Bettye Gentry v. Georgia-Pacific ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 00-2850
___________
BETTYE S. GENTRY and
KATHERINE D. WHITLEY, *
*
Plaintiffs/Appellants, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
GEORGIA-PACIFIC CORPORATION, *
*
Defendant/Appellee. *
*
__________
Submitted: April 9, 2001
Filed: May 18, 2001
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Before HANSEN and BYE, Circuit Judges, and MELLOY,1 District Judge.
___________
MELLOY, District Judge.
Bettye Gentry and Katherine Whitley brought this diversity suit against Georgia-
Pacific Corporation alleging they were discriminated against on the basis of gender in
violation of the Arkansas Civil Rights Act of 1993 (“ACRA”), Ark. Code Ann. § 16-
1
The Honorable Michael J. Melloy, United States District Judge for the
Northern District of Iowa, sitting by designation.
123-107(c) et seq. The district court2 granted partial summary judgment to the
defendant and the plaintiffs appeal.3 We affirm.
I.
Bettye Gentry and Katherine Whitley are hourly employees in the shipping
department of Georgia-Pacific’s paper mill in Ashdown, Arkansas. Gentry began
working at the mill in 1980 and is currently employed as a finished goods material
handler. Whitley began working at the mill in 1991 and is currently employed as a
material handler.
In August 1995, Georgia-Pacific posted a notice advertising a vacancy for a
permanent shift supervisor position in the shipping department. Both Gentry and
Whitley applied and, along with other candidates, underwent a structured interview
process in which each candidate was asked the same questions by a mixed-gender
interview panel. Each member of the panel scored each candidate based on his or her
responses. The interviewers then compared scores and came to a consensus for each
question. The candidates were ranked based on the consensus totals. The panel then
forwarded its recommendation of the highest ranked candidate to Georgia-Pacific’s
shipping superintendent, Syd Clark, who was responsible for the operation of the
shipping department. Clark reported to Wallace Lynn Jones (“Lynn Jones”).
Following the panel’s recommendation, and with approval from Lynn Jones, Clark
awarded the position to Tony Jones in December 1995.
2
The Honorable Harry F. Barnes, United States District Judge for the
Western District of Arkansas.
3
Following the district court’s grant of partial summary judgment, the
plaintiffs dismissed their remaining claims.
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Georgia-Pacific contends that it posted another notice advertising vacant shift
supervisor positions in February 1996. Unlike the previous posting, this one did not
include a “bid sheet” on which employees could register their interest. Rather, the
posting stated that interested employees were to fill out an internal applicant form in
human resources. The selection process itself also differed from August 1995. To be
considered, an applicant was required to complete a Test of Adult Basic Education as
well as participate in a structured interview involving standardized questions and a
creative expression exercise. If an applicant successfully completed these preliminary
requirements, he or she then participated in a workshop with other applicants, after
which a final selection was made.
Gentry did not go through the selection process in connection with the February
1996 posting. She has no recollection of ever seeing the February posting or filling out
an application for the position. She never received a memo allegedly routed to all
employees having expressed an interest in the position although her name is listed
among the recipients. She was aware of the selection process as it was taking place in
spring 1996 but never asked Clark or anyone else in management why she was not
being included in the process.
Whitley did fill out an internal application form in February 1996, and in spring
1996 she completed the preliminary requirements and participated in the workshop.
From this process, the panel recommended three male candidates as “ready for
promotion” to shift supervisor: Russell Latson, Wayne Gierke, and Mike Kelly. In
May, 1996, Clark promoted Latson to one of the positions.4
4
An action brought under the ACRA must be filed within one year of the
alleged discriminatory act. Ark. Code § 16-123-107(c)(3). The present complaint
was filed on March 3, 1998. Thus, Gentry and Whitley’s claims with respect to
Georgia-Pacific’s decision to promote Tony Jones in 1995, and Russell Latson in
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In late 1996 and early 1997, both Tony Jones and Latson resigned their positions
as shipping supervisors. To fill these vacancies, Georgia-Pacific decided to promote
from the spring 1996 recommendations instead of instituting a new process. Kelly and
Gierke were offered the open positions.
In April 1998, another shift supervisor position was advertised. Both Gentry and
Whitley applied and went through the selection process, which again included a
structured interview before a mixed-gender panel. Donald Thompson received the
highest interview score. He was recommended by the panel and was subsequently
promoted to shipping supervisor in June 1998. Among those involved in the decision-
making process for this position was Malinda Winton, hired by Clark and Lynn Jones
in May 1997 as assistant superintendent of the shipping department. Winton works
directly under Clark and directly over the shift supervisors.
Gentry and Whitley filed a complaint against Georgia-Pacific alleging that
Georgia-Pacific failed to promote them to the permanent shift supervisor positions on
the basis of their gender in violation of the ACRA. In a memorandum and order filed
on May 12, 2000, the district court granted Georgia-Pacific’s motion for summary
judgment. With respect to Whitley’s claim, the district court assumed that she had
established a prima facie case of gender discrimination as to both the 1996 and 1998
process but found that she had failed to submit sufficient evidence to overcome
May, 1996, were properly deemed time-barred. See Gipson v. KAS Snacktime Co.,
83 F.3d 225, 229 (8th Cir. 1996) (“[A] discrete, adverse employment action, such as
. . . [a] failure to promote, ‘constitutes a completed act at the time it occurred.’”)
(quoting Boge v. Ringland-Johnson-Crowley Co., 976 F.2d 448, 451 (8th Cir.
1992)). The 1995 job posting and selection process is included only as background
to the present dispute. The February 1996 posting and selection process remains
relevant, however, as Georgia-Pacific purportedly relied upon the results of that
process in making its 1997 promotions which are not time-barred.
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Georgia-Pacific’s claim that a neutral selection panel had recommended others for the
promotions based on more favorable evaluations. With respect to Gentry’s claim, the
district court first concluded that Gentry had failed to apply for the 1996 selection
process. As to the 1998 vacancy, for which Gentry did formally apply, the court held
that, like Whitley, Gentry had failed to submit sufficient evidence to rebut Georgia-
Pacific’s claim that the position was awarded to the applicant who received the highest
evaluation. Gentry and Whitley’s motion to reconsider was denied.
II.
We review a district court’s grant of summary judgment de novo, giving the
nonmoving party the most favorable reading of the record as well as the benefit of any
reasonable inferences that arise from the record. Britton v. City of Poplar Bluff, 2001
WL 303895, *1 (8th Cir. 2001); Bogren v. Minnesota, 236 F.3d 399, 403 (8th Cir.
2000). Summary judgment “is appropriate where one party has failed to present
evidence sufficient to create a jury question as to an essential element of its claim.”
Whitley v. Peer Review Sys., Inc., 221 F.3d 1053, 1055 (8th Cir. 2000) (citing Chock
v. Northwest Airlines, Inc., 113 F.3d 861, 865 (8th Cir. 1997)).
As the district court recognized, the plaintiffs’ failure-to-promote claims are
analyzed under the familiar McDonnell Douglas burden-shifting framework. See Roark
v. City of Hazen, 189 F.3d 758, 761 (8th Cir. 1999) (citing McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802 (1973)); Flentje v. First Nat’l Bank of Wynne, 11 S.W.3d
531, 536-38 (Ark. 2000) (applying burden-shifting analysis to ACRA claim and noting
that “Arkansas’s statute specifically provides that courts may look to state and federal
decisions interpreting the federal civil rights laws for persuasive authority”). Under this
framework, a plaintiff may establish a prima facie case of discrimination in a failure-to-
promote case by showing that: (1) she is a member of a protected group; (2) she was
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qualified and applied for a promotion to an available position; (3) she was rejected; and
(4) similarly situated employees, not part of the protected group, were promoted
instead. Shannon v. Ford Motor Co., 72 F.3d 678, 682 (8th Cir. 1996) (citation
omitted). “If a plaintiff establishes her prima facie case, the burden of production shifts
to the employer, who must rebut the presumption of discrimination with evidence ‘that
the plaintiff was rejected, or someone else was preferred, for a legitimate,
nondiscriminatory reason.’” Id. (quoting Texas Dep’t of Community Affairs v. Burdine,
450 U.S. 248, 254 (1981)). The burden then reverts to the plaintiff to point to evidence
which, if believed, would expose the employer’s reason as a mere pretext for
intentional discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 120 S. Ct.
2097, 2106 (2000) (citing Burdine, 450 U.S. at 253, and St. Mary’s Honor Center v.
Hicks, 509 U.S. 502, 507-508 (1993)); O’Sullivan v. Minnesota, 191 F.3d 965, 969
(8th Cir. 1999). “The ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all times with the plaintiff.”
Burdine, 450 U.S. at 253, quoted in Reeves, 120 S. Ct. at 2106.
A. Whitley’s Gender Discrimination Claim
The district court assumed, as we do on appeal, that Whitley set forth sufficient
evidence to support a prima facie case of discriminatory failure-to-promote as to both
the 1996 and 1998 selection process. The court concluded, however, that Whitley
failed to establish a genuine issue that Georgia-Pacific’s proffered reason for failing to
promote her was a pretext for gender discrimination. After a thorough review of the
record, we agree with the district court that Whitley has not demonstrated that Georgia-
Pacific’s explanation that other candidates were evaluated more favorably by a neutral,
gender-mixed panel was pretext for gender discrimination.
Whitley’s pretext argument centers on the role of the selection panel in
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recommending promotion-ready employees. Her evidence of pretext rests solely on
inferences to be gleaned from the following: (1) the alteration of her interview score
from an “85” to a “77” in the 1996 selection process; (2) two affidavits from Georgia-
Pacific employees, Pat Thrush and Russell Latson, which arguably suggest bias in the
selection process; and (3) the fact that Georgia-Pacific has never promoted a female
production worker within the shipping department to a shift supervisor position.
As to the 1996 selection process, we find meritless Whitley’s argument that she
is entitled to an adverse inference based on the fact that her interview score was
initially marked as “85.” The accompanying composite sheets clearly indicate the
interviewers’ individual scores, which, when averaged, total to “77.” Absent any
evidence to the contrary the only reasonable inference is that the “85” was merely a
computational error. As to the ultimate ranking of the candidates, it is uncontested that
the spring 1996 selection process had multiple components, of which the interview was
only one part. The ten interview questions did not cover work history or other relevant
background but rather were predominantly phrased as hypotheticals designed to
determine how a candidate would address situations frequently faced by a shift
supervisor. Each candidate also participated in a “12-squares” exercise designed to
evaluate the candidate’s ability to think creatively and communicate effectively as well
as a workshop exercise to evaluate group problem-solving skills. In light of the limited
nature of the interview questioning and the multi-component selection process, a
candidate’s score on the interview portion could not reasonably be deemed conclusive
of the candidate’s ultimate ranking by the panel. See Chock, 113 F.3d at 863-865(affirming grant of summary judgment to employer for insufficiency of pretext evidence
where selection panel made recommendations based on similar multi-component
evaluation). In this regard, we additionally note that a male candidate who, like
Whitley, received a score of “77” in the interview portion was also passed over by the
panel when making its promotion recommendations.
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We similarly find no evidence of discrimination inherent in the 1998 selection
process. Malinda Winton, part of the 1998 interview panel that made the ultimate
recommendation to Lynn Jones, explained that Donald Thompson's high interview
score and extensive supervisory experience in the armed services was the basis of the
panel’s decision to recommend him. Whitley has proffered no evidence to suggest that
the panel’s recommendation was based on anything other than neutral criteria. See
Hanebrink v. Brown Shoe Co., 110 F.3d 644, 646 (8th Cir. 1997) (“This court . . . may
not second-guess an employer’s personnel decisions, and we emphasize that
‘employers are free to make their own business decisions . . . so long as they do not
discriminate unlawfully.’”) (quoting Aucutt v. Six Flags Over Mid-America, Inc., 85
F.3d 1311, 1317 (8th Cir. 1996)).
We next address the affidavits of Pat Thrash and Russell Latson which allegedly
demonstrate that promotion selections were not based on impartial panel
recommendations. Thrash was a supervisor in Georgia-Pacific’s transportation
department. Latson, as noted earlier, had been promoted to a permanent supervisor
position in 1996 but later resigned. In Thrash’s affidavit, she avers that she once asked
Clark why the shipping supervisor positions were being filled through the interview
panel process. In response, Clark “advised [her] that he did this because ‘that is the
surest way of getting who I want and they cannot come back on me.’” In Latson’s
affidavit, he avers that at some point after May 1999, “Clark told [him] that if [he]
would merely sign up for the position of shipping supervisor [he] would get the job.”
Although Latson cannot recall the exact words used by Clark, “it was clear to [him]
that [Clark] was telling [him] he would get the job if [he] applied.” At the time this
statement was allegedly made in 1999, no position had been advertised and no
interview panels convened for the purpose of selecting shift supervisors. Whitley asks
us to infer from these statements that the panel was not impartial, that Clark controlled
the panel, and/or that the panel’s recommendations did not drive the selection process.
Whitley asserts that this conclusion is bolstered by the fact that Georgia-Pacific has
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never promoted a female production worker to a shift supervisor position in the
shipping department.
Viewing this evidence in the light most favorable to Whitley, we find it merely
colorable at best and not significantly probative of gender discrimination within the
selection process. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-250
(1986); McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 510 (8th Cir. 1995). The
alleged statements certainly do not mandate the interpretation advocated by Whitley.
And even were we to adopt Whitley’s interpretation, the statements do not even
colorably suggest that gender considerations played a role in the selection process.
Further, there is no evidence in the record that Clark ever attempted to influence the
panel’s decision-making process. Absent that, ambiguous statements such as these are
insufficient to raise a genuine issue of material fact as to the legitimacy of the selection
process. The fact that Georgia-Pacific has not promoted a female production worker
to a shift supervisor position does not change our conclusion. It is undisputed that
women occupy management positions at Georgia-Pacific and, further, that since 1997
Malinda Winton has been a supervisor in the shipping department. We find no relevant
significance in the fact that Winton moved laterally into the shipping department from
another department rather than from the production floor.
In sum, Whitley has failed to adduce sufficient evidence of pretext, and has
offered no evidence from which a jury could reasonably infer that gender
considerations motivated Georgia-Pacific’s actions in selecting other, more favorably
evaluated candidates over her for shift supervisor positions. See Anderson, 477 U.S.
at 251 (“[I]n every case, before the evidence is left to the jury, there is a preliminary
question for the judge, not whether there is literally no evidence, but whether there is
any upon which a jury could properly proceed to find a verdict for the party producing
it, upon whom the onus of proof is imposed.”) (quoting Pleasants v. Fant, 22 Wall. 116,
120-21 (1875)). We agree with the district court’s conclusion that in this case summary
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judgment was proper.
B. Gentry’s Gender Discrimination Claim
Gentry also challenges both the 1996 and 1998 selection process. She first
argues that the district court erred in concluding that she had not established a prima
facie case of sex discrimination with regard to the 1996 selection process because she
failed to raise a genuine issue that she had applied for those positions. We have held
that formal application for a job opening will not be required to establish a prima facie
case of discrimination “if the job opening was not officially posted or advertised and
either (1) the plaintiff had no knowledge of the job from other sources until it was
filled, or (2) the employer was aware of the plaintiff’s interest in the job
notwithstanding the plaintiff’s failure to make a formal application.” Chambers v.
Wynne School Dist., 909 F.2d 1214, 1217 (8th Cir. 1990) (citation omitted).
Although we find Gentry has raised a genuine issue as to whether the February
1996 notice was officially posted or advertised,5 her prima facie case still fails. In her
testimony Gentry admitted she was aware that a selection process was being conducted
during March and April 1996 and that she apparently was not included in that process.
Because she never saw the February 1996 posting, Gentry assumed that the spring
1996 applicant pool had been culled from the August 1995 bid process. Accordingly,
5
To this effect, we note that Gentry denies ever seeing the posting despite her
adamance that she applied for (or intended to apply for) every shift supervisor
position that had been posted from 1995 onward. Whitley also testified that she had
only seen two postings, one in August 1995 and one in 1998, and there is no other
conclusive evidence in the record substantiating the posting. As to the memo,
Gentry denies having received it and on the record before us we shall charge this
deficiency in the notice process against Georgia-Pacific.
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she deemed her exclusion from the spring 1996 selection process an affirmative
representation by Georgia-Pacific that she would not be considered for a shipping
supervisor position and never raised the issue with Clark or other Georgia-Pacific
management.
Where, as here, there is no evidence that inquiry would have been futile,
Gentry’s erroneous assumptions do not excuse her failure to inquire as to the openings.
See id. at 1217 (where plaintiff admitted that she was aware from faculty meetings that
school district would be hiring additional counselors, that knowledge “put her on
reasonable notice to at least engage in further inquiry with administrators concerning
the openings”). Further, Gentry’s single prior application for a shift supervisor position
in August 1995 did not sufficiently put Georgia-Pacific on notice as to her interest in
all future openings so as to waive the formal application requirement of her prima facie
case. In sum, we find nothing in the record to suggest that Gentry’s exclusion from the
February 1996 selection process rests on anything more than her failure to properly
apply for consideration and the district court did not err in granting summary judgment
to Georgia-Pacific on that issue.
With regard to the 1998 selection process, for which she did formally apply,
Gentry heavily relies upon the same evidence proffered by Whitley which we found
insufficient to create a triable issue as to gender discrimination. Because Gentry has
advanced no additional evidence to support an inference that, with regard to her, the
selection process was anything but fair and impartial, the district court properly granted
summary judgment to Georgia-Pacific on that issue.
III.
For the foregoing reasons, we affirm the judgment of the district court.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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