UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 00-21160
Summary Calendar
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BENNETH OKPALA,
Plaintiff-Appellant,
versus
CITY OF HOUSTON,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
Civil Docket No.: H-00-2090
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October 26, 2001
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
The court has carefully considered this appeal in light
of the briefs and pertinent parts of the record. Appellant Okpala
contends that he is entitled to a reversal of the district court’s
grant of summary judgment in favor of the City of Houston on his
Title VII retaliation claim. We disagree, for two reasons. Either
*
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opinion should not be published and is not precedent except under the limited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.
reason alone suffices as a basis for affirming the judgment of the
district court.
First, Okpala failed to make out a prima facie case of
retaliation under Title VII. Such a prima facie case has three
elements: (1) that the plaintiff engaged in activity protected by
Title VII; (2) that an adverse employment action occurred; and (3)
that a causal link existed between the protected activity and the
adverse action. See, e.g., Evans v. City of Houston, 246 F.3d 344,
352 (5th Cir. 2001). Okpala failed to adduce adequate evidence as
to the third of these elements.
Okpala argues that because he is clearly better qualified
than the successful applicants for the positions that he sought,
the only reason why the City chose to promote or hire those
applicants rather than him must be retaliation. At the least (he
would say), he has produced sufficient evidence of this possibility
to withstand summary judgment. We are entirely unpersuaded by this
argument. Okpala has produced some evidence tending to show that
he is better qualified than those applicants, but he has produced
no evidence that would show (even if a trier of fact believed it in
its entirety) that the City’s decision to choose them for the
positions instead of him is so inexplicable that the decision was
motivated by a desire to retaliate for his protected activity. The
City produced evidence tending to show that the candidates it chose
were also qualified, and that Okpala may not have been as qualified
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as they. Although the City may have been mistaken in its judgment,
we agree with the district court that the City’s employment
decisions were not so wildly unreasonable as to allow a trier of
fact to conclude that a causal link existed between Okpala’s
protected activities and these employment decisions. “This Court
affords a high degree of deference to employers in their hiring and
promotion decisions. In order to be probative on the issue of
retaliation, ‘the qualifications [must be] so widely disparate that
no reasonable employer would have made the same decision.’” Rios
v. Rossotti, 252 F.3d 375, 380 (5th Cir. 2001) (brackets in
original) (citation omitted). Although we do not deny that Okpala
is a gifted and accomplished individual, we cannot conclude that
the disparities between his qualifications and those of the
successful applicants meet this demanding legal standard.
Second, even if Okpala made out a prima facie case under
Title VII, the City adduced evidence of a non-discriminatory reason
for its employment decisions sufficient to shift the burden to
Okpala to prove that the City’s reason was a pretext for
retaliation. See Rios, 252 F.3d at 380; Mayberry v. Vought
Aircraft Co., 55 F.3d 1086, 1093 (5th Cir. 1995). Okpala has not
produced evidence of pretext sufficient to withstand summary
judgment. The City’s non-discriminatory reason for its decisions
is that the City believed that someone other than Okpala was a
better candidate for each of the positions that he did not get. As
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we have said, the City may have been wrong in its belief; even if
this was true, it would not suffice to allow a trier of fact to
conclude that the City’s belief amounts to a pretext. Okpala has
not adduced enough evidence to permit a trier of fact to find that
the adverse employment actions of which Okpala complains would not
have occurred but for his protected activities. See Rios, 252 F.3d
at 380.
Okpala also argues, or appears to argue, that the City’s
hiring procedures were plagued by so many irregularities as to
allow an inference of retaliation. We agree with the district
court that inefficiency and bureaucracy are just as plausible
causes of such irregularities as is a desire to retaliate against
Okpala for the exercise of his rights. Okpala’s evidence of
inconsistencies and irregularities cannot prove a causal link
between his protected activity and the City’s decisions not to
promote him. Nor can it prove pretext.
We note that the briefing in this case was inadequate.1
One example: the City failed to include page references in its case
citations in a number of instances in which page references would
plainly have been helpful. Appellee’s Br. at 11, 13, 14, 15.
Perhaps that is because the cases cited do not stand for the
1
Because the district court did not give a written explanation of its
decision to grant summary judgment in favor of the City, good briefing would have
been even more helpful in this case than it normally is.
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propositions for which the City cites them (indeed, this seems to
be true of one or more of the cases); but in that event, it would
be better not to have cited the cases in the first place. To
require the reader to search the cases in vain does the City no
good.
Another example is much more serious. In at least one
instance, Okpala flatly misrepresented a statement made by the
district court. On page 12 of his brief, Okpala states that “[t]he
City’s promotion of Mr. Clint Herbert [sic] over Mr. Okpala was so
obviously discriminatory and fraught with so much [sic]
irregularities, that even the District Court had to acknowledged
[sic] it in its rulings.” He follows this assertion by citing page
4 of the transcript of the district court’s hearing of December 8,
2000 (R. Doc. 39). The page cited contains an acknowledgment that
the City’s promotion processes contained irregularities. But
nowhere on that page or, to our knowledge, in the record did the
district court “acknowledge” that the decision to promote Mr.
Harbert (or anyone else) was “discriminatory,” let alone that it
was “obviously” discriminatory. Indeed, the transcript of the
hearing makes clear that the district court concluded that Okpala
had failed to produce evidence showing that any of its decisions
was “discriminatory” or otherwise unlawful. See, e.g., Dec. 8,
2000, Hearing Tr. at 2-3 (“There is nothing manifest in this now
thorough record that suggests that the City of Houston did anything
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other than evaluate people who had come to its attention by
application or by exposure for the positions, and chosen one among
several qualified people.”). Okpala’s contention is a naked
falsehood. We fail to imagine how Okpala’s counsel advances his
client’s case by making demonstrably false assertions of this sort.
The judgment is AFFIRMED.
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