Tyron Farver v. Ryan McCarthy , 931 F.3d 808 ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-2789
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Tyron D. Farver
lllllllllllllllllllllPlaintiff - Appellant
v.
Ryan D. McCarthy, Acting Secretary, Department of the Army
lllllllllllllllllllllDefendant - Appellee
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Appeal from United States District Court
for the Eastern District of Arkansas - Pine Bluff Division
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Submitted: April 16, 2019
Filed: July 31, 2019
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Before SHEPHERD, MELLOY, and GRASZ, Circuit Judges.
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GRASZ, Circuit Judge.
Tyron Farver challenges the decision of Pine Bluff Arsenal (“PBA”), an
installation of the Department of the Army, not to hire him for either a temporary or
a permanent position as a Chemical Equipment Repairer. Farver claims PBA violated
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17. The district
court1 granted the defendant’s motion for summary judgment. We affirm.
I. Background
Farver, an African American, was employed at PBA as an Industrial Worker,
but was loaned out to the Motor Powered and Systems Division (“motor pool”) for
his welding skills for approximately six months in 2009. There was not enough
welding work to keep Farver busy welding each day at the motor pool. During times
when work was slow, Farver sought training on chemical equipment such as the
M17A3 (“M17”) decontamination unit. With the assistance of his coworker Robert
Lee, Farver became proficient in the fabrication of M17s. Farver was never assigned
to work on these units during his time at the motor pool.
Farver applied for a job as a Chemical Equipment Repairer at PBA on two
occasions in 2009. First, Farver applied for a one-year term position with a possible
year-to-year extension. There were multiple term positions open when Farver
submitted his resume to his second-line supervisor, James Reed. Reed was uncertain
of the exact number, but testified he may have received as many as 50 to 100 resumes
for the one-year term positions. Reed did not select Farver. Later that year, Farver
applied online for a permanent position. Reed again passed over Farver for the
position.
Reed selected Chad Adams, Brandon Wilson, JC Warren, and Anthony Foots
for the term positions. Reed maintained the chosen candidates “had more the type of
mechanical experience” he was looking for. This included “skills with engines, with
hydraulics, pneumatics, troubleshooting, diagnostics, and those types of skills.”
1
The Honorable J. Leon Holmes, United States District Judge for the Eastern
District of Arkansas.
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Adams’s mechanical experience included time spent as an HVAC technician,
experience reading blueprints and diagrams, and installing components. Warren had
experience with engines and hydraulics because he had previously owned and
operated a trucking and construction business. Wilson had experience in chemical
equipment repair and was familiar with M17 decontamination units because of his
time as a work leader at PBA. Farver’s resume highlighted his experience with
welding and chemical equipment repair. However, welding experience was not
required in order to be eligible for the position, and his work with chemical
equipment had not been assigned by PBA.
Regarding the permanent position, Reed selected seven individuals based on
scores they received on a matrix he created to assess resumes. Despite the fact
Farver’s resume received a high rank from a resume-analyzing computer software
program used by the Army, when Reed reviewed the materials himself he believed
Farver’s relevant experience had been inflated.2 In his own matrix, Reed did not
credit Farver’s unassigned work experiences, work he had not observed Farver doing,
and skills he doubted Farver could have acquired based on the available equipment
in Farver’s assigned area. In addition, Reed’s matrix did not offer significant points
for welding, Farver’s primary assigned task in the motor pool. After Reed completed
his own calculations, Farver received the lowest score of the considered applicants.
Reed explained he did not hire Farver because “[Farver’s] resume did not indicate
that he could perform the functions that were required to do that job in the position
description as well as the people [Reed] selected.”
Farver sued the Secretary of the Army (“Secretary”) on the basis of race
discrimination. In response to the Secretary’s motion for summary judgment, Farver
2
The resumes were run through a program called Resumix. Resumix did an
automated word search of the applicants’ resumes and scored them based on
knowledge, skills, and abilities found in the position description. Resumix scored
Farver’s resume fourth highest of the applicants.
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argued genuine issues of material fact existed as to whether Reed’s failure to select
him for the term and permanent positions was based on his race since he was more
qualified than some of the white individuals selected. The district court granted the
Secretary’s motion and Farver appealed.
II. Analysis
Grants of summary judgment are reviewed de novo. Cox v. First Nat’l Bank,
792 F.3d 936, 938 (8th Cir. 2015). Summary judgment should be granted when
“there is no genuine issue as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). There is a genuine issue of
material fact if there is enough evidence “ that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The burden of demonstrating an absence of a genuine dispute of material fact
is on the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the
moving party satisfies the burden, the nonmoving party must present specific
evidence, beyond “mere denials or allegations [that] . . . raise a genuine issue for
trial.” Wingate v. Gage Cty. Sch. Dist., 528 F.3d 1074, 1079 (8th Cir. 2008); see also
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc)
(discussing the nonmovant’s burden of showing more than a “metaphysical doubt”).
“[T]o survive a motion for summary judgment on a discrimination claim, a
plaintiff must present admissible evidence directly indicating unlawful
discrimination, or create an inference of unlawful discrimination under the burden-
shifting framework established in McDonnell Douglas . . . .” Rooney v. Rock-Tenn
Converting Co., 878 F.3d 1111, 1115-16 (8th Cir. 2018) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973)). Farver does not supply any evidence of direct
discrimination, so the question is one of indirect evidence. To establish an inference
of discrimination, there are three steps: (1) the plaintiff must establish the prima facie
case for race discrimination; (2) the burden of production then shifts to the employer
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to show a legitimate, nondiscriminatory reason for its decision; and, if the employer
produces such evidence, (3) the burden of production shifts back to the plaintiff to
show the proffered reason was mere pretext for intentional discrimination. See
McDonnell Douglas, 411 U.S. at 802–05; see also Edwards v. Hiland Roberts Dairy,
Co., 860 F.3d 1121, 1125–26 (8th Cir. 2017).
In the failure-to-hire context, a plaintiff may establish a prima facie case of
discrimination by showing he is a member of a protected group; he applied for an
available position; he was qualified for the role; he was not hired; and similarly
situated individuals, not part of the protected group, were promoted instead. See
Amini v. City of Minneapolis, 643 F.3d 1068, 1074 (8th Cir. 2011). Farver’s ability
to establish the prima facie case for either position is not disputed, therefore we start
our analysis with the remainder of the test.3
Reed maintained his decision was based on the skills and experiences of the
applicants, not race. Reed explained the candidates he chose “had more the type of
mechanical experience” for which he was looking, including skills with engines,
hydraulics, pneumatics, troubleshooting, and diagnostics. Prioritizing a certain set
of skills over others is a legitimate, nondiscriminatory reason for a hiring decision.
Thus, the burden of production shifts back to Farver to present evidence the
provided reason is pretextual. McDonnell Douglas, 411 U.S. at 806. There are two
primary ways to show pretext in this area. A plaintiff may present evidence the
proffered reason has “no basis in fact” or “a [prohibited] reason [is] more likely.”
Torgerson, 643 F.3d at 1048 (first alteration in the original) (quoting Wallace v. DTG
Operations, Inc., 442 F.3d 1112, 1120 (8th Cir. 2006)). To show a prohibited reason
3
Although Farver’s ability to establish a prima facie case for the term position
is not disputed, we note Anthony Foots, one of the individuals hired, is African
American.
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is more likely because he or she was more qualified than selected candidates, a
rejected candidate must present evidence the other candidates were in fact less
qualified. Kincaid v. City of Omaha, 378 F.3d 799, 805 (8th Cir. 2004). “Similar
qualifications do ‘not raise an inference of discrimination.’” Torgerson, 643 F.3d at
1048 (quoting Chock v. Northwest Airlines, 113 F.3d 861, 864 (8th Cir. 1997)).
To ascertain if the hired candidates were less qualified, “a comparative analysis
of the qualifications is relevant to determine whether there is a reason to disbelieve
the employer’s proffered reason . . . .” Id. Employers may consider many
experiences and skill sets when making a hiring decision. See Bone v. G4S Youth
Servs., LLC, 686 F.3d 948, 955 (8th Cir. 2012) (noting it is not the court’s role to “sit
as super-personnel departments reviewing the wisdom or fairness of the business
judgments made by employers, except to the extent that those judgments involve
intentional discrimination”).
Farver argues he was objectively more qualified for both the temporary and the
permanent positions because of his hands-on experience with chemical equipment
such as gas masks, grenade launchers, and M17s. Neither Adams, Warren, nor
Wilson, who are white, had this type of broad of experience with chemical equipment.
However, this alone does not show they were less qualified to fulfill the role because
they had relevant experiences and skills Farver lacked.
Wilson’s experience with M17s coupled with his mechanical experience was
sufficient to establish he and Farver were similarly qualified. Adams’s extensive
experience with HVAC systems shows he had the mechanical skills Reed prioritized.
Warren had considerable experience with engines from owning a trucking company.
Although Farver had hands-on experience with the chemical equipment, his bona fide
qualifications were largely limited to welding — not a skill Reed prioritized, as it was
not required for the position. At best, Farver establishes he was similarly qualified
for the one-year term positions.
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As to the permanent position, Farver primarily relies on the computer generated
“objective” scores for his argument. But the purpose of the resume-screening
software is primarily to screen out unqualified candidates and draw attention to those
who might be most qualified. The keyword search feature alerts employers to the
candidates who incorporated words into their resumes that reflect the job description.
There is no requirement the hiring be done solely on the basis of the computer
rankings, and the decision-maker retains some authority to pass over highly ranked
candidates he or she determines do not have the prioritized skills and experiences.
Farver argues Reed knew about his unassigned work in the motor pool with
Lee, and therefore Reed’s failure to credit Farver for those portions of his resume is
pretext for discrimination. It is not irrational, though, for Reed to believe the
experience of performing assigned tasks accompanied by formal training and
supervision is more reliable. It is also not illogical for Reed to doubt and discredit
portions of Farver’s resume that alluded to working on equipment that, to Reed’s
knowledge, was not located in the areas to which Farver was assigned.
In sum, no reasonable factfinder could find Reed’s decision was motivated by
race. Such a conclusion would require speculation because Farver has not produced
sufficient evidence to raise a reasonable inference of discrimination.
III. Conclusion
For the reasons set forth herein, we affirm.
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