Stephanie Tippie v. Spacelabs Medical , 180 F. App'x 51 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 27, 2006
No. 05-14384 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-60456-CV-WPD
STEPHANIE TIPPIE,
Plaintiff-Appellant,
versus
SPACELABS MEDICAL, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 27, 2006)
Before BLACK, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Stephanie Tippie appeals the district court’s order granting summary
judgment in favor of her former employer, Spacelabs Medical, Inc. (Spacelabs), as
to her complaint alleging national origin and gender discrimination in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e, et seq.,
and the Florida Civil Rights Act (FCRA), § 760.10, Fla. Stat., and race
discrimination in violation of 42 U.S.C. § 1981. Tippie asserts the district court
erred in granting summary judgment because she presented both direct and
circumstantial evidence to show Spacelabs discriminated against her when it failed
to retain her in the newly created “Product Line Manager” or “Senior Product
Management” positions after the company underwent a reduction-in-force. Tippie
also contends the district court erred in dismissing her § 1981 race discrimination
claim. We affirm the district court.
I. DISCUSSION
A. Standard of Review
We review “a grant of summary judgment de novo, using the same legal
standard as the district court.” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1184
(11th Cir. 1997). Summary judgment is proper if the pleadings, depositions, and
affidavits show there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 106 S. Ct.
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2548, 2552 (1986) (quoting Fed. R. Civ. P. 56(c)). The evidence, and all
inferences drawn from the facts, must be viewed in the light most favorable to the
non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 106 S.
Ct. 1348, 1356 (1986). “A mere scintilla of evidence in support of the nonmoving
party will not suffice to overcome a motion for summary judgment.” Young v. City
of Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004).
B. Title VII and FCRA 1
Title VII states, in relevant part, that it is “an unlawful employment practice
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, religion, sex, or national origin . . . .” 42 U.S.C. § 2000e-2(a). A plaintiff
may prove a claim of discrimination through (1) direct evidence, (2) circumstantial
evidence, or (3) statistical proof. See Earley v. Champion Int’l Corp., 907 F.2d
1077, 1081 (11th Cir. 1990).
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A claim under the FCRA is analyzed under the same standards as a Title VII claim. See
Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998).
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1. Product Line Manager position
Tippie asserts she presented both direct and circumstantial evidence of
discrimination based on Spacelabs’ failure to hire her into the Product Line
Manager position.
a. Direct evidence
Tippie contends she presented direct evidence that Spacelabs intentionally
discriminated against her on the basis of her national origin, namely when Jukka
Turtola, the decision-maker in this case, used the phrase “not native” in an e-mail
in which he compared the qualifications of Tippie and Facundo Carrillo, the
individual ultimately selected for the Product Line Manager position. In the
e-mail, Turtola listed “[n]ative in Spanish language” as an important requirement
for the position, and then noted Carrillo was “native in Spanish” whereas Tippie
“speaks some basic Spanish but is not native.”
“Direct evidence of discrimination is evidence which, if believed, would
prove the existence of a fact in issue without inference or presumption. Only the
most blatant remarks, whose intent could be nothing other than to discriminate on
the basis of [a protected characteristic] constitute direct evidence of
discrimination.” Bass v. Board of County Comm’rs, Orange County, Florida, 256
F.3d 1095, 1105 (11th Cir. 2001) (quotations, alterations, and citations omitted).
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We conclude Tippie did not present direct evidence of discrimination.
Taken in context, Turtola’s use of the phrase “not native” was a manner of
describing Tippie’s Spanish language abilities, not her national origin. In any
event, because this comment does not “prove the existence of a fact in issue
without inference or presumption,” it is not direct evidence of discrimination. See
Bass, 256 F.3d at 1105; cf. Ferrill v. Parker Group, Inc., 168 F.3d 468, 472 (11th
Cir. 1999) (finding direct evidence of intentional racial discrimination where
employer admitted that it had made job assignments based on race). Because
Turtola’s comment is not a blatant remark “whose intent could be nothing other
than to discriminate,” the district court did not err in finding Tippie failed to
present direct evidence of discrimination. See Bass, 256 F.3d at 1105.
b. Circumstantial evidence
We use the burden-shifting framework established in McDonnell Douglas
Corp. v. Green, 93 S. Ct. 1817 (1973), and Texas Dep’t of Cmty. Affairs v.
Burdine, 101 S. Ct. 1089 (1981), in order to evaluate claims based on
circumstantial evidence of discrimination. See Chapman v. AI Transport, 229 F.3d
1012, 1024 (11th Cir. 2000) (en banc). Under this approach, if a plaintiff can
establish a prima facie case of discrimination, the burden of production shifts to
the employer to articulate a legitimate, non-discriminatory reason for the
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employment decision. McDonnell Douglas, 93 S. Ct. at 1824. If the employer
meets this burden, then the burden shifts back to the plaintiff and merges with the
ultimate burden of persuasion, which “remains at all times with the plaintiff,” and
the plaintiff must “prove by a preponderance of the evidence that the legitimate
reasons offered by the defendant were not its true reasons, but were a pretext for
discrimination.” Burdine, 101 S. Ct. at 1093. A plaintiff can meet this burden
“either directly by 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.” Id. at 1095.
A plaintiff in a job-reduction case establishes a prima facie case by showing:
(1) that he was in a protected group and was adversely affected by an
employment decision; (2) that he was qualified to assume another
position at the time of discharge or demotion; and (3) evidence by
which a factfinder might reasonably conclude that the employer
intended to discriminate in reaching the decision at issue.
Barnes v. Southwest Forest Indus., Inc., 814 F.2d 607, 609 (11th Cir. 1987). In
Jameson v. Arrow Co., an age discrimination case, we noted we generally have
“eschewed an overly strict formulation of the elements of a prima facie case,” and
concluded “where a job for which the plaintiff is qualified, and for which the
plaintiff applies, is available at the time of termination, and the employer offers the
job to an individual outside the protected . . . group, an inference of intentional
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discrimination is permissible.” 75 F.3d 1528, 1531-32 (11th Cir. 1996); see
also Burdine, 101 S. Ct. at 1094 (noting the plaintiff’s burden of establishing a
prima facie case “is not onerous”).
We conclude Tippie met her burden of demonstrating a prima facie case of
discrimination based on either her national origin or her gender, and the district
court erred in finding otherwise. Following the reduction-in-force, Tippie was
qualified for and considered for an available position within the company, but
Spacelabs offered the job to Carrillo, who was not American or female. Although
this is not strong evidence, it is sufficient to raise an inference of intentional
discrimination based on either national origin or gender. See Jameson, 75 F.3d at
1531-32.
Because Tippie has established a prima facie case of discrimination,
Spacelabs has the burden of producing a legitimate, non-discriminatory reason for
the adverse employment action. McDonnell Douglas, 93 S. Ct. at 1824. In this
case, Spacelabs asserted it chose to hire Carrillo instead of Tippie because he was
better qualified for the position based on (1) his experience working for and
running a distributor in Latin America; (2) his greater technical and clinical
training and experience; and (3) his superior language abilities. We conclude this
was a legitimate reason for choosing to hire Carrillo, and therefore, the burden
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shifts back to Tippie to “prove by a preponderance of the evidence that the
legitimate reasons offered by the defendant were not its true reasons, but were a
pretext for discrimination.” Burdine, 101 S. Ct. at 1093.
Tippie attempts to show pretext in a number of ways, including (1) directly,
by alleging that she was more qualified for the position; (2) indirectly, by showing
that the decision-making process was unworthy of credence; and (3) indirectly, by
showing shifting justifications for the adverse employment action. Tippie failed to
raise a genuine issue of material fact regarding whether Spacelabs’ reasons were
pretext, and she failed to produce sufficient evidence to meet her ultimate burden
of proving by a preponderance of the evidence the adverse employment action was
based on discriminatory animus. Tippie cannot show Spacelabs’ reasons were
pretext by arguing she was more qualified for the position. Although it is possible
to show pretext by asserting superior qualifications, a plaintiff will only be
successful if 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) (quotations and citation omitted),
cert. denied, 126 S. Ct. 478 (2005).2 In this case, Tippie was unable to show her
2
In Ash v. Tyson Foods, Inc., the Supreme Court held this Court’s precedent requiring the
disparity in qualifications be “so apparent as virtually to jump off the page and slap you in the face,”
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qualifications were so much better than Carrillo’s that no reasonable person could
have chosen Carrillo for the position. Tippie’s other attempts at showing pretext
also fail, as our independent review of the record shows Spacelabs’ reasons for
selecting Carrillo would motivate a reasonable employer and were consistent
throughout the entire process. Accordingly, we affirm the district court’s grant of
summary judgment to Spacelabs as to this issue.
2. Senior Product Management position
Tippie asserts she also presented both direct and circumstantial evidence of
discrimination with respect to Spacelabs failure to hire her into the Senior Product
Management position. As discussed above, Tippie failed to present any direct
evidence of discrimination, and thus, must proceed under the McDonnell Douglas
burden-shifting framework used to evaluate circumstantial evidence.
The district court did not err in concluding Tippie failed to establish a prima
facie case of discrimination with respect to the Senior Product Management
position. Tippie did not demonstrate, under the second prong of the prima facie
analysis, that she was qualified to assume the position because she did not have an
engineering degree or sufficient technical knowledge of the products.
to be unhelpful and imprecise. 126 S. Ct. 1195 (2006). In Ash, the Supreme Court cited, without
articulating an exact standard, the standard quoted above. Id.9
B. Dismissal of race discrimination claim under 42 U.S.C. § 1981Tippie asserts the district court erred in dismissing her claim of race
discrimination under 42 U.S.C. § 1981 after finding the claim was premised
entirely on discrimination based on her national origin, not her race. “Section 1981
prohibits intentional race discrimination in the making and enforcement of public
and private contracts, including employment contracts.” Ferrill v. Parker Group,
Inc., 168 F.3d 468, 472 (11th Cir. 1999); see also Saint Francis College v. Al-
Khazraji, 107 S. Ct. 2022, 2026 (1987) (noting § 1981 has been construed to forbid
all “racial” discrimination in the making of contracts). “All persons . . . shall have
the right . . . to make and enforce contracts, to sue, be parties, give evidence, and to
the full and equal benefit of all laws and proceedings for the security of persons
and property as is enjoyed by white citizens . . . .” 42 U.S.C. § 1981(a). By its
very terms, § 1981 applies to claims of discrimination based on race, not national
origin. See id.
The district court did not err in dismissing Tippie’s § 1981 race
discrimination claim because her only alleged evidence of discrimination was
based on the fact that she is not a native of Latin America. This is a claim based on
her national origin, not her race. Accordingly, the district court did not err in
dismissing this claim as not cognizable under 42 U.S.C. § 1981.
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II. CONCLUSION
Tippie failed to raise a genuine issue of material fact on her claims of
discrimination. The district court did not err in granting Spacelabs’ motion for
summary judgment.
AFFIRMED.
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