IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-50544

Summary Calendar

REGINA E. VARGAS, 

 Plaintiff - Appellant

v.

JOHN M. MCHUGH, Secretary Department of Army, 

 Defendant - Appellee

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:12-CV-334

Before KING, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Plaintiff–Appellant Regina Vargas brought a claim of retaliation 

pursuant to Title VII of the Civil Rights Act of 1964 against John M. McHugh, 

arising from a decision by United States Army officials to not hire Plaintiff for 

an information technology position in 2009. On appeal, Plaintiff challenges 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

November 3, 2015

Lyle W. Cayce

Clerk

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the district court’s grant of summary judgment. For the following reasons, we 

AFFIRM the judgment of the district court. 

I. FACTUAL AND PROCEDURAL BACKGROUND

From 2002 to 2007, Regina Vargas, a civilian, worked as an information 

technology (IT) specialist at the Army’s Directorate of Information 

Management (DOIM) at Fort Hood, Texas. In July 2007, Vargas filed a formal 

complaint alleging discrimination based on race, color, age, and reprisal for 

participating in equal employment opportunity (EEO) activities. In September 

2007, Vargas and the Army settled the complaint by agreeing that, in exchange 

for a lump-sum payment, Vargas would resign her position and would “neither 

seek [n]or be considered for future federal or contractor employment within the 

[DOIM] at Fort Hood.” 

After resigning and receiving the settlement payment, Vargas sent two 

emails to former coworkers. The first email referred to a former supervisor as 

a “crazy woman,” and shared information regarding the settlement payment. 

The second email included similar language and stated that Vargas would 

create a website for a former coworker “on how to steal another man’s wife.” 

Following these emails, a memorandum was included in Vargas’s file, noting 

that the post-employment emails “exhibited a significant lack of judgment on 

[Vargas’s] part.”

In late 2008, Vargas applied for an IT position with the Army’s 120th 

Infantry Brigade, which was moving to Fort Hood. Vargas was not selected for 

the position, but the hiring official asked if Vargas would be interested in a 

lower-level position. Vargas replied that she would be interested. The hiring 

official asked her why she was no longer working at the DOIM, but Vargas did 

not disclose all of the circumstances surrounding her departure, instead 

mentioning family obligations and stress.

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After a human resources specialist extended a tentative offer, the 

personnel office checked Vargas’s qualifications and suitability. ROA.233–36, 

299. During that check, several problems were uncovered. ROA.313. First, a 

review of Vargas’s résumé found numerous alleged exaggerations. Second, 

Vargas represented on an employment form that she had not “[left] any job by 

mutual agreement because of specific problems,” when in fact she had resigned 

from her previous Army position by mutual agreement. Third, the human 

resources specialist learned that Vargas would not be granted specialized 

computer access, known as “elevated privileges,” necessary to perform the 

prospective job because Vargas’s post-resignation emails had shown a 

significant lack of judgment. Finally, the settlement agreement, which Vargas 

had signed, was interpreted as barring Vargas from any position under DOIM 

oversight, including the position she sought. On January 12, 2009, the

specialist reported all of these findings to the hiring official, and the hiring 

official withdrew the tentative officer the following day.

In March 2009, Vargas filed a formal complaint alleging that the 

withdrawal of the tentative offer was reprisal for her 2007 EEO activity. The 

Army’s EEO investigator found no wrongdoing. Vargas then went before an 

administrative judge for the Equal Employment Opportunity Commission 

(EEOC), who held a hearing and concluded that “the reasons given by the 

[Army] for withdrawing the job offer to [Vargas] were not shown to be pretext 

for retaliatory motives.” Vargas appealed to the EEOC’s Office of Federal 

Operations, which reviewed the case and affirmed the administrative judge’s 

conclusion.

On December 11, 2012, Vargas filed suit against the Secretary of the 

Army in the United States District Court for the Western District of Texas. On 

April 8, 2013, Vargas filed a motion to amend her complaint, which the district 

court treated as an amended complaint. The amended complaint brought 

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claims of discrimination based on race, age, and retaliation, pursuant to Title 

VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment 

Act of 1967. 

On May 13, 2015, the district court granted the Army’s motion for 

summary judgment. On the retaliation claim, the district court explained that 

Vargas had to rely on circumstantial evidence because she had offered no direct 

evidence of retaliation. The district court found that Vargas had failed to 

establish a prima facie case for retaliation because she had not shown a causal

connection between her EEO activity and the Army’s decision not to re-hire 

her. The district court also found that Vargas had not rebutted the reasons 

articulated by the Army for not re-hiring her. On the age and race 

discrimination claims, the district court found that Vargas had failed to 

exhaust her administrative remedies because she had never raised those 

claims before filing suit. Accordingly, the district court granted summary 

judgment on all claims, and entered judgment the same day. Vargas timely 

appealed. 

II. STANDARD OF REVIEW

On appeal, Vargas contends that the district court erred in granting 

summary judgment on her retaliation claim. We review a grant of summary 

judgment de novo, applying the same standard as the district court. Feist v. 

La., Dep’t of Justice, Office of the Att’y Gen., 730 F.3d 450, 452 (5th Cir. 2013). 

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.” Fed. R. Civ. P. 56(a). All facts and evidence are viewed in the 

light most favorable to the nonmovant. Feist, 730 F.3d at 452. “However, 

conclusory statements, speculation, and unsubstantiated assertions cannot 

defeat a motion for summary judgment.” RSR Corp. v. Int’l Ins. Co., 612 F.3d 

851, 857 (5th Cir. 2010). “Rather, the party opposing the summary judgment 

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is required to identify specific evidence in the record and to articulate precisely 

how this evidence supports [her] claim.” Id.

III. RETALIATION CLAIMS UNDER TITLE VII

The anti-retaliation provision of Title VII forbids employers from 

discriminating against a job applicant because she has “‘made a charge, 

testified, assisted, or participated in’ a Title VII ‘investigation, proceeding, or 

hearing.’” Burlington N. & Sante Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006) 

(quoting 42 U.S.C. § 2000e-3(a)).1 Title VII claims of unlawful retaliation 

based on circumstantial evidence are analyzed under the burden-shifting

framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–

05 (1973).2 First, plaintiff must establish a prima facie case of retaliation by 

showing “that (1) she participated in an activity protected under the statute; 

(2) her employer took an adverse employment action against her; and (3) a 

 

1 The statutory text of the Title VII anti-retaliation provision provides, in full:

It shall be an unlawful employment practice for an employer to discriminate 

against any of his employees or applicants for employment, for an employment 

agency, or joint labor-management committee controlling apprenticeship or 

other training or retraining, including on-the-job training programs, to 

discriminate against any individual, or for a labor organization to discriminate 

against any member thereof or applicant for membership, because he has 

opposed any practice made an unlawful employment practice by this 

subchapter, or because he has made a charge, testified, assisted, or 

participated in any manner in an investigation, proceeding, or hearing under 

this subchapter.

42 U.S.C. § 2000e-3(a).

2 Vargas contends on appeal that there is direct evidence of retaliation. However, the 

evidence cited by Vargas does not constitute direct evidence. The evidence cited is the closing 

argument of Vargas’s attorney during the EEOC hearing. Moreover, while other evidence in 

the record shows that individuals may have had knowledge of Vargas’s prior EEO activity, 

that evidence alone is insufficient to show retaliatory animus without inference or 

presumption. Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 992 (5th Cir. 2005) (“Direct 

evidence is evidence which, if believed, proves the fact without inference or presumption.”). 

We therefore analyze Vargas’s claim as based on circumstantial evidence. See Medina v. 

Ramsey Steel Co., Inc., 238 F.3d 674, 684 (5th Cir. 2001) (analyzing similar evidence under 

the McDonnell Douglas burden-shifting framework).

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causal connection exists between the protected activity and the adverse 

action.” Feist, 730 F.3d at 454. “If the plaintiff makes a prima facie showing, 

the burden then shifts to the employer to articulate a legitimate 

nondiscriminatory or nonretaliatory reason for its employment action.” McCoy 

v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007). Finally, “the plaintiff 

then bears the ultimate burden of proving that [each of] the employer’s 

proffered reason[s] is not true but instead is a pretext for a real discriminatory 

or retaliatory purpose.” Id. 

The parties here disagree whether Vargas has raised a genuine dispute 

that a “causal connection” exists between the protected activity and adverse 

action. Temporal proximity between the protected activity and the adverse 

action can prove the causation element “when the protected act and the 

adverse employment action are ‘very close’ in time.” Washburn v. Harvey, 504 

F.3d 505, 511 (5th Cir. 2007) (quoting Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 

268, 273–74 (2001)). “However, we have made clear that ‘the mere fact that 

some adverse action is taken after an employee engages in some protected 

activity will not always be enough for a prima facie case.’” Roberson v. Alltel 

Info. Servs., 373 F.3d 647, 655 (5th Cir. 2004) (quoting Swanson v. Gen. Servs. 

Admin., 110 F.3d 1180, 1188 n.3 (5th Cir. 1997)). While a five-day time lapse

is sufficient to show a causal connection, Evans v. City of Houston, 246 F.3d 

344, 354 (5th Cir. 2001), a five-month lapse is too great a gap, standing alone, 

to show causation. Feist, 730 F.3d at 454 (citing Raggs v. Miss. Power & Light 

Co., 278 F.3d 463, 472 (5th Cir. 2002)). Here, the gap was approximately fifteen 

months between Vargas’s activity and the withdrawal of her job offer. Thus, 

the temporal lapse was too great, standing alone, to raise a genuine dispute of 

causation. Jackson v. Honeywell Intern., Inc., 601 F. App’x 280, 286–87 (5th 

Cir. 2015) (unpublished) (holding that a fifteen-month gap was insufficient to 

establish causation).

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A plaintiff may be able to show a causal connection despite a significant 

time gap if there is other evidence of retaliation. See Feist, 730 F.3d at 454–55 

(noting that a five-month lapse was insufficient to show causation “without 

other evidence of retaliation”); Shirley v. Chrysler First, Inc., 970 F.2d 39, 42–

44 (5th Cir. 1992) (upholding a finding of causation based on other evidence

even though fourteen months passed between the protected activity and the 

adverse action). “Such evidence may include an employment record that does 

not support [the employer’s action], or an employer’s departure from typical 

policies and procedures.”3 Feist, 730 F.3d at 454–55. However, Vargas has not 

shown that the employment record did not support the employer’s action; in 

fact, the record contained a memorandum noting that post-employment emails 

sent by Vargas “exhibited a significant lack of judgment.” Nor has Vargas 

pointed to any express policy not followed by the Army. See Blow v. San 

Antonio, 236 F.3d 293, 295, 297 (5th Cir. 2001) (noting that the employer had 

“intentional[ly] and deliberate[ly] depart[ed] from stated policies” (emphasis 

added)). The only “evidence” cited by Vargas is her attorney’s closing argument 

at the EEOC hearing. However, the undisputed evidence in the record shows 

that résumé reviews by former supervisors were a routine part of the inquiry 

into prospective employees’ qualifications and suitability and that at least one 

other job offer was withdrawn after such a review. See Gemtron Corp. v. SaintGobain Corp., 572 F.3d 1371, 1380 (Fed. Cir. 2009) (noting that “unsworn 

attorney argument to the contrary . . . is not evidence and cannot rebut” other

 

3 Vargas also argues that causation may be established through circumstantial 

evidence showing that the employer’s decision was based in part on the knowledge of the 

employee’s protected activity. Medina, 238 F.3d at 684. However, we will not consider this 

argument because it was raised for the first time on appeal. See Leverette v. Louisville Ladder 

Co., 183 F.3d 339, 342 (5th Cir. 1999). Furthermore, even if this argument were to raise a 

genuine dispute as to causation, Vargas has nonetheless failed to show that the Army’s

reasons were pretextual.

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evidence). The district court therefore did not err in finding that Vargas had 

failed to establish a prima face case of retaliation.4

Furthermore, Vargas has also failed to show that the nonretaliatory 

reasons presented by the Army were pretextual. To show that the employer’s 

reason is actually a pretext for retaliation, the applicant must show “that the 

adverse action would not have occurred ‘but for’ the employer’s retaliatory 

motive.” Feist, 730 F.3d at 454 (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 

133 S. Ct. 2517, 2533 (2013)). “In order to avoid summary judgment, the 

plaintiff must show ‘a conflict in substantial evidence’ on the question of 

whether the employer would not have taken the action ‘but for’ the protected 

activity.” Id. (quoting Long v. Eastfield Coll., 88 F.3d 300, 308 (5th Cir. 1996)). 

In particular, “the plaintiff must rebut each nondiscriminatory or 

nonretaliatory reason articulated by the employer.” McCoy, 492 F.3d at 557.

The Army produced four legitimate, nonretaliatory reasons for its 

employment action: (1) the settlement agreement’s terms, (2) exaggerations on 

Vargas’s résumé, (3) a false statement on Vargas’s employment forms, and 

(4) lack of elevated privileges. See id. at 556 (stating that an employer meets 

its burden of production if it can “articulate a legitimate, nondiscriminatory or 

nonretaliatory reason for its employment action”). On appeal, Vargas failed to 

raise any argument that the third reason—the false statement on her

employment forms—was pretextual. Vargas has therefore abandoned this 

argument. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (“A party 

who inadequately briefs an issue is considered to have abandoned the claim.”). 

 

4 While Vargas contends that “blacklisting” can function as a form of retaliation, the 

authority cited by Vargas relates to defamation claims and property interest claims under 

the Due Process Clause. Vargas has not explained how such authority relates to Title VII 

retaliation claims nor has Vargas cited any relevant Title VII precedent on this issue from

the Fifth Circuit. Vargas has therefore failed to adequately brief this argument and has 

waived it. United States v. Scroggins, 599 F.3d 433, at 446–47 (5th Cir. 2010).

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Because Vargas has failed to rebut every reason articulated by the Army, the 

district court did not err in granting summary judgment as to Vargas’s 

retaliation claim.5

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

 

5 Moreover, even if Vargas had shown on appeal that the false statement reason was 

pretextual, her retaliation claim would still fail because she has not shown that the résumé 

exaggeration reason was pretextual. In her brief, Vargas conceded that at least some aspects 

of her résumé were exaggerated. And, as discussed above, Vargas has failed to raise a 

genuine dispute that the Army departed from its typical policies and procedures in having 

her résumé reviewed by former supervisors.

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