Gray v. Entergy Operations

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 1, 2000
• Docket: 00-60350
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-60350 Summary Calendar _____________________

JANICE GRAY,

Plaintiff-Appellant

v.

ENTERGY OPERATION, INC.; DON HINTZ; MIKE BAKARICH; JOSEPH HAGAN; MARY SEE,

Defendants-Appellees

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Mississippi USDC No. 5:99-CV-62-BN _________________________________________________________________

November 29, 2000

Before KING, Chief Judge, and SMITH and PARKER, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Janice Gray appeals from the district

court’s grant of summary judgment in favor of Defendants-

Appellees, Entergy Operation, Inc.; Don Hintz, Chief Executive

Officer of Entergy Operation, Inc.; Mike Bakarich; Joseph Hagan;

and Mary See. For the following reasons, we AFFIRM.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. I. FACTUAL AND PROCEDURAL BACKGROUND

Since 1977, Janice Gray, an African American female, has

been employed at the Grand Gulf Nuclear Power Station in Port

Gibson, Mississippi (the “Grand Gulf facility”). On March 12,

1999, Gray filed suit against her employer Entergy Operations,

Inc. (EOI) and several management officials under 42 U.S.C.

§ 1981, claiming discrimination on the basis of race. Her suit

included the following three causes of action: failure to

promote, payment of disparate wages, and establishment of

discriminatory working conditions.

On January 7, 2000, defendants filed a motion for summary

judgment. In response, Gray requested a voluntary dismissal of

several claims, pursuant to Rule 41 of the Federal Rules of Civil

Procedure. She also filed a Motion to Strike Affidavit of James

M. Cooley, the Manager of Employee Relations at the Grand Gulf

facility. The district court, on March 2, 2000, denied Gray’s

motion to strike, granted her Rule 41 motion, and awarded

defendants summary judgment on the remaining claims. After the

district court granted Gray’s Rule 41 motion, four claims

remained: discriminatory promotion claim for the 1996 Site

Administrative Programs Coordinator position; discriminatory

promotion claim for the 1999 Procurement Specialist III position;

disparate wages claim; and discriminatory working conditions

claim.

2 On March 16, 2000, Gray filed a Motion to Amend and to Make

Additional Findings of Fact and Motion to Amend Opinion and

Judgment (“Rule 52 and 59(e) Motion”). The district court denied

this motion on April 16, 2000. Gray then filed a timely notice

of appeal from this decision.1

II. STANDARD OF REVIEW

This court reviews a district court’s grant of summary

judgment de novo, applying the same standards as the district

court. See Burch v. City of Nacogdoches, 174 F.3d 615, 618 (5th

Cir. 1999). Summary judgment is appropriate “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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986). “If the moving party meets the initial burden of showing

there is no genuine issue of material fact, the burden shifts to

the nonmoving party to produce evidence or designate specific

facts showing the existence of a genuine issue for trial.” Allen

1 Gray asserts in her brief on appeal that Cooley’s affidavit was inaccurate. She does not argue that the affidavit should have been stricken on this basis; rather, it appears that she is attempting to demonstrate the existence of genuine issues of material fact. Thus, we address her arguments regarding Cooley’s affidavit in the context of her discrimination claims. See infra Section III.

3 v. Rapides Parish Sch. Bd., 204 F.3d 619, 621 (5th Cir. 2000)

(internal quotations and citation omitted). Doubts are to be

resolved in favor of the nonmoving party, and any reasonable

inferences are to be drawn in favor of that party. See Burch,

174 F.3d at 619.

III. DISCRIMINATION CLAIMS

A plaintiff can prove a claim of intentional discrimination

by either direct or circumstantial evidence. Absent direct

evidence of discriminatory intent, as is typically the case,

proof via circumstantial evidence is accomplished using the

framework set forth in the seminal case of McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973).2 First, the plaintiff must

establish a prima facie case of discrimination. See Reeves v.

Sanderson Plumbing Prods., Inc., 120 S. Ct. 2097, 2106 (2000).

Second, the employer must respond with a legitimate,

nondiscriminatory reason for its decision. See McDonnell

Douglas, 411 U.S. at 802. This is only a burden of production,

not persuasion, involving no credibility assessments. See Texas

2 Gray is asserting causes of action under 42 U.S.C. § 1981. Because “[c]laims of intentional discrimination brought under Title VII and Section 1981 require the same proof to establish liability,” we will examine Gray’s § 1981 claims under the well- established Title VII rubric of analysis. See Byers v. Dallas Morning News, Inc., 209 F.3d 419, 422 n.1 (5th Cir. 2000); see also Lawrence v. University of Tex. Med. Branch at Galveston, 163 F.3d 309, 311 (5th Cir. 1999) (“Employment discrimination claims brought under [§ 1981] . . . are analyzed under the evidentiary framework . . . [of] Title VII.”).

4 Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255-56 (1981).

Third, if the employer carries its burden, the inference of

discrimination (created by the plaintiff’s prima facie case)

evaporates, and the plaintiff must prove intentional

discrimination. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S.

502, 511 (1993).

In making this showing, the plaintiff can rely on evidence

that the employer’s reasons were a pretext for unlawful

discrimination. See McDonnell Douglas, 411 U.S. at 804. “Thus,

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.” Reeves, 120 S. Ct. at 2109. With this framework

in mind, we proceed to analyze Gray’s three discrimination

claims.

A. Failure-to-Promote Claim

The district court granted defendants summary judgment on

the claim regarding the Site Administrative Programs Coordinator

position.3 The court found that Gray established a prima facie

case of discrimination and that defendants put forth

3 The district court also ruled that Gray’s remaining failure-to-promote claim (for the Procurement Specialist III position) violated Rule 8 of the Federal Rules of Civil Procedure because it was not contained in her original complaint. Gray is not contesting this issue on appeal.

5 nondiscriminatory reasons for their decision. The district court

then concluded that Gray did not survive summary judgment because

she failed to demonstrate that defendants’ proffered reasons were

pretextual.

To establish a prima facie case of discrimination for a

promotion claim, the plaintiff must demonstrate that (1) the

plaintiff is a member of a protected group; (2) the plaintiff was

qualified for the position; (3) the plaintiff was subjected to an

adverse employment action; and (4) the plaintiff was replaced by

someone outside the protected class. See Shackelford v. Deloitte

& Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999). We agree with

the district court that Gray established a prima facie case of

discrimination: she is African American, a member of a racial

minority; she was qualified for the position of Site

Administrative Programs Coordinator (she had at least a high

school diploma and at least ten years of nuclear or

administrative experience); she was not hired for the position;

and Karen Rucker, a Caucasian female, was subsequently hired for

the position. Defendants, in turn, have satisfied their burden

of production and put forth two nondiscriminatory reasons for

their employment decision: (1) Rucker was more qualified4; and

4 Defendants point to Rucker’s fluency in several languages, as well as her oral and written presentations to high-level British government officials. As they were looking for an applicant with strong communication skills who could interact extensively with the public and who could influence management at all levels, defendants state that the three-person interview

6 (2) Rucker would be more compatible with her supervisor in that

position, Site Vice-President Joseph Hagan.5

To demonstrate that defendants’ reasons are pretextual, Gray

makes several arguments. She first asserts that Rucker did not

meet the minimum qualifications for the position because there

was no proof of her high school diploma, or equivalent, in the

personnel files. This is clearly rebutted by evidence in the

record that Rucker’s education certificates from England were in

her personnel file, and a defense expert testified that her

English certifications were the equivalent of a U.S. high school

diploma.

Gray also points out that Rucker became eligible to apply

only when the qualifications for the position were weakened (from

ten years of nuclear experience to ten years of nuclear or

administrative experience). The district court found that Gray

admitted the qualifications were changed to match Rucker’s

qualifications in particular, not simply because Rucker was

white. Furthermore, defendants bypassed other qualified white

candidates who were eligible when the position was first posted.

Thus, the re-posting of the position does not “prove by a

panel (which included the African-American human resources manager, Cooley) unanimously decided Rucker was the most qualified. 5 Defendants state that Rucker had previously worked for Hagan as his secretary, and thus, Hagan was familiar with her abilities.

7 preponderance of the evidence that the legitimate reasons offered

by the defendant were not its true reasons, but were a pretext

for discrimination.” Reeves, 120 S. Ct. at 2106 (internal

quotations and citation omitted) (quoting Burdine, 450 U.S. at

253).

In addition, Gray puts forth statements from the deposition

of Jeff Braswell, an EOI retiree, that qualifications were

tailored to conform to the wishes of Mike Bakarich, a former

manager at the Grand Gulf facility. Although defendants imply

that statements not in connection with this promotion claim are

irrelevant, the Supreme Court clearly stated in Reeves that

pretext evidence should not be circumscribed as such. See id. at

2111. Thus, general remarks should not be discounted because

they were not made in direct reference to the employment

decision; any evidence that could shed light on an employer’s

true motive must be taken into account. See id. However, in

this case, the link between Braswell’s statements and defendants’

employment decision regarding the promotion are far too tenuous

to establish pretext.6

6 Braswell’s testimony was in reference to another position; both Braswell and Bakarich were no longer employed at EOI during the interview process for this position; this position was to be under Hagan, not Bakarich; a three-person panel, which included an African-American manager, interviewed all candidates for this position; and Gray cites to no evidence in the record supporting her implication that Bakarich’s preferences for his “proteges” were based on race (in fact, Braswell admitted that one of Bakarich’s proteges was a black woman).

8 Although Gray had more seniority with the company and

education beyond high school, Rucker met the minimum

qualifications and had other qualities that defendants found

appealing for the position. Gray has failed to create a genuine

issue that defendants’ proffered reasons are pretextual7 and thus

does not survive summary judgment on this claim.

B. Disparate Wages Claim

In this claim, Gray alleges that defendants paid her

disproportionately less wages than similarly situated white

employees. “To establish a prima facie case of discrimination

respecting compensation a plaintiff must prove (1) that she is a

member of a protected class, and (2) that she is paid less than a

nonmember for work requiring substantially the same

responsibility.” Uviedo v. Steves Sash & Door Co., 738 F.2d

1425, 1431 (5th Cir. 1984), cert. denied, 474 U.S. 1054 (1986).

While Gray satisfies the first prong because she is African

American, she fails to make a showing on the second prong of the

test. She has not presented any evidence that she was paid less

than white co-workers with similar responsibilities. Rather than

providing specific information, Gray attempts to make her prima

7 Gray also makes other conclusory allegations that defendants failed to advertise positions and did not select the most qualified employees for the positions (choosing instead “select” employees). As these arguments are inadequately briefed, we do not consider them on appeal. See Trevino v. Johnson, 168 F.3d 173, 181 n.3 (5th Cir. 1999).

9 facie case via several general arguments. She points again to

Jeff Braswell’s deposition in which Braswell stated that

secretaries are paid higher than clerks for performing the same

duties. Braswell’s statements are not sufficient to establish

Gray’s prima facie case because Braswell does not testify as to

Gray’s wages or the wages of employees with Gray’s

responsibilities.

Gray also asserts that Ron Husbands, manager at Entergy

Services, Inc. (ESI), testified in his deposition that merit pay

raises are arbitrarily and subjectively determined. This does

not aid Gray in establishing her prima facie case either because

Husbands was testifying in another case, Washington v. Entergy

Operations, Inc.; he is a manager at ESI, not EOI; he was

testifying as to how raises were allocated to ESI employees; and

he did not provide any information as to Gray’s wages or the

wages of employees similarly situated to Gray.8 As such, Gray

has not created a genuine issue by pitting Husbands’s affidavit

against Cooley’s affidavit, in which Cooley stated that EOI

performance appraisals are primarily objective.9

8 We also note that Gray mischaracterizes Husbands’s testimony as stating that wages at ESI were subjectively or arbitrarily determined. Husbands actually stated that while specific numerical percentages were not used, factors such as performance and potential guided their personnel determinations. 9 Gray’s reliance on the deposition of John J. Farren, the Grand Gulf facility’s Human Resources Representative, is also of no avail. His testimony, examined in full context, does not support Gray’s contention that salary determinations are

10 Because Gray has not demonstrated with particularity the

identity of the similarly situated non-minority employees who

were paid higher wages, we agree with the district court that

Gray failed to establish a prima facie case on her disparate

wages claim. Thus, summary judgment on this claim was

appropriate.

C. Working Conditions Claim

Gray asserts that she “experienced [a] discriminatory work

environment.” She puts forth statistics that African Americans

are concentrated in the unskilled and minimally skilled jobs at

EOI, whereas whites are in the professional jobs. Gray’s

specific allegations regarding this claim are not entirely clear.

If Gray is attempting to demonstrate disparate impact with these

statistics, she does not state a claim cognizable under § 1981.

While “[d]isparate impact claims . . . do not require proof of

intent to discriminate,” Munoz v. Orr, 200 F.3d 291, 299 (5th

Cir. 2000), § 1981 claims necessarily entail proof of intentional

discrimination. See General Bldg. Contractors Ass’n v.

Pennsylvania, 458 U.S. 375, 391 (1982) (“[Section] 1981 . . . can

be violated only by purposeful discrimination.”).

Because Gray explicitly framed her claims under § 1981, her

working conditions claim can then be based only on disparate

arbitrary.

11 treatment, which “refers to deliberate discrimination in the

terms or conditions of employment.” Munoz, 200 F.3d at 299. In

support of this claim, Gray asserts that statistics show there

are “black jobs” and “white jobs,” and she appears to argue that

these segregated job classifications are furthered by the use of

subjective and arbitrary criteria in employment decisions.10

While statistical evidence is common in so-called “pattern or

practice cases” (class actions alleging disparate treatment), an

individual plaintiff can also utilize such evidence to

demonstrate intentional discrimination.

The plaintiff may establish a prima facie case of disparate treatment using statistics alone if the statistics show a gross disparity in the treatment of workers based on discriminatory factors. However, if the plaintiffs’ [sic] statistical evidence is insufficient alone to establish a prima facie case of disparate treatment, the plaintiff may combine the statistical evidence with historical, individual, or circumstantial evidence.

Trevino v. Holly Sugar Corp., 811 F.2d 896, 902 (5th Cir. 1987)

(internal quotations and citations omitted); see also Krodel v.

Young, 748 F.2d 701, 710 (D.C. Cir. 1984) (stating that, for

individual disparate treatment plaintiffs, the Supreme Court “has

pointed out that [statistical] evidence is admissible and may be

helpful, though ordinarily not dispositive”).

10 Gray does not expressly characterize her working conditions claim as such. However, this circuit has held consistently that claims of pro se appellants are liberally construed. See, e.g., United States v. Glinsey, 209 F.3d 386, 392 n.4 (5th Cir. 2000); Chriceol v. Phillips, 169 F.3d 313, 315 n.2 (5th Cir. 1999).

12 In this case, Gray’s statistics that African Americans are

concentrated in the minimally skilled jobs are derived from the

deposition of William Boykin, a plaintiff pursuing his own action

against EOI. Defendants argue that these statistics are not

admissible in this case because Boykin is not qualified to give

such testimony and because the numbers are unsubstantiated. We

do not decide this issue because we agree with the district

court’s assessment that the evidence “does not prove [Gray],

individually, has suffered discrimination.” That the majority of

employees in the professional positions are white does not

ineluctably lead to an inference of intentional discrimination,

establishing a prima facie case. Gray has not presented any

evidence linking that disparity with racial animus (which

adversely affected her employment) and thus fails to demonstrate

a prima facie case of disparate treatment.

Gray also asserts that the 1996 EEO-1 reports submitted by

EOI to the Equal Employment Opportunity Commission demonstrate

discriminatory intent. We do not agree. These reports

illustrate the racial composition in the various positions at

EOI, and again, Gray has not demonstrated that the numbers were

the result of invidious bias, as required by a disparate

treatment claim.

Thus, Gray has failed to create a genuine issue of

intentional discrimination in her working conditions claim, and

summary judgment was appropriate in this regard.

13 IV. CONCLUSION

For the above stated reasons, we AFFIRM the judgment of the

district court.