168 F.3d 1257 (11th Cir. 1999), 98-8071, Schoenfeld v. Babbitt

Docket Nº:98-8071.
Citation:168 F.3d 1257
Party Name:Paul SCHOENFELD, Plaintiff-Appellant, v. Bruce BABBITT, In his official capacity as Secretary of Interior for the United of America, Defendant-Appellee.
Case Date:March 04, 1999
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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168 F.3d 1257 (11th Cir. 1999)

Paul SCHOENFELD, Plaintiff-Appellant,

v.

Bruce BABBITT, In his official capacity as Secretary of

Interior for the United of America, Defendant-Appellee.

No. 98-8071.

United States Court of Appeals, Eleventh Circuit

March 4, 1999

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Brenda Kaye Katz-Flexer, Richard K. Strickland, Whelchel B. Brown Readdick & Bumgartner, Brunswick, GA, for Plaintiff-Appellant.

Harry Dixon, U.S. Atty., Delora L. Grantham, Asst. U. S. Atty., Savannah, GA, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before COX, CARNES and HULL, Circuit Judges.

COX, Circuit Judge:

Plaintiff-Appellant Paul Schoenfeld sued Bruce Babbitt in his official capacity as Secretary of the Department of Interior alleging that the Department had discriminated against him on the basis of his race and gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. He appeals from a district court order entering summary judgment against him. We affirm in part and reverse in part.

I. Background Facts 1

In the fall of 1994, the United States Department of Interior, Fish and Wildlife Service advertised an opening for a fish and wildlife biologist in Brunswick, Georgia. The usual hiring procedure for a Fish and Wildlife Service GS-11 position is as follows. When a decision is made to create a new position or hire someone into a vacant position, a notice is posted which advertises the opening and provides a limited period of time for interested parties to submit applications.

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After the period for receiving applications expires, a personnel specialist in the Personnel Office in Atlanta, Georgia, ranks the applicants and places the names of the eligible people on a "merit staffing certificate." This certificate is then sent to the initial-selecting official for the position. The certificate remains effective for 60 days. Although one 30-day extension is possible, if no candidate is hired by the time it expires, then the process must begin again.

The initial-selecting official reviews the applications of the people listed on the merit staffing certificate and may schedule interviews if he believes they would be helpful. The official then selects whoever he believes is the most qualified candidate and attaches to the certificate a form indicating the selection. In addition, the official completes an "outreach recruitment plan and techniques" form and a "women and minorities recruitment checklist." The outreach plan form is several pages long and contains questions that are aimed at determining whether full consideration has been given to minority applicants. 2 The checklist is a one-page form that contains nine different statements regarding actions that could be taken to attract minority and female candidates to the advertised position. Each statement has a blank space next to it that can be filled with a check to indicate that the action has been taken. 3

The initial-selecting official then sends his recommendation and the requisite forms to the assistant regional director of his program. If that person agrees with the selection, he or she forwards it to the Office of Human Resources, where it is reviewed and screened for compliance with Equal Employment Opportunity (EEO) guidelines. After Human Resources reviews the recommended candidate package and indicates approval or disapproval, the package of materials is sent to the regional director in Atlanta, Georgia, for a final decision. If the regional director approves the selection, then the information is sent back to Personnel. Personnel then calls the selected person and offers him or her the job.

In this case, a notice was posted in the fall of 1994 that advertised a GS-9/11 fish and wildlife biologist position with the Fish and Wildlife Service in Brunswick, Georgia. The notice asked potential candidates to fill out a standard SF-171 form and separately address five different Knowledge, Skills, and Abilities (KSAs) ranking factors. Paul M. Schoenfeld, a white male, applied for the position. After the application period expired, Michael White, a personnel specialist, prepared a merit staffing certificate for the position on October 11, 1994. The certificate contained the names of Schoenfeld, another male, and three females. Donna McElwee, a Program Analyst in Atlanta, Georgia, then sent the certificate to Philip Laumeyer, the initial-selecting official. She also sent him the applications, the women and minorities recruitment checklist, and the outreach plan form. The certificate stated that it was valid "through the close of business December 12, 1994." (R. 2-52 at Ex. 13F.)

At the time, Laumeyer was the field supervisor for the Ecological Services field office in Brunswick, Georgia. Upon receiving the materials, Laumeyer decided that interviews would not aid in the selection. He covered the names of the applicants and conducted a race and gender blind rating of them based on their experience and their responses to the requested KSAs. Using this process, he ranked Schoenfeld as the most qualified applicant. He filled out the appropriate forms

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on November 23, 1994, and sent Schoenfeld's name and the package of materials back to McElwee.

McElwee forwarded the materials to Nancy Coon, Laumeyer's immediate supervisor and the deputy assistant regional director for Ecological Services in Atlanta, Georgia. Coon reviewed the recommendation and on December 5, 1994, concurred in the selection of Schoenfeld for the position. She then sent the recommendation and materials back to McElwee. After receiving the materials, McElwee walked them over to the Human Resources Office where she gave them to either Bennie Boyd or his assistant. Boyd was the assistant regional director for Human Resources for the southeast region of the United States Fish and Wildlife Service. He reviewed the recommendation and the attached materials.

At this point, the factual accounts offered by the parties differ. According to Laumeyer, he was contacted by either Boyd or Coon and told that his outreach plan needed to be "fleshed out" because, as initially completed, it only had a terse "yes" or "no" written in pencil beside each question. (R. 2-40 at 18-19, 23.) After receiving this message, Laumeyer claims that he filled out a new outreach plan with more detailed responses and sent it through the appropriate channels back to his supervisor and Human Resources. (Id. at 20.) Shortly thereafter, however, he received a phone call from Boyd. Boyd told him that he needed to more fully justify his selection of Schoenfeld. (Id. at 24.) Laumeyer could not determine what exactly Boyd meant for him to do in order to more fully justify his selection. Although he asked Boyd what needed to be more fully justified, he never received a clear answer. During the course of this phone conversation, Boyd suggested Laumeyer consider a specific female candidate on the merit staffing certificate named Ms. Chubb. (Id. at 25-26.) According to Laumeyer, it was "strongly implied" that he should hire her for the position, and he responded that, in his opinion, Ms. Chubb was not as qualified as Schoenfeld. (Id. at 25-26, 60.) Laumeyer had never before been asked to provide this much justification for one of his selections. (Id. at 36-37.)

According to Boyd, he reviewed the materials and called Laumeyer to discuss his selection. He told Laumeyer that Laumeyer's justification for hiring Schoenfeld over the other candidates on the certificate was "weak." (R. 2-36 at 14-15.) Boyd also told him that he had not attached an outreach plan to the recommendation. (Id.) As a result, Boyd told him to fill out an outreach plan and provide further justification for his hiring decision. (Id.) Boyd maintains that he never indicated to Laumeyer that he should consider any particular candidate for the position. (Id.) He claims that he discussed the qualifications of Schoenfeld and that he told Laumeyer to put his justification in writing, and he would approve it. He admits, however, that he requested additional justification in part because Laumeyer had selected a white male and there were females on the certificate. (Id. at 28.)

McElwee was informed by either Boyd or Coon that there was a problem with Laumeyer's selection in that Boyd wanted the candidates to be reviewed again because there were women and minorities on the certificate that he wanted to make sure were properly considered. (R. 2-46 at 13-14.) She received the application package back from Boyd. Attached to it was a memorandum addressed to Coon. McElwee returned the package to Coon. The memorandum, dated December 14, 1994, explained that:

I spoke directly to Philp [sic] Laumeyer, on failure to implement EEO initiatives, and weak justification offered on this selection. He stated that he strongly supports affirmative employment, and of 12 staff biologists at his station, 6 are female. He further stated that while Ms. Chubb was basically qualified, she would require extensive training because her experience reflect [sic] minimal skills that are presently in abundance at that station. He also said that the selectee provided different experience and skill required of this position. I suggest that these comments be included

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in the justification and that the Director's recruitment plan questionnaire completed.

(R. 2-52 at Ex. 13G.)

Coon forwarded this memorandum to Laumeyer with the added statement "[p]lease address HR's concerns. Return to Donna. Direct your comments to Dr. Butler who will decide whether to approve your selection. Our experience has been that current composition of an...

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