United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
July 16, 2007
FIFTH CIRCUIT
Charles R. Fulbruge III
____________ Clerk
No. 05-51064
____________
JUANITA ALVARADO,
Plaintiff-Appellant,
versus
TEXAS RANGERS; TEXAS DEPARTMENT OF PUBLIC
SAFETY; COLLEEN MCHUGH, Chairman of the Commission on
Public Safety; BRUCE CASTEEL, Ranger Chief,
Defendants-Appellees.
Appeal from the United States District Court
For the Western District of Texas
Before REAVLEY, GARZA, and DENNIS, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Juanita Alvarado (“Alvarado”) appeals the district court’s grant of summaryjudgment in favor
of her employer, the Texas Department of Public Safety (“DPS”), on her claim that she was denied
an appointment to DPS’s Texas Rangers Division (the “Rangers”) because of her sex (female), in
violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq.
I
Alvarado first joined DPS as a trooper in 1988.1 She subsequently worked in the Highway
Patrol Division and in the Criminal Law Enforcement Division’s Narcotics Service before becoming
a Sergeant in the Special Crimes Service in 1997. Over the next four years, Alvarado applied for a
Sergeant position with the Rangers four times but was unsuccessful on each attempt.
In late 2001, Alvarado applied to the Rangers for a fifth time. She was one of 146 applicants
for ten available Sergeant positions in the division. As she had done on four previous occasions,
Alvarado engaged in DPS’s “promotion and selection” process, which consisted of two steps: a
written examination covering technical job knowledge and related skills, and an appearance before
a six-member Oral Examining Board (the “Board”).2 All 146 applicants were ranked according to
their written exam scores, and the top fortyscorers))including Alvarado, whose score of 407.49 (out
of a possible 500) tied for twenty-fifth place))were selected to interview before the Board. Prior
to the interviews, the Rangers conducted background investigations of each candidate. Ranger
Captain Barry Caver (“Caver”) assigned Ranger Sergeant Hank Whitman (“Whitman”) to perform
Alvarado’s background investigation. The written results of the background investigations, along
with a personnel file created by the Human Resources Bureau (“HR”) for each candidate, were then
1
DPS has five major divisions: (1) the Driver License Division; (2) the Administration
Division; (3) the Texas Highway Patrol Division; (4) the Criminal Law Enforcement Division, which
consists of the three separate Services of Special Crimes, Narcotics, and Motor Vehicle Theft; and
(5) the Texas Rangers Division.
2
DPS regulations require that the Board be comprised of three members from the division
with the vacancy (in this case, the Rangers Division) and three members from other divisions or the
DPS Director’s staff. The regulations further provide that the Board must include at least one
African-American, one Hispanic, and one female, and that the supervisor of the open position should
not serve on the Board unless no other alternative exists.
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submitted to the Board. During the interviews, the Board members asked each candidate the same
core questions, which had been drafted by the Board members and approved by HR in advance. In
addition, the Board members were authorized to ask follow-up and candidate-specific questions. The
Board members were instructed to evaluate each candidate on a scale of 0 to 500, with the “objective
being to identify those who are the best qualified and to distinguish them by the rating” given.
Immediately following Alvarado’s appearance before the Board, each Board member
independently scored her interview as follows:
Ranger Captain Caver 300
Cleatis Buckaloo, Ranger Captain 390
Norris Akin, Ranger Lieutenant 345
Jose Morales, Motor Vehicle Theft Service Lieutenant 345
Roger Millican, Highway Patrol Sergeant 325
Rhonda Perry, Narcotics Sergeant 375
The Board members’ score sheets were forwarded to HR, where the high and low scores were
eliminated and the remaining scores were averaged to reach a Board score of 347.5 and an interview
ranking of twenty-ninth. The Board score was combined with Alvarado’s written exam score, as well
as her service and college education points, for a final cumulative score of 779.99. When the
candidates were ranked according to their cumulative scores, Alvarado placed twenty-ninth. The top
ten candidates, all of whom were male, were then offered the Ranger Sergeant positions.
When Alvarado did not receive an appointment to the Rangers, she brought the instant action,
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claiming that the Rangers had denied her a position on account of her sex in violation of Title VII.3
DPS moved for summary judgment, which the district court granted upon finding that Alvarado had
failed to establish a prima facie case of sex discrimination. Specifically, the district court determined
that Alvarado could not establish that she suffered an adverse employment action because a move
from her current Sergeant position with Special Crimes to a Sergeant position with the Rangers
would have been a purely lateral transfer, not a promotion. The court further found that “even
disregarding that [the position Alvarado sought] is a transfer, there is no indication that there is
anything inherently discriminatory in the process nor that Sgt. Alvarado has been discriminated
against.” On appeal, Alvarado argues that the district court erred in granting summary judgment for
DPS because: (1) she adduced evidence sufficient to allow a reasonable trier of fact to find that the
denial of a position with the Rangers was the denial of a promotion and, hence, constituted an adverse
employment action; (2) DPS failed to provide a legallysufficient, legitimate, nondiscriminatoryreason
for her non-selection; and (3) even if DPS had satisfied its burden of production, she produced
evidence sufficient for a reasonable jury to find that DPS’s reason was pretextual and the denial of
an appointment to the Rangers was motivated by her sex.
II
We review the district court’s grant of summary judgment de novo, applying the same legal
standard as the district court. Rachid v. Jack in the Box, Inc., 376 F.3d 305, 308 (5th Cir. 2004).
Summary judgment is appropriate when the evidence “show[s] that there is no genuine issue as to any
3
Alvarado also asserted several other claims, including claims of national origin
discrimination, retaliation, and violations of 42 U.S.C. §§ 1981 and 1983, as well as claims of sex
discrimination in connection with her four prior attempts to become a Ranger. The district court
dismissed all of those claims on various grounds, and Alvarado does not challenge those dismissals
on appeal.
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material fact and that the moving party is entitled to a judgment as a matter of law.” FED R. CIV. P.
56(c). We review all facts in the light most favorable to Alvarado. Rachid, 376 F.3d at 308.
III
Title VII proscribes an employer from discharging or otherwise discriminating against any
individual because of that individual’s sex. 42 U.S.C. § 2000e-2(a)(1). “The Title VII inquiry is
whether the defendant intentionally discriminated against the plaintiff.” Roberson v. Alltel Info.
Servs., 373 F.3d 647, 651 (5th Cir. 2004) (internal quotation marks and citations omitted).
Intentional discrimination can be established through either direct or circumstantial evidence.
Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219 (5th Cir. 2001). Because Alvarado presents no
direct evidence of discrimination, her claim is analyzed using the framework set forth in McDonnell
Douglas Corp. v. Green, 93 S. Ct. 1817 (1973). Id. Under this framework, a plaintiff must first
create a presumption of intentional discrimination by establishing a prima facie case. Id. The burden
then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000); Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 254-56 (1981). The burden on the employer at this stage “is one of
production, not persuasion; it ‘can involve no credibility assessment.’” Reeves, 530 U.S. at 142
(quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993)). If the employer sustains its
burden, the prima facie case is dissolved, and the burden shifts back to the plaintiff to establish either:
(1) that the employer’s proffered reason is not true but is instead a pretext for discrimination; or (2)
that the employer’s reason, while true, is not the only reason for its conduct, and another “motivating
factor” is the plaintiff’s protected characteristic. Rachid, 376 F.3d at 312.
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A
To establish a prima facie case of sex discrimination under Title VII, the parties agree that
Alvarado was required to show: (1) she is a member of a protected class; (2) she was qualified for
the position she sought; (3) she suffered an adverse employment action; and (4) others similarly
situated but outside the protected class were treated more favorably. See Willis v. Coca Cola
Enters., Inc., 445 F.3d 413, 420 (5th Cir. 2006); Urbano v. Cont’l Airlines, Inc., 138 F.3d 204, 206
(5th Cir. 1998). The district court determined that Alvarado could not make out the third element
of her prima facie case because the evidence established, as a matter of law, that the position she
sought with the Rangers would have been a purely lateral transfer; therefore, the decision not to
transfer her to the Rangers was not an adverse employment action within the meaning of Title VII.4
It is well established that the denial of a purely lateral transfer is not an adverse employment
action redressible under Title VII. See Burger v. Cent. Apartment Mgmt., Inc., 168 F.3d 875, 879
(5th Cir. 1999) (“Refusing an employee’s request for a purely lateral transfer does not qualify as an
ultimate employment decision [actionable under Title VII].”). It is equally well established, however,
that the denial of a promotion is an actionable adverse employment action. See, e.g., Breaux v. City
of Garland, 205 F.3d 150, 157 (5th Cir. 2000) (“Adverse employment actions are discharges,
demotions, refusals to hire, refusals to promote, and reprimands.”) (internal quotation marks and
citation omitted). Alvarado contends that the summary judgment record is replete with evidence
indicating that her non-selection to the Rangers was the denial of a promotion, not merely the denial
of a lateral transfer. DPS responds that Alvarado’s claim rests on the mere fact that she finds the
thought of being a Ranger more alluring than her current position and contends that she has come
4
It is undisputed that Alvarado satisfied the remaining three elements of her prima facie case.
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forward with no objective evidence that a move to the Rangers would have been a promotion.
Although we have never spoken precisely on what distinguishes a purely lateral transfer from
a promotion, we have determined on several occasions when a transfer was the equivalent of a
demotion and, hence, qualified as an adverse employment action. In Click v. Copeland, 970 F.2d 106
(5th Cir. 1992), for example, we held that the transfers of two deputy sheriffs from the law
enforcement division to positions as jail guards could be considered demotions, even though the
transfers were not accompanied by reductions in salary, because there was evidence that: (1) the jail
guard positions were less interesting and less prestigious than the law enforcement positions;
(2) “everybody” viewed a transfer from detention to law enforcement as a promotion and such
transfers were rarely appealed, unlike transfers from law enforcement to detention, which few people
requested and which were often appealed; and (3) there was a general preference for law enforcement
positions, as “all” jail guards would like to be doing law enforcement work. Click, 970 F.2d at 109.5
Similarly, in Forsyth v. City of Dallas, 91 F.3d 769 (5th Cir. 1996), we recognized as demotions the
transfers of two police officers from the intelligence unit to night uniformed patrol positions, given
that the patrol positions involved less prestige, less favorable working hours, and less interesting
work, and officers had been transferred to patrol positions in the past as a form of discipline. Forsyth,
91 F.3d at 774. And in Sharp v. City of Houston, 164 F.3d 923 (5th Cir. 1999), we upheld the jury’s
determination that the transfer of a police officer from an elite horse-mounted division to a teaching
post at the policy academy was an adverse employment action because the move from the “elite”
5
Although we also noted in Click that the plaintiffs lost seniority rights with their transfers,
we did so after we had already determined that the transfers could be considered demotions. See
Click, 970 F.2d at 110. Thus, contrary to the district court’s suggestion in this case, our conclusion
in Click that the plaintiffs’ transfers could be considered demotions did not turn on the fact that the
transfers caused the plaintiffs to lose seniority rights.
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Mounted Patrol Division to the “less prestigious” teaching post could have been viewed, objectively,
as a demotion. Sharp, 164 F.3d at 928, 933.6
Thus, “[t]o be equivalent to a demotion, a transfer need not result in a decrease in pay, title,
or grade; it can be a demotion if the new position proves objectively worse))such as being less
prestigious or less interesting or providing less room for advancement.” Id. at 933 (citing Forsyth,
91 F.3d at 774; Click, 970 F.2d at 109); see also Serna, 244 F.3d at 483 (“A transfer, even without
an accompanying cut in pay or other tangible benefits, may constitute an adverse employment action .
. . .”); Hinson v. Clinch County, Ga. Bd. of Educ., 231 F.3d 821, 829 (11th Cir. 2000) (“In a Title
6
By contrast, in Serna v. City of San Antonio, 244 F.3d 479 (5th Cir. 2001), we concluded
that the evidence was insufficient to establish that the transfer of an officer from the Downtown Foot
and Bike Patrol Unit to a regular patrol unit in another part of San Antonio was a demotion. Serna,
244 F.3d at 483-85. Although “the evidence at trial tended to show . . . that the Downtown Foot and
Bike Patrol Unit was more prestigious than other patrol units and that some officers preferred its
tactics to those of other patrol units,” we nevertheless held that “[t]here was no evidence to suggest
that a transfer to a regular patrol unit was generally considered to be a demotion or any kind of
punishment.” Id. at 484. In so holding, we focused on the following facts: (1) Serna suffered no loss
of pay or benefits; (2) there was no objective evidence that his promotional opportunities were
hampered by the transfer; (3) most of his fellow officers worked in regular patrol units and spent
substantial portions of their careers in such units, and there was no evidence that the regular patrol
unit was an objectively worse assignment; and (4) “all Serna’s testimony established was that he felt
stigmatized and injured by his transfer,” but this negative perception of the move was purely
subjective and not shared by other officers. Id. at 484-85. We further noted that unlike the officers
in Click and Forsyth, Serna presented no evidence that “regular patrol assignments were considered
punishment or even that they were considered less desirable generally” or that “officers were
clamoring to get out of regular patrol assignments.” Id. at 485. Thus, the totality of the
circumstances in Serna did not support a finding that the transfer was the objective equivalent of a
demotion.
Although Click, Forsyth, Sharp, and Serna all involved claims of First Amendment retaliation
under 42 U.S.C. § 1983, rather than claims of discrimination under Title VII, they are nevertheless
relevant because the definition of “adverse employment action” under § 1983, like Title VII’s
definition of “adverse employment action,” includes demotions. See Sharp, 164 F.3d at 933 n.21
(recognizing that the definition of an adverse employment action may be broader under § 1983 than
under Title VII, but explaining that the potential differences between the definitions were immaterial
to the analysis because a demotion qualifies as an adverse employment action under both statutes).
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VII case, a transfer to a different position can be ‘adverse’ if it involves a reduction in pay, prestige
or responsibility.”).7 Whether the new position is worse is an objective inquiry. See Pegram, 361
F.3d at 283 (citing cases). “[A] plaintiff’s subjective perception that a demotion has occurred is not
enough.” Forsyth, 91 F.3d at 774; see also Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757,
771 n.8 (5th Cir. 2001) (“[T]he focus is on the objective qualities of the positions, rather than an
employee’s subjective preference for one position over another. That subjective preference, alone,
is an insufficient basis for finding an adverse employment action.”); Serna, 244 F.3d at 483 (“[I]t is
insufficient for a plaintiff to show merely that he has been transferred from a job he likes to one he
considers less desirable. Rather, a plaintiff must produce enough evidence to allow a reasonable trier
of fact to conclude that, when viewed objectively, the transfer caused [him] harm . . . .”).
7
DPS argues that the fact that a transfer entails a loss of prestige cannot render it an adverse
employment action. In support of this argument, DPS cites Pegram v. Honeywell, Inc., 361 F.3d 272
(5th Cir. 2004), where we stated: “Circuit precedent establishes that in cases where the evidence
produces no objective showing of a loss in compensation, duties, or benefits, but rather solely
establishes that a plaintiff was transferred from a prestigious and desirable position to another
position, that evidence is insufficient to establish an adverse employment action.” Pegram, 361 F.3d
at 283. In Pegram, however, the issue before us was whether the plaintiff’s subjective belief that his
Total Plant Account Manager position was more desirable and prestigious than the Service Account
Manager position to which he had been transferred was sufficient to render the “unwanted transfer”
an adverse employment action. See id. at 277, 283. Thus, Pegram stands for the proposition that
a plaintiff must “assert more than a loss of subjective prestige,” id. at 284 (emphasis added); it does
not, as DPS suggests, mean that a plaintiff cannot rely on a loss of objective prestige as evidence that
a transfer was really a demotion. Cf. Doe v. Dekalb County Sch. Dist., 145 F.3d 1441, 1452 n.19
(11th Cir. 1998) (“[W]e believe that loss of prestige, either within an organization or with regard to
the general public, is an objective factor that a court should consider as part of the reasonable person
test [for whether a transfer is an adverse employment action].”).
DPS also relies on Serna, but it is not to the contrary. Serna does not hold that a loss of
prestige is never relevant to the question of whether a transfer is the objective equivalent of a
demotion. Rather, the objective evidence in Serna that the Downtown Foot and Bike Patrol was
considered a prestigious unit, when considered in light of the contrary evidence indicating that a move
from that unit to a regular unit was not a demotion, was simply insufficient to establish that the
plaintiff suffered anything more than a lateral transfer on the facts of that case. See Serna, 244 F.3d
at 484-85.
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Adapting this analysis to the promotion context, we conclude that the denial of a transfer may
be the objective equivalent of the denial of a promotion, and thus qualify as an adverse employment
action, even if the new position would not have entailed an increase in pay or other tangible benefits;
if the position sought was objectively better, then the failure to award the position to the plaintiff can
constitute an adverse employment action. See Sharp, 164 F.3d at 933. In determining whether the
new position is objectively better, a number of factors may be relevant, including whether the
position: entails an increase in compensation or other tangible benefits; provides greater responsibility
or better job duties; provides greater opportunities for career advancement; requires greater skill,
education, or experience; is obtained through a complex competitive selection process; or is otherwise
objectively more prestigious.8 This is an objective inquiry; neither the employee’s subjective
impressions as to the desirability of the new position nor the employee’s idiosyncratic reasons for
preferring the new position are sufficient to render the position a promotion. See Pegram, 361 F.3d
at 283.
In this case, there was evidence sufficient to raise a genuine issue of material fact on whether
Alvarado’s non-selection to the Rangers was an adverse employment action. Viewed in the light
8
See, e.g., Pegram, 361 F.3d at 284 (identifying as a relevant factor differences in
compensation); Serna, 244 F.3d at 484-85 (differences in pay and benefits; impact of the move on
opportunities for advancement; whether the move is generally viewed as a demotion); Sharp, 164
F.3d at 933 (differences in prestige; impact of the move on opportunities for advancement; whether
an organization is elite); Forsyth, 91 F.3d at 774 (whether job duties are more interesting; differences
in prestige; whether the position is generally more sought after); Click, 970 F.2d at 110 (whether job
duties are more interesting; differences in prestige; general perception of the move as a demotion);
see also Hinson, 231 F.3d at 829 (differences in pay, prestige, and level of responsibility); Stewart
v. Ashcroft, 352 F.3d 422, 426-27 (D.C. Cir. 2003) (impact of the move on opportunities for
advancement; differences in supervisory responsibilities).
This list is not meant to be exhaustive, as there may well be other relevant objective factors,
and no single factor is determinative. Rather, whether a transfer could be viewed as the objective
equivalent of a promotion depends upon the totality of the circumstances in the particular case.
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most favorable to Alvarado, there is summary judgment evidence indicating that: (1) the Rangers are
an elite unit within DPS and have a unique and illustrious history; (2) an appointment to the Rangers
is, according to DPS, “one of the most competitive goals to which a law enforcement officer may
aspire”; (3) the “promotion and selection” process is complex and rigorous; (4) the competition to
become a Ranger is “fierce,” as evidenced by the large number of applicants for the few available
positions, and is steeper than the competition for positions with any of DPS’s other divisions; (5) the
minimum qualifications for becoming a Ranger Sergeant are higher than the minimum qualifications
for becoming a Sergeant with Special Crimes; (6) the Rangers work under less supervision and have
greater job responsibilities, including being the primary investigators of homicides and handling other
major “high-profile” and “sensitive” cases; (7) although DPS regulations do not officially classify
Ranger appointments as promotions because they do not entail an increase in pay, receiving an
appointment to the Rangers is generally viewed within DPS as a promotion; and (8) newly appointed
Rangers are honored at a special “promotional ceremony” in Austin. Thus, contrary to DPS’s
assertion, Alvarado is not relying on a mere loss of subjective prestige or some idiosyncratic
preference for being a Ranger. This is not a case where a supervisor has denied an employee’s
request, unsolicited by the employer, for a transfer to another position with the employer for reasons
personal to the employee, such as working hours or a work location that the employee perceives as
preferable to those of her current position. Rather, this is a case where the employer was actively
seeking candidates for ten positions in an elite law enforcement unit and devised a complex selection
process for choosing among the 146 applicants clamoring for those spots. The complexity of the
selection process and the level of competition for the limited number of positions with the Rangers
are significant objective facts relevant to the question of whether the denial of a position with the
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Rangers was the equivalent of the denial of a promotion.
Because Alvarado has produced objective summary judgment evidence indicating that her
non-selection to the Rangers was the denial of a promotion, we conclude that a reasonable juror
could find that she suffered an adverse employment action. Accordingly, the district court erred in
granting summary judgment to DPS on the ground that Alvarado failed to make a prima facie
showing of sex discrimination.9
B
Because Alvarado raised genuine issues of material fact on each element of her prima facie
case, DPS was required to produce evidence tending to show that it had a legitimate,
nondiscriminatory reason for not appointing her to the Rangers in order to meet its burden under the
second step of the McDonnell Douglas analysis. See Burdine, 450 U.S. at 254-56; Patrick v. Ridge,
394 F.3d 311, 316 (5th Cir. 2004). Alvarado contends that DPS’s proffered reason for her non-
selection))her failure to score among the top ten candidates in the promotion and selection
process))is insufficient to satisfy this burden.
Alvarado does not dispute that her final score in the promotion and selection process put her
in twenty-ninth place or that the candidates with the top ten scores were selected. Nor does she
assert that a candidate’s performance in the promotion and selection process could never be a
9
To the extent the district court, in addition to finding that Alvarado failed to show an
adverse employment action, also found that Alvarado failed to create a fact issue on the ultimate issue
of sex discrimination, it is undisputed that the district court made this determination without engaging
in the second and third steps of the McDonnell Douglas analysis, which was improper. Because the
grant of summary judgment may nevertheless have been appropriate if DPS came forward with a
legally sufficient, legitimate, nondiscriminatory reason for Alvarado’s non-selection and Alvarado
failed to show that the reason was pretextual, we find it necessary to consider the parties’ arguments
on those issues.
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legitimate, nondiscriminatory reason for not selecting the candidate for the Rangers. Instead,
Alvarado contends that DPS has offered no evidence that her interview score))which she claims was
the driving force behind her overall standing in the promotion and selection process rankings))was
determined by sex-neutral factors or characteristics; thus, Alvarado argues, DPS’s ostensibly
nondiscriminatory reason for her non-selection is really the sort of nonspecific, content-less
explanation that this court has found insufficient to satisfy an employer’s burden of production. See
Patrick, 394 F.3d at 316-17 (concluding that the employer’s proffered reason for failing to promote
an employee))that the employee was “not sufficiently suited” for the position))was insufficient to
satisfy the employer’s burden of production because the employer offered no explanation or evidence
as to what made the employee “not sufficiently suited” for the position).
The summaryjudgment evidence bears out Alvarado’s contention that a candidate’s interview
score was a determinative factor in whether the candidate landed in the top ten in the final rankings.
Of the ten candidates ultimately appointed to the Rangers, nine scored in the top ten in the oral
interviews (the other candidate scored eleventh), while only four scored in the top ten on the written
exam (the other six candidates scored twelfth, seventeenth (tie), seventeenth (tie), twenty-seventh,
thirty-first, and thirty-third); the candidates with the second, fifth, and sixth highest scores on the
written exam found themselves outside the top ten. Furthermore, three of the men in the top ten
actually scored worse than Alvarado on the written exam. Thus, the summary judgment evidence
indicates that the decision as to who made the Rangers was heavily influenced by the Board members’
subjective evaluations of the candidates’ performances in the oral interviews.
An employer’s subjective reason for not selecting a candidate, such as a subjective assessment
of the candidate’s performance in an interview, may serve as a legitimate, nondiscriminatory reason
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for the candidate’s non-selection. See id. at 317 (recognizing that McDonnell Douglas does not
preclude an employer from relying on subjective reasons for its personnel decisions); see also
Chapman v. AI Transport, 229 F.3d 1012, 1034 (11th Cir. 2000) (“It is inconceivable that Congress
intended anti-discrimination statutes to deprive an employer of the ability to rely on important criteria
in its employment decisions merely because those criteria are only capable of subjective evaluation.”).
Such a reason will satisfy the employer’s burden of production, however, only if the employer
articulates a clear and reasonably specific basis for its subjective assessment. See Burdine, 450 U.S.
at 258; Patrick, 394 F.3d at 316-17; see also Chapman, 229 F.3d at 1034 (“A subjective reason is
a legally sufficient, legitimate, nondiscriminatory reason if the defendant articulates a clear and
reasonably specific factual basis upon which it based its subjective opinion.”); EEOC v. Target Corp.,
460 F.3d 946, 957-58 (7th Cir. 2006) (agreeing with the Eleventh Circuit that “an employer must
articulate reasonably specific facts that explain how it formed its [subjective] opinion of the applicant
in order to meet its burden under Burdine”). DPS has failed to do so here.
Although the evidence shows that Alvarado received interview scores of 300, 325, 345, 345,
375, and 390, for a cumulative score of 347.5, DPS has offered neither an explanation nor evidence
of how or why the interviewers arrived at those scores. Nor has DPS provided any evidence of why
the Board rated the other candidates, particularly the ten men who were selected for the Rangers,
higher than Alvarado. Alvarado’s score sheets contain no notes or comments on her interview
performance, and DPS has not pointed to any deposition testimony by the Board members that would
shed light on why they scored Alvarado and the other candidates the way they did. Without some
indication of the factual basis or specific reasons for Alvarado’s interview score, the score says
nothing about whether her non-selection for the Rangers was the product of intentional sex
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discrimination. Instead, the score “is at least as consistent with discriminatory intent as it is with
nondiscriminatoryintent” because Alvarado may well have received the relativelylow interview score
on account of her sex. See Patrick, 394 F.3d at 317. Because DPS has pointed to no evidence in the
summary judgment record that clarifies or expands upon why Alvarado received the relatively low
interview score, DPS’s ostensibly legitimate, nondiscriminatory reason for Alvarado’s non-
selection))her performance in the promotion and selection process))is insufficient to satisfy DPS’s
burden of production. See, e.g., Target, 460 F.3d at 958-59 (holding that the company’s stated
reason for not hiring one of the plaintiffs))its determination, based upon the plaintiff’s interview, that
he did not meet the requirements for the position))was insufficient to satisfy its burden of production
because the company failed to articulate what criteria informed its decision and what requirements
the plaintiff did not meet); cf. Bass v. Bd. of County Comm’rs, Orange County, Fla., 256 F.3d 1095,
1106 (11th Cir. 2001) (holding that the employer met its burden of production because its proffered
reason for not hiring the plaintiff))his poor interview))was supported by reasonably clear and
specific explanations from the interviewers as to what made the plaintiff’s interview “poor”);
Chapman, 229 F.3d at 1035 (same).
Our conclusion that DPS has failed to satisfy its burden of production is not an indictment of
the promotion and selection process itself. We do not doubt the prudence of the promotion and
selection process as a method of identifying those best suited to work as Rangers, and we agree with
the district court that nothing in the summary judgment evidence indicates that the process is
inherently discriminatory. We simply hold that, given DPS’s failure to evidence the grounds for the
Board’s scoring of Alvarado and the other candidates in the second, subjective stage of the promotion
and selection process, DPS has failed to proffer a reason for Alvarado’s non-selection that, if
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believed, would allow the jury to conclude that Alvarado’s non-selection was not the result of
intentional sex discrimination.
To the extent DPS asserts on appeal that Alvarado did not receive an appointment to the
Rangers because she was not the among the best qualified candidates, this assertion is also insufficient
to satisfy DPS’s burden of production. DPS has pointed to no evidence of the qualifications of the
ten candidates selected to join the Rangers; rather, the only information about those candidates cited
by DPS are their scores in the promotion and selection process. Without evidence of the candidates’
relative qualifications, the mere assertion that DPS hired the best qualified candidates is insufficient
to satisfy its burden of production, as it does not afford Alvarado “a full and fair opportunity to
demonstrate pretext.” See Burdine, 450 U.S. at 254-56 & n.9 (“[T]he defendant must clearly set
forth, through the introduction of admissible evidence, the reasons for the plaintiff’s rejection.”)
(emphasis added); see also Steger v. Gen. Elec. Co., 318 F.3d 1066, 1076 (11th Cir. 2003) (“A
defendant may not merely state that the employment decision was based on the hiring of the ‘best
qualified’ applicant, but must articulate specific reasons for that applicant’s qualifications, such as
seniority, length of service in the same position, personal characteristics, general education, technical
training, experience in comparable work or any combination of such criteria.”) (internal quotation
marks and citation omitted).
Because DPS has not satisfied its burden of producing evidence tending to show that it had
a legitimate, nondiscriminatory reason for not appointing Alvarado to the Rangers, we do not reach
the question of whether Alvarado could demonstrate pretext or otherwise show that her failure to
receive an appointment to the Rangers was actually motivated by sex discrimination. Alvarado’s
prima facie case “pretermits summary judgment dismissal of her action, leaving the ultimate question
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of discriminatory animus to be determined by the trier of fact.” Patrick, 394 F.3d at 320.
IV
For the foregoing reasons, we reverse the district court’s grant of DPS’s motion for summary
judgment on Alvarado’s Title VII claim and remand this case for further proceedings consistent with
this opinion.
REVERSED AND REMANDED.
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