Canada v. Union Elec. Co.

• Decision Date: 10 November 1997
• Docket Number: No. 97-1673,97-1673
• Citation: 135 F.3d 1211
• Parties: 72 Empl. Prac. Dec. P 45,068 Lafayette CANADA, Appellant, v. UNION ELECTRIC COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1211

135 F.3d 1211

72 Empl. Prac. Dec. P 45,068

Lafayette CANADA, Appellant, v. UNION ELECTRIC COMPANY, Appellee.

No. 97-1673.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 12, 1997.

Decided Nov. 10, 1997.

Timothy Bates (argued), Belleville, IL, for Appellant.

John H. Quinn, III (argued), St. Louis, MO (Thomas B. Weavre and Joan Z. Cohen, on the brief), for Appellee.

Before RICHARD S. ARNOLD, Chief Judge, HEANEY and BEAM, Circuit Judges.

RICHARD S. ARNOLD, Chief Judge.

Lafayette Canada, an African-American employee of Union Electric Company, claims the company failed to promote him to the position of gardener because of his race. He appeals the order of the District Court granting summary judgment for Union Electric. The District Court held that there were no genuine issues of material fact with respect to Union Electric's legitimate, nondiscriminatory reason for its failure to promote Mr. Canada. The key issue is whether Mr. Canada passed an oral examination necessary to secure the promotion. Union Electric's evidence is that he did not. We hold that the plaintiff submitted sufficient evidence to the contrary to create a genuine issue, and we therefore reverse the judgment of dismissal and remand for further proceedings.

I.

Mr. Canada was hired by Union Electric in 1989 as a janitor. He was later promoted to the position of porter. While working as a porter, Mr. Canada bid on open positions as a gardener in the company's forestry department. To become a gardener, an applicant must have a high-school diploma or its equivalent; three years' experience in landscaping and planting work; a thorough knowledge of lawn care, gardening, planting, and landscaping; and good physical strength and endurance. Once supervisors in the forestry department have determined that a bidder is eligible, a test is given to determine whether he or she has the requisite knowledge of lawn care, gardening, planting, and landscaping. The test was originally written, but was later changed to an oral examination, and was later still returned to its original, written format. If the bidder passes the test, he or she is offered the position.

Mr. Canada sought a gardener position in 1989, 1994, 1995, and 1996. On each occasion, supervisors in the forestry department deemed Mr. Canada eligible to take the test. He took oral tests in 1989 and 1994 and written tests in 1995 and 1996. He was informed each time that he failed the examination. In 1994, Mr. Canada filed a grievance with his local union. Later that year, he filed a complaint with the Equal Employment Opportunity Commission (EEOC) and the City of St. Louis Civil Rights Enforcement Agency, alleging that the examinations had been used by the company to discriminate against him because of his race. Both agencies investigated the charge and found no discrimination. The EEOC issued a right-to-sue letter, and Mr. Canada filed this case in a state court in 1995. Union Electric removed the case to the District Court. Following discovery, Union Electric filed a motion for summary judgment. The District Court held there were no genuine issues of material fact and granted summary judgment in Union Electric's favor.

II.

We review a grant of summary judgment de novo. Stevens v. St. Louis University Medical Center, 97 F.3d 268, 270 (8th Cir.1996). Summary judgment is appropriate when the record reveals that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Roxas v. Presentation College, 90 F.3d 310, 315 (8th Cir.1996). In passing on a motion for summary judgment, the court must review the facts in a light most favorable to the party opposing the motion and give that party the benefit of any inferences that logically can be drawn from those facts. Buller v. Buechler, 706 F.2d 844, 846 (8th Cir.1983). The party opposing the motion for summary judgment should then set forth specific facts in the record sufficient to raise a genuine material issue for trial. See Ruby v. Springfield R-12 Public School District, 76 F.3d 909, 911 (8th Cir.1996). In the present case, plaintiff did not file any opposition to defendant's motion for summary judgment, but we believe, nevertheless, that the District Court was correct in not treating this non-response as itself sufficient to dispose of the motion. When a motion would be dispositive of the merits of the cause if granted, courts should normally not treat a failure to respond to the motion as conclusive. They should, instead, as the District Court did here, proceed to examine those portions of the record properly before them and decide for themselves whether the motion is well taken. In the present case, defendant's motion for summary judgment was accompanied by certain portions of the record, which the District Court examined. On appeal, we limit our examination to those same portions of the record, not taking into account other parts of the record that plaintiff now, belatedly, calls to our attention.

III.

We have recently had occasion to re-state the standards for determining whether there is sufficient evidence to create a triable issue of fact in employment-discrimination cases. In Maschka v. Genuine Parts Co., 122 F.3d 566 (8th Cir.1997), we said:

We recently considered the precise contours of this issue in our en banc decision, Ryther v. KARE 11, 108 F.3d 832 (8th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 2510, 138 L.Ed.2d 1013 (1997). The holding of that case may be summarized as follows: if a prima facie case is made, and if the plaintiff offers evidence tending to show that the defendant's proffered reasons for its decisions were not the real reason, then the jury may decide the case, unless the "evidence of pretext ... is, standing alone, inconsistent with a reasonable inference of age discrimination." Id. at 837.... Once an age-discrimination plaintiff has done as much as [this], a jury may (but need not) find for him. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993). ("[R]ejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination, and ... 'no additional proof of discrimination is required ' " (footnote and citation omitted)) (emphasis added).

122 F.3d at 571. We now apply this standard to the case before us. ¹

IV.

We first consider whether Mr. Canada made a prima facie case. In order to make such a case in failure-to-promote situations, a plaintiff must show that (1) he is a member of a protected group; (2) he was qualified and applied for a promotion to an available position; (3) he was rejected; and (4) similarly situated employees, not part of the protected group, were promoted instead. Plaintiff has shown the first, third, and fourth requirements from this list. Defendant disputes whether plaintiff was qualified (not whether he applied), but the question of his qualifications is precisely the same, in factual terms, as the issue raised by defendant's proffered justification: that is, that Mr. Canada did not pass the test. The case before us, therefore, comes down to this: was there a genuine issue of material fact as to whether Mr. Canada passed the test?

Plaintiff does not dispute the assertion that he failed the written tests given in 1995 and 1996. With respect to the 1989 oral test, the District Court held that the plaintiff had failed to exhaust his administrative remedies, because he filed his EEOC complaint too late. We agree with this holding. The question whether plaintiff passed the 1994 oral test, however, remains, and we now focus on this issue.

Two supervisors in the forestry department, Dan Albanello and Ray Wiesehan, administered the test. The test was made up of 17 questions. To pass, Mr. Canada was required to answer at least 12 questions correctly. While there is no physical evidence of the content of Mr. Canada's answers, Union Electric did produce a copy of Mr. Wiesehan's scoring sheet. Mr. Wiesehan marked six of Mr. Canada's answers as correct. Mr. Albanello used a scoring sheet too, but he did not keep it. He did, however, testify in his deposition that he marked four of Mr. Canada's answers as correct.

Mr. Canada stated in his deposition that he believes he passed the test because he knew his answers were correct and because he studied for the test. His testimony, however, went beyond such generalities. We believe the following excerpts from Mr. Canada's testimony are instructive. Union Electric supplied them to the Court along with its motion for summary judgment:

Q: Were there any answers in the '94 interview that you believe you were not given credit for, that is you answered the question but they didn't give you credit for your answer?

A: Yes.

Q: And why do you believe that?

A: I'm trying to remember the documents. I believe yes.

Q: Do you know how many questions that was?

A: No.

Q: Do you know what the questions related to?

A: No, I don't remember.

Q: Why do you believe that you answered correctly but you weren't given credit?

A: Just from remembering because I felt pretty sure that I had answered the questions correctly.

Q: How did you know that they didn't give you credit for that?

A: Through the grievance procedure.

Q: What do you mean?

A: When we had a meeting with the company and the union representative and myself and other witnesses, they expounded on this.

Q: How?

A: At various steps that led up to this.

Q: Okay. But how did you find out--I mean how is it that you found out that you weren't given credit for correct answers? I mean did someone tell you? Did you look at documents?

A: I looked at documents.

Q: Okay. What documents were those?

A: The test.

Q: The test, the questions?

A: The test questions and answers, the test that I took. We are talking about '94, correct?

Q: '94.

A: Yes.

Q: So you looked at a copy of the test questions?

A: After...