* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-11235

Summary Calendar

ANTHONY TODD JOSEPH

Plaintiff - Appellant

v.

THE CITY OF DALLAS; THE CITY OF DALLAS POLICE DEPARTMENT;

DAVID KUNKEL, Dallas Chief of Police; LIEUTENANT CRAIG MILLER,

Dallas Police Officer, Badge Number 4653; DETECTIVE NICHOLAS

WINGO, Dallas Police Officer, Badge Number 6645; DETECTIVE STACY

WARD, Dallas Police Officer, Badge Number 5302

Defendants - Appellees

Appeal from the United States District Court 

for the Northern District of Texas, Dallas

No. 3:06-CV-1563

Before KING, DAVIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Plaintiff-appellant Anthony Todd Joseph appeals the district court’s

summary judgment dismissing his discrimination claim under the Age

Discrimination in Employment Act. Because we agree with the district court

United States Court of Appeals

Fifth Circuit

F I L E D

May 6, 2008

Charles R. Fulbruge III

Clerk
No. 07-11235

2

that defendants-appellees offered a legitimate, nondiscriminatory reason for not

hiring Joseph, and Joseph did not provide sufficient evidence of pretext, we

affirm.

I. BACKGROUND

In the spring of 2006, when AnthonyTodd Joseph was forty-nine years old,

he attended a job fair at which he met a recruiting team from the Dallas Police

Department (the “DPD”). Joseph told the recruiters his age and asked if it

would be an impediment if he applied to become an officer. The recruiters

assured him that there was no age requirement and encouraged him to apply.

Excited by the prospect, Joseph applied.

Joseph passed the firstfive oftwelve steps in the DPD application process,

including a preliminary interview, a civil service test, a physical fitness test, a

pre-polygraph examination, and a polygraph examination. On May 26, 2006,

Joseph participated in the sixth step, an interview by three officers comprising

the so-called Applicant Interview Board (the “AIB”). The AIB interview was

conducted by DPD Officers Craig Miller, Nicholas Wingo, and Stacy Ward.

Joseph was asked to complete a number of tasks, including writing two essays,

and memorizing and repeating police procedures. In addition, Joseph was asked

to orally explain how he would respond to hypothetical police scenarios, namely:

(1) a hit-and-run auto accident; (2) an ambush while patrolling; and (3) a hostage

situation involving a rape victim. To assist him with the hypothetical scenarios,

he was provided with instructions and police protocols. This portion of the AIB

interview was intended to be stressful and intense. Indeed, Joseph described his

interview as “fairly intense,” with panel members “trying to rattle and hurry

[him].”

Each AIB member individually evaluated Joseph on the following criteria:

(1) ability to follow directions; (2) adaptability/flexibility; (3) decision

making/situational reasoning ability; (4) reaction to pressure; (5) interpersonal
No. 07-11235

3

skills; (6) appearance/bearing; (7) oral communication skills; and (8) writing

skills. Officers Miller, Wingo and Ward scored Joseph on each criteria on a scale

of 1.00 to 5.00. Scores of 3.00 and above were passing. A candidate’s final,

overall AIB score was calculated by averaging all twenty-four scores.

Collectively, Officers Miller, Wingo, and Ward gave Joseph a failing score

of 2.74. Joseph received an overall passing score of 3.00 from Officer Miller.

However, Officers Wingo and Ward both gave Joseph an overall failing score of

2.62. All three officers gave Joseph passing scores for “appearance/bearing.”

However, all three failed Joseph in the “adaptability/flexibility” category and

Officers Wingo and Ward failed Joseph in the “decision making/substantial

reasoning ability” category. On Joseph’s AIB interview form signed by all of the

officers, the officers noted that Joseph was “unable to logically process

information.”

After each panel member’s scores were calculated, Joseph was informed

that he had failed the AIB examination and that he would not be allowed to

continue in the hiring process. The AIB members discussed with Joseph the

reasons for his failure and gave him an opportunity to ask questions. The

following day, on May 25, 2006, Joseph sent an email to the recruiting section

of the DPD. In his email, Joseph acknowledged that he had made mistakes in

his responses to the hypothetical police scenarios. He also asked for guidance

as to the proper answers so that he could improve in future interviews. The

DPD never responded.

On August 29, 2006, Joseph filed a three-count complaint against the City

of Dallas (the “City”), the DPD, David Kunkel, the Dallas Chief of Police, and

Officers Miller, Wingo, and Ward. Joseph claimed that the DPD failed to hire

him as a result of his age and brought claims under: (1) the Age Discrimination

in Employment Act (“ADEA”); (2) Title VII of the Civil Rights Act of 1964 (“Title

VII”); and (3) 42 U.S.C. § 1983. On February 27, 2007, the defendants moved for
No. 07-11235

4

summary judgment. Because one of the grounds for the motion was the

individual defendants’ qualified immunity defense, the defendants triggered a

provision in the district court’s scheduling order automatically staying discovery,

except with respect to qualified immunity issues.

On November 6, 2007, the district court granted the defendants summary

judgment on all of Joseph’s claims. The district court held that Joseph could not

recover for age discrimination: (1) under Title VII because Title VII does not

provide a cause of action for age discrimination; (2) under 42 U.S.C. § 1983

because the ADEA preempts § 1983 age discrimination claims; (3) against the

individual defendants because the ADEA does not allow claims against

supervisory employees in their individual capacities; or (4) against the DPD

because the DPD is not a legal entity amenable to suit. In addition, the district

court held that Joseph could not recover for age discrimination against the City

because, even assuming Joseph could make out a prima facie case of

discrimination, the City stated a legitimate, nondiscriminatory reason for its

decision—Joseph’s alleged poor responses to the hypothetical police scenarios

and his inability to logically process information—and Joseph failed to offer

sufficient evidence that the reason was pretextual.

On November 29, 2007, Joseph filed a timely appeal. Joseph argues that

the district court’s order in favor of the City was in error because: (1) the City

did not provide a legitimate, nondiscriminatory basis for failing him; and (2) he

presented sufficient evidence to establish that the City’s putative reason for

failing him was a mere pretext for discriminatory animus. Joseph does not take

issue with the remainder of the district court’s specific holdings. However,

Joseph contends that the district court’s order should be set aside because he

was unable to conduct discovery as a result of the automatic stay imposed by the

district court’s scheduling order.
No. 07-11235

5

II. DISCUSSION

A.

We review a grant of summary judgment de novo, viewing allthe evidence

in the light most favorable to the nonmoving party and drawing all reasonable

inferences in that party’s favor. See Crawford v. Formosa Plastics Corp., 234

F.3d 899, 902 (5th Cir. 2000) (citations omitted). “Summary judgment is proper

when the evidence reflects no genuine issues of material fact and the nonmovant is entitled to judgment as a matter of law.” Id. (citing Fed. R. Civ. P.

56(c)). “A genuine issue of material fact exists ‘if the evidence is such that a

reasonable jury could return a verdict for the non-moving party.’” Id. (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

The ADEA makes it unlawful for an employer “to fail or refuse to hire . . .

any individual . . . because of such individual’s age . . . .” 29 U.S.C. § 623(a)(1).

A plaintiff may prove age discrimination through either direct or circumstantial

evidence. Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002)

(citation omitted). “Direct evidence is evidence that, if believed, proves the fact

of discriminatory animus withoutinference or presumption.” Id. at 897 (citation

omitted); see also Palasota v. Haggar Clothing Co., 342 F.3d 569, 576 (5th Cir.

2003) (citation omitted) (“To qualify as direct evidence, a document must be (1)

age related, (2) proximate in time to the termination, (3) made by an individual

with authority over the termination, and (4) related to the employment

decision.”). Here, however, Joseph does not appear to argue that he has direct

evidence of discrimination. Nor do we believe that any of the evidence he offered

indicates discriminatory intent without inference or presumption.

When a plaintiff relies only on circumstantial evidence of age

discrimination to prove his case, courts apply the three-part McDonnell Douglas

burden-shifting framework. Patrick v. Ridge, 394 F.3d 311, 315 n.10 (5th Cir.

2004) (citation omitted). First, the plaintiff must establish a prime facie case of
No. 07-11235

6

discrimination. Id. (citations omitted). To establish a prima facie case for

discriminatory failure to hire under the ADEA, the plaintiff must show that (1)

he was over the age of forty at the time he was not selected; (2) he was qualified

for the position he sought; (3) he was not selected; and (4) either (a) a candidate

outside his protected class was hired, (b) someone younger was hired, or (c) he

was otherwise not selected because of his age. See McClaren v. Morrison Mgmt.

Specialists, Inc., 420 F.3d 457, 462 (5th Cir. 2005) (citations omitted) (setting

forth the elements for discriminatory failure to hire under the substantively

identical Texas Commission on Human Rights Act); see also Berquist v. Wash.

Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007) (citations omitted) (setting forth a

prima facie case under the ADEA for discriminatory discharge). If the

requirements for a prima facie case of discrimination are established, a

rebuttable presumption arises that the employer unlawfully discriminated

against the plaintiff. Patrick, 394 F.3d at 315 (citation omitted).

To rebut the presumption of discrimination created by the plaintiff’s prima

facie case, the employer must articulate a legitimate, nondiscriminatory reason

for its decision not to hire. See id. (citation omitted). The employer bears only

the burden of production at this stage and, therefore, it “need not prove that it

was actually motivated by its proffered reason.” Id. (citation omitted);

Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 958 (5th Cir. 1993) (“The employer

need only articulate a lawful reason, regardless of what its persuasiveness may

or may not be.”). Thus, courts must avoid making any “credibility

determinations at this stage because ‘the burden-of-production determination

necessarily precedes the credibility-assessment stage.’” Bodenheimer, 5 F.3d at

958 (emphasis in the original) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S.

502, 509 (1993)).

Finally, if the employer meets its burden of production, “the presumption

of discrimination created by the prima facie case disappears, and the plaintiff is
No. 07-11235

1 Nor does Joseph attemptto prove thatthe City’s legitimate, nondiscriminatory reason

for not hiring him was only one of the reasons for its decision.

7

left with the ultimate burden of proving discrimination.” Sandstad, 309 F.3d at

897 (citing St. Mary’s Honor Ctr., 509 U.S. at 511-12). To survive summary

judgment, “the plaintiff must then offer sufficient evidence to create a genuine

issue of material fact either (1) that the defendant’s reason is not true, but is

instead a pretext for discrimination (pretext alternative); or (2) that the

defendant’s reason, while true, is only one of the reasons for its conduct, and

another ‘motivating factor’ is the plaintiff’s protected characteristic (mixedmotive[s] alternative.).” Berquist, 500 F.3d at 356 (citing Rachid v. Jack In The

Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)).

In the instant case, the parties dispute whether Joseph presented

adequate summary judgment evidence to establish a prima facie case of

discrimination. But as the district court also stated in its well-reasoned opinion,

we need not consider this issue because the City articulated a legitimate,

nondiscriminatory basis for the decision and Joseph has not shown that it was

a pretext for discrimination.1 See Evans v. City of Houston, 246 F.3d 344, 355

(5th Cir. 2001) (“[W]e need not address the issue whether the district court erred

in finding that [the plaintiff] had not satisfied the prima facie showings for

discrimination . . . because even if she had . . . we find that [the plaintiff] has

produced no substantial evidence to support her contention that the

[defendant’s] legitimate nondiscriminatory justification for her demotion was,

in fact, a pretext for racial or age discrimination.”).

The City offers as a legitimate, nondiscriminatory reason for its decision

not to hire Joseph his failing scores from his AIB interview. More specifically,

the City contends that Joseph gave poor answers to the hypothetical police

scenarios and seemed unable to logically process information. Joseph argues in

response that the City’s proffered explanation was not a sufficiently “clear and
No. 07-11235

2 Joseph also argues that the City did not articulate a legitimate, nondiscriminatory

reason because: (1) the AIB members’ opinion lacked credibility; and (2) Officer Miller

contradicted his individual passing score by signing the final AIB Evaluation Summary,

wherein it was recorded that Joseph lacked the ability to logically process information. These

arguments fail, however, because the City only bears the burden of production at this stage

and we do not make any credibility determinations. See Bodenheimer, 5 F.3d at 958 (citation

omitted).

8

reasonably specific” explanation of its decision under Alvarado v. Tex. Rangers,

492 F.3d 605 (5th Cir. 2007).2

In Alvarado, the defendant attempted to justify its decision not to hire the

plaintiff by noting that the scores the plaintiff received from a panel assessing

her interview performance were lower than the scores received by the applicants

actually hired. Id. at 616-17. The court rejected this basis as inadequate

because the defendants offered neither an explanation ofthe scores nor evidence

of how or why the interviewers arrived at the scores. Id. at 617. The court

recognized that “[a]n employer’s subjective reason for not selecting a candidate,

such as a subjective assessment of the candidate’s performance in an interview,

may serve as a legitimate, nondiscriminatory reason for the candidate’s nonselection.” Id. at 616 (citation omitted). But it held that “[s]uch a reason will

satisfy the employer’s burden of production . . . only if the employer articulates

a clear and reasonably specific basis for its subjective assessment.” Id. (citation

omitted). Without some indication of the factual basis or specific reasons for the

plaintiff’s interview score, “the score [said] nothing about whether her nonselection for the Rangers was the product of sex discrimination.” Id. Indeed, the

plaintiff’s score was “at least as consistent with discriminatory intent as it[was]

with nondiscriminatory intent because [the plaintiff] may well have received the

relatively low interview score on account of her sex.” Id. (citation and internal

quotations omitted).

We agree with the district court that the City satisfied the criteria set

forth in Alvarado because it provided a “clear and reasonably specific basis for
No. 07-11235

9

its subjective assessment,” namely that Joseph provided poor answers to the

hypothetical police scenarios and seemed unable to logically process information.

This is simply not a case where the defendant relies on nothing more than a

unexplained interview score that might be consistent with discriminatory intent.

Indeed, whereas in Alvarado the defendant did not provide the court with

interview comments or notes, the City submitted the evaluation form from

Joseph’s AIB interview, which stated that Joseph’s interview performance was

unacceptable because he was “unable to logically process information.” In

addition, Officers Wingo and Ward provided affidavits explaining why they gave

Joseph failing scores. Officer Wingo stated that he “felt Mr. Joseph gave poor

answers to the police scenarios and demonstrated an inability to logically process

information.” Similarly, Officer Ward stated that she “gave Mr. Joseph the tools

necessary to analyze the police scenarios and provide logical answers to them.

He did not do so.”

Moreover, we agree with the district court that Joseph failed to offer

sufficient evidence to create a genuine issue of material fact that the City’s

stated reason for not hiring him was a mere pretext for discrimination. See

Berquist, 500 F.3d at 356 (citation omitted). In order to demonstrate pretext,

Joseph introduced evidence that: (1) Officer Miller made comments about his

age during the AIB interview; and (2) between August 2005 and August 2006

applicants to the DPD over the age of forty were hired at a lower rate than

applicants under forty. In addition, Joseph provided the opinion of an “expert”

that he should have received a higher score for his “appearance/bearing” during

the interview, and his own opinion that he was qualified for the position and

performed well during the interview process. We shall discuss each point

separately.

First, we recognize that there is a dispute over whether Officer Miller

made age-based comments during the AIB interview. Joseph stated that when
No. 07-11235

10

he was responding to the AIB’s third hypothetical scenario—a scenario during

which a kidnapper is holding a gun to a rape victim’s head—Officer Miller

screamed at him: “Come on, what’s your forty-nine year old ass gonna do now?”

and “Come on Mr. forty-niner, whats you gonna do?” Also, at another point,

Joseph claims that Officer Miller asked whether at any time in his forty-nine

years Joseph had the opportunity to participate in a “ride along” with a police

officer. By contrast, Officers Miller, Wingo, and Ward all deny that Officer

Miller made any age-based comments.

Nevertheless, the dispute does not concern a material issue of fact. See

Shackelford v. Deloitte & Touche,LLP, 190F.3d 398, 405 (5th Cir. 1999) (holding

that although there was a dispute of fact as to whether the plaintiff performed

badly or was to blame for disputes with fellow employees, summary judgment

was appropriate because the remaining evidence of discrimination was too

speculative). As the district court noted, Joseph’s own affidavit places some of

the alleged comments in a context such that they could be interpreted as

nondiscriminatory statements intended to “rattle and hurry” Joseph during the

interview. See Berquist, 500 F.3d at 352 (“Based on [the plaintiff’s] personal

impression of the statement, we decline to characterize this comment as

anything more than a comment unrelated to an unlawful discriminatory

animus.”). To illustrate, Joseph also alleged that during the second scenario

Officer Miller yelled at him to “[c]ome on, what are you going to do, come on,

come on[,]” and them mocked him by stating that “[o]h, we have a lawyer here,

oh Mr. Lawyer, Mr. Paralegal . . . .” More importantly, however, it is undisputed

that Officer Miller gave Joseph a passing score. As such, even if true, there is

no evidence that Officer Miller’s comments were “related to” the City’s decision

not to hire Joseph. See Manning v. Chevron Chem. Co., 332 F.3d 874, 882 (5th

Cir. 2003) (citation omitted).
No. 07-11235

11

Second, Joseph’s statistical evidence—between August 2005 and August

2006 applicants to the DPD over the age of forty were hired at a lower rate than

younger applicants—does not create a genuine issue of material fact because it

lacks any factual link to Joseph. In Walther v. Lone Star Gas Co., 977 F.2d 161,

162 (5th Cir. 1992) (citation omitted) (emphasis added), this court explained

that: 

gross statistical disparities . . . may be probative of

discriminatory intent, motive or purpose. Such

statistics might in an unusual case provide adequate

circumstantial evidence that an individual employee

was discharged as part of a larger pattern of layoffs

targeting older employees. This is not to say that such

statistics are enough to rebut a valid, nondiscriminatory

reason for discharging a particular employee.

Generally, they are not. . . . [P]roof of pretext, hence of

discriminatory intent, by statistics alone would be a

challenging endeavor.

Elsewhere, we found that a statistical analysis that did not purport to analyze

the facts surrounding the circumstances of the individual at issue was

“impotent” to establish whether an employer’s stated reasons were pretextual.

EEOC v. Tex. Instruments Inc., 100 F.3d 1173, 1185 (5th Cir. 1996).

Here, Joseph has merely provided raw numbers. He has not shown that

these numbers can only be explained by discriminatory animus because he has

not purported to control for factors such as the applicants’ ability to pass the

physical fitness examination, the applicants’ qualifications, or any other

potential variable. Nor has Joseph sought to demonstrate how these statistics

apply to his individual case. See Sandstad, 309 F.3d at 900 (holding that, even

ifthe court could infer age-based animus,the plaintiff could notlink that general

animus to his own termination). Indeed, Joseph’s statistics demonstrate that

applicants over the age of forty were hired by the City. Compare Keelan v.

Majesco Software, Inc., 407 F.3d 332, 345-46 (5th Cir. 2005) (citation omitted)
No. 07-11235

12

(“Being a majority Indian company did not prevent [the defendant] from also

firing Indians for nonperformance in sales.”). As such, the statistics do not

establish pretext in Joseph’s specific case.

Finally,the opinions of Joseph and his expert do not create a genuine issue

of fact. Joseph’s expert opined, based on photographs of Joseph and other

applicants on the day oftheir interviews,that Joseph deserved the highest score

possible for his “appearance/bearing” because he was dressed more

professionally than applicants receiving high scores. Joseph himself, meanwhile,

stated that he performed very well during the AIB interview and that the AIB

members were mistaken about his alleged inability to logically process

information. Whether true or not, neither subjective opinion can defeat the

imposition of summary judgment precisely because itis a subjective opinion. See

Evans, 246 F.3d at 355 (citation omitted) (“Thus, [the plaintiff] cannot survive

summary judgment merely because she disagrees with the [defendant’s]

characterization of her disciplinary history . . . .”); Shackelford, 190 F.3d at 408

(citation omitted) (holding that a plaintiff may not survive summary judgment

merely by disputing the defendant’s assessment of his performance); Wright v.

W. Elec. Co., 664 F.2d 959, 965 (5th Cir. 1981) (holding that an unsuccessful

applicant could not create a fact issue by personally disagreeing with an

interviewer’s assessment of his performance). “The ADEA cannot protect older

employees from erroneous or even arbitrary personnel decisions, but only from

those decisions which are unlawfully motivated.” Bienkowski v. Am. Airlines,

Inc., 851 F.2d 1503, 1507-08 (5th Cir. 1988) (citation omitted).

B. 

If a party cannot adequately defend a motion for summary judgment

because he has not had sufficient time to conduct discovery, he must move for

a continuance under Rule 56(f) of the Federal Rules of Civil Procedure. Potter

v. Delta Air Lines, Inc., 98 F.3d 881, 887 (5th Cir. 1996). If a district court
No. 07-11235

13

precludes further discovery before granting summary judgment, we review its

decision for an abuse of discretion. Resolution Trust Corp. v. Sharif-MunirDavidson Dev. Corp., 992 F.2d 1398, 1401 (5th Cir. 1993) (citations omitted). “If

it reasonably appears that further discovery would not produce evidence creating

a genuine issue of material fact, the district court’s preclusion of further

discovery prior to entering summary judgmentis not an abuse of discretion.” Id.

(citations omitted).

Here, Joseph argues that the district court should not have granted

summary judgment because he stated in his response to the defendants’ motion

for summary judgment that he “has had no time to conduct discovery other than

for qualified immunity per the scheduling order.” The City responds that the

entire issue is waived because Joseph filed neither a motion under Rule 56(f) nor

an affidavit stating why discovery had not been completed, what further

discovery was proposed, and how that discovery would enable the nonmovant to

oppose summary judgment. See id. at 1403 n.5 (citation omitted). Moreover, the

City stresses that the case was pending for six months before the automatic stay

of discovery was imposed, and that during this time Joseph propounded

interrogatories and requests for production on the defendants.

We are not generally inclined to impose a literal interpretation of Rule

56(f) upon pro se litigants. See Haines v. Kerner, 404 U.S. 519, 520 (1972)

(holding that pleadings filed by pro se litigants are to be held to less stringent

standards than pleadings filed by lawyers); Int’l Shortstop, Inc. v. Rally’s, Inc.,

939 F.2d 1257, 1266-67 (5th Cir. 1991) (noting that courts are willing to accept

something less than a formal Rule 56(f) request from litigants). However, at a

minimum, a party must show: (1) why he needs additional discovery; and (2)

how that discovery would create a fact issue that would defeat summary

judgment. See Stearns Airport Equip. Co. v. FMC Corp., 170 F.3d 518, 535 (5th

Cir. 1999) (citation omitted). Joseph did not do so below. See Potter, 98 F.3d at
No. 07-11235

14

887 (“Some discovery was permitted. If [the plaintiff] needed more discovery in

order to defeat summary judgment, it was up to her to move for a continuance

pursuant to rule 56(f).”). Moreover, it does not reasonably appear that further

discovery would produce evidence creating a genuine issue of material fact. See

Resolution Trust Corp., 992 F.2d at 1401. Thus, the district court did not abuse

its discretion.

III. CONCLUSION

For the reasons stated above, we AFFIRM the district court’s judgment.