The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 19, 2008
No. 07-50257 Charles R. Fulbruge III
Summary Calendar Clerk
LITTO B. BACAS,
Plaintiff–Appellant,
v.
FRANCIS J. HARVEY, Department of the Army,
Defendant–Appellee.
LITTO B. BACAS,
Plaintiff–Appellant,
v.
FRANCIS J. HARVEY, Secretary of the Army, Department of the Army,
Defendant–Appellee.
Appeal from the United States District Court for the
Western District of Texas
USDC No. 6:05-CV-348
USDC No. 6:05-CV-186
Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
No. 07-50257
Litto B. Bacas appeals from a grant of summary judgment in favor of
defendant–appellee Frances J. Harvey, Secretary of the Army (Secretary).
Bacas, who was formerly a civilian army employee, alleges that he was
discriminated against because of his age, his race, his national origin, and in
retaliation for equal employment opportunity (EEO) complaints. Bacas asserts
that because of this discrimination, the following adverse employment actions
occurred: (1) his employment was terminated; (2) he was not promoted; (3) a
written reprimand was placed in his file for taking unauthorized leave; and
(4) he was subjected to a hostile environment.
Bacas raises two issues on appeal. First, he contends that the district
court erred in finding that the Merit Systems Protection Board’s (MSPB’s)
decision to uphold Bacas’s removal was supported by substantial evidence.
Second, Bacas argues that the district court inappropriately granted summary
judgment on his employment discrimination claims.
Because Bacas asserted his claims through the EEO process and through
the MSPB process, this is a “mixed case.”1 Under 5 U.S.C. § 7703(c), we review
Bacas’s discrimination claims raised before the MSPB de novo.2 Our review of
the MSPB’s decision to uphold Bacas’s termination is limited to the
administrative record, and the MSPB’s determinations must be upheld “unless
they are clearly arbitrary and capricious, unsupported by substantial evidence
or otherwise not in accordance with law.”3
The district court concluded that the decision to terminate Bacas was
clearly supported by substantial evidence. We agree. Bacas filed inappropriate
R. 47.5.4.
1
Aldrup v. Caldera, 274 F.3d 282, 286 (5th Cir. 2001).
2
Id. at 285-86 (citing 5 U.S.C. § 7703(c)).
3
Id. at 287 (citing 5 U.S.C. § 7703(c)).
2
No. 07-50257
leave requests, filed frivolous complaints of workplace violence against his co-
workers, and falsely claimed to the military police that his supervisor assaulted
him. Given Bacas’s actions, the MSPB’s decision to terminate his employment
was made to promote the efficiency of the service and is supported by substantial
evidence.4
Bacas argues that the district court erred in concluding that there are no
genuine issues of material fact with regard to his claim that discrimination
caused the selection of another candidate rather than him for a facilities
manager position, his receipt of a written reprimand for unauthorized leave, and
the termination of his employment. To establish a prima facie case for
discrimination, Bacas must show that (1) he is a member of a protected class;
(2) he suffered an adverse employment decision; (3) he was qualified for the
position sought or held; and (4) the position sought was filled by someone outside
of the protected class or persons not in the protected class were treated more
favorably.5 The Secretary can rebut Bacas’s prima facie case by articulating a
legitimate, non-discriminatory reason for the adverse action taken against
Bacas.6 Bacas may then rebut the Secretary’s reason by proving (1) that the
reason was merely a pretext for discrimination; or (2) “that the [Secretary’s]
reason, while true, is only one of the reasons for its conduct, and another
motivating factor is [Bacas’s] protected characteristic.”7
4
5 U.S.C. § 7513 (a) (“Under regulations prescribed by the Office of Personnel
Management, an agency may take an action covered by this subchapter [5 U.S.C. §§ 7511 et
seq.] against an employee only for such cause as will promote the efficiency of the service.”).
5
Ross v. Univ. of Tex. at San Antonio, 139 F.3d 521, 526 (5th Cir. 1998).
6
Marberry v. Vought Aircraft Co., 55 F.3d 1086, 1089 (5th Cir. 1995) (citations omitted).
7
Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004) (internal quotation
marks and citations omitted).
3
No. 07-50257
Bacas claims that the failure to promote him to a facilities manager’s
position was based on unlawful discrimination. Even assuming Bacas
established a prima facie case in the selection of Christopher Snodgrass—a
candidate not sharing Bacas’s protected characteristics—for the facilities
manager position, the Secretary has articulated legitimate, nondiscriminatory
reasons for promoting Snodgrass. A selection board comprised of two officers
reviewed Snodgrass’s and Bacas’s resumes, and concluded that Snogradass was
the best-qualified candidate because he had been a facilities manager in the
past, had recent supervisory experience, and had recent health facility training.
To prove those reasons were pretextual, as Bacas contends, he must show
that he was clearly better qualified.8 Bacas asserts that he was clearly better
qualified because he had a bachelor’s and a master’s degree while Snodgrass was
only a high school graduate. However, the facilities manager position did not
require college education. Further, the selection board credited Bacas with
superior educational credentials, but still recommended Snodgrass based upon
a consideration of each candidate’s overall qualifications. Accordingly, Bacas has
not countered the Secretary’s legitimate, non-discriminatory reasons for
promoting Snodgrass in lieu of Bacas.
Bacas fails to establish a prima facie case with regard to his having a
written reprimand placed in his employment file for being absent without leave
and for the termination of his employment. He fails to show anyone who
engaged in similar misconduct being treated more favorably. Moreover, the
Secretary has provided a legitimate, non-discriminatory reason for reprimanding
Bacas. Bacas was notified that he was considered absent without leave for
September 3-6, 2002. Bacas did not submit any documentation to account for his
absence during this time period. In fact, he only offers his own unsupported
8
Manning v. Chevron Chem. Co., L.L.C., 332 F.3d 874, 882 (5th Cir. 2003).
4
No. 07-50257
belief that the Secretary’s reasons for the adverse employment actions were
untrue. However, we have held “that an employee’s subjective belief that he
suffered an adverse employment action as a result of discrimination, without
more, is not enough to survive a summary judgment motion, in the face of proof
showing an adequate nondiscriminatory reason.”9
The district court also granted the Secretary summary judgment on
Bacas’s hostile work environment claim. Bacas only references the facts in his
brief; he does not inform us of an error.10 Accordingly, the issue is waived.
* * *
For these reasons, the judgment of the district court is AFFIRMED.
9
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996).
10
Al-Ra’id v. Ingle, 69 F.3d 28, 31 (5th Cir. 1995) (“An appellant’s brief must contain
an argument on the issues that are raised, in order that we, as a reviewing court, may know
what action of the district court is being complained of.”) (citations omitted) (emphasis in
original).
5