IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
No. 96-60485
Summary Calendar
___________________
EDDIE HARRIS,
Plaintiff-Appellant,
versus
DOUBLE G. COATINGS, INC.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Mississippi, Jackson Division
(3:95-CV-478-LN)
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May 5, 1997
Before GARWOOD, JOLLY, and DENNIS, Circuit Judges.*
GARWOOD, Circuit Judge:
Eddie Harris appeals the district court’s grant of summary
judgment to Double G. Coatings, Inc., in his Title VII and 42
U.S.C. § 1981 employment discrimination lawsuit. We affirm.
Facts and Proceedings Below
Double G. is a continuous process steel coating mill which
operates year-round on a twenty-four hour basis.1 In June of 1995
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
1
Double G. is a corporate joint venture between National Steel
Corporation and Bethlehem Steel Corporation, each of whom owns
fifty percent of Double G.’s stock.
Harris, who is black, was employed by Double G. as an Electrical
Maintenance Technician. Joe Bagwell, who is white, also worked for
Double G. as a Mechanical Maintenance Technician. Both men had
been hired by Double G. in 1993, shortly after its Jackson plant
began start-up operations.
On June 8, 1995, Double G. posted a notice advising that, due
to the promotion of Mike Meadows from Mechanical Engineer to Plant
Manager, there was an opening available for the position of
Mechanical Maintenance Coordinator (MMC). This notice stated in
pertinent part the following:
“Qualified Mechanical Maintenance Coordinator Candidates Must
Possess:
- A 4-year B.S. college degree in a related technical
field, preferably in mechanical engineering; or a 2-year
technical college degree and 10 years of mechanical
maintenance and supervision; or no advanced degree and 20
years of mechanical maintenance and supervision,
- Excellent technical knowledge of the coating line,
- Good communications and interpersonal skills,
- Leadership ability, and
- Solid team orientation.”
The notice did not set forth any additional qualifications or
criteria to govern how the promotion decision would be made.
Four Double G. employees applied for the position; of these,
only two, Harris and Bagwell, met the minimum requirements
established by the job notice. Both Harris and Bagwell were
interviewed by Meadows, who ultimately decided to give Bagwell the
promotion.
Harris, upset with this result, filed this lawsuit on July 7,
2
1995, asserting violations of 42 U.S.C. § 1981 and Title VII.
Harris alleged that he had been denied advancement in the company
due to his race and thus was a victim of Double G.’s allegedly
discriminatory employment practices.2 Double G. moved for summary
judgment on January 3, 1996; the district court granted this motion
on May 10, 1996. Harris moved on May 28 to alter or amend the
judgment, or “for relief from judgment,” or for reconsideration,
and on May 29 to amend his complaint. Both motions were denied on
June 25, 1996. Harris timely noticed an appeal from the district
court’s final judgment of May 10 and the May 25 order denying his
post-judgment motions.
Discussion
In reviewing a district court’s grant of summary judgment we
consider the record de novo, applying the same legal standards
which governed the district court’s determination. Wittorf v.
Shell Oil Co., 37 F.3d 1151, 1154 (5th Cir. 1994). We first
determine the applicable law in order to isolate material factual
issues and then review the admissible summary judgment evidence
bearing on those issues, viewing all facts and inferences drawn
from the evidence in the light most favorable to the nonmoving
party. MacMillan v. United States, 46 F.3d 377, 380 (5th Cir.
2
Double G. has an established policy against employment
discrimination and a procedure whereby a human resources manager
receives complaints regarding violations of the policy. Harris
opted to forego Double G.’s internal grievance procedure.
3
1995) (citations omitted).
In a failure to promote case under Title VII and/or section
1981,3 the plaintiff bears the initial burden of demonstrating a
prima facie case of discrimination. Gonzalez v. Carlin, 907 F.2d
573, 578 (5th Cir. 1990), citing Texas Dept. of Community Affairs
v. Burdine, 101 S.Ct. 1089, 1093 (1981). If the plaintiff is able
to make out a prima facie case, the burden of production shifts to
the employer, who must articulate a legitimate, nondiscriminatory
reason for not promoting the plaintiff. Williams v. Time Warner
Operations, Inc., 98 F.3d 179, 181 (5th Cir. 1996). If the
employer articulates such a justification for its action, the
burden shifts back to the plaintiff to show that the employer’s
proffered reason(s) are pretextual; this final burden merges with
the plaintiff’s ultimate burden of persuading the court that he or
she has been the victim of intentional racial discrimination.
Burdine, 101 S.Ct. at 1095.
For purposes of this appeal we assume, as did the district
court, that Harris was able to establish a prima facie case.
Furthermore, we find Double G.’s stated reasons for promoting
Bagwell over Harris to be both legitimate and nondiscriminatory.
Thus, we turn to an assessment of whether Harris produced
3
The elements of unemployment discrimination claims under Title
VII and section 1981 are identical. Anderson v. Douglas & Lomason
Co., Inc., 26 F.3d 1277, 1284 n.7 (5th Cir. 1994) (citations
omitted), cert. denied, 115 S.Ct. 1099 (1995).
4
sufficient evidence of pretext to render the alleged discriminatory
intent of Double G. a triable issue. See Rhodes v. Guiberson Oil
Tools, 75 F.3d 989 (5th Cir. 1996) (en banc).
Double G.’s proffered reason for promoting Bagwell is in
essence a submission that it considered he was better qualified for
the job than was Harris. Harris counters that, based upon criteria
established by Double G., it was he who possessed the superior
credentials. The nature of this dispute obligates us to engage in
a comparison of the two men’s qualifications at the time of the
promotion to determine whether any disparity in those
qualifications supports an inference of purposeful discrimination.
We emphasize, however, that the issue in this case is not which man
was in fact more qualified,4 but rather whether Harris’s objective
qualifications for the MMC position so clearly exceeded those of
Bagwell that a reasonable juror could affirmatively conclude that
invidious discrimination, rather than an assessment of
qualifications, was shown to have in fact played a part in Double
4
Our inquiry is limited to the existence vel non of a racially
discriminatory animus on Double G.’s part. Consequently, we
decline “to weigh the wisdom of any particular employment decision;
Title VII does not authorize federal courts to sit as a super-
personnel department that reexamines an entity’s business
decisions.” Ruby v. Springfield R-12 Public School Dist., 76 F.3d
909, 912 n.7 (8th Cir. 1996) (citation omitted) (internal quotation
marks omitted). Stated another way, “[Harris] must create an issue
as to whether the employer honestly believes in the reasons it
offers, not whether [Double G.] made a bad decision.” Sample v.
Aldi, Inc., 61 F.3d 544, 549 (7th Cir. 1995) (citation omitted)
(internal quotation marks omitted).
5
G.’s promoting Bagwell over Harris. Amburgey v. Corhart
Refractories Corp., Inc., 936 F.2d 805, 813-814 (5th Cir. 1991);
Thornburgh v. Columbus & Greenville R. Co., 760 F.2d 633, 647 (5th
Cir. 1985). This approach is based upon the straightforward view
that “[e]veryone can make a mistake——but if the mistake is large
enough, we may begin to wonder whether it was a mistake at all.”
Amburgey, 936 F.2d at 814, quoting Thornburgh, 760 F.2d at 647.
Accordingly, we examine the competent summary judgment evidence
adduced to determine whether Harris was “clearly better qualified”
for the position of MMC than Bagwell.5 EEOC v. Texas Instruments,
Inc., 100 F.3d 1173, 1184 (5th Cir. 1996); Nichols v. Loral Vought
Systems Corp., 81 F.3d 38, 42 (5th Cir. 1996); EEOC v. Louisiana
Office of Community Services, 47 F.3d 1438, 1444 (5th Cir. 1995);
Odom v. Frank, 3 F.3d 839, 845-846 (5th Cir. 1993); Walther v. Lone
Star Gas Co., 952 F.2d 119, 123 (5th Cir. 1992); Amburgey, 936 F.2d
at 813-814; Thornburgh, 760 F.2d at 647.
As a threshold matter, we must determine what criteria Meadows
5
Obviously, our review is concerned with evidence bearing upon
the relevant qualifications of the men that were known by Double G.
at the time the employment decision was made. Harris argues in
brief that Bagwell’s two prior criminal convictions and his
involvement in a gas leak which occurred several weeks after he was
promoted serve to undermine his qualifications for the position.
The record reveals that the convictions were not known to Double G.
until Bagwell was deposed for purposes of this lawsuit, and of
course the leak occurred after the employment decision had been
made. These matters are therefore irrelevant to the issue
presented, their consideration being a proper matter for Bagwell’s
supervisors at Double G. and not this Court.
6
and Double G.’s president, Sam Moore, devised to govern the
promotion decision. Harris argues that the notice posted by Double
G.’s management provides the exclusive criteria; in so doing he
seeks to present himself, through a bizarre calculus based upon the
education and work history criterion set forth disjunctively in the
first subpart of that notice, as the most qualified candidate by
virtue of a mathematical fait accompli. We disagree with Harris’s
reading of the notice, finding instead that the qualifications
contained therein are minimum qualifications, i.e., qualifications
which competent candidates “must possess,” designed to limit the
pool of prospective applicants.6 As such, the notice, while it
might have functioned as an indicator of factors Meadows would
consider, did not necessarily prescribe the exclusive criteria
governing Double G.’s decision.
Turning to the language of the notice itself, we observe that
the requirements set forth in its first subpart are stated
disjunctively. Unlike Harris, we do not discern from this any
priority to educational achievement; rather, possession of the
requisite education or work experience suffices to qualify an
individual under this subpart.7 Additionally, the first subpart,
6
This reading is supported by the deposition testimony of
Meadows and Moore, who testified that educational background was
listed first because they understood that to be the convention in
formulating job notices.
7
This reading accords with Moore’s deposition testimony, which
relates that satisfying the listed qualifications, including any of
7
while typically the most plainly discernible from a resumé,
comprises only one of five listed criterion. The notice does not
expressly assign to any of these criterion a place of pre-eminent
importance and we decline to imply such a hierarchy.
We review the qualifications of the two men based upon the
factors set out in the notice as they relate to what the record
reveals are the actual requirements for the job at issue. While
Harris is certainly entitled to challenge Double G.’s
characterization of the industrial philosophy underlying the
subject position, he has failed to present any competent evidence
rebutting the affidavits and deposition testimony discussing the
role of the MMC in the context of Double G.’s “mini-mill” scheme.8
See EEOC, 47 F.3d at 1445-1446 (“we decline to substitute our
the three set forth in the first subpart, entitled the applicant to
an interview. In addition, Moore and Pat VanDomelen, Double G.’s
human resources manager, both testified that the notice for the MMC
position was based upon an earlier notice seeking candidates for a
Team Coordinator position, a production line job which required
more in the way of traditional management skills than the MMC
position. Both Moore and Mike Meadows stated that the promotion
decision was based on “the entire package” that the applicants
brought to the table.
8
Harris did state in his deposition that the subject position
was merely an ordinary “supervisory” position, but provided no
specific details or examples to support this quite general
conclusion. Given the copious amount of specific and detailed
information provided by Double G., particularly in the affidavits
and deposition testimony of Ezio DiFrancesco and Meadows, regarding
the “continuous improvement” approach underlying Double G.’s “mini-
mill” concept, Harris’s self-serving conclusory statements are
insufficient to create a triable fact issue on this point. Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
8
judgment for the employer in evaluating what types of experience
are most valuable for an employee in the new position in the
absence of proof that the standards were not consistently applied
or were so irrational or idiosyncratic as to suggest a cover-up”);
Odom, 3 F.3d at 847 (“as a general rule judges are not as well
suited by training or experience to evaluate qualifications for
high level promotion in other disciplines as are those persons who
have trained and worked for years in the field of endeavor for
which the applicants under consideration are being evaluated”).
Accordingly, we compare the two men’s backgrounds and demonstrated
abilities in light of what the record reveals are the actual
parameters of the MMC position and decline to speculate concerning
hypothetical job descriptions extrapolated from the promotion
notice.
In June of 1995, Harris, the plaintiff, held a Bachelor of
Science Degree in Industrial Technology Management from Jackson
State University and an Associate Degree in Electronic Technology
from Hinds Junior College. He testified during his deposition that
he had worked at Siemens-Allis for nine years; during his first
four years there he tested circuit breakers, and the remainder of
his time he spent as a senior engineering technician. Harris then
moved to Vickers, Inc., where he worked from 1980 until 1993 as a
“maintenance supervisor.” Harris asserts that his duties at both
Siemens and Vickers required him to engage in both mechanical and
9
electrical maintenance, but concedes that after 1990 he performed
almost exclusively electrical maintenance work.
In June of 1995 Bagwell had over twenty years of experience as
a mechanic, having worked as a millwright for Connor Steel
Corporation, in Birmingham, Alabama, from 1970 through 1983, and as
a hydraulic technician for Bayou Steel in LaPlace, Louisiana, from
1983 through 1991. During his last two years at Bayou Steel
Bagwell was “lead man” in the Hydraulic Department, a supervisory
position. From 1991 to 1993, when he was hired by Double G.,
Bagwell worked as a repairman, fixing and refitting mobile homes.
Bagwell had minimal academic qualifications, having attended a
junior college, in an industrial engineering curriculum, for only
one year.
Turning to the other competent record evidence, we consider
first the affidavit and deposition testimony of Ezio DiFrancesco,
an operation consultant for Bethlehem Steel-Homer Research Lab who
assisted in the start-up phase of Double G.’s Jackson plant. In
his affidavit, DiFrancesco averred that he has trained numerous
supervisory employees for positions like Double G.’s MMC and
discusses the technical adaptability and basic mechanical know-how
required of the position. DiFrancesco tied this job description
into the “mini-mill” concept underlying Double G.’s operation. The
mini-mill concept is characterized by a lean management team and
production and maintenance teams exercising a significant amount of
autonomy. Essential to this approach is the “team concept” wherein
10
team coordinators must take a “hands-on” approach and lead their
team to focus on improving production parameters by redesigning
out, rather than simply patching over, problems which occur on the
line. This emphasis on “continuous improvement” is the means by
which the plant is to remain competitive by reducing the duration
and frequencies of delay due to mechanical breakdown.
DiFrancesco also recounted his seven months of experience in
setting up the Jackson operation. Having worked with both Harris
and Bagwell, DiFrancesco noted Bagwell’s proven ability to
implement mechanical improvements, providing six separate examples
of particular mechanical problems resolved by Bagwell during his
time in Jackson. DiFrancesco criticized Harris for lacking
initiative and persistence, as in Bagwell’s case providing specific
examples illustrating the basis for his opinion, and stated that
Harris would have needed additional training to bring him up to
specification for the MMC position.
David Hair, a project engineer for Double G. during its start-
up phase who worked with both men, observed that Bagwell worked
better with subordinates and possessed a more detailed mechanical
knowledge of the machinery on the line. Hair also stressed
Bagwell’s problem-solving skills and his ability to communicate
effectively with other mechanics. Hair noted that Harris did not
typically work overtime and had a tendency to do only what was
required, while Bagwell was willing to work for as long as it took
to fix mechanical problems. Hair did not observe Harris manifest
11
even adequate mechanical maintenance skills, Harris’s duties being
confined largely to electrical work. Hair echoed DiFrancesco’s
statements concerning the “mini-mill” concept and the employment
criteria prompted by it.
Mike Meadows, who actually made the decision to promote
Bagwell, stated in his deposition that he decided to go with
Bagwell based upon his twenty-one years of mechanical “hands-on”
experience, his steel background, his rapport with the other
mechanical maintenance technicians, and his initiative. Meadows
also noted approvingly that Bagwell had successfully assumed
Meadows’ position in the past when Meadows was required to be out
of the plant.9 Meadows related that Bagwell had been instrumental
in helping the plant get up to speed during its start-up phase,
helping solve mechanical problems that arose and intimately
familiarizing himself with new equipment. Meadows emphasized
Bagwell’s familiarity with the furnace and the welder, items
9
Harris suggests in brief that the MMC position was essentially
the same as that of Mechanical Engineer, the position Meadows had
prior to being promoted. Harris urges that because the MMC was
therefore a classical management position his greater supervisory
experience should have made him front-runner for the job. Both
Meadows and Moore related during their depositions, however, that
when Meadows was promoted to plant manager the position of
Mechanical Engineer was abolished and that of the MMC was created.
This was because at that point the “start-up” phase of the plant
had ended and the actual production phase had begun; thus, there
was less need for a supervisory engineer and more need for an
innovative team leader familiar with the day-to-day functioning of
the equipment on the line. Meadows connects this job function to
the “continuous improvement” concept, where problems are not
patched up but corrected through mechanical innovation.
12
essential to the plant’s production and maintenance functions.
Meadows conceded that Harris had more formal education and formal
supervisory experience than Bagwell, but countered that he found
Bagwell’s experience supervising mechanics at Bayou Steel more
pertinent than Harris’s generalized supervisory experience, which
involved electrical and mechanical personnel in a non-steel
setting.
Meadows observed that while he wanted the MMC to have some
supervisory experience, this qualification was not as significant
as the candidate’s ability to take a “hands-on” approach to
addressing the mechanical maintenance needs of the plant. This was
because, under the “continuous improvement” doctrine, it was
essential that the MMC be able to solve mechanical problems as they
arose. Intangibles such as teamwork, drive, and initiative were
also involved in his deliberations, as the MMC must not only
diagnose complications on the line but also rapidly and effectively
implement repair schemes to remedy problems as they arise, all
within the context of the “team” concept.
Nick Kincaid and Ray Davis, Electrical Maintenance Engineers
for Double G. and Harris’s immediate supervisors, submitted
affidavits and provided deposition testimony. Both Kincaid and
Davis emphasized Bagwell’s ability to solve problems and Bagwell’s
stellar performance as fill-in maintenance supervisor on occasions
when Meadows was out of the plant. Additionally, both men observed
that Bagwell was more willing to put in overtime hours than was
13
Harris and assessed Harris’s job performance as mediocre. Davis,
who is black, also asserted that Harris lacks sufficient
experience, most of his career having been spent in electrical
maintenance, to handle the mechanical maintenance position’s
demands. Davis noted that of four contemporaneous promotions from
hourly-wage to salaried status, three of those positions went to
black persons, with Bagwell being the only white person promoted.
Harris countered Double G.’s evidence with his own deposition
and accompanying affidavit, and the deposition testimony of Joe
Cowart, a mechanical technician at Double G. Harris posited that
he was better qualified than Bagwell and that, contrary to Double
G.’s belief, he in fact possesses extensive mechanical knowledge.
Harris was able to give one example of a mechanical modification he
had made which had improved the efficiency of the line. Harris
also suggested that his electrical experience would have made him
a better supervisor because of his superior ability to deal with
electrical as well as mechanical problems. Harris claimed that
“many” employees felt he should have received the promotion, but is
able to name only one, Joe Cowart.
Cowart testified during his deposition that had he made the
promotion decision Harris, who is his good friend, would have
received the promotion. Cowart also submitted an affidavit in
which he averred that “I do not believe that Eddie was not promoted
because of his race.”
We observe initially that Harris’s generous and largely
14
conclusory appraisal of his own abilities vis-a-vis Bagwell is for
the most part unsubstantiated. The evidence proffered by Double G.
contains numerous detailed accounts of Bagwell’s mechanical
ability, drive, and initiative; Harris’s submissions do not negate
or otherwise controvert this evidence, nor do they provide
comparable evidence on Harris’s behalf. Harris’s contention that
his electrical experience would make him more valuable is
inapposite; as we have already stated, it is Double G., not Harris
or this Court, which determines the parameters of its job
positions. Cowart’s unsubstantiated opinion is probably
inadmissible lay opinion and is in any case negated by the contents
of his affidavit.
Based upon the evidence adduced, we conclude that the district
court did not err. While Harris attempts in his brief to exalt his
(largely inapposite) academic achievement and greater supervisory
experience over Bagwell’s practical mechanical experience, the
record makes it clear that the position concerned was not a
classical management position but rather a hybrid of supervisory
and technical elements. It is also evident that Bagwell’s
mechanical knowledge, steel background, and related attributes
carried more weight, in light of the MMC’s duties and
responsibilities, than the limited mechanical and generalized
supervisory experience offered by Harris. Compare EEOC, 47 F.3d at
1446 (“we cannot say that it is irrational for an employer to give
15
less weight to general supervisory experience than actual field
experience where field experience is relevant to the position”);
Odom, 3 F.3d at 846 (“[t]he fact that [plaintiff]’s primary
experience did not match the position sought was legitimately
relevant and significant to the [employer]’s determination”).
Bagwell’s experience in the areas most relevant to the performance
of this job, particularly his demonstrated knowledge of the
machinery on the line and his problem-solving abilities, combined
with his drive, initiative, leadership, and communication skills
made him well-suited for the position of MMC. Even with all
reasonable inferences construed in his favor, Harris may at most be
viewed as possessing similar qualifications, but not superior, much
less clearly superior, qualifications, for the position of MMC.
In sum, our record review convinces us that Harris was not
“clearly better qualified” than Bagwell for the job. In so
stating, we decline Harris’s invitation to fine-tune or otherwise
vary the criteria which Double G. chooses to govern its promotion
decisions. See Odom, 3 F.3d at 847 (“we judges should be reluctant
to substitute our views for those of the individuals charged with
the evaluation duty by virtue of their own years of experience and
expertise in the field in question”). We reiterate that Title VII
“was not intended to be a vehicle for judicial second-guessing of
business decisions, nor was it intended to transform the courts
into personnel managers.” Thornburgh, 760 F.2d at 647 (citation
16
omitted). This argument must fail.
Our conclusion that Harris was not “clearly better qualified”
than Bagwell does not end our consideration of Harris’s claim, as
it is possible that Harris may be able to establish discriminatory
intent by other evidence indicating purposeful discrimination.
Amburgey, 936 F.2d at 814; Thornburgh, 760 F.2d at 647. We thus
turn to the other points raised in Harris’s brief as indicators of
discriminatory animus.
Harris points out, perhaps in an attempt to undermine
Bagwell’s qualifications for the position, that Bagwell was
dismissed from Bayou Steel in 1991 for “theft of company work time”
arising out of excessive use of the company phone, that Bagwell has
two prior criminal convictions, and that Bagwell stated in his
initial letter of interest to the company that he had twenty-three
years of experience, when in fact he had worked as a mechanic for
only twenty-one years. Assuming arguendo that Double G. had some
knowledge of these incidents at the time the employment decision
was made (see note 5, supra), Harris has not directed our attention
to any policy or practice of Double G. regarding such matters.
Double G.’s decision to forgive some or all of the past sins of its
employees’ is purely an internal matter as long as such practice is
administered in a fair and non-discriminatory manner. Because
Harris’s allegation does not suggest any instance of disparate
treatment, it cannot bolster his failing case. See Thomas v.
17
Metroflight, Inc., 814 F.2d 1506 (10th Cir. 1987); Jackson v. City
of Killeen, 654 F.2d 1181 (5th Cir. Unit A 1981). Insofar as
Harris suggests that Double G. must negatively consider such
matters in reaching its employment decisions, the contention is
without merit.
Harris next argues that discriminatory intent may be inferred
from the fact that two unqualified white applicants were
nonetheless interviewed for the MMC position. Mike Meadows’
deposition testimony recounts that these interviews were merely
“courtesy” interviews and that those interviewed were not seriously
considered for the position. Nothing in the record controverts
Meadows’ declaration, and of course these men did not receive the
promotion. Harris’s argument is insubstantial.
Harris also cites in his affidavit an incident unrelated to
his application for promotion to MMC as evidence of invidious
discrimination:
“I was discriminated against when I was told by Pat Van
Domelen, Human Resources Manager that Double G. was
looking for a degreed Electrical Engineer to supervise
the Electrical Maintenance Technicians. However, Nick
Kincaid, a white male was hired for the position and he
has no degree of any sort. Furthermore, I have more
years of Electrical Maintenance and supervisory
experience than does Nick Kincaid.”
There is no record evidence that Harris ever applied for the
position or followed up in any way his alleged conversation with
VanDomelen.
During her deposition, Pat VanDomelen, who had not worked in
18
the industrial field prior to her employment with Double G., did
not recall this particular conversation. She did state that her
initial impression had been that the company was seeking a degreed
engineer; and that this initial belief that a degree in electrical
engineering was required was due in part to her misapprehension of
the term “electrical engineer.” Until otherwise informed by Robert
McHenry, the company’s first president, VanDomelen labored under
the mistaken belief that in the industry this term denoted a
degreed engineer rather than a person with relevant work experience
in the field. Both she and Sam Moore testified that when the
company began receiving resumes McHenry and the project engineers
were looking for an individual with relevant work experience, and
that Kincaid, with three years towards a degree in electrical
engineering and a significant background in the field, fit the
bill.
Harris has presented nothing which controverts VanDomelen’s
admission that her statement to Harris, if it actually occurred,
was based upon her mistaken belief. Such an honest mistake cannot
support an inference of purposeful discrimination. See Kralman v.
Illinois Dept. of Veterans’ Affairs, 23 F.3d 150 (7th Cir.), cert.
denied, 115 S.Ct. 359 (1994); Waggoner v. City of Garland, Tex.,
987 F.2d 1160 (5th Cir. 1993). Accordingly, Harris’s contention is
meritless.
Harris next asserts that discriminatory animus may be inferred
from the fact that he was forced to take a Management Aptitude Test
19
as part of the promotion process, a test which Bagwell was not
required to take. The record reveals that Harris took this test as
part of the application process for a Team Coordinator position, a
production line job that, unlike the MMC position, requires more in
the way of classical management skills.10 All candidates for the
Team Coordinator position were required to take the MAT; there is
no evidence that any of the applicants for the MMC position were
required to take this test. Given the total absence of any
indication of disparate treatment, this submission cannot form the
basis for an inference of purposeful discrimination. Thomas;
Jackson.
In addition to his claim arising from being denied promotion
to MMC, Harris also contends that the district court erred by
viewing Double G.’s decision not to promote him to the position of
Electrical Maintenance Engineer only as general evidence of Double
G.’s discriminatory animus and not as a separate and distinct claim
for relief. The district court relied on Harris’s deposition
testimony that this lawsuit was based on the mechanical maintenance
position in finding that this prior incident was at best arguable
evidence of discrimination and not a separate and distinct claim.
Our review of the record also reveals statements by Harris’s
attorney during a deposition conveying the same impression.
Contrary to Harris’s contention, it was not the district court’s
10
Two other applicants, both black, were selected for this
position over Harris.
20
job to extrapolate all possible causes of action latent in his
pleadings; rather, once Double G. had presented sufficient evidence
to negate an element of Harris’s discriminatory employment
practices case, i.e., the existence of discriminatory intent, the
burden then shifted to Harris to go beyond the pleadings and
designate specific facts showing a genuine issue for trial.
Little, 37 F.3d at 1075. This Harris failed to do. Accordingly,
we reject his submission.11
Finally, Harris challenges as error the district court’s
refusal to allow an amendment to his pleadings. Harris moved to
amend his pleadings on May 29, 1996, long after discovery had ended
and nineteen days after summary judgment had been rendered and his
11
Although our conclusion is sufficient to defeat Harris’s
claim, we have already noted that the record does not indicate that
Harris ever applied for the position of Electrical Maintenance
Engineer. See Bernard v. Gulf Oil Corp., 890 F.2d 735, 745 (5th
Cir. 1989) (failure-to-promote plaintiff must prove, inter alia,
that he or she applied for an available position), cert. denied,
110 S.Ct. 3237 (1990), quoting Burdine, 101 S.Ct. at 1094. Even
had Harris applied for the position, however, we have no record
evidence regarding the criteria Double G. used in making that
decision. Given Kincaid’s three years of college courses towards
an Electrical Engineering degree and his extensive experience in
the electrical engineering field as related by the deposition
testimony of Sam Moore, Harris has not demonstrated he was “clearly
better qualified” for this position. Additionally, we reiterate
that there is nothing in the record to indicate that Pat
VanDomelen’s alleged imparting of false information was anything
other than a mistake. Assuming arguendo that Harris’s failure to
be promoted to the position of Electrical Maintenance Coordinator
is a separate claim, this record would not allow a reasonable juror
to find the discrimination Harris perceives.
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lawsuit dismissed.12 Affirming the district court’s grant of
summary judgment, we find no abuse of discretion in the district
court’s denial of Harris’s motion to amend his complaint. Moody v.
FMC Corp., 995 F.2d 63 (5th Cir. 1993). See also Little, 37 F.3d
at 1073 n.8.
For the preceding reasons, the judgment of the district court
is
AFFIRMED.
12
Harris’ motion to amend his complaint was filed a day after
his Rule 59 motion.
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