Appeal from the United States District Court for the Southern District of Texas.
For Jonathan Adams Thomas, Plaintiff - Appellant: Gary M. Gilbert, Meghan Alexis Droste, Stephanie Marie Herrera, Law Offices of Gary M. Gilbert & Associates, P.C., Silver Spring, MD.
For JEH JOHNSON, Department of Homeland Security, Defendant - Appellee: Virgil Henry Lewis II, Esq., Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Corpus Christi, TX.
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 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 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 ...