Opinion
CIVIL ACTION NO. 01-1687, Section "K" (3)
March 18, 2003
MEMORANDUM OPINION
Before the Court is a Motion for Summary Judgment filed on behalf of the Board of Supervisors for the Louisiana State University Agricultural and Mechanical College (the "Board"). Defendant's motion for summary judgment was filed on January 31, 2003 and set for hearing on February 26, 2003 by order of this Court. Plaintiff was allowed additional time within which to respond to the motion and counsel for the parties were advised that the matter would be deemed submitted for decision on Thursday March 6, 2003, the time of the settlement status conference previously scheduled. Plaintiff filed written memorandum opposing the defendant's motion for summary judgment, to which the Board filed a formal reply. On the day of the hearing, the plaintiff filed a "Rejoinder to the Reply." Because the plaintiff claimed in that memorandum that the Equal Opportunity Commission (EEOC) had determined as a matter of fact that the she had the necessary qualifications and had applied for the position of Account Supervisor I, the Court allowed the Board an opportunity to respond.
See Order dated February 3, 2003 [Rec. Dcc. No. 35].
Considering the submissions of the parties, the affidavits and competent summary judgment evidence, judgment as a matter of law is warranted dismissing the plaintiffs case with prejudice. For the following reasons, the Board's Motion for Summary Judgment is GRANTED.
I. UNDISPUTED FACTUAL BACKGROUND
The undisputed facts recapitulated below are adopted from the defendant's "Statement of Uncontested Facts" filed pursuant to FRCP Rule 56.1 and the Rules for the Eastern District of Louisiana. These matters are deemed admitted since the plaintiff has failed to controvert same as required by Local Rule 56.2, which provides: "Each copy of the papers opposing a motion for summary judgment shall include a separate, short, concise statement of the material facts as to which there exists a genuine issue to be tried. All material facts set forth in the statement required to be served by the moving party will be deemed admitted, for the purposes of the motion, unless controverted as required by law." Id. Even considering plaintiff's Rejoinder to Reply, she fails to establish any material facts which are disputed with competent summary judgment evidence.
Plaintiff Terry Jones is an African American woman who works in the Finance Department at the Medical Center of Louisiana in New Orleans ("MCLNO"). She alleges that, during the year of 1999, she was denied promotion to the positions of Account Supervisor I and Administrative Manager 3 and less qualified female Caucasian employees received the promotions. Ms. Jones claims that she was qualified for the positions, but was denied the opportunity for promotion through intentional manipulation of the civil service rules.
John Bradley, Records Director for MCLNO personnel records and policy manuals, as well as Assistant Director of the Human Resources Department for MCLNO, is charged with the responsibility of filling employment positions at MCLNO in accordance with the rules promulgated by the Louisiana Department of Civil Service and the promotional policies of the institution.
Bradley testified that he was familiar with the claims of the plaintiff and the Account Supervisor 1/ Administrative Manager 3 restricted appointments in 1999, which were needed for the purpose of temporarily assisting the Patient Billing Department of MCLNO. Bradley explained that a restricted or temporary appointment is made exclusively by the appointing authority or state agency and that no permanent, competitive Administrative Manager 3 positions were filled in the Patient Billing Department at MCLNO in 1999. The Records Director was aware of only two applicants for these temporary restricted appointments, two Caucasian females, Jacqueline Donellon and Rose Klein. Jacqueline Donellon filled such a position for approximately three months between May 3, 1999 and August 3, 1999. Rose Klein was appointed to fill the other restricted/temporary Administrative Manager 3 position for the same three month period from April 26, 1999 until August 2, 1999.
See Affidavit of John Bradley [Exhibit "A" to the Board's Motion for Summary Judgment]. Chief Judge Berrigan was presented with precisely the same facts involving that same Account Supervisor 1/Administrative Manager 3 positions, to wit:
Both the Administrative Manager 3 and Administrative Manager 4 positions at issue were not permanent or classified positions. John Bradley, Assistant Director of Human Resources at MCLNO states that Jacqueline Donellon worked in that temporary restricted appointment of Administrative Manager 3 from approximately April 26, 1999 until August 3, 1999 and Rose Klein worked in the same position from approximately May 3, 1999 until August 2, 1999. Further, no permanent Administrative Manager 3 positions were filled in the Patient Billing Department at MCLNO in 1999. Second, Stephen Wagner worked in the temporary, restricted appointment as Administrative Manager 4 from approximately June 14, 1999 until July 30, 1999, and no permanent Administrative Manager 4 positions were filled in Patient Services/Admissions Registration Department at MCLNO in 1999. Further, Bradley states that Wagner was exceptionally qualified, having a Masters Degree in Business Administration and experience as a Chief Financial Officer at four different hospitals, whereas Johnson did not even have a four year college degree. Bradley states that he was unaware of Johnson's interest in the temporary position of Administrative Manager 4, however, had she sought consideration for that position, he still would have chosen Wagner based on his superior credentials.Johnson v. MCLNO, 2002 WL 31886829 *6 (E.D. La.) (Berrigan, J.); see also Johnson v. MCLNO, 2002 WL 31819124 (E.D. La) (Berrigan, J.) (striking Grouped — Plaintiff's various iterations of the "Conciliation Agreement," in addition to all documents derivative of the conciliation process, and finding that the plaintiffs, all of whom were unqualified for either the temporary AS1 or the AM3 positions filled by Donellon and Klein, failed to allege a prima facie case).
Temporary restricted appointments are defined and provided for by the Civil Service Rule 8.10 and Louisiana Personnel Manual Section 9.8.
Temporary restricted appointments are appropriate to use either for provisional job or probational type appointment essential to the efficiency of the agency, but does not extend beyond three (3) calendar months. See Civil Service Rule 8.10.
A restricted appointment gives management a means for rapidly employing qualified persons to work during temporary absences or sudden losses of permanently assigned employees, or during temporary periods of abnormal or specialized work requirements. When used properly, the restricted appointment is a valuable procedure available to management in maintaining the continuity of work force effort during intermittent and temporary periods of personnel turbulence or work load fluctuations.See Exhibit "B" to the Board's Motion for Summary Judgment.
Whereas Civil Service Rule 8.20 provides that all vacancies for permanent, competitive class
state jobs at the GS-15 level or above are filled utilizing a Certificate of Eligibles, Rule 8.10 provides the exception which applies in the case to temporary, restricted appointments. See Affidavit of Bradley at ¶ 6. It is not disputed that the temporary, restricted positions at issue were unposted.
The U.S. Equal Opportunity Commission, New Orleans District, issued a finding of "reasonable cause to believe" that discrimination occurred in the case of Ms. Jones's EEOC Charge Number 270-99-1852. In her EEOC complaint, Ms. Jones alleged that she was denied a promotion to Account Supervisor 1 since October 1998 because of her race. She claims that she was qualified for the positions of Account Supervisor I and Administrative Manager 3 because of her civil service test scores, and that as of August 17, 1999, she qualified because she had 24 hours of college credit in accounting. Ms. Jones believes that MCLNO racially discriminated by not selecting her for promotion to the temporary, restricted positions, "because two Whites were selected for the positions in March 1999, who did not meet the requirements of having college credits in accounting," and their "positions were later retitled to Administrative Manager III.
The evidence showed that two White employees were recruited by word-of-mouth and each was hired in the restricted, unclassified position of Accountant Supervisor 1, GS-16. Because these White employees lacked the requisite number of accounting hours (24 hours) for the position, restricted Administrative Manager 3, GS-17, positions that did not require the accounting hours were established for them. See EEOC Determination dated July 27, 2000 in the case of Ms. Terry E. Jones [Plaintiff's Exhibit "2"].
See EEOC Charge of Discrimination No. 270991852, in the case of Ms. Terry E. Jones [Plaintiff's Exhibit "2"].
Generally, the minimum qualification requirements for Accountant Supervisor 1 are a baccalaureate degree with twenty-four semester hours in accounting plus three years professional level experience in accounting or financial auditing. Similarly, the minimum qualifications required for the Administrative Manager 3 are a baccalaureate degree plus two years professional level experience in administrative services, accounting, auditing, purchasing or staff developments. Substitutions for qualifications are identified on the job specification. In addition to the foregoing requirements and in order to qualify for the position, an individual must obtain a Civil Service score or grade for the particular position and this grade can be obtained at any time upon the request of the applicant. It is the responsibility of the applicant to obtain the requisite score or grade.
The March 13, 2003 affidavit of Rena Matthews, the Department of Civil Services Human Resources Program Consultant Supervisor and Records Custodian for the Civil Service Department's "Certificate of Eligibles," is uncontroverted by competent summary judgment evidence. Rena Matthews' testified that a review of the Civil Service file of Terry Jones reveals that she never obtained the requisite score to be considered for either Account Supervisor 1 or Administrative Manager 3, and thus, her name never appeared on a Certificate of Eligibles because she failed to meet the required qualifications to even be considered for the positions. See Affidavit of Rena Matthews [the Board's Exhbit "A" to Reply Reply to the Plaintiff's Rejoinder to Reply]. Plaintiff submits only argument and no competent summary judgment evidence that she was qualified for the temporary restricted appointments at issue.
The Court recognizes that a Certificate of Eligibles need not issue in connection with temporary, restricted appointments and is required only in the case of positions which are not permanent of classified positions. Notwithstanding the foregoing, the competent uncontroverted summary judgment evidence that the plaintiff's name did not appear on the Certificates of Eligibles which issued for positions of Accountant Supervisor 1 and Administrative Manager 3 and was not qualified for the positions demonstrates that the plaintiff has failed to carry her burden of proof with respect to a material threshold issue upon which the plaintiff bears the burden of proof at trial on the merits. This necessarily renders all other facts immaterial, whether disputed or not. See Johnson v. MCOL, 2002 WL 31819124 * 5 (E.D. La.) (finding that, regardless of the determination that the hirees Donellon nor Klein did or did not possess the minimum qualifications for the position of Account Supervisor 1, the Grouped-Plaintiff civil service employees failed to satisfy their threshold burden that they themselves were qualified for the positions of Accountant Supervisor 1 and Assistant Manager 3 because it was not controverted that the plaintiffs were not listed on the Certificate of Eligibles, and thus, the hiring agency could not and had no duty to consider them for the positions). In opposition to the Motion for Summary Judgment in the Johnson case, not unlike the plaintiff in the case at bar, Group — Plaintiffs submitted the July 26, 2000 EEOC "Determination" in their favor which held that the MCOL's "selection of Whites in positions which are at higher GS-levels and higher rates of pay has the purpose or effect of denying promotional opportunities to the Charging Party and other class members because of their race in violation of the statute." Id. (inner quotation marks omitted).
The Commission observed that Louisiana's civil service policy allows restricted appointments as a management tool for rapidly employing qualified persons to work during temporary absences, sudden losses of permanently assigned employees, or during temporary periods of abnormal specialized work requirements. Noting that the policy also stipulates that use of a restricted appointment must clearly show that no other type of appointment is appropriate, or if it is appropriate, the explanation for the use of the restricted appointment should indicate that an effort has been made to fill the position in the regular manner, the Commission concluded its investigation in favor the "charging party" Ms. Jones. The Commission explained its finding as follows: "A finding of discrimination requires not that other similarly qualified employees were promoted, but that the Charging Party was rejected under circumstances that give rise to an inference of unlawful discrimination."
Id.
See EEOC Determination dated July 27, 2000 in the case of Ms. Terry E. Jones [Plaintiff's Exhibit "2"].
II. CONTENTIONS OF THE PARTIES
The Board highlights two prior decisions which issued in related consolidated cases decided by Chief Judge Helen G. Berrigan involving eight (8) of Ms. Jones' coworkers as plaintiffs, who were also allegedly vying for precisely the same temporary, restricted Accountant Supervisor 1 position, reclassified as temporary, restricted Administrative Manager 3 positions. Judge Berrigan held that these temporary, restricted positions filled by Donellon and Klein did not qualify as promotional opportunities. Because it is clear and uncontroverted that these temporary, restricted appointments afforded the plaintiff no promotional opportunity, the Board contends plaintiff cannot prove, as she must, that she was denied a promotional opportunity on the basis of her race in violation of state or federal law. Essentially, the Board submits that the plaintiff's case fails as a matter of law due to the absence of proof regarding threshold material issues upon which the plaintiff bears the burden of proof, which necessarily renders all other facts immaterial.Plaintiff filed formal opposition memoranda, together with a copy of the unexecuted conciliation agreement presented by the Equal Opportunity Commission, the Commission's Determination of her EEOC charge issued July 27, 2000 and Plaintiff's Requests for Admissions, which were denied by the defendant. Additionally, and as previously mentioned, the plaintiff filed a memorandum entitled "Rejoinder to Reply." Plaintiff argues that the Board's Motion for Summary Judgment is untimely and that no less than two arbiters have reviewed Ms. Jones' charge of discrimination, concluding that it has merit. Plaintiff directs this Court's attention to a July 27, 2000 EEOC "Determination" and an unexecuted Conciliation Agreement. Plaintiff submits argument that: (1) she was "qualified for the unposted temporary, restricted positions at issue ( i.e., AS1 and AM3); (2) the "undisputed findings" of the EEOC in her favor govern the disposition of the instant motion for summary judgment; and (3) the undisputed facts of her co-workers' related consolidated cases against MCLNO are wholly irrelevant.
See Reply Memorandum filed on behalf of the Board
At the outset, the Court notes that neither the summary judgment record, nor the applicable law support the plaintiff's contentions. Competent evidence contained in the summary judgment record in this case is uncontrovertedly that Ms. Jones did not meet the minimum qualifications for the temporary restricted positions at issue. Therefore her name would not appear on Civil Service List of Certificate of Eligibles for either position of AS1 or AM3 and thus there was no duty to consider the plaintiff for the positions, whether temporary or otherwise. Although the findings of the EEOC maybe considered probative, they are not binding on this Court. To the extent that the undisputed operative material facts which dictated the propriety of summary judgment in the related cases remain a constant and are uncontroverted in the summary judgment record of this case, Judge Berrigan's opinion stands as persuasive authority which this Court should consider, just as the undersigned would any other case similar to the case at bar, both factually and sub judice. As to plaintiff's argument that the Board's motion is untimely in the sense that it is too late, the argument is simply wrong. Although the plaintiffs motion was filed with leave of this Court slightly past the scheduling deadline, the motion for judgment as a matter of law is clearly timely.
Lindsey v. Prive Corp., 161 F.3d 886, 894 (5th Cir. 1998).
The case of Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000) was before the Supreme Court on a judgment as a matter of law after a jury trial. The Supreme Court reiterated that "the standard for granting summary judgment `mirrors' the standard for judgment as a matter of law, such that "the inquiry under each is the same."` Id. at 150 ( quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986)). This Court's review of the plaintiffs case utilizing the standard set forth in Reeves before the jury trial occurs not a minute too late in the proceedings. Plaintiff has had more than adequate notice and was granted an extension of time to respond to the issues raised in the defendant's motion. A full and fair opportunity to prepare the case was permitted, discovery has been completed and the matter is now ripe for determination.
III. ANALYSIS A. Summary Judgment Standard of Review
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).The moving party bears the burden of informing the court of the basis for its belief that there is an absence of a genuine issue for trial and of identifying those portions of the record that demonstrate such an absence. Celotex, 477 U.S. at 323. Once the moving party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co., 475 U.S. at 586. Summary judgment will be granted against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. The Court will not, in the absence of any proof, assume that the nonmoving party could or would prove the essential facts necessary to support a judgment in favor of the nonmovant. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075-76 (5th Cir. 1994).
Finally, the Court has no duty to search the record for triable issues. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). Mere assertions of a factual dispute unsupported by probative evidence will not prevent summary judgment. Celotex, 477 U.S. at 248-50; Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993). "The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which the evidence supports his or her claim." Ragas, 136 F.3d at 458 (emphasis added). Conclusory statements, speculation and unsubstantiated assertions are not competent summary judgment evidence and will not suffice to defeat a properly supported motion for summary judgment. Id.; Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996).
B. Failure to Promote Employment Discrimination Cases
The Court's analysis of plaintiff's Title VII cause of action also applies to her claim under Louisiana's anti-discrimination statute, LA. REV. STAT. § 23:332. See Plummer v. Marriott Corporation, 654 So.2d 843, 848 (La.App. 4th Cir. 1995), cert denied, 660 So.2d 460 (La. 1995); see also Catchings v. St. Tammany Parish Association for Retarded Citizens, 2002 WL 31427324 * 3 n. 1 (Wilkinson, M.J.) ( citing Nichols v. Lewis Grocer, 138 F.3d 563. 566 (5th Cir. 1998)) Because these statutory bases are functionally identical for purposes of the plaintiffs claims of racial discrimination, the Court will dispense with a redundant analysis in connection with the plaintiffs failure-to-promote claims under Louisiana's discrimination statute.
When a plaintiff alleges disparate treatment based on race, ultimately "liability depends on whether the protected trait actually motivated the employer's decision." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) ( citing Hazen Paper Co. v. Biggins, 507 U.S. 604,
610 (1993)). Specifically, the plaintiff must demonstrate that her race "actually played a role in the employer's decision — making process and had a determinative influence on the outcome." Id. Plaintiff must prove intentional discrimination through either direct or indirect evidence. See, e. g., Price v. Marathon Cheese Corp., 119 F.3d 330, 336 (5th Cir. 1997) (noting in an ADEA case that evidence of direct discrimination is rare, so that a party may use indirect evidence and reasonable inferences to establish a discrimination claim at step three of the McDonnell Douglas burden shifting analysis).
Direct evidence of discrimination is evidence that proves the defendant acted with discriminatory intent without the need for inference or presumption. Mooney v. Aramco Serv. Co. 54 F.3d 1207, 1217 (5th Cir. 1995). If direct evidence is unavailable, as is typically the case, the plaintiff may create an inference of discrimination by using the familiar McDonnell Douglas/St. Mary's burden — shifting framework. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000).
To defeat a motion for summary judgment, a plaintiff relying on indirect evidence must first establish a prima facie case of discrimination. In the context of an alleged failure to promote, a prima facie case is established if the plaintiff provides evidence that: (1) she is a member of a protected class; (2) she sought and was qualified for an available employment position; (3) she was not promoted; and (4) the employer promoted or hired someone from outside of her protected class. Once established, the prima facie case raises a presumption of discrimination, which the defendant may rebut by articulating legitimate, nondiscriminatory reasons for its actions. Shackleford v. Deloitte Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999). This burden on the employer is one of production only, not persuasion, involving no credibility assessments. Reeves, 530 U.S. at 142 ( citing St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993)). If the employer carries its burden, the mandatory inference of discrimination established by the prima facie case fades from the picture. Id. at 142-43.
Fakuri v. Parsons S.I.P., Inc., 123 F.3d 315, 318 (5th Cir. 1997).
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Grimes v. Texas Department of Health and Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996).
Because the plaintiff bears the burden of proof on the issue of discriminatory intent, the plaintiff must present evidence sufficient to support an inference of unlawful discrimination. Id. at 143. Where the plaintiff relies on circumstantial evidence to make his case, he can pursue this objective by showing that the defendant's legitimate nondiscriminatory reason is merely pretext. Id. Pretext may be demonstrated in various ways, to wit: (1) by demonstrating that the defendant's reasons are "unworthy of credence;" (2) by evidence showing the treatment of the plaintiff before the dispute and the defendant's reaction to plaintiffs" legitimate civil rights activities;" and (3) by evidence of defendant's "general policy and practice with respect to minority employment." The Supreme Court has cautioned courts not to limit plaintiff as to the precise manner of proving pretext. See Patterson v. McClean Credit Union, 491 U.S. 164, 187 (1989) (noting that pretext may be demonstrated in a number of different ways). However, the Fifth Circuit has stated that "differences in qualifications are generally not probative of discrimination unless those disparities are of such great weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question." See Celestine v. Petroleos de Venezuela, S.A., 266 F.3d 343, 357 (5th Cir. 2001) ( quoting Deines v. Dept. of Prot. Reg. Svcs., 164 F.3d 277, 280-81 (5th Cir. 1999)). If the evidence presented by the plaintiff reveals disparities that do not satisfy this standard, then the plaintiff has "created only a weak issue of fact as to whether the employer's reason was untrue." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000). If it is also the case that there is abundant and uncontroverted evidence that no discrimination occurred, then "no rational factfinder could conclude that the action was discriminatory." Id.
Tex. Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973).
Id. at 804-05.
The Supreme Court in Reeves neatly summarized what the plaintiffs evidence must show to avoid summary judgment or judgment as a matter of law, to wit: (1) that the stated reasons were not the real reason for the adverse employment decision; and (2) that race or other prohibited discrimination was the real reason for the adverse employment decision. See Reeves, 530 U.S. at 153. The Supreme Court clarified that, to meet this burden, "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Id. at 148 (emphasis added). The ultimate burden of persuasion rests squarely on the plaintiff. Marcentel v. Louisiana Department of Transportation, 37 F.3d 197, 200 (5th Cir. 1994).
Factors relevant to this inquiry 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." Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002). The plaintiff in this case has failed to make out a prima facie case with competent summary judgment evidence that she was qualified either for the position of Account Supervisor 1 or Administrative Manager 3, and thus the EEOC determination in her case is entitled to little, if any, weight.
C. Application of the Law to the Undisputed Facts
Whereas the EEOC Determination of reasonable cause may be considered for what it is, the unexecuted Conciliation Agreement may not be considered at all by the Court. It is a proposed settlement by the EEOC, generally submitted to the parties in an attempt to preclude litigation. Such documents are expressly barred from consideration pursuant to 42 U.S.C. § 2000e-5(b), which provides in pertinent part:
The standard of proof applied in the EEOC Determination at issue was one of"reasonable cause to believe that violations have occurred." See EEOC Determination issued July 27, 2000 [Plaintiff's Exhibit "2"]. This is a lesser standard that than required on summary judgment and discussed in Section IIIA above. Suffice it to say, it is not a determination that intentional discrimination occurred, but rather a conclusion based on the Commission's investigation of the plaintiffs allegations, the possibility of intentional discrimination is not an unreasonable conclusion. See Johnson v. MCLNO, 2002 WL 31819124, *6 (E. D. La.) (noting that "it is not a determination that intentional discrimination occurred" and that the determination "does not by itself raise a genuine issue of material fact").
If the Commission determines after such investigation that there exists reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. Nothing said or done during and as part of such informal endeavors may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned.Id. (emphasis added).
Competent summary judgment evidence is uncontroverted, that at the pertinent time, the plaintiff was not qualified for either the position as Account Supervisor 1 or Administrative Manager 3, an essential element of plaintiff's prima facie case upon which she bears the burden of proof. Morever, because the plaintiff offers no competent summary judgment evidence that a "promotional opportunity" was even available at MCLNO in 1999, the Court further finds that the plaintiff has failed to state a prima facie case of discrimination. The summary judgment evidence establishes that the two restricted, temporary appointments to Administrative Manager 3 positions were filled by two Caucasian females for period of approximately three-months each. These appointments were in truth and in fact only temporary or positions. In 1999, no permanent Administrative Manager 3 positions were filled by any individual at MCLNO.
The Fifth Circuit Court of Appeals recently held that, to be actionable under Title VII, the plaintiff must show that a failure to transfer her to preferred position "tended to adversely affect [the plaintiff]," in a case where the employer contends that the preferred position is not a promotion. See Oden v. Oktibbeha County, Miss., 246 F.3d 458, 468 (5th Cir. 2001). The court concluded that the plaintiff could make the necessary showing by demonstrating that the employer "made an ultimate employment decision." Id. It is apparent that whether or not a transfer is considered a "promotion" depends upon objective consideration of whether or not there were factors that would distinguish the positions in such a way as to permit a reasonable person to conclude that the denial of such a transfer constitutes an "adverse employment action."
In the case at bar, it is not disputed that the positions at issue were temporary positions. Plaintiff does not allege that MCLNO used these restricted, temporary appointments to create permanent, classified positions for unprotected class members. None of the temporary hirees acquired permanent positions at MCLNO, but rather only worked limited terms lasting three months or less. Moreover, plaintiff does not allege that MCLNO created a pattern of repeated appointments or revolving restricted appointments. Evidence of these short-lived temporary restricted appointments does not controvert the Board's evidence that there were no permanent promotions to the positions of Account Supervisor 1 or Account Manager 3 during the entire year of 1999.
Here, like her co-workers/class members in Johnson v. MCLNO, 2002 WL 31819124 (E. D. La.), aside from showing that she belongs to a protected class because she is an African-American, Ms. Jones has not met her de minimis burden with respect to the remaining elements of a prima facie case of failure-to-promote. Ms. Jones has failed to specifically controvert evidence that she did not meet the criteria for the positions of AS1 and AM3 and thus was not qualified for either the position. Under the circumstances, MCLNO had no reason or duty to consider her for either position. See Oden v. Oktibbeha County, 246 F.3d 469 (5th Cir. 2001) (finding that the plaintiff must demonstrate that she meets the objective promotion criteria at the prima facie stage). Ms. Jones has failed to come forward with competent summary judgment evidence which supports her argument that she was qualified for the positions. The July 27, 2000 EEOC "Determination," discussed at the outset of this opinion, falls far short of the mark.
The Court remains unpersuaded by the plaintiff s argument that a temporary, restricted appointment or designation of such short a duration constitutes one of the "terms, conditions, or privileges of employment" within the meaning of Title VII, 42 U.S.C. § 2000e-2(a). The Fifth Circuit and other courts applying Title VII have consistently focused on " ultimate employment decisions," such as hiring, granting leave, discharging, promoting, and compensating, as opposed to interlocutory and mediate decisions. The plaintiff has established no basis for discerning that she was denied a "promotion," which is necessary to show falsity or pretext in a defendant's explanation to establish a claim under Title VII. Borrowing from the realm of constructive discharge, the test is whether a reasonable person would believe that to apply for the "promotion" would be futile. MCLNO's behavior, however, fails to meet that standard. Because MCLNO's behavior does not amount to either denial or constructive denial of a "promotional" opportunity, one cannot reasonably conclude that the plaintiff suffered any adverse employment action. Comparing the restricted position to a competitive permanent civil service position with the attendant benefits, it would be illogical to conclude that transfer to the restricted appointment for a term of three months or less constitutes either a promotional opportunity, a "better" position, or a "pay increase," even assuming that the monthly salary for the three-month temporary, restricted appointment was double that of the permanent position being vacated.
See Mattern v. Eastman Kodak Co., 104 F.3d 702, 707-08 (5th Cir.), cert. denied, 522 U.S. 932 (1997); Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995).
See Faruki v. Parsons S.I.P., Inc., 123 F.3d 315, 319 (5th Cir. 1997) (In a Title VII context, a plaintiff may satisfy the prima facie requirement of an adverse employment action by showing constructive discharge; however, to prove constructive discharge, an employee must demonstrate that "a reasonable employee would feel compelled to resign.").
Report of All Positions by Cost Center and Incumbents Names [Petitioner's Exhibit "2"]
Finally, Ms. Jones fails to substantiate her claim that MCLNO's policy of employing the temporary "restricted appointment" as the preferred management tool in maintaining the continuity of work force and its effort during intermittent periods of work load fluctuations upwards was in reality just a pretext for racial discrimination. There is no evidence that any of temporary restricted positions established in 1999 were open or continuous announcements.
IV. CONCLUSION
In sum, Ms. Jones fails to make a showing that MCLNO's failure to "promote" her to either of the two temporary restricted positions of AS1 or AM3 in the Medical Billing Department occurred under circumstances giving rise to an inference of race discrimination. Plaintiff has not impugned MCLNO's legitimate business policy or rationale justifying the resolution of problems associated with a temporary fluctuation in the workload for the short-term fix ( i.e., a temporary, restricted appointments). No evidence was adduced controverting the facts that MCLNO did in fact experience an upward spike in the workload in its billing department in 1999 or that its response was to hire several non-civil service, temporary-hire individuals to work for a temporary period of three months or less. Viewing the summary judgment record in a light most favorable to Ms. Jones, a reasonable jury could not conclude either that MCLNO's asserted reason for not transferring her to a temporary, restricted position was pretextual or that racial bias was a determinative factor in MCLNO's decision not to "promote"/transfer Ms. Jones to one of the temporary-hire restricted billets. To prevail plaintiff must prove both. See St. Mary's Honor Ctr., 113 S.Ct. at 2747.
Accordingly,
IT IS ORDERED that the defendant's Motion for Summary Judgment is GRANTED and the plaintiff's claims are dismissed with prejudice.