Case: 23-11066 Document: 60-1 Page: 1 Date Filed: 05/01/2024
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-11066
FILED
May 1, 2024
Summary Calendar
____________ Lyle W. Cayce
Clerk
Peter Garcia,
Plaintiff—Appellant,
versus
The Delta Companies,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:20-CV-3194
______________________________
Before King, Haynes, and Graves, Circuit Judges.
Per Curiam:*
Peter Garcia appeals the district court’s summary dismissal of his
defamation, fraud, and age discrimination claims against The Delta
Companies, a medical personnel placement services firm operating within
the national healthcare industry. We AFFIRM.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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Garcia is a medical doctor who graduated from medical school in 1980,
and who currently resides in Orlando, Florida. On August 6, 2019, a recruiter
from The Delta Companies (“Delta”), Cassidy Armstrong, contacted
Garcia about a Chief Medical Officer position at Coast Community Health
Center (“CCHC”), a small health center in rural Oregon. Garcia applied
for the CCHC position through Armstrong, but CCHC ultimately did not
select Garcia. Delta states that Garcia’s non-selection was due to his lack of
recent Federally Qualified Health Center (“FQHC”) experience. However,
Garcia contends that the true reason for his rejection was his age. Garcia also
argues that Delta made “false and disparaging” statements to CCHC in “a
deliberate effort to encourage [CCHC] to reject Garcia as a candidate as part
of [Delta’s] discriminatory behaviors.”
Garcia brought suit against Delta, alleging defamation, fraud, and
discrimination in violation of the Age Discrimination in Employment Act, 29
U.S.C. § 621 et seq.1 Both parties moved for summary judgment. Adopting
the findings, conclusions, and recommendations of the magistrate judge, the
district court granted Delta’s summary judgment motion in full, denied
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1
Notably, this is not Garcia’s first lawsuit of this type. As Delta points out, Garcia
has filed nine other lawsuits alleging similar claims for employment discrimination
following rejected employment applications, all of which have been dismissed. See Garcia
v. Coast Cmty. Health Ctr., No. 6:20-CV-2175-MC, 2021 WL 2004778, at *4 (D. Or. May
19, 2021) (collecting eight other cases), aff’d, No. 21-35555, 2022 WL 2869779 (9th Cir.
July 21, 2022).
In Garcia’s most recent prior case, the U.S. District Court for the District of
Oregon explained that Garcia “has established a pattern of bringing a court case whenever
the reality of a rejection from a job conflicts with his own delusions of grandeur about his
qualifications,” that Garcia’s claims are “a waste of resources,” and that Garcia’s “lengthy
history of hollow litigation borders on the ‘flagrant abuse’ standard.” Id. To this end,
Delta—in the conclusion and prayer sections of its trial briefs—asked the district court to
designate Garcia as a “vexatious litigant” and to pay its fees in this case. However, Delta
also stated that it would brief the requests “separately,” which it did not do. For that
reason, the district court declined to address the issue, and we decline to do so as well.
2
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Garcia’s motion, and dismissed Garcia’s claims with prejudice. Garcia timely
appealed.
We review grants of summary judgment de novo and apply the same
standard on appeal that was applied by the district court. See McCarty v.
Hillstone Rest. Grp., Inc., 864 F.3d 354, 357 (5th Cir. 2017). Summary
judgment is appropriate “if the movant shows that 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). “A dispute as to a material fact is
‘genuine’ if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540
(5th Cir. 2005). In reviewing the record, “the court must draw all reasonable
inferences in favor of the nonmoving party, and it may not make credibility
determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000).
Having considered the magistrate judge’s thorough, well-reasoned
findings, conclusions, and recommendations, the district court’s opinion
granting summary judgment, the parties’ briefing, and the record, we find no
error. As to Garcia’s age discrimination claim, to establish a prima facie case
of age discrimination in the employment agency context, a plaintiff must
show, inter alia, that (1) “[the plaintiff] asked or expected the employment
agency to refer him for employment, and that he was qualified for the job,”
and (2) “the employment agency failed to or refused to refer him for
employment.” Champlin v. Experis US, Inc., No. 4:16-CV-421, 2017 WL
635563, at *3 (S.D. Tex. Feb. 16, 2017) (internal quotation omitted); see also
Hill v. Miss. State Emp. Serv., 918 F.2d 1233, 1238–39 (5th Cir. 1990)
(applying the disparate treatment framework for a Title VII claim against an
3
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employment agency for race-based non-referral of job candidate).2 The
undisputed record evidence shows that after Garcia applied and interviewed
with Delta for the CCHC position, Delta forwarded Garcia’s curriculum
vitae to CCHC, and CCHC declined to select Garcia because he had “no
FQHC experience in recent years.”3 Thus, Delta did refer Garcia to
CCHC. In an attempt to save his claim, Garcia argues that Delta failed to
refer and recommend him to CCHC a second time—after CCHC had
already rejected him once—in November 2019. Yet, it is undisputed that
rather than attempt to utilize Delta’s services a second time, Garcia
“accessed the web page for CCHC” and reapplied to CCHC directly. And,
Garcia himself admitted in a declaration that he “did not authorize the
release of any information or [his] CV to any potential employer through
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2
“Congress lifted the substantive provisions of Title VII almost verbatim in
drafting the [Age Discrimination in Employment Act]. In consequence, courts have
construed the two sets of legislation consistently and cases from one are frequently applied
to similar cases under the other.” Elliott v. Grp. Med. & Surgical Serv., 714 F.2d 556, 557–
58 & n.1 (5th Cir. 1983).
3
Garcia argues that this “excuse” was fabricated by Armstrong, not CCHC, and
that “Armstrong was the only person that could [have] created this excuse.” But in the
same breath, Garcia concedes that his “FQHC experience was not listed on the CV that
Armstrong prepared and provided to [CCHC].” Thus, CCHC would have concluded
that Garcia lacked recent FQHC experience once they reviewed his resume, which itself
presented a lack of FQHC experience.
Moreover, at bottom, this argument is illogical. Garcia offers no explanation as to
why Delta would first reach out and initiate contact with Garcia, then go forward with
sending his materials to CCHC, only to discriminate against Garcia after he was not
selected. Cf. Faruki v. Parsons S.I.P., Inc., 123 F.3d 315, 320 n.3 (“Where, as here, the same
actor hires and fires an employee, an inference that discrimination was not the employer’s
motive in terminating the employee is created.”). In short, Garcia’s argument that
Armstrong fabricated this evidence and Garcia’s implication that Armstrong perjured
herself by falsely including this evidence in her affidavit is belied by logic, the record, and
Garcia’s own admissions.
4
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Delta after the Armstrong interview.” Thus, Garcia fails to establish a prima
facie claim of discrimination against Delta.
Moreover, as the district court correctly surmised, even assuming
arguendo that Garcia established a prima facie case of discrimination, Garcia
failed to show that the nondiscriminatory reason for his non-selection—i.e.,
his lack of recent FQHC—was pretext. To establish pretext, a plaintiff must
produce evidence that rebuts “each of the nondiscriminatory reasons the
employer articulates.” Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th
Cir. 2001). Garcia admits that he lacks any recent FQHC experience, and
that the original resume submitted to CCHC reflected this fact. Garcia fails
to identify any evidence4 rebutting these facts and establishing that the real
reason for Garcia’s non-selection was illegal discrimination.5
Garcia’s defamation claim fares no better. To establish defamation
under Texas law, a plaintiff must prove, inter alia, that the “defendant
published a false statement,” and that he suffered damages as a result of that
statement. Smith v. Wal-Mart Stores, Inc., 980 F.3d 1060, 1062 (5th Cir.
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4
Garcia has repeatedly asserted in the district court and on appeal that Dr. Ann
Kellogg—“[t]he person hired 18 months [after Garcia]”—had no FQHC experience,
which shows evidence of pretext. In fact, Garcia goes as far as to state that “[Delta]
acknowledges that Kellogg had no FQHC experience which helps demonstrate pretext.”
Delta has done no such thing; in fact, it did exactly the opposite in its Reply in Support of its
Motion for Summary Judgment: “As an initial matter, without any basis, Garcia asserts
that Kellogg did not have FQHC experience. Importantly, that has not been established in
this case. Delta’s understanding is that Kellogg did indeed have FQHC experience.” The
reality is that Garcia makes this assertion without any record citations, and without
providing this court with a single piece of evidence suggesting that Kellogg lacked FQHC
experience.
5
This conclusion is supported by the fact that the U.S. District Court for the
District of Oregon already concluded that there “[were] no facts alleged by [Garcia] that
suggest an inference of age discrimination” in his case against CCHC. See Coast Cmty.
Health Ctr., 2021 WL 2004778, at *2–3.
5
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2020). “If a statement is not verifiable as false, it is not defamatory.” Dall.
Morning News, Inc., v. Tatum, 554 S.W.3d 614, 624 (Tex. 2018). “Similarly,
even when a statement is verifiable as false, it does not give rise to liability if
the ‘entire context in which it was made’ discloses that it is merely an opinion
masquerading as a fact.” Id. (quoting Bentley v. Bunton, 94 S.W.3d 561, 681
(Tex. 2002)). Garcia argues that Armstrong’s statement to CCHC that
Garcia “was difficult to reach” was false and defamatory. We disagree. The
district court was correct that this characterization is, as a matter of law, an
opinion rather than an objectively verifiable fact. See id. at 638–39. Moreover,
the district court correctly observed that there is no evidence that CCHC
rejected Garcia because of this statement, rather than—as CCHC
themselves stated—because of Garcia’s lack of qualifications. Thus, the
district court correctly dismissed Garcia’s defamation claim.
Finally, Garcia’s fraud claim fails as well. To prove fraud under Texas
law, a plaintiff must show, inter alia, that (1) “the defendant made a material
representation that was false” and (2) “the plaintiff actually and justifiably
relied upon the representation and suffered injury as a result.” CBE Grp.,
Inc. v. Lexington Law Firm, 993 F.3d 346, 350 (5th Cir. 2021) (internal
quotations omitted). Garcia argues that Armstrong’s statement that CCHC
rejected him because he had “no recent FQHC experience” was fraudulent,
and that he relied on that statement. We disagree for two reasons. First, as
discussed infra footnote 3, the argument that Armstrong’s statement was
false is belied by the record. Second, Garcia fails to point to any evidence that
he relied on this representation in any capacity. In fact, Garcia admitted in
his deposition that he did not rely on representations that Delta made to him,
nor on representations that Delta made to CCHC. Summary judgment
cannot be defeated with “conclus[ory] allegations, unsupported assertions,
or presentation of only a scintilla of evidence.” McFaul v. Valenzuela, 684
F.3d 564, 571 (5th Cir. 2012). We will grant summary judgment when
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“critical evidence is so weak or tenuous on an essential fact that it could not
support a judgment in favor of the nonmovant.” Armstrong v. City of Dallas,
997 F.2d 62, 67 (5th Cir. 1993).
AFFIRMED.6
_____________________
6
Delta has also asked this court to find that Garcia abandoned his appeal under
Federal Rule of Appellate Procedure 28(a)(8)(A) and Fifth Circuit Rule 28.2.2, as Garcia—
a law school graduate—“fails to cite to the Record on Appeal to support any statements,
factual assertions, or provide any supported basis for the Court to overturn the District
Court’s decision.” While it is true that Garcia’s brief contains no citations to the record,
and frequently makes unsupported factual and legal assertions throughout, we decline to
decide the issue of abandonment as Garcia’s claims fail as a matter of law.
7