Johnson v. State of Louisiana

                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                  F I L E D
               IN THE UNITED STATES COURT OF APPEALS             November 14, 2003

                        FOR THE FIFTH CIRCUIT                 Charles R. Fulbruge III
                                                                      Clerk


                            No. 03-30014



CATHERINE V. JOHNSON,
                                        Plaintiff,

                                versus

STATE OF LOUISIANA, ETC; ET AL,
                                        Defendants

_________________________________________________________________

GAIL E. COOPER; DEBRA CELESTINE;
LORRAINE KELLER-JENNINGS; CYNTHIA HENLEY;
PATRICIA CHAPMAN; THAIS WALKER; LYNETTE WALKER,

                                        Plaintiffs - Appellants,

                                versus

BOARD OF SUPERVISORS OF LOUISIANA STATE
UNIVERSITY, MEDICAL CENTER,

                                        Defendant - Appellee.



           Appeals from the United States District Court
               For the Eastern District of Louisiana




Before REAVLEY, HIGGINBOTHAM, and BENAVIDES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

     Plaintiffs Debra Celestine, Lorraine Keller-Jennings, Cynthia

Henley,   Patricia   Chapman,   Thais    Walker,     and   Lynette    Walker
(“Grouped Plaintiffs”) and Gail Cooper brought Title VII and state

law   employment   discrimination       claims   against   the   Board   of

Supervisors of Louisiana State University Medical Center (“LSUMC”).

The district court granted summary judgment for LSUMC, holding that

neither Grouped Plaintiffs nor Cooper established a prima facie

employment discrimination case because they did not show themselves

to be qualified for the coveted positions.        We AFFIRM the district

court’s holding as to the Grouped Plaintiffs, but we REVERSE the

holding as to Cooper and REMAND her portion of the case for further

proceedings.

                                    I

      Grouped Plaintiffs and Cooper sued LSUMC, alleging employment

discrimination in violation of state law and Title VII of the Civil

Rights Act of 1964.1     The plaintiffs allege that LSUMC hired

Jacqueline Donellon and Rose Klein, two Caucasian women who did not

meet LSUMC’s objective job requirements.          The plaintiffs allege

that LSUMC used restricted appointments - an alternative hiring

method - to avoid posting the job openings and to hire the under-

qualified Caucasian women.   The district court granted Defendant’s

summary judgment, finding that the plaintiffs did not establish a

prima facie case of employment discrimination under              McDonnell



      1
       Federal law governs the plaintiffs’ state law claim.
Louisiana looks to federal law to decide employment discrimination
cases. See Plummer v. Marriot Corp., 654 So.2d 843, 848 (La.App.
4th Cir., 1995).

                                    2
Douglas Corp. v. Green2 because the plaintiffs were not qualified

for   the    coveted     positions.       The    district    court   made    this

determination by looking solely at LSUMC’s objective requirements;

the court considered irrelevant the allegations that Donellon and

Klein - the employees actually hired - did not meet the objective

requirements.

      All of the plaintiffs work in the finance department of LSUMC.

The   positions     at     issue   are       Accountant     Supervisor   1   and

Administrative Manager 3. The minimum qualification for Accountant

Supervisor 1 is a bachelor’s degree with twenty-four semester hours

in accounting and three years professional level experience in

accounting or financial auditing.             The minimum qualification for

Administrative Manager 3 is a bachelor’s degree with twenty-four

semester hours in accounting and two years professional level

experience     in   administrative       services,    accounting,     auditing,

purchasing, or staff development.

      LSUMC placed Donellon and Klein in these positions through the

use of restricted appointments - an exception to the general hiring

practice.     A restricted appointment is a temporary position not to

exceed six months.3         The appointees must be qualified for the

positions.4      The civil service department does not check the

      2
           411 U.S. 792 (1973).
      3
          State Civil Service Commission Rule 8.10.
      4
       Policy No. 8005 of the Department of Health and Human
Resources, Office of Charity Hospital at New Orleans.

                                         3
qualifications of employees hired to restricted appointments; the

local human resources department has the power to decide for itself

who is qualified. However, LSUMC’s own policy requires those hired

through restricted appointments to be qualified for the position.

LSUMC authorized the hiring of Donellon and Klein in March 1999 to

restricted appointments in Accounting Supervisor 1 positions.5

Soon after this authorization, LSUMC realized that neither Donellon

nor   Klein   satisfied   the   qualification   requirements   for   the

position.     Donellon and Klein were then moved to the position of

Administrative Manager 3, which requires less professional level

experience.    Kaye Hamilton, defendant’s expert and Human Resources

Program Consultant Supervisor with the Louisiana Department of

Civil Services, testified that she could not determine whether

Donellon and Klein were qualified for the position because she

needed more information about their work history.          Nonetheless,

Donellon and Klein served in that position temporarily.        Donellon

served from April 26, 1999, until August 3, 1999, and Klein served

from May 3, 1999, until August 2, 1999.

      Grouped Plaintiffs did not qualify for either of the coveted

positions as measured by the objective requirements.        Each of the

Grouped Plaintiffs lacked the education and experience requirements

of    Accountant   Supervisor   1   and   Administrative   Manager   3.

      5
       Defendant contends that Klein was never placed in this
position, but because the plaintiffs appeal a summary judgment,
this court must accept the facts in the light most favorable to the
plaintiffs.

                                    4
Accordingly, their names did not appear on a list of eligibles for

the job openings, and they were not considered for the positions.

Finally, Grouped Plaintiffs presented no evidence that they were at

least as qualified as Donellon and Klein.

       All concede, however, that Cooper was qualified for both

positions at the time of hiring.               The dispute centers around

whether Defendant’s expert correctly determined that Cooper would

not have appeared qualified based on a review of her file at the

time of the job openings.      Defendants and the district court below

argue that Cooper’s file was not supplemented with additional

professional level experience, which would qualify her for both

positions.    Because the file was not supplemented, Hamilton stated

in her affidavit that she did not believe Cooper was qualified.                As

a result, her name would not appear on a list of eligibles.                  With

this   in   mind,   the   district   court     found   that   Cooper   did    not

establish a prima facie case.

       Cooper disputes this finding.            She argues that her file

included a supplement that may have qualified her for the position,

but Hamilton ignored it when making her affidavit.                     Hamilton

admitted in her deposition that she saw the supplement in Cooper’s

file, but she stated that she could not determine its origin.

Cooper discussed this supplement, as well as an affidavit of a

former boss, with Hamilton during her deposition.                Based on the

additional    information     acquired    at    the    deposition,     Hamilton

testified that Cooper was qualified for both positions.                      The

                                      5
parties dispute whether the supplement was in the file at the time

of the hiring decision.

     Cooper also argued that in hiring Donellon and Klein, LSUMC

ignored its own hiring policies.              First, it placed employees who

did not meet the job requirements in restricted appointments.

Second, it did not first attempt to fill the positions with

internal employees.        Cooper alleges that race animated LSUMC’s

actions, but no determination was made on the issue as a result of

the summary judgment.

     The    district     court   granted      Defendant’s    summary    judgement

because it believed the plaintiffs had not established a prima

facie claim of employment discrimination.               That is, the plaintiffs

did not     meet   the   prima   facie       elements   required   by   McDonnell

Douglas.6    The court found that neither the Grouped Plaintiffs nor

Cooper was qualified for the positions.                 The court ignored the

allegations that Donellon and Klein were not qualified for the

positions and that LSUMC used the restricted appointment procedure

to discriminate against the plaintiffs. The court also ignored the

allegation that LSUMC violated its own policies.                   The district


     6
       411 U.S. 792, 802 (1973) (“The complainant in a Title VII
trial must carry the initial burden under the statute of
establishing a prima facie case of racial discrimination. This may
be done by showing (I) that he belongs to a racial minority; (ii)
that he applied and was qualified for a job for which the employer
was seeking applicants; (iii) that, despite his qualifications, he
was rejected; and (iv) that, after his rejection, the position
remained open and the employer continued to seek applicants from
persons of complainant’s qualifications.”).

                                         6
court viewed all of these allegations as irrelevant to the prima

facie determination.       The court would consider them relevant only

after the plaintiffs presented a prima facie case.          Not believing

the plaintiffs to have done so, the court did not consider the

allegations and granted summary judgment for Defendants.

     Grouped Plaintiffs and Cooper appeal the summary judgment.

The plaintiffs argue that LSUMC used the restricted appointment

procedure to avoid general hiring policies, which allowed them to

hire unqualified Caucasian employees.           Grouped Plaintiffs argue

that Defendants cannot apply the objective requirements to them

until Defendants prove that the requirements were also applied to

Donellon and Klein.       Cooper argues that the court erred in holding

that she was not qualified.

                                     II

     This court reviews the granting of a summary judgment motion

de novo.7      We “go beyond the pleadings to determine whether there

is no genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law.”8

     Title VII9 governs the plaintiffs’ employment discrimination

claims.     The   Title    VII   inquiry   is   “whether   the   defendant



     7
       Copeland v. Wasserstein, Perella & Co., Inc., 278 F.3d 472,
477 (5th Cir. 2002).
     8
         Id.
     9
         Amended and Codified as 42 U.S.C. § 2000e et seq.

                                      7
intentionally discriminated against the plaintiff.”10                 Resolution

of   a claim        involves   a   three-step,    burden-shifting     analysis.11

First, a plaintiff must raise a genuine issue of material fact on

each element of his prima facie case.12             Second, if the plaintiff

presents a prima facie case, the defendant must then give a

legitimate, nondiscriminatory reason for the employment decision.13

Third, the plaintiff must raise a genuine issue of material fact

that        shows   the   defendant’s    reason    may     be   a   pretext   for

discrimination.14         This appeal focuses solely on the first step:

whether the plaintiffs present a prima facie case of employment

discrimination.

       McDonnell Douglas determines whether a plaintiff makes a prima

facie case of employment discrimination.15               A plaintiff must:

       carry the initial burden under the statute of
       establishing a prima facie case of racial discrimination.
       This may be done by showing (I) that he belongs to a
       racial minority; (ii) that he applied and was qualified
       for a job for which the employer was seeking applicants;


       10
       U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S.
711, 715 (1983) (citing Texas Department of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981)).
       11
       Lindsey v. Prive Corp., 987 F.2d 324, 326 (5th Cir. 1993);
Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 680 (5th Cir.
2001).
       12
             Id.
       13
             Id.
       14
             Id.
       15
             McDonnell, 411 U.S. at 802.

                                         8
     (iii) that, despite his qualifications, he was rejected;
     and (iv) that, after his rejection, the position remained
     open and the employer continued to seek applicants from
     persons of complainant’s qualifications.16

If a plaintiff establishes a prima facie case, it creates a

“rebuttable ‘presumption that the employer unlawfully discriminated

against’” the plaintiff.17    The Court noted 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.’”18

     Employers may succeed on summary judgment by establishing that

the plaintiff is not qualified for the coveted position.                 An

employer may establish job requirements, and rely on them in

arguing that a prima facie case is not established because the

employee is not “qualified.”      However, only objective requirements

may be used in making this argument.19 Otherwise, an employer could

“utilize    wholly   subjective   standards   by   which   to   judge   its




     16
          Id.
     17
          Aikens, 460 U.S. at 714 (citing Burdine, 450 U.S. at 254).
     18
       Aiken, 460 U.S. at 715 (quoting Furnco Construction Corp.
v. Waters, 438 U.S. 567, 577 (1978)).
     19
       Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 681 (5th
Cir. 2001).

                                    9
employees’ qualifications and then plead lack of qualification when

its promotion process . . . is challenged as discriminatory.”20

       The requirement that an employee must apply for the position

at issue is interpreted to accommodate various situations.                     For

instance, an employee does need to apply to establish a prima facie

case when the position was not publicized.21             Instead, the employee

must show that the company had a duty or reason to consider her for

the position.22

       The ultimate burden of persuasion remains with the plaintiff.23

Once    the       plaintiff   establishes    a   prima   facie   case,   and   the

defendant provides a legitimate, nondiscriminatory reason for the

employment decision, the burden shifts back to the plaintiff.24

However, the question of whether the plaintiffs here met their

ultimate burden is not at issue in this appeal.              The Defendant and

the district court below rely solely on the proposition that the

plaintiffs’ claims fail because they are not qualified.




       20
       Id. (quoting Crawford v. Western Elec. Co., Inc., 614 F.2d
1300, 1315 (5th Cir. 1980)).
       21
            Jones v. Flagship Intern., 793 F.2d 714, 724 (5th Cir.
1986).
       22
            Id.
       23
       Faruki v. Parsons S.I.P., Inc., 123 F.3d 315, 319 (5th Cir.
1997) (citing Burdine, 450 U.S. at 253).
       24
            Id.

                                        10
                                     III

                                      A

     The primary contention of Grouped Plaintiffs is that LSUMC

cannot rely on its objective requirements because Defendant did not

apply those standards to the employees actually hired.                      Grouped

Plaintiffs    argue   that   LSUMC    may   rely    on    the       objective   job

requirements only after it shows that the requirements were also

applied to Donellon and Klein.         The district court dismissed the

allegations    of   disparate   application        of    the    requirements     as

irrelevant to the prima facie determination:

     At the prima facie stage of inquiry, the qualifications,
     or lack thereof of the hirees, is not pertinent.      In
     order to establish a prima facie case of intentional
     discrimination, Plaintiffs must make a showing that they
     were qualified for the position. The Grouped-Plaintiffs
     have failed to satisfy this threshold burden.

The district court determined that because the plaintiffs did not

show themselves to be qualified as measured by the objective

requirements, all other considerations were irrelevant.

     The    Grouped   Plaintiffs     rely   on   Carter        v.   Three   Springs

Residential Treatment,25 an Eleventh Circuit case.                  In Carter, the

plaintiff alleged that his employer chose to promote another

employee instead of the plaintiff because of his race.26                        The

defendant argued that Carter did not make a prima facie case



     25
          132 F.3d 635 (11th Cir. 1998).
     26
          Carter, 132 F.3d at 637.

                                      11
because he was not qualified for the position.27             The defendant

based this argument, in part, on the fact that Carter lacked the

clinical experience required by the job description.28 However, the

court     refused   to   consider   clinical   experience   in   determining

whether Carter was qualified because the defendant did not apply

the requirement to the eventual            hiree.29   Because the chosen

employees did not have the “required” clinical experience, but were

hired nonetheless, “clinical experience cannot be considered to be

a minimum qualification.”30 Unlike the district court in this case,

the Eleventh Circuit found this inquiry to be appropriate during

the prima facie stage of the case.         Carter was not precluded from

making a prima facie case simply because he did not meet an

objective requirement that was not applied to the eventual hiree.

The court went on to find that Carter was just as qualified as the

employees hired; therefore, a genuine issue of fact existed as to

whether the employment decision was based on race.31

     Sledge v. Goodyear Dunlop Tires North America, Ltd.,32 another

Eleventh Circuit case, also addresses the issue before this court.


     27
          Id. at 643.
     28
          Id.
     29
          Id.
     30
          Id.
     31
          Id. at 644-45.
     32
          275 F.3d 1014 (11th Cir. 2001).

                                      12
In Sledge, an employee brought a Title VII claim against his

employer, alleging that he was passed over for a promotion because

of his race.33 The district court granted summary judgement for the

defendant, holding that Sledge failed to make a prima facie case

because he did not show himself to be qualified.34       The district

court based this determination on the fact that Sledge failed a

required test.35   The district court did not consider the fact that

other white employees applied for the position, failed the test,

but were promoted nonetheless.36       The Eleventh Circuit held that

Sledge proved himself to be qualified for the position - based on

his experience and an affidavit from his supervisor - and that he

could not be deemed “unqualified” based on his failure of a test

that was not applied equally to all employees.37       The court also

stated that because of the unequal application of the testing

requirement, Sledge illustrated direct discrimination and did not

need the benefit of the McDonnell Douglas presumption.38




     33
          Id. at 1016-18.
     34
          Id. at 1015.
     35
          Id. at 1015 n.1, 1016-17.
     36
          Id. at 1019-20.
     37
          Id. at 1020.
     38
          Id. at 1019 n.10.

                                  13
      LSUMC     offers     no    response     to   the   allegedly    disparate

application of its objective requirements, or the use of restricted

appointments in an allegedly discriminatory manner.

      The Fifth circuit has not addressed Carter or Sledge, but

their application and interpretation of McDonnell Douglas is sound.

The   district     court     believes    it   should     address   the   unequal

application of the objective requirements at a later stage of the

case, but this solution would disallow courts from remedying this

type of discrimination.          A plaintiff would never reach the later

stage of the case if the unequal application were not addressed at

the prima facie stage.          Allowing an employer to point to objective

requirements in arguing that a plaintiff is unqualified, even

though the requirements were not applied to other employees, would

subvert the intent of Title VII and McDonnell Douglas.

      The     Eleventh     Circuit’s    approach    squares    with   McDonnell

Douglas.     The last element of a prima facie case requires a showing

that the employer sought other employees with the plaintiff’s

qualifications.39        This focuses the prima facie determination not

on a company’s objective requirements.             Rather, it focuses on the

plaintiff’s qualifications in relation to the employees actually

hired.      With this in mind, the district court erred in looking

solely at the objective requirements and ignoring their possible

unequal application.


      39
           McDonnell Douglas, 411 U.S. at 802 (emphasis added).

                                        14
     Finally, this approach squares with our caselaw. In Medina v.

Ramsey Steel Co,40 we disallowed the use of subjective requirements

during the        prima   facie       stage;   to   hold   otherwise   would   allow

employers to argue a lack of subjective qualification - which no

one could judge - and obtain summary judgment.                    Similarly here,

hiring an employee who does not meet the company’s objective

requirements is basically a subjective determination: the employee

can do the job despite the fact that she does not meet the

technical requirements.           Whether or not this determination by the

employer was animated by race is a question to be answered by the

fact-finder during trial, not by the judge at the prima facie

stage.

     We find that the district court erred by applying objective

requirements to the Grouped Plaintiffs without considering whether

the requirements were equally applied to the employees actually

hired.    However, the decision to grant summary judgment as to the

Grouped Plaintiffs was not erroneous because they offered no

evidence that they were at least as qualified as Donellon and

Klein. Grouped Plaintiffs do not argue that they are qualified, as

measured     by     Defendant’s        objective     requirements,     for     either

Accountant    Supervisor          1    or   Administrative     Manager   3.      The

uncontroverted testimony of LSUMC’s expert is that none of the

Grouped Plaintiffs meet the requirements.                    Furthermore, Grouped


     40
          238 F.3d 674, 680 (5th Cir. 2001).

                                            15
Plaintiffs      presented      no   evidence       that   they   are    at     least   as

qualified as Donellon and Klein. Accordingly, even if the district

court       applied   the     Eleventh     Circuit’s      analysis,      the    Grouped

Plaintiffs still fail to establish a prima facie claim.

       In Carter and Sledge, the plaintiffs showed themselves to be

qualified for the positions as measured by the standards applied to

those actually hired.           Carter provided the court a great deal of

evidence regarding his education and work history, both of which

were extensive.41 Sledge obtained a letter from his supervisor that

he could do the work.42         The Grouped Plaintiffs, on the other hand,

offer no evidence that they are qualified to do the work, or that

they are as qualified as Donellon and Klein.                     As a result, they

fail to make a prima facie case of employment discrimination.43

       Grouped Plaintiffs cite no authority to support their claim

that    LSUMC     must      first   show    that    it    applied      the   objective

requirements to Donellon and Klein before it can apply them to

others.       A plaintiff claiming employment discrimination must bear

its burden, part of which is showing herself to be qualified.

Here, it was the Grouped Plaintiffs’ burden to show that they were

qualified. If LSUMC’s objective requirements were not applied to

the employees actually hired, the Grouped Plaintiffs must show this


       41
            Carter, 132 F.3d at 643-44.
       42
            Sledge, 275 F.3d at 1019-20.
       43
            McDonnell Douglas, 411 U.S. at 802.

                                           16
in   order     to   make     the    requirements    inapplicable    to   the

“qualification” determination at the prima facie stage.

                                        B

     Cooper alleges the same Title VII and state law employment

discrimination claims.           The analysis for Cooper’s case differs

because, unlike the Grouped Plaintiffs, Cooper is qualified for

both the Accounting Supervisor 1 position and the Administrative

Manager 3 position.        Cooper alleges that the district court erred

by finding that she was unqualified for the positions and that the

Defendant had no duty to consider her, and in refusing to consider

the unequal application of the objective requirements.

     The district court found that Cooper failed to supplement her

employment file with information that showed her to be qualified

for the positions.       It is undisputed that it is an employee’s duty

to supplement his or her employment file.          The district court found

that at the time her file              was reviewed, she did not appear

qualified.     This resulted in her name being left off a list of

eligible     employees     for   the   position.    Because   she   appeared

unqualified at the time of the hiring decision, the district court

held that she failed to make a prima facie claim.

     Cooper disputes that she failed to supplement her file.             She

argues that Ms. Hamilton, defendant’s expert who submitted an

affidavit and was later deposed, did not rely on all appropriate

employment application material in forming her initial opinion that

Cooper was not qualified.          Cooper claims that because her file was

                                        17
supplemented at the time Ms. Hamilton signed her affidavit, the

affidavit incorrectly opines that Cooper was not qualified.

     Having completed a de novo review of the record, we believe

there to be genuine issues of fact that preclude summary judgment.

First, the state of Cooper’s employment file raises an issue of

fact.    The district court below found and defendants on appeal

argue,   based        on    Kaye   Hamilton’s     deposition,     that   Cooper’s

supplement showing additional experience was not on file. However,

later in her deposition Ms. Hamilton admitted that the supplement

was included in the file.            She admitted seeing it, but noted that

there was    no       official     heading;   however,    she   agreed   that    the

document could cause a reviewer to investigate further. Relatedly,

there are fact issues regarding the valid portions of Hamilton’s

affidavit.     She recanted part of her affidavit regarding the

requirements for one to apply for a position during her deposition.

     Second, it remains unclear whether Cooper is at least as

qualified as Donellon and Klein.              As discussed above, it was error

for the district court to apply the objective requirements to

Cooper while failing to consider that LSUMC did not apply the

requirements to the Caucasian employees.                 The Eleventh Circuit’s

approach to this issue - unequal application of objective job

requirements      -    is   sound.     Allowing    an    employer   to   point   to

objective requirements in arguing that a plaintiff is unqualified,

even though the requirements were not applied to other employees,



                                         18
would subvert the intent of Title VII and McDonnell Douglas.   The

parties concede that Cooper is qualified for both positions.

Donellon and Klein were not qualified for Accounting Supervisor 1,

although Defendant moved them out of the position as soon as this

was discovered.   It is unclear whether Donellon and Klein were

qualified for the Administrative Manager 3 position.    The expert

testified in her deposition that she would need more information

regarding their previous employment responsibilities to decide

whether they were qualified.   This determination was never made

because Defendant used the restricted appointment process, which

allowed it to make the hiring decision locally.

     Considering Cooper’s evidence showing her to be qualified, the

disputed state of Cooper’s file at the time of the employment

decision, and the uncertainty regarding Donellon’s and Klein’s

qualifications, fact issues exist and this court must reverse and

remand Cooper’s claim.

                                IV

     We AFFIRM the district court’s decision to grant LSUMC’s

summary judgment as to the Grouped Plaintiffs, but we REVERSE the

district court’s decision to grant LSUMC’s summary judgment as to

Cooper and REMAND her claim for further proceedings.




                                19