IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-51206
Summary Calendar
_____________________
LEONARDO R. CANTU,
Plaintiff-Appellant,
versus
SENIOR COMMUNITY SERVICES/SENIOR CENTERS; ROBERT SHOFFNER,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(SA-98-CV-40)
_________________________________________________________________
July 16, 1999
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
This appeal arises under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. Leonardo R. Cantu, a Hispanic,
proceeds pro se. Cantu appeals the district court’s grant of
summary judgment in favor of Senior Community Services, Inc.
(“SCS”) on his hostile work environment, national origin
discrimination, and unlawful retaliation claims. The district
court granted summary judgment on Cantu’s hostile work environment
claim on the grounds that Cantu failed to include the claim in the
his timely charge of discrimination filed with the Equal Employment
*
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this opinion should not be published and is not precedent except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. R. 47.5.4.
Opportunity Commission (“EEOC”). Alternatively, the district court
held that Cantu’s proffered evidence of a hostile work environment
was insufficient to rise to an actionable level of workplace
discrimination. Next, the district court granted summary judgment
on Cantu’s national origin discrimination claim, on the grounds
that Cantu failed to show that SCS’s proffered rationale for
promoting John Peterson, a black male, over him was a pretext for
discrimination. Finally, in granting summary judgment on the
unlawful retaliation claim, the district court ruled that Cantu
failed to establish the requisite causal link between his protected
activity (the filling of his EEOC compliant against SCS thirty-one
months prior to his termination), and the adverse employment action
suffered (SCS’s decision to eliminate Cantu’s social worker
position in the 1995/1996 fiscal year). For the foregoing reasons,
we affirm.
On appeal, Cantu argues that the district court erred in
granting summary judgment on his national origin discrimination
claim because he presented sufficient evidence that SCS’s proffered
explanation for promoting John Peterson to the position of program
director for the Senior Center was a pretext for discrimination.1
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Cantu also seeks reversal of the district court’s grant of
summary judgment on his claim for hostile work environment. Even
if we excuse Cantu’s failure to file the claim with the EEOC, we
still have no basis on which to rule in his favor. On appeal,
Cantu has failed to provide any legal or factual analysis in
support of his hostile work environment claim. Because Cantu
failed to argue the hostile work environment claim in his brief, he
has waived that claim on appeal. Jason D.W. v. Houston Indep. Sch.
2
.Cantu failed to provide any legal or factual analysis in support
of his hostile work environment claim. We have previously held
that a party’s failure to brief a claim waives the claim on appeal.
Jason D.W. v. Houston Indep. Sch. Dist., 158 F.3d 205, 210 (5th
Cir. 1998) (citations omitted).2 Cantu argues that Robert
Shoffner, SCS’s executive director, relied solely upon subjective
job criteria in promoting Peterson. In doing so, Cantu contends
that Shoffner disregarded objective criteria, such as the minimum
qualification requirements for the position, Cantu’s superior work
experience, his positive performance evaluations, and merit pay
increases. Cantu further maintains that the jury reasonably could
infer pretext from the fact that SCS interviewed and selected
Peterson, an applicant who lacked the necessary qualifications for
the job. Cantu next argues that his work experience and
educational background exceeded the posted job qualifications for
the position and that he was better qualified than Peterson.
Finally, Cantu contends that Shoffner’s proffered explanation as to
Dist., 158 F.3d 205, 210 (5th Cir. 1998) (citations omitted); Long,
88 F.3d at 309 n.9.
Cantu’s remaining argument on appeal is that the district
court erred in granting summary judgment on his unlawful
retaliation claim. In support of this argument, Cantu attempts to
highlight what he perceives to be implausibilities in SCS’s
decision to eliminate his job position. In doing so, Cantu has
offered no proof that “but for” the discrimination complaint he
filed with the EEOC approximately two years earlier, SCS would not
have made the decision to terminate his social worker position.
Cantu’s retaliation claim therefore fails as a matter of law. Long
v.Eastfield College
, 88 F.3d 300, 308 (5th Cir. 1996) (citations omitted).
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why he promoted Peterson is probative of discrimination because his
statements explaining what criteria he considered in selecting
Peterson were riddled with inconsistencies and omissions.
We review the district court’s grant of summary judgment de
novo. Walton v. Bisco Industries, 119 F.3d 368, 370 (5th Cir.
1997). In the context of summary judgment, a substantial conflict
in evidence must exist to create a jury question on the issue of
national origin discrimination. Rhodes v. Guiberson Oil Tools, 75
F.3d 989, 993 (5th Cir. 1996) (en banc) (citations omitted).
Evidence is “substantial” if it is of such quality and weight that
reasonable and fair-minded men in the exercise of impartial
judgment might reach different conclusions. Id.
Applying these standards, we find that Cantu has not met his
Title VII evidentiary burden. In Walton v. Bisco, 119 F.3d at 370
(citations omitted), we explained that "a reason cannot be proved
to be 'a pretext for discrimination' unless it is shown both that
the reason was false, and that discrimination was the real reason"
for the employer’s actions. (Emphasis added.) Notwithstanding his
proof of mendacity, Cantu has failed to allege facts, and, indeed,
there exists no proof in the record that SCS’s decision to promote
Peterson was motivated by national origin discrimination. Absent
this showing, there simply exists no basis on which to submit
Cantu’s Title VII claim to a jury. See Walton, 119 F.3d at 370
(citing St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502 514-15
(1993))("nothing in law would permit us to substitute for the
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required finding that the employer's action was the product of
unlawful discrimination, the much different (and much lesser)
finding that the employer's explanation of its action was not
believable”).
Furthermore, even if reasonable jurors agree that Cantu was
the best qualified candidate for the position of program director,
without proof of SCS’s discriminatory animus, Cantu still has not
proved his case. See Deines v. Texas Dept. of Protective and
Regulatory Services, 164 F.3d at 282 (5th Cir. 1999) (citing Hicks,
509 U.S. at 524) ("that the employer's proffered reason is
unpersuasive, or even obviously contrived does not necessarily
establish that the plaintiff's proffered reason of [discrimination]
is correct").
Finally, although we have recognized the potential of
subjective criteria to provide cover for unlawful discrimination,
Lindsey v. Prive, Co., 987 F.2d 324, 328 (1993) (citations
omitted), we have made clear that a promotional system based upon
such unquantifiable considerations is not “discriminatory per se.”
Anderson v. Douglas & Lomason Co., Inc., 26 F.3d 1277, 1293 (5th
Cir. 1994), cert. denied, 513 U.S. 1149 (1995). Thus, without
proof showing that Shoffner’s use of the subjective criteria was
motivated by his purported animus against Cantu’s Hispanic national
origin, this evidence is not probative of intentional
discrimination.
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In sum, the district court did not err in granting summary
judgment on Cantu’s national origin discrimination claim. The
judgment of the district court is therefore in all aspects
AFFIRMED.
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