Filed: Mar. 24, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 24, 2005 _ Charles R. Fulbruge III No. 04-10935 Clerk Summary Calendar _ OLLIE DAILEY, Plaintiff - Appellant, versus VOUGHT AIRCRAFT INDUSTRIES, INC., Defendant - Appellee. _ Appeal from the United States District Court for the Northern District of Texas District Court Cause No. 3:03-CV-1633-H _ Before JONES, BARKSDALE and PRADO, Circuit Judges. PRADO, Circuit Judge.* Appellan
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 24, 2005 _ Charles R. Fulbruge III No. 04-10935 Clerk Summary Calendar _ OLLIE DAILEY, Plaintiff - Appellant, versus VOUGHT AIRCRAFT INDUSTRIES, INC., Defendant - Appellee. _ Appeal from the United States District Court for the Northern District of Texas District Court Cause No. 3:03-CV-1633-H _ Before JONES, BARKSDALE and PRADO, Circuit Judges. PRADO, Circuit Judge.* Appellant..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 24, 2005
_____________________
Charles R. Fulbruge III
No. 04-10935 Clerk
Summary Calendar
_____________________
OLLIE DAILEY,
Plaintiff - Appellant,
versus
VOUGHT AIRCRAFT INDUSTRIES, INC.,
Defendant - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
District Court Cause No. 3:03-CV-1633-H
_________________________________________________________________
Before JONES, BARKSDALE and PRADO, Circuit Judges.
PRADO, Circuit Judge.*
Appellant Ollie Dailey sued appellee Vought Aircraft
Industries (Vought) claiming that Vought denied him a supervisory
position because of his race and in retaliation for his previous
complaints about racial discrimination. For the following
reasons, this court affirms the district court’s summary judgment
in favor of Vought.
*
Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
1
I. Factual Background
Dailey, a black male, works in Vought’s “High Bay” machine
shop as a machinist. Dailey has worked for Vought and its
predecessor since 1984. In January 2000, four supervisory
positions opened in the High Bay shop and in another one of
Vought’s machine shops known as Building 1. A group of
interviewers interviewed each applicant and selected the four
highest-ranked applicants for the supervisor positions. Dailey
was ranked tenth out of twelve applicants and was not selected
for one of the positions. Shortly thereafter, another
supervisory position opened. Instead of conducting another
interview process, Vought selected the next highest ranked
interviewee from the previous interviews. Each of the five
individuals selected for a supervisory position was a white male.
After the selection process for January 2000 was completed,
Dailey complained that the interview process was unfair because
not all candidates were interviewed by all of the interviewers.
Vought agreed that the selection process was not optimal, and
when another supervisory position opened in September of 2000,
Vought returned to the old process whereby each applicant was
interviewed by a single interviewer. Dailey, along with eight
other applicants, applied for the supervisory position. Vought
ranked Dailey fifth out of the eight applicants. Dailey was not
selected; a Hispanic applicant was selected.
2
On October 18, 2000, Dailey filed a charge of discrimination
with the Equal Employment Opportunity Commission (EEOC), alleging
racial discrimination and retaliation for both the January 2000
and September 2000 promotion decisions. The EEOC issued Dailey a
“right to sue” letter on April 28, 2003. Dailey brought suit in
the Northern District of Texas on July 18, 2003.
Vought moved for summary judgment and asserted that Dailey
was not selected because the other candidates were better
qualified and received better scores in the interviews. Dailey
claimed that Vought’s asserted reason for not promoting him was a
pretext for racial discrimination and retaliation. The district
court granted summary judgment on both claims in favor of Vought.
Dailey appealed.
II. Standard of Review
This court reviews a grant of summary judgment de novo.1
Summary judgment is proper if the movant can demonstrate that
there is no genuine issue of material fact and he is entitled to
judgment as a matter of law.2 In deciding whether a fact
question exists, the court must view the facts and reasonable
1
See Flock v. Scripto-Tokai Corp., 319 F.3d 231, 236 (5th
Cir. 2003).
2
See FED R. CIV. PROC. 56(c); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986).
3
inferences in the light most favorable to the non-moving party.3
A genuine issue of material fact exists if the evidence is such
that a reasonable jury could return a verdict in favor of the
non-moving party.4
III. Whether Summary Judgment Was Proper
Dailey claims that Vought’s decisions not to promote him to
a supervisory position in January 2000 and September 2000 were
based on racial discrimination and retaliation. The district
court entered summary judgment on Dailey’s racial discrimination
claims because it determined no fact question existed about
pretext. The district court entered summary judgment on Dailey’s
retaliation claims because it determined no fact question existed
about the causal connection between Dailey’s past complaints and
Vought’s promotion decisions.
A. Dailey’s Racial Discrimination Claim
Title VII of the Civil Rights Act of 1964 makes it unlawful
for an employer to discriminate against an employee based on the
individual’s race.5 In an employment discrimination case, this
court applies the burden-shifting framework articulated by the
3
See Daniels v. City of Arlington, Tex., 246 F.3d 500, 502
(5th Cir. 2001).
4
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475
U.S. 574, 587 (1986).
5
See 42 U.S.C. § 2000e-2(a)(1).
4
Supreme Court in McDonnell Douglas Corp. v. Green.6 Under this
framework, the plaintiff must first establish a prima facie case
of discrimination.7 To meet this burden, the plaintiff must
show: 1) he is a member of a protected class, 2) he was qualified
for the job, 3) he suffered an adverse employment action, and 4)
others outside the protected group were treated more favorably.8
If the plaintiff succeeds in making a prima facie case, the
burden shifts to the defendant-employer to produce evidence of a
legitimate, nondiscriminatory reason for the treatment of the
plaintiff.9 If the employer offers a nondiscriminatory reason,
the burden shifts back to the plaintiff to show that the
employer’s reason for the disparate treatment is merely a pretext
for discrimination.10 To survive summary judgment, the plaintiff
must provide evidence that raises a genuine issue of material
fact about whether the employer’s reason for the plaintiff’s
treatment is a pretext for discrimination.11
6
411 U.S. 792, 802-04 (1973).
7
McDonnell Douglas Corp., 411 U.S. at 802.
8
See id. at 802.
9
See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133,
142 (2000).
10
See Reeves, 530 U.S. at 143; St. Mary’s Honor Ctr. v.
Hicks,
509 U.S. 502, 507-508 (1993).
11
See Nicols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th
Cir. 1996).
5
In this case, Dailey claims that Vought did not promote him
to a supervisory position because he is black. The parties do
not dispute that Dailey made a prima facie case of racial
discrimination. The parties disagree, however, about whether
Vought’s reason for not promoting Dailey is a pretext for racial
discrimination.
Vought maintains that it did not promote Dailey to a
supervisory position because the other applicants were more
qualified than Dailey. Vought’s summary judgment evidence shows
the following. For the January 2000 positions, Dailey was ranked
tenth out of the twelve candidates who applied for the positions.
Vought selected the four highest ranked individuals. When
another supervisory position became available after the interview
process, Vought offered the position to the next highest-ranked
candidate. Dailey ranked fifth out of nine applicants during the
September 2000 interview process. The interviewer selected an
applicant with prior supervisory experience in the High Bay area
and considered that experience to make the applicant the best
qualified candidate.
This evidence established a nondiscriminatory reason for not
promoting Dailey—the applicants selected for promotion were more
qualified than Dailey and ranked higher during interviews. Thus,
the burden shifted to Dailey to demonstrate a fact question about
whether Vought’s reason for not promoting him—that he was less
qualified—was pretextual. Meeting this burden required Dailey to
6
demonstrate that he was clearly better qualified than the other
applicants.12 This is a very high burden that required Dailey to
show that “no reasonable person . . . could have chosen the
candidate selected over [Dailey].”13 To survive summary
judgment, the unfairness of the employer’s decision must be so
apparent as to jump off the record and “slap [the court] in the
face.”14
Dailey did not meet this burden. Although Dailey’s summary
judgment evidence shows that he may be qualified for the
positions he sought, he did not show that he is clearly better
qualified than those selected for promotion. His summary
judgment evidence amounts to no more than his own assertions that
he is better qualified and the deposition statements of
associates that Dailey is qualified for promotion. This court
will not second guess business decisions of an employer with
experience in evaluating applicants for high level promotions
where the evidence does not show that the plaintiff is clearly
better qualified.15 Although Dailey complains about the
subjective nature of Vought’s interviewing process, the “mere
12
See Manning v. Chevron Chem. Co., 332 F.3d 874, 882 (5th
Cir. 2003).
13
Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 357
(5th Cir. 2001).
14
See Odom v. Frank, 3 F.3d 839, 847 (5th Cir. 1993).
15
See Odom, 3 F.3d at 847.
7
fact that an employer uses subjective criteria is not . . .
sufficient evidence of pretext.”16 In this case, Dailey showed
that he is an experienced machinist and that he has a college
degree. This evidence is probative of Dailey’s qualifications,
but it does not raise a fact question about whether Vought’s
reason for not promoting him to a supervisory position was a
pretext for racial discrimination. The district court did not
err in entering summary judgment for Vought on Dailey’s racial
discrimination claims.
B. Dailey’s Retaliation Claim
Dailey also claims that Vought failed to promote him because
he complained about racial discrimination in the past. Dailey
complained about discrimination in the early 1990s and filed a
lawsuit against Vought. Dailey also participated in
demonstrations outside of Vought’s plant, protesting what Dailey
claims were Vought’s discriminatory practices. Dailey maintains
that he was denied a supervisory position in retaliation for
these complaints and protests.
Title VII prohibits retaliation by employers against
employees who have opposed unlawful employment practices or who
have filed a charge of discrimination.17 To survive summary
judgment on a retaliation claim, a plaintiff must make a prima
16
Manning, 332 F.3d at 882.
17
See 42 U.S.C. § 2000e-3(a).
8
facie showing that 1) he engaged in protected activity, 2) he
suffered an adverse employment action, and 3) there was a causal
connection between participation in the protected activity and
the adverse employment decision.18 Dailey satisfied the first
part of this burden because Title VII specifically states that an
employer may not retaliate against an employee for having made a
charge of discrimination.19 Thus, Dailey’s complaints about
racial discrimination are protected activities under Title VII.
Dailey satisfied the second part of the prima facie showing
because Vought’s decision not to promote Dailey constitutes an
adverse employment action.20 Vought, however, contends that
Dailey did not satisfy the third part of his burden because he
failed to show a causal connection between participation in the
protected activity and the adverse employment action.
To demonstrate causation, the employee must demonstrate that
he would have been promoted but for engaging in protected
activity.21 Here, both parties acknowledge Dailey’s complaints
18
See Ackel v. Nat’l Comm. Inc., 339 F.3d 376, 385 (5th Cir.
2003); see also Mota v. Univ. of Tex. Houston Health Ctr.,
261
F.3d 512, 519 (5th Cir. 2001).
19
See 42 U.S.C. § 2000e-3(a).
20
See Walker v. Thompson, 214 F.3d 615, 629 (5th Cir. 2000)
(stating that an adverse employment action includes employment
decisions on hiring, granting leave, discharging, promoting, and
compensating).
21
See Mota, 261 F.3d at 519; Medina v. Ramsey Steel Co.,
Inc.,
238 F.3d 674, 684 (5th Cir. 2001).
9
about race discrimination in the early 1990s. The summary
judgment evidence indicates that some of the individuals involved
in the promotion decision knew about Dailey’s past complaints,
but Dailey offered no evidence that raised a fact question about
a causal link between his prior complaints and Vought’s decision
not to promote him. Dailey presented nothing more than Vought’s
knowledge of his prior criticism. No evidence exists of a
hostile reaction to any of Dailey’s complaints.22 Instead,
Dailey asks the court to infer that his complaints in the early
1990s caused the interviewers in 2000 not to promote him.
Although a lapse of time is not necessarily dispositive in a
retaliation case,23 here, so much time passed since Dailey’s
complaints that he cannot rely on Vought’s knowledge of his
complaints alone.24 The district court did not err in entering
22
See Grizzle v. Travelers Health Network, 14 F.3d 261, 268
(5th Cir. 1994) (upholding a judgment not withstanding the
verdict and observing that no evidence existed of a hostile
reaction to the plaintiff’s protected activity).
23
See Shirley v. Chrysler First, Inc., 970 F.2d 39, 43 (5th
Cir. 1992) (finding that the passage of 14 months between the
filing of an EEOC charge and employee’s discharge was
insufficient proof against retaliation claim).
24
See Meiners v. Univ. of Kan., 359 F.3d 1222, 1231 (10th
Cir. 2004) (holding that three and one-half months between the
filing of an EEOC charge and the adverse employment action was
insufficient by itself to establish causation); Fabela v. Socorro
Ind. Sch. Dist.,
329 F.3d 409, 414-15 (5th Cir. 2003)
(recognizing that a six-year lapse between the filing of an EEOC
charge and the employee’s dismissal did not necessarily mean the
plaintiff failed to show causation where the plaintiff presented
direct evidence of retaliation); Strouss v. Mich. Dep’t of Corr.,
10
summary judgment on Dailey’s retaliation claims.
IV. Conclusion
Dailey failed to raise a fact question about Vought’s reason
for not promoting him or about a causal connection between his
past complaints and Vought’s failure to promote him.
Consequently, the district court did not err in entering summary
judgment on Dailey’s claims of racial discrimination and
retaliation. Accordingly, this court AFFIRMS the summary
judgment.
AFFIRMED.
250 F.3d 336, 344 (6th Cir. 2001) (holding that a three-year gap
between the protected activity and the adverse employment action
was insufficient to support an inference of causation).
11
