IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-10753
JOEL F. ARNOLD; ET AL.,
Plaintiffs,
JOEL F. ARNOLD; ALLEN MCDANIEL,
Plaintiffs-Appellants,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR,
Defendant-Appellee.
_______________________________
Appeal from the United States District Court
for the Northern District of Texas
_______________________________
May 25, 2000
Before WIENER, BENAVIDES, and PARKER, Circuit Judges.
BENAVIDES, Circuit Judge:
Appellants Joel Arnold (“Arnold”) and Allen McDaniel
(“McDaniel”) appeal the district court’s ruling as a matter of
law that neither of them was entitled to compensatory damages on
their claims for gender discrimination brought pursuant to 42
U.S.C. § 2000e-5. They also complain that the trial court erred
when it granted the United States Department of the Interior’s
(“DOI”) motion for summary judgment on their retaliation claim.
We affirm.
I. Factual and Procedural Background
Arnold and McDaniel, along with Bobby Maxwell (“Maxwell”),
all worked in the Dallas Compliance Division of the Mineral
Management Service (“MMS”), a division of the DOI. Each applied
for a GS-14 position as Supervisory Auditor in the Oklahoma City
office, and each was placed on the “best qualified list.” On the
basis of the numerical assessments of the candidates on the “best
qualified” list (which numbers themselves had been derived from
objective criteria), Gary Johnson (“Johnson”), the Chief of the
Dallas Compliance Division of the MMS, interviewed Pam Reiger
(“Reiger”) and Maxwell, who had the highest and second-highest
scores respectively. On December 30, 1994, Johnson hired Reiger,
who was an Asian-American woman.
Arnold, Maxwell, and McDaniel, all white men over the age of
forty, filed administrative complaints on February 2, 1995, March
7, 1995, and March 8, 1995, respectively. They each alleged that
race, gender, and age discrimination prevented their being hired
for the Supervisory Auditor position. After a hearing on April
29-30, 1996, the administrative judge issued an opinion on June
10, 1996 concluding that Arnold, Maxwell, and McDaniel had
presented direct evidence of gender discrimination: to wit,
Johnson had marching orders to hire a woman.
By letter dated August 14, 1996, the MMS announced its final
agency decision. It adopted the administrative judge’s finding
2
with respect to gender discrimination, but rejected its holding
on the race and age discrimination claims, deciding that the
evidence was insufficient. The MMS determined that Arnold,
Maxwell, and McDaniel were entitled to compete in an unbiased
selection process and resolved to reconduct the job search.
Arnold, McDaniel, and Maxwell filed suit on November 13,
1996. Sometime thereafter, Reiger requested and received a
transfer. Johnson selected Maxwell to replace Reiger.1 Johnson
then penned a justification memorandum, which Jim Shaw (“Shaw”),
the Associate Director for Royalty Management, approved. Despite
his promotion, Maxwell remained a plaintiff in the current suit.
Subsequent to Maxwell’s promotion, two of the four
Supervisory Auditors in the Dallas Compliance Division of the MMS
retired. After each retirement, Johnson elected to eliminate the
position, as opposed to hiring a successor. Johnson’s decision
in this regard was consistent with agency-wide down-sizing and
streamlining, and Johnson confirmed with Lucy Querques-Dennet,
Shaw’s replacement, that realignment in this manner was wholly
within his discretion. Johnson also obtained the unanimous
approval of the remaining Supervisory Auditors (including
Maxwell) when he decided to reduce the total number of
Supervisory Auditors.
1
Counsel for the DOI admitted at oral argument that Johnson
considered only Arnold, McDaniel, and Maxwell in selecting Reiger’s
replacement.
3
Convinced that this realignment was actually a form of
retaliation against them, Arnold and McDaniel amended their
complaint to state a claim for retaliation. The trial court
granted summary judgment to the DOI on the retaliation claim on
July 26, 1997. And at a pretrial hearing on April 14, 1999, the
district court determined that neither Arnold nor McDaniel could
present evidence at trial supporting their claim for compensatory
damages because Maxwell’s promotion precluded both Arnold and
McDaniel from proving that they would have netted the job “but
for” the discrimination. After a trial ending on April 23, 1999,
the jury found in favor of Arnold, McDaniel, and Maxwell on their
race and gender discrimination claims and awarded Maxwell
$300,000 in compensatory damages.2 The jury specifically
rejected the DOI’s defense that it would have failed to hire
Arnold and McDaniel even if gender had not been a consideration.
The district court awarded attorneys’ fees and costs to the
plaintiffs.
Arnold and McDaniel, though not Maxwell, timely filed this
appeal.
II. Standard of Review
Both the decision that, as a matter of law, Arnold and
McDaniel could not prove that they would have obtained the job
“but for” the discrimination and the grant of summary judgment on
2
The jury had actually awarded Maxwell $450,000, but the district
court capped that amount pursuant to Title VII’s limitations on damages.
4
the retaliation claim are issues of law to which we apply de novo
review. See Hall v. Thomas, 190 F.3d 693, 695 (5th Cir. 1999)
(summary judgment); Randel v. United States Dep’t of the Navy,
157 F.3d 392, 395 (5th Cir. 1998) (“Questions of law we review de
novo.”).
The district court should grant summary judgment where “the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.”
Fed. R. Civ. Proc. 56(c); see also Christopher Village, LP v.
Retsinas, 190 F.3d 310, 314 (5th Cir. 1999). “An issue is
genuine if the evidence is sufficient for a reasonable jury to
return a verdict for the nonmoving party.” Owsley v. San Antonio
Indep. Sch. Dist., 187 F.3d 521, 523 (5th Cir. 1999), petition
for cert. filed (Jan. 18, 2000) (No. 99-1205). “Although we
consider the evidence and all reasonable inferences to be drawn
therefrom in the light most favorable to the nonmovant, the
nonmoving party may not rest on the mere allegations or denials
of its pleadings, but must respond by setting forth specific
facts indicating a genuine issue for trial.” Rushing v. Kansas
City S. Ry. Co., 185 F.3d 496, 505 (5th Cir. 1999), petition for
cert. filed (Dec. 28, 1999) (No. 99-1090).
III. Compensatory Damages
5
Arnold and McDaniel argue that the district court erred when
it forbade them from presenting evidence on their claim for
compensatory damages and refused to submit the same to the jury.
Specifically, Arnold and McDaniel assert that, because the jury
rejected the DOI’s mixed motive defense, they are therefore
entitled to compensatory damages.
The DOI retorts that the district court acted properly
because compensatory damages are not available to plaintiffs who
cannot show that discrimination was the “but for” cause of the
failure to hire. The DOI further argues that the jury verdict,
coming as it did on the heels of the district court’s dismissal
of Arnold and McDaniel’s claims for compensatory damages, is a
nullity.
Title 42 U.S.C. § 1981a(a)(1) states “In an action brought
by a complaining party under . . . [§ 2000e-5] against a
respondent who engaged in unlawful intentional discrimination . .
. prohibited under . . . [§ 2000e-2] . . . , the complaining
party may recover compensatory and punitive damages . . ., in
addition to any relief authorized by . . . [§ 2000e-5(g)].” This
is the language that Arnold and McDaniel claim presumptively
entitles them to compensatory damages.3 They also urge us to
3
Arnold and McDaniel also rely on three EEOC agency decisions. See
Miller v. Babbit, 1999 WL 716389 (EEOC); Harris v. Glickman, 1998 WL 897680
(EEOC); Deauzat v. Dalton, 1997 WL 241520 (EEOC). These cases, broadly
speaking, stand for the proposition that, “even if a victim of a
discriminatory selection process is not awarded the position during re-
selection, he is nonetheless entitled to compensatory damages, if proven, for
having been subjected to a discriminatory selection process in the first
6
follow Willson v. Shannon, 857 F. Supp. 34 (S.D. Tx. 1994), aff’d
in part, 77 F.3d 473 (5th Cir. 1995) (unpublished), which, in the
course of denying a motion for a new trial, rejected the argument
that because “only one . . . position had been available for
either Plaintiff to fill, and that only one of the Plaintiffs
could have obtained the position even in the absence of
discrimination, . . . only one Plaintiff should be able to
recover damages[.]” Id. at 35. The court condemned this
argument as it “would allow . . . discriminat[ion] with respect
to any given position with impunity for near perpetuity, once
[the agency] has become liable for discriminating once.” Id.4
However, what Willson does not even mention (indeed Willson
instance.” Miller, 1999 WL 716389, at *4. However, one of the cases permits
an award of compensatory damages only “up until . . . the date on which the AJ
issued her RD finding that Complainant A was the best qualified candidate and
would have been selected for the position absent the agency’s discrimination.”
Harris, 1998 WL 897680, at *3. In other words, even under the EEOC decisions,
Arnold and McDaniel could not recover compensatory damages past the date on
which Maxwell received the position of Supervisory Auditor.
“An agency’s construction of a statute it is charged with enforcing is
entitled to deference if it is reasonable and not in conflict with the
expressed intent of Congress.” United States v. Riverside Bayview Homes,
Inc., 747 U.S. 121, 131 (1985); Gomez v. Department of the Air Force, 869 F.2d
852, 860 (5th Cir. 1989) (same). To the extent that these EEOC decisions
conflict with § 2000e-5(g)(2)(B)(ii), they are neither binding nor entitled to
deference.
4
Even were Willson persuasive, it is not binding for four reasons.
First, though Willson was affirmed in part in an unpublished opinion, pursuant
to Local Rule 47.5.3, “[u]npublished opinions issued before January 1, 1996 .
. . . should normally be cited only when the doctrine of res judicata,
collateral estoppel or law of the case is applicable.” None of those
doctrines is relevant here. Second, the unpublished affirmance did not
discuss Willson’s reasoning, but instead merely found the denial of a motion
for new trial to be not plain error. Third, Willson itself is factually
distinguishable, involving, as it appears to, successive denials of an open
job position to female applicants. Finally, as is detailed below, Willson
conflicts with language in De Volld v. Bailar, 568 F.2d 1162 (5th Cir. 1978),
and, under the rule of orderliness, to the extent that a more recent case
contradicts an older case, the newer language has no effect. See Teague v.
City of Flower Mound, Texas, 179 F.3d 377, 383 (5th Cir. 1999).
7
cites no law in support of its position), and what the DOI
highlights, is § 2000e-5(g)(2)(B)(ii), which states: “On a claim
in which . . . the respondent demonstrates that [it] would have
taken the same action in the absence of the impermissible
motivating factor, the court . . . . shall not award damages[.]”
This section establishes what is known as “the mixed motive
defense.” The DOI insists that this language absolves it of
liability for compensatory damages to Arnold and McDaniel because
the DOI would not have hired Arnold and McDaniel regardless of
their gender for the simple reason that it promoted Maxwell
instead. The DOI also relies on De Volld v. Bailar, 568 F.2d
1162 (5th Cir. 1978), in which a panel of this circuit stated:
It must be kept in mind that only one person could be
promoted to the position in question. Both Mexican-
American clerks [Trevino and De Volld] were concededly
treated discriminatorily in that both were passed over
because of their national origin. But the blunt fact
remains that only one of the two if either could
receive the promotion. When the Civil Service
Commission determined that the deserving candidate was
Trevino . . ., it became indisputable that whatever
discrimination [De Volld] suffered because of her
national origin, that discrimination no longer kept her
from the promotion. Put another way, whatever motives
the Commission may have had in choosing between two
people of the same ethnic origin, discrimination cannot
have been among them. . . . In this case the
administrative award to [Trevino] removes any
possibility that [De Volld] can prove that her
situation is due to discrimination against her as a
Mexican-American.
Id. at 1164-65; see also Pollard v. Grinstead, 741 F.2d 73,
75 (4th Cir. 1984) (“Pollard . . . did not . . . prove that the
agency discriminated against him when it [decided] . . . that
8
Webb was better qualified. Pollard was refused promotion, in the
words of the statute, for a ‘reason other than discrimination.’
The absence of discrimination when the agency weighed the
qualifications of the two applicants bars relief.” (quoting §
2000e-5(g))); Burks v. City of Philadelphia, 950 F. Supp. 678,
689 (E.D. Pa. 1996) (“[F]ederal appellate courts have followed
the rule that an employee should be denied damages if her
qualifications relative to another candidate were such that he or
she would not have received the position.”).
The statutory language and the case law set forth the rule
plainly enough: among multiple job applicants who fail to secure
the position because of discrimination, only those who can prove
that they would have gotten the position but for the
discrimination can recover compensatory damages. Arnold and
McDaniel are not candidates who, but for the discrimination,
would have received the Supervisory Auditor position for the
following reasons: (1) only one position was open; (2) Johnson
considered only Arnold, McDaniel, and Maxwell in selecting
Reiger’s replacement; and (3) neither Arnold nor McDaniel contend
that a discriminatory motivation tainted Johnson’s selection of
Maxwell. Moreover, it flies in the face of all reason that all
three would have been chosen for only one position. For these
reasons, Arnold and McDaniel cannot show that they would have
garnered the job but for the discrimination and consequently
cannot demonstrate that they are entitled to compensatory
9
damages. Therefore, the district court did not err.
Arnold and McDaniel emphasize the jury’s special finding
that the DOI would have hired them if gender had not been a
motivating factor precludes the DOI’s reliance on the mixed
motive defense. The jury’s special interrogatory, however, is
not determinative of this issue. Whether Arnold and McDaniel
could recover compensatory damages “was a matter of statutory
interpretation . . . properly decided by the court[.]” United
States v. Nolan, 136 F.3d 265, 271 (2d Cir. 1998). Having
correctly determined that § 2000e-5(g)(2)(B)(ii) precluded Arnold
and McDaniel’s entitlement to compensatory damages, the court
definitively disposed of the matter; a subsequent jury
pronouncement on an issue no longer in the case is of no effect.
We therefore find that the district court did not err in
ruling, as a matter of law, that Arnold and McDaniel could not
recover compensatory damages.
IV. Retaliation
Arnold and McDaniel identify the realignment as a form of
retaliation because it foreclosed promotion opportunities for
them, and it increased their workload. The DOI counters that the
realignment is not an ultimate employment decision, and
therefore, not an adverse action sufficient to state a prima
facie claim for retaliation. Moreover, the DOI urges that no
causal link exists between Arnold and McDaniel’s protected
10
activity and the realignment.
To state a claim for retaliation, a plaintiff must prove
that: (1) he engaged in protected activity pursuant to Title VII;
(2) he suffered an adverse employment action; and (3) a causal
nexus exists between the protected activity and the adverse
employment action. See Messed v. Men, 130 F.3d 130, 140 (5th
Cir. 1997). Assuming arguendo that the realignment can be
properly characterized as an adverse employment action, Arnold
and McDaniel have not established any causal link between their
protected activity and the realignment. Though they argue
vigorously that Johnson flouted agency procedures for conducting
the realignment, Johnson, in fact, had total discretion in making
the adjustment. Even so, Johnson obtained the approval of his
superior and the other Supervisory Auditors before eliminating
the positions. The unexpected retirements of two Supervisory
Auditors—not the protected activity of Arnold and
McDaniel—appears to have prompted the realignment, and Arnold and
McDaniel present no evidence inconsistent with that proposition.
Therefore, the district court did not err when it granted the DOI
summary judgment on the retaliation claim.
V. Conclusion
Because we find that the plain language of § 2000-
e5(g)(2)(B)(ii) forbids an award of compensatory damages to a job
applicant who, despite unlawful discrimination, still would not
11
have received the job, we hold that the district court did not
err when it ruled as a matter of law that Arnold and McDaniel
were not entitled to compensatory damages.
We further hold that Arnold and McDaniel did not demonstrate
a causal link between their protected activity and the
realignment that foreclosed their opportunities for promotion.
The district court therefore did not err when it granted the
DOI’s motion for summary judgment on the retaliation claim.
AFFIRMED
12