IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-41085

JONATHAN ADAMS THOMAS, 

 Plaintiff - Appellant

v.

JEH JOHNSON, Department of Homeland Security, 

 Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Texas

Before REAVLEY, OWEN, HIGGINSON, Circuit Judges.

REAVLEY, Circuit Judge:

This case involves a Title VII claim arising out of Appellant Jonathan 

Adams Thomas’s termination from his position with the Department of 

Homeland Security as a probationary Border Patrol Agent. The district court 

granted summary judgment in favor of the government, Thomas’s employer, 

and we affirm.

Thomas was a probationary Border Patrol agent with the Department of 

Homeland Security. On April 13, 2010, Thomas and his partner diverted from 

their assigned patrol area to visit a Border Patrol checkpoint (“the 

Checkpoint”). Thomas did not ask his partner why they were straying from 

the assigned area, and his partner did not tell him. That day at the 

United States Court of Appeals

Fifth Circuit

FILED

June 2, 2015

Lyle W. Cayce

Clerk

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No. 14-41085

Checkpoint, a pair of brand new recruits were subjected to brief but intensive 

workouts that resulted in injuries. There was a question about the probability 

that the recruits had been subjected to objectionable hazing. Accordingly, all 

Border Patrol agents at the Checkpoint that day were required to submit 

memoranda addressing the incident. In pertinent part, Thomas wrote: 

When we arrived at the checkpoint, I was introduced to the new 

interns and then went inside to check my government email. I did 

not witness and [was] unaware of anything that went on outside of 

the checkpoint.

Video evidence showed Thomas had not been in the Checkpoint building

long enough to check his e-mail and a subsequent forensic scan provided 

corroborating, but not conclusive, evidence that he had not checked his e-mail. 

Additionally, the injured probationary agents, or interns, told investigators 

that an African American agent had needled one of them about certain tattoos

and suggested they indicated gang affiliation. Thomas was the only African 

American agent at the Checkpoint that day, and he was therefore investigated 

for possible lack of candor and racist statements. 

Thomas was suspended from active duty during the investigation, 

whereupon he elected to submit a second, unsolicited memorandum that 

repeated the version of his conduct as in the first memorandum and described 

his own PT experiences upon first entering service as a Border Patrol agent. 

After ICE investigators concluded that no criminal conduct had occurred at the 

Checkpoint, Thomas’s case was transferred to Internal Affairs and assigned to 

John Berent. Berent interviewed Thomas, who told him the previously 

submitted memoranda were “factually accurate” but clarified that while he had 

originally “decided to” check his e-mail, he then “decided not to” after entering 

the building and realizing no one was there. Berent “closed” his investigation 

with a report favorable to Thomas. He reported that neither of the interns had 

identified Thomas in a photo line-up and that both testified to a belief that the 

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comments regarding tattoos were not racially motivated. Further, the report 

indicated Thomas had “provided additional information to address the candor 

concern.”

Notwithstanding the favorable report, Thomas’s supervisor, Chief 

Rosendo Hinojosa terminated Thomas’s employment on October 25, 2010 for 

“lack of candor.” Chief Hinojosa found Thomas’ assertion that he knew nothing 

of the physical training exercises “nothing short of incredible” and further 

found his “assertion that [he] responded to the checkpoint without knowing a 

reason for leaving [his] assigned position in the field [] incredible.” He also 

noted how Thomas’ story had shifted with respect to the original claim that he 

had checked his e-mail during the time of the physical training. 

After exhausting his remedies with the EEOC, Thomas filed this lawsuit 

alleging he had been unlawfully terminated because of his race and color. The 

government moved for summary judgment. Reasoning that Thomas had 

shown no evidence that the given reason for his termination, lack of candor, 

was pretextual, the district court granted the motion. Thomas appealed.

“We review a district court’s grant or denial of summary judgment de 

novo, applying the same standard as the district court.” Robinson v. Orient 

Marine Co., 505 F.3d 364, 365 (5th Cir. 2007). 

A plaintiff lacking direct evidence of race- or color-based discrimination 

may yet prevail in a Title VII case by providing circumstantial evidence 

sufficient to raise an inference of discrimination. See McCoy v. City of 

Shreveport, 492 F.3d 551, 556 (5th Cir. 2007). In such cases, courts apply the 

McDonnell Douglas burden-shifting framework. See id. (citing McDonnell 

Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973)).

Under this framework, the plaintiff must make a prima facie showing of 

discrimination. Id. Once the showing is made, a presumption of 

discrimination arises, and the employer must “articulate a legitimate, non3

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discriminatory reason” for the adverse employment action. See id. at 557. The 

burden then shifts back to the plaintiff, who must show the articulated reason 

is pretextual. Id. 

We will assume, as the district court found, that Thomas carried his 

initial burden of establishing a prima facie case of discrimination. See Britt v. 

Grocers Supp. Co., 978 F.2d 1441, 1450 (5th Cir. 1992). Based on Chief 

Hinojosa’s termination letter citing “lack of candor,” the government has

asserted a legitimate, non-discriminatory reason for Thomas’s termination. 

See Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (5th Cir. 2011). 

“A plaintiff may establish pretext either through evidence of disparate 

treatment or by showing that the employer’s proffered explanation is false or 

‘unworthy of credence.’” Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003). 

Thomas argues that the given reason for his termination (lack of candor) is 

false or unworthy of credence because he was, strictly speaking, truthful at all 

times. He also argues he has presented evidence of disparate treatment.

Thomas argues that the factual dispute over whether he actually lacked 

candor necessarily means he has shown pretext. This argument is foreclosed. 

See Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995) (“The 

question is not whether an employer made an erroneous decision; it is whether 

the decision was made with discriminatory motive.”). Thomas was required to 

show not only that the determination was wrong, but also that it was reached 

in bad faith. See Waggoner v. City of Garland, Tex., 987 F.2d 1160, 1166 (5th 

Cir. 1993). He has not done so.

Further, there is no evidence of disparate treatment. Thomas contends 

that the other probationary Border Patrol agents who were present at the 

Checkpoint on April 13, and who participated in the physical training 

exercises, also lacked candor, either because they misidentified him or because 

they gave accounts inconsistent in varying ways. This is not evidence of 

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pretext. A misidentification is not a lack of candor and inconsistent stories can 

be the product of different recollections or experiences. Thomas was the only 

probationary Border Patrol agent who gave an easily falsifiable story that was 

seemingly falsified and was the only agent that changed and refined his story—

emphasizing a trip “inside” when it seems to give him an alibi regarding what 

happened “outside,” then explaining away as insubstantial the entire 

substance of his initial memo when questioned further. Even more, Thomas 

was the only probationary Border Patrol agent who was thought to have been 

involved in the physical training incident and not as a participant. The conduct 

of the other probationary Border Patrol agents was not “nearly identical” and 

does not provide a basis for finding disparate treatment. See Vaughn, 665 F.3d 

at 637. Significantly, Thomas admits that one of the other probationary Border 

Patrol agents was also terminated by Chief Hinojosa for lack of candor 

regarding an unrelated topic, which cuts against Thomas’s claim that lack of 

candor was merely pretext with respect to his termination.

Finally, Thomas asserts that he was similarly situated to permanent

Border Patrol agents who were present at the Checkpoint on April 13 and who, 

like Thomas, denied knowing anything about the hazing incident. As a matter 

of law, Thomas (an intern) is not similarly situated with permanent Border 

Patrol agents. The D.C. Circuit has “held that [federal] probationary 

employees and permanent employees are not similarly situated,” because 

“under federal regulations, probationary employees may be terminated for 

problems even if those problems would not be good cause for terminating a 

permanent employee.” George v. Leavitt, 407 F.3d 405, 415 (D.C. Cir. 

2005). Our own unpublished cases are in accord. Lewis v. Jefferson Parish 

Hosp. Serv. Dist. No. 2, 562 F.App’x 209, 212 (5th Cir. 2014) (finding employees 

not similarly situated where one was fired during her “probationary period” 

and the permanent employee had different job responsibilities); Jones v. Am.

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Airlines, Inc., 100 F.3d 953 (5th Cir. 1996) (per curiam) (“The non-probationary 

employees to whom [plaintiff] points were not similarly situated because they 

were protected by collective bargaining agreements, they had different 

supervisors, and they had different employment records.”). Other Circuits 

agree. See Green v. New Mexico, 420 F.3d 1189, 1195 (10th Cir. 2005) (finding 

employees not similarly situated where, among other things, the asserted 

comparators were not probationary employees); Steinhauer v. DeGolier, 359 

F.3d 481, 484–85 (7th Cir. 2004) (“Purifoy and Steinhauer were not similarly 

situated because Steinhauer was still on probation while Purifoy was 

not.”); Bogren v. Minnesota, 236 F.3d 399, 405 (8th Cir. 2000) (“[T]roopers 

beyond the probationary period are not similarly situated to a probationary 

trooper.”); Blanding v. Pennsylvania State Police, 12 F.3d 1303, 1309–10 (3d 

Cir. 1993) (“Probationary troopers have traditionally been terminated more 

readily . . . than non-probationary troopers.”).

It is undisputed that Thomas was a probationary employee entitled to 

less procedural protections and a different disciplinary scheme than 

permanent employees. Chief Hinojosa testified that, when dealing with 

probationary employees, “just about any disciplinary action would lead to [] 

termination.” Moreover, the Code of Federal Regulations provides 

probationary employees such as Thomas “shall” be “terminate[d]” if the intern 

“fails to demonstrate fully his qualifications for continued employment.” 5 

C.F.R. § 315.803. The difference between the Border Patrol agents’

employment status accounts for their difference in treatment, and they are not 

similarly situated. See Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 260 (5th 

Cir. 2009).

The district court’s grant of summary judgment is AFFIRMED.

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