Gray v. Entergy Operations ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-60350
Summary Calendar
_____________________
JANICE GRAY,
Plaintiff-Appellant
v.
ENTERGY OPERATION, INC.; DON HINTZ;
MIKE BAKARICH; JOSEPH HAGAN; MARY SEE,
Defendants-Appellees
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:99-CV-62-BN
_________________________________________________________________
November 29, 2000
Before KING, Chief Judge, and SMITH and PARKER, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Janice Gray appeals from the district
court’s grant of summary judgment in favor of Defendants-
Appellees, Entergy Operation, Inc.; Don Hintz, Chief Executive
Officer of Entergy Operation, Inc.; Mike Bakarich; Joseph Hagan;
and Mary See. For the following reasons, we AFFIRM.
*
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this opinion should not be published and is not precedent except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.
I. FACTUAL AND PROCEDURAL BACKGROUND
Since 1977, Janice Gray, an African American female, has
been employed at the Grand Gulf Nuclear Power Station in Port
Gibson, Mississippi (the “Grand Gulf facility”). On March 12,
1999, Gray filed suit against her employer Entergy Operations,
Inc. (EOI) and several management officials under 42 U.S.C.
§ 1981, claiming discrimination on the basis of race. Her suit
included the following three causes of action: failure to
promote, payment of disparate wages, and establishment of
discriminatory working conditions.
On January 7, 2000, defendants filed a motion for summary
judgment. In response, Gray requested a voluntary dismissal of
several claims, pursuant to Rule 41 of the Federal Rules of Civil
Procedure. She also filed a Motion to Strike Affidavit of James
M. Cooley, the Manager of Employee Relations at the Grand Gulf
facility. The district court, on March 2, 2000, denied Gray’s
motion to strike, granted her Rule 41 motion, and awarded
defendants summary judgment on the remaining claims. After the
district court granted Gray’s Rule 41 motion, four claims
remained: discriminatory promotion claim for the 1996 Site
Administrative Programs Coordinator position; discriminatory
promotion claim for the 1999 Procurement Specialist III position;
disparate wages claim; and discriminatory working conditions
claim.
2
On March 16, 2000, Gray filed a Motion to Amend and to Make
Additional Findings of Fact and Motion to Amend Opinion and
Judgment (“Rule 52 and 59(e) Motion”). The district court denied
this motion on April 16, 2000. Gray then filed a timely notice
of appeal from this decision.1
II. STANDARD OF REVIEW
This court reviews a district court’s grant of summary
judgment de novo, applying the same standards as the district
court. See Burch v. City of Nacogdoches, 174 F.3d 615, 618 (5th
Cir. 1999). Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” FED. R. CIV. P.
56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). “If the moving party meets the initial burden of showing
there is no genuine issue of material fact, the burden shifts to
the nonmoving party to produce evidence or designate specific
facts showing the existence of a genuine issue for trial.” Allen
1
Gray asserts in her brief on appeal that Cooley’s
affidavit was inaccurate. She does not argue that the affidavit
should have been stricken on this basis; rather, it appears that
she is attempting to demonstrate the existence of genuine issues
of material fact. Thus, we address her arguments regarding
Cooley’s affidavit in the context of her discrimination claims.
See infra Section III.
3
v. Rapides Parish Sch. Bd., 204 F.3d 619, 621 (5th Cir. 2000)
(internal quotations and citation omitted). Doubts are to be
resolved in favor of the nonmoving party, and any reasonable
inferences are to be drawn in favor of that party. See Burch,
174 F.3d at 619.
III. DISCRIMINATION CLAIMS
A plaintiff can prove a claim of intentional discrimination
by either direct or circumstantial evidence. Absent direct
evidence of discriminatory intent, as is typically the case,
proof via circumstantial evidence is accomplished using the
framework set forth in the seminal case of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).2 First, the plaintiff must
establish a prima facie case of discrimination. See Reeves v.
Sanderson Plumbing Prods., Inc., 120 S. Ct. 2097, 2106 (2000).
Second, the employer must respond with a legitimate,
nondiscriminatory reason for its decision. See McDonnell
Douglas, 411 U.S. at 802. This is only a burden of production,
not persuasion, involving no credibility assessments. See Texas
2
Gray is asserting causes of action under 42 U.S.C. § 1981.
Because “[c]laims of intentional discrimination brought under
Title VII and Section 1981 require the same proof to establish
liability,” we will examine Gray’s § 1981 claims under the well-
established Title VII rubric of analysis. See Byers v. Dallas
Morning News, Inc., 209 F.3d 419, 422 n.1 (5th Cir. 2000); see
also Lawrence v. University of Tex. Med. Branch at Galveston, 163
F.3d 309, 311 (5th Cir. 1999) (“Employment discrimination claims
brought under [§ 1981] . . . are analyzed under the evidentiary
framework . . . [of] Title VII.”).
4
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255-56 (1981).
Third, if the employer carries its burden, the inference of
discrimination (created by the plaintiff’s prima facie case)
evaporates, and the plaintiff must prove intentional
discrimination. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 511 (1993).
In making this showing, the plaintiff can rely on evidence
that the employer’s reasons were a pretext for unlawful
discrimination. See McDonnell Douglas, 411 U.S. at 804. “Thus,
a plaintiff’s prima facie case, combined with sufficient evidence
to find that the employer’s asserted justification is false, may
permit the trier of fact to conclude that the employer unlawfully
discriminated.” Reeves, 120 S. Ct. at 2109. With this framework
in mind, we proceed to analyze Gray’s three discrimination
claims.
A. Failure-to-Promote Claim
The district court granted defendants summary judgment on
the claim regarding the Site Administrative Programs Coordinator
position.3 The court found that Gray established a prima facie
case of discrimination and that defendants put forth
3
The district court also ruled that Gray’s remaining
failure-to-promote claim (for the Procurement Specialist III
position) violated Rule 8 of the Federal Rules of Civil Procedure
because it was not contained in her original complaint. Gray is
not contesting this issue on appeal.
5
nondiscriminatory reasons for their decision. The district court
then concluded that Gray did not survive summary judgment because
she failed to demonstrate that defendants’ proffered reasons were
pretextual.
To establish a prima facie case of discrimination for a
promotion claim, the plaintiff must demonstrate that (1) the
plaintiff is a member of a protected group; (2) the plaintiff was
qualified for the position; (3) the plaintiff was subjected to an
adverse employment action; and (4) the plaintiff was replaced by
someone outside the protected class. See Shackelford v. Deloitte
& Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999). We agree with
the district court that Gray established a prima facie case of
discrimination: she is African American, a member of a racial
minority; she was qualified for the position of Site
Administrative Programs Coordinator (she had at least a high
school diploma and at least ten years of nuclear or
administrative experience); she was not hired for the position;
and Karen Rucker, a Caucasian female, was subsequently hired for
the position. Defendants, in turn, have satisfied their burden
of production and put forth two nondiscriminatory reasons for
their employment decision: (1) Rucker was more qualified4; and
4
Defendants point to Rucker’s fluency in several languages,
as well as her oral and written presentations to high-level
British government officials. As they were looking for an
applicant with strong communication skills who could interact
extensively with the public and who could influence management at
all levels, defendants state that the three-person interview
6
(2) Rucker would be more compatible with her supervisor in that
position, Site Vice-President Joseph Hagan.5
To demonstrate that defendants’ reasons are pretextual, Gray
makes several arguments. She first asserts that Rucker did not
meet the minimum qualifications for the position because there
was no proof of her high school diploma, or equivalent, in the
personnel files. This is clearly rebutted by evidence in the
record that Rucker’s education certificates from England were in
her personnel file, and a defense expert testified that her
English certifications were the equivalent of a U.S. high school
diploma.
Gray also points out that Rucker became eligible to apply
only when the qualifications for the position were weakened (from
ten years of nuclear experience to ten years of nuclear or
administrative experience). The district court found that Gray
admitted the qualifications were changed to match Rucker’s
qualifications in particular, not simply because Rucker was
white. Furthermore, defendants bypassed other qualified white
candidates who were eligible when the position was first posted.
Thus, the re-posting of the position does not “prove by a
panel (which included the African-American human resources
manager, Cooley) unanimously decided Rucker was the most
qualified.
5
Defendants state that Rucker had previously worked for
Hagan as his secretary, and thus, Hagan was familiar with her
abilities.
7
preponderance of the evidence that the legitimate reasons offered
by the defendant were not its true reasons, but were a pretext
for discrimination.” Reeves, 120 S. Ct. at 2106 (internal
quotations and citation omitted) (quoting Burdine, 450 U.S. at
253).
In addition, Gray puts forth statements from the deposition
of Jeff Braswell, an EOI retiree, that qualifications were
tailored to conform to the wishes of Mike Bakarich, a former
manager at the Grand Gulf facility. Although defendants imply
that statements not in connection with this promotion claim are
irrelevant, the Supreme Court clearly stated in Reeves that
pretext evidence should not be circumscribed as such. See id. at
2111. Thus, general remarks should not be discounted because
they were not made in direct reference to the employment
decision; any evidence that could shed light on an employer’s
true motive must be taken into account. See id. However, in
this case, the link between Braswell’s statements and defendants’
employment decision regarding the promotion are far too tenuous
to establish pretext.6
6
Braswell’s testimony was in reference to another position;
both Braswell and Bakarich were no longer employed at EOI during
the interview process for this position; this position was to be
under Hagan, not Bakarich; a three-person panel, which included
an African-American manager, interviewed all candidates for this
position; and Gray cites to no evidence in the record supporting
her implication that Bakarich’s preferences for his “proteges”
were based on race (in fact, Braswell admitted that one of
Bakarich’s proteges was a black woman).
8
Although Gray had more seniority with the company and
education beyond high school, Rucker met the minimum
qualifications and had other qualities that defendants found
appealing for the position. Gray has failed to create a genuine
issue that defendants’ proffered reasons are pretextual7 and thus
does not survive summary judgment on this claim.
B. Disparate Wages Claim
In this claim, Gray alleges that defendants paid her
disproportionately less wages than similarly situated white
employees. “To establish a prima facie case of discrimination
respecting compensation a plaintiff must prove (1) that she is a
member of a protected class, and (2) that she is paid less than a
nonmember for work requiring substantially the same
responsibility.” Uviedo v. Steves Sash & Door Co., 738 F.2d
1425, 1431 (5th Cir. 1984), cert. denied, 474 U.S. 1054 (1986).
While Gray satisfies the first prong because she is African
American, she fails to make a showing on the second prong of the
test. She has not presented any evidence that she was paid less
than white co-workers with similar responsibilities. Rather than
providing specific information, Gray attempts to make her prima
7
Gray also makes other conclusory allegations that
defendants failed to advertise positions and did not select the
most qualified employees for the positions (choosing instead
“select” employees). As these arguments are inadequately
briefed, we do not consider them on appeal. See Trevino v.
Johnson, 168 F.3d 173, 181 n.3 (5th Cir. 1999).
9
facie case via several general arguments. She points again to
Jeff Braswell’s deposition in which Braswell stated that
secretaries are paid higher than clerks for performing the same
duties. Braswell’s statements are not sufficient to establish
Gray’s prima facie case because Braswell does not testify as to
Gray’s wages or the wages of employees with Gray’s
responsibilities.
Gray also asserts that Ron Husbands, manager at Entergy
Services, Inc. (ESI), testified in his deposition that merit pay
raises are arbitrarily and subjectively determined. This does
not aid Gray in establishing her prima facie case either because
Husbands was testifying in another case, Washington v. Entergy
Operations, Inc.; he is a manager at ESI, not EOI; he was
testifying as to how raises were allocated to ESI employees; and
he did not provide any information as to Gray’s wages or the
wages of employees similarly situated to Gray.8 As such, Gray
has not created a genuine issue by pitting Husbands’s affidavit
against Cooley’s affidavit, in which Cooley stated that EOI
performance appraisals are primarily objective.9
8
We also note that Gray mischaracterizes Husbands’s
testimony as stating that wages at ESI were subjectively or
arbitrarily determined. Husbands actually stated that while
specific numerical percentages were not used, factors such as
performance and potential guided their personnel determinations.
9
Gray’s reliance on the deposition of John J. Farren, the
Grand Gulf facility’s Human Resources Representative, is also of
no avail. His testimony, examined in full context, does not
support Gray’s contention that salary determinations are
10
Because Gray has not demonstrated with particularity the
identity of the similarly situated non-minority employees who
were paid higher wages, we agree with the district court that
Gray failed to establish a prima facie case on her disparate
wages claim. Thus, summary judgment on this claim was
appropriate.
C. Working Conditions Claim
Gray asserts that she “experienced [a] discriminatory work
environment.” She puts forth statistics that African Americans
are concentrated in the unskilled and minimally skilled jobs at
EOI, whereas whites are in the professional jobs. Gray’s
specific allegations regarding this claim are not entirely clear.
If Gray is attempting to demonstrate disparate impact with these
statistics, she does not state a claim cognizable under § 1981.
While “[d]isparate impact claims . . . do not require proof of
intent to discriminate,” Munoz v. Orr, 200 F.3d 291, 299 (5th
Cir. 2000), § 1981 claims necessarily entail proof of intentional
discrimination. See General Bldg. Contractors Ass’n v.
Pennsylvania, 458 U.S. 375, 391 (1982) (“[Section] 1981 . . . can
be violated only by purposeful discrimination.”).
Because Gray explicitly framed her claims under § 1981, her
working conditions claim can then be based only on disparate
arbitrary.
11
treatment, which “refers to deliberate discrimination in the
terms or conditions of employment.” Munoz, 200 F.3d at 299. In
support of this claim, Gray asserts that statistics show there
are “black jobs” and “white jobs,” and she appears to argue that
these segregated job classifications are furthered by the use of
subjective and arbitrary criteria in employment decisions.10
While statistical evidence is common in so-called “pattern or
practice cases” (class actions alleging disparate treatment), an
individual plaintiff can also utilize such evidence to
demonstrate intentional discrimination.
The plaintiff may establish a prima facie case of
disparate treatment using statistics alone if the
statistics show a gross disparity in the treatment of
workers based on discriminatory factors. However, if
the plaintiffs’ [sic] statistical evidence is
insufficient alone to establish a prima facie case of
disparate treatment, the plaintiff may combine the
statistical evidence with historical, individual, or
circumstantial evidence.
Trevino v. Holly Sugar Corp., 811 F.2d 896, 902 (5th Cir. 1987)
(internal quotations and citations omitted); see also Krodel v.
Young, 748 F.2d 701, 710 (D.C. Cir. 1984) (stating that, for
individual disparate treatment plaintiffs, the Supreme Court “has
pointed out that [statistical] evidence is admissible and may be
helpful, though ordinarily not dispositive”).
10
Gray does not expressly characterize her working
conditions claim as such. However, this circuit has held
consistently that claims of pro se appellants are liberally
construed. See, e.g., United States v. Glinsey, 209 F.3d 386,
392 n.4 (5th Cir. 2000); Chriceol v. Phillips, 169 F.3d 313, 315
n.2 (5th Cir. 1999).
12
In this case, Gray’s statistics that African Americans are
concentrated in the minimally skilled jobs are derived from the
deposition of William Boykin, a plaintiff pursuing his own action
against EOI. Defendants argue that these statistics are not
admissible in this case because Boykin is not qualified to give
such testimony and because the numbers are unsubstantiated. We
do not decide this issue because we agree with the district
court’s assessment that the evidence “does not prove [Gray],
individually, has suffered discrimination.” That the majority of
employees in the professional positions are white does not
ineluctably lead to an inference of intentional discrimination,
establishing a prima facie case. Gray has not presented any
evidence linking that disparity with racial animus (which
adversely affected her employment) and thus fails to demonstrate
a prima facie case of disparate treatment.
Gray also asserts that the 1996 EEO-1 reports submitted by
EOI to the Equal Employment Opportunity Commission demonstrate
discriminatory intent. We do not agree. These reports
illustrate the racial composition in the various positions at
EOI, and again, Gray has not demonstrated that the numbers were
the result of invidious bias, as required by a disparate
treatment claim.
Thus, Gray has failed to create a genuine issue of
intentional discrimination in her working conditions claim, and
summary judgment was appropriate in this regard.
13
IV. CONCLUSION
For the above stated reasons, we AFFIRM the judgment of the
district court.
14