Howard v. BP Oil Co., Inc.

• Decision Date: 16 September 1994
• Docket Number: No. 93-9209,93-9209
• Citation: Howard v. BP Oil Co., Inc., 32 F.3d 520 (11th Cir. 1994)
• Parties: Cornelious HOWARD, Plaintiff-Appellant, v. BP OIL COMPANY, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 520

32 F.3d 520

Cornelious HOWARD, Plaintiff-Appellant, v. BP OIL COMPANY, INC., Defendant-Appellee.

No. 93-9209.

United States Court of Appeals Eleventh Circuit.

Sept. 16, 1994.

Gary Richard Kessler, Kitchens Kelley Gaynes, P.C., Atlanta, GA, for appellant.

Curtis L. Mack, Sonja Faye Bivins, Jack L. McLean, Mack & Berstein, Atlanta, GA, for appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before BIRCH and CARNES, Circuit Judges and MORENO, ^* District Judge.

MORENO, District Judge:

This case requires the Court to analyze the plaintiff's burden of production in a Sec. 1981 employment discrimination action ¹ once the defendant moving for summary judgment offers evidence of a legitimate non-discriminatory reason for its decision not to enter into a contract with the plaintiff. The district court granted summary judgment for the defendant, finding that the plaintiff produced insufficient evidence of the falsity of defendant's articulated race-neutral reasons for awarding contracts to non-black applicants. We disagree and find that the evidence in this case is sufficient for a reasonable trier of fact to conclude that the defendant acted with discriminatory intent.

BACKGROUND

Defendant, BP Oil Company, Inc., is a major petroleum distributor. Approximately 55 to 70 BP stations are in operation in the Atlanta Metropolitan area. BP, itself, operates 30 to 40 stations and private dealers operate the rest, 25 to 30 stations. BP has three black dealers in the Atlanta area, none of whom has a station in the predominantly white areas of Atlanta. Cornelious Howard, who is black, brought the instant suit, alleging that BP intentionally discriminated against him based on his race by giving white and Asian applicants preferential consideration in awarding BP stations.

BP does not have written criteria for the selection of qualified dealers. BP simply seeks educated people with managerial experience who understand general business practices, adhere to BP's contract requirements, render good customer service, devote time to the dealership and can generate additional business. BP also values, but does not require, previous experience in the petroleum industry. Howard argues that BP's departure from these criteria and inconsistencies in BP's explanations for the departures constitute sufficient evidence of intentional discrimination to allow the case to proceed to trial.

In 1986 or 1987, Howard applied for a BP combination gas station and convenience store. At the time he applied, Howard had approximately 20 years of experience as a manager and sales person for the 3M Company. Howard also operated a janitorial business for six years, taught college for one year, and while a college student, worked at his father's service station in Alabama. Howard has a Master's Degree from Alabama State University.

Howard met with and spoke to several BP managers about obtaining a BP station and BP managers claim they considered him a serious candidate. Despite Howard's qualifications, there were some limitations on BP's ability to grant Howard a station. First, BP had a limited number of stations available for new dealers. BP's district manager stated that there were no more than a couple of locations available for private dealers at any given time. Second, Howard expressed a strong preference for a station in a predominantly white area and within 15 miles of his home. Howard also expressed interest only in stations that did not provide auto repair services.

BP offered Howard a station on Cascade Road, which is in a predominantly black area. Howard said he would accept the station only if BP would also give him a more prosperous station such as the Cumberland Mall station and renovate the Cascade Road station. BP told Howard that the Cumberland Mall station was company-owned and therefore unavailable. Howard rejected BP's offer of the Cascade Road station. BP subsequently renovated the Cascade Road station and awarded it to Shaubat Noorani, who is not black.

BP then suggested that Howard consider stations in a predominantly white area at the Gwinnett Mall and in a racially mixed area at Clairmont Road. However, BP offered both stations to other applicants before Howard acted on BP's suggestion. In any event, Howard told a BP official that the Gwinnett station was too far from his home.

BP awarded only three stations fitting Howard's geographical preference while Howard's application was pending; two to white applicants and one to an Asian applicant. BP claims it awarded one station to Bruce Pforisch based on his prior relationship with BP. BP also awarded Pforisch a station outside of Howard's preferred area. Pforisch, a white man, had been a BP Administrative Product Manager for nearly ten years.

BP awarded another station to Max Kianian, an Asian, who had a prior relationship with BP as an owner of another station. Carol Martin, BP's district manager in Atlanta testified that she had recommended against awarding another station to Kianian because she felt he did a poor job in his first station. However, Martin stated that she granted the station to Kianian because her superior, Pete Riley, instructed her to do so. Subsequent to Martin's deposition, and in support of the Reply memorandum on the Motion for Summary Judgment, Martin signed an affidavit stating that in 1991, Max Kianian received official recognition as one of BP's outstanding dealers in the United States.

BP granted the third station to two white men, Bart Dean and Mike Robertson. They received a station because Dean's father and Robertson's uncle were successful BP dealers. Both men had some experience working in their relatives' stations.

During the pendency of Howard's application, BP placed other dealers in stations not located in Howard's preferred geographical area. BP granted one such station to a corporation owned by Mary Bailey and her husband, Robert, both of whom are white. Mary Bailey never operated a station but, she assisted Robert in operating the station he owned. Robert Bailey is a consultant to BP dealers in the operation of their stations.

BP agreed to allow Delmar Rice to purchase I.C. Gordon's dealership. I.C. Gordon, a black man, recommended Rice who is a white nurse anesthesiologist with past supervisory experience. However, Rice had no prior experience in the petroleum industry. Rice enlisted a family friend with petroleum experience to operate the station.

Howard cites the following as evidence supporting his discrimination claim: BP awarded the three stations fulfilling Howard's preferences to white and Asian applicants; BP's lack of written criteria for awarding stations would enable BP to conceal its discriminatory intent by proposing individualized post hoc explanations for each dealership award; BP departed from its generalized dealer selection criteria; apparently inconsistent statements made by BP's agents; and Howard's claim that the recipients of stations were all less qualified than he or were completely unqualified. Howard presented no direct evidence of discriminatory intent on the part of BP officials.

Howard also argued before the trial court that the fact that BP has no black dealers in the predominantly white areas of north Atlanta is statistical evidence of discriminatory intent. We agree with the trial court that for this fact to be relevant, plaintiff would have had to present evidence as to how many blacks applied and were rejected and evidence of the success rate of equally qualified white applicants. Anecdotal information is no substitute for meaningful statistical analysis.

SUMMARY JUDGMENT STANDARD

Summary judgment pursuant to Fed.R.Civ.P. 56 is appropriate when there exists no genuine issue as to any material fact and a decision may be rendered as a matter of law. The party moving for summary judgment has the burden of demonstrating that no genuine issue as to any material fact exists and that it is entitled to judgment as a matter of law. Celotex Corp v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). After the moving party has met its burden of demonstrating the absence of any genuine issue of material fact, the non-moving party must make a sufficient showing to establish the existence of each essential element to that party's case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.

The facts relied on by the movant must be viewed in the light most favorable to the non-moving party so that any doubt as to the existence of a genuine issue of material fact will be resolved in favor of denying the motion. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). "It is not part of the court's function, when deciding a motion for summary judgment, to decide issues of material fact, but rather decide whether such issues exist to be tried. The Court must avoid weighing conflicting evidence or making credibility determinations." Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 919 (11th Cir.1993), citing Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

ANALYSIS

A. Burden Shifting Under McDonnell Douglas and its Progeny

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) the Supreme Court established a framework for the allocation of the burden of production and an order for the presentation of proof in cases dealing with discriminatory treatment in employment. ² BP does not challenge the trial court's finding that Howard satisfied the minimal requirements of the prima facie case, creating a presumption of racial discrimination: (1) Plaintiff is black, (2) he is qualified to own and operate a BP station, (3) BP rejected his application for a dealership, and (4) the dealerships were given to non-blacks. See Id. at 802, 93 S.Ct. at 1824. "To establish a 'presumption' is to say that...