[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 30, 2005
No. 05-13259
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-03180-CV-B
MARIA JOHNSON,
Plaintiff-Appellant,
versus
JIM NICHOLSON,
Secretary of Veterans' Affairs,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(November 30, 2005)
Before BLACK, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Maria Johnson, a Filipino nurse, appeals the district court’s order granting
summary judgment in favor of her employer, Birmingham Veterans Affairs
Medical Center (“BVAMC”), in her action alleging racial and ethnic
discrimination and retaliation under Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. § 2000e-2(a)(1) & 2000e-3(a). The district court granted
summary judgment because Johnson failed to proffer sufficient evidence that
BVAMC’s legitimate, nondiscriminatory and non-retaliatory reasons for its
employment actions were pretextual. After review, we affirm.1
I. BACKGROUND
Johnson was employed as a Nurse Manager in the Ambulatory Care area at
BVAMC. In 1996, Juan Morales became BVAMC’s Chief Nursing Supervisor
and was in Johnson’s supervisory chain. Beginning in 1997, Johnson twice
testified in EEOC proceedings in favor of a former co-worker, Adelaida Baltazar,
who claimed that Juan Morales had discriminated against her based on her Asian-
Pacific/Filipino descent. Johnson first testified for Baltazar in October 1997 and
then a second time on March 6, 1998.
Johnson alleges that, after her testimony, Morales began discriminating and
1
We review de novo a district court's order granting summary judgment, “viewing all the
evidence, and drawing all reasonable inferences, in favor of the non-moving party.” Vessels v.
Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005). Summary judgment is appropriate
when the record shows that “there is no genuine issue as to any material fact, and the moving
party is entitled to a judgment as a matter of law.” Id. (citing Fed. R. Civ. P. 56(c)).
2
retaliating against her. Shortly after Johnson’s first EEOC testimony, Morales
ordered the removal of overtime pay in the amount of $358.24 that had been
automatically deposited in Johnson’s bank account. Morales did so because it was
his policy to require supervisors to get his pre-approval before working overtime
and Johnson had not received his approval for that overtime.2
Sometime after Johnson’s October 1997 testimony for Baltazar, but before
her March 1998, testimony, Johnson attended a Nurse Managers’ meeting in which
Morales said that another hospital employee, Doris Blue, had filed “an EEO”
against him and that he needed the Nurse Managers’ support. He stated that Ms.
Blue “just doesn’t understand culture” and then explained, “For example, orientals
don’t look you in the eye when they talk to you.” Morales directed these
comments to the group, not to Johnson specifically.
When Morales arrived at BVAMC in 1996, he began planning to restructure
the entire nursing staff at the hospital. The restructuring began in 1997 in the
Acute Care Services area. The number of Nurse Managers in Acute Care Services
was reduced from nine to seven.
The Ambulatory Care area, in which Johnson worked, was the second
nursing unit to be restructured, which began in 1998. At the time of the
2
Morales later agreed to restore $167.24 of the overtime pay.
3
restructuring, the Ambulatory Care area had four Nurse Managers – Johnson, Erma
Jackson, Ruth Fields and Frances McCree.3 Before the reorganization Johnson was
the Nurse Manager for primary care and the medical and surgical speciality clinics,
Ida Fields for ambulatory surgery, Frances McCree for the blind rehabilitation
center, and Erma Jackson for the emergency room.
On March 6, 1998, Audrey Moore, who supervised the four Nurse
Managers, called a meeting and asked them to brainstorm about solutions if the
number of Nurse Managers were reduced from four to three. During the meeting,
McRee stated that she would retire within the next year. On March 16, BVAMC
Director Y.C. Parris announced the restructuring of the Ambulatory Care area in a
meeting and circulated a projected organizational chart, which showed Johnson as
Nurse Manager in primary care but not in the medical and surgical specialty
clinics.4 The chart described by Johnson is not in the record. However, the record
contains an undated organizational chart that twice included Jackson’s name as a
Nurse Manager, but did not contain the names of Johnson, Fields, Moore or
Morales or their positions. At a subsequent meeting on either March 22 or March
26, Morales announced that the number of Nurse Managers was being reduced to
3
None of the other Nurse Managers was Asian or Filipino.
4
In a statement given to the EEOC investigator, Johnson testified that she attended a
meeting with Parris on March 16, 1998, in which she viewed an organizational chart which listed
her name, but not as part of management. This chart does not appear in the record.
4
two.5 After the reorganization, the newly-created Nurse Manager positions were
for: (1) ambulatory surgery, observation unit and speciality clinics, and (2) primary
care, emergency room and blind rehabilitation center.
In June and July of 1998, Johnson’s office, along with the offices of other
employees, was relocated due to construction in the hospital. Johnson’s second
move was to a vacant area of the sixth floor in a room that was dirty and had holes
in the carpet. The decision to move offices, including Johnson’s office, was made
by a construction committee chaired by the BVAMC director. Morales was on the
construction committee and gave input to the committee when his areas were
affected.
In July 1998, the two newly-restructured Nurse Manager positions were
posted. Johnson applied for both positions. Fields and Jackson each applied for
one of the positions. A panel consisting of Morales and two other BVAMC
employees selected by Morales interviewed the three candidates. During the
interview, each candidate was asked the same thirteen questions and scored by the
evaluators. All three evaluators gave Johnson a lower score than either Jackson or
5
Also in late March, Moore, who was transferring to another medical center, appointed
Jackson to be Acting Ambulatory Care Nursing Supervisor (“ACNS”) in her place, even though
Johnson had held the position in the past. In addition, in the six months following her March 6
testimony, Johnson lost some of her duties, including supervision of the speciality clinic, one-on-
one interview duties and duties relating to planning renovations and relocations.
5
Fields.6
Morales was the final selecting official and selected Jackson to be the Nurse
Manager for emergency room, primary care and blind rehabilitation and Fields to
be the Nurse Manager for ambulatory surgery facility, observation unit and
speciality clinics. Morales explained that Johnson was not selected for either
position because she received the lowest interview scores and because, unlike
Jackson and Fields, she did not have a Master’s degree or additional certification.
In addition, Morales considered the three candidates’ specific experience in
the various units of Ambulatory Care. According to Morales, all three candidates
had comparable nursing and management experience.7 But, Morales explained in a
6
The scores from the three evaluators were as follows:
Dickerson Hahn Morales
Johnson 24 37 16
Jackson 31 39 31
Fields 38 39 28.5
Each candidate was asked the same thirteen questions, which were worth up to three points. If a
candidate did not answer a question, she received a zero. Depending upon how well the
candidate answered a question, she could receive between one and three points. The highest
score a candidate could receive was 39 points.
7
With regard to the candidates’ experience, Johnson had 30 years of nursing experience,
sixteen of those in management. Jackson had eighteen years of nursing experience, with four
years in management. Fields had eighteen years of nursing experience, with ten years in
management. Both Jackson and Johnson had ten years of experience with the acute care unit, the
emergency room and the blind rehabilitation center. With regard to the ambulatory surgery, the
observation unit, and the specialty clinics, Johnson had ten years of experience and Fields had
nine.
6
statement given during administrative proceedings in the Equal Employment
Opportunity Commission that Jackson and Fields had experience in particular areas
that played a role in his decision. For example, Jackson had emergency room
experience, and Johnson did not. Because the emergency room was “a very crucial
area to manage,” Jackson’s “little bit more experience” gave her the edge. Fields
“had been managing the Ambulatory Surgery and Observation area for a long
time” and “had a lot of interaction with the speciality clinics . . . . and had a very
good understanding about the specialty clinics activity.” Morales also believed
that both Jackson and Fields had demonstrated better leadership abilities and
interpersonal skills than Johnson.
Prior to the reorganization, Johnson was a Nurse III, Step 11. After the
reorganization, Johnson was placed under Jackson’s supervision as a Staff Nurse,
which was a Nurse III, Step 9 and involved fewer responsibilities. Later, Johnson
was reassigned and is currently a Nurse III, Step 12.
Johnson filed this action, alleging that BVAMC discriminated and retaliated
against her when it failed to select her for one of the newly-created Nurse Manager
positions and instead transferred her to a Staff Nurse position and retaliated against
her when it removed certain overtime pay from her bank account.8 The district
8
In the district court, Johnson also alleged that BVAMC retaliated against her by
changing and delaying her performance evaluation. Johnson makes only two passing references
7
court granted BVAMC’s motion for summary judgment, concluding that Johnson
had failed to present sufficient evidence that BVAMC’s articulated reasons for its
actions were pretext.
II. DISCUSSION
On appeal, Johnson argues that the district court erred in granting summary
judgment because she presented sufficient evidence of pretext. We disagree and
address each employment action in turn.
A. Re-structured Nurse Manager Positions
Johnson initially contends that she presented direct evidence of Morales’
discriminatory bias and points to Morales’ comment that Orientals do not look
people in the eye when they talk to them. Morales’ comment does not constitute
direct evidence.
Direct evidence is evidence that, if believed, proves the existence of a fact
without inference. Carter v. Three Springs Residential Treatment, 132 F.3d 635,
641-42 (11 th Cir. 1998). In the Title VII context, for a statement to be direct
evidence, it must reflect “a discriminatory or retaliatory attitude correlating to the
in her appeal brief to the delayed and changed performance evaluation, but does not challenge on
appeal the district court’s grant of summary judgment on this claim. Therefore, we do not
address this claim. See Access Now, Inc., v. Southwest Airlines, Co., 385 F.3d 1324, 1330 (11th
Cir. 2004) (stating that an appellant must clearly and specifically identify issues on appeal in the
brief).
8
discrimination or retaliation complained of by the employee.” Id. (quotation marks
and citation omitted). In other words, to be direct evidence, the remark must
indicate that the employment decision in question was motivated by an
impermissible factor. Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d
1354, 1358-59 (11 th Cir. 1999). Morales’ comment was made months before the
panel interviews and hiring decisions for the new Nurse Manager positions and did
not relate to the decision not to select Johnson for one of those positions. See, e.g.,
Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1227-28 (11 th Cir. 2002)
(holding that decisionmaker’s comment made before and not directly related to
plaintiff’s termination was not direct evidence of discrimination).
Johnson alternatively contends that she presented evidence that Morales’
reasons for not selecting her for one of the new Nurse Manager positions were
pretextual.9 Morales offered several reasons for his decision, including Johnson’s
lower interview scores, her lack of an advanced degree and her lesser experience in
9
Because Johnson attempts to prove her claims through circumstantial evidence, we
evaluate her claims using the burden-shifting framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S. Ct. 1817 (1973). With regard to Johnson’s discrimination claims, the parties
do not dispute that Johnson established her prima facie case and that BVAMC articulated
legitimate, non-discriminatory reasons for its employment decisions. However, with regard to
Johnson’s retaliation claims, BVAMC argues on appeal that Johnson did not make out a prima
facie case because she failed to show she suffered an adverse employment action. The district
court assumed Johnson had suffered an adverse employment action, but concluded that BVAMC
was entitled to summary judgment because Johnson failed to show that BVAMC’s reasons for its
actions were pretext. Because we affirm the district court’s pretext ruling, we need not address
BVAMC’s argument that Johnson did not suffer an adverse employment action.
9
particular areas of ambulatory care. Johnson’s evidence does not rebut any of
these reasons.
A plaintiff may overcome the employer’s asserted legitimate reasons and
avoid summary judgment “either directly by persuading the court that a
discriminatory reason more likely motivated the employer or indirectly by showing
that the employer’s proffered explanation is unworthy of credence.” Taylor v.
Runyon, 175 F.3d 861, 867 (11th Cir. 1999) (quotation marks and citation
omitted). To establish pretext, the plaintiff must demonstrate “such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its action that a reasonable factfinder could find
[each of those reasons] unworthy of credence.” Cooper v. Southern Co., 390 F.3d
695, 725 (11 th Cir. 2004), cert. denied, No. 05-88 (U.S. Oct. 17, 2005); see also
Chapman v. AI Transport, 229 F.3d 1012,1024-25 (11th Cir. 2000) (en banc). In
doing so, the plaintiff “must meet [the proffered legitimate] reason head on and
rebut it, and the employee cannot succeed simply by quarreling with the wisdom of
that reason.” Chapman, 220 F.3d at 1030 (citation omitted).
With regard to Johnson’s lack of a Master’s degree, Johnson presented
evidence that in the past Morales had placed people who did not have Master’s
degrees in Nurse Manager positions. However, Johnson did not provide the
10
contextual information needed to make evidence of these hiring decisions
meaningful for purposes of her pretext claim. See Lee v. GTE Fla., Inc., 226 F.3d
1249, 1255 n.2 (11 th Cir. 2000) (rejecting as meaningless plaintiff’s evidence that
decisionmaker had promoted only four women into management and only two
women into staff positions because plaintiff provided no “specific context against
which to measure these brief facts”). For example, Morales testified that
sometimes the person with the Bachelor’s degree has different skill levels and
background, which would affect his decision. Johnson did not present evidence of
the duties or type of Nurse Manager positions that were filled with someone
without a Master’s degree or when these positions were filled. Without more
information, this evidence does not call into question Morales’ claim that
Johnson’s lack of a Master’s degree was a factor in his decision not to select her
for the two particular new, combined Nurse Manager positions.
With regard to Johnson’s lower interview scores, she complains that they
were subjective and highly suspect in light of Morales’ dramatically lower score
for Johnson and his past derogatory comment about Orientals not making eye
contact. However, subjective evaluations, including interviews, are permissible
bases for making a selection or non-selection, so long as the defendant’s
explanation of its reasons are clear and reasonably specific. Chapman, 229 F.3d at
11
1033-34.10 Here, a panel of three consistently gave Johnson the lowest score of the
three applicants, and Johnson agreed that the other two panel members were free of
bias. Furthermore, Morales consistently graded the hardest of the three panelists.
Johnson also contends she presented evidence from which a jury could infer
that Morales had already made up his mind to eliminate Johnson months before the
panel interviews. Specifically, Johnson points to the following: (1) Johnson’s
office being moved; (2) her loss of duties; (3) her being passed over for
appointments as Acting NCMS and Call Center Supervisor; and (4) Morales’
decision to eliminate two rather than one Nurse Manager position after McCree
decided to retire early. None of this evidence demonstrates “such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions” that a reasonable
factfinder could conclude that BVAMC’s proffered reasons were unworthy of
belief. See Cooper, 390 F.3d at 725.
Johnson also points to certain organizational charts, but these charts were
presented as drafts for discussion, with possible mistakes and omissions. Notably,
the only organization chart in the record has one employee’s name crossed out and
another employee’s name handwritten in the margin. It also omits mention of
10
Johnson does not argue that Morales failed to give clear and reasonably specific
reasons for his interview scores. Moreover, Morales explained that he gave Johnson low scores
because she did not stay focused on the questions when she gave her answers, instead going off
on tangents, and therefore did not give the answers Morales was looking for.
12
Morales, Moore and Fields. Furthermore, there is no evidence that Morales
prepared or helped prepare these particular charts.
In addition, it is undisputed that Morales played no role in the selection of
the Acting NCMS and that the decision to relocate Johnson’s office due to
construction was made by a construction committee of which Morales was only
one member. Although Johnson began to lose some of her duties in March 1998,
by this time the restructuring of the nursing units had begun.
Johnson’s claim that Morales changed the number of Nurse Manager
positions to be eliminated from one to two when he realized McCree was going to
retire is not supported by the record. First, the record does not establish that
Morales initially decided to eliminate only one position and then changed his mind.
Moore, not Morales, asked the Nurse Managers to brainstorm solutions if one
position was eliminated. Furthermore, Johnson testified that Morales was not
present at this brainstorming meeting in which McCree announced her decision to
retire early, and Johnson presented no other evidence that Morales was aware of
McCree’s early retirement when he announced a couple of weeks later that two
Nurse Manager positions would be eliminated.
Johnson emphasizes that she had more overall nursing experience and more
years of management experience than either of the other candidates. She points out
13
that she interviewed, hired and trained one of the successful candidates ten years
before. These arguments do not address head on the reasons for Morales’ decision.
Morales testified that seniority was not a factor in his decision and that the three
candidates were comparable in their nursing and management experience. Rather,
in making his decision, Morales focused on the particular areas of Ambulatory
Care in which each candidate had experience, something Johnson’s evidence does
not address. By arguing that she has more nursing and nurse management
experience than the other candidates, Johnson is merely quarreling with the
wisdom of Morales’ decision, which is insufficient to establish pretext.11
B. Deduction of Overtime Pay
Johnson contends that she presented sufficient evidence that Morales’ reason
for removing her overtime pay was pretext. Johnson’s evidence of pretext is based
on two theories: (1) she did the work and therefore should have been paid, and (2)
the BVAMC director had approved the overtime in a general e-mail directing all
services to pay overtime to employees to review medical records to confirm
insurance. Johnson’s evidence does not address, much less refute, Morales’ pre-
11
Furthermore, any disparities between the candidates’ experience either in general or in
the specific areas of ambulatory care are not “so glaring that no reasonable impartial person
could have chosen the candidate selected for the promotion in question over the plaintiff.” See
Vessels, 408 F.3d at 772; see also Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1090 (11th Cir.
2004) (holding that the disparity in qualifications must be “so apparent as virtually to jump off
the page and slap you in the face”).
14
approval policy. See Chapman, 229 F.3d at 1030. It is undisputed that Morales
had this pre-approval policy and that Johnson did not get his pre-approval. Thus,
there is no showing of pretext in Morales’ withdrawal of overtime pay from
Johnson’s account because he required supervisors to obtain his personal approval
before working overtime.
III. CONCLUSION
The district court properly granted summary judgment because Johnson
failed to present sufficient evidence that BVAMC’s articulated reasons for
deducting her overtime pay and for not selecting her for one of the new,
reorganized managerial position were pretext.
AFFIRMED.
15