Nunley v. City of Waco, 090111 FED5, 11-50119

Docket Nº:11-50119
Opinion Judge:PER CURIAM:
Party Name:KENNETH W. NUNLEY, Plaintiff-Appellant v. CITY OF WACO, Defendant-Appellee
Judge Panel:Before KING, GARZA, and GRAVES, Circuit Judges.
Case Date:September 01, 2011
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

KENNETH W. NUNLEY, Plaintiff-Appellant


CITY OF WACO, Defendant-Appellee

No. 11-50119

United States Court of Appeals, Fifth Circuit

September 1, 2011

Appeal from the United States District Court for the Western District of Texas USDC No. 6:09-CV-197.

Before KING, GARZA, and GRAVES, Circuit Judges.


Kenneth W. Nunley challenges the district court's grant of a motion for summary judgment in favor of Defendant City of Waco. For the reasons stated herein, we affirm the ruling of the district court.


Plaintiff Kenneth Nunley has been an employee of the City of Waco ("the City") since May 1994, during which time several disputes occurred, all of which are of relevance to the present litigation. In 1999, Nunley was involved in a dispute with a fellow employee, Cynthia Simms, and both parties registered complaints with their supervisors. In 2001, a department reorganization resulted in Nunley being demoted to a non-supervisory position. Five white employees received lesser demotions to supervisory positions, and Nunley allegedly complained about this, though there is no documentation of it on record. Finally, in 2004, an operations coordinator ("OC") position came open, and Nunley applied. Another person was selected, and Nunley subsequently filed a complaint with the EEOC, alleging that the decision was racially motivated.

In 2006, the City posted a job opening for another OC position in the Parks and Recreation Department. The posting stated that a high school diploma was required and an associate's degree desired; that two years of previous supervisory experience in a related field was required and athletic field maintenance experience desired; and that pest applicator's and irrigator's licenses were desired. Mr. Nunley, along with seven other individuals, applied and, along with four other applicants, was selected to be interviewed by a panel of four persons. The panel, which included Steve Miller, was chosen by Rusty Black, the director of the Parks and Recreation Department.

After interviews, the panel chose Ken Griffin, a white male, over Nunley, a black male, citing Griffin's possession of an associate's degree in turf management and an irrigator's license, his experience maintaining irrigation systems and ballfields at Baylor University, and his favorable impression during the interview. The panel concluded that Nunley, who had considerable experience working for the city and a pest applicator's license, was qualified for the job, but not as qualified as Griffin.

Nunley subsequently filed a complaint with the EEOC, claiming race discrimination. The City filed two responses to the complaint, citing the foregoing reasons for choosing Griffin, referencing "certain incidents" which had "caused some reservations" about how well Nunley would get along with others, and raising concerns about his leadership and communication skills. However, in subsequent deposition testimony, Miller stated that he did not recall the interview panel discussing how well Nunley got along with others and that he did not know how well Nunley had performed as a supervisor. He did not mention Nunley's communication skills. The EEOC issued a determination letter of discrimination.

Nunley filed suit, alleging discrimination under Title VII and basing his claim on (1) an alleged conflict between Miller's deposition testimony and the City's EEOC responses, (2) an assertion that he was "clearly better qualified" than Griffin, and (3) the EEOC determination letter. Nunley also claims that the City chose Griffin over Nunley in retaliation for his 2001 and 2004 complaints. The district court granted the City's motion for summary judgment on all of Nunley's claims. Nunley now appeals.


We review the district court's grant of summary judgment de novo, applying the same standards as the district court. Burge v. Parish of St. Tammany, 157 F.3d 452, 465 (5th Cir. 1999). Summary judgment is appropriate if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A dispute is "genuine" if the evidence is sufficient for a reasonable jury to return a verdict for the non-moving party. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000). A fact issue is "material" if its resolution could affect the outcome of the action. Id. When reviewing a summary judgment, we construe all facts and inferences in the light most favorable to the non-moving party. Cooper Tire & Rubber Co. v. Farese, 423 F.3d 446, 454 (5th Cir. 2005).


In order to overcome a summary judgment motion in a Title VII employment discrimination claim, a plaintiff must establish a prima facie case of discrimination, and the defendant must then articulate a legitimate, non-discriminatory reason for its actions. See Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). If this burden is met by the defendant, the plaintiff must then offer sufficient evidence that either (1) the defendant's reason is not true, but is instead a pretext for discrimination or (2) the reason, while true, is only one of the reasons, and another motivating factor is the plaintiff's protected characteristic. Id.

The city concedes that Nunley has established a prima facie case and Nunley concedes that the City has articulated legitimate, non-discriminatory reasons for its decision not to hire Nunley. The issue on appeal is thus whether Nunley has raised a genuine issue of material fact as to pretext or mixed-motives.


Nunley first argues that conflict between the City's EEOC response and Miller's deposition raises a fact issue under Burrell v. Dr. Pepper, 482 F.3d 408 (5th Cir. 2007). In Burrell, we concluded that the defendant's rationale for a hiring decision was "suspect because it [had] not remained the same" and that "a reasonable factfinder could conclude that [the defendant's] asserted justification . . . [was] 'unworthy of credence' and a pretext for intentional discrimination." Id. at 415 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000)). Nunley argues that because Miller's statements regarding Nunley's interpersonal skills conflict with the EEOC response, the City's rationale is similarly "suspect."1 We note, however, that the conflicting statements concern one of many justifications, and we conclude that the City's rationale has essentially remained the same. In other words, in arguing that he only needs some conflicting statements concerning any one part of a multi-faceted rationale, we think Nunley asks too much of Burrell.

In Burrell, the inconsistent explanations by the employer concerned the candidate's experience, which was, in all of the proffered explanations, the deciding factor. Id.; see also Gee v. Principi, 289 F.3d 342 (5th Cir. 2002) (in which conflicting testimony went to the core of the employer's hiring decision). In contrast, the subject of the inconsistent statements in the present case—Nunley's ability to get along with others—was but one item in a long list of reasons why the City hired Griffin instead. The City's 2007 EEOC response lists the following reasons for its decision: (1) Griffin's possession of an associate's degree in a relevant field, (2) the good reputation of the institution from which he received the degree, (3) his possession of an irrigation license and experience maintaining irrigation systems, (4) his experience and track record as a groundskeeper at Baylor, and (5) the favorable impression he made in his interview. All of these items were discussed before the response mentions any concerns about Nunley's interpersonal skills. Thus, the great bulk of the City's rationale was not even implicated by the inconsistent statements.


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