Cheney v. US Oncology Inc

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 26, 2002
• Docket: 01-20564
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 01-20564 Summary Calendar

PATRICIA CHENEY,

Plaintiff-Appellant,

VERSUS

U.S. ONCOLOGY, INC.,

Defendant-Appellee.

Appeal from the United States District Court For the Southern District of Texas, Houston Division (H-99-CV-4333) March 25, 2002

Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

This is an employment discrimination case in which Patricia

Cheney appeals a directed verdict in favor of her employer, U.S.

Oncology, Inc. (“USO”). Cheney alleged that USO denied her a

promotion because she is African American. The district judge

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 granted USO’s motion for directed verdict because he found that

Cheney had not proven that she received a “right-to-sue” notice

from the EEOC and because she did not rebut USO’s nondiscriminatory

reasons for not promoting her. We affirm on the ground that Cheney

did not adequately rebut her employer’s nondiscriminatory reasons.

I.

The standard for granting judgment as a matter of law in

employment discrimination is well settled. See Rhodes v. Guiberson

Oil Tools, 75 F.3d 989, 992 (5th Cir.1996) (en banc). We test the

sufficiency of evidence supporting jury verdicts and summary

judgments under the standard of Boeing Co. v. Shipman, 411 F.2d 365

(5th Cir.1969) (en banc). In order to create a jury question,

there must be a dispute in the substantial evidence, that is,

evidence which is of such quality and weight that reasonable and

fair-minded people in the exercise of impartial judgment might

reach different conclusions. Consequently, a mere scintilla of

evidence is insufficient to present a question for the jury. See

Boeing, 411 F.2d at 374-75. Even if the evidence is more than a

scintilla, Boeing assumes that some evidence may exist to support

a position which is yet so overwhelmed by contrary proof as to

yield to a directed verdict. See Rhodes, 75 F.3d at 992; Neely v.

Delta Brick & Tile Co., Inc., 817 F.2d 1224, 1226 (5th Cir.1987).

II.

Title VII prohibits employers from discriminating against

2 employees on the basis of race. 42 U.S.C. § 2000e-2(a)(1). To

defeat a motion for summary judgment, a Title VII plaintiff must

initially make a prima facie case of discrimination. A plaintiff

makes a prima facie case of promotion discrimination by showing

that: (1) she is a member of a protected class; (2) she applied for

a promotion to an available position for which she was qualified;

(3) she did not received the requested promotion; and (4) the

employer filled the position with an individual outside the

protected class. See EEOC v. Exxon Shipping Co., 745 F.2d 967, 972

n.3 (5th Cir. 1984).

By establishing a prima facie case for discrimination, a

plaintiff raises a presumption of discrimination, “which the

defendant must rebut by articulating a legitimate,

nondiscriminatory reason for its actions.” Shackelford v. Deloitte

& Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999). The defendant

meets this burden “by presenting evidence that, ‘if believed by the

trier of fact, would support a finding that unlawful discrimination

was not the cause of the employment action.’” Rhodes, 75 F.3d at

993 (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507

(1993)). If the defendant presents sufficient evidence of

nondiscriminatory reasons, the plaintiff must demonstrate by a

preponderance of the evidence that the defendant’s reasons are not

“‘true reasons, but were a pretext for discrimination.’” See

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)

(quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253

3 (1981)).

The district court correctly found that Cheney made a prima

facie case of discrimination. She proved (1) that she is African

American, (2) that she applied for the Director position and that

she had the minimum qualifications for that position, and (3) the

promotion was given to someone who was not African American (i.e.,

Barbara Wilmeth).

In response to Cheney’s prima facie case, USO successfully

articulated a legitimate, nondiscriminatory reason for promoting

Ms. Wilmeth to the Director position instead of Ms. Cheney: Ms.

Wilmeth was more experienced than Ms. Cheney. Ms. Wilmeth was Ms.

Cheney’s supervisor. She had more seniority with USO and extensive

experience in developing and implementing nationwide training

programs, including computer-based packages. And perhaps more

importantly, Ms. Wilmeth had served for over a year as the “acting”

Director. Cheney herself acknowledged that Wilmeth was the

“logical” choice for the position. The sole factual basis for

Cheney’s discrimination claim is that she has more formal education

than Ms. Wilmeth.

An employer’s nondiscriminatory reason for making an adverse

employment decision need not be correct or fair, so long as it is

not racially motivated. See Mayberry v. Vought Aircraft Co., 55

F.3d 1086, 1091 (5th Cir. 1995); Little v. Republic Ref. Co., 924

F.2d 93, 97 (5th Cir. 1991). In this case, it was incumbent upon

Ms. Cheney to introduce evidence that she was so much better

4 qualified than Ms. Wilmeth that no reasonable employer would have

selected Ms. Wilmeth, and not her, for the Director position. See

Deines v. Texas Dept. of Protective & Regulatory Servs., 164 F.3d

277, 281 (5th Cir. 1999). In other words, Ms. Cheney had to show

that the disparity in qualifications was so apparent as “virtually

to jump off the page and slap you in the face.” Id.; accord

Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902-03 (5th Cir.

2000) (“A mere scintilla of evidence of pretext does not create an

issue of material fact in all cases. As stated by the Supreme

Court in Reeves, a plaintiff must present ‘sufficient evidence to

find that the employer’s asserted justification is false.’”)

(internal citations omitted).

Ms. Cheney has offered no evidence to create an issue for the

jury. At best she has introduced evidence that she was superior to

Ms. Wilmeth in one area: the attainment of formal education. In

every other area, Ms. Wilmeth was superior. Nor did Ms. Cheney

introduce any evidence that the individuals who decided to promote

Ms. Wilmeth acted with any discriminatory motivation. Ms. Cheney’s

subjective belief of discrimination, no matter how genuine, is not

evidence of racial discrimination. See Grimes v. Texas Dept. of

Mental Heath & Retardation, 102 F.3d 137, 140 (5th Cir. 1996).

III.

Although Ms. Cheney established a prima facie case of

discrimination, USO articulated legitimate, nondiscriminatory

5 reasons for its decision. Ms. Cheney did not submit sufficient

evidence that the articulated reason was a mere pretext for

discrimination. Since Ms. Cheney’s failure to rebut USO’s

nondiscriminatory reasons provides a sufficient basis to affirm the

directed verdict, we do not reach the issue of whether Cheney was

required to prove that she filed suit within ninety days of

receiving a right-to-sue notice from the EEOC. The district

court’s ruling is AFFIRMED.