Norma Dixon v. Pulaski Co. Spec Sch Dist ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-3201
___________
Norma Dixon, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
Pulaski County Special School District, *
*
Appellee. *
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Submitted: April 16, 2009
Filed: August 27, 2009
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Before WOLLMAN, MELLOY, and GRUENDER, Circuit Judges.
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MELLOY, Circuit Judge.
Norma Dixon—an African-American woman who has worked for the Pulaski
County Special School District (the “School District”) since 2001—applied for a
“Buyer” position with the School District in 2006. She was not given an interview for
the position, and she sued for racial discrimination under 42 U.S.C. §§ 1981, 1983,
2000(e) and Arkansas Code section 16-123-101. The district court1 granted summary
judgment for the School District, finding that although Dixon had established a prima
1
The Honorable Brian S. Miller, United States District Judge for the Eastern
District of Arkansas.
facie case, she was unable to show that the School District’s proffered non-
discriminatory reason was pretext for discrimination. Dixon appeals. We affirm.
I.
Dixon joined the School District in 2001 as a “Purchasing Clerk.” William
Rains, the “Director of Purchasing,” sought to have the Purchasing Clerk position
upgraded to a “Purchasing Specialist” position, which, unlike the Purchasing Clerk
position, would progress into the higher-level Buyer position. The School District
denied his request. After one year, Dixon obtained a higher-paying bookkeeping
position in the School District’s food-services department. A few months later, she
returned to the purchasing department with a promotion to “Secretary to the Director
of Purchasing.”
In late 2006, William Rains retired, and Sinclair Winburn was promoted from
Buyer to Director of Purchasing. The School District’s human resources department
posted a job announcement for Winburn’s now-open Buyer position. The minimum
qualifications for the position were, inter alia, a college degree and “[f]ive years
experience in public purchasing.” The School District’s policy required that a bi-
racial, three-person interview committee screen the applications and that all applicants
meeting the minimum qualifications be given an interview. Winburn stated that he
was unaware of the college-degree requirement and that he had considered Rebecca
Rains,2 the woman the School District ultimately hired, to be the sole qualified
applicant. Nevertheless, Winburn, in his new position, scheduled interviews with all
six applicants, including Dixon and Rebecca Rains. The Superintendent, however,
pulled the announcement because none of the six applicants met the minimum
2
Rebecca Rains is also the wife of the retired Director of Purchasing, William
Rains. She had applied for the Director position when William Rains retired, but the
School District selected Winburn over her.
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requirements (i.e., possessed a college degree), and Winburn accordingly cancelled
the interviews.
Winburn then submitted a “corrected” job announcement, which was posted
after review by his superiors. The title of the position was changed from “Buyer” to
“Buyer/Fixed Asset Administrator,” and the requisite experience and the position’s
responsibilities were also amended to include references to fixed assets. The revised
job posting did not include a college-degree requirement. According to Winburn, the
change in the job description was meant to update the description to reflect the actual
responsibilities of the Buyer position: the “Fixed Asset Specialist” position had been
frozen several years before for budgetary reasons, and the person in the Buyer position
had taken over the fixed-asset responsibilities. Dixon claims that the “new” position
was “phoney” and that Winburn tailored the qualifications specifically to render
Dixon unqualified. She also argues that the amendments to the job description
resulted in an entirely new support-staff position, which required the Board of
Education Policies’s approval and that, in failing to obtain the approval, the
Superintendent violated School District policy. In support of her argument that the
Buyer/Fixed Asset Administrator position was fictitious, Dixon points to school-board
minutes that refer to Rebecca Rains’s position only as “Buyer” and to Rebecca Rains’s
employment contract, which states the position’s primary responsibility as “Buyer.”
Dixon does not contest, however, that there had been, and still is, a separate Fixed
Assets Specialist position that was frozen; rather, she asserts that adding the fixed-
asset responsibilities to the Buyer position contravened “[the school board’s] will and
procedures since the ‘Fixed Assets’ position had been frozen indefinitely.”
Dixon and Rebecca Rains, among others, submitted applications in response to
the revised job posting. In violation of School District policy, Winburn alone
screened the applicants for the revised posting, though the School District contends
that his actions were in line with customary practice. Unlike with the previous
posting, Winburn selected only two individuals for interviews, Rebecca Rains and
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Kenneth Guillotte, neither of whom are African-American. Winburn stated that he did
not select Dixon for an interview because she did not meet the minimum
qualifications; specifically, he stated that Dixon did not have the requisite five years’
experience as a buyer in public purchasing. School District accountant and interview-
committee member Tasha Thompson, however, stated in an affidavit that Winburn
had told her that he believed Dixon did have the requisite experience. Thompson also
stated that by 2006 Dixon was able to provide information regarding the purchasing
department’s policies and procedures while William Rains was away.3
Although Winburn alone made the decision whether to interview each
candidate, he discussed the candidates with the other members of the interview
committee, and the other members of the interview committee had reviewed the
applications at the time of the first job announcement, including those of Dixon and
Rebecca Rains. Moreover, Thompson stated that after reviewing the applications, she
felt that Rebecca Rains “had superior qualifications to the other applicants.” Rebecca
Rains had over twenty years’ experience in public purchasing, much of it at senior
levels. After the interview committee interviewed the two candidates selected by
Winburn, it selected Rebecca Rains.
The district court found, for purposes of establishing a prima facie case, that
Dixon had the minimum experience needed. The district court further concluded,
however, that the School District put forth a legitimate, non-discriminatory reason for
3
In an affidavit, Thompson also stated that she considered Dixon qualified for
the position. In a supplemental affidavit, however, Thompson retracted her statement
that she believed Dixon “met the experience qualification,” explaining that Dixon’s
counsel had drafted Thompson’s original affidavit and approached her after work
hours without School District counsel present. We do not consider Thompson’s
original statement of her belief as evidence of the School District’s view of Dixon’s
qualifications given the context in which the signed affidavit was obtained and its
subsequent partial retraction.
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not hiring Dixon and that Dixon was unable to show that the School District’s
proffered reason was mere pretext for a discriminatory animus.
II.
We review the district court’s grant of summary judgment de novo, viewing the
facts in the light most favorable to Dixon, the non-moving party. Arnold v. Nursing
and Rehab. Ctr. at Good Shepherd, LLC, 471 F.3d 843, 845 (8th Cir. 2006).
“Although summary judgment is to be used sparingly in employment discrimination
cases, it is appropriate where one party has failed to present evidence sufficient to
create a jury question as to an essential element of its claim.” Id. (quotation omitted).
The parties agree that the McDonnell Douglas burden-shifting analysis applies
to Dixon’s claims. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05
(1973). Under this analysis, a claim proceeds in three stages. First, the plaintiff must
establish a prima facie case for discrimination. Id. at 802. Second, the defendant may
rebut the prima facie case by articulating a non-discriminatory rationale for its action.
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254–55 (1981). Third, the
plaintiff must prove that the defendant’s proffered rationale was merely pretext for
discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).
To establish a prima facie case, Dixon must show that (1) she is in a protected
class; (2) she was qualified for an open position; (3) she was denied that position; and
(4) the School District filled the position with a person not in the same protected class.
Arraleh v. County of Ramsey, 461 F.3d 967, 975 (8th Cir. 2006). The School District
contends that the fourth element also requires that Dixon show that the School District
filled the position with a person similarly qualified to Dixon and that therefore, in
light of Rebecca Rains’s superior qualifications, Dixon is unable to establish a prima
facie case. But the higher standard argued by the School District does not apply in
this circuit, for we have squarely rejected the proposition that a plaintiff need prove
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her relative qualifications to meet her prima facie burden. See Turner v. Honeywell
Fed. Mfg. & Techs., LLC, 336 F.3d 716, 721–22 (8th Cir. 2003). We do have doubts
concerning whether Dixon has created a material question of fact as to whether she
met the minimum qualifications required for the position so as to satisfy the second
element of her prima facie case,4 but even assuming Dixon has established her prima
facie case, her claim ultimately fails for other reasons, as discussed below.
Assuming that Dixon has established a prima facie case, then, it falls to the
School District to articulate a legitimate, non-discriminatory reason for not hiring her.
Burdine, 450 U.S. at 254–55. The School District meets this burden by asserting that
it did not hire Dixon because she did not possess the minimum qualifications required
for the position. Cf. Qamhiyah v. Iowa State Univ. of Sci. and Tech., 566 F.3d 733,
746 (8th Cir. 2009) (treating lack of qualifications as a legitimate, non-discriminatory
reason to deny tenure). On the particular facts of this case, we note that the second
prong of the prima facie test is exceedingly similar to the proffered non-discriminatory
reason in this second stage of the burden-shifting analysis, as both concern whether
Dixon was minimally qualified for the position. We are cautious not to conflate the
two. Cf. McGinnis v. Union Pac. R.R., 496 F.3d 868, 875 n.3 (8th Cir. 2007); Slattery
v. Swiss Reins. Am. Corp., 248 F.3d 87, 92 (2d Cir. 2001) (“The qualification prong
must not . . . be interpreted in such a way as to shift onto the plaintiff an obligation to
anticipate and disprove, in his prima facie case, the employer’s proffer of a legitimate,
non-discriminatory basis for its decision.”). For purposes of her qualifications in her
prima facie case, Dixon needed to show that she met the requirements for the position.
4
Given the two different job postings, the parties dispute what the qualifications
for the position are. At very minimum, though, an applicant must have had at least
“five years experience in public purchasing.” In order for Dixon to meet this
minimum qualification, her year as a purchasing clerk and her four years as a secretary
must be counted in full. Dixon asserts that she performed many of the duties of a
Buyer in her clerical positions, but in order to meet the five-year threshold, both her
de facto “Buyer” duties as well as her primary, clerical work must be considered
without discount as “experience in public purchasing.”
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For purposes of the second stage of the burden-shifting analysis, the School District
need only articulate, through admissible evidence, that it did not believe Dixon to be
qualified. The tension between these two positions underlies our analysis in the next,
and final, stage of the burden-shifting analysis.
In the third stage of the McDonnell Douglas analysis, the burden falls on Dixon
to show that “the legitimate reasons offered by the [School District] were not its true
reasons, but were a pretext for discrimination.” Reeves, 530 U.S. at 143 (quotation
omitted). At this final stage of the analysis, Dixon’s burden “merges with the ultimate
burden of persuading the court that she has been the victim of intentional
discrimination.” Burdine, 450 U.S. at 256. In evaluating the showing of pretext,
“evidence used to support the prima facie case is considered along with the other
evidence before the court to determine whether there exists a triable fact on the
ultimate issue of [discrimination].” Wallace v. DTG Operations, Inc., 442 F.3d 1112,
1120 (8th Cir. 2006). A plaintiff may make this showing of pretext in more than one
way. As we have previously stated:
There are at least two routes by which a plaintiff may demonstrate
a material question of fact at this final stage of the analysis. First, a
plaintiff may succeed indirectly by showing that the employer’s
proffered explanation is unworthy of credence because it has no basis in
fact. Second, a plaintiff may succeed directly by persuading the court
that a prohibited reason more likely motivated the employer.
Id. (internal quotations, citations, and alterations omitted). Dixon attempts to support
her claim under both routes.
A.
Under the first route, Dixon contends both that the School District’s proffered
explanation was factually incorrect and that it was falsely given. Dixon argues that
because she is, in fact, qualified for the position, a negative assessment of her
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qualifications is incorrect and evidence of pretext. A misjudgment on the part of the
employer as to whether the applicant possesses the required qualifications does not
invalidate the resulting proffered reason, see Burdine, 450 U.S. at 259; Dionne v.
Shalala, 209 F.3d 705, 709 (8th Cir. 2000) (stating that an employer’s view of
qualifications was a legitimate, non-discriminatory reason even though employer
inadvertently applied an incorrect standard when reaching its conclusion), but “[a]n
employer’s misjudgment of an employee’s qualifications . . . may be probative of
whether the reasons articulated for an employment decision were merely pretexts for
discrimination.” O’Connor v. Peru State Coll., 781 F.2d 632, 637 (8th Cir. 1986)
(citing Burdine, 450 U.S. at 259). As mentioned, Dixon’s qualifications were
questionable. Even assuming that she was factually qualified for the position, any
misjudgment on the part of the School District was slight, and as such, provides no
evidence of pretext. Such a narrow miscalculation on the part of the School District
is insignificant because the essential question is not whether Dixon was actually
unqualified for the position; it is whether the School District honestly believed that
she was unqualified. See Johnson v. AT&T, 422 F.3d 756, 762–63 (8th Cir. 2005);
Hitt v. Harsco Corp., 356 F.3d 920, 924 (8th Cir. 2004). On the present facts, even
if a jury were to conclude that the proffered reason was incorrect, such a finding
would not support a conclusion that the School District’s misjudgment was tainted by
discrimination.
Dixon also addresses the School District’s “honest belief” directly in that she
contends the proffered reason was falsely given; that is, she contends that the School
District did believe her to be qualified for the position and that its stated reason for not
interviewing her, and thus not hiring her, was false. Falsity of the proffered
explanation can serve as evidence of pretext. Reeves, 530 U.S. at 148 (“[I]t is
permissible for the trier of fact to infer the ultimate fact of discrimination from the
falsity of the employer’s explanation.”). Dixon’s only supporting evidence that
Winburn believed her qualifications to be sufficient for the position, however, is
hearsay evidence of limited probative value. See Johnson v. Baptist Med. Ctr., 97
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F.3d 1070, 1073 (stating that a plaintiff’s “‘proof’ of . . . disparate treatment . . .
appear[ed] to consist entirely of hearsay, which cannot defeat a motion for summary
judgment”).
Moreover, while evidence that Winburn or others may have considered Dixon
to be sufficiently qualified would directly contradict the School District’s proffered
rationale for not interviewing her, in the context of this case, it is still insufficient to
create a material question of fact as to pretext. “‘[P]retext’ . . . often must be read as
shorthand for indicating that a defendant’s proffered . . . explanation . . . is a pretext
for unlawful discrimination, not that it is merely false in some way.” Strate v.
Midwest Bankcentre, Inc., 398 F.3d 1011, 1017 (8th Cir. 2005); see also Hutson v.
McDonnel Douglas Corp., 63 F.3d 771, 777 (8th Cir. 1995) (“[P]roof that the
defendant’s articulated explanation is false or incorrect does not, standing alone,
entitle the plaintiff to judgment; instead, the showing must be that the explanation is
a pretext for discrimination.”). A showing that Winburn considered Dixon to be
minimally qualified would not demonstrate that the School District’s explanation is
“unworthy of credence” or without “basis in fact,” because it does not diminish the
School District’s broader explanation founded on Dixon’s relative qualifications.
Of course, Dixon’s argument that the proffered reason is “unworthy of
credence” would carry more weight were there any evidence that the School District’s
broader explanation founded on her relative qualifications was false. The route of
discriminatory inference based on falsity of the proffered reason “typically involves
a broader rebuttal of the employer’s factual claims.” Wallace, 442 F.3d at 1120. To
this end, Dixon attempts to frame the issue such that we consider only whether she
met the minimum requirements for the position, ignoring that the School District
selected a more qualified candidate. Relative qualifications may not be relevant for
the prima facie stage, but they are for the pretext stage. Dixon has no evidence
rebutting the School District’s broader claims that it simply hired someone far more
qualified, and Dixon has presented no evidence indicating that her qualifications are
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comparable to those of the successful applicant. Dixon attempts to argue that a
meaningful comparison of qualifications is impossible because she was not granted
an interview, but at least one of the two other members of the interview committee,
Thompson, did review Dixon’s application for the original posting and believed
Rebecca Rains to have superior qualifications. We see no reason that Thompson’s
evaluation would not apply at least as much to the revised posting. Especially given
the disparity of qualifications between Dixon and Rebecca Rains, the failure to grant
Dixon an interview did not remove Dixon from meaningful consideration such that
we are in a position to second-guess the School District’s employment decision. See
e.g., Arraleh, 461 F.3d at 976 (stating that federal courts do not “sit as super-personnel
departments” to review employers’ business decisions (quotation omitted)).
B.
Dixon also attempts to show pretext under “[t]he second route, [which,] in
contrast, does not necessarily involve disproving the underlying factual claims of the
employer.” Wallace, 442 F.3d at 1121. To succeed under this route, Dixon “must
adduce enough admissible evidence to raise genuine doubt as to the legitimacy of [the
School District’s] motive, even if that evidence does not directly contradict or
disprove [the School District’s] articulated reasons for its actions.” Buettner v. Arch
Coal Sales Co., 216 F.3d 707, 717 (8th Cir. 2000). Dixon contends that pretext is
evidenced by (1) the revision of the job description and (2) Winburn’s “unilateral”
review of the applications.
Regarding the job description, Dixon does not directly contest the School
District’s assertion that the revised job description and the attendant job requirements
accurately reflect the current responsibilities of the position. Rather, she argues that
failure to have the revision properly approved, and the employment-contract and
board-minutes references to the position by its original title of “Buyer,” is evidence
that Winburn tailored the job description to exclude Dixon in favor of Rebecca Rains.
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Tailoring job qualifications to exclude a candidate in favor of a preselected candidate
can be evidence of pretext. See Coble v. Hot Springs Sch. Dist. No. 6, 682 F.2d 721,
728–29 (8th Cir. 1982) (finding an unexplained French certification requirement for
a school counselor position invalid and evidence of preselection, “effectively
discredit[ing] the school district’s proffered [relevant-experience] explanation”). But
that is not always so. Brandt v. Shop ‘n Save Warehouse Foods, Inc., 108 F.3d 935,
938 (8th Cir. 1997) (holding evidence was insufficient to support a jury’s finding of
discrimination where an employer tailored job requirements to hire a male friend
rather than a female applicant). Here, the uncontested evidence shows that the revised
job qualifications accurately represented the responsibilities of the position, and
updating a job description to reflect the current responsibilities of the position is not
itself evidence of pretext. The reference to “Buyer” as the position’s “primary
responsibility” in the employment contract is not inconsistent with the job posting,
and the use of the original title in board minutes is too little evidence to sustain
Dixon’s argument. Moreover, to the extent Dixon argues that assigning fixed-asset
responsibilities to the Buyer position is against the school board’s intent of freezing
the fixed-asset position, we find the argument completely unsupported.
We recognize, however, that in some circumstances, an employer’s violation
of its own policies may be indicative of pretext. See Young v. Warner-Jenkinson Co.,
152 F.3d 1018, 1024 (8th Cir. 1998) (“[T]he fact that [an employer] may have
deviated from its [employee absenteeism] policies, when coupled with the fact that the
company mischaracterized [the plaintiff-employee’s attendance record] in a manner
giving rise to negative connotations, lends support to an inference of improper
motive.”). Here, the School District’s policy required the Board of Education Policies
to approve “any new position,” and whether an amended position constituted a “new”
position for purposes of the policy is a question of fact. There is an outstanding
question as to whether the School District followed its procedures when Winburn and
his supervisor changed the job description without full approval. But these questions
are immaterial. Even assuming that School District policy required board approval
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for this particular position and that the Superintendent did not seek such approval, on
the facts before us, this policy violation would not be evidence of pretext. See Floyd
v. Mo. Dep’t of Soc. Servs., 188 F.3d 932, 937 (8th Cir. 1999) (stating that “[a]n
employer’s failure to follow its own policies may support an inference of pretext” but
finding no pretext where departures from policy affected all candidates, not only the
plaintiff). Contrary to Dixon’s assertion that the approval policy provided an
“important check,” there is no indication that this policy was in any way related to
preventing discrimination in hiring. Further, the violation affected all candidates and
was not a violation specific to Dixon. See id.5 Given the facts before us, the alleged
policy violation in the posting’s revision adds little to Dixon’s pretext argument.
Dixon also contends that Winburn failed to follow procedures when he screened
the applicants himself rather than allowing the entire interview committee to screen
the applicants. Again, failure to follow established procedures may be evidence of
pretext for discrimination, but it is not always enough to create a triable question of
fact on the issue. See Chock v. Nw. Airlines, Inc., 113 F.3d 861, 864–65 (8th Cir.
1997) (finding no pretext when departures from policy were not along racial lines and
plaintiff had benefitted from the deviation in the past). This is especially the case
where, as here, the procedural violation was in accordance with long-standing
practice. The historic practice, the existence of which Dixon does not appear to
dispute, provides a potential non-discriminatory explanation for the procedural
misstep. Moreover, Winburn’s initial deviation from the same policy had allowed
Dixon to be scheduled for an interview for the first position. Dixon’s argument is
5
While not a factual issue subject to resolution at summary judgment, we also
note that if Winburn and the School District’s human resources department had
intended to exclude Dixon’s candidacy for the “corrected” position while keeping
their activities secret from the board, they could have done so based on experience
factors that in no way implicated the policy. While the availability of a non-violative
alternative does not preclude a finding of pretext for discrimination based on a policy
violation, it weighs against such a finding.
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essentially that Winburn, motivated by discriminatory animus, manipulated the hiring
process to prevent the African-American members of the interview committee from
considering her application. In light of Dixon’s argument, we find it relevant that
committee members did review applications and consult with Winburn, even if they
were not a part of the ultimate decision. It is also significant, again, in light of
Dixon’s argument, that at least one of the African-American committee members,
Thompson, considered Rebecca Rains to have superior qualifications and that the
record lacks any indication that the committee members, having seen both Dixon’s
and Rebecca Rains’s applications, had been interested in interviewing Dixon.
Although Winburn’s screening of applicants provides Dixon’s strongest argument, it
is insufficient to support an inference of pretext for discrimination.
Thus, while Dixon has presented some evidence of the type that may be
considered evidence of pretext, the very minimal evidence that she has presented,
coupled with her weak prima facie case, is not sufficient to support an inference of
discriminatory animus. See Arnold, 471 F.3d at 847 (“A plaintiff may make a
sufficient showing of pretext by different means, including showing that [the School
District] failed to follow its own policies . . . . [But] [r]egardless of the method
employed to prove pretext, a plaintiff must demonstrate that a discriminatory animus
lies behind the defendants neutral explanations.” (internal quotation omitted)).
C.
Dixon argues that a showing of either pretext or discriminatory animus is
sufficient for her claim, but in doing so, she overlooks that not any showing of pretext
is enough. The pretext must be “pretext for discrimination.” Reeves, 530 U.S. at 143
(emphasis added) (quotation omitted). “‘A reason cannot be proved to be a “pretext
for discrimination” unless it is shown both that the reason was false, and that
discrimination was the real reason.’” Floyd, 188 F.3d at 937 (alteration omitted)
(quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)). To be sure,
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evidence is not required to “show” a discriminatory animus directly, see Reeves, 530
U.S. at 148, but while in some cases the evidence of pretext—together with the
evidence supporting the prima facie case—may be sufficient to infer a discriminatory
animus, such a combined showing is not necessarily enough to support that inference
in every case. Id. (“This is not to say that such a showing by the plaintiff will always
be adequate to sustain a jury’s finding of liability.”); see Groves v. Cost Planning and
Mgmt. Int’l, Inc., 372 F.3d 1008, 1010 (8th Cir. 2004) (per curiam) (“[W]e have
confirmed after Reeves that in addition to showing pretext, plaintiffs in reduction of
force cases must also show their protected status was a factor in the adverse
employment decision.”); see also Wallace, 442 F.3d at 1120 n.2 (“[A] strong prima
facie case coupled with proof of pretext may suffice to create a triable question of
fact.” (emphases added)). No evidence of discriminatory animus is required if the
other evidence is sufficient to support an inference of discriminatory animus. In light
of Dixon’s weak prima facie case, the limited probative value of her evidence of
falsity, and the disparity in qualifications, her evidence of the School District’s
procedural irregularities is insufficient to survive summary judgment.
* * *
In conclusion, even assuming Dixon has established a prima facie case, she has
not offered sufficient evidence of pretext for a reasonable jury to infer that the School
District’s proffered rationale was pretext for discrimination. For the foregoing
reasons, we affirm the judgment of the district court.
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