D. Thomas v. Francis Harvey , 393 F. App'x 182 ( 2010 )

Case: 09-50877 Document: 00511214498 Page: 1 Date Filed: 08/25/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 25, 2010
No. 09-50877 Lyle W. Cayce
Clerk
D. LLOYD THOMAS,
Plaintiff–Appellant Cross-Appellee
v.
PETE GEREN,
Defendant–Appellee Cross-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 6:06-CV-248
Before JONES, Chief Judge, PRADO, Circuit Judge, and OZERDEN * , District
Judge.
PER CURIAM:**
Appellant D. Lloyd Thomas was the Acting Clinical Director of the Army
Substance Abuse Program (“ASAP”)1 Clinic at the Darnall Army Community
*
District Judge, Southern District of Mississippi, sitting by designation.
**
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
1
ASAP was previously known as the Alcohol and Drug Abuse Prevention and Control
Program (“ADAPCP”) and is also called the Substance Abuse Rehabilitation Department
(“SARD”). For the sake of simplicity, we refer to it only as ASAP.
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Hospital (“DACH”) in Fort Hood, Texas. Thomas filed an EEO (“Equal
Employment Opportunity”) complaint, alleging, inter alia, retaliation for his
removal as Acting Clinical Director and for his nonselection for a subsequent
Acting Clinical Director opening. Now, Thomas argues that the district court
erred in granting summary judgment in favor of the Secretary of the Army as to
Thomas’s retaliation claims, and the Secretary argues that the district court
erred in denying his cross-claim. We find that the district court correctly
granted summary judgment as to both of Thomas’s claims and correctly denied
the Secretary’s cross-claim. Accordingly, we AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
Thomas worked as a GS-180-111 Counseling Psychologist at the Fort Hood
ASAP. Thomas has a master’s degree in Divinity, Family Studies, and
Counseling Psychology. At all relevant times, Thomas was licensed by the state
of Texas as a Licensed Professional Counselor (“LPC”), Licensed Chemical
Dependency Counselor (“LCDC”), Licensed Marriage and Family Therapist
(“LMFT”), and Licensed Master Social Worker (“LMSW”). Although Thomas was
licensed as an LMSW, Thomas did not have an advanced degree in social work
and had acquired his license through grandfathering rather than by
examination. Because Thomas had not passed Texas’s licensing examination,
he was able to practice as a supervised employee, but would not have been
permitted to open his own practice.
Thomas assisted the former Clinical Director, Tom Williams, in filing a
complaint with the Equal Employment Opportunity Commission (“EEOC”).
Thomas helped Williams research and develop his EEO complaint and was listed
1
The term “GS-180-11” identifies Thomas’s federal position and pay grade. “GS”
stands for “General Schedule,” which is “the basic pay schedule” for federal positions. 5 U.S.C.
§ 5104. This schedule “is divided into grades of difficulty and responsibility of work,” ranging
from 1 to 15; “11” was the grade for Thomas’s position. Id. “180” identifies Thomas’s position
as that of a Counseling Psychologist.
2
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as a witness in the complaint. Williams’s complaint, like Thomas’s, was
predicated on the Army’s assertion that he was not sufficiently qualified for his
current position. A negotiated resolution was reached in Williams’s case, and
Williams retired in June 2002.
Williams recommended Thomas as his replacement, and Thomas
volunteered for the position. Accordingly, in June 2002 Colonel Wayne Schirner,
Deputy Commander, Clinical Services (“DCCS”) of DACH, selected Thomas to
be the Acting Clinical Director of the Fort Hood ASAP.
In July 2002, Dr. Wanda Kuehr, the ASAP Manager with the U.S. Army
Medical Command (“MEDCOM”), made a site visit to the Fort Hood ASAP
Clinic.2 During this visit, Thomas told Kuehr that he helped Williams with his
EEO complaint.
Two days later, Kuehr met with Schirner and Colonel Donald J. Kasperik,
Hospital Commander. Kuehr told Schirner and Kasperik that Thomas did not
meet the degree and licensure requirements to be Acting Clinical Director.
Kuehr recommended that Schirner and Kasperik find a GS-13 Ph.D. licensed
psychologist to be the Clinical Director of the Fort Hood ASAP. In the
meantime, Kuehr recommended that Schirner and Kasperik replace Thomas
with Cheryl Laws, a GS-11 Substance Abuse Counselor at the Fort Hood ASAP,
because Laws was the only ASAP employee who met the heightened minimum
requirements of an advanced license in social work or a license in psychology
plus program management experience.
Seeking a second opinion, Kasperik asked Michael Sabolek, the Clinical
Director of the ASAP at Redstone Arsenal, Alabama, to visit the Fort Hood
ASAP. In August 2002, Sabolek filed his trip report, which stated that Thomas
2
Army Regulation (“AR”) 600-85 requires periodic reviews of ASAPs nationwide. While
no one from the Fort Hood ASAP asked Kuehr to visit, it was not improper for her to visit on
her own initiative.
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should be replaced by a properly licensed and qualified candidate as soon as
possible. However, the evidence indicates that Sabolek did not perform an
independent review of Thomas’s qualifications: Sabolek cautioned that “[i]t
should be noted that the Six-Sided Folders3 (credentialing and licensure,
information) was [sic] not accessed, since an in depth review was recently
conducted by Colonel [Susan] Fox from MEDCOM. That report is pending.”
Instead, Sabolek seemed to base his recommendation not on Thomas’s
insufficient qualifications but on his perceived leadership failures, including the
inadequacy of regular opportunities for staff members to meet with Thomas and
discuss issues that affected their work, a lack of peer review, a lack of
monitoring and clinical evaluation, a lack of training, insufficient or incorrect
information about licensure requirements and job security, and overall low staff
morale.
Colonel Fox also reviewed the Fort Hood ASAP in August 2002. Unlike
Sabolek, the evidence indicates that Fox did perform an independent review of
Thomas’s qualifications. Fox stated that “[a] review of the previous clinical
director4 files indicated that he did not meet the MEDCOM requirement for
ASAP clinical director.” Like Sabolek and Kuehr, Fox recommended that a new
Clinical Director be found immediately. Also like Sabolek and Kuehr, Fox stated
that “Laws should be placed as the interim director until such time as a
promotion from within is made or a clinical director who meets all requirements
3
Although neither party defines “six-sided folders,” it seems that this term refers to
personnel files that include degree, licensure, and employment histories.
4
We note that Fox’s curious language, “the previous clinical director,” could refer to
Williams instead of Thomas. At this point, Williams was “the previous clinical director,” while
Thomas was the Acting Clinical Director and had not yet been removed from this position.
However, because Fox was asked to review Thomas’s qualifications, and we can think of no
reason for her to be reviewing Williams’s qualifications post-departure, we conclude that she
most likely was referring to Thomas. At the same time, we also note that our ultimate
disposition does not depend on this conclusion.
4
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can be hired.” At the same time, Fox seemed to rely, at least in part, on Kuehr’s
findings: Fox explained that her review was “subsequent to . . . a staff assistance
visit by the MEDCOM ASAP Manager and was to be based on those findings as
well as the request to identify areas of compliance with [relevant] standards.”
Schirner removed Thomas from the Acting Clinical Director position in
August 2002. Schirner based his decision on Kuehr’s assertion that Thomas was
not qualified for the Acting Clinical Director position because he was deficient
in degree and license requirements; and Sabolek’s report, which according to
Schirner confirmed that Thomas “did not have the qualifications to be the
clinical director.” Schirner did not mention Fox’s report as a factor in his
decision. In fact, Schirner stated that his decision was based on only “two
reports.”
In September 2002, Schirner detailed Laws to serve as Acting Clinical
Director of the Fort Hood ASAP for not more than 120 days. In January 2003,
DACH listed an opening for a GS-180-12 Supervisory Counseling Psychologist
to serve as Acting Clinical Director of the Fort Hood ASAP for not more than one
year, until a permanent GS-13 Clinical Director could be hired. The opening was
posted on Resumix, the Army-wide resume program. Once an employee posts
his resume on Resumix, that employee automatically is considered for any open
position for which he is qualified, via a system called the Inventory Based
Referral System (“IBRS”). Thomas maintained his resume on Resumix with
directions to submit his resume for all GS-180 positions at Fort Hood, under the
IBRS.
Schirner considered two applicants for the Acting Clinical Director
position, Laws and an individual in Germany. Schirner did not consider Thomas
for the position. In March 2003, Schirner selected Laws, in part because she was
already essentially performing the relevant duties. She was temporarily
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promoted from GS-11 to GS-12 and served as Acting Clinical Director until April
2004.
During this time, Thomas remained employed as a Counseling
Psychologist at the Fort Hood ASAP. Not surprisingly, Thomas and Laws’s
relationship deteriorated. Laws appointed Whyllis Byrd, rather than Thomas,
to be the backup Clinical Director when Laws was not present; filed a Violence
in the Workplace complaint against Thomas, stating that she and other staff
members felt intimidated by Thomas; asserted that Thomas questioned Byrd
and an instructor about their qualifications, fell asleep in class, and did not turn
in leave slips; and gave Thomas a “counseling statement” which expressed her
concern that he failed to add a fourth “evaluation appointment” to his schedule.5
After Laws resigned, Pam Seidler, another Clinical Psychologist, GS-180-
11 in the ASAP Clinic, served as Acting Clinical Director from April through
August 2004. It is undisputed that Seidler was less qualified for the position
than Thomas. In her affidavit, Seidler stated that during this time she “was
never licensed as [an LMSW],” although Thomas “was licensed as [an LMSW],
which made him more qualified than me.” Seidler averred that “[a]t no time
while I was Acting Clinical Director . . . did I possess that level of license now
asserted by the [Secretary] as being necessary for qualification for the position.”
Thomas submitted an EEO complaint, alleging ten claims of retaliation,
including his removal as Acting Clinical Director in August 2002 and his
nonselection for the subsequent Acting Clinical Director position in March 2003.
After a hearing, the AJ found for the Secretary as to Thomas’s claims for
retaliation for removal as Acting Clinical Director and later nonselection as
5
The record does not say exactly what a “counseling statement” is or what adding a
“fourth evaluation appointment” means. We infer that a counseling statement is a workplace
notice or reprimand, and that adding a fourth evaluation appointment is some sort of
increased workload requirement which employees were required to undertake.
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Acting Clinical Director. However, the AJ found that Laws was at least partially
motivated by discriminatory motives for some of her actions against Thomas.6
Because Laws was at least partially motivated by discriminatory motives, the
AJ awarded attorney’s fees to Thomas in the amount of $7570.28; and ordered
that a notice be posted at DACH for at least sixty days informing employees that
a Title VII violation had occurred.
Thomas sought review in the district court of two claims: his claim for
retaliation for removal as Acting Clinical Director, and his claim for retaliation
for nonselection for the subsequent Acting Clinical Director position. The
Secretary cross-claimed, arguing that Thomas’s appeal required across-the-board
de novo review, so that if the district court found for the Secretary as to
Thomas’s retaliation claims, it should also return to the Secretary the attorney’s
fees that the AJ had awarded to Thomas. The district court granted summary
judgment in favor of the Secretary on Thomas’s claims but rejected the
Secretary’s counterclaim for repayment of attorney’s fees. Thomas appealed,
and the Secretary cross-claimed for repayment of attorney’s fees.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over the parties’ appeals of the district court’s order
under 28 U.S.C. § 1291. We review de novo the district court’s award of
summary judgment, applying the same standard as the district court. Ford
Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 498 (5th Cir. 2001). Summary
judgment is proper when “the pleadings, the discovery and disclosure materials
on file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.” F ED. R.
C IV. P. 56(c). “A genuine issue of material fact exists when the evidence is such
6
The claims based on these specific actions are not at issue in this appeal, except to the
extent they affect the award of attorney’s fees.
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that a reasonable jury could return a verdict for the non-moving party.” Gates
v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 417 (5th Cir. 2008)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
III. ANALYSIS
In employment discrimination cases, we apply a burden-shifting analysis.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973). First, the
plaintiff must establish a prima facie case. Id. at 802. To establish a prima facie
case of retaliation, “a plaintiff must show that (1) she participated in a Title VII
protected activity, (2) she suffered an adverse employment action by her
employer, and (3) there is a causal connection between the protected activity and
the adverse action.” Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 331 (5th
Cir. 2009) (citing Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 484 (5th Cir.
2008)). Summary judgment is appropriate if the plaintiff cannot support all
three elements. Hunt v. Rapides Healthcare Sys. LLC, 277 F.3d 757, 769 (5th
Cir. 2001).
An adverse employment action is one that “a reasonable employee would
have found . . . [to be] materially adverse, which in this context means it well
might have dissuaded a reasonable worker from making or supporting a charge
of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006) (quotation marks omitted). The standard for establishing a causal link
is relatively low. Long v. Eastfield College, 88 F.3d 300, 305 n.4 (5th Cir. 1996).
To satisfy this standard, a “plaintiff need not prove that her protected activity
was the sole factor motivating the employer’s challenged decision.” Id.Once a plaintiff establishes a prima facie case, the burden shifts to the
defendant to articulate a legitimate, nonretaliatory reason for the challenged
employment action. McDonnell Douglas, 411 U.S. at 802–03. If the defendant
succeeds in doing so, then the burden shifts back to the plaintiff to show that the
defendant’s reason is a pretext for retaliation. McCoy v. City of Shreveport, 492
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F.3d 551, 557 (5th Cir. 2007). To carry this burden, the plaintiff must rebut each
nonretaliatory reason articulated by the employer. Laxton v. Gap, Inc., 333 F.3d
572, 578 (5th Cir. 2003). When “the essential facts asserted by each of the
parties are not in dispute,” this final shift “may be expressed more appropriately
as one of showing that ‘but for’ the protected activity, the termination would not
have occurred, notwithstanding the other reasons advanced by the defendant.”
McMillan v. Rust College, Inc., 710 F.2d 1112, 1116 (5th Cir. 1983).
A. The District Court Did Not Err in Granting Summary Judgment
in Favor of the Secretary on Thomas’s Claim for Retaliation for
Removal as Acting Clinical Director
The Secretary argues that Thomas fails to establish a prima facie case of
retaliation for removal as Acting Clinical Director, because three independent
reports recommended his removal and because the undisputed facts establish
that he was not qualified for the position. We disagree. However, we find that
Thomas fails to demonstrate a genuine issue as to whether the Secretary’s non-
discriminatory motive was pretextual, because the Army’s guidelines clearly
showed that Thomas was not qualified for the Acting Clinical Director position.
Accordingly, we find that the district court did not err in granting summary
judgment on this claim.
It is undisputed that Thomas aided Williams in his EEO complaint, and
that this was a protected activity. Thus, Thomas satisfies the first element of
his prima facie case. Also, it is undisputed that Thomas was removed from the
Acting Clinical Director position, and that this was an adverse employment
action. Thus, Thomas also satisfies the second element of his prima facie case.
The parties dispute the third element: whether there is a causal
connection between the protected activity and the adverse employment action.
Kuehr recommended Thomas’s removal two days after he told her that he
participated in Williams’s complaint. “‘Close timing between an employee’s
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protected activity and an adverse action against [him] may provide the ‘causal
connection’ required to make out a prima facie case of retaliation.’” Evans v. City
of Houston, 246 F.3d 344, 354 (5th Cir. 2001) (quoting Swanson v. Gen. Servs.
Admin., 110 F.3d 1180, 1188 (5th Cir. 1997)). In fact, “a time lapse of up to four
months has been found sufficient to satisfy the causal connection for summary
judgment purposes.” Id. (quotation omitted). Here, the two-day time lapse
clearly is sufficient. Even if we were to measure the time lapse as starting when
Thomas told Kuehr of his EEO activity and ending when Schirner actually
removed Thomas, instead of starting when Thomas told Kuehr of his EEO
activity and ending when Kuehr advised Schirner to remove Thomas, the lapse
would still be only two months, significantly less than the period in Evans.
The Secretary argues that no causal connection exists because it is
undisputed that neither Sabolek, nor Fox, nor Schirner knew of Thomas’s EEO
activity. The Secretary reasons that because three independent reports (filed by
Kuehr, Sabolek, and Fox) recommended Thomas’s removal, and because
Schirner ultimately removed Thomas, Thomas would have been removed
regardless of Kuehr’s “tainted” report, and there is no causal connection between
Thomas’s EEO activity and his removal. At first, this argument seems powerful,
if not dispositive. In fact, this argument carried great weight with both the AJ
and the district court. However, on closer review of the record we cannot say
that there is no genuine issue as to whether Schirner based his decision to
remove Thomas on reports that were truly independent of Kuehr’s report.
The evidence indicates that Sabolek did not perform an independent
review of Thomas’s qualifications; instead, he bypassed this issue, noting that
“an in depth review was recently conducted by Colonel M. Fox from MEDCOM,”
and that this report was “pending.” Sabolek based his recommendation not on
Thomas’s qualifications, but on his performance as Acting Clinical Director.
Sabolek observed that Thomas provided inadequate regular opportunities for
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staff members to discuss issues that affected their work; that Thomas provided
insufficient peer review, monitoring and clinical evaluation, training, and
information about licensure requirements and job security; and that staff morale
was consequently very low. For these reasons, Sabolek recommended that
Thomas be removed as Acting Clinical Director.
At any rate, the Secretary does not argue that Thomas was properly
removed because of inadequate job performance, which would almost certainly
be a factual issue not appropriate for summary disposition. Instead, the
Secretary relies on the argument that Thomas was not sufficiently qualified.
Because Sabolek’s report does not provide an independent review of Thomas’s
qualifications, Schirner could not have relied on Sabolek’s report as an
independent source in reaching the conclusion that Thomas was not qualified to
serve as Acting Clinical Director.
Next, the Secretary argues that Fox independently evaluated Thomas’s
credentials and found them lacking. Unlike Sabolek, the evidence indicates that
Fox did perform an independent review. After reviewing Thomas’s file, Fox
concluded “that he did not meet the MEDCOM requirement for ASAP clinical
director.” Although Fox used the term “the previous clinical director” rather
than referring to Thomas (who was the Acting Clinical Director at the time) by
name, the most logical conclusion is that she was describing Thomas. And
although she seemed to rely at least to some extent on Kuehr’s findings when
she noted that her review was “subsequent to . . . a staff assistance visit by
[Kuehr] and was to be based on those findings,” on balance it seems that Fox’s
actual review of Thomas’s qualifications was independent of Kuehr’s findings.
Thus, we conclude that Fox independently evaluated Thomas’s credentials and
concluded that he was not qualified to serve as Acting Clinical Director.
Of course, our determination that Fox reached her conclusion independent
of Kuehr’s report does not in and of itself have any bearing on our decision in
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this case. We must perform a second step: we must determine whether Schirner
relied on Fox’s report in reaching the decision to remove Thomas. We conclude
that he did not.
Schirner explains that he relied on “two reports” when making his decision
to remove Thomas. Schirner mentions Kuehr and Sabolek’s reports by name.
He does not mention Fox’s report at all. Accordingly, it seems that he did not
rely on Fox’s report.7 While Schirner believed that Sabolek’s report confirmed
Kuehr’s assertion that Thomas “did not have the qualifications to be the clinical
director,” we have already explained that Sabolek did not make an independent
determination on this point.
There is at least a genuine issue as to whether Schirner, in deciding to
remove Thomas, relied on any independent determination other than that
provided by Kuehr. Accordingly, the fact that Schirner himself did not know of
Thomas’s protected activity does not mean that his decision could not have been
“tainted” by Kuehr’s knowledge of Thomas’s EEO activity. We conclude that
there is at least a genuine issue as to whether Thomas’s EEO activity led, at
least in part, to his removal. In doing so, we keep in mind that the standard for
establishing a causal link is relatively low and that a “plaintiff need not prove
that her protected activity was the sole factor motivating the employer’s
challenged decision.” Long, 88 F.3d at 305 n.4. Thus, Thomas satisfies the third
element of his prima facie case.
The burden shifts to the Secretary to articulate a legitimate non-
discriminatory reason for the adverse employment action. The Secretary’s
primary argument is that Thomas did not possess the requisite degree and
7
We note that Fox’s report was “pending” at the time Sabolek drafted his report;
perhaps Fox had not yet completed her report at the time Schirner made the decision to
remove Thomas.
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licensure requirements for the position. This is a sufficient articulation of a
legitimate non-discriminatory reason.
The burden shifts back to Thomas to demonstrate that the Secretary’s non-
discriminatory reason is pretextual. Thomas offers two arguments in favor of
pretext. Thomas’s first argument is that he did possess the requisite degree
and licensure requirements. In making this argument, Thomas tries to
distinguish between the ARs and the Army’s related memoranda. Thomas’s
second argument is that the Army followed the degree and licensure
requirements on an irregular, case-by-case basis, implying if not overtly stating
that the Army used these requirements to get rid of employees that it wanted to
remove and overlooked the requirements to retain employees that it wanted to
keep. To support this argument, Thomas points to the subsequent appointments
of Laws, and later Seidler, as Acting Clinical Director. We address each of
Thomas’s arguments in turn.
Thomas’s first argument is that he actually was qualified for the Acting
Clinical Director position. To evaluate this argument, we must review the
licensure requirements for the ASAP; to do this, we must first look to the
broader licensure requirements for healthcare providers in the armed services
generally. The licensure requirement for the provision of healthcare within the
military is established by federal statute: “A person under the jurisdiction of the
Secretary of a military department may not provide health care independently
as a health-care professional under this chapter unless the person has a current
license to provide such care.” 10 U.S.C. § 1094(a)(1). The statute includes
clinical psychologists under the umbrella term “health-care professional.” Id.§ 1094(e)(2).
The military’s hiring standards for treatment programs have evolved over
time. When armed services substance abuse treatment programs were
established in 1971, they were staffed primarily by paraprofessionals and
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personnel who were in recovery. The Army gradually has worked to
professionalize its ASAP clinics and upgrade the quality of care that they
provide. In the 1980s, MEDCOM began implementing standards issued by the
Joint Commission on Accreditation of Healthcare Organizations (“JCAHO” or
“Joint Commission”). At that time, MEDCOM accepted LPC, Social Work, and
Psychology licenses for both counselors and clinical directors.
In 1995, the Department of Defense (“DOD”) issued Directive 6025.13,
which stated that “[h]ealthcare practitioners shall possess and maintain a
current, valid, and unrestricted license or other authorizing document . . . .”
Directive 6025.13 defines “current” as “[a]ctive, not revoked, suspended, or
lapsed in registration”; “valid” as a license under which “[t]he issuing authority
accepts, investigates, and acts upon quality assurance information . . . regardless
of the practitioner’s military status or residency”; and “unrestricted” as “[n]ot
subject to limitations on the scope of practice ordinarily granted all other
applicants for similar specialty in the granting jurisdiction.”
In addition to these generic statutory and DOD requirements, the Army
has developed additional requirements. AR 40-48, issued in 1995, states that an
ASAP Clinical Director “may be a GS-180 or 185 occupational series employee
(at the GS-12 or -13 grade level).” Further, a Clinical Director “must also hold
advanced substance abuse certification from a State or nationally accredited
certifying body, or be licensed as [a social worker], psychologist, or professional
counselor.”
In 2000, MEDCOM requested guidance from the DOD on whether an LPC
license should continue to be sufficient for a Clinical Director position.8 In
response, the DOD issued a memorandum in September 2000 which explained
8
Apparently, the licensure requirements for LPCs varied significantly from state to
state, and there were concerns that this patchwork might lead to inconsistent, and possibly
even lax, standards for licensure.
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that while LPCs were sufficiently qualified to be ASAP counselors, they “must
work in an environment where they are supervised by another health care
provider who possesses requisite qualifications.” After receiving this DOD
memorandum, MEDCOM issued its own memorandum in October 2000. This
memorandum stated that “Social Workers,” GS-185 personnel, “must be licensed
as social workers”; and “Psychologists,” GS-180 personnel, “must be licensed as
psychologists or, if master’s level counseling or clinical psychologists, they may
be licensed as” LPCs. This memorandum also reiterated the DOD
memorandum’s statement that LPCs “must work under supervision.” In other
words, an LPC license was no longer sufficient to qualify an individual for the
position of Clinical Director. In addition, in 2001 MEDCOM issued a
memorandum which stated that GS-12 or GS-13 Clinical Directors “[m]ust have
current competence/recent clinical experience and be licensed as a psychologist
or clinical social worker.”
Also in 2001, MEDCOM issued a memorandum stating that Clinical
Directors “[m]ust have current competence/recent clinical experience and be
licensed as a psychologist or clinical social worker IAW reference 1.j.” Reference
1.j refers back to the DOD’s September 2000 memorandum, which states that
LPCs are qualified to be counselors but must work in a supervised environment.
Thomas argues that the relevant memoranda do not have the same force
as the ARs. We disagree. Memoranda are an important part of the Army’s
efforts to increase the quality of its healthcare. While ARs might take some time
to be created, memoranda are relatively quick and easy means to explicate
licensure requirements, and to inform the community of these requirements.
Viewing all of these documents as a whole, we conclude that to be a
Clinical Director, an individual must have an unrestricted license in social work
or psychology. An unrestricted LPC license is no longer sufficient for a Clinical
Director. It is undisputed that Thomas does not have an unrestricted license in
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psychology. Thus, the question is whether he has an unrestricted license in
social work. The undisputed evidence shows that he does not.
Although Thomas is a licensed LMSW, the Secretary argues this is
insufficient because Thomas does not have the required advanced degree in
social work. The Secretary asserts that Thomas’s license in social work is
insufficient because he did not matriculate through a social work program and
because he acquired his license by grandfathering rather than by examination.
While the record is somewhat light on this topic, Thomas acknowledged in his
testimony at the EEOC hearing that he received his license by grandfathering
and that, as a consequence, he does not have an unrestricted license in social
work. In response to the question, “[I]f you were not working here at Fort Hood,
could you go out in the state of Texas and practice as a licensed social worker?”
Thomas stated, “With the license I have right now, I can practice in an agency
or under employment as a social worker anywhere in the state. I cannot open
a private practice until I pass the test for a licensed clinical social worker. I’ve
been approved by the state to take that test. I just have to schedule it, pass it,
and then I can open private practice.” Thomas did not have an unrestricted
license in social work. He was not qualified to serve as Acting Clinical Director
of the Fort Hood ASAP.
Next, we address Thomas’s argument that the subsequent appointments
of Laws and Seidler to the Acting Clinical Director position create a genuine
issue as to pretext, because Laws was no more qualified for the Acting Clinical
Director position than Thomas, and Seidler was less qualified.
Regarding Laws, it is true that Laws and Thomas both had LMSW
licenses. However, Laws, unlike Thomas, had an advanced degree in social work
and was qualified to practice independently in the state of Texas. Laws had an
unrestricted Social Work license as envisioned by the relevant regulations;
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No. 09-50877
Thomas did not. Although Laws and Thomas both had LMSW licenses, Laws
was qualified while Thomas was not.
As for Seidler, her affidavit provides uncontroverted evidence that she was
less qualified than Thomas. While Thomas had an LMSW license (albeit not an
unrestricted one), Seidler did not have an LMSW license at all.9 However, this
fact is not sufficient to establish a genuine issue as to pretext. Thomas presents
no evidence that Kuehr or anyone else performed an ASAP review while Seidler
was Acting Clinical Director and evaluated Seidler’s qualifications, or that
Schirner even knew of Seidler’s qualifications and chose not to remove her
despite her insufficient credentials. Based on this evidence, it does not seem
that the Army maliciously targeted Thomas for removal and invidiously chose
when to enforce its regulations.
Thomas fails to demonstrate a genuine factual issue as to pretext.
Accordingly, we find that the district court correctly granted summary judgment
in favor of the Secretary as to Thomas’s claim for retaliation for removal as
Acting Clinical Director of the Fort Hood ASAP.
B. The District Court Did Not Err in Granting Summary Judgment
in Favor of the Secretary on Thomas’s Claim for Retaliation for
Nonselection as Acting Clinical Director
The Secretary argues that Thomas’s claim for retaliation for nonselection
as Acting Clinical Director in March 2003 must fail because Thomas never
actually applied for the position, and since Thomas never applied for the
position, no adverse employment action occurred. In response, Thomas
acknowledges that he did not actively apply for the position, but asserts that the
Army’s automated Resumix system should have submitted his application
automatically. Two personnel specialists, Delia Merrell and Benjamin
9
Although we accept Seidler’s uncontroverted factual assertion that she did not have
an LMSW license, we do not, of course, accept Seidler’s legal conclusion that “Lloyd Thomas
was . . . qualified” to serve as Acting Clinical Director.
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No. 09-50877
Pendleton, provided declarations saying that Thomas was not registered in IBRS
for the Acting Clinical Director position in March 2003. Thus, on the one hand
we have Thomas’s assertion that he instructed the automated system to submit
his application for any GS-12 positions at Fort Hood; on the other hand, we have
the declarations of Merrell and Pendleton, along with relevant human resources
records, which show that Thomas’s application was not submitted.
Even if Thomas succeeds in creating a genuine issue as to whether he
applied for the position and was not selected, he fails to establish a causal
relationship between this nonselection and his protected EEO activity. Thomas
argues that Kuehr instructed Jennifer Loy, the Medcell specialist at Fort
Huachuca Civilian Operations Center,10 to interrupt the transfer of Thomas’s
information from IBRS to the Army Notification System Web Enabled Response
System (“ANSWER”), thus effectively removing Thomas’s name from the list of
qualified applicants for the position. However, Thomas provides no admissible
evidence of this assertion, such as testimony or an affidavit from Loy.11 Instead,
Thomas provides only his own inadmissible hearsay testimony of his alleged
conversation with Loy, and a short email exchange that ostensibly preceded the
conversation.
We will not consider Thomas’s inadmissible hearsay testimony when
determining whether the district court correctly granted summary judgment on
this claim. See, e.g., Fowler v. Smith, 68 F.3d 124, 126 (5th Cir. 1995) (“Evidence
on summary judgment may be considered to the extent not based on hearsay or
10
The parties do not explain what a Medcell specialist is, or the relationship between
a Fort Hood ASAP position and the Fort Huachuca Civilian Operations Center. We infer that
Loy is a national or regional human resources employee who oversees the posting of open
positions and the creation of lists of eligible applicants, before sending those lists on to the
components that are actually hiring.
11
In fact, Thomas does not even assert that Loy refused to testify or provide an
affidavit.
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No. 09-50877
other information excludable at trial.”). While the email exchange is admissible,
it says nothing about whether Loy had a conversation with Kuehr, or whether
Loy even removed Thomas from the list in the first place. In the exchange,
Thomas asked Loy why his “rating was changed for this announcement [of the
Clinical Director position].” In response, Loy told him that she had left him a
voicemail in response to his email, and she asked him to call her so she could
“try to explain the reasoning to you and give you a local point of contact for [the
position] to inquire further.”
Assuming for the sake of argument that Thomas creates a genuine issue
as to adverse employment action, Thomas still fails to establish a prima facie
case because Thomas fails to demonstrate a causal connection between the
adverse employment action and his protected activity.
C. The District Court Did Not Err in Concluding that the Secretary
Should not Recover the Attorney’s Fees Paid to Thomas
The Secretary’s counterclaim asserts that the attorney’s fees paid to
Thomas as a result of the AJ’s ruling should be returned to the Secretary. Citing
Massingill v. Nicholson, 496 F.3d 382 (5th Cir. 2007), the Secretary argues that
because Thomas sought de novo review of his claims in district court, he should
not be permitted to retain a benefit of the AJ’s ruling.
The Secretary misinterprets Massingill. It is true that in that case, we
explained that “[o]nce a federal-sector employee exhausts her administrative
remedies, she can file two types of civil actions: a suit to enforce the final
administrative disposition, in which the court examines only whether the agency
has complied with the disposition, or de novo review of the disposition.” Id. at
384. It is also true that we framed the issue as “whether a plaintiff, under the
second prong, can seek partial de novo review,” and that we concluded that a
plaintiff cannot. Id.19
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However, in Massingill, when we used the phrase “partial de novo review,”
we were referring to a plaintiff who tried to appeal the district court’s remedy
while keeping intact the district court’s finding of liability. Id. at 385. We
explained that a plaintiff “‘may either accept the disposition and its award, or
file a civil action, trying de novo both liability and remedy. [A plaintiff] may not,
however, seek de novo review of just the remedial award.’” Id. (quoting Scott v.
Johanns, 409 F.3d 466, 472 (D.C. Cir. 2005)).
Unlike in Massingill, in this case Thomas does not seek “partial de novo
review” of the AJ’s decision in the sense that he is trying to maintain the AJ’s
finding of liability but overturn the AJ’s determination of compensation.
Instead, Thomas seeks review of two of his claims, while not seeking review of
his other claims. The AJ awarded attorney’s fees to Thomas because the AJ
determined that Laws was at least partially motivated by a sense that Thomas
had abused the EEO process. This determination dealt with claims that Thomas
did not appeal: the claims that Thomas did appeal dealt with alleged retaliation
by Kuehr, not alleged retaliation by Laws. In Massingill, we concluded that a
plaintiff cannot seek review of compensation while preserving liability; we did
not conclude that a plaintiff cannot seek review of one claim and its related
compensation while not seeking review of another claim and its related
compensation.
IV. CONCLUSION
Thomas fails to demonstrate a genuine issue as to whether the Secretary’s
non-discriminatory reason for removing him from the Acting Clinical Director
position was pretextual. Thus, the district court did not err in granting
summary judgment in favor of the Secretary on Thomas’s claim for retaliation
for removal from the Acting Clinical Director position. Thomas also fails to
establish a prima facie case for retaliation for nonselection for the subsequent
Acting Clinical Director opening; thus, the district court did not err in granting
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No. 09-50877
summary judgment in favor of the Secretary on Thomas’s claim for retaliation
for nonselection. Finally, Thomas is not barred from seeking review of some
claims while not seeking review of other claims, and the district court did not err
in denying the Secretary’s cross-claim for repayment of Thomas’s attorney’s fee
award.
For these reasons, we AFFIRM.
21