E.E.O.C. v. Louisiana Office of Community Services ( 1995 )


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  •                    United States Court of Appeals,
    
                                Fifth Circuit.
    
                                    No. 93-3835.
    
       EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant
    Cross-Appellee,
    
                                         v.
    
       LOUISIANA OFFICE OF COMMUNITY SERVICES, et al., Defendants-
    Appellees Cross-Appellants,
    
               Regina C. Fisher, Plaintiff-Movant-Appellant.
    
                               March 23, 1995.
    
    Appeals from the United States District Court for the Eastern
    District of Louisiana.
    
    Before DAVIS, BARKSDALE and STEWART, Circuit Judges.
    
         W. EUGENE DAVIS, Circuit Judge.
    
         The   Equal   Employment    Opportunity   Commission   ("EEOC"),   on
    
    behalf of Regina Fisher, sued the Louisiana Department of Social
    
    Services, Office of Community Services ("LOCS"), alleging that LOCS
    
    violated the Age Discrimination in Employment Act ("ADEA"), 29
    
    U.S.C. § 621-34, when it twice failed to promote Ms. Fisher.       After
    
    the jury returned a verdict for the EEOC, the district court
    
    granted LOCS' motion for judgment as a matter of law.         Because we
    
    agree with the district court that the evidence is insufficient to
    
    support the jury's verdict, we affirm.
    
                                         I.
    
         Regina Fisher worked for LOCS in various capacities for over
    
    twenty-eight years.    From 1954-1960, she worked as a caseworker in
    
    foster care.   After doing family services work in Connecticut from
    
    1961-1965, she returned to LOCS as a foster care supervisor.            In
    
                                         1
    1970, Fisher became a supervisor in the Adoptions Petitions Unit,
    
    which reviewed adoption paperwork to ensure compliance with legal
    
    requirements.      When that position was eliminated in August 1988,
    
    she became a supervisor in the Administrative Review Unit, which
    
    monitored child welfare cases to ensure that all necessary action
    
    had    been   taken   in   compliance    with    Public    Law    96:272.       More
    
    specifically, the law required that certain steps be taken at
    
    certain intervals, such as a case review every six months, and the
    
    Administrative Review personnel made sure the required steps were
    
    taken.    Fisher had no responsibility for the quality of the work
    
    performed.     Her unit simply verified that the requisite steps were
    
    taken and documented for the record.
    
           In 1989, when Fisher was sixty-four-years old, LOCS decided to
    
    replace the Administrative Review Unit with a Quality Assurance
    
    Unit.    LOCS proposed that the Quality Assurance Unit assume the
    
    functions     of   the     Administrative       Review    Unit,    but   that    it
    
    additionally monitor the quality of child welfare services provided
    
    throughout the region.         In other words, the Quality Assurance Unit
    
    assumed all the duties of the Administrative Review Unit (which
    
    were essentially administrative) and additionally evaluated whether
    
    a particular case plan best fit the needs of the child.
    
           In this second capacity, Quality Assurance personnel would
    
    monitor caseworkers in three "priority" programs—Family Services,
    
    Case    Management,      and   Child   Protection    Investigation       ("CPI").
    
    Family Services provides counseling and other services to families
    
    needing assistance but whose problems do not require removal of the
    
    
                                            2
    child from the home.         Case Management oversees all aspects of
    
    foster care.    CPI investigates complaints of neglect and abuse.
    
    Caseworkers in each program work directly with children and their
    
    families.
    
         Due to the increased skill level required of Quality Assurance
    
    Unit personnel, the Louisiana Department of Civil Service ("Civil
    
    Service") determined that the Quality Assurance positions were
    
    "new" positions, which had to be filled through a competitive
    
    promotion process.    It classified Quality Assurance caseworkers as
    
    Social Services Specialists I ("Specialists") and supervisors as
    
    Social Service Supervisors I ("Supervisors I").
    
         LOCS began to fill the Specialist positions in June 1989.
    
    During that time, Fisher remained in her former Administrative
    
    Review    position—classified    as    a   Social   Services   Counselor   I
    
    ("Counselor I")—even as those she supervised were being promoted to
    
    Specialists.   In December 1989, LOCS realized that under the Civil
    
    Service rules a Counselor I cannot supervise a Specialist.                 To
    
    comply with the rules, LOCS, in consultation with Civil Service,
    
    retroactively placed Fisher on a temporary assignment from June 5,
    
    1989 through December 17, 1989, as a Supervisor I.1
    
         In   November   1989,    LOCS    interviewed   applicants   for   three
    
    Supervisor I vacancies:      one in Quality Assurance and two in Case
    
    Management.    To qualify, each eligible candidate had to take a
    
    civil service exam.    The nine applicants who received the top five
    
    
         1
          The retroactive assignment occurred after Fisher was passed
    over to be the Quality Assurance Unit Supervisor in November.
    
                                           3
    scores on the exam were then evaluated by a panel comprised of five
    
    District Supervisors.2            Each panelist assigned a point value from
    
    one to nine to each applicant based upon an "interview packet."
    
    This       consisted   of   the    applicant's   application     form,    a   short
    
    narrative written by the applicant describing the applicant's
    
    knowledge of Child Protection and particular qualifications for the
    
    job, a summary of the three references, and notes taken at the
    
    interview.       The panel then recommended the three applicants with
    
    the highest composite scores to Rebecca Corbello, Regional Manager.
    
    Ms. Corbello then approved and forwarded the recommendations to
    
    Shirley Goodwin, Division Director of Child Welfare Field Services,
    
    who made the final decision to promote the selectees.
    
           The selectees were Donna Leavitt, age 52, Priscilla Brown, age
    
    43, and Carol Mackey, age 38.                 Leavitt eventually filled the
    
    Quality Assurance position, and Brown and Mackey filled the Case
    
    Management positions.          Fisher had the fourth highest score.           After
    
    she was not promoted, Fisher filed a charge with the EEOC alleging
    
    age discrimination.
    
           In     March    1990,   LOCS   reconvened   the   panel    to     fill   two
    
    additional Supervisor I vacancies for CPI and Case Management, both
    
    within Janice Briscoe's sub-region.              The panel members were the
    
    same, with the exception of Carolyn Kramer.               The panel did not
    
    
           2
          The panel members were James Bordelon, Carolyn Kramer, Joe
    Putnam, Freida Neville and Diane Richards. All but Kramer were
    supervisors within the sub-region managed by Janice Briscoe.
    Kramer was in the sub-region managed by Danny Curtis. The
    Quality Assurance position was in Curtis' sub-region, while the
    other two positions were in Briscoe's sub-region.
    
                                              4
    reinterview the applicants who had been interviewed in November;
    
    they relied       on    their    November         interview    packets.     The    panel
    
    recommended the four highest scoring applicants:3 Alvia Brown,
    
    David Zumalt, Susan Hitzman and James Mento, all of whom were
    
    younger than Fisher.           The panel also indicated which position the
    
    selectees should fill. This time Fisher ranked eighth on the list,
    
    scoring lower than four applicants she had outscored in November.
    
    Goodwin eventually selected Brown and Zumalt for Case Management
    
    and CPI, respectively.
    
           Fisher filed another charge with the EEOC, alleging that the
    
    second promotion denial was because of age and in retaliation for
    
    filing the first EEOC charge.                 Shortly thereafter the EEOC filed
    
    this suit alleging age discrimination and retaliation.                         At trial,
    
    LOCS       contended    that    it    had   not     promoted    Fisher    because     the
    
    selectees were more qualified for the positions. The jury rendered
    
    a verdict for the EEOC, finding that both promotion denials were
    
    age    related    and    that    the    second      denial     was   willful    but   not
    
    retaliatory. LOCS reurged its previously filed motion for judgment
    
    as a matter of law or, in the alternative, for a new trial.                           The
    
    district court granted the motion for judgment as a matter of law,
    
    holding that the evidence was insufficient to permit a finding that
    
    the    reason     proffered      by    LOCS       for   not   promoting   Fisher      was
    
    pretextual.       The district court was therefore persuaded that the
    
    record evidence failed to show that LOCS' personnel decision not to
    
           3
          The record reflects some confusion over the number of slots
    available. It appears that at one point LOCS contemplated
    filling four positions.
    
                                                  5
    promote Fisher was because of her age.         The EEOC and Fisher
    
    separately appeal that judgment.
    
                                      II.
    
          As an initial matter, we address LOCS' motion to dismiss
    
    Fisher's appeal.     LOCS concedes the EEOC's right to appeal, but
    
    contests Fisher's right to appeal separately since she was not a
    
    party to the proceedings below.    A person who is not a party to the
    
    proceedings below generally cannot appeal the court's judgment.
    
    See EEOC v. Pan Am. World Airways, Inc., 
    897 F.2d 1499
    , 1504 (9th
    
    Cir.), cert. denied sub nom. Keith v. EEOC, 
    498 U.S. 815
    , 
    111 S. Ct. 55
    , 
    112 L. Ed. 2d 31
     (1990). However, courts have granted exceptions
    
    where the non-parties actually participated in the proceedings
    
    below, the equities weigh in favor of hearing the appeal, and the
    
    non-parties have a personal stake in the outcome.       See id;   see
    
    also Binker v. Commonwealth of Pa., 
    977 F.2d 738
     (3d Cir.1992)
    
    (allowing non-party employees to appeal approval of settlement
    
    agreement negotiated by EEOC where employees were involved in the
    
    negotiations and where settlement formula was not favorable to
    
    employees);   EEOC v. West La. Health Servs., Inc., 
    959 F.2d 1277
    
    (5th Cir.1992) (allowing non-party appeal where EEOC had not
    
    pursued appeal in its representative capacity).
    
          An exception is not warranted in this case. Fisher dismissed
    
    her private action when the EEOC filed suit.      Neither Fisher nor
    
    her attorney pled, intervened or otherwise participated in the
    
    proceedings below.     Nor does Fisher contend that her arguments
    
    overlap or are in tension with the EEOC's arguments.      Because we
    
    
                                       6
    conclude that the EEOC adequately represented Fisher below and
    
    continues to do so on appeal, we dismiss Fisher's appeal.
    
                                       III.
    
                                          A.
    
            We review the district court's grant of judgment as a matter
    
    of law de novo.    Accordingly, we can affirm only
    
           [i]f the facts and inferences point so strongly and
           overwhelmingly in favor of one party that the Court believes
           that reasonable men could not arrive at a contrary verdict....
           On the other hand, if there is substantial evidence opposed to
           the motions, that is, evidence of such quality and weight that
           reasonable and fair minded men in the exercise of impartial
           judgment might reach different conclusions, the motion should
           be denied, and the case submitted to the jury.         A mere
           scintilla is insufficient to present a question for the jury.
    
    Boeing Co. v. Shipman, 
    411 F.2d 365
    , 374 (5th Cir.1969) (en banc).
    
    In   this case,   we   must   determine      whether   the   record   contains
    
    evidence which could lead a reasonable trier of fact to conclude
    
    that LOCS did not promote Fisher because of age.               See Molnar v.
    
    Ebasco Constructors, Inc., 
    986 F.2d 115
    , 117 (5th Cir.1993).               In
    
    doing so, we must view the evidence in the light most favorable to
    
    and draw all inferences in favor of the EEOC.           Boeing, 411 F.2d at
    
    374.
    
                                          B.
    
            The ADEA makes it unlawful for employers "to discharge any
    
    individual or otherwise discriminate against any individual with
    
    respect to his compensation, terms, conditions, or privileges of
    
    employment, because of such individual's age." 29 U.S.C. § 623(a).
    
    In the absence of direct proof of discrimination, the plaintiff in
    
    an     age   discrimination    case        must   follow     the   three-step
    
    
                                          7
    burden-shifting framework laid out in McDonnell Douglas Corp. v.
    
    Green, 
    411 U.S. 792
    , 
    93 S. Ct. 1817
    , 
    36 L. Ed. 2d 668
     (1973), and
    
    Texas Dep't of Community Affairs v. Burdine, 
    450 U.S. 248
    , 
    101 S. Ct. 1089
    , 
    67 L. Ed. 2d 207
     (1981).        The plaintiff first must
    
    establish a prima facie case of discrimination.      The burden then
    
    shifts     to    the   employer   to   articulate    a   legitimate,
    
    nondiscriminatory reason for its action.    If the employer does so,
    
    the plaintiff then bears the burden of proving that the articulated
    
    reason is untrue and was given as a pretext for discrimination.
    
    Davis v. Chevron U.S.A., Inc., 
    14 F.3d 1082
    , 1087 (5th Cir.1994).
    
    "[An employer's] reason cannot be proved to be "a pretext for
    
    discrimination' unless it is shown both that the reason was false,
    
    and that discrimination was the real reason."       St. Mary's Honor
    
    Ctr. v. Hicks, --- U.S. ----, ----, 
    113 S. Ct. 2742
    , 2752, 
    125 L. Ed. 2d 407
     (1993).
    
         The parties stipulated that the EEOC made out a prima facie
    
    case:    Fisher was over 40 years of age, was qualified for the
    
    positions, and was older than the selectees.        The parties also
    
    stipulated that LOCS offered a nondiscriminatory reason for its
    
    actions:     Fisher was not as qualified as the applicants selected
    
    for promotion.     The critical issue for the jury was whether LOCS'
    
    explanation was true, as it contended, or pretextual, as the EEOC
    
    contended.      As stated above, the jury resolved the question in
    
    favor of the EEOC, but the district court granted judgment as a
    
    matter of law to LOCS because the EEOC failed to produce sufficient
    
    evidence to show that LOCS' explanation for not promoting Fisher
    
    
                                       8
    was   false.     The   EEOC     argues     on    appeal     that   it   did    produce
    
    sufficient evidence from which a reasonable jury could infer that
    
    LOCS' proffered explanation was pretextual.                 Our task therefore is
    
    to determine whether a reasonable jury could have found that LOCS'
    
    explanation was pretextual.
    
           In determining whether the employer's stated reason is false,
    
    the trier of fact may not disregard the defendant's explanation
    
    without countervailing evidence that it was not the real reason for
    
    the discharge.    Elliott v. Group Medical & Surgical Serv., 
    714 F.2d 556
    , 562 (5th Cir.1983), cert. denied, 
    467 U.S. 1215
    , 
    104 S. Ct. 2658
    , 
    81 L. Ed. 2d 364
     (1984). Evidence that the proffered reason is
    
    unworthy of     credence      must   be    enough      to   support     a   reasonable
    
    inference that the proffered reason is false;                  a mere shadow of a
    
    doubt is insufficient.          Cf. Matsushita Elec. Indus. Co. v. Zenith
    
    Radio Corp., 
    475 U.S. 574
    , 586, 
    106 S. Ct. 1348
    , 1356, 
    89 L. Ed. 2d 538
     (1986) (noting that non-moving party must show more than a
    
    "metaphysical doubt").          After thoroughly reviewing the record, we
    
    agree with the district court that the EEOC failed to produce
    
    sufficient     evidence    to    allow    a     jury   to   conclude        that   LOCS'
    
    explanation was pretextual.
    
          All panel members testified at trial that they rated the
    
    applicants based upon each applicant's experience in the three
    
    priority programs, qualifications, past performance, references and
    
    interviews.     They testified that they ranked Fisher as they did
    
    because they felt that the selectees were better suited or better
    
    qualified for the positions.              Specifically, they testified that
    
    
                                              9
    Fisher, by comparison to the selectees, had less experience in the
    
    three priority programs, did not present herself as well during the
    
    interview process, and received more negative references from
    
    former supervisors.    LOCS emphasized that it have never contended
    
    that Fisher was not qualified for the position nor that she was a
    
    poor employee, but rather that out of the applicant pool, Fisher
    
    was not as qualified as the selectees.
    
         Every   LOCS   representative    agreed   that   in   evaluating   the
    
    applicants the most important factor was knowledge of the three
    
    priority programs;      more particularly, they considered recent
    
    hands-on experience in the three priority programs to be critically
    
    important.   The panel members explained that experience in and
    
    knowledge of the three areas was necessary because supervisors
    
    might be transferred during their tenure from one program to
    
    another.
    
         Although   the   vacancies   were    supervisory      positions,   the
    
    panelists testified that earlier general supervisory experience was
    
    not a particularly important factor unless it was in a priority
    
    program. The panel also considered the applicants' references, but
    
    did not consider them to be an overwhelming factor.                Shirley
    
    Goodwin, Division Director, testified that the panel was instructed
    
    to evaluate each applicant for all the vacant positions.          In other
    
    words, the panel did not evaluate applicants based on individual
    
    qualifications for a particular vacancy.       Rather, it evaluated the
    
    applicants based on their overall qualifications for all of the
    
    vacancies.
    
    
                                         10
                                               C.
    
               The EEOC argues first that it presented evidence that Fisher
    
    was clearly better qualified than the selectees. A fact finder can
    
    infer pretext if it finds that the employee was "clearly better
    
    qualified" (as opposed to merely better or as qualified) than the
    
    employees who are selected.              See, e.g., Odom v. Frank, 
    3 F.3d 839
    ,
    
    845-46 (5th Cir.1993);           Walther v. Lone Star Gas Co., 
    952 F.2d 119
    ,
    
    123 (5th Cir.1992);            Thornbrough v. Columbus & Greenville R. Co.,
    
    
    760 F.2d 633
    , 647 (5th Cir.1985).
    
               The evidence does not support the EEOC's argument.                   With
    
    respect to the November selectees, the evidence showed that Donna
    
    Leavitt had recent experience in all three priority programs.
    
    Leavitt's         references    highly    recommended   her    as   an   excellent,
    
    cooperative, committed worker who related well to clients and
    
    co-workers.         The one criticism was that she needed to work on
    
    managing her paperwork and meeting deadlines.                 Every panelist gave
    
    Leavitt the highest score.
    
           Priscilla       Brown     had   recent   experience     in    two    priority
    
    programs,4 having spent the last two and a half years in Case
    
    Management and twelve years prior to that in CPI.                   Her references
    
    were       also    positive,     emphasizing     her    dedication,        knowledge,
    
    experience, teamwork and organizational skills.                     The references
    
    expressed concern over a speech problem, but indicated that Brown
    
    
           4
          The record reflects that Brown actually had experience in
    all three priority programs, as she spent a month in Family
    Services in 1987. However, this information did not appear on
    the form submitted to the panel.
    
                                               11
    had volunteered to undergo speech therapy and had made "tremendous"
    
    improvements.
    
         Carol    Mackey     had     recent     experience    in    two   priority
    
    programs—Case Management and Family Services.            Although Mackey was
    
    never assigned to CPI, she specialized in sexual abuse.               Mackey's
    
    references    were    uniformly     positive,    highlighting      her    client
    
    relationships,    team   spirit,     responsibility      and    organizational
    
    skills.
    
         Although Fisher also had prior experience in two priority
    
    programs—Case Management and Family Services—she had spent the last
    
    nineteen years in nonpriority administrative positions.5                     The
    
    narrative that she submitted to the panel confessed that she knew
    
    little about CPI and was primarily interested in the Quality
    
    Assurance    position.         Fisher's    references    were   comparatively
    
    negative.       The    most     favorable    reference,    Carolyn       Kramer,
    
    highlighted Fisher's reliability, dedication and experience in
    
    helping set up the Quality Assurance Unit.                Another reference
    
    referred to Fisher's "detail and procedure skills" and recommended
    
    her for a Quality Assurance, Family Services or, possibly, Case
    
    Management position. However, that reference noted that Fisher was
    
    bossy and unyielding and would be too "ivory tower" for CPI.                 The
    
    third reference was highly critical, stating that she would not
    
         5
          The EEOC suggests that the panel's discounting of Fisher's
    priority experience because it was nineteen-years old itself
    suggests age discrimination. However, the EEOC presented no
    evidence indicating that LOCS' employees progressed from working
    in priority programs to working in nonpriority, procedural jobs.
    In fact, after Fisher did not receive the first promotion, she
    was placed in Case Management.
    
                                          12
    promote Fisher unless she were the last person available.6
    
         As to the March selectees, Alvia Brown had recent experience
    
    in two priority programs—Case Management for ten years and CPI for
    
    two years. Brown's references were uniformly positive, focusing on
    
    her organizational skills and cooperation.   David Zumalt had prior
    
    experience in at least two priority programs, most recently in CPI
    
    for four years.   Prior to that he was in Case Management for six
    
    years.   He also had prior experience in other child welfare
    
    organizations in areas analogous to all three priority programs.
    
    His references were also uniformly positive, focusing on his
    
    competence and meticulousness.
    
         This evidence does not demonstrate that Fisher was clearly
    
    better qualified than the applicants selected for the contested
    
    positions.   At most, a fact finder could infer that Fisher was as
    
    qualified for the positions as the selectees.        As this court
    
    cautioned in Odom, however, the judicial system is
    
         not as well suited by training and experience to evaluate
         qualifications for high level promotion in other disciplines
         as are those persons who have trained and worked for years in
         that field of endeavor for which the applications under
         consideration are being evaluated.
    
              Therefore, unless disparities in curricula vitae are so
         apparent as virtually to jump off the page and slap us in the
         face, we judges should be reluctant to substitute our views
         for those of the individuals charged with the evaluation duty
         by virtue of their own years of experience and expertise in
    
         6
          Ms. Fisher neglected to include as a reference one of her
    most recent supervisors, Cheryl Campos. Ms. Kramer noticed the
    oversight and supplemented Fisher's file with Ms. Campos'
    reference. Campos stated that Fisher was a good supervisor who
    was very thorough and met deadlines. She especially recommended
    Fisher for Quality Assurance, but noted that the demands of CPI
    might be too great.
    
                                     13
         the field in question.
    
    3 F.3d at 847.        Fisher's qualifications are not so superior to
    
    those of the selectees to allow an inference of pretext.
    
          The EEOC argues next that, even if Fisher is not clearly
    
    better qualified than the selectees under LOCS' stated promotion
    
    standards, those standards constitute a post-hoc rationalization
    
    for why Fisher was not promoted.            At trial, the EEOC attempted to
    
    cast doubt on LOCS' explanation for its decision by arguing that
    
    general supervisory and Administrative Review experience were more
    
    relevant to the positions than priority program experience.                The
    
    record reveals that Fisher did have substantially more supervisory
    
    and compliance experience than the selectees.             But we decline to
    
    substitute our judgment for the employer in evaluating what types
    
    of experience are most valuable for an employee in the new position
    
    in the absence of proof that the standards were not consistently
    
    applied or were so irrational or idiosyncratic as to suggest a
    
    cover-up.    See Elliott, 714 F.2d at 566-67;            see also Little v.
    
    Republic Refining Co., Ltd., 
    924 F.2d 93
    , 97 (5th Cir.1991);
    
    Laurence    v.    Chevron,   U.S.A.,   Inc.,     
    885 F.2d 280
    ,   285   (5th
    
    Cir.1989);       Bienkowski v. American Airlines, Inc., 
    851 F.2d 1503
    ,
    
    1507-08 (5th Cir.1988).
    
         The EEOC offered no evidence to show that LOCS applied the
    
    standards inconsistently or that the standards were irrational.
    
    First, as to supervisory experience, the EEOC attempted to show
    
    LOCS' inconsistency in applying its standards by pointing to
    
    various references in the interview packets to the selectees'
    
    
                                           14
    supervisory experience.          But this evidence reveals nothing except
    
    that LOCS considered supervisory experience in its decision, a
    
    point LOCS does not dispute.           It does not, however, undercut LOCS'
    
    claim that such experience was less important to the promotion
    
    decisions than broad priority program experience.                     Moreover, we
    
    cannot say that it is irrational for an employer to give less
    
    weight    to    general    supervisory        experience     than    actual    field
    
    experience where field experience is relevant to the position.
    
          Second,    while     Administrative        Review     experience   would    be
    
    helpful   in    performing       the   Quality    Assurance     functions,      such
    
    experience would have little, if any, benefit to a person in one of
    
    the other positions.         As mentioned, the panel was instructed to
    
    evaluate each candidate for all the positions.                      But even if we
    
    consider the failure to promote Fisher to the Quality Assurance
    
    position under LOCS' articulated standard, the decision was a
    
    rational one.     The uncontradicted evidence showed that the Quality
    
    Assurance position required greater skills than the Administrative
    
    Review position.          Fisher's primary function in Administrative
    
    Review was to ensure that the necessary steps were taken in each
    
    child welfare case in compliance with Public Law 96:272 and that
    
    this action was documented.            However, the Quality Assurance Unit
    
    also required staff to make subjective judgments about the quality
    
    of   service    provided    in    individual      cases.7      As    Danny    Curtis,
    
          7
          The EEOC makes much of the fact that Fisher technically
    supervised Quality Assurance caseworkers for six months.
    However, it offered no evidence to refute LOCS' testimony that
    the Quality Assurance program was not implemented in full until
    May 1990, nor did it show that Fisher had performed any
    
                                             15
    Assistant Regional Manager, testified at trial, Administrative
    
    Review involved "a very simple process or procedural thing" to
    
    ensure that the required steps were taken.       According to Curtis,
    
    Quality Assurance, in contrast,
    
         involves a complete review of the case to determine if certain
         policy issues, things that we have decided are important to be
         received by the children, that we're providing these.... They
         check for specific case planning and things; such as, not
         only is there a case plan there, but does the case plan meet
         the needs of the family.
    
         Shirley Goodwin, Division Director, also testified that the
    
    Quality    Assurance   position   required   a   greater   degree   of
    
    responsibility because of the subjective judgments the staff was
    
    required to make.      According to Ms. Goodwin, this was the main
    
    reason that the Quality Assurance supervisor position was upgraded
    
    to Supervisor I status.    The EEOC presented no evidence to refute
    
    this testimony.   Thus, while Fisher's prior Administrative Review
    
    experience does have some relevance to the Quality Assurance
    
    position, it is plausible for LOCS to have concluded that training
    
    someone in administrative compliance is easier than giving them the
    
    experience needed to make subjective judgments in individual cases.
    
          The EEOC argues next that the structure of the promotion
    
    process was a sham to prevent Fisher from receiving a promotion.
    
    To support this theory, the EEOC attempts to highlight what it
    
    perceives as implausibilities or inconsistencies in the promotion
    
    process.   First, the EEOC contends that the decision not to hire a
    
    person for Quality Assurance separately from the other, less
    
    
    
    non-procedural duties.
    
                                      16
    administrative positions suggests an intent to disadvantage Fisher.
    
    The testimony revealed that LOCS originally planned to fill only
    
    the Quality Assurance position.             Pursuant to the Civil Service
    
    Rules, LOCS had to obtain approval from Civil Service to fill the
    
    position and request Civil Service to certify a list of eligible
    
    applicants.     The evidence at trial revealed that certification was
    
    a lengthy and burdensome process.           While certification was pending
    
    for   the    Quality   Assurance     position,    two   other   Supervisor   I
    
    positions opened.       To expedite matters, LOCS sought approval to
    
    fill all three positions from the same applicant list.                The EEOC
    
    offered no evidence to refute LOCS' explanation that this was a
    
    simply a time-saving measure to avoid the lengthy certification
    
    process for the other two positions.
    
           Second, the EEOC argues that LOCS' explanation that each
    
    selectee needed experience in all three priority programs due to
    
    the possibility of transfer is not credible.             It offered evidence
    
    that no one had been transferred in the three and a half years
    
    since the promotions and that the agency had a low history of
    
    transfers.     However, the fact that the likelihood of transfer was
    
    low   does   not    render   LOCS'   consideration      of   that   possibility
    
    implausible.       Moreover, while no one was transferred in the three
    
    years since the promotions, record evidence reveals that promotions
    
    to higher levels of supervision can expand the job duties to
    
    include other programs.        For example, when David Zumalt replaced
    
    Joe Putnam as a District Supervisor, his duties expanded to include
    
    Family Services.
    
    
                                           17
           Third, the EEOC contends that the exclusion of Carolyn
    
    Kramer, Fisher's strongest supporter in November, from the March
    
    panel also suggests an intent to discriminate against Fisher.
    
    However,    the    uncontradicted     testimony,           including       Kramer's,
    
    indicated that she was excluded because none of the March vacancies
    
    were in her sub-region.          Moreover, there was no evidence that
    
    Kramer's absence would have made a difference, given the other
    
    panelists' low ratings of Fisher.
    
          Fourth, the EEOC argues that Fisher's drop from fourth place
    
    in November to eighth place in March indicates that the true
    
    motivating factor was age.           However, the undisputed testimony
    
    revealed    that   the   March   panel    started      with       a    clean     slate,
    
    evaluating each applicant anew.               Quite a few scores came out
    
    differently, with some applicants scoring higher than they did in
    
    November, and others scoring lower.           Significantly, Fisher was not
    
    the only candidate to score lower in March than in November.                         Any
    
    possible inference that can be drawn from this disparity bears, if
    
    anything, on Fisher's retaliation claim, which the jury rejected.
    
          Fifth, the EEOC argues that the second panel's recommendation
    
    of   four    applicants    instead       of    two    casts       doubt        on    its
    
    nondiscriminatory    explanation,     because        had    the       November      panel
    
    recommended extra applicants, Fisher would have been on the list.
    
    The panel members testified that their decision to recommend four
    
    people stemmed from confusion over the number of vacancies and
    
    concern about a possible hiring freeze.               The EEOC again did not
    
    discredit this explanation nor suggest that similar considerations
    
    
                                         18
    were present in November.
    
           Finally,     the   EEOC   argues   that   the   March   panel's
    
    recommendation of specific slots for the selectees casts doubt on
    
    its claim that individual qualifications for particular positions
    
    were not part of the ranking.    The panel testified that it ranked
    
    the applicants based on their overall qualifications and only then
    
    suggested assignments.      Again, the EEOC offered no evidence to
    
    discredit this testimony.
    
         LOCS offered a facially benign explanation for each of the
    
    EEOC's arguments.   Where the plaintiff has offered no evidence to
    
    rebut the employer's facially benign explanations, no inference of
    
    discrimination can be drawn.     See Odom, 3 F.3d at 848.
    
                                      IV.
    
          In sum, we conclude that the EEOC failed to produce evidence
    
    from which a reasonable jury could infer that the reason LOCS gave
    
    for its decision not to promote Fisher was pretextual.      It offered
    
    no evidence that LOCS' stated reason was not the true one, such as
    
    that younger applicants were treated differently or that the
    
    explanation given was so implausible as to be a cover-up.      Rather,
    
    the only evidence is the EEOC's own speculation that age motivated
    
    the decision not to promote Fisher. We have consistently held that
    
    an employee's subjective belief of discrimination, however genuine,
    
    cannot be the basis of judicial relief.    See Portis v. First Nat'l
    
    Bank of New Albany, Miss., 
    34 F.3d 325
    , 329 (5th Cir.1994);
    
    Elliott, 714 F.2d at 567.
    
         The overwhelming evidence showed that LOCS did not promote
    
    
                                      19
    Fisher because it believed that she was not as qualified for the
    
    positions as the selectees.   While we or the jury might have made
    
    a different employment decision, we should not substitute our
    
    judgment of an employee's qualifications for the employer's in the
    
    absence of proof that the employer's nondiscriminatory reasons are
    
    not genuine.   We are persuaded that this is precisely what the jury
    
    did here.   As this court stated in Bienkowski:
    
         The ADEA was not intended to be a vehicle for judicial
         second-guessing of employment decisions nor was it intended to
         transform the courts into personnel managers. The ADEA cannot
         protect older employees from erroneous or even arbitrary
         personnel decisions, but only from decisions which are
         unlawfully motivated.
    
    851 F.2d at 1507-08.      The district court therefore correctly
    
    granted judgment as a matter of law in favor of LOCS.8
    
         AFFIRMED.
    
    
    
    
         8
          In view of this decision, LOCS' cross-appeal from the
    district court's denial of its motion for a new trial is moot.
    
                                     20
    

Document Info

DocketNumber: 93-03835

Filed Date: 3/23/1995

Precedential Status: Precedential

Modified Date: 12/21/2014

Authorities (18)

Odom v. Frank , 3 F.3d 839 ( 1993 )

Davis v. Chevron U.S.A., Inc. , 14 F.3d 1082 ( 1994 )

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

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

Matsushita Electric Industrial Co., Ltd. v. Zenith Radio ... , 475 U.S. 574 ( 1986 )

St. Mary's Honor Center v. Hicks , 509 U.S. 502 ( 1993 )

The Boeing Company v. Daniel C. Shipman , 411 F.2d 365 ( 1969 )

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

37 Fair empl.prac.cas. 1414, 37 Empl. Prac. Dec. P 35,274 ... , 760 F.2d 633 ( 1985 )

47 Fair empl.prac.cas. 971, 47 Empl. Prac. Dec. P 38,196 ... , 851 F.2d 1503 ( 1988 )

50 Fair empl.prac.cas. 1839, 51 Empl. Prac. Dec. P 39,394 ... , 885 F.2d 280 ( 1989 )

52-fair-emplpraccas-990-52-empl-prac-dec-p-39698-equal-employment , 897 F.2d 1499 ( 1990 )

55 Fair empl.prac.cas. 261, 55 Empl. Prac. Dec. P 40,560 ... , 924 F.2d 93 ( 1991 )

59 Fair empl.prac.cas. (Bna) 848, 58 Empl. Prac. Dec. P 41,... , 952 F.2d 119 ( 1992 )

equal-employment-opportunity-commission-elenoria-anderson , 959 F.2d 1277 ( 1992 )

59-fair-emplpraccas-bna-1505-59-empl-prac-dec-p-41773-otto-j , 977 F.2d 738 ( 1992 )

61 Fair empl.prac.cas. (Bna) 598, 61 Empl. Prac. Dec. P 42,... , 986 F.2d 115 ( 1993 )

Judy Portis v. First National Bank of New Albany, Ms , 34 F.3d 325 ( 1994 )

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