## NO. 12

- 23

- 00144

- CV

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

MICKEY M. HADNOT , APPELLANT

V.

LUFKIN INDEPENDENT SCHOOL DISTRICT , APPEL LEE §

§

§ APPEAL FROM THE 159TH

JUDICIAL DISTRICT COURT

ANGELINA COUNTY, TEXAS

OPINION Mickey M. Hadnot a ppeals the trial court’s order grant ing summary judgment against

him and in favor of Lufkin Independent School District (the District)

. In a single issue , Hadnot argues that the evidence raises a genuine fact issue regarding whether the District racially

discri minated in failing to hire him

. We affirm.

B ACKGROUND

On June 10, 2019
, the District issued a job posting to fill two available sc hool resource officer positions

. A District officer informed Hadnot of the open ings , and he applied June 14

. Hadnot is bla ck. According to Hadnot ’s application, he earned a bachelor’s degree in criminal justice in

1988

. He worked for the Lufkin Police D epartment as a patrol officer until 1992
, when he was2 hired as the District’s first school resource officer. In 1994, Hadn ot left the District to pursue a
career with the Texas Department of Public Safety (DPS) , where he served as Lieutenant at the

time o f his application

. In addition to his employment history, Hadnot shared in his application

that he was a Lu fkin Little Lea gue Baseball board member, a Lufkin Park b oard member, the Lufkin Youth Basketball president, and spoke “polite” Spanish.

Juan Jose “Gilbert” Tinajero
, who is Hispanic and fluent in Spanish, also applied. A Lufkin High School gradua te, h e earned an asso ciate ’s degree in criminal justice in 2003 and completed police academy training in 2004

. Tinajero worked as a construction estimato r from

2004 to 2017
, while serving as a reserve officer with the Angelina County Sheriff’s Office from

2004 to 2007 and the Diboll Police Department from 2007 to 2014

. He performed additional

work as a private investigator beginning in 2012

. A t the time of his application
, Tinajero owned and operated a private investigation company.

O n July 25, 2019 , a pane l of eight Dist rict employees interviewed six applicants
, including Hadnot and Tinajero, for the positions. The remaining applicants interviewed we re Jeff Taylor
, who is black ; Mark Guerra
, who is Hispanic ; Zach Nick
, who is white ; and Geoffrey

Gordon
, wh o is white. Th e panel members includ ed Police C hief Jay Jost , who is white ;
Lieutenant David Rodriguez , who is Hispanic ; Officer Ralph Bean , who is black ; Officer

Tamesha Forrest , who is white ; alternative school principal Scott Walters, who is white;

ass ociate principa l Andres Mijares
, who is Hispanic ; student support director Gina Green
, who is

white ; and at

- risk coordinator Joe Martinez
, who is Hi spanic. During t he interviews, the panel member s use d evaluation for ms containing preprinted interview que stions with spa ce to write comments and rate response s

. The following statement

appears n ear the top of t he forms :

Purpose

– This evaluation form is to standardize the recording of information collected during an interview and to assist in evaluating an d comparing dif fe rent applicants when interviews are conducted. Interviewers are encouraged to use the comments section to support ea ch applicant’s rating. This form is to be completed during and/or immediately following the interview.

Rating Key

– N/ A Not applicabl e , 1 Unsatisfactory, 2 Average, 3 Exceptional

All panel members fully completed the forms except Chief Jost , who wrote comments for most

of the item s but failed to rate many item s

. A fter the forms were tendered
, Lieutenant Rodriguez3 gave e ach panel membe r a sh eet of paper on which to rank the applicants. Jost later

recommended that the District hire Taylor and Tinajero

. When Hadnot was reject ed , he filed a rac e discrimination complaint with the Equal Employment Opportunity Commission (EE OC) , which dism issed the case based on the District’s decision to hire Taylor. He subsequently filed this race discrimination suit against the Dist rict

under the Texas Commission on Human Rights Act (TCHRA)

— C hapter 21 of the Texas Labor

Code

. In his peti tion , Hadnot al leged that (1) Lieutenant Rodriguez accus ed Hadnot and Taylor

of applying in an attempt to “take his job ,” ( 2 ) Rodriguez, Tinajero, a nd Officer Forrest were photographed “partying in Mexico” less than a month before the interview panel was a ssembled, (3) R odrigu ez stacked the interview panel with Tina jero’s friends
, (4) Forrest insisted th e panel select a Spanish

- speaking applicant, (5) the panel ignored Hadnot’s qualifications and experience, (6) Forrest suggested that Hadnot’s and Taylor’s extensive law e nforce ment experience would impede their ability to follow Rodriguez’s instructions, (7) Tinajero was unqualified for the position
, ( 8 ) Taylor assured Rodriguez he had no desire to supervise, (9)

Chief Jost told the panel Hadnot made too muc h money to be c onside red for the position, (10)

the panel made known it would not hire two black applicants , (11) Forrest told the panel she and

Tin ajero were close friends, and (12) Walters told the panel his and Tinajero’s daughter s were
best friends

. The District fi led a no

- evidence and traditional summary judgment motion
, asserting

Hadnot had no evidence that the District’s proffered reasons for hiring Tinajero were a pretext

for race discrimination. It explain ed the hiring decision as follows :

The District selec ted Tay lor and Tinajero based on all of the information gathered during the interview process, including the panel’s overall ranking s of the candidates. Although Tinajero was admittedly less experienced than veteran police officers like H adnot and Taylo r, the pa nel thought Tinajero had a good personality and believed that he would interact well with student s

— qualities that are very important to school

- based police departments. Ultimately, Chief Jost believed that Tinajero was a better fit for the pos ition than H adnot.

In Chief Jost’s attached declaration, he explained his decision to recommend Tinajero as follows :

The evaluation forms provided some information to objectively evaluate and compare the candidates, but the hiring decisio n was not based on the scores alone. After all of the interviews were comple te , Lt

. Rod riguez asked the panel members to rank the candi dates in or der of preference based on their overall impressions of the candidates. This gave the panel the opportuni ty to consider legitimate factors other than a candidate’s scored answers, such as their personality and overall demeanor

.4 . . . .

Based o n the information gathered during the interviews, I recommended to Superintendent Torres that Lufkin ISD hire bot h Jeffrey Taylo r and Gilbert Tinajer o.

. . . . Although Officer Tinajero was not as experienced as Officer Hadnot, several members of the panel noted that he was very likeable and seemed like he would work well with kids. I found Officer Tinajero to be very persona ble, and I believed that h iring him over Officer Hadnot would be in the best interest of the District due to his likely ability to b uild good relationships with students. Personality and demeanor are important aspects of school

- based poli cing because
p olice officers frequently i nte ract with students and their families. Overall, the school environment is very different than most tr aditional law enforcement agencies, and having extensive law enforcement experience does not necessarily me an that a candi date is the best fit for a sc hool district police department.

. . . . I did not consider the race of any of the candidates when I recommended that Lufkin ISD hire Officer Taylor and Officer Tinajero. I have known Mickey Hadnot for seve ral years. His race was not a factor in my dec ision to recommend Officer Taylor and Officer Tinajero.

In response to the District’s motion
, Hadn ot argued that he present ed evidence rais ing genuine fact issue s regarding whether (1) race discrimination m otivated the Di strict’s hiring decision, (2) the District’s preference for bilingual candidates was a pretext for r ace discrimination, and (3) the D istrict’s personal favoritism or “cronyism” is evidence of race
discrimination. Regardi ng whether race disc rimination moti vated the decision, Hadnot noted

t hat Officer Bean was the only black panel member
, asserted without evidence that Bean was

included only at Bean ’s insiste nce , and pr esented evidence that Bean was not yet designated as a panel member as litt le as a week be fore the interviews. 1 Additionall y, alleg ing that discrimination was Chief Jost’s and Lieutenant Rodriguez’s “standard business prac tice
, ” Hadnot

pr esente d evidence that Rodrigu ez coached District Officer Howard McDaniel, a friend of Rodrig uez , and whose race is not evident from the recor d
, for his interview in 2017

. Finally,

Hadnot cit ed evidence that before the July 2019 interviews, Rodriguez told McDaniel that

Hadnot previously filed a grievance regarding his son’s spo rts activities and likely would no t be granted an interview

. Regar ding whether the District’s alleged bilingual preference was a pretext for race

discrimination
, Had not cite d evidence that Officer McDaniel does not speak Spanish and was not

1 Hadnot presented no evidence regarding the timing of the rem a ining panel mem bers’ designation.5 coached by Rodriguez regarding h is Spanish

- spea king status

. Additionally, he cit ed evidence

that bilingualism was not listed as a preference in the job posting and the District fa iled to hire

Hadnot despite his “ polite ” oral Spanish profi ciency. H adnot asserted without evidence that th e
District hire d two nonbilingual officers later in 2019 2 and bilingualism was not listed as a preference in postings until 2021

. Regarding whethe r the District’s cronyism was evidence of race discrimination, Hadnot

contended that Chief Jost and Lieutena nt Rodriguez ma de a standard practice of hiring a pplicants

associated with the “ East Texas Regulator’s Mud Buggy Club ” and “ conspired to hire their good friend Tinajero
, ” who belonged to the club, despite his lack of qualifications. He cited evidence

show ing that Distri ct Officers Tinajero
, Paco Alvarez , and Jacob Bailey were club members and

that “each time an opening has occurred since Rodriguez ha s been lieutenant, one of the opening s is awarded to a member of the East Texas Re gulator’s Mud Buggy Club

. ” Additionally, Hadnot cited evidence that Tinaje ro and Officer Forrest attended Rodriguez’s wedding in Mexico.

F urther regarding cronyism, Hadnot contend ed that Chief Jost attempted to conceal his discrimination by fabricat ing Tinajero’s background chec k and perjur ing himself regarding the background check in his declaration to the trial court

. According to Jost’s “F5R History and Employment Verif ication ” form for Tinajero, Jost contacted Diboll Police Chief Steve Baker, Angelina County Sheriff Greg San ches, Angelina County Chief Deputy Roy Owens , and former Diboll Police Chief Ricky Conner

. However, the evidence showed that n one of the se officers

remembered talking to Jost about Tinajero. Additionally, t he form’s handwritten contact date s
for Baker, S anches, and Owe ns appear partially overwritten an d, according to a handwriting
expert, w ere written originally either as “7/7/2019” and over written as “8/7/2019,” or vice versa.

Based on this evidence , Hadnot believe d that Jost completed Tinajero’s F5R for m on July 7
,

w a rned him about his general dischar ge from the Diboll Police Department , and instructed him

2 District S uperintendent Lynn Torres testified in her deposition that the District hired two additional officers i n 2019. S h e first testified that th e officers were Terry and Alvarez ( a native Spanish speaker )

. Later
, in response to the question of when “Ni ck and G ordon” were hired, Torres answered that “Nick and Alvarez” were hired “later that semester” after Tay lo r and Tinaj ero. Upon further questi oning regarding whether the next officers hired were “Nick and Gordo n ,” she responde d that Gordon was not a District employee, and Nick was a District employee, but the next officers hired were Terry and Alvarez. Hadn ot ’s attorney eventually stated, “I ap ologize. I gave you the name Gordon and Nick as having been the two A nglo guys that succeede d the hiring of

— succeeded the hiring of Tinajero and Taylor. But actually I should have given you the name Jacob Bailey

. ” To rr es responde d, “Right.”6 on measures to change it to an honorable d ischarge. Hadnot argued that the foregoing evidence

indicates the District’s “hiring practices go well beyo nd the scope of a mere personal preference

or ‘cr onyism ’ ” and “ shows that this was a concerted and coordinated effort on the part of Chief

Jost and Lieutenant Rodriguez to use discriminatory hiring practices against extremely qualified applicants of color to hire their f riends who have none of the qualif ications required f or the position.”

T he trial court granted the District’s summary judgment motio n

. Hadnot filed a motion
for new trial, which the court denied. This appeal followed.

S UMMARY J UDGMENT

I n his sole issu e, Hadnot argues that a genuine is sue of material fact regarding race
discrimination in the District’s hiring decision was establishe d by his prima facie case combined

with evidence of the falsity of the District’s explanation , and his case is strengthened by ev idence of his supe rior quali fication level
, violations by the District of its policies and practices during

the interview proce ss , and Rodriguez’s preference for nonblack subordinates from his social

circle.

Standard of Review

We revi ew a trial cour t’s summary judgment de novo. Trav elers Ins. v. Joachim
, 315 S.W.3d 860, 862 (Tex. 2010). A no evidence summary judgment motion must state the elements as to which there is no evidence, but the movant need not produce any proof in support o f its no

eviden ce claim. DeGrate v. Exec. Imprin ts, Inc.
, 261 S.W.3d 403, 407 (Tex. App

. — Tyler 2008, no pet.). The motion is properly granted if t he nonmovant fails to bring forth more than a scintilla of evidence to raise a genuine fact issue as to an e ssential elemen t of his claim for which

he would have the burden of proof at trial. Id. ; see Merrell Dow Pharm., Inc. v. Havner , 953

S.W.2d 706, 71 1 (Tex. 1997). More than a scintilla of evidence exists when the evidence “ rises

to a level that would enab le reasonable a nd fair

- minded people to differ in their conclusions. ”

Merrell Dow , 953 S.W.2d at 711. In contrast, less than a scintilla of evidenc e exists when the

evidence is “ so weak as to do no more than create a mere surmise or suspicion” of a fact.

Kindred v. Con/ Chem, Inc. , 650 S.W.2d 61, 63 (Tex . 1983). A fact issue is genuine if the

evidence is such that a rea sonable jury could return a ver dict for the nonmoving party. Harville v. City of Houston, Mississippi , 945 F.3d 870, 874 (5th Cir. 2019)

.7 To be entitled to a traditional summary judgment
, a defendant must conclusively negate

at least one essential element of each of the plaintiff ’ s ca uses of action or conclusively establish

each element of an affirmative defense. Priddy v. Rawson , 282 S.W. 3d 588, 592 (Te x. App

. — Houston [14th Dist.] 2009, pet. denied). When reviewing a summary judgment, we “must examine the entire record in the light most favorable to the nonmovant, indulging every

reasonable inference and re solving any doubts against the m otion .” City o f Keller v. Wilson , 168

S.W.3d 80 2 , 824 (Tex. 2005). When a trial court’s order granting summary judgment does not specify the groun d or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories ad vanced are meri t orious. S t ate Farm Fire & Cas. C o. v. S.S. , 858
S.W.2d 374, 380 (Tex. 1993)

. When, as here, a party moves for both traditional and no evidence summary judgment, and the determination of the no evidence summary judgment could make the grou nds asserted in
the traditional motion moot, we f irst review the trial court’s ruling under the no evidence

standard of review. See Merriman v. XTD Ener gy, Inc. , 407 S.W.3d 244, 248 (Tex. 2013);

Ford Motor Co. v . Ridgway , 135 S.W.3d 598, 600 (Tex. 2004). If the trial c ourt properly granted the no evide nce motion, we do not consider the complaints raised regarding the traditional summary judgment mot ion. R idgway , 135 S.W.3d at 600. Applicable Law Under the TCHRA, an employer commits an unlawful employment practice if, b ecause
of race, the employer “fail s or refuses to hire an in dividual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment. ” T EX

. L AB

. C O DE A NN

. § 21.051 ( 1 ) (West

2021 ). Generally, “an unlawful employment practice is established when the complainant

demonstrates that r ac e . . . was a motivating factor for an employment practice, even if other factors also motivated the pract ice [.]” Id

. § 2 1.125 (a) (West 2021 ). An excepti on to this rule l ies

where “ race, color, sex, national origin, religion, age, or disability is combi ned with objective job

- related factors to attain diversity in the employer’s work force.” Id. The Texas Le gislature
patte rned the TCHRA after federal law to “provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 an d its s ubsequent amendments.” Quantum Ch e m. Corp. v.

Toennies , 47 S.W.3d 473, 474 (Tex. 2001) ( quoting T EX

. L AB

. C ODE A NN

. § 21.0 0 1 ( 1 ) ).8 Accordingly, Texas courts follow analogous federal precedent for guidance when interpreting the

TCHRA. Id

. at 476.

I n d iscr imin atory treatment cases , the plaintiff has the initial burden to establish a prima

facie case of discrimin ation. Reeves v. Sanderson Plumbing Prods., Inc

. , 530 U.S. 133, 142
, 120 S. Ct. 2097, 2106, 147 L. Ed. 2d 105 (2000) ; Quantum , 47 S.W.3d at 477. T o establish a prima facie case of discriminatory failure to hire, the plaintiff must show that (1) he belong s to a
protecte d class, (2) he applied and was q ualified for a job fo r which the employer was seeking applicants, (3) the employer rejected him desp ite his qualifications, and (4) the employer hired someone outside the protected class or continued to seek applicants with the plaintiff’s qualifications. See McDonnell Douglas Corp. v. Green , 411 U.S.792, 802

- 03, 93 S. Ct. 1817,

1824

- 25, 36 L. Ed. 2d 66 8 (1973) ; Elgahil v. Tarrant Cnty. Junior Coll. , 45 S.W.3d 133, 139 (Tex. App.

— Fort Worth 2000, pet. denied)

. The establis h ment of a prima facie case creat es a

r ebuttable presumption that the employer unlawfully discriminated against the plaintiff

. Tex. Dep’t of Cmty. Affairs v. Burdine , 450 U.S. 248, 25 4 , 101 S. Ct. 1089, 1094, 67 L. Ed. 2d 207 (1981) ; Quantu m , 47 S.W.3d at 477.

When the plaintiff establ ishes a pri ma facie case , the burden shifts to the employer to

articulate some legitimate, nondiscri minatory reason for rejecting the plaintiff. Reeves , 530 U.S.
at 142, 120 S. Ct. at 2106; Quantum , 47 S.W.3 d at 477. The employer’s burden to produce a

le gitimate, nondiscriminatory reason for failing to hire the plaintiff is one of production only, not persuasion. Reeves , 530 U.S. at 142, 120 S. Ct. at 2106; R usso v. Smith Int’l, Inc. , 93 S.W.3d
428, 437

- 38 (Tex. App.

— H ous ton [14th Dist.] 2002, pet. denie d). If the employer carries its burden of production, the presumption of discrimination is

eliminat ed

. Reeves , 530 U.S. at 143, 120 S. Ct. at 2106; Quantum , 47 S.W.3d at 477. T he

burden then shifts back to the plaintiff to offer sufficient evidence to c reate a genuine issue of

material fact that either (1) the employer’s reason is not true and is a pr etext for discrimination
, or (2) the employer’s reason, though true, is but one of the reasons for its decis ion , and anothe r motivating factor is the plaint iff’s protected characteristic. Rachid v. Jack i n the Box, Inc.
, 376 F.3d 305, 312 (5th Cir. 2004); Quantum , 47 S.W.3d at 480

. TCHRA violations may be

established with direct or circumstantial evidence. Alam o Heights Indep . Sch. Dist. v. Clark
, 544 S.W.3d 755, 7 8 1 (Tex. 2018). Whether the evidence is direct or circumstantial, the burden of persuasion a lways remains with the plaintiff. Id. at 782.9 A plaintiff can show pretext through e vidence that the empl oyer’s proffere d reason is false or unworthy of credence. Moss v. BMC Software, Inc. , 610 F.3d 917, 922 (5th Cir. 2010)

. A lternatively, a showing t hat the plaintiff was “clearly better qualified” than the selected applicant m ay suffice to show the employe r’s proffered r eason is pretextual. Id. “The u ltimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination.” Reeves , 530 U.S. at 1 5 3, 120

S. Ct. a t 21 11.

The Dis trict’s Proffered Explanation

C iting Reeves , Hadnot argues that the e vidence shows the District’s proffered explanation

was false a nd that this evidence, combined with his prima facie case, establishes a genuine fact

issue

. See Reeves , 530 U.S. at 147, 1 20 S. Ct. at 2108. He contends h is case is strengthened by

evidence of the District’s misconduct favoring Tinajero during the interv iew process, the disparity between his and Tinajero’s qualifications, and Rodriguez’s preference for nonblac k

subordinates from his social circle.

“Proof t hat the defendant’s explanation is unworthy of credence is one form of

circumstanti al evidence that is probative of intentional discrimination [.]” Id. In appropriate
circumstances, the factfinder can reasona bly infer from the explanation’s falsity that t he employer is concealing a discriminatory purpose. Id. The plaintiff’s prima facie c ase, combined with sufficient evidence that the explanation is false, may permit the factfinder to conclude the employer u nlawfully discr iminated. Id. , 530 U.S. at 148, 120 S. Ct. at 2109. However, such a showing will not sustain a factfinder’s finding of liability i n a case in which no rational factfinder could conclude the action was discriminatory. Id. For instance, a n employer is e ntitled to judgment as a matter of law when the record conclusively reveals some other, nondiscriminatory reason for its decision, or when the plaintiff creates only a weak fact issue regarding the truthfulness of the employe r’s explanation and abundant, u ncontroverted independent eviden ce shows that no discrimination occurred. Id. Whether summary judgment is appropriate depends on nu merous factors, including (1) the strength of the plaintiff’s prima facie case, (2) the probat ive value of t he proof that t he employer’s explanation is fal se, and (3) any other evidence that supports the employer’s case and may be considered on a summary j udgment

motion. Reeves , 530 U.S. at 148

- 49, 120 S. Ct. at 2109.10 Hadnot fails to present any e vidence that the District’s proffered explanation w as false. He erroneously asserts that the District’s proffered explanation for hiring Tinajero was his bilingu al ism and claims the evidence shows (1) bilingualism was not listed on the job posting as a requirement or p reference, (2) any informal preference for bili ngualism was not communicated to the panel or applicants, and (3) the District’s proportion of biling ual employees shows that it has no bilingual prefere nce

. Even if the evidence substantiated these claims, 3 it does not pro ve
the District’s proffered expl anation false

. T he District’s proffered explanation was that it hired Tinajero based not on his

bil ingualism but his personality and perceived ability to interact well with students. Hadnot does not dispute that Tinajero’ s personality is better suited t o the position, and we find no record evidence to the contrary. Although the District made arguments related to the bilingual preference issue, it did n ot assert bilingualism as an explanation. In Hadnot ’s p etition , he all eged

that Forrest insisted the D istrict hire a bilingual applicant. 4 In the District’s summary judgment motion, it argued in respons e to that allegation that even if the trial court assumed Tinajero’s bilingualism influenced the hiring deci sion, it should grant summary judgment because nonbilingual individuals are not a pr otected class. Such an argument does not constitute an
assertio n that the District hired Tinajero because he is bilingual. Accordingly, we cannot agree

that the evidence shows the Distr ict’s explanation is false or un worthy of credence. We conclude that Hadnot’s argument is without merit. Clearly Better Qualified In a parenthetical statement in his brief, Hadnot assert s “ it is undisputed that Hadnot is more qualified than Tinajero ” 5 and “ pretext is already establish ed on that basis al one.”

3 Although the posting does not explicitly assert a bilingual preference, it l i sts “Strong pub lic relatio ns, . . . communicatio n, and interpersonal skills” under “Special Knowledge/Skills.” Other undisputed evidence shows that

ov er forty pe rcent of the District’s s tudents are Hispanic, and most of these students have Spanish

- speaki n g parents and l earned Engli sh in school; each ap plicant was asked about his Spanish

- speaking ability o n the application and at the interviews ; and am on g the panel members, at least Bean k new before the interviews that Spanish proficiency was a hiring pref e rence. Further more, evidenc e that eleven percen t of the District’s teachers and twenty

- three percent of its officers are bilingual, without more, su ch as the num ber of qualified bilingua l applicants, does not show absence of a bilingual preference.

4 H adnot pr esent ed no evidence to support th is alle gation

.

5 C ontrary to Hadnot’s assertion, the District disputes that his qualification level exceed s Tinajero’s. It acknowledges Hadnot’ s greater experience level but cites the job posting’s requirement o f “strong . . . communi cation, and interpersonal skills” and notes that Hadnot’s DPS experience does not render him better11 Elsewhere in his brief, Hadnot asserts that he was “well

- qualified” and “ex perienced” with “29 years of exemplary [DPS] service,” while Tinajero had no full

- time police experience and was
“clearl y unqualified

. ” To the extent Hadn ot’s brief might be construed to argue pretext is shown by evidence that he is “ clearly better qualif ied ” than Tinajero , we cannot agree

. Proof that a plaintiff was clearly better qualified
, as opposed to merely better or as qualified, than the selected employee may be sufficient to prove the employer’s explanation is pretextual

. See Moss , 610 F.3d at 922 ; Tex. Health & Hum. Servs. v. Sepulveda
, 668 S.W.3d
856, 867 (Tex. App

. — El Paso 2023, no pet. )

. “[T] h e bar is set hi gh for this kind of evidence. ”

Moss , 610 F.3d at 923. To show that he was clearly better qualified
, the plaintiff “ must present

evidenc e from which a jury could conclude ‘no reasonable person, in the exercise of impartial judgment, could ha ve chosen the c andidate selected over the plaintif f for the job in question.’”

Id. ( quo ting Deines v. Texas Dep’t of Protective & R egulatory Servs. , 16 4 F.3d 277, 2 8 0

- 81 (5th Cir. 1999)). Unless the qualifications are so disparate that no reasonable emplo yer would

have made the same decision, the dispari ty generally is not probative of discrimination. Id. at

923. “An attempt to equate years served wit h superior qualifications is unpersuasive.” Id. (citation omitted). “Obviously, work experience is one component of de fining who is more qualified, but g reater experience alone will not suffice to raise a fact question as to whether one person is clearly more qualified than another.” Id. (citation omit ted). It is undisputed that Hadnot possessed more law enforcement ex perience than Tina jero, but experie nce was only on e component of qualification for the position. A ccording to the job posting, the pos i tion required a valid peace officer license and basic related knowledge and training
, but full

- time law e nforcement expe rience was “preferred
, ” not require d. Although

Hadnot had more law enforcement experience than Tinajero , both applicants served multipl e years with law enforcement agencies. In addition to the license and training requirements, the positio n required “str ong . . . communication, and interp ersonal skills

. ” Chief Jost stated in his

affidavit that several panel members found Tinajero “very likeable” and believed he would work

well with the District’s students

. Jost also found Tinajero “very pe rsonable ” and b elieved he

would better relate to s tudents than Hadnot. Hadnot presents no evidence to the contrary. We

conclude that Hadnot failed to present evidence from which a jury could conclude no reasonable

qualified to work with stud en ts in a sch ool environment or effect ively communicate with the District’s Spanish speaking population.12 person, in the exercise of impartial judg ment, could hav e chosen Tinajero over him. See i d

. Accordingly, he failed to show he was clearly better qualified for the position. See id.

D istrict’ s Misconduct Even though Hadnot does not a rgue that his evidence of the District’s misconduct alone

rais es a genuine is sue of material fact regarding ra ce discrimination , we review t his evidence to

determine its potential relevance to that ultimate questi on

. See Reeves , 530 U.S. at 153, 120 S.

Ct. at 2111. Hadnot contends that the evidence shows Lieutenant Rodriguez pref ers to hire

nonblack officers who belong to his mud buggy club. He claims that Rodriguez and Chief Jost rigged the interview process to ensure Tinajero , a nonblack club member, was hired. According
to Hadnot, Rodriguez stacked the intervie w panel with me mbers friendly to Tinajero

. He f urther

claims Rodriguez and Jost knew about Tinajero’s general discharge and violated District policy

b y allow ing him to interview. Finally, Hadnot asserts that Rodriguez departed from District practice by a sking the panel members to complete ranking list s in addition to the interview

forms. An employer’s failure to follow its own internal policies and pr actices when taking an adverse employment action can create an inference of pretext. Sepulveda
, 668 S.W. 3d at 872 ;
Dell , Inc. v. Wise , 424 S.W.3d 100, 1 11 (Tex. App.

— Eastland 2013, no pet.)

. The question is

whether the failure to follow policies and prac tices supports an inference that discriminat ion was

a motivat ing factor in the adverse employment action

. See T EX

. L AB

. C ODE A NN

. § 21.125( a) ;
Rachid , 3 76 F.3d at 312; Quantum , 47 S.W.3d at 480 ; Dell , 424 S.W.3d at 111

. Even if the evidence supports all Hadnot ’s misconduct alleg ations
, it raises no genuine

issue of material fact because he fails to present any evidence th at race discrimination was a
moti vating factor in the hiring decision

. See id. In support of his claim that Lieutenant Rodriguez pref ers to hire nonblack officers who belong to his mud buggy club
, Hadnot asserts

the evidence shows Tinajer o was a club mem ber and “very good friend[]” of R odriguez, Rodriguez coach es mud buggy club members for their interviews, the District hires “mostly

me mbers of Rodriguez’s mud buggy club,” and “there are no known black members” of the clu b.

If the evidenc e showed the club intentionally excluded black pe ople from its membership
, it might support an inference of race discrimination , but t he evidence makes no such showing

. To support his assertion that “there are no known black members” of the club, Hadnot

c ites Officer Mc Daniel’s testimony that McDaniel, Tinajero, Lieutenant Rodriguez, Officer13 Jacob Bailey, and Officer Paco Alvarez were club members

. 6 R egarding these officers’ races, we find record evidence only th at Rodriguez and Tinajero are Hispanic and Bailey is white

. We

find no other evidence of t he club’s racial composition, the number of club members
, or any
racial animus associated with the clu b. Evi dence showing that three members of the club were
not black, without more, cannot support an infere n ce that Rodrigu ez’s alleged preference for

club members was race based. We conclude that the evidence of the District’s failure to follow

its policie s and practices does not support an inference that its hiring decision was motivated by

race discriminat i o n

. See T EX

. L A B

. C ODE A NN

. § 21.125( a); Rachid
, 376 F.3d at 312; Quantum
, 47 S.W.3d at 480; Dell , 424 S.W.3d at 111.

Conclusion

We examined the en tire record in the light most favorable to Hadnot, indulging every reasonable inference and resolving any doubts against the District’s motion. See Wilso n , 168

S.W.3d at 824

. While Hadnot might have presented sufficient evidence to suggest t hat the

Distr ict was motivated by cronyism, he failed to present sufficient evidence of racial

discrimination. See Ha r ville , 945 F.3d at 87 7 (nepotism evidence insuff i ci ent to suggest race discrimination) ; Odom v. Frank , 3 F.3d 839, 84 9

- 40 (5th Cir. 1993) ( “ good old b oy network” evidence insufficient)
, abrogated on other grounds by Moss , 610 F.3d 917

. The TCHRA “does

not protect an empl oyee against unfair employment de cisions; instead, it protects against employment decisions based upon discriminatory animus.” Harvill e , 945 F.3d at 878. 7 Because Hadnot failed to present evidence such that a reasonable ju ry could find tha t he was the vic tim of

intentional race discrimin ation, we conclude the trial court properly granted summary judgment.

See Reeves , 530 U.S. at 153, 12 0 S. Ct. at 2111 ; Harville , 945 F.3d at 874

. Accordingly, we

overrule his sole issue.

D ISPOSITION
Havin g overrul ed Hadn ot ’s sole issue, we affirm the tr ial court’s order granting the

District ’s motion for summary judgment

. Hadnot filed a motion to take judicial notice pursuant

6 Hadnot addi tionally claims Officer Forrest w as a member, but McDaniel testif ied s he was not , and we find no contrary e vidence

.

7 The District ’ s changing o f its Interview scoring s ystem in t he middle of the process and Chief Jost ’ s actions , incl uding his failing to disclose Tinajero ’ s general discharge to the other panel members certainly make this a closer call. But , Hadnot failed to create a fa ct issue th at the se actions were con nected to his ra ce

.14 to Texas Rule of Evidence 201. We carried the motion for consideration with the m erits of the

ap peal. After giving the matter du e consideration, we overrule Hadnot’s motion to take judicial

notice.

J AMES T. W ORTHEN Chief Justice

Opinion delivered May 22, 2024. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(PUBLISH)

((

## COURT OF APPEALS

TW ELFTH CO URT OF APPEALS DISTRICT OF TEXAS

J UDGMENT

M AY 22, 2024

NO

. 12-23-00144- CV

MI CK EY M. HADNOT , Appellant V. LUFKIN INDEPENDENT SCHOOL DISTRICT , Appellee

A ppeal from the 159th District Court

of Angelina County, Texas (Tr.Ct.No. CV -00549-19-09)
THIS CAUSE came to be heard on the appellate record
, oral argument
, and briefs fi led herein, and the same being considered, it is the opinion of this court th at there was no error in the judgment.

It i s therefore ORDERED, ADJUDGED and DECREED that the judg ment

of the court below be in all things affirmed , and that all costs of this app eal are her eby adjudged against the appell ant, M ickey M. Hadnot for which execution may issue, and that t his decision

be certif ied to the court below for observance.

J ames T. Worthen, Chief Justice

. Panel consisted of Worthen, C.J., Hoyle, J., and Neele y, J.