United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 22-50600 

____________ 

Diann H. Angus, 

Plaintiff—Appellant, 

versus

Alejandro Mayorkas, Secretary, U.S. Department of Homeland 

Security, 

Defendant—Appellee. 

______________________________ 

Appeal from the United States District Court 

for the Western District of Texas 

USDC No. 1:20-CV-242 

______________________________ 

Before Smith, Higginson, and Willett, Circuit Judges.

Stephen A. Higginson, Circuit Judge:

*

Between 2012 and 2017, Plaintiff-Appellant Diann Angus applied to 

three job openings posted by Immigration and Customs Enforcement 

(“ICE”), an agency within the Defendant-Appellee Department of 

Homeland Security (“DHS”). Angus was not selected for any of these 

positions. According to Angus, these non-selections were the result of 

_____________________ 

*

 This opinion is not designated for publication. See 5th Cir. R. 47.5. 

United States Court of Appeals 

Fifth Circuit 

FILED 

June 9, 2023 

Lyle W. Cayce 

Clerk 

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2 

various forms of discrimination and retaliation. Eventually, after attempting 

to pursue an administrative remedy, Angus filed suit. The district court 

dismissed fourteen of her fifteen claims pursuant to Federal Rule of Civil 

Procedure 12(b)(6), and later granted summary judgment in favor of DHS on 

the surviving retaliation claim, Angus timely appealed, and we now 

AFFIRM. 

I. 

 This case arises out of Plaintiff-Appellant’s so-far unsuccessful 

pursuit of her ultimate career goal—working as an intelligence research 

specialist for the federal government. As alleged in her complaint, Angus 

thrice applied for positions related to intelligence research at ICE and was 

rejected each time.1

 

First, in 2012, she applied for both the Intelligence Research Specialist 

and Intelligence Assistant positions at ICE. When she applied for these 

positions, Angus requested to be placed on the “Schedule A” certificate.2

Under the “Schedule A” hiring authority, “[a]n agency may [noncompetitively] appoint, on a permanent . . . basis, a person with an 

_____________________ 

1

 Because Angus appeals both the dismissal of claims under Rule 12(b)(6) and a 

grant of summary judgment in favor of DHS, we divide this background section between 

the allegations in the complaint and the facts produced at summary judgment. 

2

 A certificate is a list of all candidates who are minimally eligible for a given 

position under a specific hiring authority. So, for example, as in this case, there may be one 

certificate listing all eligible “competitive merit selection” candidates and one containing 

a list of all eligible “Schedule A” candidates. These certificates are compiled through the 

following process. First, each USAJOBS (the hiring platform for federal positions) 

applicant is asked a series of questions related to federal employment, experience, and 

education. Based on the applicant’s answers, USA Staffing—a hiring platform for ICE—

automatically generates selection certificates for each designated hiring authority. A 

Human Resources specialist will then review these certificates and verify that each 

applicant is eligible under the hiring authority and qualifies for the position before 

forwarding the selection certificate to the selecting official. 

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3 

intellectual disability, a severe physical disability, or a psychiatric 

disability.”3

 5 C.F.R. § 213.3102(u)(1); see id. § 213.3101. As Angus 

acknowledges, the Schedule A hiring authority is meant to allow agencies to 

proactively recruit and hire certain individuals, including those with 

disabilities. 

However, although Angus qualified for the Schedule A certificate, she 

was also eligible for inclusion on the competitive service certificate for these 

positions. Pursuant to ICE policy, her applications were therefore forwarded 

to the selecting official, Special Agent in Charge for San Antonio Homeland 

Security Investigations Jerry Robinette, under the competitive service 

certificate. In other words, the selecting official was not informed that she 

was a Schedule A candidate with a targeted disability. 

On October 16, 2012, Angus was informed that she was not selected 

for the Intelligence Research Specialist position, and on November 9, 2012, 

was similarly notified that she was not selected for the Intelligence Assistant 

position. Angus contacted an EEO counselor as to both non-selections on 

December 4, 2012. Then, on March 19, 2013, Angus filed a formal complaint 

with the ICE Equal Opportunity Office (“EEO”), alleging that her nonselections were the result of discrimination based on sex, age, and disability, 

as well as for retaliation for prior EEO activity.4

 On January 30, 2019, DHS 

issued a Final Agency Decision, later affirmed by the EEOC, concluding that 

_____________________ 

3

 An individual may also be eligible under Schedule A hiring authority if they satisfy 

other criteria, none of which is applicable to Angus. See 5 C.F.R. § 213.3102. 

4

 According to the complaint, Angus had filed an earlier EEO complaint related to 

her non-selection for an ICE position in 2010. This prior complaint formed the basis of her 

retaliation claim. 

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4 

Angus’s claims were untimely and that, in any event, ICE did not 

discriminate or retaliate against her.5

In 2016 or 2017, Angus again applied for the position of an 

Investigative Research Specialist at ICE. On January 24, 2017, Angus was 

once more informed that she was not selected for the position. Angus reached 

out to an EEO counselor on May 4, 2017, and soon after, on June 16, 2017, 

filed another formal complaint with the ICE EEO related to this nonselection. This time, Angus alleged sex and age discrimination (but not 

disability discrimination) as well as a retaliation claim. In February 2020, 

DHS resolved the complaint by issuing a Final Agency Decision affirming the 

dismissal of her case based on her intent to file a federal action. 

Soon after, in March 2020, Angus filed a 49-page pro se complaint in 

federal court. The complaint contained fifteen overlapping “counts” against 

DHS, alleging various claims for disability, sex, and age discrimination, as 

well as for improper processing of her EEO complaints and for retaliation. 

DHS moved to dismiss all the claims pursuant to Rule 12(b)(6). The district 

court, adopting the report and recommendation of the magistrate judge, 

granted the dismissal as to fourteen claims but denied the motion as to 

Angus’s retaliation claim. 

 Following discovery, both DHS and Angus moved for summary 

judgment on the remaining retaliation claim. In connection with these 

motions, both parties produced more evidence as to the circumstances 

surrounding each of Angus’s non-selections. We address each in turn, 

beginning with Angus’s 2012 applications. 

_____________________ 

5

 Although Angus initially requested a hearing before the Equal Employment 

Opportunity Commission (“EEOC”), she later asked that her case be remanded to DHS 

for a final agency decision. 

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First, as to the position of Intelligence Research Specialist, Robinette 

received over one hundred applications for four positions. Although 

Robinette was the selecting officer, he delegated the task of screening 

resumes, conducting interviews, and making a final recommendation to two 

other officials, Assistant Special Agent in Charge Sammy Ashurst and 

Supervisory Intelligence Officer David Salazar. Neither Ashurst nor Salazar 

was aware of Angus’s prior EEO activity. 

When she applied to the 2012 positions, Angus, who had an 

associate’s degree in liberal arts from Louisiana Tech University, was at GS8 with sixteen years of federal experience.6

 Much of her experience was 

administrative and primarily included preparing, updating, and maintaining 

files.7

 Although Angus self-classified her work in these positions as 

“intelligence work” because she was privy to nonpublic information, she 

admitted that her work was not as “in depth” or “fully involved” as 

intelligence work. Additionally, there were numerous punctuation and 

grammatical errors in the resume attached to her application. 

The four selected candidates were J.W., A.K., R.K., and N.R. 

According to Ashurst, the position was “very competitive,” and Angus was 

not interviewed because “other candidates were more qualified than her.” 

Salazar also stated that, “[t]o the best of [his] recollection[,] Ms. Angus did 

_____________________ 

6

 The General Schedule (“GS”) classification system is a 15-grade scale which 

governs the qualifications, pay structure, and other human resources policies for federal 

employees, with GS-1 being the lowest grade and GS-15 being the highest. 

7

 Angus held the following positions: Mail and File Clerk at the Immigration and 

Naturalization Service (“INS”) (1996-1997); Immigration Records Technician at INS 

(1997-1998); Investigations Clerk at ICE (1998-2006); Investigative Assistant at ICE 

(2006-2010); Office Assistant at the Drug Enforcement Agency (“DEA”) (2010-2011); 

and Investigative Support Assistant at the U.S. Secret Service (Angus’s position at the time 

of her 2012 applications). 

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not have the qualifications sought after” for the position because she lacked 

an intelligence background. 

J.W. was the only selected candidate who was employed by ICE when 

he applied. In his role as a mission support specialist at ICE, J.W. had 

received positive feedback from colleagues and supervisors. He had a military 

background, having earned an associate’s degree in instruction of technology 

and military science and served in the United States Air Force for six years. 

A.K. had a comparable background. She held a bachelor’s degree in 

business administration and two associate’s of applied science degrees (one 

in Instructor of Technology and Military Science, the other in 

Communication Applications Technology). She had also spent time (ten 

years) in the military. Additionally, A.K. had thirteen years of experience in 

the intelligence field, and had, in her prior position as a criminal investigative 

analyst with the Texas Air National Guard, worked with ICE. 

Similarly, R.K. had a military and intelligence background. 

Specifically, R.K. had served in the United States Marine Corps as an Arabic 

linguist, and reconnaissance expert. Moreover, R.K. had had previously 

worked with ICE Intelligence Research Specialists as an analyst consultant 

with a private contractor. At the time of his application, R.K. was finishing 

his bachelor’s degree and was an analyst consultant with a private company. 

 Finally, and as with the other selected candidates, both N.R.’s 

educational and work experience related to the military and intelligence 

fields. Specifically, N.R. had a Bachelor of Science degree from the United 

States Air Force Academy, had served as a United States Army Military 

intelligence officer, and had worked as a military intelligence company 

commander in Iraq. 

As to the Intelligence Assistant position, Robinette received over 60 

applications for one opening. Ultimately, Robinette offered the job to J.C., 

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7 

who held both a bachelor’s and master’s degree. J.C. had twenty-eight years 

of federal service and was currently employed as an Administrative Officer 

in the Houston office at a GS-14. J.C. was highly recommended by her 

current supervisor, who told Robinette that J.C. was willing to apply to a 

lower level because she was relocating to the Austin area. Robinette also 

believed that J.C.’s prior experience as an Administrative Officer would be 

an asset to the Austin office, which often needed additional administrative 

support. 

 As noted, Angus filed an EEO complaint after she was not selected for 

either position. During the resulting investigation, an EEO investigator 

contacted Robinette, who had since retired. Robinette responded by email, 

stating that “[I] can assure you my selection of candidates were [sic] based 

on who [was] the best candidate for the overall job and position.” He then 

noted that “[his] recollection [was] that this employee [Angus] use[d] to 

work for one of [his] offices” and “ha[d] been applying for multiple vacancies 

and when not selected she file[d] a discrimination allegation.” Robinette then 

reiterated that he stood behind the selections and did not discriminate or 

retaliate against Angus. 

 Over 70 candidates applied for the one open Intelligence Research 

Specialist in 2016/2017. Three individuals were involved in the selection. 

First, Ashurst and Group Supervisor Todd West reviewed the submitted 

resumes and selected the top five candidates. Then, Ashurst, West, and 

Assistant Special Agent in Charge Monica Mapel conducted the interviews. 

The panel selected T.H., who was described as “far exceed[ing] the 

qualifications” required, to fill the position. 

As with the candidates selected for the Intelligence Research 

Specialist position in 2012, T.H. had prior military and intelligence 

experience. His experience included time spent as an intelligence research 

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specialist for the U.S. Coast Guard, an open-source intelligence analyst with 

the U.S. Marine Corps Forces Cyber Command, and an all-source 

intelligence analyst at the U.S. Northern Command. He had also held 

positions in Signals Intelligence (“SIGINT”), was fluent in both Spanish and 

Portuguese, and held a bachelor’s degree. 

After considering the record and both parties’ arguments, the 

magistrate judge recommended granting summary judgment in favor of DHS 

and dismissing Angus’s motion for summary judgment as moot.8

 The district 

court again adopted the report and recommendation in full and entered a final 

judgment in favor of DHS. Angus timely appealed. 

II. 

We first address the claims dismissed by the district court before 

turning to the district court’s grant of summary judgment on the remaining 

claim. 

A. 

We review a grant of a motion to dismiss under Rule 12(b)(6) de novo. 

Olivarez v. T-Mobile USA, Inc., 997 F.3d 595, 599 (5th Cir. 2021). In so doing, 

we “accept[] all well-pleaded facts in the complaint as true and viewed in the 

light most favorable to the plaintiff.” Raj v. La. State Univ., 714 F.3d 322, 

329-30 (5th Cir. 2013). “To survive a motion to dismiss, a complaint must 

contain sufficient factual matter, accepted as true, to ‘state a claim to relief 

_____________________ 

8

 Specifically, the magistrate judge found that Angus failed to exhaust her 

retaliation claims as to her 2012 non-selection for the Intelligence Research Specialist 

position and 2016/2017 non-selection for the Investigative Research Specialist position, 

and concluded that Angus’s retaliation claim as to her 2012 non-selection for the 

Intelligence Assistant position failed on the merits. 

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that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 

i. 

 We begin with Angus’s claims for disability discrimination, which can 

be broadly sorted into two groups. First, Angus asserted claims for disparate 

treatment, all related to her own non-selections and all stemming from ICE’s 

failure to forward her applications to the selecting officer under the Schedule 

A certificate. Second, and similarly, Angus asserted claims for disparate 

impact, alleging that ICE’s policy of not placing candidates who qualify for 

both the Schedule A certificate and the competitive service certificate on 

both certificates, but rather only forwarding the candidate’s application 

under the competitive service certificate, disparately impacted Schedule A 

applicants with disabilities. 

 First, we must address the threshold issue of exhaustion. A plaintiff 

must exhaust her administrative remedies by timely filing a charge of 

discrimination with the EEOC before filing an ADA claim in federal court. 

Patton v. Jacobs Eng’g Grp., Inc., 874 F.3d 437, 443 (5th Cir. 2017). When 

determining whether a plaintiff has exhausted a claim, we consider not only 

those claims contained in the administrative charge, but also those that could 

have reasonably grown out of the charge. Pacheo v. Mineta, 448 F.3d 783, 789 

(5th Cir. 2006).9

The ADA recognizes claims for both disparate treatment and 

disparate impact. Raytheon Co. v. Hernandez, 540 U.S. 44, 53 (2003). 

Disparate-treatment and disparate-impact claims address “two largely 

_____________________ 

9

 Although Pacheo addresses the exhaustion requirement for Title VII claims, the 

ADA incorporates by reference Title VII’s administrative procedures. Dao v. Auchan 

Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996) (per curiam). 

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separate theories of discrimination.” Pacheo, 448 F.3d at 787 (citing Int’l 

Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977)). A 

disparate-treatment claim, “the most easily understood type of 

discrimination,” Int’l Brotherhood, 431 U.S. at 335 n.15, arises where a 

plaintiff alleges that an employer treated individuals less favorably than 

others on account of their protected class (here, disability). Raytheon, 540 

U.S. at 52 (citing Int’l Brotherhood, 431 U.S. at 335 n.15)). That is, “[l]iability 

in a disparate-treatment case ‘depends on whether the protected 

trait . . . actually motivated the employer’s decision.’” Id. (alteration in 

original) (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). “By 

contrast, disparate-impact claims ‘involve employment practices that are 

facially neutral in their treatment of different groups but that in fact fall more 

harshly on one group than another and cannot be justified by business 

necessity.’” Id. (quoting Int’l Brotherhood, 431 U.S. at 335 n.15). 

Here, Angus failed to exhaust her administrative remedies as to any 

disparate-impact claims. Her 2013 EEO complaint referenced only her own 

non-selections, with no mention of any facially neutral policy or practice 

affecting other candidates with disabilities.10 Accordingly, the ICE Office of 

Diversity and Civil Rights limited the scope of its inquiry to “[w]hether 

complainant . . . was subjected to discrimination . . . when the agency did not 

select her,” and DHS’s Final Agency Decision expressly referred to her 

claims regarding her non-selections as “disparate treatment claims.” 

Because we do not find that a disparate-impact claim could “reasonably have 

been expected to grow” from this administrative charge, see, e.g., Pacheo, 48 

_____________________ 

10 Angus’s 2017 EEO complaint did not mention disability discrimination and 

instead asserted only claims for sex and age discrimination, as well as for retaliation. 

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F.3d at 792, we find that the district court correctly found that Angus did not 

exhaust her disparate-impact claims. 

 Turning to the merits of Angus’s remaining disability discrimination 

claims, Angus failed to state a claim for which relief could be granted.

Angus’s disability discrimination claims were all rooted in ICE’s alleged 

policy of declining to place job applicants (including her) on the Schedule A 

certificate when they otherwise qualify for placement on another certificate 

(in her case, the competitive service certificate).On appeal, Angus reiterates 

this argument, essentially contending that an agency engages in disability 

discrimination when it fails to proactively prioritize applicants with a 

disability. 

Schedule A is a hiring authority that allows agencies to noncompetitively fill certain positions. See 5 C.F.R. § 213.3102(u). As other 

courts have recognized, Schedule A authority is permissive, not mandatory. 

See Ward-Johnson v. Glin, No. 19-CV-00534, 2020 WL 2770018, at *9 

(D.D.C. May 28, 2020) (“But the regulation’s language is permissive; there 

is no obligation to hire a disabled applicant.”); see also Hylton v. Calabria, No. 

17-2023, 2020 WL 6134673, at *8 (D.D.C. Oct. 19, 2020). Put another way, 

although Schedule A gives agencies a “means to avoid competitive 

placement,” it “does not impose an obligation to use this authority in any 

specific case.” MacDonald v. Cohen, 233 F.3d 648, 653 (1st Cir. 2000) (citing 

Van Wersch v. Dep’t of Health & Human Servs., 197 F.3d 1144, 1146 (Fed. Cir. 

1999)). Thus, contrary to Angus’s contention, the regulation does not confer 

a “civil right” to be on the Schedule A certificate such that the failure to 

utilize the Schedule A hiring authority can, on its own, sustain a cause of 

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action for discrimination.11 Accordingly, the district court properly dismissed 

her disparate-treatment claims for failure to state a claim.12

For these reasons, we AFFIRM the district court’s dismissal of 

Angus’s claims for disability discrimination. 

ii. 

Next, Angus brought several claims challenging ICE’s actions in 

processing and investigating her EEO complaints. Specifically, Angus alleged 

that ICE’s EEO office (the Office of Diversity and Civil Rights) failed to 

timely process her complaints, properly document aspects of its 

investigation, cooperate in discovery, and follow the EEOC’s administrative 

judge’s orders. She further alleged that the EEO investigators were 

improperly biased. As the district court accurately noted, however, neither 

Title VII nor any of the statutes or regulations upon which Angus relies 

confers a right of action for improper investigation or processing of a federal 

administrative employment discrimination complaint. Gibson v. Mo. Pac. R.R. 

Co., 579 F.2d 890, 891 (5th Cir. 1978) (holding that Title VII does not confer 

a right of action against the EEOC for improper investigation or processing 

of an employment complaint); see also Daniels v. Caldera, 237 F.3d 631, 2000 

WL 1701699, at *3 (5th Cir. 2000) (“There is no compelling justification to 

confer upon federal employee plaintiffs an ‘improper complaint processing’ 

_____________________ 

11 In her briefing, Angus appears to believe that, had she been considered for the 

open positions under the Schedule A certificate, she would have been hired. She does not, 

however, otherwise plead that her (or others’) non-selection was because of her disability—

in other words, her only evidence of discrimination is ICE’s alleged failure to use its 

Schedule A hiring authority. 

12 We note that Angus’s disparate-impact claims are similarly premised upon ICE’s 

failure to place qualified candidates with disabilities on the Schedule A certificate in 

addition to the competitive service certificate. Accordingly, these claims, even if they had 

been properly exhausted, would fail for the same reasons as her disparate-treatment claims. 

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cause of action under Title VII . . . .”). We therefore AFFIRM the district 

court’s dismissal of these claims. 

iii. 

 Angus’s complaint also contained a single count of sex discrimination. 

Title VII prohibits discrimination in hiring on the basis of sex. 42 U.S.C. 

§ 2000e-2(a)(1). Where there is no direct evidence of intentional 

discrimination, a plaintiff must establish a prima facie case of sex 

discrimination by showing “(1) she is a member of a protected class; (2) she 

was qualified for the position she sought; (3) she suffered an adverse 

employment action; and (4) others similarly situated but outside the 

protected class were treated more favorably.”13 Alvarado v. Tex. Rangers, 492 

F.3d 605, 611 (5th Cir. 2007). 

Although Angus satisfactorily alleged the first three requirements of a 

prima facie claim for sex discrimination, she failed to allege that comparators 

outside her protected class were treated more favorably in the selection 

process. While Angus did allege that the selected candidates were outside of 

_____________________ 

13 Although, at the pleading stage, “an employment discrimination plaintiff need 

not plead a prima facie case of discrimination,” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 

515 (2002), we have nonetheless found it “helpful to refer to McDonnell Douglas to 

understand whether a plaintiff has sufficiently pleaded an adverse employment action taken 

“because of” [her] protected status.” Olivarez v. T-Mobile USA, Inc., 997 F.3d 595, 600 (5th 

Cir. 2021); see also Chhim v. Univ. of Tex.at Austin, 836 F.3d 467, 470 (5th Cir. 2016) 

(“Although Chhim did not have to submit evidence to establish a prima facie case of 

discrimination at this stage, he had to plead sufficient facts on all of the ultimate elements 

of a disparate treatment claim to make his case plausible. In that inquiry, it can be helpful 

to reference the McDonnell Douglas framework, on which Chhim would continue to rely if 

he based his claim on circumstantial evidence[.]”). As in Olivarez and Chhim, we similarly 

refer to the prima facie elements of a discrimination claim to guide our analysis as to whether 

Angus has pleaded sufficient facts to support a plausible claim for discrimination. 

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her protected class,14 she failed to allege any other facts as to the candidates’ 

experience, qualifications, or other relevant attributes. See Saketkoo v. Adm’rs 

of Tulane Educ. Fund, 31 F.4th 990, 998 (5th Cir. 2022) (explaining that 

courts look to a variety of factors, including past performance, job 

responsibility, experience, and qualifications to determine whether 

individuals are similarly situated). Nor did Angus otherwise plead that her 

non-selection was on account of discriminatory animus against her on 

account of her sex.15 We thus AFFIRM the district court’s dismissal of her 

sex-discrimination claim. 

iv. 

Similarly, Angus alleged that her non-selection for the 2012 

Intelligence Research Specialist position was the result of age discrimination. 

Pursuant to the public-sector provisions of the Age Discrimination in 

Employment Act (“ADEA”), “[a]ll personnel actions affecting employees 

or applicants for employment who are at least 40 years of age . . . . shall be 

made free from any discrimination based on age.” 29 U.S.C. § 633a(a). As 

with a claim for sex discrimination, in the absence of direct evidence of 

discrimination, a plaintiff must show that (1) she was within the protected 

class; (2) she was qualified for the position; (3) she suffered an adverse 

employment decision (here, non-selection for a position); and (4) she was 

replaced by someone younger or treated less favorably than similarly situated 

_____________________ 

14 Angus alleged that three of the four selected candidates for the 2012 Intelligence 

Research Specialist position were men (the chosen candidate for the 2012 Intelligence 

Assistant position was a woman), and that ICE hired a man for the 2016/2017 Investigative 

Research Specialist position. 

15 In her complaint, Angus cited reports indicating that women are 

underrepresented compared to men at ICE. Yet the existence of a gender gap in 

employment at the agency does not suffice to show that a given employment decision was 

motivated by discriminatory animus. 

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younger employees to establish a prima facie case of age discrimination.16

Smith v. City of Jackson, 351 F.3d 183, 196 (5th Cir. 2003). As with her claim 

for sex discrimination, although Angus alleged that each of the four selected 

candidates were “approximately 20 or more years younger than” her, she 

failed to allege that these candidates were similarly situated to her. 

Accordingly, we AFFIRM the dismissal of her age-discrimination claim. 

B. 

 As with a grant of a motion to dismiss, we review a district court’s 

grant of summary judgment de novo. Sanders v. Christwood, 970 F.3d 558, 561 

(5th Cir. 2020). “Summary judgment is proper ‘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.’” Id. (quoting Fed. R. Civ. P. 56(a)). “A 

genuine issue of material fact exists when there is evidence sufficient for a 

rational trier of fact to find for the non-moving party.” Perez v. Region 20 

Educ. Serv. Ctr., 307 F.3d 318, 323 (5th Cir. 2002) (citing Matsushita Elec. 

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). When 

reviewing an appeal from summary judgment, we view the facts and evidence 

in the light most favorable to the non-movant and draw all reasonable 

inferences in her favor. Hanks v. Rogers, 853 F.3d 738, 743-44 (5th Cir. 2017). 

We may affirm the district court on any ground supported by the record, even 

if different from the one relied upon by the district court. Bluebonnet Hotel 

Ventures, LLC v. Wells Fargo Bank, N.A., 754 F.3d 272, 276 (5th Cir. 2014) 

(citations omitted). 

Only Angus’s claim for retaliation under Title VII proceeded to 

summary judgment. We evaluate a claim for retaliation based on 

circumstantial, rather than direct, evidence under the burden-shifting 

_____________________ 

16 See supra note 13. 

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16 

framework first established in McDonnell Douglas Corp. v. Green, 411 U.S. 

792, 802-05 (1973). Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th 

Cir. 2000). First, Angus must establish a prima facie case of retaliation by 

showing that “(1) [she] participated in an activity protected by Title VII; 

(2) [her] employer took an adverse employment action against [her] [here, 

the failure to hire]; and (3) a causal connection exists between the protected 

activity and the adverse employment action.” McCoy v. City of Shreveport, 

492 F.3d 551, 556-57 (5th Cir. 2007). If she makes this showing, the burden 

shifts to DHS to articulate a legitimate, nondiscriminatory or nonretaliatory 

reason for its failure to hire Angus. Id. at 557. Should DHS satisfy this burden, 

Angus “bears the ultimate burden of proving that the employer’s proffered 

reason is not true but instead is a pretext for the real. . . retaliatory purpose.” 

Id. 

 Here, assuming Angus established a prima facie case of retaliation, 

DHS provided legitimate, non-retaliatory reasons as to its hiring decisions 

for each of the three positions to which Angus applied—each of the selected 

candidates possessed qualifications superior to Angus’s.17 For both the 2012 

Intelligence Research Specialist position and 2016/2017 Investigative 

Research Specialist position, each of the five selected candidates either had 

prior substantive intelligence experience, military experience, or both. In 

contrast, Angus, who at the time of her application was not working for ICE, 

self-admittedly had neither substantive intelligence experience (at best, she 

had provided investigative assistance and support) nor military experience. 

Additionally, each candidate had attained greater or more relevant academic 

_____________________ 

17 Because we can dispose of Angus’s retaliation claims on the merits, we need not 

address the alternative argument that she failed to exhaust any retaliation claims related to 

her 2012 and 2016/2017 non-selections. See Fort Bend Cnty. v. Davis, 139 S. Ct. 1843, 1846 

(2019) (holding that prerequisites to suit such as Title VII’s charge-filing precondition are 

not jurisdictional in nature). 

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17 

achievement than Angus, who had an associate’s degree in liberal arts. 

Similarly, the candidate selected for the 2012 Investigative Assistant position 

had attained a higher GS level than Angus, had more years of federal service 

than Angus, and had obtained both a bachelor’s and a master’s degree. Put 

plainly, this gap in qualifications is more than enough to demonstrate that 

DHS had legitimate, non-retaliatory reasons for selecting other candidates 

over Angus. 

 Therefore, Angus bore the burden of rebutting DHS’s proffered 

explanation and showing that the reason given was “merely pretextual.” 

Brown v. Wal-Mart Stores East, LP, 969 F.3d 571, 578 (5th Cir. 2020). 

“Pretext can be proven by any evidence that casts doubt on the credence of 

the employer’s proffered justification for the adverse employment action.” 

Id. None of the evidence to which Angus points, however, creates an issue of 

fact as to whether ICE’s stated reasons were pretextual. 

First, Angus refers to ICE’s failure to forward her application under 

the Schedule A certificate and seemingly implies that this failure was 

somehow nefarious. These arguments, however, speak not to pretext, but to 

her already-dismissed claims for disability discrimination.18 

Next, Angus points to the email from Robinette, written after he had 

retired from DHS and in response to the EEO investigation, in which he 

recalled that Angus “ha[d] been applying for multiple vacancies and when 

not selected she files a discrimination allegation.” As a preliminary matter, 

because Robinette was not involved in the selection process for the 

_____________________ 

18 To the extent that Angus is implying that the failure to place her application on 

the Schedule A certificate was retaliation for her prior EEO activity, we note that this 

argument conflicts with her own disparate-impact claims, which assert that her nonplacement on the Schedule A certificate was the result of a general policy at ICE. 

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2016/2017 position, this email only speaks to the existence of pretext as to 

the 2012 non-selections. 

More importantly, considered in light of the record as a whole, this 

statement does not constitute evidence of pretext. To begin, it is factually 

true—at the time Robinette responded to the email, Angus had applied for 

multiple positions and had filed discrimination allegations as to those nonselections. Additionally, Robinette provided a written declaration stating 

that, at the time of selection, he had not been aware that Angus was on the 

list of eligible applicants for the Intelligence Research Specialist position,19

and that he had never considered any candidate beyond J.C. for the 

Intelligence Assistant position. An email written more than a year after that 

decision does not cast doubt upon these statements, nor does it reflect 

Robinette’s state of mind when making the hiring decision. 

Finally, Angus appears to argue that some of the selected candidates 

(specifically, J.W. and J.C.) were not actually qualified for the job. To the 

extent that Angus contends that she was more qualified than these 

candidates, as already discussed above, the evidence shows the contrary is 

true. See EEOC v. La. Off. of Cmty. Servs., 47 F.3d 1438, 1444 (5th Cir. 1995) 

(“A fact finder can infer pretext if it finds that the employee was ‘clearly 

better qualified’ (as opposed to merely better or as qualified) than the 

employees who are selected.”). And, insofar as Angus argues that other 

candidates misrepresented their qualifications on their own applications, she 

_____________________ 

19 Indeed, Robinette did not even conduct the interview screening for the 

position—he had delegated that task to Ashurst and Salazar. 

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19 

fails to explain how such misstatements demonstrate that ICE’s stated 

reasons for not selecting her were pretextual.20 

In conclusion, even assuming that Angus’s claims have been properly 

exhausted and that she can establish a prima facie case of retaliation, she has 

failed to show that the proffered reasons for her non-selection were 

pretextual. We therefore find that the district court properly granted 

summary judgment in favor of DHS and AFFIRM. 

* * * 

For the foregoing reasons, we AFFIRM. 

_____________________ 

20 Indeed, Angus concedes that ICE would not have been aware of J.C.’s alleged 

misrepresentations until December 2012, after the positions had been filled. 

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