* 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.

1 Thomas originally sued five defendants for employment discrimination. On January

12, 2006 and March 28, 2006, the district court dismissed the claims against two of the

defendants, Tompkins PLC and Gates Corporation, respectively, for lack of personal

jurisdiction. Thomas appeals those dismissals here; however, because his claims against all

defendants fail on the merits, we decline to reach the question of whether personal jurisdiction

exists regarding Tompkins PLC and Gates Corporation. The remaining defendants, Trico

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40114

Summary Calendar

ROBERT THOMAS

Plaintiff-Appellant

v.

TRICO PRODUCTS CORP; TOMKINS PLC; JIM GAITHER; JOHN WIN;

GATES CORPORATION 

Defendants-Appellees

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 1:05-CV-174

Before KING, DAVIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Robert Thomas (“Thomas”) appeals the district court’s grant of the

defendants’ motion for summary judgment.1 We AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

October 26, 2007

Charles R. Fulbruge III

Clerk
No. 07-40114

Products Corporation, Jim Gaither, and John Win, are collectively referred to as “Trico.” 

2

Trico hired Thomas as a tool maker in 2001. Thomas, who is from India,

demonstrated chronic attendance problems, resulting in multiple warnings and,

ultimately, suspension. On January 26, 2002, Trico administered a written

warning to Thomas regarding his attendance. Thomas acknowledged his

problem with poor attendance, but proceeded to incur twenty-one unexcused

incidents of tardiness or absences after the written warning. On April 24, 2002,

Trico issued a second written warning regarding Thomas’s attendance, but the

problems persisted. Finally, Trico suspended Thomas for three days on

November 25, 2002.

On April 2, 2003, Thomas was held in contempt of court in a child custody

matter and was incarcerated indefinitely. He had no available annual leave and

had been told by Trico that any further absences would result in his discharge.

Rather than being fired, he voluntarily resigned from Trico. On August 4, 2003,

he reapplied for employment with Trico as a tool maker. Although Trico told

Thomas that another candidate had applied for the job, Thomas admits that he

did not include all of his experience on his application, thinking that the

application process was a “formality.” Trico considered both applicants, who had

similar experience and education, including having worked for Trico, and hired

the other applicant, Gary Eich (“Eich”).

Thomas filed a complaint with the Equal Employment Opportunity

Commission (“EEOC”), alleging that Trico discriminated against him on the

basis of his national origin and race when they hired Eich instead of him. The

EEOC dismissed Thomas’s case and informed him on February 28, 2005 of his

right to sue in federal court. Thomas filed a lawsuit against Trico in federal

district court on May 31, 2005, alleging employment discrimination under 42

U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964 (“Title VII”), as
No. 07-40114

2 The analysis for claims under § 1981 and Title VII employ identical burden-shifting

frameworks for evaluating discrimination claims, so we analyze Thomas’s claims under both

simultaneously. See Jones v. Robinson Prop. Group, L.P., 427 F.3d 987, 992 (5th Cir. 2005);

Raggs v. Miss. Power & Light Co., 278 F.3d 463, 468 (5th Cir. 2002). 

3

amended, 42 U.S.C. §§ 2000e-2000h-6. On July 25, 2006, the district court

granted summary judgment in favor of Trico. Thomas now appeals that ruling.

This Court reviews a district court’s grant of summary judgment de novo,

applying the same standards as the district court. Strong v. Univ. Healthcare

Sys., L.L.C., 482 F.3d 802, 805 (5th Cir. 2007). Summary judgment is proper

when there exists no genuine issue of material fact and the movant is entitled

to judgment as matter of law. FED. R. CIV. P. 56(c). “The evidence and

inferences from the summary judgment record are viewed in the light most

favorable to the nonmovant.” Minter v. Great Am. Ins. Co. of N.Y., 423 F.3d 460,

465 (5th Cir. 2005). To survive a summary judgment motion, the nonmovant

“need only present evidence from which a jury might return a verdict in his

favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).

Title VII disallows discrimination in hiring or termination of an individual

based on his race, color, religion, sex, or national origin. 42 U.S.C. § 2000e2(a)(1). In cases where no direct evidence exists, we analyze discrimination

claims under Title VII using the burden-shifting framework created by the

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).2In

cases involving termination for workplace rule violations, an individual must

first establish a prima facie case for discrimination. Id. at 802. Thomas can

establish a prima facie case for discrimination if he can show that (1) he is a

member of a protected class, (2) he was qualified for the position for which he

applied and for which the employer was seeking applicants, (3) he was not hired

despite his qualifications, and (4) someone outside of the protected class was

hired instead. Crawford v. U.S. Dep’t of Homeland Sec., Nos. 06-11163, 06-
No. 07-40114

4

11387, 2007 WL 2348661, at *6 (5th Cir. Aug. 16, 2007); Septimus v. Univ. of

Houston, 399 F.3d 601, 609 (5th Cir. 2005). If a prima facie case for

discrimination can be established, then the burden shifts to the defendants to

rebut Thomas’s case by articulating a legitimate, nondiscriminatory reason for

his rejection. McDonnell Douglas, 411 U.S. at 802. If the defendants present

such a reason, then the burden shifts back to Thomas to show that the

defendants’ reasons for refusing to hire him are not true, but are mere pretexts

for discrimination, or that the reasons are true, but his national origin was a

motivating factor. McDonnell Douglas, 411 U.S. at 804–05.

Here, Thomas succeeds in establishing a prima facie case for

discrimination based on his national origin. Thomas is a member of protected

class because of his ancestry and national origin. He applied for an advertised

job for which he was qualified. Trico did not hire him, but instead hired someone

outside of Thomas’s protected class. To rebut Thomas’s prima facie case, Trico

articulates legitimate, nondiscriminary reasons for rejecting his application.

Trico contends that Eich’s reliability, loyalty, ties to the community, and

demonstrated longevity in the field of tool- and die-making without gaps in

employment made him a superior candidate compared to Thomas, who, although

possessed similar qualifications, nevertheless had a less stable employment

record, a criminal history, and was on his final warning for attendance before he

resigned from Trico. Trico had employed both Eich and Thomas before, so it was

in a unique position to evaluate their respective work ethics and abilities.

Shifting the burden of proof back to Thomas, he may prove that Trico’s

reasons for not hiring him were pretextual by demonstrating that he was

“clearly better qualified” than Eich. Manning v. Chevron Chem. Co., 332 F.3d

874, 882 (5th Cir. 2003). Thomas attempts to show that he was better qualified

than Eich by presenting his educational background and his technical skills as

a tool-maker, even though he admits he did not list all of these qualifications on
No. 07-40114

3 Thomas raises issues for appeal in his brief regarding the district court’s decisions on

discovery that are outside the scope of this proceeding and are not enumerated in his notice

of appeal. “Rule 3(c) of the Federal Rules of Appellate Procedure requires that the notice of

appeal specify the order from which the appeal is taken.” Hinsley v. Boudloche (In re Hinsley),

201 F.3d 638, 641 (5th Cir. 2000). Therefore, we decline to address those arguments. 

5

his application. He argues that Eich’s work experience and education fail to

meet the minimum qualifications listed in Trico’s job advertisement. We have

held, however, that “better education, work experience, and longer tenure with

the company do not establish that [an applicant] is clearly better qualified,”

meaning that an employer has a rightto departfrom published job requirements

and to value certain attributes over others. Price v. Fed. Express Corp., 283 F.3d

715, 723 (5th Cir. 2002). “[T]he employer’s judgment as to qualifications will

not be probative of the issue of a discriminatory motive unless the qualifications

are so widely disparate that no reasonable employer would have made the same

decision.” Deines v. Tex. Dep’t of Protective and Regulatory Servs., 164 F.3d 277,

282 (5th Cir. 1999). Ultimately, the law requires only that the employer’s

decision is “somewhere within the realm of reason.” Id.

When viewing the two applications before it, Trico found the work

experience between Thomas and Eich to be similar. Trico hired Eich based upon

his observed work ethic, acceptable attendance record, and lack of criminal

history. We hold that Thomas has failed to disprove Trico’s legitimate,

nondiscriminatory explanation that Eich was better qualified for the position.

He also has not presented other evidence of pretext for discrimination, nor has

he shown that his national origin was a motivating factor in Trico’s hiring

decision.3

Therefore, the judgment of the district court is AFFIRMED.