Jerge v. City of Hemphill TX

United States Court of Appeals
Fifth Circuit
F I L E D
Revised November 12, 2003
November 10, 2003
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
_________________ Clerk
No. 02-41722
TRINA JERGE,
Plaintiff - Appellant,
v.
THE CITY OF HEMPHILL, TEXAS
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
1:01-CV-607
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:*
Plaintiff-Appellant Trina Jerge initiated this action
against her former employer, the City of Hemphill, Texas (the
City), alleging gender discrimination in violation of 42 U.S.C. §
1983 and Title VII of the Civil Rights Act of 1964. The City
filed a motion for summary judgment, which the district court
*
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this opinion should not be published and is not precedent except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.
1
granted in part and denied in part. Jerge appeals the district
court’s denial of her claims for failure-to-hire and constructive
discharge. We find that the record reveals direct and
circumstantial evidence sufficient to raise a genuine issue of
fact as to whether the City unlawfully discriminated against
Jerge. We therefore vacate the judgment of the district court
and remand the case for trial.
I.
The City of Hemphill, Texas, is governed by an elected mayor
and a city council comprised of five elected officials, all of
whom are male. The daily administration of City business is
conducted by the City Manager, who is assisted by the City
Secretary. In the mid-1980s, the City hired Tommy Neal as City
Manager. The City did not advertise the position, but instead
promoted a City employee to the position. At the time of Neal’s
appointment, Neal had experience working for the City, but he did
not have a college degree. Neal left the City Manager’s Office
in 1992.
In October 1992, the City hired Jerge as City Secretary.
The City Manager position remained unfilled for several years
after Neal’s departure. During the first few years of her
employment with the City, Jerge performed the bulk of the duties
normally assigned to the City Manager as well as performing her
own duties as City Secretary. She received no complaints about
2
her work, and Mayor Robert Hamilton often expressed satisfaction
with her performance. Despite assuming many of the duties of
City Manager, Jerge did not receive the title of City Manager,
nor did she receive the attendant pay increase.
In November 1996, the City promoted Frank Coday from City
Superintendent to City Manager. As before, the City did not
advertise the position, nor was the hiring identified on the
agenda for the council meeting. As City Secretary, Jerge
reported directly to Coday, and their working relationship was,
by all accounts, acrimonious. In October 2000, Coday announced
his intention to retire from the position of City Manager and let
it be known that he was supporting a man named Don Iles for the
position.
Upon learning of the impending vacancy, Jerge expressed to
the Mayor her interest in applying for the job of City Manager.
Initially, Mayor Hamilton encouraged her. However, after
speaking with Councilman Ener, the Mayor became less supportive
of her candidacy. Jerge stated that the Mayor told her it was
his appointment and that he would appoint her if she wanted the
job, but warned her that the council would “never go along with
it because they don’t think a woman can do the job.”
Jerge officially applied for the position of City Manager
and interviewed for the job along with several other finalists.
During her interview, Jerge was told she had five minutes to
explain why she wanted the job. In response, Jerge listed
3
several substantive reasons why she felt she was right for the
job, including her experience, her administrative ability and her
knowledge of and love for the City. Councilmen Tomlison and Rice
each asked Jerge how she would contend with a situation in which
she was called out in the middle of the night.1 The interviewers
did not ask her about her education or about her past experience
performing the duties of City Manager.
Upon completing the final interview, the council unanimously
selected Don Iles, who had recently earned a college degree, but
who had no experience in municipal government. Although the
Mayor was present at the deliberations, he declined to vote for
any candidate and instead left the decision to the council.2
Jerge resigned following the council’s decision to appoint
Iles. Jerge avers that she was “devastated” because she
perceived that she was denied a “fair opportunity” in her home
town merely because she was a woman. She subsequently initiated
the present action.
1
Jerge answered that she would not have a problem being
called out to work at night. Jerge explained to the councilmen
that as a City Judge, she was called out at night to perform
duties such as issuing arrest warrants, entering emergency
protective orders and performing inquests.
Jerge asserts in her declaration that she was not asked at
the interview about her ability to engage in or supervise outside
work, but she states that she was well acquainted with “outdoor
work” as she was raised on a farm and has a significant amount of
experience working outdoors and making repairs.
2
The council meeting in which the council voted to appoint
Iles was not tape recorded, which was a departure from the
council’s usual practice.
4
II.
This Court reviews de novo a grant of summary judgment and
applies the same standard as the district court. Blow v. City of
San Antonio, 236 F.3d 293, 296 (5th Cir. 2001).3 To mount a
claim for gender discrimination in violation of Title VII, Jerge
must demonstrate that she was not selected for the City Manager
position because of her sex. 42 U.S.C. §§ 2000e et seq. She may
do this in one of two ways. She may present direct evidence of
discrimination. Alternatively, she may provide circumstantial
evidence of discrimination in accordance with the burden shifting
framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). Here, Jerge contends she has presented both direct
and circumstantial evidence of discrimination, and we agree.
3
Thus, to determine if summary judgment was properly entered
in favor of the City, we review the record in the light most
favorable to Jerge and resolve all reasonable inferences in her
favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Moreover, we will affirm the district court's judgment only if we
find that those facts that are material to Jerge's claim are
undisputed by the parties; at this stage of litigation, the
reviewing court will not “step into the stead of the jury and
weigh the evidence in a search for truth, but is instead to
determine whether there exists a genuine issue for trial.” Fabela
v. Socorro Indep. Sch. Dist., 329 F.3d 409, 414 (5th Cir. 2003);
see also Caboni v. General Motors Corp., 278 F.3d 448, 451 (5th
Cir. 2002) (stating that in deciding whether summary judgment was
properly granted, "this court will not weigh the evidence or
evaluate the credibility of witnesses.").
5
A. Direct Evidence
If a plaintiff presents direct evidence of discrimination,
the McDonnell - Douglas framework does not apply, and the burden
shifts directly to the defendant to show that he would have taken
the same action regardless of the impermissible criterion. See
Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th Cir.
2003); Fierros v. Tex. Dept. of Health, 274 F.3d 187, 192 (5th
Cir. 2001).
Direct evidence is “evidence which, if believed, proves the
fact [of intentional discrimination] without inference or
presumption.” Portis v. First Nat’l Bank, 34 F.3d 325, 328-29
(5th Cir. 1994) (quoting Brown v. E. Miss. Elec. Power Ass’n, 989
F.2d 858, 861 (5th Cir. 1993)) (alteration in original). “In a
Title VII context, direct evidence includes any statement or
document which shows on its face that an improper criterion
served as a basis, not necessarily the sole basis, but a basis,
for the adverse employment action.” Fabela, 329 F.3d at 415.
To that end, Jerge presents evidence that both the Mayor and
the city councilmen considered her gender to be a relevant factor
in their decision not to appoint her City Manager.4 Jerge
4
Jerge presents evidence that Coday often yelled at her and
berated her. She also presents evidence that Coday supported a
male candidate, Don Iles, who had no previous experience working
for the City. However, most of Jerge’s allegations concerning
Coday are primarily relevant to her hostile workplace claim,
6
presents evidence that the Mayor initially supported her
candidacy, but a few days later, after a conversation with
Councilman Ener, the Mayor expressed reservations based solely on
Jerge’s gender. Jerge avers that the Mayor told her that, based
on his conversation with a councilman, the Mayor believed the
council would not support her candidacy because they “don’t think
a woman can do the job.” Jerge also presents deposition evidence
that Councilman Dutton expressed reservation as to whether the
two women applicants could handle the “outside parts” of the job.
which she has not appealed.
Jerge does contend that Coday treated her differently
because she was a woman and that Coday remarked that Jerge lacked
the “nuts” for the job of City Manager. Jerge also presents
evidence that Coday informed Cecil Mott that Jerge had not been
doing her job adequately since she had her hysterectomy and that
he did not feel she could handle the position of City Manager and
that the community would never accept a woman as City Manager.
These remarks could potentially amount to direct evidence of
discriminatory intent. However, because Coday was not a final
decision-maker, Coday’s discriminatory intent is only relevant to
Jerge’s remaining claim insofar as Jerge is able to demonstrate
that Coday used his influence over the council to have Iles
appointed instead of her because she is a woman. See Russell v.
McKinney Hosp. Venture, 235 F.3d 219, 226 (5th Cir. 2000) (“If
the employee can demonstrate that others had influence or
leverage over the official decisionmaker, and thus were not
ordinary coworkers, it is proper to impute their discriminatory
attitudes to the formal decisionmaker.”); Long v. Eastfield
Coll., 88 F.3d 300, 307 (5th Cir. 1996) (stating that if the
official decisionmaker “merely ‘rubber stamped’” the wishes of
others, that decisionmaker would inherit the discriminatory
taint). Here, Jerge presents sufficient evidence to create a
material fact question as to whether the council generally rubber
stamped Coday’s decisions. However, it is less clear from the
record that Coday disfavored Jerge as a candidate because she was
a woman, as opposed to disfavoring her because he had a
personality conflict with her. However, we need not resolve this
question as other issues are dispositive of the appeal.
7
Finally, Jerge presents the testimony of Councilman Edwards in
which he admits he was concerned about a woman being called out
to work at night — one of the requirements of the job of City
Manager. The following is an excerpt of Councilman Edwards’
deposition:
Question: [Other City employees] said
that you said you were
concerned about a woman being
called out [at night to
perform City Manager duties],
that that wouldn’t be a good
idea.
Edwards: Right.
Question: That’s what you said?
Edwards: Right. I said that, probably.
Because you know how it is
now. You never know who you
are going to run into at
night. Dark carries a lot of
things.5
Deposition of Pierce Edwards at 35.
Thus, Jerge provided sufficient direct evidence to raise a
genuine issue of material fact regarding whether the City
5
Although the district court observes that some of the
statements offered by the councilmen “may be indicative of an
antiquated view of women,” it nonetheless concludes that these
statements are not direct evidence of discrimination. However,
these statements provide direct evidence that the councilmen’s
reliance on sex-role stereotypes played a role in their decision
not to hire Jerge as City Manager. Therefore, the district court
erred in finding that Jerge did not provide direct evidence of
discrimination and in failing to employ the direct evidence
burden allocation standard as opposed to the McDonnell - Douglas
standard.
8
discriminated against her in violation of Title VII. Although
the City presents evidence that the councilmen believed Iles to
be better qualified, such evidence merely creates a triable issue
of fact; it is insufficient to secure summary judgment under the
direct evidence rubric. Fabela, 329 F.3d at 418. Consequently,
we must remand this question for resolution by a jury.
B. Jerge’s Circumstantial Evidence
Because we find that Jerge has presented sufficient direct
evidence, she is permitted to bypass the McDonnell - Douglas
framework at trial. Even assuming that Jerge had presented only
circumstantial evidence and that the McDonnell - Douglas
framework applied, however, she would have raised a factual issue
precluding summary judgment.
Jerge’s circumstantial evidence is certainly sufficient to
establish a prima facie case of gender discrimination under the
McDonnell - Douglas burden-shifting framework.6 Thus, the
6
The district court found, and the City does not dispute,
that Jerge established a prima facie case of discrimination,
i.e., (1) that she is a member of a protected class; (2) that she
applied and was qualified for the position of City Manager; (3)
that, despite her qualifications, she was not selected for the
position; and (4) that the position subsequently remained open or
was filled by a man. Jerge v. City of Hemphill, Texas, 224 F.
Supp. 2d 1086, 1092 (E.D. Tex. 2002) (citing Davis v. Chevron
U.S.A., Inc., 14 F.3d 1082, 1087 (5th Cir. 1994)); see also
McDonnell Douglas Corp., 411 U.S. at 802.
9
evidentiary burden of production shifts to the defendant to
proffer a legitimate and nondiscriminatory reason for the adverse
employment decision. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 142 (2000). Here, the City met this burden by
providing evidence from the councilmen that they selected Iles
over Jerge because they believed Iles was better qualified for
the job. Specifically, the City asserts that Iles was better
qualified because he has a college degree in finance.
Because the City demonstrated a nondiscriminatory reason for
not selecting Jerge for the job, Jerge then has the opportunity
to demonstrate that the City’s proffered nondiscriminatory
rationale was merely a pretext for discrimination. Reeves, 530
U.S. at 142.
Jerge presents both evidence which calls the City’s reason
for choosing Iles into doubt and affirmative evidence of
discrimination. First, she points to the fact that the City
Manager before Coday did not have a college degree, but instead
had municipal experience. She notes that she was not asked
anything about college courses, but was instead only questioned
about her ability to be out late at night. She further points to
deposition testimony of councilmen in which they admit they were
not familiar with Iles’ background in finance and statements by
councilmen in which they attest that they did not deem a college
degree to be an absolute requirement of the job. She also notes
10
that a woman who did possess a college degree and municipal
finance experience applied for the job of City Manager, but was
not hired, and at least one of the top three candidates did not
have a college degree. She observes also that Iles had neither
municipal experience nor administrative experience.
Additionally, Jerge submits evidence that demonstrates that the
Mayor and several of Jerge’s colleagues believed her to be
qualified for the job. Moreover, she had eight years of relevant
experience, including three years during which she performed as
acting City Manager without complaint.
Thus, Jerge presents evidence from which a jury could
reasonably conclude that Iles’ qualifications for the job were
not the real reason that he was selected over Jerge.7
7
The district court nonetheless concludes that no reasonable
jury could find that the City’s proffered reason was pretext. In
reaching this conclusion, the district court impermissibly
weighed the evidence in favor of the City. For example, the
district court was “unwilling to discount the testimony of the
councilmen that they were looking for a college degree.” Jerge,
224 F. Supp. 2d at 1094. In ruling on a motion for summary
judgment, however, “[c]redibility determinations, the weighing of
the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge.” Anderson, 477
U.S. at 255.
Similarly, the district court drew a negative inference
against Jerge based on inferences that are unsubstantiated by the
record. The district court reasoned that the fact that the City
Manager prior to Coday did not have a college degree was not
evidence of pretext because “the composition of the council has
probably changed in the ensuing decade, as have, perhaps, its
views on necessary qualifications to manage a changing city.”
Jerge, 224 F. Supp. 2d at 1094 (emphasis added). In ruling on
the City’s motion for summary judgment, however, the district
court may not draw negative inferences, let alone inferences
11
C. Constructive Discharge
Jerge also alleged constructive discharge, and the district
court granted summary judgment to the City on this point. In
light of the fact that the district court relied on the
discrimination claim in determining that Jerge was not
constructively discharged and, as we are vacating the judgment
with respect to the discrimination claim, we also vacate the
judgment dismissing the constructive discharge and remand for
further consideration.
III.
For the foregoing reasons, we VACATE the judgment of the
district court and REMAND the case for trial on the merits and
other proceedings consistent with the renderings herein.
VACATED and REMANDED
based on speculation, against a nonmoving party. Fabela, 329 F.3d
at 418 n.9.
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