Kenneth Nunley v. City of Waco

Case: 11-50119 Document: 00511590163 Page: 1 Date Filed: 09/01/2011

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

September 1, 2011

No. 11-50119 Lyle W. Cayce

Clerk

KENNETH W. NUNLEY

Plaintiff-Appellant

v.

CITY OF WACO

Defendant-Appellee

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:09-CV-197

Before KING, GARZA, and GRAVES, Circuit Judges.

PER CURIAM:*

Kenneth W. Nunley challenges the district court’s grant of a motion for

summary judgment in favor of Defendant City of Waco. For the reasons stated

herein, we affirm the ruling of the district court.

I

Plaintiff Kenneth Nunley has been an employee of the City of Waco (“the

City”) since May 1994, during which time several disputes occurred, all of which

are of relevance to the present litigation. In 1999, Nunley was involved in a

*

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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dispute with a fellow employee, Cynthia Simms, and both parties registered

complaints with their supervisors. In 2001, a department reorganization

resulted in Nunley being demoted to a non-supervisory position. Five white

employees received lesser demotions to supervisory positions, and Nunley

allegedly complained about this, though there is no documentation of it on

record. Finally, in 2004, an operations coordinator (“OC”) position came open,

and Nunley applied. Another person was selected, and Nunley subsequently

filed a complaint with the EEOC, alleging that the decision was racially

motivated.

In 2006, the City posted a job opening for another OC position in the Parks

and Recreation Department. The posting stated that a high school diploma was

required and an associate’s degree desired; that two years of previous

supervisory experience in a related field was required and athletic field

maintenance experience desired; and that pest applicator’s and irrigator’s

licenses were desired. Mr. Nunley, along with seven other individuals, applied

and, along with four other applicants, was selected to be interviewed by a panel

of four persons. The panel, which included Steve Miller, was chosen by Rusty

Black, the director of the Parks and Recreation Department.

After interviews, the panel chose Ken Griffin, a white male, over Nunley,

a black male, citing Griffin’s possession of an associate’s degree in turf

management and an irrigator’s license, his experience maintaining irrigation

systems and ballfields at Baylor University, and his favorable impression during

the interview. The panel concluded that Nunley, who had considerable

experience working for the city and a pest applicator’s license, was qualified for

the job, but not as qualified as Griffin.

Nunley subsequently filed a complaint with the EEOC, claiming race

discrimination. The City filed two responses to the complaint, citing the

foregoing reasons for choosing Griffin, referencing “certain incidents” which had

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“caused some reservations” about how well Nunley would get along with others,

and raising concerns about his leadership and communication skills. However,

in subsequent deposition testimony, Miller stated that he did not recall the

interview panel discussing how well Nunley got along with others and that he

did not know how well Nunley had performed as a supervisor. He did not

mention Nunley’s communication skills. The EEOC issued a determination

letter of discrimination.

Nunley filed suit, alleging discrimination under Title VII and basing his

claim on (1) an alleged conflict between Miller’s deposition testimony and the

City’s EEOC responses, (2) an assertion that he was “clearly better qualified”

than Griffin, and (3) the EEOC determination letter. Nunley also claims that

the City chose Griffin over Nunley in retaliation for his 2001 and 2004

complaints. The district court granted the City’s motion for summary judgment

on all of Nunley’s claims. Nunley now appeals.

II

We review the district court’s grant of summary judgment de novo,

applying the same standards as the district court. Burge v. Parish of St.

Tammany, 157 F.3d 452, 465 (5th Cir. 1999). Summary judgment is appropriate

if “the movant shows that 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).

A dispute is “genuine” if the evidence is sufficient for a reasonable jury to return

a verdict for the non-moving party. Hamilton v. Segue Software, Inc., 232 F.3d

473, 477 (5th Cir. 2000). A fact issue is “material” if its resolution could affect

the outcome of the action. Id. When reviewing a summary judgment, we

construe all facts and inferences in the light most favorable to the non-moving

party. Cooper Tire & Rubber Co. v. Farese, 423 F.3d 446, 454 (5th Cir. 2005).

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III

In order to overcome a summary judgment motion in a Title VII

employment discrimination claim, a plaintiff must establish a prima facie case

of discrimination, and the defendant must then articulate a legitimate, non-

discriminatory reason for its actions. See Rachid v. Jack In The Box, Inc., 376

F.3d 305, 312 (5th Cir. 2004) (citing McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973)). If this burden is met by the defendant, the plaintiff must then offer

sufficient evidence that either (1) the defendant's reason is not true, but is

instead a pretext for discrimination or (2) the reason, while true, is only one of

the reasons, and another motivating factor is the plaintiff’s protected

characteristic. Id.

The city concedes that Nunley has established a prima facie case and

Nunley concedes that the City has articulated legitimate, non-discriminatory

reasons for its decision not to hire Nunley. The issue on appeal is thus whether

Nunley has raised a genuine issue of material fact as to pretext or mixed-

motives.

A

Nunley first argues that conflict between the City’s EEOC response and

Miller’s deposition raises a fact issue under Burrell v. Dr. Pepper, 482 F.3d 408

(5th Cir. 2007). In Burrell, we concluded that the defendant’s rationale for a

hiring decision was “suspect because it [had] not remained the same” and that

“a reasonable factfinder could conclude that [the defendant’s] asserted

justification . . . [was] ‘unworthy of credence’ and a pretext for intentional

discrimination.” Id. at 415 (quoting Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 147 (2000)). Nunley argues that because Miller’s statements

regarding Nunley’s interpersonal skills conflict with the EEOC response, the

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City’s rationale is similarly “suspect.”1 We note, however, that the conflicting

statements concern one of many justifications, and we conclude that the City’s

rationale has essentially remained the same. In other words, in arguing that he

only needs some conflicting statements concerning any one part of a multi-

faceted rationale, we think Nunley asks too much of Burrell.

In Burrell, the inconsistent explanations by the employer concerned the

candidate’s experience, which was, in all of the proffered explanations, the

deciding factor. Id.; see also Gee v. Principi, 289 F.3d 342 (5th Cir. 2002) (in

which conflicting testimony went to the core of the employer’s hiring decision).

In contrast, the subject of the inconsistent statements in the present

case—Nunley’s ability to get along with others—was but one item in a long list

of reasons why the City hired Griffin instead. The City’s 2007 EEOC response

lists the following reasons for its decision: (1) Griffin’s possession of an

associate’s degree in a relevant field, (2) the good reputation of the institution

from which he received the degree, (3) his possession of an irrigation license and

experience maintaining irrigation systems, (4) his experience and track record

as a groundskeeper at Baylor, and (5) the favorable impression he made in his

interview. All of these items were discussed before the response mentions any

concerns about Nunley’s interpersonal skills. Thus, the great bulk of the City’s

rationale was not even implicated by the inconsistent statements.

Furthermore, Nunley has not offered sufficient evidence that the rationale

which was the subject of the inconsistent statements was “unworthy of

credence.” Reeves, 530 U.S. at 147. The plaintiff in Burrell presented evidence

1

The 2008 EEOC response stated that “there had been certain incidents involving Mr.

Nunley, which caused some reservations related to how he would get along with others if he

became the OC and how he would supervise.” In response to subsequent deposition

questioning concerning whether there was any discussion about how well Nunley got along

with others, Miller stated, “No, sir, not that I can recall.” The City contends that Miller’s

statement and the EEOC response do not actually conflict, i.e., that Miller merely testified

that he could not remember. We disagree.

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that the very criterion by which he was allegedly disqualified actually cut in his

favor, a fact on which the Burrell decision was predicated. Burrell, 482 F.3d at

414; see also Gee, 289 F.3d at 348 (“Gee, however, has provided sufficient

evidence to cast doubt on [the employer’s] explanation, thereby enabling a

reasonable factfinder to conclude that it was false . . . .”); Rachid, 376 F.3d at 312

(“the plaintiff must then offer sufficient evidence to create a genuine issue of

material fact . . . that the defendant's reason is not true, but is instead a pretext

for discrimination (emphasis added)).

Nunley’s briefing admits that he and a fellow employee had “some

interactions and problems” which resulted in complaints to supervisors from

both, and accordingly the City’s EEOC response makes reference to “certain

incidents” which “caused some reservations related to how he would get along

with others.” Yet, in an attempt to prove this rationale false and mere pretext,

Nunley only cites positive remarks about his interview performance, a “6 out of

10” for “communication” on an employee evaluation, and the absence of

complaints about his personal skills in a response to his 2004 complaint. We

think the foregoing evidence proffered by Nunley insufficient to declare the

City’s determination “unworthy of credence” and “a pretext for intentional

discrimination.” See Burrell, 482 F.3d at 415.

B

Nunley also contends that a jury could conclude that he is “clearly better

qualified” for the position than Griffin. See Moss v. BMC Software, Inc., 610

F.3d 917, 923 (5th Cir. 2010). In order to create a permissible inference of

discrimination under this theory, “disparities in qualifications must be of such

weight and significance 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. Dep’t of Protective & Regulatory Servs., 164 F.3d 277,

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280–81 (5th Cir. 1999). If there are any disparities, we do not think them so

great.

First, Griffin possessed an associate’s degree in turf management, a

qualification which was desired by the City and which Nunley did not possess.

Second, Griffin possessed an irrigation license and experience maintaining

irrigation systems, including a stint at Baylor University, during which he

performed many of the same functions for which he would be responsible as OC.

Finally, the City felt his interpersonal, supervisory, and administrative

experience were better.

Nunley, on the other hand, leans heavily on his length of service to the

City; however, as the district court noted, “greater experience alone will not

suffice to raise a fact question as to whether one person is clearly more qualified

than another.” Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir.

1996). He also cites his ability to operate heavy machinery and contends that

this was a minimum requirement which Griffin did not meet. As Nunley notes,

in Gillaspy v. Dallas Indep. School Dist., 278 Fed. Appx. 307, 314 (5th Cir. 2008),

we considered the awarding of a position to someone who did not meet minimum

job requirements to be sufficient evidence of discrimination to overcome a motion

for summary judgment. However, the official job posting in this case did not list

operating heavy equipment as a requirement. Furthermore, we do not think the

interview questions and answers from Griffin’s interview cited by Nunley

amount to a failure to meet a minimum job requirement.2

2

As indicated from the four sets of interview notes contained in the trial record, the

ninth interview question was as follows: “In this position, you will be asked to operate a full

range of heavy and light equipment. What types of equipment can you operate effectively?”

All four interviewers recorded substantially similar lists, which include “tractor,” “mower,”

“bobcat,” and other types of equipment. None of the interviewers’ notes reflect a negative

response to the question.

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In short, no reasonable jury could conclude that Nunley was “clearly better

qualified.” Nunley’s own chart, which is included in briefing and sets forth each

applicant’s qualifications, does not indicate such a disparity. Even if Nunley

were more qualified, this Court has repeatedly said that it would not be enough.

See, e.g., EEOC v. La. Office of Cmty. Servs., 47 F.3d 1438, 1444 (5th Cir. 1995)

(“A fact finder can infer pretext if it finds that the employee was ‘clearly better

qualified’ (as opposed to merely better or as qualified).”).

C

Nunley next suggests that the district court committed reversible error in

not taking the EEOC determination letter into consideration. We do not agree.

This Court has stated that “the EEOC’s findings of racial discrimination are not

dispositive on later racial discrimination suits,” Price v. Fed. Express Corp., 283

F.3d 715, 725 (5th Cir. 2002), and has also, in numerous instances, entered

summary judgment or granted judgment as a matter of law despite an EEOC

determination to the contrary. See, e.g., id.; Vadie v. Miss. State Univ., 218 F.3d

365, 370 (5th Cir. 2000) (upholding judgment as a matter of law in defendant’s

favor after plaintiff had received a right to sue letter from the EEOC); Odom v.

Frank, 3 F.3d 839, 843 (5th Cir. 1993) (holding that the district court's finding

that plaintiff was discriminated against was clearly erroneous, despite EEOC's

contrary conclusion); cf. Smith v. Universal Servs., Inc., 454 F.2d 154, 157 (5th

Cir. 1972) (stating that subsequent civil litigation is a de novo proceeding,

“completely separate from the actions of the EEOC”). We do not think the

district court, as Nunley puts it, “ignored” the determination, but rather that the

court simply looked at the facts in the summary judgment record and came to

a different conclusion.

IV

Finally, Nunley argues that the City’s failure to promote him to the OC

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position amounted to retaliation for his earlier complaints of racial

discrimination in 2001 and 2004. In order to make out a prima facie case of

retaliation under Title VII, Nunley must show that (1) he engaged in a protected

activity; (2) an adverse employment action occurred; and (3) a causal link existed

between the protected activity and the adverse employment action. Hernandez

v. Yellow Transp., Inc., 641 F.3d 118, 129 (5th Cir. 2011). Once a plaintiff has

made out a prima facie case of retaliation, the burden shifts to the defendant to

offer proof of a legitimate, non-retaliatory reason for the adverse employment

action. Id. Upon the defendant’s offering such proof, the burden shifts back to

the plaintiff to show that “but for” the protected activity, the adverse

employment action would not have occurred. Id.

Assuming, arguendo, that Nunley has made out a prima facie case3 and

the City has offered a legitimate, non-retaliatory reason for the adverse

employment action (a fact which Nunley has conceded), Nunley failed to

establish the “but for” causation required by the McDonnell Douglas framework,

as he fails to offer sufficient proof that any alleged retaliatory motive was a

necessary cause of the decision not to hire. A plaintiff can only avoid summary

judgment on “but for” causation by demonstrating “a conflict in substantial

evidence on this ultimate issue.” Id. at 132 (quoting Long v. Eastfield College,

88 F.3d 300, 308 (5th Cir. 1996)). Evidence is “substantial” if it is of a quality

and weight such that “reasonable and fair-minded men in the exercise of

impartial judgment might reach different conclusions.” Id. We do not believe

Nunley has demonstrated such a conflict.

Nunley calls to our attention Smith v. Xerox Corp., 602 F.3d 320 (5th Cir.

2010), in which we held that the Price Waterhouse “mixed motive” framework

3

The City maintains that Nunley has offered no proof that he actually complained in

2001, in which case that instance would not qualify as protected activity, and Nunley would

not have made out a prima facie case of retaliation as to that incident.

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applies to Title VII retaliation cases, and a plaintiff may show that a protected

activity was a “motivating” or “substantial” factor. Id. at 329 (quoting Price

Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989)). Furthermore, in Xerox, we

also dispensed with our previous requirement that a plaintiff offer direct

evidence of retaliation in order to proceed on the mixed-motive theory. Id. at 332

(citing Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003)). Thus, Nunley

argues, a plaintiff bringing a Title VII retaliation claim need only offer evidence

that retaliation was a factor, i.e., that the City had “mixed motives,” and such

evidence may be circumstantial.

But as we explained in Long v. Eastfield College, 88 F.3d 300 (5th Cir.

1996), there are different tests for causation within the McDonnell Douglas

framework—the initial “causal-link” required for making out a prima facie case,

and the “but for” causation required after the employer has offered a legitimate,

non-discriminatory justification. Id. at 305 n.4 (“At first glance, the ultimate

issue in an unlawful retaliation case—whether the defendant discriminated

against the plaintiff because the plaintiff engaged in conduct protected by Title

VII—seems identical to the third element of the plaintiff’s prima facie

case—whether a causal link exists between the adverse employment action and

the protected activity. However, the standards of proof applicable to these

questions differ significantly. . . . The standard for establishing the ‘causal link’

element of the plaintiff's prima facie case is much less stringent.”). Indeed, the

Court’s opinion in Xerox affirms that the Price Waterhouse mixed-motive

approach as applied in the retaliation context preserves an employer’s ability to

escape liability by refuting but for causation. Xerox, 602 F.3d at 333 (“[T]he

mixed-motives theory is probably best viewed as a defense for an employer. This

‘defense’ allows the employer—once the employee presents evidence that an

illegitimate reason was a motivating factor, even if not the sole factor, for the

challenged employment action—to show that it would have made the same

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decision even without consideration of the prohibited factor.” (emphasis added)

(footnote and internal quotation marks omitted)); see also Manaway v. Med. Ctr.

of Southeast Tex., 2011 WL 2496626 (5th Cir. 2011) (“The burden then shifts

back to the employee to ‘prove that the protected conduct was a ‘but for’ cause

of the adverse employment decision.’” (quoting Hernandez, 641 F.3d at 129)).

Thus, our decision in Xerox did not dispense with this final “but for” requirement

for avoiding summary judgment.

In attempting to show causation, Nunley references (1) his 2001 and 2004

complaints, (2) the implication in those complaints of Miller and Black, (3)

Miller’s picking of the panel members who interviewed Nunley in 2007, and (4)

Black’s supervision over that interview process. We think the City is correct in

noting that this amounts to nothing more than an observation that the same

people were involved in all three instances. We are certain the summary

judgment standard requires something more than this, lest a plaintiff get to a

jury with nothing more than proof of a prior accusation, a subsequent negative

employment action, and no intervening change in supervision. See Hernandez,

641 F.3d at 132–33 (upholding summary judgment for employer on a retaliation

claim where plaintiff alleged (1) employer’s investigation was not governed by

normal procedures; (2) post-termination grievance process was unfair; (3)

employees were treated unequally; and (4) similarly-situated employees were

treated more fairly); Manaway, 2011 WL 2496626, at *7 (upholding summary

judgment for employer where employer had other documented reasons for

dismissal). Accordingly, and for the other reasons stated herein, the district

court was correct to grant the City’s motion for summary judgment on the

retaliation claim.

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V

In conclusion, we find the plaintiff’s arguments on appeal unconvincing

and uphold the district court’s grant of summary judgment in favor of the

defendant.

AFFIRMED.

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