[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 99-14162 ELEVENTH CIRCUIT APR 11, 2001 ________________________ THOMAS K. KAHN D. C. Docket No. 97-00099 CV-3-WDO-1 CLERK
DEWAYNE DENNEY, HAROLD PINSON, et al.,
Plaintiffs-Appellants,
versus
THE CITY OF ALBANY, a Municipal Corporation, JANICE ALLEN JACKSON, Individually and in her capacity as Manager for the City of Albany, et al.,
Defendants-Appellees.
______________________
No. 99-14163 ______________________ D.C. Docket No. 97-00072-CV-3-WDO-1
DAVID N. POTTER, Plaintiff-Appellant,
THE CITY OF ALBANY, a Municipal Corporation, JANICE ALLEN, Individually and in her capacity as Manager for the City of Albany, et al.,
Defendants-Appellees. ______________________
Appeals from the United States District Court for the Middle District of Georgia _________________________ (April 11, 2001)
Before BLACK and MARCUS, Circuit Judges, and HANCOCK*, District Judge.
MARCUS, Circuit Judge:
Plaintiffs in these consolidated appeals are white firefighters in the City of
Albany, Georgia who contend that the Defendants -- the City of Albany and two
City officials -- impermissibly considered race in denying them promotions to the
position of lieutenant. The district court granted summary judgment in favor of the
Defendants in both cases, finding that the Plaintiffs failed to introduce sufficient
evidence of discriminatory intent. Because the district court did not err in rejecting
Plaintiffs’ Title VII disparate treatment and § 1985(2) conspiracy claims, the only
rulings as to which appellate review has properly been sought, we affirm.
I.
Appellants are five white firefighters employed by the City of Albany Fire
Department: Dewayne Denney, Harold Pinson, Robert McGee, Edgar Webb, and
* Honorable James H. Hancock, U.S. District Judge for the Northern District of Alabama, sitting by designation.
2 David Potter. The first four Appellants are Plaintiffs in one lawsuit (appeal no. 99-
14162); Potter is the single Plaintiff in a second lawsuit (appeal no. 99-14163).
The Defendants in both cases are the City; Henry Fields, the City’s black Fire
Chief; and Janice Allen Jackson, the black City Manager.
As discussed below, Plaintiffs allege that the Defendants, through Chief
Fields, discriminated against them by passing them over for two promotions to
lieutenant given instead to black firefighters Willie Harris and Albert Hayslip. The
five Plaintiffs are similarly situated except for minor variations in their personal
qualifications, and all make the same factual allegations about Defendants’
conduct.
The relevant facts are largely undisputed. As a result of litigation brought
by black firefighters in the early 1970s, the City’s Fire Department (“Department”)
began to use race as a factor in its promotion decisions. In 1995, the district court
supervising the Department’s promotion process ended the requirement that race
be used as a factor in promotions. Thereafter, the City adopted a revised
promotion policy. That policy required the Fire Department to “be operated in
compliance with Title VII of the Civil Rights Act of 1964 and the City of Albany,
Georgia’s Affirmative Action Plan.” The City’s Affirmative Action Plan (“AA
Plan”) states in pertinent part: “[T]he City of Albany shall recruit, hire, upgrade,
3 train, promote, and administer personnel actions in all job classifications without
regard to race, color, religion, sex, national origin, age or disability.” The
promotion policy also states that “every effort will be made to ensure that . . .
everyone, regardless of race . . . will receive fair treatment during the process.”
The City’s AA Plan does set percentage goals for the representation of blacks
(among other minorities) in certain job classifications; contrary to Plaintiffs’
suggestion, however, there is no indication that these goals are applied as rigid
“quotas” or that race is a permissible factor in the actual promotion decisions.
Under the revised policy as it operated during the relevant time frame,
firefighters applying for promotion to lieutenant took a written examination,
completed a skills assessment center, and had an oral interview exam with Chief
Fields. The written exam counted for 30% of the overall score; the assessment
center counted for 50%; and the interview exam counted for 20%. Applicants
scoring at least a 70 out of a possible 100 on this three-step qualification exercise
were considered qualified for promotion to the lieutenant position. Once this
process resulted in a pool of qualified applicants, Chief Fields had the authority to
make the final promotional decision. In making the promotion decisions at issue in
this case, Chief Fields did not consider the relative qualification exercise scores of
the applicants in the pool.
4 Chief Fields’s allegedly discriminatory hiring practices have been challenged
once before. In that instance, (the “Shealy litigation”), the district court -- the same
judge presiding over this case -- found after a bench trial that the City was liable for
discrimination against whites in connection with a 1994 promotion by Chief Fields
for the position of Battalion Chief. Chief Fields testified in that case that his
decision was not motivated by race; the district court found otherwise. In an
unpublished opinion dated March 10, 2000, we affirmed the district court’s finding
of Title VII liability, although we reversed on damages. We held that there was
“ample evidence” to support the district court’s determination of liability, and that
its factual findings were not clearly erroneous. Shealy v. City of Albany, No. 98-
8212 (11th Cir. Mar. 10, 2000), at 4.
Returning to the matter at hand, in November 1995, the Fire Department
conducted a qualification exercise to identify qualified applicants for vacant
lieutenant positions. Twenty-three applicants completed the examination, and
twenty-one were placed in the pool of qualified applicants, having scored 70 or
better. All of the Plaintiffs qualified for consideration for promotion, as did Harris
and Hayslip. Their scores were: Potter 87; Harris, Hayslip, Pinson, and Webb
80.5; Denney 77; and McGee 73.5. It later was determined that the scores for these
candidates were mistabulated due to inconsistent rounding-off of numbers by Chief
5 Fields.1 As corrected, the scores should have been: Potter 94; Harris 87; Denney
86; Pinson and Webb 83.5; Hayslip 78.5; and McGee 73.5.
Qualified applicants were selected for promotion to lieutenant whenever a
lieutenant opening occurred. Chief Fields testified that, in making the promotions,
he considered the following factors: demonstrated leadership, maturity,
interpersonal skills, and a willingness to support management and its policies. In
1995, Chief Fields selected Wesley Pantone (white), Tommy Anderson (white),
Gregory Maze (black), and James Pratt (black) from the qualified list for
promotions to lieutenant.2 None of these promotions are contested as
discriminatory by the Plaintiffs.
In April 1996, Chief Fields selected Harris to fill an open lieutenant position.
Harris was a 16-year veteran of the Fire Department and had served eight years as
an Apparatus Operations Engineer (“AOE”). Harris’s annual performance
evaluation was extremely favorable:
Harris spends a lot of his free time studying his job as an A.O.E. He never refuses to do anything required of him. AOE W.R. Harris has
1 Plaintiffs do not argue that the miscalculations were themselves discriminatory acts or constitute probative evidence of Fields’s discriminatory intent. Indeed, although Hayslip’s corrected score dropped 2.0 points. Harris’s score rose a full 7.0 points, belying any suggestion that the errors were intended to prejudice white candidates. 2 Pantone scored 85.5 on the qualification exercise, Anderson scored 95, Maze scored 85, and Pratt scored 85.
6 proven to be a credit to the Albany Fire Department and the City of Albany. . . . AOE Harris has a very positive attitude about the Albany Fire Department and his job. W.R. Harris is always ready to assist anyone and does so without any hesitation. Not only does Harris have this attitude on the job, it also reflects over into his everyday life.
Among the qualified applicants for promotion, Chief Fields considered Harris to
possess the greatest level of maturity, leadership skills, interpersonal skills, and
willingness to support Departmental and City management policies.
In September 1996, Hayslip was likewise promoted to fill a lieutenant
vacancy. Hayslip was a 10-year veteran firefighter with outstanding performance
evaluations. Hayslip also brought years of experience as a sergeant in the Army
Reserve, and had an ability to carry out instructions, a level of maturity, and an
understanding of leadership that Fields says led him to conclude that Hayslip was
the best available candidate for the lieutenant opening. As before, Chief Fields
considered the Plaintiffs for the opening, but thought them less qualified in the
factors that he considered important.
Subsequently in 1996, Chief Fields selected Kelly Harcrow (white) and
James Ambrose (white) for vacant lieutenant positions from the qualified candidate
pool that included Plaintiffs. Thus, from the pool, Chief Fields selected at least
four whites, as well as four blacks, for promotion.
7 Plaintiffs filed their lawsuits on May 15 (Potter) and June 6 (Denney, et al.),
1997. In their complaints, Plaintiffs sought relief for disparate treatment and
disparate impact under Title VII, for discrimination in violation of 42 U.S.C. §
1981, and for conspiracy in violation of 42 U.S.C. §§ 1985 and 1986. Plaintiffs
sued Fields and Jackson in their individual as well as official capacities. As
remedies, Plaintiffs requested damages as well as an injunction compelling the City
to use a more objective system for awarding promotions that (in Plaintiffs’ words)
would permit the most qualified candidates to be selected.
After discovery, Defendants moved for summary judgment. Plaintiffs
opposed the motion, but, as discussed below, at one point did not contest -- indeed,
they concurred in -- Defendants’ asserted “undisputed fact” that Chief Fields did
not consider race in making the promotion decisions. In comprehensive, virtually
identical 23-page orders dated September 24 (Potter) and 29 (Denney, et al.), 1999,
the district court granted summary judgment in Defendants’ favor, and
subsequently entered judgment for the Defendants. Potter v. City of Albany, 68 F.
Supp. 2d 1360 (M.D. Ga. 1999); Denney v. City of Albany, 68 F. Supp. 2d 1369
(M.D. Ga. 1999).3
3 In the discussion that follows, the appeals will be spoken of as arising in a single case with respect to a single district court order.
8 In its orders, the district court rejected each of Plaintiffs’ theories of liability.
First, it rejected Plaintiffs’ argument that the qualification exercise process had a
disparate impact on non-blacks in violation of Title VII. The court reasoned that
Plaintiffs failed to show how the three-step process had any impact on their non-
selection, given that all of the Plaintiffs made it past that stage and given the
undisputed evidence that the qualification exercise scores were not considered by
Chief Fields in making the challenged promotion decisions. Second, the district
court found that Plaintiffs did not establish a triable issue on their disparate
treatment claim under Title VII. In particular, the court found that the Plaintiffs’
evidence did not provide a sufficient basis for a jury to conclude that the
legitimate, non-discriminatory reason proffered by the Defendants for the
selections of Harris and Hayslip -- namely, that these candidates were more
qualified -- was a pretext for discrimination.
As the court saw it, Plaintiffs attempted to show pretext in five ways: “1)
there is a statistical inference that the qualification process was biased; 2) there was
subjectivity in the promotion process; 3) plaintiffs were objectively more qualified
than Harris and Hayslip; 4) the existence of the City’s Affirmative Action Plan
gives rise to an inference of discrimination; and 5) a finding of discrimination in
Shealy shows pretext in this case.” 68 F. Supp. 2d at 1377. With respect to the
9 statistical evidence, the court emphasized that even though Plaintiffs showed that
“whites received, on average, two points less on the oral interview portion of the
process and that, generally speaking, the higher a white candidate scored on the
objective written test and on the objective assessment center, the lower the same
white candidate scored on the subjective interview with Chief Fields,” the critical
fact was that there existed “no significant statistical disparity between blacks and
whites in the total score.” Id. at 1377-78. With respect to the use of subjectivity in
the promotion process, the district court reasoned that under our precedent “‘the
presence of subjectivity is not probative of discrimination,’” id. at 1378 (quoting
Allison v. Western Union Tel. Co., 680 F.2d 1318, 1322 (11th Cir. 1982)), and that
“subjective factors such as supervisory skills (leadership), interpersonal relations,
problem analysis, and oral and written communication skills are required to
perform the duties of the [lieutenant] position.” 68 F. Supp. 2d at 1378.
With respect to the Plaintiffs’ qualifications relative to those of Harris and
Hayslip, the district court explained that an employer is not required to choose the
“most” qualified candidate for a position, and that “Plaintiffs’ bare claims that they
were more qualified than Harris and Hayslip are not sufficient to show that
Defendants’ legitimate nondiscriminatory reasons were mere pretext for
discrimination.” Id. at 1379. With respect to the implications of the City’s AA
10 Plan, the court observed that the plan prohibited, rather than permitted,
discriminatory promotion practices. Finally, with respect to the Shealy litigation,
the court explained as follows:
Plaintiffs’ reliance on Shealy [is] misplaced. The Shealy decision was rendered in 1997, almost two years after the promotions in question, and involved different applicants, a different position, and a different selection process. Plaintiffs’ apparent contention that the Shealy decision suffices to raise an inference of discrimination with respect to promotions in the Albany Fire Department is nonsensical. To establish pretext, Plaintiffs must offer evidence to rebut Defendants’ showing with respect to the Harris and Hayslip promotions, which are the promotions at issue in this case. Plaintiffs have failed to do so.
Id. Based on these conclusions, the district court found that Plaintiffs’ disparate
treatment claim failed as a matter of law because Plaintiffs could not show pretext.
The district court then went on to reject, with little commentary, Plaintiffs’
individual capacity claims against Fields and Jackson under Title VII, on the
ground that Title VII does not permit such claims; and their § 1981 claims, on the
same grounds that it rejected Plaintiffs’ Title VII claim as well as the additional
ground that a discrimination claim against a state actor must proceed under 42
U.S.C. § 1983, not § 1981. Lastly, the court rejected Plaintiffs’ §§ 1985 and 1986
conspiracy claims on the grounds that (1) Plaintiffs’ underlying substantive claims
were without merit; (2) the conspiracy allegations -- which relate to an alleged “de
facto” agreement between Chief Fields and City Manager Jackson to make the
11 promotion process more favorable to blacks -- ran afoul of the “intercorporate
conspiracy” doctrine; and (3) with regard to the § 1986 claim, it was time-barred.
Id. at 1380. These appeals ensued.
II.
We give plenary review to a district court’s grant of summary judgment.
See Burton v. City of Belle Glade, 178 F.3d 1175, 1186 (11th Cir. 1999).
Summary judgment is proper if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). A factual dispute
is genuine only “if the evidence is such that a reasonable [factfinder] could return a
verdict” for the non-moving party. United States v. Four Parcels of Real Property,
941 F.2d 1428, 1437 (11th Cir. 1991) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S. Ct. 2505, 2510-12 (1986)).
If the non-moving party fails to “make a sufficient showing on an essential
element of her case with respect to which she has the burden of proof,” then the
court must enter summary judgment for the moving party. Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552 (1986). Moreover, when the
non-moving party bears the burden of proof on an issue, the moving party need not
12 “support its motion with affidavits or other similar material negating the
opponent’s claim.” Id. at 323, 106 S. Ct. at 2553. Instead, the moving party
simply may “‘show[]’ -- that is[], point out to the district court -- that there is an
absence of evidence to support the nonmoving party’s case.” Id. at 325, 106 S. Ct.
at 2554 (citation omitted). In assessing whether the movant has met its burden,
“the courts should view the evidence and all factual inferences therefrom in the
light most favorable to the party opposing the motion” and “‘all reasonable doubts
about the facts should be resolved in favor of the non-movant.’” Burton, 178 F.3d
at 1187 (quoting Clemons v. Dougherty County, 684 F.2d 1365, 1368-69 (11th
Cir. 1982) (citations omitted)). We review the district court’s summary judgment
orders in accordance with these familiar standards.4
III.
At the outset, we must clarify precisely which claims and theories are at
issue in this appeal. Plaintiffs make no mention of their claims for individual
liability under Title VII, for relief under § 1981, and for relief on a conspiracy
theory under § 1986. Because those issues are not briefed, they are deemed
4 Plaintiffs cite several older cases for the proposition that “in general, summary judgment is an inappropriate tool for resolving claims of employment discrimination, which involve nebulous questions of motivation and intent.” Grigsby v. Reynolds Metals Co., 821 F.2d 590, 595 (11th Cir. 1987). We recently rejected that proposition, explaining that “the summary judgment rule applies in job discrimination cases just as in other cases.” Chapman v. A.I. Transport, 229 F.3d 1012, 1026 (11th Cir. 2000) (en banc).
13 abandoned. Moreover, although Plaintiffs make a single reference in their brief to
Defendants’ liability on a theory of Title VII disparate impact, they do not discuss
the district court’s analysis on that issue and do not make any legal or factual
argument as to why they have established a disparate impact claim. Accordingly,
we regard the disparate impact claim also as abandoned.5 The causes of action that
remain, therefore, are the Title VII disparate treatment claim and the § 1985
conspiracy claim. For the reasons discussed below, neither of these claims can
withstand summary judgment.
A.
We first address Plaintiffs’ disparate treatment claim. Plaintiffs essentially
contend that the Defendants -- specifically the sole decision-maker, Chief Fields --
treated them differently based on their white race when he selected their black
counterparts, Harris and Hayslip, for the two lieutenant openings in question.
Plaintiffs do not suggest that Harris and Hayslip were unqualified for the
promotions, but argue that a reasonable jury could conclude that Fields selected
those firefighters not because they were better qualified, but rather because they
are, as he is, black.
5 In any event, we see no error in the district court’s rejection of these abandoned claims.
14 The framework for analyzing Plaintiffs’ Title VII disparate treatment claim
is well-settled. As we recently explained in EEOC v. Joe’s Stone Crab, Inc., 220
F.3d 1263, 1286 (11th Cir. 2000):
There are two theories of intentional discrimination under Title VII: disparate treatment and pattern or practice discrimination. Disparate treatment claims require proof of discriminatory intent either through direct or circumstantial evidence. See [Harris v. Shelby County Bd. of Educ., 99 F.3d 1078, 1083 (11th Cir. 1996)] (observing that a “‘plaintiff must, by either direct or circumstantial evidence, demonstrate by a preponderance of the evidence that the employer had a discriminatory intent’” to prove a disparate treatment claim) (quoting Batey v. Stone, 24 F.3d 1330, 1334 (11th Cir. 1994)). “Direct evidence is evidence that establishes the existence of discriminatory intent behind the employment decision without any inference or presumption.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998) (citing Carter v. City of Miami, 870 F.2d 578, 580-81 (11th Cir. 1989)). Absent direct evidence, a plaintiff may prove intentional discrimination through the familiar McDonnell Douglas paradigm for circumstantial evidence claims.
Under the rubric of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct.
1817 (1973), “[t]o establish a prima facie case of discriminatory failure to promote,
a plaintiff must prove: (1) that he is a member of a protected class; (2) that he was
qualified for and applied for the promotion; (3) that he was rejected; and (4) that
other equally or less qualified employees who were not members of the protected
class were promoted.” Combs v. Plantation Patterns, 106 F.3d 1519, 1539 n.11
(11th Cir. 1997) (citing Wu v. Thomas, 847 F.2d 1480, 1483 (11th Cir. 1988)).
Once these elements are established, the defendant has the burden of producing a
15 legitimate, non-discriminatory reason for the challenged employment action. See,
e.g., Holifield v. Reno, 115 F.3d 1555, 1564 (11th Cir. 1997) (citing Texas Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089 (1981)).
If such a reason is produced, a plaintiff then has the ultimate burden of
proving the reason to be a pretext for unlawful discrimination. See, e.g., Holifield,
115 F.3d at 1565; Combs, 106 F.3d at 1528 (plaintiff “has the opportunity to
discredit the defendant’s proffered reasons for its decision”). In Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 148, 120 S. Ct. 2097, 2109
(2000), the Supreme Court explained that “a plaintiff’s prima facie case, combined
with sufficient evidence to find that the employer’s asserted justification is false,
may permit the trier of fact to conclude that the employer unlawfully
discriminated” and be sufficient to withstand a motion for judgment as a matter of
law. “Whether judgment as a matter of law is appropriate in any particular case
will depend on a number of factors. Those include the strength of the plaintiff’s
prima facie case, the probative value of the proof that the employer’s explanation is
false, and any other evidence that supports the employer’s case and that properly
may be considered on a motion for judgment as a matter of law.” Id.
Here, there is no real dispute that Plaintiffs have introduced sufficient
evidence to support their prima facie case. Nor is there a genuine dispute that
16 Defendants have articulated legitimate, non-discriminatory reasons for the
promotion of Harris and Hayslip instead of the Plaintiffs. Chief Fields testified
that he considered Harris to possess the greatest level of maturity, leadership skills,
interpersonal skills, and willingness to support the fire department and city
management and policies -- the factors that Chief Fields considered dispositive in
choosing among the pool of qualified applicants. Similarly, Chief Fields testified
that he selected Hayslip based on the recommendations of other senior firefighters
and because he felt that Hayslip showed the most leadership potential. The issue
on appeal, therefore, boils down to the sufficiency of Plaintiffs’ evidence of
pretext.
As they did in the district court, Plaintiffs rely primarily on five points to
show that Chief Fields’s decisions were actually motivated by race and, in
particular, a desire to promote black firefighters over whites: (1) statistical
evidence that Chief Fields scored black candidates higher on the oral phase of the
qualification exercise than he did white candidates, even though white candidates
scored higher on the “objective” phases of that process; (2) Defendants’ decision to
make the hiring process largely subjective; (3) evidence that the Plaintiffs were
more qualified than Harris and Hayslip, both objectively and under the subjective
criteria articulated by Chief Fields; (4) the fact that the City’s affirmative action
17 plan sets hiring and promotion goals favoring blacks; and (5) the fact that a district
court (subsequently affirmed by this Court) rejected Chief Fields’s race-neutral
explanation for the allegedly discriminatory promotion decision at issue in the
Shealy litigation.
Each of those issues is discussed below. Beforehand, however, there is a
threshold barrier to Plaintiffs’ pretext argument. Defendants contend -- without
contradiction or even explanation by Plaintiffs -- that Plaintiffs have admitted that
Chief Fields “did not consider race” in making the challenged decisions. The
admission occurred in connection with Defendants’ Statement of Material Facts in
Support of the City Defendants’ Motion for Summary Judgment (filed in nearly
identical form in both lawsuits). In that document, Defendants listed as Fact Nos.
18-19: “When evaluating qualified candidates for promotion, Chief Fields
evaluated a number of factors, including the candidates’ work histories, certificates
and classes taken, leadership, maturity, interpersonal skills, and job performance.
The Chief did not consider race” (emphasis added). In their subsequent
Memorandum of Law in Support of Response to Defendants’ Motion for Summary
Judgment (again, filed in nearly identical form in both cases), Plaintiffs admitted
that those statements, among others, “are true statements of objective facts”
(emphasis added). Denney, et al.’s Memorandum of Law in Support of Response
18 to Defendants’ Motion for Summary Judgment, Mar. 4, 1999, at 2; Potter’s
Memorandum of Law in Support of Response to Defendants’ Motion for Summary
Judgment, Mar. 4, 1999, at 2.
These admissions flatly contradict Plaintiffs’ theory that race was the
motivating factor in the challenged promotion decisions, and are plainly
incompatible with a claim of Title VII disparate treatment liability. We could
decide the appeal on this basis alone. See Jones v. Gerwens, 874 F.2d 1534, 1537
n.3 (11th Cir. 1989) (treating fact as conceded, in accordance with local district
court rule, where party opposing summary judgment failed to controvert the fact as
described in the movant’s statement of undisputed material facts); see also
American Nat’l Bank v. FDIC, 710 F.2d 1528, 1536 (11th Cir. 1983) (applying
doctrine of judicial estoppel, which applies “to the calculated assertion of divergent
sworn positions”). We do not do so, because Plaintiffs’ claims fail regardless of
the effect of their admissions.6 Nevertheless, the admissions are at the very least an
additional piece of record evidence undermining Plaintiffs’ claims of pretext and
supporting the district court’s entry of summary judgment.
6 We also recognize that, at other points in the record, Plaintiffs clearly articulated their position that Chief Fields considered race in making the challenged promotion decisions.
19 Turning to Plaintiffs’ arguments regarding pretext, we first address their
statistical evidence. Like the district court, we find that this evidence would not
have significant probative value to a reasonable jury. Plaintiffs’ expert, Dr. Cook,
examined the 1995 qualification exercise for lieutenant openings, and calculated
that Chief Fields scored black candidates higher on the interview portion of the
three-stage exercise than he did white candidates. Moreover, asserted Cook, Chief
Fields did so even though white candidates scored higher on the “objective” phases
of that process (entailing the written test and the assessment center). As Plaintiffs
see it, this evidence demonstrates that Fields was biased toward blacks, even to the
point of “race norming” the qualification exercise to ensure blacks would advance
to the qualified applicant pool.
Defendants counter that Plaintiffs’ statistical evidence is incomplete and
misleading. First, they observe that Dr. Cook himself conceded -- as the record
shows and as any reasonable person would assume -- that the oral exam explored
topics and job skills different from those evaluated during the other two stages of
the qualification exercise. Defendants insist that this is exactly what explains the
scoring disparities highlighted by Dr. Cook. Second, Defendants’ statistical
expert, Dr. Peterson, concluded that, overall, qualified black applicants were
selected for promotion at a rate statistically insignificant from the rate at which
20 qualified white applicants were promoted. This fact undermines any suggestion
that Chief Fields was rigging the process in favor of blacks. Third, Defendants
point out that, according to Cook, the same statistical disparity between blacks and
whites on the oral exam occurred in a subsequent year (1997), when Chief Fields
was not involved in the interview process at all. Finally, Defendants stress that it is
undisputed that the actual decisions challenged in this case were made without
consideration of qualified candidates’ relative scores on the qualification exercise.
For these reasons, Defendants maintain, and we agree, that on this record Cook’s
statistical evidence does not constitute sufficiently developed proof of pretext to
allow the Plaintiffs to overcome summary judgment. While in a different case
statistical evidence of the kind marshaled by the Plaintiffs might support an
inference of discrimination, it is insufficient on this record to avoid summary
judgment.
Next, Plaintiffs cite as evidence of pretext the fact that, after the qualification
exercise, the hiring process became purely subjective. Plaintiffs do not squarely
challenge the legitimacy of the subjective factors considered by Chief Fields.
Instead, the concern appears to be that the largely “objective” bar to qualifying for
further consideration was set so low as to be almost useless in weeding out
applicants, and that the individual qualification exercise scores dropped out of the
21 picture once the pool of qualified applicants was established. According to
Plaintiffs, the decision to make the promotion process so dependent upon
“unreviewable” subjective factors, rather than objective data, itself constitutes
proof of an intent to discriminate.
This argument is unconvincing. Absent evidence that subjective hiring
criteria were used as a mask for discrimination, the fact that an employer based a
hiring or promotion decision on purely subjective criteria will rarely, if ever, prove
pretext under Title VII or other federal employment discrimination statutes. See
Allison, 680 F.2d at 1322 (“An employer’s decision may properly be based on
subjective factors.”); see also Risher v. Aldridge, 889 F.2d 592, 597 (5th Cir. 1989)
(rejecting Title VII claim despite plaintiff’s argument that employer improperly
considered only subjective factors rather than the objective factors, and explaining
that “[s]ubjective criteria necessarily and legitimately enter into personnel
decisions involving supervisory positions”). Plaintiffs themselves rightly concede
that “it is [not] per se improper to utilize subjective promotional standards; indeed,
for higher level executive and managerial promotions, subjective factors may play
a very substantial role.”
As we recently explained in Chapman:
A subjective reason can constitute a legally sufficient, legitimate, nondiscriminatory reason under the McDonnell Douglas/Burdine
22 analysis. Indeed, subjective evaluations of a job candidate are often critical to the decisionmaking process, and if anything, are becoming more so in our increasingly service-oriented economy. . . . Personal qualities . . . factor heavily into employment decisions concerning supervisory or professional positions. Traits such as “common sense, good judgment, originality, ambition, loyalty, and tact” often must be assessed primarily in a subjective fashion, Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 991, 108 S. Ct. 2777, 2787 (1988), yet they are essential to an individual’s success in a supervisory or professional position. See id. at 999, 108 S. Ct. at 2791 (“It would be a most radical interpretation of Title VII for a court to enjoin use of an historically settled process and plainly relevant criteria largely because they lead to decisions which are difficult for a court to review.”). It is inconceivable that Congress intended anti-discrimination statutes to deprive an employer of the ability to rely on important criteria in its employment decisions merely because those criteria are only capable of subjective evaluation. See Watson [], 487 U.S. at 999, 108 S. Ct. at 2791. To phrase it differently, subjective reasons are not the red-headed stepchildren of proffered nondiscriminatory explanations for employment decisions. Subjective reasons can be just as valid as objective reasons. . . . A subjective reason is a legally sufficient, legitimate, nondiscriminatory reason if the defendant articulates a clear and reasonably specific factual basis upon which it based its subjective opinion.
229 F.3d at 1033-34 (citations omitted).7
As Chapman makes clear, an employer’s use of subjective factors in making
a hiring or promotion decision does not raise a red flag. Certainly nothing in our
7 Plaintiffs cite Howard v. BP Oil Co., Inc., 32 F.3d 520, 525 (11th Cir. 1994) for the proposition that courts view “subjective . . . criteria with greater scrutiny than [they] would if [the defendant] strictly followed written criteria” in making an employment decision. That proposition “does not change the fact that [the plaintiff still] must introduce evidence of discrimination.” Id. Moreover, Howard pre-dates this Court’s recent en banc opinion in Chapman, which confirmed beyond doubt the appropriateness of an employer using legitimate, non-discriminatory subjective factors in its decision-making.
23 precedent establishes that an employer’s reliance upon legitimate, job-related
subjective considerations suggests in its own right an intent to facilitate
discrimination. To reiterate, Plaintiffs do not squarely challenge the legitimacy of
the specific criteria that Fields asserts he took into account in deciding who to
promote. Defendants’ expert, Dr. Austin, endorsed the appropriateness of those
criteria, and Plaintiffs did not contradict that evidence, other than to propose that
the process should have relied more heavily on objective data such as the written
test scores from the qualification exercise. Although Plaintiffs, as noted below,
disagree with how the various candidates stacked up under the criteria considered
by Chief Fields, they completely fail to show discriminatory intent in the selection
of those criteria or in the choice to focus on those criteria and correspondingly
downplay “objective” data from the qualification exercise.8 Simply put, the fact
that Chief Fields’s decisions were based on subjective considerations, such as a
candidate’s leadership ability and maturity, does not by itself advance Plaintiffs’
pretext argument.
Plaintiffs next assert that they were more qualified to be promoted to
lieutenant than Harris or Hayslip. Our precedent, however, requires a strong
8 It is not a federal court’s role to decide the wisdom of those kinds of choices, so long as they are not discriminatory in purpose or effect. See Combs, 106 F.3d at 1543 (stressing that “federal courts do not sit to second-guess the business judgment of employers”).
24 showing of a disparity in qualifications in order for an inference of discrimination
to arise. As we recently explained: “In a failure to promote case, a plaintiff cannot
prove pretext by simply showing that she was better qualified than the individual
who received the position that she wanted. . . . ‘[D]isparities in qualifications are
not enough in and of themselves to demonstrate discriminatory intent unless those
disparities are so apparent as virtually to jump off the page and slap you in the
face.’” Lee v. GTE Florida, Inc., 226 F.3d 1249, 1253-54 (11th Cir. 2000)
(quoting Deines v. Texas Dept. of Protective and Regulatory Servs., 164 F.3d 277,
280 (5th Cir. 1999)); accord, Alexander v. Fulton County, 207 F.3d 1303, 1339-40
(11th Cir. 2000).
Not only do Plaintiffs fail to acknowledge this case law, which makes clear
that they ultimately must do more to show pretext than prove that they are better
qualified than Harris and Hayslip, but they also fail to mount a persuasive showing
that they are, in fact, better qualified. Plaintiffs fail completely to explain why they
believe that Webb and McGee were more qualified than Harris and Hayslip. As
for Pinson, Plaintiffs assert only that he had relatively more “training” and had
served as an “acting Lieutenant.” But Defendants correctly counter that training
was only one of the considerations taken into account by Chief Fields, and
Plaintiffs make no effort to explain how Pinson was more qualified, let alone
25 substantially more qualified, with respect to the other considerations (such as
leadership, communications skills, support for management, and so forth) relied
upon by Fields.
With respect to Denney, Plaintiffs assert that he was more qualified because
he scored higher than Harris during the qualification exercise on the written exam
and the assessment center, and, unlike Hayslip, had experience supervising
stations. But Plaintiffs do not explain how Denney’s limited supervisory
experience makes him so much more qualified to be a lieutenant than Harris and
Hayslip; Plaintiffs do not, for example, dispute the two black candidates’
superiority in other areas considered by Chief Fields (indeed, Plaintiffs make little
effort to undermine the “fit” between Harris’s and Hayslip’s qualifications and the
criteria articulated by Chief Fields). The fact that Denney scored higher than
Harris in two of the three stages of the qualifications exercise does not carry a great
deal of weight in this case. Under the Department’s promotion policy,
qualification exercise scores mattered only for purposes of determining the pool of
qualified candidates. After that, other criteria were determinative. Unless we were
to find that this policy was itself irrational or motivated by discriminatory intent --
an argument unsupported on this record -- then Denney’s relatively higher scores
26 on the “objective” portion of qualification exercise would not prove that he is more
qualified, let alone substantially more qualified, to be a lieutenant.
Finally, with respect to Potter, it is true that he received the highest overall
score, by some margin, on the qualification exercise relative to Harris, Hayslip, and
the other Plaintiffs. Plaintiffs also observe that in his most recent performance
evaluation Potter received seven marks of “very effective,” while Harris received
only three. As Defendants observe, however, the qualification exercise is not
intended to gauge a candidate’s ability on all of the skills necessary to be a
lieutenant; it is intended to gauge some skills solely for the purpose of determining
which candidates move forward in the promotion process. Thus, it does not follow
from Potter’s relatively higher scores that he was substantially more qualified.
Moreover, Defendants persuasively observe that Potter’s evaluations contained
fluctuations akin to those of Harris and Hayslip. In addition, Defendants point out
that Hayslip’s evaluations emphasized that he “goes the extra mile,” a
characterization not found on Potter’s evaluation, and also that Hayslip (unlike
Potter) received a “very effective” mark for interpersonal skills -- one of the
criteria especially valued by Chief Fields.
In the end, although one perhaps could argue that Potter was indeed the best
candidate on paper, the evidence marshaled by the Plaintiffs does not demonstrate
27 that he was so much more qualified than his black counterparts that a reasonable
jury, on this record, could infer discrimination from the mere fact of his non-
selection. Such a showing is even less evident for the other four Plaintiffs. As we
often have said, Title VII is not designed to make federal courts “‘sit as a
super-personnel department that reexamines an entity’s business decisions.’”
Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991). We do not
ask whether the employer selected the “most” qualified candidate, but only
whether it selected the candidate based on an unlawful motive. See, e.g.,
Alexander, 207 F.3d at 1339.
Plaintiffs’ next evidence of pretext relates to the City’s affirmative action
plan, and the fact that it sets goals (which Plaintiffs inaccurately describe as rigid
“quotas”) for the hiring of blacks and members of other protected groups. Courts
have been extremely wary of citing lawful affirmative action plans as evidence of
an employer’s pretext. See, e.g., Christensen v. Equitable Life Assur. Soc’y, 767
F.2d 340, 343 (7th Cir. 1985) (“[A] lawful affirmative action program is not
evidence of discrimination against the majority. National policy permits the use of
voluntary affirmative action programs to remedy the legacy of discrimination. For
the courts to discourage the use of such programs by treating them as evidence in
themselves of the very discrimination they are designed to eradicate would be
28 improper.”) (citing Parker v. Baltimore & Ohio R.R. Co., 652 F.2d 1012, 1017
(D.C. Cir. 1981)). Although Plaintiffs repeatedly profess their view that the City’s
AA Plan is illegal, they do not seek to have the plan invalidated, and do not assert
that the plan is under attack elsewhere. The setting of goals for minority hiring or
promotion can be lawful. See, e.g., Peightal v. Metropolitan Dade County, 26 F.3d
1545 (11th Cir. 1994). Moreover, the City’s AA Plan expressly states that
promotions and similar hiring decisions are to be made without regard to race.
Plaintiffs do not come close to making the kind of showing necessary for this
Court to declare the City’s AA Plan unlawful.
In any event, there is no evidence that Chief Fields, in making the
challenged promotion decisions, considered the City’s AA Plan, let alone thought
that by promoting Harris and Hayslip he would help fulfill some plan-mandated
quota. The AA Plan, in short, is not evidence upon which a reasonable jury, on
this record, could find pretext.
This Court’s recent opinion in Bass v. Board of County Commissioners, 99-
10579, -- F.3d -- (11th Cir. Feb. 21, 2001), is not to the contrary. In Bass, we
vacated a grant of summary judgment in a discrimination case due in part to
evidence that the employer acted pursuant to an affirmative action plan in making
the challenged hiring decision. We observed that “while the mere existence of an
29 affirmative action plan does not constitute direct evidence of discrimination, the
existence of a plan combined with other circumstances of the type present in this
case make available to a jury the reasonable inference that the employer was acting
pursuant to the plan despite statements to the contrary from the decisionmakers
involved.” Id., slip op. at 1475. Here, there is no evidence that Chief Fields made
the challenged promotion decisions pursuant to or in compliance with the City’s
affirmative action plan; nor do Plaintiffs make a reasoned attempt to show, as they
would have to show in that circumstance, that the City’s plan is invalid under Title
VII or the Constitution. In addition, the circumstantial evidence of discrimination
was significantly more compelling in Bass than it is here. Among other things, in
that case it was undisputed that the individual selected for the position was
unqualified, and that the defendant deviated from its normal practices in selecting
the individual. Those facts, which in Bass inexorably pointed toward the
conclusion that the defendant did (despite its denials) act pursuant to its affirmative
action plan, are not present on this record. For all of these reasons, Bass does not
help the Plaintiffs.9
9 Nor does Bass advance the Plaintiffs’ attack on the subjectivity of the Department’s promotion process. On the contrary, citing Chapman, we held in Bass that the employer had articulated with sufficient clarity and specificity its subjective rationale for not hiring the plaintiff. Id., slip op. at 1468-69.
30 Plaintiffs’ final argument for pretext concerns the determination in Shealy
that Fields, contrary to his testimony and the City’s argument in that case,
discriminated against white candidates in making a promotion decision in 1994 for
the position of Battalion Chief. Defendants contend that this fact has little
probative value in this case, because it concerned a different position and occurred
two years before the decisions at issue here. The district court also observed that
the Shealy case involved different applicants and a different selection process.
Those key distinctions may not totally deprive the Shealy finding of its persuasive
force as evidence of Fields’s intent to discriminate against whites; a key similarity
is that Shealy involved the same actor making the same kind of personnel decision.
Nevertheless, the distinctions are important, and weigh heavily against attaching a
great deal of probative value to the Shealy litigation. More generally, courts are
reluctant to consider “prior bad acts” in this context where those acts do not relate
directly to the plaintiffs. See Earley v. Champion Int’l Corp., 907 F.2d 1077, 1082
(11th Cir. 1990) (Defendants’ preparation of documents referring to ages or birth
dates of employees not significant evidence of unlawful discriminatory intent in
age discrimination case where plaintiffs’ jobs were eliminated in a reduction-in-
force and thus “[n]one of the documents relate to specific actions taken towards
31 plaintiffs because of plaintiffs’ age”).10 Finally, we think it especially notable that
it was the same district judge who heard Shealy who concluded in this case that the
outcome in Shealy did not constitute meaningful evidence of Fields’s
discriminatory intent. In these circumstances, we do not believe that the findings
in Shealy are sufficient to push the Plaintiffs past summary judgment.
For all of the foregoing reasons, viewing the record as a whole, Plaintiffs
have come forward with insufficient persuasive evidence to convince a reasonable
jury that Fields’s asserted reasons for awarding these promotions to Harris and
Hayslip were a pretext for intentional discrimination against whites. Accordingly,
we would affirm the district court’s entry of summary judgment on the Title VII
disparate treatment claim even if we were to discount totally Plaintiffs’ damaging
admissions.
B.
Plaintiffs’ conspiracy claim under § 1985 requires little separate discussion.
In a single paragraph, Plaintiffs contend that the district court improperly rejected
their conspiracy allegations under 42 U.S.C. § 1985. As Plaintiffs see it, there is a
10 It is not at all clear that this evidence would be admissible under Fed. R. Evid. 401, 403, and 404(b). In considering a summary judgment motion, a court may only consider evidence that is admissible or that could be presented in an admissible form. See Pritchard v. Southern Co. Servs., 92 F.3d 1130, 1135 (11th Cir. 1996). The district court did not come at the issue from the standpoint of admissibility, however, and we need not do so ourselves.
32 “de facto” conspiracy between the City Manager (Jackson) and Chief Fields to
increase the role of subjective evaluation in the promotion process. The unstated,
but apparent, implication is that these individuals have done so to make it easier for
the Department to promote blacks at the expense of whites’ constitutional and
statutory rights to equal treatment. Plaintiffs also at times allege a conspiracy to
“deny relief through the internal grievance process to those who have raised
reverse discrimination claims.” Plaintiffs do not expressly identify any perceived
error in the district court’s analysis.
The elements of a cause of action under § 1985(3) -- which is the
subdivision of § 1985 seemingly at issue here -- are “(1) a conspiracy; (2) for the
purpose of depriving, either directly or indirectly, any person or class of persons of
the equal protection of the laws, or of equal privileges and immunities under the
laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either
injured in his person or property or deprived of any right or privilege of a citizen of
the United States.” Lucero v. Operation Rescue, 954 F.2d 624, 627 (11th Cir.
1992) (citing United Brotherhood of Carpenters & Joiners of America, Local 610
v. Scott, 463 U.S. 825, 828-29, 103 S. Ct. 3352, 3356 (1983)). Having concluded
that Plaintiffs’ substantive claims fail on the merits, their conspiracy claim fails as
33 well because Plaintiffs would not have been “deprived of any rights or privilege”
by the Defendants’ allegedly wrongful acts.
Moreover, Plaintiffs’ conspiracy claim fails under the intracorporate
conspiracy doctrine. “The intracorporate conspiracy doctrine holds that acts of
corporate agents are attributed to the corporation itself, thereby negating the
multiplicity of actors necessary for the formation of a conspiracy. Simply put,
under the doctrine, a corporation cannot conspire with its employees, and its
employees, when acting in the scope of their employment, cannot conspire among
themselves.” McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1036 (11th
Cir. 2000) (en banc). The doctrine applies to public entities such as the City and its
personnel. See Dickerson v. Alachua County Comm’n, 200 F.3d 761, 768 (11th
Cir. 2000) (rejecting employee’s § 1985(3) claim on that basis where employee
alleged civil conspiracy among solely County employees); Chambliss v. Foote, 562
F.2d 1015 (5th Cir. 1977), aff’g, 421 F. Supp. 12, 15 (E.D. La. 1976) (applying
intracorporate conspiracy doctrine to shield the public university from § 1985(3)
liability in a civil conspiracy claim); compare McAndrew, 206 F.3d at 1038-39
(doctrine inapplicable to criminal conspiracy allegations under § 1985(2)).11 Here,
11 The single case cited by Plaintiffs, Park v. City of Atlanta, 120 F.3d 1157 (11th Cir. 1997) is inapposite. That decision states that a person need not participate in a § 1985 conspiracy to be liable under § 1986 for failing to prevent the conspiracy. Here, Plaintiffs have waived their claim under § 1986 by failing to so much as mention that statute in their brief; in any event, there is no
34 the only two conspirators identified by Plaintiffs -- Fields and Jackson -- are both
City employees; no outsiders are alleged to be involved. The alleged subject of
their conspiracy -- non-criminal manipulation of the promotion process to deprive
white employees of promotional opportunities -- relates to their performance of
their official, not personal, duties. Accordingly, because Fields and Jackson were
both effectively acting as the City itself when they entered into their alleged illicit
agreement, there can be no claim against them under § 1985, and the district
court’s rejection of that claim, like its rejection of the Title VII claim, must be
affirmed.
actionable § 1985 conspiracy and no underlying substantive violation of law.