United States Court of Appeals
For the First Circuit
No. 16-1378
SAMUEL CRUZ,
Plaintiff, Appellant,
v.
JAMES MATTIS, Secretary of Defense,*
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]
Before
Torruella, Kayatta, and Barron,
Circuit Judges.
Vladimir Mihailovich on brief for appellant.
Mainon A. Schwartz, Assistant United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States
Attorney, on brief for appellee.
June 26, 2017
* Pursuant to Fed. R. App. P. 43(c)(2), Secretary of Defense
James Mattis has been substituted for former Secretary of Defense
Ashton B. Carter as the defendant-appellee.
BARRON, Circuit Judge. This appeal concerns a grant of
summary judgment to the defendant in a sex discrimination suit
under Title VII, 42 U.S.C. §§ 2000e-2000e-17, brought by an
unsuccessful applicant for two teaching positions at an elementary
school run by the Department of Defense ("DoD"). We affirm.
I.
To understand the issue on appeal, the following
undisputed facts are helpful. The Department of Defense Education
Activity ("DoDEA") is a component of the United States Department
of Defense. DoDEA operates a system of Domestic Dependent
Elementary and Secondary Schools ("DDESS") for qualifying children
of United States military personnel in the continental United
States, Puerto Rico, and Guam. Since 1997, the plaintiff, Samuel
Cruz, has been a substitute teacher at both the elementary and the
middle school on the Fort Buchanan military base in Puerto Rico.
The schools are part of the DDESS system. Since 2009, Cruz has
had an active online application to become an elementary school
teacher at Fort Buchanan's elementary school.
When a vacancy arises at a DDESS school, the principal
of the school submits a "request for personnel action" to the Area
Service Center ("ASC"), which is headquartered in Peachtree City,
Georgia. The human resources division of the ASC then compiles a
referral list for the vacant position, based on applications in
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the online Employment Application System ("EAS"), which generates
scores for each applicant for the position. The ASC's human
resources division's staff then takes account of these scores and
compiles a list of candidates that is referred to the school
principal. The referral list generally contains approximately
twenty-five applicants. The school's principal has no role in the
creation of the referral list and is not authorized to hire
candidates who are not included on the referral list.
In July 2010, the ASC issued a referral list for a
full-time, fifth-grade teaching position at the Fort Buchanan
elementary school. The referral list contained twelve women and
seven men. Cruz, who had no nonsubstitute teaching experience,
but had many years of substitute teaching experience (including
some experience as a "full-time" substitute teacher), was not on
the referral list. The school's principal hired a woman from the
referral list, Sandra López, who had almost nine years of full-
time, nonsubstitute teaching experience.
Then, in August 2010, the ASC issued a referral list
for a second position -- a part-time fifth-grade teaching position.
This referral list contained twenty women and eight men. Again,
Cruz was not on the referral list. The school's principal hired
Barbara Dixon, a woman from the referral list who had eight years
of full-time, nonsubstitute teaching experience.
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In December 2010, Cruz filed a formal administrative
complaint with DoDEA, alleging discrimination in hiring on the
basis of sex in violation of Title VII. DoDEA's Office of
Diversity Management and Equal Opportunity informed Cruz via a
letter that it would investigate the ASC's failure to include Cruz
on the referral list in the two instances described above. After
an investigation, DoDEA forwarded Cruz's request for a hearing to
the Equal Employment Opportunity Commission ("EEOC"). Then, in
November 2012, the Administrative Judge ("AJ") appointed by the
EEOC determined that there had been no discrimination. In January
2013, DoDEA adopted the AJ's decision in full.
In April 2013, Cruz filed suit against the Secretary of
Defense ("the Secretary") in the United States District Court for
the District of Puerto Rico, alleging discrimination on the basis
of sex in violation of Title VII, in consequence of the hiring
decisions made regarding the two 2010 vacancies to which Cruz had
applied. Cruz then amended the complaint in September 2013. After
discovery, the Secretary filed a motion for summary judgment on
the ground that Cruz had not established a prima facie case of sex
discrimination under Title VII, and that, even if he had, there
were legitimate, nonpretextual reasons that Cruz had not been
hired. The District Court granted the motion for summary judgment,
ruling for the defendant on both grounds, and dismissed the suit.
Cruz now appeals.
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II.
We review the District Court's entry of summary judgment
de novo. Iverson v. City Of Bos., 452 F.3d 94, 98 (1st Cir. 2006).
Summary judgment is appropriate where the record, viewed in the
light most favorable to the nonmoving party, discloses "no genuine
issue of material fact" and demonstrates that "the moving party is
entitled to a judgment as a matter of law." Id. (quoting Fed. R.
Civ. P. 56(c)). "The nonmovant may defeat a summary judgment
motion by demonstrating, through submissions of evidentiary
quality, that a trialworthy issue persists." Id.
In evaluating a claim of discriminatory hiring under
Title VII, we apply the burden-shifting framework laid out in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), where, as
here, there is no direct evidence of discrimination. Under that
framework, the plaintiff carries the initial burden of
establishing a prima facie case of discrimination. Id. at 802.
To establish a prima facie case, the plaintiff must show the
following: (1) he is a member of a protected class; (2) he was
qualified for the position to which he applied; (3) he applied to
that position and was not hired; and (4) the position to which he
applied was filled by a person possessing similar or inferior
qualifications. Ahern v. Shinseki, 629 F.3d 49, 54 (1st Cir.
2010). If a plaintiff establishes a prima facie case, then the
burden of production shifts to the employer, who must articulate
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a legitimate, nondiscriminatory reason for the challenged hiring
decision. Id. If the employer articulates such a reason, then
the burden of production reverts to the plaintiff, who must offer
evidence tending to prove that the reason offered by the employer
is a pretext for discrimination. Id.
III.
Even assuming that Cruz established a genuine issue of
material fact with respect to whether he made out a prima facie
case of discrimination on the basis of sex, the Secretary
proffered a legitimate, nondiscriminatory explanation for the
hiring decisions at issue. And Cruz does not identify evidence in
the record sufficient to create a genuine issue of material fact
as to whether the reason the defendant gave for not hiring him is
pretextual. Accordingly, he cannot succeed in his challenge to
the District Court's ruling dismissing his claim on summary
judgment.
The District Court found no genuine issue of material
fact with respect to pretext for the following reason. The
District Court concluded that the record indisputably showed that
"[q]ualification [for the 2010 vacancies] was predicated on
creditable teaching experience." And the District Court further
concluded that the record showed that Cruz's only teaching
experience was substitute teaching experience, which DDESS treated
as "non-creditable" experience. The District Court also found
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that the women hired for the 2010 vacancies had several years of
experience in nonsubstitute teaching positions, which DDESS
treated as "creditable" experience. Thus, the District Court
ruled, the defendant carried his burden of producing evidence of
a facially legitimate, nondiscriminatory reason for the hiring
decisions -- namely, Cruz's relative lack of "creditable" teaching
experience, as his only experience was as a substitute teacher.
And, the District Court further found that Cruz presented no
evidence to create a genuine factual issue regarding whether the
defendant's proffered reason was pretextual.
On appeal, Cruz contends that the defendant designated
substitute teaching experience as "non-creditable" experience only
as a post-hoc justification for its hiring decisions, and thus
that the only proffered reason for excluding him from the referral
lists for the 2010 vacancies was a pretextual one. But Cruz points
to no evidence in the record to support his factual assertion in
this regard. In fact, the record contains evidence to the
contrary: specifically, testimony by a Supervisory Human Resources
Specialist at the ASC that "[s]ubstitute teaching experience is
not creditable for work experience under the [EAS] rating
criteria." This testimony is also consistent with documentary
evidence in the record showing that DoD schools have treated
substitute teaching experience as "non-creditable" experience for
various purposes since as early as the late 1980s.
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In an effort to create a genuine issue of material fact,
Cruz does contend that the fact that he was included on the
referral list in 2009 for the same position to which he later
applied in 2010 reveals that he was qualified for the position.
Cruz thus appears to contend that this fact shows that the reason
given for his exclusion from the referral lists in 2010 is a
pretextual one. But, the District Court found that the EAS
compiles referral lists on a "point in time" basis, and Cruz
identifies no evidence in the record to the contrary. Accordingly,
Cruz provides no basis for disputing the District Court's succinct
finding that "2009 does not equal 2010" for purposes of the ASC's
determination of which candidates to include on a referral list.
Thus, the fact that Cruz was included on the referral list in 2009
does not bear on whether he was legitimately excluded from the
referral lists in 2010 due to his relative lack of creditable
teaching experience. And so, Cruz identifies no genuine issue of
material fact regarding pretext. See Nieves-Romero v. United
States, 715 F.3d 375, 378 (1st Cir. 2013) ("To be genuine, a
factual dispute must be built on a solid foundation -- a foundation
constructed from materials of evidentiary quality. [C]onclusory
allegations, empty rhetoric, unsupported speculation, or evidence
which, in the aggregate, is less than significantly probative will
not suffice to ward off a properly supported summary judgment
motion." (alteration in original) (citations omitted)).
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To the extent that Cruz means to argue that the school
principal in charge of hiring engaged in discrimination on the
basis of sex in her hiring decisions (as evidenced, Cruz suggests,
by the apparent lack of male teachers at the school where Cruz
sought employment), this argument also provides no basis for
reversing the District Court's grant of summary judgment. The
defendant has presented evidence that the school principal had no
authority to hire a person not on the referral lists. And Cruz
identifies no contrary evidence or any evidence that suggests that
the rule barring the principal from hiring applicants not on a
referral list is itself impermissibly discriminatory.
IV.
As Cruz has failed to offer any evidence establishing a
genuine issue of material fact regarding pretext, the judgment of
the District Court is affirmed.
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