[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 04-11713 ELEVENTH CIRCUIT
June 21, 2006
_______________________
THOMAS K. KAHN
CLERK
D.C. Docket No. 02-00991 CV-WS-L
VIOLA WILLIAMS UNDERWOOD,
Plaintiff-Appellant,
versus
PERRY COUNTY COMMISSION,
ALBERT TURNER,
ALBERT PAIGE,
Defendants-Appellees.
_______________________
Appeal from the United States District Court
for the Southern District of Alabama
_______________________
(June 21, 2006)
Before EDMONDSON, Chief Judge, TJOFLAT, ANDERSON, BIRCH,
DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON, and
PRYOR, Circuit Judges.
BY THE COURT:
The Court having been polled at the request of one of the members of the
Court and a majority of the Circuit Judges who are in regular active service not
having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure;
Eleventh Circuit Rule 35-5), rehearing en banc is DENIED.
/s/ J. L. Edmondson
_____________________________
CHIEF JUDGE
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CARNES and PRYOR, Circuit Judges, concurring in the denial of rehearing en
banc:
We write to clarify one issue. The dissent contends that the panel placed
too heavy a burden on Underwood to establish a prima facie case under the
McDonnell Douglas framework, and ignored the “strong evidence of
discriminatory motive by Perry County.” The dissent then addresses evidence
presented by Underwood to the district court, but not mentioned in her arguments
to this Court, which the dissent contends established an inference of
discrimination.
Underwood attempted to prove discrimination in hiring through
circumstantial evidence and relied upon “the now-familiar framework established
by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L.Ed.2d 207
(1981).” Combs v. Plantation Patterns, 106 F.3d 1519, 1527 (11th Cir. 1997).
Under that framework, Underwood had to establish a prima facie case of
discrimination, which creates a rebuttable presumption that the employer acted
illegally. See id. at 1527-28 (citations omitted). It is well-settled that “[t]he prima
facie case method established in McDonnell Douglas was ‘never intended to be
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rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to
evaluate the evidence in light of common experience as it bears on the critical
question of discrimination.’” U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 715, 103 S. Ct. 1478, 1482 (1983) (quoting Furnco Constr. Corp. v.
Waters, 438 U.S. 567, 577, 98 S. Ct. 2943, 2949 (1978)).
Nothing in the panel opinion suggested that Underwood was confined to
proving intentional discrimination through a rigid McDonnell Douglas framework.
Underwood confined her argument to this Court to that framework. In her written
and oral arguments, Underwood did not even mention the affidavit of Wright,
which the dissent now contends allowed an inference of intentional
discrimination. This Court addressed the argument Underwood made, not the
argument she might have made.
Although Underwood did not bring the affidavit to our attention, the Court
thoroughly and independently reviewed the record on appeal, including the
affidavit of Wright in the context of the argument of Underwood. The Court
considered Wright as a potential comparator, see Underwood v. Perry County
Comm’n, 431 F.3d 788, 795 (11th Cir. 2005), even though the contested
employment application would have excluded Wright as a person hired instead of
Underwood. This consideration did not resolve the ultimate problem for
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Underwood under the McDonnell Douglas framework: that three males and two
females were hired near the time of Underwood’s two applications for
employment. See id.
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WILSON, Circuit Judge, dissenting from the denial of rehearing en banc:
I dissent from the denial of rehearing en banc because this case “involves a
question of exceptional importance,” Fed. R. App. P. 35(a)(2): What evidence
must a plaintiff put forth to satisfy her burden to establish a Title VII prima facie
case of discriminatory failure to hire? This appeal would have provided the court
an opportunity to clarify circuit law, specifically with respect to the fourth prong
of the prima facie case–what level of evidence is necessary to establish that the
position was filled with an individual outside the plaintiff’s protected class. See
Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 768 (11th Cir. 2005) (per
curiam).
This case arose from the Perry County Commission’s failure to hire Viola
Underwood for a truck driver position in 2001. Taking the evidence in the light
most favorable to Underwood, see id. at 767, she applied for the position with
Perry County three times. Albert Paige, Supervisor of the Perry County Highway
Department who was responsible for hiring decisions, never interviewed
Underwood for the position, never recommended her for hiring, and never offered
her a position. Underwood filed a Title VII suit, claiming that Perry County did
not hire her because of her gender.
The district court granted Perry County’s motion for summary judgment,
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concluding that Underwood failed to meet the second prong of her prima facie
case, i.e., that she was qualified for the position. The court reasoned that after-
acquired evidence of two speeding tickets rendered Underwood unqualified to be a
truck driver with Perry County, despite the fact that Paige was not aware of the
speeding tickets at the time he declined to consider her for the job. Underwood
appealed.
The opinion of this court affirmed summary judgment, but on different
grounds. The opinion concluded that Underwood failed to meet the fourth prong
of the prima facie case, i.e., to show that a person outside of her protected class
was hired. Underwood v. Perry County Comm’n, 431 F.3d 788, 795 (11th Cir.
2005) (per curiam). The opinion was based entirely on Underwood’s failure “to
identify a position for which she applied and the gender of the person who filled
that position . . . .” Id. The opinion discussed, but declined to address whether the
after-acquired evidence of Underwood’s speeding violations could defeat her
prima facie case. Id. at 792, 794.
We use the traditional McDonnell Douglas Corp. v. Green, 411 U.S. 792,
93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), burden-shifting analysis to evaluate
Underwood’s failure to hire claim. First, the plaintiff must raise an inference of
discrimination through her prima facie case. Id. at 802, 93 S. Ct. at 1824. To
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establish a prima facie case, the plaintiff must prove that (1) she is a member of a
protected class, (2) she was qualified for a position and applied for it, (3) she was
rejected for the position despite her qualifications, and (4) the position was filled
with an individual outside the plaintiff’s protected class. Vessels, 408 F.3d at 768.
I believe that the opinion erred in placing too heavy a burden on Underwood
to establish the fourth element of her case, given that “a plaintiff’s burden in
proving a prima facie case is light.” Turlington v. Atlanta Gas Light Co., 135 F.3d
1428, 1432 (11th Cir. 1998) (emphasis omitted); see Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1094, 67 L. Ed. 2d 207, 215 (1981)
(“The burden of establishing a prima facie case . . . is not onerous.”); Holifield v.
Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (per curiam) (“Demonstrating a prima
facie case is not onerous; it requires only that the plaintiff establish facts adequate
to permit an inference of discrimination.”). The opinion accurately stated that
“[o]ur precedent does not require Underwood to ‘identify the successful applicant
for a position under the McDonnell-Douglas prima facie framework; she is only
required to establish that the successful applicant [was] not within her protected
class.’” Underwood, 431 F.3d at 794 (quoting Walker v. Mortham, 158 F.3d 1177,
1193 (11th Cir. 1998)). But the opinion also says, “Underwood never identified
the individual who received the other job for which she applied.”; and, “On
8
appeal, Underwood still failed to identify the individual who was hired for the
position for which she applied.” Id. at 792, 795. These contradictory statements
are confusing and mislead district courts and practitioners about the burden that
plaintiffs bear in proving their prima facie case. By stating that Underwood
“never identified the individual” who received the truck driving jobs that she
applied for in January 2001, March 2001, and May 2001, the statements imply that
she was required to identify who received the jobs she sought, despite our
precedent to the contrary.
A close review of the record reveals that Underwood put forth sufficient
evidence “to permit an inference of discrimination.” Holifield, 115 F.3d at 1562.
In response to Perry County’s motion for summary judgment, Underwood
submitted her deposition testimony that she applied to be a Perry County truck
driver three times, in January 2001, March 2001, and May 2001. Also included in
the record was Underwood’s May 12, 2001, application, which affirms that she
previously applied on March 10, 2001. Underwood also offered Paige’s
deposition testimony regarding three male comparators, Drake Wright, Stanley
Stewart, and Kwame McLiney, each of whom was hired to drive a Class B truck
for Perry County. Paige testified that Drake Wright was hired “probably . . .
around 2000, 2001,” that Stanley Stewart was hired “[p]robably somewhere mid
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2001, early 2002;” and that Kwame McLiney was hired in “mid 2001.” This
evidence alone was sufficient to satisfy Underwood’s prima facie burden, even
without the comparators’ personnel files to confirm their hire dates, given that a
plaintiff’s burden “is not onerous.” Burdine, 450 U.S. at 253, 101 S. Ct. at 1094.
The opinion found that Underwood failed to meet her burden of establishing
that a male was selected for the truck driver positions because the record revealed
that two females (Michelle Lee and Johnnie Shepherd) were also hired “near the
time” that Underwood’s applications were pending. Underwood, 431 F.3d at 795.
The opinion concluded that “[t]he only inference about gender and the hiring of a
truck driver was that both men and women were hired.” Id. This construction of
the evidence contradicts our law, which prohibits us from weighing the evidence
to resolve a factual dispute, and instead requires us to view the evidence in the
light most favorable to the non-movant. Holifield, 115 F.3d at 1561. “[I]f
reasonable minds could differ on the inferences arising from undisputed facts, then
the court should deny summary judgment.” Id.
First of all, the record does not necessarily reflect that Michelle Lee was
hired to fill a position for which Underwood applied. Paige testified that Michelle
Lee was hired in “2000, 2001, somewhere in there.” According to Paige, after
Michelle Lee initially accepted the position, however, “she called back and
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rejected it because of the responsibility.” Taking the evidence in the light most
favorable to Underwood, Michelle Lee was hired and then rejected the position in
2000, before Underwood even first applied in January of 2001. Accordingly,
Michelle Lee could not qualify as a female hired in place of Underwood for
purposes of analyzing whether Underwood demonstrated that a person outside of
her protected class was hired for the position. The district court likewise rejected
the evidence put forth by Perry County that Michelle Lee was hired to fill the
position that Underwood applied for: “There has been no showing that Lee was
hired to fill the position for which Underwood applied. . . . Notwithstanding the
utter lack of evidence on this front, defendants argue that ‘[i]t is undisputed that
Albert Paige selected Michelle Lee for the truck driver position for which Plaintiff
applied.’ . . . Such liberties with the record are unwarranted.” (emphasis added).
Similarly, Johnnie Shepherd cannot qualify as a female hired instead of
Underwood, despite the fact that she was employed by the County for
“[a]pproximately seven months,” “somewhere in the neighborhood of 2001 to
2002.” Perry County argued in its motion for summary judgment (and its reply to
Underwood’s opposition to its motion) that Michelle Lee – not Johnnie Shepherd
– was the female that it hired instead of Underwood. Accordingly, it is irrelevant
when Johnnie Shepherd was hired and worked for Perry County because, by Perry
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County’s own admission, Johnnie Shepherd was not a female hired in place of
Underwood. The critical question here is about who Perry County hired instead of
Underwood, and based on the undisputed evidence, “reasonable minds could
differ” as to the answer to that question. See Holifield, 115 F.3d at 1561. Perry
County should not be granted summary judgment based on the premise that
Johnnie Shepherd was hired in place of Underwood, when Perry County itself did
not even take that position. Accordingly, taking the evidence in the light most
favorable to Underwood, Perry County hired only males for the three positions
that Underwood sought.
Furthermore, given the evidence in this case, the opinion’s rigid
construction of the prima facie case, and in particular, the fourth prong, is
misplaced. The Supreme Court has repeatedly stated that “[t]he prima facie case
method established in McDonnell Douglas was ‘never intended to be rigid,
mechanized, or ritualistic. Rather it is merely a sensible, orderly way to evaluate
the evidence in light of common experience as it bears on the critical question of
discrimination.’” United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 715, 103 S. Ct. 1478, 1482, 75 L. Ed. 2d 403, 410 (1983) (emphasis added)
(quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S. Ct. 2943, 2949,
57 L. Ed. 2d 957, 967 (1978)). In keeping with McDonnell-Douglas’s central goal
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of determining the employer’s state of mind, the plaintiff’s prima facie case
eliminates the most common non-discriminatory reasons that the employer may
have relied on in deciding not to hire the plaintiff. Burdine, 450 U.S. at 253-54,
101 S. Ct. at 1094.
Here, Underwood put forth strong evidence of discriminatory motive by
Perry County, evidence which the opinion completely ignored and the district
court incorrectly dismissed. Perhaps the strongest and most disturbing evidence
was the affidavit and employment application of Drake Wright, a Perry County
truck driver, which Underwood submitted in response to Perry County’s motion
for summary judgment. In the affidavit, Wright stated the following:
2. In spring 2001, Albert Paige called for me over the radio,
while I was working for Perry County Commission as a Class A
driver. I was driving a class B dump truck when he called over the
radio for me. I was told thereafter that Mr. Paige wanted to see me.
3. That evening, I met Albert Paige at the County Shed. Mr.
Paige told me that they could not find my prior application for my
truck driver job. Mr. Paige instructed me to fill out another
application, attached hereto, and to leave the space for “date of
application” blank. I did, and, as instructed, left the space for “date of
application” blank. Regarding Viola Underwood’s lawsuit against
Perry County Commission, Mr. Paige told me that I was the “main
topic of conversation” because they had hired me after she had
applied.
4. I attended truck-driving school in Oxford, Alabama, for two
weeks in late 2000.
5. The document attached hereto that purports to be my first
application for employment with the Perry County Commission, dated
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October 10, 2000, is actually the second application I filled out, at
Mr. Paige’s instruction in the spring of 2001. It does not reflect the
true date of my application because, as of October 10, 2000, I had not
yet received my commercial driver=s license.
Attached to this affidavit was the employment application that Wright referenced,
dated October 10, 2000. Underwood argued that this evidence demonstrated that
Paige hired Wright after Underwood applied for a job, clearly making Wright a
comparator for purposes of this lawsuit. Paige ordered Wright to fill out an
additional application, back-dating it to before the first date on which Underwood
applied, in order to “cover his tracks.” Underwood further testified that Wright
was not the only one who was asked by Perry County to fill out another
application in this manner. She testified that “[t]he people that got hired right at
the same time that [she] was trying to get the job, that they had filled out different
[applications].” The district court’s only response to this evidence was to dismiss
it in a footnote explaining, “plaintiff=s accusation that Paige induced a male truck
driver to fabricate and backdate a job application . . . is simply too remote from the
issue [of whether Underwood established she was qualified for the position] to
impeach or otherwise render suspect [Paige’s] testimony about the driving record
requirement.” The district court missed the significance of this evidence
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altogether, and the opinion of this court did not address it.1 This evidence is
important because it raises a genuine issue of material fact as to whether and when
Perry County hired a male (Drake Wright) for a truck driver position instead of
Underwood. It also raises a question as to whether Paige was manipulating or
falsifying employment applications to cover up discriminatory hiring practices.
In sum, this published opinion muddies the water in evaluating a prima facie
case, placing a heavier burden to establish that a person outside the plaintiff’s
protected class was selected for the job than our law allows. Moreover, taking the
evidence in this case in the light most favorable to Underwood, there are genuine
issues of material fact as to whether a male was selected for the truck driver
positions that she sought.
Accordingly, I respectfully dissent from the denial of rehearing en banc.
1
As previously stated, summary judgment in the district court, and our court’s initial
affirmance at Underwood v. Perry County Comm’n, 417 F.3d 1183 (11th Cir.) vacated, 431 F.3d
788 (11th Cir. 2005) (per curiam), did not turn on this fourth element of a prima facie case, but
was based on the second element: whether the plaintiff was qualified for a position and applied
for it. This may explain why, as the concurrence states, Underwood did not address specifically
the Wright affidavit in her brief. The Wright affidavit did not go to the issue of qualification.
Regardless, we must review the entire record in the light most favorable to her to determine
whether there was any genuine issue as to any material fact. Vessels, 408 F.3d at 767.
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