Runnels v. Texas Children's Hospital Select Plan , 167 F. App'x 377 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
January 25, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-20825
RAYMOND RUNNELS ET AL.,
Plaintiffs-Appellants,
v.
TEXAS CHILDREN’S HOSPITAL SELECT PLAN,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
Before BENAVIDES, STEWART and OWEN, Circuit Judges.
PER CURIAM:*
This appeal is from a district court’s grant of summary
judgment in favor of an employer in a race discrimination case
under 42 U.S.C. § 1981. Appellants allege disparate treatment in
compensation and disparate treatment in promotion. Appellants
claim that the district court erroneously admitted the employer’s
expert evidence and erroneously granted summary judgment. With
respect to the expert witness evidence challenge, Appellants
*
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this opinion should not be published and is not precedent except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.
strenuously argue that discrimination suits should not become a war
of experts. However, binding precedent instructs that statistical
evidence serves an important role in employment discrimination
cases. We have reviewed the record and are convinced that there is
no genuine issue of material fact. Finding no reversible error, we
AFFIRM.
I. FACTUAL AND PROCEDURAL HISTORY
Appellants are eight African-American technicians employed in
the Biomedical Engineering Department (“Biomed”) of Appellee Texas
Children’s Hospital (“TCH”). Biomed employs more than eighty
individuals, most of whom are engaged in maintaining and repairing
biomedical equipment. Biomed is divided into three groups, each of
which services different types of equipment and has its own
manager. Biomed’s Director, Yadin David, and Assistant Director,
John Weimert, oversee all three groups. Biomed’s managers are all
white males.
Biomed has three technician classifications of increasing
responsibility: Biomedical Equipment Technician (“BMET”), Senior
Biomedical Equipment Technician (“Sr. BMET”), and Specialist.
Appellant Samuel Mojay is a BMET; Appellants Raymond Runnels,
Beleke Awigichew, Marvin Henry, Kevin Davis, Kenneth Jenkins, and
Glen White are Sr. BMETs; and Appellant Keidrick Perry is a
Specialist.
Each Biomed employee receives an annual evaluation with a
total rating that falls into one of four categories: Fails to Meet
2
Expectations, Meets Expectations, Exceeds Expectations, and
Consistently Exceeds Expectations. The evaluation is based on
hours spent on preventative maintenance; trouble-shooting and
repairing equipment; providing project support, technical support,
and leadership when needed; performing incident investigations;
ensuring quality of group work; documenting all work and materials;
and attending meetings as assigned. Biomed technicians receive an
annual merit pay increase, which is tied to the evaluation rating
the employee received.
In August 2000, a Specialist position opened in the Intensive
Care/Operating Room (“ICU/OR”) unit. According to David, four Sr.
BMETs were considered for the opening: Randy Taylor, Van Nguyen,
Runnels, and Awigichew. Management selected Taylor, a white male,
to fill the Specialist position.
In June 2002, another Specialist position became available in
the ICU/OR unit. According to David, management considered all Sr.
BMETs in that unit, including Nguyen (who had been the “runner up”
for the 2000 opening) and Appellants Perry and White. Nguyen, an
Asian male, was selected to fill the position.
Shortly after management filled the 2002 Specialist position,
Appellants filed this suit. After discovery, TCH moved for summary
judgment. On August 10, 2004, a Magistrate Judge recommended
granting summary judgment, concluding that Appellants failed to
raise a genuine issue of material fact that TCH discriminated
against them. The district court adopted the Magistrate Judge’s
3
recommendation and granted summary judgment.
II. STANDARD OF REVIEW
The district court’s decision to admit expert testimony is
reviewed for abuse of discretion and should not be disturbed unless
it is manifestly erroneous. General Electric Co. v. Joiner, 522
U.S. 136, 141-42 (1997). This Court reviews a district court’s
grant of summary judgment de novo, applying the same standards as
the district court. E.g., Hirras v. Nat’l R.R. Passenger Corp., 95
F.3d 396, 399 (5th Cir. 1996). Summary judgment is proper if the
record reflects “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).
III. ANALYSIS
A. Admission of Expert Reports
1. Dr. Jeanneret
Appellants claim that the district court erroneously admitted
the defendant’s expert reports. The admissibility of expert
evidence is governed by Federal Rule of Evidence 702, which
requires district courts to ensure that (1) expert testimony is
“relevant to the task at hand” and (2) it “rests on a reliable
foundation.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 597 (1993). The admissibility of expert evidence “is
governed by the same rules, whether at trial or on summary
judgment.” First United Fin. Corp. v. United States Fid. & Guar.
4
Co., 96 F.3d 135, 136-37 (5th Cir. 1996).
TCH attached a report from Dr. P. R. Jeanneret to their motion
for summary judgment. Jeanneret holds advanced degrees in the
fields of industrial and organizational psychology with minors in
measurement and industrial sociology.1 Jeanneret conducted a
statistical analysis assessing the effect of race on Biomed
technicians’ compensation, performance evaluations, and pay raises.
His report concluded that there was no statistically significant
race effect.
Appellants argue that the district court should have excluded
Jeanneret’s report for several reasons. First, they allege that
Jeanneret’s report failed to list the documents the expert reviewed
and “[t]hus the failure to base his opinion on all the relevant
facts makes any testimony of Dr. Jeanneret unreliable and therefore
inadmissible.”2
The Federal Rules of Civil Procedure require that an expert
report contain “the data or other information considered by the
witness in forming the opinions.” FED. R. CIV. P. 26(a)(2)(B).
Jeanneret’s report provides that the statistical analyses were
1
Appellants do not dispute that Jeanneret is qualified to
provide expert evidence.
2
Appellants also state that the “underlying documents have
not been produced by Defendant.” To the extent that Appellants
intend to raise a discovery claim, we conclude that it is not
adequately briefed and thus, need not be addressed. See
Communications Workers of America v. Ector County Hosp. Dist., 392
F.3d 733, 748 (2004).
5
based on (1) three years of Biomed technician salary information,
(2) performance ratings from 1981 to 2002, and (3) annual pay
increases during the relevant period. This data is set forth in
Table 1 of the report. Additionally, even assuming the report
omitted relevant data, the Supreme Court has held that the omission
of relevant variables generally affects only the probative value,
not the admissibility, of statistical analysis. See Bazemore v.
Friday, 478 U.S. 385, 400 (1986).
Second, Appellants argue that Jeanneret’s report should have
been excluded because it “submits the ultimate question and seeks
to answer the same . . . .” The Rules of Evidence, however,
provide that “testimony in the form of an opinion or inference
otherwise admissible is not objectionable because it embraces an
ultimate issue to be decided by the trier of fact.” FED. R. EVID.
704.
Third, Appellants argue that the statistical evidence was
irrelevant and unhelpful to the trier of fact. Federal Rule of
Evidence 702 provides that an expert may offer an opinion if it
“will assist the trier of fact to understand the evidence or to
determine a fact in issue.” Courts have long recognized the
relevance and helpfulness of statistical evidence in proving, and
disproving, employment discrimination. See, e.g., Int’l Bhd. of
Teamsters v. United States, 431 U.S. 324, 339 (1977) (explaining
that statistics are not only “competent in proving employment
6
discrimination” but “serve an important role”). Therefore, this
argument fails.
Appellants also point out, presumably as a part of their
relevancy challenge, that Jeanneret’s report combined the three
technician classifications in order to obtain a sufficient sample
size. Appellants themselves allege department-wide discrimination
within all three job classifications. Further, personnel decisions
for all three classifications during the relevant period were made
by the same group of four managers. Therefore, it was relevant
that no statistically significant evidence of racial bias existed
across job classifications.
Fourth, Appellants argue that Jeanneret’s methodology was
unreliable. They make the conclusory assertion, citing Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 149 (1999), that Jeanneret’s
method “cannot be tested, subjected to peer review, there is no
known rate of error, etc.” The district court, however, found it
unnecessary to assess the “Daubert factors” individually, and it
need not have considered them. “Daubert makes clear that the
factors it mentions do not constitute a ‘definitive checklist or
test.’” Id. at 150 (emphasis in original). Indeed, the Supreme
Court has held that a trial judge has “considerable leeway” in
determining “how to test an expert’s reliability.” Id. at 152(emphasis in original). The district court reasonably relied on
the general rule that statistical analyses of the type employed by
7
Jeanneret are reliable. See, e.g., Lavin McEleney v. Marist
College, 239 F.3d 476, 483 (2d Cir. 2001). In sum, the district
court’s decision to admit Jeanneret’s report was not manifestly
erroneous.
2. Dr. Dyro
Appellants also challenge the district court’s admission of
Dr. Joseph Dyro's expert testimony. Dyro, who has a doctorate
degree in Biomedical Electronics Engineering, provided a report
containing his expert opinion regarding TCH's organization table
and job descriptions. Dyro concluded that “[p]romotion within
functional groups is consistent with industry norms as the skill
level of group members is specialized and the development of those
skills typically requires a considerable expenditure in training
expenses.”
Appellants assert that Dyro likewise failed to provide a
description of the documents he reviewed. Contrary to Appellants’
assertion, Dyro’s report listed the documents upon which he relied
and summarized the information contained in the documents.
Appellants also argue that Dyro’s opinion invaded the province
of the jury. As previously set forth, the Federal Rules of
Evidence do not prohibit evidence on this basis. Accordingly,
Appellants have failed to demonstrate that the district court
committed manifest error in admitting evidence from Dyro.
8
B. Discrimination Claims
1. Denial of Promotion
Five of the Appellants, Runnels, Awigichew, Perry, Mojay, and
White, generally contend that they “were denied promotions and/or
an opportunity to apply for position[s] when employees of different
races were simply placed in the position.”3 Appellants’ claims of
discrimination are governed by the tripartite burden-shifting test
established by McDonnell Douglas v. Green, 411 U.S. 792, 802–04
(1973). Under McDonnell Douglas, Appellants first must make a
prima facie case. The prima facie elements of a claim for
disparate treatment are that: (1) the plaintiff is a member of a
protected class under the statute; (2) he applied and was qualified
for a job or promotion for which his employer was seeking
applicants; (3) despite his qualifications, he was rejected; and
(4) the position remained open and the employer continued to seek
applicants, or the position was given to someone outside the
protected class. Id. at 802.
Second, if Appellants establish a prima facie case of
discrimination, the burden shifts to TCH to articulate a
legitimate, non-discriminatory reason for not selecting Appellants.
3
Appellants complain that job openings should have been, but
were not, communicated to all employees via a job posting list.
Appellants cite no authority for this proposition and at oral
argument could not identify any legal obligation to post the job
openings.
9
Id. Third, if TCH satisfies this burden, Appellants must prove
that “the legitimate reasons offered by the defendant were not its
true reasons, but were a pretext for discrimination.” Reeves v.
Sanderson Plumbing Prods. Inc., 530 U.S. 133, 143, 120 S. Ct. 2097,
2106 (2000) (citation and internal quotation marks omitted). The
“ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all
times with the plaintiff.” Id.a. August 2000 Promotion of Taylor
i. Perry and White
In August of 2000, Taylor was promoted from the position of
Sr. BMET to Specialist in the ICU/OR unit. With respect to Perry
and White, the district court agreed with TCH that because they
were classified in a position two levels below the position of
Specialist, neither were qualified for the promotion to Specialist.
Only Sr. BMETs were considered for the promotion to Specialist.
TCH provided evidence that promotions always were given one level
at a time, and Appellants have not shown otherwise. Thus, because
Perry and White were not qualified for the promotion, the district
court correctly concluded that they have failed to make a prima
facie case of discrimination.4
4
It is not clear whether Mojay raises a claim of denial of
promotion. Nevertheless, because he was not a Sr. BMET, his claim
fails for the same reason. Also, it should be noted that
subsequent to the promotions at issue in this lawsuit, Perry
10
ii. Runnels and Awigichew
The district court found that Runnels and Awigichew, who were
both Sr. BMETs, demonstrated a prima facie case of discrimination
with respect to this denial-of-promotion claim. TCH introduced
evidence indicating that both Runnels and Awigichew were considered
for the promotion. The decisionmakers, David, Weimert, and the
ICU/OR unit manager, however, agreed that Taylor was the best
qualified for the promotion. The managers believed that Taylor
was the best choice because he had already worked in the unit.
Neither Runnels nor Awigichew had as much experience with the
equipment for the ICU/OR unit. Also, a Specialist would spend the
majority of his time on administrative functions, and management
believed that Taylor had excellent administrative skills. Based on
this evidence, the district court correctly found that TCH
articulated a legitimate, non-discriminatory reason for not
selecting either Runnels or Awigichew.
Runnels and Awigichew must now demonstrate that the legitimate
reasons offered by TCH were not its true reasons but were a pretext
for discrimination. This Court has held that a plaintiff may
survive summary judgment by submitting evidence that he was
“clearly better qualified” than the employee selected for the
promotion at issue. Celestine v. Petroleos de Venezuella SA, 266
F.3d 343, 356–57 (5th Cir. 2001). “However, the bar is set high
ultimately was promoted.
11
for this kind of evidence because differences in qualifications are
generally not probative evidence of discrimination unless those
disparities are ‘of such weight and significance that no reasonable
person, in the exercise of impartial judgment, could have chosen
the candidate selected over the plaintiff for the job in
question.’” Id. at 357 (quoting Deines v. Texas Dept. of Prot. &
Regulatory Servs., 164 F.3d 277, 280–81 (5th Cir. 1999)).
Runnels has admitted in his deposition that it had been twenty
years since he had worked on the OR/ICU or laboratory equipment
that a Specialist would be responsible for maintaining. Awigichew
admitted that he had never worked in the ICU/OR unit and had no
experience working on that equipment. Although both Runnels and
Awigichew point to their longer service with TCH and believe they
were more qualified than Taylor, neither of them has shown that
they were “clearly better qualified” than Taylor.
In their brief, Appellants state that in the history of Biomed
there has never been an African American promoted to a management
position. Appellants do not raise a disparate treatment claim with
respect to any of the five management positions. Moreover,
Appellants have failed to allege, much less show, that any
qualified African American applied for one of the five management
positions. Thus, the lack of African-American management does not
appear to be relevant as to whether management engaged in
purposeful discrimination against Appellants.
12
Appellants have failed to show that they were clearly better
qualified than Taylor. Thus, the district court properly granted
summary judgment on their denial-of-promotion claims with respect
to the 2000 promotion of Taylor.5
b. June 2002 Promotion of Nguyen
In June of 2002, another Specialist position became available
in the ICU/OR unit. The management gave the promotion to Nguyen,
who had been the supervisors' second choice for the August 2000
promotion.
In the district court, Runnels, Awigichew, Perry, White, and
Mojay alleged a denial-of-promotion claim regarding this promotion
given to Nguyen. By this time, Perry and White had been promoted
to Sr. BMETs. It is not clear whether the district court concluded
that all the Plaintiffs were qualified and had alleged a prima
facie case. Assuming all the Plaintiffs did demonstrate a prima
facie case, TCH had to articulate a legitimate, non-discriminatory
reason for selecting Nguyen over them. Again, TCH states that
Nguyen was more qualified than Appellants.
TCH argues, and the district court found, that Runnels and
Awigichew still lacked significant expertise with the relevant
5
Appellants also rely on Weimert's statement to Runnels that
because Runnels filed this lawsuit he would never be promoted.
This statement may suggest animus because of the filing of the
suit, but it does not indicate racial discrimination at the time of
the promotions at issue.
13
equipment. Although Perry and White were Sr. BMETs in the ICU/OR
unit, they had less experience in that position than Nguyen. TCH
also points to Nguyen's outstanding performance as a reason for the
promotion. The relevant experience and performance cited by TCH is
a legitimate, non-discriminatory reason for selecting Nguyen over
the Plaintiffs. Indeed, it appears that, as a group, even
Appellants had championed Nguyen as the person most qualified for
the previous 2000 promotion Taylor received.
As previously set forth, to survive summary judgment, the
plaintiffs must show “no reasonable person, in the exercise of
impartial judgment, could have chosen the candidate selected over
the plaintiff for the job in question.” Celestine, 266 F.3d at 357(quoting Deines, 164 F.3d at 280–81). This Appellants have failed
to do. Appellants have offered no more arguments or evidence than
is set forth above regarding the 2000 promotion. Because they have
not shown that they were “clearly better qualified” than Nguyen,
their claims fail. The district court properly granted summary
judgment on the 2002 denial-of-promotion discrimination claims.
2. Disparate Treatment in Compensation
a. Across Job Classifications
To establish a prima facie case of discrimination regarding
compensation, a plaintiff must prove that (1) he is a member of a
protected class and (2) he is paid less than a nonmember for work
requiring substantially the same responsibility. Uviedo v. Steves
14
Sash & Door Co., 738 F.2d 1425, 1431 (5th Cir. 1984). Appellants
Runnels and Awigichew, both Sr. BMETs, seek to establish a prima
facie case by comparing their salaries to those of Specialists, a
higher job classification. Relying on Uviedo, 738 F.2d at 1431,
the district court found that Appellants failed to make out a prima
facie case of compensation discrimination with respect to
technicians “one promotion level up the organizational chart”
because “the record does not support Plaintiffs’ contention that
Specialist, Sr. BMET, and BMET had the same job responsibilities.”
Runnels and Awigichew argue, however, that they are “performing the
work of a Specialist.” The only evidence that Appellants point to
in support of the claim that their salaries should be compared to
a Specialist's salary is their own testimony, and even this does
not explain how their work is the same.
TCH contends that there is no dispute that Specialists have
different job duties than do Sr. BMETs. Indeed, at one point in
their brief, Appellants admit that there are important “position
differences” between BMETs, Sr. BMETs, and Specialists. Similarly,
Runnels testified that Specialists did more complicated technical
work than Sr. BMETs. As TCH points out, Appellants' claim appears
to be that they are performing above their level of “assigned
responsibilities.” Yet, they do not cite any authority for the
proposition that this is sufficient to establish a prima facie case
of compensation discrimination. Thus, Appellants fail to
15
demonstrate that their job responsibilities are substantially the
same as those of a nonmember Specialist. See Little v. Republic
Refining Co., Ltd. 924 F.2d 93, 97 (5th Cir. 1991) (holding that
plaintiffs must show “nearly identical” circumstances in a claim of
disparate treatment). Accordingly, the district court properly
concluded that Runnels and Awigichew were not similarly situated to
Specialists and that they could not establish a prima facie case by
comparing their compensation to that of Specialists.
b. Within Job Classifications
The remaining Appellants seek to show pay discrimination
within their job classification. The district court held that
Appellants made a prima facie case of discrimination with respect
to this claim. TCH disputes this holding. We will assume arguendo
that the district court correctly found a prima facie case was
made.
TCH points to its merit-based evaluation system as a
legitimate, non-discriminatory reason for the difference in
compensation levels. Appellants respond that the “uneven
application of the evaluation process” to minorities demonstrates
a genuine issue of material fact regarding whether race is a factor
in determining pay. For example, in support of this argument,
Appellants compare the production numbers of certain nonminorities
to their production numbers; however, production numbers are but
one facet of an employee’s evaluation. Furthermore, a Biomed
16
technician’s salary is based upon starting pay, job classification,
and performance evaluations. Thus, the evaluation is but one of
three factors upon which an employee’s pay is determined.
Appellants never show that they are similarly situated as to all
the factors with a nonminority employee who is more highly
compensated. Appellants have failed to show “nearly identical”
circumstances. See Little, 924 F.2d at 97. Further, as
previously set forth, Jeanneret analyzed Biomed’s technicians’
compensation and performance evaluations and concluded that there
was no statistically significant race effect. Accordingly,
Appellants have failed to raise a genuine issue of material fact
with respect to whether the evaluation process is pretext for
discrimination.
IV. CONCLUSION
For the above reasons, the district court’s judgment is
AFFIRMED.
17