Johnson v. Earthgrains Baking ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60445
Summary Calendar
PATRICIA M. JOHNSON,
Plaintiff-Appellant,
versus
EARTH GRAINS BAKING COMPANY, doing
business as COLONIAL BAKING COMPANY
OF MISSISSIPPI, INCORPORATED,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Mississippi
(86-CV-71)
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December 1, 1999
Before POLITZ, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
In this appeal from the district court’s grant of her
employer’s motion for summary judgment, dismissing her sex
discrimination case under Title VII, Plaintiff-Appellant Patricia
M. Johnson insists that her summary judgment evidence is sufficient
to establish a prima facie case —— or at least to create a genuine
dispute of material fact —— that sexual discrimination produced an
adverse employment action. She contends that when her position was
eliminated in a reduction in force (RIF), an open position was
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
given to a less qualified fellow employee who was male rather than
to her, solely because she was female. She also asserts that her
employer’s proffered reason for filling the position with her male
co-worker was pretextual.1 In our de novo review of the district
court’s grant of summary judgment, we reach the same conclusion as
did that court and therefore affirm.
Both Johnson and her employer have advised us that there is no
“need for oral argument” in this case, and we agree: The issues
are straightforward and clearly presented by the summary judgment
record on appeal, and the law is well-established. We have,
therefore, carefully reviewed the record on appeal and the
appellate briefs submitted by able counsel and, like the district
court before us, have applied the applicable law to the material
facts, about which we discern no genuine disputes. Clearly,
Johnson was a member of the protected class (female), was adversely
affected by her employer’s decision to eliminate her position in
the course of a RIF, and was qualified for the alternative position
that her employer ultimately gave to a male co-worker. To
establish a prima facie case for such a RIF situation, however, it
was necessary for Johnson to prove, or at least create a genuine
issue of material fact, that the alternative position was given to
her co-worker rather than to her because of her sex. This she has
failed to do. We do not question Johnson’s genuine belief that the
1
In addition to her claim for sexual discrimination in
employment, Johnson had also advanced an equal pay claim;
however, Johnson does not appeal the district court’s dismissal
of her equal pay claim.
2
only reason the job was given to her fellow employee, who had
slightly less seniority than she, is the fact that she is female,
and that the reasons verbalized by her employer regarding her co-
worker’s specific experience and familiarity with the requirements
and territory of the new job were a pretext to obfuscate sexual
discrimination. The evidence submitted by Johnson, however, simply
does not support her subjective belief or rise to the level
necessary to demonstrate the existence of a factual dispute that is
material and genuine.
On the contrary, the evidence demonstrates that Johnson and
her male counterpart were essentially equal in seniority,
experience, ability, performance history, and overall qualification
for the open position. Although Johnson expresses reasons for her
belief that she is better qualified, the objective evidence
regarding the male employee to whom the position was given
demonstrates essential equipoise in qualifications. And the law is
well settled that, absent any affirmative indicia of unlawful
discrimination, an employer is entitled to choose among job
candidates of approximately equal qualifications. Stated
differently, unless the employee or job candidate is clearly better
qualified, i.e., unless differences in qualification are so obvious
that no impartial arbiter “could have chosen the candidate selected
over the plaintiff for the job in question,”2 courts will not
second guess employers’ decisions of this nature. This is
2
Deines v. Texas Dept. of Protective & Regulatory Servs.,
164 F.3d 277, 281 (5th Cir. 1999).
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particularly true when, as in the instant case, the non-
discriminatory reasons for the decision, as advanced by the
employer, are not refuted or contradicted by the objective
evidence.
For the reasons set forth in greater detail in the Memorandum
Opinion of the district court, filed on May 28, 1999, we conclude
that the court’s ruling was correct. We therefore affirm the
summary judgment appealed.
AFFIRMED.
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