IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-50856
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DOROTHY BLOW,
Plaintiff-Appellant,
versus
CITY OF SAN ANTONIO, TEXAS,
Defendant-Appellee.
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Appeal from the United States District Court for the
Western District of Texas
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January 8, 2001
Before JOLLY, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Dorothy Blow, an African-American, has been employed since
1988 as a librarian for the City of San Antonio Public Library.
When she applied for a supervisory position in 1997, the library
hired a white male from outside the department. Believing that the
library had failed to promote her because of her race, Blow filed
suit against the City of San Antonio under Title VII of the 1964
Civil Rights Act. The City argued that the supervisory position
had already been filled by the time the hiring committee received
Blow’s application. The district court concluded that Blow had not
presented sufficient evidence that would allow a jury to conclude
that the City’s reason for not promoting her was a pretext for
racial discrimination. The court granted the City’s motion for
summary judgment and dismissed Blow’s claims. We reverse and
remand.
I
The City of San Antonio Public Library hired Dorothy Blow in
1988 for the position of “Librarian I” in the Business and Science
Department. Blow claims that from the beginning of her employment,
she has been subjected to racially insensitive remarks and
treatment. She further alleges that the library has required other
African-American employees to transfer to smaller branches in
neighborhoods with a high concentration of minorities.
In early 1995, Blow joined the newly created Government
Documents Department and was promoted to the level of Government
Documents Librarian II (“GDL-II”). During her first few months in
the department, Blow received favorable performance appraisals.
In late 1995, the library created a new supervisory position,
Government Documents Librarian III (“GDL-III”). Blow applied for
the job and was granted an interview, but the library instead hired
Owen Ellard, a Librarian II from another department. Blow
confronted Craig Zapatos, the library supervisor, and demanded to
know why she had not been promoted. Zapatos explained that Ellard
was more experienced in managing a government documents collection
2
and was proficient in using the internet to retrieve government
information.
Ellard’s tenure as GDL-III lasted only ten months, from
January to November 1996. Ellard was Blow’s immediate supervisor.
According to Blow, Ellard treated her disrespectfully and assigned
her menial tasks, such as shelving and stacking, that were usually
performed by subordinate library assistants. On one occasion, Blow
alleges, Ellard physically threatened her.
When Ellard resigned in November 1996, Craig Zapatos named
Jana Prock interim GDL-III. Blow was unaware that Prock and
Zapatos were the only members of the “hiring team” responsible for
finding a permanent GDL-III. Blow claims that she periodically
asked Prock whether she hoped to keep the GDL-III position
permanently, and in January 1997, while asking Prock again about
her intentions, Blow announced that she was interested in the job.
At this point, Prock asked Blow directly whether she thought she
was qualified to be a GDL-III. Blow listed her qualifications and
even asked to list Prock as a reference. In spite of these
conversations about Blow’s interest in the position, Prock never
told her that the library had posted a job opening announcement and
was searching for a permanent GDL-III.
Blow learned of the job posting over the internet in late
January 1997 and decided to formally apply about a month later.
3
She found the job opening announcement and called the City
personnel department to confirm that the position was still open
and that applications were still being accepted. On March 3, 1997,
she delivered her application to the City’s personnel department.
To make sense of what happened next, Blow argues, we must
understand the City of San Antonio’s hiring procedures. Blow
points to documents on the City’s website and to the City’s
detailed “Administrative Directive 4.16" for an explanation of the
city’s normal hiring process. The stated purpose of these written
hiring procedures is “to insure fair and impartial . . . placement
of qualified applicants.” When a department has an open position,
the department is required to set qualifications and publish a
recruitment announcement. Significantly, each department is
responsible for insuring “that each and every employee is aware” of
recruitment announcements within his or her department.
Applications are received and initially processed by a central
personnel department. “After an appropriate number of applications
have been received for the position involved, [an] eligibility list
is then established.” It was customary for eligibility lists for
librarian positions to be forwarded to Martha Montemayor, the
senior administrative assistant in the library department, who
would then forward the lists and applications to Craig Zapatos, the
4
library personnel director, or to the hiring team for particular
positions.
There are two hiring preferences relevant to this case.
First, qualified city employees are given a preference when
establishing eligibility lists. Apparently, this means that city
employees are placed at the top of the eligibility list with the
designation “C.E.” next to their names. Second, the City adopted
an affirmative action plan in 1994-1995 that establishes
departmental “goals” for “job groups in which there is significant
minority or female underutilization.” Blow presented some evidence
that black females are underrepresented in the library system, but
the City failed to produce requested documents pertaining to the
library department’s “action goals” for 1997.
Blow, however, was never in the running. Before Blow
submitted her application for the GDL-III position on March 3,
Wilson Plunkett had submitted an application on February 10, 1997.
Plunkett’s application appears to have been misclassified by the
City personnel department as an application for entry level
Librarian I position. When Montemayor received it and noticed the
error, she forwarded his application to Prock, who scheduled an
interview. (The City failed to produce Plunkett’s application and
is not part of the record.) Prock and Zapatos interviewed Plunkett
on March 28 and recommended that he be hired. Blow asserts that
5
shortly after Plunkett’s interview, Prock advised Blow that “now is
a good time for you to submit your application.” After receiving
approval from the head of the library department, the library
officially extended an offer to Plunkett in April 1997.
On April 22, the city personnel department finally issued an
eligibility list for the GDL-III position. There were ten names on
the list, with Dorothy Blow’s at the top with the “C.E.”
designation. Because Plunkett had already been selected, Blow was
not considered for the position.
II
Blow filed a complaint with an in-house EEO officer, who found
no discrimination in the handling of the application. Blow then
filed a complaint with the EEOC on July 10, 1997, alleging that she
was denied the promotion to GDL-III in both 1996 and 1997 on
account of her race. Before completing its investigation, the EEOC
issued a right to sue letter, and Blow filed suit against the City
of San Antonio in state court in October 1997. Blow alleged racial
discrimination in violation of the Civil Rights Act of 1964, 42
U.S.C. § 2000 et. seq., because of the City’s failure to promote
her to the position of GDL-III. The City then removed the case to
the United States District Court for the Western District of Texas.
After she filed suit, Blow filed another complaint with the
EEOC alleging that she had received a low work performance
6
evaluation because she had instituted this suit. At her request,
the EEOC issued a right-to-sue letter on the retaliation claim, and
Blow amended her complaint to add this claim.
The City filed its motion for summary judgment on January 25,
1999. The district court referred the matter to a magistrate judge,
who recommended that all claims be dismissed. Blow filed
objections to the magistrate judge’s report, and the City
responded. On July 30, 1999, the district court accepted the
magistrate judge’s recommendation and issued an order granting the
City’s motion for summary judgment and dismissing all of Blow’s
claims.
III
The ultimate issue raised on appeal is whether the district
court erred in granting the City’s motion for summary judgment on
Blow’s 1997 Title VII failure to promote claim.
A
Summary judgment is appropriate only if the full record
discloses “no genuine issue as to any material fact and . . . the
moving party is entitled to a judgment as a matter of law.” FED.
R. CIV. P. 56. When a district court has granted a motion for
summary judgment, we review the question de novo, applying the same
substantive test set forth in Rule 56. Horton v. City of Houston,
179 F.3d 188, 191 (5th Cir. 1999). In reviewing the record as a
7
whole, we view all facts in the light most favorable to the non-
moving party and do not defer to any factual assumptions the
district court has apparently made. Cardinal Towing & Auto Repair,
Inc. v. City of Bedford, 180 F.3d 686, 690 (5th Cir. 1999); New
York Life Ins. Co. v. Baum, 707 F.2d 870, 871 (5th Cir. 1983) (on
rehearing).
B
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973),
and subsequent decisions, the Supreme Court has allocated the
burden of production in Title VII cases. The plaintiff must first
establish a prima facie case of discrimination. In a failure to
promote claim under Title VII, a plaintiff must show that: (1) she
was within a protected class; (2) she was qualified for the
position sought; (3) she was not promoted; and (4) the position she
sought was filled by someone outside the protected class. See
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53
(1981); Grimes v. Texas Dep’t of Mental Health & Mental
Retardation, 102 F.3d 137, 140 (5th Cir. 1996). It is undisputed
that Blow, an African-American, is a member of a protected class;
that she was qualified for the advertised GDL-III position and was
placed on the April 1997 eligibility list; that she submitted an
application to the City’s personnel department on March 3, 1997;
that she was not promoted to the post; and that the library hired
8
a white male librarian to fill the position. Without question,
then, Blow established her prima facie case under McDonnell
Douglas.
C
Establishing the prima facie case raises an inference of
unlawful discrimination, and the burden of production then shifts
to the defendant to proffer a legitimate, nondiscriminatory reason
for the challenged employment action. Burdine, 450 U.S. at 254.
The City’s proffered nondiscriminatory explanation is quite simple:
Blow did not file her application in time for it to be considered.
As the district court concluded, by the time Montemayor received
Blow’s application, the job was already filled.1 There is some
support for the district court’s interpretation of the facts, but
under Rule 56, it must be the only reasonable interpretation.
Blow argues that the evidence supports another, equally
plausible explanation. According to Blow, Prock and Zapatos
deliberately failed to publicize the job opening within the
1
The district court treats this timeliness question as part of
Blow’s prima facie case. The court found that Blow had not
“sought” the job because she had applied for the GDL-III position
at a time when the library was no longer seeking applications for
that position. This approach is dubious because the crux of Blow’s
argument is that the library disregarded usual hiring practices and
hired the first person they interviewed in order to avoid promoting
her. The City’s contention that Blow’s application was untimely is
properly regarded as a nondiscriminatory reason for not promoting
her.
9
department (as Administrative Directive 4.16 requires) in order to
prevent Blow from applying; Prock not only concealed the job
opening from her but also actively discouraged her application;
Prock knew that Blow, as a city employee, would be given
preference in hiring; Prock received Plunkett’s application--which
arrived in an unusual manner and has apparently been misplaced--
and quickly scheduled an interview with him; soon after Plunkett
was interviewed and chosen for the job, Prock told Blow that “now
is a good time for you to submit your application.” Considering
all the facts and drawing all inferences in favor of Blow, one is
simply not required to believe the City’s proffered reason.
The facts may be interpreted to support Blow’s contention
that Prock and Zapatos were motivated by some animus toward her.
Because they knew that Blow, as a city employee and a minority,
might be given favorable treatment in hiring, Prock and Zapatos
hired the first qualified person they interviewed. According to
Blow, hiring Plunkett without considering other candidates
reflected an intentional and deliberate departure from stated
policies that necessarily had the effect of ensuring that Blow
would not be hired.
D
After reviewing the record, the district court decided to
grant the City’s motion because it found “no summary judgment
10
evidence” connecting the City’s 1997 hiring decision to Blow’s
race. The district court’s reasoning is not consistent with the
Supreme Court’s decision in Reeves v. Sanderson Plumbing Products,
Inc., 120 S.Ct. 2097, 2108-09, 147 L.Ed.2d 105 (2000).2
Reeves held that a trier of fact may infer the ultimate fact
of discrimination from the falsity of the employer's explanation.
Id. at 2108.
“[R]ejection of the defendant's proffered reasons will
permit the trier of fact to infer the ultimate fact of
intentional discrimination." [St. Mary’s Honor Center v.
Hicks, 509 U.S. 502,] 511, 113 S.Ct. 2742 [(1993)].
Proof that the defendant's explanation is unworthy of
credence is simply one form of circumstantial evidence
that is probative of intentional discrimination, and it
may be quite persuasive. . . . Such an inference [that
the employer is dissembling to cover up a discriminatory
purpose] is consistent with the general principle of
evidence law that the factfinder is entitled to consider
a party's dishonesty about a material fact as
"affirmative evidence of guilt." . . . . Thus, a
plaintiff's prima facie case, combined with sufficient
evidence to find that the employer's asserted
justification is false, may permit the trier of fact to
conclude that the employer unlawfully discriminated.
Id. at 2108-09. The Court went on to explain that the Fifth
Circuit had erred in assuming that a plaintiff must introduce
2
Although Reeves concerned Rule 50 rather than Rule 56, the
Court made clear that “the standard for granting summary judgment
‘mirrors’ the standard for judgment as a matter of law, such that
‘the inquiry under each is the same.’” Reeves, 120 S.Ct. at 2110
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106
S.Ct. 2505, 91 L.Ed.2d 265 (1986).
11
“additional, independent evidence of discrimination” in order to
withstand a motion under Rule 50 or Rule 56.
Blow’s case presents us with a straightforward application of
Reeves. On the record before us: The plaintiff has proved her
prima facie case; she has presented sufficient evidence to create
a material issue of disputed fact as to whether the employer’s
explanation was false; and there are no unusual circumstances that
would prevent a rational fact-finder from concluding that the
employer’s reasons for failing to promote her were discriminatory
and in violation of Title VII.3
IV
For the reasons stated above, we REVERSE the district court’s
order granting summary judgment in favor of the City of San Antonio
and REMAND the case for further proceedings.
REVERSED and REMANDED.
3
As examples of these unusual circumstances, the Court
explained that “an employer would be entitled to judgment as a
matter of law if the record conclusively revealed some other,
nondiscriminatory reason for the employer's decision, or if the
plaintiff created only a weak issue of fact as to whether the
employer's reason was untrue and there was abundant and
uncontroverted independent evidence that no discrimination had
occurred.” Id. at 2109.
12
EMILIO M. GARZA, Circuit Judge, dissenting.
The majority’s opinion leaves the jury to speculate on Dorothy
Blow’s subjective opinion that the City of San Antonio’s alleged
bureaucratic snafu amounted to a pretext for discrimination. I
believe that Blow has failed to allege any competent evidence that
the City employees responsible for hiring had actual knowledge of
the bureaucratic error in forwarding the applications. Without
such evidence, Blow fails to rebut the City’s proffered non-
discriminatory reason of bureaucratic mistake, and her Title VII
claim cannot survive summary judgment.
The crux of Blow’s discrimination claim is that the City
violated its internal policy in hiring Wilson Plunkett without
regard to the Librarian III eligibility list. Administrative
Directive 4.16 states that the City should interview and hire an
employee from a compiled list of eligible employees. The City
admits that it did not follow its normal hiring policy, but
attributes it to an administrative error. Normally, the Human
Resources Department collects applications for a particular
position, creates an eligibility list for it, and then forwards the
applications along with the eligibility list to Martha Montemayor,
an administrative assistant at the Public Library Department. In
turn, Montemayor forwards only the applications to Craig Zapatos
and Jana Prock, the City employees responsible for interviewing
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Librarian III applicants. In the case of Plunkett, however, the
Human Resources Department and Montemayor mistakenly forwarded only
his application to Zapatos and Prock. Blow’s application, as well
as those of nine other applicants, was not sent to Montemayor until
after Plunkett had been interviewed.
Significantly, Zapatos and Prock have said that when they
interviewed Plunkett, they did not know of this bureaucratic error
committed by Montemayor and the Human Resources Department.
Conversely, Montemayor has said that she did not have any contact
with either Zapatos or Prock regarding Blow. Blow has also
admitted that Zapatos and Prock did not know that she had applied
for the job. Without any evidence linking Zapatos and Prock with
Montemayor and the Human Resources Department, Blow simply fails to
show that the City’s alleged bureaucratic error was, in fact, a
pretext for discrimination.
I agree with the majority that Blow only needs to provide
evidence that “the employer’s proffered explanation is unworthy of
credence” to show pretext under the McDonnell-Douglas burden-
shifting framework. Reeves v. Sanderson Plumbing Prod., 120 S.Ct.
2097, 2106 (2000) (citations omitted). Blow has not met this
Reeves standard. She has failed to adduce competent evidence to
raise a genuine issue of material fact of whether the City’s
proffered non-discriminatory reason was pretextual. She does not
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provide any evidence that Prock and Zapatos knew that she had
applied for the job or that they knew of the administrative error.
Blow instead offers only her subjective opinion that she is the
victim of racial discrimination. See Lowery v. Univ. of Houston,
Clear Lake, 82 F.Supp.2d 689, 696 (S.D.Tex. 2000) (“Speculation and
belief are insufficient to create a fact issue as to pretext, and
pretext cannot be established by mere conclusory statements of a
plaintiff who feels that she has been discriminated against.”)
Accordingly, I respectfully dissent.
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