Churchill v. Texas Department of Criminal Justice

Case: 12-20691 Document: 00512346297 Page: 1 Date Filed: 08/19/2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

August 19, 2013

No. 12-20691 Lyle W. Cayce

Clerk

WILL CHURCHILL,

Plaintiff-Appellant

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

Defendant-Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:11-CV-2458

Before STEWART, Chief Judge, DAVIS, and WIENER, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Will Churchill (“Churchill”) appeals the dismissal on

summary judgment of his employment discrimination claim against Defendant

Texas Department of Criminal Justice (“TDCJ”). Finding no error, we AFFIRM

for the reasons more fully set forth below.

I.

Churchill, a 55-year-old, African American male, alleges that he was

discriminated against based on his race when TDCJ failed to hire him for the

*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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position of Sergeant of Correctional Officer, Correctional Training Instructor

(“Training Instructor”).1 The position instead went to Vickie Mossbarger

(“Mossbarger”), a white female, who Churchill contends was substantially less

qualified for the position.

Before applying for the instructor position, Churchill worked for the TDCJ

for approximately twenty-five years, retiring in January 2010. After six months

of retirement, Churchill sought to return to work and applied for the Training

Instructor position. In order to qualify for the position, a candidate needed a

high school diploma or GED and a minimum of two years of full time correctional

custody or law enforcement experience. Churchill and nine other

candidates—including Mossbarger—met the minimum qualifications and

interviewed for the position. Major Charles Siringi, who is also African

American, was the primary interviewer and he, along with Brian Blanchard,

TDCJ’s assistant director of training, conducted the interviews. While he did not

participate in the interview process or make the hiring decision, Jason Heaton,

the Director of TDCJ’s Correctional Training and Staff Development

Department, reviewed the packet of candidate selection documents and signed

off on the decision.

The interview of each applicant lasted approximately fifteen minutes. For

ten minutes, candidates were asked a specific set of identical questions. Siringi

transcribed the candidates’ answers. For five minutes, candidates gave a

presentation on a topic of their choosing. Churchill spoke on investigating

employee-offender relationships; Mossbarger gave a PowerPoint presentation on

time management accompanied with handouts. In evaluating the candidates,

Siringi used a standardized instructor evaluation form which assessed

1

While Churchill initially alleged age discrimination as well, that claim was dismissed

and is not at issue in this appeal.

2

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performance on a 1-5 scale in 14 different categories. Out of a possible 70 points,

Churchill scored 64; Mossbarger scored 68.2

After Siringi and Blanchard agreed to select Mossbarger, Siringi gathered

the required documents to be submitted to Director Heaton for his review. TDCJ

policy lists a number of documents to be included in the packet, and the

presentation grading sheets and the question and answer documents for each

candidate interviewed are among those.3 One specific form in the packet asked

for “all job-related factors upon which the decision was based.” Under the

heading “Rationale for Selection,” Siringi wrote: “Training background along

with agency policies experience related to Human Resources and offender

classification knowledge.”

Once Churchill learned of Mossbarger’s selection for the position, he filed

a charge of discrimination with the Equal Employment Opportunity Commission

and subsequently filed suit. Churchill admitted that he had no direct evidence

of racial animus on the part of Siringi, Blanchard, or Heaton, but he contended

that race motivated the hiring decision because Mossbarger was a white female

with “less experience and less education” than he.

The district court granted summary judgment for TDCJ, finding that

Churchill failed to raise a genuine issue of material fact that discrimination

occurred. Churchill now appeals.

2

Of the fourteen different categories, Mossbarger and Churchill received the same

score in nine categories; Mossbarger outscored Churchill in four categories: “Voice Control,”

“Trainee Participation,” “Training Aids,” and “Overall Presentation Skills”; and Churchill

outscored Mossbarger in one category: “Gestures.”

3

According to the “Checklist for Selection Packets,” Form “PERS 287, Interview

Documentation Form (one [1] for each applicant interviewed)” is to be included.

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II.

This court reviews a district court’s grant of summary judgment de novo,

viewing all disputed facts and inferences in the light most favorable to the

non-movant. Rockwell v. Brown, 664 F.3d 985, 990 (5th Cir. 2011). Summary

judgment is appropriate when there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law. FED. R. CIV. P.

56(a). Mere conclusory allegations are insufficient to defeat summary judgment.

Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).

III.

Under Title VII of the Civil Rights Act of 1964, it is unlawful for an

employer to discriminate against an employee “because of such individual’s race,

color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). Intentional

discrimination may be proven by either direct or circumstantial evidence.

Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000). When

there is no direct evidence of discrimination, a claim will be analyzed under the

familiar McDonnell Douglas burden-shifting framework. Burrell v. Dr.

Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir. 2007); see

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Because there is

no direct evidence of discrimination here, the McDonnell Douglas framework

applies.

Accordingly, the plaintiff alleging discrimination must first make a prima

facie showing that: “(1) he belongs to a protected class; (2) he applied for and was

qualified for a position for which applicants were being sought; (3) he was

rejected; and (4) a person outside of his protected class was hired for the

position.” Burrell, 482 F.3d at 412. If the plaintiff succeeds in making the prima

facie case, the burden shifts to the employer to “articulate some legitimate,

nondiscriminatory reason” for the employer’s action. McDonnell Douglas, 411

U.S. at 802. If the employer offers a nondiscriminatory reason, the burden shifts

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back to the plaintiff to show that “the defendant’s proffered reason is not true,

but instead is a pretext for intentional discrimination.” Price v. Fed. Exp. Corp.,

283 F.3d 715, 720 (5th Cir. 2002); see Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 143 (2000). A plaintiff may demonstrate pretext by “showing that

the employer’s proffered explanation is false or unworthy of credence.” Laxton

v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003) (internal quotation marks omitted).

“An explanation is false or unworthy of credence if it is not the real reason for

the adverse employment action.” Id. Alternatively, a “fact finder can infer

pretext if it finds that the employee was ‘clearly better qualified’ (as opposed to

merely better or as qualified) than the employees who are selected.” EEOC. v.

La. Office of Cmty. Servs., 47 F.3d 1438, 1444 (5th Cir. 1995); see also Price, 283

F.3d at 723.

On appeal, the parties do not dispute that Churchill established a prima

facie case. In articulating a legitimate, nondiscriminatory reason, TDCJ

contends that Mossbarger outperformed Churchill and the other candidates in

the interview and that interview performance is the most important criterion.

Consequently, she was offered the job.

This court has held that “[a]n employer’s subjective reason for not

selecting a candidate, such as a subjective assessment of the candidate’s

performance in an interview, may serve as a legitimate, nondiscriminatory

reason for the candidate’s non-selection.” Alvarado v. Tex. Rangers, 492 F.3d

605, 616 (5th Cir. 2007). Even so, an employer “must articulate in some detail

a more specific reason than its own vague and conclusional feeling about the

employee.” Patrick v. Ridge, 394 F.3d 311, 317 (5th Cir. 2004).

Here Heaton found Mossbarger’s interview answers superior to

Churchill’s, as her answers were “more thorough and more specific to the

questions that were asked.” And Blanchard stated that Mossbarger’s

presentation was “demonstrably more professional and focused than Mr.

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Churchill’s and certainly more original.” Siringi found that Churchill did not

demonstrate much enthusiasm about his topic and that the handouts he used

with his presentation were appropriate, but they could have been taken from

existing TDCJ materials. These conclusions are reflected in the high score

(68/70) that Mossbarger received on her presentation score sheet.

Because TDCJ offered a nondiscriminatory reason for its decision, the

burden shifts back to Churchill to show that TDCJ’s reason is merely a pretext

for discrimination. Churchill has two methods available to try to prove that

TDCJ’s proffered reason was a pretext for racial discrimination: (1) Churchill

could show that TDCJ’s proffered explanation is false or unworthy of credence;

or (2) Churchill could try to prove that he is “clearly better qualified” than the

person selected for the position. Burrell, 482 F.3d at 412. Churchill argues both.

A.

Churchill first argues that TDCJ’s proffered reasons for selecting

Mossbarger are false or unworthy of credence. Namely, Churchill argues that

Siringi’s written rationale for selecting Mossbarger (“Training background along

with Agency policies experience related to Human Resources and offender

classification knowledge”) were unmentioned job requirements that were not

listed in the posting for the position, but were nonetheless given as the rationale

for selecting Mossbarger. Churchill invokes dicta from this court’s decision in

Moss v. BMC Software, Inc., 610 F.3d 917, 926 (5th Cir. 2010), which states: “An

employer’s reliance on a previously unmentioned job requirement to justify a

challenged hiring decision would raise a genuine issue of material fact as to

pretext.”

Churchill also argues that TDCJ Policy PD-71 lists as “factors to be

considered when selecting an applicant”: “applicant’s response to interview

questions”; “[j]ob-related education, experience, certification, and training”;

“communication skills”; and “[e]mployer reference information.” Siringi and

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Blanchard stated that the interview is the most important factor and thus they

did not consider applicants’ education, experience, certification, or training after

they were satisfied the candidates had met the minimum education and

experience requirements to qualify for an interview.

Further, Churchill claims that TDCJ has provided inconsistent reasons for

its hiring decision and that such inconsistency is evidence of pretext. See Burrell,

482 F.3d at 415 (finding that when a rationale for a hiring decision does not

remain the same, a jury can infer pretext from this “unexplained inconsistency”).

Churchill argues that in response to an interrogatory, TDCJ stated that

Mossbarger was selected, in part, because of her “varied experience with the

agency,” but that this statement is inconsistent with Siringi’s written rationale

for selecting Mossbarger, which did not mention her varied experience with the

agency.

Our review of the record reveals the following. Blanchard stated that years

of experience and formal education are not the best indicators of who will make

the best training instructor; rather, in the search for an effective instructor,

prior tenure or education are “of little consequence.” Further, Blanchard claimed

that the length of service has never been a primary consideration on any

selection board on which he has served. Moreover, Siringi indicated that he was

“puzzled” by Churchill’s suit as Siringi is the same race as Churchill, and Siringi

has recently selected African Americans as trainers in “three out of four selection

boards”—this instance being the one exception in which he did not select an

African American.

While Churchill has offered at least some evidence of pretext, it is clear to

us on this record that TDCJ must prevail nonetheless. First, the “mere fact that

an employer uses subjective criteria is not . . . sufficient evidence of pretext.”

Manning v. Chevron Chem. Co., 332 F.3d 874, 882 (5th Cir. 2003). Additionally,

as this court has stated many times, “[A]n employer’s ‘disregard of its own hiring

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system does not of itself conclusively establish that improper discrimination

occurred or that a nondiscriminatory explanation for an action is pretextual.’”

EEOC v. Tex. Instruments Inc., 100 F.3d 1173, 1182 (5th Cir.1996) (quoting

Risher v. Aldridge, 889 F.2d 592, 597 (5th Cir. 1989)).4

It is true that Siringi and Blanchard may not have followed “by the book”

TDCJ hiring policy, and in retrospect Siringi admitted in his deposition that the

rationale he wrote for selecting Mossbarger did not include everything he

“wanted to put in it.” He asserts that the information in the blank was accurate,

but her interview performance was an additional justification for her selection.

Even so, we must remain cognizant that the ultimate issue is “whether the

employer’s selection of a particular applicant over the plaintiff was motivated by

discrimination.” Deines v. Tex. Dep’t. of Protective & Regulatory Servs., 164 F.3d

277, 281 (5th Cir. 1999) (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511

(1993)). In Reeves, the Supreme Court explained that although a plaintiff may

have set forth sufficient evidence to reject the defendant’s proffered explanation,

it may still present a circumstance where “no rational factfinder could conclude

that the action was discriminatory.” 530 U.S. at 148. This could occur when “the

record conclusively revealed some other, nondiscriminatory reason for the

employer’s decision, or if the plaintiff created only a weak issue of fact as to

whether the employer’s reason was untrue and there was abundant and

uncontroverted independent evidence that no discrimination had occurred.” Id.;

see Rubinstein v. Adm’r of Tulane Educ. Fund, 218 F.3d 392, 400 (5th Cir. 2000)

(affirming summary judgment for employer even though employee demonstrated

some evidence of pretext because there was “an overall lack of any evidence of

4

See also Sanchez v. Tex. Comm’n on Alcoholism, 660 F.2d 658, 662 (5th Cir.1981)

(“The Commission’s disregard of its own hiring system does not prove racial discrimination

absent a showing that discrimination was a motive in the action taken.”).

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discriminatory intent” and employee’s evidence of pretext was “not so persuasive

so as to support an inference that the real reason was discrimination”).5

While Churchill presented some evidence of pretext, our careful review of

the record, viewed in the light most favorable to Churchill’s claim, compels the

conclusion that the evidence taken together does not raise a legitimate fact issue

as to discriminatory intent.

Though Title VII plaintiffs need not always present evidence above and

beyond their prima facie case and pretext, see Reeves, 530 U.S. at 148, recovery

under Title VII still requires discrimination. Here the packet Siringi completed

and submitted included the form with the written rationale for selection along

with the presentation score sheet and interview answers. Siringi, an African

American, functioned as the principal decision maker and it is uncontested that

he had selected African Americans for training positions in the last three

openings he filled. There is no evidence of any racial remarks or discriminatory

animus exhibited by Siringi, Blanchard, or Heaton. Churchill’s subjective belief

that race was a motivating factor in the hiring decision because Mossbarger was

white, female, and younger than he finds no support in the record. Churchill has

raised “only a weak issue of fact” and therefore cannot survive summary

judgment. See id.

B.

Churchill additionally argues that he established pretext by

demonstrating he is “clearly better qualified” than Mossbarger. He argues that

“evidence of [a] plaintiff’s superior qualification is . . . probative of pretext.”

Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 357 (5th Cir. 2001) (citing

5

See also Pratt v. City of Hous., Tex., 247 F.3d 601, 606 (5th Cir. 2001) (“‘A prima facie

case and sufficient evidence to reject the employer’s explanation’ may permit a trier of fact to

determine that an employer unlawfully discriminated, and may therefore be enough to prevent

summary judgment. This showing, however, is not always enough to prevent summary

judgment in favor of the employer.” (citation omitted) (quoting Reeves, 530 U.S. at 148)).

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Deines, 164 F.3d at 281). One can hardly find mendacity by the employer when

“its judgments on qualifications are somewhere within the realm of reason.”

Deines, 164 F.3d at 282. The fact that one candidate has “better education, work

experience, and longer tenure with the company do[es] not establish that he is

clearly better qualified.” Price, 283 F.3d at 723.

Here Churchill points to his education, certifications, and training

experience to argue that he is clearly more qualified than Mossbarger. Churchill

compares himself to Mossbarger in nine areas in which his qualifications exceed

Mossbarger’s. As the district court noted, however, Mossbarger met the

minimum job qualifications and had her own array of qualifications and

certifications not considered or accounted for by Churchill.6

The district court rejected Churchill’s argument that he was clearly more

qualified. Churchill claims that in doing so it used an incorrect legal standard

when it articulated that a losing candidate’s qualifications must “leap from the

record and cry out to all who would listen that he was vastly—or even

clearly—more qualified for the subject job.” Id. (quoting Odom v. Frank, 3 F.3d

839, 847 (5th Cir. 1993)). Churchill argues that this is no longer the correct legal

standard because it was rejected by the Supreme Court in Ash v. Tyson, 546 U.S.

454 (2006). In Ash, the Supreme Court considered and rejected the Eleventh

Circuit’s formulation that “[p]retext can be established through comparing

qualifications only when the disparity in qualifications is so apparent as

virtually to jump off the page and slap you in the face,” because it was “unhelpful

and imprecise.” Id. at 456-57.

6

Mossbarger had, for example, certificates in Basic Supervisory Training, Hostage

Negotiator Training, Classification Case Manager Training, Foundation Skills for Trainers,

TDCJ Pre-Service and In-Service Training, HR Rep Training, Safe Prison Program Training,

Techniques for Group Instruction, and Training for Trainers.

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We agree with Churchill that the district court’s recitation of the “leap

from the record” standard is similarly “unhelpful and imprecise.” See id. Even

so, it is clear that a plaintiff must still establish that he is “clearly better

qualified” under Ash.7 Moreover, it is clear that the “clearly better qualified”

standard “should be understood to mean that disparities in qualifications must

be of such weight and significance that no reasonable person, in the exercise of

impartial judgment, could have chosen the candidate selected over the plaintiff

for the job in question.” Bright v. GB Bioscience Inc., 305 F. App’x 197, 205 n.8

(5th Cir. 2008) (quoting Deines, 164 F.3d at 280-81).

Regardless of the terminology used by the district court, our review of the

record reveals that the conclusion reached by the district court was plainly

correct. Demonstrating that one is “clearly better qualified” is understandably

very difficult to meet so as to avoid judicial second-guessing of business

decisions; and it is well-established that better education, work experience,

and/or longer tenure with the company does not necessarily make a candidate

clearly better qualified. See Price, 283 F.3d at 723. Selecting Mossbarger over

Churchill was well within the “realm of reason,” see Deines, 164 F.3d at 282, and

as discussed above, Churchill failed to raise a genuine issue of material fact that

TDCJ’s selection decision was motivated by discrimination. Therefore, summary

judgment was appropriate.

IV.

For the reasons set forth above, we AFFIRM the judgment of the district

court.

7

Moss, 610 F.3d at 927 (“The standard articulated . . . ‘clearly better qualified,’ is good

law.”).

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