Lloyd Thomas was the Acting Clinical Director of the Army Substance Abuse Program (ASAP) Clinic at the Darnall Army Community Hospital in Fort Hood, Texas. Thomas filed an EEO (Equal Employment Opportunity) complaint, alleging retaliation for his removal as Acting Clinical Director and for his non-selection for a subsequent Acting Clinical Director opening. Thomas worked as a Counseling Psychologist at the Fort Hood ASAP. Furthermore, 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, Licensed Chemical Dependency Counselor, Licensed Marriage and Family Therapist, and Licensed Master Social Worker (LMSW). Thomas v. Geren, 393 Fed. Appx. 182, 184 (5th Cir. 2010).
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. 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.
Two days later, Kuehr met with Colonel Donald J. Kasperik, Hospital Commander. Kuehr told Kasperik that Thomas did not meet the degree and licensure requirements to be Acting Clinical Director. Kuehr recommended that 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 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. Id. at 185.
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 should be replaced by a properly licensed and qualified candidate as soon as possible. Thus, Thomas was removed from the Acting Clinical Director position in August 2002. Kasperik 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 Kasperik confirmed that Thomas “did not have the qualifications to be the clinical director.” Id. at 186.
In September 2002, Kasperik detailed Laws to serve as Acting Clinical Director of the Fort Hood ASAP for not more than 120 days. In March 2003, Kasperik selected Laws, in part because she was already essentially performing the relevant duties. She was temporarily 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.
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 non-selection 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.
On appeal, the Fifth Circuit found that Thomas failed to demonstrate a genuine issue as to whether the Secretary’s non-discriminatory reason for removing him from the Acting Clinical Director position was pre-textual. 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. The Court of Appeals also found that Thomas failed to establish a prima facie case for retaliation for non-selection for the subsequent Acting Clinical Director opening; thus, the district court did not err in granting summary judgment in favor of the Secretary on Thomas’s claim for retaliation for non-selection. Consequently, the Fifth Circuit affirmed the lower courts holding.