Olivia Davis v. NPC Pizza Hut , 226 F. App'x 890 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 15, 2007
No. 06-15122 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-02527-CV-RDP
OLIVIA DAVIS,
EDDIE DAVIS,
TAMMY TAYLOR,
Plaintiffs-Appellants,
versus
NPC PIZZA HUT,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(March 15, 2007)
Before ANDERSON, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Olivia Davis and Tammy Taylor, black females, and Eddie Davis, a black
male (collectively “plaintiffs”), appeal the district court’s grant of summary
judgment to their employer NPC Pizza Hut (“NPC”) on their Title VII
discrimination claim, 42 U.S.C. § 2000e-2(a). In August 2003, NPC promoted
Paula Stanford, a white female, from the position of restaurant general manager
(“RGM”) to area general manager (“AGM”), with responsibility for overseeing
five to ten restaurants. At that time, Olivia and Eddie Davis were RGMs for NPC
restaurants, while Taylor was an assistant manager at Olivia Davis’s restaurant.
The district court granted summary judgment to NPC. We review the
district court’s grant of summary judgment de novo, viewing all facts and
reasonable inferences in the light most favorable to the non-moving party. Little v.
United Techs., 103 F.3d 956, 959 (11th Cir. 1997). Summary judgment is
appropriate where the evidence shows that there is no genuine issue of material
fact and that the moving party is entitled to judgment as a matter of law. Id.The plaintiffs attempted to use circumstantial, rather than direct, evidence to
prove discrimination on the basis of race. When a plaintiff’s Title VII claim is
based on circumstantial evidence, we evaluate the claim under the McDonnell
Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-4, 93 S. Ct. 1817, 1824-5 (1973). The plaintiff has the initial burden
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of establishing a prima facie case of discrimination. “In order to establish a prima
facie case. . . the plaintiff must demonstrate only that: (i) he or she belonged to a
protected class; (ii) he or she was qualified for and applied for a position that the
employer was seeking to fill; (iii) despite qualifications, he or she was rejected; and
(iv) the position was filled with an individual outside the protected class.” Vessels
v. Atlanta Indep. Sch. Dist., 408 F.3d 763, 768 (11th Cir. 2005) (in context of
failure to promote claim). Once the plaintiff has presented a prima facie case, the
burden shifts to the employer “to articulate some legitimate, nondiscriminatory
reason” for its employment action. McDonnell Douglas, 411 U.S. at 802, 93 S. Ct.
at 1824.
If the employer does articulate such a reason, “the plaintiff must prove that
the reason provided by the defendant is a pretext for unlawful discrimination.”
Burke-Fowler v. Orange County, 447 F.3d 1319, 1323 (11th Cir. 2006). The
employee must meet his or her burden of production on pretext in order to avoid
summary judgment. See Kelliher v. Veneman, 313 F.3d 1270, 1275 (11th Cir.
2002) (“[T]he employer is entitled to summary judgment unless the plaintiff
proffers evidence sufficient to create a genuine issue of material fact that
discrimination was actually the reason for the challenged action.”). To show
pretext, the employee must “come forward with evidence . . . sufficient to permit a
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reasonable factfinder to conclude that the reasons given by the employer were not
the real reasons for the adverse employment decision.” Combs v. Plantation
Patterns, Meadowcraft, Inc., 106 F.3d 1519, 1528 (11th Cir. 1997). Accord Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000).
Here, assuming arguendo that the plaintiffs have made out a prima facie case
of discrimination, NPC has articulated a legitimate, nondiscriminatory reason for
promoting Stanford rather than one of the plaintiffs. NPC stated that it promoted
Stanford because she was more qualified for the position than the plaintiffs. NPC
produced evidence showing that Stanford met the internal minimum qualifications
for the AGM position, had years of experience managing multiple restaurants for
another company, and had owned and managed several of her own restaurants.
Plaintiffs then had the burden of producing evidence sufficient to permit a
reasonable jury to conclude that NPC’s stated reason for promoting Stanford was
pretextual. Combs, 106 F.3d at 1528. Plaintiffs produced no such evidence. They
asserted that Stanford was less qualified than they were, based on the plaintiffs’
greater length of service with NPC. This did not, however, demonstrate pretext.
“[A] plaintiff may not establish that an employer’s proffered reason is pretextual
merely by questioning the wisdom of the employer’s reasons, at least not where. . .
the reason is one that might motivate a reasonable employer.” Brooks v. County
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Comm’n, 446 F.3d 1160, 1163 (11th Cir. 2006). Therefore, to establish pretext on
the basis of a comparison of qualifications, “the difference in qualifications must
be so glaring that no reasonable impartial person could have chosen the candidate
selected for the promotion in question over the plaintiff.” Vessels, 408 F.3d at
772. Accord Ash v. Tyson Foods, Inc., 546 U.S. 454, 126 S. Ct. 1195, 1197
(2006).
Here, the difference in qualifications did not meet this standard. There must
be a “glaring” difference in qualifications if that difference alone is used to
impeach the employer’s stated reason for its decision. Vessels, 408 F.3d at 772. In
the instant case, this difference in qualifications was simply not present. In fact, it
was reasonable for NPC to conclude that Stanford was more qualified for the AGM
position than the plaintiffs were, despite their longer tenure with NPC. Stanford
had managed multiple restaurants for years, while plaintiffs had managed at most
one restaurant. One of the plaintiffs, Taylor, had not even been an RGM at the
time Stanford was promoted. The plaintiffs therefore could not establish pretext
simply by comparing their qualifications to Stanford’s. Because they produced no
additional evidence of pretext, they did not meet their burden of production, and
summary judgment was proper.
Plaintiffs further argue on appeal that the district court erred in dismissing
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their case with prejudice. Dismissal with prejudice was, however, a necessary
result of the district court’s grant of summary judgment to NPC. See Tuley v.
Heyd, 482 F.2d 590, 594 n.2 (5th Cir. 1973).1
AFFIRMED.
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions handed down by the former Fifth Circuit before the
close of business on September 30, 1981.
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