Scales v. Slater

Decision Date03 August 1999
Docket NumberNo. 98-20894,98-20894
Citation181 F.3d 703
Parties(5th Cir. 1999) LAVERNE SCALES, Plaintiff-Appellant, v. RODNEY E. SLATER, Secretary of Transportation, Defendant-Appellee. Summary Calendar
CourtU.S. Court of Appeals — Fifth Circuit

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Appeal from United States District Court for the Southern District of Texas.

Before POLITZ, BARKSDALE and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge.

We must determine whether the district court properly granted summary judgment to Defendant-Appellee Rodney E. Slater1 as the official in charge of the Federal Aviation Administration ("FAA") in this employment discrimination lawsuit.2 After reviewing the evidence in the record, we believe that summary judgment was appropriate in this case because the discrimination claim fails as a matter of law. We thus affirm the judgment of the district court.


Plaintiff-Appellant Laverne Scales ("Scales"), an African-American woman, filed suit pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-16(c) (1994).3 She claims that the FAA discriminated against her in March 1995 when Henry Lewis ("Lewis"), an African-American official at the Airway Facilities Division, elected not to promote her from the position of staff engineer to that of Assistant Manager of the Gulf Coast Systems Management Office ("GCSMO"), a GS-15 supervisory position within the FAA. Scales claims that, although she qualified for the position pursuant to a standardized ranking system within the FAA, Lewis implemented further criteria that eliminated her from the application process; a white male was instead promoted to the position. According to Scales, the use of these additional criteria was discriminatory in nature and constituted a violation of Title VII.

Scales, who possesses a Bachelor's of Science in Engineering, had worked for the FAA since August 1984. Until 1991, she was employed at FAA headquarters in Washington, D.C., where she progressed from the GS-9 level to GS-14. At that time, she accepted a demotion to GS-13 in order to transfer to Houston for personal reasons. Once in Houston, Scales attempted on several occasions both to obtain "detail" work (a discretionary method of gaining experience in a particular department) and promotions, principally to the Program Support department. Each time, Scales was denied the promotion or the detail work. After one such denial, Sector Manager Vernon Drake ("Drake") allegedly told Scales that she needed to find a "black mentor" who could assist her in obtaining a promotion.

In December 1994, the FAA published a nationwide announcement of new positions, including the GCSMO position for which Scales applied. In a departure from ordinary procedure, the FAA did not require a pre-qualification of candidates, and, as a result, it received a higher-than-usual number of applicants. Pursuant to FAA policy, these applicants were screened and those deemed "highly qualified" were then ranked on a promotion list for the advertised job. An applicant's qualification was rated by reference to core competencies--"knowledge, skills, and abilities"--before he or she was ranked. Scales was one of thirty-one candidates ranked as highly-qualified on the promotion list for the GCSMO position; all of them were referred to the Southwest Region office of the FAA for further consideration.

The Southwest Region office developed "key selection factors" in addition to those listed on the job announcement and those considered by the initial screening officials to identify which candidates to interview. As the selecting official and the primary architect of the interview plan, Lewis then used these factors, which were requirements of (1) managerial experience as a second-level supervisor in a General National Airspace Systems ("GNAS") organization and (2) regional office experience in Airway Facilities, to narrow the field of candidates. Nine of the candidates met these additional criteria and were interviewed for the position. Scales was not among them. These nine candidates were then re-ranked and re-rated and one was eventually selected for the GCSMO position. Scales concedes that no one involved in the selection or the screening of the "key selection factors" ever made a remark that she considered derogatory toward women, minorities in general, or African-Americans in particular.

Scales filed this suit, alleging race and gender-based discrimination, in May 1997. She argued, inter alia, that the FAA intentionally discriminated4 against her by promoting another candidate to the GCSMO position, a conclusion she infers from alleged rules violations during the selection process and from alleged comments about minorities by officials in the Houston office. During the summer of 1998, the parties battled over summary judgment, and, on August 28, 1998, the district court ruled in favor of the FAA. The court below determined that Scales had not met her prima facie burden of proof under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). See Scales v. Pena, No. H-97-CV-1759, slip op. at 4-5 (S.D. Tex. Aug. 28, 1998). Even assuming that she had established the prima facie case, the court ruled that she had not adduced summary judgment evidence supporting the conclusion that the FAA's stated reasons for narrowing the applicant pool were pretextual. See id. at 5. The court found that the allegedly discriminatory comments made by individuals within the FAA were essentially stray remarks, and not evidence of pretext. See id. at 5-6. Scales timely appealed this entry of judgment.


We exercise de novo review of a district court's granting of summary judgment. See Reliance Nat. Ins. Co. v. Estate of Tomlinson, 171 F.3d 1033, 1035 (5th Cir. 1999). A court appropriately enters summary judgment in favor of the moving party if the record, taken as a whole, "shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (holding that the moving party must demonstrate that there is no genuine issue of material fact as to any element of the claim). A factual dispute is "genuine" where a reasonable jury could return a verdict for the nonmoving party. See Alton v. Texas A&M Univ., 168 F.3d 196, 199 (5th Cir. 1999); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (holding that a material fact is one that might affect the outcome of the case under the governing law). If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, then there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 597, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). After consulting applicable law in order to ascertain the material factual issues, we will consider the evidence bearing on those issues, viewing the facts and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. See Hood v. Sears Roebuck & Co., 168 F.3d 231, 232 (5th Cir. 1999).


Scales argues that the two additional criteria employed by Lewis to narrow the field of candidates for the GCSMO position effected disparate treatment of her due to her status as an African-American female.5 A plaintiff alleging employment discrimination need not come forward with direct evidence of discriminatory intent in order to avoid judgment as a matter of law. See Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir.1996) (en banc). Direct evidence6 of an employer's discriminatory intent is rare; therefore, Title VII plaintiffs must ordinarily prove their claims through circumstantial evidence. See LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 449 (5th Cir. 1996). When an individual infers discrimination from an employer's failure to promote her, we apply a modified version of the burden-shifting analysis articulated by the Supreme Court in McDonnell Douglas. Following that seminal case, a Title VII plaintiff alleging a discriminatory hiring practice bears the burden of proving a prima facie case that the defendant made an employment decision that was motivated by a protected factor. See 411 U.S. at 802; Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1089 (5th Cir. 1995). A failure-to-promote case applies the same criteria in that a plaintiff must demonstrate that (1) she is a member of a protected class; (2) she sought and was qualified for an available employment position; (3) she was rejected for that position; and (4) the employer continued to seek applicants with the plaintiff's qualifications. See id.; Grimes v. Texas Dep't of Mental Health and Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996).

Significantly, a plaintiff must establish all four elements of the case in order to prove that she was treated differently. See Garcia v. Woman's Hosp. of Texas, 143 F.3d 227, 230 (5th Cir. 1998) (per curiam). Once a plaintiff has established the prima facie case, the burden of production shifts to the defendant to explain the circumstantial evidence of discrimination by demonstrating a legitimate, nondiscriminatory reason for the employment action. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253-56, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); McDonnell Douglas, 411 U.S. at 802. If the defendant carries this burden, then the analysis shifts to the broader question whether the defendant intentionally discriminated against the plaintiff. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993). A successful plaintiff at this point must demonstrate that the defendant's articulated nondiscriminatory rationale was pretextual. See Burdine, 450 U.S. at 253; McDonnell Douglas...

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