IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 00-50226
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JOSEPHINE RIOS,
Plaintiff-Appellant,
v.
CHARLES O. ROSSOTTI, Commissioner
of the Internal Revenue Service;
UNITED STATES OF AMERICA,
Department of the US Treasury,
Defendants-Appellees.
---------------------------------
Appeal from the United States District Court
for the Western District of Texas
---------------------------------
May 17, 2001
Before, KING, Chief Judge, ALDISERT* and BENAVIDES, Circuit
Judges.
BENAVIDES, Circuit Judge:
Plaintiff, Josephine Rios, brought claims of discrimination
and retaliation against the Internal Revenue Service (“IRS” or
“Service”) based on her non-selection for position vacancies
within the agency. On appeal, she contends that the district
court erred in granting summary judgment against her claims.
Plaintiff argues that she created a genuine issue of material
*
Circuit Judge of the Third Circuit, sitting by designation.
fact as to the Service’s motives in not selecting her to fill the
position vacancies. We AFFIRM the judgment of the district
court.
BACKGROUND
Rios filed her original complaint in federal court on
September 23, 1998. Plaintiff filed her Second Amended
Complaint, the one at issue in the present case, on April 1, 1999
alleging discrimination based on age, race, national origin, and
gender and retaliation for engaging in activities protected under
Title VII. Defendant, the IRS Tax Commissioner, filed a motion
to dismiss the Second Amended Complaint based on Plaintiff’s
failure to name the Secretary of the Treasury as the proper party
in the suit. Plaintiff acknowledged her error and the district
court granted leave to amend the complaint. Defendant then filed
for summary judgment against Plaintiff’s underlying claims.
Plaintiff filed a response and sought leave to file a Third
Amended Complaint.
The district court denied Plaintiff’s motion to file a Third
Amended Complaint, ruling that Plaintiff was “attempting to bring
in causes of action which were not considered administratively,
or were the focus of agency grievance processes or prior EEO
complaints. As such, she is precluded from bringing them in this
cause of action.” At this time, the district court also denied
Defendant’s motion for summary judgment against Plaintiff’s
claims. However, upon later reconsideration, the district court
2
granted Defendant’s motion as to all of Plaintiff’s claims. The
district court concluded that Plaintiff was unable to link the
allegedly unfriendly atmosphere at the IRS to her non-selection.
Moreover, the alleged negative comments toward Plaintiff made by
individuals not connected to the selection process and the
subjective perceptions of her co-workers that she had been
treated unfairly were insufficient to raise a fact issue on
pretext. Plaintiff filed a timely notice of appeal from the
district court’s dismissal.
FACTS
Plaintiff joined the Internal Revenue Service, a division of
U.S. Treasury Department, in 1984. Plaintiff began her
employment with the Service as a tax analyst. Based on her
performance during the first year, the IRS was prepared to
terminate her. In partial settlement of an EEO complaint filed
by Plaintiff, she was retained by the Service but demoted to the
position of group secretary. She worked as a group secretary
until she was promoted to accounting aide six months prior to her
application for the current vacancies. During her employment
with the IRS, Plaintiff filed a number of grievances with the EEO
and her union. These grievances alleged that she was
discriminated against in her annual performance reviews and she
was improperly denied awards, promotions, and pay because of
discrimination. She filed her instant suit when she was not
selected to fill two job vacancies for which she applied.
3
Generally, the IRS conducts its hiring through the posting
of vacancy announcements. A vacancy announcement contains a
description of the position, its requirements, and potential
posts of duty in which the position will be created. In August
1994, the IRS posted two vacancy announcements, one for positions
as a Tax Auditor and one for positions as an Internal Revenue
Agent. The announcements stated that the number of positions to
be filled was “1 or more.” In posting its vacancy announcements,
the IRS listed several posts of duty in Texas including Austin,
San Antonio, Corpus Christi, El Paso, Harlington, and McAllen.
Interested candidates were to submit their performance appraisal
for the past year and an application setting forth their relevant
education, training, and experience. The applicants were also to
designate the posts of duty for which they were applying.
Plaintiff’s application listed San Antonio and Corpus Christi.
Originally, the Service designated four tax auditor positions for
Austin, two for San Antonio, two for El Paso, one for Corpus
Christi, one for McAllen, and one for Harlington. After the
applications were accepted, but before a hiring decision was
made, the IRS transferred the Corpus Christi opening to Austin
and the Harlington opening to San Antonio.
According to affidavits submitted by Defendant, there were
145 applicants for the Tax Auditor position and there were 70
applicants for the Internal Revenue Agent position. In order to
narrow the field of applicants, a three-member ranking panel
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created a Best Qualified List. The criteria for the List
included scores from the applicant’s past performance review,
awards received, and a third less concrete prong defined as
potential for success. The third prong considered past job
experience, education, training, and other indicators of future
success in the position.1 Based on their scores under the
criteria above, the applicants for each post of duty were rank
ordered. A pre-determined number of applicants were then
included on the Best Qualified List. The Best Qualified List was
given to the two selection officials with the ultimate decision-
making authority. The selection officials chose employees from
the Best Qualified List to fill the vacancies.
Plaintiff ranked fourth out of five candidates for the
Corpus Christi tax auditor position and eighth out of twelve
candidates for the San Antonio tax auditor position. The Best
Qualified List for Corpus Christi included the top four
candidates; thus, Plaintiff made the List. However, as discussed
previously, the Service elected to transfer the Corpus Christi
opening to Austin. Notably, the tentative position in Harlington
was also transferred to another city, San Antonio. Because there
1
The affidavit of Ms. Chinn, a ranking panel official, stated
that “[t]he best qualified applicants received higher ratings of
potential because they had recent experience and excellent
performance in very technical positions, including tax auditor,
taxpayer service, engineering and higher graded tax examiner
positions.”
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is no evidence that such decisions were improperly motivated, we
consider Plaintiff’s claims only as to the openings in San
Antonio. Plaintiff did not make the Best Qualified List for San
Antonio. She challenges this omission on several grounds: first,
the ranking panel improperly discounted her education,
experience, and training based on discrimination and retaliation;
and second, she was discriminated and retaliated against in her
performance evaluations and receipt of awards, both of which were
substantial factors in compiling the Best Qualified List.
ANALYSIS
We review a district court’s decision to grant summary
judgment de novo, applying the same familiar standard in Federal
Rule of Civil Procedure 56(c). Norman v. Apache Corp., 19 F.3d
1017, 1021 (5th Cir. 1994). In so doing, we view all evidence in
the light most favorable to the party opposing the motion and
draw all reasonable inferences in that party’s favor. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097,
2110 (2000). In support of its motion for summary judgment,
Defendant submitted affidavits from the three members of the
ranking panel and the two selectors. The affidavits describe the
selection process as objective and impartial. Each panelist and
selector swears that Plaintiff’s race, gender, age, or prior
complaints to the EEO had no bearing in the hiring decision. One
ranking official does, however, acknowledge that she was aware of
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Plaintiff’s prior involvement in the EEO process.
Discrimination Claim
Rios’ claims of discrimination are governed by the
tripartite burden-shifting test established by McDonnell-Douglas
v. Green, 411 U.S. 792, 802-04, 83 S.Ct. 1817 (1973). Under this
test, if Rios establishes a prima facie case of discrimination,
the burden shifts to the Service to articulate a legitimate, non-
discriminatory reason for not selecting Rios. Id. If the
Service satisfies this burden, the burden shifts back to Rios,
who must prove that “the legitimate reasons offered by the
defendant [for not selecting her] were not its true reasons, but
were a pretext for discrimination.” Reeves, 120 S.Ct. at 2104-
05. Plaintiff can establish pretext either directly, by showing
a discriminatory reason motivated management, or indirectly, by
showing that the reasons given for management’s actions are
simply not believable. Texas Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). In either respect, “[t]he ultimate
burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all
times with the plaintiff.” Reeves, 120 S.Ct. at 2106 (citing
Burdine, 450 U.S. at 253). In addition to discrimination claims
based on race and national origin, Plaintiff brought claims for
age and gender discrimination. She presents no evidence
supporting these latter claims. The district court, therefore,
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properly dismissed them.
In order to establish a prima facie case of discrimination
based on race or national origin, a plaintiff must usually show
that (1) she suffered an adverse employment action; (2) she was
qualified for the position; (3) she was within the protected
class at the time of the decision; and (4) the person selected
was not within the protected class. Plaintiff satisfies the
first three prongs. As to the fourth prong, the IRS concedes
that while they promoted and hired numerous Hispanic employees to
fill openings throughout the state, there was at least one
position for which Plaintiff applied that a Hispanic applicant
was not selected. Thus, Plaintiff has made her prima facie case.
Moving beyond Plaintiff’s prima facie case, Defendant has
met its burden of producing a non-discriminatory reason for
Plaintiff’s demotion. In this regard, Defendant relies on its
procedures for creating the Best Qualified List to show that Rios
was not as qualified for the desired positions as were those
selected. This contention satisfies Defendant’s burden as it “is
one of production, not persuasion . . . [and] can involve no
credibility assessment.” Reeves, 120 S.Ct. at 2106. As is
usually the case, the focus then becomes the third part of the
McDonnell-Douglas test – whether Plaintiff met her burden of
showing that Defendant’s explanation was merely a pretext for the
actual reason she was not selected – discrimination.
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As evidence of discrimination, Plaintiff offers her own
affidavit and those of several past and current IRS employees.
Their testimony tends to show that a general atmosphere hostile
towards Hispanic employees existed at the IRS; specific comments
had been made by IRS officials about Rios and her accent; and
Rios was perceived by coworkers to be highly competent. In her
own affidavit, Plaintiff testifies about numerous EEO complaints,
union grievances, and lawsuits she has filed since 1985.
Defendant is correct in its response that Plaintiff cannot use
this forum to litigate these prior claims. The issue though is
whether these prior allegations serve as competent evidence as to
the question presented in this matter – whether Defendant
discriminated in not selecting Plaintiff for the Best Qualified
List. On this issue, the past allegations coupled with the
affidavit testimony could evince of a pattern of discrimination
sufficient to undermine Defendant’s non-discriminatory reason.
See McDonnell-Douglas, 411 U.S. at 804-05, 93 S.Ct. 1817, 1826
("[E]vidence that may be relevant to any showing of pretext
includes . . . [the company’s] general policy and practice with
respect to minority employment.”); United States Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478,
1482 (1983) (holding that because “[t]here will seldom be
‘eyewitness’ testimony to the employer’s mental process,”
evidence of the employer’s discriminatory attitude in general is
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relevant and admissible to prove discrimination).
Ultimately, however, Plaintiff has failed to carry her
burden. In determining whether summary judgment was appropriate,
we consider “the strength of the plaintiff’s prima facie case,
the probative value of the proof that the employer’s explanation
is false, and any evidence that supports the employer’s case and
that properly may be considered on a motion for judgment as a
matter of law.” Reeves, 120 S.Ct. at 2109. Plaintiff’s evidence
of racial discrimination is presented in her own testimony and
that of Olivia Saenz and Raymund Gil Villanueva. The Supreme
Court has assessed the value of discriminatory remarks by
examining whether the remarks indicated invidious animus and
whether the speaker of the remarks was “principally responsible”
for the adverse employment action. See Reeves, 120 S.Ct. at
2110; see also Russell v. McKinney Hosp. Venture, 235 F.3d 219,
225 (5th Cir. 2000) (stating that “[t]he value of
[discriminatory] remarks is dependent upon the content of the
remarks and the speaker” (citing Reeves)). The strongest
evidence presented by Plaintiff is the declaration of Ms. Saenz.
Ms. Saenz cites many disparaging and racially insensitive remarks
made by individuals within the Service, including managers and
supervisors. None of these remarks, however, are attributed to
individuals with decision making authority in this case (the
three-member ranking panel). In addition, Plaintiff did not
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present evidence that could lead a rational jury to find that the
individuals who uttered those remarks possessed leverage, or
exerted influence, over the panel. See Russell, 235 F.3d at 227
(stating that “it is appropriate to tag the employer with an
employee’s [discriminatory] animus if the evidence indicates that
the worker possessed leverage, or exerted influence, over the
titular decisionmaker”). Thus, Plaintiff failed to create a jury
issue that Defendant’s proffered reason was a pretext for
discrimination. See Crawford v. Formosa Plastics Corp., 234 F.3d
899, 903 (5th Cir. 2000) (discussing evidentiary burden on
Plaintiff to overcome summary judgment).
Retaliation Claim
Plaintiff also argues that her failure to be selected was in
retaliation for engaging in activities protected under Title VII.
Title VII makes it unlawful for an employer to discriminate
against an employee “because [that employee] has opposed any
practice made an unlawful employment practice by this subchapter,
or because [the employee] has made a charge . . . under this
subchapter.” 42 U.S.C. § 2000e-3(a). The framework for
analyzing a retaliation claim is the same as that used in the
employment discrimination context. See Sherrod v. American
Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998). Hence, once
the plaintiff establishes a prima facie case of unlawful
retaliation, the burden shifts to the defendant to articulate a
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legitimate, nondiscriminatory reason for the adverse employment
action. Id. Finally, the plaintiff must then “adduce sufficient
evidence that would permit a reasonable trier of fact to find
that the proffered reason is a pretext for retaliation.” Id.
For retaliation claims, this final burden requires the
plaintiff to demonstrate that the adverse employment action would
not have occurred “but for” the protected activity. Id. Thus,
even if retaliation was a motivating factor in not selecting
Plaintiff, “no liability for unlawful retaliation arises if the
employee would [not have been selected] even in the absence of
the protected conduct.” Long v. Eastfield College, 88 F.3d 300,
305 n.4 (5th Cir. 1996). As applied to the present case,
Plaintiff must produce evidence showing that “but for”
retaliation, she would have made the Best Qualified List for the
San Antonio vacancies. Defendant contends that Plaintiff cannot
make the required “but for” showing because those individuals
selected were more qualified than Plaintiff. This Court affords
a high degree of deference to employers in their hiring and
promotion decisions. In order to be probative on the issue of
retaliation, “the qualifications [must be] so widely disparate
that no reasonable employer would have made the same decision.”
Deines v. Texas Dept. of Protective Regulatory Servs., 164 F.3d
277, 281 (5th Cir. 1999).
In this case, Plaintiff faces an uphill battle in showing
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that the ranking panel retaliated against her in compiling the
Best Qualified List. On its face, the factors used in creating
the List are rational and non-discriminatory. Plaintiff argues
that in applying those factors, the panel discounted her
qualifications and experience in retaliation for her prior
filings. She notes that none of the applicants who made the Best
Qualified List had prior EEO activity. As evidence of
Defendant’s retaliatory motive, Plaintiff offers her own
testimony and the affidavits of other current and former IRS
employees – Olivia Saenz, Raymund Gil Villanueva, Cynthia T.
Alvarado, Linda Chavez, Guadalupe Ramos, and Jane Castillo.2 The
affidavits contain numerous alleged instances of retaliation
within the IRS. A jury could not reasonably conclude that the
affidavits are sufficient to demonstrate pretext for retaliation
in this case. Evidence of retaliation in other circumstances may
of course be probative as to pretext; however, such evidence
creates only a weak issue of pretext when it is unsupported by
evidence reflecting more precisely on the situation at issue in
the case. As these affidavits did not concern the individuals
2
The district court afforded very little weight to Plaintiff’s
affidavits concluding that they “represent nothing more than
conclusory statements relating to anecdotal allegations of
discrimination generally in the Department of the Treasury.”
Further, that the declarations therein “are largely beyond the
personal knowledge of the declarant and contain impermissible
hearsay as well as improper speculation and opinion testimony of
lay witnesses” and the statements would be largely inadmissible at
trial.
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alleged to have retaliated against Plaintiff or the selection
process regarding Plaintiff, they create, at best, a very weak
inference of pretext. Thus, these affidavits alone are
insufficient to create a genuine issue of material fact as to
whether Defendant’s proffered reason was a pretext for
retaliation against Plaintiff.
The argument that Plaintiff’s qualifications were discounted
is further belied by the affidavit testimony that Plaintiff
failed to make the Best Qualified List because of her admittedly
low scores on the objective – evaluations and awards – rather
than subjective - experience, education, and training -
components of the Best Qualified List.3 We understand that
Plaintiff argues that the evaluations and awards are subjective,
in that they reflect the subjective impressions of her
supervisors. Nonetheless, insofar as the committee was not
involved in determining the evaluations or awards, these factors
were objective in their hands. Plaintiff’s argument concerning
the subjectivity of her supervisors is addressed fully in the
discussion of the “rubber stamp” exception below. If any of the
3
Ms. Margie Maxwell testified that Plaintiff scored favorably
in the third “potential for success” category, however, “due to her
average performance evaluation and no awards, she did not have an
overall score high enough to make the Best Qualified list.” The
third ranking official, Mr. Abba Rabbani, testified that her
previous experience and other factors helped her overall ranking
potential, and as such “it appears the reason she did not make the
BQL, is because her evaluation was lower in comparison to others
and she did not have any Awards.”
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criteria were manipulable by the ranking panel, it was the
subjective components in the third prong. Plaintiff scored well,
however, on these aspects. It was the objective factors where
she suffered. Although Plaintiff received good evaluations
during her tenure with the Service, those selected consistently
received the highest rating of five in the evaluation’s
categories. In an attempt to cast doubt on the qualifications of
those selected, Plaintiff characterizes two of the employees
selected for the tax auditor position as “secretaries.” This
characterization is unfair and misleading, given that Plaintiff
was only promoted from secretary to auditing aide six months
prior to her application. Considered in total, Plaintiff’s
evidence does not refute the IRS’ claim that it applied the three
criteria uniformly to the applicants, nor does it refute the
claim that the individuals selected exceeded her qualifications
under those criteria.
“Rubber Stamp” Exception
Given the information presented to the ranking panel, their
decision was clearly reasonable. Indeed, Plaintiff argues that
the submitted evaluation scores and lack of awards, when plugged
into the ranking panel’s formula, virtually compelled them to
leave Plaintiff off the Best Qualified List. Plaintiff argues
that employees who file EEO complaints are consistently given
lower evaluations by their supervisors, evaluations which, in the
15
hands of the ultimate decision maker, can be used as an
“objective” basis for denying them future promotions. We
recognize the potential for abuse inherent in this situation both
as to retaliation and discrimination claims.
Under such circumstances, this Court has employed a “rubber
stamp” analysis to prevent employers from insulating themselves
from the acts of subordinates. Typically, “statements by non
decision makers, or statements by decision makers unrelated to
the decisional process itself [do not] suffice to satisfy the
Plaintiff’s burden.” Price Waterhouse v. Hopkins, 490 U.S. 227,
277 (1989) (O’Connor, J., concurring). Statements of non
decision makers become relevant, however, when the ultimate
decision maker’s action is merely a “rubber stamp” for the
subordinate’s recommendation. Russell v. McKinney Hosp. Venture,
235 F.3d 219, 226-27 (5th Cir. 2001). Thus, “[i]f the employee
can demonstrate that others had influence or leverage over the
official decisionmaker . . . it is proper to impute their
discriminatory attitudes to the formal decisionmaker.” Id. at
226; see also Willis v. Marion County Auditor’s Office, 118 F.3d
542, 547 (7th Cir. 1997) (“[T]here can be situations in which the
forbidden motive of a subordinate employee can be imputed to the
employer because, under the circumstances of the case, the
employer simply acted as the ‘cat’s paw’ of the subordinate.”).
Where an evaluation is the sole basis or comprises a substantial
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basis on which the decision maker acts, the evaluation may often
constitute sufficient influence to fall under the “rubber stamp”
exception.
Plaintiff argues that the formula’s heavy reliance on
evaluations and awards, which are both determined by supervisors,
forces the ranking panel to essentially “rubber stamp” the
supervisor’s recommendations in ranking applicants for the Best
Qualified List. The ranking panel’s affidavit testimony concedes
that if it were not for the low evaluation scores and lack of
awards, Plaintiff would have made the Best Qualified List. We
need not decide whether sufficient influence existed in the
present case. Even if the ranking panel was acting as a “rubber
stamp,” Plaintiff did not present evidence with respect to
discrimination or retaliation in her evaluation’s scores or her
failure to receive awards – none of Plaintiff’s affidavits allege
discriminatory remarks or retaliatory behavior by the supervisors
providing her evaluations or awards. Plaintiff’s only claim is
that her most recent evaluation violated the requirements of the
union contract because her manager had supervised her for less
than 90 days. Her complaint that the evaluation violated agency
policy is insufficient to sustain a claim under Title VII.
Although she argues that she was rated unfairly in the
evaluation, she presents no evidence of retaliatory or
discriminatory animus. Plaintiff has thus failed to present
evidence from which a reasonable jury could infer that the
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current employment decision was the result of a reason that was a
pretext for discrimination or retaliation.
CONCLUSION
Plaintiff alleges she was denied one of several vacancies
within the IRS because of discrimination and retaliation.
Plaintiff’s evidence consists almost entirely of unproven claims
of past conduct by the IRS. While such evidence may sometimes be
probative on the issue of intent, it is insufficient here to
sustain Plaintiff’s respective burdens of showing that (1)
Defendant’s proffered non-discriminatory reason was a pretext for
discrimination and (2) “but for” retaliation Plaintiff would have
been selected. Accordingly, we AFFIRM the judgment of the
district court.
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