Alvarado v. Texas Rangers

• Decision Date: 16 July 2007
• Docket Number: No. 05-51064.,05-51064.
• Citation: 492 F.3d 605
• Parties: Juanita ALVARADO, Plaintiff-Appellant, v. TEXAS RANGERS; Texas Department of Public Safety; Colleen McHugh, Chairman of the Commission on Public Safety; Bruce Casteel, Ranger Chief, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

492 F.3d 605

Juanita ALVARADO, Plaintiff-Appellant, v. TEXAS RANGERS; Texas Department of Public Safety; Colleen McHugh, Chairman of the Commission on Public Safety; Bruce Casteel, Ranger Chief, Defendants-Appellees.

No. 05-51064.

United States Court of Appeals, Fifth Circuit.

July 16, 2007.

Lynn Anne Coyle (argued), Francisco X. Dominguez, John P. Mobbs, El Paso, TX, for Alvarado.

James Byron Eccles (argued), Austin, TX, for Defendants-Appellees.

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

Before REAVLEY, GARZA and DENNIS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Juanita Alvarado ("Alvarado") appeals the district court's grant of summary judgment in favor of her employer, the Texas Department of Public Safety ("DPS"), on her claim that she was denied an appointment to DPS's Texas Rangers Division (the "Rangers") because of her sex (female), in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq.

I

Alvarado first joined DPS as a trooper in 1988.¹ She subsequently worked in the Highway Patrol Division and in the Criminal Law Enforcement Division's Narcotics Service before becoming a Sergeant in the Special Crimes Service in 1997. Over the next four years, Alvarado applied for a Sergeant position with the Rangers four times but was unsuccessful on each attempt.

In late 2001, Alvarado applied to the Rangers for a fifth time. She was one of 146 applicants for ten available Sergeant positions in the division. As she had done on four previous occasions, Alvarado engaged in DPS's "promotion and selection" process, which consisted of two steps: a written examination covering technical job knowledge and related skills, and an appearance before a six-member Oral Examining Board (the "Board").² All 146 applicants were ranked according to their written exam scores, and the top forty scorers—including Alvarado, whose score of 407.49 (out of a possible 500) tied for twenty-fifth place—were selected to interview before the Board. Prior to the interviews, the Rangers conducted background investigations of each candidate. Ranger Captain Barry Caver ("Caver") assigned Ranger Sergeant Hank Whitman ("Whitman") to perform Alvarado's background investigation. The written results of the background investigations, along with a personnel file created by the Human Resources Bureau ("HR") for each candidate, were then submitted to the Board. During the interviews, the Board members asked each candidate the same core questions, which had been drafted by the Board members and approved by HR in advance. In addition, the Board members were authorized to ask follow-up and candidate-specific questions. The Board members were instructed to evaluate each candidate on a scale of 0 to 500, with the "objective being to identify those who are the best qualified and to distinguish them by the rating" given.

Immediately following Alvarado's appearance before the Board, each Board member independently scored her interview as follows:

                Ranger Captain Caver                                  300
                Cleatis Buckaloo, Ranger Captain                      390
                Norris Akin, Ranger Lieutenant                        345
                Jose Morales, Motor Vehicle Theft Service Lieutenant  345
                Roger Millican, Highway Patrol Sergeant               325
                Rhonda Perry, Narcotics Sergeant                      375
                

The Board members' score sheets were forwarded to HR, where the high and low scores were eliminated and the remaining scores were averaged to reach a Board score of 347.5 and an interview ranking of twenty-ninth. The Board score was combined with Alvarado's written exam score, as well as her service and college education points, for a final cumulative score of 779.99. When the candidates were ranked according to their cumulative scores, Alvarado placed twenty-ninth. The top ten candidates, all of whom were male, were then offered the Ranger Sergeant positions.

When Alvarado did not receive an appointment to the Rangers, she brought the instant action, claiming that the Rangers had denied her a position on account of her sex in violation of Title VII.³ DPS moved for summary judgment, which the district court granted upon finding that Alvarado had failed to establish a prima facie case of sex discrimination. Specifically, the district court determined that Alvarado could not establish that she suffered an adverse employment action because a move from her current Sergeant position with Special Crimes to a Sergeant position with the Rangers would have been a purely lateral transfer, not a promotion. The court further found that "even disregarding that [the position Alvarado sought] is a transfer, there is no indication that there is anything inherently discriminatory in the process nor that Sgt. Alvarado has been discriminated against." On appeal, Alvarado argues that the district court erred in granting summary judgment for DPS because: (1) she adduced evidence sufficient to allow a reasonable trier of fact to find that the denial of a position with the Rangers was the denial of a promotion and, hence, constituted an adverse employment action; (2) DPS failed to provide a legally sufficient, legitimate, nondiscriminatory reason for her non-selection; and (3) even if DPS had satisfied its burden of production, she produced evidence sufficient for a reasonable jury to find that DPS's reason was pretextual and the denial of an appointment to the Rangers was motivated by her sex.

II

We review the district court's grant of summary judgment de novo, applying the same legal standard as the district court. Rachid v. Jack in the Box, Inc., 376 F.3d 305, 308 (5th Cir.2004). Summary judgment is appropriate when the evidence "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED R. CIV. P. 56(c). We review all facts in the light most favorable to Alvarado. Rachid, 376 F.3d at 308.

III

Title VII proscribes an employer from discharging or otherwise discriminating against any individual because of that individual's sex. 42 U.S.C. § 2000e-2(a)(1). "The Title VII inquiry is whether the defendant intentionally discriminated against the plaintiff." Roberson v. Alltel Info. Servs., 373 F.3d 647, 651 (5th Cir. 2004) (internal quotation marks and citations omitted). Intentional discrimination can be established through either direct or circumstantial evidence. Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219 (5th Cir.2001). Because Alvarado presents no direct evidence of discrimination, her claim is analyzed using the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Id. Under this framework, a plaintiff must first create a presumption of intentional discrimination by establishing a prima facie case. Id. The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-56, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The burden on the employer at this stage "is one of production, not persuasion; it `can involve no credibility assessment.'" Reeves, 530 U.S. at 142, 120 S.Ct. 2097 (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). If the employer sustains its burden, the prima facie case is dissolved, and the burden shifts back to the plaintiff to establish either: (1) that the employer's proffered reason is not true but is instead a pretext for discrimination; or (2) that the employer's reason, while true, is not the only reason for its conduct, and another "motivating factor" is the plaintiff's protected characteristic. Rachid, 376 F.3d at 312.

A

To establish a prima facie case of sex discrimination under Title VII, the parties agree that Alvarado was required to show: (1) she is a member of a protected class; (2) she was qualified for the position she sought; (3) she suffered an adverse employment action; and (4) others similarly situated but outside the protected class were treated more favorably. See Willis v. Coca Cola Enters., Inc., 445 F.3d 413, 420 (5th Cir.2006); Urbano v. Cont'l Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998). The district court determined that Alvarado could not make out the third element of her prima facie case because the evidence established, as a matter of law, that the position she sought with the Rangers would have been a purely lateral transfer; therefore, the decision not to transfer her to the Rangers was not an adverse employment action within the meaning of Title VII.⁴

It is well established that the denial of a purely lateral transfer is not an adverse employment action redressible under Title VII. See Burger v. Cent. Apartment Mgmt., Inc., 168 F.3d 875, 879 (5th Cir.1999) ("Refusing an employee's request for a purely lateral transfer does not qualify as an ultimate employment decision [actionable under Title VII]."). It is equally well established, however, that the denial of a promotion is an actionable adverse employment action. See, e.g., Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir.2000) ("Adverse employment actions are discharges, demotions, refusals to hire, refusals to promote, and reprimands.") (internal quotation marks and citation omitted). Alvarado contends that the summary judgment record is replete with evidence indicating that her non-selection to the Rangers was the denial of a promotion, not merely the denial of a lateral transfer. DPS responds that Alvarado's claim rests on the mere fact that she finds the thought of being a Ranger more alluring than her current position and contends that she has come forward with no objective evidence that a move to the Rangers would have been a promotion.

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