Scott v. Lumbee River Electric Membership Corp. , 286 F. App'x 27 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1169
TRACY SCOTT,
Plaintiff - Appellant,
v.
LUMBEE RIVER ELECTRIC MEMBERSHIP CORPORATION,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:06-cv-00092-F)
Argued: May 13, 2008 Decided: June 10, 2008
Before KING, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Henry F. FLOYD, United States District Judge for the District of
South Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Barry Nakell, Chapel Hill, North Carolina, for Appellant.
Aaron M. Christensen, SMITH & CHRISTENSEN, LLP, Charlotte, North
Carolina, for Appellee. ON BRIEF: W. Britton Smith, Jr., SMITH &
CHRISTENSEN, LLP, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tracy Scott brought federal causes of action against Lumbee
River Electric Membership Corporation (the Cooperative) alleging
(1) sex discrimination in the Cooperative’s failure to hire her for
an Apprentice Power Line Technician position and (2) retaliation
after she filed a charge of discrimination with the Equal
Opportunity Commission, both in violation of 42 U.S.C. §§ 2000d and
2000e-2(a). Scott also asserted a state breach of contract claim.
The Cooperative subsequently moved for summary judgment, which
the district court granted by order filed January 31, 2007. This
appeal followed.
I.
“We review the district court's order granting summary
judgment de novo, viewing the facts in the light most favorable to,
and drawing all reasonable inferences in favor of, the nonmoving
party.” Garofolo v. Donald B. Heslep Assocs., Inc. 405 F.3d 194,
198 (4th Cir. 2005). Summary judgment is “properly regarded not as
a disfavored procedural shortcut, but rather as an integral part of
the Federal Rules as a whole, which are designed to secure the
just, speedy and inexpensive determination of every action.”
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). The primary
issue is whether the material facts present a sufficient
disagreement as to require a trial, or whether the facts are
2
sufficiently one-sided that one party should prevail as a matter of
law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52
(1986). The substantive law of the case identifies which facts are
material. Id. at 248. Only disputed facts potentially affecting
the outcome of the suit under the substantive law preclude the
entry of summary judgment. Id.II.
The relevant facts, as set forth in the district court’s
order, are as follows:
A. The Parties
The Cooperative is a nonprofit rural
electric membership cooperative that provides
electric utility services to approximately
48,806 premises throughout sections of Hoke,
Cumberland, Robeson and Scotland counties.
The Cooperative is headquartered in Red
Springs, North Carolina, and maintains branch
offices in the municipalities of Lumberton,
Fayetteville, Fairmont, Laurinburg and
Radford. The Cooperative employs approximately
108 people and maintains more than 5,056 miles
of electric distribution lines.
[Scott], at the age of 23, began working
at the Cooperative in June 2001 as a
distribution systems operator. Prior to
working at the Cooperative, [Scott] had
received her high school diploma in 1995, as
well as an Associate in Applied Science Degree
in the Electric/Electronics Program from
Robeson Community College in May 2001. The
distribution systems operator position is an
"inside" position, as opposed to an "outside"
position where an employee works in the field.
Distribution systems operators work within the
Cooperative's Distribution Center, which
provides around-the-clock outage response
3
services. The operators receive calls from
the Cooperative's members concerning outages,
and communicate with the outside employees in
the field to facilitate outage repairs.
Necessarily, the operators must be able to
work with the Cooperative's electronic map of
the system. By all accounts, [Scott] was a
satisfactory employee.
B. Apprentice Power Line Technician Position
On April 5, 2004, the Cooperative posted
internally three "Apprentice Power Line
Technician" vacancies, the entry-level
position in the Cooperative's four-year
lineman apprenticeship program. The program
includes coursework at Nash Community College
in the Electric Lineman Technology Program and
on-the-job training. The "Position Speci-
fications" of the position were listed as
follows:
Education: High school diploma or
equivalent required.
Should be able to
successfully complete
appropriate technical
schools in order to
perform job activities.
Experience: None required for entry
level position.
*Job Knowledge: Knowledge of overhead and
underground construction
and maintenance of dis-
tribution lines. Should
have knowledge of updated
First Aid and CPR.
Abilities & Should be able to perform
Skills: activities as required in
the construction and
maintenance of dis-
tribution lines. Ability
to operate line equip-
ment. Legible handwriting
is required. Must have a
valid North Carolina
Driver's License and be
able to obtain a
4
Commercial Driver's
License. Must be
physically able to
perform the duties of
this position, such as
climbing and some heavy
lifting.
Working Conditions: Subject to outside work
in all kinds of weather.
Subject to being on call
during emergencies.
Subject to having to work
in long rubber sleeves in
direct contact with
energized lines.
C. [Scott’s] Interest in the Position
[Scott] set for herself the goal of
becoming a Power Line Technician. Even before
the vacancies in the apprentice program were
posted, [Scott] expressed her interest in the
position to various Cooperative employees and
officials. Specifically, four months before
the position was posted, [Scott] spoke to
Steve Davis, the Operations Manager for the
Cooperative, about the schooling provided by
the apprentice program. According to [Scott],
Davis told [Scott] that before she applied for
the program, he would have to see whether she
could climb poles. [Scott] contends that
Davis later told her that he could not take
her out to assess her climbing ability because
David Altman, Senior Vice-President of
Engineering, Economic and Business Development
at the Cooperative, told Davis that no one
else had to have a preliminary assessment.
[Scott] also told Ronnie Hunt, the
President and C.E.O. of the Cooperative, that
she was considering applying for the position.
Hunt related his past experience as a Power
Line Technician to [Scott]. Hunt has
testified that he thought [Scott] was "halfway
joking" about applying for the job, because
she already was in a higher-paying position,
and would have to take a reduction in pay to
go through the apprentice program. [Scott]
also spoke with Roger Bullard, a Foreman of
5
Underground Maintenance, about the require-
ments of the Power Line Technician position,
and accompanied his crew out in the field on
one occasion.
Finally, [Scott], after applying for the
position, told Carmen Dietrich, Senior Vice
President of Corporate Services, that she had
applied for the apprentice program. [Scott]
also asked Dietrich if she would be on the
interview committee, and how Dietrich felt
about having a female working on a line crew.
Dietrich informed [Scott] that she would not
be on the committee, and that she didn't think
the Power Line Technician position was a
woman's job.
D. The Selection Process
Hunt, as the CEO and President of the
Cooperative, is the only Cooperative official
with hiring, firing, and promotion authority.
The Cooperative, however, uses a committee to
help screen and recommend candidates prior to
Hunt's final selections. The Cooperative
contends that this process is designed to
insulate the decisionmaking process from any
improper influences or favoritism toward any
particular candidate. As part of its role in
the selection process, the committee is
required to submit a unanimous recommendation
to Hunt. If the committee fails to do so,
Hunt then becomes personally involved in the
interview process. Regardless, Hunt is
entitled to request additional information at
any time during the process.
The Cooperative contends that the
committee follows several procedures to insure
nondiscriminatory treatment and equal
opportunities for all candidates.
Specifically, the Vice President for Human
Resources, Jackie Harding, reviews and
approves interview questions before including
them on the printed questionnaire form.
During the actual interviews, the exact same
questions are read to each of the candidates,
in the exact same order, by the exact same
committee member. The committee members
6
generally refrain from asking follow-up
questions of any of the candidates, in an
effort to avoid any inference of favoritism.
Rather, it is up to each candidate to convince
the committee that he or she is one of the
best-qualified candidates for the vacancy.
The interview committee for the
Apprentice Line Technician Position consisted
of the following Cooperative officials: (l)
Harding, Vice President for Human Resources;
(2) Dietrich, Senior Vice President of
Corporate Services; (3) Davis, Operations
Manager, and (4) Tracy Bensley, Senior Vice
President of Engineering and Operations.
Three positions in the Apprentice program were
open, and the committee was charged with
interviewing the six applicants and
recommending a total of three applicants for
the open positions. Out of the six applicants,
[Scott] was the only female.
[Scott] indicates that at the outset of
her interview, Dietrich apologized to [Scott]
for telling her that she would not be serving
on the interview committee. Contemporaneous
interview notes indicate that the applicants
were each asked ten questions. The second
question asked of each applicant was "What
would you bring to this position that would
benefit Lumbee River?" [Scott] has testified
that she answered the question by pointing out
that she would bring diversity and change to
the position because the Cooperative had never
before employed a woman as a Power Line
Technician. She also indicated to the
interviewers that if a woman was hired for the
position, it would help bolster the
Cooperative's reputation in the community.
The interview reports indicate that at least
three of the four [committee members] found
[Scott’s] response to the second question to
be inappropriate.
At some point after [Scott] applied for
the position, Bensley approached David Hunt, a
Transmission Substation Foreman, and asked how
he would feel about training a female for a
7
Power Line Technician position. According to
David Hunt, he responded that he would have no
problem training a female for the position,
and the conversation ended.
After interviewing all the applicants,
the interview committee unanimously
recommended that Derek Owens, David Humphrey,
and James Locklear be selected for the
Apprentice Line Technician positions. Relying
on the committee's recommendation, as well as
his own personal knowledge of the six
applicants, Hunt selected Owens, Humphrey, and
Locklear for the positions.
Once she was notified of her non-
selection, [Scott] resigned from the
Cooperative in order to attend school in a
general course of study.
(J.A. 38-42) (citations omitted).
III.
In awarding summary judgment to the Cooperative on Scott’s
mixed-motive theory, the district court held that Scott had failed
to satisfy the mandate of Hill v. Lockheed Martin Logistics Mgmt.,
Inc., 354 F.3d 277 (4th Cir. 2004), “to come forward with
sufficient evidence from which a jury could conclude that the
interview committee was principally responsible, or the actual
decisionmaker, for the decision not to select her for the
Apprentice Power Line Technician position.” (J.A. 47.) Therefore,
“[Scott] cannot rely on the alleged actions and comments of the
interview committee members in establishing her mixed-motive case.”
(J.A. 49.) The district court also rejected Scott’s contention
that Hunt’s actions and comments amounted to ample evidence on a
8
mixed-motive theory.
The district court then carefully analyzed Scott’s claim
pursuant to the burden-shifting framework laid out in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Under McDonnell
Douglas, the plaintiff must first establish a prima facie case of
sex discrimination, by demonstrating that “(1) she is a member of
a protected class; (2) her employer had an open position for which
she applied; (3) she was qualified for the position; (4) she was
rejected for the position under circumstance giving rise to an
inference of unlawful discrimination.” Mackey v. Shalala, 360 F.3d
463, 468 (4th Cir. 2004)(citation omitted).
After determining that Scott had indeed established a prima
facie case of discrimination, the burden shifted “to the
Cooperative to state a legitimate, non-discriminatory reason for
failing to hire [Scott] for the Apprentice Power Line Technician
position.” (J.A. 51). The reasons set forth by the Cooperative
that the other applicants were chosen for the Apprentice Power Line
Technician positions were:
(1) each had "outside" experience and knew
their way physically around the system and
could effectively navigate more than 5,065
miles of system lines; (2) each could already
physically locate substations, feeders, bays,
lines, and breakers on the system; (3) each
had experience in connecting and disconnecting
consumers, installing breakers, spotting
trouble on the system, helping Power Line
Technicians raise lines and observing other
procedures, and (4) one of the applicants
already was certified to climb and possessed a
commercial's driver's license.
9
(J.A. 51.)
The district court then noted that the burden shifted back to
Scott to demonstrate that the Cooperative’s proffered reasons for
failing to hire her for the Apprentice Power Line Technician
position were merely a pretext for sex discrimination. After
considering Scott’s arguments on this issue, the district court
held that Scott had failed to proffer evidence of pretext.
Having reviewed the record and the applicable law pursuant to
the standard set forth above, and having had the benefit of oral
argument, we conclude that the district court did not err in
granting summary judgment in favor of the Cooperative.
Accordingly, we affirm based on the reasoning of the district
court. Tracy Scott v. Lumbee River Elec. Memb’p Corp., No. 5:06-
CV-92-F(2) (E.D.N.C. Jan. 31, 2007).
AFFIRMED
10