where defendant failed to hire plaintiff because of poor performance in an interview, defendant nonetheless provided a clear and reasonably specific explanation that plaintiff “was tentative and lacked self-confidence during the interview”
How later courts described this case
- where defendant failed to hire plaintiff because of poor performance in an interview, defendant nonetheless provided a clear and reasonably specific explanation that plaintiff “was tentative and lacked self-confidence during the interview”
Written by the judges who cited it.
The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-14854 ELEVENTH CIRCUIT
MARCH 20, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-00535-CG-M
BARBARA JOHNSON,
Plaintiff-Appellant,
versus
CITY OF MOBILE, ALABAMA,
Defendant-Appellee,
CITY OF MOBILE URBAN DEVELOPMENT
AND PUBLIC SERVICES DEPARTMENT,
Defendant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(March 20, 2009)
Before CARNES, WILSON and FAY, Circuit Judges.
PER CURIAM:
Barbara Johnson, an African American woman, appeals from the district
court’s grant of summary judgment in favor of the City of Mobile, Alabama, in
Johnson’s employment discrimination action, brought pursuant to Title VII of the
Civil Rights Act of 1964 and 42 U.S.C. § 1981. For the reasons set forth below,
we affirm.
I.
Johnson filed a complaint in federal court against the City of Mobile,
Alabama,1 pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981,
and Alabama state law. Johnson alleged that she was an African American female
who had been employed with the City of Mobile since 1996 as a municipal
enforcement officer in the Urban Development Department. For all times relevant
to this appeal, Laura Clarke was the director of the Urban Development
Department, and Ron Jackson, a white male, was Johnson’s supervisor.
Johnson alleged that her duties, which included, inter alia, nuisance
abatement, were similar to the duties performed by a “Building Inspector II.” As a
result, she requested Jackson to “upgrade her status to that of a ‘Building Inspector
1
The district court subsequently dismissed the “City of Mobile Urban Development and
Public Services Department” as a defendant, and Johnson does not challenge that ruling on appeal.
2
II’ but her requests were denied.” She had also applied for the positions of
“Building Director I”, zoning inspector, and chief property Maintenance Inspector
officer, but she did not receive any of these positions. Johnson also applied for two
supervisor positions in January 2007, but “two black males under the age of forty
(40) with less experience than Johnson were given the positions . . . .”
Incorporating the above allegations, Johnson brought three generalized causes of
action: 1) a discrimination and retaliation claim under Title VII and § 1981; 2) a
claim for intentional infliction of emotional distress; and 3) a claim for negligent
hiring, training, supervision, and retention.
Following discovery, the City of Mobile moved for summary judgment. In
its memorandum of law, the City of Mobile argued that its failure to upgrade
Johnson to the position of Building Inspector II was not discriminatory. With
respect to the two supervisor positions, the City of Mobile argued that it did not
exercise any gender bias in declining to promote Johnson to these positions, as the
reason why she was not hired was due to her poor interview and the “superior
qualifications of the other candidates when compared to the Plaintiff.”
The City of Mobile attached documentary evidence in support of its motion,
the following of which is relevant to this appeal. In an affidavit prepared by
Jackson, he stated, inter alia, that:
3
The decision to reassign the nuisance abatement duties to Cindy
Aspinwall was based solely on the Plaintiff’s performance. I had
requested specific information from Ms. Johnson i[n] a specific
format, and she could not provide it. I did not reassign the Plaintiff’s
nuisance abatement duties to Ms. Aspinwall in retaliation for the
Plaintiff’s request for a promotion or raise. The decision to reassign
the nuisance abatement duties was further not based on the Plaintiff’s
race, age, or sex.
The only additional evidence submitted with regard to the reassignment of
Johnson’s nuisance abatement duties was contained in Aspinwall’s deposition,
where she testified that in January or February of 2006, Jackson had reassigned
Johnson’s nuisance abatement duties to Aspinwall. She explained that the reason
why Jackson reassigned these duties was because Johnson was “not doing a
spreadsheet. He had asked for a spreadsheet over and over and over again and she
never produced a spreadsheet.” When asked what kind of spreadsheet, Aspinwall
explained that Jackson wanted a spreadsheet “[o]f all the nuisance abatements or
unsafe building – a list of all the properties that was in this procedure, and she
never produced that.”
In Johnson’s deposition, she testified that she applied for a supervisor
position in the Urban Development Department. She testified that she was
qualified for the position and that Jackson and David Daughenbaugh interviewed
her. Jackson had previously told Johnson to apply for the position and, at the
interview, Jackson told her that she was a good worker and should qualify for the
4
job. When asked if she remembered anything else about the interview, Johnson
testified: “Just laughing and smiling and told me good luck on the – him and David
both told me good luck on the application.” A man named Gerard McCants
ultimately received the position. Johnson believed that McCants, like her, had
worked as municipal enforcement officer for the City of Mobile for the previous 10
or 11 months but, before that, had worked at a “cleaners.” She believed that
gender was a factor in the decision to hire McCants because, although Clarke, the
head of the entire department, was a female, there were no female supervisors.
In Jackson’s affidavit, he stated that he interviewed four candidates for the
supervisor position in the Urban Development Department. He asked the four
candidates the same questions during the interview, and he ultimately
recommended McCants for the position. Jackson selected McCants for the job
due to his overwhelming qualifications. Mr. McCants held a degree
from the University of Alabama in advertising and marketing. He had
over fifteen (15) years of management experience in the private sector
and had worked as a Municipal Enforcement Officer for over a year.
During his employment with the City, Mr. McCants exhibited his
ability to be an outstanding employee. He was extremely efficient in
managing his workload. He also exhibited a positive attitude and
tremendous initiative. He was willing to take on added responsibility
and work with others. On numerous occasions, he volunteered to
assist other inspectors or assume additional duties.
Jackson stated that gender was not a factor in his hiring decision, and he was not
aware of Daughenbaugh relying on gender in making his decision. Daughenbaugh
5
submitted a virtually identical affidavit with respect to his decision to recommend
McCants for the position.
Ray Richardson, Environmental Manager of the Environmental Services
Department, also submitted an affidavit. He stated that he interviewed several
candidates for the supervisor position in the Environmental Services Department
and ultimately selected Terrell Washington for the position. He explained:
One of the reasons I did not select Ms. Johnson is because she was
tentative in her responses and lacked self-confidence during the
interview. I had also personally observed Ms. Johnson’s performance
as a Code Enforcement Officer under my direction. She had been
given the opportunity to take the leadership role in the newly formed
Environmental Services Department, but had not done so. I selected
Terrell Washington because the person selected for the position
needed to possess attributes of leadership, self-direction, knowledge
of job specific material and guidelines, as well as a willingness to step
outside of the box. The Plaintiff did not have these qualities.
Richardson stated that gender was not a factor in his decision.
In response to the City of Mobile’s summary judgment motion, Johnson
focused on her failure to receive the two building inspector positions and generally
complained of her failure to be promoted. Johnson attached a portion of Jackson’s
deposition to her response, in which he confirmed that Johnson failed to provide
spreadsheets in connection with her nuisance abatement duties and, when asked if
this “factor [was] placed in her 2006 personnel review report,” Jackson responded,
“I’m sure it was taken into consideration.” Jackson then testified that he “thought”
6
Johnson received a “high quality” evaluation that year.
After the City of Mobile submitted a reply and additional documentary
evidence, none of which is relevant to this appeal, the district court entered an
order granting the City summary judgment on all of Johnson’s claims. First, the
district court found that Johnson had abandoned her state law claims in Counts
Two and Three and that she abandoned any age discrimination claim. After
finding that the City of Mobile was entitled to summary judgment with respect to
the two building inspector positions because Johnson was not qualified for the
positions, the court found that, “[t]o the extent that Ms. Johnson complains that
Mobile should have paid her what it pays a Building Inspector II to compensate her
adequately for performing nuisance abatement work,” the City of Mobile was
entitled to summary judgment because there was no evidence that anybody
received additional compensation for these duties and, therefore, Johnson could not
show pretext. In the course of addressing that issue, the court noted that Johnson’s
nuisance abatement duties were reassigned to Aspinwall because Johnson failed to
prepare a spreadsheet that Jackson had requested.
After addressing other miscellaneous claims not relevant here, the court
addressed the two supervisor positions. The court assumed “for the sake of
argument” that Johnson made out a prima facie case of gender discrimination, but
7
found that the City of Mobile came forward with legitimate reasons for declining
to promote Johnson. Specifically, with respect to the supervisor position in the
Urban Development Department, the court emphasized that McCants was highly
qualified for the position. With respect to the supervisor position in the
Environmental Services Department, the court emphasized that Johnson performed
poorly in the interview, she had worked for Richardson in the past but did not
assume a leadership role, and Washington exhibited the necessary attributes for the
position. Because Johnson did not come forward with any evidence to show that
the City of Mobile’s reasons for failing to promote her to these positions were
pretextual, the court granted the City of Mobile summary judgment on these
claims. This appeal followed.
II.
We review the grant of summary judgment de novo. Rioux v. City of
Atlanta, Ga., 520 F.3d 1269, 1274 (11th Cir. 2008). “Summary judgment is
rendered ‘if the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show 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.’” Id. (quoting Fed.R.Civ.P. 56(c)). “In making this assessment, the Court
must view all the evidence and all factual inferences reasonably drawn from the
8
evidence in the light most favorable to the nonmoving party, and must resolve all
reasonable doubts about the facts in favor of the non-movant.” Id. (quotations and
citations omitted).
“Title VII prohibits employers from discriminating ‘against any individual
with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or national origin.’”2
McCann v. Tillman, 526 F.3d 1370, 1373 (11th Cir.) (quoting 42 U.S.C.
§ 2000e-2(a)(1)), cert. denied, 129 S.Ct. 404 (2008). In this case, there is no
dispute that Johnson failed to produce direct evidence of discrimination, and,
therefore, she must “prove discrimination through circumstantial evidence, using
the burden-shifting framework established in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Id.
“Under this framework, if the plaintiff establishes a prima facie case, the
burden shifts to the employer to articulate some legitimate, nondiscriminatory
reason for the adverse employment action.” Crawford v. Carroll, 529 F.3d 961,
976 (11th Cir. 2008) (quotation omitted). “To satisfy this intermediate burden, the
2
Johnson also invoked § 1981 in her complaint in addition to Title VII. However, because
“[b]oth of these statutes have the same requirements of proof and use the same analytical
framework, . . . we shall explicitly address the Title VII claim with the understanding that the
analysis applies to the § 1981 claim as well.” Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318,
1330 (11th Cir. 1998).
9
employer need only produce admissible evidence which would allow the trier of
fact to rationally conclude that the employment decision had not been motivated by
discriminatory animus.” Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th
Cir. 1997) (quotation and alteration omitted). “It is sufficient if the defendant’s
evidence raises a genuine issue of fact as to whether it discriminated against the
plaintiff. To accomplish this, the defendant must clearly set forth, through the
introduction of admissible evidence, the reasons for the plaintiff’s rejection.”
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct.
1089, 1094, 67 L.Ed.2d 207 (1981) (footnote omitted); see also Wilson v. B/E
Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004) (describing the employer’s
burden in this respect as one of production, not persuasion)
“If the employer does this, the burden shifts back to the plaintiff to show that
the employer’s stated reason was a pretext for discrimination.” Crawford, 529
F.3d at 976. “A reason is not [a] pretext for discrimination unless it is shown both
that the reason was false, and that discrimination was the real reason.” Brooks v.
County Com’n of Jefferson County, Ala., 446 F.3d 1160, 1163 (11th Cir. 2006)
(quotation omitted). A plaintiff’s evidence of pretext “must reveal such
weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in the
employer’s proffered legitimate reasons for its actions that a reasonable factfinder
10
could find them unworthy of credence.” Vessels v. Atlanta Independent School
System, 408 F.3d 763, 771 (11th Cir. 2005) (quotation omitted). “Provided that
the proffered reason is one that might motivate a reasonable employer, an
employee must meet that reason head on and rebut it, and the employee cannot
succeed by simply quarreling with the wisdom of that reason.” Chapman v. AI
Transport, 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc).
On appeal, Johnson has abandoned all of her claims except for the
following: 1) a claim of racial discrimination in connection with the reassignment
of her nuisance abatement duties; and (2) a claim of gender discrimination in
connection with her failure to receive two municipal enforcement supervisor
positions. See Rioux, 520 F.3d at 1274 n.4 (arguments not raised on appeal are
abandoned). We address these claims in turn.
A. The Reassignment of Johnson’s Nuisance Abatement Duties
In this case, the district court addressed Johnson’s claim that she should have
received a raise or promotion based on her nuisance abatement work. However, on
appeal, Johnson does not advance this claim, but instead contends that she suffered
racial discrimination when the City of Mobile reassigned her nuisance abatement
duties to Aspinwall, a white female. Even assuming arguendo that Johnson has
made out a prima facie case on this claim, the City of Mobile offered a legitimate,
11
nondiscriminatory reason for the reassignment. Specifically, Jackson explained
that the reason he reassigned Johnson’s nuisance abatement duties was because he
had “requested specific information from Ms. Johnson i[n] a specific format, and
she could not provide it.”3
Because the City of Mobile articulated a legitimate, nondiscriminatory
reason for reassigning Johnson’s nuisance abatement duties to Aspinwall, it is
Johnson’s burden to demonstrate that this reason was a pretext for discrimination.
Crawford, 529 F.3d at 976. On appeal, Johnson asserts that Jackson’s reason was
pretextual because Johnson received a “high quality” evaluation, despite the fact
that the spreadsheet incident with Jackson was taken into consideration. It is true
that Jackson testified that he “thought” that Johnson received a “high quality”
evaluation and that the spreadsheet incident was a “factor” that was considered.
However, Johnson points to no evidence demonstrating that the
reassignment of her nuisance abatement duties was necessarily inconsistent with
her “high quality” evaluation. Indeed, Johnson did not submit a copy of her
evaluation and, as the City of Mobile points out, Jackson testified only that the
3
Although the City of Mobile did not proffer this reason at the summary stage, it cannot be
faulted for its failure to do so, as Johnson never raised any reassignment claim in her complaint.
Although this raises the question of whether Johnson’s claim is properly before us, that question is
an academic one because, as we explain below, the City of Mobile was entitled to summary
judgment on this claim.
12
spreadsheet incident was a “factor” in her overall year-end evaluation. Thus, there
is nothing to suggest that the spreadsheet incident was so critical that it would have
necessarily precluded a positive evaluation. The only other evidence in the record
on the reassignment issue appears to be Aspinwall’s testimony, and she testified
that she received Johnson’s nuisance abatement duties because Johnson repeatedly
failed to provide Jackson with a spreadsheet. In this respect, there is nothing in the
record to suggest that Aspinwall, who was not one of Johnson’s supervisors, was
incredible on this point.
Thus, Johnson has not come forward with sufficient evidence of pretext that
would allow a reasonable factfinder to conclude that Jackson’s legitimate,
nondiscriminatory reason for reassigning Johnson’s nuisance abatement duties to
Aspinwall was unworthy of credence. Vessels, 408 F.3d at 771. Nor has Johnson
come forward with any evidence to suggest that race played a role in Jackson’s
decision. See Brooks, 446 F.3d at 1163. Accordingly, because Johnson has not
met her burden to show pretext, we affirm the grant of summary judgment to the
City of Mobile on this claim.
B. The Two Supervisor Positions
The district court found that Johnson had made out a prima facie case of
gender discrimination in connection with her failure to receive a supervisor
13
position in the Urban Development Department and a supervisor position in the
Environmental Services Department. As explained below, even assuming
arguendo that Johnson has made out a prima facie case on these two claims, the
district court correctly found that Johnson was unable to show that the City of
Mobile’s legitimate, nondiscriminatory reasons for failing to hire her were
pretextual.
1. The Supervisor Position in the Urban Development Department
In its motion for summary judgment, the City of Mobile proffered that it
hired McCants for the supervisor position in the Urban Development Department
instead of Johnson because of his superior qualifications. In her brief, Johnson
attacks this reason as being factually unsupported, insufficiently clear, and
subjective. These arguments are without merit, as Jackson and Daughenbaugh
both explained in their affidavits that they hired McCants because of his
“overwhelming qualifications,” not because of his gender. Further, Jackson and
Daughenbaugh clearly elaborated on the specifics of McCants’s qualifications.
Having articulated a legitimate, nondiscriminatory reason for hiring
McCants, the burden shifts to Johnson to show that the City of Mobile’s reason
was a pretext for discrimination. Crawford, 529 F.3d at 976. Johnson suggests in
her brief that the reason was pretextual because she was more qualified than
14
McCants for the position. Johnson, however, cannot “establish pretext simply by
showing that she is more qualified than [McCants].” Cofield v. Goldkist, Inc., 267
F.3d 1264, 1268 (11th Cir. 2001). Rather, she must show that “any disparity
between [Johnson’s] and [McCant’s] managerial qualifications is so great that a
reasonable fact-finder could infer that [the City of Mobile] did not believe
[McCants] to be better qualified.” Id.
Jackson and Daughenbaugh explained that McCants was qualified because
he possessed a degree from the University of Alabama, had 15 years of
management experience in the private sector, and had been an outstanding
municipal enforcement officer with the City for over a year, where he had
demonstrated efficiency, positivity, initiative, and ambitiousness. Johnson points
out that, like McCann, she had a college degree and was a “high quality”
employee. These facts, however, do not demonstrate any apparent disparity
between her qualifications and McCants’s qualifications. See Cofield, 267 F.3d at
1268.
The only fact that Johnson points to in this regard is that she was a municipal
enforcement officer for ten years, while McCants had only worked in that capacity
for one year. However, McCants had 15 years of management experience in the
private sector, whereas Johnson was not employed in a managerial capacity at all
15
while working for the City. See Cofield, 267 F.3d at 1268 (“Bowen’s employment
record, by comparison, reflects experience in higher level management positions
than Cofield.”). Thus, the mere fact that Johnson worked as a municipal
enforcement officer for longer than McCants does not demonstrate an obvious
disparity in Johnson’s favor.
In sum, even though Johnson may have been qualified for the position, “any
disparity in qualifications that may exist here is so slight as to fail to establish that
[the City’s] reason for not promoting [Johnson] was pretexual.” Id. at 1269.
Accordingly, we affirm the grant of summary judgment in the City of Mobile’s
favor on this claim.
2. The Supervisor Position in the Environmental Services Department
In its motion for summary judgment, the City of Mobile proffered that it
hired Washington for the supervisor position in the Environmental Services
Department instead of Johnson because of her poor performance during the
interview and Washington’s superior qualifications. In her brief, Johnson again
attacks this reason as being factually unsupported, unclear, and subjective.
However, Richardson explained in his affidavit precisely why he hired Washington
instead of Johnson. Specifically, he stated that Johnson was tentative and lacked
self-confidence during the interview, failed to assume a leadership role while
16
working under Richardson in the past, and, unlike Washington, did not possess
leadership, self-direction, knowledge of job-specific materials and guidelines, or a
willingness to step outside of the box. Thus, Johnson’s contention that the City of
Mobile’s reason was factually unsupported is without merit.
Furthermore, we have held that a subjective reason for not hiring a
candidate, such as a poor interview, is valid so long as the employer offers a “clear
and reasonably specific explanation” for reaching that conclusion. Chapman, 229
F.3d at 1033-35. As discussed above, Richardson’s reasons for failing to hire
Johnson were both clear and reasonably specific, and Johnson does not explain on
appeal in what way Richardson’s reasons lacked the requisite clarity or specificity.
Having articulated legitimate, nondiscriminatory reasons for hiring
Washington, the burden shifts to Johnson to show that the City of Mobile’s reasons
were a pretext for discrimination. Crawford, 529 F.3d at 976. In her brief,
Johnson asserts only that she had ten years of experience, was a high quality
worker, had a college degree, and was qualified enough to receive an interview.
She says nothing about Washington’s qualifications and does not assert that she
was more qualified than him. This is insufficient to demonstrate that the City of
Mobile’s reasons for hiring Washington were pretextual. See Cofield, 267 F.3d at
1268. Accordingly, we affirm the grant of summary judgment in the City’s favor
17
on this claim.
III.
In sum, we conclude that, even assuming arguendo that Johnson has made
out a prima facie case on the above claims, she has failed to come forward with
sufficient evidence demonstrating that the City of Mobile’s legitimate,
nondiscriminatory reasons were a pretext for discrimination. Accordingly, we
affirm the district court’s grant of summary judgment in the City’s favor.
AFFIRMED.
18