1

 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

HAROLD B. CORNISH, §

§

Plaintiff, §

§

v. § Civil Action No. 3:04-CV-0969-K

§

TEXAS DEPARTMENT OF §

PROTECTIVE AND REGULATORY §

SERVICES, ET AL., §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Before the court are Defendants’ Motion for Summary Judgment, filed June 15,

2006, Defendants’ Opposed Motion to Strike Plaintiff’s Response to Defendants’

Motion for Summary Judgment, filed August 30, 2005, and Plaintiff’s Motion for

Leave to File Response to Defendants’ Motion for Summary Judgment Out of Time,

filed September 26, 2005. After review and consideration of the motion, response,

reply, summary judgment evidence, pleadings on file in this case, and the applicable

law, the court has determined that Cornish has not set forth sufficient evidence raising

a genuine issue of material fact on his claims of gender discrimination or retaliation.

Therefore, Defendants’ Motion for Summary Judgment is granted. Plaintiff’s

Motion for Leave to File Response to Defendants’ Motion for Summary Judgment

Out of Time is also granted, and Defendants’ Opposed Motion to Strike Plaintiff’s

Response to Defendants’ Motion for Summary Judgment is denied as moot.

 

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I. Factual and Procedural Background

Plaintiff Harold B. Cornish (“Cornish”) is a 43 year old African-American male.

His educational background includes a high school diploma, an associates’ degree in

Police Science, and a Bachelor of Arts degree with a major in Criminal Justice and a

minor in Social Services. Cornish has spent the majority of his career working as a

police officer for the Dallas Police Department (“DPD”). During part of his tenure

with the DPD, Cornish taught classes at the Dallas Police Academy in subjects

including investigation report writing, investigating cases of sexual assault, child and

adult abuse and neglect, and family violence. He also conducted practical field training

in those subjects. 

The DPD terminated Cornish’s employment in March 1999. Although he

sought reinstatement to his position at the DPD, this effort failed, and Cornish filed

an EEOC charge of discrimination against the DPD. After receiving his right to sue

letter from the EEOC, he sued the DPD for racial discrimination and retaliation. That

case is currently pending.

Individual Defendant John Adamo (“Adamo”) is the Director of Administrative

Legal Services for the Department of Family and Protective Services. Prior to

November 2004, Adamo held the position of Counsel for Employee Relations for the

Department of Family and Protective Services. Until September 1, 2004, and during

the time period relevant to this lawsuit, the Department of Family and Protective

Services was known as the Texas Department of Protective and Regulatory Services

 

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(“TDPRS”). Individual Defendant Stuart Mackie (“Mackie”) was a Human Resources

Specialist for TDPRS until September 2003, when he retired from the agency. 

Defendant TDPRS is a state agency primarily responsible for the regulation and

monitoring of commercial and residential childcare providers. TDPRS has over 6,000

employees, and frequently uses general job announcements for the many entry-level

vacancies it has to fill on an ongoing basis. Multiple candidates who apply for a single

general announcement job posting may be selected. However, candidates who apply

for one general announcement job posting will not be considered for other general

announcement job postings.

TDPRS personnel determines the minimum qualifications for jobs in the

agency. An entry-level child protective services specialist (Child Protective Specialist

II) must have graduated from an accredited four-year college or university. More

experienced positions (Child Protective Specialist III-IV) require previous employment

as a Child Protective Specialist and certification through the TDPRS’s certification

program. Entry-level and experienced adult protective services positions have the same

minimum qualifications, requiring a degree from an accredited four-year college or

university. TDPRS gives preference for hiring in these entry-level positions to

candidates who have a four-year degree in social work, who have formal experience in

social work, who have previous employment experience with TDPRS, or who speak

Spanish.

 

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Candidates for other positions with TDPRS must meet additional requirements.

Applicants for a Case Analyst II position must have a four-year degree plus one year

of full time social services experience. Applicants for director and supervisor positions

must also have considerable experience in social work. In addition to the above hiring

preferences applied by TDPRS, TDPRS has contractual obligations to employ “stipend

students.” Sarah Calloway, one of the comparators cited by Cornish, was hired by

TDPRS as part of a contractual obligation.

When TDPRS has multiple recurring job openings for a single type of job, such

as an entry-level Child Protective Services Specialist, Mackie would interview

applicants for any open position, rather than a single vacant position. After the

interview, the applicant would be scored and placed on a list according to their scores

and any applicable hiring preferences. When a vacancy arose, Mackie selected the top

available candidate from the list for a hiring recommendation. During the relevant

time period, an applicant’s interview score was effective for six months following the

interview. After the expiration of six months from the date of the interview, the

candidate would have to re-apply and receive another interview to be eligible for open

positions with TDPRS.

Cornish began applying for jobs with TDPRS in March 2002. Between March

and October 2002, Cornish applied for 41 jobs with TDPRS. In late April or early

May 2002, Mackie’s office arranged for Cornish to interview for several open entrylevel positions. That interview did not take place as scheduled, and was eventually

 

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rescheduled for July 11, 2002. On July 10, 2002, Cornish learned of a death in his

family, and requested that the interview be rescheduled because he needed to attend

the funeral. Mackie’s office rescheduled the interview for July 17, 2002.

On July 17, 2002, Mackie interviewed Cornish for recurring open entry-level

Child Protective Specialist positions in the Dallas-Fort Worth area. According to

Cornish, Mackie told him during the interview that he was better qualified than most

applicants, who were young and fresh out of college. It is undisputed that Mackie was

aware of Cornish’s EEOC charge against the DPD no later than the date of his

interview with Mackie. During the interview, Cornish and Mackie discussed Cornish’s

experience, Cornish did a practical problem solving exercise, and they discussed

whether Cornish was willing to travel. 

Mackie graded Cornish on his performance, giving him a score of 6.5. Cornish’s

score was below the average score for applicants who are given recommendations for

hire. Cornish did not receive a preference for hiring because he did not have a degree

in social work, did not have any formal social work experience, did not have experience

with TDPRS, and did not speak Spanish. Taking his interview score and lack of hiring

preference into account, Mackie placed Cornish on a list of candidates who were

eligible for hire by TDPRS. Mackie did not recommend Cornish for hire because his

interview score was lower than the average score for candidates who were

recommended, and he did not meet the criteria for a hiring preference. Although he

continued to apply for jobs with TDPRS following his interview, and had about six to

 

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eight interviews with other individuals at TDPRS in 2003, Cornish was never hired by

TDPRS.

On January 24, 2003, Cornish filed a complaint of discrimination with TDPRS.

Under TDPRS policy, applicants may file discrimination complaints with the agency

within 20 business days of the alleged discrimination. Cornish’s complaint did not

allege an act of discrimination within the previous 20 business days, so TDPRS treated

the complaint as untimely and dismissed it. After filing a charge of discrimination

with the EEOC and obtaining a right to sue letter, Cornish brought this case against

TDPRS, Adamo and Mackie, alleging claims of age discrimination in violation of the

Age Discrimination in Employment act, 29 U.S.C. § 621, et seq. (“ADEA”), and gender

discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e, et seq. (“Title VII”). TDPRS, Adamo and Mackie now move for

summary judgment on all of Cornish’s claims.

II. Summary Judgment Standard

Summary judgment is appropriate when the pleadings, affidavits and other

summary judgment evidence show that no genuine issue of material fact exists and the

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex

Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2551 (1986). The moving party

bears the burden of identifying those portions of the record it believes demonstrate the

absence of a genuine issue of material fact. Celotex, 477 U.S. at 322-25, 106 S.Ct. at

2551-54. Once a movant makes a properly supported motion, the burden shifts to the

 

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nonmovant to show that summary judgment should not be granted; the nonmovant

may not rest upon allegations in the pleadings, but must support the response to the

motion with summary judgment evidence showing the existence of a genuine fact issue

for trial. Id. at 321-25, 106 S.Ct. at 2551-54; Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255-57, 106 S.Ct. 2505, 2513-14 (1986). All evidence and reasonable inferences

must be viewed in the light most favorable to the nonmovant. United States v. Diebold,

Inc., 369 U.S. 654, 655, 82 S.Ct. 993 (1962).

III. Defendants’ Motion for Summary Judgment

TDPRS, Adamo and Mackie contend that there is no genuine issue of material

fact presented by the summary judgment record whether Cornish was not hired by

TDPRS because of his age or gender, or whether Defendants retaliated against him.

A. ADEA Claim and Claims Against Adamo and Mackie

In his response to Defendants’ Motion for Summary Judgment, Cornish

concedes that his ADEA claim and his Title VII claims against Adamo and Mackie are

not viable, and states that the only remaining claims he wishes to pursue are his Title

VII discrimination and retaliation claims against TDPRS. Therefore, Cornish’s age

discrimination claims under the ADEA and his Title VII claims against Adamo and

Mackie are dismissed with prejudice.

B. Title VII Claims Against TDPRS

Cornish asserts two Title VII claims against TDPRS. First, Cornish alleges that

TDPRS discriminated against him on account of his gender by not hiring him.

 

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Second, Cornish alleges that TDPRS retaliated against him for filing a charge of

discrimination against the DPD and internal discrimination complaints with TDPRS.

1. Gender Discrimination - Disparate Treatment

Under Title VII, an employer cannot “fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).

Thus, the Title VII inquiry is whether the defendant intentionally discriminated

against the plaintiff based upon one of the factors prohibited by Title VII. Johnson v.

Louisiana, 351 F.3d 616, 621 (5th Cir. 2003), citing United States Postal Service Bd. of

Governors v. Aikens, 460 U.S. 711, 715 (1983). 

Resolution of a Title VII claim depends upon a three-step burden-shifting

analysis. McDonnell Douglas Corp. v. Green, 411 U.S. 793 (1973); Johnson, 351 F.3d

at 621. First, a plaintiff must raise a genuine issue of material fact on each element of

his prima facie case. Johnson, 351 F.3d at 621; Lindsey v. Prive Corp., 987 F.2d 324, 326

(5th Cir. 1993). If the plaintiff successfully articulates a prima facie case, the defendant

must set forth a legitimate, nondiscriminatory reason for the employment decision.

Id. Finally, the plaintiff must raise a genuine issue of material fact whether the

defendant’s nondiscriminatory reason is a pretext for discrimination. Id. 

a. Cornish’s Prima Facie Case

To establish his prima facie case of gender discrimination, Cornish must show

 

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that 1) he is a member of a protected group; 2) he applied for a position with TDPRS;

3) he was qualified for the position when he applied; 4) he was not selected for the

position; and 5) the position remained open or TDPRS selected a female candidate to

fill it. Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1087 (5th Cir. 1994). TDPRS

argues on summary judgment that Cornish has failed to establish a prima facie case of

gender discrimination. 

i. Postings #C-03-02-386 and #C-03-02-387

TDPRS contends that Cornish cannot establish a prima facie case of

discrimination regarding these two Child Protective Specialist openings because he did

not submit timely applications for them. TDPRS has provided competent summary

judgment proof showing that candidates who apply for one general job announcement

posting will not be considered for other general job announcement postings, and that

applicants who do not follow the formal applications procedure for the job posting will

not be hired.

Cornish disputes this contention, relying on conclusory allegations in his

pleading and his affidavit that he did apply for these jobs, but does not show that he

followed TDPRS’s application process for these particular job announcements.

Cornish further relies on an unsupported statement in his brief that TDPRS “should

have” been considered for those openings. Unsupported allegations or affidavits

setting forth ultimate or conclusory facts are insufficient to avoid the entry of summary

judgment. Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see

 

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also Garcia v. LumaCorp., Inc., 429 F.3d 549, 555 (5th Cir. 2005)(unsubstantiated

assertions in affidavits are not competent summary judgment evidence). 

The court further notes that although both of these positions were eventually

filled by female applicants, those applicants were not similarly situated to Cornish

because he was not considered for either of these positions. TDPRS has shown that

there is no genuine issue of material fact whether he applied for these positions.

Because he did not apply, Phillips and Gomez were not hired in his place, and are not

appropriate comparators. Cornish has failed to establish the second and fifth elements

of his prima facie case related to Child Protective Specialist postings #C-03-02-386 and

#C-03-02-387.

ii. Positions Requiring Previous Experience

TDPRS next argues that Cornish has failed to establish a prima facie case of

discrimination regarding 10 additional positions he applied for because he did not

meet the minimum qualifications for those positions. These positions included

supervisor’s positions, a director’s position, a Case Analyst II-IV position, and two

Child Program Specialist III positions. Cornish has set forth no competent summary

judgment evidence showing that he met the minimum qualifications for these jobs.

Thus, the court finds that Cornish has failed to establish a prima facie case of

discrimination with respect to these positions, because he has presented no evidence

to support the third element – that he was qualified for the positions at the time of his

applications.

 

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iii. Other Positions Applied For

Finally, TDPRS states that Cornish has not established a prima facie case of

discrimination regarding any of the other positions he applied for, because he cannot

show that after TDPRS did not hire him, it left the position open or filled it with a

similarly-situated female. 

First, with respect to the Adult Protective Specialist I-IV position, #C-03-02-

430, TDPRS has shown that the position was rescinded before it was filled. Cornish

has presented no summary judgment proof raising a material issue of fact whether that

position was in reality left open or awarded to a female applicant. Therefore, the court

finds that as to this job posting, Cornish has not met the fifth element of his prima facie

case.

Finally, TDPRS argues that for all of the remaining positions he applied for,

Cornish cannot show that after he was not hired, TDPRS left the position open or

filled it with a similarly-situated female. Here, Cornish may compare his situation to

that of nearly identical, similarly situated individuals. Mayberry v. Vought Aircraft Co.,

55 F.3d 1086, 1090 (5th Cir. 1995).

Cornish compares himself to 14 female applicants who were hired by TDPRS.

TDPRS has set forth competent summary judgment proof that seven of the

comparators identified by Cornish applied to TDPRS between July 1992 and June

2001, before Cornish began applying to the agency in March 2002. To establish his

 

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prima facie case, Cornish must show that jobs he applied for were either filled by these

female applicants or left open. Davis, 14 F.3d at 1087. All seven of these applicants

(Robin Rattan, Tammy Porter, Amy Millender, Arlene Womack, Tammie Griffin,

Diana Dupont, and Michelle Galyean) applied to TDPRS before Cornish did, and thus

were not in the same applicant pool as Cornish. For this reason, they are not similarly

situated comparators he can use to support his prima facie case of discrimination.

Cornish has provided no summary judgment evidence raising a material fact issue

whether any of the positions he actually applied for was filled by one of these seven

female applicants. Therefore, evidence that these women were hired by TDPRS and

Cornish was not will not satisfy the fifth element of Cornish’s prima facie case, because

they did not apply for the same jobs as Cornish.

Cornish has also identified Keila Dixon as a similarly situated female who was

hired instead of him. Dixon’s job application shows that she applied for job posting

#C-03-01-867. Cornish has not alleged that he applied for this job, and thus cannot

be considered similarly situated to Dixon for purposes of his prima facie case. Cornish

cannot rely on the hiring of Dixon to show that she received a position he had applied

for, and cannot establish a prima facie case of discrimination based upon Dixon’s hiring.

Finally, with regard to the remaining comparators identified by Cornish, TDPRS

argues that they are not similarly situated to Cornish because they met one or more

criteria used by TDPRS for a hiring preference, or they were hired by TDPRS as part

of a student program. Cornish, Sarita Ghulan, Kelly Plimpton, and Sarah Calloway

 

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all applied for job posting #C-03-01-866. TDPRS has presented summary judgment

proof showing that Ghulan and Plimpton both had degrees in social work, thus

qualifying them for a hiring preference. TDPRS has further shown that Calloway was

hired due to her position as a stipend student. Cornish has presented no evidence

disputing these facts. Thus, it is undisputed that Cornish did not qualify for a hiring

preference under the guidelines actually used by TDPRS, and was not a stipend

student. Therefore, Cornish has not shown that he was similarly situated to Ghulan,

Plimpton or Calloway, and cannot establish a prima facie case based upon their hiring

by TDPRS.

iv. Statistical Evidence

A plaintiff may use statistics to establish a prima facie case of disparate treatment

if a gross disparity in treatment based upon the plaintiff’s protected characteristic is

shown. Anderson v. Douglas & Lomason Co., Inc., 26 F.3d 1277, 1285 (5th Cir. 1994),

cert. denied, 513 U.S. 1149 (1995); Trevino v. Holly Sugar Corp., 811 F.2d 896, 902 (5th

Cir. 1987). However, the court must be able to reasonably infer from the statistics

better actual treatment of similarly situated females in circumstances “nearly identical”

to Cornish’s. Keelan v. Majesco Software, Inc., 407 F.3d 332, 345 (5th Cir. 2005). Such

a showing can be rebutted by the employer by discrediting the plaintiff’s evidence or

providing a non-discriminatory explanation for the apparently discriminatory result.

Anderson, 26 F.3d at 1285.

It is undisputed that the majority of TDPRS’s workforce is female. Cornish

 

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alleges that this statistic supports his allegation that TDPRS discriminated against him

due to his male gender. On summary judgment, TDPRS presents evidence that it

receives significantly more applications for employment from women than from men,

and states that this disparity in applications accounts for the predomination of women

in its workforce. Cornish has failed to demonstrate that the court may reasonably infer

from this statistical disparity that he actually received worse treatment from TDPRS

as compared to similarly situated female applicants in nearly identical circumstances.

Keelan, 407 F.3d at 345. Therefore, the court determines that Cornish has failed to

establish the requisite prima facie case of disparate treatment based upon these

statistical facts.

b. TDPRS’s Legitimate, Non-Discriminatory

Reason

Although Cornish has failed to set forth sufficient summary judgment evidence

to establish a prima facie case of discrimination, the court finds that even if he had done

so, TDPRS has articulated a legitimate, non-discriminatory reason for its failure to hire

him. McDonnell Douglas, 411 U.S. 793; Davis, 14 F.3d 1087-88. TDPRS provides

evidence on summary judgment showing that Cornish had an interview score of 6.5,

and did not meet any of the criteria for a hiring preference. TDPRS’s summary

judgment proof shows that Mackie rarely hired candidates with a score of 6.5 unless

they had a degree in social work, formal social services experience, prior experience

with TDPRS, or spoke Spanish. Cornish did not meet any of these criteria. The court

 

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finds that TDPRS has sufficiently carried its burden of articulating a legitimate, nondiscriminatory reason for its decision not to hire Cornish.

c. Pretext

Finally, because TDPRS has carried its burden of production and successfully

articulated a legitimate, non-discriminatory reason for not hiring Cornish, the burden

of proof shifts back to Cornish to raise a genuine issue of material fact whether

TDPRS’s proffered explanation is pretextual. Davis, 14 F.3d at 1088. With respect

to his interview score, Cornish offers nothing more than speculation that Mackie

somehow rigged the interview to be able to give Cornish a score that just barely failed

to qualify him for a hiring recommendation. Cornish has offered no summary

judgment proof raising a genuine issue of material fact whether Mackie rarely

recommended candidates with a score of 6.5 (Cornish’s score) for hire, unless they

qualified for a hiring preference. To raise a genuine issue of material fact regarding

pretext, Cornish must show that TDPRS treated him less favorably than female

applicants in “nearly identical” circumstances. Bryant v. Compass Group USA Inc., 413

F.3d 471, 478 (5th Cir. 2005), cert. denied, 126 S. Ct. 1027 (2006); Okoye v. Univ. of

Tex. Houston Health Sci. Ctr., 245 F.3d 507, 514 (5th Cir. 2001). 

Instead, Cornish argues that subjectively, Mackie should have considered him

more qualified than the other candidates who applied for the same jobs (based upon

a ranking system created by Cornish, rather than the criteria that were actually

applied) and given him a hiring preference for formal social work experience when in

 

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fact he had none. Cornish has failed to show that under the criteria actually employed

by Mackie, he, as a male, was treated worse than female applicants under “nearly

identical” circumstances, and thus cannot raise a fact issue regarding pretext. Bryant,

413 F.3d at 478; Okoye, 245 F.3d at 514. 

Moreover, it is well established that employment discrimination laws are not

intended to be a vehicle for transforming the courts into personnel managers who

second-guess the business decisions of employers. Bryant, 413 F.3d at 478; Bienkowski

v. American Airlines, Inc., 851 F.2d 1503, 1507-08 (5th Cir. 1988). Management does

not have to make proper decisions, only non-discriminatory ones. Bryant, 413 F.3d

at 478, citing Little v. Republic Refining Co., 924 F.2d 93, 97 (5th Cir. 1991). 

Here, even if the court were to assume (which it does not) that Mackie’s

decision not to hire Cornish was unwise from a business standpoint, and that Cornish

was passed over in favor of less qualified individuals, Cornish has pointed to no

evidence suggesting that Mackie’s decision was motivated by discriminatory animus.

Therefore, Cornish has failed to carry his summary judgment burden on the issue of

pretext. In the end, Cornish’s allegations amount to no more than his subjective belief

that TDPRS engaged in discrimination. Such a subjective belief, however genuine, will

not permit Cornish to avoid summary judgment. Lawrence v. University of Texas Medical

Branch at Galveston, 163 F.3d 309, 313 (5th Cir. 1999). For all of the above reasons,

Cornish’s disparate treatment claim of gender discrimination must be dismissed. 

2. Gender Discrimination - Disparate Impact

 

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Cornish also brings his claims of gender discrimination based upon a disparate

impact theory. The disparate impact model applies to discrimination claims regarding

employment practices that are facially neutral in their treatment of different groups,

but in fact impact one group more harshly than another, and cannot be justified by

business necessity. Anderson, 26 F.3d at 1284. Although subjective or discretionary

employment practices may be challenged on a disparate impact theory, the use of such

subjective or discretionary decision-making does not itself create an inference of

discriminatory conduct. Id., citing Watson v. Fort Worth Bank & Trust, 487 U.S. 977,

990, 999 (1988).

To establish a disparate impact claim, a plaintiff must identify as part of his

prima facie case a facially neutral policy or practice used by the employer that

disproportionately impacts one group over others. Frank v. Xerox Corp., 347 F.3d 130,

135 (5th Cir. 2003); Anderson, 26 F.3d at 1284. TDRPRS argues on summary

judgment that Cornish has failed to identify a policy or practice it uses that causes a

disparate impact upon male applicants. The court agrees. Cornish’s response on this

issue merely cites to statistics showing that TDPRS’s workforce is overwhelmingly

female. He has presented no evidence showing that any otherwise neutral TDPRS

hiring policy causes this gender imbalance, as required by applicable law. See Anderson,

26 F.3d at 1284, citing Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 657-58 (1989)

(imbalanced workforce, standing alone, did not justify analysis of case under disparate

impact model where plaintiffs did not identify a specific policy which caused the

 

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imbalance or demonstrate how that policy or practice resulted in the disparity). 

Cornish’s case can fairly be described as a wide-ranging attack on TDPRS’s

hiring practices. The disparate impact model is not the appropriate vehicle for such

an attack. Anderson, 26 F.3d at 1284; Pouncy v. Prudential Ins. Co., 668 F.2d 795, 800

(5th Cir. 1982). Thus, TDPRS is entitled to summary judgment on Cornish’s disparate

impact claim of gender discrimination.

3. Retaliation Claim

Title VII prohibits retaliation against employees who engage in protected

conduct, such as filing a complaint of discrimination. 42 U.S.C. § 2000e-3(a); Perez

v. Region 20 Education Svc. Ctr., 307 F.3d 318, 325 (5th Cir. 2002). Cornish alleges that

TDPRS retaliated against him because it did not hire him due to his charge of

discrimination arising out of his termination from the DPD. TDPRS moves for

summary judgment on this claim.

To establish a prima facie case of retaliation, Cornish must show that 1) he

engaged in an activity protected by Title VII; 2) he was subjected to an adverse

employment action; and 3) that a causal link exists between the protected activity and

the adverse employment action. Perez, 307 F.3d at 325; Davis v. Dallas Area Rapid

Transit, 383 F.3d 309, 319 (5th Cir. 2004). The first two elements of Cornish’s prima

facie case are undisputed - that he engaged in protected activity and was subjected to

an adverse employment action. TDPRS argues that Cornish cannot make a prima facie

showing of a causal link between his protected activity and TDPRS’s decision not to

 

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hire him. However, it is also undisputed that Mackie knew about Cornish’s EEOC

charge against the DPD at the time of Cornish’s interview and before his hiring

decision. This evidence is sufficient to establish, for prima facie purposes, the third

requirement of a causal link between Cornish’s protected activity and the adverse

employment action. See Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001)

(employee met “causal link” element of prima facie case of retaliation by demonstrating

that employer knew of his protected activity when adverse employment action was

taken); Carballo v. Log Cabin Smokehouse, 399 F. Supp.2d 715, 724 (M.D. La. 2005)

(same). 

Because Cornish has established a prima facie case of retaliation, the burden

shifts to TDPRS to present proof of a legitimate, nonretaliatory purpose for its

decision not to hire Cornish. Davis, 383 F.3d at 319. To do so, TDPRS cites to its

evidence that Cornish’s interview score was below the average score of candidates

recommended for hire, and that he did not qualify for a hiring preference under

TDPRS’s applicable criteria. The court thus finds that TDPRS has successfully carried

its burden of setting forth evidence of a legitimate non-retaliatory reason for its

decision. The burden now shifts back to Cornish to show that TDPRS’s proffered

reasons for its failure to hire him are actually a pretext for retaliation. Medina, 238

F.3d at 685; Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998).

To meet this burden, Cornish must demonstrate that he would have been hired

“but for” engaging in protected activity. Medina, 238 F.3d at 685; Sherrod, 132 F.3d

 

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at 1123. While this portion of the analysis may seem identical to the “causal link”

step of the prima facie case, the burden here is more stringent. Medina, 238 F.3d at

685; McMillan v. Rust College, Inc., 710 F.2d 1112, 1116-1117 (5th Cir. 1983). To

withstand summary judgment, Cornish must reveal “a conflict in the substantial

evidence on the ultimate issue of retaliation.” Sherrod, 132 F.3d at 1122.

To show retaliatory purpose Cornish relies solely on an e-mail from Adamo to

other TDPRS officials regarding the discrimination complaint that Cornish filed with

TDPRS. Adamo’s e-mail summarizes Cornish’s allegations and states that it should

be dismissed as untimely. Nothing in the e-mail refers directly to the reasons for

TDPRS’s decision not to hire Cornish, and it cannot be inferred from the e-mail that

“but for” his protected activity, Cornish would have had a job with TDPRS. Although

it is undisputed that Mackie, the decision-maker, was aware of Cornish’s protected

activity when he did not recommend him for hire, the e-mail from Adamo does not

appear to have been sent to Mackie, and does not reference Mackie or his decision not

to recommend Cornish for hire. The court cannot infer retaliatory intent from

Adamo’s e-mail, and does not find that this proof meets the “stringent” standard of 

“but for” causation here. Accordingly, the court will enter summary judgment for

TDPRS on Cornish’s retaliation claim.

IV. Defendants’ Opposed Motion to Strike Plaintiff’s Response to

Defendants’ Motion for Summary Judgment; Plaintiff’s Motion for

Leave to File Response to Defendants’ Motion for Summary

 

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21

Judgment Out of Time

TDPRS moves to strike Cornish’s response to its summary judgment motion

because the response was filed six days late. In response, Cornish has moved for leave

of court to file his response out of time. The court finds that it reaches the same

conclusion regarding TDPRS’s summary judgment motion whether or not Cornish’s

response is considered. Therefore, Plaintiff’s Motion for Leave to File Response to

Defendants’ Motion for Summary Judgment Out of time is granted, and Defendants’

Opposed Motion to Strike Plaintiff’s Response to Defendants’ Motion for Summary

Judgment is denied as moot.

V. Conclusion

For the reasons stated herein, Defendants’ Motion for Summary Judgment is

granted, and Plaintiff Cornish’s claims are hereby dismissed with prejudice.

Judgment will be entered by separate document. 

SO ORDERED. 

 Signed March 29th , 2006.

 s/Ed Kinkeade 

ED KINKEADE

UNITED STATES DISTRICT JUDGE

 

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