IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-21166
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WILLIE E. PRATT, and
BERNARD GARRETT
Plaintiffs-Appellants,
versus
THE CITY OF HOUSTON TEXAS
Defendant-Appellee.
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Appeal from the United States District Court for the
Southern District of Texas, Houston
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April 19, 2001
Before JOLLY, JONES and SMITH, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
The plaintiffs, two community service inspectors for the City
of Houston’s Department of Public Works and Engineering, appeal the
district court’s grant of summary judgment in favor of the City of
Houston on their Title VII and 42 U.S.C. § 1981 race discrimination
claims. Because we find that there is sufficient evidence to infer
that race was a factor in the City’s failure to promote either
Pratt or Garrett, we reverse the grant of summary judgment by the
district court.
I
1
In 1997, Willie Pratt and Bernard Garrett, both black men,
were community service inspectors for the City of Houston’s
Department of Public Works and Engineering (“DPWE”). In July of
1997, DPWE posted a job opening for a senior inspector. The
posting listed the position’s minimum qualifications as (1) an
associate’s degree or certification/licensing in a technical
specialty program of between eighteen months and three years’
duration; (2) four years of experience investigating or inspecting
criminal environmental pollution; (3) a valid Texas driver’s
license and compliance with the City’s policy on driving. The
posting also listed a preference for experience in criminal case
development and environmental investigations. Under
“Selections/Skills Tests Required,” the posting stated “none.”
Tom Collins, the chief inspector of the Neighborhood
Protection Division of DPWE, supervised both Pratt and Garrett, and
was responsible for selecting the new senior inspector. Most of
the plaintiffs’ claims of discrimination center on the allegation
that Collins preferred white candidates and that he had decided to
hire the white male who was eventually awarded the position before
the hiring process even began. Pratt and Garrett point to
Collins’s attempt to lower the minimum qualifications for the
senior investigator position before the opening was posted.
Although there is no evidence indicating what qualifications
Collins tried to change, the plaintiffs assert that Collins was
attempting to make a white candidate eligible for the position.
2
The position’s requirements were not changed, however, as the basic
qualifications were standard city-wide and Collins had no authority
to change them.
Pratt and Garrett both applied for the senior inspector
position. Their qualifications exceeded the minimum requirements
for the position. Pratt had a B.S. degree and a year of graduate
school, two and a half years of experience as a pollution
investigator for the Coast Guard, and had been a DPWE community
service inspector for the prior two years. Garrett had a Master’s
degree and a Ph.D (pending submission of his dissertation) in
environmental engineering, and had spent the previous four years as
a community service inspector at DPWE.
In total, twenty-four people -- twelve blacks, seven whites,
two Hispanics and two Pacific Islanders -- applied for the senior
inspector position. A human resources specialist, Sally Layman,
screened the applications for minimum requirements, and forwarded
fifteen of them to Collins at DPWE, to conduct the primary
interviewing. Of the fifteen forwarded applications, eight
applicants were black, four were white, two were Hispanic, and one
was Pacific Islander.
Garrett’s application was forwarded; Pratt’s application was
not. Layman contends that she did not forward Pratt’s application
because she did not know the subject area of Pratt’s degree. Pratt
contends that he attached his resume with his application, and that
Layman knew he had a degree and knew that he was an employee of the
3
department. After Pratt became aware that he had not been
referred, he called the human resources department and orally
provided the information. At that point, however, the application
period had closed. Pratt also states that he informed Collins of
his application and credentials. Collins did not inquire into the
status of Pratt’s application. The application of another black
candidate, Marion Gale, also was not initially forwarded. Gale
inquired personally about the status of his application, which was
then forwarded to Collins. Although Collins says that he checked
on Gale’s application, that point is disputed.
The application of Edward Rutland, the individual who was
eventually awarded the position, also was not forwarded. Rutland
had completed twelve hours of college in addition to his high
school diploma, had graduated from the Houston Police Academy, had
forty hours of EPA hazardous waste operations training and had
spent two of his twelve years as a Houston police officer in a “Rat
on a Rat” program enforcing environmental laws. Rutland had been
out of the police force for two years when he applied for the
senior inspector position; he had not engaged in related work
during the period. Neither was it clear that Rutland’s educational
background and his work experience met the minimum qualifications
listed for the position.
When Layman failed to forward Rutland’s application, several
city employees, including Collins and Beatrice Link, Collins’s
supervisor, made inquiries on Rutland’s behalf. The human
4
resources department reviewed Rutland’s application again and
determined that the combination of the forty hour course and
Rutland’s experience as a police officer satisfied the education
and experience requirements. Layman therefore forwarded Rutland’s
application to the second stage.
After Layman referred the applications, Collins conducted
preliminary interviews with the candidates. Collins administered
a computer skills exam testing grammar, knowledge of environmental
laws, and Microsoft Word Skills to all the interviewees. Collins
did not give applicants official notice that the computer test
would be part of the selection process.
Garrett interviewed for the Senior Inspector position. Many
of the facts concerning the interview are in dispute. Collins
asserts that Garrett was late for the interview. When Garrett
arrived, Collins was not in his office; he was speaking to a
colleague in the next door office. According to Garrett, Collins
saw him but ignored him. While waiting for his interview, Garrett
went to the drinking fountain, approximately fifteen feet away. In
the meantime, believing that Garrett had left the building, Collins
had Garrett paged. Garrett appeared at Collins’s door immediately
after the page. Collins then requested that Garrett complete the
skills test. Garrett protested that a skills test had not been
listed on the posting. Collins claims that Garrett then became
angry and stormed out; Garrett contends that Collins became irate
and began yelling at him, and that he left without taking the test
5
to defuse the situation.
Collins referred three candidates, including Gale, for final
interviews with a three person panel. Garrett was not a finalist.
The panel, of which Collins was a member, recommended Rutland to
Link. Link considered the recommendation, and then recommended
Rutland to the personnel department.
The plaintiffs argue that there is other evidence that Collins
attempted to manipulate the hiring process to favor white
candidates. Previously, Collins had canceled another senior
inspector posting after looking at a list of qualified applicants,
on which, the plaintiffs contend, all individuals, including
Garrett, were black. Garrett and Pratt assert that Collins
canceled the posting after Human Resources refused to refer an
under-qualified white candidate whom Collins preferred.
Pratt and Garrett filed this law suit against the City,
claiming violations of Title VII, 42 U.S.C § 1981, 42 U.S.C. §
1983, the Equal Protection Clause, and the Texas Commission on
Human Rights Act. The district court granted summary judgment to
the City in November 1999, holding that the plaintiffs did not
create a material issue of fact as to whether race motivated the
City’s hiring decision. The plaintiffs appeal only their
employment discrimination claims under Title VII and § 1981.
II
This court reviews the grant of summary judgment de novo,
applying the same standard as the district court. Walker v.
6
Thompson, 214 F.3d 615, 624 (5th Cir. 2000). “Summary judgment is
proper when the evidence, viewed in the light most favorable to the
non-movant, reflects no genuine issues of material fact.”
Rubinstein v. Administrators of the Tulane Educational Fund, 218
F.3d 392, 399 (5th Cir. 2000), cert. denied, 69 U.S.L.W. 3366 (U.S.
Mar. 19, 2001)(No. 00-996). On a motion for summary judgment, a
court reviews the facts in the light most favorable to the non-
movant. Walker, 214 F.3d at 624.
To survive a motion for summary judgment, a Title VII1
plaintiff must first establish a prima facie case of discrimination
by a preponderance of the evidence. McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817 (1973). The City does
not dispute that both Pratt and Garrett made a prima facie case of
discrimination.2 Once this prima facie case has been established,
there is a presumption of discrimination, and the burden shifts to
1
The elements of the claims under Title VII and 42 U.S.C §
1981 are identical. Casarez v. Burlington Northern/Santa Fe Co.,
193 F.3d 334, 337 n.3 (5th Cir. 1999). We therefore evaluate both
claims using the same analysis.
2
For a prima facie case of race discrimination, a plaintiff
must prove that (1) he is a member of a protected class; (2) he was
qualified for the position; (3) he was not promoted; and (4) either
the position was filled by someone not in the protected class, or
the person was not promoted because of his race. See Rutherford v.
Harris County, Texas, 197 F.3d 173, 179 (5th Cir. 1999);
Shackelford v. Deloitte & Touche, 190 F.3d 398, 404 (5th Cir.
1999). Because both Pratt and Garrett are black, fit the minimum
qualifications for the position, and were not promoted to a
position eventually filled by a white candidate, there is no
question that they established a prima facie case of
discrimination.
7
the defendant to articulate some legitimate, non-discriminatory
reason for the challenged employment action. McDonnell Douglas, 411
U.S. at 802-04. If such a showing is made, the burden shifts back
to the plaintiff to demonstrate that the articulated reason was
merely a pretext for discrimination. Id.
After a Title VII case reaches the pretext stage, the question
for summary judgment is whether a rational fact finder could find
that the employer discriminated against the plaintiffs on the basis
of race. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511,
113 S.Ct. 2742 (1993). “A prima facie case and sufficient evidence
to reject the employer’s explanation” may permit a trier of fact to
determine that an employer unlawfully discriminated, and may
therefore be enough to prevent summary judgment. Reeves v.
Sanderson Plumbing Products, 530 U.S. 133, 148, 120 S.Ct. 2097
(2000). This showing, however, is not always enough to prevent
summary judgment in favor of the employer. For instance, an
employer would be entitled to summary judgment “if the plaintiff
created only a weak issue of fact as to whether the employer’s
reason was untrue and there was abundant and uncontroverted
independent evidence that no discrimination occurred.” Id. Whether
summary judgment is appropriate in any particular case depends on
a variety of factors, including “the strength of the prima facie
case, the probative value of the proof that the employer’s
explanation is false and any other evidence that supports the
8
employer’s case and that properly may be considered.” Id.3 We
have said that summary judgment is inappropriate “if the evidence
taken as a whole (1) creates a fact issue as to whether each of the
employer’s stated reasons was what actually motivated the employer
and (2) creates a reasonable inference that [race] was a
determinative factor in the actions of which plaintiff complains.”
Vadie v. Mississippi State University, 218 F.3d 365, 373 (5th Cir.
2000), cert. denied, 121 S.Ct. 1092 (2001).
Both Pratt and Garrett established a prima facie case, and
both plaintiffs were facially more qualified for the position than
the white applicant who was hired. The City asserts a racially
non-discriminatory reason for the failure to promote either Pratt
or Garrett: Neither candidate completed the hiring process.
However, both Pratt and Garrett introduced evidence that the City
did not give them the opportunity to complete the hiring process.
This evidence creates significant fact issues with regard to the
City’s motivation for not promoting the plaintiffs. Given these
facts, the better resumes of the plaintiffs, the special treatment
Rutland received, and the allegations that Collins discriminated in
favor of white applicants on other occasions, a jury could
reasonably infer that the hiring process was manipulated, and that
it was pre-ordained that the white candidate would be awarded the
3
Although Reeves was based on a motion for judgment as a
matter of law, the standard is the same.
9
position over demonstrably better credentialed blacks. Under these
facts, it is for the jury to further decide the ultimate question
of whether the City of Houston denied either one of these
plaintiffs the promotion because of their race. We therefore
reverse the district court’s grant of summary judgment in favor of
the City.4
III
Because we conclude that the evidence as a whole creates a
question of fact with regard to the motivation behind the City’s
failure to promote Garrett and Pratt, and we find that a jury could
infer discrimination based on race, we REVERSE the district court’s
grant of summary judgment to the City, and REMAND for further
proceedings not inconsistent with this opinion.
R E V E R S E D and R E M A N D E D.
4
We recognize that, even if there is a finding of prohibited
discrimination, a remedy in this case may be problematic in that
only one position was available, and Pratt and Garrett were not the
only other applicants. We make no comment on this; we simply note
the problem and leave it to the district court to resolve in the
course of further proceedings. See Arnold v. United States Dep’t
of the Interior, 213 F.3d 193, 196 (5th Cir. 2000)(“among multiple
job applicants who fail to secure the position because of
discrimination, only those who can prove that they would have
gotten the position but for the discrimination can recover
compensatory damages.”), cert. denied, 121 S.Ct. 1080 (2001).
10