United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 30, 2004
Charles R. Fulbruge III
Clerk
No. 03-61073
Summary Calendar
LINDA K EVERETT
Plaintiff - Appellant
v.
STATE OF MISSISSIPPI; ET AL
Defendants
STATE OF MISSISSIPPI; DEPARTMENT OF WILDLIFE, FISHERIES
AND PARKS
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
No. 1:99-CV-477-BRR
Before KING, Chief Judge, and HIGGINBOTHAM and WIENER, Circuit
Judges.
PER CURIAM:*
Plaintiff-Appellant Linda Everett filed a Title VII lawsuit
alleging that Defendants-Appellees, the State of Mississippi and
its Department of Wildlife, Fisheries and Parks, unlawfully
discriminated against her on the basis of her gender by promoting
*
Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 5TH CIR.
R. 47.5.4.
No. 03-61073
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a male employee to a position in her geographic area while
concealing the position’s location from her, thus dissuading her
from applying for the promotion. The district court granted the
State’s motion for summary judgment, concluding that Everett
failed to state a prima facie case of sex discrimination. For
the following reasons, we AFFIRM.
I. BACKGROUND
Everett is a permanent, part-time General Service Employee
(“GSE”) employed by the Mississippi Department of Wildlife,
Fisheries and Parks at the Lower Pascagoula River Wildlife
Management Area (“WMA”). In early 1998, the Mississippi
Legislature approved upgrading a similar GSE position in the
Upper Pascagoula WMA and Red Creek and Old River WMA to a
“conservation technician” position. The upgrade was to become
effective on July 1, 1998; however, Donnie Dickerson, who held
the post, received a promotion and the job was reallocated to
another employee, Mike Holland. Dissatisfied with the job,
Holland resigned, leaving the soon-to-be-upgraded position
vacant.
The Department then sought to fill the vacancy through an
informal application process. Gary Welford, the supervisor for
the subdistrict, discussed the opening with Michael Everett, the
plaintiff’s supervisor and husband. Mr. Everett mentioned one
individual whom he thought would be interested in the position,
but he did not mention his wife. Eventually, in May 1998,
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Welford hired Ben Hare, who had previously held the GSE position
at the same location. After passing the qualifying test, Hare
was promoted in accordance with the position upgrade.
Everett admits that she was aware the GSE position was open
and subject to an upgrade. She claims that she chose not to
apply for the position, however, because she believed it involved
working only on the Upper Pascagoula WMA, twenty miles from her
home. Nevertheless, after Hare received the promotion, Everett
alleges that she discovered that Hare’s duties actually spanned
both the Upper and the Lower Pascagoula WMAs. She claims that,
had she been aware of this aspect of the job, she would have
applied for the position. In addition, Everett contends that she
eventually asked Lonnie Rayburn, the District Manager, why she
had not been considered for the vacancy. Rayburn stated that he
was not involved in the selection process and therefore did not
know why she was not asked to apply. But he speculated that, if
he had been involved, he might not have considered her because he
would have assumed that she was not interested in working at a
location (the Upper Pascagoula WMA) far from her husband, her
home, and her children.
Everett subsequently filed a complaint with the Equal
Employment Opportunity Commission alleging that she was denied
the promotion due to sex discrimination. After exhausting her
administrative remedies, she filed suit under Title VII in
federal district court. The district court granted the
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Department’s motion for summary judgment, after finding that
Everett could not establish a prima facie case of employment
discrimination because she knew about the opening and its
promotion potential but failed to apply for the position.
Further, the court found that, although Everett may have been
confused about the location of the job, she had not shown that
this confusion was caused by the Department since the position
was, in fact, located on the Upper Pascagoula WMA. Everett
appeals from that judgment.
II. DISCUSSION
We review a district court’s grant of summary judgment de
novo, applying the same standard as the district court. Fierros
v. Tex. Dep’t of Health, 274 F.3d 187, 190 (5th Cir. 2001).
Summary judgment is appropriate when the record, viewed in the
light most favorable to the non-moving party, demonstrates no
genuine issue of material fact and where the moving party is
entitled to judgment as a matter of law. See FED. R. CIV. P.
56(c); see also Blow v. City of San Antonio, 236 F.3d 293, 296
(5th Cir. 2001). We will affirm the district court’s conclusion
that the moving party is entitled to judgment as a matter of law
if “the nonmoving party has failed to make a sufficient showing
on an essential element of her case with respect to which she has
the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986) (internal quotation marks omitted). Importantly,
however, “the nonmoving party must do more than allege an issue
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of material fact: ‘Rule 56(e) . . . requires the nonmoving party
to go beyond the pleadings and by her own affidavits, or by the
depositions, answers to interrogatories, and admissions on file,
designate specific facts showing that there is a genuine issue
for trial.’” Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400,
402 (5th Cir. 2001) (alteration in original) (quoting Celotex,
477 U.S. at 324).
Under the familiar McDonnell Douglas burden-shifting
framework, to establish a prima facie claim of sex discrimination
based on a failure to promote, a plaintiff must demonstrate: “(1)
that she was a member of a protected group; (2) that she applied
for a position for which she was qualified; (3) that she was
rejected; and (4) that . . . the employer promoted . . . a member
of the opposite sex for the job.” Jones v. Flagship Int’l, 793
F.2d 714, 724 (5th Cir. 1986).1 “The application requirement is
important to establishing” the prima facie case “because it shows
1
Everett appears to argue that Rayburn’s statements
constitute direct evidence of sex discrimination and that she
need not follow the McDonnel Douglas framework. See Auguster,
249 F.3d at 404 n.7. We disagree. While Everett argues that
Rayburn had the apparent authority to make the adverse employment
decision, she has not proffered any evidence showing that Rayburn
was the decision-maker responsible for filling the vacancy or
that he exerted influence or leverage over the actual decision-
maker. Instead, the undisputed evidence in the summary-judgment
record demonstrates that Welford was responsible for selecting
Hare for the position in question. Thus, Rayburn’s speculative
statement––that, had he been responsible for the promotion
decision, he might not have considered Everett because she was a
married woman with children who lived far from the job site––does
not constitute direct evidence of intentional discrimination or
relieve Everett of her prima facie burden of proof. Cf. Russell
v. McKinney Hosp. Venture, 235 F.3d 219, 225-27 (5th Cir. 2000).
No. 03-61073
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that the decision-maker knew about the plaintiff and the
plaintiff’s interest in the position.” Walker v. Prudential
Prop. & Cas. Ins. Co., 286 F.3d 1270, 1275 (11th Cir. 2002).
Everett argues that she need not demonstrate that she applied for
the position, however, because she has alleged that the
Department deliberately concealed from both her and her husband
an important fact regarding the job (i.e., its geographic
location), specifically to prevent her from expressing interest
in the position. In the past, we have held that, where an
employer does not publish a vacancy or create a formal
application process, a plaintiff need not prove that she applied
for the position in order to make out a prima facie case of
discrimination. See Bernard v. Gulf Oil Corp., 841 F.2d 547, 570
(5th Cir. 1988); see also Dews v. A.B. Dick Co., 231 F.3d 1016,
1021-22 (6th Cir. 2000) (following Carmichael v. Birmingham Saw
Works, 738 F.2d 1126, 1132-33 (11th Cir. 1984)). Instead, a
plaintiff may satisfy her prima facie burden by proffering
evidence “that the company had some reason or duty to consider
her for the post.” Jones, 793 F.2d at 724; accord Johnson v.
Louisiana, 351 F.2d 616, 622 (5th Cir. 2003); Bernard, 841 F.2d
at 570 (“It is not legally sufficient or legitimate for an
employer to reject an employee who does not have notice or an
opportunity to apply for a promotion.”).
Our precedents have not addressed the question whether an
employee who is aware of a promotion opportunity, but does not
No. 03-61073
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find it attractive due to misinformation, may similarly avoid the
application requirement. While we are cognizant of the logic
behind applying the exception in these situations, we do not
believe that Everett has proffered any evidence suggesting that
the Department affirmatively concealed this information from her.
She admitted in her deposition that she believed the to-be-
upgraded position was located in the Upper Pascagoula WMA because
it was labeled with PIN # 706, the number that had been assigned
to the GSE position previously held by Hare, Dickerson, and
Holland, whose only duties involved the Upper Pascagoula. After
Hare was hired and promoted, Everett claims that she read a
letter sent by one member of the Department administration to
another, which identified Hare’s duties as including both the
Upper and the Lower Pascagoula locations. While her sworn
statement regarding the contents of this letter may create a
question of fact about the scope of Hare’s actual duties, it does
not reasonably create an inference that the Department
deliberately misled either her or her husband. Everett provides
no evidence, for example, that Hare or other potential applicants
were provided different, potentially more accurate information
about the job or that the Department’s sole motivation for
retaining the PIN number was to prevent only her from applying.
Therefore, because Everett had notice of the promotion
opportunity and has admitted that she had a mechanism for
No. 03-61073
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expressing interest but chose not to do so, we hold that she has
failed to state a prima facie case of discrimination.
III. CONCLUSION
Accordingly, we AFFIRM the judgment of the district court.