Anderson v. Westinghouse Savannah River Co. ( 2005 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
VIRGINIA ANDERSON, 
Plaintiff-Appellant,
and
SHERMAN T. LOTT; VERNELLE
PAYTON; LARRY COLEMAN; AVA
HAWKINS; CURTIS YOUNG; CLINTON
EDWARDS, JR.; FRANCIS H. NEWMAN,
JR.; SAMUEL QUILLER; PAMELA WADE;
BENNIE BREELAND; GLENN
STEPHENSON; KENNETH L. BRADY,
SR.; CLYDE REED; ROBIN HOLMAN;
JOHN L. NAYLOR; GWENDOLYN H.
WATTS; ALTON BARNES; HAYWARD
ERVIN; ALANA J. LEWIS; DEBRA A.
WILLIAMS; JIMMIE LEE TURNER;  No. 03-1150
WILLIAM BONAPARTE, JR.; JEFFREY A.
MYERS; JOHNNY J. HOLMES; JAMES
SHERMAN, III; DEBBIE S.G. POPE;
CHARLES JONES; ANNIE B. LOTT-
ABNEY; OLIVIA G. GAVIN; DIANE J.
CRAWFORD; MAXINE S. WHITE;
MARVIN MOORE; BERTHA LEGREE;
IRMAGENE REED; WILLAR H.
HIGHTOWER, JR.; JEFFREY A. BAILEY;
CONSTANCE DORSEY; RYSON CARTER;
RHONDA M. TILLER; PEGGY M.
POLLOCK; CALVIN L. COOKS; GLORIA
J. COLLINS; DANITA L. MYLER;
PATRICIA LANGFORD; DELORES
BEASLEY; MARY L. JOHNSON;

2 ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO.
MOSES MYERS; BENITA BASS; LINCHIE 
H. SIMMONS; WALTER DAISE; WANDA
Y. SMITH; BERNARD NORA; CAROLYN
W. THORPE; TOMMY A. CAMPBELL;
DONALD F. BROOKS; LEWIS HOLSTON;
DEITRA M. POUGH; ANGELA Y.
HOLBROOK; PHYLLIS A. CALHOUN-
HURLEY; NORRIS V. ROUSE; URSULA
D. GAY-FURSE; DEBRA GANTT;
ELVIRA JOHNSON; WILLIAM R. HALL;
SHARON M. CAMPBELL; WINSTON
BUTLER; QUITMAN WHITE; LEON
BAKER; LINDA B. BAKER; GEORGE
BUSH; GARY L. CARTER; CURTIS
COKER, JR.; DIANNE T. DAVIS;
SANDRA HARRISON; CHARLOTTE 
JOHNSON; TYRONE DAVIS; MARINDA
B. JOHNSON; JOHNNY KING; DELORES
MARTIN; CLINTON L. MCCALLA;
DOUGLAS MCKENZIE; MARILYN
MCKIE; MARLENE L. MOORE; JAMES
MOTON; GOLDIE S. RANDLE; THOMAS
WILLIAMS; JOSEPH RIDEAUX; WILLIAM
L. RYANS; DIANNE S. SCOTT;
VERONICA SHAW; MICHAEL STALEY;
CALVIN R. SUBER; GEORGE A.
TAYLOR; ELLEN M. VESSEL; KENNETH
E. VINSON; HOPE YARBOROUGH, for
themselves and on behalf of all
others similarly situated,
Plaintiffs,

ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO. 3
v. 
WESTINGHOUSE SAVANNAH RIVER
COMPANY; THE BABCOCK & WILCOX
SAVANNAH RIVER COMPANY,
INCORPORATED; BRITISH NUCLEAR
FUELS LIMITED SAVANNAH RIVER
CORPORATION; BECHTEL SAVANNAH
RIVER, INCORPORATED,
Defendants-Appellees. 
NAACP LEGAL DEFENSE AND
EDUCATION FUND, INC.,
Amicus Supporting Appellant,
EQUAL EMPLOYMENT ADVISORY
COUNCIL; CHAMBER OF COMMERCE,
Amici Supporting Appellee.

4 ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO.
VIRGINIA ANDERSON, 
Plaintiff-Appellant,
v.
WESTINGHOUSE SAVANNAH RIVER
COMPANY
Defendant-Appellee,
and
BECHTEL SAVANNAH RIVER,
INCORPORATED; THE BABCOCK &

WILCOX SAVANNAH RIVER COMPANY,
INCORPORATED; BRITISH NUCLEAR No. 03-1151
FUELS LIMITED SAVANNAH RIVER
CORPORATION,
Defendants.
NAACP LEGAL DEFENSE AND
EDUCATION FUND, INC.,
Amicus Supporting Appellant,
EQUAL EMPLOYMENT ADVISORY
COUNCIL; CHAMBER OF COMMERCE,
Amici Supporting Appellee.

Appeals from the United States District Court
for the District of South Carolina, at Aiken.
Cameron McGowan Currie, District Judge.
(CA-98-2075-1-23-BC; CA-00-1667-1-23-BC)
Argued: October 29, 2003
Decided: May 4, 2005
Before WIDENER, NIEMEYER, and GREGORY, Circuit Judges.
ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO. 5
Affirmed in part, vacated in part, and remanded with instructions by
published opinion. Judge Widener wrote the opinion. Judge Niemeyer
wrote a separate opinion concurring in part and dissenting in part.
Judge Gregory wrote a separate opinion dissenting in part.
COUNSEL
ARGUED: Ivan D. Smith, VLADECK, WALDMAN, ELIAS &
ENGELHARD, P.C., New York, New York, for Appellant. Glen
David Nager, JONES DAY, Washington, D.C., for Appellees. ON
BRIEF: Julian R. Birnbaum, VLADECK, WALDMAN, ELIAS &
ENGELHARD, P.C., New York, New York; Ray P. McClain, RAY
P. MCCLAIN, ATTORNEY, P.A., Charleston, South Carolina;
BROWN & MULRAIN, L.L.P., New York, New York, for Appel-
lant. Deborah A. Sudbury, Douglas M. Towns, JONES DAY, Atlanta,
Georgia; Shay Dvoretzky, JONES DAY, New York, New York; Ken-
neth E. Young, NELSON, MULLINS, RILEY & SCARBOROUGH,
Greenville, South Carolina, for Appellees. Elaine R. Jones, Director-
Counsel, Norman J. Chachkin, Robert H. Stroup, NAACP LEGAL
DEFENSE AND EDUCATIONAL FUND, INC., New York, New
York, for Amicus Curiae NAACP. Stephen A. Bokat, Robin S. Con-
rad, Ellen Dunham Bryant, NATIONAL CHAMBER LITIGATION
CENTER, INC., Washington, D.C.; Ann Elizabeth Reesman, Kather-
ine Y.K. Cheung, MCGUINESS, NORRIS & WILLIAMS, L.L.P.,
Washington, D.C., for Amici Curiae Council and Chamber.
OPINION
WIDENER, Circuit Judge:
In this Title VII case, plaintiff Virginia Anderson appeals from the
district court’s orders denying class certification, granting the defen-
dants’ motions in limine, and granting summary judgment to the
defendants. We generally affirm the district court, but remand for
consideration of whether class should be certified with a new lead
plaintiff.
6 ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO.
I.
Virginia Anderson is a black female employed at the Department
of Energy’s Savannah River Site. The Savannah River Site is man-
aged for the Department of Energy by Westinghouse Savannah River
Company, LLC (Westinghouse). Bechtel Savannah River, Inc.,
(Bechtel), Babcox & Wilcox Savannah River Company (B & W), and
British Nuclear Fuels Ltd. Savannah River Corporation (BNFL) also
participate in the management of the Savannah River Site pursuant to
a contract with the Department of Energy. Each company is a defen-
dant in this action.
In the past, the Savannah River Site produced materials needed for
the fabrication of nuclear weapons, but its current mission is focused
on environmental cleanup and processing radioactive materials. The
Savannah River Site covers 310 square miles in western South Caro-
lina, and, in 1999, over 13,000 employees worked at the sites for the
four defendants. Of those employees, 2765 were black.
Virginia Anderson began working at the Savannah River Site in
1978 as a typist in a typing pool. Miss Anderson became a stenogra-
pher a year later. She worked as a stenographer in several different
departments at the Savannah River Site until 1989. In 1989, Miss
Anderson became an administrative secretary in the materials technol-
ogy group. The transition from stenographer to administrative secre-
tary was a promotion for Miss Anderson, and, as an administrative
secretary, she had more responsibilities. As an administrative secre-
tary, Miss Anderson received a salary at the SGL 16 level. Miss
Anderson remained with the materials technology group until July of
1998. In August of 1998, she received a promotion to administrative
assistant in the university relations group within the chemicals hydro-
gen technology group. With her promotion, Miss Anderson’s salary
level increased to SGL 28 SOP. SOP stands for selective overtime
positions, and, as a SGL 28 SOP employee, Miss Anderson received
additional compensation above her salary if she worked a certain
number of hours above her normal working hours. Miss Anderson
remained with the university relations group through the time she
filed her lawsuit against the defendants.
When she began working at the Savannah River Site, Miss Ander-
son’s higher educational background was limited to an executive sec-
ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO. 7
retary diploma from Augusta Tech, which she received in 1977.
During her tenure at the Savannah River Site, Miss Anderson pursued
further higher education degrees. In 1996, Miss Anderson took her
bachelor of science degree in human resources management from
Southern Wesleyan University. In June of 1998, Miss Anderson
received her masters in business administration from Nova Southeast-
ern University. Miss Anderson’s promotion from administrative sec-
retary, with a pay level of SGL 16, to administrative assistant, with
a pay level of SGL 28 SOP, came just months after she received her
M.B.A.
In the 1990’s, the Savannah River Site instituted two programs, one
for promotions and one for merit pay increases, that are at issue in this
litigation. The first is the Competency Based Posting System, or
CBPS. The Competency Based System is an application and promo-
tion system which Savannah River Site employees may use to apply
for new positions and promotions. Under the system, exempt or non-
exempt employees may apply for any posted position that is available,
with a few exceptions. According to the description contained in
Westinghouse Savannah River Company 5B Manual, the hiring and
promotion process under the Competency Based System is as follows:
1. Open position is submitted to HR for posting.
The hiring manager ensures the position description is
complete and correct; adding, and weighing the values
of, necessary competencies. HR Compensation estab-
lishes the salary grade of the position at or below the
salary grade of the previous incumbent (if any). No
preferred candidates exist in this system.
2. HR posts the position in ShRINE (sic) for ten working
days.
3. The hiring manager establishes an interview panel.
With the HR lead, the hiring manager selects appropri-
ate individuals, based on their job knowledge and
familiarity with the position, to sit on an interview
8 ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO.
panel. The panel consists of three members, one of
whom must always be the hiring manager.
4. Self-nominating individuals submit their qualifications
to HR-Staffing.
Submitted qualifications can include a Personal His-
tory form (OSR 27-13) and/or resume.
5. Individuals nominated by others submit their qualifica-
tions to HR-Staffing.
With their consent, candidates can be nominated by
others. Nominations are not restricted to managers.
The hiring manager cannot nominate. Candidates sub-
mit a Personal History form (OSR 27-13) or resume
and copies of their last three performance appraisals to
HR-Staffing.
6. HR confirms that applicants meet posted position
requirements.
Eligible candidates are identified based on minimum
requirements listed in the position profile.
7. HR-Equal Employment Opportunities (EEO) reviews
the list of applicants for consistency with corporate
and affirmative action planning.
8. HR-Staffing submits eligible applicants to the hiring
manager.
9. Within five working days of receiving the material
from HR-Staffing, the hiring manager selects candi-
dates for interviews.
10. All applicants are informed of the status of their appli-
cation.
ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO. 9
11. Individuals selected for an interview receive a candi-
date information package regarding the interview pro-
cess.
12. The hiring manager schedules and conducts, with the
panel, interviews within 10 working days after candi-
dates are notified of their status.
13. The hiring manager selects the candidate who best
meets position requirements.
The final decision is made by the hiring manager with
input from the other two interview panel members and
after review by the HR lead. The next level of manage-
ment must also review and approve the selected candi-
date.
14. HR-EEO review candidate selection for consistency
with corporate and affirmative action planning.
15. If a promotion is necessary, HR-Compensation, HR-
EEO, and the division HR lead review the decision to
ensure that all relevant criteria are met.
16. HR-Staffing prepares a formal offer and the hiring
manager extends the offer to the candidate.
17. The candidate accepts or rejects the offer within two
calendar days.
18. The hiring manager informs all interviewed candidates
and the sending manager of the selected candidate of
the selection process outcome.
19. The selected candidate is released to the new position
within four weeks of acceptance.
If the releasing manager and the hiring manager both
agree, the release time-frame can be shortened. The
release time-frame cannot exceed four weeks.
10 ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO.
Under the Competency Based System, hiring managers can evalu-
ate applicants in six core competencies: teamwork, leadership, com-
munications, business results, self-management, and employee
development. The hiring managers can also evaluate applicants using
selected functional competencies that are specific to the position for
which the manager is hiring. For example, a particular functional
competency could be "[p]roficient in heating, ventilation and air-
conditioning design," and the CBPS manual explains that
"[f]unctional competencies can be derived from the responsibility sec-
tion on the job description." Each competency is assigned a weight,
using a number from one to five, in which five is "[m]ost important
relative to other competencies" and one is "[l]east important relative
to other competencies." The interview panel then selects candidates
for interviews and then interviews each selected candidate.
Each applicant who is interviewed is evaluated by the interview
panel using the core and functional competencies. The interview
panel determines a weighted score for each applicant on each core
and functional competency. The panel determines the weighted score
by multiplying the weight given to each competency (one to five) by
the applicant’s rating for each competency. The panel rates the appli-
cant on a scale of one to five, with a five meaning "[d]emonstrates
exceptional competence" and a one meaning "[d]id not demonstrate
expected level of competence." The panel determines the applicant’s
total weighted score by adding together the weighted scores for each
competency. The hiring manager then selects the candidate for the
position, after noting the total weighted scores for each candidate, and
records the basis for selecting the chosen candidate.
The second program instituted at the Savannah River Site was the
Ranked Performance Pay Process, or RP3. The Site began using the
program in 1997 to rank exempt and selected overtime position
employees for merit increases in salary. Two major factors are uti-
lized under the RP3 system to determine which employees should
receive merit raises. Job performance constitutes 75% of the ranking
given to an employee, and the remaining 25% is derived from rank-
ings on Site Imperatives. Site Imperatives "are the basis of how we
[Site employees] each are expected to accomplish the business objec-
tives of our work group, division, and company as a whole." The five
Site Imperatives are safety, disciplined operations, cost effectiveness,
ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO. 11
continuous improvement, and teamwork. Each Site Imperative is
weighted five percent in the total ranking, with the total for all five
constituting 25% of an employee’s final ranking.
Under the RP3 system, each manager must use the RP3 electronic
evaluation worksheet to rate each employee in the manager’s organi-
zation. The evaluation process begins with the smallest unit of organi-
zation, the department or section. Once the initial rankings are
computed for the department or section, all employees within a single
work group are ranked by the next level of management. At the next
step, the rankings for a division, each division’s manager may inte-
grate the work group rankings to achieve a ranking of employees
within the division. The division manager may rank all employees in
various combinations. Among the combinations suggested by the RP3
system manual are (1) total ranking of all employees; (2) rank within
separate work groups; (3) managers, leads, and professionals; (4) sal-
ary grade clusters, i.e., all SGL 16 employees or all SGL 32 to 34
employees; or (5) managers, leads, and professionals by salary grade
clusters.
The employee rankings for each division are then broken into per-
formance categories consisting of the high 15%, the middle 80%, and
the low five percent. Final rankings are approved by the division man-
ager, and merit salary increases are awarded based on each division’s
budget and salary guidechart. The Human Resources Compensation
department must approve any merit increases that are outside of the
salary guidechart. All employees, regardless of their ranking percent-
age, are eligible for merit increases, but the top 15% may receive the
highest merit increases. Another factor that contributes to the size of
a merit increase is whether the employee is above or below the mid-
point of their salary grade. For example, if an employee is an A per-
former whose salary level is below the midpoint of his salary grade,
he is eligible to receive a merit increase, the amount of which may
be different if he is an A performer whose salary level is above the
midpoint of his salary grade.
In ranking their employees for job performance, which accounts for
75% of an employee’s ranking, the RP3 manual instructs managers
to consider the following factors:
12 ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO.
Job expectations
Quality and quantity of work
Position scope (performance against position description)
Support to achieving commitments
Feedback from others (managers, peers, or customers)
Awards, recognition
Performance standards (leadership, judgment)
For job performance, an employee receives a rating of either "Low,"
meaning "[c]onsistently performs at a level below expectations," or
"Mid," meaning "[c]onsistently performs at the level of expectations,"
or "High, " meaning "consistently performs at a level that exceeds
expectations." Managers also use the low, mid, or high rankings to
evaluate their employees in the five Site Imperatives. The RP3 man-
ual lists the performance indicators that managers should use when
determining whether an employee should receive a low, mid, or high
rank for each imperative.
In her lawsuit, Miss Anderson complains about three separate
instances in which she sought and subsequently failed to receive a
promotion. In 1997, Miss Anderson applied for the position of
Administrative Assistant in the Environmental Restoration Division.
The hiring manager, Miss Gail Toddings, posted the opening using
the CBPS, and approximately 150 employees applied for the position.
After the Site’s Human Resources department evaluated the applica-
tions, 30 to 40 resumes were sent to Miss Toddings. The outgoing
administrative assistant, Miss Laboris Curry, assisted Miss Toddings
in evaluating the resumes and choosing 15 people to interview. Miss
Toddings made the final decision on who would be interviewed. Miss
Anderson was selected for an interview, and she interviewed for the
position on December 15, 1997, before an interview panel chaired by
Miss Toddings. The interview panel recommended and Miss Todd-
ings selected Mrs. Linda Clarke for the position. Mrs. Clarke, a white
woman, received the highest consensus rating, a score of 190, among
all of the employees who were interviewed.1 Miss Anderson received
1
190 was the highest rating among the employees interviewed for the
position. Mrs. Clarke and another employee, Miss Shirley King, both
received scores of 190. (JA 11107-11108, 11115-11116) Miss King is a
white woman. (JA 11169)
ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO. 13
a rating score of 136, the second-lowest score given by the interview
panel. The interview panel gave its lowest rating score of 129.5 to a
white female employee.
In 1998, Miss Anderson applied for the position of Administrative
Assistant in the Business Development and Community Outreach
Division. Miss Anderson was not selected for an interview on the
basis of her low scores for the functional competencies of the posi-
tion. Only two applicants received higher scores in core competencies
than Miss Anderson, but eight applicants had higher ratings in the
functional competencies. Miss Anderson received a rating of 59 out
of a possible 72 for core competencies and a rating of 9 out of a possi-
ble 57 for functional competencies, for a total rating of 68. In con-
trast, the individual chosen for the promotion, Mrs. Brenda Pearson
(formerly Miss Brenda Boggs), a white woman, received a rating of
60 out of a possible 72 for core competencies and a rating of 57 out
of a possible 57 for functional competencies, for a total rating of 117.
Mrs. Pearson received the promotion, and Miss Anderson did not.
Miss Anderson also alleges that she was denied a promotion from
SGL 28 SOP to SGL 30 while in her position as administrative assis-
tant in the university relations group. She complains that she was told
she had to work in her current position for two to four years before
she could receive a promotion in place. She contends that white
employees received promotions in place without having to work in
their positions for two to four years.
II.
This lawsuit began on October 31, 1997, when ten black Site
employees filed a class action lawsuit against the defendants. The ten
plaintiffs brought claims under 42 U.S.C. § 1981 and Title VII alleg-
ing that the defendants denied black employees promotions on an
equal basis with white employees, maintained salary discrepancies
between black and white employees, denied black employees access
to training opportunities on an equal basis with white employees,
demoted black employees on the basis of their race, and discriminated
against black employees by keeping them in less desirable positions.
The ten plaintiffs also brought individual claims for disparate treat-
14 ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO.
ment on the basis of race. Miss Anderson later joined the lawsuit as
a plaintiff, and a total of 99 individuals became plaintiffs.
The plaintiffs sought to certify a class consisting of all current and
former black employees of the defendants who worked at the Site
who had been or will be subject to discrimination by the defendants.
After oral argument was held on the class certification motion, the
district court denied the motion "as to the proposed class or any sub-
class suggested by Plaintiffs." The district court determined that the
plaintiffs’ "across the board" challenges to the defendants’ employee
practices did not satisfy the requirements of Rule 23 of the Federal
Rules of Civil Procedure and were not supported by governing
Supreme Court and Fourth Circuit case law.
After denying the plaintiffs’ motion for class certification, the dis-
trict court ordered the plaintiffs to pursue their claims individually.
Following the district court’s instruction, Miss Anderson filed an
amended complaint on July 26, 2000. In her complaint, she brings
claims for disparate impact discrimination, relating to the defendants’
use of the CBPS and RP3 systems and to the defendants’ pay prac-
tices, and claims for disparate treatment, relating to the three promo-
tions she did not receive.
The district court held an evidentiary hearing after ruling on the
motions for class certification. At issue in the hearing was the pro-
posed testimony of Dr. Edwin L. Bradley, the plaintiff’s prospective
expert witness. After listening to testimony and argument, the district
court excluded from evidence Dr. Bradley’s proposed expert opinion
testimony on the discriminatory impact of the RP3 system. The dis-
trict court excluded this testimony on the grounds that it was based
on statistical research and analysis that did not have proper controls.
Dr. Bradley had conducted several studies regarding the RP3 system.
In several instances, Dr. Bradley’s statistical analysis compared black
and white employees under the RP3 ranking system without taking
into account any differences in their job titles or position. The district
court also excluded from evidence a draft copy of an assessment of
Westinghouse’s equal employment opportunity, human resources, and
employee concerns programs conducted by the Department of
Energy.
ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO. 15
The district court granted the defendants’ motion for summary
judgment as to Miss Anderson’s individual disparate impact and dis-
parate treatment claims. The district court denied the defendants’
motion for summary judgment as to Miss Anderson’s disparate treat-
ment pay claim, but Miss Anderson had the remaining claim dis-
missed with prejudice so that she could pursue this appeal.
III.
We review the district court’s grant of summary judgment to the
defendants de novo, viewing the facts and all reasonable inferences
drawn therefrom in the light most favorable to Anderson. See Ander-
son v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Williams v.
Giant Food Inc., 370 F.3d 423, 428 (4th Cir. 2004). Summary judg-
ment should only be granted when there are no genuine issues of
material fact in dispute and the moving party is entitled to judgment
as a matter of law. See Fed. R. Civ. P. 56(c); Walton v. Greenbriar
Ford, Inc., 370 F.3d 446, 449 (4th Cir. 2004).
IV.
The district court denied the motion for class certification on July
19, 2000. In its order and opinion denying class certification, the dis-
trict court directed the 99 plaintiffs to proceed with their cases on an
individual basis. The district court found that
not one single named Plaintiff in the proposed class asserts
claims involving all of the programs attacked; rather, the
pattern is one of combinations and permutations of some
Plaintiffs on some claims and different combinations and
permutations of Plaintiffs on other claims, etcetera.
Slip op. at 48. The district court cannot certify a class action in which
the class representative is not part of the class and does not "‘possess
the same interest and suffer the same injury’ as the class members."
Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331,
338 (4th Cir. 1998) (quoting E. Tex. Motor Freight Sys. Inc. v. Rodri-
guez, 431 U.S. 395, 403 (1977)).
16 ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO.
On appeal, Anderson argues that the district court should have cer-
tified two subclasses of black employees with disparate impact claims
involving the Competency Based Posting System and the Ranked Per-
formance Pay Process. In its opinion denying the plaintiffs’ motion
for class certification, the district court noted that the plaintiffs’ pro-
posed subclasses, if they had been raised in a timely fashion instead
of as part of the plaintiffs’ motion for reconsideration of the district
court’s ruling on class certification, would be denied because of the
failure of the proposed classes to satisfy the requirements of common-
ality and typicality.
After denying the plaintiffs’ motion for class certification, the dis-
trict court held a hearing to consider evidentiary issues. At the conclu-
sion of the hearing, the district court granted the defendants’ motion
to exclude the opinion of the plaintiffs’ expert, Dr. Edwin L. Bradley,
about the RP3 rankings and about merit increases under the RP3 sys-
tem. Miss Anderson appeals from the district court’s ruling on the
admissibility of this evidence. We address these contentions first.
V.
We review a district court’s decision to admit or exclude expert
evidence under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993), for abuse of discretion. Gen. Elec. Co. v. Joiner, 522
U.S. 136, 138-39 (1997). If the district court makes an error of law
in deciding an evidentiary question, that error is "by definition an
abuse of discretion." See Hunter v. Earthgrains Co. Bakery, 281 F.3d
144, 150 (4th Cir. 2002). In Daubert, the Supreme Court explained
that the previous test for the admissibility of "novel scientific evi-
dence" based on Frye v. United States, 293 F. 1013 (D.C. Cir. 1923),
was superseded by the adoption of the Federal Rules of Evidence.
Daubert, 509 U.S. at 585-589.
Rule 702 of the Federal Rules of Evidence provides:
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to deter-
mine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise, if (1)
ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO. 17
the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods
reliably to the facts of the case.
Fed. R. Evid. 702. When a party seeks to admit any expert testimony,
the district court’s obligation is "gatekeeping." See Kumho Tire Co.
v. Carmichael, 526 U.S. 137, 141 (1999). As the gatekeeper, the dis-
trict court should analyze the proposed expert testimony using several
factors, including whether the expert opinion can be tested and
whether it has been subjected to peer review. Daubert, 509 U.S. at
592-94. The district court should also consider the rate of error of the
methods employed by the expert, the existence and maintenance of
standards used in the expert’s methods, and whether the expert’s
methods have been generally accepted by his or her respective com-
munity. Daubert, 509 U.S. at 594; see also United States v. Crisp, 324
F.3d 261, 265-66 (4th Cir. 2003) (listing Daubert factors to be applied
in analyzing expert testimony).
Miss Anderson sought to introduce into evidence Dr. Bradley’s tes-
timony about the differences in RP3 ratings given to blacks as com-
pared to those given to whites. The report upon which this testimony
would be based showed that for the years 1998 and 1999 the number
of standard deviations between the RP3 rankings given to black
exempt employees and white exempt employees was -2.61 and -2.14,
respectively. In making the comparisons, Dr. Bradley controlled the
analysis using job groups. In other words, Dr. Bradley’s analysis
showed that, using the job groups as the category in which employees
are grouped, that whites had higher RP3 rankings than blacks.2 The
district court found this analysis wanting.
2
Dr. Bradley’s testimony also would have relied on nine other studies
that also failed to properly compare employees in similar job positions
and titles. Several of Dr. Bradley’s studies did not have any controls to
ensure that the percentage of high RP3 rankings and merit increases
awarded to African-Americans was not influenced by other factors or by
comparing dissimilar employees. Other studies reviewing merit increases
controlled for ranking received or for race and ranking but not for the
actual factors that comprise the ranking or for the different job responsi-
bilities that workers in different divisions may have. Five of Dr. Brad-
18 ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO.
The district court found that "the studies are deficient because they
use the EEO job groupings." During the hearing, Dr. Bradley testified
that job groups could contain numerous and diverse occupations. For
example, Dr. Bradley admitted under questioning that a single job
group could contain 147 separate individual job titles and up to seven
separate pay grades. Dr. Bradley also testified that a single job group
could contain the following job titles: optician, counsel, physician,
and psychologist. Furthermore, under the guidelines for managers
using the RP3 system to rate employees, the managers are instructed
that "[t]he single most important component of any employee’s over-
all performance involves the completion of their individual job-
related responsibilities. This factor is weighted 75% of the total evalu-
ation." Those instructions also note that the "[r]equirements of each
job are often unique - there is not a single standard by which all
employees can be measured." According to Savannah River Site
employment policies, the RP3 ranking system is to be utilized to
determine merit raises for employees within a single division. In 1998
and 1999, the Savannah River Site had at least 18 separate divisions,
and the RP3 system was to be used to rank employees for merit raises
within, and not across, each division.
Dr. Bradley’s studies utilized various controls, i.e. job group, job
performance categories, division, EEO job category, adjusted years of
service, FLSA group. The studies, however, failed to compare simi-
ley’s studies involving RP3 rankings compared workers only by division,
but, within a division, there are many distinct types of positions with dif-
ferent responsibilities.
In Herold v. Hajoca Corp., 864 F.2d 317, 321-22 (4th Cir. 1988), we
upheld the district court’s ruling to exclude statistical evidence that did
not compare the plaintiff with others who were similarly situated to the
plaintiff. In Herold, plaintiff sought to introduce statistical evidence
derived from the number of employees terminated in the company’s
entire mid-Atlantic region in order to establish a violation of the ADEA.
We upheld the district court’s refusal to allow such "region-wide statis-
tics" to be admitted. Instead, the district court permitted the plaintiff to
introduce statistical evidence derived only from the terminations of
employees at the defendant’s Staunton branch, where the plaintiff had
been employed. 864 F.2d at 321-22.
ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO. 19
larly situated workers at the Savannah River Site. In Smith v. Virginia
Commonwealth University, 84 F.3d 672, 676-77 (4th Cir. 1996) (en
banc), we noted that regression analysis utilized in the employment
discrimination context "must include all the major factors" which
influence the challenged action, such as ratings or pay. (emphasis in
original). The plaintiffs in Smith were five male professors at Virginia
Commonwealth University who brought a lawsuit under Title VII to
challenge pay raises given to female faculty members after the univer-
sity conducted a salary equity study. 84 F.3d at 674. In Smith, we
reversed the district court’s grant of summary judgment because the
district court relied on regression analyses that failed to include all
major factors that influence the salaries of professors. 84 F.3d at 676.
We also explained that
[a]lso at issue is the fact that the study included male faculty
members who had returned from higher paying positions in
the VCU administration but kept the higher salary. The
study did not account for this salary differential. This,
according to the appellants, leads to an illogical comparison
involving an inflated pool of faculty members; eighty-five
percent of the faculty whose salaries were increased because
of prior service as administrators were male. An inflated
pool can undermine the validity of a statistical study to
determine imbalances.
84 F.3d at 677 (footnote deleted). The study relied upon by the uni-
versity was deficient because it failed to properly compare the salaries
of male and female professors using the criteria that the university uti-
lized to award raises. See Smith, 84 F.3d at 676-77 (noting that VCU
used performance, productivity, and merit to award prior raises and
that these factors were not considered in the salary equity study).
The study used by VCU attempted to compare the salaries paid to
male and female professors. As professors, whether male or female,
the faculty at VCU was employed to teach and conduct research. The
salary equity study, though deficient, compared the salaries paid to
members of the same profession. Dr. Bradley’s studies, however,
evaluate the RP3 ranking process by using not a single job title for
comparison, such as professor, but by using job groups. As he admit-
ted during the evidentiary hearing, his study utilized results from a job
20 ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO.
group, which could include diverse jobs such as counsel, optician,
physician, and psychologist. The ratings for performance as a counsel
may be different from those for a physician, even if the counsel and
physician being compared are of the same race.
We are of opinion and hold that the district court did not abuse its
discretion in excluding Dr. Bradley’s testimony based on his statisti-
cal analysis. The analysis was based on comparisons that were not rel-
evant to Miss Anderson’s claims. "The usefulness of statistics
depends on the surrounding facts and circumstances." Carter v. Ball,
33 F.3d 450, 456 (4th Cir. 1994) (citing Int’l Broth. of Teamsters v.
United States, 431 U.S. 324, 340 (1977)).
The district judge stated briefly and clearly the reasons for her
decision, with which we agree:
THE COURT: All right. The court grants the motion in
limine. The court finds that the studies are deficient because
they use the EEO job groupings. And the witness has con-
ceded that the rating forms differ within the EEO job group-
ings, and he made no analysis of the difference in the rating
schemes for jobs within the EEO job groupings, nor what
the purpose of the EEO job groupings was from the point of
view of its decision to group certain kinds of job categories
together for that purpose.
That purpose seems to have nothing to do with actual job
performance or job requirements. And in order to evaluate
whether or not there is disparate impact in ratings, similarly
situated persons who are being rated must be compared.
And there is simply too much disparity in the groups that
have been used to control, and an absence of the use of a
control factor that would control for the actual job title or
the job duties.
And it does appear to me — and I believe the witness has
conceded that that could have been done and was not con-
trolled for, and for that reason the court grants the motion.
ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO. 21
VI.
Miss Anderson also challenges the district court’s decision to
exclude a report prepared by the Department of Energy. We review
a district court’s decision to exclude such evidence for abuse of dis-
cretion. United States v. Gray, 852 F.2d 136, 139 (4th Cir. 1988). As
we noted above, a district court abuses its discretion if it makes an
error of law in deciding whether to admit or exclude evidence. See
Hunter, 281 F.3d at 150.
Anderson sought to introduce as evidence an assessment entitled
"Department of Energy’s Assessment of Westinghouse Savannah
River Company’s Equal Employment Opportunity Human Resources
and Employee Concerns Programs." The Department of Energy
assessed the Savannah River Site’s equal employment opportunity
and diversity programs in 2000 and submitted a draft of its assess-
ment to Westinghouse. The assessment is not final, and it is stamped
"DRAFT" on the first page. Furthermore, the contents page and the
first page of Section IX (Employee Concerns Programs), which is
uncompleted, state that Section IX is "to be completed later." As of
March 2002, Westinghouse had not received a final version of the
assessment.
The district court granted the defendants’ motion to exclude the
assessment on the grounds that it suffered from multiple levels of
hearsay and was not within the exception under Federal Rule of Evi-
dence 803(8). The district court also noted that the assessment was a
draft, not a final report, and that the limited probative value of the
draft was "far outweighed by the numerous trustworthiness concerns
. . . coupled with the risk of unfair prejudice based on inclusion of
allegations of events that may have nothing to do with a given Plain-
tiff or Defendant."
Rule 803(8) of the Federal Rules of Evidence excepts from the
hearsay rule reports compiled by "public offices or agencies" in com-
pliance with the office or agency’s duty under law "unless the sources
of information or other circumstances indicate lack of trustworthi-
ness." Fed. R. Evid. 803(8). In Distaff, Inc. v. Springfield Contracting
Corp., 984 F.2d 108, 111 (4th Cir. 1993), we explained that an inves-
tigative report may be admissible under Rule 803(8) if its contents are
22 ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO.
trustworthy. See also Zeus Enters., Inc. v. Alphin Aircraft, Inc., 190
F.3d 238, 241 (4th Cir. 1999) ("The admissibility of a public record
specified in the rule is assumed as a matter of course, unless there are
sufficient negative factors to indicate a lack of trustworthiness, in
which case it should not be admitted."). Courts may look to several
factors to determine if the report is admissible: "(1) the timeliness of
an investigation; (2) the special skill or experience of the official; and
(3) possible motivational problems." Ellis v. Int’l Playtex, Inc., 745
F.2d 292, 300-01 (4th Cir. 1984). The Distaff court noted several fac-
tors which may reveal a lack of trustworthiness, namely "unreliability,
inadequate investigation, inadequate foundation for conclusions, (and)
invasion of the jury’s province." 984 F.2d at 111 (citing Weinstein,
Weinstein’s Evidence, § 803(8)).
A review of the factors listed above reveals that the district court
did not abuse its discretion in excluding the assessment. The Depart-
ment of Energy’s investigation began in 2000 and was not completed
by March of 2002. The draft assessment contains multiple levels of
hearsay as well as referring to a complaint from an individual who is
a plaintiff in a companion case to this lawsuit (one William Hall). The
assessment does not have an adequate foundation for its conclusions.
The assessment team from the Department of Energy sought to docu-
ment employee perceptions about equal opportunity programs, but the
team only interviewed employees who responded to an open invita-
tion sent by email. Those who were interviewed constituted less than
one percent of the workforce at the Savannah River Site. The assess-
ment team admitted in its report that it "did not attempt to verify the
perception of the employees" who were interviewed. In analyzing the
racial composition of interview panels, the assessment team based its
statistics on a review of 30 interview panels. During the 21-month
period from which those 30 panels were chosen, the Savannah River
Site utilized about 900 panels to select candidates for new positions.
Of those 900 panels, the assessment team thus reviewed the racial
composition of only 3.3% of the panels.
The admissibility of a report under Rule 803(8) is "permissive and
not mandatory." United States v. Gray, 852 F.2d 136, 139 (4th Cir.
1988). In Gray, we held that the district court did not abuse its discre-
tion by refusing to admit under Rule 803(8) an internal IRS report
which was a "tentative internal report." 852 F.2d at 139. Furthermore,
ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO. 23
the risk of unfair prejudice from information contained in the IRS
report far outweighed its probative value. Based on the fact that the
Department of Energy’s assessment was only a draft report and noting
the concerns which we have mentioned, which are evidence of the
assessment’s lack of trustworthiness, we are of opinion and hold that
the district court did not abuse its discretion in excluding the assess-
ment.
VII.
A.
Following the district court’s order denying class certification,
Miss Anderson proceeded with her lawsuit individually. In her Fourth
Amended Complaint, Miss Anderson claims that the RP3 ranking sys-
tem and the CBPS have a disparate impact on black employees on the
basis of race. On appeal, Miss Anderson challenges the district court’s
decision granting summary judgment to the defendants on her dispa-
rate impact claims.
We look first at Miss Anderson’s claim that the RP3 ranking sys-
tem has a disparate impact on black employees. To establish a prima
facie case of disparate impact discrimination under Title VII, a plain-
tiff must "show that the facially neutral employment practice had a
significantly discriminatory impact." Walls v. City of Petersburg, 895
F.2d 188, 191 (4th Cir. 1990) (citing Connecticut v. Teal, 457 U.S.
440, 446 (1982)). If a plaintiff establishes a prima facie case, "the
employer must then demonstrate that ‘any given requirement [has] a
manifest relationship to the employment in question,’ in order to
avoid a finding of discrimination." Teal, 457 U.S. at 446-47 (quoting
Griggs v. Duke Power Co., 401 U.S. 424, (1971)). "Even in such a
case, however, the plaintiff may prevail, if he shows that the employer
was using the practice as a mere pretext for discrimination." Teal, 457
U.S. at 447.
In establishing a prima facie violation of Title VII, a plaintiff may
use statistical evidence. See Walls, 895 F.2d at 191 (citing New York
City Transit Auth. v. Beazer, 440 U.S. 568, 584 (1979)). In this case,
the district court excluded Dr. Bradley’s testimony based on statistical
evidence which we have affirmed. In her brief, Miss Anderson
24 ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO.
acknowledges that she cannot prevail on her disparate impact claim
involving the RP3 system without Dr. Bradley’s testimony. Miss
Anderson did not address her RP3 disparate impact claim in her brief
except to note that she wishes to pursue the claim if the district
court’s evidentiary ruling on Dr. Bradley’s testimony is reversed. We
have affirmed the district court’s evidentiary ruling, and our affir-
mance admittedly forecloses Miss Anderson’s chance for success on
her RP3 disparate impact claim.3
B.
We next address Miss Anderson’s disparate impact claim involving
the CBPS. On appeal, she argues that the district court erred by con-
cluding that she had not established causation and by requiring her to
prove intentional discrimination instead of a disparate impact claim.
We review de novo her challenge to the district court’s order granting
summary judgment. Williams, 370 F.3d at 428.
Miss Anderson contends that two aspects of the CBPS have a dis-
parate impact on black employees. First, she challenges the stage in
the CBPS where applicants are selected for an interview, and, second,
she challenges the stage where the interview panel chooses the candi-
date for the position after an interview. These steps are listed as #9,
#12, and #13 in the description of the CBPS found on pages 8-9 of
this opinion. Miss Anderson objects to the alleged subjectivity inher-
ent in these steps in the CBPS.
By her identification of these steps in the CBPS, we assume,
arguendo, that Miss Anderson has complied with the Court’s instruc-
tion that a plaintiff in a disparate impact case must identify the spe-
cific employment practice that is being challenged. See Watson v.
Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988) (plurality opin-
ion). Next, Miss Anderson must prove causation. 487 U.S. at 994. She
must show that the above-mentioned practices caused a disparate
impact on black employees at the Site.
3
Miss Anderson withdrew her RP3 disparate impact claim after the
district court excluded Dr. Bradley’s testimony based on his statistical
evidence. As a result, although she pursued this claim on appeal, her suc-
cess is dependent on our decision on the evidentiary issue.
ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO. 25
To establish causation, Miss Anderson relies on statistical evidence
provided by Dr. Bradley about the CBPS. She argues that Dr. Brad-
ley’s statistical evidence ruled out the possibility that chance caused
a disparate impact on black employees. Dr. Bradley had analyzed the
percentage of black employees who were successful under the CBPS
at three stages: (1) selection as qualified for a position from all candi-
dates who apply; (2) selected for an interview from all qualified can-
didates; and (3) selected for the position from all interviewed
candidates. Dr. Bradley compared the percentage of black employees
who actually succeeded at each level with the percentage which he
expected to succeed, based on the percentage of black employees at
the Site. He found that the percentage of black applicants who actu-
ally succeeded at each step was much lower than he expected. From
that evidence, which does not account for any other variables, Miss
Anderson argues that causation is proven.
We do not agree. This evidence does not show that the reason
black applicants failed to proceed at the interview selection stage and
position selection stage was their race. Factors such as presentation
in the interview, answers to interview questions, demeanor, and abil-
ity demonstrated in the interview of course entered into the judgment
of the members of the panel as to the candidate who received a posi-
tion that was being filled. And, at the interview selection stage, for
example, education and experience are two factors that Dr. Bradley’s
analysis fails to quantify.
Furthermore, at each of the two stages which Miss Anderson chal-
lenges in the CBPS, the discretion of the person or panel making the
decision is not unfettered. At each step, the decision maker must look
to the core competencies listed in the CBPS manual and the specific
functional competencies, which are chosen specifically for each posi-
tion. At the interview stage, a panel of three interviewers must evalu-
ate the candidate and must address each core and functional
competency. The cases on which Miss Anderson relies to support her
claim that causation has been proven involves supervisors who pos-
sessed unfettered discretion to make employment decisions. See Wat-
son, 487 U.S. at 990 (noting that Title VII should apply to "an
employer’s undisciplined system of subjective decisionmaking");
Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 287 (2d Cir.
1999) (noting that challenged promotion policy directed managers "to
26 ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO.
hire the most qualified candidate, but no other instructions are given"
and that managers have unfettered discretion over hiring for certain
positions); Mozee v. Am. Commercial Marine Serv. Co., 940 F.2d
1036, 1042 n.6 (7th Cir. 1991) (explaining that promotion to the posi-
tion of leadman, which was a prerequisite to a promotion to manage-
ment, "was left entirely to management’s discretion, since it fell
outside the seniority bidding system applicable to most hourly
employment positions"); Rose v. Wells Fargo & Co., 902 F.2d 1417,
1424 (9th Cir. 1990) (noting that "Wells Fargo admits that the process
of job elimination and restaffing was otherwise discretionary and sub-
jective"). The decision makers at the Site were required to comply
with the CBPS, which, through the use of core and functional compe-
tencies against which all applicants must be evaluated, limits the dis-
cretion available to decisionmakers. Accordingly, the cases on which
Miss Anderson relies are hardly supportive of her position, for the
only relevant complaint she makes to the process is that the decision
makers were white.
The district court did not bar from evidence Dr. Bradley’s conclu-
sion that there might be evidence of disparate impact in two hiring
stages — the interview stage and the selection stage — and correctly
rejected the claim that his conclusion that the preparation of the list
of eligibles by the Human Resources department might be subject to
a Title VII racial objection.
We assume for argument, without deciding, that Miss Anderson
has shown a prima facie case because the district court did not bar Dr.
Bradley’s conclusions as to disparate impact with respect to the inter-
view stage and the selection stage. So the question is whether the
proffered circumstantial evidence of discriminatory impact is suffi-
cient to satisfy the McDonnell Douglas framework of proof. Murrell
v. Ocean Mecca Motel, Inc., 262 F.3d 253, 257 (4th Cir. 2001). See
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this
framework, the plaintiff must first establish a prima facie case of dis-
crimination. Then the defendant must respond with evidence that it
acted with a legitimate, nondiscriminatory reason. Murrell, 262 F.3d
at 257. If the defendant makes this showing, then the plaintiff must
"present evidence to prove that the defendant’s articulated reason was
pretext for unlawful discrimination." Murrell, 262 F.3d at 257. "Al-
though the evidentiary burdens shift back and forth under the McDon-
ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO. 27
nell Douglas framework, ‘[t]he ultimate burden of persuading the trier
of fact that the defendant intentionally discriminated against the plain-
tiff remains at all time with the plaintiff.’" Murrell, 262 F.3d at 257
(internal citation omitted).
As the district court correctly stated regarding the 1997 failure to
promote disparate treatment claim, Miss Anderson "does not suggest
that the comments recorded on her interview form are false or mis-
leading representations of her actual interview responses." Slip op. at
5. Further, Miss Anderson failed to address her qualifications in terms
of the disclosed weighted competency factors. Miss Anderson instead
focuses on her claimed higher satisfaction of the minimum qualifica-
tions, such as her education level, an MBA as opposed to others with
high school education, her performance of more years of administra-
tive secretarial duties, and her numerous awards and recognition,
which exceeded recognition received by other interviewees. The dis-
trict court found in its opinion that "[w]hile these may be the criteria
by which Anderson believes she should have been judged, Anderson
has not offered any evidence that WSRC or the particular individuals
who made up the CBPS panel have, at any time, applied such a set
of standards." Slip op. at 6. For these reasons, pretext is simply not
shown as there is no evidence to support it regarding the 1997 claim.
Miss Anderson similarly fails to point to any evidence that would
support the conclusion that she deserved a higher rating on any of the
areas evaluated for the 1998 promotion to administrative assistant.
She also fails to provide any evidence that the panel overlooked evi-
dence of her abilities in the areas contained in her application. Rather,
as with the 1997 application, she focuses on her supposed greater
qualifications in terms of total years of employment or education.
Again, Miss Anderson has not proffered evidence to suggest that the
legitimate reason offered by WSRC for its hiring decision is pretex-
tual.
So pretext has not been shown for either the 1997 or 1998 claim
and the decision of the district court is affirmed.
VIII.
We turn next to Miss Anderson’s individual disparate treatment
claims. Her first claim relates to her December 1997 application for
28 ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO.
the position of administrative assistant in the Environmental Restora-
tion Division, Project Administration Department. Miss Anderson
claims that the defendants failed to promote her on the basis of her
race. Linda Clarke, a white employee, received the promotion instead
of Miss Anderson. Her claim is a disparate treatment claim.
To prevail on a disparate treatment claim for failure to promote,
Miss Anderson must establish that she was treated less favorably
because of her race. See Int’l Broth. of Teamsters v. United States,
431 U.S. 324, 335 n.15 (1977); Carter v. Ball, 33 F.3d 450, 456 n.7
(4th Cir. 1994). In order to establish a prima facie case of racial dis-
crimination in promotions under § 1981 or Title VII, Miss Anderson
must follow the burden-shifting framework outlined by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
See Bryant v. Aiken Reg. Med. Ctrs. Inc., 333 F.3d 536, 544-45 (4th
Cir. 2003).4 Under the McDonnell Douglas framework, Miss Ander-
son can establish a prima facie case by showing that (1) she is a mem-
ber of a protected group, (2) she applied for the position in question,
(3) she was qualified for that position, and (4) the defendants rejected
her application under circumstances that give rise to an inference of
unlawful discrimination. See Bryant, 333 F.3d at 544-45; Carter, 33
F.3d at 458. If a prima facie case is established, the burden then shifts
"to the employer to articulate some legitimate, nondiscriminatory rea-
son" for the decision not to promote. McDonnell Douglas, 411 U.S.
at 802; see Bryant, 333 F.3d at 545. After the employer states a reason
for its decision, Miss Anderson has the opportunity to show that the
stated reason is a pretext for discrimination, see McDonnell Douglas,
411 U.S. at 804, and the trier of fact must determine if the plaintiff
has proved that the employer intentionally discriminated against her
because of her race. Bryant, 333 F.3d at 545 (citing Fuller v. Phipps,
67 F.3d 1137, 1141 (4th Cir. 1995)).
Miss Anderson applied for the position of administrative assistant
in the Environmental Restoration Division, Project Administration
4
The Bryant court noted that "[i]n failure-to-promote cases such as
this, ‘the framework of proof for disparate treatment claims . . . is the
same for actions brought under Title VII, or § 1981, or both statutes.’"
Bryant, 333 F.3d at 545 n.3 (quoting Mallory v. Booth Refrig. Supply
Co., 882 F.2d 908, 910 (4th Cir. 1989)).
ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO. 29
Department in November of 1997. She interviewed for the position
on December 15, 1997. The interview panel rated Miss Anderson on
the six core competencies (teamwork, leadership, communications,
employee development, business results, and self management) and
four functional competencies (customer focus, flexibility, problem
solving, and professionalism). Based on her interview responses, the
panel gave Miss Anderson a total consensus rating of 136. The
employee who was promoted, Linda Clarke, a white woman, received
a total consensus rating of 190.
Miss Anderson’s primary contentions on appeal are that she had
more education and more experience at the Savannah River Site than
Mrs. Clarke and that Miss Anderson’s consensus rating was low
based on her work evaluations and numerous awards and commenda-
tions. The interview panel chose Linda Clarke to receive the promo-
tion because she was the "[b]est candidate based on quals. and
interview." Anderson must show that this reason was a pretext for
racial discrimination. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 511 (1993). In Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 147 (2000), the Supreme Court explained that a plain-
tiff may establish pretext by proving that the defendant’s explanation
for an employment decision is "unworthy of credence" or that the
defendant’s explanation is false. The Reeves Court also noted that
"[i]n appropriate circumstances, the trier of fact can reasonably infer
from the falsity of the explanation that the employer is dissembling
to cover up a discriminatory purpose." 530 U.S. at 147. We followed
Reeves in Dennis v. Columbia Colleton Medical Center, Inc., 290
F.3d 639, 648-49 & n.4 (4th Cir. 2002), and determined that a plain-
tiff in a failure to promote case is not necessarily required to meet the
test in Evans v. Technologies Applications & Service Co., 80 F.3d
954, 960 (4th Cir. 1996), that a plaintiff "must establish that she was
the better qualified candidate for the position sought." Evans, 80 F.3d
at 960 (citing Gairola v. Va. Dep’t of Gen. Servs., 753 F.32d 1281,
1287 (4th Cir. 1985); Young v. Lehman, 748 F.2d 194, (4th Cir.
1984)).
Dennis instructs that we should not rigidly apply the Evans stan-
dard for comparing the plaintiff’s qualifications with those of the per-
son who received the promotion, but we may also consider the
veracity of the reasons, annunciated by the employer, why the plain-
30 ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO.
tiff did not receive the promotion. Dennis, 290 F.3d at 648-649 & n.4.
"Reeves plainly instructs us to apply a contrary approach [to Evans]
by affirming that it is permissible for the trier of fact to infer the ulti-
mate fact of discrimination from the falsity of the employer’s expla-
nation." Dennis, 290 F.3d at 648 n.4 (citing Reeves, 530 U.S. at 147).
Miss Anderson cannot establish her own criteria for judging her
qualifications for the promotion. She must compete for the promotion
based on the qualifications established by her employer. See Beall v.
Abbott Labs., 130 F.3d 614, 620 (1997) ("[A]bsent evidence of retal-
iatory motive, we leave to the employer’s discretion the method of
evaluating an employee’s job performance."); see also Jiminez v.
Mary Washington Coll., 57 F.3d 369, 383 (4th Cir. 1995) ("The cru-
cial issue in a Title VII action is an unlawfully discriminatory motive
for a defendant’s conduct, not the wisdom or folly of its business
judgment.").
We assume, arguendo, that Miss Anderson has stated a prima facie
case of racial discrimination. The question on her first claim for fail-
ure to promote thus turns on the issue of pretext. In order to prevail,
Miss Anderson must direct us to evidence which indicates that the
defendants’ stated reasons for promoting Mrs. Clarke over Miss
Anderson were a pretext for discrimination.
Miss Anderson had an executive secretary diploma and a bachelor
of science degree in human resource management at the time she
applied for the position of administrative assistant in the Environmen-
tal Restoration Division, Project Administration Department. She was
close to finishing her masters in business administration. The mini-
mum educational requirements for the position were a high school
diploma and eight to twelve years of practical experience in a busi-
ness or administrative area, or an associate degree in a nontechnical
or business discipline with at least four to seven years of practical
experience in a business or administrative area, or a bachelor’s degree
in a nontechnical or business discipline and at least one to three years
of practical experience in business, administrative, budgeting, or pro-
gram planning. Miss Anderson exceeded the educational require-
ments, and she had more education than Linda Clarke, who only had
a high school diploma. However, educational qualifications, while
listed in the minimum requirements section of the administrative
ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO. 31
assistant competency based posting system job description, were not
among the factors that the interview panel used to determine each
applicant’s consensus rating. As a result of the defendants’ decision
to base the promotion decision on the core and functional competen-
cies listed in the job description and not on the educational levels of
applicants, Miss Anderson cannot rely on her educational background
to establish that the defendants’ reasons for promoting Mrs. Clarke
was a pretext for discrimination. See Beall, 130 F.3d at 620; Jiminez,
57 F.3d at 383. Miss Anderson may not choose the areas in which she
wants to compete with Mrs. Clarke for the promotion; those areas are
for the employer’s choosing.
Miss Anderson contends that she has more experience at the
Savannah River Site than Mrs. Clarke. At the time of her application
for promotion to administrative assistant in the Environmental Resto-
ration Division, Project Administration Department, Mrs. Clarke had
15 years of secretarial experience prior to beginning work at the
Savannah River Site. After being hired at the Site, she had seven
years of experience at the time she applied for the position. In con-
trast, Miss Anderson had only eight years of experience as a secretary
at the Site. While Miss Anderson, with seven years of secretarial
experience and twelve as a typist or stenographer, has a longer total
tenure at the Site than Mrs. Clarke, she cannot choose the criteria by
which an employer makes a promotion decision. See Beall, 130 F.3d
at 619-20. Regarding experience, the CBPS posting of the position
explained that experience was a minimum requirement, and not a
deciding factor in the application process.
Furthermore, the deciding factor in the promotion decision was the
rating for core and functional competencies that each applicant who
was interviewed received. Mrs. Clarke received the highest score,
190, and Miss Anderson received the second-lowest score, 136. A
comparison of the two rating forms, compiled by the same interview
panel, indicates that the panel found Mrs. Clarke to be the superior
candidate. Miss Anderson’s attempts to show that the CBPS system,
which creates the consensus rating system upon which the promotion
decision was based, discriminates against black employees also are
unsuccessful. This contention is based on Dr. Bradley’s study com-
paring the percentage of black employees who are successful at three
separate steps in the CBPS to the expected percentage of successful
32 ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO.
black candidates based on the total percentage of black employees at
the Site. As we discussed previously, this study fails to consider the
various factors that are involved in a promotion decision. It does not
prove that the CBPS discriminates against black employees on the
basis of race, and Miss Anderson cannot use it to avoid summary
judgment on her 1997 failure to promote claim. We are of opinion
that the district court did not err in granting summary judgment to the
defendants on this claim.
Miss Anderson’s next claim involves her application in 1998 for a
promotion to administrative assistant in the Business Development
and Community Outreach Division. Miss Anderson was not selected
for an interview, and a white woman, Mrs. Brenda Pearson, was
selected to receive the promotion. Miss Anderson contends that she
did not receive the promotion due to her race.
The issue again turns on pretext as we assume, arguendo, that Miss
Anderson has established a prima facie case of racial discrimination.
On appeal, Miss Anderson contends that she established pretext
because she has a stronger educational background than Mrs. Pearson,
that the defendants pre-selected Mrs. Pearson for the position, and
that the ratings given to Miss Anderson in the interview selection
stage evidence discrimination because they do not correspond to Miss
Anderson’s performance reviews. Miss Anderson also reiterates the
contention, which we have rejected, that the CBPS discriminates
against black employees seeking promotions at the Site.
While Miss Anderson has a stronger educational background than
Mrs. Pearson, education is listed as a minimum requirement for the
position and is not a deciding factor in determining who receives the
promotion. Mrs. Pearson received the promotion because she had a
higher consensus rating on the core and functional competencies for
the position than Miss Judy Burch, the other employee interviewed
for the promotion. The selection of applicants for interviews also was
based on an evaluation of core and functional competencies, not on
educational backgrounds. As we noted before, Miss Anderson may
not choose the criteria on which she wishes to compete with Mrs.
Pearson for the promotion. Moreover, she cannot establish pretext by
relying on criteria of her choosing when the employer based its deci-
ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO. 33
sion on other grounds. See Beall, 130 F.3d at 620; Jiminez, 57 F.3d
at 383.
Miss Anderson next contends that she established pretext by show-
ing that Miss Virginia Wolfe, the hiring manager for the 1998 promo-
tion in the Business Development and Community Outreach Division,
preselected Mrs. Pearson for the promotion. At the time the promo-
tion decision was made, Mrs. Pearson was a secretary who reported
to Miss Wolfe, along with eight other individuals. The functions of
the position for which Miss Anderson applied were, prior to the selec-
tion of Mrs. Pearson, being performed by Mrs. Pearson in her position
as a secretary reporting to Miss Wolfe.
The argument that a supervisor may have preselected an employee
for a promotion "is not sufficient evidence for jurors reasonably to
conclude" that the defendants’ explanation for hiring Mrs. Pearson
was prextext. Mackey v. Shalala, 360 F.3d 463, 468-69 (4th Cir.
2004). "If one employee was unfairly preselected for the position, the
preselection would work to the detriment of all applicants for the job,
black and white alike." Blue v. United States Dep’t of the Army, 914
F.2d 525, 541 (4th Cir. 1990). The Blue court noted that while prese-
lection may establish that an employee was "unfairly treated, it does
not by itself prove racial discrimination." 914 F.2d at 541 (citing
Casillas v. United States Navy, 735 F.2d 338, 344 (9th Cir. 1984)
("Title VII does not ensure the best will be selected—only that the
selection process will be free from impermissible discrimination."))
Miss Anderson’s final contention regarding the 1998 promotion is
that the ratings given to her in the interview selection stage establish
pretext because they do not reflect the positive evaluation she
received during her performance reviews. Miss Anderson’s argument
asks us to review the process by which the defendants select employ-
ees for promotion. Miss Anderson has not introduced any evidence
that her performance reviews were submitted to the hiring manager
who selected applicants for an interview. Without proof that the hir-
ing manager had access to Miss Anderson’s performance reviews,
there is no basis to conclude that the hiring manager was even aware
of the positive comments Miss Anderson had received on her perfor-
mance evaluations. Furthermore, the performance evaluation is a
review of an employee’s performance in her current position, while
34 ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO.
the process of selecting a person for a promotion involves a consider-
ation of how that employee will perform in a different position. In
other words, the performance evaluation and the interview selection
stage, which involves an analysis of how the applicant meets the core
and functional competencies of the position that is open, are not inter-
changeable. We do not sit as a "super-personnel department weighing
the prudence of employment decisions" made by the defendants.
DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir. 1998). We
cannot require that different supervisors within the same organization
must reach the same conclusion on an employee’s qualifications and
abilities.
We are of opinion that the district court did not err in granting sum-
mary judgment to the defendants on Miss Anderson’s 1998 failure to
promote claim.
Miss Anderson’s final disparate treatment failure to promote claim
centers on her failure to receive a promotion in place from SGL 28
SOP to SGL 30 SOP. At the time she sought this promotion, she was
an administrative assistant in the university relations group within the
chemicals hydrogen technology group. Again, the issue turns on the
question of pretext.
Miss Anderson must establish that there is a genuine issue of mate-
rial fact as to the defendants’ stated reason for why she did not
receive a promotion in place to SGL 30 SOP. The defendants have
introduced affidavits from three compensation analysts who recom-
mended that Miss Anderson’s position remain a SGL 28 SOP position
instead of a SGL 30 SOP position as of 1999. Miss Anderson does
not direct us to any evidence which suggests that these analysts
reached their conclusions by improperly considering race instead of
the actual responsibilities of Miss Anderson’s position. Miss Ander-
son attempts to rely on her own affidavit to create a genuine issue of
material fact, but nothing in her affidavit controverts the analysts’
analysis of her position or suggests that the analysts were motivated
by racism to refuse to qualify her position as a SGL 30 SOP position.
Miss Anderson attempts to establish pretext by comparing herself
with two white employees who received promotions in place within
two years of entering their current position. This argument fails to
ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO. 35
establish pretext. Miss Anderson seeks to compare herself to employ-
ees who hold positions that are dissimilar to her own. The first white
employee, Craig Stripling, is an associate engineer who was promoted
from SGL 28 to SGL 30 after working as an associate technical sup-
port specialist for less than two years. The second, Michelle Trill, a
human resources consultant, was promoted six times between 1989
and 1995. These two white employees worked in separate divisions
from Miss Anderson and had different responsibilities. Their promo-
tions could be based on factors that may not be present in Miss
Anderson’s position. The fact that the white employees received pro-
motions and Miss Anderson did not, when the job requirements and
responsibilities for the white employees are different from Miss
Anderson’s, does not establish pretext.
Miss Anderson further claims that the rapid promotions of these
two white employees occurred in violation of a Site policy that
employees do not receive pay increases unless they have been in their
current position for more than two years. Miss Anderson bases this
claim on a statement made to her by her manager that "promotions
were not usually given until an employee had been in a position for
two to four years." This statement, which contains the qualifier "usu-
ally," coupled with the fact that Miss Trill and Stripling were pro-
moted without two years of experience in their positions, does not
establish pretext. Miss Anderson’s manager informed her of the usual
policy, but his statement reflects the fact that exceptions do exist.
Miss Anderson did not receive a promotion in place because her
job responsibilities did not warrant such an increase. She has not
shown us any evidence which suggests that this reason was a pretext
or from which a jury could infer pretext. See Bryant, 333 F.3d at 544
(noting that a jury could infer discrimination based on "the lack of
any real reason to deny Bryant the job"). In this case, the defendant
has stated a reason why Miss Anderson did not receive a promotion,
and Miss Anderson has been unable to controvert it.
We are of opinion that the district court did not err in granting sum-
mary judgment to the defendants on Miss Anderson’s disparate treat-
ment failure to promote in place claim.
36 ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO.
IX.
Miss Anderson appeals the district court’s decision denying the
plaintiffs’ motion for class certification. On appeal, she argues that
the district court erred by failing to certify two subclasses, one com-
posed of black Site employees who were discriminated against under
the CBPS and one composed of black Site employees who were dis-
criminated against under the RP3 system. Miss Anderson is not a
member of either of the two subclasses. As we have discussed above,
all of Miss Anderson’s claims, whether based on a disparate impact
or disparate treatment theory, are without merit, and the district court
properly granted summary judgment to the defendants on each of the
claims. Miss Anderson voluntarily has dismissed the one claim which
remained after the district court ruled on the defendants’ motion for
summary judgment, the disparate treatment merit pay claim. Accord-
ingly, Miss Anderson no longer has any valid claims pending in this
case.In Cox v. Babcock & Wilcox Co., 471 F.2d 13 (4th Cir. 1972),
and later in Goodman v. Schlesinger, 584 F.2d 1325 (4th Cir. 1978),
we considered almost the same issue.
In Cox, the plaintiff alleged that he was subject to unlawful dis-
crimination under the employment practices of the defendant. 471
F.2d at 14. The plaintiff brought both individual and class action
claims. The district court proceeded to try the plaintiff’s individual
claims in a bench trial with an advisory jury without first ruling on
the plaintiff’s class action claims. After the bench trial, the district
court dismissed the plaintiff’s individual claims after concluding that
the defendant had not practiced illegal discrimination. 471 F.2d at 14.
The district court then dismissed the plaintiff’s class action claims
because the plaintiff, without any individual claims, was not a proper
class representative. The plaintiff appealed both rulings to this court.
On appeal, we affirmed the district court’s dismissal of the plain-
tiff’s individual claims. 471 F.2d at 14-15. Turning next to the plain-
tiff’s class claims, we noted the awkwardness of remanding the class
claims to the district court where the plaintiff, although "finally
adjudged not to be a member of the class he seeks to represent,"
would nonetheless continue to prosecute the class claims in the dis-
trict court upon remand. 471 F.2d at 15-16. We remanded the class
claims to the district court and instructed the district court to hold the
ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO. 37
docket for the class claims open in case any other plaintiffs presented
proper claims against the defendant. 471 F.2d at 16.
In Goodman, the district court denied the plaintiffs’ motion for
class certification on the grounds that the plaintiffs did not comply
with the requirements of Rule 23 of the Federal Rules of Civil Proce-
dure. 584 F.2d at 1327. At trial on the plaintiffs’ individual claims,
the district court found against the plaintiffs and denied their individ-
ual claims. 584 F.2d at 1329-1331. On appeal, the plaintiffs chal-
lenged the district court’s rulings on both the denial of class
certification and the dismissal of the individual claims.
We affirmed the dismissal of the plaintiffs’ individual claims and
noted that the plaintiffs "have had their day in court" to pursue their
individual claims. 584 F.2d at 1331. Turning to the certification issue,
the court determined that the district court acted prematurely in
declining to certify the class action because the district court ruled on
the certification question prior to the completion of discovery. 584
F.2d at 1332. Following Cox, in Goodman we remanded the class
action issue to the district court but instructed that the plaintiffs in the
appeal might not pursue the class claims on remand. Instead, the dis-
trict court should retain the case on the docket for a reasonable time
to "permit a proper plaintiff or plaintiffs, with grievances similar to
[the plaintiffs on appeal], in person, to present himself to prosecute
the action as class representative. Goodman, 584 F.2d at 1332-1333.
We followed the procedure in Goodman and Cox again in Simmons
v. Brown, 611 F.2d 65 (4th Cir. 1979).
On appeal, Miss Anderson seeks to be a class representative for
two separate sub-classes based on the defendants’ use of the CBPS
and RP3 systems. Her claims have not been mooted, but instead have
been adjudged to be without merit. Miss Anderson has no valid
claims which give her "the same interest" and cause her to "suffer the
same injury" as the proposed class members she seeks to represent.
See E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403
(1977).
The claim of Miss Anderson on appeal with respect to the denial
of certification of a class action is clearly stated:
38 ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO.
Anderson appeals the District Court’s denial of certification
of two subclasses of African-American employees with
claims based on (1) the CBPS and (2) the RP3.
With respect to the RP3 claim, there is no indication or claim of
any successful prosecution of that claim without the rejected testi-
mony of Dr. Bradley, who was examined in open court by the district
judge and the parties. The denial of the district court to certify a class
action with respect to the RP3 procedure is accordingly affirmed.
With respect to the CBPS claim, we express no opinion on the
question of whether or not some part of Miss Anderson’s claim relat-
ing to the administration of that system of career advancement or job
availability may be a colorable class claim, although none has been
shown here. We say this because of the decision of the district court
with respect to Dr. Bradley’s testimony in which it denied the motion
to exclude the testimony "from the qualified to the interview stage,
and from the interview stage to the selection stage," but it granted the
motion to exclude the testimony "from the pool stage to the qualified
stage." Stated simply, the court held that the evidence did not show
that the Human Resources Department might have discriminated in
preparing the list of those qualified for job openings but that the sta-
tistical evidence might be admissible if it tended to show the possibil-
ity of discrimination in selecting those applicants who would be
interviewed and in selecting the person for the job from among those
interviewed.
While we express no opinion on whether or not the class action
may fail for want of commonality or typicality, we remand to the dis-
trict court the question of whether or not a class action should be per-
mitted to proceed with respect to the "qualified to the interview stage,
and from the interview stage to the selection stage." Upon remand, if
a proper plaintiff or plaintiffs with grievances similar to those of Miss
Anderson with respect to that discrete portion of the CBPS procedure
presents himself to prosecute, himself, as a class representative, the
district court should then decide whether a class action is maintain-
able and whether the then named plaintiff should represent the class.
We express no opinion as to the weight, if any, to give Dr. Bradley’s
testimony or whether it is admissible. If no representative plaintiff so
comes forward within a reasonable time, then the district court should
ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO. 39
strike the class action from the calendar and enter a final dismissal
thereof. Goodman, 584 F.2d at 1332-33.
X.
Accordingly, as stated above, the district court’s decision excluding
Dr. Bradley’s expert RP3 testimony, excluding the Department of
Energy draft assessment, and granting summary judgment to the
defendants on Miss Anderson’s individual disparate impact and dispa-
rate treatment claims are affirmed. The denial of a class action with
respect to the RP3 procedure is affirmed, as is the denial of a class
action with respect to the CBPS procedure, with the exception of that
part of the CBPS procedure noted just above. This action is remanded
to the district court to keep the same on the docket for a reasonable
time, with instructions to determine if there is another plaintiff who
wishes to maintain a class action under the principles established in
Cox and Goodman we have referred to.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED WITH INSTRUCTIONS.
NIEMEYER, Circuit Judge, concurring in part and dissenting in part:
I am pleased to concur in Judge Widener’s thorough and well rea-
soned opinion insofar as it affirms the district court’s judgment. But
I cannot agree with a remand "to determine if there is another plaintiff
who wishes to maintain a class action."
Because the plaintiff has no cognizable claim, she is not in a posi-
tion to represent a class of others because either her claims are not
typical of the others or, if they are, the others’ claims likewise have
no merit.
The problem that Judge Widener raises in Part IX would, in my
judgment, be resolved just as well by some other plaintiff, not in this
case, alleging his or her own claim and seeking to prosecute it as a
class action. As for this case, I would consider it ended with our opin-
ion affirming the judgment of the district court.
40 ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO.
By remanding this case to the district court with no plaintiff, we
can only be inviting new claims — different from those that we have
rejected in this case — to be filed on behalf of a new plaintiff and
unspecified others. This is not the situation where a plaintiff’s claims
have been dismissed on a technical deficiency, and we would be
allowing another plaintiff without that deficiency to continue the case.
Rather, we have a case where the plaintiff’s claims were dismissed
because the claims themselves were deficient. In short, there is noth-
ing to perpetuate on remand.
Accordingly, I respectfully dissent from Part IX and the remand
remedy contained in Part X. Otherwise, I concur in this fine opinion.
GREGORY, Circuit Judge, dissenting in part:
Although I agree with most of the majority’s analysis, I write sepa-
rately because I cannot concur in the disparate impact analysis con-
tained in part VII(B). There, the majority affirms a grant of summary
judgment against Ms. Anderson on her disparate impact claim despite
the fact that she produced evidence showing a statistically significant
variation between the number of African-Americans who apply and
the number who are successful at both the second and third stages of
the CBPS. The majority first finds that because Ms. Anderson’s evi-
dence challenging the subjective nature of the second and third stages
of the CBPS failed to control for all subjective variables potentially
taken into account in the interview and hiring decisions, she failed to
establish the causation element of her prima facie burden. Second, the
majority finds that even if Ms. Anderson had in fact satisfied her
prima facie burden, her claims would fail because she cannot make
the requisite McDonnell Douglas showing that Westinghouse’s legiti-
mate non-discriminatory rationale was mere pretext for a racially dis-
criminatory decision.
Because I cannot agree with either of these contentions, I respect-
fully dissent from that particular part of the majority opinion.
I.
Under Title VII of the Civil Rights Act of 1991:
ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO. 41
It shall be an unlawful employment practice for an employer
—
(1) 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, reli-
gion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or appli-
cants for employment in any way which would deprive or
tend to deprive any individual of employment opportunities
or otherwise adversely affect his status as an employee,
because of such individual’s race, color, religion, sex, or
national origin.
42 U.S.C. § 2000e-2 (2005). From inception, it was clear that the act
covered cases of disparate treatment — where one party was inten-
tionally discriminated against by an employer on the basis of race,
color, religion, sex, or national origin. See Int. Bhd. of Teamsters v.
United States, 431 U.S. 324, 335 n.15 (1977)("Undoubtedly disparate
treatment was the most obvious evil Congress had in mind when it
enacted Title VII.").
However, in the seminal case of Griggs v. Duke Power Co., 401
U.S. 424, 431 (1971), the Court held that "[t]he Act proscribes not
only overt discrimination but also practices that are fair in form, but
discriminatory in operation." See Peters v. Jenney, 327 F.3d 307, 321
n.17 (4th Cir. 2003) ("Title VII prohibits practices that are not inten-
tionally discriminatory but that have a disparate impact on members
of a particular racial group."). As amended in 1991, Title VII now
explicitly recognizes disparate impact claims. 42 U.S.C. § 2000e-2(k).
Section 2000e-2(k) states as follows:
(1)(A) An unlawful employment practice based on disparate
impact is established under this subchapter only if—
(i) a complaining party demonstrates that a respondent uses
a particular employment practice that causes a disparate
42 ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO.
impact on the basis of race, color, religion, sex, or national
origin and the respondent fails to demonstrate that the chal-
lenged practice is job related for the position in question and
consistent with business necessity; or
(ii) the complaining party makes the demonstration
described in subparagraph (C) with respect to an alternative
employment practice and the respondent refuses to adopt
such alternative employment practice.
42 U.S.C. § 2000e-2(k).
Similar to its analysis of disparate treatment, the Supreme Court
has laid out a burden shifting scheme for disparate impact actions. See
Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 994-95 (1988).
Under the disparate impact burden-shifting scheme, the first step is
for the plaintiff to establish a prima facie case of disparate impact. See
id. at 994. To make this prima facie showing, a plaintiff must (1)
identify a specific policy or practice, (2) demonstrate that a disparity
exists, and (3) establish a causal relationship between the two. See id.
at 994-95. Upon successfully presenting a prima facie case, the bur-
den then shifts to the employer to "demonstrate that the challenged
practice is job related for the position in question and consistent with
business necessity." 42 U.S.C. § 2000e-2(k)(1)(a)(i); see Walls v. City
of Petersburg, 895 F.2d 188, 191 (4th Cir. 1990)("[T]he employer
must then demonstrate that ‘any given requirement [has] a manifest
relationship to the employment in question,’ in order to avoid a find-
ing of discrimination."). Finally, even if the employer makes a suffi-
cient showing that the challenged practice is "job related," the
plaintiff may prevail by showing the existence of an equally effective
alternative practice that eliminates the disparate impact and the
employer refuses to adopt this alternative. 42 U.S.C. § 2000e-
2(k)(1)(a)(2); see Allen v. City of Chicago, 351 F.3d 306, 311-12 (7th
Cir. 2003)("If the defendant makes this showing, plaintiffs can still
prevail by demonstrating that an alternative employment practice
exists, and the defendant refuses to adopt it.").
II.
Contrary to the majority, I believe that Ms. Anderson did in fact
satisfy her prima facie burden for a Title VII disparate impact claim.
Therefore, I will address each step of the analysis in turn.
ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO. 43
A.
As noted earlier, the first step in establishing a prima facie case is
the identification of a specific policy or practice. Here, Ms. Anderson
challenges the second and third stages of the Competency Based Post-
ing System ("CBPS")1 as having a disparate impact on African-
American employees. Ms. Anderson specifically challenges the sub-
jective decision-making involved in each stage. The majority "as-
sumes arguendo" that by challenging these stages Ms. Anderson
identified a specific employment practice.
In Watson, the Court addressed the issue of whether a disparate
impact analysis could properly be applied to subjective criteria.2 See
Watson, 487 U.S. at 989. There, the Court held that "subjective or dis-
cretionary employment practices may be analyzed under the disparate
impact approach in appropriate cases." Id. at 991. "We are persuaded
that our decisions in Griggs and succeeding cases could largely be
nullified if disparate impact analysis were applied only to standard-
ized selection practices." Watson, 487 U.S. at 989. The Court contin-
ued on to conclude that:
If an employer’s undisciplined system of subjective
decision-making has precisely the same effects as a system
pervaded by impermissible intentional discrimination, it is
difficult to see why Title VII’s proscription against discrimi-
natory actions should not apply. In both circumstances, the
employer’s practices may be said to "adversely affect [an
individual’s] status as an employee, because of such individ-
ual’s race, color, religion, sex, or national origin." 42 U.S.C.
§ 2000e-2(a)(2).
1
Specifically, Ms. Anderson challenged steps #9, #12, #13 of the
CBPS.
2
In Watson, the Court noted that its disparate impact jurisprudence had
always involved cases in which standardized employment tests or criteria
were challenged. Id. at 988. For example, in Griggs the Court faced chal-
lenges to high school diploma requirements and aptitude tests. Griggs,
401 U.S. 301-02. Similarly, in Albermarle Paper Co. v. Moody, 422 U.S.
405, 427 (1975), the Court faced challenges to aptitude tests. Finally, in
Connecticut v. Teal, 457 U.S. 440, 445 (1982), the Court faced chal-
lenges to written examinations.
44 ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO.
Id. at 990-991.
In this case, I would find that Ms. Anderson did in fact satisfy the
first element of her prima facie burden. Ms. Anderson challenged the
second and third stages of the CBPS system, both of which entail an
interview panel subjectively rating qualified candidates across a num-
ber of subjective criteria. The second stage is a screening stage, where
the applications of applicants who are found to meet the minimum
requirements by the Human Resources department are forwarded to
the manager of the department with the opening. That person, either
by themself or in conjunction with two others, then screens all the
applications with "core competencies" (teamwork, leadership, com-
munications, employee development, business results and self man-
agement) and "functional competencies" in mind, to find the most
qualified candidates to interview for the position. The third stage of
the process involves the actual interviews of those candidates
selected. Interviews are conducted by a three-person panel, during
which each member of the panel evaluates the candidate in writing
according to the above criteria and any other relevant characteristics.
After all interviews are conducted, the panel then selects who it
believes is the best person for the position.
Ms. Anderson is not required to challenge a more specific aspect
of the hiring process, particularly when she is challenging a subjective
process. In Rose v. Wells Fargo & Co., 902 F.2d 1417, 1420, 1424-
25 (9th Cir. 1990), the Ninth Circuit held that where "[e]mployment
decisions as to which jobs would be eliminated and as to who would
fill the remaining positions was essentially left to the discretion of the
various bank departments," such a policy was a specific employment
practice subject to disparate impact analysis, even where the manag-
ers were instructed to consider factors such as longevity and perfor-
mance. Similarly, in this case, while those making the decisions in the
second and third stages of the CBPS were instructed to evaluate can-
didates according to certain qualities, whether the applicants showed
any aptitude for the guideline qualities was an entirely subjective
evaluation. After all, how does one truly quantify or measure "team-
work" or "communications" without making a wholly subjective
assessment?
In its attempt to distinguish cases such as Watson and Rose, I
believe that the majority overstates the level to which the discretion
ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO. 45
present in this case was cabined by the process. Focusing on the Wat-
son Court’s language describing subjective employment practices as
"unchecked discretion" and as an "undisciplined system of subjective
decision making," the majority argues that because the discretion in
this case was not unfettered, the holdings of Watson and Rose are not
applicable here. The majority finds support for this position in the fact
that the decision makers were instructed to consider core and func-
tional competencies when making their decisions. However, the
majority’s focus on the Watson Court’s language describing subjec-
tive employment practices as "unchecked discretion" and as an "un-
disciplined system of subjective decision making," is misplaced. The
crux of the Watson decision is that "disparate impact analysis is in
principle no less applicable to subjective employment criteria than to
objective or standardized tests" because "[i]n either case, a facially
neutral practice, adopted without discriminatory intent, may have
effects that are indistinguishable from intentionally discriminatory
practices." Watson, 487 U.S. at 990. Later in the Watson opinion, the
Court then repeated this position, stating "[i]f an employer’s undisci-
plined system of subjective decision making has precisely the same
effects as a system pervaded by impermissible intentional discrimina-
tion, it is difficult to see why Title VII’s proscription against discrimi-
natory actions should not apply." Id. at 990-91. The clear focus of the
Watson opinion is not the degree to which subjective discretion is
unfettered, but instead the fact that both objective and subjective
criteria can have deleterious effects that are indistinguishable from
intentionally discriminatory practices. That was the reason the Court
concluded "that subjective or discretionary employment practices may
be analyzed under the disparate impact approach in appropriate
cases." Id. at 991.
Because I believe that the challenged practices are undisputably
subjective in nature, I see no reason not to apply the rule of Watson
in this case, and find that Ms. Anderson identified a specific employ-
ment practice.
B.
Ms. Anderson was next required to show a causal nexus between
the challenged practice and the disparity. The statute itself mandates
that the plaintiff demonstrate that the employer "uses a particular
46 ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO.
employment practice that causes a disparate impact." 42 U.S.C.
§ 2000e-2(k); see Wards Cove Packing Co. v. Atonio, 490 U.S. 642,
657 (1989)("a Title VII plaintiff does not make out a case of disparate
impact simply by showing that, ‘at the bottom line,’ there is racial
imbalance in the work force. As a general matter, a plaintiff must
demonstrate that it is the application of a specific or particular
employment practice that has created the disparate impact under
attack.").
As an initial matter, it is well recognized that statistical evidence
may be employed in disparate impact cases to show the existence of
a disparity. See New York City Transit Auth. v. Beazer, 440 U.S. 568,
584 (1979); Walls, 895 F.2d at 191 ("A plaintiff may use statistical
evidence to establish a prima facie violation of Title VII."). As the
Court noted in Watson, the term "disparity" has "never been framed
in terms of any mathematical formula." Watson, 487 U.S. at 994-95.
Further, the Court has never "suggested that any particular number of
standard deviations can determine whether a plaintiff has made out a
prima facie case in the complex area of employment discrimination,"
but has instead endorsing a case-by-case approach. Id. at 995 n.3.
Ms. Anderson presented the testimony of Dr. Edwin Bradley,
Ph.D., CEO of Quantitative Research Associates. Specifically, Dr.
Bradley found that at the second screening stage, a statistically signif-
icant under-representation (-6.64 standard deviations) of African-
Americans existed when the pool of applicants meeting the minimum
qualifications for the posted position was compared to the applicants
actually selected for an interview. J.A. 1645. Similarly, Dr. Bradley
found that at the third screening stage, a statistically significant under-
representation (-2.38 standard deviations) of African-Americans
existed when the pool of applicants selected for an interview was
compared to those selected for appointment. J.A. 1645.
Despite this, the district court concluded and the majority con-
cludes that because Ms. Anderson’s statistical evidence failed to con-
trol for all variables that may have impacted the decisions made at the
challenged stages, it is insufficient to establish causation. Specifically,
the majority states:
"This evidence does not show that the reason black appli-
cants failed to proceed at the interview selection stage and
ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO. 47
position selection stage was their race. Factors such as pre-
sentation in the interview, answers to interview questions,
demeanor, and ability demonstrated in the interview of
course entered into the judgment of the members of the
panel as to the candidate who received a position that was
being filled."
Ante at 25.
However, statistical evidence does not have to control for every
single variable in order to be sufficient. As the Supreme Court stated
in Bazemore v. Friday, 478 U.S. 385 (1986), "it is clear that a regres-
sion analysis that included less than all ‘measurable variables’ may
serve to prove a plaintiff’s case. A plaintiff in a Title VII suit need
not prove discrimination with scientific certainty; rather his burden is
to prove discrimination by a preponderance of the evidence."3 Id. at
400. Therefore, requiring Ms. Anderson to account for every possible
variable that may have impacted the outcome goes beyond Supreme
Court formulations of the plaintiff’s burden in a Title VII disparate
impact case. In Watson, a case where the Court faced a challenge to
subjective practices, the Court required that the plaintiff "offer evi-
dence of a kind and degree sufficient to show that the practice in
question has caused the exclusion of applicants for jobs or promotions
because of their membership in a protected group," and importantly
noted that its formulations have "consistently stressed that statistical
disparities must be sufficiently substantial that they raise such an
inference of causation." Watson, 487 U.S. at 995. Similarly, in Albe-
marle, the Court required the plaintiff to show "that the tests in ques-
3
The Court’s decision in Bazemore has been read as allowing regres-
sion analyses that account for the "major" factors. See e.g. Smith v. Vir-
ginia Commonwealth Univ., 84 F.3d 672, 676 (4th Cir. 1996) ("While
the omission of variables from a regression analysis may render the anal-
ysis less probative than it otherwise might be, it can hardly be said,
absent some other infirmity, that an analysis which accounts for the
major factors ‘must be considered unacceptable as evidence of discrimi-
nation.’ Normally, failure to include variables will affect the analysis’
probativeness, not its admissibility. Importantly, it is clear that a regres-
sion analysis that includes less than ‘all measurable variables’ may serve
to prove a plaintiff’s case.")
48 ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO.
tion select applicants for hire or promotion in a racial pattern signifi-
cantly different from that of the pool of applicants." Albemarle, 422
U.S. at 425; see also Dothard, 433 U.S. at 329 ("[T]o establish a
prima facie case of discrimination, a plaintiff need only show that the
facially neutral standards in question select applicants for hire in a
significantly discriminatory pattern.").
I am of the opinion that Ms. Anderson satisfied her burden because
Mr. Bradley’s testimony is sufficient to show that the stages in ques-
tion select applicants for hire or promotion in a racial pattern signifi-
cantly different from that of the pool of applicants. In fact, the district
court recognized that Dr. Bradley’s analysis demonstrated a "statisti-
cally significant variation between the number of African-Americans
who apply and the number who are successful at both the second and
third step of the CBPS process." J.A. 12228. As the CBPS process is
set up, all candidates who made it to stage two of the process pos-
sessed at least the minimum qualifications for the posted position.
Further, all candidates who received a stage three interview were not
only minimally qualified for the position in question, but were also
found by the relevant department manager to be the most qualified of
all applicants. Yet despite this, Dr. Bradley found a statistically sig-
nificant under-representation of African-Americans when comparing
the applicant pools to the successful candidates at the end of each
stage.
Given these facts, I am at a loss to understand how the majority
finds that Ms. Anderson’s statistics fail to show that the stages in
question select applicants for hire or promotion in a racial pattern sig-
nificantly different from that of the pool of applicants. These statistics
present more than just a disparity in Westinghouse’s work force; they
present evidence that the challenged stages have caused the exclusion
of African-Americans because of their membership in a protected
class. And this evidence, by virtue of the nature of the hiring process
itself, controlled for the major factor in the hiring process that could
be controlled for, namely that of qualification. For example, despite
the fact that at stage three only the most qualified candidates are inter-
viewed, Dr. Bradley found that African-Americans were under-
represented in the class of those who actually received appointments
after interviewing. I recognize that this court is under no obligation
to "assume that plaintiffs’ statistical evidence is reliable." Watson,
ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO. 49
487 U.S. at 996. However, where a party shows that there is a statisti-
cally significant under-representation of African-Americans success-
fully completing a challenged subjective stage of a hiring process,
despite a number of qualified African-American candidates,4 I fail to
see how an inference of causation for the purposes of establishing a
prima facie case of disparate impact has not been shown.
Additionally, by faulting Ms. Anderson for not controlling for cer-
tain variables, the majority is in essence faulting her for not control-
ling for the exact factor that she is here challenging as causing a
disparate impact — the subjective aspects of stages two and three.
The majority states that "[f]actors such as presentation in the inter-
view, answers to interview questions, demeanor, and ability demon-
strated in the interview" are factors that entered in the ultimate hiring
decisions, and that therefore in order to show causation any statistical
evidence must control for these factors. Ante at 25. However, these
are all subjective evaluations, and exactly what Ms. Anderson is chal-
lenging. The majority points out that Ms. Anderson did not account
for the evaluation of core and functional competencies. But again, the
evaluation of the core competencies, and any relevant functional com-
petencies, is largely a subjective evaluation. While faulting Ms.
Anderson for not controlling for these factors, the majority never
explains how such control would even be possible. As I questioned
earlier, how does one quantify "teamwork" or "leadership," such that
it can be controlled for in a statistical setting. The very nature of the
subjective process challenged makes such control impossible.
As such, because Ms. Anderson identified a specific practice, dem-
onstrated the existence of a disparity and established a causal nexus
between the two, I would hold that Ms. Anderson did in fact state a
prima facie case of disparate impact.
III.
Despite its belief that Ms. Anderson failed to satisfy her prima
facie burden, the majority assumes arguendo that she has and contin-
ues with its disparate impact analysis. According to the majority:
4
Especially at the third stage where all African-American interviewees
were considered to be among the most qualified applicants.
50 ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO.
the question is whether the proffered circumstantial evi-
dence of discriminatory impact is sufficient to satisfy the
McDonell Douglas framework of proof . . . . Under this
framework the plaintiff must first establish a prima facie
case of discrimination. Then, the defendant must respond
with evidence that it acted with a legitimate, nondiscrimina-
tory reason. If the defendant makes this showing, then the
plaintiff must "present evidence to prove that the defen-
dant’s articulated reason was pretext for unlawful discrimi-
nation."
Ante at 26. After noting that under McDonnell Douglas the ultimate
burden of proving intentional discrimination remains on the plaintiff,
the majority finds that Ms. Anderson failed to show that Westing-
house’s legitimate nondiscriminatory reason was mere pretext for
intentional discrimination.
In reaching this conclusion, the majority ignores the Supreme
Court’s decision in Griggs, the impact of which was to squarely reject
the notion that in order to state a claim for employment discrimination
the claimant must make a showing of intent. As the Court stated in
Griggs, "good intent or absence of discriminatory intent does not
redeem employment procedures or testing mechanisms that operate as
‘built in headwinds’ for minority groups and are unrelated to measur-
ing job capability." Griggs, 401 U.S. at 432.
Disparate impact and disparate treatment are two legally distinct
causes of action under Title VII. Disparate treatment requires the
plaintiff to prove that the defendant had discriminatory intent or moti-
vation. See Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 986
(1988). In contrast, disparate impact seeks to ferret out employment
practices that are the functional equivalent of intentional discrimina-
tion because they cause significant adverse effects on protected
groups, but have no deliberate discriminatory motive. Id. at 986-87.
It is important to note that while the Supreme Court has enunciated
burden-shifting schemes for both disparate treatment and disparate
impact, the schemes possess critical differences that prevents one
from applying either test in the other context. See Lex K. Larson,
Employment Discrimination § 8.01[2] (2d ed. 2004) ("The principal
category of suits to which the McDonnell Douglas formula does not
ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO. 51
apply is that exemplified by the 1971 case of Griggs v. Duke Power
Co."). As the Court noted in Watson, "[t]he factual issues and the
character of the evidence are inevitably somewhat different when the
plaintiff is exempted from the need to prove intentional discrimina-
tion." Watson, 487 U.S. at 987.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), sets
forth the Supreme Court’s burden shifting formula for dealing with
the problem of proof in intentional discrimination cases.5 Under the
McDonnell Douglas burden shifting formula, after the plaintiff estab-
lishes a prima facie case, "the burden then must shift to the employer
to articulate some legitimate, nondiscriminatory reason for the
employee’s rejection." Id. Should the employer articulate such a rea-
son, the plaintiff must then be afforded an opportunity to show that
the articulated reason was merely pretext for a racially discriminatory
decision. Id. at 804-05.
By finding that Ms. Anderson had failed to show that Westing-
house’s articulated reason was pretext, the majority in essence held
that Ms. Anderson had failed to prove intent. However, in the context
of her disparate impact claim, Ms. Anderson was under no obligation
to prove intent. As the statute itself makes clear, where the employer
demonstrates that the challenged practice is job related for the posi-
tion in question and consistent with business necessity, the plaintiff
may still prevail by showing the existence of an equally effective
alternative practice that eliminates the disparate impact and that the
employer refuses to adopt that alternative. 42 U.S.C. § 2000e-
2(k)(1)(a)(2). Nowhere does the statute require a showing of pretext,
because pretext points to intent. Therefore, the majority’s application
of any such burden to Ms. Anderson is error.
5
See Lex K. Larson, Employment Discrimination § 8.01[1] (2d ed.
2004) ("Employers are, on the whole, too sophisticated to profess their
prejudices on paper or before witnesses. The Supreme Court in McDon-
nell Douglas, recognizing the necessity in most instances of reliance on
circumstantial evidence, laid down rules of proof under which direct evi-
dence of discriminatory intent is not necessary to the making of a prima
facie case.").
52 ANDERSON v. WESTINGHOUSE SAVANNAH RIVER CO.
IV.
Disparate impact is more than a mere method of smoking out inten-
tional discrimination. Disparate impact attacks a set of deleterious
behaviors that the intent standard fails to capture. By definition, the
standard attacks only those practices that have a disparate impact on
the employment opportunities of classes protected by Title VII when
those practices are not supported by a legitimate business justification
or where the same end-goals can be achieved in a less deleterious
manner. Given the struggles of this nation, a practice that has a dispa-
rate adverse impact on a protected class, and yet either has no legiti-
mate business justification, or can be achieved in a less harmful
manner, is not a practice that we should allow to stand. Ultimately,
this is a recognition by society that these practices, and their effects,
are harmful in their own right. To continue moving a healing society
forward, any such practices must be attacked under Title VII with a
level of vigor equal to that spent combating intentional discrimina-
tion.
With its holdings today, the majority has made the mountain a
plaintiff must climb to state a disparate impact claim harder to sur-
mount. Not only has the majority in essence required the plaintiff here
to prove causation to a scientific certainty, they have also forced the
plaintiff to show intent despite the clear statutory and jurisprudential
dictates to the contrary. As I cannot concur with either of these
results, I respectfully dissent.