Rios v. Rossotti

• Decision Date: 17 May 2001
• Docket Number: No. 00-50226,00-50226
• Parties: (5th Cir. 2001) JOSEPHINE RIOS, Plaintiff-Appellant, v. CHARLES O. ROSSOTTI, Commissioner of the Internal Revenue Service; UNITED STATES OF AMERICA, Department of the US Treasury, Defendants-Appellees
• Court: U.S. Court of Appeals — Fifth Circuit

Page 375

252 F.3d 375 (5th Cir. 2001)

JOSEPHINE RIOS, Plaintiff-Appellant, v. CHARLES O. ROSSOTTI, Commissioner of the Internal Revenue Service; UNITED STATES OF AMERICA, Department of the US Treasury, Defendants-Appellees.

No. 00-50226

UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

May 17, 2001

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

Before, KING, Chief Judge, ALDISERT^* and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Plaintiff, Josephine Rios, brought claims of discrimination and retaliation against the Internal Revenue Service ("IRS" or "Service") based on her non-selection for position vacancies within the agency. On appeal, she contends that the district court erred in granting summary judgment against her claims. Plaintiff argues that she created a genuine issue of material fact as to the Service's motives in not selecting her to fill the position vacancies. We AFFIRM the judgment of the district court.

BACKGROUND

Rios filed her original complaint in federal court on September 23, 1998. Plaintiff filed her Second Amended Complaint, the one at issue in the present case, on April 1, 1999 alleging discrimination based on age, race, national origin, and gender and retaliation for engaging in activities protected under Title VII. Defendant, the IRS Tax Commissioner, filed a motion to dismiss the Second Amended Complaint based on Plaintiff's failure to name the Secretary of the Treasury as the proper party in the suit. Plaintiff acknowledged her error and the district court granted leave to amend the complaint. Defendant then filed for summary judgment against Plaintiff's underlying claims. Plaintiff filed a response and sought leave to file a Third Amended Complaint.

The district court denied Plaintiff's motion to file a Third Amended Complaint, ruling that Plaintiff was "attempting to bring in causes of action which were not considered administratively, or were the focus of agency grievance processes or prior EEO complaints. As such, she is precluded from bringing them in this cause of action." At this time, the district court also denied Defendant's motion for summary judgment against Plaintiff's claims. However, upon later reconsideration, the district court granted Defendant's motion as to all of Plaintiff's claims. The district court concluded that Plaintiff was unable to link the allegedly unfriendly atmosphere at the IRS to her non-selection. Moreover, the alleged negative comments toward Plaintiff made by individuals not connected to the selection process and the subjective perceptions of her co-workers that she had been treated unfairly were insufficient to raise a fact issue on pretext. Plaintiff filed a timely notice of appeal from the district court's dismissal.

FACTS

Plaintiff joined the Internal Revenue Service, a division of U.S. Treasury Department, in 1984. Plaintiff began her employment with the Service as a tax analyst. Based on her performance during the first year, the IRS was prepared to terminate her. In partial settlement of an EEO complaint filed by Plaintiff, she was retained by the Service but demoted to the position of group secretary. She worked as a group secretary until she was promoted to accounting aide six months prior to her application for the current vacancies. During her employment with the IRS, Plaintiff filed a number of grievances with the EEO and her union. These grievances alleged that she was discriminated against in her annual performance reviews and she was improperly denied awards, promotions, and pay because of discrimination. She filed her instant suit when she was not selected to fill two job vacancies for which she applied.

Generally, the IRS conducts its hiring through the posting of vacancy announcements. A vacancy announcement contains a description of the position, its requirements, and potential posts of duty in which the position will be created. In August 1994, the IRS posted two vacancy announcements, one for positions as a Tax Auditor and one for positions as an Internal Revenue Agent. The announcements stated that the number of positions to be filled was "1 or more." In posting its vacancy announcements, the IRS listed several posts of duty in Texas including Austin, San Antonio, Corpus Christi, El Paso, Harlington, and McAllen. Interested candidates were to submit their performance appraisal for the past year and an application setting forth their relevant education, training, and experience. The applicants were also to designate the posts of duty for which they were applying. Plaintiff's application listed San Antonio and Corpus Christi. Originally, the Service designated four tax auditor positions for Austin, two for San Antonio, two for El Paso, one for Corpus Christi, one for McAllen, and one for Harlington. After the applications were accepted, but before a hiring decision was made, the IRS transferred the Corpus Christi opening to Austin and the Harlington opening to San Antonio.

According to affidavits submitted by Defendant, there were 145 applicants for the Tax Auditor position and there were 70 applicants for the Internal Revenue Agent position. In order to narrow the field of applicants, a three-member ranking panel created a Best Qualified List. The criteria for the List included scores from the applicant's past performance review, awards received, and a third less concrete prong defined as potential for success. The third prong considered past job experience, education, training, and other indicators of future success in the position.¹ Based on their scores under the criteria above, the applicants for each post of duty were rank ordered. A pre-determined number of applicants were then included on the Best Qualified List. The Best Qualified List was given to the two selection officials with the ultimate decision-making authority. The selection officials chose employees from the Best Qualified List to fill the vacancies.

Plaintiff ranked fourth out of five candidates for the Corpus Christi tax auditor position and eighth out of twelve candidates for the San Antonio tax auditor position. The Best Qualified List for Corpus Christi included the top four candidates; thus, Plaintiff made the List. However, as discussed previously, the Service elected to transfer the Corpus Christi opening to Austin. Notably, the tentative position in Harlington was also transferred to another city, San Antonio. Because there is no evidence that such decisions were improperly motivated, we consider Plaintiff's claims only as to the openings in San Antonio. Plaintiff did not make the Best Qualified List for San Antonio. She challenges this omission on several grounds: first, the ranking panel improperly discounted her education, experience, and training based on discrimination and retaliation; and second, she was discriminated and retaliated against in her performance evaluations and receipt of awards, both of which were substantial factors in compiling the Best Qualified List.

ANALYSIS

We review a district court's decision to grant summary judgment de novo, applying the same familiar standard in Federal Rule of Civil Procedure 56(c). Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994). In so doing, we view all evidence in the light most favorable to the party opposing the motion and draw all reasonable inferences in that party's favor. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2110 (2000). In support of its motion for summary judgment, Defendant submitted affidavits from the three members of the ranking panel and the two selectors. The affidavits describe the selection process as objective and impartial. Each panelist and selector swears that Plaintiff's race, gender, age, or prior complaints to the EEO had no bearing in the hiring decision. One ranking official does, however, acknowledge that she was aware of Plaintiff's prior involvement in the EEO process.

Discrimination Claim

Rios' claims of discrimination are governed by the tripartite burden-shifting test established by McDonnell-Douglas v. Green, 411 U.S. 792, 802-04, 83 S.Ct. 1817 (1973). Under this test, if Rios establishes a prima facie case of discrimination, the burden shifts to the Service to articulate a legitimate, non-discriminatory reason for not selecting Rios. Id. If the Service satisfies this burden, the burden shifts back to Rios, who must prove that "the legitimate reasons offered by the defendant [for not selecting her] were not its true reasons, but were a pretext for discrimination." Reeves, 120 S.Ct. at 2104-05. Plaintiff can establish pretext either directly, by showing a discriminatory reason motivated management, or indirectly, by showing that the reasons given for management's actions are simply not believable. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). In either respect, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Reeves, 120 S.Ct. at 2106 (citing Burdine, 450 U.S. at 253). In addition to discrimination claims based on race and national origin, Plaintiff brought claims for age and gender discrimination. She presents no evidence supporting these latter claims. The district court, therefore, properly dismissed them.

In order to establish a prima facie case of discrimination based on race or national origin, a plaintiff must usually show that (1) she suffered an adverse employment action; (2) she was qualified for the position; (3) she was within the protected class at the time of the decision; and (4) the person selected was not within the protected class. Plaintiff satisfies the first three prongs. As to the fourth prong, the IRS concedes that while they promoted and hired numerous Hispanic employees to fill openings throughout the state, there was at least one position for which Plaintiff applied that a Hispanic applicant was not...