Davis v. Chevron U.S.A., Inc.

• Decision Date: 28 February 1994
• Docket Number: No. 93-8227,93-8227
• Parties: 64 Fair Empl.Prac.Cas. (BNA) 180, 63 Empl. Prac. Dec. P 42,861, 62 USLW 2595 Glenda DAVIS, Plaintiff-Appellant, v. CHEVRON U.S.A., INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1082

14 F.3d 1082

64 Fair Empl.Prac.Cas. (BNA) 180,

63 Empl. Prac. Dec. P 42,861, 62 USLW 2595

Glenda DAVIS, Plaintiff-Appellant, v. CHEVRON U.S.A., INC., Defendant-Appellee.

No. 93-8227.

United States Court of Appeals, Fifth Circuit.

Feb. 28, 1994.

Mike T. Milligan, El Paso, TX, for plaintiff-appellant.

Gina G. Palmer, Houston, TX, for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before HIGGINBOTHAM and WIENER, Circuit Judges, and KAUFMAN, ^* District Judge.

PER CURIAM:

Plaintiff-Appellant Ms. Glenda Davis (Davis) sued Defendant-Appellee Chevron USA, Inc. (Chevron) under Title VII of the Civil Rights Act of 1964, alleging that Chevron failed to hire her because she is a woman. Chevron filed a motion for summary judgment, which the district court granted, finding that Davis had failed to state a prima facie case of disparate treatment. Davis appeals, and we affirm.

I FACTS AND PROCEEDINGS

Responding to advertisements in the local papers, Davis applied to Chevron for a position as an oil refinery operator. The application process had two stages: an initial screening, which included a simple field test and an interview with only one person; and follow-up interviews with two successive panels, each composed of two evaluators. Davis was one of 27 applicants who passed the initial screening, but she was not among the several who were ultimately offered a job. The day that she received Chevron's rejection letter, Davis concluded that she was a victim of gender discrimination in contravention of Title VII of the Civil Rights Act of 1964. After receiving a no cause determination from the Equal Employment Opportunity Commission, Davis initiated this lawsuit.

To support her claim of gender discrimination, Davis alleges that one of her interviewers--Mr. Jelercic--"stared at [her] from the neck down." She attaches significance to margin notes that he made on his written evaluation form: pink glasses, short brown hair, and lisp (or--as Chevron suggests--perhaps "limp"). She claims that Jelercic asked about her ability to supervise and resolve disputes with and among men. She also complains that he asked her a "no win" question: what made her "stand out" as a candidate. She states that Jelercic gave her "the lowest scores" of all her evaluators, and suggests that--taken together--these observations reveal a "sexist" attitude on the part of Jelercic. Davis contends that this sexism resulted in her not being offered the position of oil refinery operator.

Davis does not deny that the job of refinery operator is physically demanding. An operator must regularly climb ladders, open valves, use high-pressure fire hoses, and respond rapidly in emergencies. Neither does Davis deny that she has a history of knee injuries. In 1983, Davis suffered a knee injury while working as a refinery operator at a Texaco facility and took medical retirement. Six years later, she went back to work, taking a job with Texacan; but within During the application process, several evaluators expressed concerns about Davis' knee injury, her physical condition, and her record of work-related accidents. Ms. Carol Leverett (Leverett), the person who initially screened Davis, gave her a relatively low score in the category of safety attitude and record (a 5 out of 10) and noted Davis' knee injury on her evaluation form. In her affidavit, Leverett also voiced concerns about Davis' physical condition, noting that during the field test she was afraid that "[Davis] was going to hurt herself" and that "[Davis] climbed the ladder very slowly." True, Leverett passed Davis through the initial screening, but she gave Davis the lowest overall score (again, a 5 out of 10) of the interviewers whose evaluation forms are in the Record Excerpts provided by both parties.

two years she suffered another on-the-job injury, damaging the same knee so severely that she needed knee replacement surgery. And although she claims that she would have become fit for duty within a "couple of months," Davis concedes that she was not physically qualified for the Chevron job at the time she applied.

Although Jelercic gave Davis a low score in the category of safety attitude and record (a 3 out of 10) and noted that he was "concerned about [Davis'] safety record," he gave her a fairly high score overall (a 7 out of 10). Wayne Nolde, another interviewer, also gave Davis a relatively low score in the category of "safety attitude" and noted that Davis' "physical condition is questionable." Nolde reiterated this concern in his deposition, stating that Davis walks with a "distinct limp." Significantly, of the 27 applicants who passed the initial screening, Davis received the lowest average score in the category of safety attitude and record.

Chevron was also concerned about Davis' weight and her general physical condition. Davis is apparently somewhat heavy, and this may have heightened interviewers' concerns about her ability to meet the challenges of a physically demanding job, as well as her prospects of recovering from knee surgery.

Discovery proceeded to completion in this case, with only Chevron requesting written discovery. Although Davis targets Jelercic as the interviewer who evidenced gender bias, she chose not to depose him. After the close of discovery, Chevron filed a motion for summary judgment. The district court granted the motion, concluding that Davis had failed to make out a prima facie case of gender discrimination. Davis timely appealed.

II STANDARD OF REVIEW

We review the district court's grant of summary judgment under the same standards that guided it. ¹ We affirm a grant of summary judgment when no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. ² A dispute about a material fact is genuine if the "evidence is such that a reasonable jury could return a verdict for the non-moving party." ³ When the record--taken as a whole--could not lead a rational trier of fact to find for the nonmoving party, then there is no genuine issue for trial. ⁴

III

ANALYSIS

To defeat Chevron's Motion for Summary Judgment, Davis has to make a showing sufficient to establish the putative existence of every element that is essential to

                her case. 5  In other words, she must present a prima facie case.  Otherwise, "there can be no genuine issue as to any material fact, [because] a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." 6  There are two methods of establishing a prima facie case of disparate treatment under Title VII:  direct and indirect (or inferential) 7  Davis' claim fails under either approach
                

A. Direct Proof of Gender Discrimination

Because direct evidence of employment discrimination is rare, courts have devised indirect or inferential methods of proving such discrimination. ⁸ If there is direct evidence that an employer placed substantial negative reliance on an illegitimate criterion in reaching an employment decision, however, resort to inferential methods of proof is unnecessary. ⁹ Davis asserts that such direct proof exists in this case. We disagree.

As noted earlier, Davis alleges that one of her interviewers--Jelercic--"stared at [her] from the neck down." She also points to marginal notes written by Jelercic on his evaluation form to the effect that Davis wore "pink glasses," had "short brown hair," and had a "lisp" (or perhaps a "limp"). Davis also suggests that some of Jelercic's questions were inappropriate. She claims that he questioned her about her ability to supervise men, and that he asked her what made her "stand out" as a candidate. She states--erroneously--that Jelercic gave her "the lowest scores" of all her evaluators and suggests that all these observations--taken together--reveal his "sexism." Davis contends that this sexism resulted in her being rejected for the position of oil refinery operator. We find Davis' "direct evidence" unconvincing.

In Brown v. East Mississippi Electric Power Ass'n, we defined direct evidence in the employment discrimination context: "[d]irect evidence is evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption." ¹⁰ In that case we found that a supervisor's open and routine use of racial slurs "constitutes direct evidence that racial animus was a motivating factor ..." in employment decisions. ¹¹ Similarly, in Price Waterhouse v. Hopkins, the Supreme Court indicated the kind of comments that constitute direct evidence of gender discrimination. ¹² In that case, one partner referred to the plaintiff as "macho." ¹³ Another suggested that she "overcompensated for being a woman." ¹⁴ A third advised her to take "a course at charm school." ¹⁵ And a fourth advised her to "walk more femininely, talk more femininely, dress more femininely ... and wear jewelry." ¹⁶ Like the supervisor's comments in Brown, these comments directly suggest the existence of bias; no inference is necessary. In both cases, the offending comments cannot reasonably be interpreted as anything other than a reflection of bias--either racial or gender-based.

The "evidence" adduced by Davis is of an altogether different and less compelling character. Even after viewing this evidence in the light most favorable to Davis, as we must in reviewing a district court's grant of summary judgment, and even after giving Davis the benefit of all reasonable inferences, we are unpersuaded. As noted above, Davis attaches significance to the marginalia on Jelercic's evaluation form: pink glasses, short brown hair, and lisp or "limp." Davis fails to mention, however, that Jelercic also wrote "black shirt" at the same place on his form. She also omitted mention of the fact that these notations appear at the top of the evaluation form, right under the name of the applicant ("G. Davis"). These additional facts that Davis...