Rios v. Rossotti

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 00-50226

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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.

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Appeal from the United States District Court

for the Western District of Texas

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May 17, 2001

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

*

Circuit Judge of the Third Circuit, sitting by designation.

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

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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.

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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

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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

1

The affidavit of Ms. Chinn, a ranking panel official, stated

that “[t]he best qualified applicants received higher ratings of

potential because they had recent experience and excellent

performance in very technical positions, including tax auditor,

taxpayer service, engineering and higher graded tax examiner

positions.”

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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

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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,

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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 selected. Thus, Plaintiff has made her prima facie case.

Moving beyond Plaintiff’s prima facie case, Defendant has

met its burden of producing a non-discriminatory reason for

Plaintiff’s demotion. In this regard, Defendant relies on its

procedures for creating the Best Qualified List to show that Rios

was not as qualified for the desired positions as were those

selected. This contention satisfies Defendant’s burden as it “is

one of production, not persuasion . . . [and] can involve no

credibility assessment.” Reeves, 120 S.Ct. at 2106. As is

usually the case, the focus then becomes the third part of the

McDonnell-Douglas test – whether Plaintiff met her burden of

showing that Defendant’s explanation was merely a pretext for the

actual reason she was not selected – discrimination.

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As evidence of discrimination, Plaintiff offers her own

affidavit and those of several past and current IRS employees.

Their testimony tends to show that a general atmosphere hostile

towards Hispanic employees existed at the IRS; specific comments

had been made by IRS officials about Rios and her accent; and

Rios was perceived by coworkers to be highly competent. In her

own affidavit, Plaintiff testifies about numerous EEO complaints,

union grievances, and lawsuits she has filed since 1985.

Defendant is correct in its response that Plaintiff cannot use

this forum to litigate these prior claims. The issue though is

whether these prior allegations serve as competent evidence as to

the question presented in this matter – whether Defendant

discriminated in not selecting Plaintiff for the Best Qualified

List. On this issue, the past allegations coupled with the

affidavit testimony could evince of a pattern of discrimination

sufficient to undermine Defendant’s non-discriminatory reason.

See McDonnell-Douglas, 411 U.S. at 804-05, 93 S.Ct. 1817, 1826

("[E]vidence that may be relevant to any showing of pretext

includes . . . [the company’s] general policy and practice with

respect to minority employment.”); United States Postal Service

Board of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478,

1482 (1983) (holding that because “[t]here will seldom be

‘eyewitness’ testimony to the employer’s mental process,”

evidence of the employer’s discriminatory attitude in general is

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relevant and admissible to prove discrimination).

Ultimately, however, Plaintiff has failed to carry her

burden. In determining whether summary judgment was appropriate,

we consider “the strength of the plaintiff’s prima facie case,

the probative value of the proof that the employer’s explanation

is false, and any evidence that supports the employer’s case and

that properly may be considered on a motion for judgment as a

matter of law.” Reeves, 120 S.Ct. at 2109. Plaintiff’s evidence

of racial discrimination is presented in her own testimony and

that of Olivia Saenz and Raymund Gil Villanueva. The Supreme

Court has assessed the value of discriminatory remarks by

examining whether the remarks indicated invidious animus and

whether the speaker of the remarks was “principally responsible”

for the adverse employment action. See Reeves, 120 S.Ct. at

2110; see also Russell v. McKinney Hosp. Venture, 235 F.3d 219,

225 (5th Cir. 2000) (stating that “[t]he value of

[discriminatory] remarks is dependent upon the content of the

remarks and the speaker” (citing Reeves)). The strongest

evidence presented by Plaintiff is the declaration of Ms. Saenz.

Ms. Saenz cites many disparaging and racially insensitive remarks

made by individuals within the Service, including managers and

supervisors. None of these remarks, however, are attributed to

individuals with decision making authority in this case (the

three-member ranking panel). In addition, Plaintiff did not

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present evidence that could lead a rational jury to find that the

individuals who uttered those remarks possessed leverage, or

exerted influence, over the panel. See Russell, 235 F.3d at 227

(stating that “it is appropriate to tag the employer with an

employee’s [discriminatory] animus if the evidence indicates that

the worker possessed leverage, or exerted influence, over the

titular decisionmaker”). Thus, Plaintiff failed to create a jury

issue that Defendant’s proffered reason was a pretext for

discrimination. See Crawford v. Formosa Plastics Corp., 234 F.3d

899, 903 (5th Cir. 2000) (discussing evidentiary burden on

Plaintiff to overcome summary judgment).

Retaliation Claim

Plaintiff also argues that her failure to be selected was in

retaliation for engaging in activities protected under Title VII.

Title VII makes it unlawful for an employer to discriminate

against an employee “because [that employee] has opposed any

practice made an unlawful employment practice by this subchapter,

or because [the employee] has made a charge . . . under this

subchapter.” 42 U.S.C. § 2000e-3(a). The framework for

analyzing a retaliation claim is the same as that used in the

employment discrimination context. See Sherrod v. American

Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998). Hence, once

the plaintiff establishes a prima facie case of unlawful

retaliation, the burden shifts to the defendant to articulate a

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legitimate, nondiscriminatory reason for the adverse employment

action. Id. Finally, the plaintiff must then “adduce sufficient

evidence that would permit a reasonable trier of fact to find

that the proffered reason is a pretext for retaliation.” Id.

For retaliation claims, this final burden requires the

plaintiff to demonstrate that the adverse employment action would

not have occurred “but for” the protected activity. Id. Thus,

even if retaliation was a motivating factor in not selecting

Plaintiff, “no liability for unlawful retaliation arises if the

employee would [not have been selected] even in the absence of

the protected conduct.” Long v. Eastfield College, 88 F.3d 300,

305 n.4 (5th Cir. 1996). As applied to the present case,

Plaintiff must produce evidence showing that “but for”

retaliation, she would have made the Best Qualified List for the

San Antonio vacancies. Defendant contends that Plaintiff cannot

make the required “but for” showing because those individuals

selected were more qualified than Plaintiff. This Court affords

a high degree of deference to employers in their hiring and

promotion decisions. In order to be probative on the issue of

retaliation, “the qualifications [must be] so widely disparate

that no reasonable employer would have made the same decision.”

Deines v. Texas Dept. of Protective Regulatory Servs., 164 F.3d

277, 281 (5th Cir. 1999).

In this case, Plaintiff faces an uphill battle in showing

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that the ranking panel retaliated against her in compiling the

Best Qualified List. On its face, the factors used in creating

the List are rational and non-discriminatory. Plaintiff argues

that in applying those factors, the panel discounted her

qualifications and experience in retaliation for her prior

filings. She notes that none of the applicants who made the Best

Qualified List had prior EEO activity. As evidence of

Defendant’s retaliatory motive, Plaintiff offers her own

testimony and the affidavits of other current and former IRS

employees – Olivia Saenz, Raymund Gil Villanueva, Cynthia T.

Alvarado, Linda Chavez, Guadalupe Ramos, and Jane Castillo.2 The

affidavits contain numerous alleged instances of retaliation

within the IRS. A jury could not reasonably conclude that the

affidavits are sufficient to demonstrate pretext for retaliation

in this case. Evidence of retaliation in other circumstances may

of course be probative as to pretext; however, such evidence

creates only a weak issue of pretext when it is unsupported by

evidence reflecting more precisely on the situation at issue in

the case. As these affidavits did not concern the individuals

2

The district court afforded very little weight to Plaintiff’s

affidavits concluding that they “represent nothing more than

conclusory statements relating to anecdotal allegations of

discrimination generally in the Department of the Treasury.”

Further, that the declarations therein “are largely beyond the

personal knowledge of the declarant and contain impermissible

hearsay as well as improper speculation and opinion testimony of

lay witnesses” and the statements would be largely inadmissible at

trial.

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alleged to have retaliated against Plaintiff or the selection

process regarding Plaintiff, they create, at best, a very weak

inference of pretext. Thus, these affidavits alone are

insufficient to create a genuine issue of material fact as to

whether Defendant’s proffered reason was a pretext for

retaliation against Plaintiff.

The argument that Plaintiff’s qualifications were discounted

is further belied by the affidavit testimony that Plaintiff

failed to make the Best Qualified List because of her admittedly

low scores on the objective – evaluations and awards – rather

than subjective - experience, education, and training -

components of the Best Qualified List.3 We understand that

Plaintiff argues that the evaluations and awards are subjective,

in that they reflect the subjective impressions of her

supervisors. Nonetheless, insofar as the committee was not

involved in determining the evaluations or awards, these factors

were objective in their hands. Plaintiff’s argument concerning

the subjectivity of her supervisors is addressed fully in the

discussion of the “rubber stamp” exception below. If any of the

3

Ms. Margie Maxwell testified that Plaintiff scored favorably

in the third “potential for success” category, however, “due to her

average performance evaluation and no awards, she did not have an

overall score high enough to make the Best Qualified list.” The

third ranking official, Mr. Abba Rabbani, testified that her

previous experience and other factors helped her overall ranking

potential, and as such “it appears the reason she did not make the

BQL, is because her evaluation was lower in comparison to others

and she did not have any Awards.”

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criteria were manipulable by the ranking panel, it was the

subjective components in the third prong. Plaintiff scored well,

however, on these aspects. It was the objective factors where

she suffered. Although Plaintiff received good evaluations

during her tenure with the Service, those selected consistently

received the highest rating of five in the evaluation’s

categories. In an attempt to cast doubt on the qualifications of

those selected, Plaintiff characterizes two of the employees

selected for the tax auditor position as “secretaries.” This

characterization is unfair and misleading, given that Plaintiff

was only promoted from secretary to auditing aide six months

prior to her application. Considered in total, Plaintiff’s

evidence does not refute the IRS’ claim that it applied the three

criteria uniformly to the applicants, nor does it refute the

claim that the individuals selected exceeded her qualifications

under those criteria.

“Rubber Stamp” Exception

Given the information presented to the ranking panel, their

decision was clearly reasonable. Indeed, Plaintiff argues that

the submitted evaluation scores and lack of awards, when plugged

into the ranking panel’s formula, virtually compelled them to

leave Plaintiff off the Best Qualified List. Plaintiff argues

that employees who file EEO complaints are consistently given

lower evaluations by their supervisors, evaluations which, in the

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hands of the ultimate decision maker, can be used as an

“objective” basis for denying them future promotions. We

recognize the potential for abuse inherent in this situation both

as to retaliation and discrimination claims.

Under such circumstances, this Court has employed a “rubber

stamp” analysis to prevent employers from insulating themselves

from the acts of subordinates. Typically, “statements by non

decision makers, or statements by decision makers unrelated to

the decisional process itself [do not] suffice to satisfy the

Plaintiff’s burden.” Price Waterhouse v. Hopkins, 490 U.S. 227,

277 (1989) (O’Connor, J., concurring). Statements of non

decision makers become relevant, however, when the ultimate

decision maker’s action is merely a “rubber stamp” for the

subordinate’s recommendation. Russell v. McKinney Hosp. Venture,

235 F.3d 219, 226-27 (5th Cir. 2001). Thus, “[i]f the employee

can demonstrate that others had influence or leverage over the

official decisionmaker . . . it is proper to impute their

discriminatory attitudes to the formal decisionmaker.” Id. at

226; see also Willis v. Marion County Auditor’s Office, 118 F.3d

542, 547 (7th Cir. 1997) (“[T]here can be situations in which the

forbidden motive of a subordinate employee can be imputed to the

employer because, under the circumstances of the case, the

employer simply acted as the ‘cat’s paw’ of the subordinate.”).

Where an evaluation is the sole basis or comprises a substantial

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basis on which the decision maker acts, the evaluation may often

constitute sufficient influence to fall under the “rubber stamp”

exception.

Plaintiff argues that the formula’s heavy reliance on

evaluations and awards, which are both determined by supervisors,

forces the ranking panel to essentially “rubber stamp” the

supervisor’s recommendations in ranking applicants for the Best

Qualified List. The ranking panel’s affidavit testimony concedes

that if it were not for the low evaluation scores and lack of

awards, Plaintiff would have made the Best Qualified List. We

need not decide whether sufficient influence existed in the

present case. Even if the ranking panel was acting as a “rubber

stamp,” Plaintiff did not present evidence with respect to

discrimination or retaliation in her evaluation’s scores or her

failure to receive awards – none of Plaintiff’s affidavits allege

discriminatory remarks or retaliatory behavior by the supervisors

providing her evaluations or awards. Plaintiff’s only claim is

that her most recent evaluation violated the requirements of the

union contract because her manager had supervised her for less

than 90 days. Her complaint that the evaluation violated agency

policy is insufficient to sustain a claim under Title VII.

Although she argues that she was rated unfairly in the

evaluation, she presents no evidence of retaliatory or

discriminatory animus. Plaintiff has thus failed to present

evidence from which a reasonable jury could infer that the

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current employment decision was the result of a reason that was a

pretext for discrimination or retaliation.

CONCLUSION

Plaintiff alleges she was denied one of several vacancies

within the IRS because of discrimination and retaliation.

Plaintiff’s evidence consists almost entirely of unproven claims

of past conduct by the IRS. While such evidence may sometimes be

probative on the issue of intent, it is insufficient here to

sustain Plaintiff’s respective burdens of showing that (1)

Defendant’s proffered non-discriminatory reason was a pretext for

discrimination and (2) “but for” retaliation Plaintiff would have

been selected. Accordingly, we AFFIRM the judgment of the

district court.

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