Full opinion text
MEMORANDUM AND OPINION LEE H. ROSENTHAL, District Judge. This is an employment discrimination case. Henry Udoewa sued his former employer, Plus4 Credit Union, and two of its officers: the president and chief executive officer, Vladimir Stark; and the executive vice-president, Patricia Collins. Udoewa is a black man born in Nigeria. He alleges that he was subjected to race and national origin discrimination, including a hostile work environment, and retaliated against, all in violation of 42 U.S.C. § 1981. He also asserts Texas common-law claims for negligent retention and defamation. Udoewa alleges that the defendants violated § 1981 by: (1) failing to promote him to the position of executive vice-president and instead promoting Collins, a Caucasian female; (2) removing his duties as vice-president of human resources and transferring those duties to Collins; (8) maintaining a racially hostile work environment; (4) retaliating against him for refusing to aid Plus4’s investigation of discrimination claims filed by a former employee who, like Udoewa, was from Nigeria; and (5) firing him. Udoewa further alleges that Plus4 negligently hired and retained Stark. Finally, Udoewa alleges that Stark defamed him. After discovery, the defendants moved for summary judgment on all Udoewa’s claims. Based on a careful review of the pleadings; the motion, response, and reply; the record; and the applicable law, this court grants Plus4’s motion for summary judgment. The reasons are explained in detail below. 1. The Summary Judgment Evidence Plus4 is a Houston credit union. Originally, it was called the “Houston Postal Credit Union” because it served the financial needs of Houston’s postal workers. It later expanded to a general clientele. Plus4 is controlled by a board of directors, but the president and chief executive officer, Vladimir Stark, manages Plus4’s day-to-day operations in conjunction with the senior management team. Stark, the president and CEO, was born in Liberia. Although Udoewa’s counsel asserts that Stark is not “black,” Stark clearly describes himself as black. (Docket Entry No. 109, Ex. W, Stark Affidavit II, ¶3). Other Plus4 employees and board members knew that Stark was from Africa and considered him to be black. (Docket Entry No. 100, Ex. 2, Collins Depo., 101; Ex. 1A, Udoewa Depo. II, 63). Udoewa came to the United States in 1976 from Nigeria. He received a B.A. in Business Administration with an accounting concentration from Texas Southern University in 1980 and an M.B.A. from Prairie View A & M University in 1983. In April 2001, Stark hired Udoewa as an accounting supervisor. (Docket Entry No. 100, Udoewa Depo. Vol. I, 29-32); (Docket Entry No. 99, Ex. 6, Employee Evaluation Reports). Stark promoted Udoewa twice during the first two years of his employment at Plus4. On April 22, 2002, Stark promoted Udoewa to the position of accounting supervisor. On January 29, 2004, Stark promoted Udoewa to the position of vice-president of accounting, making him part of Plus4’s senior management team. (Docket Entry No. 83, Ex. B, Stark Depo., 27-28). From the start of his employment, Udoewa received high scores from Stark in regular employee-evaluation reports. Stark filled out all the reports. The evaluation reports included ten “performance criteria” scored on a ten-point scale to produce a combined score of 100 possible points. For April 17, 2001 to April 17, 2002, Udoewa received a combined score of 95; for April 17, 2002 to February 1, 2003, he received a combined score of 98.5; for February 1, 2003 through February 1, 2004, he received a combined score of 99; and for February 1, 2004 through January 31, 2005, he received a combined score of 100. Under Plus4’s scoring system, these combined scores demonstrated “Excellent Performance.” (Docket Entry No. 99, Ex. 6, Employee Evaluation Reports). Udoewa continued to receive more responsibilities at Plus4. On August 16, 2004, Stark made Udoewa responsible for overseeing Plus4’s human resources department in addition to his responsibilities as vice-president of accounting. (Docket Entry No. 83, at 7); (Docket Entry No. 99, Ex. 8, Stark HR Memo). Stark wanted someone from senior management to oversee that department and Udoewa’s responsibilities as vice-president of accounting overlapped with some of the human resources department functions, such as payroll. (Docket Entry No. 83, Ex. F, Stark Aff., ¶ 3). Udoewa’s human resources department responsibilities were limited. They included overseeing Kimberly May-field, the department’s director, who continued to handle day-to-day tasks. Udoewa was also responsible for submitting to Stark personnel evaluations and recommendations for hiring, firing, and transferring employees and for adjusting salaries. (Id., Ex. B, Stark Depo., 36-37); (Docket Entry No. 100, Ex. 1A, Udoewa Depo. II, 136-37). The parties dispute whether Stark gave Udoewa the title of “vice-president of human resources.” Stark testified that Udoewa’s title remained only vice-president of accounting when he was given the additional human resources department responsibilities. (Docket Entry No. 83, Ex. B, Stark Depo., 36-37). Udoewa testified that he had the titles of both vice-president of accounting and vice-president of human resources. Udoewa points to minutes from a November 2007 Board of Directors meeting identifying him as “VP of Accounting and HR,” (Docket Entry No. 99, Ex. 9, November 2007 Minutes). Udoewa does not assert that his compensation depended on whether he had one or two vice-president titles. After January 31, 2005, Plus4 changed its employee performance evaluation reports. Instead of the ten-point system for scoring ten performance criteria, the reports included a five-point scoring system using seven weighted “performance factors.” Under the new system, Udoewa continued to receive high scores on the reports that Stark completed. For February 1, 2005 through January 31, 2006, Udoewa received a 5.0 out of 5.0; for February 1, 2006 through January 31, 2007, Udoewa received a 4.9 out of 5.0; and for February 2, 2007 through June 30, 2008, Udoewa received a 4.9 out of 5.0. Under the new scoring system, Udoewa was a “High Performer” for each period. (Id., Ex. 6, Employee Evaluation Reports). The new scoring system also measured “future goals” for each evaluation period. Like the performance factors, each future goal was worth five points. The total score was based on the number of points multiplied by a percentage weight assigned to each future goal. For example, for the period from February 1, 2006 to January 31, 2007, Udoewa’s future goals included growing deposits by $20 million, weighted at 15%, and getting Plus4 named as a “best work place,” weighted at 5%. Udoewa’s total “goal performance” score for this period was 2.6; his score for February 2, 2007 through June 30, 2008 was 2.55. While these scores were lower than the performance scores, they apparently did not lower his total “Performance Rating” from “High Performer.” (Id.). The record contains disputed evidence about two remarks made by Patricia Collins, a Caucasian female who was Plus4’s vice president of collections from at least 1999 until her promotion to executive vice president in 2008. Udoewa alleged that sometime in 2007, after he returned from a trip to Nigeria, Collins told him “that she wished the [United States] Department of Homeland Security would have refused [Udoewa] entry into the United States and keep [his] black ass in Black Africa.” (Id., Ex. 37, Udoewa Aff., ¶ 12). Collins vigorously denies ever making such a statement. (Docket Entry No. 100, Ex. 2, Collins Depo., 98). Udoewa also stated in his affidavit that the chair of Plus4’s Board of Directors, Ceaser Moore, stated during a April 2008 meeting with Stella Thompson, who was Plus4’s human resources director at the time, that Udoewa was from the “bush part of Africa.” (Docket Entry No. 99, Ex. 37, Udoewa Aff., ¶ 12). In his deposition, Udoewa testified that Moore’s entire statement was that Udoewa “came from the bush part of Africa while Mr. Stark came from the dictatorship [part] of Africa.” (Docket Entry No. 100, Ex. 1A, Udoewa Depo. II, 63). Moore testified that he does not remember making this statement. (Id., Ex. 3A, Moore Depo., 191). Udoewa asserts that Moore made a similar statement on June 12, 2008. (Docket Entry No. 99, Ex. 37, Udoewa Aff., ¶ 13). Udoewa stated in his affidavit that on September 4, 2007, he asked Stark to promote him to the position of executive vice-president. Udoewa stated that he approached Stark and requested this promotion. (Id., ¶ 32). In his earlier deposition, however, Udoewa testified that on that date, he asked Stark about being promoted to the position of chief executive officer on Stark’s retirement. (Docket Entry No. 100, Ex. 1 A, Udoewa Depo. II, 263-65). Udoewa testified in his deposition that Stark responded that he could not be promoted from his position as vice-president of accounting until Claudia Cruz, an accounting manager, received her bachelor’s degree so that she could take Udoewa’s place. A college degree was a requirement for the vice-president position. (Docket Entry No. 109, Ex. Z, Udoewa Depo. II, 263-65). Udoewa testified that he helped Cruz enroll in the necessary courses, but does not state whether she received her B.A. (Docket Entry No. 99, Ex. 37, Udoewa Aff., ¶ 32). In May 2008, Stark promoted Collins to the position of executive vice-president. (Id.). Udoewa believes that when Stark told him that he was waiting for Cruz to complete her degree to promote her to the vice-president of accounting position, Stark was actually waiting for Collins to complete her degree so that he could promote her to the executive vice-president position. (Docket Entry No. 99, at 14). Udoewa argues that he was objectively more qualified than Collins for the executive vice-president position. Udoewa had a graduate degree (an M.B.A.) as well as a B.A., and his degrees were from Prairie View A & M and Texas Southern University. Collins had only obtained her B.A. recently, by taking online courses. Udoewa also asserts that Collins had problems while working as Plus4’s vice-president of collections. Udoewa cites a 1999 memo from Stark describing an oral warning Collins received about Plus4’s delinquency ratio, (id, Ex. 21, Pat Fendley Verbal Warning Email). Udoewa also cites Collins’s deposition testimony that Plus4 has “always had high delinquencies,” that in 2008, the debt-collection department was “underperforming,” that she oversaw automobile loans and that Plus4 incurred losses from those loans, and that during 2008 she had placed a number of loans “in suspense” after receiving notice that a debtor had sent a check to reduce the delinquency ratio and that some of the loans remained in that status for more than sixty days without her knowledge. (Docket Entry No. 100, Ex. 2, Collins Depo., 119, 140-43). Udoewa also relies on Collins’s testimony that Plus4 had $9,000,000 in losses in 2009, (id. at 118); and a form that showed that after Collins’s husband was arrested on a drug-related charge, she was briefly suspended from work with pay, (id. at 14-16). Stark testified that he promoted Collins instead of Udoewa to the executive vice-president position because she had worked longer at Plus4 (eight years longer than Udoewa); she had more experience with credit unions; she had more experience in “overall operations”; she had worked much more extensively with board members than Udoewa; and she worked better under pressure. (Docket Entry No. 83, Ex. B, Stark Depo., 102-03). The defendants also point out that while Udoewa had accounting experience, Collins had much more extensive lending experience. (Docket Entry No. 99, Ex. 6, Employee Evaluation Reports). Collins began working at Plus4 on September 7, 1993, approximately eight years before Udoewa started. (Docket Entry No. 100, Ex. 2, Collins Depo., 27). Before working at Plus4, Collins worked for Communicators Federal Credit Union and Wilsco Federal Credit Union. (Id., 28-29). The defendants also respond to the criticisms Udoewa makes about Collins’s performance at Plus4 before her promotion. The defendants cite record evidence that delinquency rates are normal for postal credit unions such as Plus4. (Id., 119). The defendants also point out that some of the evidence Udoewa cites concerns events after the promotion decision, making it irrelevant to Plus4’s reasons for that decision. The defendants also assert that to the extent that the evidence concerns Collins’s husband and not her, it is also irrelevant. Shortly after Collins was promoted, on May 23, 2008, Stark changed Udoewa’s title to “chief financial officer/vp of accounting,” adding the title of chief financial officer. (Docket Entry No. 83, Ex. J, May 23, 2008 Stark email). The record does not indicate whether the addition of this title increased Udoewa’s salary or what added duties resulted. Three days later, Udoewa’s human resources department responsibilities were removed from him and transferred to Collins. (Docket Entry No. 83, Ex. B, Stark Depo., 38-39). The defendants assert that this occurred because of Udoewa’s “failure to properly supervise” Stella Thompson, who had replaced Sheila Mayfield, the previous director of human resources, after she abruptly resigned. (Docket Entry No. 83, at 29). On Udoewa’s recommendation, Stark had hired Thompson to take Mayfield’s place on March 31, 2008. Thompson, who like Udoewa was from Nigeria, had no prior human resources experience. Under Plus4 employment policies, new hires have a performance review 90 days after they begin employment to “determine if they have completed his/her training period satisfactorily or if they are in need of additional supervision.” (Id., Ex. E, Plus4 Credit Union Personnel Policies). The defendants assert that under this policy, Thompson’s employment was probationary during the first 90 days. (Docket Entry No. 83, at 8). Stark testified that during Thompson’s first 90 days of working in human resources, she caused low morale among Plus4 employees; had such limited knowledge of laws governing human resources, including how to classify and compensate employees under the Fair Labor Standards Act, that she made many mistakes; and that she made many payroll errors. (Id., Ex. B, Stark Depo., 39-43). Stark testified that despite these deficiencies, Udoewa did not bring to his attention any of the problems with Thompson’s work. (Id., 40). The defendants assert that Stark removed Udoewa’s human resources department responsibilities because of “several concerns about Udoewa’s supervision,” including whether Udoewa had the time needed to supervise Thompson’s work, particularly given her limited knowledge of human resources, and whether Udoewa had failed to inform Stark about the problems with Thompson’s work. (Docket Entry No. 83, at 10). Udoewa questions these stated reasons for transferring his human resources department responsibilities to Collins. Udoewa points out that Thompson was an emergency hire and that Stark hired her knowing that she had no prior human resources experience. (Docket Entry No. 100, Ex. 4, Thompson Depo., 73). Udoewa also argues that at least some of the mistakes Thompson made were minimal and her work would have likely improved with training. As to the alleged payroll mistakes, Udoewa points to Thompson’s testimony that some of those mistakes were not hers but instead were made by a payroll company. (Id., Thompson Depo., 249-53). In his affidavit, Udoewa alleged that the reduction in his duties was due to retaliation for two decisions he made that were unpopular with Stark and Plus4 management. Udoewa had protested Stark’s decision to hire Janice Johnson, a relative of the chair of Plus4’s board, Ceaser Moore, after Udoewa discovered that she had an arrest for driving while intoxicated. Udoewa had also refused to hire Niki Moore, Moore’s granddaughter, at Plus4. (Docket Entry No. 99, Ex. 37, Udoewa Aff., ¶¶ 4-5). The alleged retaliation had nothing to do with Udoewa’s race or with any conduct protected under federal employment laws. On May 30, 2008, two months after Collins assumed Udoewa’s human resources department responsibilities, Plus4 fired Thompson. She had been working at Plus4 since March 31. The defendants argue that Thompson was fired because of performance issues and because she walked out of a meeting with Stark. (Docket Entry No. 83, Ex. F, Stark Aff., ¶ 4). Thompson filed a complaint with the Equal Employment Opportunity Commission in June 2008. The record is unclear as to the complaint specifics, but Udoewa testified that Thompson claimed sexual harassment by Stark. (Docket Entry No. 100, Ex. 1A, Udoewa Depo. II, 80). Plus4 conducted an internal investigation into Thompson’s allegations, using outside lawyers. (Id., 76-77). Udoewa asserts that in July 2008, two attorneys for Plus4, Terrence B. Robinson and Michael Blalaek, “harassed” him by asking him to “give information” about Thompson. (Id., 83-84). Stark testified that the request to Udoewa from the lawyers was based on a letter sent to Plus4 from Thompson’s attorney stating that she had complained to Udoewa about her treatment at Plus4 before she was fired. Based on this letter, Blalaek and Robinson met with Udoewa to investigate what Thompson had told him. (Docket Entry No. 83, Ex. F, Stark Aff., ¶ 5). Neither Udoewa’s deposition nor his affidavit refers to this letter, but his response to Plus4’s motion for summary judgment does not dispute that Thompson wrote such a letter. Udoewa asserts that he felt “pressure” to provide information Plus4 could use against Thompson but acknowledges that the lawyers did not ask him to say anything false. (Docket Entry No. 100, Ex. 1A, Udoewa Depo. II, 83-84). Despite his role as a company officer, Udoewa refused to answer the questions the lawyers asked him about his interactions with Thompson during her employment at Plus4. He asserts that one of the lawyers, Blalaek, told him, “How do you think they’re going to keep your pay and give you a job here?” and that the other lawyer, Robinson, stated, “I question your integrity.” (Id., 81-82). In June 2008, the same month Thompson filed her complaint with the EEOC, another Plus4 employee, Yolanda Perales, made a complaint that Udoewa had shown her more favorable treatment than he showed other employees, which made her uncomfortable. According to Stark, “Ms. Perales felt she was getting special attention from Mr. Udoewa in her co-workers’ presence, which apparently made her feel uncomfortable.” (Docket Entry No. 83, Ex. F, Stark Aff., ¶ 6). Perales informed her immediate supervisor, Melissa Havel, who was also a member of the senior management committee. That same day, Havel informed Collins, who in turn informed Stark. (Id., Ex. B, Stark Depo., 140-42). Stark ordered an investigation and met with Udoewa to talk about the matter. It is unclear if Stark talked to Perales before or after his initial meeting with Udoewa. The parties dispute what Stark told Udoewa in this initial meeting and emails exchanged between Udoewa and Stark after the meeting show this disagreement. (Id., Ex. L, June 11, 2008 Emails). Stark’s email to Udoewa sent shortly after their meeting states that Udoewa had not been accused of sexual harassment but that any allegation of inappropriate conduct had to be taken seriously. (Id.). Udoewa’s email states that he viewed the accusation as one of sexual harassment. Udoewa demanded a full investigation into the accusation and demanded that the Board of Directors be notified. (Id.). Udoewa stated that he believed he had been “framed,” and demanded that Collins, Havel, Perales, and Hilton take lie-detector tests. (Id.). As part of his investigation, Stark also met with Perales. She told Stark that she was concerned about several incidents, including one occasion on which Udoewa said “I love you” to Perales in front of another female employee, Misty Hilton; another occasion when Udoewa told Perales that she had on a “nice skirt” in front of another female employee, Veronica Granados; and another occasion when Udoewa said “what is the secret to open the door” as he held the door open for Perales. (Id., Ex. G, Perales Aff., ¶¶ 4-6). According to Stark, none of this behavior was sexual harassment but it did make Perales uncomfortable because Udoewa did not say similar things to other female employees. (Id., Ex. B, Stark Depo., 140-42). On June 10, 2008, Perales signed a memo stating, “I feel that the instances that were noted were not offensive to myself nor did I feel in any way harassed by Henry Udoewa.” (Id., Ex. G-l). On June 11, 2008, Stark, with Collins present, informed Udoewa that Perales did not intend to pursue any allegations of inappropriate conduct. In an email to Stark sent the next day, Udoewa requested that Perales “put this ... in writing.” (Id., Ex. M., June 12, 2008 Udoewa Email). On June 28, 2010, Udoewa sent a letter to Plus4’s Board of Directors to inform them that he felt he had been “framed” and to demand a full investigation into the incident. (Id., Ex. P). In response, Plus4’s board asked outside counsel Blalack and Robinson to assist in the investigation. (Id., Ex. C, Moore Depo., 168-170). After interviewing “all of the relevant witnesses,” Stark and Plus4 concluded that there was “no evidence ... reflecting actionable sexual harassment by Mr. Udoewa.” (Id., Ex. F, Stark Aff., ¶ 6). The events giving rise to Udoewa’s wrongful termination claim began two months later, when concerns over Plus4’s finances became acute. Stark and other members of the senior management team began discussing the best response to the financial difficulties the company faced. Stark stated in his affidavit that Plus4, “not unlike many financial institutions in the current economic environment, realized that it was suffering financial difficulties.” Specifically, “Plus4 projected a net loss for 2008 of $3 million due to the downturn in the economy, high expenses, and poorly performing loans.” (Id., ¶ 7). The evidence also shows that in 2007, a National Credit Union Administration (NCUA) representative told the Plus4 Board during a “regular visit” that the company was overstaffed. (Id., Ex. C, Moore Depo., 68-69). The defendants assert that “[i]t was necessary that Plus4 abide by NCUA’s recommendations to reduce the staff size and because failure to follow their recommendations could result in the loss of the credit union or a possible merger.” (Docket Entry No. 83, at 17). Udoewa does not dispute that there were serious financial problems facing the company. Indeed, he argues that he “spearheaded a strategy to bring the Credit Union into financial solvency mandated by the State of Texas Department of Credit Union/Credit Union National Administration.” (Docket Entry No. 98, at 1). To respond to the financial problems, Stark enlisted Collins, Havel, and Udoewa to develop a plan to reduce expenses. (Docket Entry No. 83, Ex. F, Stark Aff., ¶ 8). Collins, Havel, and Udoewa had two budget meetings to discuss a plan. (Id., Ex. R., Minutes of Budget Meetings). At a meeting held on August 13, 2008, Udoewa recommended across-the-board salary reductions of 25 percent. (Id., Ex. F, Stark Aff., ¶ 9; Ex. S, Udoewa Memo); (Docket Entry No. 100, Ex. 2, Collins Depo., 44). Stark also hired Jim Ratzman, a former TCUD deputy commissioner, to assist Plus4 in developing a plan to reduce expenses. (Docket Entry No. 83, Ex. F, Stark Aff., ¶ 8). Ratzman submitted a report to Stark recommending cuts in various operational expenses totaling $1.1 million. He did not review expenses related to salary and benefits because he felt that such expenses were the board’s responsibility. (Docket Entry No. 84, Ex. U, Ratzman Report). Stark states that after considering the budget meetings, Ratzman’s report, and Udoewa’s recommendations, he determined that the best way to minimize costs was to have a reduction in force as opposed to a large across-the-board salary reduction. Stark reasoned that “it was better to layoff some employees, rather than cutting salaries across the board, which would end up lowering employee morale.” (Docket Entry No. 83, Ex. F, Stark Aff., ¶ 8). Stark asked Collins and Havel to identify the employees under their supervision who would be subject to the layoff, using the following six factors: “(1) positions that could easily be absorbed within their respective departments; (2) positions that could be outsourced at a lesser cost to the organization; (3) positions that provide services with continued losses; (4) individuals that have not performed over and beyond what was expected; (5) tellers and financial representatives with less than one year of experience; and (6) that there were no other positions available to utilize these employees’ skill sets.” (Id., ¶ 9). Stark himself made the decision to include Udoewa in the reduction in force. No evidence shows that Collins was involved in this employment decision. (Docket Entry No. 100, Ex. 2, Collins Depo., 99; Ex. 3, Moore Depo., 33; Ex. 5, Stark Depo., 89); (Docket Entry No. 83, Ex. F, Stark Aff., ¶ 10). Stark determined that Udoewa’s “duties were amenable to absorption by Plus4’s remaining staff, and given his salary level, the elimination of his position represented a good opportunity to achieve significant reduction in overall salary costs to Plus4.” (Docket Entry No. 83, Ex. F, Stark Aff., ¶ 10). On August 22, 2008, Collins, at Stark’s behest, informed Udoewa that Plus4 had decided to reduce its work force and eliminate the position of vice-president of accounting. (Id., ¶ 11). In addition to Udoewa, eleven other Plus4 employees were terminated. (Id.). A document entitled “Analysis of the Layoff,” shows the racial/ethnic mix of those laid off as eight Hispanics, two blacks (including Udoewa), and two Caucasians. The same document indicates that of these eleven individuals, eight were laid off because their positions could be absorbed by other employees; one was laid off because her position could be outsourced; and two were laid off because their positions were “dissolved.” (Docket Entry No. 99, Ex. 14). Udoewa argues that Moore, Collins, and Stark conspired to reduce his role at Plus4 by removing his human resources department title and duties and then to eliminate his position. In support, Udoewa points to testimony from Thompson based on her two-month tenure as director of human resources. Thompson testified that “Moore ... said that he doesn’t like Mr. Udoewa because Mr. Udoewa comes into the meeting and sits like some kind of a maid at the end of the table.... And [Stark] told me that Mr. Cesar Moore just said he doesn’t like Udoewa. There were other conversations that came in and that they were going to ... terminate Mr. Udoewa.” (Docket Entry No. 100, Ex. 4, Thompson Depo., 123). Thompson testified that Stark told her “that they wanted to use [her] to like get rid of Mr. Udoewa,” (Id., 126), clarifying that she meant that she would be the one to “call him in and fire him.” (Id.). Udoewa challenges whether Plus4 intended to pursue cost reductions and whether a reduction in force was the proper approach to that goal. He points to evidence that Plus4 hired seven employees between March 31, 2008 and May 22, 2008, including two hired to work at Plus4’s call center and one at Plus4’s marketing department, a Bank Secrecy Act officer, a collections manager, a collections representative, an indirect lending underwriter, and a trainer. (Docket Entry No. 100, Ex. 4, Thompson Depo., 265, 267); (Docket Entry No. 83, Ex. B, Stark Depo., 52-53). Udoewa also points to evidence that in May 2008, Stark sought “golden handcuff’ retirement benefits for Collins, Havel, and Udoewa, (Docket Entry No. 99, Ex. 27, Golden Handcuff Email), and evidence that in 2004 Plus4 had built a new $5 million building. (Docket Entry 100, Ex. 3, Moore Depo., 215). Finally, Udoewa argues that Plus4 could have achieved significant savings by reducing travel expenses, although Stark testified that such expenses were set by the board, not by himself. (Docket Entry No. 83, Ex. B, Stark Depo., 73). In response, the defendants point to the undisputed evidence of financial problems facing the company; that the building purchase was negotiated before the extent of the financial problems became evident; that even with the hiring of some new employees, the size of the work force shrunk; that Udoewa’s position was eliminated and no one was hired to replace him; and that the reduction in force that included eleven other employees, only one of whom is also identified as African or black. Udoewa contacted board chair Ceaser Moore after learning of the reduction in force and his job elimination. Moore testified that he had not been previously informed of Stark’s decision to include Udoewa in the reduction in force. Because of this, and because several other board members expressed concerns about the layoffs, Moore instructed Stark to reassign Udoewa to a North Houston location until the board could review these decisions. (Id., Ex. C, Moore Depo., 103). Udoewa reported to work at the North Houston location on August 25, 2008. (Id., Ex. B, Stark Depo., 68-69). In his affidavit, Udoewa stated that at the North Houston location, there was little work for him to do. He greeted customers and did such tasks as shredding paper. Udoewa asserts that this made him “humiliated, mocked, and reduced to less than a human being.” (Docket Entry No. 99, Ex. 37, Udoewa Aff., ¶ 3). At the same time, Udoewa argues that instead of firing him, Plus4 should have continued to employ him at the North Houston location. (Docket Entry No. 98, at 9). The following morning, on August 26, Udoewa told Stark that he would not report back to the North Houston location. (Docket Entry No. 83, Ex. B, Stark Depo., 68-69). On September 4, Moore sent a memorandum to Stark informing him that the board of directors had approved the decision to eliminate Udoewa’s position at an August 28 board meeting. (Docket Entry No. 99, Ex. 12, Moore Memo). Udoewa points out that the minutes from the August 28 board meeting do not indicate that he or any of the terminated employees were discussed. (Id., Ex. 10, Aug. 28 Board Minutes). The defendants point to the Moore memo as evidence of the board’s decision. The record shows that after Udoewa’s termination, Plus4 no longer had the position of vice-president of accounting. Collins testified that she, Stark, Claudia Cruz, and a senior accounting manager shared the duties that Udoewa had performed. (Docket Entry No. 100, Ex. 2, Collins Depo., 74-75). Udoewa argues that Collins took over his position after his termination. But the undisputed evidence in the record is to the contrary. Udoewa has not identified or produced any summary judgment evidence showing that Collins became the vice-president of accounting or took over all, as opposed to some, of the duties Udoewa had performed in that position. Udoewa asserts that the evidence shows that the reduction in force was a pretext because Plus4 hired some individuals after the layoff. The record shows that Plus4 hired Eliot St. John as a senior accounting manager in May 2009. But the evidence is that this did not occur until Stark decided that Cruz needed help with her accounting department duties. (Docket Entry No. 109, Ex. X, Stark Depo., 98). Collins testified that Plus4 hired some individuals to replace employees who left after the reduction in force occurred. Overall, the undisputed evidence shows that Plus4’s workforce was reduced from 68 to 48 employees after the August 2008 layoffs. (Id, Ex. Y, Collins Depo., 180-31). On October 15, 2008, Udoewa filed this lawsuit against Plus4, Stark, and Collins. (Docket Entry No. 1). In his amended complaint, Udoewa alleges that the defendants discriminated against him in violation of 42 U.S.C. § 1981 by: (1) failing to promote him to the position of executive vice-president and instead promoting Collins, a Caucasian female; (2) removing his title of vice-president of human resources and transferring his supervision over that department to Collins; (3) firing him; (4) maintaining a work environment hostile to black people and people from Nigeria; and (5) retaliating against him for refusing to aid Plus4’s investigation into the discrimination claim filed by Thompson. Udoewa further alleges that Plus4 negligently hired and retained Stark, who Udoewa alleges defamed him by accusing him of sexual harassment. The defendants have moved for summary judgment on all Udoewa’s claims. The arguments as to each claim are analyzed below. II. The Legal Standards A. Summary Judgment Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). “The movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact.” Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). If the burden of proof at trial lies with the nonmoving party, the movant may satisfy its initial burden by “ ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” See Celotex, 477 U.S. at 325, 106 S.Ct. 2548. While the party moving for summary judgment must demonstrate the absence of a genuine issue of material fact, it does not need to negate the elements of the nonmovant’s case. Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.2005) (citation omitted). “A fact is ‘material’ if its resolution in favor of one party might affect the outcome of the lawsuit under governing law.” Sossamon v. Lone Star State of Tex., 560 F.3d 316, 326 (5th Cir.2009) (quotation omitted). “If the moving party fails to meet [its] initial burden, the motion [for summary judgment] must be denied, regardless of the nonmovant’s response.” United States v. $92,203.00 in U.S. Currency, 537 F.3d 504, 507 (5th Cir.2008) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)). When the moving party has met its Rule 56(c) burden, the nonmoving party cannot survive a summary judgment motion by resting on the mere allegations of its pleadings. The nonmovant must identify specific evidence in the record and articulate how that evidence supports that party’s claim. Baranowski v. Hart, 486 F.3d 112, 119 (5th Cir.2007). “This burden will not be satisfied by ‘some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.’ ” Boudreaux, 402 F.3d at 540 (quoting Little, 37 F.3d at 1075). In deciding a summary judgment motion, the court draws all reasonable inferences in the light most favorable to the nonmoving party. Connors v. Graves, 538 F.3d 373, 376 (5th Cir.2008). B. Section 1981 Udoewa alleges race and national origin discrimination under 42 U.S.C. § 1981. The standards under § 1981 are the same as under Title VII. Flanagan v. Aaron E. Henry Cmty. Health Servs. Ctr., 876 F.2d 1231, 1233-34 (5th Cir.1989). Intentional discrimination can be proven by either direct or circumstantial evidence. Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir.2007). Evidence is “direct” if it would prove the fact in question without inference or presumption. Jones v. Robinson Property Grp., L.P., 427 F.3d 987, 992 (5th Cir.2005) (citations omitted). When a plaintiff attempts to prove allegations of discrimination through indirect or circumstantial evidence, the claims are considered under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), as modified in Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003), and Rachid v. Jack in the Box, Inc., 376 F.3d 305 (5th Cir.2004). Under the modified McDonnell Douglas approach, the plaintiff has the initial burden of making a pñma facie showing of discrimination. Abarca v. Metro. Transit Auth., 404 F.3d 938, 941 (5th Cir.2005); Rachid, 376 F.3d at 312. A plaintiff satisfies this burden by showing that: (1) he is a member of a protected group; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) he was treated differently from those outside the protected class. See Frank v. Xerox Corp., 347 F.3d 130, 137 (5th Cir.2003); see also Wheeler v. BL Dev. Corp., 415 F.3d 399, 405 (5th Cir.2005) (“To establish a prima facie case of discrimination under § 1981, Appellants must establish that they: (1) are members of a protected group; (2) were qualified for the position held; (3) were discharged from the position; and (4) were replaced by persons outside of the protected group.”). If a plaintiff makes a prima facie showing, the burden shifts to the defendant to articulate a “legitimate, nondiscriminatory reason” for the adverse employment decision. Culwell v. City of Fort Worth, 468 F.3d 868, 873 (5th Cir.2006). If a defendant can produce such evidence, the presumption of discrimination dissolves. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir.2002). The plaintiff must then identify or offer evidence to create a fact issue “either (1) that the defendant’s reason is not true, but is instead a pretext for discrimination (pretext alternative); or (2) that the defendant’s reason, while true, is only one of the reasons for its conduct, and another motivating factor is the plaintiffs protected characteristic (mixed-motives alternative).” Rachid, 876 F.3d at 312 (internal quotation and alteration marks omitted); see also Culwell, 468 F.3d at 873; Keelan v. Majesco Software, Inc., 407 F.3d 332, 341 (5th Cir.2005) (analyzing a Title VII claim under the modified approach). The plaintiff can meet this burden “by producing circumstantial evidence sufficient to create a fact issue as to whether the employer’s nondiscriminatory reasons are merely pretext for discrimination.” Machinchick v. PB Power, Inc., 398 F.3d 345, 354 (5th Cir.2005). “ ‘A prima facie case and sufficient evidence to reject the employer’s explanation’ may permit a trier of fact to determine that an employer unlawfully discriminated, and may therefore be enough to prevent summary judgment.” Pratt v. City of Houston, 247 F.3d 601, 606 (5th Cir.2001) (quoting Reeves, 530 U.S. at 148, 120 S.Ct. 2097). But “such a showing will not always be enough to prevent summary judgment, because there will be cases where a plaintiff has both established a prima facie case and set forth sufficient evidence to reject the defendant’s explanation, yet ‘no rational fact-finder could conclude that the action was discriminatory.’ ” Price, 283 F.3d at 720 (quoting Reeves, 530 U.S. at 148—49, 120 S.Ct. 2097). “The ultimate question is whether the employer intentionally discriminated, and proof that the employer’s proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiffs proffered reason is correct.” Reeves, 530 U.S. at 147, 120 S.Ct. 2097 (internal quotations and citations omitted). C. Hostile Work Environment Udoewa alleges that the defendants maintained a hostile work environment in violation of § 1981. Udoewa does not allege a claim under Title VII. The same standard applies for hostile work environment under both Title VII and § 1981. Williams-Boldware v. Denton Cnty., No. 4:09-CV-591, 2010 WL 2991164, at *8 (E.D.Tex. June 15, 2010) (citing Felton v. Polles, 315 F.3d 470, 483-84 (5th Cir.2002)). The elements of a hostile work environment claim are that: (1) the plaintiff belongs to a protected group; (2) he was subjected to unwelcome harassment; (3) the harassment complained of was based on membership in the protected group; (4) the harassment affected a term, condition, or privilege of employment; and (5) the defendant knew or should have known of the harassment, yet failed to take prompt remedial action. Felton, 315 F.3d at 484. The fifth element is not required when the alleged harasser is a supervisor with immediate or successively higher authority over the plaintiff. See Celestino v. Petroleos de Venezuella SA, 266 F.3d 343, 353-54 (5th Cir.2001) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)), abrogated on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). The Supreme Court has explained that in determining whether workplace conditions are a hostile work environment, courts must consider “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with the employee’s work performance.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). For harassment to be actionable, it must be “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir.2002) (internal quotation marks and citation omitted); Watkins v. Texas Dept. of Criminal Justice, 269 Fed.Appx. 457, 463-64 (5th Cir.2008). “To be actionable, the challenged conduct must be both objectively offensive, meaning that a reasonable person would find it hostile and abusive, and subjectively offensive, meaning that the victim perceived it to be so.” Harvill v. Westward Commc’ns LLC, 433 F.3d 428, 434 (5th Cir.2005) (citing Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 874 (5th Cir.1999)). The Supreme Court has made clear “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’ ” Faragher, 524 U.S. at 788, 118 S.Ct. 2275 (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). D. Retaliation Udoewa alleges retaliation under § 1981. The same standard applies for retaliation under both Title VII and § 1981. Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 319 (5th Cir.2004). To make a prima facie showing of retaliation under § 1981, as under Title VII, a plaintiff must show that: “(1) he engaged in an activity protected by Title VII; (2) he was subjected to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse employment action.” Davis, 383 F.3d at 319. If a plaintiff makes a prima facie showing, the burden shifts to the defendant to proffer a legitimate nonretaliatory reason for the employment action. If the defendant makes this showing, the burden shifts back to the plaintiff to demonstrate that the employer’s articulated reason for the employment action was a pretext for retaliation. Id. “[I]n retaliation cases where the defendant has proffered a nondiscriminatory purpose for the adverse employment action the plaintiff has the burden of proving that ‘but for’ the discriminatory purpose he would not have been terminated.” Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 487 (5th Cir.2004); see also Septimus v. Univ. of Houston, 399 F.3d 601, 608 (5th Cir.2005). “While this portion of the analysis may seem identical to the ‘causal link’ step in the prima facie case, the burden here is more stringent.” Medina v. Ramsey Steel Co., 238 F.3d 674, 685 (5th Cir.2001). “The plaintiff must reveal “a conflict in substantial evidence on the ultimate issue of retaliation in order to withstand a motion for summary judgment.” ” Id. E. The State-Law Claims Udoewa alleges that Plus4 negligently hired and retained Stark, who defamed him. “To prevail on a claim for negligent hiring or supervision, the plaintiff is required to establish not only that the employer was negligent in hiring or supervising the employee, but also that the employee committed an actionable tort against the plaintiff.” Brown v. Swett & Crawford of Tex., Inc., 178 S.W.3d 373, 384 (Tex.App.-Houston [1st Dist.] 2005, no pet.); Gonzales v. Willis, 995 S.W.2d 729, 739 (Tex.App.-San Antonio 1999, no pet.), abrogated on other grounds by Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex.2004). Udoewa has alleged defamation as the underlying tort. The elements of defamation are that: (1) the defendant published a statement; (2) that was defamatory concerning the plaintiff; (3) while acting with malice, if the plaintiff was a public figure, or negligence, if the plaintiff was a private individual, regarding the truth of the statement. See WFAATV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998). A defamatory statement is one in which the words tend to damage a person’s reputation, exposing him or her to public hatred, contempt, ridicule, or financial injury. Einhom v. LaChance, 823 S.W.2d 405, 410-11 (Tex.App.-Houston [1st Dist.] 1992, writ dism’d w.o.j.). “The truth of a statement is a defense to a claim for defamation.” Gustafson v. City of Austin, 110 S.W.3d 652, 656 (Tex.App.-Austin 2003, pet. denied). This defense “does not require proof that the alleged defamatory-statement is literally true in every detail; substantial truth is sufficient.” Id. III. Analysis A. The Discrimination Claims 1. The Argument That There is Direct Evidence of Discrimination Udoewa alleges three adverse employment decisions: (1) the failure of Plus4 to promote him to executive vice-president in May 2008; (2) the removal of his human resources department duties on May 26, 2008; and (3) his job termination on August 22, 2008. For each decision, Udoewa argues that two comments, one by Collins and one by Moore, provide direct evidence of discrimination. The two comments are a statement by Collins in 2007 “that she wished the [United States] Department of Homeland Security would have refused [Udoewa] entry into the United States and keep [his] black ass in Black Africa,” (Docket Entry No. 99, Ex. 37, Udoewa Aff., ¶ 12). The second is a statement by Moore in 2007, allegedly repeated on June 12, 2008 that Udoewa was from the “bush part of Africa.” (Id., ¶¶ 7, 13). These statements are not the direct evidence of discrimination that Udoewa asserts. They do not refer to any employment decision. See Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th Cir.2003), overturned on other grounds by Smith v. Xerox Corp., 602 F.3d 320, 328 (5th Cir.2010) (noting that direct evidence includes “any statement or document which shows on its face that an improper criterion served as a basis, not necessarily a sole basis, for an adverse employment action”) (emphasis added). These statements require the factfinder to infer a relationship between the statement and the alleged adverse employment decisions and do not provide direct evidence of discrimination. Jones, 427 F.3d at 992. Because there is no direct evidence of discrimination, the McDonnell Douglas burden-shifting analysis applies. 411 U.S. at 802, 93 S.Ct. 1817. 2. The Failure to Promote Claim Udoewa asserts that on September 4, 2007, he asked Stark to promote him to the position of executive vice-president and that Stark responded by stating that Udoewa would be promoted as soon as Claudia Cruz, an accounting manager, received her B.A. Udoewa argues that though he helped Cruz enroll in the necessary courses, Stark promoted Collins, a Caucasian female, to the position in May 2008. (Docket Entry No. 99, .Ex. 37, Udoewa Aff., ¶ 32). In their motion for summary judgment, the defendants argue that Udoewa has not made a prima facie showing of discrimination under § 1981 because there is no evidence that Udoewa applied for the position of executive vice-president. Alternatively, the defendants argue that Udoewa has failed to create a fact issue as to whether the proffered reasons for promoting Collins — her longer tenure with Plus4, her greater experience with credit unions, her greater experience in operations, her greater experience interacting with Plus4’s board of directors, and her ability to perform under pressure — is pretextual. To make a prima facie showing of a discriminatory failure to promote, a plaintiff must show that “(1) he belongs to a protected class; (2) he applied for and was qualified for a position for which applicants were being sought; (3) he was rejected; and (4) a person outside of his protected class was hired for the position.” Burrell, 482 F.3d at 412 (citing Medina, 238 F.3d at 680-81). The defendants assert that there is no evidence that Udoewa applied for the position of executive vice president in September 2007. Udoewa responds by pointing to testimony that he requested the promotion in September 2007, but Stark promoted a Caucasian female. The record warrants an assumption — as opposed to a finding — that a prima facie showing has been made. “[A] plaintiffs prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves, 530 U.S. at 148, 120 S.Ct. 2097. “[Ojnce the employer’s justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual réason for its decision.” Russell v. McKinney Hosp. Venture, 235 F.3d 219, 223 (5th Cir.2000) (citing Reeves, 530 U.S. at 147, 120 S.Ct. 2097). “The ultimate determination, in every case, is whether, viewing all of the evidence in a light most favorable to the plaintiff, a reasonable fact finder could infer discrimination.” Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir.2000) (citing Reeves, 530 U.S. at 142, 120 S.Ct. 2097). “In making this determination, a court should consider ‘the strength of the plaintiffs prima facie case, the probative value of the proof that the employer’s explanation is false, and any other evidence that supports the employer’s case....’” Id. (citing Reeves, 530 U.S. at 148-49, 120 S.Ct. 2097). Courts are not to substitute their judgment for that of the employer in evaluating employment decisions. See, e.g., Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 959 (5th Cir.1993) (ADEA claim). Title VII is “not [a] vehicle[] to question or evaluate personnel moves, which although legal, may have been the result of poor business judgment.” Deaver v. Texas Commerce Bank N.A, 886 F.Supp. 578, 585 (E.D.Tex.1995), aff'd 79 F.3d 1143 (5th Cir.1996) (citing Bodenheimer, 5 F.3d at 959). The defendants articulated a legitimate nondiscriminatory reason for promoting Collins to the executive vice-president position over Udoewa. In his deposition, Stark testified that he decided to promote Collins because she had worked longer at Plus4, had more experience with credit unions, had more experience in operations, had more experience working with the board, and worked better under pressure. (Docket Entry No. 83, Ex. B, Stark Depo., 102-03). Because the defendants have met their burden, the presumption of discrimination dissolves. Reeves, 530 U.S. at 142-43, 120 S.Ct. 2097. The burden shifts back to Udoewa to “offer sufficient evidence to create a genuine issue of material fact ‘either (1) that the defendant’s reason is not true, but is instead a pretext for discrimination (pretext alternative); or (2) that the defendant’s reason, while true, is only one of the reasons for its conduct, and another ‘motivating factor’ is the plaintiffs protected characteristic (mixed-motive[s] alternative).’ ” Rachid, 376 F.3d at 312 (internal quotation marks omitted). Udoewa does not make a mixed-motive argument. (Docket Entry No. 98, at 20). See Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 347 (5th Cir.2007) (“[The plaintiff] did not properly raise her mixed-motive argument below until her motion for new trial.... Because a motion for a new trial cannot be used to argue a case under a new legal theory, the district court was correct in finding that [the plaintiffs] mixed-motive claim was waived.”); Ward v. Midwestern State Univ., 217 Fed. Appx. 325, 329 (5th Cir.2007) (stating that the plaintiffs failure to present any argument related to a mixed-motive alternative at the district court waived any avenue for appeal on that issue). Instead, Udoewa responds that the proffered reason for promoting Collins instead of him is pretextual because he was better qualified than Collins. He asserts that, unlike Collins, he had an M.B.A., and he had exemplary employee-evaluation reports while Collins had problems in her position of vice-president of collections. Udoewa also points to the allegedly discriminatory comments made by Collins and Moore. A plaintiff may create a fact issue by providing or identifying evidence that he was “clearly better qualified” than the employee chosen for the position, not merely “similarly qualified.” Sabzevari v. Reliable Life Ins. Co., 264 Fed.Appx. 392, 395 (5th Cir.2008); see also Celestine, 266 F.3d at 356-57; Manning v. Chevron Chem. Co., 332 F.3d 874, 882 (5th Cir.2003). “However, the bar is set high for this kind of evidence because differences in qualifications are generally not probative evidence of discrimination unless those disparities are ‘of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.’ ” Celestine, 266 F.3d at 357 (quoting Deines v. Tex. Dept. of Prot. & Regulatory Servs., 164 F.3d 277, 280-81 (5th Cir.1999)). Evidence that a plaintiff was “clearly better qualified” than the employee chosen for the position “must be more than merely subjective and speculative.” Eberle v. Gonzales, 240 Fed.Appx. 622, 630 (5th Cir.2007) (quoting Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir.1996)). The Supreme Court has recognized that evidence of a plaintiffs superior qualifications may establish pretext “in some circumstances.” Ash v. Tyson Foods, Inc., 546 U.S. 454, 456-57, 126 S.Ct. 1195, 163 L.Ed.2d 1053 (2006) (per curiam). The Court noted that several circuits find an inference of pretext only if “the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the face.” Id. The Court rejected this standard but declined to “define more precisely what standard should govern pretext claims based on superior qualifications.” Id. at 458, 126 S.Ct. 1195. The “clearly better qualified” standard set forth by the Fifth Circuit is not similar to the standard the Court found faulty in Ash. See, e.g., Celestine, 266 F.3d at 357; Manning, 332 F.3d at 882; see also Bright v. GB Bioscience, Inc., 305 Fed.Appx. 197, 205 n. 8 (5th Cir.2008) (recognizing that although Ash disapproved of the “jumping off the page” standard as “unhelpful and imprecise,” the Fifth Circuit’s more precise definition of the comparative qualifications standard set forth in Deines is good law); Burrell, 482 F.3d 408, 412 (5th Cir.2007) (recognizing, post-Ash, that a plaintiff may prove pretext by showing that he was “clearly better qualified” than the person selected for the position); Gillaspy v. Dallas Indep. Sch. Dist., 278 Fed.Appx. 307, 313-14 (5th Cir. 2008) (“We are confident that [our “clearly better qualified”] standard comports with the directive in Ash to formulate a better standard [than “slap in the face”] to govern pretext claims based on superior qualifications.”); Runnels v. Tex. Children’s Hosp. Select Plan, 167 Fed.Appx. 377, 383 (5th Cir.2006) (applying the “clearly better qualified” standard, post-Asfc). No inference of pretext or discriminatory motive arises if the differences in qualifications are not “so widely disparate that no reasonable employer would have made the same decision.” Deines, 164 F.3d at 282; see also Odom v. Frank, 3 F.3d 839, 846 (5th Cir.1993) (a showing that two candidates are similarly qualified does not show pretext under this standard). A plaintiffs assertion or belief that he was better qualified than the person selected for the position is insufficient to create a fact issue on pretext. Washington v. Hemphill Indep. Sch. Dist., No. 9:08-CV-102, 2009 WL 749198, at *8 (E.D.Tex. Mar. 19, 2009) (citing Celestine, 266 F.3d at 357); see also Escobar v. Univ. of N. Texas, 562 F.Supp.2d 804, 811 (E.D.Tex.2007) (concluding that a professor’s “subjective belief ... in her affidavit that she was better qualified than the professors who were not terminated” was insufficient to defeat summary judgment); Leach v. Baylor College of Medicine, Civ. Act. No. H-07-0921, 2009 WL 385450, at *24 (S.D.Tex. Feb. 17, 2009) (“A professor’s assertion or belief that he was better qualified than the person selected for the position is insufficient to create a fact issue on pretext.”). Udoewa has not identified or produced evidence of the qualifications for the position of executive vice-president that made his advanced degree an important advantage over Collins’s education and experience. Stark’s testimony that Collins was better qualified because she had worked longer at Plus4, had more experience with credit unions, had more experience in operations, and had more experience working with the board provides evidence that the qualifications for the position of executive vice president were more closely related to specific experience, and about knowledge of Plus4, than to a graduate degree. See Manning, 332 F.3d at 882 (finding that the plaintiffs educational background, various technical and analytical skills, and good performance during the interview process do not suggest that he was “clearly better qualified than the selected applicants” (emphasis in original)); Moore v. Solar Grp., 311 Fed.Appx. 722, 724 (5th Cir.2009) (“Although Moore argues that Solar Group’s claimed motivation is a pretext for race-based discrimination, she has failed to offer any evidence to create a genuine issue of material fact that the employer’s reason masks intentional discrimination.”); Pastor v. College Station Indep. Sch. Dist., 57 Fed.Appx. 210, at *3 (5th Cir.2003) (“[A] reason cannot be proved to be a ‘pretext for discrimination’ unless it is shown both that the reason is false, and that discrimination was the real reason.”) (quoting St. Mary’s Ctr. v. Hicks, 509 U.S. 502, 513, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)); Prejean v. Radiology Assocs. of Sw. La., 342 Fed.Appx. 946, 951 (5th Cir.2009) (“ ‘[I]t is not enough to disbelieve the employer; the factfinder must believe the plaintiffs explanation of intentional discrimination.’ ” (quoting Reeves, 530 U.S. at 147, 120 S.Ct. 2097)). Udoewa has failed to raise a fact issue as to pretext (or discriminatory motive) based on the comparison of his qualifications with Collins. An employer may choose more experience over an advanced degree without raising an inference of pretext. See Bauman v. United Healthcare Servs., Civ. Act. No. H-08-2882, 2009 WL 5178022, at *5 (S.D.Tex. Dec. 30, 2009) (finding no inference of pretext when an employer hired an individual with greater experience over an individual with a master’s degree); Price, 283 F.3d at 722-23 (finding no inference of pretext when an employer hired an individual without a college degree but with 102 hours of educational credit and experience in the military over an individual with a college degree); see also Scaria v. Rubin, 117 F.3d 652, 654 (2d Cir.1997) (finding that despite the fact the plaintiff had more schooling, the defendants permissibly elected to value experience over education); Rumala v. N.Y.C. Transit Auth., No. 02CV3828SLTKAM, 2005 WL 2076596, at *14 (E.D.