* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-20888

MEHRDAD SABZEVARI

Plaintiff-Appellant

v.

THE RELIABLE LIFE INSURANCE COMPANY

Defendant-Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:03-CV-3240

Before JONES, Chief Judge, and WIENER and CLEMENT, Circuit Judges.

PER CURIAM:*

Mehrdad Sabzevari (“Sabzevari”) appeals the district court’s grant of

summary judgment dismissing his Title VII claims against The Reliable

Insurance Company (“Reliable”). We AFFIRM.

I. BACKGROUND

Sabzevari worked for Reliable as an assistant manager in the Beaumont

district office. In September 2000, Reliable promoted Doug Dixon, a white

assistant manager in the Beaumont office, to district manager of the Sikeston,

United States Court of Appeals

Fifth Circuit

F I L E D

January 31, 2008

Charles R. Fulbruge III

Clerk
No. 06-20888

2

Missouri office. At the meeting announcing Dixon’s promotion, Sabzevari

declared that he was denied the promotion because of his Iranian national

origin. Sabzevari also informed his co-workers and supervisors that he believed

the company’s failure to promote “foreign race” employees violated Title VII.

Sabzevari alleges that after he questioned Reliable’s promotion practices, his

work environment became so hostile that his doctor placed him on medical leave.

While on medical leave, Sabzevari applied for employment with American

National Insurance Company (“American National”). On March 8, 2001,

Sabzevari’s doctor released him to return to work without restriction. According

to Sabzevari, he did not return to work at that time because Reliable still had

not addressed his Title VII concerns. On March 15, 2001, Sabzevari filed a

charge of discrimination with the Equal Employment Opportunity Commission

(“EEOC”), alleging national origin discrimination and retaliation.

On March 19, 2001, Sabzevari accepted employment with American

National. Three days later, Reliable sent Sabzevari a letter terminating his

employment because he had failed to return to work after obtaining a medical

release. In August 2002, Sabzevari amended his 2001 EEOC charge to add the

claim that Reliable failed to promote him because of his national origin.

Sabzevari filed this lawsuit in August 2003, claiming that Reliable violated

Title VII by failing to promote him because of his national origin and by

retaliating against him after he expressed opposition to the company’s

employment practices. He also asserted that he was entitled to punitive

damages as a result of these violations. Reliable moved for summary judgment

on all of Sabzevari’s claims, and the district court granted the motion.
No. 06-20888

3

II. STANDARD OF REVIEW

This court reviews a grant of summary judgement de novo, applying the

same legal standard as the district court. Chacko v. Sabre, Inc., 473 F.3d 604,

609 (5th Cir. 2006). Summary judgment is appropriate when the evidence

demonstrates that“there is no genuine issue as to any material fact and thatthe

moving party is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c).

III. DISCUSSION

Sabzevari argues that the district court erred in granting summary

judgment on his failure-to-promote claim, his retaliation claim, and his claim for

punitive damages.

Sabzevarifirst asserts that Reliable discriminated against him by denying

him the promotion that it awarded to Doug Dixon. In granting summary

judgment on this claim,the district court reasoned that Sabzevari did not amend

his charge to include the failure-to-promote allegation until August 2002.

Accordingly, the district court concluded that the allegation was not timely filed

with the EEOC, and that Sabzevari had not exhausted his administrative

remedies for the failure-to-promote claim. On appeal, Sabzevari argues that the

original charge he filed with the EEOC was sufficient to exhaust his

administrative remedies.

We need not decide this issue. Even if we assume that Sabzevari has

exhausted his administrative remedies, summary judgment on the failure-topromote claim is proper because Reliable has articulated a legitimate,

nondiscriminatory reason for promoting Dixon, and Sabzevari has failed to raise

a genuine issue of material fact as to whether this reason is a pretext for

discrimination.
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To survive summary judgment, a plaintiff must satisfy the burden-shifting

test found in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See

Septimus v. Univ. of Houston, 399 F.3d 601, 609 (5th Cir. 2005) (citing

McDonnell Douglas). Under this test, a plaintiff must first establish a prima

facie case of discrimination. Id. The burden then shifts to the defendant to set

forth a legitimate, nondiscriminatory reason for its decision. Id. “The

defendant’s burden during this second step is satisfied by producing evidence,

which, ‘taken as true, would permit the conclusion that there was a

nondiscriminatory reason for the adverse action.’” Price v. Fed. Express Corp.,

283 F.3d 715, 720 (5th Cir. 2002) (quoting St. Mary’s Honor Ctr. v. Hicks, 509

U.S. 502, 509 (1993)). Selection of a more qualified applicant is a legitimate and

nondiscriminatory reason for preferring one candidate over another. See Tex.

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 251-253 (1981). If the defendant

produces a legitimate reason, any presumption of discrimination raised by the

plaintiff’s prima facie case vanishes. Septimus, 399 F.3d at 609. However, the

plaintiff may still avoid summary judgment by demonstrating a genuine issue

of material fact as to whether the legitimate reasons proffered by the defendant

are a pretext for discrimination. Id.

Reliable articulated a legitimate, nondiscriminatory reason for promoting

Dixon to the district manager position: selection of the most qualified candidate.

Thus, the burden shifts to Sabzevari to show pretext. Sabzevari attempts to do

so in two ways. First, he argues that Dixon was not qualified for the promotion

because Dixon received two reprimands: one more than two years before the

promotion for not submitting a specific application to the home office, and one

nearly five years before the promotion for an unspecified infraction of the
No. 06-20888

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company’s underwriting rules. However, Sabzevari has pointed to no company

policy or past promotional decision to support the conclusion that these

reprimands should have disqualified Dixon.

Second, Sabzevari attempts to establish pretext by arguing that he was

more qualified for promotion than Dixon. For Sabzevari to establish pretext in

this way, he must raise a fact issue as to whether he was “clearly better

qualified” and not merely “similarly qualified.” Odom v. Frank, 3 F.3d 839, 847

(5th Cir. 1993). Sabzevari argues that he is clearly better qualified because

Dixon had problems recruiting other employees. However, the summary

judgment evidence demonstrates that Dixon and Sabzevari earned identical

scores on recruiting evaluations in the period immediately preceding the

promotion. Moreover, recruiting is only one criterion among many that Reliable

considers when promoting district manager candidates. Even if Sabzevari

established that he had superior recruiting skills, this would not raise an issue

as to whether he was “clearly better qualified” on the whole. Because Reliable

articulated a legitimate, nondiscriminatory reason for promoting Dixon, and

Sabzevari has failed to raise a genuine issue of material fact as to whether this

reason was pretextual, this claim need not be tried.

Sabzevari also argues that Reliable retaliated against him, after he

reported his concerns that the company’s employment practices violated

Title VII, by: (1) denying him a transfer to the Austin office, (2) terminating

him, and (3) creating a hostile work environment.

A prima facie claim of retaliation has three elements: (1) the employee

engaged in a protected activity, (2) the employer took adverse action against the

employee, and (3) a causal connection exists between the protected activity and

the adverse employment action. See Hockman v. Westward Commc’ns, LLC,
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6

407 F.3d 317, 330 (5th Cir. 2004). An adverse employment action is one that a

reasonable employee would find to be “materially adverse,” i.e., one that might

“dissuade a reasonable worker from making or supporting a charge of

discrimination” under Title VII. Burlington N. & Santa Fe Ry. Co. v. White, 126

S. Ct. 2405, 2415 (2006) (internal quotations omitted).

First, Sabzevari argues that Reliable retaliated by denying him a transfer

from the assistant manager position in Beaumont to the assistant manager

position in Austin. Reliable counters that denial of a lateral transfer, such as

the one Sabzevari sought, cannot constitute an adverse employment action. The

Supreme Court recently adopted the “materially adverse” standard for

determining whether an action constitutes an adverse employment action. See

id. Under the “materially adverse” standard, “a transfer that does not involve

a demotion in form or substance cannot rise to the level of a materially adverse

employment action.” Brown v. Brody, 199 F.3d 446, 455-56 (D.C. Cir. 1999)

(quoting Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997)); see also

Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 900 (7th Cir. 2003). Sabzevari

presented no evidence that a transfer from the assistant manager position in

Beaumont to the assistant manager position in Austin was anything but a

lateral transfer in terms of pay, promotional opportunities, working conditions,

and other objective factors. Therefore, denial of the lateral transfer from

Beaumont to Austin is not a materially adverse employment action, and cannot

support Sabzevari’s retaliation claim.

Second, Sabzevari argues that Reliable retaliated against him by

terminating his employment. Reliable disagrees that it terminated Sabzevari,

arguing that Sabzevari “effectively quit” when he accepted employment with
No. 06-20888

7

American National. We agree. Sabzevari failed to return to work after he

received his medical release. In addition, he accepted employment with

American National before Reliable terminated him. In light of this evidence,

Sabzevari has failed to show that Reliable would not have terminated him “but

for” his opposition to the company’s employment practices.

Third, Sabzevari contends that Reliable retaliated against him by creating

a hostile work environment. Specifically, Sabzevari alleges that Reliable

demanded that he move within the twenty-five miles of the Beaumont district

office. Reliable argues that the company had a longstanding rule that required

all district managers to live within their districts and asserts that it would have

invoked this rule even if Sabzevari had not engaged in protected activity.

Reliable offered evidence that such a rule was in place long before Sabzevari

began to work for the company in Beaumont, and that the rule applied to all

district managers. The company also submitted evidence that all other

managers in the Beaumont district lived within its boundaries, and that it had

asked Sabzevari to move within the Beaumont district on multiple occasions

before he ever voiced Title VII concerns.

Sabzevari counters that Reliable created this rule to harass him and that

it applied the rule only to him. To support this claim, he offered evidence that

the rule was not a part of any written policy. Sabzevari also argues that Reliable

cannot cite any documentation to support the contention that its managers

instructed him to move before he raised Title VII concerns. However, the fact

that the policy was unwritten does not refute the testimony of Reliable’s

managers that such a policy was actually in place. Furthermore, the fact that

Reliable cannot produce documentation that it instructed Sabzevari to move

before his complaints does not defeat the testimony of multiple Reliable
No. 06-20888

8

employees that the company indeed issued such instructions. Accordingly,

Reliable has articulated a legitimate, nondiscriminatory reason for requiring

Sabzevarito move, and Sabzevari has not raised a genuine issue of material fact

as to whether this reason was a pretext for retaliation.

Sabzevari also alleges that Reliable created a hostile work environment

by labeling him a troublemaker and a traitor and by ostracizing him. But

Sabzevari fails to substantiate these claims with any evidence. Such conclusory

assertions are not sufficient to stave off summary judgment. See Douglass v.

United Servs. Auto Ass’n, 65 F.3d 452, 459 (5th Cir. 1995). For these reasons,

we affirm the district court’s grant of summary judgment on Sabzevari’s

retaliation claims.

Finally, Sabzevari contends that the district court improperly dismissed

his claim for punitive damages. Because we affirm the dismissal of Sabzevari’s

Title VII claims, his argumentthat he is entitled to punitive damages as a result

of these claims also must fail.

IV. CONCLUSION

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

judgment in favor of Reliable.