Sherman v. Westinghouse Savannah River Co. , 263 F. App'x 357 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-2414
JAMES SHERMAN, III,
Plaintiff - Appellant,
versus
WESTINGHOUSE SAVANNAH RIVER COMPANY; BECHTEL
SAVANNAH RIVER, INCORPORATED,
Defendants - Appellees,
and
THE BABCOCK & WILCOX SAVANNAH RIVER COMPANY,
INCORPORATED; BRITISH NUCLEAR FUELS LIMITED
SAVANNAH RIVER CORPORATION,
Defendants.
No. 04-2417
ANNIE B. LOTT-ABNEY,
Plaintiff - Appellant,
versus
WESTINGHOUSE SAVANNAH RIVER COMPANY,
Defendant - Appellee,
and
BECHTEL SAVANNAH RIVER, INCORPORATED; THE
BABCOCK & WILCOX SAVANNAH RIVER COMPANY,
INCORPORATED; BRITISH NUCLEAR FUELS LIMITED
SAVANNAH RIVER CORPORATION,
Defendants.
No. 04-2418
ELVIRA JOHNSON,
Plaintiff - Appellant,
versus
WESTINGHOUSE SAVANNAH RIVER COMPANY,
Defendant - Appellee,
and
BECHTEL SAVANNAH RIVER, INCORPORATED; THE
BABCOCK & WILCOX SAVANNAH RIVER COMPANY,
INCORPORATED; BRITISH NUCLEAR FUELS LIMITED
SAVANNAH RIVER CORPORATION,
Defendants.
No. 04-2420
DIANNE S. SCOTT,
Plaintiff - Appellant,
versus
WESTINGHOUSE SAVANNAH RIVER COMPANY,
2
Defendant - Appellee,
and
BECHTEL SAVANNAH RIVER, INCORPORATED; THE
BABCOCK & WILCOX SAVANNAH RIVER COMPANY,
INCORPORATED; BRITISH NUCLEAR FUELS LIMITED
SAVANNAH RIVER CORPORATION,
Defendants.
Appeals from the United States District Court for the District of
South Carolina, at Aiken. Henry F. Floyd, District Judge.
(CA-00-1649-1-26AJ; CA-00-1652-1-26AJ; CA-00-1689-1-26AJ; CA-00-
1715-1-26AJ)
Argued: May 22, 2007 Decided: February 7, 2008
Before WILKINSON and KING, Circuit Judges, and WIDENER,1 Senior
Circuit Judge.
Nos. 04-2414, 04-2417, and 04-2418 affirmed; No. 04-2420 affirmed
in part and vacated and remanded in part by unpublished per curiam
opinion.
ARGUED: Ivan D. Smith, VLADECK, WALDMAN, ELIAS & ENGELHARD, P.C.,
New York, New York, for Appellants. Glen David Nager, JONES DAY,
Washington, D.C., for Appellees. ON BRIEF: Ray P. McClain,
Charleston, South Carolina, for Appellants. Shay Dvoretzky, Thomas
J. Davis, JONES DAY, Washington, D.C.; Deborah A. Sudbury, Douglas
M. Towns, JONES DAY, Atlanta, Georgia; Kenneth E. Young, NELSON,
MULLINS, RILEY & SCARBOROUGH, Greenville, South Carolina, for
Appellees.
1
Judge Widener heard oral argument in this case but died prior
to the time the decision was filed. The decision is filed by a
quorum of the panel. 28 U.S.C. § 46(d).
3
Unpublished opinions are not binding precedent in this circuit.
4
PER CURIAM:
The four appellants — James Sherman, III (No. 04-2414), Annie
B. Lott-Abney (No. 04-2417), Elvira Johnson (No. 04-2418), and
Dianne S. Scott (No. 04-2420) — appeal from the judgments entered
against them in the District of South Carolina on their race
discrimination claims under the Civil Rights Act of 1866, 42 U.S.C.
§ 1981, and Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e to 2000e-17. In their consolidated appeals, the
appellants challenge the district court’s denial of class
certification on their disparate impact claims; the court’s
exclusion of the report and proposed testimony of an expert
witness; and the court’s awards of summary judgment against them on
their individual disparate impact and disparate treatment claims.
We possess jurisdiction over these appeals pursuant 28 U.S.C. §
1291. For the reasons explained below, we affirm in Nos. 04-2414
(Sherman), 04-2417 (Lott-Abney), and 04-2418 (Johnson), and we
affirm in part and vacate and remand in part in No. 04-2420
(Scott).
I.
On October 31, 1997, ten African-American employees at the
U.S. Department of Energy’s Savannah River Site (the “Site”) filed
a class action complaint under § 1981 and Title VII on behalf of
all African-American Site employees. The proposed class action
5
eventually accumulated ninety-nine named plaintiffs, including the
four appellants herein. The district court denied class
certification and directed the plaintiffs to proceed individually.
Of the ninety-seven plaintiffs who refiled individual complaints,
all but five — the four appellants herein and Virginia Anderson —
subsequently settled or otherwise dismissed their claims. We
previously heard the appeal of Anderson, who also challenged the
denial of class certification, as well as the entry of summary
judgment on her individual claims. Our decision in that case —
authored by our late and distinguished colleague Judge Widener —
outlines the history of the proposed class action and provides
authority for the disposition of several issues in the present
appeals. See Anderson v. Westinghouse Savannah River Co., 406 F.3d
248 (4th Cir. 2005).
The plaintiffs’ claims were brought against Westinghouse
Savannah River Company; Bechtel Savannah River, Incorporated; The
Babcock & Wilcox Savannah River Company, Incorporated; and British
Nuclear Fuels Limited Savannah River Corporation. The defendants
jointly operate and manage the Site, a 310-square-mile facility
that processes radioactive and other hazardous waste. They operate
as a “seamless organization” under a 1996 contract with the
Department of Energy and have common personnel policies and
practices, including performance evaluation systems, promotion
policies, and compensation policies, controlled by a single
6
director of human resources. Various policies and practices of the
defendants have been challenged by the plaintiffs in the proposed
class action and their subsequent individual suits, under theories
of both disparate impact and disparate treatment based on race.2
A. Class Certification
By way of their disparate impact claims, the plaintiffs
variously attacked the defendants’ practices affecting five
discrete aspects of employment — (1) promotions and evaluations,
(2) hazardous job assignments, (3) salaries, (4) training, and (5)
demotions. The plaintiffs initially sought certification of a
single class, encompassing more than 4,000 African-American Site
employees, for these claims. In a reply memorandum on the issue of
certification, however, the plaintiffs suggested for the first time
that the court could break the class into three separate subclasses
for exempt, nonexempt, and craft employees. The district court
denied class certification on May 25, 2000. The court determined
that the plaintiffs’ claims lacked sufficient “commonality” and
“typicality” to satisfy Federal Rule of Civil Procedure 23(a)(2)
and (3). Moreover, the court ruled that the plaintiffs failed to
demonstrate that at least one of the conditions of Rule 23(b) was
2
The plaintiffs have relied on evidence of race-related
harassment in the workplace as relevant background. In particular,
the plaintiffs allege that hangman’s nooses and racist graffiti
appeared throughout the Site, that there was open use of racial
epithets, and that management did not remove the graffiti in a
timely fashion or adequately respond to other instances of
harassment.
7
met. Notably, the court considered the feasibility of the proposed
subclasses, and concluded that none of them could “overcome the
fatal deficiencies afflicting the larger proposed class.”
The plaintiffs filed a motion for reconsideration of the class
certification ruling, in which they abandoned their request for a
single omnibus class, and instead asked for certification of as
many as eleven different subclasses. On July 19, 2000, the
district court denied the motion for reconsideration, rejecting the
plaintiffs’ modified class certification request as untimely and
lacking in merit. Thereafter, the plaintiffs filed their
individual lawsuits.
In her appeal, Anderson contended that the district court
should have certified two subclasses corresponding to her two
individual disparate impact claims, pertaining to the defendants’
systems for promotions and salaries. See Anderson, 406 F.3d at
273. We rejected Anderson’s contention on the ground that —
having affirmed the awards of summary judgment on her disparate
impact claims — she had “no valid claims which give her the same
interest and cause her to suffer the same injury as the proposed
class members she seeks to represent.” Id. at 274 (internal
quotation marks omitted).3
3
With respect to the class certification issue, we further
observed in Anderson that there was “no indication” that any
plaintiff could successfully prosecute a disparate impact claim
challenging the salary system, without the rejected testimony of
8
B. Disparate Impact Claims
1. Sherman’s and Scott’s promotion system claims
Sherman and Scott claim (as Anderson did before them) that the
defendants’ system for promoting employees — the Competency Based
Posting System (the “CBPS”) — has a disparate impact on African-
American employees. Under the CBPS, which was instituted in the
1990s, open positions are submitted to the Site’s Human Resources
Group (“HR”) for posting. For each open position, a hiring manager
establishes the minimum qualifications, identifies and weighs the
relevant “core” and “functional” competencies, serves on the three-
plaintiffs’ proffered expert on that claim. 406 F.3d at 274. We
acknowledged the possibility, however, that a class action might
yet be appropriate with respect to a disparate impact claim
attacking the promotion system. Id. at 275. Accordingly, the
panel majority agreed to remand with the following instructions:
Upon remand, if a proper plaintiff or plaintiffs with
grievances similar to those of Miss Anderson with respect
to that discrete portion of the [promotion] procedure
presents himself to prosecute, himself, as a class
representative, the district court should then decide
whether a class action is maintainable and whether the
then named plaintiff should represent the class. . . .
If no representative plaintiff so comes forward within a
reasonable time, then the district court should strike
the class action from the calendar and enter a final
dismissal thereof.
Id.; see also id. at 275-76 (Niemeyer, J., concurring in part and
dissenting in part) (explaining disagreement with remand remedy).
On October 17, 2005, the district court entered a final dismissal
order in the original proposed class action, observing that five
months had passed since the issuance of our Anderson decision and
that, during that time, no proper representative plaintiff had
stepped forward to pursue a class action on the promotion system-
related disparate impact claim.
9
member interview panel, and assists HR in the selection of the
other interview panel members.4
During the first of three stages under the CBPS,
“self-nominating individuals” submit their qualifications to HR, by
way of a “Personal History” form, a resume, or both. HR then
identifies those applicants who meet the minimum qualifications for
the open position, and forwards their application materials to the
hiring manager. Next, during the CBPS’s second stage, the hiring
manager (acting alone or with assistance of a committee) rates the
applicants according to the weighted core and functional
competencies of the open position, and selects the most qualified
applicants for interviews. The interview panel conducts the
interviews, produces written evaluations of the interviewees (based
4
We detailed the CBPS in our prior Anderson decision. We
explained therein, inter alia, that
[u]nder the [CBPS], hiring managers can evaluate
applicants in six core competencies: teamwork,
leadership, communications, business results, self-
management, and employee development. The hiring
managers can also evaluate applicants using selected
functional competencies that are specific to the position
for which the manager is hiring. For example, a
particular functional competency could be “proficient in
heating, ventilation and air-conditioning design,” and
the CBPS manual explains that “functional competencies
can be derived from the responsibility section on the job
description.” Each competency is assigned a weight,
using a number from one to five, in which five is “most
important relative to other competencies” and one is
“least important relative to other competencies.”
406 F.3d at 256.
10
again on the core and functional competencies), and preliminarily
identifies the most qualified candidate. If that candidate
receives approval from the next level of management, as well as HR,
the CBPS process moves to its third stage, during which the
candidate is offered the position.
Sherman and Scott (like Anderson) specifically contend that
the CBPS has a disparate impact on African-American employees at
the second and third stages, relying on expert testimony that there
is a statistically significant under-representation of African-
American employees succeeding at those two stages. By separate
orders, the district court granted summary judgment to the
defendants on Anderson’s, Sherman’s, and Scott’s CBPS-related
disparate impact claims. Significantly, our panel majority in
Anderson affirmed the summary judgment award on Anderson’s claim,
see 406 F.3d at 265-68, with one panelist disagreeing on the
disposition of this single issue, see id. at 276-84 (Gregory, J.,
dissenting in part).5
2. Scott’s and Johnson’s radiation exposure claims
Scott and Johnson allege that the defendants’ job assignment
practices have resulted in African-American Site employees being
5
Anderson unsuccessfully petitioned this Court for rehearing
en banc, with five judges voting to grant the petition, and seven
judges voting to deny it. See Anderson v. Westinghouse Savannah
River Co., 418 F.3d 393, 394 (4th Cir. 2005). Judge Gregory
dissented from the denial of rehearing en banc, criticizing the
panel majority’s decision to affirm the summary judgment award on
Anderson’s CBPS-related disparate impact claim.
11
exposed to more radiation than their white co-workers. In support
of their radiation exposure disparate impact claims, Scott and
Johnson rely on the expert testimony of an epidemiologist, Dr. A.
James Ruttenber.
Importantly, the district court granted the defendants’ motion
in limine to exclude Dr. Ruttenber’s testimony, at the conclusion
of a hearing conducted pursuant to Daubert v. Merrell Dow
Pharmacies, Inc., 509 U.S. 579, 589 (1993) (recognizing that “the
trial judge must ensure that any and all scientific testimony or
evidence admitted is not only relevant, but reliable”). The court
determined that Dr. Ruttenber’s findings did not support the
hypothesis that, during the relevant time period, African-American
employees received higher radiation doses than white employees due
to “management-initiated” job assignments. This was so, the court
observed, because Dr. Ruttenber failed to ascertain the extent to
which employee choice — rather than decisions made by managers —
resulted in higher exposure job assignments. The court explained
that “the problem that we have here is that there is no fit
whatsoever between his analysis and the limited issue in this case,
which is . . . whether or not discriminatory management-initiated
job assignments produced a difference in radiation dose for black[]
and white[]” employees. The court further concluded that, although
Dr. Ruttenber (as an epidemiologist) may have been qualified to
conclude that African-American Site employees had higher radiation
12
exposures than white employees, he went “beyond his realm of
expertise” when he attempted to attribute such exposure rates to
the defendants’ job assignment practices. And, the court noted and
discussed “other flaws” in Dr. Ruttenber’s analysis.
Thereafter, having excluded evidence (Dr. Ruttenber’s
testimony) crucial to sustaining Scott’s and Johnson’s radiation
exposure disparate impact claims, the district court awarded
summary judgment to the defendants with respect to those claims.
C. Disparate Treatment Claims
1. Sherman’s failure to promote claim
Sherman claims that he was denied a promotion to a Lead
Technical Specialist position because of his race. At the time
Sherman applied for the promotion in December 1997, he had twenty-
one years of experience working at the Site in various positions,
including positions that arguably prepared and qualified him for
the Lead Technical Specialist position. That position was awarded,
however, to a white applicant (Jeffrey Stewart) who Sherman asserts
was less qualified than him but the beneficiary of favoritism and
preselection for the job.
We focus herein on the facts tending to show that Stewart was
preselected for the Lead Technical Specialist position. The hiring
manager for that position, Mike Hubbard, initially sought to
promote Stewart without going through the CBPS process, but was
ultimately required by HR to post the opening. The first posting
13
listed minimum qualifications including a bachelor’s degree and 5-8
years of relevant experience. Before applications were submitted,
the posting was revised to no longer require a bachelor’s degree;
the revised posting listed minimum qualifications including a
bachelor of science degree in engineering and 5-8 years of relevant
experience, or a bachelor of science degree in another discipline
and 9-11 years of relevant experience, or an associate’s degree and
13-15 years of relevant experience plus certain training, or a high
school diploma and 15-17 years of relevant experience plus certain
training. In the light most favorable to Sherman, the evidence
indicates that the posting was revised so that Stewart (who did not
possess a college degree) would minimally qualify for the Lead
Technical Specialist position, and that Stewart was provided with
special training in an area in which his qualifications would have
yet been lacking.
Stewart and two African-American applicants (but not Sherman)
were named as finalists for the Lead Technical Specialist position.
Sherman scored only one point below the two African-American
finalists. Thus, had Stewart been ineligible for the job — as he
would have been had the minimum requirements not been altered —
Sherman would have been interviewed as a finalist. The members of
the interview panel, including Hubbard, were all white. Stewart
was selected for the Lead Technical Specialist position over the
two African-American finalists.
14
To prove his failure to promote disparate treatment claim,
Sherman relies (as do the other appellants with respect to their
disparate treatment claims) on the burden-shifting framework
established by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).6 In awarding summary judgment to the
defendants on this claim, the district court concluded that Sherman
failed to forecast evidence sufficient to demonstrate that the
defendants’ reasons for passing over Sherman were a pretext for
discrimination. Regarding the favoritism shown by Hubbard to
Stewart, the court observed that Sherman failed to demonstrate that
Stewart’s preselection for the Lead Technical Specialist position
resulted from racial animus. The court explained that the
defendants’ “decision to lower the requirements for the position
and [Hubbard’s] preference for one particular employee affected all
6
Under this framework, as we recognized in Anderson, the
plaintiff can establish a prima facie case of racial discrimination
in promotions “by showing that (1) she is a member of a protected
group, (2) she applied for the position in question, (3) she was
qualified for that position, and (4) the defendants rejected her
application under circumstances that give rise to an inference of
unlawful discrimination.” 406 F.3d at 268. “If a prima facie case
is established, the burden then shifts to the employer to
articulate some legitimate, nondiscriminatory reason for the
decision not to promote.” Id. (internal quotation marks omitted).
“After the employer states a reason for its decision, [the
plaintiff] has the opportunity to show that the stated reason is a
pretext for discrimination, and the trier of fact must determine if
the plaintiff has proved that the employer intentionally
discriminated against her because of her race.” Id. (internal
citations omitted).
15
applicants equally. Moreover, favoritism alone does not constitute
actionable discrimination.”
2. Scott’s disparate treatment claims
a. Scott’s failure to promote claim
Scott alleges that, in 1998, she was denied a promotion to a
Lead Technical Specialist position because of her race. Scott, who
started working at the Site in 1980 and holds a master of business
administration degree (“MBA”), succeeded at the first stage of the
CBPS (being deemed minimally qualified for the open position) but
failed at its second stage (being selected for an interview).
According to Scott, she was more qualified than the white employee
(Susan Hatcher) who received the promotion, in that she had more
years of work experience at the Site and a more advanced
educational degree.
The posting for the Lead Technical Specialist position listed,
among the minimum qualifications, the equivalent of a technical
degree and 3-5 years of experience, or an associate’s degree in a
technical discipline and 8-10 years of experience, or a high school
diploma and 12-14 years of certain practical experience. The
posting also listed several areas of required knowledge. HR
determined that Scott met the minimum requirements for the open
position, and forwarded her application (which included a “Personal
History” form but not a resume) to the position’s hiring committee.
The hiring committee — which consisted solely of white members —
16
indicated in its CBPS evaluation that Scott’s Personal History form
contained “[i]nadequate information” to fully assess her candidacy
or “to support selection for [an] interview,” and assigned Scott
scores of “0” (for “not evident”) with respect to several of the
weighted core and functional competencies. Scott (along with Bill
Kesler, a white Site employee) received the lowest rating of all
applicants for the position and was not selected for an interview.
Hatcher, the prevailing candidate, began working at the Site
in 1984, was promoted to a Laboratory Technician position in 1985,
held a technical degree (in Environmental and Hazardous Material
Management) directly relevant to the open Lead Technical Specialist
position, and provided a detailed application specifically
describing her experience, qualifications, and pertinent college
class work.
The district court granted summary judgment to the defendants
on Scott’s failure to promote disparate treatment claim, based on
its conclusion that Scott had failed to forecast evidence
sufficient to demonstrate that the defendants’ proffered
legitimate, nondiscriminatory reason for promoting Hatcher — that
she “best fit the job description” — was a pretext for
discrimination. The court observed that Scott’s only evidence was
her own affidavit, which contained a self-assessment of her
qualifications that was “irrelevant” and otherwise insufficient to
create a genuine issue on the pretext question.
17
b. Scott’s hazardous job assignment claim
Scott also asserts that, based on her race, she was forced to
take a job working with significantly more radioactive (and, thus,
more dangerous) samples than those handled by her white
counterparts. Scott had been hired to work at the Site in 1980 as
a mail clerk, and had been promoted in 1981 to a position since
retitled “technical analyst.” From 1981 to April 1998, Scott’s job
responsibilities involved analyzing radioactive samples. In April
1998, Scott was temporarily assigned to another work group at the
Site to assist in the disposal of “legacy chemicals,” i.e.,
chemicals dating back to the 1950s. Scott subsequently returned to
her regular work group and, in November 1998, was involuntarily
assigned to the post at issue, which involved receiving (rather
than analyzing) radioactive samples.
It appears from the record that this “sample receiver” job (an
assignment within the scope of the broader technical analyst
position) was a new post at the Site limited to working with “BNFL”
samples, i.e., highly radioactive samples that were significantly
more radioactive than the samples more routinely handled within
Scott’s work group. In this post, Scott was required, inter alia,
to “split” BNFL samples that would have otherwise been too high in
radiation for her co-workers to analyze. Prior to the creation of
the new sample receiver job, the Site had previously analyzed just
one set of the BNFL samples, and those samples had been handled by
18
the two then-existing sample receivers along with all other
incoming samples. The new sample receiver job was created to deal
exclusively with the BNFL samples, based on lessons learned from
experiences with the first set of BNFL samples. The new job was
posted internally, but no Site employees applied for it —
including the two sample receivers (Gina Robbins and Robin
Wainwright, both white) who had handled the first set of BNFL
samples. Even though there had not been any particular problems
with Robbins’s and Wainwright’s handling of the first set of BNFL
samples, neither of them were required to take the new sample
receiver job, and they continued working as sample receivers
handling samples that were not highly radioactive. Additional
candidates for the new sample receiver job included thirteen other
white employees in Scott’s work group who, as technical analysts
(like Scott), met the minimum qualifications for the assignment.7
7
Viewed in the light most favorable to Scott, the record
indicates that the defendants have offered varying reasons for the
choice of Scott for the new sample receiver job. According to
Scott, one of her supervisors, Marty Finney, informed her at the
time of the assignment that she was selected for the new job
because her advanced degree (an MBA) and administrative skills
rendered her perfect for it. Finney testified in her deposition,
however, that nothing about Scott’s education especially qualified
her for the new sample receiver job. Moreover, Finney denied
telling Scott that she was selected, at least in part, because of
her educational background. Rather, Finney asserted that she told
Scott she was selected because she lacked a permanent assignment
after returning to her work group from the temporary assignment
disposing of legacy chemicals. Meanwhile, Finney’s superior,
Michael Polochko, testified that Scott was chosen because of her
MBA and because Scott’s group had not had enough other work for her
to do upon her return from the temporary assignment. In this
19
In the spring of 1999, David Healy, a white employee who
joined Scott’s work group after her assignment to the new sample
receiver job, also became a sample receiver. Scott was not moved
from her sample receiver job (working exclusively with the BNFL
samples) at that time. Healy’s sample receiver assignment
apparently occurred soon after Robbins shifted her job duties from
receiving to analyzing samples. It is unclear whether Healy simply
replaced Robbins working with non-highly radioactive samples, or
whether Healy worked alongside Scott with the BNFL samples. It is
also unclear whether Healy was voluntarily or involuntarily placed
in the sample receiver job.
The record suggests that Scott’s duties as a sample receiver
exposed her to appreciably more dangerous conditions than those she
had previously faced. For example, in the summer of 1999, Scott
had a skin dose radiation reading of 149 MREM — well within the
annual limit set by the federal government, but abnormally high for
Scott and other employees in her work group (who were expected to
have skin readings between 0 and 50 MREM). This reading caused one
of Scott’s supervisors, Michael Polochko, to warn Scott to watch
future skin dose readings for additional high numbers. Indeed,
although Polochko testified in his deposition that he had
encountered abnormal readings for employees on “several occasions,”
appeal, the defendants offer the work shortage as a
nondiscriminatory justification for Scott’s selection for the new
sample receiver job.
20
he specifically recalled only one other incident, and in that case
(unlike Scott’s) the high number was attributed to an equipment
malfunction. Polochko also acknowledged that, with respect to the
annual whole-body exposure limits set by the Site, the limit for
employees working with the BNFL samples (280 MREM) was higher than
that for “most people” (150 MREM). Polochko refused to explain the
discrepancy in the exposure limits. A fair inference, however, is
that the defendants expected employees working with the BNFL
samples to suffer greater exposures than other employees. And, the
defendants have acknowledged that the less exposure, the better —
as evidenced by their ALARA (“as low as reasonably achievable”)
policy at the Site.
In awarding summary judgment to the defendants on Scott’s
hazardous job assignment disparate treatment claim, however, the
district court concluded that Scott failed to establish a prima
facie case of discrimination, in that she could not demonstrate
that her assignment to the new sample receiver job constituted an
“adverse employment action” that “had some significant detrimental
effect.”8 According to the court, the fact that Scott “could have
been exposed to higher levels of radiation in the new job . . .
8
To establish the relevant prima facie case, the plaintiff
must “raise an inference of discriminatory intent by showing that
she was treated worse than similarly situated employees of other
races,” and she must establish that her involuntary placement in a
new position constituted an “adverse employment action.” See
Sterling v. Tenet, 416 F.3d 338, 345 (4th Cir. 2005).
21
does not evidence a significant detrimental effect,” because “[h]er
radiation exposure levels exceeded neither [the defendants’] nor
the federal government’s limits, and [the defendants have] numerous
checks and monitors to prevent employees from being harmed by
radiation.”
3. Johnson’s hazardous job assignment claim
Johnson claims that, in the early to mid-1990s, she and other
African-American painters at the Site were exposed to radiation
more often than their white counterparts. The district court
granted summary judgment to the defendants on Johnson’s hazardous
job assignment disparate treatment claim, for failing to establish
a prima facie case of discrimination. The court explained that
[t]he only evidence [Johnson] presented in connection
with this claim is her own affidavit and the affidavit of
another African American employee of [the defendants].
She also implies that it is the burden of [the
defendants] to disprove [she] was not exposed to
radiation more often than white employees by stating that
[the defendant] offered no records comparing the
assignments of its painter employees.
The court concluded that, “[o]f course, it is not [the defendants’]
burden to disprove [Johnson’s] claim, and [Johnson’s] assertions
that she was exposed to radiation more often than similarly
situated white employees, without more, is insufficient to create
a prima facie case of discrimination.”
4. Lott-Abney’s demotion claim
Lott-Abney alleges that she was illegally demoted in 1995
because of her race. Lott-Abney began working at the Site in 1972,
22
and was working in an exempt position as an M-Area Records
Management Coordinator in May 1995 during a Site-wide reduction in
force (“RIF”). Lott-Abney’s responsibilities involved collecting
records from various facilities, packaging and processing the
records, and sending them to the Site’s Record Control Department,
as well as some procedure-writing duties. According to Lott-Abney,
she was initially told that her work group would not be eliminated,
but would instead be combined with a group of procedure writers in
K-Area. Lott-Abney was subsequently notified, however, that her
position was being eliminated. According to the defendants, the
position ceased to exist upon the adoption of a new system
requiring individual facilities to handle their own records.
At the time of the RIF, a “bust back” policy was in place at
the Site, under which certain exempt employees whose positions were
eliminated could accept demotions to their former non-exempt
positions. Rather than being laid off, Lott-Abney accepted a “bust
back” to a non-exempt position as a Reactor Materials Operator,
effective May 15, 1995.
Lott-Abney contends that, after the RIF, her former duties as
Records Management Coordinator were given to Susan Power, a less
senior white employee who had been a Production Supervisor in M-
Area. Power was assigned post-RIF to K-Area, where she did some
procedure writing and her title eventually became Training
Instructor/Developer. To demonstrate that Power’s new duties were
23
essentially the same as Lott-Abney’s old ones, Lott-Abney relies on
the testimony of a former co-worker, John Cummings, who stated in
his affidavit that Lott-Abney “was a procedure writer and manager
of document control for the M-Area” prior to the RIF, and that
Power “was writing procedures [in the K-Area], just as Mrs. Lott-
Abney had done as a portion of her responsibilities in M-Area,
before she had been demoted.” Lott-Abney also points out that
Power was given the same job title (“FLS-Operations Specialist”)
and job code (“6646”) that Lott-Abney was assigned in her former
Records Management Coordinator position.
In granting summary judgment to the defendants on Lott-Abney’s
demotion-related disparate treatment claim, the district court
concluded, inter alia, that she failed to establish a prima facie
case of discrimination.9 Specifically, the court observed that
Lott-Abney had not demonstrated that Power was assigned
substantially the same duties that Lott-Abney had performed before
her demotion — i.e., that Power had “filled” Lott-Abney’s former
position. The court emphasized that, while Cummings’s affidavit
reflected that both Lott-Abney and Power engaged in some procedure
writing, Cummings acknowledged therein that such activity was only
“a portion of [Lott-Abney’s] responsibilities” as Records
9
Among the elements of the relevant prima facie case is that
the plaintiff’s former position “was filled by [a] similarly
qualified applicant[] outside the protected class.” Hill v.
Lockheed Martin Logistics Mgmt., 354 F.3d 277, 285 (4th Cir. 2004)
(en banc).
24
Management Coordinator. Additionally, the court determined that
there was no significance to Lott-Abney (as Records Management
Coordinator) and Power (as Training Instructor/Developer) having
the same job title and job code, because the evidence showed that
they were “generic titles used in [the defendants’] database to
identify employees for compensation purposes and reflect little
about the employees’ actual responsibilities and duties.”
II.
After the district court entered final judgments against them,
Sherman, Lott-Abney, Johnson, and Scott timely noted their appeals.
They make numerous appellate contentions, challenging the district
court’s denial of class certification; the court’s summary judgment
awards on their individual disparate impact claims (and, with
respect to the radiation exposure disparate impact claims, the
exclusion of Dr. Ruttenber’s expert testimony); and the court’s
summary judgment awards on their individual disparate treatment
claims.
We review a district court’s class certification decision for
abuse of discretion. See Gregory v. Finova Capital Corp., 442 F.3d
188, 190 (4th Cir. 2006). We also utilize an abuse of discretion
standard when reviewing a district court’s Daubert evidentiary
rulings on the relevance and reliability of expert testimony. See
Bryte v. Am. Household, Inc., 429 F.3d 469, 475 (4th Cir. 2005)
25
(recognizing that “the district court has broad latitude in ruling
on the admissibility of evidence, including expert opinion”). And,
we review a district court’s grant of summary judgment de novo,
viewing the facts in the light most favorable to the nonmoving
party. See Nat’l City Bank v. Turnbaugh, 463 F.3d 325, 329 (4th
Cir. 2006).
III.
A. Class Certification
Because none of the plaintiffs have made meritorious disparate
impact claims, see infra Part III.B, they cannot constitute proper
class representatives, and the issue of whether the district court
abused its discretion in denying class certification is moot. See
Anderson, 406 F.3d at 273-75.
B. Disparate Impact Claims
1. Sherman’s and Scott’s promotion system claims
Sherman and Scott contend that the district court erred in
granting summary judgment on their CBPS-related disparate impact
claims. Unfortunately for them, this contention is foreclosed by
our prior Anderson decision, affirming the summary judgment award
to the defendants on the essentially identical claim brought by
Anderson. See McMellon v. United States, 387 F.3d 329, 332 (4th
Cir. 2004) (en banc) (recognizing “the basic principle that one
panel cannot overrule a decision issued by another panel”). We are
26
therefore constrained to affirm the court’s awards of summary
judgment on Sherman’s and Scott’s claims.
2. Scott’s and Johnson’s radiation exposure claims
Scott and Johnson challenge the district court’s awards of
summary judgment on their radiation exposure disparate impact
claims. As discussed above, the court made its summary judgment
rulings after granting the defendants’ motion in limine to exclude
the expert testimony of Dr. Ruttenber. Because the radiation
exposure disparate impact claims depend on the expert testimony of
Dr. Ruttenber, we first assess the propriety of the court’s
exclusion of that evidence.
Simply put, the district court did not abuse its discretion in
ruling, at the conclusion of the Daubert hearing, that Dr.
Ruttenber’s testimony must be excluded. Indeed, we agree with the
court “that there is no fit . . . between [Dr. Ruttenber’s]
analysis and the limited issue in this case, [i.e.,] whether or not
discriminatory management-initiated job assignments produced a
difference in radiation dose for black[] and white[]” employees.
See Daubert, 509 U.S. at 591-92 (recognizing that, to satisfy
relevancy requirement, expert testimony must “fit” by providing “a
valid scientific connection to the pertinent inquiry as a
precondition to admissibility”). As such, we need not assess the
other issues addressed by the court in excluding Dr. Ruttenber’s
testimony.
27
Because we affirm the ruling of the district court excluding
Dr. Ruttenber’s testimony, we also affirm the court’s summary
judgment awards on Scott’s and Johnson’s radiation exposure
disparate impact claims. Those claims relied on Dr. Ruttenber’s
testimony and are unsustainable without it.
C. Disparate Treatment Claims
1. Sherman’s failure to promote claim
Sherman maintains that the district court erred in granting
summary judgment to the defendants on his failure to promote
disparate treatment claim. We agree, however, with the district
court that the evidence fails to demonstrate that Sherman was the
victim of race discrimination. As Sherman himself asserts, the
white employee given the promotion (Stewart) was preselected by the
position’s hiring manager (Hubbard). While such preselection might
demonstrate that Sherman and the other applicants were “unfairly
treated, it does not by itself prove racial discrimination.” Blue
v. U.S. Dep’t of Army, 914 F.2d 525, 541 (4th Cir. 1990)
(explaining that, “[i]f one employee was unfairly preselected for
the position, the preselection would work to the detriment of all
applicants for the job, black and white alike”); see also Anderson,
406 F.3d at 271 (invoking Blue in rejecting Anderson’s contention
that preselection of employee for promotion constituted sufficient
evidence for finding of pretext). Sherman acknowledges our Blue
precedent, but contends that he can nevertheless show that
28
Stewart’s preselection was discriminatory, based on evidence that
the next three top-scoring applicants (including Sherman) were all
African-American. The record reflects, however, that Hubbard
selected Stewart for the Lead Technical Specialist position before
even posting the opening (much less receiving applications for it
and scoring the candidates). In these circumstances, we affirm the
district court’s summary judgment award on Sherman’s failure to
promote disparate treatment claim.
2. Scott’s disparate treatment claims
a. Scott’s failure to promote claim
Scott contends that the district court erred in awarding
summary judgment to the defendants on her failure to promote
disparate treatment claim. We reject this contention and conclude
that the court properly ruled that Scott’s claim failed for lack of
evidence of pretext. Indeed, we agree with the court that Scott’s
reliance on a self-assessment of her qualifications was wholly
insufficient to sustain her claim. With particular respect to the
proposition that Scott’s experience and MBA rendered her more
qualified for the promotion than Hatcher, we observe that
experience and education were only minimum qualifications for the
open Lead Technical Specialist position, and that the promotion
decision was made based on the weighted core and functional
competencies. Cf. Anderson, 406 F.3d at 269 (recognizing, with
respect to claim that Anderson was more qualified than promoted
29
white employee based on educational background and years of
service, that “Anderson cannot establish her own criteria for
judging her qualifications for the promotion,” but rather “must
compete for the promotion based on the qualifications established
by her employer”).
Of course, Scott’s total score on the competencies was brought
down by the “0” marks she received in several areas for lack of
information in her Personal History form on which she could be
assessed. Scott does not dispute that she failed to submit
detailed information with her application materials for the hiring
committee’s review. Rather, she suggests that the committee should
have looked beyond her application materials to ascertain her prior
work performance, and in doing so would have realized that she
possessed the requisite skills for the open Lead Technical
Specialist position. Along the same lines, the Anderson plaintiff
contended that her scoring on a CBPS evaluation was inconsistent
with prior positive performance reviews, and thus constituted
evidence of pretext for the defendants’ failure to promote her.
See 406 F.3d at 271-72. We rejected Anderson’s contention,
explaining that “[w]e do not sit as a super-personnel department
weighing the prudence of employment decisions made by the
defendants,” and that “[w]e cannot require that different
supervisors within the same organization must reach the same
conclusion on an employee’s qualifications and abilities.” Id. at
30
272 (internal quotation marks omitted). Here, there is no evidence
that the hiring committee evaluating Scott had any information
before it other than what she included in her application, and we
cannot say that the committee was obliged to seek out that which
Scott herself did not provide. Accordingly, we affirm the district
court’s grant of summary judgment on Scott’s failure to promote
disparate treatment claim.
b. Scott’s hazardous job assignment claim
Scott also challenges the district court’s summary judgment
award to the defendants on her hazardous job assignment disparate
treatment claim. We agree with Scott that the court erred in
concluding that she failed to establish her prima facie case.
Contrary to the conclusion of the district court, Scott’s
assignment to the new sample receiver job could be deemed an
“adverse employment action” based on evidence that it subjected her
to appreciably more dangerous conditions — i.e., greater exposure
to potentially harmful radiation — than those she faced in her
previous post. See Gunten v. Maryland, 243 F.3d 858, 868 (4th Cir.
2001) (observing that if change in plaintiff’s job assignment
“truly had been significant,” such as by exposing her to more
dangerous conditions, her contention that reassignment constituted
adverse action “would have merit,” and agreeing “in principle that
increased exposure to dangerous pathogens could adversely effect
the terms, condition, or benefits of employment”), overruled on
31
other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53 (2006). The relevant inquiry is whether Scott was indeed
subjected to appreciably more dangerous conditions — not whether
(as suggested by the district court) she suffered a radiation dose
beyond those limits established by the federal government and the
defendants.
The defendants offer us an alternative ground for affirming
the summary judgment award in their favor: they contend that Scott
cannot demonstrate, in support of her prima facie case, that she
was treated worse than “similarly situated” white employees. See
Sterling v. Tenet, 416 F.3d 338, 345 (4th Cir. 2005) (recognizing
that, to establish prima facie case, plaintiff must “raise an
inference of discriminatory intent by showing that she was treated
worse than similarly situated employees of other races”). The
defendants point to the fact, acknowledged by Scott, that three
white employees in her work group (Robbins, Wainwright, and Healy)
also worked as sample receivers. The record does not reflect,
however, that Scott was “similarly situated” to Robbins,
Wainwright, and Healy. Rather, the evidence shows that Scott was
the first Site employee ever placed in the sample receiver job
created to deal exclusively with the highly radioactive BNFL
samples. Although Robbins and Wainwright had previously worked
with the Site’s first set of such samples, they were also handling
less radioactive samples at the same time. Moreover, when they did
32
not apply for the new sample receiver job dedicated to the BNFL
samples, they (unlike Scott) were not forced into the assignment,
even though it seems they would have been prime candidates for the
job having already handled the Site’s first set of BNFL samples.
Instead, Robbins and Wainwright remained sample receivers working
only with non-highly radioactive samples. As for Healy, while it
is possible that his sample receiver job involved working with the
BNFL samples (the record is simply unclear on this point), there is
no evidence before us suggesting that he was involuntarily assigned
to do so.10
Although the facts underlying Scott’s hazardous job assignment
disparate treatment claim could certainly be clearer, the forecast
evidence is at least sufficient to withstand summary judgment. We
therefore vacate the district court’s summary judgment award on
this particular claim only, and remand for such other and further
proceedings as may be appropriate.
3. Johnson’s hazardous job assignment claim
10
Notably, while the defendants assert in this appeal that they
had a legitimate, nondiscriminatory reason for assigning Scott to
the new sample receiver job (i.e., a work shortage in her group
that left her without a full-time assignment), see supra note 7,
they do not dispute that Scott has forecast sufficient evidence of
pretext to survive summary judgment. In that regard, Scott relies
on the evidence reflecting that the defendants have given varying
reasons for choosing her for the new position, thus creating a
genuine issue of fact with respect to pretext. See EEOC v. Sears
Roebuck & Co., 243 F.3d 846, 852-53 (4th Cir. 2001) (“[T]he fact
that Sears has offered different justifications at different times
for its failure to hire Santana is, in and of itself, probative of
pretext.”).
33
Johnson maintains that the district court erred in awarding
summary judgment to the defendants on her hazardous job assignment
disparate treatment claim. Upon reviewing the record, however, we
are constrained to agree with the district court that Johnson’s
evidence was wholly insufficient to establish a prima facie case of
discrimination. In her own affidavit (apparently submitted to
clarify her vague and sometimes contradictory deposition
testimony), Johnson averred only that “I was forced to ‘dress out’
[for protection from radiation exposure] as often as every day from
some point in the early 1990’s until I was laid off in May 1995.
White Painters with my same White Foreman, Eddie Hill, were not
required to dress out as often as I was.” Simply put, this
evidence cannot defeat the defendants’ summary judgment motion.
See Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 134-35 (4th Cir.
2002) (“These affidavits . . . amount to no more than subjective
beliefs, and such evidence, without more, is insufficient to create
a genuine issue of material fact as to any discriminatory conduct
on Bell Atlantic’s part.”). Accordingly, we affirm the district
court’s summary judgment award on Johnson’s hazardous job
assignment disparate treatment claim.
4. Lott-Abney’s demotion claim
Finally, Lott-Abney challenges the district court’s grant of
summary judgment on her demotion-related disparate treatment claim.
For the reasons discussed by the district court, however, we
34
conclude that Lott-Abney failed to establish her prima facie case.
Cf. Causey v. Balog, 162 F.3d 795, 802 (4th Cir. 1998) (observing
that evidence was insufficient to show that employer “filled”
plaintiff’s position with someone outside protected class, where
employer split plaintiff’s former duties between two divisions);
Blistein v. St. John’s College, 74 F.3d 1459, 1470 (4th Cir. 1996)
(concluding that plaintiff failed to establish he was “replaced”
where evidence reflected that alleged replacement assumed “only
some of [plaintiff’s] former duties,” other such duties were given
to “various individuals [in plaintiff’s same] protected class,” and
remaining “duties were not assumed by anyone”). We therefore
affirm the district court’s summary judgment award on Lott-Abney’s
illegal demotion claim.
IV.
Pursuant to the foregoing, we affirm the district court with
respect to the claims of Sherman (No. 04-2414), Lott-Abney (No.
2417), and Johnson (No. 2418). We affirm in part on the claims of
Scott (No. 04-2420); we vacate, however, the award of summary
judgment on her hazardous job assignment claim, and remand for
further proceedings on such disparate treatment claim only.
Nos. 04-2414, 04-2417, and 04-2418 AFFIRMED
No. 04-2420 AFFIRMED IN PART
AND VACATED AND REMANDED IN PART
35