Jenkins v. Ball Corporation , 140 F. App'x 519 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 28, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-11157
Summary Calendar
EVONNE JENKINS,
Plaintiff-Appellant,
versus
BALL CORPORATION,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Evonne Jenkins appeals from the district court’s grant of Ball Metal Beverage Container
Corporation’s (“Ball Corporation”) motion for summary judgment. She had argued that she was the
victim of racial, age, and gender discrimination because she was denied a promotion she had sought,
and which she averred that a lesser qualified individual received. We have reviewed the entirety of
*
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 record. Because we conclude that the district court was unassailably correct in its determination
that no genuine issues of material fact were in dispute, we affirm the grant of summary judgment.
FACTUAL AND PROCEDURAL HISTORY
Evonne Jenkins, an African-American female, has been employed by Ball Corporation, or one
of its predecessors in interest, since 1979. She originally brought this action asserting that she had
been discriminated against on the basis of her race, age, and gender, and further alleged that she had
been retaliated against. In her capacity with Ball Corporation, she worked as a Chemical Process
Operator (CPO). However, the circumstances surrounding her desire to be promoted to the position
of Chemical Process Maintainer (CPM)1 form the underlying factual basis for her discrimination
claims.
Ball Corporation was seeking to fill two open CPM position within the company and Denise
Reyes, Glenn Hubert, and Gilbert Gutierrez (collectively “the interviewers”) were responsible for
interviewing applicants. In late June of 2001, five Ball Corporation employees were interviewed:
Aaron Tan, Bruce Callison, Co rey Underwood, Clara Faulkner, and Jenkins (collectively “the
interviewees”). As part of the interview process, the interviewees were each given a twenty-five
question test that had both subjective and objective components. For example, the interviewees were
1
The district court identified in its order grant ing Ball Corporation’s motion for summary
judgment, the requirements for holding the title of CPM. The district court found that CPM’s were
“responsible for maintenance and repair of the chemical process machinery, as well as routine
operational activities in the Chemical Process Operations area, including but not limited to: providing
mechanical assistance in the Chemical Process area as well as in other areas of the plaint as needed;
operating and maintaining the wastewater treatment system to ensure the system is operating within
specific parameters; monitoring, maintaining and repairing equipment and machinery used in chemical
processing; installing and repairing plumbing as needed; and equipment troubleshooting.” While this
job description was provided by Ball Corporation in its briefing to the district court in support of its
motion for summary judgment, it has never been argued by Jenkins that the responsibilities delineated
by Ball Corporation were inaccurate.
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required to answer questions involving, inter alia, basic mathematical computations, their
understanding of the proper safety measures to be undertaken should an emergency arise, their
reasons for wanting the CPM position, and their knowledge regarding certain mechanical, technical,
and chemical terminology. Following each answer provided during the course of the interview, the
interviewers would assess the response on a sliding scale ranging from 1 - 5. However, the interview
was not the sine qua non of Ball Corporation’s hiring process, as the company also took into
consideration other factors including the extent of the interviewees technical and mechanical
experience.2 Eventually, Aaron Tan and Bruce Callison were hired for open CPM positions.
Jenkins subsequently brought this action in the United States District Court for the Northern
District of Texas, challenging the fact that she was not hired for one of the open CPM positions. She
asserted that amongst the principal reasons why she was not hired was the interviewers’
discriminatory animus. Particularly, she argued that as between herself and Tan, his interview scores
and mechanical and technical background were neither quantitatively nor quantitatively better than
her own. In response, Ball Corporation moved for summary judgment, asserting that Jenkins’s
allegations were conclusory and lacked merit. Moreover, the company observed that even if there
was some substance to Jenkins’s contentions such as would arguably establish a prima facie case of
discrimination, she still could not satisfy her summary judgment burden by demonstrating that there
was a genuine issue of material fact in dispute because Jenkins could not produce any evidence that
would suggest that the reasons asserted by Ball Corporation for not promoting her were pretextual.
2
Because greater technical savvy was apparently a prerequisite for promotion to the CPM
position, the company provided a formal course of study known as the Technical Training Program
(TTP), which was intended to provide those aspirants seeking promotions an alternative means of
gaining technical experience. Aaron Tan was among those interviewees who participated in the TTP.
3
The district court found that Ball Corporation was entitled to summary judgment, observing
that Jenkins had failed to present any evidence that would support her averment that the reason that
she was not promoted to the CPM posit ion was because of intentional discrimination. Several
factors were weighed by the district court. First, the court observed that Jenkins could not establish
a prima facie case, as she had not shown that she was even qualified for the CPM position at the time
she was interviewed. In support of this finding, the district court referenced her concessions made
during the course of her deposition, wherein she acknowledged that had she been hired she would
have lacked the requisite degree of technical experience that was required for the CPM position.
Moreover, the district court then assumed arguendo that she had established her prima facie
case and found that Jenkins still would not have defeated Ball Corporation’s motion for summary
judgment. The court noted that Ball Corporation had determined that the individuals who had been
hired, Aaron Tan and Bruce Callison, were simply more qualified than was Jenkins – thus constituting
a legitimate nondiscriminatory reason to rebut Jenkins’s would-be prima facie case. As such, Jenkins
was required to proffer some evidence suggesting that the reasons advanced by Ball Corporation
were in fact a pretext for discrimination. The district court again found that Jenkins could not meet
this burden, and held that Ball Corporation was entitled to summary judgment because there were no
genuine issues material of fact in dispute.
Additionally, the district court found that Ball Corporation was entitled to summary judgment
as to Jenkins’s claim that she was the victim of retaliation. Apparently Jenkins had argued that her
superiors spoke derisively towards her and recommended that she receive a suspension because she
had accidently ruined thirty-one pallets of aluminum cans. However, she was not suspended for this
incident. Accordingly, the district court determined that she had not satisfied her necessary burden
4
to support her contention that she had been retaliated against, principally because no showing had
been made that she had suffered an adverse employment decision.
Jenkins timely appealed, asserting that the district court made two significant errors.3 First,
she believes that the district court incorrectly struck evidence that she sought to have included in the
record. Jenkins believes that had the district court not stricken this evidence, she would have been
able to survive Ball Corporation’s motion for summary judgment. Secondly, Jenkins argues that the
district court’s grant of summary judgment was improper because -- notwithstanding her belief that
the district court erroneously struck important evidence -- she had provided sufficient evidence to
demonstrate that the reasons offered by Ball Corporation for why she was not promoted to the CPM
position were pretexts for racial and age discrimination.
ANALYSIS
A party’s motion for summary judgment will be granted “ 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). The moving party has the burden of demonstrating that there
are no genuine issues of material fact in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
3
We note at the outset that the district court strongly chided Jenkins’s counsel for presenting
largely incomprehensible submissions on a variety of dispositive matters, which the district court
asserted made its job a great deal more difficult. Most troubling from the district court’s perspective
was Jenkins’s counsel’s response to Ball Corporation’s motion for summary judgment, which the
district court described as “blunderbuss.” Rather than take a cue from the district court, Jenkins’s
counsel has again submitted briefing to this panel, which to be kind, does not present a model of legal
clarity. Nevertheless, we believe that regardless of the difficulties we have encountered in our
consideration of Jenkins’s averments, we are content that the factual record is comprehensive enough
to allow this panel to make an appropriate determination as to the issues raised in this appeal.
5
S. Ct. 2555, 91 L. Ed. 2d 265 (1986). When this court reviews a district court’s grant of summary
judgment, we review the decision de novo and apply the same standard as the district court did.
Arbaugh v. Y&H Corporation, 380 F.3d 219, 222 (5th Cir. 2004).
A. Did the district court commit reversible error by striking evidence Jenkins sought to
have admitted?
Jenkins contends that the district court erred when it granted Ball Corporation’s motion to
strike evidence. The motion was granted in large measure because the district court found that the
evidentiary matters that Jenkins sought to have admitted into the record were inappropriate for the
court’s considerat ion as the matters sought to be admitted had not been authenticated, were not
relevant to the underlying litigation, and apparently included proffers made by certain individuals
based on information not within those individuals’ personal knowledge.
We will review a district court’s motion to grant or deny a motion to strike evidence for an
abuse of discretion. See Sierra Club, Lone Star Chap. v Cedar Point Oil, 73 F.3d 546, 569 (5th Cir.
1996) (citing Scott v. Monsanto Co., 868 F.2d 786, 789 (5th Cir. 1989)); see also United States v.
Gremillion, 464 F.2d 901, 908 (5th Cir. 1972). Consequently, because rarely will a reviewing court
find that a district court’s decision either way would constitute reversible error absent highly unusual
circumstances, Jenkins faces a difficult burden. See Sierra Club, Lone Star Chap., 73 F.3d at 569.
On appeal, Jenkins discusses seriatim the evidentiary matters that she believes the district
court erroneously prevented her from admitting into the record. We have reviewed Jenkins’s
contentions, but we find them to be unavailing. For example, Jenkins claims that the selection process
for the CPM position was far more subjective than Ball Corporation would suggest. In this regard,
Jenkins states that she sought to present documents that would show that the interview process was
6
discriminatory because the interviewers conferred with each other following each interview to arrive
at a unified score for the respective interviewees. She believes that had this information remained in
the record, a fact-finder could have potentially found that Ball Corporation’s hiring process for the
CPM position was simply a well-formulated means to engage in intentional discrimination. She also
sought to include affidavits from individuals who would assert that Ball Corporation’s hiring selection
criteria lacked merit.
As noted, we will afford the district court a great deal of discretion regarding its decision to
grant Ball Corporation’s motion to strike. Moreover, no persuasive demonstration has been made by
Jenkins that the district court’s evidentiary ruling prohibited Jenkins from proffering evidence to rebut
Ball Corporation’s motion for summary judgment – and Jenkins contentions to the contrary are
unavailing. Therefore, we find that the district court’s ruling did not constitute reversible error, and
we affirm.
B. Did the district court err in granting Ball Corporation’s Motion for Summary
Judgment?
1. Title VII Claim
Jenkins asserts that the district court erroneously granted Ball Corporation’s motion for
summary judgment. She notes that the district court made a series of errors in its analysis of the
evidence. First, Jenkins avers that she had in fact established her prima facie case. Moreover, she
believes that she was imminently more qualified for the CPM position than was Aaron Tan. She notes
that many of her responsibilities as a CPO overlapped with the duties of a CPM. She also believes
that the interview process was simply a ruse to engage in discriminatory hiring because, for example,
the questions contained therein had not been certified pursuant to her union and Ball Corporation’s
7
collective bargaining agreement. Moreover, she argues that the district court erroneously found that
Tan had completed the TTP which, to recall, was offered by the company to allow its employees to
enhance their technical knowledge. She observes that the TTP was never intended to have a
dispositive effect in the context of company hiring decisions. Further, she argues that the totality of
evidence that she presented to the district court strongly militated against granting Ball Corporation’s
summary judgment motion. She asserts that not only had she provided sufficient evidence to establish
her prima facie case, but that her contentions were sufficient to demonstrate that a genuine issue of
material fact was in dispute.
The basis for determining a party’s entitlement to summary judgment in the context of a
failure-to-promote claim brought pursuant to Title VII is sufficiently well-understood from the
seminal case, McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973). Under the burden-shifting
framework articulated in McDonnell Douglas and its progeny, Jenkins must demonstrate that (1) she
is a member of a protected class; (2) she was qualified for the position for which she applied; (3) she
was not hired for the position that she sought; and (4) the employer persisted in interviewing and
hiring applicants with qualifications comparable to those possessed by Jenkins. See Davis v. Dallas
Area Rapid Transit, 383 F.3d 309, 317 (5th Cir. 2004). Thereafter, if the district court deemed that
Jenkins had established her prima facie case, an inference that Ball Corporation engaged in
discrimination would be presumed, and the company would be required to proffer a legitimate,
nondiscriminatory reason for its failure to hire Jenkins for the CPM position. Id. If Ball
Corporation’s response provided a reasonable justification for its hiring decision, the presumption of
discrimination stemming from the establishment of Jenkins’ prima facie case would dissipate, and,
in order to survive Ball Corporation’s motion for summary judgment, she would be required to
8
present evidence indicating that the reasons articulated for the company’s failure to hire her were
ostensibly a pretext for racial discrimination. Id.
The parties dispute whether Jenkins actually met her initial burden by establishing a prima
facie case of intentional discrimination. It is undisputed that as an African-American female, Jenkins
is a member of a protected class within the understanding of Title VII. It also clear that she was not
hired for the CPM position. Moreover, we will assume simply for the purposes of assessing whether
Jenkins established her prima facie case, that her qualifications were comparable to those of Aaron
Tan – the individual whom she argues that she was more qualified than, and who received the CPM
position she sought. As such, the principal question concerns whether Jenkins was actually qualified
to be a CPM. Ball Corporation avers that she did not have the requisite background for the position,
and references, inter alia, certain responses she offered during the course of her i nterview. For
example, in response to several questions related to certain technical procedures related to her
potential responsibilities as a CPM, she was unable to provide an answer. Moreover, Ball
Corporation notes, and it is not seriously disputed by Jenkins, that her interview score was the lowest
of those individuals who had sought the CPM position.4
Nevertheless, Jenkins counters by arguing that she had sufficient experience to be appointed
to the CPM position, given her years of experience with the company. She further notes that
irrespective of the fact that she failed to answer some questions during the course of her interview,
her duties as a CPO sufficiently overlapped with the responsibilities that would be required of her had
4
While Jenkins does not dispute that she got the lowest interview score amongst the
interviewees, she suggests that the questions she was asked had not been sanctioned under her
union’s collective bargaining agreement.
9
she been selected to be a CPM. Moreover, she argues in conclusory fashion that she had similar or
better qualifications that Aaron Tan.
So as to simplify our analysis, we will again assume arguendo that Jenkins has met her
requisite burden fo r establishing her prima facie case. We do so for several reasons, but principal
amongst them is that, as we shall shortly explain, Jenkins has not produced anything that would
suggest -- given this factual record -- that a genuine issue of material fact is in dispute.
Ball Corporation offered manifold reasons for failing to hire Jenkins. The company found that
she did not possess that requisite mechanical background necessary for the CPM position. Also of
note, Tan apparently participated in the TTP (and Jenkins did not), which was designed to bolster
internal applicants mechanical and technical background. Moreover, as referenced above, she
received the lowest interview score of all of the applicants. The rationales offered are sufficient to
rebut the presumption of discrimination that arose following Jenkins’s establishment of her prima
facie case.
Consequently, because Ball Corporation proffered a host of legitimate nondiscriminatory
reasons for its failure to hire Jenkins, in order to defeat the company’s motion for summary judgment,
she in turn was required to present evidence suggesting that the company’s reasons were merely a
pretext for discrimination. Jenkins avers that the reasons offered by Ball Corporation were
pretextual. She notes that her lack of participation in the TTP could not possibly act as a barrier
from being promoted because she could not recall an individual ever being denied a promotion to a
position requiring technical skill within the company because they had not participated in the TTP.
Additionally, she states that any individual who would have been hired for the CPM position would
have required additional training, thus any assertion that Ball Corporation would have been required
10
to provide such additional training solely as it would pertain to her, but not as to Aaron Tan,
misstates the true facts. She also believes that her seniority with Ball Corporation, as compared to
Tan’s, should have been taken into greater consideration when the determination was made as to
whom would be hired for the CPM position.
Jenkins’ arguments are well-taken, but they nonetheless do not support her contention that
she is entitled to bring this matter to trial. Her contention is that she had superior credentials to Tan,
and Ball Corporation’s decision to the contrary was in effect discriminatory. As such, in order to
resolve this matter as Jenkins would prefer, we are essentially being called upon to revisit Ball
Corporation’s determination that Tan’s superior qualifications led to his hiring.
In the context of making a showing of pretext, we have noted that an appealing party faces
a very high burden to establish that he or she is clearly more qualified than the individual who
actually received the desired position. See Celestine v. Petroleos de Venezuella, 266 F.3d 343, 357
(5th Cir. 2001). Similarly, it is simply beyond the ken of the judiciary to determine which of two
applicants was the most qualified for a particular position -- versus the opinion of the employer whose
responsibility it is hire such applicants -- especially when neither of the applicants’ credentials are
overwhelmingly and uncontrovertibly superior to the other. See, e.g., Deines v. Texas Dept. of
Protective and Regulatory Serv., 164 F.3d 277, 280-281 (5th Cir. 1999); see also Odom v. Frank,
3 F.3d 839, 847 (5th Cir. 1993) (noting that pretext may be shown only when applicant not hired for
particular position had credentials so outstanding as to “leap from the record and cry out to all who
would listen that [s]he was vastly -- or even clearly -- more qualified for the subject [position]”).
Further, we have also observed that a reviewing court must not replace its own judgment for that of
“the employer in evaluating what types of experience are most valuable for an employee in the
11
absence of proof that the standards were not consistently applied or were so irrational or idiosyncratic
as to suggest a cover-up.” EEOC v. La. Office of Comm’n Serv., 47 F.3d 1438, 1445 (5th Cir. 1995).
We have reviewed the record closely, and hold that there has simply been no evidence
presented, aside from Jenkins’s conclusory allegations, that she was discriminated against by Ball
Corporation in its hiring process for the CPM position, or that its reasons offered in support of its
refusal to hire her were specious. There is nothing in the record that unequivocally demonstrates that
Jenkins’s credentials are clearly superior to Tan’s. Therefore we refuse to assume the capacity of a
de facto hiring agency, and thereby substitute our judgment for that of Ball Corporation, particularly
when the distinguishing characteristics between two applicants -- giving Jenkins the great benefit of
the doubt -- is negligible.5
Additionally, we find unavailing her assertion that because she had a much longer tenure with
Ball Corporation, ipso facto, she was entitled to the promotion. See Price v. Federal Express Co.,
283 F.3d 715, 723 (5th Cir. 2002) (noting that the aggrieved applicant’s “better education, work
experience, and longer tenure with the company d[id] not establish that he [was] clearly better
qualified”). Accordingly, we find that the district court correctly held that Jenkins did not establish
that the reasons assert ed by Ball Corporation for refusing to promote her to the position of CPM
were merely a pretext for discrimination. Therefore, we find that the grant of summary judgment in
favor of Ball Corporation must be affirmed.
5
Nothing in this opinion however should be read to suggest that we are countenancing purely
subjective hiring determinations. Though we have expressed concern that an employer not use
completely subjective criteria in its hiring decisions, Medina v. Ramsey Steel Co., Inc., 238 F.3d 674,
681 (5th Cir. 2001), the fact the aspects of the employer’s hiring system may have subjective
components will not provide the basis for a showing of pretext. See Manning v. Chevron Chemical
Co., LLC, 332 F.3d 874, 882 (5th Cir. 2003).
12
2. ADEA Claims
Jenkins also avers that the district court erroneously granted Ball Corporation’s motion for
summary judgment as to her claims brought pursuant to the Age Discrimination in Employment Act,
29 U.S.C. § 621 et seq. Jenkins contends that she was not hired due to age bias, given that Tan was
hired over her, and that he was some three decades younger than she. In order for Jenkins to establish
a prima facie case for age discrimination, she was required to demonstrate that: (1) she was not hired
for the CPM position; (2) she possessed the requisite qualifications for the CPM position; (3) she was
over the age of forty when she applied for the position; and (4) the individual who was hired for the
position -- Aaron Tan -- was not a member of the protected class. See Machinchick v. PB Power,
Inc., 398 F.3d 345, 350 (5th Cir. 2005).
To rebut the inference of discrimination that would exist upon the establishment of Jenkins’
prima facie case, Ball Corporation was required to proffer a legitimate nondiscriminatory reason for
its failure to hire Jenkins for the CPM position. Id. As referenced above, the reasons asserted as to
why Jenkins was not offered the position were plentiful. For example, she received the lowest
interview score among the interviewees. Also, according to Ball Corporation, she did not have the
same mechanical background as the two individuals who were selected. These reasons offered are
sufficient to rebut Jenkins’ prima facie case, assuming she had established it in the first instance.6
Therefore, Jenkins was required either to show that Ball Corporation’s asserted reasons for
not promoting her to the CPM position were untrue, or, to present evidence demonstrating that the
motivating reason as to why she was not hired was her age. Id. Because Jenkins has not made either
6
We note questions persist as to whether Jenkins was qualified for the CPM position. We
simply assume that she was in order to reach our ultimate result.
13
showing, her claim asserting that she was the victim of age discrimination faces the same infirmity as
her racial discrimination claim: she has not shown pretext. Consequently, her ADEA claim must fail.
CONCLUSION
For the foregoing reasons we find that the district court’s grant of Ball Corporation’s motion
for summary judgment was appropriate. Consequently, we affirm.
AFFIRMED.
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