The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 23, 2008
No. 06-31199 Charles R. Fulbruge III
Clerk
HARRELL SHARKEY
Plaintiff-Appellant
v.
DIXIE ELECTRIC MEMBERSHIP CORPORATION
Defendant-Appellee
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:04-CV-423
Before KING, BARKSDALE, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:*
In this “reverse race discrimination” action, plaintiff-appellant Harrell
Sharkey, who is white, alleges that defendant-appellee Dixie Electric
Membership Corporation (“DEMCO”) engaged in racially discriminatory hiring
practices in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq., when it failed to hire him for a vacant position even though he was
qualified and instead hired an African-American applicant. Sharkey contends
that he was informed by DEMCO personnel that his application was futile
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 06-31199
because the vacant position was reserved for African-American applicants only.
The magistrate judge granted summary judgment in favor of DEMCO and
dismissed Sharkey’s suit.2 Sharkey now appeals. Because we conclude that
DEMCO’s Affirmative Action Plan provides a legitimate, nondiscriminatory
rationale for its decision to hire the African-American applicant instead of
Sharkey, we AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
Pursuant to Louisiana Revised Statutes § 12:401, DEMCO was created in
1983 as a private, nonprofit electric membership serving customers in the
Parishes of East Baton Rouge, West Feliciana, East Feliciana, Livingston,
Ascension, St. Helena, and Tangipahoa. DEMCO receives financial assistance
in the form of low-cost loans from the Rural Utilities Service (“RUS”) of the
United States Department of Agriculture.
On December 30, 2002, DEMCO’s General Manager, Henry Locklar,
authorized the utility’s Human Resources Manager, Diana Martin, who
supervises and controls DEMCO’s hiring process for vacant positions, to fill the
position of Lineman Helper for the Greensburg District Office, which had become
vacant on November 8, 2002. On January 2, 2003, DEMCO issued a “Notice of
Job Vacancy” to its employees and, later that week, placed an advertisement
concerning the vacant position in two newspapers – the Baton Rouge Sunday
Advocate and the St. Helena Echo.
DEMCO received forty applications for the Lineman Helper position,
including an application from Sharkey. DEMCO’s hiring process requires
applicants to take the Test of Adult Basic Education (“TABE”) and basic
2
Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed in this matter before
a magistrate judge.
2
No. 06-31199
Aptitude Test Batteries (“ATBs”) to be considered for certain job lines, including
this Lineman Helper position. Test-takers receive scores of “high,” “medium,”
or “low,” but, according to DEMCO, only candidates who receive “high” or
“medium” scores are considered for interviews based upon their qualifications.
An applicant’s race does not appear on his application. DEMCO only learns of
an applicant’s race at the time of an interview, if it elects to interview that
applicant.
Sharkey received a “medium” score on the tests, but he was not selected
for an interview for the Lineman Helper position. Ultimately, on July 14, 2003,
after DEMCO interviewed eleven applicants, including two African-Americans,
it hired Theodore McCray, Jr., an African-American candidate who was qualified
for the position. McCray scored a “medium” on the tests, had an engineering and
electronics background with previous experience in the wireless communications
field, was an engineer in training, was a native and resident of Greensburg, had
a clean driving record, and had previously worked at DEMCO in the summer of
1990 as a substation technician.
In this suit, Sharkey alleges that, in failing to hire him for the vacant
Lineman Helper position, DEMCO engaged in racially discriminatory hiring
practices in violation of Title VII of the Civil Rights Act of 1964 and Louisiana’s
employment discrimination law, Louisiana Revised Statutes § 23:332.3
3
Sharkey initially filed a discrimination complaint against DEMCO with the EEOC,
alleging unlawful and racially motivated hiring practices, which was dismissed. Through that
complaint, Sharkey exhausted the administrative remedies required by 7 C.F.R. § 15.6. See
7 C.F.R. §§ 15.1, 15.2, 15.6 (requiring any person who believes himself to be subjected to
discrimination prohibited by the Code of Federal Regulations to file with the Secretary of
Agriculture or any agency, which includes any service, bureau, agency, office, administration,
instrumentality of or corporation within the U.S. Department of Agriculture, extending federal
financial assistance to any program or activity, a written complaint regarding the alleged
discrimination).
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No. 06-31199
Specifically, Sharkey contends that he was not hired because he is white, even
though he was otherwise qualified for the position. He asserts that, after
applying for the position, he was instructed by two members of DEMCO’s board
of directors, Richard Sitman and Joe Self, as well as other current and former
DEMCO employees that his application was “futile” because the Lineman Helper
position was specifically reserved for an African-American applicant. DEMCO,
on the other hand, argues that it considered Sharkey’s application, but decided
to hire McCray based upon his qualifications and background, plus the fact that
he is African-American helped DEMCO achieve projected minority hiring goals
set forth in its Affirmative Action Plan.
Since at least 1984, DEMCO has annually adopted and implemented an
Affirmative Action Plan (“AAP”) prepared by Affirmative Action Plan USA, Inc.4
DEMCO contends that, in these AAPs, its minority placement and hiring goals
are evaluated and updated on a yearly basis. Relevant to this appeal, DEMCO
had in effect an Affirmative Action Plan from September 1, 2002, to August 31,
2003 (“subject AAP”) entitled “Equal Employment Opportunity Affirmative
Action Program under Executive Order 11246 as Amended.” The subject AAP
noted that the “major problem areas which currently exist are in the recruitment
4
Because DEMCO receives federal financial assistance from RUS, it must comply with
the non-discrimination provisions of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d
et seq, and Executive Order 11246, 30 Fed.Reg. 12319 (1965). As we have previously stated,
regulations promulgated under Executive Order 11246 require federal contractors to “analyze
the representation of . . . racial . . . minorities among their employees and, if the analysis
reveals ‘underutilization’ of a particular group, to develop an affirmative action program that
ordinarily would include numerical goals and timetables by which the contractor’s progress can
be gauged.” Nat’l Bank of Commerce of San Antonio v. Marshall, 628 F.2d 474, 475-76 (5th
Cir. 1980); see also United States v. Miss. Power & Light Co., 638 F.2d 899, 905 (5th Cir. 1981)
(“[Executive Order 11246] states that, with a few exceptions [which do not apply here], all
government contracts shall include a clause requiring the party contracting with the
government to take affirmative action to increase the hiring of members of racial minorities
and other traditionally disadvantaged groups.”).
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No. 06-31199
of qualified minorities in the Laborers job group,” which includes the Lineman
Helper position. The subject AAP stated that there were eleven persons
employed in the Laborers job group at the time the subject AAP was prepared.
Of that total, one (representing 9.1 percent of the total) was a minority. As
compared to the availability of minorities having the requisite skills in the
reasonable recruitment area, minorities were found to be underutilized by 33.4
percent, or by three minorities. DEMCO therefore projected the hiring of two
minorities by August 31, 2003, provided there were openings and the minorities
were otherwise qualified. According to the subject AAP, “the ultimate goal . . .
is to eradicate any deficiencies that pertain to minority . . . placement.”
On April 29, 2005, DEMCO filed a motion for summary judgment seeking
to have this matter dismissed on the grounds that Sitman and Self did not have
actual or apparent authority to make the alleged statements, such that they are
not imputable to DEMCO, and that the subject AAP provided a legitimate,
nondiscriminatory reason for hiring a minority to fill the Lineman Helper
position. On August 25, 2005, the magistrate judge found that Sitman and Self
were not actually or apparently authorized to make the statements in question
and such statements are therefore not imputable to DEMCO. The magistrate
judge, however, denied DEMCO’s motion for summary judgment because
genuine issues of material fact remained as to whether DEMCO’s AAP and
hiring practices violate Title VII. The magistrate judge found that, even though
DEMCO is authorized by the RUS to take affirmative action to overcome the
effects of prior discrimination, it had failed to show whether a “conspicuous
[racial] imbalance” existed with respect to the particular job category at issue,
justifying its minority hiring goals. More specifically, DEMCO “failed to present
sufficient evidence regarding the purpose, duration, and effect of its affirmative
action plan on third parties . . . .”
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No. 06-31199
On July 31, 2006, DEMCO filed a second motion for summary judgment
in which it presented additional evidence and arguments concerning the subject
AAP and accompanying hiring policies in an effort to resolve the disputed issues
of material fact discussed in the magistrate judge’s prior ruling. Finding the
newly presented evidence sufficient, on September 14, 2006, the magistrate
judge issued an order granting DEMCO’s second motion for summary judgment
and entered judgment dismissing Sharkey’s suit. The magistrate judge first
determined that a genuine issue of material fact may exist as to whether
Sharkey is able to establish a prima facie case of race-based discrimination
under the burden-shifting framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973). Nevertheless, the magistrate judge found that
the subject AAP provided a legitimate, nondiscriminatory rationale for the
decision to hire McCray over the other applicants, including Sharkey. Further,
the magistrate judge concluded that Sharkey did not satisfy his burden of
proving that the subject AAP was invalid, and hence a pretextual justification
for race-based discrimination.
On September 25, 2006, Sharkey filed a motion for new trial, which the
magistrate judge construed as a motion to amend or alter judgment pursuant to
Federal Rule of Civil Procedure 59(e). The magistrate judge denied Sharkey’s
motion on October 19, 2006. Sharkey then took this appeal.5
5
As an initial matter, DEMCO contends that this court is without jurisdiction over
Sharkey’s appeal because his Notice of Appeal, filed on November 15, 2006, refers to “the final
judgment of the Honorable Christine Noland, Magistrate Judge, dismissing Plaintiff’s action
via the granting of defendant’s Motion for Summary Judgment on the 19th day of October,
2006.” DEMCO asserts that the denial of a motion to alter or amend a judgment is not
separately appealable from the judgment that it seeks to alter or amend. Because Sharkey
references in his Notice of Appeal the magistrate judge’s October 19, 2006, order denying his
motion to alter or amend the judgment, but not the September 14, 2006, order and judgment
granting DEMCO’s motion for summary judgment and dismissing his suit, DEMCO argues
that this court does not have jurisdiction to consider Sharkey’s appeal.
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No. 06-31199
II. STANDARD OF REVIEW
We review a district court’s summary judgment ruling de novo, applying
the same standard as the district court. Wyatt v. Hunt Plywood Co., 297 F.3d
405, 408 (5th Cir. 2002). A party is entitled to summary judgment only if “the
pleadings, the discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). On a motion
for summary judgment, this court must view the facts in the light most favorable
to the nonmoving party and draw all reasonable inferences in its favor. See
Hockman v. Westward Commc’ns, L.L.C., 407 F.3d 317, 325 (5th Cir. 2004). In
reviewing the evidence, this court must therefore “refrain from making
credibility determinations or weighing the evidence.” Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).
III. DISCUSSION
Title VII prohibits an employer from failing or refusing to hire an
individual “because of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1). A plaintiff can prove intentional
This argument is without merit. We have held that “a party does not forfeit the right
to appeal by designating the wrong judgment if it is clear which judgment he is appealing.”
Osterberger v. Relocation Realty Serv. Corp., 921 F.2d 72, 73 (5th Cir. 1991) (citing Foman v.
Davis, 371 U.S. 178, 181 (1962)); see also Sanabria v. United States, 437 U.S. 54, 68 n.21
(1978) (explaining that “[a] mistake in designating the judgment appealed from is not always
fatal, so long as the intent to appeal from a specific ruling can fairly be inferred by probing the
notice and the other party was not misled or prejudiced”). Sharkey stated in his Notice of
Appeal that he was appealing the “final judgment . . . dismissing Plaintiff’s action via the
granting of defendant’s motion for summary judgment . . . .” Although it is true that plaintiff
provided an incorrect date for this order and judgment, it is nonetheless clear that he intended
to appeal the September 14, 2006, order. Moreover, DEMCO has not asserted that it was
somehow misled or otherwise prejudiced in any way by Sharkey’s Notice of Appeal.
Accordingly, Sharkey’s Notice of Appeal was not defective, and we have jurisdiction over
Sharkey’s appeal of the magistrate judge’s September 14, 2006, final judgment dismissing his
suit by the grant of DEMCO’s motion for summary judgment.
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No. 06-31199
discrimination through either direct or circumstantial evidence. Wallace v.
Methodist Hosp. Sys., 271 F.3d 212, 219 (5th Cir. 2001). Where, as here, the
plaintiff offers circumstantial evidence, we apply the familiar framework set
forth in McDonnell Douglas. To prevail under that framework, the plaintiff
must establish a prima facie case from which discrimination may be inferred.
Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003). To establish this prima
facie case, the plaintiff must show: (1) that he is a member of a protected class;
(2) that he applied and was qualified for a job for which the employer was
seeking applicants; (3) that, despite his qualifications, he was rejected; and (4)
that, after his rejection, the position remained open and the employer continued
to seek applicants from persons of plaintiff’s qualifications. See McDonnell
Douglas, 411 U.S. at 802; Haynes v. Pennzoil Co., 207 F.3d 296, 300 (5th Cir.
2000). The burden then shifts to the defendant to produce a legitimate,
nondiscriminatory reason for the failure or refusal to hire the plaintiff. Laxton,
333 F.3d at 578. If the defendant meets its burden, the plaintiff then bears the
ultimate burden of proving that the defendant’s proffered legitimate
nondiscriminatory reason is a pretext for discrimination. Id. To carry this
burden, the plaintiff must rebut each nondiscriminatory reason articulated by
the defendant. Id.
On appeal, DEMCO does not contest the district court’s determination that
it was not entitled to summary judgment on the ground that Sharkey is unable
to prove the elements of his prima facie case.6 Rather, assuming arguendo that
6
We note here that the magistrate judge’s denial of summary judgment on the issue
of whether Sharkey could prove the elements of his prima facie case was proper, but not for the
reasons provided below. The magistrate judge refused to grant summary judgment to DEMCO
because she held that there was a genuine issue of material fact as to whether Sharkey was
qualified for the Lineman Helper position. Specifically, DEMCO presented evidence below that
it did not hire Sharkey because Mike Ballard, the person who would have been Sharkey’s
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No. 06-31199
Sharkey can prove the elements of his prima facie case of discrimination,
DEMCO nonetheless contends that it has advanced a legitimate,
nondiscriminatory rationale for hiring McCray, a minority, to fill the vacant
Lineman Helper position. Namely, DEMCO asserts that its challenged
employment decision was made pursuant to its internal hiring procedures, which
included consideration of the subject AAP.
The Supreme Court has held that, in the Title VII context, the existence
of an affirmative action plan can provide a legitimate, nondiscriminatory
rationale for an employer’s decision as contemplated by the analytical
framework set forth in McDonnell Douglas. Johnson v. Transp. Agency, Santa
Clara County, Calif., 480 U.S. 616, 626 (1987); see also United Steelworkers of
Am. v. Weber, 443 U.S. 193, 208 (1979) (“We therefore hold that Title VII’s
prohibition . . . against racial discrimination does not condemn all private,
voluntary, race-conscious affirmative action plans.”). Where, as here, an
affirmative action plan is articulated as the basis for the employer’s decision,
supervisor (and is now deceased), apparently told Martin, DEMCO’s human resources
manager, not to hire Sharkey because he was “obnoxious and arrogant.” On this basis,
DEMCO argued that Sharkey was not qualified for the position. In response, Sharkey
presented evidence in the form of an unsworn declaration from an employee of DEMCO who
worked with Ballard that Ballard in fact liked Sharkey and had wanted him to be hired to fill
the vacant Lineman Helper position.
The magistrate judge should not have considered DEMCO’s evidence, nor Sharkey’s
rebuttal evidence, when evaluating whether Sharkey could prove that he was qualified for the
position as a necessary element of his prima facie case. We have stated that “[o]nly objective
requirements may be used in making” the argument that a person is not qualified for a
position. Johnson v. Louisiana, 351 F.3d 616, 622 (5th Cir. 2003). “Otherwise, an employer
could ‘utilize wholly subjective standards by which to judge its employees’ qualifications and
then plead lack of qualification when its promotion process . . . is challenged as
discriminatory.’” Id. (quoting Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 681 (5th Cir.
2001)). Because it is undisputed that Sharkey had achieved the minimum test scores
necessary to be considered for the Lineman Helper position, that evidence should have been
deemed sufficient to establish that Sharkey was qualified for the position, and accordingly to
deny DEMCO’s motion for summary judgment on this aspect of Sharkey’s prima facie case.
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“the burden shifts to the plaintiff to prove that the employer’s justification is
pretextual and the plan is invalid.” Johnson, 480 U.S. at 626. The Johnson
Court further explained:
As a practical matter, of course, an employer will generally seek
to avoid a charge of pretext by presenting evidence in support of
its plan. That does not mean, however, as petitioner suggests,
that reliance on an affirmative action plan is to be treated as an
affirmative defense requiring the employer to carry the burden of
proving the validity of the plan. The burden of proving its
invalidity remains on the plaintiff.
Id. at 626-27.
To determine whether Sharkey has met his burden, we must look to the
Supreme Court’s decision in Weber, which “addressed the question whether the
employer violated Title VII by adopting a voluntary affirmative action plan
designed to ‘eliminate manifest racial imbalances in traditionally segregated job
categories.’” Id. at 627-28. There, the Court upheld the employer’s decision to
select less senior African-American applicants over the white respondent
because the “purposes of the plan mirror those of [Title VII].” Weber, 443 U.S.
at 208. The Weber Court explained: “Both were designed to break down old
patterns of racial segregation and hierarchy. Both were structured to ‘open
employment opportunities for Negroes in occupations which have been
traditionally closed to them.’” Id. (quoting 110 CONG. REC. 6548 (1964) (remarks
of Sen. Humphrey)). In upholding the validity of the Weber employer’s
affirmative action plan, the Court noted the following: (1) the plan “[did] not
unnecessarily trammel the interests of the white employees” as it “[did] not
require the discharge of white workers and their replacement with new black
hirees”; (2) the plan did not “create an absolute bar to the advancement of white
employees” because half of those trained in the program were to be white; and
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No. 06-31199
(3) “the plan [was] a temporary measure . . . not intended to maintain racial
balance, but simply to eliminate a manifest racial imbalance.” Id.; see also Doe
v. Kamehameha Sch./Bernice Pauahi Bishop Estate, 470 F.3d 827, 840 (9th Cir.
2006) (“We recently distilled the Court’s analysis this way: private employers’
affirmative action plans (1) must respond to a manifest imbalance in the work
force; (2) must not ‘unnecessarily trammel[]’ the rights of members of the non-
preferred class or ‘create an absolute bar to their advancement’; and (3) must do
no more than is necessary to attain a balance.”); Dallas Fire Fighters Ass’n v.
City of Dallas, Tex., 150 F.3d 438, 442 (5th Cir. 1998) (“To determine the validity
of the appointment we must examine whether it was justified by a manifest
imbalance in a traditionally segregated job category and whether the
appointment unnecessarily trammeled the rights of nonminorities or created an
absolute bar to their advancement.”). The Weber decision “was grounded in the
recognition that voluntary employer action can play a crucial role in furthering
Title VII’s purpose of eliminating the effects of discrimination in the workplace,
and that Title VII should not be read to thwart such efforts.” Johnson, 480 U.S.
at 630.
Analyzing DEMCO’s subject AAP in light of Weber, we have no difficulty
concluding that the subject AAP is valid, and thus can serve as DEMCO’s
legitimate, nondiscriminatory rationale for hiring McCray over other white
candidates, including Sharkey. As an initial matter, Sharkey does not argue on
appeal that there was not a manifest racial imbalance in DEMCO’s workforce,
or otherwise attempt to refute the magistrate judge’s well-reasoned
determination, in her order granting DEMCO’s second motion for summary
judgment, that no genuine issue of material fact existed as to whether there was
a manifest racial imbalance in DEMCO’s workforce, particularly as to the job
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No. 06-31199
type in question. It is axiomatic that issues not briefed on appeal are waived.
See Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998). Sharkey does argue
on appeal that the subject AAP operated as an absolute bar to employment for
white persons and that the subject AAP was not a temporary measure but rather
a perpetual one. We address each argument in turn.
To support his claim that the subject AAP served as an absolute bar to
employment for white persons and/or unnecessarily trammeled their rights,
Sharkey presented evidence below that DEMCO personnel, including two
members of the board of directors, Sitman and Self, supposedly informed him
that it was “futile” to apply for the Lineman Helper position because the position
was reserved for African-American applicants.7 We have previously stated that
“[e]mployers are liable under Title VII, in accordance with common law agency
principles, for the acts of employees committed in the furtherance of the
employer’s business.” Long v. Eastfield Coll., 88 F.3d 300, 306 (5th Cir. 1996)
(citing Moham v. Steego Corp., 3 F.3d 873, 876 (5th Cir. 1993), cert. denied, 510
U.S. 1197 (1994)). We have also stated that “[a]n oral statement exhibiting
discriminatory animus may be used to demonstrate pretext or . . . it may be used
as additional evidence of discrimination.” Laxton, 333 F.3d at 583 (citing Russell
v. McKinney Hosp. Venture, 235 F.3d 219, 225 (5th Cir. 2000)). Typically, but
not always, the person with authority over the employment decision is the one
who executes the action against the employee. Russell, 235 F.3d at 226. “If the
7
This evidence was in the form of Sharkey’s own deposition testimony. He did not
provide any affidavit or deposition testimony from any of the DEMCO employees or directors
in support of his account of events. Though not dispositive of the issue before us on appeal, we
note here that we have previously accorded less weight in the summary judgment context to
“[u]nsupported allegations or affidavit or deposition testimony setting forth ultimate or
conclusory facts and conclusions of law . . . .” Clark v. America’s Favorite Chicken Co., 110 F.3d
295, 297 (5th Cir. 1997).
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No. 06-31199
employee can demonstrate that others had influence or leverage over the official
decisionmaker, and thus were not ordinary coworkers, it is proper to impute
their discriminatory attitudes to the formal decisionmaker.” Id. at 226-27
(citing, as examples, Long, 88 F.3d at 307; Hass v. ADVO Sys., Inc., 168 F.3d
732, 734 n.1 (5th Cir. 1999)).
Here, the magistrate judge determined that neither Sitman nor Self had
actual or apparent authority to make their alleged statements on behalf of
DEMCO. Accordingly, the magistrate judge found that their alleged statements
were not imputable to DEMCO, and thus the statements could not be used to
show the subject AAP and DEMCO’s application/hiring process operated as an
absolute bar to the advancement of whites or unnecessarily trammeled their
rights.8 On appeal, Sharkey conclusorily alleges in his brief that “[t]his position
was held by a black person, and was held open for a black person simply because
of race. The statements . . . by board members and generally known to the
public suggest are [sic] very clear, persuasive evidence that this is a position for
blacks only.” Sharkey, however, apparently no longer contends that the
statements of Sitman and Self are imputable to DEMCO, an argument which
was made below and rejected by the magistrate judge. Sharkey certainly does
not point to any evidence in the record that supports an inference that Sitman
or Self had any influence or leverage over the employment decision at issue.
Even if we were to find that Sharkey adequately presented this issue for
appellate review, the unrebutted evidence in the record shows that the alleged
statements were not imputable to DEMCO. Under Board Policy No. BD-2,
which establishes the policy governing the relationship between the board of
8
The magistrate judge reached the same conclusion as to the alleged statements by
DEMCO employees.
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No. 06-31199
directors and the general manager, the board of directors delegates to the
general manager the “authority to hire capable personnel within established
wage scales, train and supervise, and replace them.” Accordingly, pursuant to
this delegation of authority, the board of directors is not to exercise any decision-
making authority concerning the hiring of DEMCO employees. BD-2 also
provides that the directors are to “refrain, as individuals, from discussing
management problems with the personnel of the corporation, except in cases
where the board of directors may deem it necessary to confer with personnel at
regular or special meetings of the board.” Locklar, DEMCO’s general manager,
indicated in an affidavit that the Lineman Helper position was not discussed at
any board of directors meeting between the date when it became vacant and the
date when it was filled.
Additional evidence leads us to the conclusion that the subject AAP did not
operate as an absolute bar to employment for whites or unnecessarily trammel
their rights. DEMCO presented competent evidence in the form of the affidavit
and deposition testimony of Martin, its human resources manager, indicating
that its application and hiring process were nondiscriminatory. Specifically, the
uncontroverted evidence establishes the following: “[t]hat selection of an
employee by DEMCO entails consideration of his/her general background,
education, training, experience, aptitude for a certain kind of work, character
and probability of long term employment as per Board Policy No. LR-1”; “[t]hat
DEMCO hires and promotes employees without regard to race, color, religion,
sex, handicap, or national origin”; that all applicants must take the TABE and
ATBs; that only candidates with a ‘high’ or ‘medium’ score are considered for
interview based upon their qualifications; that candidates are selected for
interview at DEMCO’s sole discretion; “[t]hat an applicant’s race does not appear
on his/her application and that DEMCO can only ascertain the race of an
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No. 06-31199
applicant at the time of interview, assuming it elects to interview the applicant”;
that DEMCO received forty applications for the Lineman Helper position; that
Sharkey and other white applicants were considered for the position; that
Sharkey was not selected for an interview; that DEMCO interviewed multiple
applicants, white and African-American, for the position; that DEMCO
ultimately hired McCray, a African-American applicant, “because he scored a
‘medium’ on the test, had an engineering and electronics background with
previous electronics experience in the wireless communications field, was an
engineer in training, was a native and resident of Greensburg, had a clean
driving record, and had previously worked at DEMCO in the summer of 1990 as
a substation technician”; and that McCray, as a qualified minority applicant,
enabled DEMCO to fulfill, in part, its hiring goal for Job Group 8-A for the year
ending on August 31, 2003. Further, Martin testified at her deposition that a
“hiring goal” of two African-Americans did not necessarily mean that DEMCO
would hire two African-Americans to fill vacant positions. She stated that “I’m
going to hire the two most qualified people that I can find.”
Sharkey failed to controvert this evidence; in fact, he did not present any
competent evidence that could create a genuine issue of material fact as to
whether the subject AAP and DEMCO’s concomitant application and hiring
processes served as an absolute bar to the advancement of whites or
unnecessarily trammeled their rights. Rather, the evidence before the
magistrate judge on summary judgment showed quite clearly that DEMCO
based its decision to hire McCray first and foremost on his qualifications and
background. That McCray is African-American, and as such helped DEMCO
fulfill in part its yearly goal under the subject AAP, was secondary.
Consideration of McCray’s race in this context, as a “plus” in addition to the
applicant’s qualifications, was therefore permissible. See Johnson, 480 U.S. at
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No. 06-31199
638 (discussing Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 316-19 (1978)).
Moreover, the subject AAP did not result in or require the discharge of white
employees and their replacement with new African-American hirees, nor is there
any competent evidence that DEMCO would not or will not hire qualified white
applicants for similar positions. Accordingly, we find that summary judgment
was appropriate as to Sharkey’s challenge of the subject AAP as an absolute bar
to the advancement of whites or as unnecessarily trammeling their interests.
Turning to Sharkey’s second argument against the validity of the subject
AAP, Sharkey asserts that he presented sufficient evidence to create a genuine
issue of material fact as to whether the subject AAP does more than is necessary
to attain a racial balance because it is a perpetual, not a temporary, measure.
See Weber, 443 U.S. at 208 (stating that “the plan is a temporary measure; it is
not intended to maintain racial balance, but simply to eliminate a manifest
racial imbalance”). Specifically, he points to evidence obtained during discovery
showing that “in the more than ten years and fourteen hundred pages of
[DEMCO] board minutes . . . , there is no discussion of affirmative action goals,
there is no mention of approving the affirmative action plan, and, in fact, there
is not even one single mention of the words ‘affirmative action.’” Sharkey also
references the deposition testimony of Martin, in which she stated that she had
“never thought about not needing [an affirmative action plan],” and that any
decision as to ending DEMCO’s use of AAPs would likely be made in conjunction
with RUS.
We do not find Sharkey’s arguments compelling in this regard. First, our
review of the proceedings below shows that Sharkey did not present any
argument as to, or evidence of, the DEMCO board minutes to the magistrate
judge through his oppositions to DEMCO’s motions for summary judgment. In
fact, the evidence concerning the DEMCO board minutes was not made a part
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of the summary judgment record. Therefore, that evidence will not be
considered here. See Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 (5th Cir.
1992) (“Although on summary judgment the record is reviewed de novo, this
court, for obvious reasons, will not consider evidence or arguments that were not
presented to the district court for its consideration in ruling on the motion.”). As
to the evidence that we will consider, namely Martin’s deposition testimony,
which was presented to the magistrate judge, this evidence, at most, merely
establishes that DEMCO could not conclusively state when its use of one-year
AAPs would end. It does not tend to show that the subject AAP was intended to
maintain a racial balance, nor does it tend to prove that DEMCO’s use of AAPs
is of unlimited duration, particularly when viewed in the context of the
uncontroverted evidence provided by DEMCO.
Specifically, it is undisputed that DEMCO prepares a new AAP each year
to comply with the terms of its lending agreement with RUS, which, as a federal
agency, requires DEMCO to meet its affirmative action obligations under
Executive Order 11246. Section V of the subject AAP, entitled “Goals and
Timetables,” states that the “Utilization Analysis-Statistics and Goals sheets
that are an integral part of this plan reflect the Corporation’s Expected Goal
Hires (goals) by August 31, 2003.” The subject AAP expressly contemplated that
job openings or newly established jobs, as they occur, were to be reviewed “in
consonance with the minority . . . goals in the Corporation’s goals and
timetables.” Those goals were based on detailed statistical analyses that
calculated DEMCO’s underutilization of minorities in its workforce for various
job categories, using labor force and statistical availability data that was up-to-
date as of the commencement of the subject AAP in 2002. DEMCO’s minority
hiring goals changed from year-to-year based on an annual reassessment of the
company’s underutilization of minorities in various areas of its workforce.
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No. 06-31199
Moreover, these goals were precisely that – goals. The subject AAP did not
mandate that DEMCO must hire a certain number of minorities for the 2002-03
period to fill specific positions. In fact, the subject AAP emphasized
“employment of individuals who are qualified for the new or vacant positions,”
indicating that race was to be considered as a “plus” only if the applicant was
otherwise qualified for the position. Thus, given the summary judgment record
before us in this case, we find that Sharkey has not created a genuine issue of
material fact as to whether the subject AAP was anything more than a
temporary measure designed to eliminate a manifest racial imbalance in
DEMCO’s workforce.
In sum, Sharkey has presented insufficient evidence to carry his burden
of proving that DEMCO’s subject AAP was invalid, and hence its justification for
not hiring him pretextual. Because Sharkey is unable to rebut this legitimate,
nondiscriminatory rationale articulated by DEMCO for its employment decision
concerning the vacant Lineman Helper position, we need not address DEMCO’s
other proffered reason for not interviewing Sharkey, i.e., that the person who
would have supervised the new Lineman Helper did not like Sharkey and found
him to be arrogant and obnoxious. See Laxton, 333 F.3d at 578 (“The plaintiff
must rebut each nondiscriminatory reason articulated by the employer.”)
(emphasis added). While it may be true, in light of the evidence discussed supra
note 6, that an issue of material fact exists as to whether that particular
rationale offered by DEMCO was false or pretextual, it does not necessarily
follow that all rationales articulated by DEMCO are by extension unworthy of
credence. Otherwise, there would be no reason to require a plaintiff to rebut
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No. 06-31199
each nondiscriminatory reason articulated by the employer.9 Consequently,
because the subject AAP was a legitimate, nondiscriminatory rationale for
DEMCO’s decision to hire an otherwise qualified African-American applicant,
we conclude that summary judgment was appropriate as to Sharkey’s reverse
race discrimination claim under Title VII.
IV. CONCLUSION
For these reasons, the magistrate judge’s order and judgment granting
DEMCO’s motion for summary judgment and dismissing with prejudice
Sharkey’s claims are AFFIRMED.
9
We find this rule particularly apt here given that the decision not to interview Sharkey
was just one aspect of a lengthy hiring process that included interviews of several applicants,
white and African-American, and ultimately resulted in the hiring of McCray several months
later.
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