Williams v. Henderson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 03-2260

JAMES WILLIAMS, JR.; JIMMY E. MCKELVY; JAMES
GILCHRIST; BOBBY LACY; ROBERT MCKITHEN, JR.;
KEVIN MCKIE; ROBERT COOKS, JR.; EDWARD N.
GRAY; NATHANIEL LOCKHART, on behalf of
themselves and all others similarly situated,

Plaintiffs - Appellants,

versus

WILLIAM J. HENDERSON, Postmaster General
United States Postal Service,

Defendant - Appellee,

and

RICHARD E. BARNHILL; DAVID O. BRANDON; CHARLES
J. CUTTER, II; EMMA OLIVER; PENNY JOYE; SONNY
POWELL; JOHN A. FRYE; JAMES STIH; RONALD
HOPSON; DAVID BLACK,

Defendants.

Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CA-99-552-4-25-BH)

Argued: February 3, 2005 Decided: April 27, 2005

Before WILKINSON, NIEMEYER, and WILLIAMS, Circuit Judges.

Affirmed by unpublished per curiam opinion.
ARGUED: Deborah Harrison Sheffield, Columbia, South Carolina, for
Appellants. David George Karro, UNITED STATES POSTAL SERVICE,
Washington, D.C., for Appellee. ON BRIEF: J. Strom Thurmond, Jr.,
United States Attorney, Barbara Murcier Bowens, Assistant United
States Attorney, Columbia, South Carolina; Lori J. Dym, Managing
Counsel, UNITED STATES POSTAL SERVICE, Washington, D.C., for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

-2-
PER CURIAM:

Nine African-American employees of the United States

Postal Service ("USPS") commenced this class action against the

Postmaster General of the USPS for denying them promotions because

of their race, in violation of Title VII of the Civil Rights Act of

1964. On the USPS's motion, the district court ruled that this

action could not proceed as a class action and, with respect to the

individual plaintiffs' claims, granted summary judgment in favor of

the USPS.

On appeal, we affirm. We agree with the district court's

decision that this case should not proceed as a class action. And

with respect to the individual defendants, we agree that none of

the employees presented sufficient evidence from which a reasonable

factfinder could conclude that the employee was denied a promotion

on the basis of race. Finally, we agree that four of the

employees' claims must be denied also because they failed to

exhaust their administrative remedies.

I

Plaintiffs Williams, McKelvy, McKie, Cooks, Lacy, and

Gray work in the maintenance craft in the Florence, South Carolina

mail processing facility of the USPS.1 Plaintiff Lockhart works as

1
Although plaintiffs Gilchrist and McKithen, who also work in
the maintenance craft at the Florence facility, filed notices of
appeal, neither has prosecuted his appeal. Accordingly, we dismiss
their appeals.

-3-
a mail distributor at the same facility. All plaintiffs claim that

the USPS denied them promotions or discouraged them from seeking

promotions because of their race.

The USPS promotion process in the maintenance craft is a

highly formalized one. To obtain a promotion within that craft, a

postal employee must enter the USPS's "Maintenance Selection

System," which is comprised of seven steps: (1) announcement, (2)

application, (3) record review, (4) review panel evaluation, (5)

examination, (6) supervisor evaluation, and (7) results. While the

first two steps might involve various circumstances, they generally

entail the applicant's submission to the USPS of information

pertaining to his or her qualifications for a desired position.

During step (3), the USPS's National Test Administration Center

("NTAC") receives and processes the forms submitted by the

applicant and any relevant records already contained in the USPS's

database. Step (4) consists of an interview and record review by

a three-member review panel, which assesses the applicant's

qualifications for the job sought. Those qualifications are

described by "KSAs" (knowledge, skills, and abilities) that the

applicant must possess to be considered for the position. For each

relevant KSA, the review panel assigns a score to the applicant,

with 1 being the worst score and 5 being the best. During step

(5), the applicant takes a written examination, administered by the

NTAC for each relevant KSA. Step (6) requires the applicant's

-4-
current supervisor to submit a written evaluation for each of the

relevant KSAs. The supervisor can either assign the applicant a

performance level score of 1 to 5 or, if the supervisor has no

basis on which to make an evaluation, the supervisor can give the

applicant a "CE" score (standing for "cannot evaluate"). Finally,

during step (7), the NTAC combines the applicant's scores from

steps (4) through (6) and returns the results to the USPS office

and the applicant. The applicant never sees how he or she scored

on the individual components in the evaluation process. The

applicant does, however, receive an overall score for each KSA,

which is arrived at by combining the applicant's scores from the

test, the panel review, and the supervisor evaluation in accordance

with a formula. To be eligible for the desired position, the

applicant must have achieved an overall passing score for each

relevant KSA. If the applicant has failed one or more KSAs, he can

seek to be re-evaluated only if he has received new experience or

training that might make him more qualified.

Promotions in the distribution craft, as distinct from

the maintenance craft, are handled through a less formalized

procedure than those in the maintenance craft. The applicant must

submit a job application listing his knowledge, skills, and

abilities for the desired position, and the application is then

forwarded to a review committee, which selects the most qualified

applicants to interview for the position.

-5-
 Plaintiffs Williams and McKelvy both applied in April

1996 for promotions within the maintenance craft to the position of

general mechanic but were turned down when they failed to achieve

passing scores on relevant KSAs. Both men allege that their non-

passing KSAs were the result of discriminatory evaluations written

by their supervisor, David Brandon. Specifically, both men

received a CE score on the hand tools KSA from Brandon and

ultimately received an overall "ineligible" rating for that KSA.

Williams and McKelvy both allege that Brandon had previously

observed them using hand tools and even had acknowledged their

competency with hand tools in the past. They maintain that Brandon

was motivated by racial animus to withhold a favorable evaluation.

But James Mahoney, the manager of the NTAC, testified that both

Williams and McKelvy received such low scores on the written

examination for hand tools that they could not have passed the hand

tools KSA even if they had received the highest supervisor review

possible.

Plaintiff Cooks applied for a promotion within the

maintenance craft in January 1994 but was deemed ineligible when he

failed the KSAs for applied theory and test equipment. Cooks

blames his overall ineligibility rating on the allegedly

discriminatory evaluations he received from his supervisor, Richard

Barnhill, and the review panel. Barnhill gave Cooks a CE on the

applied theory KSA, and the review panel gave him a rating of 1 on

-6-
the test equipment KSA. According to NTAC manager Mahoney, Cooks's

scores on the written examination for applied theory and test

equipment were so low that Cooks could not have passed those KSAs

even if he had received the highest possible supervisor and review

panel scores.

Plaintiff Lacy alleges that he was denied a promotion

because of Barnhill's discriminatory conduct. In particular, the

USPS denied Lacy's request to be promoted to building equipment

mechanic or area maintenance technician after he had failed nine

relevant KSAs. Lacy claims that his overall non-passing scores on

those KSAs resulted from the low scores he received from the review

panel, which, according to Lacy, was conducted by Barnhill in a

discriminatory manner. Notwithstanding Lacy's low panel review

scores, however, NTAC manager Mahoney testified that Lacy's written

test scores for two of the KSAs were so low that no review panel

evaluation would have been high enough for him to have passed.

Plaintiff Gray never actually entered the maintenance

selection system. He alleges that he was discouraged from applying

for a promotion by his supervisor Barnhill.

Plaintiff McKie was denied a promotion in the maintenance

craft, not because he failed a relevant KSA, but because he was

passed over in favor of another qualified employee who was white.

A contributing factor in the decision to promote the white employee

was the difference between the supervisor evaluations each

-7-
applicant received from Barnhill. McKie alleges that because

Barnhill was not familiar enough with the white applicant's

abilities to have properly compared the two, the disparity in their

applications must have been caused by racial animus.

Unlike the other plaintiffs who sought promotions in the

maintenance craft, Lockhart sought a promotion in the mail

distribution craft to the position of customer service supervisor.

He applied to both the Taylor and Greenwood post offices. The

review committee at the Taylor facility did not select Lockhart as

a finalist, but he was granted an interview for the position at the

Greenwood facility. Along with two other candidates, Lockhart was

interviewed by postmaster Steve Glinski. During the interviews,

Glinski asked 61 questions, and after scoring each applicant

according to his or her responses, offered the position to a white

applicant. Although Lockhart answered only 44.3% of the interview

questions correctly, while the chosen candidate scored 96.7%,

Lockhart claims that Glinski allowed racial animus to color his

evaluation of the applicants' answers.

The plaintiffs commenced this action contending that the

USPS discriminated against them in denying them promotions, in

violation of Title VII. Their complaint requests both injunctive

relief and monetary damages.

On cross-motions for summary judgment, the district court

ruled that the case could not proceed as a class action because

-8-
the numerosity requirement of Rule 23 was not met, and, with

respect to each individual plaintiff, the court granted summary

judgment in favor of the USPS.

II

At the outset, we address the district court's ruling

that this case could not proceed as a class action because the

plaintiffs failed to demonstrate that the class was "so numerous

that joinder of all members is impracticable." Fed. R. Civ. P.

23(a)(1).

The plaintiffs proposed to represent a class consisting

of "[t]hose employees of the maintenance craft at the Florence Mail

Processing Facility of African-American extraction who have applied

for and been denied promotions based upon their race." The

plaintiffs presented evidence that eight individuals fell within

the class so defined. We conclude that the district court did not

abuse its discretion in concluding that such a small number of

potential class members was insufficient to maintain a class action

under Federal Rule of Civil Procedure 23. See 7A Charles Alan

Wright et al., Federal Practice and Procedure § 1762 (2d ed. 1986)

(observing that, although there is no bright-line rule for how many

members a class must have, many courts have found that classes with

fewer than thirty members do not justify a class action); see also

Cypress v. Newport News Gen. & Nonsectarian Hosp. Ass'n, 375 F.2d

-9-
648, 653 (4th Cir. 1967) ("[U]nless an abuse is shown, the trial

court's decision on this issue [of numerosity] is final").

III

Next we address the USPS's contention that several

plaintiffs failed to exhaust their administrative remedies.

Plaintiffs Cooks, Gray, and McKie never filed complaints with the

Equal Employment Opportunity Commission ("EEOC"), and although

plaintiff Lacy filed a timely EEOC complaint, he failed to file a

complaint in federal court within 90 days after the EEOC found no

evidence of discrimination, as required by 42 U.S.C. § 2000e-16(c).

While the plaintiffs do not deny such failures, they

contend that the USPS should be equitably estopped from asserting

them as a defense. Specifically, the plaintiffs claim that the

USPS's EEOC representative failed to tell three plaintiffs who did

file EEOC complaints — Williams, McKelvy, and Gilchrist — that they

could pursue a class complaint before the EEOC under 29 C.F.R. §

1614.204. The EEOC representative allegedly told them only that

"each case had to be filed individually." But this fact, even if

true, does not permit the plaintiffs to avoid the administrative

process, and they offer no evidence that they were misinformed

about or thwarted in filing individual EEOC complaints. Although

a class complaint filed before the administrative agency might, in

certain circumstances, have preserved their claims as class

members, no one in this case made any effort to pursue a class

-10-
complaint before the EEOC, either timely or otherwise. Any

misinformation provided by the EEOC would at most have tolled the

time for filing a class complaint; it would not have excused the

plaintiffs from having to exhaust their administrative remedies

altogether. Moreover, they did not demonstrate any qualifications

to pursue a class complaint before the EEOC. Without anything

having been presented to the EEOC about a class proceeding, it

would be inappropriate for us now to consider the issue as a basis

to recognize the plaintiffs' claim that equitable estoppel should

apply.

The plaintiffs argue that even if equitable estoppel does

not save their claims, they can piggyback their unexhausted claims

on the claims of the other plaintiffs who satisfied the exhaustion

requirement — Williams, McKelvy, and Lockhart. While it is not

clear that the plaintiffs who failed to exhaust their

administrative remedies have claims that are similar enough to the

claims of the three employees who exhausted their claims that they

could invoke a single-filing rule, we conclude that any such rule

would in any event conflict with the EEOC's procedure established

for class complaints against the government and therefore decline

to apply such a rule in the circumstances of this case. To allow

plaintiffs who have not exhausted their administrative remedies to

piggyback on EEOC complaints brought by others who are similarly

situated would subvert the purpose behind the class administrative

-11-
procedure available to federal employees. That procedure enables

federal employees to preserve the claims of others while putting

the government on notice that it will have to defend itself against

a wider array of claims. The single-filing rule that the

plaintiffs urge us to apply fails to provide such notice and serves

no purpose that the class administrative process does not serve

equally well.

Finally, the plaintiffs contend that they need not

exhaust their administrative remedies so long as a class

representative in the federal action has exhausted his

administrative remedies. See Chisholm v. U.S. Postal Serv., 665

F.2d 482, 490 n.11 (4th Cir. 1981) (holding that plaintiffs who

file timely individual EEOC complaints can subsequently file class

action lawsuits on behalf of similarly situated plaintiffs who have

not exhausted their administrative remedies). Of course, that

defense is not available if the federal action is not maintainable

as a class action. As we have pointed out, the district court did

not abuse its discretion in holding that a purported class of eight

members is not sufficiently large to invoke Federal Rule of Civil

Procedure 23 authorizing class actions.

Accordingly, we affirm the district court's ruling

granting summary judgment to the USPS on the claims of Cooks, Gray,

McKie, and Lacy because they failed to exhaust their administrative

remedies.

-12-
 IV

Finally, we address the plaintiffs' challenges to the

district court's rulings on the merits. The district court

concluded that none of the plaintiffs, including those who failed

to exhaust their administrative remedies, presented sufficient

evidence from which a reasonable factfinder could conclude that

they had been discriminated against on the basis of their race. We

agree.

Section 717 of Title VII of the Civil Rights Act of 1964

provides that "[a]ll personnel actions affecting employees . . . in

the United States Postal Service . . . shall be made free from any

discrimination based on race." 42 U.S.C. § 2000e-16(a). Relying

on this section to assert disparate treatment claims, the

plaintiffs alleged that the USPS failed to promote them because of

their race. In response to the USPS's motion for summary judgment,

they invoked the McDonnell Douglas framework for determining

discrimination.2 Under that approach, each plaintiff must

demonstrate (1) that he is a member of a protected group; (2) that

he applied for the position in question; (3) that he was qualified

for the position sought; and (4) that he was rejected for the

2
Part of the plaintiffs' complaint could also be understood
to be alleging a "pattern or practice" of discrimination. Because
pattern or practice claims can be asserted only in class actions,
see Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 761 (4th
Cir. 1998), vacated on other grounds, 527 U.S. 1031 (1999), we do
not address that part of their complaint in view of our ruling made
above on the class action status of this case.

-13-
position in favor of someone not a member of the protected group in

circumstances giving rise to an inference of unlawful

discrimination. See Lowery v. Circuit City Stores, Inc., 158 F.3d

742, 760 (4th Cir. 1998), vacated on other grounds, 527 U.S. 1031

(1999). Once the plaintiff has satisfied those criteria and

thereby established a prima facie case, a presumption of

discrimination arises, and "the burden of production shifts to the

employer to rebut the plaintiff's prima facie case by articulating

a legitimate, non-discriminatory reason for the adverse employment

action." Id. If the employer produces evidence of a non-

discriminatory reason for the promotion decision, then the

presumption of discrimination "drops from the case," and the

plaintiff bears the "ultimate burden of persuading the court that

[he] has been the victim of intentional discrimination." Texas

Dep't of Community Affairs v. Burdine, 450 U.S. 248, 255 n.10, 256

(1981). With this legal framework, we now turn to the plaintiffs'

claims.

A. Williams, McKelvy, Cooks, Lacy

Plaintiffs Williams, McKelvy, Cooks, and Lacy failed to

establish that they were qualified for the positions they sought,

the third element of a prima facie claim of discrimination.

Specifically, they failed to introduce evidence that, but for the

allegedly discriminatory reviews given by their supervisors or the

review panel, they would have met all of the KSAs required for the

-14-
promotions they sought. The NTAC manager testified that each of

these plaintiffs scored so low on an examination for at least one

necessary KSA that he could not have passed the KSA even had he

received the highest supervisor or panel review possible. Because

the USPS uses the KSAs to determine whether candidates are

qualified for particular positions, the fact that the plaintiffs

would not have passed the necessary KSAs, even in the absence of

any discriminatory reviews, establishes that they were not

qualified for the positions for which they applied.

Attempting to prove that the KSA examination procedure

itself was a pretext for discrimination, the plaintiffs suggest

that white employees might have had access to testing materials

prior to taking the exams. They also attempt to undermine the

credibility of NTAC manager Mahoney's testimony that the

plaintiffs' exam scores were so low that they could not have passed

the necessary KSAs by asserting that the scoring process was

"shrouded in secrecy." These arguments are, however, mere

speculation and do not create a triable question of fact. See

Ennis v. Nat'l Ass'n of Bus. and Educ. Radio, Inc., 53 F.3d 55, 62

(4th Cir. 1995) ("Mere unsupported speculation . . . is not enough

to defeat a summary judgment motion").

B. Gray

Plaintiff Gray failed to establish that he applied for

the position in question, the second element of a prima facie case

-15-
of discrimination. In an unsuccessful attempt to overcome that

failure, Gray alleges that he intended to apply for a level-5

maintenance position in March 1998 but changed his mind when his

supervisor, Richard Barnhill, told him that no level-5 positions

would be open in the near future. Not only does Gray fail to offer

any proof that Barnhill's statement was untrue, but even if untrue,

he fails to point to any evidence that Barnhill intentionally

misled Gray because of his race. Gray simply has not advanced

evidence necessary to support a prima facie case for Title VII

discrimination.

C. McKie and Lockhart

While both McKie and Lockhart may have established a

prima facie case under the McDonnell Douglas framework, neither has

presented sufficient evidence to rebut the USPS's proof that it had

a nondiscriminatory reason for its decision not to promote him.

Specifically, the USPS asserts that McKie was passed over

in favor of a white applicant because Barnhill's evaluation of the

two applicants reflected the fact that the white applicant had

background experience in the electronics field, which made him a

better candidate for the position. While McKie notes that Barnhill

did not have much of an opportunity to observe either applicant on

the job, McKie has not presented any evidence that it was against

USPS policy for supervisors to take into account an applicant's

background experience when evaluating him. Even though McKie may

-16-
have possessed the skills necessary for the position, that fact

does not undermine the USPS's conclusion that the other applicant

possessed superior skills.

Similarly, the USPS met its burden of producing evidence

that Lockhart was denied supervisor positions at the Greenwood and

Taylor facilities for legitimate reasons. Glinski, the postmaster

responsible for making the final promotion decision at the

Greenwood facility, testified that he chose the white candidate

over Lockhart because the white employee performed better during

his interview. To support his claim that this reason for denying

him the position at the Greenwood facility was pretextual, Lockhart

points to the subjective nature of some of the interview questions

and notes that Glinski did not actually record the candidates'

answers. But such evidence, even when combined with Lockhart's

prima facie case, would not enable a reasonable factfinder to

conclude that Lockhart was discriminated against. First, the

proportion of subjective questions asked during the interviews was

too small to account for the vast discrepancy between the interview

scores of Lockhart and the other applicant — 44.3% correct versus

96.7% correct. Second, the fact that Glinski did not specifically

record the candidates' interview answers does not tend to show that

he lied about their performances or that he ultimately chose the

white candidate over Lockhart because of Lockhart's race.

-17-
 Explaining the decision not to interview Lockhart for the

position at the Taylor facility, one of the review panel members

testified that, based on the candidates' applications, Lockhart was

less qualified than five other applicants. Lockhart responded to

that evidence by claiming that he had a more extensive educational

background than any of the candidates that were chosen to be

interviewed for the position. But Lockhart failed to rebut the

USPS's evidence that the interviews were granted, not on the basis

of the candidates' educational achievements, but on the basis of

their answers to questions on their applications that asked the

applicants to describe situations demonstrating their knowledge and

abilities in particular skills areas.

In short, neither McKie nor Lockhart introduced

sufficient evidence to create a factual question as to whether he

was denied a promotion by reason of his race.

V

For the foregoing reasons, we affirm the judgment of the

district court.

AFFIRMED

-18-