Patrick v. Ridge

¶4WIENER, Circuit Judge:

¶5Plaintiff-Appellant Clara Patrick appeals the district court’s grant of the summary judgment motion of Defendant-Ap-pellee, Tom Ridge, Secretary, Department of Homeland Security,1 dismissing Patrick’s claims grounded in age discrimination and retaliation under the Age Discrimination in Employment Act (“ADEA”).2 The district court based its dismissal on a determination that (1) Patrick had proved her prima facie cases; (2) her employer had produced legitimate, nondiscriminatory reasons for its employment action vis-á-vis Patrick; and (3) she had not demonstrated that her employer’s legitimate, nondiscriminatory reasons for not promoting her were pretextual. Concluding that the employer’s responses do not qualify as “reasons” for purposes of McDonnell Douglas3 and Burdine,4we reverse and remand.

¶6I. FACTS AND PROCEEDINGS

¶7In the instant case, Patrick advances charges of age discrimination and retalia*314tion arising out of the INS’s refusal to promote her to a supervisory position for which she had applied. In 1989, Patrick began working for the INS’s Central Region Administrative Center (“CRAC”) in Dallas, Texas as a Contracting Officer and Realty Specialist at the GS-11 pay grade.5 The INS upgraded Patrick to GS-12 pay grade in 1993.

¶8In 1999, Patrick applied for a position as a GS-13 Supervisory Realty Specialist (“SRS”). She was denied this promotion, which was given instead to one of Patrick’s co-workers who is more than ten years her junior. Patrick timely filed a charge of age discrimination with the EEOC. She eventually brought suit against the INS on this first claim, but, in 2002, the district court granted the INS’s motion for summary judgment and dismissed Patrick’s first claim.

¶9Between the time that she brought suit on her first claim and the date of its dismissal, the SRS position again became available and Patrick reapplied. At the time of her second promotion application, Patrick had more than twelve years experience as a Realty Specialist at the INS and had served as an acting SRS on several occasions. The Human Resources Department at the INS selected Patrick and five other applicants as finalists to be interviewed by a three-person panel. Panel member Daniel Pomplun, Director of the Facilities and Engineering Division of CRAC, served as the panel’s selecting official and was charged with making the final selection decision.

¶10The panel interviewed the six finalists and rated them based on (1) each candidate’s strengths, (2) how each responded to a uniform set of questions, and (3) how the panel members believed that each would fit into the work group. Pomplun acknowledged in a declaration produced in support of the INS’s motion for summary judgment that, during the time that he was considering candidates for the SRS position, another employee in his division told him about Patrick’s prior EEOC complaint.6 In his declaration, Pomplun stated that this information had no bearing on his decision not to select Patrick. In a separate (and contradictory) statement to the EEOC, however, Pomplun claimed not to have had any knowledge of Patrick’s former EEO activity.

¶11Pomplun and the panel eventually decided not to select any of the six candidates interviewed for the position. As a result, another panel member, Robert Gawel, recommended that an outside candidate, Margaret Hartigan, be considered for the position. After interviewing Har-tigan, Pomplun selected her for the SRS position, stating that Hartigan was the “best qualified” person for the position.

¶12This took place before Patrick’s original action was dismissed in 2002 and prompted Patrick to amend her original 1999 complaint to include new charges of age discrimination and retaliation grounded in the agency’s 2001 decision to deny Patrick the promotion and hire Hartigan instead. When the district court subsequently granted the employer’s first motion for summary judgment and dismissed Pat*315rick’s 1999 claims, the INS filed a motion for summary judgment on her 2001 claims, which the district court granted. Patrick timely filed her notice of appeal of the district court’s latter grant of the INS’s summary judgment motion.

¶13II. ANALYSIS

¶14A. Standard of Review

¶15We review a grant of summary judgment de novo, applying the same standard as the district court.7 A district court may grant summary judgment if, viewing the facts in the light most favorable to the nonmovant, the movant demonstrates that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.8 “[T]he plain language of Rule 56(c) mandates the entry of summary judgment ... 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.”9

¶16B. McDonnell Douglas Burden-Shifting

¶17We employ the familiar McDonnell Douglas burden-shifting framework when, as here, we review the grant of an employer’s summary judgment motion to dismiss an employee’s ADEA claims based on only circumstantial evidence.10 First, the employee must prove a prima facie case of discrimination.11 The requirements for a prima facie case vary slightly with the type of claim brought12 but an employee’s establishment of a prima facie case creates a rebuttable presumption that the employer unlawfully discriminated against the employee.13

¶18To rebut the presumption of discrimination created by the employee’s prima facie case, the employer must articulate a legitimate, nondiscriminatory reason for its decision.14 As this is a burden of production, the employer need not prove that it was actually motivated by its proffered reason.15 But, if the employer meets its .production burden, the presumption of discrimination created by the plaintiffs prima facie case falls away and the factual inquiry becomes more specific.16 To avoid dismissal on the employer’s motion for summary judgment, the employee must show that the employer’s putative legitimate, nondiscriminatory reason was not its real reason, but was merely a pretext for discrimination.17 In other words, after a defendant employer has met its burden of production, an employee plaintiff, like any other civil plaintiff, must now demonstrate that there is a material issue of disputed *316fact as to discrimination, the ultimate question vel non.18In some instances, proof of pretext alone will suffice.19

¶191. Context

¶20The framework in which we review this case on appeal is key. First, the ruling we review is one that grants a summary judgment motion before trial, not a motion for judgment as a matter of law following a merits trial or even following the completion of the plaintiffs case when the record is not yet complete. Second, the summary judgment motion was filed by the defendant employer, not the plaintiff employee. If, at this stage of the litigation, the plaintiff employee has produced evidence sufficient to make out a prima, facie case and the defendant employer has failed to rebut the presumption of discrimination with evidence of a legitimate, nondiscriminatory reason for its employment decision, the employee is entitled to take her case to a jury.20 It is in this context that we proceed.

¶212. Prima Facie Case

¶22The district court ruled (and the INS does not challenge on appeal) that Patrick succeeded in making out a prima facie case for both age discrimination and retaliation. We therefore do not address this first step in the McDonnell Douglas minuet. Rather, we proceed to the second step — the employer’s legitimate, nondiscriminatory reason for its acts.

¶233.Legitimate, Non-Discriminatory Reason for Failure to Promote

¶24An employer may avoid liability for charges of both discrimination and retaliation by producing evidence tending to show that it had a legitimate, nondiscriminatory reason for its disputed decision. In opposition to both of Patrick’s claims, discrimination and retaliation, the INS offers the same justifications for its decision. As we conclude: that neither putative reason satisfied the INS’s burden of production, Patrick’s prima facie cases survive.

¶25a. First Reason: Patrick was “Not Sufficiently Suited” For the Position

¶26The INS first proffers as a legitimate reason for not promoting Patrick that she was not “sufficiently suited” for the SRS position. The agency asserts that none of the six applicants initially interviewed was sufficiently suited and that this is why it subsequently conducted an interview with Hartigan and hired her. Yet, no evidence in the summary judgment record clarifies or expands on the statement of the INS that Patrick was not “sufficiently suited for the job” other than Pomplun’s statement that he evaluated candidates based not only on work credentials and experience but also on how he thought that the candidate would fit into the work group. The INS gave no explanation of what this means and produced no specifics for why Patrick would not fit in with the group.

¶27*317 Fatal to the INS’s position here is the well-established rule that, to meet its burden of production under McDonnell Douglas, an employer must articulate a nondiscriminatory reason with “sufficient clarity” to afford the employee a realistic opportunity to show that the reason is pretextual.21 This does not mean that an employer may not rely on subjective reasons for its personnel decisions.22 It does mean, though, that to rebut an employee’s prima facie case, a defendant employer must articulate in some detail a more specific reason than its own vague and conclusional feeling about the employee. The Eleventh Circuit illustrated this point by contrasting hypothetically legitimate reasons with illegitimate reasons for an employer’s refusal to hire a waiter:

[I]t might not be sufficient for a defendant employer to say it did not hire the plaintiff applicant simply because “I did not like his appearance” with no further explanation. However, if the defendant employer said, “I did not like his appearance because his hair was uncombed and he had dandruff all over his shoulders,” or “because he had his nose pierced,” or “because his fingernails were dirty,” or “because he came to the interview wearing short pants and a T-shirt,” the defendant would have articulated a “clear and reasonably specific” basis for its subjective opinion — the applicant’s bad (in the employer’s view) appearance.23

¶28If the INS believed — and had verbalized— that Patrick was not “sufficiently suited” to fill the SRS position because of her experience, credentials, attitude, or some other such articulable characteristic, the agency’s reason might have provided enough detail to enable Patrick to attempt to show pretext. In the face of the INS’s bald and amorphous statement that Patrick 'Simply was “not sufficiently suited,” however, neither we nor Patrick can identify the kind of evidence needed to demonstrate that such a rank generalization is or is not pretextual.

¶29In fact, the explanation given by the INS, i.e., that Patrick was not “sufficiently suited” for the position — even including Pomplun’s belief that she would not “fit in” — does not necessarily qualify as a “nondiscriminatory” reason. After all, a hiring official’s subjective belief that an individual would not “fit in” or was “not sufficiently suited” for a job is at least as consistent with discriminatory intent as it is with nondiscriminatory intent: The employer just might have found the candidate “not sufficiently suited” because of a protected trait such as age, race, or engaging in a protected activity. We hold as a matter of law that justifying an adverse employment decision by offering a content-less and nonspecific statement, such as that a candidate is not “sufficiently suited” for the position, is not specific enough to meet a defendant employer’s burden of production under McDonnell Douglas. It is, at bottom, a non-reason.

¶30*318b. Second Reason: The “Best Qualified” Candidate Was Selected

¶31The INS next tendered as a nondiscriminatory reason for not promoting Patrick its conclusion that Hartigan was the best qualified candidate. It is undisputed, however, that Hartigan was not even under consideration for the job at the time that Patrick was denied the promotion. Only after Patrick and the other five had been denied the promotion did the INS identify Hartigan as a potential candidate. The district court erred when it held that this timing had “no bearing” on the employer’s proffered nondiscriminatory reason.

¶32We acknowledge that choosing some other candidate because he is the best-qualified individual for the job is generally a legitimate, nondiscriminatory reason for an adverse employment decision.24 We are also mindful of the Supreme Court’s admonition that courts are not to assess the employer’s credibility or the truthfulness of its reason at this stage of the inquiry.25 This does not mean, however, that when an employer offers evidence of an otherwise legitimate, nondiscriminatory reason which unmistakably demonstrates that it could not have motivated the employer to deny the promotion to a qualified candidate, such an indisputable impossibility cannot satisfy the employer’s burden of production. To make this determination, we do not have to assess the credibility of the INS; its own statements confirm that it had already rejected Patrick before it ever identified Hartigan as a potential candidate and invited her to apply for the position.

¶33We hold as a matter of law that an employer who offers the relative qualifications of the applicants as its legitimate, nondiscriminatory reason must show that, at the time it made the decision adverse to the complaining applicant, it already knew that the ultimately selected individual’s qualifications were superior.26 It is axiomatic that the ultimate factual inquiry in an employment discrimination case is whether the employer intentionally discriminated against its employee.27 Albeit in a mixed motive case, the Supreme Court in Price Waterhouse v. Hopkins empha*319sized that an employer may not prevail with respect to this ultimate inquiry by offering a “legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision,”28 The Court went on to define its “snapshot” inquiry into an employer’s motive as limited to the instant that the decision was made:

In saying that gender played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or the employee was a woman.29

¶34In the context of evaluating the weight of after-acquired evidence on a discharged employee’s claims, the Court in McKennon v. Nashville Banner Publishing, squarely stated that “[t]he employer could not have been motivated by knowledge it did not have and it cannot now claim that the employee was fired for the nondiscriminatory reason.”30 The Court in McKennon reiterated its pronouncement in Price Wa-terhouse which emphasized “the necessity of determining the employer’s motives in ordering the discharge, an essential element in determining whether the employer violated the federal antidiscrimination law.”31

¶35The purpose of the McDonnell Douglas framework and, specifically, that of imposing on the employer a burden of producing a legitimate, nondiscriminatory reason for its actions, is to “sharpen the inquiry” of the court with respect to the ultimate issue in the case, intentional discrimination.32 Although McKennon and Price Waterhouse discussed the ultimate determination of an employer’s liability, rather than the employer’s Burdine burden of producing a legitimate, nondiscriminatory reason, the directive of those decisions for courts to “take a snapshot at the moment of the allegedly discriminatory act”33 is fully apposite to the inquiry whether an employer has satisfied this intermediate burden by advancing after-acquired knowledge as a justification for its decision. As the ultimate issue is the employer’s reasoning at the moment the questioned employment decision is made, a justification that could not have motivated the employer’s decision is not evidence that tends to illuminate this ultimate issue and is therefore simply irrelevant at this stage of the inquiry.34 Especially in the *320context of this case — the employer’s summary judgment motion to dismiss — such an offering is tantamount to offering no reason at all.

¶36As we hold that the INS has not met its burden of producing a legitimate, non-discriminatory reason, we never reach the question whether Patrick could demonstrate pretext, much less whether discrimination actually motivated her employer’s decision not to promote her. Patrick’s prima facie case thus pretermits summary judgment dismissal of her action, leaving the ultimate question of discriminatory animus to be determined by the trier of fact.

¶37III. CONCLUSION

¶38In the context of an employer’s motion for summary judgment seeking dismissal of an employee’s discrimination or retaliation suit, a holding that the employer’s offered reasons for its adverse decision does not fulfill its burden of production under McDonnell Douglas is the legal equivalent of the employer’s having produced no reason at all. And, because Patrick has (1) established prima facie cases of discrimination and retaliation and (2) the INS has failed to satisfy its burden of producing a legitimate, nondiscriminatory reason for its employment decision, the McDonnell Douglas pas de deux is over and the INS’s motion for summary judgment must be denied. We therefore reverse the district court’s grant of the INS’s motion for summary judgment and remand this case for further proceedings consistent with this opinion.

¶39REVERSED AND REMANDED.