Sanders v. Anadarko Petroleum Corp. ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 17, 2004
_____________________ Charles R. Fulbruge III
Clerk
No. 03-21061
Summary Calendar
_____________________
LANA SANDERS; BARBARA TURNER,
Plaintiffs - Appellants,
versus
ANADARKO PETROLEUM CORP.; ET AL.,
Defendants,
ANADARKO PETROLEUM CORP.; PHILLIPS PETROLEUM CO.,
Defendants - Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
District Court Cause No. H-02-CV-423
_________________________________________________________________
Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.1
EDWARD C. PRADO, Circuit Judge.
In this appeal, plaintiffs-appellants Lana Sanders and
Barbara Turner challenge the dismissal of their employment
discrimination claims against defendants-appellees Anadarko
Petroleum Corporation (Anadarko) and Phillips Petroleum Company
(Phillips). After considering the appellants’ arguments, this
1
Pursuant to 5TH CIRCUIT RULE 47.5, this Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
1
court reverses the district court’s order dismissing Turner’s
Title VII claim and affirms the district court in all other
respects.
Background for the Lawsuit
The appellants were longtime employees of Phillips. During
the time period of the appellants’ allegations, the appellants
worked for Phillips as operators on the Mahogany, an oil
production platform located off the shore of Louisiana. The
Mahogany is jointly owned by Phillips, Anadarko, and a non-party.
In June 2000, Anadarko purchased the controlling interest in the
Mahogany. At that time, two eight-person crews operated the
Mahogany. Each crew was comprised of seven men and one woman.
After gaining control of the Mahogany, Anadarko accepted
applications from the sixteen members of the Phillips crew who
operated the Mahogany. Anadarko hired the fourteen male crew
members, but did not hire Sanders and Turner, the only females
who worked on the Mahogany.
In response, Sanders and Turner sued Anadarko and Phillips
for various claims under Title VII, the Texas Commission on Human
Rights Act (THCRA), and the Age Discrimination Employment Act
(ADEA). The district court referred the appellants’ lawsuit to
the magistrate judge. After considering motions for summary
judgment from Anadarko and Phillips, the magistrate judge
recommended dismissing all the appellants’ claims except for
2
Turner’s Title VII claim. The district court adopted the
magistrate judge’s recommendation.
Anadarko then moved for reconsideration and asked the
district court to dismiss Turner’s remaining claim. After
reviewing the record, the district court dismissed Turner’s last
claim. On appeal, the appellants challenge the dismissal of
Turner’s Title VII claim against Anadarko and the dismissal of
Sanders’s gender discrimination and retaliation claims against
Phillips.
Turner’s Gender Discrimination Claim
Turner alleges that Anadarko failed to hire her to work as
an operator on the Mahogany because she is female. Anadarko,
however, contends that Turner is not qualified to work as an
operator on the Mahogany. Anadarko maintains that a person
qualified to work on the Mahogany must have a strong background
in one of six fields of expertise. Anadarko also maintains that
its operators must have the ability to perform all oil-platform
tasks, including crane operation. Anadarko claims that Turner
does not meet its qualifications.
In its motion for summary judgment and its motion for
reconsideration, Anadarko argued that Turner failed to establish
a prima facie case of gender discrimination under Title VII
because she does not meet its requirements for working on the
Mahogany. The district court agreed, reasoning that Turner
3
failed to present evidence to show that Anadarko’s stated
qualifications are not requirements for working on the Mahogany
or that the men who were hired failed to satisfy Anadarko’s
qualifications. In her first issue, Turner contends the district
court erred by finding that she failed to establish a prima facie
case for her failure to hire claim against Anadarko.
We review the district court’s grant of summary judgment de
novo, applying the same process used by the district court.2
“Summary judgment is proper ‘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
judgment as a matter of law.’”3
Prima Facie Case. In an employment discrimination case, the
plaintiff bears the initial burden of first establishing a prima
facie case of unlawful discrimination.4 To meet this burden, the
plaintiff must show: (1) she is a member of a protected class,
(2) she was qualified to do the job, (3) she suffered an adverse
employment action, and (4) others outside the protected group
2
See FED. R. CIV. P. 56(c); Rios v. Rossotti, 252 F.3d 375,
378 (5th Cir. 2001).
3
Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912 (5th Cir.
1992)(quoting FED. R. CIV. P. 56(c)).
4
See Reeves v. Sanderson Plumbing Prod., 530 U.S. 133, 142
(2000).
4
were treated more favorably than she was.5 The plaintiff’s
burden of establishing a prima facie case is “not onerous.”6 “To
establish a prima facie case, a plaintiff need only make a very
minimal showing.”7
In the instant case, Turner presented evidence that shows
that Andarko hired all of the males who worked on the Mahogany,
but that Anadarko did not hire the only two women who worked on
the Mahogany. Turner also presented evidence that she worked for
Phillips for nineteen years – including fourteen years on oil
platforms and four years on the Mahogany – and that she received
high performance evaluations during the time she worked on the
Mahogany. In addition, Turner presented evidence that she is
certified to operate the Mahogany’s crane. Turner’s satisfactory
job performance as an operator on the Mahogany for four years and
her nineteen years of experience as an employee of Phillips
provides evidence that she met the minimum qualifications for
working as an operator on the Mahogany. Turner’s evidence
satisfies her burden to make a prima facie case of unlawful
discrimination. The district court erred by requiring Turner to
present evidence that Anadarko’s stated qualifications were not
5
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973).
6
See Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54
(1981).
7
Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th
Cir. 1996) (citations omitted).
5
required for working on the Mahogany or that the men who were
hired failed to satisfy Anadarko’s qualifications.8
Pretext. “Establishing the prima facie case raises an
inference of unlawful discrimination, and the burden of
production then shifts to the defendant-employer to proffer a
legitimate, nondiscriminatory reason for the challenged
employment action.”9 If the defendant-employer meets this
burden, the plaintiff must then produce evidence to demonstrate
that the employer’s presumably nondiscriminatory reason for not
hiring her was a pretext for intentional discrimination.10
“Whether summary judgment is appropriate depends on numerous
factors, including ‘the strength of the plaintiff's prima facie
case, the probative value of the proof that the employer's
explanation is false, and any other evidence that supports the
employer's case and that properly may be considered.’”11
The district court found that Turner failed to raise a
8
See Celestine v. Petroleos de Venezuella SA, 266 F.3d 343,
356 (5th Cir. 2001) (holding that district court erred by
requiring plaintiffs to show that they were better qualified than
employees who were promoted in order to make a prima facie case).
9
Blow v. City of San Antonio, 236 F.3d 293, 296-97 (5th Cir.
2001) (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 253-54 (1981)).
10
See McDonnell Douglas, 411 U.S. at 804.
11
Price v. Fed. Exp. Corp., 283 F.3d 715, 720 (5th Cir.
2002) (quoting Reeves v. Sanderson Plumbing Prods., 530 U.S. 133,
148-49 (2000).
6
question of fact about whether Anadarko’s reason for not hiring
her was a pretext for gender discrimination. The district court
reasoned that Turner failed “to present evidence demonstrating
that she was clearly better qualified . . . than the men who
received the employment offers.” In her next issue, Turner
argues that the district court erred by requiring her to show
that she was clearly better qualified for the position she sought
with Anadarko.
A plaintiff may raise a fact question about pretext by
presenting evidence that she is "clearly better qualified” than
the employee selected for the position in dispute.12 To raise a
fact question about whether she is clearly better qualified, the
plaintiff must show that “disparities in curricula vitae are so
apparent as virtually to jump off the page and slap us in the
face.”13 Pointing to clearly superior qualifications is one way
to demonstrate intentional discrimination, but it is not the only
way.14 A plaintiff may also establish pretext by presenting
evidence that the employer's proffered explanation is false or
unworthy of credence,15 because “it is not the real reason for
12
See Celestine v. Petroleos de Venezuella SA, 266 F.3d at
356-57.
13
Odom v. Frank, 3 F.3d 839, 847 (5th Cir. 1993).
14
See Julian v. City of Houston, Tex., 314 F.3d 721, 728
(5th Cir. 2002).
15
See Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003);
Nichols v. Lewis Grocer, 138 F.3d 563, 566 (5th Cir. 1998).
7
the adverse employment action.”16 If, however, a plaintiff
relies on comparative qualifications alone, she must present
evidence that she is clearly better qualified than those
individuals who were hired.17
In its motion for summary judgment, Anadarko articulated two
non-discriminatory reasons for not hiring Turner. Anadarko
asserted that it relied on the recommendations of Turner’s
supervisor, George Faulk, in determining who to hire and that
Faulk did not recommend Turner. Anadarko also asserted that it
decided to hire the seven best qualified members of Turner’s
shift on the Mahogany and that the other seven members of
Turner’s crew were better qualified than Turner.
In making its case for summary judgment, Anadarko emphasized
its decision to lower the Mahogany’s operating costs by reducing
the number of crew members. Rather than operate the Mahogany
with eight crew members per shift as Phillips had, Anadarko
explained that it chose to operate the Mahogany with seven crew
members per shift. Anadarko maintained that operating the
16
Laxton, 333 F.3d at 578.
17
See Rutherford v. Harris County, Tex., 197 F.3d 173, 182
n.9 (5th Cir. 1999) (not requiring plaintiff to prove that she
was clearly better qualified than males who were promoted because
she did not attempt to prove pretext solely on the basis of her
comparative qualifications); E.E.O.C. v. Manville Sales Corp., 27
F.3d 1089, 1096 n.5 (5th Cir. 1994) (explaining that showing he
is clearly better qualified than those who were not terminated is
one way a plaintiff can show that a reduction-in-force was a
pretext for unlawful discrimination, a plaintiff may prevail
without showing that he is clearly better qualified).
8
Mahogany with fewer people required each crew member to have a
strong background in one of six areas: electrical,18 pneumatic,
mechanical, instrumentation, measurement and crane repair.
Anadarko explained that each crew member worked as an operator.
Anadarko maintained that an operator must also be able to operate
a crane and meet certain medical and physical requirements, which
include climbing ladders and stairs.19 Anadarko contends that
the men who work on the Mahogany meet these requirements, but
that the women do not. As for Turner, Anadarko asserts that
Turner cannot operate a crane because of problems with depth
perception and she cannot climb stairs. Anadarko also asserts
Turner lacks a background in any of the six required areas of
expertise.
In response to the motion for summary judgment, Turner
maintained that: (1) Anadarko’s explanation for not hiring her is
false, (2) Anadarko’s position that it sought to cut operating
costs is not credible, (3) the men who work on the Anadarko are
not more qualified than she is, and (4) she is qualified to work
as an operator on the Mahogany. To raise a fact question about
Anadarko’s reason for not hiring her, Turner first challenged
18
At one point in its motion, Anadarko refers to
“electronics.” Rather than a substantive difference, the
reference appears to be a typo.
19
The job requirements Anadarko distributed to the
Mahogany’s crew does not indicate that a background in one of the
six areas or crane operation is required for an operator’s job.
9
Anadarko’s hiring process. Turner presented evidence that showed
that even though Anadarko insists that its operators must possess
certain qualifications, the person who made the hiring decisions
never ascertained whether the applicants actually met Anadarko’s
requirements. Specifically, Anadarko employee Tommy Ward
testified during his deposition that he made the hiring decisions
for the Mahogany, and that he made his decisions based on his
review of the crew members’ applications and recommendations from
the crew members’ supervisors. Ward admitted, however, that he
never actually interviewed the applicants or conducted an
independent investigation into the abilities of the Mahogany’s
crew members. This evidence raises a fact question about the
legitimacy of Anadarko’s position about its requirements for
operators for the Mahogany and about why Anadarko did not hire
Turner.
To show that Anadarko’s position about cutting operating
costs is not credible, Turner relied on Ward’s deposition
testimony. Ward’s testimony clearly indicates that he did not
act on specific instructions to reduce the number of crew members
who worked on the Mahogany. Instead of specific instructions,
Ward testified that he reduced the number of crew members as part
of a general company policy of operating the Mahogany as cost-
efficiently as possible. Although this evidence does not prove
that reducing the crew was pretext for gender discrimination, it
is nevertheless probative of whether the decision to reduce
10
personnel was motivated by unlawful animus towards women.
Considering that Anadarko did not hire either of the women who
worked on the Mahogany, but hired all of the men, a reasonable
jury could conclude that Ward’s explanation for reducing the
number of crew members was not the real reason for reducing the
crew.
Turner also presented evidence to show the falsity of
Anadarko’s position that the men who work on the Mahogany are
better qualified than she is.20 In part, Turner relied on her
deposition testimony that she is better qualified than two male
roustabouts who were hired, Scotty Hazelton and Rod Phillips.
Turner explained that Hazelton was not able to bring the platform
up without her or the other operator directing him. She also
explained that Rod Phillips did not pay as much attention as she
did to what occurred on the platform and that Phillips did not
understand the flow of the platform to the degree that she did.
Performance evaluations prepared by shift supervisor George Faulk
indicate that Turner received higher performance ratings than
Hazelton and Phillips during the time period they worked together
20
If Turner relied on comparative qualifications alone to
show pretext, she would have to raise a fact question about
whether she is “clearly better qualified” than the men Anadarko
hired to survive summary judgment. But because she relies on more
than comparative qualifications, Turner must raise a fact
question about whether the men on her crew are “better qualified”
because one of Anadarko’s non-discriminatory reasons for not
hiring Turner is that the other seven members of Turner’s crew
are better qualified than Turner.
11
on the Mahogany. Notably, it was Faulk who purportedly provided
the adverse recommendation about Turner. Turner’s evidence about
the abilities of Hazelton and Phillips raised a question of fact
about whether the men Anadarko hired are actually better
qualified than she is. The disparity between Faulk’s performance
ratings of Turner and what Faulk purportedly reported to Ward –
that he did not recommend Turner – raises a question about the
truth of Anadarko’s explanation for why it did not hire Turner.
The training records Turner presented also raise a question
about whether the men who work on the Mahogany are more qualified
than the women. Ward testified that unlike Phillips, which
classified crew members by specific job titles, Anadarko required
all crew members to work as operators. Logically, a person with
operator experience is more qualified to work as an operator on
the Mahogany than a person without operator experience. Yet,
Hazelton’s training record reflects less than one year of
experience as an operator and fifteen years experience as a
roustabout. A roustabout, unlike an operator, is an unskilled,
general laborer, lacking specialization.21 Similarly, Rod
21
See Brown v. Nabors Offshore Corp., 339 F.3d 391, 393 (5th
Cir. 2003) (referring to roustabout as a general laborer on a
jack up drilling or workover rig); Davis v. Odeco, Inc., 18 F.3d
1237, 1239-40 (5th Cir. 1994) (describing roustabout as a
position involving unskilled labor); Leonard v. Dixie Well Serv.
& Supply, Inc., 828 F.2d 291, 293 (5th Cir. 1987) (characterizing
roustabout as a general laborer); Vaughn v. Pool Offshore Co.,
683 F.2d 922, 923 (5th Cir. 1982) (stating that the roustabout
was the rig’s lowest rung on the employment ladder).
12
Phillips’s training record reflects eleven years experience as a
roustabout and no experience as an operator. The training
records of Patrick Melancon — a crew member on Sanders’s shift –
reflects eleven years experience as a roustabout and no
experience as an operator.22 Jerome Scroggins’s record indicates
he had five years experience as an operator.
In contrast, Turner’s training record reflects nine years
experience as an operator, following ten years as a roustabout.
Sanders’s training record reflects nine years experience as an
operator, after working as a roustabout for ten years. The
disparities in the experience levels of Hazelton, Rod Phillips,
Melancon, and Scroggins, as compared to those of Turner and
Sanders, raise a fact question about whether the men are better
qualified than the women and about the credibility of Anadarko’s
explanation for its hiring decisions. After considering this
evidence, a reasonable jury could conclude that Anadarko’s
position – that the other seven members of Turner’s crew were
better qualified than Turner – is a pretext for unlawful
discrimination. Even though Turner does not rely on comparative
qualifications alone, this evidence also raises a question of
fact about whether Turner is clearly better qualified than the
men who Anadarko hired. A reasonable jury could conclude that
22
Greg Case, the supervisor for Sanders’s shift on the
Mahogany, indicated in his recommendations to Ward, “[d]on’t let
the title fool you.”
13
Turner is clearly better qualified.
Finally, Turner also challenged the truth of Anadarko’s
position that she was not qualified to work as an operator
because she lacked experience in one of the six areas, because
she cannot operate a crane, and because she cannot climb stairs.
To show the falsity of this position, Turner presented her
testimony that one of her primary duties was reading the
platform’s instruments and recording the readings. This evidence
raises a question about whether Turner was unqualified because it
shows that Turner has a background in one of the six areas —
specifically, instrumentation. As for the crane-operation
requirement, Turner admitted during her deposition that she has
problems with depth perception that make it unsafe for her to
load or unload a boat, but explained that she is certified to
operate a crane to move things on the deck of the platform. As
for her ability to climb stairs, Turner attested that she passed
Phillips’s physical fitness exam four months before Andarko
obtained control of the Mahogany, and testified in her deposition
that she climbed ladders as part of her work on the Mahogany.
In determining that Turner did not raise a fact question
about pretext, the district court focused on whether Turner
demonstrated that she was clearly better qualified than the men
Anadarko hired. Turner, however, was not required to make this
showing for two reasons. First, Turner did not rely on
14
comparative qualifications alone. Turner also challenged the
legitimacy of Anadarko’s purported hiring criteria and its
decision to reduce the Mahogany’s crew, and presented evidence
that raised fact questions about these matters. Second, even if
Turner had relied on comparative qualifications alone, Turner is
not required to demonstrate that she is clearly better qualified
at the summary judgment stage. Instead, she is required to raise
a question of fact about whether she is clearly better qualified.
Here, a reasonable jury could conclude that Turner is clearly
better qualified.
Considering Turner’s nine years experience as an operator
and her four years as an operator on the Mahogany, and the fact
that Andarko did not hire either of the women who worked on the
Mahogany, a reasonable jury could conclude that Anadarko’s
purported reason for not hiring Turner is a pretext for gender
discrimination. The district court erred by requiring Turner to
demonstrate that she is clearly better qualified than the men who
were hired, rather than raise a genuine issue of material fact
about whether Anadarko’s reason for not hiring her is a pretext
for unlawful discrimination.
Sanders’s Claim Under the TCHRA
In its motion for summary judgment, Phillips argued that
Sanders lacked standing to pursue her claims under the TCHRA
because Sanders did not live or work in Texas, nor was she
15
seeking employment in Texas. After considering this argument,
the magistrate judge recommended dismissing Sanders’s TCHRA
claims. The magistrate judge reasoned that the plain language of
the statute precludes a person employed, or seeking employment,
outside of Texas from bringing a claim against her employer under
the TCHRA. The district court adopted the magistrate judge’s
recommendation and dismissed Sanders’s claims under the TCHRA.
On appeal, Sanders challenges the dismissal of her claims against
Phillips.
The TCHRA23 was enacted to coordinate and conform with
federal law under Title VII and the ADEA.24 The statute clearly
indicates that it is intended to protect “persons in [Texas] . .
. from discrimination in . . . employment.”25 The statute
explicitly precludes coverage of “an employer with respect to the
employment of a person outside this state.”26
In this case, it is undisputed that Sanders does not live,
and did not work, in Texas. Instead of working in Texas, Sanders
worked on the Mahogany which is located 77 miles off the shore of
Louisiana. Sanders, however, contends the district court erred
based on an affidavit she filed in response to Phillips’s motion
23
See TEX. LAB. CODE ANN. § 21.001-22.004 (Vernon Supp. 2004).
24
See Caballero v. Central Power and Light Co., 858 S.W.2d
359, 361 (Tex. 1993).
25
TEX. LAB. CODE ANN. § 21.001 (Vernon 1996).
26
TEX. LAB. CODE ANN. § 21.111 (Vernon 1996).
16
for summary judgment. In the affidavit, Sanders attested that
she was discriminated against throughout her employment with
Phillips – most of which she maintains occurred in Texas – and
that she suffered retaliation when she complained about the
discrimination. Sanders further attested that at the time she
was terminated from Phillips she had applied for a job in Texas.
Sanders contends that the district court should have conducted an
evidentiary hearing to resolve the disputes in the jurisdictional
facts.
Where issues of disputed fact exist about a plaintiff’s
standing to pursue her claim, the district court is required to
hold an evidentiary hearing before summarily dismissing the
plaintiff’s claim.27 But the district court does not err by not
holding a hearing where the only relevant issues of fact are
undisputed.28
In this case, Sanders filed her Charge of Discrimination
against Phillips on January 12, 2001. Only those acts that
allegedly occurred within 180 days of that filing are actionable
as a matter of law.29 Consequently, Sanders may only pursue
27
See Martin v. Morgan Drive Away, Inc., 665 F.2d 598, 602
(5th Cir. 1982).
28
Id.
29
See TEX. LAB. CODE ANN. § 21.202 (Vernon 1996) (complaint
under TCHRA must be filed no later than the 180 days after the
date the alleged unlawful employment practice occurred or
complaint shall be dismissed as untimely complaint).
17
claims based on acts that allegedly occurred on or after July 16,
2000. It is undisputed that Sanders worked on the Mahogany from
September 1999 through July 2000. Thus, Sanders’s only
actionable complaints relate to her employment on the Mahogany,
employment which was not within the state of Texas. Although
Sanders maintains that she worked for Phillips in Texas for many
years, that employment is outside of the time period she can
complain about here.
In addition, this lawsuit is limited to the scope of the
administrative investigation that could reasonably be expected to
grow out of Sanders’s initial charge.30 In her charge, Sanders
complained about not being hired by Anadarko.31 Neither
Sanders’s charge nor the notes of the administrative investigator
mention Phillips’s alleged failure to hire Sanders. Thus, in
this lawsuit, Sanders cannot pursue a claim based on Phillips’s
failure to hire her for another job. Consequently, the district
court did not err by dismissing Sanders’s claims under the TCHRA.
In her last argument, Sanders contends the district court
erred by failing to conduct a conflict of laws analysis to
determine whether Arkansas or Louisiana law applies to her
30
See Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995)
(Title VII cause of action is limited by the scope of the EEOC
investigation that could reasonably be expected to grow out of
the initial charges of discrimination).
31
Likewise, the second amended complaint alleges that
Anadarko, not Phillips, did not hire Sanders for the Mahogany.
18
claims. Sanders maintains that if Arkansas law or Louisiana law
applies, she should be permitted to amend her complaint to
conform to applicable state law. Sanders, however, never alleged
a violation of either Arkansas law or Louisiana law. As a
result, the district court properly limited its consideration to
Texas law – here, the TCHRA.
Conclusion
Because the district court erred by dismissing Turner’s
Title VII claim, this court REVERSES that portion of the district
court’s judgment and REMANDS the case for further proceedings on
that claim. Because the district court did not err in dismissing
Sanders’s claims brought under the TCHRA, the court AFFIRMS the
judgment in all other respects.
REVERSED and REMANDED in part; AFFIRMED in part.
19