 76-12.

An employer’s decision to hire a better qualified individual is a legitimate, nondiscriminatory

reason for another applicant’s denial. Price v. Fed. Express Corp., 283 F.3d 715, 720 n.2 (5th Cir.

2002); Longo v. Chao, 536 F. Supp. 2d 729, 738 (W.D. Tex. 2008). The evidence ICE cites clearly

supports its argument that it selected J.C. because of her superior qualifications. Accordingly, ICE

has met its burden to establish a legitimate, non-retaliatory reason for Plaintiff’s non-selection.

c. Pretext

The burden now shifts back to Plaintiff to show that ICE’s articulated reason for her

non-selection is a pretext for retaliation. Plaintiff first argues that ICE has provided “six separate

reasons for Plaintiff’s three non-selection cases” and “five different shifting explanations,” which

she contends is evidence of pretext. Dkt. 79 at 1. Plaintiff’s arguments relate to her previously

dismissed disability discrimination claims based on ICE’s failure to use a Schedule A certificate.

Id. at 8-9.

Next, Plaintiff provides additional information regarding the work experience cited in her

resume and education she has undertaken since her 2012 application. Id. at 9-11; Dkt. 79-1 at

11-34, 38-41. She submits the affidavit of Jonas Ybarra, Jr., a friend and former colleague, who

attests to the assistance she provided him while he was an ICE Deportation Officer in Waco, Texas.

Id. at 36-37. To the extent Plaintiff attempts to argue that she was more qualified than J.C., the

evidence is insufficient to establish pretext because it does not show that Plaintiff clearly was more

qualified than J.C. See Price, 283 F.3d at 723 (stating that to establish pretext, the losing

candidate’s qualifications must “leap from the record and cry out to all who would listen that [s]he

was vastly—or even clearly—more qualified for the subject job”) (citation omitted); Deines v. Tex.

Dep’t of Protective & Regul. Servs., 164 F.3d 277, 282 (5th Cir. 1999) (stating that an employer’s

judgment as to qualifications “will not be probative of the issue of a discriminatory motive unless

the qualifications are so widely disparate that no reasonable employer would have made the same

decision”).

Finally, Plaintiff argues that J.C. worked in Houston but falsely stated in her application that

she lived and worked in the Austin area. Dkt. 79 at 12-13; Dkt. 79-1 at 42-45. Plaintiff does not

explain how a misstatement in J.C.’s application shows that ICE’s claim it selected J.C. due to her

superior qualifications is mere pretext for retaliation against Plaintiff.

In conclusion, Plaintiff has failed to meet her burden to produce evidence creating a fact issue

regarding pretext. The undersigned Magistrate Judge therefore recommends that the District Court

grant ICE’s motion for summary judgment on Plaintiff’s retaliation claim.

IV. Plaintiff’s Motion for Summary Judgment

Because Defendant’s motion for summary judgment resolves Plaintiff’s only remaining claim,

the Court recommends that the District Court dismiss Plaintiff’s Motion for Summary Judgment

as moot.

V. Recommendation

Based on the foregoing, the undersigned Magistrate Judge RECOMMENDS that the District

Court GRANT Defendant’s Motion for Summary Judgment (Dkt. 76) and enter judgment for

Defendant on Plaintiff’s Title VII retaliation claim.

The Court FURTHER RECOMMENDS that the District Court DISMISS AS MOOT

Plaintiff’s Motion for Summary Judgment (Dkt. 70).

VI. Warnings

The parties may file objections to this Report and Recommendation. A party filing objections

must specifically identify those findings or recommendations to which objections are being made.

The District Court need not consider frivolous, conclusive, or general objections. See Battle v.

United States Parole Comm’n, 834 F.2d 419, 421 (Sth Cir. 1987). A party’s failure to file written

objections to the proposed findings and recommendations contained in this Report within fourteen

(14) days after the party is served with a copy of the Report shall bar that party from de novo

review by the District Court of the proposed findings and recommendations in the Report and,

except on grounds of plain error, shall bar the party from appellate review of unobjected-to

proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C.

§ 636(b)(1); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass’n,

79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

SIGNED on April 29, 2022.

SUSAN HIGHTOWER

UNITED STATES MAGISTRATE JUDGE

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