Davis v. Chevron U.S.A., Inc.

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