IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-51092

Summary Calendar 

DAVID W. STANDLEY, 

 Plaintiff - Appellant 

v. 

MICHAEL S. ROGERS, United States Director of National Security Agency, 

 Defendant - Appellee 

Appeal from the United States District Court

for the Western District of Texas 

USDC No. 5:14-CV-977

Before JONES, WIENER, and CLEMENT, Circuit Judges. 

PER CURIAM:*

David W. Standley, a former employee of the National Security Agency 

(“NSA”), brought claims under Title VII for race-based discrimination, 

retaliation, and hostile work environment against Michael Rogers, Director of 

the NSA. The district court granted summary judgment to Rogers and against 

Standley on all claims. Standley appeals the district court’s judgment as to his 

 

* 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

March 10, 2017

Lyle W. Cayce

Clerk

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2 

race-based discrimination and retaliation claims.1 We AFFIRM the judgment 

of the district court. 

We review de novo a district court’s decision to grant a motion for 

summary judgment, “applying the same standard as the district court.” Fennell 

v. Marion Indep. Sch. Dist., 804 F.3d 398, 407 (5th Cir. 2015). 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). The evidence must be viewed “in the light most favorable 

to the nonmoving party.” Cuadra v. Hous. Indep. Sch. Dist., 626 F.3d 808, 812 

(5th Cir. 2010). 

In the absence of direct evidence of discrimination or retaliation, Title 

VII claims are analyzed under the three-step McDonnell Douglas burdenshifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–

04 (1973); Wheat v. Fla. Par. Juvenile Justice Comm’n, 811 F.3d 702, 705–06 

(5th Cir. 2016). The plaintiff must first show a prima facie case of race-based 

discrimination or retaliation. McDonnell Douglas, 411 U.S. at 802. If the 

plaintiff establishes a prima facie case of race-based discrimination or 

retaliation, the burden of production then shifts to the employer to state a 

legitimate, nondiscriminatory or non-retaliatory reason for the employment 

action at issue. See id.; Royal, 736 F.3d at 400. If the employer meets its 

burden, the burden then shifts back to the plaintiff to offer evidence that the 

employer’s stated reason was only pretext for discrimination or retaliation. See 

Rogers v. Pearland Indep. Sch. Dist., 827 F.3d 403, 408 (5th Cir. 2016) (citing 

McDonnell Douglas, 411 U.S. at 804); Royal, 736 F.3d at 400. 

 

1 Because Standley failed to brief any argument regarding the district court’s grant of 

summary judgment as to his hostile work environment claim, he waived his appeal as to that 

claim. See Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013).

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 A plaintiff establishes a prima facie case of race-based discrimination if 

he demonstrates that he “(1) is a member of a protected class; (2) was qualified 

for the position; (3) was subject to an adverse employment action; and (4) was 

replaced by someone outside of the protected class, or, in the case of disparate 

treatment, shows that other similarly situated employees were treated more 

favorably.” Bryan v. McKinsey & Co., 375 F.3d 358, 360 (5th Cir. 2004). The 

district court held that Standley failed to establish a prima facie case of racebased discrimination because he did not present evidence of the fourth 

element—that a similarly-situated employee was treated more favorably. 

Standley concedes that he did not present evidence of a similarly-situated 

employee under this circuit’s standard. He instead argues that this court 

“should modify its current position” regarding the similarly-situated standard. 

This argument is foreclosed by Fifth Circuit precedent.2 The district court 

correctly granted summary judgment to Rogers on Standley’s claim for racebased discrimination. 

 A plaintiff establishes a prima facie case of retaliation if he 

demonstrates: “(1) []he engaged in protected activity; (2) the employer took a 

materially adverse action again h[im]; and (3) a causal link exists between h[is] 

protected activity and the adverse action.” Wheat, 811 F.3d at 705. The district 

court held that Standley failed to establish a prima facie case of retaliation 

because he did not present a genuine issue of material fact as to the third 

element—that there was a causal nexus between his protected activity and the 

NSA’s adverse employment actions. “[T]o satisfy the ‘causal link’ requirement 

of a Title VII retaliation claim, the employee must provide substantial evidence 

 

2 “It is a well-settled Fifth Circuit rule of orderliness that one panel of our court may 

not overturn another panel’s decision, absent an intervening change in the law. . . .” Jacobs 

v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008). Standley does not argue 

that there was an intervening change in the law.

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that ‘but for’ exercising protected rights, []he would not have been discharged.” 

Id. (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013)).

The district court properly determined that Standley’s subjective beliefs and 

speculation about the reasons for the NSA’s adverse employment actions did

not create a genuine issue of material fact as to but-for causation. The district 

court correctly granted summary judgment to Rogers on Standley’s claim for 

retaliation. 

 We AFFIRM the judgment of the district court. 

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