Case: 12-60737       Document: 00512273135         Page: 1     Date Filed: 06/13/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           June 13, 2013
                                       No. 12-60737
                                                                           Lyle W. Cayce
                                                                                Clerk
RODERICK KEITH GRAY,

               Plaintiff - Appellant

v.

CITY OF BRUCE, MISSISSIPPI,

               Defendant - Appellee


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 3:11-CV-90


Before STEWART, Chief Judge, HIGGINBOTHAM and JONES, Circuit Judges.
PER CURIAM:*
       This case arises out of the City of Bruce’s hiring of a Public Works
Director. Roderick Gray, an African American, began working for the Public
Works Department in Bruce, Mississippi (“the Department”) on August 1, 1991.
The longtime director of the Department retired at the end of 2009. Bruce’s
Board of Aldermen, composed of three Caucasians and two African Americans,
advertised the position nationally, ultimately receiving over sixty applications,
including an application from Gray. In a several step process, the Board hired


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                      No. 12-60737

a Caucasian candidate for the position. Gray filed suit against the City, alleging
a claim for racial discrimination in violation of Title VII of the Civil Rights Act
of 1964. He argued that he was the “logical candidate” for the position, but the
Board did not promote him because of his race. In January 2012, when the
newly-hired Director resigned, the Board voted unanimously to split the
Department into two separate departments—the Water/Sewage Department and
the Street Department—as it had existed when Gray was hired. Gray applied
to be supervisor of the Water/Sewage Department, and the Board appointed him
to that position. Gray then filed a supplemental complaint, adding a claim for
retaliation. He argued that the Board did not appoint him to the Director
position, but instead split the Department into two divisions, in retaliation
because he had filed an EEOC charge and lawsuit.
      The district court granted the City’s motion for summary judgment on both
claims. We turn first to Gray’s claim for racial discrimination. The City does not
contest that Gray made out a prima facie case of racial discrimination, nor does
Gray contest that the City articulated a legitimate, non-discriminatory reason
for its hiring decision—that the candidate who the City hired was better
qualified than Gray.1          The dispute turns on the third prong of the
analysis—whether Gray offered sufficient evidence to create a genuine issue of
material fact as to pretext, such that a rational jury could find that the City
discriminated against Gray on the basis of race. Persuaded that Gray is entitled
to a jury trial on his claim for racial discrimination, we REVERSE the district
court’s grant of summary judgment on that claim and REMAND for further
proceedings.
      With respect to Gray’s claim for retaliation, we agree with the district
court that Gray has not shown that the City “took an adverse employment action




      1
          See Manning v. Chevron Chem. Co., 

, 881–82 (5th Cir. 2003).

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                                       No. 12-60737

against him,” as required to make out a prima facie case of retaliation.2 We
therefore AFFIRM the district court’s grant of summary judgment on that claim.
      The judgment of the district court is AFFIRMED in part, REVERSED in
part, and REMANDED.




      2
          See McCoy v. City of Shreveport, 

, 556–57 (5th Cir. 2007).

                                              3