[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 2, 2006
No. 05-15989 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-02983-CV-BE-E
CLEMENT TRUSS,
Plaintiff-Appellant,
versus
FRANCIS J. HARVEY,
Secretary of the United States
Department of the Army,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(May 2, 2006)
Before BIRCH, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Clement Truss appeals the district court’s grant of summary judgment to his
employer on his claim of disparate treatment based upon intentional race
discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e-16. Because Truss did not present sufficient evidence from which
a jury could have reasonably inferred that he was not offered the position because
he is black, we AFFIRM the district court’s grant of summary judgment.
I. BACKGROUND
Represented by counsel, Truss, an African-American man, filed a complaint
against his employer, R. L. Brownlee, the Acting Secretary of the United States
Army (“the Secretary”),1 pursuant to Title VII, § 2000e-16, alleging that he was
discriminated against because of his race. Truss alleged, inter alia, that: (1) he was
employed with the Anniston Army Depot as a Motor Vehicle Operation Leader
(“MVOL”); (2) in May 2002, he applied for the position of Motor Vehicle
Operator (Materials Handler) Supervisor (“MVOS”), for which he was qualified;
(3) he was referred, but not selected, for the position; (4) the position was filled by
Douglas Gibson, a white man; and (5) his nonselection for the position was based
upon intentional racial discrimination. The Secretary answered and filed a motion
for summary judgment. In support, the Secretary submitted the transcript of the
1
Francis J. Harvey automatically was substituted as the defendant in this case when he
became the current Secretary of the Army. See Fed. R. App. P. 43(c)(2).
2
Department of the Army’s Civil Personnel Management Service’s fact-finding
conference.
Truss testified at the conference that he had been employed as an MVOL at
the Anniston Army Depot in Alabama since August 1997. Truss received
“outstanding” performance ratings in this position. His immediate supervisor was
Larry Tumlin, who was then the MVOS. When Tumlin became Division Chief in
2002, the MVOS position became available. The job description for the MVOS
position dictates that the candidate exercise “full supervisory responsibility over
work operations” over employees in MVOS positions, which were described as a
“non-supervisory grade level.” R2, Exh. 6 at unnumbered 2. As the selecting-
supervisor with responsibility for filling the position, Tumlin created a Matrix
system to select the supervisor from a list of qualified applicants. He considered
criteria such as supervisory experience, practical experience, having a commercial
driver’s license (“CDL”), and veteran status. Truss and Gibson, along with thirty
others, applied for that position.
Truss stated that Tumlin told him that he was not selected for the position
because Gibson “came out on top” of the Matrix system and was “the best man.”
R2, Exh. 1 at 16. Truss, however, did not believe Tumlin’s reasons because he felt
that he was more qualified than Gibson for the particular position, since he had
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supervisory experience in that particular department, which Gibson did not. Truss
testified that he believed that his nonselection for the promotion had to do with a
racial incident in 1984 or 1985 in which Tumlin:
was telling racial jokes in the shower and I . . . turn[ed] and [told] him,
you know, that I didn’t appreciate him doing it. He said, “Okay.” So
I went over to my locker and started getting dried off and getting
dressed and he came back up to me and said, “I don’t care who you go
see.” And at that time I went to see the Director and told him about it
and he said I didn’t have to put up with this. To the best of my
knowledge he talked to Mr. Tumlin and it hasn’t happened since.
Id. at 29. Truss emphasized that “people never forget things like that. I know I
don’t.” Id. With regard to his experience in comparison to Gibson, Truss stated
when it comes up for me to get promoted to the [MVOS] job, after
I’m on the job, in the job, running the job, familiar with everybody, . .
. every aspect about the job, I knew it, and Larry selected Mr. Gibson
for that job. Mr. Gibson didn’t know the right way of doing things
because he’d never been back -- He worked in Ammunition like back
in [t]he eighties I think and there’s a lot . . . [that] had changed, but I
was in the organization; I knew every move of the organization . . . .
Looking at the outline on the jobs on the Matrix system that he used, .
. . everything about it I have out qualified this man except for one
issue which was . . . supervisory experience. As Supervisor in that
Ammunition area, there’s no one that had more experience than I had.
Id. at 13. Truss further explained he filled in for Tumlin in 2002 as “Acting
Division Chief” on several occasions while Tumlin was out, including for thirty to
forty-five days in 2002. Id. at 37. He also testified that for nine months, between
August 1997 and June 1998, he temporarily supervised ten to thirteen employees
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and performed the same job duties as required of a person in the MVOS position.
Tumlin testified that he selected Gibson for the position because “[h]e was
the best qualified for the position . . . [because] Douglas had more supervisory
experience. ” Id. at 50. The only category in the Matrix where the scoring differed
was supervisory experience. On the Matrix under supervisory experience, Tumlin
had written in “‘Weeks’ with a question mark” based on Tumlin’s recollection that
Truss had filled in for him in his MVOS position. Id. at 56. Tumlin stated that
Douglas “had overall about five years prior supervisory experience and that’s the
main reason he was selected.” Id. at 50.
According to the Matrix, Tumlin assigned 5 points for 1-10 years of
experience in each category, 10 points for more than 11 years of experience, and 5
points for having a CDL. Truss scored a total of 55 points on the Matrix,
calculated as follows: (1) zero points for supervisory experience, which was
“Weeks” only; (2) 5 points for having a CDL; and (3) 50 points for having 21
years of experience in tractor/trailers, handling military equipment, ammunition
and explosives, loading and unloading trailers, and forklifts. R2, Exh. 5. at
unnumbered 1-2. Gibson scored a total of 60 points, calculated as follows: (1) 5
points for having 5 years of supervisory experience; (2) 5 points for having a CDL;
and (3) 50 points for having 20 years of experience in tractor/trailers, handling
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military equipment, ammunition and explosives, loading and unloading trailers,
and forklifts. Id.
Tumlin denied that race was a factor in his decision, but admitted that he
told an “off-colored” racial joke “sometime[] in the 1980’s,” but stated that it did
not play a part in his decision and had not happened again. R2, Exh. 1 at 60-61.
According to Tumlin, another candidate also scored 55 points, but Tumlin would
have picked Truss over that candidate because Truss already was working in
Ammunition. Id. at 67. Tumlin acknowledged that he was not aware that Truss
had supervised ten to thirteen employees for nine months.
In a deposition, Tumlin admitted that he overcalculated: (1) the number of
years of tractor-trailer experience that Gibson had and that he should have assigned
Gibson 5 points, instead of 10, for that category; and (2) the number of years of
material handling, ammunition and explosives, loading and unloading trailers, and
forklift experience that Gibson had, though these errors would not have affected
Gibson’s matrix score. R2, Exh. 1 at 25-39. He explained that his mistakes were
due to errors in reading Gibson’s resume. With this new calculation, Gibson’s
score would have been 55 points, rather than 60. Tumlin further stated that, were
he to recalculate Truss’s Matrix score, based only on Truss’s resume, he would
have assigned Truss 30 points, rather than 55. Id.
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The Secretary submitted other evidence in support of his motion, including
Truss’s resume, which stated, inter alia, that, since August 1997, he had worked as
a MVOL, where he:
served as the technical and administrative supervisor over an
organizational function or group in the Storage Division, Anniston,
Ammunition Command, exercising full [s]upervisory [r]esponsibility
over work operations. I plan daily, weekly, and monthly work
schedules and sequence of operations for subordinates. I establish
deadlines and priorities . . . . I determine how many assignments can
be done currently . . . . I select workers and assign tasks to be
performed. I explain work requirements, methods, and procedures. I
instruct subordinates in new procedures . . . . I review work in
progress and on completion. I investigate work-related problems.
R2, Exh. 3 at unnumbered 1. His resume further provided that, for several days a
year since April 1978, Truss also had worked as a Gunner Chief in Greenville,
Alabama, where his duties included counseling employees on their performance
and developing performance standards. Id. at unnumbered 2. Gibson’s resume
provided, inter alia, that, between March 1986 and June 1991, he worked as an
“Ammunition Inspection Supervisor” for J and L Associates in Fort McClellan,
Alabama, where he “[s]upervised operation of the Ammunition Supply Point.” Id.,
Exh. 4.
In arguing for summary judgment, the Secretary stated that, even assuming
that Truss could establish a prima facie case of race discrimination, Truss could not
show that the Tumlin’s legitimate, nondiscriminatory reason for not promoting
7
Truss was a pretext for race discrimination. He also argued that Truss could not
point to any evidence that would render Tumlin’s explanation unworthy of belief,
noting that Truss failed to list any supervisory experience on his resume, and his
only similarly-listed experience was in a lead, not a supervisory, position. He
contended that Truss could not establish pretext based on the evidence that Tumlin
told an off-color joke more than 15 years prior to the alleged discrimination or that
Tumlin miscalculated Gibson’s score on the matrix because such evidence did not
rebut Tumlin’s proffered reason “head on.” R1-16 at 10-11.
Truss responded, inter alia, that, based on the evidence that (1) Tumlin
miscalculated 5 out of 7 of the categories on Gibson’s matrix, and (2) Tumlin made
racial jokes in Truss’s presence in the 1980’s, a jury could disbelieve Tumlin’s
proffered reason and find that Tumlin purposefully miscalculated the scores to
allow Tumlin not to select Truss for the promotion based on his race. After hearing
oral argument on the motion, the district court granted summary judgment for the
employer. The court determined that Truss had failed to produce any evidence
establishing a disparity in qualifications for the position, and, even with the
miscalculations, Truss’s qualifications were not so superior to Gibson’s as “to
jump off the page and slap you in the face,” since Gibson possessed more
supervisory experience than Truss. R1-25 at 4. The court further determined that
8
Truss’s additional evidence of pretext, the racial joke made by Tumlin, without
more, did not create an issue of material fact on the issue of pretext because it was
a one-time incident that occurred 15 years prior to the allegedly discriminatory
hiring decision.
II. DISCUSSION
In his brief on appeal, Truss does not claim that he was more qualified than
Gibson, nor does he dispute that Gibson had more supervisory experience than he
did. Instead, Truss maintains that, in addition to the evidence establishing his
prima facie case of discrimination, Tumlin’s miscalculation of the matrix scores
and his previous racial joke were enough for a jury to have reasonably inferred that
Tumlin’s proffered reason (Gibson’s superior experience) was a pretext for racial
discrimination. He argues that the district court erred by not considering all of the
evidence together, including the prima facie evidence, when it concluded that
Truss had not met his burden. Furthermore, Truss maintains that it was for the jury
to decide whether Gibson’s total score on the matrix would have been lower than
Truss’s if a proper calculation was done, and he points out that supervisory
experience was only one of seven categories on the matrix and would be irrelevant
if Truss’s total matrix score was higher than Gibson’s.
We review a district court’s grant of summary judgment de novo, viewing
9
the evidence in the light most favorable to the party opposing the motion. Gitlitz v.
Compagnie Nationale Air France, 129 F.3d 554, 556-57 (11th Cir. 1997). Federal
Rule of Civil Procedure 56(c) states that summary judgment is appropriate “if the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.” “A
mere ‘scintilla’ of evidence supporting the opposing party’s position will not
suffice; there must be enough of a showing that the jury could reasonably find for
that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990).
Pursuant to the three-step procedure developed in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), for analyzing circumstantial
evidence of discrimination, if the plaintiff makes out a prima facie case of
discrimination, the employer must rebut that presumption by articulating a
legitimate, nondiscriminatory reason for not promoting the plaintiff. Carter v.
Three Springs Residential Treatment, 132 F.3d 635, 642-43 (11th Cir. 1998). If
the employer successfully proffers a legitimate, nondiscriminatory reason, the
plaintiff is left with the burden to show that the employer’s offered reasons are
pretextual. Id. at 643. We have held that “[t]he employer may fire an employee
for a good reason, a bad reason, a reason based on erroneous facts, or for no reason
10
at all, as long as its action is not for a discriminatory reason.” Nix v. WLCY
Radio/Rahall Commc’ns, 738 F.2d 1181, 1187 (11th Cir. 1984). In other words,
“[i]f the proffered reason is one that might motivate a reasonable employer, a
plaintiff cannot recast the reason but must meet it head on and rebut it[;] . . .
[q]uarreling with that reason is not sufficient.” Wilson v. B/E Aerospace, Inc., 376
F.3d 1079, 1088 (11th Cir. 2004) (internal citation omitted). Moreover, we have
held that stray comments made by a decisionmaker, “when read in conjunction
with the entire record, [may constitute] circumstantial evidence of those
decisionmakers’ discriminatory attitude[, and, i]f so, the court must then determine
whether such circumstantial evidence, along with other evidence (including [the
plaintiff’s] prima facie case), might lead a reasonable jury to disbelieve [the
decisionmaker’s] proffered reason.” Ross v. Rhodes Furniture, Inc., 146 F.3d
1286, 1292 (11th Cir. 1998).
Here, after the employer satisfied its intermediate burden of production by
providing evidence that Gibson was chosen because he had superior experience,
Truss had to produce evidence from which the jury could have reasonably inferred
that he was not promoted because he was black. See Ross, 146 F.3d at 1290
(characterizing the plaintiff’s burden of proof after the defendant proffered a
legitimate, nondiscriminatory reason as a requirement “to produce evidence from
11
which the jury could have reasonably inferred that [the plaintiff] was fired because
he is black”); see also Nix, 738 F.2d at 1184 (noting that the “ultimate question in a
disparate treatment case is not whether the plaintiff established a prima facie case
or demonstrated pretext, but whether the defendant intentionally discriminated
against the plaintiff” (internal quotations omitted)). Because he did not do so, the
district court did not err in granting summary judgment to the Secretary.2
First, evidence that Tumlin incorrectly calculated the matrix scores does not
dispute, “head on,” Tumlin’s reason for choosing Gibson. See Wilson, 376 F.3d at
1088. Even though the evidence suggests that Tumlin’s proffered reason was
based on incorrect information, this scoring error does not establish a genuine issue
of material fact that Tumlin’s proffered reason was pretext for racial
discrimination. See Nix, 738 F.2d at 1187-88. According to Tumlin’s admission,
Gibson actually outscored Truss in several categories and not just supervisory
experience. Second, evidence that Tumlin made a racial joke on one isolated
occasion over 15 years prior to the alleged discrimination and was reprimanded for
the incident likewise does not establish a genuine issue of fact of material fact that
2
Recently the Supreme Court expressed its disapproval of “[t]he visual image of words
jumping off the page to slap you (presumably a court) in the face,” which the district court in the
instant case used in analyzing the disparity of qualifications between Truss and Gibson. See Ash
v. Tyson Foods, Inc., ___ U.S. ___, ___, 126 S. Ct. 1195, 1197 (2006). However, because Truss
does not argue on appeal that he was more qualified than Gibson, we need not address the
implications of the district court’s reliance on such language.
12
Truss was not promoted because he is black, especially in light of the undisputed
evidence that Tumlin made no further racial comments, and the comment did not
occur in a decisionmaking context. See Saulsberry v. St. Mary’s Univ. of Minn.,
318 F.3d 862, 867-68 (8th Cir. 2003) (noting that “an isolated, stray comment
unrelated to the decisional process” did not establish discrimination).
While the district court may have strayed from the requirement in Ross that
it consider Truss’s prima facie case along with all of the other evidence in
determining pretext, under de novo review, “we review the judgment, not the
soundness of the district court’s explanation for it.”3 See Collado v. United Parcel
Serv., Co., 419 F.3d 1143, 1151 (11th Cir. 2005). Considering all of the evidence
together, including evidence establishing Truss’s prima facie case, errors in the
matrix calculations, and Tumlin’s racial joke, which occurred 15 years prior to the
alleged discrimination, we conclude that there is insufficient evidence for a jury to
have reasonably inferred that Truss was not promoted because he is black. See
Ross, 146 F.3d at 1291. Furthermore, even assuming that Truss could establish
that Tumlin’s reasons for not promoting Truss were untrue or that a correctly
calculated matrix would yield a superior score for Truss, there would still be
3
In its order, the district court, in distinguishing the instant case from Ross, stated that
“[i]n Ross, the plaintiff did not rely solely on an isolated racial remark as evidence of
discriminatory animus but had other circumstantial evidence sufficient to create an inference of
pretext.” R1-25 at 5.
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insufficient evidence that Tumlin acted with the necessary discriminatory animus.
See Scott v. Suncoast Beverages Sales, Ltd., 295 F.3d 1223, 1229 (11th Cir. 2002)
(“Although a comment unrelated to a termination may contribute to a
circumstantial case for pretext . . . , it will usually not be sufficient absent some
additional evidence supporting a finding of pretext.” (citation omitted)).
III. CONCLUSION
Because Truss did not present sufficient evidence that the defendant’s
legitimate, nondiscriminatory reason for failing to promote him was pretextual, the
district court did not err by granting summary judgment to the defendant.
AFFIRMED.
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