Gentry v. Georgia-Pacific Corp.

Decision Date09 April 2001
Docket NumberGEORGIA-PACIFIC,No. 00-2850,00-2850
Citation250 F.3d 646
Parties(8th Cir. 2001) BETTYE S. GENTRY AND KATHERINE D. WHITLEY, PLAINTIFFS/APPELLANTS, v.CORPORATION, DEFENDANT/APPELLEE. Submitted:
CourtU.S. Court of Appeals — Eighth Circuit

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

Before Hansen and Bye, Circuit Judges, and Melloy, 1 District Judge.

Melloy, District Judge

Bettye Gentry and Katherine Whitley brought this diversity suit against Georgia- Pacific Corporation alleging they were discriminated against on the basis of gender in violation of the Arkansas Civil Rights Act of 1993 ("ACRA"), Ark. Code Ann. 16- 123-107(c) et seq. The district court 2 granted partial summary judgment to the defendant and the plaintiffs appeal. 3 We affirm.

I.

Bettye Gentry and Katherine Whitley are hourly employees in the shipping department of Georgia-Pacific's paper mill in Ashdown, Arkansas. Gentry began working at the mill in 1980 and is currently employed as a finished goods material handler. Whitley began working at the mill in 1991 and is currently employed as a material handler.

In August 1995, Georgia-Pacific posted a notice advertising a vacancy for a permanent shift supervisor position in the shipping department. Both Gentry and Whitley applied and, along with other candidates, underwent a structured interview process in which each candidate was asked the same questions by a mixed-gender interview panel. Each member of the panel scored each candidate based on his or her responses. The interviewers then compared scores and came to a consensus for each question. The candidates were ranked based on the consensus totals. The panel then forwarded its recommendation of the highest ranked candidate to Georgia-Pacific's shipping superintendent, Syd Clark, who was responsible for the operation of the shipping department. Clark reported to Wallace Lynn Jones ("Lynn Jones"). Following the panel's recommendation, and with approval from Lynn Jones, Clark awarded the position to Tony Jones in December 1995.

Georgia-Pacific contends that it posted another notice advertising vacant shift supervisor positions in February 1996. Unlike the previous posting, this one did not include a "bid sheet" on which employees could register their interest. Rather, the posting stated that interested employees were to fill out an internal applicant form in human resources. The selection process itself also differed from August 1995. To be considered, an applicant was required to complete a Test of Adult Basic Education as well as participate in a structured interview involving standardized questions and a creative expression exercise. If an applicant successfully completed these preliminary requirements, he or she then participated in a workshop with other applicants, after which a final selection was made.

Gentry did not go through the selection process in connection with the February 1996 posting. She has no recollection of ever seeing the February posting or filling out an application for the position. She never received a memo allegedly routed to all employees having expressed an interest in the position although her name is listed among the recipients. She was aware of the selection process as it was taking place in spring 1996 but never asked Clark or anyone else in management why she was not being included in the process.

Whitley did fill out an internal application form in February 1996, and in spring 1996 she completed the preliminary requirements and participated in the workshop. From this process, the panel recommended three male candidates as "ready for promotion" to shift supervisor: Russell Latson, Wayne Gierke, and Mike Kelly. In May, 1996, Clark promoted Latson to one of the positions. 4

In late 1996 and early 1997, both Tony Jones and Latson resigned their positions as shipping supervisors. To fill these vacancies, Georgia-Pacific decided to promote from the spring 1996 recommendations instead of instituting a new process. Kelly and Gierke were offered the open positions.

In April 1998, another shift supervisor position was advertised. Both Gentry and Whitley applied and went through the selection process, which again included a structured interview before a mixed-gender panel. Donald Thompson received the highest interview score. He was recommended by the panel and was subsequently promoted to shipping supervisor in June 1998. Among those involved in the decision- making process for this position was Malinda Winton, hired by Clark and Lynn Jones in May 1997 as assistant superintendent of the shipping department. Winton works directly under Clark and directly over the shift supervisors.

Gentry and Whitley filed a complaint against Georgia-Pacific alleging that Georgia-Pacific failed to promote them to the permanent shift supervisor positions on the basis of their gender in violation of the ACRA. In a memorandum and order filed on May 12, 2000, the district court granted Georgia-Pacific's motion for summary judgment. With respect to Whitley's claim, the district court assumed that she had established a prima facie case of gender discrimination as to both the 1996 and 1998 process but found that she had failed to submit sufficient evidence to overcome Georgia-Pacific's claim that a neutral selection panel had recommended others for the promotions based on more favorable evaluations. With respect to Gentry's claim, the district court first concluded that Gentry had failed to apply for the 1996 selection process. As to the 1998 vacancy, for which Gentry did formally apply, the court held that, like Whitley, Gentry had failed to submit sufficient evidence to rebut Georgia- Pacific's claim that the position was awarded to the applicant who received the highest evaluation. Gentry and Whitley's motion to reconsider was denied.

II.

We review a district court's grant of summary judgment de novo, giving the nonmoving party the most favorable reading of the record as well as the benefit of any reasonable inferences that arise from the record. Britton v. City of Poplar Bluff, 2001 WL 303895, *1 (8th Cir. 2001); Bogren v. Minnesota, 236 F.3d 399, 403 (8th Cir. 2000). Summary judgment "is appropriate where one party has failed to present evidence sufficient to create a jury question as to an essential element of its claim." Whitley v. Peer Review Sys., Inc., 221 F.3d 1053, 1055 (8th Cir. 2000) (citing Chock v. Northwest Airlines, Inc., 113 F.3d 861, 865 (8th Cir. 1997)).

As the district court recognized, the plaintiffs' failure-to-promote claims are analyzed under the familiar McDonnell Douglas burden-shifting framework. See Roark v. City of Hazen, 189 F.3d 758, 761 (8th Cir. 1999) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)); Flentje v. First Nat'l Bank of Wynne, 11 S.W.3d 531, 536-38 (Ark. 2000) (applying burden-shifting analysis to ACRA claim and noting that "Arkansas's statute specifically provides that courts may look to state and federal decisions interpreting the federal civil rights laws for persuasive authority"). Under this framework, a plaintiff may establish a prima facie case of discrimination in a failure-to- promote case by showing 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. Shannon v. Ford Motor Co., 72 F.3d 678, 682 (8th Cir. 1996) (citation omitted). "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.'" Id. (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981)). The burden then reverts to the plaintiff to point to evidence which, if believed, would expose the employer's reason as a mere pretext for intentional discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 120 S. Ct. 2097, 2106 (2000) (citing Burdine, 450 U.S. at 253, and St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507-508 (1993)); O'Sullivan v. Minnesota, 191 F.3d 965, 969 (8th Cir. 1999). "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Burdine, 450 U.S. at 253, quoted in Reeves, 120 S. Ct. at 2106.

A. Whitley's Gender Discrimination Claim

The district court assumed, as we do on appeal, that Whitley set forth sufficient evidence to support a prima facie case of discriminatory failure-to-promote as to both the 1996 and 1998 selection process. The court concluded, however, that Whitley failed to establish a genuine issue that Georgia-Pacific's proffered reason for failing to promote her was a pretext for gender discrimination. After a thorough review of the record, we agree with the district court that Whitley has not demonstrated that Georgia- Pacific's explanation that other candidates were evaluated more favorably by a neutral, gender-mixed panel was pretext for gender discrimination.

Whitley's pretext argument centers on the role of the selection panel in recommending promotion-ready employees. Her evidence of pretext rests solely on inferences to be gleaned from the following: (1) the alteration of her interview score from an "85" to a "77" in the 1996 selection process; (2) two affidavits from Georgia- Pacific employees, Pat Thrush and Russell Latson, which arguably suggest bias in the selection process; and (3) the fact that Georgia-Pacific has never promoted a female production worker within the shipping department to a shift supervisor position.

As to the 1996 selection process, we find meritless Whitley's argument that she is entitled to an adverse inference based on the fact that her...

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