Evans v. City of Bishop , 238 F.3d 586 ( 2001 )

Revised February 7, 2001
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-41444
_____________________
LEROY EVANS, JR
Plaintiff - Appellant
v.
CITY OF BISHOP
Defendant - Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
December 11, 2000
Before KING, Chief Judge, and CUDAHY* and WIENER, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Leroy Evans, Jr. appeals from the
district court’s order granting Defendant-Appellee City of Bishop
summary judgment on Evans’s discrimination claims. For the
following reasons, we REVERSE.
*
Circuit Judge of the Court of Appeals for the Seventh
Circuit, sitting by designation.
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 17, 1998, Defendant-Appellee City of Bishop
(“Bishop”) advertised in the Kingsville Record the newly created
position of administrative assistant. Shortly thereafter,
Plaintiff-Appellant Leroy Evans, Jr., a former council member,1
applied for the opening by handing his application directly to
Charles Wesley Rogers, the mayor of Bishop.
Three days before the city council meeting, Cindy
Villarreal, a Bishop municipal court clerk,2 turned in her
application for the advertised position. In total, Rogers
received between five and ten applications. He reviewed only
Evans’s and Villarreal’s applications3 and chose Villarreal for a
position that now combined the responsibilities of the posted
administrative assistant position and the existing municipal
judge position. Rogers did not interview Villarreal or inform
her of his actions until the date of the city council meeting.
1
Evans left the city council on May 2, 1998 because he
lost a bid for reelection.
2
Villarreal was the municipal court clerk at the time she
submitted her application for the administrative assistant
position. Although the record is not entirely clear on this
point, it appears that she became the municipal court judge
sometime after she submitted the application.
3
Rogers stated that he reviewed Evans’s application
because Evans handed the application directly to him and that he
reviewed Villarreal’s application because he heard that she had
applied.
2
Rogers then went before the city council and received approval
for his decisions.4
Evans filed suit against Bishop on December 18, 1998,
asserting claims under Title VII of the Civil Rights Act of 1964
(“Title VII”) and the Age Discrimination in Employment Act
(“ADEA”). He alleged employment discrimination on the basis of
race, color, age, and sex. On June 23, 1999, Bishop filed a
motion for summary judgment.
The district court referred the case to a United States
magistrate judge who, on August 26, 1999, filed her Memorandum
and Recommendation. The magistrate judge recommended that
Bishop’s motion for summary judgment be granted and judgment
rendered in Bishop’s favor. In a decision dated November 29,
1999, the district court adopted the magistrate judge’s
conclusions5 and granted Bishop’s motion for summary judgment.
Evans timely appealed the decision to this court. On May
22, 2000, a panel of this court affirmed the district court in an
unpublished opinion. See Evans v. City of Bishop, No. 99-41444
(5th Cir. May 22, 2000) (per curiam). However, on July 27, 2000,
in light of the recent Supreme Court decision in Reeves v.
4
Rogers did not make the applications available to the
city council for review. He did tell the city council members
that he had only examined Evans’s and Villarreal’s applications.
5
As such, the magistrate judge’s findings and conclusions
will be referred to, hereinafter, as those of the district court.
3
Sanderson Plumbing Products, Inc., 120 S. Ct. 2097 (2000), we
withdrew our May 22 opinion.
II. STANDARD OF REVIEW
We review de novo a district court’s grant of summary
judgment, applying the same standard as the district court. See
Walker v. Thompson, 214 F.3d 615, 624 (5th Cir. 2000). Summary
judgment is appropriate “if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” FED. R. CIV. P. 56(c); see also Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986). “If the moving party
meets the initial burden of showing there is no genuine issue of
material fact, the burden shifts to the nonmoving party to
produce evidence or designate specific facts showing the
existence of a genuine issue for trial.” Allen v. Rapides Parish
Sch. Bd., 204 F.3d 619, 621 (5th Cir. 2000) (internal quotations
and citation omitted). Doubts are to be resolved in favor of the
nonmoving party, and any reasonable inferences are to be drawn in
favor of that party. See Burch v. City of Nacogdoches, 174 F.3d
615, 619 (5th Cir. 1999).
4
III. SOVEREIGN IMMUNITY DOES NOT BAR ADEA CLAIM
Bishop asserts that Evans’s ADEA claim is barred because the
ADEA has recently been held to be an invalid abrogation of a
state’s sovereign immunity. Bishop argues further that the law
at the time of appellate review determines the existence of a
live controversy.6
The Supreme Court in Kimel v. Florida Board of Regents, 120
S. Ct. 631 (2000), held that Congress exceeded its powers under
§ 5 of the Fourteenth Amendment by enacting the ADEA. As such,
the states and their political subdivisions are protected by the
sovereign immunity principle embodied in the Eleventh Amendment.
In this case, however, Bishop is not a state; it is a city.
Bishop argues that the Kimel Court noted that Congress did not
have sufficient grounds to believe that state and local
governments were engaging in age discrimination, see id. at 645;
thus, Bishop concludes that it, as a city, is immune from ADEA
suits.
However, the Kimel Court’s comment about congressional
findings has no relevance regarding whether a city has sovereign
immunity from suit. That determination arises from the well-
6
Bishop did not raise this issue in the district court
and thus did so for the first time on appeal. However, Bishop
did not waive appellate review because Eleventh Amendment “claims
are jurisdictional in nature and may be raised and considered at
any time.” Laje v. R.E. Thomason Gen. Hosp., 665 F.2d 724, 726
n.2 (5th Cir. 1982) (citing Edelman v. Jordan, 415 U.S. 651, 677-
78 (1974)).
5
settled law under Eleventh Amendment jurisprudence regarding
“political subdivisions.” Not all political subdivisions are
automatically immunized when the state is immunized. See Earles
v. State Bd. of Certified Pub. Accountants, 139 F.3d 1033, 1036
(5th Cir. 1998) (citing Edelman v. Jordan, 415 U.S. 651, 677-78
n.12 (1974)). “We must look to see whether the entity in
effect[] stands in the shoes of the state itself.” Id. (internal
quotations and citation omitted).
In the overwhelming number of cases, Eleventh Amendment
protection “does not extend to counties and similar municipal
corporations.” Mt. Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274, 280 (1977) (emphasis added). Thus,
“independent local political subdivisions are not entitled to
. . . [sovereign] immunity even though they exercise a ‘slice of
state power.’” Jacintoport Corp. v. Greater Baton Rouge Port
Comm’n, 762 F.2d 435, 438 (5th Cir. 1985); see also City of
Lafayette, La. v. La. Power & Light Co., 532 F.2d 431, 434 n.6
(5th Cir. 1976) (“[C]ities, counties, and other state political
subdivisions are not considered ‘the state’ for purposes of
Eleventh Amendment immunity.”).
Bishop is a city, and there is no evidence that it is
controlled by the State of Texas to such an extent that it stands
in the shoes of the state. Thus, Bishop is not immune from ADEA
suits.
6
IV. PLAINTIFF SURVIVES SUMMARY JUDGMENT
Evans argues that because he made out a prima facie case of
discrimination and illustrated that Bishop’s proffered reasons
were pretextual, he has presented a genuine issue as to Bishop’s
discriminatory motives. He asserts further that Reeves v.
Sanderson Plumbing Products, Inc., 120 S. Ct. 2097 (2000),
explicitly did not require evidence beyond a prima facie case and
pretext as a prerequisite for a plaintiff to survive summary
judgment. Bishop responds that although Evans put forth a prima
facie case, Reeves does not alter the result of the previous
panel decision because no rational trier of fact could conclude
that its actions were motivated by discriminatory animus. We do
not agree. We find that Evans fulfilled his duty under Reeves to
demonstrate genuine issues of material fact as to his
discrimination claims, and thus, the case should proceed to
trial.7
7
Bishop repeatedly asserts on appeal that “a subjective
belief of discrimination, however genuine, . . . [may not] be the
basis of judicial relief.” Elliott v. Group Med. & Surgical
Serv., 714 F.2d 556, 567 (5th Cir. 1983). However, as we have
explained in Portis v. First National Bank, in “the Elliott line
of cases, the plaintiffs’ testimony failed because it alone stood
against unimpeached and uncontradicted opposing testimony.” 34
F.3d 325, 330 n.10 (5th Cir. 1994). Thus, when the plaintiff
challenges the defendant’s assertions and testimony, the “fact
that [the plaintiff’s] case-in-chief consists solely of [his] own
testimony does not prevent [him] from establishing intentional
discrimination.” Id. (emphasis added); see also Vance v. Union
Planters Corp., 209 F.3d 438, 442 & n.3 (5th Cir. 2000) (citing
Portis with approval). In this case, Evans has challenged
Bishop’s claims and has put forth other evidence (in addition to
his subjective belief).
7
In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
the Supreme Court specified a burden-shifting approach to
establishing proof of intentional discrimination via
circumstantial evidence.8 First, Evans made out his prima facie
case by showing that (1) he is an African-American male over
sixty years old; (2) he was qualified for the job; (3) he was not
hired; and (4) a Hispanic woman under forty years was
subsequently hired for that position. See id. at 802. The
burden then shifted to Bishop to articulate a legitimate, non-
discriminatory reason for its decision. See id. at 802-03; see
also Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255-56
(1981) (stating that defendant’s burden is only one of production
and not persuasion). Bishop claimed that economic factors and
qualifications motivated its choice of Villarreal. Rogers stated
that he had previously considered combining the municipal court
judge and administrative assistant positions because neither
position required full-time attention and because such a
consolidation would cut costs. Rogers further maintained that he
believed Villarreal was the best-qualified applicant.
Because Bishop produced non-discriminatory reasons, the
“presumption of discrimination [created by Evans’s prima facie
case] drops out of the picture.” Reeves, 120 S. Ct. at 2106
8
This circuit has acknowledged that the McDonnell
Douglas framework applies to both Title VII and ADEA claims. See
Russell v. McKinney Hosp. Venture, --- F.3d ----, 2000 WL
1785541, at *9 n.3 (5th Cir. 2000).
8
(internal quotations and citation omitted). However, the fact
finder “may still consider the evidence establishing the
plaintiff’s prima facie case ‘and inferences properly drawn
therefrom . . . on the issue of whether the defendant’s
explanation is pretextual.’” Id. (quoting Burdine, 450 U.S. at255 n.10).
The district court found that a trier of fact could conclude
that both of Bishop’s proffered reasons were pretextual.9 The
court noted that the fact that combining the two positions would
save money did not address why Villarreal was chosen over Evans.
Furthermore, Evans contests the timing of this consolidation
decision, pointing out that it was not made until after
Villarreal submitted her application (as the original posting was
for a different position, and Villarreal herself did not know of
the modification until the city council meeting). We thus find
that Evans has, at the very least, created a jury issue as to
pretext on this proffered justification. See Russell v. McKinney
Hosp. Venture, --- F.3d ----, 2000 WL 1785541, at *4 (5th Cir.
2000) (reiterating that it is the province of the jury to choose
among conflicting versions and make credibility determinations).
9
Although the district court found that Evans had
established a prima facie case and pretext, the court stated that
Evans failed to create a fact question about Bishop’s
discriminatory animus. As we discuss infra in the text, this
analysis was in error.
9
Evans also adduced evidence to support a finding of pretext
regarding the qualification justification. He points to a
contrary statement by Rogers in his deposition that qualification
was not his main priority. Evans also questions how Villarreal
could be deemed the most qualified when Rogers did not interview
any other candidates and when he stated that he did not compare
Evans’s and Villarreal’s qualifications.10 We agree with the
district court that sufficient evidence exists for a jury to find
that this justification is also pretextual.
Thus, Evans has established a prima facie case of
discrimination and put forth sufficient evidence for a fact
finder to find Bishop’s proffered reasons to be pretextual.
Reeves instructs that this showing is usually sufficient for a
plaintiff’s case to survive summary judgment:
[O]nce the employer’s justification has been
eliminated, discrimination may well be the most likely
alternative explanation, especially since the employer
is in the best position to put forth the actual reason
for its decision.
. . . .
Thus, a plaintiff’s prima facie case, combined with
sufficient evidence to find that the employer’s
10
Bishop argues that Evans does not make a showing that
Rogers’s statement of Villarreal’s superior qualifications was
untrue. Even assuming without deciding that Evans’s case is
lacking in this regard, Bishop’s argument is without merit.
Pretext can be illustrated via circumstantial evidence, as has
been done here, and does not require direct evidence. See United
States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714
n.3 (1983) (stating that the district court erred in requiring
the plaintiff to submit direct evidence).
10
asserted justification is false, may permit the trier
of fact to conclude that the employer unlawfully
discriminated.
Reeves, 120 S. Ct. at 2108-09.
In this case, Evans has also put forth evidence beyond that
of the prima facie case and pretext. Evans stated that one11 city
council member made racially derogatory comments directed against
African Americans. Reeves emphatically states that requiring
evidence of discriminatory animus to be “in the direct context”
of the employment decision is incorrect. See id. at 2111; see
also Russell, --- F.3d ----, 2000 WL 1785541, at *7-*8 (5th Cir.
2000) (emphasizing that our “stray remarks” jurisprudence must be
viewed with caution in light of Reeves). Thus, it would be
proper for a jury to take this evidence into account. In
addition, Evans claimed that this same council member worked to
defeat him in his reelection. The district court stated that
this was outside the realm of the dispute at hand. However,
again, the same Reeves principle applies: any evidence that could
shed light on an employer’s true motive must be considered.
The district court applied a now-disallowed legal standard
to analyze Bishop’s summary judgment motion. The Supreme Court
11
The Reeves facts are analogous here — derogatory
remarks also could not be attributed to all of the individuals
responsible for making the employment decision in Reeves.
However, the Supreme Court stated that “although [that was]
relevant, [it was] certainly not dispositive” and went on to find
the remarks of one decisionmaker to further support plaintiff’s
case of discrimination. See 120 S. Ct. at 2111.
11
in Reeves emphasized the importance of jury fact finding and
reiterated that evidence of the prima facie case plus pretext
may, and usually does, establish sufficient evidence for a jury
to find discrimination. See Reeves, 120 S. Ct. at 2109. Thus,
considering all of the evidence and taking all reasonable
inferences in favor of the nonmovant Evans, a genuine issue
exists as to whether Bishop intentionally discriminated against
Evans.
V. CONCLUSION
For the above-stated reasons, the judgment of the district
court is REVERSED. We REMAND for further proceedings in light of
this opinion. Costs shall be borne by Bishop.
12