Barnes v. United States Department of Navy ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
April 14, 2004
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 03-30401
WALDO M. BARNES,
Plaintiff-Appellant,
versus
UNITED STATES DEPARTMENT OF THE NAVY,
Gordon Englad, Secretary,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
01-CV-3887-B
Before JOLLY, DUHE, and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:*
In this employment discrimination action, at issue is whether Waldo M. Barnes (“Barnes”)
presented evidence sufficient to create a genuine issue of material fact, precluding the district court’s
*
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 R. 47.5, the court has determined that this opinion should not be published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.
grant of summary judgment to the Secretary of the Navy (“Navy”). For the following reasons, we
affirm.
FACTUAL AND PROCEDURAL HISTORY
The following facts are taken in the light most favorable to the plaintiff. Barnes, a 64-year-old
African-American male, has been employed by the Navy since 1967. In 1999, Barnes was one of two
candidates for a Navy position as an Equal Employment Opportunity (“EEO”) manager at the Navy’s
Commander Naval Reserve Force in New Orleans. Barnes and the other applicant, Angelina Salayon,
were interviewed by a panel comprised of three voting members and one non-voting member
providing EEO oversight; the panel member in charge of the selection was Charles Martino. In
December of 1999, the panel unanimously selected Salayon, who is: a female, younger than Barnes,
and identified as being of Asian-Pacific Islander descent.
Prior to the 1999 employment decision, Barnes was employed as an EEO counselor. There
is evidence that, in this role, Barnes took a complaint from a Navy employee who believed that
Martino had violated her trust by revealing a confidential conversation to management. In
investigating this complaint, Barnes interviewed Martino at some time prior to March 16, 1999.
Barnes’s complaint was still pending when he applied for the promotion as an EEO manager.
Post completion of administrative procedures, Barnes’s complaint alleged that his federal
employer violated the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.,
and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Specifically, Barnes alleges
that the Navy discriminated against him because of his age, race, and gender. Barnes also alleges that
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the Navy retaliated against him for filing prior employment discrimination complaints and for being
the EEO manager who interviewed the selecting official for a position for which Barnes applied.
The district court granted summary judgment in favor of the Navy. The district court
reasoned that although under the ADEA and Title VII Barnes was qualified for the position, the
Navy’s articulated reasons for failing to select him were not pretextual because Barnes failed to show
that he was clearly better qualified than Salayon. The district court also granted summary judgment
on Barnes’s retaliation claim because he demonstrated no causation between a protected activity and
an adverse employment action. Barnes timely filed a notice of appeal.
STANDARD OF REVIEW
This court reviews the grant of summary judgment de novo. Flock v. Scripto-Tokai Corp.,
319 F.3d 231, 236 (5th Cir. 2003). A summary judgment motion is properly granted only when,
viewing the evidence in the light most favorable to the nonmovant, the record indicates that there is
“no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
DISCUSSION
On appeal, Barnes argues that he presented evidence sufficient to avoid summary judgment
on his claims that he: was discriminated against when he did not receive the position in 1999; and
suffered retaliation when he did not receive that position. Specifically, Barnes contends that the
Navy’s proffered reasons for failing to select him as an EEO manager were pretextual because his
qualifications were far superior to Salayon’s qualifications, and thus demonstrates discriminatory
intent. Barnes also contends that he established his retaliation claim because a causal link exists
between Barnes’s participation as an EEO counselor on a complaint which accused Martino, the
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person respo nsible for selecting the EEO manager, and being denied the promotion. We do not
agree.
I. Discrimination Due to Age, Race, and Gender
The framework for discrimination claims such as Barnes’s is well-established. In a Title VII
action, the plaintiff has the burden of proving a prima facie case of discrimination by a preponderance
of the evidence. McDonnell Douglass Corp. v. Green, 411 U.S. 792, 802 (1973). To establish an
inference of discrimination, a plaintiff must show a prima facie case by establishing that he is a
member of a protected class, he was qualified for the position that he held, he suffered an adverse
employment action; and after his discharge he was replaced with a person who is not a member of
the protected class. Bauer v. Albermarle Corp., 169 F.3d 962, 966 (5th Cir. 1999). After a prima
facie case is made, the defendant must articulate a legitimate, non-discriminatory reason for its
actions. Id. If this is done, the plaintiff must then prove that the proffered reason was a pretext. Id.The same evidentiary framework applies in cases of alleged discrimination under the ADEA. St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993).
The Navy acknowledges that Barnes satisfied the first step of establishing a prima facie
inference of discrimination. The Navy provided a substantial explanation for its decision to hire
Salayon — she was the better qualified candidate. The Navy provided evidence about the position
Barnes applied for, including evidence that the position had policy-making responsibilities, and
evidence that supported its decision that Salayon was better qualified for the position. Specifically,
the Navy provided evidence that Salayon had experience at the policy-making level; that she had more
experience at the Navy Headquarters command than Barnes; that in her time at Navy Headquarters,
she worked on several EEO programs; that she demonstrated analytical ability; that her membership
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on the quality inspection team increased her qualifications for the position; and that the hiring panel
was impressed with Salayon’s confidence during the interview process.
The Navy does not argue that Barnes was not qualified; instead, the Navy has presented
reasons why Barnes’s experience did not make him as qualified as Salayon. Given the requirements
for the position of EEO manager, it is particularly relevant that Marti no noted Barnes’s 15 years
experience as a deputy EEO were spent in a non-policy-making level, implementing policies
developed by others. These are legitimate, non-discriminatory reasons why the Navy could
permissibly choose to promote Salayon instead of Barnes.
Once the Navy offered its non-discriminatory explanation, Barnes had the burden of
producing evidence that the Navy rationale was false and a mere pretext for discrimination. See
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142-43 (2000). Here, Barnes attempted
to do so, by showing that he was clearly better qualified for the EEO manager position.
We have previously held that a showing that the unsuccessful employee was clearly better
qualified is enough to prove that the employer’s proffered reasons are pretextual. Price v. Federal
Express Corp., 283 F.3d 715, 723 (5th Cir. 2002). This evidentiary basis for creating a permissible
inference of discrimination is a limited one; the standard for being “clearly better qualified” is high.
The bar is high for such evidence “because differences in qualifications are generally not probative
evidence of discrimination unless those disparities are of such weight and significance that no
reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected
over the plaintiff for the job in question.” Celestine v. Petroleos de Venezuella SA, 266 F.3d 343,
357 (5th Cir. 2001) (quotation marks omitted). In other words, we do not review personnel decisions
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for their wisdom. See Mato v. Baldauf, 267 F.3d 444, 453 (5th Cir. 2001), cert. denied, 536 U.S.
922 (2002).
The pretext evidence Barnes present s includes: he served for 15 years as a deputy EEO
officer; Salayon had never been a permanent full time deputy EEO officer; he had instructed Salayon
when she was “coming up through the ranks”; and he had been temporarily promoted to the EEO
manager position. In addition, Barnes presented two declarations from those familiar with his work,
testifying to his excellent performance, and his qualifications for the EEO manager position.
Assuming, as we must, that Barnes’s factual assertions are correct, we cannot say that
rational, non-discriminatory individuals would always choose someone, like Barnes, with management
experience over someone without it. A unanimous panel of three individuals, with EEO guidance,
chose Salayon for reasons they recited at length. More importantly, even assuming Barnes’s
significant management experience demonstrates that he was “qualified” for the EEO manager
position, Barnes lacked the policy-making experience Salayon possessed. Due to her experience at
Navy Headquarters of interpret ing and developing policy for subordinate field commands and
activities, the Navy could reasonably find that Salayon was in fact “better qualified” than Barnes for
the position of EEO manager. Therefore, Barnes’s lack of policy-making experience precludes him
from making the requisite showing that he was a “clearly better qualified” candidate.
Although most of Barnes’s evidence of pretext is directed at establishing that he was clearly
more qualified, he also presented other evidence of pretext. Reportedly, one member of the hiring
panel respo nded to Barnes’s claim that he had been working at EEO since 1977 by saying, “oh I
wasn’t born then.” We find, however, that this comment was not related to the decision to promote
Salayon rather than Barnes; rat her, this comment is a stray remark which alone cannot establish a
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genuine issue of material fact concerning a discrimination claim. Wallace v. Methodist Hospital
System, 271 F.3d 212, 222 (5th Cir.), cert. denied, 535 U.S. 1078 (2002). Accordingly, we find that
the dist rict court correctly granted summary judgment in favor of the Navy on the discrimination
claims.
II. Retaliation for a Protected Activity
Barnes asserts that the 1999 decision not to promote him was made in retaliation for his
investigation of Martino’s alleged violation of trust. To establish a prima facie retaliation claim, a
plaintiff must show, inter alia, that there was a causal link between the participation in the protected
activity (here, fulfilling EEO duties) and the adverse employment action (here, failure to receive
promotion). E.g. Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir.), cert. denied, 522
U.S. 932 (1997). Although Barnes co nducted an interview with Martino, there is no evidence of
accusations or rancor. Indeed, when the complaint being investigated was formally filed, it did not
complain of Martino’s conduct. The interview was in March; the employment decision was in
December. See Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 268 (5th Cir. 1994) (stating
that it is highly unlikely that an adverse employment decision ten months after protected activity was
prompted by retaliatory motive). Here, the report of interpersonal contact in the form of an
interview, at least nine months prior to the adverse employment decision is insufficient to create a
material fact issue. Accordingly, we find that the district court correctly granted summary judgment
on the issue of retaliation.
Affirmed.
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