Ward Conner v. LaFarge North America, Inc. , 343 F. App'x 537 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Sept. 1, 2009
No. 08-17149 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 07-01095-CV-BE-S
WARD CONNER,
Plaintiff-Appellant,
versus
LAFARGE NORTH AMERICA, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(September 1, 2009)
Before CARNES and PRYOR, Circuit Judges, and STAGG,* District Judge
PER CURIAM:
*
Honorable Tom Stagg, United States District Judge for the Western District of
Louisiana, sitting by designation.
Plaintiff Ward Conner, an African-American male, appeals the district
court’s grant of summary judgment to the defendant, Lafarge North America, Inc.,
on Conner’s race discrimination claims filed under Title VII of the Civil Rights
Act, codified at 42 U.S.C. §§ 2000(e) et seq., and 42 U.S.C. § 1981. This lawsuit
arises out of defendant’s refusal to promote Conner to a supervisory position
within its cement manufacturing business. The district court properly granted
summary judgment, and we affirm.
I.
Conner began working as a laborer at a cement plant located in Calera,
Alabama in 1989. At that time the plant was owned by Lafarge’s predecessor in
interest. In 1992 Conner began working in the part of the plant known as the
Packhouse. While working in the Packhouse, Conner received high ratings on his
employment evaluations.
Lafarge purchased the Calera plant in 2001. In 2006, Lafarge decided to fill
a vacant Packhouse Supervisor position. Lafarge’s Human Resources Manager,
Danielle Stokes, prepared a job posting for the Packhouse Supervisor position
based on the qualifications contained in a job posting at another plant. Stokes
posted this job opportunity form both internally and externally on Lafarge’s
website.
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Several external and four internal candidates applied for the Packhouse
Supervisor position. Following a determination by Stokes that all four of the
internal candidates were qualified, Lafarge decided to interview each of them. The
candidates included: Conner, Stephen Clements (white male), Denise Jones
(African-American female), and Timothy Walker (white male).
Lafarge, following company policy, used an interview panel to conduct the
initial round of interviews for the position. The following five employees served
on the panel: Rick Buffkin (white male), Garrett Griffin (white male), Stokes
(African-American female), Simon Ward (white male), and Lynn Wehrmeier
(white male).
Buffkin, Griffin, Ward, and Wehrmeier interviewed Conner on June 7, 2006.
During this interview, the panel members asked Conner questions concerning the
position, including hypothetical questions designed to test Conner’s managerial
skills. Conner’s answers to these questions caused the panel members to believe
that Conner would not be willing to discipline employees, that he lacked the
leadership and decisionmaking skills required for the position, and that he lacked
the computer and software aptitude and experience required for the position.
Stokes interviewed Conner separately following his initial interview by the
others. Although she gave Conner higher scores than two of the four candidates,
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she came away “bothered” by Conner’s “nonchalant” attitude toward employee
discipline.
On June 16, 2006, Stokes sent an email to Wehrmeier containing a scoring
matrix that had been used to grade candidates for a Quarry Supervisor position at
another plant. Lafarge had used the matrix system of scoring interviewees only
once before the challenged employment decision. At some point during the two
months after that email was sent, Wehrmeier altered the weighting of the scoring
matrix factors to fit the Packhouse Supervisor position. The interview panel did
not receive this matrix until after the interviews had ended.
In August 2006, two months after the initial interviews, the panel met and
assessed the candidates according to the matrix scorecard. Using their interview
notes, each interviewer ranked the candidates on a scale of one to ten in ten
categories. The panel did not consider any factors external to the candidates’
interview performances. Stokes intended to multiply each candidate’s raw score in
a particular category by the weight assigned to that category. By mistake, she
instead divided each candidate’s score in each category by the intended numerical
weight for that category.
After Stokes completed those mistaken calculations, the candidates ranked
in the following order: Walker, Clements, Conner, and Jones. Even if Stokes had
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performed the calculations correctly, Conner still would have finished in third
place out of the four candidates. Furthermore, had Wehrmeier not altered the
weighted values listed in the original scoring matrix, Conner would have finished
in last place. Based on their high scores from Stokes’ calculations, Walker and
Clements advanced to the final round of interviews. Walker ultimately received
the promotion.
Conner filed this lawsuit in June 2007 against Lafarge in federal district
court alleging race discrimination in violation of Title VII of the Civil Rights Act,
codified at 42 U.S.C. §§ 2000(e) et seq., and 42 U.S.C. § 1981. The district court
granted summary judgment in favor of Lafarge. This is Conner’s appeal.
II.
We review de novo a district court’s grant of summary judgment and, “[i]n
doing so, we ‘view all the evidence and make all reasonable factual inferences in
the light most favorable to the nonmoving party.’ ” Hulsey v. Pride Rests., LLC,
367 F.3d 1238, 1243 (11th Cir. 2004) (quoting Knight v. Baptist Hosp. Of Miami,
Inc., 330 F.3d 1313, 1316 (11th Cir. 2003)). In reviewing a district court’s grant of
summary judgment, “a federal appellate court may examine only the evidence
which was before the district court when the latter decided the motion for summary
judgment.” Welch v. Celotex Corp., 951 F.2d 1235, 1237 n.3 (11th Cir. 1992)
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(citing Ingalls Iron Works Co. v. Fruehauf Corp., 518 F.2d 966, 967 (5th Cir.
1975)). “Summary judgment is appropriate when ‘there is no genuine issue as to
any material fact and . . . the moving party is entitled to judgment as a matter of
law.’ ” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004)
(quoting Fed. R. Civ. P. 56(c)). Specifically, in this case, we must determine, “in
view of all the evidence, ‘whether the plaintiff has cast sufficient doubt on the
defendant’s proffered nondiscriminatory reasons [for the challenged employment
decision] to permit a reasonable factfinder to conclude that the employer’s
proffered legitimate reasons were not what actually motivated its conduct.’”
Crawford v. Carroll, 529 F.3d 961, 976 (11th Cir. 2008) (quoting Combs v.
Plantation Patterns, 106 F.3d 1519,1538 (11th Cir. 1997)).
III.
We use the same framework to analyze Title VII claims and claims of race
discrimination under 42 U.S.C. § 1981. Standard v. A.B.E.L. Servs., Inc., 161
F.3d 1318, 1330 (11th Cir. 1998). Under that framework, a plaintiff “may present
sufficient circumstantial evidence of discrimination to create a jury question.”
Combs v. Plantation Patterns, 106 F.3d 1519, 1527 (11th Cir. 1997). When a
plaintiff supports his Title VII claims with circumstantial evidence, as Conner
does, “we use the now-familiar framework established by the United States
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Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.
1817 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S.
248, 101 S.Ct. 1089 (1981).” Combs, 106 F.3d at 1527. Throughout this process,
“[t]he ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all times with the
plaintiff.” Burdine, 450 U.S. at 253, 101 S.Ct. at 1093.
Under this framework, “the plaintiff has the initial burden of establishing a
prima facie case of discrimination.” Combs, 106 F.3d at 1527-28 (citing
McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Burdine, 450 U.S. at 253-
54 at n.6, 101 S.Ct. at 1093-94 at n.6). Lafarge has conceded that Conner has
established a prima facie case for his failure to promote claim.
Once the plaintiff has established a prima facie case of discrimination, the
burden shifts to the employer to produce “legitimate, nondiscriminatory reasons for
the challenged employment action.” Combs, 106 F.3d at 1528 (citing McDonnell
Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Burdine, 450 U.S. at 254, 101 S.Ct. at
1094. We have held that a subjective reason, including interview performance,
qualifies as a “legally sufficient, legitimate, nondiscriminatory reason if the
defendant articulates a clear and reasonably specific factual basis on which it based
its subjective opinion.” Chapman v. AI Transp., 229 F.3d 1012, 1034 (11th Cir.
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2000) (en banc). Lafarge says that it did not select Conner for the Packhouse
Supervisor position because of his poor performance in the interviews for that
position. Specifically, Lafarge asserts that Conner performed poorly in those
portions of the interview dealing with the crucial areas of leadership,
decisionmaking, safety, and computer skills. Lafarge has satisfied its burden of
offering a legitimate, nondiscriminatory reason for the challenged employment
decision.
Once the defendant has offered legitimate, nondiscriminatory reasons for its
decision, “the plaintiff has the opportunity to discredit the defendant’s proffered
explanations for its decision.” Combs, 106 F.3d at 1528. A plaintiff has not
successfully demonstrated pretext “unless it is shown both that the reason was
false, and that discrimination was the real reason.” Brooks v. County Comm’n,
446 F.3d 1160, 1163 (11th Cir. 2006) (quoting St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502, 515, 113 S.Ct. 2742, 2752 (1993)). The plaintiff may do so by either
directly “persuading the court that a discriminatory reason more likely motivated
the employer or indirectly by showing that the employer’s proffered explanation is
unworthy of credence.” Burdine, 450 U.S. at 256, 101 S.Ct. at 1095 (citing
McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. at 1825-26). If the plaintiff fails
to “proffer sufficient evidence to create a genuine issue of material fact regarding
8
whether each of the defendant employer’s articulated reasons is pretextual, the
employer is entitled to summary judgment.” Chapman, 229 F.3d at 1024-25
(citing Combs, 106 F.3d at 1529). We must determine, “in view of all the
evidence, ‘whether the plaintiff has cast sufficient doubt on the defendant’s
proffered nondiscriminatory reasons to permit a reasonable factfinder to conclude
that the employer’s proffered legitimate reasons were not what actually motivated
its conduct.’ ” Crawford, 529 F.3d at 976 (quoting Combs, 529 F.3d at 1538).
Conner first argues that Walker, the white candidate Lafarge ultimately
promoted, is significantly less qualified than Conner and that this raises a genuine
issue of material fact as to whether Lafarge’s proffered reason is pretextual. In
particular, Conner focuses on the fact that the job posting listed as qualifications a
“[m]inimum of 2 years cement plant or terminal operating experience” and
“supervisory experience” and asserts that he met these qualifications while Walker
did not. In assessing this argument, we do not decide who we would have chosen
for the job, but instead consider whether the disparities in qualifications are “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.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004) (quoting
Lee v. GTE Fla., Inc., 226 F.3d 1249, 1254 (11th Cir. 2000)).
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Conner’s comparative qualifications argument fails. Stokes, following
Lafarge’s company policy, declared all of the internal candidates qualified by
virtue of their being internal candidates and Lafarge based the promotion decision
on the interviews alone, rather than on the qualifications listed in the job posting.
The present case resembles Springer v. Convergys Customer Mgmt Group, Inc.,
509 F.3d 1344 (11th Cir. 2007), in which we upheld the district court’s grant of
summary judgment to the employer where the plaintiff possessed a four year
college degree, the person promoted did not, and the job form listed such a degree
as a requirement. Id. at 1349. The job description in Springer permitted
professional experience as an alternative to the educational requirements contained
in the job form, and the employee in charge of making the challenged promotion
decision testified that experience was more important to her than the educational
requirements contained in the job form. Id. We explained that “[a]bsent evidence
that subjective hiring criteria were used as a mask for discrimination, the fact that
an employer based . . . a promotion decision on purely subjective criteria will
rarely, if ever, prove pretext. . . .” Id. (quoting Denney v. City of Albany, 247 F.3d
1172, 1185 (11th Cir. 2001)). Lafarge, following its company policy, chose to
treat internal candidate status as equivalent to the qualifications listed in the job
posting and decided to make the interview process the sole measure by which
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candidates were judged. Lafarge’s reliance on the interviews alone, rather than in
conjunction with the job posting requirements or the applicants’ other
qualifications, may not have been wise, but it does not demonstrate pretext. It is
not the job of this Court to “sit as a super-personnel department that reexamines an
entity’s business decisions.” Cooper, 390 F.3d at 738 (quoting Elrod v. Sears,
Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991)).
Conner next argues that Lafarge violated its usual procedure for making
promotion decisions and that this deviation from company norms constitutes
sufficient evidence of pretext to survive summary judgment. This court has held
that “[a]n employer’s violation of its own normal hiring procedure may be
evidence of pretext.” Bass v. Bd. of County Com’rs, 256 F.3d 1095, 1108 (11th
Cir. 2001) (citing Hill v. Seaboard Coast Line R.R., 885 F.2d 804, 811 (11th Cir.
1989)). The record contains no evidence that Lafarge had ever filled supervisory
positions using any method other than exclusive reliance on interviews. Faced
with that, Conner argues Wehrmeier’s reweighting of the matrix factors
demonstrates pretext.
We disagree. First, Lafarge originally used the matrix to grade candidates
for another position, Quarry Supervisor, at another plant; Wehrmeier merely
adjusted the scoring to reflect the requirements of the Packhouse Supervisor
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position. The record contains no evidence that Wehrmeier selected primary
candidates before the interviews or that he knew Conner’s raw scores when he
recalculated the weighting of the matrix categories. Further, Conner would have
finished in last place, rather than next-to-last place, among the candidates had
Wehrmeier not reweighted the matrix categories. Because the reweighting helped
Conner, it cannot support an inference that it was done to hurt his chances.
Conner also contends that “Lafarge employed an erratic interviewing and
scoring process that discredited its selection process,” because the interview panel
correlated eight interview topics with an unexplained scoring matrix of ten
categories. While these facts might demonstrate that Lafarge’s selection process
was unwise, they are not evidence that it served as a pretext for discrimination.
Lafarge has supported its subjective interview scoring system with specific factual
bases in the form of the interview panel’s concern over Conner’s willingness to
discipline employees and his lack of software skills. See Chapman, 229 F.3d at
1034 (subjective reason qualifies as a “legally sufficient, legitimate,
nondiscriminatory reason if the defendant articulates a clear and reasonably
specific factual basis on which it based its subjective opinion”); see also Browning
v. Dep’t of Army, 436 F.3d 692, 697 (6th Cir. 2006) (holding that employer’s use
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of matrix to grade job candidates on subjective criteria did not support inference of
pretext).
Conner also attempts to demonstrate pretext by rebutting the asserted
reasons offered by Lafarge to explain Conner’s low interview scores: concerns
over his willingness to discipline employees, his lack of software skills, and his
inability to handle safety issues. “In order to avoid summary judgment, a plaintiff
must produce enough evidence for a reasonable factfinder to conclude that each of
the employer’s proffered nondiscriminatory reasons is pretextual.” Chapman, 229
F.3d at 1037 (citing Combs, 106 F.3d at 1543). Conner has failed to do so. Along
these lines, Conner points out that the scores he was given are inconsistent with his
positive employee evaluations. That proves nothing both because the interview
panel did not rely on employee evaluations and because those evaluations measure
employees’ skills in their current position, not their suitability for promotion to a
supervisory position. See Anderson v. Westinghouse Savannah River Co., 406
F.3d 248, 272 (4th Cir. 2005) (“the performance evaluation and the interview
selection stage . . . are not interchangeable”).
Conner also argues that the explanation that his low scores were based on his
unwillingness to discipline employees is pretextual because he specifically told
Stokes that he had no problem imposing discipline. What Conner told Stokes
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when she separately interviewed him does not change the impression he left with
the other interviewers earlier. Besides, the problem was not that Conner had failed
to say that he was willing to discipline employees when needed. The problem was
that his answers to the hypothetical situations posed to him by the other
interviewers gave them reason for concern.
Conner also argues that Ward scored Conner lower than Walker even though
Ward’s interview notes for those two candidates were similar and that this shows
pretext. It does not. The fact that Ward made similar notes about Conner and
Walker, which were intended for his own reference in later grading the candidates,
does not show that those candidates gave identical answers in their interviews. All
of the interviewers, not just Ward, testified that Conner’s interview answers gave
them reasons to be concerned about his willingness to discipline employees.
Ward’s scoring of Conner was consistent with that of the other panel members in
this key area.
Conner also argues that one of the members of the interview panel, Buffkin,
harbors racial animus, as evidenced by past complaints filed against him, Conner’s
own testimony that Buffkin treats African-American employees differently, and
Buffkin’s alleged use of a racial slur. Buffkin’s alleged use of the racial slur
occurred more than ten years earlier, and it was “isolated and unrelated to the
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employment decision.” See Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir. 2002).
“Although a comment unrelated to a [challenged employment decision] may
contribute to a circumstantial finding of pretext, it will usually not be sufficient
absent some additional evidence of pretext.” Scott v. Suncoast Beverage Sales,
Ltd., 295 F.3d 1223, 1229 (11th Cir. 2002) (citations omitted). Further, Buffkin
was only one member of a five member panel, and Conner admitted during his
deposition that Stokes did not discriminate against him and that he had no reason
to believe that Griffin, Ward, or Wehrmeier harbored racial animus other than his
opinion that they did not promote him to Packhouse Supervisor due to his race.
We have held in a § 1983 termination case that when policymaking authority rests
with an entity, an unconstitutional motive on the part of one member of a three
member majority is insufficient to impute an unconstitutional motive to the entity
as a whole. Matthews v. Columbia County, 294 F.3d 1294, 1297 (11th Cir. 2002)
(citing Mason v. Village of El Portal, 240 F.3d 1337, 1339 (11th Cir. 2001)). Any
alleged bias on Buffkin’s part cannot be imputed to the entire interview panel.
Finally, Conner argues that even if none of his arguments are sufficient by
themselves to raise a genuine issue of material fact about whether Lafarge’s
proffered justification for its decision was a pretext for discrimination, all of them
taken together would allow a reasonable factfinder to find pretext. In making this
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argument, Conner relies heavily on Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d
763 (11th Cir. 2005). In that case, we held that, when taken together, the
employer’s statements in favor of promoting a candidate of a certain race, the
plaintiff’s superior qualifications in comparison with the person actually promoted,
the employer’s deviation from its own clearly established hiring practices, and the
plaintiff’s direct rebuttal of many of the employer’s proffered justifications created
a genuine issue of material fact as to whether the employer’s proffered reasons for
failing to promote the plaintiff were pretextual. Id. at 772.
Conner’s situation is different. Unlike the plaintiff in Vessels, Conner has
not directly rebutted Lafarge’s proffered justification for its decision not to
promote him. Unlike the discriminatory statements in Vessels, Buffkin’s alleged
statement occurred over a decade ago and did not relate in any way to the
employment decision at issue. Finally, unlike the plaintiff in Vessels, Conner has
not shown that his employer violated its own clearly established personnel
procedures.
Because Conner has failed to cast sufficient doubt on Lafarge’s proffered
nondiscriminatory reasons for not promoting him to create a genuine issue of
material fact about whether those reasons actually motivated Lafarge’s decision,
the judgment of the district court is
AFFIRMED.
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