United States Court of Appeals,
Fifth Circuit.
No. 93-8227.
Glenda DAVIS, Plaintiff-Appellant,
v.
CHEVRON U.S.A., INC., Defendant-Appellee.
Feb. 28, 1994.
Appeal from the United States District Court for the Western
District of Texas.
Before HIGGINBOTHAM and WIENER, Circuit Judges, and KAUFMAN,*
District Judge.
PER CURIAM:
Plaintiff-Appellant Ms. Glenda Davis (Davis) sued Defendant-
Appellee Chevron USA, Inc. (Chevron) under Title VII of the Civil
Rights Act of 1964, alleging that Chevron failed to hire her
because she is a woman. Chevron filed a motion for summary
judgment, which the district court granted, finding that Davis had
failed to state a prima facie case of disparate treatment. Davis
appeals, and we affirm.
I
FACTS AND PROCEEDINGS
Responding to advertisements in the local papers, Davis
applied to Chevron for a position as an oil refinery operator. The
application process had two stages: an initial screening, which
included a simple field test and an interview with only one person;
*
District Judge of the District of Maryland, sitting by
designation.
1
and follow-up interviews with two successive panels, each composed
of two evaluators. Davis was one of 27 applicants who passed the
initial screening, but she was not among the several who were
ultimately offered a job. The day that she received Chevron's
"rejection" letter, Davis concluded that she was a victim of gender
discrimination in contravention of Title VII of the Civil Rights
Act of 1964. After receiving a no cause determination from the
Equal Employment Opportunity Commission, Davis initiated this
lawsuit.
To support her claim of gender discrimination, Davis alleges
that one of her interviewers—Mr. Jelercic—"stared at [her] from the
neck down." She attaches significance to margin notes that he made
on his written evaluation form: pink glasses, short brown hair,
and lisp (or—as Chevron suggests—perhaps "limp"). She claims that
Jelercic asked about her ability to supervise and resolve disputes
with and among men. She also complains that he asked her a "no
win" question: what made her "stand out" as a candidate. She
states that Jelercic gave her "the lowest scores" of all her
evaluators, and suggests that—taken together—these observations
reveal a "sexist" attitude on the part of Jelercic. Davis contends
that this sexism resulted in her not being offered the position of
oil refinery operator.
Davis does not deny that the job of refinery operator is
physically demanding. An operator must regularly climb ladders,
open valves, use high-pressure fire hoses, and respond rapidly in
emergencies. Neither does Davis deny that she has a history of
2
knee injuries. In 1983, Davis suffered a knee injury while working
as a refinery operator at a Texaco facility and took medical
retirement. Six years later, she went back to work, taking a job
with Texacan; but within two years she suffered another on-the-job
injury, damaging the same knee so severely that she needed knee
replacement surgery. And although she claims that she would have
become fit for duty within a "couple of months," Davis concedes
that she was not physically qualified for the Chevron job at the
time she applied.
During the application process, several evaluators expressed
concerns about Davis' knee injury, her physical condition, and her
record of work-related accidents. Ms. Carol Leverett (Leverett),
the person who initially screened Davis, gave her a relatively low
score in the category of safety attitude and record (a 5 out of 10)
and noted Davis' knee injury on her evaluation form. In her
affidavit, Leverett also voiced concerns about Davis' physical
condition, noting that during the field test she was afraid that
"[Davis] was going to hurt herself" and that "[Davis] climbed the
ladder very slowly." True, Leverett passed Davis through the
initial screening, but she gave Davis the lowest overall score
(again, a 5 out of 10) of the interviewers whose evaluation forms
are in the Record Excerpts provided by both parties.
Although Jelercic gave Davis a low score in the category of
safety attitude and record (a 3 out of 10) and noted that he was
"concerned about [Davis'] safety record," he gave her a fairly high
score overall (a 7 out of 10). Wayne Nolde, another interviewer,
3
also gave Davis a relatively low score in the category of "safety
attitude" and noted that Davis' "physical condition is
questionable." Nolde reiterated this concern in his deposition,
stating that Davis walks with a "distinct limp." Significantly, of
the 27 applicants who passed the initial screening, Davis received
the lowest average score in the category of safety attitude and
record.
Chevron was also concerned about Davis' weight and her general
physical condition. Davis is apparently somewhat heavy, and this
may have heightened interviewers' concerns about her ability to
meet the challenges of a physically demanding job, as well as her
prospects of recovering from knee surgery.
Discovery proceeded to completion in this case, with only
Chevron requesting written discovery. Although Davis targets
Jelercic as the interviewer who evidenced gender bias, she chose
not to depose him. After the close of discovery, Chevron filed a
motion for summary judgment. The district court granted the
motion, concluding that Davis had failed to make out a prima facie
case of gender discrimination. Davis timely appealed.
II
STANDARD OF REVIEW
We review the district court's grant of summary judgment under
the same standards that guided it.1 We affirm a grant of summary
judgment when no genuine issue of material fact exists and the
1
Walker v. Sears, Roebuck, & Co., 853 F.2d 355, 358 (5th
Cir.1988).
4
movant is entitled to judgment as a matter of law.2 A dispute
about a material fact is genuine if the "evidence is such that a
reasonable jury could return a verdict for the non-moving party."3
When the record—taken as a whole—could not lead a rational trier of
fact to find for the nonmoving party, then there is no genuine
issue for trial.4
III
ANALYSIS
To defeat Chevron's Motion for Summary Judgment, Davis has to
make a showing sufficient to establish the putative existence of
every element that is essential to her case.5 In other words, she
must present a prima facie case. Otherwise, "there can be no
genuine issue as to any material fact, [because] a complete failure
of proof concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial."6 There are
two methods of establishing a prima facie case of disparate
2
Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct.
2548, 2552-54, 91 L.Ed.2d 265 (1986); see also Fed.R.Civ.P.
56(c).
3
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106
S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
4
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)
(the nonmovant "must do more than simply show that there is some
metaphysical doubt as to the material facts").
5
Celotex, 477 U.S. at 322, 106 S.Ct. at 2552.
6
Id. at 323, 106 S.Ct. at 2552 (internal quotation marks
omitted).
5
treatment under Title VII: direct and indirect.7 Davis' claim
fails under either approach.
A. Direct Proof of Gender Discrimination
Because direct evidence of employment discrimination is rare,
courts have devised indirect or inferential methods of proving such
discrimination.8 If there is direct evidence that an employer
placed substantial negative reliance on an illegitimate criterion
in reaching an employment decision, however, resort to inferential
methods of proof is unnecessary.9 Davis asserts that such direct
proof exists in this case. We disagree.
As noted earlier, Davis alleges that one of her
interviewers—Jelercic—"stared at [her] from the neck down." She
also points to marginal notes written by Jelercic on his evaluation
form to the effect that Davis wore "pink glasses," had "short brown
hair," and had a "lisp" (or perhaps a "limp"). Davis also suggests
that some of Jelercic's questions were inappropriate. She claims
that he questioned her about her ability to supervise men, and that
he asked her what made her "stand out" as a candidate. She
7
See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 270-
72, 109 S.Ct. 1775, 1801-02, 104 L.Ed.2d 268 (1989) (O'Connor,
J., concurring); Trans World Airlines, Inc. v. Thurston, 469
U.S. 111, 121, 105 S.Ct. 613, 621, 83 L.Ed.2d 523 (1985) (the
McDonnell Douglas-Burdine procedural minuet or indirect proof
method "is inapplicable where the plaintiff presents direct
evidence of discrimination").
8
See generally Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); McDonnell
Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973) (establishing the procedural "minuet" for indirect proof
of disparate treatment).
9
See supra note 7.
6
states—erroneously—that Jelercic gave her "the lowest scores" of
all her evaluators and suggests that all these observations—taken
together—reveal his "sexism." Davis contends that this sexism
resulted in her being rejected for the position of oil refinery
operator. We find Davis' "direct evidence" unconvincing.
In Brown v. East Mississippi Electric Power Ass'n, we defined
direct evidence in the employment discrimination context:
"[d]irect evidence is evidence which, if believed, proves the fact
[of discriminatory animus] without inference or presumption."10 In
that case we found that a supervisor's open and routine use of
racial slurs "constitutes direct evidence that racial animus was a
motivating factor ..." in employment decisions.11 Similarly, in
Price Waterhouse v. Hopkins, the Supreme Court indicated the kind
of comments that constitute direct evidence of gender
discrimination.12 In that case, one partner referred to the
plaintiff as "macho."13 Another suggested that she "overcompensated
for being a woman."14 A third advised her to take "a course at
charm school." And a fourth advised her to "walk more femininely,
10
Brown v. East Mississippi Elec. Power Ass'n, 989 F.2d 858,
861 (5th Cir.1993).
11
Id.
12
Price Waterhouse v. Hopkins, 490 U.S. 228, 235, 109 S.Ct.
1775, 1782, 104 L.Ed.2d 268 (1989). In her concurring opinion,
which was necessary to create a majority ratio decidendi, Justice
O'Connor makes it clear that such comments constitute direct
evidence of discrimination. 490 U.S. at 270-71, 109 S.Ct. at
1801-02.
13
Id.
14
Id.
7
talk more femininely, dress more femininely ... and wear jewelry."15
Like the supervisor's comments in Brown, these comments directly
suggest the existence of bias; no inference is necessary. In both
cases, the offending comments cannot reasonably be interpreted as
anything other than a reflection of bias (either racial or
gender-based).
The "evidence" adduced by Davis is of an altogether
different—and less compelling—character. Even after viewing this
evidence in the light most favorable to Davis, as we must in
reviewing a district court's grant of summary judgment, and even
after giving Davis the benefit of all reasonable inferences, we are
unpersuaded. As noted above, Davis attaches significance to the
marginalia on Jelercic's evaluation form: pink glasses, short
brown hair, and lisp or "limp." Davis fails to mention, however,
that Jelercic also wrote "black shirt" at the same place on his
form. She also omitted mention of the fact that these notations
appear at the top of the evaluation form, right under the name of
the applicant ("G. Davis"). But these additional facts that Davis
omits help to reveal the true nature of the marginalia. As Chevron
suggests, Jelercic doubtless made these notes to jog his memory, to
allow him to recall—during the ensuing hiring decisions—which
applicant went with which evaluation form (there were 27
applicants), to allow him to do his job. By presenting only some
of the facts, Davis attempts to transform innocent mnemonic notes
into an obsession with her appearance.
15
Id.
8
Similarly, Davis attaches great significance to her assertion
that Jelercic "stared at [her] from the neck down," while
simultaneously de-emphasizing her pronounced limp, her generally
poor physical condition, her heaviness, and her recent surgery
(which was on her knee and therefore "below her neck"). All of
these conditions were noted by her interviewers, and any of them
explains an interviewer's interest in surveying her "from the neck
down" to glean her fitness for a physically-demanding job.
Intent on making Jelercic appear sexist, Davis incorrectly
states that he "gave her the lowest scores, including a three (out
of 10) on safety attitude/record." Generally speaking, however,
Jelercic did not give Davis low scores. Of the three interviewers
whose evaluation forms are provided in Appellee's Record Excerpts,
Ms. Leverett—the only woman who reviewed Davis' application—gave
her the lowest overall score (a 5 out of 10). Jelercic generally
gave Davis fairly high scores. He did give her a relatively low
score in the category of safety attitude and record (3 of 10), but
so did everyone else. He also forthrightly noted his concerns at
the bottom of his evaluation form: "concerned about safety
record." This concern was clearly shared by other interviewers,
for Davis received the lowest average safety score of all 27
applicants—a mathematical fact that reflects a real consensus among
her interviewers.
Finally, Davis avers that Jelercic asked her sexist questions.
He allegedly asked her "what would make her stand out from other
applicants." But we perceive this to be a perfectly appropriate
9
question. Indeed, it is the key question in essentially every
application process: what distinguishes a particular applicant
from other applicants (in this case, 26 other applicants).
Only slightly more problematic is Jelercic's alleged question
concerning Davis' ability to supervise and handle disputes with and
among men. This is the sole item of direct evidence that even
remotely raises the specter of gender consciousness. But we
certainly cannot say that, standing alone, this question indicates
gender animus. Indeed, as most of Davis' coworkers would have been
men, it was important for Chevron to know that she had no such
animus towards—or discomfort with—men.
Davis fails to adduce any significant direct evidence of
gender bias. A rational trier of fact might conclude that Davis'
allegations present a scintilla of evidence, but a mere scintilla
is not enough to defeat a motion for summary judgment.16
Additionally, all of Davis' allegations are directed at one person:
Jelercic. Yet Jelercic was but one of seven persons involved in
the decision not to hire Davis, and Davis does not explain how
Jelercic's alleged gender bias could have produced the unanimous
decision not to hire her; she simply points to the fact of her
rejection. In conclusion, Davis' direct evidence is simply too
weak to defeat Chevron's Motion for Summary Judgment: it is not
even suggestive. Even if believed, it fails to prove that
Chevron's hiring process was infected with gender bias, as is
16
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986).
10
required by Brown.17
B. Inferential Proof of Gender Discrimination
Davis also attempts to prove gender bias by resorting to the
inferential proof process established in McDonnell Douglas v. Green
and Texas Department of Community Affairs v. Burdine.18 The
three-step McDonnell Douglas-Burdine "minuet" structures the
process of proving disparate treatment inferentially, rather than
directly.19 Those three steps are: (1) The plaintiff must prove—by
a preponderance of the evidence—a prima facie case of disparate
treatment; (2) if the plaintiff is successful, the burden shifts
to the defendant to proffer a legitimate, nondiscriminatory reason
for its decision, and (3) if that is done, the plaintiff may
attempt to demonstrate that the defendant's proffered explanation
is pretextual.20 At the end of the day, however, the plaintiff has
the burden of proving that a violation of Title VII occurred. See
St. Mary's Honor Center v. Hicks, 509 U.S. ----, 113 S.Ct. 2742,
125 L.Ed.2d 407 (1993). In this case, Davis attempts to skip
directly to step three—rebutting Chevron's proffered
explanation—without ever having completed step 1—proving her prima
facie case.
17
Brown v. East Mississippi Elec. Power Ass'n, 989 F.2d 858,
861 (5th Cir.1993).
18
McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817,
36 L.Ed.2d 668 (1973); Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
19
Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093-94.
20
Id. at 253, 101 S.Ct. at 1094.
11
To establish her prima facie case of gender discrimination,
Davis must show that (1) she is a member of a protected group; (2)
she applied for a position as an oil refinery operator; (3) she
was qualified for that position when she applied; (4) she was not
selected for the position; and (5) after Chevron declined to hire
her the position either remained open or a male was selected to
fill it.21 We agree with the district court that "in this case, the
issue on summary judgment is the third element, to-wit: whether
the Plaintiff was qualified for the position of refinery operator"
when she applied.
Davis was clearly not qualified to be a refinery operator at
the time she applied for that position on October 31, 1991. As the
district court pointed out, Davis admits in her own affidavit that
she was not "fit for duty" when she interviewed with Chevron.
Despite her chronic knee problems and her recent surgery, Davis
asserts that she would have become fit for duty in the ensuing few
months. But this assertion is both irrelevant and speculative.
She was not qualified for the position at the time she applied, and
Chevron was not required to be as sanguine about the prospects of
her recovery as Davis purports to have been. Indeed, in view of
the chronic quality of her knee problems to date, and in view of
the demands of the job position for which she applied, some
skepticism was warranted. Chevron was perfectly free to insist
that Davis demonstrate her fitness for duty before it made her a
21
See, e.g., Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1135
(5th Cir.1983) (citing McDonnell Douglas, 411 U.S. at 802, 93
S.Ct. at 1824).
12
job offer.
As Davis was not physically qualified to be a refinery
operator at the time she applied for that position, she is unable
to make out a prima facie case of gender discrimination under the
McDonnell Douglas-Burdine paradigm. Moreover, even assuming
arguendo that Davis does make out a prima facie case of gender
discrimination, she does not automatically defeat Chevron's motion
for summary judgment: she must also prove that Chevron's alleged
failure to hire her because of her poor health and safety record is
pretextual.22
To justify its decision not to hire Davis, Chevron points to
Davis' uniformly poor evaluations in the category of safety
attitude and record, and to her "unsatisfactory" physical
condition. Support for this explanation is abundant: Chevron's
affidavits and contemporaneous evaluation forms are replete with
references to Davis' bad knee and poor safety record. As Chevron
has articulated a legitimate reason for not hiring Davis and
supported its summary judgment motion with sufficient evidence, the
burden shifts to Davis to show that Chevron's proffered explanation
was pretextual.23 To meet that burden, Davis attempts to refute
Chevron's articulated explanation with naked assertions. But a
plaintiff's defense against a summary judgment motion must consist
of "more than a mere refutation of the employer's legitimate
22
See Moore v. Eli Lilly & Co., 990 F.2d 812, 815 (5th
Cir.1993) (ADEA case); see also Burdine, 450 U.S. at 255, 101
S.Ct. at 1094.
23
Id.
13
nondiscriminatory reason [for not hiring the plaintiff]."24 And in
this case, Davis' arguments do not even rise to the level of a
"mere refutation."
IV
CONCLUSION
None of Davis' arguments demonstrates that a genuine issue of
material fact exists in this case. Even giving her the benefit of
all reasonable inferences, and even assuming the truth of all her
alleged facts, Davis fails to establish a prima facie case of
gender discrimination through direct evidence. Neither does she
establish one inferentially. As Davis concedes that she was not
physically fit for the job at the time she applied for it and was
rejected, she cannot establish a prima facie case under Burdine and
its progeny. That is the show-stopper in this disparate treatment
gender discrimination case. Additionally, Davis fails to prove
that Chevron's proffered concerns about her poor safety record and
unsatisfactory physical condition are pretextual. As we conclude
that a rational trier of fact could not reasonably find for Davis,
Chevron is entitled to summary judgment, and the judgment of the
district court is
AFFIRMED.
24
Id.
14