United States Court of Appeals

for the Fifth Circuit ____________

No. 23-40116 

____________

Benjamin Robert Fuhr, 

Plaintiff—Appellant, 

versus

City of Sherman, Texas, 

Defendant—Appellee. 

______________________________

Appeal from the United States District Court 

for the Eastern District of Texas

USDC No. 4:21-CV-549

______________________________

Before Stewart, Dennis, and Wilson, Circuit Judges.

Per Curiam:*

Benjamin Robert Fuhr (“Fuhr”) appeals the district court’s summary 

judgment in favor of the City of Sherman, Texas (“the City”). Because Fuhr 

fails to establish that the City’s proffered reasons for hiring Ty Coleman, and 

not promoting him, for the position of Animal Services Manager were merely 

pretextual, we AFFIRM. 

_____________________

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

United States Court of Appeals

Fifth Circuit

FILED

October 5, 2023

Lyle W. Cayce

Clerk

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I. FACTUAL & PROCEDURAL BACKGROUND

Fuhr, a white male, was an animal control officer for the Sherman 

Animal Shelter. In the Spring of 2019, the position of Animal Services 

Manager came open. At the same time, the City was looking to hire someone 

for the position of Animal Services Supervisor, a mid-level supervisory 

position. On April 25, 2019, Fuhr applied for both positions. The City 

appointed a three-member committee to interview qualified applicants and 

make hiring decisions for the open positions. Three internal candidates—

Fuhr, Matt Harmon, and David Ulch, all of whom are white males—and one 

external candidate—Ty Coleman, a Black male—were interviewed for the 

Animal Services Manager position. 

The committee utilized a scoresheet, comprised of a standard set of 

fifteen interview questions, and five other criteria to evaluate each candidate. 

Each member of the committee assigned a score to each candidate in 

reference to each question and criteria. Coleman received an average score 

of 91 out of 100, Fuhr and Ulch each received average scores of 82 out of 100, 

and Harmon received an average score of 65 out of 100. Coleman also 

received the highest scores in several additional criteria. At the time of his 

application, Coleman had approximately 8 1⁄2 years of relevant work 

experience, including three years of experience in a supervisory role. 

Ultimately, the committee unanimously decided to hire Coleman. 

Fuhr filed a charge of discrimination with the Equal Employment 

Opportunity Commission (“EEOC”) in November 2019, following the 

hiring of Coleman. After receiving his right to sue letter from the EEOC, 

Fuhr filed suit in the Eastern District of Texas alleging that the City’s failure 

to promote him was because of his race in violation of Title VII of the Civil 

Rights Act of 1964, 42 U.S.C. § 2000e, et seq. and Chapter 21 of the Texas 

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Labor Code.

1 Following the district court’s dismissal of Fuhr’s state law 

claim, the City moved for summary judgment on his remaining Title VII 

claim, which the district court granted. Fuhr timely appealed. 

II. Standard of Review

We review a district court’s grant of summary judgment de novo. 

Hudson v. Lincare, Inc., 58 F.4th 222, 228 (5th Cir. 2023); United States v. 

Lawrence, 276 F.3d 193, 195 (5th Cir. 2001). Summary judgment is 

appropriate when a party fails to “make a showing sufficient to establish the 

existence of an element essential to that party’s case, and on which that party 

will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 

322 (1986). The court should grant summary judgment when “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). 

III. Discussion

Fuhr argues that the district court erred in granting the City’s motion 

for summary judgment because he provided sufficient evidence through 

which a properly instructed jury could have reasonably concluded that the 

City’s proffered reasons for hiring Coleman, instead of promoting Fuhr, for

the Animal Services Manager position, were racially motivated. We are 

unpersuaded.

A. Establishing a Prima Facie Case of Racial Discrimination

In accordance with a Title VII racial employment discrimination

claim, the complainant has the burden of establishing a prima facie case. 

McDonnell Douglas Corp. v. Green, 411 U.S. 802 (1973). To establish a prima 

_____________________

1 TEX. LAB. CODE ANN. § 201.001, et seq., also known as the Texas 

Commission on Human Rights Act (“TCHRA”).

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facie case of discrimination based on his race, Fuhr must establish that “(1) 

he was not promoted, (2) he was qualified for the position he sought, (3) he 

fell within a protected class at the time of the failure to promote, and (4) the 

defendant either gave the promotion to someone outside of that protected 

class or otherwise failed to promote the plaintiff because of his race.” Autry 

v. Fort Bend Indep. Sch. Dist., 704 F.3d 344, 346–347 (5th Cir. 2013); see also 

Ernst v. Methodist Hosp. Sys., 1 F.4th 333, 339 (5th Cir. 2021) (quoting Stroy 

v. Gibson on behalf of Dep’t of Veterans Affs., 896 F.3d 693, 698 (5th Cir. 

2018)). If Fuhr successfully establishes a prima facie case, the burden would 

then shift to the City to prove a legitimate, nondiscriminatory reason for 

failing to promote Fuhr. Byers v. Dall. Morning News, Inc., 209 F.3d 419, 425

(5th Cir. 2000); see, e.g., Saketkoo v. Admins. of Tulane Educ. Fund, 31 F.4th 

990, 1000 (5th Cir. 2022) (“If the plaintiff establishes a prima facie case, then 

the employer has the burden of production to provide ‘a legitimate, nondiscriminatory reason’ for the adverse employment action.”). Upon doing 

so, the burden would then shift back to Fuhr to prove, by a preponderance of 

the evidence, that the proffered reason was mere pretext for racial 

discrimination. Byers, 209 F.3d at 425.

Although there is no dispute that Fuhr satisfied the first three 

elements of his prima facie case, the parties disagree on the fourth. 

Nevertheless, the district court determined that Fuhr established a prima 

facie case of discrimination because “(1) there is no dispute that he was not 

promoted to the Animal Services Department Manager role, (2) the City 

does not contest that [Fuhr] was qualified for the position, (3) Fuhr’s white 

skin color is his protected class, and (4) a non-white individual—a [B]lack 

man—was given the position instead.” Fuhr v. City of Sherman, Texas, No. 

4:21-CV-549-SDJ, 2023 WL 1765914 at *3 (E.D. Tex. Feb. 3, 2023). This 

court agrees. 

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B. The Veracity of the City’s Proffered Reasons and Evidence of Pretext 

Because Fuhr established a prima facie case of racial discrimination, 

the City becomes tasked with providing a legitimate and nondiscriminatory 

reason for hiring Coleman instead of promoting Fuhr. See Autry, 704 F.3d at 

347. The City easily meets its burden. The City’s many reasons for its hiring 

decision include Coleman receiving the highest overall score based on 

interviews, having over eight years of experience in animal services, and 

being the only candidate with management and supervisory experience. Fuhr 

is thus required to establish that the proffered reasons from the City to hire 

Coleman and not promote him were merely pretextual. See McDonnell, 411 

U.S. at 804; see also Sanders v. Christwood, 970 F.3d 558, 562 (5th Cir. 2020)

(“If the employer has articulated [some legitimate, nondiscriminatory reason 

for the employee’s rejection], then the plaintiff must show that the stated 

reason ‘was in fact pretext.’” (quoting McDonnell, 411 U.S. at 804)). He fails

to do so. 

This court has repeatedly held that “differences in qualifications 

between job candidates are generally not probative evidence of 

discrimination unless those differences are so favorable to the plaintiff that 

there can be no dispute among reasonable persons of impartial judgment that 

the plaintiff was clearly better qualified for the position at issue.” Deines v.

Tex. Dep’t of Protective & Regul. Servs., 164 F.3d 277, 279 (5th Cir. 1999); see 

also Roberson-King v. La. Workforce Comm’n, Off. of Workforce Dev., 904 F.3d 

377, 381 (5th Cir. 2018). Whether Fuhr’s credentials qualify him for the 

position of Animal Services Manager is not dispositive in this case. Rather, 

Fuhr must establish that he was clearly better qualified than Coleman. Deines, 

164 F.3d at 279. He has not and, likewise, cannot.

“A plaintiff may also establish pretext ‘by showing that the 

employer’s proffered explanation is false or ‘unworthy of credence.’” 

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Roberson-King, 904 F.3d at 381. Fuhr attempts to demonstrate evidence of 

pretext through several additional means, including (1) statements made by 

members of the committee; (2) the hiring of Harmon for the position of 

Animal Services Supervisor; (3) Fuhr’s belief that the ideas he presented to 

the committee were met with indifference; (4) a prior lawsuit against the City 

regarding its failure to promote minorities; and (5) Coleman’s age. Fuhr’s 

assertions are insufficient to show pretext. Fuhr cannot establish pretext 

based on a committee member stating that Coleman was “the first African 

American to hold the director position” as this statement does not indicate

that the committee discriminated against white applicants simply because it 

recognized the accomplishment of a Black applicant. Additionally, the hiring 

of another white candidate for an entirely separate position, Animal Services 

Supervisor, is irrelevant to whether the City’s proffered reasons regarding 

the committee’s hiring rationale for the Animal Services Manager position

were pretextual. Lastly, Fuhr’s assertions, that (1) the committee’s 

perceived indifference to his presented ideas and (2) a prior lawsuit fueled its 

decision to hire Coleman for the position, amount to nothing more than 

speculation that does not substantiate a finding of pretext. See Britt v. Grocers 

Supply Co., 978 F.2d 1441, 1451 (5th Cir. 1992) (noting that speculation and 

belief are insufficient to create a fact issue regarding pretext). Finally, noting

Coleman’s age at the time of the hiring, 22 years old, is of no moment in this 

case as a claim for racial discrimination is distinct from a claim for age 

discrimination. See e.g., Evans v. City of Houston, 246 F.3d 344, 350 (5th Cir. 

2001) (showing that establishing a prima facie case of racial discrimination is 

distinct from establishing a prima facie case of age discrimination).

Consequently, given the lack of competent summary judgment 

evidence, Fuhr is unable to establish that the City’s proffered reasons for 

hiring Coleman, and not promoting him, for the position of Animal Services 

Manager were merely pretextual. See McDonnell, 411 U.S. at 804. 

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Accordingly, we hold that the district court did not err in granting the City’s 

motion for summary judgment. See Hudson v. Lincare, Inc., 58 F.4th 222, 228 

(5th Cir. 2023); United States v. Lawrence, 276 F.3d 193, 195 (5th Cir. 2001).

IV. Conclusion

For the foregoing reasons, the district court’s judgment is 

AFFIRMED.

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