United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS November 14, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-30014
CATHERINE V. JOHNSON,
Plaintiff,
versus
STATE OF LOUISIANA, ETC; ET AL,
Defendants
_________________________________________________________________
GAIL E. COOPER; DEBRA CELESTINE;
LORRAINE KELLER-JENNINGS; CYNTHIA HENLEY;
PATRICIA CHAPMAN; THAIS WALKER; LYNETTE WALKER,
Plaintiffs - Appellants,
versus
BOARD OF SUPERVISORS OF LOUISIANA STATE
UNIVERSITY, MEDICAL CENTER,
Defendant - Appellee.
Appeals from the United States District Court
For the Eastern District of Louisiana
Before REAVLEY, HIGGINBOTHAM, and BENAVIDES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Plaintiffs Debra Celestine, Lorraine Keller-Jennings, Cynthia
Henley, Patricia Chapman, Thais Walker, and Lynette Walker
(“Grouped Plaintiffs”) and Gail Cooper brought Title VII and state
law employment discrimination claims against the Board of
Supervisors of Louisiana State University Medical Center (“LSUMC”).
The district court granted summary judgment for LSUMC, holding that
neither Grouped Plaintiffs nor Cooper established a prima facie
employment discrimination case because they did not show themselves
to be qualified for the coveted positions. We AFFIRM the district
court’s holding as to the Grouped Plaintiffs, but we REVERSE the
holding as to Cooper and REMAND her portion of the case for further
proceedings.
I
Grouped Plaintiffs and Cooper sued LSUMC, alleging employment
discrimination in violation of state law and Title VII of the Civil
Rights Act of 1964.1 The plaintiffs allege that LSUMC hired
Jacqueline Donellon and Rose Klein, two Caucasian women who did not
meet LSUMC’s objective job requirements. The plaintiffs allege
that LSUMC used restricted appointments - an alternative hiring
method - to avoid posting the job openings and to hire the under-
qualified Caucasian women. The district court granted Defendant’s
summary judgment, finding that the plaintiffs did not establish a
prima facie case of employment discrimination under McDonnell
1
Federal law governs the plaintiffs’ state law claim.
Louisiana looks to federal law to decide employment discrimination
cases. See Plummer v. Marriot Corp., 654 So.2d 843, 848 (La.App.
4th Cir., 1995).
2
Douglas Corp. v. Green2 because the plaintiffs were not qualified
for the coveted positions. The district court made this
determination by looking solely at LSUMC’s objective requirements;
the court considered irrelevant the allegations that Donellon and
Klein - the employees actually hired - did not meet the objective
requirements.
All of the plaintiffs work in the finance department of LSUMC.
The positions at issue are Accountant Supervisor 1 and
Administrative Manager 3. The minimum qualification for Accountant
Supervisor 1 is a bachelor’s degree with twenty-four semester hours
in accounting and three years professional level experience in
accounting or financial auditing. The minimum qualification for
Administrative Manager 3 is a bachelor’s degree with twenty-four
semester hours in accounting and two years professional level
experience in administrative services, accounting, auditing,
purchasing, or staff development.
LSUMC placed Donellon and Klein in these positions through the
use of restricted appointments - an exception to the general hiring
practice. A restricted appointment is a temporary position not to
exceed six months.3 The appointees must be qualified for the
positions.4 The civil service department does not check the
2
411 U.S. 792 (1973).
3
State Civil Service Commission Rule 8.10.
4
Policy No. 8005 of the Department of Health and Human
Resources, Office of Charity Hospital at New Orleans.
3
qualifications of employees hired to restricted appointments; the
local human resources department has the power to decide for itself
who is qualified. However, LSUMC’s own policy requires those hired
through restricted appointments to be qualified for the position.
LSUMC authorized the hiring of Donellon and Klein in March 1999 to
restricted appointments in Accounting Supervisor 1 positions.5
Soon after this authorization, LSUMC realized that neither Donellon
nor Klein satisfied the qualification requirements for the
position. Donellon and Klein were then moved to the position of
Administrative Manager 3, which requires less professional level
experience. Kaye Hamilton, defendant’s expert and Human Resources
Program Consultant Supervisor with the Louisiana Department of
Civil Services, testified that she could not determine whether
Donellon and Klein were qualified for the position because she
needed more information about their work history. Nonetheless,
Donellon and Klein served in that position temporarily. Donellon
served from April 26, 1999, until August 3, 1999, and Klein served
from May 3, 1999, until August 2, 1999.
Grouped Plaintiffs did not qualify for either of the coveted
positions as measured by the objective requirements. Each of the
Grouped Plaintiffs lacked the education and experience requirements
of Accountant Supervisor 1 and Administrative Manager 3.
5
Defendant contends that Klein was never placed in this
position, but because the plaintiffs appeal a summary judgment,
this court must accept the facts in the light most favorable to the
plaintiffs.
4
Accordingly, their names did not appear on a list of eligibles for
the job openings, and they were not considered for the positions.
Finally, Grouped Plaintiffs presented no evidence that they were at
least as qualified as Donellon and Klein.
All concede, however, that Cooper was qualified for both
positions at the time of hiring. The dispute centers around
whether Defendant’s expert correctly determined that Cooper would
not have appeared qualified based on a review of her file at the
time of the job openings. Defendants and the district court below
argue that Cooper’s file was not supplemented with additional
professional level experience, which would qualify her for both
positions. Because the file was not supplemented, Hamilton stated
in her affidavit that she did not believe Cooper was qualified. As
a result, her name would not appear on a list of eligibles. With
this in mind, the district court found that Cooper did not
establish a prima facie case.
Cooper disputes this finding. She argues that her file
included a supplement that may have qualified her for the position,
but Hamilton ignored it when making her affidavit. Hamilton
admitted in her deposition that she saw the supplement in Cooper’s
file, but she stated that she could not determine its origin.
Cooper discussed this supplement, as well as an affidavit of a
former boss, with Hamilton during her deposition. Based on the
additional information acquired at the deposition, Hamilton
testified that Cooper was qualified for both positions. The
5
parties dispute whether the supplement was in the file at the time
of the hiring decision.
Cooper also argued that in hiring Donellon and Klein, LSUMC
ignored its own hiring policies. First, it placed employees who
did not meet the job requirements in restricted appointments.
Second, it did not first attempt to fill the positions with
internal employees. Cooper alleges that race animated LSUMC’s
actions, but no determination was made on the issue as a result of
the summary judgment.
The district court granted Defendant’s summary judgement
because it believed the plaintiffs had not established a prima
facie claim of employment discrimination. That is, the plaintiffs
did not meet the prima facie elements required by McDonnell
Douglas.6 The court found that neither the Grouped Plaintiffs nor
Cooper was qualified for the positions. The court ignored the
allegations that Donellon and Klein were not qualified for the
positions and that LSUMC used the restricted appointment procedure
to discriminate against the plaintiffs. The court also ignored the
allegation that LSUMC violated its own policies. The district
6
411 U.S. 792, 802 (1973) (“The complainant in a Title VII
trial must carry the initial burden under the statute of
establishing a prima facie case of racial discrimination. This may
be done by showing (I) that he belongs to a racial minority; (ii)
that he applied and was qualified for a job for which the employer
was seeking applicants; (iii) that, despite his qualifications, he
was rejected; and (iv) that, after his rejection, the position
remained open and the employer continued to seek applicants from
persons of complainant’s qualifications.”).
6
court viewed all of these allegations as irrelevant to the prima
facie determination. The court would consider them relevant only
after the plaintiffs presented a prima facie case. Not believing
the plaintiffs to have done so, the court did not consider the
allegations and granted summary judgment for Defendants.
Grouped Plaintiffs and Cooper appeal the summary judgment.
The plaintiffs argue that LSUMC used the restricted appointment
procedure to avoid general hiring policies, which allowed them to
hire unqualified Caucasian employees. Grouped Plaintiffs argue
that Defendants cannot apply the objective requirements to them
until Defendants prove that the requirements were also applied to
Donellon and Klein. Cooper argues that the court erred in holding
that she was not qualified.
II
This court reviews the granting of a summary judgment motion
de novo.7 We “go beyond the pleadings to determine whether there
is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.”8
Title VII9 governs the plaintiffs’ employment discrimination
claims. The Title VII inquiry is “whether the defendant
7
Copeland v. Wasserstein, Perella & Co., Inc., 278 F.3d 472,
477 (5th Cir. 2002).
8
Id.
9
Amended and Codified as 42 U.S.C. § 2000e et seq.
7
intentionally discriminated against the plaintiff.”10 Resolution
of a claim involves a three-step, burden-shifting analysis.11
First, a plaintiff must raise a genuine issue of material fact on
each element of his prima facie case.12 Second, if the plaintiff
presents a prima facie case, the defendant must then give a
legitimate, nondiscriminatory reason for the employment decision.13
Third, the plaintiff must raise a genuine issue of material fact
that shows the defendant’s reason may be a pretext for
discrimination.14 This appeal focuses solely on the first step:
whether the plaintiffs present a prima facie case of employment
discrimination.
McDonnell Douglas determines whether a plaintiff makes a prima
facie case of employment discrimination.15 A plaintiff must:
carry the initial burden under the statute of
establishing a prima facie case of racial discrimination.
This may be done by showing (I) that he belongs to a
racial minority; (ii) that he applied and was qualified
for a job for which the employer was seeking applicants;
10
U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S.
711, 715 (1983) (citing Texas Department of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981)).
11
Lindsey v. Prive Corp., 987 F.2d 324, 326 (5th Cir. 1993);
Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 680 (5th Cir.
2001).
12
Id.
13
Id.
14
Id.
15
McDonnell, 411 U.S. at 802.
8
(iii) that, despite his qualifications, he was rejected;
and (iv) that, after his rejection, the position remained
open and the employer continued to seek applicants from
persons of complainant’s qualifications.16
If a plaintiff establishes a prima facie case, it creates a
“rebuttable ‘presumption that the employer unlawfully discriminated
against’” the plaintiff.17 The Court noted that “[t]he prima facie
case method established in McDonnell Douglas was ‘never intended to
be rigid, mechanized, or ritualistic. Rather, it is merely a
sensible, orderly way to evaluate the evidence in light of common
experience as it bears on the critical question of
discrimination.’”18
Employers may succeed on summary judgment by establishing that
the plaintiff is not qualified for the coveted position. An
employer may establish job requirements, and rely on them in
arguing that a prima facie case is not established because the
employee is not “qualified.” However, only objective requirements
may be used in making this argument.19 Otherwise, an employer could
“utilize wholly subjective standards by which to judge its
16
Id.
17
Aikens, 460 U.S. at 714 (citing Burdine, 450 U.S. at 254).
18
Aiken, 460 U.S. at 715 (quoting Furnco Construction Corp.
v. Waters, 438 U.S. 567, 577 (1978)).
19
Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 681 (5th
Cir. 2001).
9
employees’ qualifications and then plead lack of qualification when
its promotion process . . . is challenged as discriminatory.”20
The requirement that an employee must apply for the position
at issue is interpreted to accommodate various situations. For
instance, an employee does need to apply to establish a prima facie
case when the position was not publicized.21 Instead, the employee
must show that the company had a duty or reason to consider her for
the position.22
The ultimate burden of persuasion remains with the plaintiff.23
Once the plaintiff establishes a prima facie case, and the
defendant provides a legitimate, nondiscriminatory reason for the
employment decision, the burden shifts back to the plaintiff.24
However, the question of whether the plaintiffs here met their
ultimate burden is not at issue in this appeal. The Defendant and
the district court below rely solely on the proposition that the
plaintiffs’ claims fail because they are not qualified.
20
Id. (quoting Crawford v. Western Elec. Co., Inc., 614 F.2d
1300, 1315 (5th Cir. 1980)).
21
Jones v. Flagship Intern., 793 F.2d 714, 724 (5th Cir.
1986).
22
Id.
23
Faruki v. Parsons S.I.P., Inc., 123 F.3d 315, 319 (5th Cir.
1997) (citing Burdine, 450 U.S. at 253).
24
Id.
10
III
A
The primary contention of Grouped Plaintiffs is that LSUMC
cannot rely on its objective requirements because Defendant did not
apply those standards to the employees actually hired. Grouped
Plaintiffs argue that LSUMC may rely on the objective job
requirements only after it shows that the requirements were also
applied to Donellon and Klein. The district court dismissed the
allegations of disparate application of the requirements as
irrelevant to the prima facie determination:
At the prima facie stage of inquiry, the qualifications,
or lack thereof of the hirees, is not pertinent. In
order to establish a prima facie case of intentional
discrimination, Plaintiffs must make a showing that they
were qualified for the position. The Grouped-Plaintiffs
have failed to satisfy this threshold burden.
The district court determined that because the plaintiffs did not
show themselves to be qualified as measured by the objective
requirements, all other considerations were irrelevant.
The Grouped Plaintiffs rely on Carter v. Three Springs
Residential Treatment,25 an Eleventh Circuit case. In Carter, the
plaintiff alleged that his employer chose to promote another
employee instead of the plaintiff because of his race.26 The
defendant argued that Carter did not make a prima facie case
25
132 F.3d 635 (11th Cir. 1998).
26
Carter, 132 F.3d at 637.
11
because he was not qualified for the position.27 The defendant
based this argument, in part, on the fact that Carter lacked the
clinical experience required by the job description.28 However, the
court refused to consider clinical experience in determining
whether Carter was qualified because the defendant did not apply
the requirement to the eventual hiree.29 Because the chosen
employees did not have the “required” clinical experience, but were
hired nonetheless, “clinical experience cannot be considered to be
a minimum qualification.”30 Unlike the district court in this case,
the Eleventh Circuit found this inquiry to be appropriate during
the prima facie stage of the case. Carter was not precluded from
making a prima facie case simply because he did not meet an
objective requirement that was not applied to the eventual hiree.
The court went on to find that Carter was just as qualified as the
employees hired; therefore, a genuine issue of fact existed as to
whether the employment decision was based on race.31
Sledge v. Goodyear Dunlop Tires North America, Ltd.,32 another
Eleventh Circuit case, also addresses the issue before this court.
27
Id. at 643.
28
Id.
29
Id.
30
Id.
31
Id. at 644-45.
32
275 F.3d 1014 (11th Cir. 2001).
12
In Sledge, an employee brought a Title VII claim against his
employer, alleging that he was passed over for a promotion because
of his race.33 The district court granted summary judgement for the
defendant, holding that Sledge failed to make a prima facie case
because he did not show himself to be qualified.34 The district
court based this determination on the fact that Sledge failed a
required test.35 The district court did not consider the fact that
other white employees applied for the position, failed the test,
but were promoted nonetheless.36 The Eleventh Circuit held that
Sledge proved himself to be qualified for the position - based on
his experience and an affidavit from his supervisor - and that he
could not be deemed “unqualified” based on his failure of a test
that was not applied equally to all employees.37 The court also
stated that because of the unequal application of the testing
requirement, Sledge illustrated direct discrimination and did not
need the benefit of the McDonnell Douglas presumption.38
33
Id. at 1016-18.
34
Id. at 1015.
35
Id. at 1015 n.1, 1016-17.
36
Id. at 1019-20.
37
Id. at 1020.
38
Id. at 1019 n.10.
13
LSUMC offers no response to the allegedly disparate
application of its objective requirements, or the use of restricted
appointments in an allegedly discriminatory manner.
The Fifth circuit has not addressed Carter or Sledge, but
their application and interpretation of McDonnell Douglas is sound.
The district court believes it should address the unequal
application of the objective requirements at a later stage of the
case, but this solution would disallow courts from remedying this
type of discrimination. A plaintiff would never reach the later
stage of the case if the unequal application were not addressed at
the prima facie stage. Allowing an employer to point to objective
requirements in arguing that a plaintiff is unqualified, even
though the requirements were not applied to other employees, would
subvert the intent of Title VII and McDonnell Douglas.
The Eleventh Circuit’s approach squares with McDonnell
Douglas. The last element of a prima facie case requires a showing
that the employer sought other employees with the plaintiff’s
qualifications.39 This focuses the prima facie determination not
on a company’s objective requirements. Rather, it focuses on the
plaintiff’s qualifications in relation to the employees actually
hired. With this in mind, the district court erred in looking
solely at the objective requirements and ignoring their possible
unequal application.
39
McDonnell Douglas, 411 U.S. at 802 (emphasis added).
14
Finally, this approach squares with our caselaw. In Medina v.
Ramsey Steel Co,40 we disallowed the use of subjective requirements
during the prima facie stage; to hold otherwise would allow
employers to argue a lack of subjective qualification - which no
one could judge - and obtain summary judgment. Similarly here,
hiring an employee who does not meet the company’s objective
requirements is basically a subjective determination: the employee
can do the job despite the fact that she does not meet the
technical requirements. Whether or not this determination by the
employer was animated by race is a question to be answered by the
fact-finder during trial, not by the judge at the prima facie
stage.
We find that the district court erred by applying objective
requirements to the Grouped Plaintiffs without considering whether
the requirements were equally applied to the employees actually
hired. However, the decision to grant summary judgment as to the
Grouped Plaintiffs was not erroneous because they offered no
evidence that they were at least as qualified as Donellon and
Klein. Grouped Plaintiffs do not argue that they are qualified, as
measured by Defendant’s objective requirements, for either
Accountant Supervisor 1 or Administrative Manager 3. The
uncontroverted testimony of LSUMC’s expert is that none of the
Grouped Plaintiffs meet the requirements. Furthermore, Grouped
40
238 F.3d 674, 680 (5th Cir. 2001).
15
Plaintiffs presented no evidence that they are at least as
qualified as Donellon and Klein. Accordingly, even if the district
court applied the Eleventh Circuit’s analysis, the Grouped
Plaintiffs still fail to establish a prima facie claim.
In Carter and Sledge, the plaintiffs showed themselves to be
qualified for the positions as measured by the standards applied to
those actually hired. Carter provided the court a great deal of
evidence regarding his education and work history, both of which
were extensive.41 Sledge obtained a letter from his supervisor that
he could do the work.42 The Grouped Plaintiffs, on the other hand,
offer no evidence that they are qualified to do the work, or that
they are as qualified as Donellon and Klein. As a result, they
fail to make a prima facie case of employment discrimination.43
Grouped Plaintiffs cite no authority to support their claim
that LSUMC must first show that it applied the objective
requirements to Donellon and Klein before it can apply them to
others. A plaintiff claiming employment discrimination must bear
its burden, part of which is showing herself to be qualified.
Here, it was the Grouped Plaintiffs’ burden to show that they were
qualified. If LSUMC’s objective requirements were not applied to
the employees actually hired, the Grouped Plaintiffs must show this
41
Carter, 132 F.3d at 643-44.
42
Sledge, 275 F.3d at 1019-20.
43
McDonnell Douglas, 411 U.S. at 802.
16
in order to make the requirements inapplicable to the
“qualification” determination at the prima facie stage.
B
Cooper alleges the same Title VII and state law employment
discrimination claims. The analysis for Cooper’s case differs
because, unlike the Grouped Plaintiffs, Cooper is qualified for
both the Accounting Supervisor 1 position and the Administrative
Manager 3 position. Cooper alleges that the district court erred
by finding that she was unqualified for the positions and that the
Defendant had no duty to consider her, and in refusing to consider
the unequal application of the objective requirements.
The district court found that Cooper failed to supplement her
employment file with information that showed her to be qualified
for the positions. It is undisputed that it is an employee’s duty
to supplement his or her employment file. The district court found
that at the time her file was reviewed, she did not appear
qualified. This resulted in her name being left off a list of
eligible employees for the position. Because she appeared
unqualified at the time of the hiring decision, the district court
held that she failed to make a prima facie claim.
Cooper disputes that she failed to supplement her file. She
argues that Ms. Hamilton, defendant’s expert who submitted an
affidavit and was later deposed, did not rely on all appropriate
employment application material in forming her initial opinion that
Cooper was not qualified. Cooper claims that because her file was
17
supplemented at the time Ms. Hamilton signed her affidavit, the
affidavit incorrectly opines that Cooper was not qualified.
Having completed a de novo review of the record, we believe
there to be genuine issues of fact that preclude summary judgment.
First, the state of Cooper’s employment file raises an issue of
fact. The district court below found and defendants on appeal
argue, based on Kaye Hamilton’s deposition, that Cooper’s
supplement showing additional experience was not on file. However,
later in her deposition Ms. Hamilton admitted that the supplement
was included in the file. She admitted seeing it, but noted that
there was no official heading; however, she agreed that the
document could cause a reviewer to investigate further. Relatedly,
there are fact issues regarding the valid portions of Hamilton’s
affidavit. She recanted part of her affidavit regarding the
requirements for one to apply for a position during her deposition.
Second, it remains unclear whether Cooper is at least as
qualified as Donellon and Klein. As discussed above, it was error
for the district court to apply the objective requirements to
Cooper while failing to consider that LSUMC did not apply the
requirements to the Caucasian employees. The Eleventh Circuit’s
approach to this issue - unequal application of objective job
requirements - is sound. Allowing an employer to point to
objective requirements in arguing that a plaintiff is unqualified,
even though the requirements were not applied to other employees,
18
would subvert the intent of Title VII and McDonnell Douglas. The
parties concede that Cooper is qualified for both positions.
Donellon and Klein were not qualified for Accounting Supervisor 1,
although Defendant moved them out of the position as soon as this
was discovered. It is unclear whether Donellon and Klein were
qualified for the Administrative Manager 3 position. The expert
testified in her deposition that she would need more information
regarding their previous employment responsibilities to decide
whether they were qualified. This determination was never made
because Defendant used the restricted appointment process, which
allowed it to make the hiring decision locally.
Considering Cooper’s evidence showing her to be qualified, the
disputed state of Cooper’s file at the time of the employment
decision, and the uncertainty regarding Donellon’s and Klein’s
qualifications, fact issues exist and this court must reverse and
remand Cooper’s claim.
IV
We AFFIRM the district court’s decision to grant LSUMC’s
summary judgment as to the Grouped Plaintiffs, but we REVERSE the
district court’s decision to grant LSUMC’s summary judgment as to
Cooper and REMAND her claim for further proceedings.
19