Hammer v. Ashcroft

• Decision Date: 07 September 2004
• Docket Number: No. 03-3259.,03-3259.
• Citation: 383 F.3d 722
• Parties: Charles W. HAMMER, Appellant, v. John ASHCROFT, Attorney General, Department of Justice, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 722

383 F.3d 722

Charles W. HAMMER, Appellant, v. John ASHCROFT, Attorney General, Department of Justice, Appellee.

No. 03-3259.

United States Court of Appeals, Eighth Circuit.

Submitted: February 12, 2004.

Filed: September 7, 2004.

Appeal from the United States District Court for the Western District of Missouri, Richard E. Dorr, J.

Counsel who presented argument on behalf of the appellant was Kevin G. Graham of Liberty, MO.

Counsel who presented argument on behalf of the appellee was Cynthia Jean Hude, Assistant U.S. Attorney, of Springfield, MO. Also appearing on the brief was Todd P. Graves.

Before LOKEN, Chief Judge, BOWMAN and WOLLMAN, Circuit Judges.

BOWMAN, Circuit Judge.

After Charles Hammer failed to win two promotions, he filed this suit alleging race and age discrimination and retaliation. The District Court¹ granted summary judgment to the defendants. With respect to the race-discrimination claim, the District Court concluded that Hammer was unable to show that the government's legitimate nondiscriminatory reason for not promoting him was pretext. As for the age-discrimination claim, the District Court determined that Hammer could not establish a prima facie case and, in any event, could not show pretext. Finally, regarding the retaliation claim, the District Court ruled that Hammer could not establish a prima facie case because he had suffered no adverse employment action. Hammer has appealed only his claims of race and age discrimination. We affirm.

Hammer, who is white, was a corrections officer with the United States Bureau of Prisons at the United States Medical Center for Federal Prisoners in Springfield, Missouri. By all accounts, Hammer was a very good employee. In late May 1993, Jerry Scott, an official at the facility, sent a memorandum to Sherman Waltner, the assistant warden for mental health, noting that a counselor position would soon be opening and suggesting that "[i]t might also be advisable to consider a minority counselor for 10 North. Many of our patients are Black and some Hispanic and a minority counselor could be an asset. Springfield has only one minority counselor...." Scott Mem. (May 25, 1993). For his part, Waltner conceded that he agreed with Scott's assessment. Sherman Waltner EEO Aff. at 6 (Sept. 29, 1994). A copy of Scott's confidential memorandum found its way into Hammer's work mailbox. In October 1993, Hammer applied for the 10 North counselor position. For promotions such as this, the Bureau used a two-tiered procedure. A selection board, which included Waltner, first rated the applications and produced a Best Qualified list that was submitted to the selecting official, Warden Richard Rison.² Hammer's name was not among the three names included on the Best Qualified list for the 1993 counselor position, and Warden Rison eventually selected Lee Walton, an African-American male. These events gave rise to Hammer's reverse race-discrimination claim.

In April 1994, Hammer applied for another counselor position. This time the selection board, of which Waltner was again a member, included Hammer's name among the five names listed on the Best Qualified list. For this counselor position, Warden Rison selected Mark Miller, a thirty-seven-year-old white male; Hammer was forty-three. These events gave rise to Hammer's Age Discrimination in Employment Act claim. See 29 U.S.C. §§ 621-634 (2000).

After unsuccessfully making use of the EEO process, Hammer filed suit in federal court. The government successfully moved for summary judgment and Hammer now appeals the adverse judgment on his claims of race and age discrimination. We review a district court's grant of summary judgment de novo. Gen. Trading Int'l, Inc. v. Wal-Mart Stores, Inc., 320 F.3d 831, 835 (8th Cir.2003). We consider Hammer's race and age discrimination claims seriatim.

We turn first to Hammer's reverse race-discrimination claim. A plaintiff who lacks direct evidence of discrimination may utilize the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to prove a claim of discrimination. Whitley v. Peer Review Sys., Inc., 221 F.3d 1053, 1055 (8th Cir.2000). Within the McDonnell Douglas framework, the plaintiff must first establish a prima facie case of discrimination, whereupon the burden shifts to the employer to establish a legitimate, nondiscriminatory reason for taking the allegedly discriminatory action. If the employer presents such a reason, the plaintiff must show that the employer's proffered explanation is pretextual or his claim will fail.

In this case, the parties agree that Hammer has established a prima facie case of reverse race discrimination because he is white; he applied for and was qualified for an open position; he was rejected for that open position; and the employer hired someone of a minority race. See Duffy v. Wolle, 123 F.3d 1026, 1036 (8th Cir.1997), cert. denied, 523 U.S. 1137, 118 S.Ct. 1839, 140 L.Ed.2d 1090 (1998). In reverse race-discrimination cases, we have also required that the prima facie case include a showing "`that background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority.'" Id. (quoting Murray v. Thistledown Racing Club, Inc., 770 F.2d 63, 67 (6th Cir.1985) (quotations and citations omitted)). Here, Hammer alleges background circumstances similar to those pleaded in Duffy, specifically, that the person ultimately hired was less qualified and that the Scott memorandum as well as Waltner's acknowledgment that he agreed with the memorandum raise an inference of reverse discrimination. See id. at 1037.

The parties also agree that the government has articulated a legitimate nondiscriminatory reason for not including Hammer on the 1993 Best Qualified list: the individuals included on the list and the individual eventually promoted (Walton) scored significantly better than Hammer. Thus, Hammer's claim must fail unless he can "demonstrate that the proffered reason was not the true reason for the employment decision," which he may do "directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

Hammer urges that he has presented sufficient evidence from which a reasonable trier of fact could find pretext because he is in fact more qualified than Walton and because an internal memorandum suggested that the government should consider hiring a minority for the position. Concerning the applicants' relative qualifications, we have recognized that "[e]vidence that an employer hired a less qualified candidate for a position can support a finding that the employer's nondiscriminatory reason for the hiring was pretextual." Duffy, 123 F.3d at 1037. Hammer contends that he was more qualified than Walton because Walton had discipline problems, had alcohol abuse problems, did not have a college education, and had a poor attendance record. Although one witness stated that Walton's attendance and discipline problems were a matter of record (James Campbell EEO Aff. at 9 (Sept. 28, 1994)), Hammer himself testified that he did not think the hiring board was aware of Walton's problems, Charles Hammer Depo. at 24 (Feb. 21, 2003) ("I doubt that they knew about it."), and neither Walton's nor Hammer's employment records or application materials are part of the record presented to us. In short, while there is ample evidence that Walton's abuse of alcohol affected his job performance after he was promoted and did eventually result in his forced resignation, Hammer has not produced any evidence from which a reasonable trier of fact could conclude that the selection board knew Walton or the other Best Qualified candidates were unqualified and nevertheless submitted them for Warden Rison's consideration.

Hammer also points to the memorandum sent to Assistant Warden Waltner, a member of the selection board, suggesting that "[i]t might also be advisable to consider a minority counselor for 10 North. Many of our patients are Black and some Hispanic and a minority counselor could be an asset. Springfield has only one minority counselor as far as I know...." Scott Mem. For his part, Assistant Warden Waltner stated that "I concede that I agreed with Mr. Scott, that we were under-represented in Black staff. That was an issue that I saw as important today." Waltner Aff. at 6. We agree with the District Court's conclusion that this case is quite similar to Duffy v. Wolle, where we held that "[a]n employer's affirmative efforts to recruit minority and female applicants does not constitute discrimination." Duffy, 123 F.3d at 1038-39. Rather, we observed that:

An inclusive recruitment effort enables employers to generate the largest pool of qualified applicants and helps to ensure that minorities and women are not discriminatorily excluded from employment. This not only allows employers to obtain the best possible employees, but it "is an excellent way to avoid lawsuits." The only harm to white males is that they must compete against a larger pool of qualified applicants. This, of course, "is not an appropriate objection," and does not state a cognizable harm.

Id. at 1039 (citations omitted). We conclude that Duffy controls the case at hand, and we believe the only meaningful distinction between the present case and Duffy cuts against Hammer. In Duffy, the plaintiff sued a panel of district court judges who picked a female candidate for a position as chief United States probation officer instead of the plaintiff, a white male. As proof of pretext, Duffy pointed to a statement by the chief judge that there was "an interest in the appointment of a female" and that, consequently, the panel sought "an open, nationwide, diverse pool of...