REVISED OCTOBER 5, 2001
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-30171
AUDREY T. CELESTINE, WILTON GUILLORY; ANGEL ANN
LEBLANC; EDWINA M. HARRIS; PATRICIA A. PITRE; ET AL.,
Plaintiffs-Appellants,
and
HILLERY RANDELL; JONATHAN ANDERSON,
Movants-Appellants,
and
LEO REEDER; RUSSELL METOYER; DANIEL L. COX, SR.,
Intervenors-Plaintiffs-Appellants,
VERSUS
PETROLEOS DE VENEZUELLA SA; ET AL.,
Defendants,
CITGO PETROLEUM CORP.,
Defendant-Appellee.
Appeal from the United States District Court
For the Western District of Louisiana
September 18, 2001
Before JONES, DeMOSS, and BENAVIDES, Circuit Judges.
DeMOSS, Circuit Judge:
This case concerns allegations of workplace racism directed at
African Americans at the CITGO Petroleum Corporation’s (“CITGO”)
Lake Charles, Louisiana plant. After the district court denied
class certification, the appellants proceeded forward with the
action as a series of individual claims. The district court
subsequently granted summary motion in favor of the defendant CITGO
on these claims. Plaintiffs now appeal from this grant by the
district court.
BACKGROUND
On May 21, 1993, two hundred and six plaintiffs filed suit
against CITGO alleging that a pattern and practice of racial
discrimination existed in CITGO’s hiring, promotions and training
at its Lake Charles plant. These plaintiffs also brought Title VII
hostile work environment claims. In September 1993, the plaintiffs
filed a motion for the certification of a class estimated to
contain more than 1,000 potential members. All of the members of
the proposed class were either African American employees, both
current and former, or unsuccessful applicants for employment at
CITGO’s sprawling Lake Charles complex. The district court
referred the case to a magistrate judge for consideration of the
class certification issue.
2
Following a hearing, the magistrate judge informed the parties
that he was considering recommending to the district court a sua
sponte grant of summary judgment to CITGO on the “hostile work
environment” claims, and invited the plaintiffs to submit summary
judgment evidence supporting their position. In total, forty-four
plaintiffs came forward with evidence indicating the existence of
a hostile work environment. The magistrate examined the summary
judgment evidence offered by each of these forty-four individual
plaintiffs and concluded that no reasonable trier of fact could
find that the plaintiffs had established that there was
intentional, pervasive, and regular racial discrimination of which
CITGO’s supervisors and management were aware and which CITGO
permitted to continue. The magistrate judge therefore recommended
that summary judgment be granted to CITGO on all forty-four of
these hostile work environment claims. On July 12, 1996, the
district court accepted the magistrate judge’s recommendation and
granted summary judgment to CITGO on these claims.
During this same period, the magistrate judge recommended the
denial of class certification on the Title VII racial
discrimination for failure to hire, promote and train claims. The
district court again accepted the magistrate judge’s report, and
denied class certification. The plaintiffs filed an interlocutory
appeal to this Court, which affirmed the district court’s denial of
class certification. Allison v. CITGO Petroleum Corp., 151 F.3d
3
402, 426 (5th Cir. 1998). On October 2, 1998, this Court denied
the appellants’ motion for rehearing en banc on the class
certification issue.
With class certification denied, this case proceeded forward
as a series of individual claims. The claims of the three
plaintiffs who worked in the refinery lab were consolidated,
pursuant to Federal Rule of Civil Procedure 42(a). The refinery
lab discrimination case was tried to a jury on October 18-20, 1999,
and the jury returned a verdict in favor of defendant CITGO.
A second group of thirty-six failure to promote and train
racial discrimination claims was also consolidated, with this group
containing the claims of the refinery maintenance workers. CITGO
filed a motion for partial summary judgment on the issue of
temporal scope, asserting that the continuing violation doctrine,
a device which would allow incidents of racial discrimination from
outside the relevant time period to be considered, did not apply.
On January 3, 2000, the appellants filed their opposition to this
motion.
CITGO filed a second motion for summary judgment on December
28, 1999, this time seeking outright summary judgment on each of
the thirty-six refinery maintenance workers’ failure to promote and
train claims. On January 11, 2000, the district court granted both
of CITGO’s motions for summary judgment, ruling that the continuing
violation doctrine was inapplicable and granting summary judgment
4
on each of the failure to promote and hire discrimination claims.
These African American CITGO employee plaintiffs now appeal
both the July 1996 grant of summary judgment on their hostile work
environment claims and the January 2000 grant of summary judgment
on their failure to promote and train claims. The October 1999
jury verdict in the refinery lab failure to promote and train case
is not appealed.
DISCUSSION
Standard of review
A grant of summary judgment is reviewed de novo. Hanks v.
Transcon. Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir. 1992).
The party seeking summary judgment carries the burden of
demonstrating that there is an absence of evidence to support the
nonmoving party’s case. Celotex v. Catrett, 477 U.S. 317, 325, 106
S.Ct. 2548, 2554 (1986). After a proper motion for summary
judgment has been made, a nonmovant must bring forward sufficient
evidence to demonstrate that a genuine issue of material fact
exists for every element of a claim. Fontenot v. Upjohn Co., 780
F.2d 1190, 1196 (5th Cir. 1986). For summary judgment purposes,
all evidence produced by the nonmovant is taken as true and all
inferences are drawn in the nonmovant’s favor. Adickes v. S.H.
Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1578, 1609-10 (1970);
Pitts v. Shell Oil Co., 463 F.2d 331, 335 (5th Cir. 1972). This
Court reviews the evidentiary rulings of the district court “only
5
for abuse of discretion.” EEOC v. Manville Sales Corp., 27 F.3d
1089, 1092-93 (5th Cir. 1994).
The granting of summary judgment for CITGO under Federal Rule of
Civil Procedure 56(c)
Appellants object to the district court’s January 11, 2000,
grant of summary judgment on the failure to promote and train
claims because they were not allotted the full ten days provided by
Fed.R.Civ.P. 56(c) to respond to CITGO’s motion for summary
judgment.
CITGO filed a motion for summary judgment on December 28,
1999, seeking summary judgment on each of the thirty-six refinery
maintenance workers’ failure to promote and train claims. On
December 29, 1999, the district court advised the appellants that
their response to CITGO’s motion for summary judgment was due
within 15 days after service, and that due to the fast-encroaching
trial scheduled for February 28, 2000, no extensions would be
given. On January 11, 2000, appellants counsel filed a motion for
an extension of time to respond to CITGO’s motion for summary
judgment seeking to extend the deadline until January 31, 2000.
The district court immediately responded by issuing an order
denying the request for an extension of time to respond. That same
day, January 11, the district court granted CITGO’s motion for
summary judgment on the failure to promote and train claims.
6
As computed under Fed.R.Civ.P. 6(a),1 there were not the
requisite ten days provided by Fed.R.Civ.P. 56(c) between the
filing of the motion for summary judgment on December 28, 1999, and
the district court’s grant of summary judgment on January 11, 2000.
For this reason, the appellants urge that the January 11, 2000,
grant of summary judgment be reversed.
This court has repeatedly explained that strict enforcement of
the ten day notice requirement of Rule 56(c) is necessary because
summary judgment is a final adjudication on the merits. See, e.g.,
Powell v. United States, 849 F.2d 1576, 1579 (5th Cir. 1988);
Underwood v. Hunter, 604 F.2d 367, 369 (5th Cir. 1979). This Court
has reasoned that because “a summary judgment forecloses any future
litigation of a case, the district court must give proper notice to
insure that the nonmoving party had the opportunity to make every
possible factual and legal argument.” Powell, 849 F.2d at 1579.
However, it is also possible for the district court’s denial
of this ten day period to be harmless error: “It appears clear that
error in notice is harmless if the nonmoving party admits that he
has no additional evidence anyway or if . . . the appellate court
evaluates all of the nonmoving party’s additional evidence and
finds no genuine issue of material fact.” Powell, 849 F.2d at
1
Rule 6(a) reads in relevant part that “[w]hen the
period of time prescribed or allowed is less than 11 days,
intermediate Saturdays, Sundays, and legal holidays shall be
excluded in the computation.”
7
1581. The appellants do not point to any new evidence which they
would have included in their response to CITGO’s motion for summary
judgment had they been allowed to respond on January 12 or 14,
2000, as they urge. In the absence of any new evidence which would
have been presented to the district court if appellants had been
allowed a full ten days to respond, the district court’s error was
harmless.
The temporal scope of this action, for both the hostile work
environment and racial discrimination claims
The district court concluded that the relevant time period for
this lawsuit was April 29, 1992, to May 24, 1994. This time frame
applied to both the appellants’ hostile work environment and
failure to promote and train claims. Having defined the temporal
scope of the lawsuit, the district court refused to look at
incidents falling outside this period.
The method utilized by the district court in calculating this
time period was clear and correct. As noted by the district court,
the first EEOC charges lodged in this case were filed by Charlet
McCain on October 26, 1992. A Title VII plaintiff must file a
charge of discrimination with the EEOC no more than 180 days after
the alleged discriminatory employment occurred. 42 U.S.C. § 2000e-
5(e)(1). In “deferral states” this filing period is extended to
300 days if there is also a discrimination claim based on state
law. However, it is undisputed that at the time the initial EEOC
charges were filed in this case Louisiana was not a deferral state,
8
and therefore the 180 filing period, rather than the 300 day
period, applied. The district court was thus right to look at
April 29, 1992, the date 180 days prior to the filing of the first
Title VII claim, as the earliest date on which an incident of
discrimination could be considered in this case.
Similarly, the “closing date” for this action of May 24, 1994,
was also arrived at by looking at the dates on which EEOC charges
were filed. May 24, 1994, was the date on which the last EEOC
claim was filed against CITGO’s Lake Charles facility. The
appellants did not attempt to amend their complaint or supplement
their responses to interrogatories to include evidence of
discriminatory acts occurring after this date. Therefore, the
district court was acting within its discretion when it decided to
exclude all evidence of discriminatory acts occurring after May 24,
1994. Scott v. Univ. of Miss., 148 F.3d 493, 513 (5th Cir. 1998),
overruled on other grounds, Kimel v. Fla. Bd. of Regents, 528 U.S.
62, 120 S.Ct. 631 (2000) (excluding evidence of post-charge
discrimination which was not included in an amended complaint);
Info. Res. Inc. v. United States, 996 F.2d 780, 785 (5th Cir. 1993)
(holding that the district court did not abuse its discretion in
excluding a post-charge claim where the plaintiff delayed
supplementing discovery responses to include the claim until
shortly before trial). Thus, only incidents occurring between
April 29, 1992, and May 24, 1994, need be considered in this
9
multiple plaintiff, non-class action lawsuit. Cf. Crawford v.
United States Steel Corp., 660 F.2d 663, 665 (5th Cir. 1981)
(holding that if one plaintiff has filed an EEOC charge, then co-
plaintiffs with individual claims arising out of similar
discriminatory treatment in the same time frame need not have
satisfied the filing requirement to join the Title VII suit).
Despite the limited temporal scope established by the district
court, the appellants have attempted to introduce acts of alleged
discrimination dating from the mid-1970s to the mid-1990s. The
appellants attempt to introduce these long-past incidents under the
“continuing violation” doctrine, which has been endorsed for use by
this court under limited circumstances. The continuing violation
theory relieves a plaintiff of establishing that all of the
complained-of conduct occurred within the actionable period if the
plaintiff can show a series of related acts, one or more of which
falls within the limitations period. Messer v. Meno, 130 F.3d 130,
135 (5th Cir. 1997). The continuing violation doctrine is designed
to “accommodate plaintiffs who can show that there has been a
pattern or policy of discrimination continuing from outside the
limitations period into the statutory limitations period, so that
all discriminatory acts committed as part of this pattern or policy
can be considered timely.” Hardin v. S.C. Johnson & Son, Inc., 167
F.3d 340, 344 (7th Cir. 1999).
Although there is no definitive standard for what constitutes
10
a continuing violation, the plaintiff seeking to invoke this
doctrine must demonstrate more than a series of discrete
discriminatory acts: “He must show an organized scheme leading to
and including a present violation, such that it is the cumulative
effect of the discriminatory practice, rather than any discrete
occurrence, that gives rise to the cause of action.” Huckabay v.
Moore, 142 F.3d 233, 239 (5th Cir. 1998) (citations omitted). This
court has identified at least three factors that may be considered
in determining if a continuing violation exists: (1) Do the alleged
acts involve the same type of discrimination, tending to connect
them in a continuing violation? (2) Are the alleged acts recurring
or more in the nature of an isolated work assignment or incident?
(3) Does the act have the degree of permanence which should trigger
an employee’s awareness of and duty to assert his or her rights?
Huckabay, 142 F.3d at 239.
Appellants seek to apply the continuing violation theory to
both their hostile work environment and failure to promote and
train claims. This would allow the appellants to introduce
evidence of approximately 80 incidents of alleged racial
discrimination that occurred prior to the time period designated by
the district court for this lawsuit.
The district court was entirely correct in refusing to apply
the continuing violation theory to the appellants’ racial
discrimination for failure to promote and train claims. This
11
court’s decision in Huckabay makes clear that a one-time employment
event, including the failure to hire, promote, or train and dismals
or demotions, is “the sort of discrete and salient event that
should put the employee on notice that a cause of action has
accrued.” Huckabay, 142 F.3d at 240. These “discrete adverse
actions, although racially motivated, cannot be lumped together
with the day-to-day pattern of racial harassment” and therefore, if
otherwise untimely, cannot be saved by the continuing violation
doctrine. Id. An employee who claims to be the victim of a
racially motivated failure to promote or train is put on notice
that his rights have been violated at the time the adverse
employment decision occurs, and must therefore bring the claim
within 180 days of the adverse decision.
The appellants’ hostile work environment claims are
potentially more compatible with the continuing violation doctrine.
However, the continuing violation doctrine does not automatically
attach in hostile work environment cases, and the burden remains on
the employee to demonstrate an organized scheme led to and included
the present violation. Huckabay, 142 F.3d at 239; Berry v. Bd. of
Supervisors, 715 F.2d 971, 981 (5th Cir. 1983). In addition, “the
continuing violation theory requires the same type of
discriminatory acts to occur both inside and outside the
limitations period,” such that a valid connection exists between
them. Martineau v. ARCO Chem. Co., 203 F.3d 904, 913 (5th Cir.
12
2000). Finally, “where a pattern of harassment spreads out over
years, and it is evident long before the plaintiff sues that she
was a victim of actionable harassment, she can not reach back and
base her suit on conduct that occurred outside the statute of
limitations.” Hardin, 167 F.3d at 344; see also Webb v.
Cardiothorasic Surgery Assocs., 139 F.3d 532, 537 (5th Cir. 1998)
(explaining that, under the continuing violation doctrine, the
plaintiff still must show a series of acts, one or more of which
fall within the limitations period).
Given these various restrictions on use of the continuing
violation doctrine, the burden is upon each of the appellants2 to
offer evidence that they suffered race-base harassment both prior
and during the filing period, that the incidents of harassment were
related, and that the harassment was pursuant to an organized
scheme. Huckabay, 142 F.3d at 238; Berry, 715 F.2d at 981. The
appellants fail to carry this burden for each of their claims. The
appellants neglect the fact that they are before this Court as
individual plaintiffs rather than as members of a class. Rather
than describing each individual appellant’s hostile work
environment and explaining why application of the continuing
violation doctrine would be appropriate for each appellant’s claim,
the appellants paint with wide brush strokes, making broad
2
Contrary to the appellants’ assertions, the burden is
upon them to establish that the continuing violation doctrine
applies. Webb, 139 F.3d at 537.
13
generalizations about the working conditions at CITGO over the last
three decades. The appellants apparently want the continuing
violation doctrine applied on a (non-existent) class-wide basis,
rather than on a claim-by-claim basis. In no instance do the
appellants take an individual hostile work environment claim and
cite examples of racial harassment during the 180 day period,
correlate this to similar racial incidents prior to the filing
period, and identify a organized scheme underlying this harassment.
It is apparent from the district court’s grant of summary judgment
and the appellee’s brief that many of the appellants fail to
identify any acts of alleged racial harassment at all during the
limitations period. No appellant claims to have been the victim of
severe and pervasive harassment during the limitations period, and
no appellant identifies any organized scheme underlying the alleged
harassment.
Because the appellants have failed to carry their burden in
attempting to invoke the continuing violation doctrine, the
district court did not err in refusing to consider alleged acts of
harassment that occurred prior to April 29, 1992.
Appellants’ hostile work environment claims
Appellants argue that they each established a prima facie case
of a hostile work environment. A prima facie case of racial
harassment alleging hostile work environment normally consists of
five elements: (1) the employee belongs to a protected group; (2)
14
the employee was subjected to unwelcome harassment; (3) the
harassment complained of was based on race; (4) the harassment
complained of affected a term condition or privilege of employment;
(5) the employer knew or should have known of the harassment in
question and failed to take prompt remedial action. Watts v.
Kroger Co., 170 F.3d 505, 509-10 (5th Cir. 1999); Jones v. Flagship
Int’l, 793 F.2d 714, 719-720 (5th Cir. 1986). For harassment to
affect a “term, condition, or privilege of employment” it must be
“sufficiently severe or pervasive so as to alter the conditions of
employment and create an abusive working environment.” Watts, 170
F.3d at 509.
However, this well-established five-part test has recently
undergone a revision, with the Supreme Court ruling that in Title
VII harassment cases, where the harassment is allegedly committed
by a supervisor with immediate (or successively higher) authority
over the harassment victim, the plaintiff employee needs to satisfy
only the first four of the elements listed above. Faragher v. City
of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 2292-93 (1998).
Once the plaintiff makes the four-part showing that they have been
harassed by a supervisor, the “employer is subject to vicarious
liability to a victimized employee” for the supervisor’s conduct.3
3
An affirmative defense is available to employers in
certain circumstances under Faragher, provided that the
supervisor’s harassment did not culminate with any “tangible
employment action” against the employee. Faragher, 524 U.S. at
807.
15
Id.
The magistrate judge and the district court reviewed the
hostile work environment claims of forty-four individual appellants
and concluded that no reasonable fact finder could find that the
appellants had established that there was intentional, pervasive,
and regular racial discrimination of which CITGO’s supervisors and
management were aware and which CITGO permitted to continue. The
magistrate reviewed the individual hostile work environment claims
in detail, concluding that all of them failed to make out a prima
facie case because the alleged incidents took place outside of the
limitations period, the complained of incidents were not severe or
pervasive enough to constitute actionable racial harassment, or
that CITGO was not aware of the harassment.
The appellants correctly point out that the district court’s
1996 grant of summary judgment to CITGO on this set of hostile work
environment claims predates Faragher. While the district court
correctly applied the law as it stood at the time, it did not
anticipate Faragher. The district court did not take into account
that CITGO could be held vicariously liable for racial harassment
by its supervisors, even if it was not aware of this racial
harassment. However, a review of the record excerpts and briefs
reveals only eight incidents of alleged racial harassment involving
supervisory personnel during the relevant time period (between
April 29, 1992, and May 24, 1994). Of these instances involving
16
supervisory personnel, none can be said to be “sufficiently severe
or pervasive so as to alter the conditions of employment and create
an abusive working environment.” Watts, 170 F.3d at 509.
Aside from challenging the relevant time period defined by the
district court and invoking the new rule of Faragher, the
appellants offer no reason why the district court erred in finding
that the hostile work environment plaintiffs had failed to make out
their respective prima facie cases.
Appellants’ Title VII failure to promote and train claims
On January 11, 2000, the district court granted summary
judgment for CITGO and against 37 individual appellants claiming
that they were discriminated against by being denied promotions and
training because of their race in violation of Title VII. 42
U.S.C. §§ 2000e-2000e(17). Claiming that the district court
applied an erroneous legal standard by “pigeonholing” the
plaintiffs into the familiar burden-shifting framework of
McDonnell-Douglas and by forcing them to prove “better
qualifications” as part of their prima facie case, these plaintiffs
now appeal.
In order to overcome a motion for summary judgment on a Title
VII discrimination claim, the plaintiff must first establish, by a
preponderance of the evidence, a prima facie case of
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-04, 93 S.Ct. 1817, 1824-26 (1973); Haynes v. Penzoil, 207 F.3d
17
296, 300 (5th Cir. 2000); Shackelford v. Deloitte & Touche, 190
F.3d 398, 404 (5th Cir. 1999). A prima facie case of
discrimination in a failure to promote or train case consists of
four elements: (1) the employee is a member of the protected class;
(2) he sought and was qualified for the position; (3) he was
rejected for the position; (4) the employer continued to seek
applicants with the plaintiff’s qualifications. Haynes, 207 F.3d
at 300. The prima facie case, once established, raises an
inference of intentional discrimination, and the burden of
production shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for its actions. Id. If the defendant
satisfies this burden, the plaintiff must prove that the proffered
reasons are pretextual. Id. Once a Title VII claim reaches this
pretext stage, “the only question on summary judgment is whether
there is a conflict in substantial evidence to create a jury
question regarding discrimination.” Id.
A. The “pattern and practice” method of proof
The district court properly invoked and applied this McDonnell
Douglas burden-shifting scheme in analyzing the appellants’ claims
on summary judgment. Appellants, however, object to the
application of McDonnell Douglas, arguing instead that the “pattern
and practice” mode of proof for racial discrimination claims
recognized in Teamsters v. United States, 431 U.S. 324, 358-59, 97
S.Ct. 1843, 1866-67 (1977), should have been applied to their
18
claims. A pattern or practice case is not a separate and free-
standing cause of action (as the appellants assert), but is really
“merely another method by which disparate treatment can be shown.”
Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1219 (5th Cir. 1995).
The typical pattern or practice discrimination case is brought
either by the government or as a class action to establish “that
unlawful discrimination has been a regular procedure or policy
followed by an employer or group of employers.” Teamsters, 431
U.S. at 360.
The pattern and practice method of proof is almost exclusively
used in class actions, with individual racial discrimination
plaintiffs confined to the McDonnell Douglas framework. Scarlett
v. Seaboard Coast Line R.R. Co., 676 F.2d 1043, 1053 (5th Cir.
1982) (“This is not a ‘pattern and practice suit’ by the government
. . . [n]or is this a private class action . . . [a]n individual
proceeding as an individual under Title VII must prove the elements
of a discriminatory hiring claim as set forth in McDonnell
Douglas.”). The Supreme Court has never applied the Teamsters
method of proof in a private, non-class suit and has recognized the
distinction between individual racial discrimination claims and
class actions:
The crucial difference between an individual’s
claim of discrimination and a class action alleging
a general pattern or practice of discrimination is
manifest. The inquiry regarding an individual’s
claim is the reason for a particular employment
decision, while at the liability stage of a
19
pattern-or-practice trial the focus often will not
be on individual hiring decisions, but on a pattern
of discriminatory decisionmaking.
Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 876, 104
S.Ct. 2794, 2799-2800 (1984).
While the Supreme Court has not explicitly stated that the
pattern and practice method of proof may never be used in private
non-class suits, other courts have reached this conclusion. See,
e.g., Lowrey v. Circuit City Stores, Inc., 158 F.3d 742, 760 (4th
Cir. 1998), vac. on other grounds, 527 U.S. 1031, 119 S.Ct. 2388
(1999); Babrocky v. Jewel Food Co., 773 F.2d 857, 866-67 n.6 (7th
Cir. 1985) (“Plaintiffs’ use of ‘pattern-or-practice’ language also
seems to be misplaced, since such suits, by their very nature,
involve claims of classwide discrimination, and the five
plaintiffs, while attacking policies that would have affected all
of Jewel’s women employees as a class, have stated only their
individual claims, not a class action.”) (citations omitted); Axel
v. Apfel, 2000 WL 1593446, *6 (D. Md. 2000); Herendeen v. Mich.
State Police, 39 F.Supp. 2d 899, 905 (W.D. Mich. 1999). Similarly,
while the Fifth Circuit has not definitively ruled out the use of
the Teamsters method of proof in a private, individual racial
discrimination suit, this Court’s precedents seem to support such
an exclusion. Scarlett, 676 F.2d at 1053; Mooney, 54 F.3d at 1219-
20 (upholding lower court’s rejection of “pattern or practice”
instruction because individual plaintiffs failed to show they were
20
entitled to such an instruction).
Given the nature and purpose of the pattern and practice
method of proof, this Court’s precedents, and the precedents of
other circuits, the district court did not err in refusing to apply
the Teamsters method of proof as an independent method of proof to
the appellants’ individual claims in lieu of the McDonnell Douglas
method at the summary judgment stage.4
B. The prima facie case and the showing of “better
qualifications”
Appellants also contend that the district court misapplied
McDonnell Douglas by requiring the appellants to show as part of
their prima facie case that they were “better qualified” than the
employees promoted or trained in their stead. Had the district
court expanded the four-element prima facie case for racial
discrimination through failure to promote or train this might be
true. However, this is not what the district court did; the
district court only asked for evidence that the plaintiff employee
was “better qualified” than the employee given promotion or
training in those instances where CITGO’s proffered legitimate,
4
This conclusion is based on precedent indicating that
the Teamsters method is simply not available to plaintiffs that
are not a part of a class action. See Scarlett, 676 F.2d at 1053
(indicating that to use this method the plaintiff must either be
part of a class action or the suit must be instituted by the
government under certain circumstances). As the plaintiffs are
before us in their individual capacities, due to their failure to
obtain class certification, the Teamsters method is not available
to them. Id.
21
non-discriminatory reason for its employment decision was that the
plaintiff employee was less qualified than the employee awarded the
promotion or training. In other words, the district court’s
request for evidence that the plaintiff employee was “better
qualified” did not occur at the prima facie case stage of the
three-part McDonnell Douglas analysis, but rather at the third
stage, where the plaintiff is required to present evidence
rebutting the defendant’s proffered non-discriminatory explanation
for its decision. Here, many of the appellants successfully made
out their prima facie cases of racial discrimination, CITGO put
forward that its decision not to promote or train these appellants
was based on the superior qualifications of the other employee, and
the appellants were left to rebut this proffered non-discriminatory
reason. To succeed in doing so, the appellants were obliged to
bring forward enough evidence on summary judgment so as to create
a genuine issue of material fact on whether or not CITGO’s
explanation was pretextual. The district court ruled that the
appellants failed to meet their burden under this third prong of
the McDonnell Douglas framework by failing to introduce competent
summary judgment evidence that CITGO’s explanation was false or
pretextual (i.e. evidence that the appellant was “better
qualified”).
This Court has ruled that a plaintiff may survive summary
judgment and take his case to the jury by providing evidence that
22
he was “clearly better qualified” than the employee selected for
the position at issue. Scott, 148 F.3d at 508; Walther v. Lone
Star Gas Co., 952 F.2d 119, 123 (5th Cir. 1992). The single
question for the trier of fact is whether the employer’s selection
of a particular applicant over the plaintiff was motivated by
discrimination, and evidence of the plaintiff’s superior
qualification is thus probative of pretext. Deines v. Dept. of
Prot. & Regulatory Servs., 164 F.3d 277, 281 (5th Cir. 1999).
However, the bar is set high for this kind of evidence because
differences in qualifications are generally not probative evidence
of discrimination unless those disparities are “of such weight and
significance that no reasonable person, in the exercise of
impartial judgment, could have chosen the candidate selected over
the plaintiff for the job in question.” Deines, 164 F.3d at 280-
81.
A review of the briefs and record excerpts reveals that none
of the appellants presented competent summary judgment evidence
that they were “clearly better qualified” for promotion or
training. They therefore failed to even attempt to rebut CITGO’s
proffered non-discriminatory explanation, making the grant of
summary judgment to CITGO proper.
The affidavit of Dr. Andrew Hacker
The appellants also appeal the district court’s refusal to
consider on summary judgment the affidavit of Professor Andrew
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Hacker, the appellants’ expert on racial harassment. The district
court struck this affidavit because (1) it did not contain relevant
factual information regarding the actual work environment at CITGO,
(2) it was not based upon personal knowledge as required by Fed. R.
Civ. P. 56(e), and (3) it contained many inflammatory accusations
leveled at CITGO and all of Calcasieu Parish in general without any
specific reference whatsoever to the source of such a verbal
attack. Dr. Hacker admits that his affidavit does not include data
showing a hostile work environment at CITGO, but nevertheless the
affidavit concludes that racial harassment in Lake Charles is
likely “the product of a culture of segregation, isolation and
subordination pervasive in the area.”
A district court has broad discretion to rule on the
admissibility of expert’s affidavits in the summary judgment
context, and its ruling must be sustained unless manifestly
erroneous. Boyd v. State Farm Ins. Co., 158 F.3d 326, 331 (5th
Cir. 1998). To be considered on summary judgment, an expert’s
affidavit must include materials upon which the expert based his
opinion, as well as an indication of the reasoning process
underlying the opinion. Id. Because Dr. Hacker’s conclusory
affidavit does not give such insight into his reasoning process,
the district court was within its discretion to exclude it.
CONCLUSION
Having carefully reviewed the record of this case and the
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parties’ respective briefing and for the reasons set forth above,
we conclude that the district court did not err in granting summary
judgment or in excluding Dr. Hacker’s affidavit. We, therefore,
AFFIRM the district court’s decision in its entirety.
AFFIRMED.
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Celestine v. Petroleos De Venezuella SA
Court: Court of Appeals for the Fifth Circuit
Date filed: 2001-10-05
Citations: 266 F.3d 343
Copy CitationsCombined Opinion