UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 00-21160 Summary Calendar ______________________

BENNETH OKPALA,

Plaintiff-Appellant,

versus

CITY OF HOUSTON,

Defendant-Appellee. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas Civil Docket No.: H-00-2090 _________________________________________________________________ October 26, 2001

Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

The court has carefully considered this appeal in light

of the briefs and pertinent parts of the record. Appellant Okpala

contends that he is entitled to a reversal of the district court’s

grant of summary judgment in favor of the City of Houston on his

Title VII retaliation claim. We disagree, for two reasons. Either

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. reason alone suffices as a basis for affirming the judgment of the

district court.

First, Okpala failed to make out a prima facie case of

retaliation under Title VII. Such a prima facie case has three

elements: (1) that the plaintiff engaged in activity protected by

Title VII; (2) that an adverse employment action occurred; and (3)

that a causal link existed between the protected activity and the

adverse action. See, e.g., Evans v. City of Houston,

(5th Cir. 2001). Okpala failed to adduce adequate evidence as

to the third of these elements.

Okpala argues that because he is clearly better qualified

than the successful applicants for the positions that he sought,

the only reason why the City chose to promote or hire those

applicants rather than him must be retaliation. At the least (he

would say), he has produced sufficient evidence of this possibility

to withstand summary judgment. We are entirely unpersuaded by this

argument. Okpala has produced some evidence tending to show that

he is better qualified than those applicants, but he has produced

no evidence that would show (even if a trier of fact believed it in

its entirety) that the City’s decision to choose them for the

positions instead of him is so inexplicable that the decision was

motivated by a desire to retaliate for his protected activity. The

City produced evidence tending to show that the candidates it chose

were also qualified, and that Okpala may not have been as qualified

2 as they. Although the City may have been mistaken in its judgment,

we agree with the district court that the City’s employment

decisions were not so wildly unreasonable as to allow a trier of

fact to conclude that a causal link existed between Okpala’s

protected activities and these employment decisions. “This Court

affords a high degree of deference to employers in their hiring and

promotion decisions. In order to be probative on the issue of

retaliation, ‘the qualifications [must be] so widely disparate that

no reasonable employer would have made the same decision.’” Rios

v. Rossotti,

(5th Cir. 2001) (brackets in

original) (citation omitted). Although we do not deny that Okpala

is a gifted and accomplished individual, we cannot conclude that

the disparities between his qualifications and those of the

successful applicants meet this demanding legal standard.

Second, even if Okpala made out a prima facie case under

Title VII, the City adduced evidence of a non-discriminatory reason

for its employment decisions sufficient to shift the burden to

Okpala to prove that the City’s reason was a pretext for

retaliation. See Rios,

; Mayberry v. Vought

Aircraft Co.,

(5th Cir. 1995). Okpala has not

produced evidence of pretext sufficient to withstand summary

judgment. The City’s non-discriminatory reason for its decisions

is that the City believed that someone other than Okpala was a

better candidate for each of the positions that he did not get. As

3 we have said, the City may have been wrong in its belief; even if

this was true, it would not suffice to allow a trier of fact to

conclude that the City’s belief amounts to a pretext. Okpala has

not adduced enough evidence to permit a trier of fact to find that

the adverse employment actions of which Okpala complains would not

have occurred but for his protected activities. See Rios,

.

Okpala also argues, or appears to argue, that the City’s

hiring procedures were plagued by so many irregularities as to

allow an inference of retaliation. We agree with the district

court that inefficiency and bureaucracy are just as plausible

causes of such irregularities as is a desire to retaliate against

Okpala for the exercise of his rights. Okpala’s evidence of

inconsistencies and irregularities cannot prove a causal link

between his protected activity and the City’s decisions not to

promote him. Nor can it prove pretext.

We note that the briefing in this case was inadequate.1

One example: the City failed to include page references in its case

citations in a number of instances in which page references would

plainly have been helpful. Appellee’s Br. at 11, 13, 14, 15.

Perhaps that is because the cases cited do not stand for the

1 Because the district court did not give a written explanation of its decision to grant summary judgment in favor of the City, good briefing would have been even more helpful in this case than it normally is.

4 propositions for which the City cites them (indeed, this seems to

be true of one or more of the cases); but in that event, it would

be better not to have cited the cases in the first place. To

require the reader to search the cases in vain does the City no

good.

Another example is much more serious. In at least one

instance, Okpala flatly misrepresented a statement made by the

district court. On page 12 of his brief, Okpala states that “[t]he

City’s promotion of Mr. Clint Herbert [sic] over Mr. Okpala was so

obviously discriminatory and fraught with so much [sic]

irregularities, that even the District Court had to acknowledged

[sic] it in its rulings.” He follows this assertion by citing page

4 of the transcript of the district court’s hearing of December 8,

2000 (R. Doc. 39). The page cited contains an acknowledgment that

the City’s promotion processes contained irregularities. But

nowhere on that page or, to our knowledge, in the record did the

district court “acknowledge” that the decision to promote Mr.

Harbert (or anyone else) was “discriminatory,” let alone that it

was “obviously” discriminatory. Indeed, the transcript of the

hearing makes clear that the district court concluded that Okpala

had failed to produce evidence showing that any of its decisions

was “discriminatory” or otherwise unlawful. See, e.g., Dec. 8,

2000, Hearing Tr. at 2-3 (“There is nothing manifest in this now

thorough record that suggests that the City of Houston did anything

5 other than evaluate people who had come to its attention by

application or by exposure for the positions, and chosen one among

several qualified people.”). Okpala’s contention is a naked

falsehood. We fail to imagine how Okpala’s counsel advances his

client’s case by making demonstrably false assertions of this sort.

The judgment is AFFIRMED.

6