Fuhr v. City of Sherman

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.

Case: 23-40116 Document: 00516921192 Page: 2 Date Filed: 10/05/2023

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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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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