Carter v. O'Neill , 78 F. App'x 978 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 27, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-30140
RONALD EDWARD CARTER,
Plaintiff-Appellant,
versus
PAUL O’NEILL, SECRETARY, DEPARTMENT
OF TREASURY,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
(00-CV-1125)
--------------------
Before JOLLY and WIENER, Circuit Judges, and ROSENTHAL,* District
Judge.
PER CURIAM:**
Plaintiff-Appellant Ronald Carter, a white male GS-12 revenue
agent employed by the Internal Revenue Service (“IRS”), filed the
instant reverse discrimination employment action against Defendant-
Appellee Paul O’Neill, Secretary, U.S. Department of the Treasury,
asserting that he was denied a promotion because of his race and
sex. Carter claims (1) institutional discrimination arising from
*
District Judge of the Southern District of Texas, sitting by
designation.
**
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
the IRS’s strategic initiative ERR-16 as systematically
discriminating against white males since 1990, in violation of
Title VII of the Civil Rights Act of 1964,1 and the Fifth Amendment
of the United States Constitution;2 and (2) discrimination in
violation of Title VII for failure to promote him to fill one of
three vacant GS-13 revenue agent positions in the Coordinated
Examination Program (“CEP”) Group in Jackson, Mississippi. In a
combination of sequential rulings, the district court eventually
dismissed all of Carter’s claims. We affirm.
I. Analysis
The district court’s bench trial findings of fact are reviewed
for clear error.3 The court’s legal rulings, including partial
summary judgments that in combination resulted in the dismissal of
Carter’s discrimination employment action, are reviewed de novo.4
In conducting our review, we have considered the record on appeal,
the arguments advanced by counsel in their respective appellate
briefs and in their oral arguments before this panel, and the
applicable law as cited by counsel and determined independently.
1
42 U.S.C. § 2000(e), et seq.
2
U.S. Const. amend. V.
3
See Quijano v. United States, 325 F.3d 564, 567 (5th Cir.
2003).
4
See id.; Price v. Federal Express Corp., 283 F.3d 715, 719
(5th Cir. 2002)(district court’s grant of summary judgment reviewed
de novo).
2
As a result, we are in agreement with the disposition of Carter’s
case by the district court.
Carter’s institutional discrimination claim, as stated above,
was predicated upon the alleged violations of his rights under
Title VII and the Fifth Amendment of the United States
Constitution. The court properly dismissed Carter’s Fifth
Amendment claim because Title VII is the exclusive vehicle
available to federal employees claiming employment discrimination.5
As for Carter’s Title VII claim that systematic reverse
discrimination over many years prevented him from acquiring the
experience and performance evaluations necessary to compete with
racially and sexually favored revenue agents and resulted in his
failure to obtain promotion, the district court correctly concluded
that Carter’s claim cannot stand alone as a separate cause of
action absent a causal nexus between the alleged historic or
current favoring of females and minorities and Carter’s failure to
obtain promotion.6 The court also correctly concluded that
5
See Brown v. General Servs. Admin., 425 U.S. 820, 96 S.Ct.
1961, 48 L.Ed.2d 402 (1976)(Title VII provides exclusive remedy for
claims of discrimination in federal employment); Perez v. Federal
Bureau of Investigation, 71 F.3d 513, 515 (5th Cir. 1995).
6
See Whalen v. Rubin, 91 F.3d 1041, 1045 (7th Cir. 1996)(mere
existence of an affirmative action policy is insufficient to prove
intentional discrimination absent evidence of a link between the
IRS’s policies and its actions towards the Title VII plaintiff);
see also Frank, et al. v. Xerox Corp., Nos. 02-20416, 02-20516,
2003 WL _____, at *___ (5th Cir. Sept. 30, 2003)(existence of
affirmative action policy, coupled with evidence that policy was
followed in the adverse employment action, constituted direct
evidence of unlawful discrimination)(citing Bass v. Bd. of County
3
Carter’s inability to show such a causal nexus proves fatal to his
claim.
Assuming, without granting, that Carter has demonstrated both
the existence of an institutionalized system of affirmative action
and its negative cumulative effect on white male revenue agents by
placing beyond their reach the necessary work experience, awards,
and relative fitness ratings, Carter has not causally connected his
own individual work experiences with his failure to obtain the
particular promotion here at issue. This is perhaps best
illustrated by Carter’s insistence that the selection panel’s
reliance on prior CEP experience in ranking the twelve applicants
for the three positions, in combination with the systematic
prevention of white male agents’ obtaining such experience in
recent years, constituted a discriminatory practice in the
selection process (Carter advances a similar claim in connection
with service awards and fitness ratings). Despite this insistence,
though, Carter has not shown the specific nexus between the absence
of CEP experience in his résumé and the denial of this particular
promotion.
Further, during all times pertinent to this inquiry, Carter
worked out of the Monroe, Louisiana office of the IRS; and during
that time, only one CEP case arose in the area served by that
office. The record is uncontradicted that Carter neither
Comm’rs, Orange County, Fla., 256 F.3d 1095, 1111 (11th Cir.
2001)).
4
specifically requested to participate in that CEP matter nor let it
be known generally that he had an interest in such assignments.
Even though systematic exclusion of white males from
acquiring such experience as a side effect of favoring females and
minorities in past assignments might support some other,
differently situated white male GS-12 revenue agent’s claim of
discrimination in the promotion process, for the reasons above, it
does not support Carter’s own claim here. As he has failed to
demonstrate specific adverse consequences to him in this particular
promotion-seeking effort, his claim cannot stand. Merely
establishing the existence of a general pattern or practice of
discrimination such as that shown to have existed in the IRS under
strategic initiative ERR-16 and other programs to attain work force
diversity in high-level technical and management positions within
the IRS is no substitute for Carter’s satisfying the burden in this
private, non-class action lawsuit.7
In addition, Carter has failed to show pretext in the facially
neutral selection process, conducted pursuant to the provisions of
the National Treasury Employees Unions’ collective bargaining
agreement, that resulted in the promotion of the purported racially
and sexually favored agents and Carter’s low evaluation as tenth
7
See Frank, 2003 WL _____, at *___ (citing Celestine v.
Petroleos de Venezuela, S.A., 266 F.3d 343, 355-56 (5th Cir.
2001)(rejecting pattern-or-practice method of proof in private,
non-class action lawsuits)).
5
among the twelve applicants.8 His assertion that CEP experience is
a false or pretextual criterion in the promotion calculus for a GS-
13 revenue agent to be promoted to work in the CEP area simply
cannot be maintained.
II. Conclusion
For the foregoing reasons, and those set forth by the district
court, that court’s rulings, orders, and judgments are, in all
respects,
AFFIRMED.
8
See Texas Dept. of Community Affairs v. Burdine, 450 U.S.
248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207, 215 (1981); Price,
283 F.3d 715, 722 (5th Cir. 2002)(finding employee’s evidence of
pretext insufficient to raise a genuine issue as to whether
employer’s proffered legitimate, non-discriminatory reason was
false).
6