[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 06-14652 ELEVENTH CIRCUIT
December 14, 2007
________________________
THOMAS K. KAHN
CLERK
D. C. Docket No. 03-00302-CV-J-20-MCR
PATRICIA SPRINGER,
Plaintiff-Appellant,
versus
CONVERGYS CUSTOMER
MANAGEMENT GROUP INC.,
an Ohio corporation,
Defendant-Appellee.
_____________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 14, 2007)
Before EDMONDSON, Chief Judge, CARNES and FAY, Circuit Judges.
PER CURIAM:
Patricia Springer (“Plaintiff”) appeals the district court’s grant of summary
judgment in favor of Convergys Customer Management Group Inc. (“Convergys”)
in her employment discrimination claim alleging a racially discriminatory failure
to promote under the Civil Rights Act of 1991, 42 U.S.C. § 1981. For the reasons
explained below, we affirm the district court’s grant of summary judgment.
I. BACKGROUND
Plaintiff, an African American woman, worked for Convergys and its
predecessors from November 1983 until her termination seventeen years later in
August 2001. During that time, Plaintiff worked in the Employee Care
Organization within Convergys, holding various positions, including Account
Representative, Team Manager, Instructor, Human Resources Staff Recruiter, and
Operations Manager. As an Operations Manager, the position she held at the time
of her termination, Plaintiff supervised team managers and several teams, totaling
approximately fifty people.
Plaintiff consistently received satisfactory annual job evaluations. In fact,
one of Plaintiff’s supervisors testified that he was very satisfied with her
performance and thought she had the potential to progress in the company and
perform well in upper management positions. However, Plaintiff also
demonstrated several performance deficiencies. In March 1999, Convergys placed
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Plaintiff on a developmental plan for the purpose of improving upon some of her
professional weaknesses. A few of Plaintiff’s subordinates had complained about
the manner in which Plaintiff addressed them. Plaintiff later agreed to take some
courses on proper management skills, but there is a dispute as to whether such
courses were taken directly in response to the subordinates’ complaints or merely
to advance Plaintiff’s career prospects.
Other employees of Convergys noted that Plaintiff had difficulty accepting
feedback and demonstrated weak communication skills. A Director at Convergys,
Patrice London, testified that based on her observations and interactions with the
Plaintiff, she regularly exhibited grammatical and spelling mistakes in her work-
related emails. In addition, the Plaintiff demonstrated attendance and punctuality
problems. Plaintiff admitted being late or missing several scheduled meetings;
however, it appears from the record that several other employees had been late or
missed scheduled meetings without being disciplined.
In 2001, Convergys had an opening for the position of Senior Operations
Manager. Plaintiff had applied for a similar opening in November 2000, but she
did not receive the promotion. In 2001, there were four Operations Managers,
including Plaintiff, eligible for the Senior Operations Manager promotion. The
other three eligible Operations Managers included a Caucasian woman named
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Susan Johnson, an African American woman, and an African American man.
In March 2001, Convergys announced that Susan Johnson, Plaintiff’s
Caucasian co-worker, had received the promotion to Senior Operations Manager.
Shortly thereafter, Plaintiff filed a complaint with the Human Resources
Department stating that she was more qualified for the position than Susan
Johnson and had been denied the promotion because of her race. Plaintiff further
claimed not to have known of the position's availability prior to Susan Johnson
receiving the promotion.
Although it was Convergys’ corporate policy that all job positions be posted
for a minimum of three days to allow all qualified candidates to apply and be
considered for the positions, there is a dispute as to whether this particular
position was ever announced or posted internally. Patrice London, the supervisor
in charge of selecting the candidate for the promotion, and Susan Johnson contend
that the opening for the position was announced at a team meeting. However,
Plaintiff and her two African American colleagues insist that no announcement
was ever made.
A human resources representative for Convergys initiated an investigation
into Plaintiff’s claims and concluded that racial discrimination was not a factor in
the promotion of Susan Johnson. Convergys eventually terminated Plaintiff in
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August 2001, stating that they were forced by business necessity to eliminate an
Operations Manager position. In response, Plaintiff filed a complaint in district
court against Convergys alleging, inter alia, that Convergys discriminated against
her based upon her race when it promoted Susan Johnson to Senior Operations
Manager. Plaintiff claimed that she was more qualified than Susan Johnson and
that the position was never posted, in violation of company policy. Convergys
moved for summary judgment on all seven counts asserted in Plaintiff’s complaint.
The district court granted summary judgment in favor of Convergys on
Count I alleging an unlawful failure to promote and Count II alleging disparate
pay under 42 U.S.C. § 1981. Plaintiff voluntarily dismissed Counts V and VII
alleging unlawful retaliation under state law and the Employee Retirement Income
Security Act, respectively. A trial was held and a jury concluded that Plaintiff's
remaining counts claiming retaliatory discharge under federal and state law were
baseless. Thereafter, the district court entered a final judgment in favor of
Convergys on all seven counts in the complaint. Plaintiff’s appeal is limited to
Count I alleging an unlawful failure to promote under 42 U.S.C. § 1981.
II. DISCUSSION
We review a district court's grant of summary judgment de novo, viewing
the evidence in the light most favorable to the party opposing the motion. See
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Skrtich v. Thorton, 280 F.3d 1295, 1299 (11th Cir. 2002). Summary judgment
should be granted only when “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.” Fed. R. Civ. P. 56(c).
In cases where direct evidence of employment discrimination is lacking, we
analyze the claim under the McDonnell Douglas framework, which requires the
plaintiff to create an inference of discrimination through her prima facie case.1
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36
L.Ed.2d 668 (1973). Once the plaintiff has made out the elements of the prima
facie case, the burden shifts to the employer to articulate a non-discriminatory
basis for its employment action. Texas Dept. of Comty. Affairs v. Burdine, 450
U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). If the employer
meets this burden, the plaintiff must show that the proffered reasons were
pretextual. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742,
2749, 125 L.Ed.2d 407 (1993). The ultimate burden of persuading the trier of fact
that the defendant intentionally discriminated against the plaintiff remains at all
1
Both Title VII and § 1981 have the same requirements of proof and present the same
analytical framework. Standard v. A.B.E.L. Services, 161 F.3d 1318, 1330 (11th Cir. 1998).
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times with the plaintiff. See Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 146, 120 S. Ct. 2097, 2108, 147 L.Ed.2d 105 (2000); Burdine, 450 U.S.
at 253.
For the purposes of its Motion for Summary Judgment only, Convergys
conceded that Plaintiff could establish a prima facie case of racial discrimination
based upon a failure to promote.2 Thus, the burden shifted to Convergys to
articulate a legitimate, nondiscriminatory reason for promoting Susan Johnson
rather than Plaintiff for the position of Senior Operations Manager. Convergys’
articulated reason for promoting Susan Johnson was that she was the more
qualified candidate. To support this assertion, Convergys provided substantial
evidence that Susan Johnson’s annual ratings were consistently higher than
Plaintiff’s. Convergys also pointed to Susan Johnson’s significant experience
relevant to the new position, including effective management of subordinates and
prior experience with the specific client with whom the promoted person would be
working.
It is undisputed that Susan Johnson was highly regarded by her co-workers.
2
In order to establish a prima facie case on the basis of a failure to promote, Plaintiff
must demonstrate that: (I) she belonged to a protected class; (ii) she was qualified for and applied
for a position; (iii) despite qualifications, she was rejected; and (iv) the position was filled with
an individual outside the protected class. McDonnell Douglas Corp., 411 U.S. at 802; Vessels v.
Atlanta Indep. Sch. Sys., 408 F.3d 763, 768 (11th Cir. 2005).
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In fact, one of the African American Operations Managers eligible for the
promotion commented that he believed Susan Johnson was more qualified than
any other Operations Manager. Further, a former supervisor of Susan Johnson
testified that she was a stellar performer that should have been promoted long
before she was.3
Plaintiff argues that our holding in Joshi v. Florida State Univ. Health Ctr.,
763 F.2d 1227 (11th Cir. 1985), precludes Convergys from relying on the
assertion that Susan Johnson was the more qualified candidate. In Joshi, we held
that where a defendant did not consider the qualifications of the candidate from
the protected class at the time of making the employment decision, it cannot later
assert as a nondiscriminatory reason the superior qualifications of the candidate
actually promoted. Id.
To prove that Convergys did not consider her qualifications, Plaintiff points
to Patrice London’s testimony that she did not consider Plaintiff a candidate for
the Senior Operations Manager position. However, that statement, when read in
the context of her testimony, indicates only that Patrice London’s familiarity with
Plaintiff’s qualifications led her to the conclusion that Plaintiff was not a good
3
We note that after the promotion at issue here, Susan Johnson was promoted yet again
to the position of Director at Convergys.
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candidate for the position. Patrice London testified that she had first-hand
knowledge of Plaintiff’s qualifications at the time Susan Johnson received the
promotion, and it was that direct knowledge of Plaintiff’s qualifications and
performance deficiencies that informed her opinion that Plaintiff should not be
considered a candidate for the promotion.
This case is distinguishable from the facts in Joshi. In Joshi, the defendant
had no prior knowledge of Joshi’s qualifications because Joshi was not an
employee of the defendant. Joshi was an outside applicant. However, in this case,
Plaintiff worked for Convergys and its predecessors for over fifteen years at the
time the promotion was granted to Susan Johnson. Patrice London was Plaintiff’s
supervisor prior to the promotion decision and consequently was in a position to
have direct knowledge of Plaintiff’s qualifications or lack thereof. Thus, we do
not find Joshi particularly applicable to the case at hand.
We agree with the district court that Convergys met its burden of
articulating a legitimate, nondiscriminatory reason for promoting Susan Johnson
over Plaintiff. Under the McDonnell Douglas framework, the burden then shifts
back to Plaintiff to demonstrate that Convergys’ articulated reason is pretext. We
find that Plaintiff has failed to meet this burden of proving pretext.
Plaintiff may demonstrate that Convergys’ reasons were pretextual by
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revealing “such weaknesses, implausibilities, inconsistencies, incoherencies or
contradictions in [Convergys'] proffered legitimate reasons for its actions that a
reasonable factfinder could find them unworthy of credence.” Cooper v. Southern
Co., 390 F.3d 695, 725 (11th Cir. 2004), cert. denied, 126 S.Ct. 478, 163 L.Ed.2d
363 (2005) (quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir.
1997)). However, a reason is not pretext for discrimination “unless it is shown
both that the reason was false, and that discrimination was the real reason.”
Brooks v. County Comm'n of Jefferson County, 446 F.3d 1160, 1163 (11th Cir.
2006) (quoting St. Mary's Honor Ctr., 509 U.S. at 515).
In the context of a promotion, “a plaintiff cannot prove pretext by simply
arguing or even by showing that he was better qualified than the [person] who
received the position he coveted. A plaintiff must show not merely that the
defendant's employment decisions were mistaken but that they were in fact
motivated by race.” Id. (citing Alexander v. Fulton County, 207 F.3d 1303, 1339
(11th Cir.2000)). Furthermore, a plaintiff must show that the disparities between
the successful applicant's and his own qualifications were “of such weight and
significance that no reasonable person, in the exercise of impartial judgment,
could have chosen the candidate selected over the plaintiff.” Cooper, 390 F.3d at
732 (citation omitted); see also Ash v. Tyson Foods, Inc., 546 U.S. 454, 126 S.Ct.
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1195, 1197, 163 L.Ed.2d 1053 (2006) (approving of this language from Cooper ).
Plaintiff attempts to prove pretext by claiming that she was in fact the more
qualified candidate for the Senior Operations Manager position. Plaintiff points
primarily to her educational background to support this assertion. The job
requisition form for the Senior Operations Manager position listed a four-year
college degree as a requirement; however, Patrice London testified that the job
description permitted six to eight years of experience as the equivalent of the
educational requirements. While Plaintiff was the only Operations Manager that
possessed a four-year degree, Susan Johnson possessed the requisite experience to
substitute for a lack of a college degree.
Patrice London also testified that experience was more important to her
placement decisions than education. “Personal qualities . . . factor heavily into
employment decisions concerning supervisory or professional positions. Traits
such as common sense, good judgment, originality, ambition, loyalty, and tact
often must be assessed primarily in a subjective fashion, yet they are essential to
an individual's success in a supervisory or professional position.” Denney v. City
of Albany, 247 F.3d 1172, 1186 (11th Cir. 2001) (citation and internal quotations
omitted) (quoting Chapman v. A.I. Transport, 229 F.3d 1012, 1033-34 (11th Cir.
2000) (en banc)). Given the undisputed evidence with respect to Susan Johnson’s
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qualifications for the position, Plaintiff’s possession of a four-year degree thus is
insufficient by itself to conclude that Convergy’s proffered reason for promoting
Susan Johnson is pretext.
Plaintiff has provided no evidence that Convergys’ reliance on the superior
qualifications of Susan Johnson as the reason for her promotion is a mask for
racial discrimination. “Absent evidence that subjective hiring criteria were used as
a mask for discrimination, the fact that an employer based a hiring or promotion
decision on purely subjective criteria will rarely, if ever, prove pretext . . . .”
Denney, 247 F.3d at 1185. While Convergys’ decision to promote Susan Johnson
rather than Plaintiff was based on Patrice London’s subjective view of whose
qualifications were superior for the position, “[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.”
Id. at 1186. We find that Patrice London, in her testimony describing her first-
hand experience with the candidates, provided a sufficiently specific factual basis
for her opinion that Susan Johnson was the more qualified candidate for the
promotion.
Plaintiff also argues that pretext can be inferred from Patrice London’s pre-
selection of Susan Johnson without the internal posting of the position required by
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Convergys’ corporate policy. Yet, even where preselection violates corporate
personnel policies, it does not necessarily indicate racial discrimination. See
Kennedy v. Landon, 598 F.2d 337, 341 (4th Cir. 1979); Randle v. City of Aurora,
69 F.3d 441, 454 (10th Cir. 1995) (“The mere fact that an employer failed to
follow its own internal procedures does not necessarily suggest that the employer
was motivated by illegal discriminatory intent or that the substantive reasons given
by the employer for its employment decision were pretextual.”). Furthermore,
Plaintiff testified that she was aware that Convergys, despite its corporate policy,
did not always post available positions.
“We do not sit in judgment of the wisdom of an employer's selection.”
Cooper, 390 F.3d at 732. Where a supervisor has first-hand knowledge of the
potential applicants and makes an employment decision based on that knowledge,
the failure to post the job is insufficient evidence of pretext. Patrice London was
familiar with the work of the four Operations Managers who were candidates for
the available position because she had directly supervised them in her role as a
Director. Posting the position would have been superfluous to her decision
making process. “If 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.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1088 (11th Cir. 2004). Patrice
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London’s preselection of Susan Johnson for the position of Senior Operations
Manager reflected her knowledge of the candidates’ experience and qualifications
and the client’s specific needs for the position. Plaintiff has provided no evidence
that the failure to post the position was based on racial animus or an intent to deny
the African American Operations Managers the opportunity to apply for the
promotion.
We conclude that the promotion of Susan Johnson over Plaintiff, based on
their supervisor’s view of their relative qualifications, was a reasonable business
decision. “[A] plaintiff employee may not establish that an employer's proffered
reason is pretextual merely by questioning the wisdom of the employer's reason as
long as the reason is one that might motivate a reasonable employer.” Pennington
v. City of Huntsville, 261 F.3d 1262, 1267 (11th Cir. 2001) (citation and internal
quotation marks omitted). Plaintiff has not provided “sufficient evidence to find
that the employer’s asserted justification is false,” Sanderson Plumbing Prods.,
Inc., 530 U.S. at 148, and therefore, we conclude that Plaintiff cannot satisfy her
burden of proving that Convergys’ proffered reason for not promoting her was a
pretext for discrimination.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment.
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