Tyron Farver v. Ryan McCarthy

United States Court of Appeals

For the Eighth Circuit

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No. 18-2789

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Tyron D. Farver

lllllllllllllllllllllPlaintiff - Appellant

v.

Ryan D. McCarthy, Acting Secretary, Department of the Army

lllllllllllllllllllllDefendant - Appellee

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Appeal from United States District Court

for the Eastern District of Arkansas - Pine Bluff Division

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Submitted: April 16, 2019

Filed: July 31, 2019

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Before SHEPHERD, MELLOY, and GRASZ, Circuit Judges.

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GRASZ, Circuit Judge.

Tyron Farver challenges the decision of Pine Bluff Arsenal (“PBA”), an

installation of the Department of the Army, not to hire him for either a temporary or

a permanent position as a Chemical Equipment Repairer. Farver claims PBA violated

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17. The district

court1 granted the defendant’s motion for summary judgment. We affirm.

I. Background

Farver, an African American, was employed at PBA as an Industrial Worker,

but was loaned out to the Motor Powered and Systems Division (“motor pool”) for

his welding skills for approximately six months in 2009. There was not enough

welding work to keep Farver busy welding each day at the motor pool. During times

when work was slow, Farver sought training on chemical equipment such as the

M17A3 (“M17”) decontamination unit. With the assistance of his coworker Robert

Lee, Farver became proficient in the fabrication of M17s. Farver was never assigned

to work on these units during his time at the motor pool.

Farver applied for a job as a Chemical Equipment Repairer at PBA on two

occasions in 2009. First, Farver applied for a one-year term position with a possible

year-to-year extension. There were multiple term positions open when Farver

submitted his resume to his second-line supervisor, James Reed. Reed was uncertain

of the exact number, but testified he may have received as many as 50 to 100 resumes

for the one-year term positions. Reed did not select Farver. Later that year, Farver

applied online for a permanent position. Reed again passed over Farver for the

position.

Reed selected Chad Adams, Brandon Wilson, JC Warren, and Anthony Foots

for the term positions. Reed maintained the chosen candidates “had more the type of

mechanical experience” he was looking for. This included “skills with engines, with

hydraulics, pneumatics, troubleshooting, diagnostics, and those types of skills.”

1

The Honorable J. Leon Holmes, United States District Judge for the Eastern

District of Arkansas.

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Adams’s mechanical experience included time spent as an HVAC technician,

experience reading blueprints and diagrams, and installing components. Warren had

experience with engines and hydraulics because he had previously owned and

operated a trucking and construction business. Wilson had experience in chemical

equipment repair and was familiar with M17 decontamination units because of his

time as a work leader at PBA. Farver’s resume highlighted his experience with

welding and chemical equipment repair. However, welding experience was not

required in order to be eligible for the position, and his work with chemical

equipment had not been assigned by PBA.

Regarding the permanent position, Reed selected seven individuals based on

scores they received on a matrix he created to assess resumes. Despite the fact

Farver’s resume received a high rank from a resume-analyzing computer software

program used by the Army, when Reed reviewed the materials himself he believed

Farver’s relevant experience had been inflated.2 In his own matrix, Reed did not

credit Farver’s unassigned work experiences, work he had not observed Farver doing,

and skills he doubted Farver could have acquired based on the available equipment

in Farver’s assigned area. In addition, Reed’s matrix did not offer significant points

for welding, Farver’s primary assigned task in the motor pool. After Reed completed

his own calculations, Farver received the lowest score of the considered applicants.

Reed explained he did not hire Farver because “[Farver’s] resume did not indicate

that he could perform the functions that were required to do that job in the position

description as well as the people [Reed] selected.”

Farver sued the Secretary of the Army (“Secretary”) on the basis of race

discrimination. In response to the Secretary’s motion for summary judgment, Farver

2

The resumes were run through a program called Resumix. Resumix did an

automated word search of the applicants’ resumes and scored them based on

knowledge, skills, and abilities found in the position description. Resumix scored

Farver’s resume fourth highest of the applicants.

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argued genuine issues of material fact existed as to whether Reed’s failure to select

him for the term and permanent positions was based on his race since he was more

qualified than some of the white individuals selected. The district court granted the

Secretary’s motion and Farver appealed.

II. Analysis

Grants of summary judgment are reviewed de novo. Cox v. First Nat’l Bank,

792 F.3d 936, 938 (8th Cir. 2015). Summary judgment should be granted when

“there is no genuine issue as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). There is a genuine issue of

material fact if there is enough evidence “ that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). The burden of demonstrating an absence of a genuine dispute of material fact

is on the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the

moving party satisfies the burden, the nonmoving party must present specific

evidence, beyond “mere denials or allegations [that] . . . raise a genuine issue for

trial.” Wingate v. Gage Cty. Sch. Dist., 528 F.3d 1074, 1079 (8th Cir. 2008); see also

Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc)

(discussing the nonmovant’s burden of showing more than a “metaphysical doubt”).

“[T]o survive a motion for summary judgment on a discrimination claim, a

plaintiff must present admissible evidence directly indicating unlawful

discrimination, or create an inference of unlawful discrimination under the burden-

shifting framework established in McDonnell Douglas . . . .” Rooney v. Rock-Tenn

Converting Co., 878 F.3d 1111, 1115-16 (8th Cir. 2018) (citing McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973)). Farver does not supply any evidence of direct

discrimination, so the question is one of indirect evidence. To establish an inference

of discrimination, there are three steps: (1) the plaintiff must establish the prima facie

case for race discrimination; (2) the burden of production then shifts to the employer

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to show a legitimate, nondiscriminatory reason for its decision; and, if the employer

produces such evidence, (3) the burden of production shifts back to the plaintiff to

show the proffered reason was mere pretext for intentional discrimination. See

McDonnell Douglas, 411 U.S. at 802–05; see also Edwards v. Hiland Roberts Dairy,

Co., 860 F.3d 1121, 1125–26 (8th Cir. 2017).

In the failure-to-hire context, a plaintiff may establish a prima facie case of

discrimination by showing he is a member of a protected group; he applied for an

available position; he was qualified for the role; he was not hired; and similarly

situated individuals, not part of the protected group, were promoted instead. See

Amini v. City of Minneapolis, 643 F.3d 1068, 1074 (8th Cir. 2011). Farver’s ability

to establish the prima facie case for either position is not disputed, therefore we start

our analysis with the remainder of the test.3

Reed maintained his decision was based on the skills and experiences of the

applicants, not race. Reed explained the candidates he chose “had more the type of

mechanical experience” for which he was looking, including skills with engines,

hydraulics, pneumatics, troubleshooting, and diagnostics. Prioritizing a certain set

of skills over others is a legitimate, nondiscriminatory reason for a hiring decision.

Thus, the burden of production shifts back to Farver to present evidence the

provided reason is pretextual. McDonnell Douglas, 411 U.S. at 806. There are two

primary ways to show pretext in this area. A plaintiff may present evidence the

proffered reason has “no basis in fact” or “a [prohibited] reason [is] more likely.”

Torgerson, 643 F.3d at 1048 (first alteration in the original) (quoting Wallace v. DTG

Operations, Inc., 442 F.3d 1112, 1120 (8th Cir. 2006)). To show a prohibited reason

3

Although Farver’s ability to establish a prima facie case for the term position

is not disputed, we note Anthony Foots, one of the individuals hired, is African

American.

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is more likely because he or she was more qualified than selected candidates, a

rejected candidate must present evidence the other candidates were in fact less

qualified. Kincaid v. City of Omaha, 378 F.3d 799, 805 (8th Cir. 2004). “Similar

qualifications do ‘not raise an inference of discrimination.’” Torgerson, 643 F.3d at

1048 (quoting Chock v. Northwest Airlines, 113 F.3d 861, 864 (8th Cir. 1997)).

To ascertain if the hired candidates were less qualified, “a comparative analysis

of the qualifications is relevant to determine whether there is a reason to disbelieve

the employer’s proffered reason . . . .” Id. Employers may consider many

experiences and skill sets when making a hiring decision. See Bone v. G4S Youth

Servs., LLC, 686 F.3d 948, 955 (8th Cir. 2012) (noting it is not the court’s role to “sit

as super-personnel departments reviewing the wisdom or fairness of the business

judgments made by employers, except to the extent that those judgments involve

intentional discrimination”).

Farver argues he was objectively more qualified for both the temporary and the

permanent positions because of his hands-on experience with chemical equipment

such as gas masks, grenade launchers, and M17s. Neither Adams, Warren, nor

Wilson, who are white, had this type of broad of experience with chemical equipment.

However, this alone does not show they were less qualified to fulfill the role because

they had relevant experiences and skills Farver lacked.

Wilson’s experience with M17s coupled with his mechanical experience was

sufficient to establish he and Farver were similarly qualified. Adams’s extensive

experience with HVAC systems shows he had the mechanical skills Reed prioritized.

Warren had considerable experience with engines from owning a trucking company.

Although Farver had hands-on experience with the chemical equipment, his bona fide

qualifications were largely limited to welding — not a skill Reed prioritized, as it was

not required for the position. At best, Farver establishes he was similarly qualified

for the one-year term positions.

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As to the permanent position, Farver primarily relies on the computer generated

“objective” scores for his argument. But the purpose of the resume-screening

software is primarily to screen out unqualified candidates and draw attention to those

who might be most qualified. The keyword search feature alerts employers to the

candidates who incorporated words into their resumes that reflect the job description.

There is no requirement the hiring be done solely on the basis of the computer

rankings, and the decision-maker retains some authority to pass over highly ranked

candidates he or she determines do not have the prioritized skills and experiences.

Farver argues Reed knew about his unassigned work in the motor pool with

Lee, and therefore Reed’s failure to credit Farver for those portions of his resume is

pretext for discrimination. It is not irrational, though, for Reed to believe the

experience of performing assigned tasks accompanied by formal training and

supervision is more reliable. It is also not illogical for Reed to doubt and discredit

portions of Farver’s resume that alluded to working on equipment that, to Reed’s

knowledge, was not located in the areas to which Farver was assigned.

In sum, no reasonable factfinder could find Reed’s decision was motivated by

race. Such a conclusion would require speculation because Farver has not produced

sufficient evidence to raise a reasonable inference of discrimination.

III. Conclusion

For the reasons set forth herein, we affirm.

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