Evans v. City of Bishop , 238 F.3d 586 ( 2001 )


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  •                        Revised February 7, 2001
    
                   IN THE UNITED STATES COURT OF APPEALS
    
                            FOR THE FIFTH CIRCUIT
    
                            _____________________
    
                                 No. 99-41444
                            _____________________
    
    
    
         LEROY EVANS, JR
    
                                        Plaintiff - Appellant
    
              v.
    
         CITY OF BISHOP
    
                                        Defendant - Appellee
    
    _________________________________________________________________
    
               Appeal from the United States District Court
                    for the Southern District of Texas
    _________________________________________________________________
    
                              December 11, 2000
    
    Before KING, Chief Judge, and CUDAHY* and WIENER, Circuit Judges.
    
    PER CURIAM:
    
         Plaintiff-Appellant Leroy Evans, Jr. appeals from the
    
    district court’s order granting Defendant-Appellee City of Bishop
    
    summary judgment on Evans’s discrimination claims.     For the
    
    following reasons, we REVERSE.
    
    
    
    
         *
            Circuit Judge of the Court of Appeals for the Seventh
    Circuit, sitting by designation.
                  I. FACTUAL AND PROCEDURAL BACKGROUND
    
         On June 17, 1998, Defendant-Appellee City of Bishop
    
    (“Bishop”) advertised in the Kingsville Record the newly created
    
    position of administrative assistant.   Shortly thereafter,
    
    Plaintiff-Appellant Leroy Evans, Jr., a former council member,1
    
    applied for the opening by handing his application directly to
    
    Charles Wesley Rogers, the mayor of Bishop.
    
         Three days before the city council meeting, Cindy
    
    Villarreal, a Bishop municipal court clerk,2 turned in her
    
    application for the advertised position.   In total, Rogers
    
    received between five and ten applications.   He reviewed only
    
    Evans’s and Villarreal’s applications3 and chose Villarreal for a
    
    position that now combined the responsibilities of the posted
    
    administrative assistant position and the existing municipal
    
    judge position.   Rogers did not interview Villarreal or inform
    
    her of his actions until the date of the city council meeting.
    
    
    
    
         1
            Evans left the city council on May 2, 1998 because he
    lost a bid for reelection.
         2
            Villarreal was the municipal court clerk at the time she
    submitted her application for the administrative assistant
    position. Although the record is not entirely clear on this
    point, it appears that she became the municipal court judge
    sometime after she submitted the application.
         3
             Rogers stated that he reviewed Evans’s application
    because Evans handed the application directly to him and that he
    reviewed Villarreal’s application because he heard that she had
    applied.
    
                                     2
    Rogers then went before the city council and received approval
    
    for his decisions.4
    
         Evans filed suit against Bishop on December 18, 1998,
    
    asserting claims under Title VII of the Civil Rights Act of 1964
    
    (“Title VII”) and the Age Discrimination in Employment Act
    
    (“ADEA”).   He alleged employment discrimination on the basis of
    
    race, color, age, and sex.    On June 23, 1999, Bishop filed a
    
    motion for summary judgment.
    
         The district court referred the case to a United States
    
    magistrate judge who, on August 26, 1999, filed her Memorandum
    
    and Recommendation.    The magistrate judge recommended that
    
    Bishop’s motion for summary judgment be granted and judgment
    
    rendered in Bishop’s favor.    In a decision dated November 29,
    
    1999, the district court adopted the magistrate judge’s
    
    conclusions5 and granted Bishop’s motion for summary judgment.
    
         Evans timely appealed the decision to this court.    On May
    
    22, 2000, a panel of this court affirmed the district court in an
    
    unpublished opinion.    See Evans v. City of Bishop, No. 99-41444
    
    (5th Cir. May 22, 2000) (per curiam).    However, on July 27, 2000,
    
    in light of the recent Supreme Court decision in Reeves v.
    
    
    
    
         4
            Rogers did not make the applications available to the
    city council for review. He did tell the city council members
    that he had only examined Evans’s and Villarreal’s applications.
         5
            As such, the magistrate judge’s findings and conclusions
    will be referred to, hereinafter, as those of the district court.
    
                                      3
    Sanderson Plumbing Products, Inc., 
    120 S. Ct. 2097
     (2000), we
    
    withdrew our May 22 opinion.
    
    
    
                           II. STANDARD OF REVIEW
    
         We review de novo a district court’s grant of summary
    
    judgment, applying the same standard as the district court.     See
    
    Walker v. Thompson, 
    214 F.3d 615
    , 624 (5th Cir. 2000).     Summary
    
    judgment is appropriate “if the pleadings, depositions, answers
    
    to interrogatories, and admissions on file, together with the
    
    affidavits, if any, show that there is no genuine issue as to any
    
    material fact and that the moving party is entitled to a judgment
    
    as a matter of law.”   FED. R. CIV. P. 56(c); see also Celotex Corp.
    
    v. Catrett, 
    477 U.S. 317
    , 322-23 (1986).    “If the moving party
    
    meets the initial burden of showing there is no genuine issue of
    
    material fact, the burden shifts to the nonmoving party to
    
    produce evidence or designate specific facts showing the
    
    existence of a genuine issue for trial.”     Allen v. Rapides Parish
    
    Sch. Bd., 
    204 F.3d 619
    , 621 (5th Cir. 2000) (internal quotations
    
    and citation omitted).    Doubts are to be resolved in favor of the
    
    nonmoving party, and any reasonable inferences are to be drawn in
    
    favor of that party.     See Burch v. City of Nacogdoches, 
    174 F.3d 615
    , 619 (5th Cir. 1999).
    
    
    
    
                                       4
             III. SOVEREIGN IMMUNITY DOES NOT BAR ADEA CLAIM
    
         Bishop asserts that Evans’s ADEA claim is barred because the
    
    ADEA has recently been held to be an invalid abrogation of a
    
    state’s sovereign immunity.   Bishop argues further that the law
    
    at the time of appellate review determines the existence of a
    
    live controversy.6
    
         The Supreme Court in Kimel v. Florida Board of Regents, 
    120 S. Ct. 631
     (2000), held that Congress exceeded its powers under
    
    § 5 of the Fourteenth Amendment by enacting the ADEA.   As such,
    
    the states and their political subdivisions are protected by the
    
    sovereign immunity principle embodied in the Eleventh Amendment.
    
    In this case, however, Bishop is not a state; it is a city.
    
    Bishop argues that the Kimel Court noted that Congress did not
    
    have sufficient grounds to believe that state and local
    
    governments were engaging in age discrimination, see id. at 645;
    
    thus, Bishop concludes that it, as a city, is immune from ADEA
    
    suits.
    
         However, the Kimel Court’s comment about congressional
    
    findings has no relevance regarding whether a city has sovereign
    
    immunity from suit.   That determination arises from the well-
    
    
         6
            Bishop did not raise this issue in the district court
    and thus did so for the first time on appeal. However, Bishop
    did not waive appellate review because Eleventh Amendment “claims
    are jurisdictional in nature and may be raised and considered at
    any time.” Laje v. R.E. Thomason Gen. Hosp., 
    665 F.2d 724
    , 726
    n.2 (5th Cir. 1982) (citing Edelman v. Jordan, 
    415 U.S. 651
    , 677-
    78 (1974)).
    
                                     5
    settled law under Eleventh Amendment jurisprudence regarding
    
    “political subdivisions.”    Not all political subdivisions are
    
    automatically immunized when the state is immunized.    See Earles
    
    v. State Bd. of Certified Pub. Accountants, 
    139 F.3d 1033
    , 1036
    
    (5th Cir. 1998) (citing Edelman v. Jordan, 
    415 U.S. 651
    , 677-78
    
    n.12 (1974)).    “We must look to see whether the entity in
    
    effect[] stands in the shoes of the state itself.”     Id. (internal
    
    quotations and citation omitted).
    
         In the overwhelming number of cases, Eleventh Amendment
    
    protection “does not extend to counties and similar municipal
    
    corporations.”    Mt. Healthy City Sch. Dist. Bd. of Educ. v.
    
    Doyle, 
    429 U.S. 274
    , 280 (1977) (emphasis added).    Thus,
    
    “independent local political subdivisions are not entitled to
    
    . . . [sovereign] immunity even though they exercise a ‘slice of
    
    state power.’” Jacintoport Corp. v. Greater Baton Rouge Port
    
    Comm’n, 
    762 F.2d 435
    , 438 (5th Cir. 1985); see also City of
    
    Lafayette, La. v. La. Power & Light Co., 
    532 F.2d 431
    , 434 n.6
    
    (5th Cir. 1976) (“[C]ities, counties, and other state political
    
    subdivisions are not considered ‘the state’ for purposes of
    
    Eleventh Amendment immunity.”).
    
         Bishop is a city, and there is no evidence that it is
    
    controlled by the State of Texas to such an extent that it stands
    
    in the shoes of the state.    Thus, Bishop is not immune from ADEA
    
    suits.
    
    
    
                                      6
                   IV. PLAINTIFF SURVIVES SUMMARY JUDGMENT
    
         Evans argues that because he made out a prima facie case of
    
    discrimination and illustrated that Bishop’s proffered reasons
    
    were pretextual, he has presented a genuine issue as to Bishop’s
    
    discriminatory motives.   He asserts further that Reeves v.
    
    Sanderson Plumbing Products, Inc., 
    120 S. Ct. 2097
     (2000),
    
    explicitly did not require evidence beyond a prima facie case and
    
    pretext as a prerequisite for a plaintiff to survive summary
    
    judgment.    Bishop responds that although Evans put forth a prima
    
    facie case, Reeves does not alter the result of the previous
    
    panel decision because no rational trier of fact could conclude
    
    that its actions were motivated by discriminatory animus.     We do
    
    not agree.   We find that Evans fulfilled his duty under Reeves to
    
    demonstrate genuine issues of material fact as to his
    
    discrimination claims, and thus, the case should proceed to
    
    trial.7
    
         7
            Bishop repeatedly asserts on appeal that “a subjective
    belief of discrimination, however genuine, . . . [may not] be the
    basis of judicial relief.” Elliott v. Group Med. & Surgical
    Serv., 
    714 F.2d 556
    , 567 (5th Cir. 1983). However, as we have
    explained in Portis v. First National Bank, in “the Elliott line
    of cases, the plaintiffs’ testimony failed because it alone stood
    against unimpeached and uncontradicted opposing testimony.” 
    34 F.3d 325
    , 330 n.10 (5th Cir. 1994). Thus, when the plaintiff
    challenges the defendant’s assertions and testimony, the “fact
    that [the plaintiff’s] case-in-chief consists solely of [his] own
    testimony does not prevent [him] from establishing intentional
    discrimination.” Id. (emphasis added); see also Vance v. Union
    Planters Corp., 
    209 F.3d 438
    , 442 & n.3 (5th Cir. 2000) (citing
    Portis with approval). In this case, Evans has challenged
    Bishop’s claims and has put forth other evidence (in addition to
    his subjective belief).
    
                                      7
         In McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
     (1973),
    
    the Supreme Court specified a burden-shifting approach to
    
    establishing proof of intentional discrimination via
    
    circumstantial evidence.8   First, Evans made out his prima facie
    
    case by showing that (1) he is an African-American male over
    
    sixty years old; (2) he was qualified for the job; (3) he was not
    
    hired; and (4) a Hispanic woman under forty years was
    
    subsequently hired for that position.       See id. at 802.   The
    
    burden then shifted to Bishop to articulate a legitimate, non-
    
    discriminatory reason for its decision.       See id. at 802-03; see
    
    also Tex. Dep’t of Cmty. Affairs v. Burdine, 
    450 U.S. 248
    , 255-56
    
    (1981) (stating that defendant’s burden is only one of production
    
    and not persuasion).   Bishop claimed that economic factors and
    
    qualifications motivated its choice of Villarreal.      Rogers stated
    
    that he had previously considered combining the municipal court
    
    judge and administrative assistant positions because neither
    
    position required full-time attention and because such a
    
    consolidation would cut costs.   Rogers further maintained that he
    
    believed Villarreal was the best-qualified applicant.
    
         Because Bishop produced non-discriminatory reasons, the
    
    “presumption of discrimination [created by Evans’s prima facie
    
    case] drops out of the picture.”       Reeves, 120 S. Ct. at 2106
    
         8
             This circuit has acknowledged that the McDonnell
    Douglas framework applies to both Title VII and ADEA claims.        See
    Russell v. McKinney Hosp. Venture, --- F.3d ----, 
    2000 WL 1785541
    , at *9 n.3 (5th Cir. 2000).
    
                                       8
    (internal quotations and citation omitted).   However, the fact
    
    finder “may still consider the evidence establishing the
    
    plaintiff’s prima facie case ‘and inferences properly drawn
    
    therefrom . . . on the issue of whether the defendant’s
    
    explanation is pretextual.’”   Id. (quoting Burdine, 450 U.S. at
    
    255 n.10).
    
         The district court found that a trier of fact could conclude
    
    that both of Bishop’s proffered reasons were pretextual.9   The
    
    court noted that the fact that combining the two positions would
    
    save money did not address why Villarreal was chosen over Evans.
    
    Furthermore, Evans contests the timing of this consolidation
    
    decision, pointing out that it was not made until after
    
    Villarreal submitted her application (as the original posting was
    
    for a different position, and Villarreal herself did not know of
    
    the modification until the city council meeting).   We thus find
    
    that Evans has, at the very least, created a jury issue as to
    
    pretext on this proffered justification.   See Russell v. McKinney
    
    Hosp. Venture, --- F.3d ----, 
    2000 WL 1785541
    , at *4 (5th Cir.
    
    2000) (reiterating that it is the province of the jury to choose
    
    among conflicting versions and make credibility determinations).
    
    
    
    
         9
            Although the district court found that Evans had
    established a prima facie case and pretext, the court stated that
    Evans failed to create a fact question about Bishop’s
    discriminatory animus. As we discuss infra in the text, this
    analysis was in error.
    
                                     9
         Evans also adduced evidence to support a finding of pretext
    
    regarding the qualification justification.    He points to a
    
    contrary statement by Rogers in his deposition that qualification
    
    was not his main priority.   Evans also questions how Villarreal
    
    could be deemed the most qualified when Rogers did not interview
    
    any other candidates and when he stated that he did not compare
    
    Evans’s and Villarreal’s qualifications.10    We agree with the
    
    district court that sufficient evidence exists for a jury to find
    
    that this justification is also pretextual.
    
         Thus, Evans has established a prima facie case of
    
    discrimination and put forth sufficient evidence for a fact
    
    finder to find Bishop’s proffered reasons to be pretextual.
    
    Reeves instructs that this showing is usually sufficient for a
    
    plaintiff’s case to survive summary judgment:
    
         [O]nce 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 reason
         for its decision.
    
         . . . .
    
         Thus, a plaintiff’s prima facie case, combined with
         sufficient evidence to find that the employer’s
    
         10
            Bishop argues that Evans does not make a showing that
    Rogers’s statement of Villarreal’s superior qualifications was
    untrue. Even assuming without deciding that Evans’s case is
    lacking in this regard, Bishop’s argument is without merit.
    Pretext can be illustrated via circumstantial evidence, as has
    been done here, and does not require direct evidence. See United
    States Postal Serv. Bd. of Governors v. Aikens, 
    460 U.S. 711
    , 714
    n.3 (1983) (stating that the district court erred in requiring
    the plaintiff to submit direct evidence).
    
                                    10
         asserted justification is false, may permit the trier
         of fact to conclude that the employer unlawfully
         discriminated.
    
    Reeves, 120 S. Ct. at 2108-09.
    
         In this case, Evans has also put forth evidence beyond that
    
    of the prima facie case and pretext.    Evans stated that one11 city
    
    council member made racially derogatory comments directed against
    
    African Americans.   Reeves emphatically states that requiring
    
    evidence of discriminatory animus to be “in the direct context”
    
    of the employment decision is incorrect.    See id. at 2111; see
    
    also Russell, --- F.3d ----, 
    2000 WL 1785541
    , at *7-*8 (5th Cir.
    
    2000) (emphasizing that our “stray remarks” jurisprudence must be
    
    viewed with caution in light of Reeves).    Thus, it would be
    
    proper for a jury to take this evidence into account.    In
    
    addition, Evans claimed that this same council member worked to
    
    defeat him in his reelection.    The district court stated that
    
    this was outside the realm of the dispute at hand.    However,
    
    again, the same Reeves principle applies: any evidence that could
    
    shed light on an employer’s true motive must be considered.
    
         The district court applied a now-disallowed legal standard
    
    to analyze Bishop’s summary judgment motion.    The Supreme Court
    
    
         11
             The Reeves facts are analogous here — derogatory
    remarks also could not be attributed to all of the individuals
    responsible for making the employment decision in Reeves.
    However, the Supreme Court stated that “although [that was]
    relevant, [it was] certainly not dispositive” and went on to find
    the remarks of one decisionmaker to further support plaintiff’s
    case of discrimination. See 120 S. Ct. at 2111.
    
                                     11
    in Reeves emphasized the importance of jury fact finding and
    
    reiterated that evidence of the prima facie case plus pretext
    
    may, and usually does, establish sufficient evidence for a jury
    
    to find discrimination.   See Reeves, 120 S. Ct. at 2109.   Thus,
    
    considering all of the evidence and taking all reasonable
    
    inferences in favor of the nonmovant Evans, a genuine issue
    
    exists as to whether Bishop intentionally discriminated against
    
    Evans.
    
    
    
                               V. CONCLUSION
    
         For the above-stated reasons, the judgment of the district
    
    court is REVERSED.   We REMAND for further proceedings in light of
    
    this opinion.   Costs shall be borne by Bishop.
    
    
    
    
                                    12
    

Document Info

DocketNumber: 99-41444

Citation Numbers: 238 F.3d 586

Filed Date: 2/8/2001

Precedential Status: Precedential

Modified Date: 3/3/2016

Authorities (17)

Allen v. Rapides Parish , 204 F.3d 619 ( 2000 )

Vance v. Union Planters Corp , 209 F.3d 438 ( 2000 )

McDonnell Douglas Corp. v. Green , 411 U.S. 792 ( 1973 )

Edelman v. Jordan , 415 U.S. 651 ( 1974 )

Mt. Healthy City Bd. of Ed. v. Doyle , 429 U.S. 274 ( 1977 )

Texas Dept. of Community Affairs v. Burdine , 450 U.S. 248 ( 1981 )

Postal Service Bd. of Governors v. Aikens , 460 U.S. 711 ( 1983 )

Celotex Corporation v. Myrtle Nell Catrett, Administratrix ... , 477 U.S. 317 ( 1986 )

Kimel v. Florida Bd. of Regents , 528 U.S. 62 ( 2000 )

City of Lafayette, Louisiana, and City of Plaquemine, ... , 532 F.2d 431 ( 1976 )

Luis J. Laje v. R. E. Thomason General Hospital , 665 F.2d 724 ( 1982 )

32-fair-emplpraccas-bna-1451-32-empl-prac-dec-p-33813-jack , 714 F.2d 556 ( 1983 )

Jacintoport Corp. v. Greater Baton Rouge Port Commission , 762 F.2d 435 ( 1985 )

kenneth-don-earles-albert-r-leger-joseph-michael-sledge-v-state-board-of , 139 F.3d 1033 ( 1998 )

Gene A. Burch v. City of Nacogdoches , 174 F.3d 615 ( 1999 )

Stephanie Walker Nyree Preston v. Cheryl Thompson Don ... , 214 F.3d 615 ( 2000 )

Reeves v. Sanderson Plumbing Products, Inc. , 530 U.S. 133 ( 2000 )

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