where multiple candidates qualified, CPA certification is a “legitimate, nondiscriminatory reason[ ] for selecting one manager over another”
How later courts described this case
- where multiple candidates qualified, CPA certification is a “legitimate, nondiscriminatory reason[ ] for selecting one manager over another”
Written by the judges who cited it.
The opinion
Case: 10-10773 Document: 00511586760 Page: 1 Date Filed: 08/29/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 29, 2011
No. 10-10773
Lyle W. Cayce
Clerk
CARL MANORA,
Plaintiff - Appellant
v.
PATRICK R. DONAHOE, as Postmaster of United States Postal Service,
Defendant - Appellee
Appeal from the United States District Court
for the Northen District of Texas
USDC No. 3:07-CV-1747
Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Carl Manora, an African-American, lost his position as
an audit manager for the United States Postal Service (“USPS”) Office of
Inspector General (“OIG”) in a competitive reselection process. Manora claims
that he was not reselected for the position because of race and sex discrimination
in violation of Title VII of the Civil Rights Act of 1964. The district court
*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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No. 10-10773
granted USPS’s1 motion for summary judgment, finding that USPS articulated
legitimate reasons for not reselecting Manora, and that Manora failed to present
sufficient evidence that those reasons were a mere pretext for discrimination.
For the following reasons, we affirm.
I
OIG investigates and audits USPS’s operations to identify and eliminate
fraud and abuse. Manora began working as an auditor for OIG in June 1997.
By 2003, Manora had worked his way up to a “team leader” position with OIG’s
Network Operations and Logistics (“NOL”) directorate in Dallas, Texas. In May
2003, during a reorganization of OIG, Manora was promoted to an “audit
manager” position with the same directorate. At the time, Joseph Oliva, the
audit director of the NOL directorate, expressed “concerns over [Manora’s]
management style.” Oliva would have “preferred a manager who was more
‘hands-on.’”
In the summer of 2004, a recently installed Inspector General required all
incumbent audit managers to reapply for their positions in a competitive
reselection process. The incumbent audit managers apparently had been
appointed without input from their respective audit directors, and the Inspector
General was concerned that the appointments had not been open and
competitive.2 On August 24, 2004, OIG issued an “internal vacancy
1
Patrick Donahoe is the Postmaster General of USPS and the named defendant in this
action. We refer to USPS and not Donahoe for clarity.
2
Manora himself testified that the incumbent audit managers had received their
positions by “submit[ting] their names for positions or jobs that they would rather work in.”
There were “[n]o vacancy announcements,” and “no one” submitted a specific application for
a position as an audit manager.
2
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announcement” identifying forty-two available audit manager positions with
fourteen different directorates in locations across the country. The positions
were open to any qualified OIG employee and were filled pursuant to a “proposed
plan for audit manager recompetition” (the “Recompetition Plan”). There is no
allegation that the reselection process itself was discriminatory or otherwise
improper.
Under the Recompetition Plan, a “reviewing panel” of audit directors
assigned candidates a score of one to three in eight different categories.3 A list
of candidates and their scores was then distributed to the audit directors of each
directorate. The audit directors interviewed the candidates using a standard list
of questions. Finally, each audit director, acting as the “selecting official” for his
or her directorate, made final selection decisions. OIG advised the selecting
officials “to use their best judgment when making selections considering the
education, background and experience of the candidate and their individual
assessment of which candidate is best suited for the position.”
Manora participated in the reselection process and applied for a total of six
audit manager positions with two different directorates in three locations.
Specifically, Manora applied for positions with the NOL directorate and the
Delivery and Retail (“DR”) directorate, each of which offered one position in
Atlanta, Georgia; Arlington, Virginia; and Dallas, Texas. Oliva, Manora’s direct
3
Specifically, candidates were scored on four “desirable qualifications” and four
“evaluation factors.” The desirable qualifications included: (1) professional certifications; (2)
previous supervisory experience in audits; (3) experience in leading complex, multi-site audits;
and (4) specialized auditing experience. The evaluation factors included: (1) knowledge of
accounting and auditing theory, concepts, and standards; (2) ability to provide the full range
of technical and administrative supervision; (3) ability to liaison with auditees and other
interested parties; and (4) ability to develop and review audit reports.
3
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supervisor at the time, was the selecting official for the three NOL positions.
Debra Pettitt, the audit director of the DR directorate, was the selecting official
for the three DR positions.
Manora scored highly in the reviewing panel’s assessment and was among
the top candidates for each position. There is no dispute in this case that
Manora is at least qualified to be an audit manager. Nonetheless, Manora was
not selected for an audit manager position during the reselection process. Oliva
instead selected three Caucasians (two males and one female), while Pettitt
selected three African-American women. Relevant here, Oliva selected Vicky
Walker (a Caucasian female) for the NOL position in Dallas and Jerry Werking
(a Caucasian male) for the NOL position in Arlington. Oliva earlier had written
a recommendation letter for Walker to use in the reselection process.4 The letter
asserts, inter alia, that Walker “is an outstanding leader” and “widely regarded
as one of OIG’s most effective managers.” According to Oliva, he wrote the
recommendation letter because Walker “was the only person to request a
recommendation from me at that time,” and “her role supervising audits
qualified her for the position because that is what she was doing.”
After the reselection process, Manora was assigned, at his request, to an
auditor position with the DR directorate in Dallas. Manora did not think it
would be a “good idea” to continue working for Walker in the NOL directorate
because Walker had been Manora’s subordinate. Approximately one year later,
in August 2005, Manora was promoted to an audit manager position in the DR
directorate in Dallas.
4
Walker applied for a total of four audit manager positions with the NOL, DR, Network
Operations Processing (“NOP”), and Field Operations (“FO”) directorates in Dallas.
4
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On January 18, 2005, Manora filed a complaint with the Equal
Employment Office alleging that USPS discriminated against him on the basis
of race and sex. An administrative law judge (“ALJ”) dismissed the complaint.
Manora appealed to the Office of Federal Operations, which upheld the ALJ’s
decision. Manora filed this action on October 16, 2007, asserting race and sex
discrimination claims under Title VII of the Civil Rights Act of 1964. The
district court granted USPS’s motion for summary judgment, finding that USPS
had articulated legitimate reasons for not reselecting Manora, and that Manora
had not presented sufficient evidence that those reasons were a mere pretext for
discrimination. Manora appealed.
Although Manora initially pursued claims with respect to all six audit
manager positions for which he was not selected, Manora has expressly limited
the issues on appeal to his “non-selection from the NOL Dallas, Texas and
Arlington[,] VA directorate . . . under the leadership of Joseph Oliva.”
Accordingly, our review is limited to these two alleged instances of
discrimination, and Manora has waived any arguments with respect to other
alleged instances of discrimination.5 See, e.g., Matthews v. Remington Arms Co.,
Inc., 641 F.3d 635, 641 (5th Cir. 2011) (finding argument made to district court
but not briefed on appeal waived); FED. R. APP. P. 28(a)(9)(A) (requiring
appellant’s brief to contain appellant’s “contentions and the reasons for them”).
II
We review summary judgment de novo, using the same standards as the
district court. Holt v. State Farm Fire & Cas. Co., 627 F.3d 188, 191 (5th Cir.
5
Manora also has not briefed on appeal any other alleged instances of discrimination.
5
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2010). Summary judgment is proper when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” FED.
R. CIV. P. 56(a). We view the evidence and draw reasonable inferences in favor
of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986).
III
Title VII makes it unlawful for an employer to “fail or refuse to hire or to
discharge any individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, . . . sex, or national origin.” 42 U.S.C.
§ 2000e–2(a)(1). In Title VII cases, the inquiry is “whether the defendant
intentionally discriminated against the plaintiff.” U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 715 (1983) (quotation and citation omitted);
Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir. 2007).
At summary judgment, we analyze Title VII claims under the familiar
McDonnell Douglas burden-shifting framework. See McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-03 (1973); Burrell v. Dr. Pepper/Seven Up Bottling
Grp., Inc., 482 F.3d 408, 411-12 (5th Cir. 2007). Under this framework, the
plaintiff has the initial burden to establish a prima facie case of discrimination.6
Alvarado, 492 F.3d at 611. If the plaintiff establishes a prima facie case, an
inference of intentional discrimination arises and the burden of production shifts
6
To establish a prima facie case of discrimination under Title VII, a plaintiff must
show: (1) he is a member of a protected class; (2) he sought and was qualified for the position
in question; (3) he suffered an adverse employment action; and (4) others similarly situated
but outside the protected class were treated more favorably. Alvarado, 492 F.3d at 611.
6
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to the employer to articulate a legitimate, nondiscriminatory reason for its
adverse employment action. Id. The employer’s reason may be subjective, as
long as it is legitimate and has a “clear and reasonably specific” basis. Id. at
616; Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 882 (5th Cir. 2003). If
the employer carries its burden of production, the burden then shifts back to the
plaintiff to offer sufficient evidence to create a genuine issue of material fact that
either (1) the employer’s proffered reason is not true and is instead a pretext for
discrimination, or (2) the employer’s reason, while true, is only one of the
reasons for its conduct, and another “motivating factor” is the plaintiff’s
protected characteristic. Alvarado, 492 F.3d at 611 (quoting Rachid v. Jack in
the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)).
On appeal, USPS does not contest that Manora has established a prima
facie case of discrimination. Instead, USPS asserts that it is entitled to
summary judgment because it has articulated legitimate reasons for not
reselecting Manora, and Manora has not presented sufficient evidence for a
reasonable jury to conclude that those reasons were a mere pretext for
discrimination.
A
USPS has articulated legitimate, nondiscriminatory reasons for not
reselecting Manora for the Dallas and Arlington audit manager positions. USPS
asserts that it did not reselect Manora primarily because of his “passive” and
“standoffish” management style. According to Oliva, Manora “preferred to
motivate his employees by coaching and mentoring rather than rolling up his
sleeves.” But because Oliva’s audit teams tended to be small, Oliva needed
“player-coaches” who were more “hands-on” and “directly” and “fully engaged”
7
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in the audit process. Oliva thought that Manora’s “team could have used his
more active involvement with their work.”
Oliva’s assessment of Manora’s management style was based on
reasonably specific observations between 2000 and 2004. For example, during
one meeting with USPS managers involving a “contentious” audit, Oliva recalls
that Manora simply “observed the discussion with minimal participation,” while
Walker was “actively discussing the facts and details and defending the audit
findings.” Oliva thought Manora “just didn’t engage at the level I thought was
necessary.” Similarly, Oliva states that he “would call [Manora] to get
information from time to time,” but Manora “would frequently refer me to
[Walker] for the details.” This “had the effect of making [Walker] appear to be
more knowledgeable and better informed than [Manora].” To be sure, Oliva
thought that Manora was “qualified and contributed.” Oliva just thought that
Walker “was more engaged and contributed more.” Oliva ultimately selected
Walker for the Dallas audit manager position based on an “evaluation of which
individual I thought my directorate could afford to lose least.”
In addition to Manora’s passive management style, Oliva asserts that he
selected Jerry Werking for the Arlington audit manager position because
Werking was more qualified than Manora. There is no dispute that Werking has
extensive experience leading and supervising audits. Moreover, Werking, unlike
Manora, is a Certified Public Accountant (“CPA”). And although both Werking
and Manora have received a Masters in Business Administration (“MBA”),
Werking’s MBA is in the specific field of accounting. Oliva reasoned that “since
[Werking’s] education, certifications and performance conducting audits was
8
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superior to [Manora’s], I could not justify the cost of moving [Manora] from
Texas to Virginia.”
Management style and professional qualifications generally are legitimate,
nondiscriminatory reasons for selecting one manager over another. See, e.g.,
Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 898-99 (5th Cir. 2002)
(recognizing that management style is a legitimate, nondiscriminatory reason
for an employment action); Schaaf v. Smithkline Beecham Corp., 602 F.3d 1236,
1243-44 (11th Cir. 2010); Gorence v. Eagle Food Ctrs., Inc., 242 F.3d 759, 766
(7th Cir. 2001). Here, there is no dispute that an OIG audit manager must be
“highly motivated,” “provide the full range of technical and administrative
supervision to staff,” and “maintain effective liaison with auditees, audit
organizations, and other interested parties.” Selecting Walker on the basis of
her active management style was legitimate in light of the demands of this
position. Similarly, an OIG audit manager must have a thorough “knowledge
of accounting” and be able to “develop and review written audit reports.” A CPA
certification and an MBA in accounting demonstrate a high level of training in
these areas. Manora has not pointed to any reason why an active management
style, a CPA, and a specialized MBA were not legitimate considerations in
USPS’s reselection process, and we conclude that they were.
B
Because USPS has articulated legitimate, nondiscriminatory reasons for
not reselecting Manora, the burden now shifts to Manora to present sufficient
evidence for a reasonable jury to conclude that USPS’s reasons were a mere
pretext for discrimination. A plaintiff may establish pretext by showing that the
employer’s proffered reasons are “false or ‘unworthy of credence.’” Laxton v. Gap
9
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No. 10-10773
Inc., 333 F.3d 572, 578 (5th Cir. 2003) (quoting Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 143 (2000)). “An explanation is false or unworthy of
credence if it is not the real reason for the adverse employment action.” Id. A
plaintiff also may establish pretext by showing that he was “clearly better
qualified” for the relevant position than the selected candidate. Price v. Fed.
Express Corp., 283 F.3d 715, 723 (5th Cir. 2002). To meet this standard, the
employee must demonstrate that “no reasonable person, in the exercise of
impartial judgment, could have chosen the candidate selected over the plaintiff
for the job in question.” Deines v. Tex. Dep’t of Protective & Regulatory Servs.,
164 F.3d 277, 280-81 (5th Cir. 1999). In other words, the disparity in
qualifications must be so wide “that no reasonable employer would have made
the same decision.” Id. at 282. Better education, work experience, and longer
tenure with a company do not necessarily establish that an applicant is clearly
better qualified for a position. Price, 283 F.3d at 723. Ultimately, the law
requires only that the employer’s decision is “somewhere within the realm of
reason.” Deines, 164 F.3d at 282. This is because the judicial system is not as
well suited to evaluate professional qualifications as those who have trained and
worked for years in the relevant field of endeavor. Id. at 280.
On appeal, Manora does not dispute that an active management style is
better suited to the demands of an OIG audit manager. Nonetheless, Manora
contends that he is “clearly better qualified” than Walker and Werking for an
audit manager position. We find that the record does not support Manora’s
contention.
Manora emphasizes that he was in fact an audit manager with OIG for
sixteen months, while “Walker was never an audit manager nor did she have
10
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audit manager functions during any of the 2000-2004 period.” There are several
holes in this argument. For one, although Walker was not an audit manager at
OIG from 2000-2004, she was an audit manager at the Air Force Audit Agency
from 1997-2000. At the Air Force Audit Agency, Walker was responsible for
“planning, coordinating, summarizing and reporting on the accuracy of Air Force
Financial Statements, real property assets, valued at over $40 billion.” Thus, it
appears that Walker gained substantial experience managing audits even before
joining OIG. Moreover, the record reveals that Walker was a “team leader” at
OIG. Manora testified at his deposition that “the team leader and audit
manager’s jobs are pretty much one and the same; just a changed name.” Both
positions, according to Manora, are “supervisory-type positions.” Thus, although
Walker may not have been an OIG audit manager in name, it appears that she
did perform similar functions in practice. Lastly, Manora himself acknowledged
that Walker was a competent manager. Manora testified that Walker was the
“only one” of his subordinates who “had detailed audit experience that could
actually do an audit . . . by herself.” Manora thus “assigned to [Walker] two or
three other people,” and Walker would “pretty much . . . do an audit with those
people” while Manora took “another group.” In short, contrary to Manora’s
assertions, the record indicates that Walker was a capable auditor with
substantial managerial experience.
Manora next points out that he has an MBA while Walker has only a
bachelor’s degree. Better education, however, does not necessarily establish
that an applicant is clearly better qualified for a particular position. Price, 283
F.3d at 723. The record reflects that Walker is well qualified in accounting. She
has a bachelor’s degree in accounting and, like Manora, is a Certified
11
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No. 10-10773
Government Financial Manager (“CGFM”). She also has received several
professional awards, including the Air Force Audit Agency’s Distinguished Audit
Manager Award and OIG’s Exceptional Performance Award. In light of Walker’s
substantial managerial experience and training, any disparity between Manora’s
and Walker’s qualifications is not so wide that no reasonable employer would
have selected Walker over Manora.
Similarly, Manora asserts that he has two professional certifications (i.e.,
CGFM and Certified Fraud Examiner (“CFE”)), while Werking has only one (i.e.,
CPA). We have no doubt that a CGFM and a CFE are worthy certifications, but
simply tallying them up is not probative of discriminatory intent. Nothing in the
record suggests that a CGFM and a CFE together are “clearly better” than a
CPA. Accordingly, Oliva’s preference for Werking’s CPA was not so
unreasonable that it must have been a pretext for discrimination. See Deines,
164 F.3d at 282 (finding that even if the employer “did not properly evaluate the
qualifications of the respective candidates,” and even if the plaintiff “was the
best qualified candidate,” the plaintiff “still would not have proved his case”
unless the qualifications were “so widely disparate that no reasonable employer
would have made the same decision”).
Finally, Manora suggests that Oliva’s stated reasons for hiring Walker are
“unworthy of credence” because Oliva was “biased.” Manora asserts that Oliva
initially objected to Manora’s appointment to an audit manager position in 2003
and later wrote a recommendation letter for Walker during the reselection
process. This evidence, however, is entirely consistent with Oliva’s stated (and
legitimate) reasons for not reselecting Manora. Oliva objected to Manora’s
appointment in 2003 because Oliva “had concerns over [Manora’s] management
12
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No. 10-10773
style” and “preferred a manager who was more ‘hands-on.’” Moreover, Oliva’s
recommendation letter asserts that Walker is “an outstanding leader” and
“widely regarded as one of the OIG’s most effective managers.” These are the
same legitimate, nondiscriminatory reasons that Oliva now gives for selecting
Walker over Manora. In other words, it may be that Oliva preferred Walker
from the start of the reselection process, but there is no evidence that he
preferred her for illegitimate or discriminatory reasons.
To summarize, USPS asserts that it selected Walker and Werking (and not
Manora) for the Dallas and Arlington audit manager positions based on their
particular management styles and professional qualifications. These are
legitimate, nondiscriminatory reasons for USPS’s employment action. Because
Manora has not put forward any evidence that USPS’s reasons were a mere
pretext for discrimination, nor that discrimination was a motivating factor for
USPS’s employment action, USPS is entitled to summary judgment.
IV
For the reasons stated, summary judgment is AFFIRMED.
13