Salazar v. Washington Metro. Transit Authority, 03-7174.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation401 F.3d 504
Docket NumberNo. 03-7174.,03-7174.
Decision Date22 March 2005
401 F.3d 504
Luis SALAZAR, Appellant
No. 03-7174.
United States Court of Appeals, District of Columbia Circuit.
Argued November 17, 2004.
Decided March 22, 2005.

Page 505

Appeal from the United States District Court for the District of Columbia (No. 99cv01631).

Gary T. Brown argued the cause and filed the briefs for appellant.

Sara L. Bloom, Assistant General Counsel, Washington Metropolitan Area Transit Authority, argued the cause for appellee. With her on the brief were Carol B. O'Keeffe, Acting General Counsel, Bruce P. Heppen, Associate General Counsel, and Gerard J. Stief, Associate General Counsel.

Before: SENTELLE and TATEL, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge TATEL.

Dissenting opinion filed by Senior Circuit Judge WILLIAMS.

TATEL, Circuit Judge.

Following several promotion denials, appellant, a mechanic, sued the Washington Metropolitan Area Transit Authority, alleging that it had violated Title VII by discriminating against him on the basis of national origin and by retaliating against him for engaging in protected activities. The district court granted summary judgment for WMATA. Because we believe that a reasonable jury could find in appellant's favor with regard to one of his claims, we reverse the summary judgment ruling on that count and remand that portion of the case for further proceedings.


Appellant Luis Salazar, a Peruvian-born Latino, began working for WMATA in 1982 as a bus cleaner. Over the next six years, he worked his way up through several promotions to "Mechanic AA" for Heating, Ventilation, and Air Conditioning. During these and later years, Salazar took numerous night classes in technical skill subjects and pursued a B.A. at the University of the District of Columbia.

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As a Mechanic AA, Salazar held the highest nonsupervisory ranking available at WMATA and occasionally served as acting supervisor at his post in Greenbelt, Maryland. Seeking to advance further, he applied five times from 1992 to 1999 for promotions to entry-level supervisory positions. The application process for each position had the same general structure. WMATA first screened out applicants who failed to meet certain minimum requirements. It then selected a panel of supervisors to interview the remaining candidates. The chairperson developed a list of interview questions and assigned each one a weight. At the interviews, some of which were attended by an observer from WMATA's Office of Civil Rights, each panel member graded each candidate on his or her response to each question. After tallying the scores, the panel recommended that the appointment go to the candidate with the highest total points.

Salazar's first four promotion applications met with failure. The fifth time — the one chiefly at issue in this case — Salazar applied for the position of Craft Supervisor in General Equipment at Metro Center. That position required certain mechanical knowledge, including skill at "trouble shooting the electrical/mechanical systems located at bus and rail facilities, and operating/repairing the smoke ventilation fans, drainage pumping stations, sewage ejectors and pneumatic damper sections." When Salazar applied for this position, he contacted Charles Thomas, the Deputy General Manager at Metro, and asked him to ensure that Gary Lewis, the Superintendent for Plant Equipment Maintenance, would not select the members of the interview panel. According to Salazar, Lewis, who had selected the panel members for at least some of Salazar's prior promotion denials, discriminated against Latinos. Indeed, Salazar had filed at least one grievance accusing Lewis of supporting a racially discriminatory supervisor. In his affidavit, Salazar states that he "explained to Mr. Thomas how each time Gary Lewis selected the panel I was ... denied the promotion because Mr. Lewis would `stack' the panel with his friends. These friends, like Mr. Lewis, were discriminatory against Latino people, like myself." Responding sympathetically, Thomas, according to Salazar's affidavit, "selected the panel, which included only three persons," all of whom Salazar acknowledged were not Lewis's friends and not likely to be discriminatory.

Salazar and five other applicants met the minimum qualifications and advanced to the interview round. Of these applicants, Salazar had the most seniority by several years.

Expecting an interview with the three men selected by Thomas, Salazar was surprised to find a fourth man, Buddy Jaggie, serving as chair. Salazar's surprise stemmed not only from Thomas's promise of just three panelists, but also from the fact that "all the panels I had interviewed with in the past years had been made up of three members, not four." More significantly, Jaggie, who held the post of Assistant Superintendent for Plant Maintenance, was Lewis's assistant as well as his close friend. Salazar distrusted Jaggie not just because of Jaggie's relationship with Lewis but also because, while working towards the Mechanic AA position years ago, Salazar had consistently failed a test administered by Jaggie, passing only after filing a grievance to obtain outside review.

Jaggie acknowledged that he was "probably" appointed to the panel by Lewis. He explained that before the interview, he "made up [the] questions" and assigned a point value to each question. He consulted with Lewis in determining these

Page 507

weights. Ultimately, Jaggie developed 13 questions worth a total of 190 points: 12 questions calling for a spoken answer (8 worth 10 points and 4 worth 20 points) and 1 question (worth 30 points) requiring a written answer. Only 2 questions — each worth 10 points and thus amounting to less than a ninth of the total — directly addressed the candidates' experience and education. Other questions posed hypothetical scenarios (3 questions worth 50 total points), inquired about Metro policies and their implementation (3 questions worth 30 total points), called for technical responses (4 questions worth 80 total points), and probed the candidates' motivation levels (1 question worth 10 points). Jaggie also drafted model answers for the panelists to use during the interviews.

At the interviews, the four panelists asked Jaggie's questions and scored the six candidates. On the two experience-related questions, Salazar scored above all other candidates, but overall he came in fourth. Jaggie and two other panelists gave Salazar mediocre scores, while the remaining panelist scored Salazar better than all other candidates. Had Jaggie's scores not counted, Salazar would still have finished fourth overall. WMATA's observer thought "[t]he interviews were conducted in a fair and nondiscriminatory manner."

According to Salazar — and WMATA offers no evidence to the contrary — WMATA did not assign the successful candidate, Timothy Tucker, to the Metro Center supervisory "position for which he was selected." Instead, Salazar states, "Gary Lewis moved Mr. Tucker to Greenbelt to work as a support equipment supervisor. . . . Working at Greenbelt required less responsibility than in Metro Center."

After exhausting the EEO process, Salazar sued WMATA, alleging discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2, 2000e-3, with regard to all five promotion denials. The district court found his claims related to the first three promotion denials to be procedurally barred, and it granted WMATA's motion for summary judgment on the claims related to Salazar's last two promotion denials — the one described above for the position in General Equipment at Metro Center and one earlier that spring for a position in Metro's shop in Alexandria. Specifically, the court held that Salazar could not show that WMATA's asserted reason for refusing to promote him was pretextual. Salazar v. Wash. Metro. Area Transit Auth., No. 99-1631, slip op. at 5 (D.D.C. Oct. 30, 2003). Salazar now appeals.


We review the district court's grant of summary judgment de novo, viewing the evidence in the light most favorable to Salazar and drawing all reasonable inferences accordingly. E.g., Dunaway v. Int'l Bhd. of Teamsters, 310 F.3d 758, 761 (D.C.Cir.2002). We will affirm only if no reasonable jury could find in his favor. Id.

The district court granted summary judgment to WMATA on four counts: Salazar's discrimination claims related to the Alexandria and Metro Center positions and his parallel retaliation claims. As an initial matter, we find that Salazar has preserved only his discrimination claim regarding the Metro Center position. His briefs address none of the other three claims, and while his retaliation claim as to the Metro Center position undoubtedly has much in common with his discrimination claim, he never refutes WMATA's argument that he has failed to prove a prima facie case for retaliation. Salazar has thus waived these three claims. See, e.g., Ark Las Vegas Rest. Corp. v. NLRB, 334 F.3d

Page 508

99, 108 n. 4 (D.C.Cir.2003) (observing that an argument not raised in briefs is waived).

We view Salazar's remaining claim through the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). To survive summary judgment, Salazar must first show that he satisfies the four elements of the prima facie case for a discrimination claim. WMATA concedes that Salazar has made this showing: as a foreign-born Latino, he is a member of a protected class; he applied for the promotions; he had the minimum qualifications needed; and he lost out to a non-Latino. Next, if the employer "produce[s] admissible evidence that, if believed, would establish that [its] action was motivated by a legitimate, nondiscriminatory reason," the plaintiff must show that a reasonable jury could nonetheless infer discrimination. Teneyck v. Omni Shoreham Hotel, ...

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