ADEA Retaliation Requires Age-Related Complaints; Title VII Pretext Assessed Under the “Clearly Better Qualified” Standard (Not “Jump Off the Page”)

I. Introduction

In Awe v. Harris Health System (5th Cir. Jan. 12, 2026), Ayodeji Awe, a former Harris Health System (“HHS”) chaplain, sued HHS after it declined to rehire him in 2021. Awe alleged (1) age discrimination under the Age Discrimination in Employment Act (“ADEA”) and (2) retaliation under both the ADEA and Title VII of the Civil Rights Act of 1964.

The central employment decision was HHS’s choice to hire three other chaplain candidates rather than Awe. Awe tied the non-selection to prior workplace complaints he had raised while employed and after leaving, including a key complaint about underpayment of minority chaplains. The district court granted summary judgment to HHS on all claims. The Fifth Circuit affirmed, but clarified important doctrinal points about what counts as ADEA-protected activity and how “better qualified” evidence fits into the pretext inquiry—while also featuring a notable concurrence urging reconsideration of McDonnell Douglas at summary judgment.

II. Summary of the Opinion

• ADEA age discrimination: Awe failed to establish a prima facie case because the hiring outcomes did not support an inference of age-based disparate treatment (one hire was older than Awe; the age gaps were not compelling on these facts).
• ADEA retaliation: Awe failed to establish a prima facie case because he did not show he engaged in activity protected by the ADEA—his complaints were not shown to be complaints about age discrimination.
• Title VII retaliation: Awe established a prima facie case, including causation, but he failed to produce sufficient evidence that HHS’s stated reason—preference for internal candidates—was pretextual.
• Qualification-comparison standard: The panel held the district court used an improper “jump off the page” articulation, repudiated by Ash v. Tyson Foods, Inc., but affirmed anyway because Awe still did not meet the Fifth Circuit’s demanding “clearly better qualified” standard.
• Concurrence (Chief Judge Elrod): Joined the judgment but argued that McDonnell Douglas Corp. v. Green, particularly at summary judgment, can conflict with ordinary Rule 56 practice and improperly “compartmentalize” evidence.

III. Analysis

A. Precedents Cited (and How They Shaped the Result)

1. Summary judgment framework

The court began with the standard of review and Rule 56 baseline: Wright v. Honeywell Int'l, Inc. (de novo review), citing Hightower v. Tex. Hosp. Ass'n, and the Rule 56 formulation as quoted in Stroy v. Gibson ex rel. Dep't of Veterans Affs.. This matters because all claims were resolved on summary judgment; Awe needed evidence creating a genuine dispute of material fact.

2. Circumstantial proof and the McDonnell Douglas framework

The panel treated Awe’s proof as circumstantial and applied burden-shifting under McDonnell Douglas Corp. v. Green, consistent with Nall v. BNSF Ry. Co. (and its reliance on Sandstad v. CB Richard Ellis, Inc.), along with Ayorinde v. Team Indus. Servs. Inc. and Allen v. U.S. Postal Serv.. It then tracked the familiar sequence described in Williams v. J.B. Hunt Transp., Inc. and the pretext requirement as phrased in Cannon v. Jacobs Field Servs. N. Am., Inc..

3. ADEA age discrimination: “but-for” causation and the prima facie case

The “but-for” causation requirement came from Moss v. BMC Software, Inc., quoting Gross v. FBL Fin. Servs., Inc.. For the prima facie elements, the panel relied on Smith v. City of Jackson (citing Sandstad v. CB Richard Ellis, Inc.).

Awe attempted to rely on Flanner v. Chase Inv. Servs. Corp. (unpublished) to argue that favoring even one “substantially younger” candidate can satisfy the prima facie showing. The panel distinguished Flanner on two grounds: (i) Flanner involved replacements who were both younger, while here one successful candidate was older than Awe; and (ii) the age gap in Flanner was much larger (27 years) than Awe’s largest identified gap (12 years). The court also rejected Awe’s unsupported theory that hiring an older applicant was itself a tactic to defeat an ADEA claim.

4. ADEA retaliation: what counts as “protected activity”

The panel applied the prima facie test recited in Allen v. U.S. Postal Serv., citing Wooten v. McDonald Transit Assocs., Inc.. The critical deficiency was element (1): Awe did not show he engaged in ADEA-protected activity because his highlighted complaint (October 2018) concerned underpayment of minority chaplains, not age discrimination. In other words, workplace complaints—even if serious—are not ADEA “protected activity” unless they oppose (or participate in proceedings about) age-based discrimination.

5. Title VII retaliation: time-window, causation, and background evidence

For the prima facie elements, the panel used Cabral v. Brennan (quoting Jenkins v. City of San Antonio Fire Dep't). On limitations/timeliness context (the 300-day EEOC charge window), the court treated earlier conduct as potentially relevant background, comparing Ikossi-Anastasiou v. Bd. of Supervisors of La. State Univ. and Cortes v. Maxus Expl. Co.. This is an important practical point: even when earlier events are not independently actionable due to timing, they can still supply context and evidence supporting a timely adverse action (here, the August 2021 non-selection).

On what qualifies as a materially adverse action, the court invoked Porter v. Houma Terrebonne Hous. Auth. Bd. of Comm'rs (failure to hire as “the ultimate adverse employment action” in retaliation terms).

For causation, the panel applied Lyons v. Katy Indep. Sch. Dist. (“but-for” causation) and explained that temporal proximity is neither required nor dispositive, citing Lyons and comparing Strong v. Univ. Healthcare Sys., L.L.C.. The court credited Awe’s allegations that the same decisionmakers remained involved and that Awe repeatedly reminded relevant parties of his prior complaints up through April 2021—supporting causation without relying solely on timing.

6. Legitimate reason and pretext: internal-candidate preference and “clearly better qualified” evidence

At step two, HHS articulated a legitimate, non-retaliatory reason: preference for internal candidates. At step three, the panel held Awe failed to show pretext, citing Seaman v. CSPH, Inc. through Nall v. BNSF Ry. Co..

On comparative qualifications as proof of pretext, the panel applied Moss v. BMC Software, Inc. (quoting Deines v. Tex. Dep't of Protective & Regulatory Servs.) for the high bar: the plaintiff must be “clearly better qualified” such that “no reasonable person” would have chosen the other candidate(s).

Crucially, the panel corrected the district court’s articulation that a plaintiff’s qualifications must “leap from the record and cry out,” a phrase drawn from Price v. Fed. Express Corp. (quoting Odom v. Frank). The Fifth Circuit reiterated that the Supreme Court repudiated the “jump off the page” requirement in Ash v. Tyson Foods, Inc., as recognized in Moss v. BMC Software, Inc.. Still, the panel affirmed because Awe did not satisfy even the properly stated “clearly better qualified” standard, citing Holtzclaw v. DSC Commc'ns Corp..

7. The concurrence’s “reconsider McDonnell Douglas” theme

Chief Judge Elrod’s concurrence compiled an extensive set of separate writings questioning McDonnell Douglas at summary judgment, including: Hollis v. Morgan State Univ.; Jenny v. L3Harris Techs., Inc.; Tynes v. Fla. Dep't of Juv. Just.; Nall v. BNSF Ry. Co.; Walton v. Powell; Coleman v. Donahoe; Provenzano v. LCI Holdings, Inc.; Brady v. Off. of Sergeant at Arms; Griffith v. City of Des Moines; Wells v. Colo. Dep't of Transp.; Loeb v. Textron, Inc.; Brockbank v. U.S. Bancorp; and Paup v. Gear Prods., Inc..

She also relied on Justice Thomas’s criticism in Hittle v. City of Stockton and his concurrence in Ames v. Ohio Dep't of Youth Servs., and cited Timothy M. Tymkovich, The Problem with Pretext. The concurrence’s core claim is that courts “know how to apply Rule 56,” yet McDonnell Douglas can cause courts to “put on blinders” by forcing evidence into rigid prima facie/pretext compartments—potentially denying juries the chance to decide cases where the overall record supports a reasonable inference of retaliation. The concurrence is not controlling, but it signals an appetite (and emerging inter-circuit dialogue) for doctrinal change.

B. Legal Reasoning

1. ADEA discrimination failed early: Even with a younger hire present, the full hiring slate (including an older hire) and modest age gap undermined the inference of age-based disparate treatment on these facts. The court refused to treat speculation about “strategic” hiring of an older candidate as evidence of discriminatory intent.
2. ADEA retaliation turned on “protected activity”: The panel required a link between Awe’s complaints and age discrimination. Complaints about compensation inequities affecting minority chaplains (as framed in the record) did not suffice for ADEA protection.
3. Title VII retaliation survived prima facie, but not pretext: The panel was receptive to a broader narrative of ongoing conflict and knowledge by decisionmakers, allowing earlier events to serve as relevant background and supporting “but-for” causation without tight temporal proximity. But at pretext, Awe needed evidence that HHS’s internal-candidate preference was not genuine or that retaliation more likely motivated the decision. The court found he had only “barest” evidence and did not show he was “clearly better qualified.”
4. Doctrinal cleanup without outcome change: The panel corrected the district court’s phrasing (“jump off the page”) as inconsistent with Ash, but held the error non-dispositive because Awe still could not meet the governing “clearly better qualified” test.

C. Impact

• ADEA retaliation pleading/proof discipline: The decision underscores a recurring evidentiary trap: generalized workplace grievances are not automatically “protected activity” under the ADEA. To reach a jury, the plaintiff must show the employer understood the complaint to be about age discrimination (or participation in ADEA processes).
• Title VII retaliation evidence can be holistic—up to a point: The panel’s discussion of Ikossi-Anastasiou v. Bd. of Supervisors of La. State Univ. and Cortes v. Maxus Expl. Co. reinforces that time-barred events may still matter as background context supporting a timely adverse action.
• Pretext via credentials remains a steep climb: By reaffirming the “clearly better qualified” standard (while rejecting “jump off the page” rhetoric), the opinion signals that comparative-qualification pretext arguments in the Fifth Circuit generally require an unusually stark disparity.
• Doctrinal pressure on McDonnell Douglas: The concurrence adds Fifth Circuit leadership to a growing set of jurists questioning whether McDonnell Douglas improperly distorts Rule 56 analysis. While not changing the outcome here, it may influence future briefing, petitions for rehearing en banc, and certiorari framing.

IV. Complex Concepts Simplified

• Summary judgment (Rule 56): The judge ends the case before trial if no reasonable jury could find for the nonmoving party on the evidence.
• McDonnell Douglas burden-shifting: A common method for proving discrimination/retaliation with circumstantial evidence: (1) plaintiff makes a “prima facie” showing; (2) employer gives a legitimate reason; (3) plaintiff shows that reason is “pretext” (not the real reason).
• Prima facie case: The initial checklist of facts that, if true, permits an inference of discrimination/retaliation and forces the employer to respond.
• Protected activity: Actions like complaining about unlawful discrimination (or participating in discrimination proceedings). For ADEA retaliation, the complaint must concern age discrimination—not merely unfairness in general.
• But-for causation: The plaintiff must show the adverse action would not have happened “but for” the prohibited motive (age, or retaliation for protected activity).
• Pretext: Evidence that the employer’s stated reason is not the real reason; it can be shown by inconsistencies, shifting explanations, implausibility, or stark comparative evidence.
• “Clearly better qualified”: In comparative-hiring disputes, it is not enough to be “better” on paper; the disparity must be so large that no reasonable employer would choose the other candidate(s) over the plaintiff.

V. Conclusion

Awe v. Harris Health System affirms summary judgment for the employer across ADEA discrimination, ADEA retaliation, and Title VII retaliation claims, but it does so with clarifications that will matter in future litigation. The opinion emphasizes that ADEA retaliation requires age-focused protected activity, confirms that older background events can inform a timely Title VII retaliation claim, and reiterates that qualifications-based pretext remains difficult to prove under the Fifth Circuit’s “clearly better qualified” standard—even as it rejects outdated “jump off the page” rhetoric in light of Ash v. Tyson Foods, Inc.. Finally, Chief Judge Elrod’s concurrence situates the case within an expanding judicial critique of McDonnell Douglas Corp. v. Green at summary judgment, highlighting potential doctrinal fault lines between burden-shifting formalism and ordinary Rule 56 inference-drawing.