Shannon v. Ford Motor Co. ( 1996 )

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No. 95-1092MN
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Frangena A. Shannon, *
*
Appellant, *
* On Appeal from the United
v. * States District Court
* for the District of
* Minnesota.
Ford Motor Co., a Delaware *
Corporation, *
*
Appellee. *
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Submitted: October 20, 1995
Filed: January 3, 1996
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Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN and MORRIS SHEPPARD
ARNOLD, Circuit Judges.
___________
RICHARD S. ARNOLD, Chief Judge.
Fragena A. Shannon, an African-American woman, claims Ford
Motor Company failed to promote her to supervisor because of her
race and sex. She appeals the District Court's1 order granting
summary judgment for Ford. The District Court held that Ms.
Shannon had failed to establish a prima facie case of race
discrimination under 42 U.S.C. § 1981, and that she had not
exhausted her administrative remedies for her Title VII sex-
discrimination claim. We affirm.
1
The Hon. James M. Rosenbaum, United States District Judge for
the District of Minnesota.
I.
In early 1985, Ms. Shannon was an "assembler" at Ford's
Twin Cities plant. Assemblers are "non-skilled" workers, paid by
the hour. In March, Ms. Shannon learned that Ford was accepting
applications for salaried, supervisor positions, and she applied
for the job. Ms. Shannon successfully completed the required
skill-assessment process, which Ford calls the "Manufacturing
Supervisor Selection System" ("MSSS"), and Ford put her on the
waiting list for a supervisor position. Also in 1985, Ms. Shannon
applied for an apprenticeship in the skilled-trades program
operated jointly by Ford and her union, the United Auto, Aerospace,
and Agricultural Implement Workers of America ("UAW"). She once
again passed the required tests, and was placed on another,
entirely separate, waiting list for placement as an apprentice.
In the Fall of 1987, after ten months' absence from work due
to a broken ankle, Ms. Shannon was offered a position as an
apprentice electrician. She was told, however, that she could not
stay on the supervisor waiting list if she accepted the
apprenticeship; she had to pick one or the other. Ms. Shannon says
she protested, asking why she had to give up her spot on the list.
Still, she decided to accept the apprenticeship because "[she]
didn't want to pass up the opportunity of going into the skilled
trades . . .." Ford then took her name off the list, and Ms.
Shannon never tried to get back in line for a supervisor position.
In August 1989, Ms. Shannon filed a complaint with the St.
Paul Department of Human Rights, alleging race and sex
discrimination. She claimed that "throughout my
apprenticeship . . . I have been subjected to harassment and
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differential treatment."2 The Department, however, found "no
probable cause" for her allegations.3 Ms. Shannon lodged another
complaint, also claiming race and sex discrimination, with the
Equal Employment Opportunity Commission ("EEOC") in November, 1989.
In February 1992, the EEOC gave Ms. Shannon the right to sue.
In her three-count complaint, Ms. Shannon charged Ford with
sex discrimination in violation of Title VII, race discrimination
under 42 U.S.C. § 1981, and "reprisal discrimination" under the
Minnesota Human Rights Act, Minn. Stat. § 363.01 et seq., and Title
VII. All three counts rested on the same allegations: Ms. Shannon
claimed that (1) she was subjected to a sexually hostile and
abusive environment in the skilled-trades program; (2) she was not
given adequate training in the program; (3) male apprentices
enjoyed preferential treatment in training, education, and work
assignments; and, finally, (4) she was not promoted to supervisor.
Ford moved for summary judgment. In August 1994, the District
Court granted Ford's motion on Ms. Shannon's failure-to-promote
claims, but, after reviewing the litany of alleged insulting
2
It is undisputed that Ms. Shannon was, at times, poorly
treated by some of her co-workers and supervisors in the skilled-
trades program. For example, one journeyman showed Ms. Shannon a
picture of a toilet and told her, "that's you down there with all
the other [. . .]." Another time, someone placed a sexually
explicit "application for a date" at Ms. Shannon's work station.
According to Ms. Shannon, when she reported the incident, her
supervisor only laughed. Several times, in fact, she complained to
her supervisors and to her union representative that she was being
harassed and demeaned, and not receiving adequate training. One of
her supervisors responded by telling her, "you are black and a
woman, so you have two strikes against you. They don't want you
[in the program] anyway."
3
The Department found that Ms. Shannon's "credibility has some
weaknesses" and that Ford's "skepticism regarding [Ms. Shannon's]
allegations that her poor work performance was caused by co-worker
harassment and lack of training is supported by . . . [Ms.
Shannon's] excessive absenteeism . . . [her] argumentative and
emotional behavior . . . [her] difficulty accepting directions and
her attitude that her assignments were menial . . .."
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incidents during her apprenticeship, the Court denied the motion in
all other respects.4
Ms. Shannon now appeals the District Court's decision,
claiming that the Court erred by deciding that her failure-to-
promote claim was not "reasonably related" to the sex-
discrimination charges she filed with the EEOC, and by finding that
she did not establish a prima facie case that Ford failed to
promote her because of her race. We review the District Court's
order granting summary judgment de novo.
II.
Using the ubiquitous three-step burden-shifting framework set
out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the
District Court held that Ms. Shannon failed to establish a prima
facie case of race discrimination. To raise a presumption of
discrimination in failure-to-promote cases, a plaintiff must show
that (1) she is a member of a protected group; (2) she was
qualified and applied for a promotion to an available position; (3)
she was rejected; and (4) similarly situated employees, not part of
the protected group, were promoted instead. Patterson v. McLean
Credit Union, 491 U.S. 164, 186-87 (1989); Marzec v. Marsh, 990
F.2d 393, 395-96 (8th Cir. 1993). If a plaintiff establishes her
prima facie case, the burden of production shifts to the employer,
who must rebut the presumption of discrimination with evidence
"that the plaintiff was rejected, or someone else was preferred,
for a legitimate, nondiscriminatory reason." Texas Department of
4
Ms. Shannon's remaining claims were tried before a jury. In
September 1994, the jury found for Ford on all these claims.
Specifically, in special interrogatories, the jury found that (1)
Ford did not subject Ms. Shannon to unlawful sexual harassment, (2)
Ford did not discriminate against her because of her sex, (3) Ford
did not retaliate against her, and (4) Ford did not discriminate
against her because of her race. These issues are not before us on
appeal.
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Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). Once the
employer meets its burden, the plaintiff may win by pointing to
evidence which, if believed, would expose the employer's reason as
a mere pretext for intentional discrimination. Krenik v. County of
Le Sueur, 47 F.3d 953, 958 (8th Cir. 1995) (citing St. Mary's Honor
Center v. Hicks, 113 S. Ct. 2742, 2747 (1993)). We agree with the
District Court that because Ms. Shannon accepted her skilled-trades
apprenticeship knowing full well that her name would come off the
supervisor waiting list, she was not "rejected" for a supervisor
position.5
We emphasize, however, that there is nothing magical about the
McDonnell Douglas three-stage framework. The framework itself is
simply a "sensible, orderly way to evaluate the evidence in light
of common experience as it bears on the critical question of
discrimination." Patterson, 491 U.S. at 186 (quoting Furnco
Construction Corp. v. Waters, 438 U.S. 567, 577 (1978)). Put
differently, the framework is a helpful tool, but it is still just
a tool. We should not confuse the means - McDonnell Douglas's
three-step process - with the end, which is deciding whether or not
an employer illegally discriminated. See, e.g., Winbush v.
Glenwood State Hospital, 66 F.3d 1471, 1480 (8th Cir. 1995) (citing
United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 713-15 (1983)) ("central question" is not whether district
court correctly found prima facie case, but whether there was
sufficient evidence of intentional discrimination). After all, the
McDonnell Douglas framework exists to provide discrimination
plaintiffs a way to prove their case when they do not have
"explicit, inculpatory evidence of discriminatory intent." Hutson
5
Everyone agrees that supervisors are and may only be selected
from among those employees on the supervisor eligibility list.
Lowe v. City of Monrovia, 775 F.2d 998, 1007-10 (9th Cir. 1985),
amended, 784 F.2d 1407 (9th Cir. 1986), on which Ms. Shannon
relies, discussed a very different situation. In that case, the
plaintiff had evidence that the employer only hired from "the list"
when whites were next in line, not when blacks were at the top.
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v. McDonnell Douglas Corp., 63 F.3d 771, 776 (8th Cir. 1995). If
a plaintiff does have such evidence, burden-shifting analysis is
unnecessary.
The District Court stated that even if the removal of Ms.
Shannon's name from the waiting list was somehow improper or
discriminatory, the fact remains that she could not be considered
and rejected for promotion once her name was off the list, and
therefore could not establish her prima facie case. But if Ms.
Shannon had produced any evidence that the removal of her name from
the list was an act of intentional discrimination, aimed at
preventing her promotion because she is black, then her failure to
establish the usual prima facie case would not, by itself, doom her
case. It would be ironic - bizarre, in fact - if a victim of
discrimination were unable to vindicate her rights because she had
the peculiar misfortune of being discriminated against in a way
that necessarily prevented her from making her prima facie case.
See International Brotherhood of Teamsters v. United States, 431
U.S. 324, 367 (1977) (noting District Court's finding that a "per
se prohibition of relief to nonapplicants could . . . put beyond
reach of equity the most invidious effects of employment
discrimination"). For example, if black employees were told by
their employer that they should not bother applying for supervisor
positions, and so black employees never applied, they would,
strictly speaking, be unable to establish all the elements of a
prima facie case. See Winbush, 66 F.3d at 1481 (reason plaintiffs
did not apply for promotions "was either that they did not know how
or when to apply or that they were led to believe that applying
would do no good").6 But this inability would certainly not be
6
See also Chambers v. Wynne School Dist., 909 F.2d 1214, 1217
(8th Cir. 1990) (failure to apply formally will be excused if
plaintiff makes every reasonable attempt to convey interest in job
to employer); Easley v. Empire Inc., 757 F.2d 923, 930 n.7 (8th
Cir. 1985) ("Formal applications . . . will be excused when a known
discriminatory policy . . . deters potential jobseekers."); Paxton
v. Union Nat'l Bank, 688 F.2d 552, 568 (8th Cir. 1982) (because
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fatal to their case if they had solid evidence that their
employer's discouragement was discriminatory. Proof of actual
discrimination - the real issue, after all - may excuse a
plaintiff's failure to establish a prima facie case via the usual
route. Id. at 1481 n.16 ("[D]iscriminatory practices can excuse
plaintiffs from making a typical prima facie case of employment
discrimination.").
Winbush illustrates our point. In that case, the District
Court found overwhelming evidence that the defendants used
"discretionary promotion policies [that] discouraged promotional
opportunities for [the plaintiffs] and reflected systematic and
purposeful discriminatory treatment of them based on their race."
Id. at 1480. The court also found evidence of a "hostile racial
working environment." Ibid. Despite this evidence, the defendants
insisted that the plaintiffs had failed to prove that they applied
for vacant positions, or that they were adequately certified by the
Iowa Department of Personnel, or that they were denied a specific
promotion. Id. at 1479. But given the evidence of discrimination
and considering all the relevant facts of the particular case, we
excused the plaintiffs' failure to establish all the usual elements
of the prima facie case. Id. at 1481-82.
Again, we agree with the District Court that Ms. Shannon did
not establish her prima facie case. She was not rejected; she was
merely taken off the list. But if Ms. Shannon could show that her
removal from the list was discrimination in the guise of a race-
neutral policy, if, for example, Ford put the "either/or,"
"apprenticeship/supervisor list" choice to her, and not to
vacancy was not posted, failure to apply did not defeat prima facie
case), cert. denied, 460 U.S. 1083 (1983); Royal v. Missouri
Highway & Transp. Comm., 655 F.2d 159, 163 n.5 (8th Cir. 1981)
(applications generally not taken for foreman positions, so failure
to apply not fatal to case).
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similarly situated white employees, we would excuse her failure to
make her prima facie case. In this case, however, Ms. Shannon has
produced no evidence that Ford's reason for not promoting her is a
sham. She does argue that she did not ask or want to have her name
taken off the list. This is irrelevant. She accepted the
apprenticeship knowing her name would be taken off; it doesn't
matter that she would have preferred that it stay on.
Ms. Shannon also suggests that Ford's discriminatory intent is
proved by the fact that there has never been a black female
supervisor at the Twin Cities plant. And she claims that Ford
promoted 27 white workers to supervisor after she became a
candidate in 1985, 15 of them after she returned to work in 1987.
All this, Ms. Shannon argues, shows Ford's discriminatory intent in
"steering" her into the skilled-trades program. These claims are
completely unsupported. The evidence Ms. Shannon cites for her
assertion that 15 white people were promoted to supervisor since
1987 makes no reference to the race of these persons. And even if
15 white people were promoted, Ms. Shannon must show that these
people were similarly situated to her, yet treated differently, to
prove intentional discrimination. See Williams v. Ford Motor Co.,
14 F.3d 1305, 1309 (8th Cir. 1994). That is, she must show that
they, unlike her, were permitted to enter the apprentice program
while remaining on the supervisor waiting list. Ms. Shannon
asserts that "many white males participate in both programs," but
she points to no evidence. She claims that some people moved from
supervisor positions into the apprentice program, but this claim
does not help her case because these individuals are not similarly
situated. Finally, the alleged lack of black women supervisors
does not support her race-discrimination claim, given that Ms.
Shannon admits that several black men have been supervisors.
We conclude that, unlike the plaintiffs in Winbush, Ms.
Shannon has presented no evidence of intentional discrimination
which might excuse her failure to establish the four elements of
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the Patterson prima facie case. See Chambers, 909 F.2d at 1217-18
(refusing to waive McDonnell Douglas requirement that plaintiff
"apply" because there was no evidence that employer discriminated
or that plaintiff expressed any interest in the position). She was
not rejected; rather, she voluntarily choose a different path. We
have no evidence that her choice was tainted by any discrimination
by Ford. We therefore affirm the District Court's order granting
summary judgment on Ms. Shannon's § 1981 failure-to-promote claim.
III.
The District Court held that Ms. Shannon's Title VII sex-
discrimination claim was barred because she did not exhaust her
administrative remedies. The Court found that Ms. Shannon
complained to the EEOC and the St. Paul Department of Human Rights
about harassment and differential treatment in the apprenticeship
program only, not in the promotion process. Ms. Shannon's claim
that Ford refused to promote her to supervisor because she is a
woman is not, the District Court reasoned, "reasonably related to
the substance of [Ms. Shannon's] prior administrative charges."
Ford suggests, albeit tepidly, that Ms. Shannon waived her
right to appeal this holding because she never responded to Ford's
"failure to exhaust" argument in the District Court. Ford relies
on the uncontroversial general rule that the courts of appeals "do
not consider arguments raised for the first time on appeal." See,
e.g., Dorothy J. v. Little Rock School District, 7 F.3d 729, 734
(8th Cir. 1993). This rule promotes the efficient management and
orderly resolution of cases and reflects the respect properly due
federal district judges. On the other hand, "this is not a flat
rule but rather a matter of prudence and discretion." Struempler
v. Bowen, 822 F.2d 40, 42 (8th Cir. 1987). We have noted before
that
"[w]hen an issue was actually decided in the
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trial court, even though not expressly raised
by the parties, the rule against consideration
of the question on appeal loses a good deal of
its force. It is not unfair to a trial court
for an appellate court to decide a question
that the trial court actually reached in its
opinion . . .."
Ibid. In this case, we do not think it would show any disrespect
to the District Court, nor would it be unfair to Ford, to address
Ms. Shannon's argument on the exhaustion issue.
Ms. Shannon did not exhaust her Title VII failure to promote
claim. In general, "[e]xhaustion of administrative remedies is
central to Title VII's statutory scheme because it provides the
EEOC the first opportunity to investigate discriminatory practices
and enables it to perform its roles of obtaining voluntary
compliance and promoting conciliatory efforts." Williams v. Little
Rock Mun. Water Works, 21 F.3d 218, 222 (8th Cir. 1994) (citing
Patterson v. McLean Credit Union, 491 U.S. 164, 180-81 (1989)).
To exhaust her remedies, a Title VII plaintiff must timely file her
charges with the EEOC and receive, from the EEOC, a "right to sue"
letter. 42 U.S.C. § 2000e-5(b), (c), (e). The proper exhaustion
of administrative remedies gives the plaintiff a green light to
bring her employment-discrimination claim, along with allegations
that are "like or reasonably related" to that claim, in federal
court.
In Ms. Shannon's interview statement to the St. Paul
Department of Human Rights,7 she stated:
7
Ford notes that Ms. Shannon failed to bring her Title VII
case within 90 days of the closure of the St. Paul investigation.
42 U.S.C. § 2000e-5(f)(1). Ford concludes that Ms. Shannon
therefore may not now rely on her St. Paul complaint. Given our
decision, though, it makes no difference whether she relies on the
complaint or not. The District Court decided that "neither the
EEOC charge, nor that filed with the St. Paul Department of Human
Rights, raises the issue of promotion to supervisor." Given this
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While I had my broken ankle, there were
openings in the skilled trades. I had taken
the test and passed, but they were trying to
avoid bringing me into the apprenticeship.
. . . They were hiring people from outside.
I had also done extremely well on the
management test.
Ms. Shannon contends that her passing reference to the "management
test" in effect incorporated her complaints about discrimination in
the apprenticeship program into an admittedly inchoate failure-to-
promote claim. We think Ms. Shannon was actually using her
performance on the management test, and Ford's hiring of "outside"
people, to support her argument that Ford was "trying to avoid
bringing [her] into the apprenticeship." Also, Ms. Shannon's EEOC
claim alleges that Ford discriminated against her "in the terms and
conditions of the apprenticeship program, harassment, training and
pay." We do not think that language, reasonably read, suggests an
implicit failure-to-promote claim.
Ms. Shannon rightly reminds us that courts should not use
Title VII's administrative procedures as a trap for unwary pro se
civil-rights plaintiffs. We agree, and therefore, when
appropriate, construe civil-rights and discrimination claims
charitably. This liberal-construction rule "stems from the rather
fundamental policy that mere vagueness in a pro se claim should not
sound the death knell for the plaintiff's discrimination
allegation." Pickney v. American Dist. Telegraph Co. of Ark., 568
F. Supp. 687, 690 (E.D. Ark. 1983). But there is a difference
between liberally reading a claim which "lacks specificity," ibid.,
and inventing, ex nihilo, a claim which simply was not made.
This case is a lot like Williams, supra. In that case, the
EEOC sent Ms. Williams a "right to sue" letter, authorizing a race-
conclusion, with which we agree, we see no reason for refusing to
discuss the St. Paul complaint.
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discrimination suit, but she failed to sue within 90 days of
receiving the letter. Three years later, she complained to the
EEOC again. The second complaint stated "I have been denied a
promotion and a merit raise . . . because I filed a previous charge
of discrimination. I believe I am being retaliated against for
filing the charge in violation of Title VII." Williams, 21 F.3d at
222. The plaintiff then sued pro se in federal court, alleging,
inter alia, both race discrimination and retaliation. The District
Court dismissed the race-discrimination claim because Ms. Williams
had failed to exhaust her administrative remedies on that claim.
Id. at 220-21. This Court held that the District Court was right,
because the race-discrimination claim was "separate and distinct
from her claims of retaliation." Id. at 223. We noted that Ms.
Williams's EEOC complaint was not at all vague: she "specifically
and unambiguously alleged that Water Works retaliated against her
because she had filed a charge with the EEOC in January 1987."
Ibid.
In Williams the plaintiff mentioned her unexhausted
discrimination claim in her retaliation complaint. Ms. Williams
claimed that she was retaliated against because she had complained
about racial discrimination three years before. But this reference
to her previous complaint was not enough to exhaust, for Title VII
purposes, the discrimination claim. In this case, Ms. Shannon's
complaint with the St. Paul Department of Human Rights mentioned a
"management test," but this reference is an insufficient hook for
her failure-to-promote claim. Her alleged and actual mistreatment
by her colleagues and supervisors in the apprenticeship program,
which is run jointly by Ford and the UAW, does not translate into
or even relate to Ford's alleged failure to promote her through the
MSSS. The apprenticeship and supervisor programs are completely
separate, run by different people using different standards.
Perhaps the bias which allegedly infects Ford's apprenticeship
program also infects the MSSS, but we think the "reasonably
related" standard requires more than this. We agree with the
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District Court that Ms. Shannon failed to exhaust her sex-
discrimination claim.
IV.
For the reasons discussed above, we affirm the District
Court's order granting summary judgment for Ford.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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