Thomas W. Holmes v. Alabama Board of Pardons & Paroles , 591 F. App'x 737 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-11330
Non-Argument Calendar
________________________
D.C. Docket No. 2:12-cv-00279-WKW-CSC
THOMAS W. HOLMES,
Plaintiff-Appellant,
versus
ALABAMA BOARD OF PARDONS & PAROLES,
Defendant-Appellee,
WILLIAM W. WYNNE, JR., et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(November 13, 2014)
Before HULL, JORDAN and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Thomas W. Holmes, a white male Probation and Parole Officer, appeals the
grant of summary judgment to his employer, the Alabama Board of Pardons and
Paroles (“Board”), in his suit alleging, inter alia, violations of Title VII of the Civil
Rights Act, 42 U.S.C. § 2000e-2, when the Board failed to promote him to Senior
Officer based on his race and gender or to District Manager based on his race. On
appeal, Holmes argues that the district court erred by: (1) granting summary
judgment on his Senior Officer claims; and (2) finding that he had failed to exhaust
his administrative remedies as to his District Manager claim. 1 After review, we
affirm.
I. FACTUAL BACKGROUND
A. Promotion of Probation and Parole Officers
Because Holmes’s claims involve the Board’s failure to promote him to
Senior Officer or District Manager positions, we first review the Board’s
promotion process.
Under Alabama’s merit system, an entry-level Probation and Parole Officer
(or PO I) with two years of service is eligible for promotion to Senior Officer (or
1
On appeal, Holmes does not challenge the district court’s order dismissing: (1) all of his
claims against the individual defendants; (2) his claims under the Age Discrimination in
Employment Act, 42 U.S.C. §§ 1981 and 1983, and state law; and (3) his Title VII hostile work
environment claim. Accordingly, Holmes has abandoned any issues with respect to these claims.
See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
2
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PO III) or District Manager (or PO IV). 2 To be promoted, the officer must apply
with the State Personnel Department, which administers tests to all eligible
applicants. The State Personnel Board then places the applicants on a promotional
register, or “certificate of eligibles,” and groups the applicants in “bands” based on
their test scores. Applicants within a band have statistically similar test scores and
are considered equally ranked within the applicant pool. This promotional register
lists the top ten “eligibles” and all applicants who tied the tenth highest eligible.
Applicants are ranked both statewide and by preferred county. An applicant may
share his statewide or county rank with other applicants.
Because the register for Senior Officer promotions is “continuous,” officers
wishing to be considered for those promotions must retake the Senior Officer test
periodically to avoid falling off the register. Consequently, names and rankings on
the Senior Officer register frequently change as old names receive promotions or
fall off and new names are added.
The District Manager classification has a separate test and promotional
register. Unlike the Senior Officer register, the District Manager register is
“closed,” meaning the State Personnel Department opens the register for only a
2
In late 2011, the Board changed the promotion protocol to require two years of service in
the Senior Officer classification to be eligible for promotion to District Manager. At the time of
the events giving rise to Holmes’s claims, however, an entry-level officer with two years of
service could apply for promotion to District Manager.
3
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short period to accept applications for a vacancy and then closes the register again
until there is another vacancy.
The Board had a promotion protocol, effective August 15, 2009, for
promoting officers to supervisor or manager positions within the agency. The
2009 protocol contains a list of objective criteria that must be considered in making
promotional decisions, including the candidate’s: (1) band number; (2) advanced
degrees; (3) years in law enforcement, social services, or rehabilitation services;
(4) unique objectively-based qualifications; (5) supervisory experience; and (6)
past three years of performance appraisals, disciplinary actions, reprimands, and
written warnings. The 2009 protocol also contains a list of subjective criteria,
including: (1) the candidate’s audits and statistical reports; (2) the last three years
of supervisors’ evaluations; (3) additional written input from the current
supervisor; (4) the candidate’s writing sample and resume; and (5) the interview.
The evaluating committee or person has direct access to each candidate’s personnel
file and may be provided “candidate packets” of information “to use in
deliberating.”
Under the 2009 protocol, once the Board identifies a Senior Officer or
District Manager vacancy, the Board requests a certified promotional register from
the State Personnel Department, which the Board uses to fill the vacancy. A
person or committee interviews applicants from the register and then completes
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two worksheets of notes evaluating the candidates based on the objective and
subjective criteria. The criteria are not weighted. Each evaluator has discretion in
assigning weight to the criteria, and the worksheets are merely tools used to
evaluate each interviewed candidate. After evaluating the candidates and
deliberating, the person or committee recommends a candidate for promotion up
the chain of command. Ultimately, the Board votes on the recommendation and
has discretion in making the final promotion decision. 3
B. Holmes’s Employment
In February 2001, Holmes began working as a Probation and Parole Officer,
most of that time in the field office in Montgomery, Alabama, where he lives. In
March 2009, Holmes moved to the Montgomery field office’s Pardon Unit, where
he primarily processed pardon applications. In this assignment, Holmes did not
ordinarily perform routine probation and parole officer field work, such as
supervising offenders, maintaining field notes, participating in arrests, attending
revocation hearings, preparing PSI reports or parole plans, collecting fees and
arrearages, collecting DNA samples, and performing drug tests. On June 16, 2013,
3
The record also contains a different, 2010 promotion protocol, effective December 6,
2010, applicable to all classifications of Board employment. Under the 2009 protocol, all
candidates on the register were interviewed and under the 2010 protocol, all candidates on the
register were “considered,” but only some were interviewed. The 2010 protocol does not contain
lists of objective and subjective criteria that must be considered.
For summary judgment purposes, we assume that the 2009 protocol, which was specific
to probation and parole officers, still applied.
5
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Holmes was promoted to Senior Officer in the Montgomery Central Office’s
Pardon Unit.
Throughout his employment, Holmes received generally positive
evaluations, although a few evaluations noted issues with timeliness and attention
to detail. Additionally, Holmes’s personnel file contains some disciplinary actions
during the years before he moved to the Pardon Unit, including: (1) a 2003
reprimand for failing to accurately report an offender’s sentence end date, which
led to three months of wrongful incarceration; (2) notes in his 2003 evaluation
about the failure to comply with arrest procedures; (3) a 2004 written reprimand
for improper use of an assigned cell phone, making an insubordinate statement,
and conducting field activities without the presence of another officer, in violation
of office policy; and (4) a 2006 written warning for making an unauthorized
request for the criminal history of a supervisor.
C. Senior Officer Promotions
In either 2004 or 2005, Holmes first took the Senior Officer test and began
applying for promotion. Thereafter, Holmes periodically re-took the Senior
Officer test when he received notice that he had dropped off the register. At one
point, Holmes was on the register statewide, but later (Holmes does not know
when), he changed his desired locations to counties around Montgomery.
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Holmes claims that he was consistently passed over for Senior Officer
promotions in favor of officers who were African-American or female. Holmes’s
peers frequently commented to him that Holmes was “not the right color” for
promotion, but Holmes did not hear this comment from supervisors in his chain of
command. Holmes believed he was denied promotions based on his race and
gender because he “continually” saw less experienced and less educated African-
American and female officers get promoted rather than him. Holmes also believed
there was a conspiracy within upper management to ensure African-American and
women officers were promoted to Senior Officer positions.
State Personnel Department records indicate that, between January 2005 and
April 2013, a total of 95 Probation and Parole Officers were promoted to Senior
Officer throughout the state. Of those 95 promotions, 58 officers were white, and
62 officers were male. In other words, during the time Holmes was applying for
Senior Officer promotions, white and male officers received more Senior Officer
promotions than anyone else.
It is undisputed that Holmes did not receive a promotion until June 2013.
Before 2009, however, it is unclear how often Holmes’s name appeared on the
Senior Officer register, whether and when he was available for promotion
statewide, and how often he was considered or interviewed for promotion.
According to State Personnel Department records, between January 2009 and
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August 2011, 36 Senior Officer promotions occurred. During that time, Holmes’s
name appeared on only six Senior Officer promotional registers. In other words,
during the period for which there are records, Holmes was eligible for less than
twenty percent of the Senior Officer promotions.
Holmes’s appeal involves only three Senior Officer promotions in the
Montgomery field office, all of which occurred in 2011. 4 Holmes appeared on the
register, and was considered and interviewed, for each of these three promotions,
but ultimately was not selected. Instead, the Board promoted Elizabeth Planer, a
white woman, and Reginald Carter, an African-American man, on April 27, 2011,
and Christopher Causey, an African-American man, on June 30, 2011. 5
State Personnel Department records reflect that Planer, Carter, Causey, and
Holmes all fell within the same “band” on the promotional registers and thus were
equally ranked. While Holmes had a masters degree, Carter had a law degree, and
4
The district court concluded that these three Senior Officer promotions were the only
promotions that occurred within 180 days of Holmes’s filing of his charge with the Equal
Employment Opportunity Commission (“EEOC”) and thus were the only failure-to-promote
claims that were not time-barred. See 42 U.S.C. § 2000e-5(e)(1) (requiring an employee in a
non-deferral state such as Alabama to exhaust administrative remedies by filing a charge of
discrimination with the EEOC within 180 days of the alleged unlawful employment practice).
On appeal, Holmes does not challenge this ruling, and we do not address it.
5
Holmes heard rumors within the agency that some African-American and female
officers received help preparing their answers to the take-home Senior Officer test and
complained to upper management, the State Personnel Department, and the Alabama Attorney
General’s Office. After a 2010 internal affairs investigation, a new Senior Officer test was
introduced in March 2011. Holmes did not present any evidence that the three successful
promotees for Holmes’s claims (Carter, Causey, or Planer) received help with respect to their
2011 promotions and admitted in his deposition that he did not know whether any of them had
cheated on the Senior Officer test.
8
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Causey and Planer had bachelors degrees. Holmes had more years of experience at
the agency than Carter, Causey, or Planer.
D. District Manager Promotions
At some point (Holmes does not remember when), Holmes took the District
Manager test and began to apply for District Manager promotions. Although it
was theoretically possible to be promoted directly to District Manager without first
being promoted to Senior Officer, Holmes was unaware of any such promotions.
Between January 2005 and April 2013, 19 officers were promoted to District
Manager, 12 of whom were white and 13 of whom were male.
In October 2008, Holmes’s name appeared on a newly created promotional
register for a District Manager position, along with 67 other candidates. Ten
candidates were listed in band 01. Holmes and 42 other candidates were listed in
band 02, and the remaining 15 candidates were listed in band 03. Thus, at that
time, Holmes was “ranked” eleventh in the state, but he was tied for that position
with 41 other band 02 applicants. On November 26, 2008, Stephanie Woodruff, a
black woman who also was on band 02, received the promotion.
According to a printout from the State Personnel Board’s website, in August
2010, Holmes’s name appeared on a “current” promotional register for a District
Manager position. The printout listed Holmes’s statewide rank as tenth, but did
not indicate how many other candidates were on the register. State Personnel
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Department records indicate, however, that no District Manager promotions
occurred in 2010. In July and August 2011, three white males were promoted to
District Manager positions. Holmes appeared on those promotional registers, and
was considered for the three promotions, but was not selected.
E. EEOC Charge
Shortly thereafter, in late July and early August 2011, Holmes wrote two
letters to the EEOC claiming race and gender discrimination in the Board’s failure
to promote him to a Senior Officer position and age discrimination in failing to
promote him to any of the three 2011 District Manager positions. On August 9,
2011, Holmes filed a formal charge of discrimination based on these claims.
F. Post-Charge District Manager Promotion
On September 13, 2011, after Holmes filed his EEOC charge, a third District
Manager promotion occurred. Specifically, Roderick Chambers, a black male
Senior Officer was promoted to District Manager in the Montgomery field office.
The record does not reflect whether Holmes appeared on the register for this
District Manager position. In a subsequent letter to the EEOC, Holmes cited the
Board’s failure to promote him to Chambers’s District Manager position as another
example of his employer promoting a “younger, less educated, and less
experienced” candidate than Holmes.
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After the EEOC issued a right to sue letter, Holmes filed this action in the
district court. The district court granted the Board’s summary judgment motion
with respect to both the Senior Officer and District Manager failure-to-promote
claims. As to the Senior Officer claims, the district court concluded that Holmes
failed to present evidence establishing his prima facie case. As to the District
Manager claims, the district court found that Holmes claimed only age
discrimination in the EEOC and that his race and gender discrimination claims
were “beyond the scope of the EEOC charge.”
II. THREE SENIOR OFFICER PROMOTIONS
A. McDonnell-Douglas Framework
Where, as here, a Title VII plaintiff uses circumstantial evidence to prove
discrimination, we apply the burden-shifting approach articulated in McDonnell
Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). Brown v.
Ala. Dep’t of Transp., 597 F.3d 1160, 1181 (11th Cir. 2010). Under this approach,
the plaintiff must first make a prima facie case of discrimination. Alvarez v. Royal
Atlantic Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010). If the plaintiff
does so, a presumption of discrimination arises, and the burden of production, but
not persuasion, shifts to the employer to articulate a legitimate, non-discriminatory
reason for the promotion decision. Kidd v. Mando Am. Corp., 731 F.3d 1196,
1205 (11th Cir. 2013). If the employer meets its burden, the burden shifts back to
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the plaintiff to produce evidence that the proffered reason was a pretext for
discrimination. Springer v. Convergys Customer Mgmt. Group, Inc., 509 F.3d
1344, 1347 (11th Cir. 2007). While the intermediate burdens of production shift
back and forth, “[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.” Id.
B. Prima Facie Case
To state a prima facie case, the plaintiff must show that: (1) he is a member
of a protected class; (2) he was qualified and applied for the promotion; (3) he was
rejected despite his qualifications; and (4) the position was filled with an individual
outside the protected class. Walker v. Mortham, 158 F.3d 1177, 1186, 1193 (11th
Cir. 1998). In Walker, this Court concluded that the plaintiff need not establish as
part of the prima facie case that the promoted employee was equally or less
qualified than the plaintiff. Id. at 1193. Since Walker, some of this Court’s
decisions state that the fourth element does require the plaintiff to show that the
promoted employee was equally or less qualified. See, e.g., Brown v. Ala. Dep’t
of Transp., 597 F.3d 1160, 1174 (11th Cir. 2010); Wilson v. B/E Aerospace, Inc.,
376 F.3d 1079, 1089 (11th Cir. 2004); Lee v. GTE Florida, Inc., 226 F.3d 1249,
1253 (11th Cir. 2000). We need not resolve this conflict because, even assuming
arguendo that Holmes satisfied his prima facie case, Holmes failed to rebut the
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Board’s legitimate, non-discriminatory reasons for not promoting him. See
Cuddeback v. Fla. Bd. of Educ., 381 F.3d 1230, 1235-36 (11th Cir. 2004)
(explaining that we may affirm the district court’s grant of summary judgment on
any legal ground supported by the record, regardless of whether the district court
relied on that ground).
B. Pretext
To show pretext, the plaintiff cannot recast the employer’s proffered reason,
but must meet the reason “head on and rebut it.” Chapman v. AI Transport, 229
F.3d 1012, 1030 (11th Cir. 2000) (en banc). The plaintiff must show both that the
reason was false and that discrimination was the real reason. Brooks v. Cnty.
Comm’n of Jefferson Cnty., Ala., 446 F.3d 1160, 1163 (11th Cir. 2006). At this
stage, a “new level of specificity” applies, and the plaintiff must demonstrate “such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
the employer’s proffered legitimate reasons for its action that a reasonable
factfinder could find them unworthy of credence.” Rioux v. City of Atlanta, 520
F.3d 1269, 1275 (11th Cir. 2008); see also Earley v. Champion Int’l Corp., 907
F.2d 1077, 1081 (11th Cir. 1990) (explaining that the plaintiff must “present
concrete evidence in the form of specific facts which show that the defendant’s
proffered reason is mere pretext. Mere conclusory allegations and assertions will
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not suffice”). If the employer proffers more than one reason, the plaintiff must
rebut each of them to survive summary judgment. Chapman, 229 F.3d at 1037. 6
The Board proffered two reasons for its decisions not to promote Holmes to
the three Senior Officer positions—Holmes’s disciplinary record and his
specialization in pardon work in the Montgomery field office. Specifically,
although Holmes’s disciplinary matters were not a bar to his promotion, they
influenced his supervisors’ recommendations regarding whether to promote him.
The Board further explained that while Holmes’s specialization in pardon work
was a negative factor for promotion to a field office supervisor, it was a positive
factor in 2013, when Holmes was promoted to Senior Officer within the
Montgomery Central Office Pardon Unit.
Holmes attempted to rebut the Board’s reasons by showing that he was more
qualified than the promoted employees because he had a masters degree and had
more years of experience as a parole and probation officer. Holmes pointed to the
Board’s 2009 promotion protocol, which listed among its objective criteria the
candidate’s advanced degrees and years in law enforcement.
6
We review de novo the grant of summary judgment, construing the facts and drawing all
reasonable inferences from those facts in the light most favorable to the non-moving party.
Moton v. Coward, 631 F.3d 1337, 1341 (11th Cir. 2011). Summary judgment is proper “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).
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Holmes also relied upon his own declaration, in which he provided
generalized information about Senior Officer promotions by race and gender
between 2007 and 2011. Although Holmes’s declaration claimed that he “learned”
this information from “examination of the discovery” materials the Board had
produced, he did not submit any of those discovery materials to the district court. 7
The Board did submit some of those discovery materials, including State Personnel
Department’s records of Senior Officer and District Manager promotions, which
demonstrated that Holmes’s data was in fact inaccurate. Holmes further stated his
own conclusory opinion that he was more qualified than all the individuals
promoted because he was “more highly ranked and had superior education and
experience.”
Holmes’s declaration did not specifically address the qualifications of
Causey, Carter, and Planer. Holmes claimed that “Carter was promoted with
disciplinary warnings and reprimands in his file,” but did not provide any details or
attach any supporting documents. Holmes made no claims about Causey’s and
Planer’s disciplinary record and did not provide information about the three
7
Specifically, Holmes’s declaration stated that, based on his “examination of the
discovery in this case,” he had “learned that 23 officers were awarded promotions” to Senior
Officer between January 2007 and August 2011, and that “22 of these 23 promotions were
awarded to officers who were nonwhite and/or female.” Holmes further stated that he learned
“[f]rom [his] examination of the applications of these officers,” that “none of the 23 officers
selected for promotion has more experience that [sic] [he] did, and 12 had less than three years’
experience” and that “18 of the 23 officers selected for promotion . . . did not possess a graduate
degree.” But, Holmes did not submit any of the discovery he claimed to have reviewed.
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promoted officers’ work experience or areas of specialization. Further, Holmes did
not dispute his own disciplinary record or that, as a pardons specialist, he
ordinarily did not perform field duties.
By focusing on his years of experience and advanced degree, Holmes merely
quarreled with the wisdom of the Board’s reasons for not promoting him in 2011
and did not address those reasons “head on.” See Chapman, 229 F.3d at 1030.
Additionally, Holmes’s declaration made only conclusory assertions that the
officers receiving promotions were less qualified, which is not sufficient to show
pretext. Instead, Holmes needed to present “concrete evidence in the form of
specific facts” rebutting the Board’s reasons. See Earley, 907 F.2d at 1081; see
also Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir. 2000) (explaining
that “conclusory allegations without specific supporting facts have no probative
value” in opposing summary judgment). For example, Holmes did not present
evidence that Causey, Carter, and Planer had similar disciplinary records or that
they also specialized in pardon work. Indeed, Holmes failed to present almost any
evidence at all of the three promoted employees’ qualifications, whether linked to
the Board’s proffered reasons or not. Thus, Holmes failed to show that Causey,
Carter, and Planer were less qualified than him, much less that there was a
disparity in qualifications “of such weight and significance” that a reasonable
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person could not have chosen Causey, Carter, and Planer over Holmes. See Kidd,
731 F.3d at 1206.
Holmes’s declaration also identified three officers (other than Causey,
Carter, or Planer) who were promoted to Senior Officer positions even though they
either had a disciplinary record or performed pardon work. Holmes argues that the
fact that these other officers were promoted shows the Board’s reasons lack
credibility. The Board, however, did not claim that a disciplinary record or pardon
work is a bar to promotion, just that they influenced his supervisors’
recommendations of him for the three relevant Senior Officer promotions.
Furthermore, evidence of comparators who are treated more favorably
cannot show pretext unless those comparators are “similarly situated to the plaintiff
in all relevant respects.” See Rioux, 520 F.3d at 1280 (quotation marks and
alterations omitted). Holmes offered no other information about his proffered
comparators except that they had a disciplinary record or performed pardon work
and thus did not show they were “similarly situated” to him in all relevant respects.
Accordingly, Holmes did not present evidence from which a reasonable jury could
conclude that the Board’s two proffered reasons were false and a pretext for
discrimination.
Finally, Holmes’s argument that the district court improperly shifted the
burden of proof to him at summary judgment lacks merit. Consistent with Federal
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Rule of Civil Procedure 56(c)(1), the Board both cited to record evidence showing
the presence of some undisputed facts and also pointed out that Holmes’s own
evidence was insufficient to carry his ultimate burden to prove by a preponderance
of the evidence that the failure to promote him to the three Senior Officer positions
was discriminatory. See Fed. R. Civ. P. 56(c)(1)(A)-(B) & advisory committee’s
notes (2010 Amendments, Subdivision (c)); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322-323, 106 S. Ct. 2548, 2552 (1986) (explaining that the moving party
need not affirmatively negate the opponent’s claim with affidavits or other
materials, but instead may meet its summary judgment burden by showing there is
a lack of evidence to support the essential elements the non-moving party must
prove at trial); Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991)
(explaining that, per Celotex, “under certain circumstances the movant may meet
its Rule 56 burden without negating an element of the non-moving party’s claim
and that under such circumstances it is sufficient to point to materials on file that
demonstrate that the party bearing the burden of proof at trial will not be able to
meet that burden”).
III. DISTRICT MANAGER PROMOTION
A. Exhaustion of Administrative Remedies
Holmes claimed that the Board denied him the September 2011 District
Manager promotion—the one awarded to Chambers—based on race. The district
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court concluded that Holmes had failed to exhaust this race-based failure-to-
promote claim in the EEOC. We agree.
Before a plaintiff may file a Title VII action, he must first exhaust his
administrative remedies by filing a charge of discrimination with the EEOC.
Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277, 1279 (11th Cir. 2004).
While we must liberally construe an EEOC charge that was prepared without
assistance of counsel, a plaintiff’s civil complaint remains “limited by the scope of
the EEOC investigation which can reasonably be expected to grow out of the
charge of discrimination.” Id. at 1280 (quotation marks omitted). We have
cautioned “that allegations of new acts of discrimination are inappropriate” for a
post-charge judicial complaint. Id. at 1279-80.
Here, Holmes’s raced-based District Manager claim did not fall within the
scope of his EEOC charge for two reasons. First, this claim alleged a discrete act
of discrimination—a promotion—that occurred after Holmes filed his EEOC
charge. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S. Ct.
2061, 2073 (2002) (“Each incident of discrimination . . . constitutes a separate
actionable ‘unlawful employment practice.’”); Gregory, 355 F.3d at 1279 (stating
that it is inappropriate to allege new acts of discrimination). Specifically, Holmes
filed his charge on August 9, 2011, but Chambers’ promotion did not occur until
one month later, on September 13, 2011.
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Second, Holmes’s communications with the EEOC emphasized only age
discrimination with regard to District Manager promotions, and not race
discrimination. For example, in the two pre-charge letters Holmes sent to the
EEOC, he advised, inter alia, that he had recently interviewed for two District
Manager positions, but that two white males who were younger and had less
experience had been selected for these positions. Holmes stated that “therefore, I
am making another claim of age discrimination.”
In his formal EEOC charge, Holmes checked the boxes for discrimination
based on race, color, sex, and age, but he claimed African-American candidates
were selected over him only with respect to the Senior Officer position. As to the
District Manager position, Holmes’s charge stated, “I was also denied a promotion
to the position of district manager and a less experienced, less educated, younger
officer was promoted.”
Later, in a September 8, 2011 post-charge letter, Holmes again discussed the
District Manager promotions, stating that since July 2011, he was passed over four
times, and that “[a]t least two of these recent promotions to District Manager were
to less educated, less experienced, and younger candidates than me .” With respect
to Roderick Chambers’s promotion in particular, Holmes stated that Chambers
“happens to be black,” but also claimed Chambers was “less educated, less
experienced, and younger than me.” Holmes asserted that “in the absence of clear
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definitive promotional policy, my employer promotes those younger, less
educated, and less experienced than myself.” Holmes further pointed out that
Chambers’s promotion to District Manager discriminated against both him and an
African-American female officer in her fifties, signifying that age, not race, was
the alleged discriminatory motive in the decision.
Given that Holmes’s own communications with the EEOC stressed age, not
race, discrimination in the District Manager promotions, we cannot say a race
discrimination claim could reasonably be expected to arise from his complaints
about the District Manager promotions. Accordingly, the district court correctly
concluded that any race discrimination claim as to the District Manager position
was outside the scope of Holmes’s EEOC charge and properly declined to consider
such a claim.
B. Prima Facie Case
However, even assuming arguendo that Holmes’s passing reference to
Chambers’s race in his September 8, 2011 letter exhausted Holmes’s race
discrimination claim, the district court still properly granted summary judgment on
this claim because Holmes did not present evidence that he was “qualified for” the
District Manager position Chambers received. To establish a prima facie claim of
failure to promote, the plaintiff must present evidence that he “applied for and was
qualified for” the promotion. Brown, 597 F.3d at 1174. An employee is “qualified
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for” a promotion if the employee “offers evidence that [he] satisfied an employer’s
objective qualifications.” Kidd, 731 F.3d at 1204 (quotation marks omitted).
In Holmes’s case, it is undisputed that to be eligible for promotion to an
open District Manager position, a probation and parole officer must take the
District Manager test and appear on the State Personnel Board’s promotional
register, or “certificate of eligibles.” In his deposition, Holmes admitted he took
the District Manager test only once, but he could not remember when he did so.
Holmes submitted a printout from the State Personnel Board’s website indicating
that he was on a “current” District Manager promotional register on August 18,
2010. The decision to promote Chambers, however, did not occur until September
2011, one year later. And, District Manager promotional registers are closed rather
than continuous, meaning they do not remain open to fill later vacancies.
Therefore, Holmes did not present evidence that he was listed on the particular
promotional register used to fill, and thus was eligible for, the District Manager
position that Chambers received.
For all these reasons, we affirm the district court’s entry of summary
judgment in favor of the Board on Holmes’s failure to promote claims.
AFFIRMED.
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