*1 advisory. As with as guidelines treat ANDERSON, Virginia Plaintiff- claims, plain we review
Harp’s other Appellant, raise this issue Harp did not because error We conclude in the court. district error re- plain has not satisfied Harp
quirements. Payton; Lott; T. Vernelle Sherman Hawkins; Larry Coleman; Ava Cur failure to treat Although the Edwards, Jr.; Young; tis Clinton error,4 advisory plain was as guidelines Newman, Jr.; H. Samuel Francis that it affect has not demonstrated Harp Wade; Quiller; Bree Pamela Bennie rights. See United his ed substantial land; Stephenson; L. Kenneth Glenn 208, 222, White, States Reed; Sr.; Clyde Hol Brady, Robin Cir.2005) to a defen regard with (holding, Gwendolyn Naylor; man; H. L. John pending when appeal dant whose Hayward Watts; Barnes; Er Alton decided, it er plain that was Booker was Lewis; vin; Debra A. Alana J. to treat court ror for the district Turner; Williams; Jimmie Lee Wil mandatory, but that to satis as guidelines Jeffrey Jr.; Bonaparte, A. liam analysis a error fy prong plain the third Johnny Holmes; Myers; James J. actually that he was defendant must show III; Pope; Sherman, Debbie S.G. from the rec prejudiced). apparent It is Jones; Lottabney; B. Annie Charles treating guidelines as ord here Crawford; Gavin; Diane J. Olivia G. mandatory nothing to do had with White; Moore; Maxine Marvin S. by the district court. imposed sentence Reed; Legree; Irmagene Wil Bertha Rather, imposed was based the sentence Jeffrey Hightower, Jr.; Bai A. lar H. sentencing range on the recommended Ryson Carter; ley; Dorsey; Constance account for the sub Government to Tiller; Pollock; M. Peggy M. Rhonda Harp provided stantial assistance Collins; Cooks; L. Gloria J. Calvin prosecution of his codefendant. Langford; Myler; L. Patricia Danita therefore does not warrant forfeited error Beasley; Johnson; Mary L. Delores reversal.5 Bass; Myers; Linchie Benita Moses Simmons; Daise; H. Walter Wanda V. Nora; Carolyn Smith; Bernard W. Y. reasons, find no foregoing For the we Tommy Campbell; A. Donald Thorpe; affirm error and therefore reversible Brooks; Holston; M. Lewis Deitra F. Harp’s sentence. Phyllis Angela Holbrook; Pough; Y. Calhounhurley; Rouse; A. Norris V. AFFIRMED Gantt; Gay-Furse; Debra D. Ursula Hall; Johnson; R. William Elvira Campbell; M. But Winston Sharon Quitman White; Baker; ler; Leon Baker; Bush; Gary George B. Linda Carter; Coker, Jr.; Dianne L. Curtis challenges pro Harp in a se also raises criticism the dis- 4. We of course offer no carefully con- proce- supplemental brief. We judge, law have followed the trict who allegations find of error and Harp’s sentenc- these dure in at the time of sidered effect them be without merit. ing. *2 Davis; Harrison; Legal Charlotte NAACP Defense And T. Sandra Education Tyrone Davis; Fund, Inc., Johnson; Supporting B. Marinda Amicus Johnson; Johnny King; Appellant, Delores Mar McCalla; Douglas tin; Clinton L. Equal Employment Advisory Council; Mckenzie; Marilyn Mckie; Marlene Commerce, Chamber Of Amici Moore; Moton; L. James Goldie S. Supporting Appellee. Randle; Williams; Joseph Thomas Ryans; Rideaux; L. Dianne William 03-1150, Nos. 03-1151. Shaw; Scott; Michael S. Veronica Appeals, United States Court of Staley; Suber; George R. A. Calvin Fourth Circuit. Taylor; Vessel; Ellen M. Kenneth E. Vinson; Yarborough, Hope For Argued: Oct. 2003. Themselves And On Behalf Of All 4,May Decided: Situated, Similarly Plaintiffs, Others
v.
WESTINGHOUSE SAVANNAH RIVER
COMPANY; The Babcock & Wilcox Company, Incorporat River
Savannah
ed; British Nuclear Fuels Limited Sa Corporation;
vannah River Bechtel River, Incorporated, Defen
Savannah
dants-Appellees. Legal
NAACP Defense And Education
Fund, Inc., Supporting Amicus
Appellant,
Equal Advisory Council; Employment Commerce,
Chamber of Amici
Supporting Appellee.
Virginia Anderson, Plaintiff-Appellant,
Westinghouse River Savannah
Company Defendant-
Appellee, River, Incorporated;
Bechtel Savannah
The Babcock & Savannah Riv Wilcox Company, Incorporated;
er British Riv
Nuclear Fuels Limited Savannah Corporation,
er Defendants. *6 Smith, Vladeck, Ivan D.
ARGUED: Waldman, P.C., Engelhard, Elias & New York, York, Appellant. New for Glen Nager, Day, Washington, David Jones D.C., Appellees. for ON BRIEF: Julian Birnbaum, Vladeck, Waldman, R. Elias & P.C., York, York; New New Engelhard, McClain, McClain, Ray Ray P. P. Attor- P.A., Charleston, Carolina; ney, South Mulrain, L.L.P., York, Brown & New New York, Sudbury, for A. Appellant. Deborah Towns, Atlanta, Douglas Day, M. Jones Shay Dvoretzky, Day, Georgia; Jones York, York; Young, Kenneth E. New New Nelson, Mullins, Riley Scarborough, & Greenville, Carolina, Appellees. South Jones, Director, Elaine R. Norman J. River management in of the Savannah Le- Chachkin, Stroup, H. NAACP Robert Fund, Inc., with the De- to a contract pursuant Site Educational And gal Defense company is a York, Energy. Each York, partment Amicus Curiae New New in Bokat, defendant this action. A. Robin S. Stephen NAACP. National Conrad, Bryant, Dunham Ellen River Site past, In the the Savannah Inc., Center, Washing- Litigation Chamber materials needed for fabrica- produced Reesman, Kath-
ton, D.C.; Elizabeth Ann its current weapons, of nuclear but tion McGuiness, & Cheung, Norris Y.K. erine clean- is focused on environmental mission D.C., for Williams, L.L.P., Washington, radioactive materials. up processing and and Chamber. Amici Curiae Council covers 310 River Site Savannah Carolina, miles in western South square NIEMEYER, WIDENER, and Before and, 13,000 employees in over GREGORY, Judges. Circuit for the four defen- worked the sites 2765 were employees, dants. Of those part, in part, in vacated Affirmed black. by published instructions remanded with working at the Virginia began wrote Anderson opinion. Judge WIDENER in typist a in as a Judge NIEMEYER wrote River Site opinion. Savannah concurring part in Anderson became a separate opinion typing pool. Miss as part. Judge stenographer year in GREGORY later. She worked dissenting opinion dissenting depart- different separate stenographer wrote a several until at the Savannah River Site part. ments Miss Anderson became OPINION secretary administrative the materials from technology group. The transition WIDENER, Judge: Circuit secretary stenographer to administrative case, Virginia In this Title VII Anderson, and, promotion was a for Miss from the district court’s appeals secretary, she had as an administrative certification, denying granting class orders responsibilities. As an administra- more limine, motions defendants’ secretary, tive Miss Anderson received summary to the defen- granting judgment level. salary at the SGL 16 generally affirm the district dants. We the materials Anderson remained with *7 court, remand for consideration of but In technology group July until of 1998. class should be certified with a whether August promotion received a she plaintiff. new lead in to administrative assistant the universi- ty group relations within chemicals
I. group. her hydrogen technology With salary Anderson’s level Virginia promotion, Anderson is a black female em- Miss stands for Department Energy’s at the Sa- increased to SGL 28 SOP. SOP ployed and, positions, as a SGL vannah River Site. The Savannah River selective overtime employee, Anderson received managed Department of 28 SOP Miss Site is salary above her Energy by Westinghouse compensation Savannah River additional if worked a certain number of hours Company, (Westinghouse). LLC Bechtel she River, Inc., (Bechtel), working normal hours. Miss Babcox & above her Savannah (B W), university Anderson remained with the re- Company Savannah River & Wilcox group through lations the time she filed and British Nuclear Fuels Ltd. Savannah (BNFL) participate against her lawsuit the defendants. Corporation River also (if began working any). she the Savan- bent No preferred When candi- Site, higher Anderson’s system. nah River Miss dates exist this background educational was limited to an 2. HR posts in ShRINE secretary Augusta from diploma executive (sic) for working days. ten Tech, During which she received 1977. 3. hiring manager The establishes Site, her tenure at the River Savannah panel. interview pursued higher Miss further ed- degrees. In Miss Anderson ucation lead, the HR hiring manager With degree took bachelor of science individuals, appropriate selects based human management resources from South- job knowledge their and 6525 49 Wesleyan University. ern June of familiarity with position, to sit on 1998, Miss Anderson received her masters an interview panel. panel The consists in business from Nova administration members, of three one of whom must University. Southeastern always hiring manager. be the promotion from Anderson’s administrative Self-nominating 4. individuals submit secretary, pay with a level of SGL qualifications their to HR-Staffing. assistant, pay administrative with a level qualifications Submitted can include a SOP, just after SGL 28 came months she (OSR 27-13) History Personal form her M.B.A. received resume. and/or 1990’s, In the the Savannah River Site by Individuals nominated others programs, pro- instituted two one for qualifications submit their to HR- increases, pay motions and one for merit Staffing. litigation. that are at issue in this The Competency first is the Posting Based consent, With their candidates can be System, or Competency CBPS. The Based nominated others. Nominations System application promotion is an and are not managers. restricted to system employ- which Savannah River Site hiring manager cannot nominate. may apply positions ees use to for new History Candidates submit a Personal promotions. (OSR 27-13) system, exempt Under the or cop- form resume non-exempt employees may apply performance ies of their last three available, posted position that is with a few appraisals to HR-Staffing. exceptions. According description to the applicants 6. HR confirms that meet in Westinghouse contained Riv- Savannah posted position requirements. Manual, er Company hiring 5B Eligible candidates identified promotion process Competency under the requirements based on minimum list- System Based is as follows: position profile. ed *8 1.Open position to HR is submitted 7. HR-Equal Employment Opportuni- posting. for (EEO) appli- ties reviews the list of hiring posi- The manager ensures the consistency corporate cants for with description complete tion is and cor- planning. and affirmative action rect; adding, weighing and the values eligible HR-Staffing appli- 8. submits of, necessary HR competencies. hiring manager. cants to the Compensation salary the establishes
grade days at or position working below the 9. Within five of receiv- salary incum- grade previous ing HR-Staffing, of the the material from The re- can be shortened. time-frame selects candidates manager hiring exceed four time-frame cannot lease
for interviews. weeks. are informed All applicants 10. System, Competency Based Under application.
status their applicants can hiring managers evaluate inter- selected 11. Individuals teamwork, leader competencies: six core candidate information view receive results, communications, business ship, pro- the interview regarding package develop and self-management, employee cess. eval managers can also hiring ment. The and manager hiring schedules 12. The selected functional applicants using uate conducts, interviews panel, with the specific posi to the that are competencies candi- days working after within For manager hiring. is tion for which the their status. are notified of dates competen functional example, particular manager selects hiring heating, The ventila “[p]roficient 13. cy be could re- position best meets design,” candidate who and the air-conditioning tion and quirements. explains “[functional CBPS manual the re from competencies can be derived hir- by made decision is The final job description.” on the sponsibility section the other input from ing with manager weight, competency assigned is Each and af- panel members two interview five, in one to which using a number from HR lead. The next by the ter review to other important five relative is“[m]ost must review management also level impor “[l]east and one is competencies” candidate. the selected approve competencies.” The tant relative to other selec- review candidate 14. HR-EEO candidates for panel then selects interview consistency corporate with tion then each select interviews interviews planning. action and affirmative ed candidate. necessary, HR- is promotion 15. If a is who is interviewed applicant Each HREEO, and the divi- Compensation, using by panel the interview evaluated HR lead review decision sion competencies. functional the core and all relevant criteria ensure that weight- panel interview The determines met. applicant on each core ed for each score of- HR-Staffing prepares a 16. formal panel The competency. and functional extends hiring manager fer and the by multi- weighted determines the score the candidate. the offer to competen- weight given to plying the each five) (one applicant’s rating cy rejects accepts or 17. The candidate panel rates competency. for each The days. two the offer within calendar five, one to on a scale of applicant in- all hiring manager The informs 18. meaning ex- “[demonstrates with a five sending candidates terviewed meaning and a one ceptional competence” manager of the selected candidate level of expected not demonstrate “[d]id process outcome. the selection panel The competence.” determines candidate released selected by adding weighted total score applicant’s within weeks to the four new for each weighted scores together *9 acceptance. hiring manager then competency. The af- position, hir- selects the candidate manager the releasing If and the for weighted total scores noting ter the agree, release both ing manager candidate, ployees records the basis for or all employees; each and SGL 32 to 34 or (5) leads, candidate. selecting managers, professionals the chosen and by salary grade clusters. program second instituted at the The River was the Ranked Per- employee rankings Savannah Site for each division Process, Pay or RP3. The formance Site performance are then broken into catego- in 1997 to rank began using program consisting 15%, ries high the middle exempt 80%, and selected overtime em- percent. and the low five Final rank- ployees salary. for merit increases Two ings approved by are manager, division major factors are utilized under the RP3 salary and merit increases are awarded system employees to determine which based on each budget salary division’s and perform- receive merit should raises. Job guidechart. The Human Resources Com- ranking given ance constitutes 75% of the pensation department approve must an employee, remaining and the 25% is merit increases that are outside of the rankings Imperatives. derived from on Site salary guidechart. employees, All regard- Imperatives Site “are the basis of how we ranking less of their percentage, eligi- are employees] expected each are to ac- increases, [Site ble for top merit but the 15% complish objectives of our business may highest receive the merit increases. division, group, company- work as a Another factor that contributes the size Imperatives whole.” The five Site are of a merit increase is whether employ- safety, disciplined operations, cost effec- mid-point ee is above or below the of their tiveness, improvement, continuous and salary For if grade. example, employ- an Imperative teamwork. Each Site is ee is an A performer salary whose level is weighted percent ranking, five the total midpoint salary grade, below the of his he constituting with the total for all five increase, 25% eligible to receive a merit employee’s ranking. of an final may amount of which be different if he is an A performer salary whose level is above system, manager Under the RP3 each midpoint salary grade. of his must use the electronic RP3 evaluation employee worksheet to rate each job In ranking employees per- their for manager’s organization. formance, The evaluation accounts for of an which 75% process begins with the smallest unit of employee’s ranking, the RP3 manual in- organization, department or section. managers following structs to consider the rankings computed Once the initial factors: section, department employees or all expectations Job a single group
within work are ranked Quality quantity of work the next of management. level At the next scope (performance against po- Position division, step, rankings each divi- description) sition manager may integrate sion’s the work Support achieving commitments group rankings ranking to achieve a (managers, peers, Feedback from others employees within the division. The divi- customers) manager may all employees sion rank Awards, recognition Among various combinations. the combi- (leadership, Performance standards suggested by system nations the RP3 judgment) (1) ranking employ- manual are total of all (2) ees; job employee rank within work re separate groups; performance, For (3) (4) leads, “Low,” meaning managers, professionals; rating ceives a of either clusters, i.e., salary all at a grade “[c]onsistently performs SGL 16 em- level below *10 258 rating its lowest “Mid,” panel gave meaning interview “[consis- or
expectations,” employee. a white female score of 129.5 to expecta- the level of tently performs ” “consistently tions,” meaning “High, or for the applied Anderson In Miss expecta- that exceeds at a level performs in Assistant position of Administrative low, mid, or use the Managers also Community tions.” Development Business employees to evaluate their high rankings was Division. Miss Anderson Outreach The RP3 an interview on the basis Imperatives. in the five Site not selected for compe- the functional indicators of her low scores for performance manual lists the Only appli- two position. tencies of the use when determin- managers should in core com- higher scores cants received a employee should receive ing whether Anderson, eight but petencies than Miss mid, low, high imperative. rank for each in func- ratings applicants higher had lawsuit, Anderson com- In Miss her Anderson re- competencies. Miss tional in separate instances plains about three a rating possible a of 59 ceived out subsequently failed sought and which she rating out competencies and a of 9 for core In Miss promotion. a to receive competen- a 57 for functional possible of Ad- position for the applied Anderson contrast, cies, rating a total of 68. for in the Environmen- ministrative Assistant promotion, for the the individual chosen hiring The man- Restoration Division. tal (formerly Miss Brenda Pearson Mrs. Toddings, posted ager, Miss Gail woman, a a white received Boggs), Brenda CBPS, approxi- using the opening possible 72 for core rating of 60 out of posi- for the mately employees applied rating and a of 57 out of competencies Human Resources tion. After the Site’s possible competencies, 57 for functional applications, department evaluated of 117. Mrs. Pearson re- rating a total Tod- were sent to Miss to 40 resumes promotion, ceived the and Miss Anderson assis- outgoing The administrative dings. did not. tant, Miss Curry, Laboris assisted Miss that she alleges Anderson also was Miss evaluating the resumes Toddings from 28 SOP to promotion denied a SGL interview. Miss choosing people position while in her as adminis- SGL 30 the final decision on who Toddings made university in the relations trative assistant interviewed. Miss
would be complains that she told group. She interview, for an and she was selected position current she had to work for the on December interviewed t\yo years she could receive to four before 15, 1997, panel chaired before an interview place. She contends promotion Toddings. panel The interview by Miss promotions received employees white Toddings and Miss selected recommended posi- them place having without to work in Mrs. position. Linda for the Mrs. Clarke years. tions for two to four Clarke, woman, high- received the a white II. rating, a score of
est consensus
in-
among
employees
31, 1997,
all of the
who were
began on October
This lawsuit
Miss Anderson received
fíled a class
employees
terviewed.1
when ten black Site
against the defendants. The
rating score of
the second-lowest
action lawsuit
claims under
plaintiffs brought
ten
given by the interview panel.
score
(JA
among
King,
received scores of 190.
highest rating
the em-
both
190 was the
11107-11108, 11115-11116)
King
Miss
is a
position.
ployees
Mrs.
interviewed
11169)
(JA
Shirley
employee,
white woman.
and another
Clarke
*11
evidentiary
The district court held an
alleging
VII
§ 1981 and Title
U.S.C.
hearing
ruling
after
on the motions for
employees
black
denied
the defendants
hearing
At
in the
class certification.
issue
equal
basis with white
on
promotions
proposed testimony
of Dr. Edwin
was
discrepan
salary
maintained
employees,
Bradley,
plaintiffs prospective
L.
ex-
employees,
and white
cies between black
testimony
After
pert
listening
witness.
training
employees access
denied black
argument,
and
the district court excluded
with white
equal
on an
basis
opportunities
Bradley’s proposed
from evidence Dr.
ex-
on
employees
demoted black
employees,
testimony on the discriminato-
pert opinion
race,
and discriminated
the basis
their
system.
ry impact of the RP3
The district
by keeping them
against
employees
black
testimony
court excluded this
on the
plain
The ten
.positions.
in less desirable
grounds that
it
on
was based
statistical
individual claims for dis
brought
tiffs also
analysis that
not
research and
did
have
race.
on the basis of
parate treatment
Bradley
Dr.
proper controls.
had conduct-
joined the lawsuit as
Anderson later
Miss
regarding
sys-
l
ed several studies
the RP3
a tota of 99 individuals
plaintiff,
instances,
Bradley’s
tem.
In several
Dr.
plaintiffs.
became
analysis compared
statistical
black and
certify a
sought to
class
plaintiffs
The
employees
ranking
white
under the RP3
all current and former black
consisting of
any
system
taking
without
into account
who worked
employees of the defendants
job
position.
differences
their
titles or
subject
will
who had been or
be
the Site
court
excluded from evi-
The district
also
by the defendants.
-After
to discrimination
copy
dence a draft
of an assessment of
held on the class certi-
argument
oral
Westinghouse’s equal employment oppor-
motion,
court
fication
the district
denied
resources,
tunity,
employee
human
proposed
the motion “as to the
class
programs
concerns
conducted
the De-
suggested by Plaintiffs.”
sub-class
Energy.
partment of
The district court determined that
granted
court
the defen-
The district
challenges
plaintiffs “across the board”
summary judgment
dants’ motion for
as to
employee practices
the defendants’
did not
disparate
Miss Anderson’s individual
im-
satisfy
requirements
of Rule
pact
disparate
treatment claims.
Federal Rules of Civil Procedure and were
court denied the defendants’ mo-
district
supported by governing Supreme
summary judgment
tion for
as to Miss
and Fourth Circuit case law.
Court
claim,
disparate
pay
treatment
Anderson’s
remaining
but Miss Anderson had the
denying
After
motion for
plaintiffs’
prejudice
claim
with
that she
dismissed
so
certification,
class
the district court or-
pursue
appeal.
could
this
plaintiffs
pursue
dered the
their claims
individually. Following the district court’s
III.
instruction,
Anderson filed an amend-
26,
July
complaint
ed
grant
review the district court’s
We
complaint,
brings
disparate
she
claims for
summary judgment
to the defendants de
discrimination, relating
novo,
to the de-
impact
viewing the facts and all reasonable
sys-
and RP3
light
fendants’ use of the CBPS
therefrom in the
inferences drawn
pay practices,
tems and to the defendants’
to Anderson.
See
most
favorable
treatment,
Inc., 477
disparate
Liberty Lobby,
and claims for
relat- Anderson v.
U.S.
IV. defendants’ motion to granted court the mo court denied The district opinion plaintiffs’ of the ex- exclude the 19, July 2000. tion for class certification Bradley, L. about the RP3 pert, Dr. Edwin denying class opinion In its order rankings and about merit increases under certification, court directed the the district system. appeals Anderson the RP3 them cases on plaintiffs proceed with 99 ruling district court’s on the ad- from the The district court an individual basis. address missibility of this evidence. We found these contentions first. Plaintiff in the single
not one
named
involving
asserts claims
proposed class
V.
attacked; rather,
programs
all of the
review a district court’s deci
We
pattern
per-
is one of combinations and
expert
sion to admit or exclude
evidence
mutations of some Plaintiffs on some
v. Merrell Dow Pharma
under Daubert
and different combinations and
claims
ceuticals, Inc.,
579,
509 U.S.
113 S.Ct.
of Plaintiffs on other
permutations
2786,
(1993), for abuse of
testify thereto
sought
Miss Anderson
to introduce into
(1)
otherwise,
testimony is
if
testimony
Bradley’s
evidence Dr.
about
(2)
data,
facts or
upon sufficient
based
given
ratings
the differences
RP3
product of rehable
testimony is the
given
to those
compared
blacks as
(3)
methods, and
the wit-
principles and
report upon
whites. The
which this testi-
principles and
applied
has
ness
mony would be based showed that for the
facts
the case.
reliably to the
methods
years
the number of stan-
*13
rankings
dard
between the RP3
deviations
party
702. When a
seeks
Fed.R.Evid.
given
exempt employees
to black
and
testimony,
the district
any expert
admit
-
exempt employees
white
was -2.61 and
“gatekeeping.” See
obligation
court’s
2.14, respectively.
making
compari-
In
the
Carmichael,
v.
Kumho Tire Co.
sons,
Bradley
analysis
Dr.
controlled the
137, 141,
L.Ed.2d 238
119 S.Ct.
words,
job
In other
Dr.
using
groups.
(1999).
district
gatekeeper,
the
the
As
that,
Bradley’s analysis
using
showed
the
expert
analyze
proposed
the
court should
job groups
category
as the
which em-
factors, including
testimony using several
grouped,
high-
that whites had
ployees are
can be tested
expert opinion
whether the
than
The dis-
rankings
er RP3
blacks.2
subjected
peer
it has been
and whether
analysis wanting.
trict court found this
592-94,
Daubert, 509 U.S. at
review.
court found that “the stud-
court should also
The district
S.Ct. 2786. The district
they
are deficient because
use the
rate of error of the methods
ies
consider the
job groupings.” During
hearing,
and
employed by
expert,
the existence
EEO
job
Bradley
groups
in the ex Dr.
testified that
could
maintenance of standards used
methods,
occupations.
expert’s
contain numerous and diverse
pert’s
and whether
Bradley
accepted by
example,
For
Dr.
admitted under
generally
methods have been
job
community.
questioning
single
group
Dau
that a
could
respective
his or her
2786;
bert,
job
individual
separate
see
contain 147
titles
509 U.S. at
separate pay grades. Dr.
Crisp,
up
324 F.3d
and
to seven
also
States v.
United
Cir.2003)
(4th
job
Bradley
single
also testified that a
(listing Daubert fac-
265-66
testimony
Hajoca Corp.,
321-22
Bradley's
also would have
In Herold
2. Dr.
1988),
upheld
relied on nine other studies that also failed to
court’s
Cir.
we
the district
job
properly compare employees in similar
ruling
evidence that did
to exclude statistical
Bradley's
positions and
Several of Dr.
titles.
plaintiff
who
compare the
with others
not
to ensure
studies did not have
controls
similarly
plaintiff.
were
situated to the
high
rankings
percentage of
RP3
that the
Herold,
sought
plaintiff
to introduce statistical
awarded to African-Ameri-
merit
increases
employ
of
evidence derived from
number
by
by
other factors or
cans was not influenced
company's entire mid-
ees terminated in the
employees.
comparing
Other stud-
dissimilar
region
to establish a viola
Atlantic
in order
reviewing
increases controlled for
ies
merit
upheld
We
the district
tion of the ADEA.
ranking
ranking
but
received or for race
"region-wide sta
court's
to allow such
refusal
comprise the
for the actual factors that
Instead, the district
tistics” to be admitted.
job responsibilities
ranking or for the different
permitted
to introduce sta
court
may have.
that workers in different divisions
only from the termi
tistical evidence derived
Bradley's
involving
studies
RP3
Five of Dr.
employees at
the defendant’s
nations
division,
rankings compared
only by
workers
branch,
plaintiff had been
where
Staunton
division,
but,
many distinct
within a
there are
employed.
whether the assessment fendants’ motion exclude ratings, similarly persons situated that it from multi grounds on the suffered being be compared. who are rated must hearsay not within ple levels of and was much simply disparity And there is too under Rule of Evi groups exception been Federal that have used 803(8). control, and an dence The district court also noted absence use of draft, control factor that would control for the was not a final the assessment job job actual title or the duties. val report, probative that the limited by “far outweighed ue of I the draft appear it does to me—and And believe ... numerous trustworthiness concerns has that that could the witness conceded prejudice coupled with the risk of unfair done not have been and was controlled for, allegations based of of events on inclusion grants that reason court given nothing do may have to with the motion. 264 803(8) of the Energy sought
Plaintiff or Defendant.”Rule ment of to document em- excepts from ployee perceptions equal opportunity Federal Rules of Evidence about hearsay reports compiled by “pub programs, rule but the only team interviewed agencies” compliance employees responded lic offices or with who open to an invi- agency’s duty by the office or under law “un tation sent email. Those who were less information or the sources of other interviewed constituted than per- less one indicate lack of trustworthi circumstances cent of the workforce at the Savannah 803(8). Distaff, ness.” Fed.R.Evid. River Site. The assessment team admitted Springfield Contracting Corp., Inc. v. report its that it “did attempt (4th Cir.1993), explained F.2d we verify perception employees” investigative report may that an be admis who were interviewed. In analyzing the 803(8) sible Rule if composition under its contents are racial panels, interview Enters., trustworthy. also Zeus See Inc. v. assessment team based its statistics on a Inc., Alphin Aircraft, 190 F.3d panels. review 30 interview During the (4th (“The Cir.1999) admissibility pub of a period pan- 21-month from which those 30 specified chosen, lic record in the rule is assumed els were the Savannah River Site course, as matter unless there panels utilized about 900 to select candi- negative sufficient factors to positions. indicate a dates for new Of those 900 trustworthiness, lack of in which panels, case it the assessment team thus reviewed admitted.”). should not be may composition Courts the racial of only 3.3% of the look to several factors to if panels. determine “(1) report is admissible: timeliness of admissibility report of a un (2) an investigation; special skill or 803(8) der Rule “permissive and not official; (3) experience of the possible mandatory.” Gray, United States v. problems.” motivational Ellis v. Int’l (4th Cir.1988). F.2d In Gray, we Inc., Playtex, 300-01 held that the district court did not abuse Cir.1984). The court noted several Distaff its refusing discretion to admit under may factors which reveal a lack of trust 803(8) Rule an internal report IRS which
worthiness, namely “unreliability, inade *16 was a “tentative report.” internal 852 quate investigation, inadequate foundation Furthermore, at F.2d 139. the risk of (and) conclusions, jury’s invasion of the unfair prejudice from information con province.” 111 (citing 984 F.2d at Wein report tained the IRS far outweighed its stein, 803(8)). Evidence, § Weinstein’s probative value. Based on the fact that Department A Energy’s review of the factors listed assessment only was a report above reveals that draft and noting district court did mentioned, not abuse its concerns which we have excluding discretion in which assessment. The evidence of the Department of assessment’s lack of Energy’s trustworthiness, investigation began in we opinion 2000 and are of was not hold that completed by March the district court of 2002. The did not abuse draft assessment its discretion in multiple excluding contains the assessment. levels of hearsay as well as referring complaint to a
from an plaintiff individual who is a in a VII. (one companion case this lawsuit Wil A. Hall).
liam The assessment does not have adequate foundation for its Following conclusions. the district court’s order de- certification, assessment team from the Depart- nying class Miss Anderson
265 brief, individually. have affirmed. In her we Miss with her lawsuit proceeded Miss that Complaint, acknowledges Anderson she cannot In Fourth Amended her ranking sys- impact RP3 on her claim in- prevail disparate claims impact disparate system have a Dr. volving and the CBPS the RP3 without Brad- tem race. on the basis of employees ley’s testimony. black Anderson did not Miss challenges Miss Anderson appeal, impact On her RP3 claim in disparate address summary granting decision court’s except district that she wishes to her brief note dispa- to the defendants on judgment if court’s the claim the district evi- pursue claims. impact rate dentiary ruling Bradley’s testimony on Dr. affirmed the district is reversed. We have first at Miss Anderson’s lookWe evidentiary and our affir- ruling, court’s has a ranking system RP3 claim that the admittedly mance forecloses Miss To impact employees. on black disparate chance for success on her RP3 Anderson’s disparate prima a facie case establish impact disparate claim.3 VII, a Title discrimination under impact facially neu “show that the plaintiff must B. significant a practice had employment
tral
City
discriminatory impact.”
v.
ly
Walls
address
Anderson’s dispa-
We next
Miss
188,
Petersburg, 895 F.2d
Cir.
impact
involving
claim
the CBPS.
rate
On
1990)
Teal,
v.
457 U.S.
(citing Connecticut
argues
she
that the district court
appeal,
440, 446,
L.Ed.2d 130
102 S.Ct.
that she had
es-
concluding
erred
(1982)).
prima
a
If a
establishes
by requiring
causation
her to
tablished
case,
dem
employer
“the
must then
facie
instead of
prove intentional discrimination
‘any given requirement [has]
onstrate
impact
review de
a
claim. We
disparate
relationship
employment
to the
manifest
challenge
district
novo her
to the
court’s
finding
in order to avoid a
question,’
summary
judgment.
granting
order
Teal,
446-47,
457 U.S.
discrimination.”
Williams,
that Miss Anderson has
with the
as to the candidate who received a
And,
that a
a position
being
Court’s instruction
that was
filled.
at the
disparate impact
identify
must
case
stage,
example,
interview selection
for
edu-
specific employment practice
being
that is
experience
cation and
are two factors that
challenged.
v. Fort Worth
See Watson
Bradley’s analysis
Dr.
quantify.
fails to
Trust,
977, 994,
Bank &
Furthermore, at
stages
each of the two
(1988)
2777,
(plurality
L.Ed.2d
which
challenges
Miss
Next,
opinion).
Miss Anderson must
CBPS,
person
pan
the discretion of the
prove
at
causation. 487 U.S.
making
el
the decision
unfettered.
S.Ct. 2777.
must show that
She
At
step,
each
the decision maker must look
practices
dispa-
above-mentioned
caused a
to the
competencies
core
listed in the
impact
rate
at
employees
black
the Site.
CBPS manual and the specific functional
causation,
To establish
competencies,
specifically
which are chosen
pro
Anderson relies on statistical evidence
position.
for each
At the
stage,
interview
Bradley
vided Dr.
about the CBPS. She
panel
of three interviewers must evalu
argues
Bradley’s
that Dr.
statistical evi
ate the candidate and must address each
possibility
dence ruled out the
that chance
core
competency.
and functional
disparate
caused a
impact on black em
on which
cases
Miss Anderson relies to
ployees.
Bradley
analyzed
Dr.
had
support her claim that causation has been
percentage
employees
of black
who were
proven
supervisors
involves
possessed
who
successful under
the CBPS at
three
unfettered
employment
discretion to make
(1)
stages:
qualified
selection as
posi
for a
Watson,
decisions. See
at
U.S.
(2)
tion from all
apply;
candidates who
267 the the trier of fact persuading of with the comply to required were Site intentionally discriminated core and defendant which, the use of CBPS, through at all time plaintiff the. remains against which all against competencies functional ” Murrell, 262 F.3d at evaluated, plaintiff.’ limits the with the must be applicants omitted). (internal citation decisionmakers. 257 to available discretion Miss on which cases Accordingly, the correctly stated district court As the of hardly supportive relies Anderson dis promote the 1997 failure to regarding com- only relevant the position, her claim, Anderson Miss parate treatment that the is process to the makes plaint she re that the suggest “does not comments white. makers were decision are false or interview form corded on her from evi- did not bar her actual court of misleading representations The district that there conclusion at 5. Fur Bradley’s Slip op. Dr. responses.” interview dence disparate impact ther, failed to address her might be evidence Miss Anderson stage interview disclosed hiring stages in terms of the qualifications two —the correctly rejected stage factors. weighted competency the selection —and prep- the claimed that his conclusion that on her the claim focuses Anderson instead the Hu- eligibles by qualifi list of aration of the of minimum satisfaction higher level, might be sub- department cations, man as her education Resources such objection. high racial a Title VII to with ject opposed to MBA as others education, more performance her school without argument, We assume duties, years of administrative secretarial has shown Anderson deciding, that Miss recognition, awards and her numerous court the district because prima facie case received recognition which exceeded as to Bradley’s conclusions Dr. did not bar court The district other interviewees. inter respect to the impact with disparate may these opinion that “[w]hile found its stage. So the selection stage view believes by which Anderson the criteria be circum proffered is whether question Anderson judged, been- should have she discriminatory impact evidence stantial that WSRC any has not offered evidence satisfy to is sufficient McDonnell up made particular individuals who or the Murrell v. proof. framework Douglas time, have, any applied at panel the CBPS Inc., Motel, Mecca Ocean Slip op. a set of standards.” such Cir.2001). Doug See McDonnell reasons, simply not pretext these For Green, 411 U.S. Corp. las it support to no evidence as there'is shown (1973). this Under 36 L.Ed.2d claim. regarding framework, first estab plaintiff must -point similarly fails Miss Anderson facie case of discrimination. prima lish a the con- support would any evidence that with respond must Then defendant rating higher that she deserved clusion legitimate, it acted with evidence that Murrell, evaluated any of the areas 262 on nondiscriminatory reason. assistant. administrative promotion this makes If the defendant F.3d at 257. provide fails evidence She also “present must showing, then abili- of her evidence panel overlooked ar prove that defendant’s evidence to applica- her contained in in the ties areas for unlawful pretext ticulated reason Rather, application, the 1997 as with Murrell, tion. F.3d at 257. discrimination.” quali- supposed greater focuses on shift she evidentiary burdens “Although the employ- years of of total fications terms McDonnell under and forth back Again, Miss ment or education. framework, burden ‘[t]he ultimate Douglas *19 268 (3) proffered suggest position
has not
evidence to
in question,
qualified
she was
(4)
legitimate
by
reason offered
for
position,
WSRC
for that
the defendants
hiring
pretextual.
its
decision is
rejected
application
under circum
give
stances
rise to an inference of
pretext
So
has not been shown for either
unlawful
Bryant,
discrimination. See
333
the 1997
or 1998 claim
the decision of
544-45; Carter,
F.3d at
33 F.3d at
If
458.
the district court
affirmed.
is
established,
prima
facie case is
the bur
den then shifts “to
employer
to articu
VIII.
late
legitimate, nondiscriminatory
some
We turn next to Miss Anderson’s indi-
reason” for
promote.
the decision not to
disparate
vidual
treatment claims. Her
802,
McDonnell
411
Douglas,
U.S. at
93
first claim relates to her
December
1817;
S.Ct.
Bryant,
see
States,
324,
15,
431 U.S.
335 n.
Department
ministration
in November of
1843,
(1977);
4. The court § noted that Bryant, "[i]n failure-to- or both statutes.' 333 F.3d this, promote cases such as 'the framework of (quoting Mallory at 545 n. 3 Refrig. v. Booth proof disparate treatment claims ... is the Co., (4th Cir.1989)). Supply VII, brought same for actions under Title
269
reasons,
by
the
the
primary
employer,
con
annunciated
Miss Anderson’s
why
she had more
appeal
plaintiff
pro-
that
did not
tentions
the
receive the
Dennis,
at
experience
and more
the Sa
education
at
motion.
290 F.3d
648-649 & n.
than Mrs. Clarke and
vannah River Site
plainly
apply
“Reeves
instructs us to
a
rating
Miss
was
that
Anderson’s consensus
by
contrary approach
affirming
Evans
[to
]
work
low based on her
evaluations
permissible
that it is
for the trier
fact to
of
numerous
awards and commendations.
infer
ultimate fact of
the
discrimination
Linda Clarke to
panel
The interview
chose
falsity
from
of
employer’s explana-
promotion because she was
receive the
Dennis,
tion.”
290
(citing
F.3d at 648
4n.
quals.
based on
and in
candidate
“[b]est
2097).
Reeves,
147,
We followed Reeves Dennis v. Columbia
prima
has
facie case of
Anderson
stated
Center, Inc.,
Colleton Medical
290 F.3d
question
racial discrimination. The
on her
(4th
Cir.2002),
4
648-49 & n.
promote thus
first claim for failure to
plaintiff
that a
in a failure to
determined
issue
In
pretext.
turns on the
order
promote
necessarily required
case is not
prevail, Miss
must direct us to
Anderson
Technologies
meet
test
Evans v.
which indicates that
the defen
evidence
Co.,
Applications &
80
Service
F.3d
promoting
dants’ stated reasons
Mrs.
(4th Cir.1996),
“must
Miss
a pretext
Clarke over
Anderson were
qualified
establish that she was the better
for discrimination.
Evans,
position sought.”
candidate for the
(citing
Dep’t
had,an
F.3d at
v. Va.
Gairola
executive secre
Servs.,
753 F.2d
Gen.
bachelor,
tary diploma and a
of science
Cir.1985);
Lehman,
Young v.
degree
management
in human
resource
(4th Cir.1984)).
for,
applied
position
time she
ni
Environ
administrative assistant
rig-
Dennis instructs that we should not
Division, Project Ad
mental Restoration
idly apply
compar-
the Evans standard for
close
Department. She was
plaintiffs
with
ministration
ing
qualifications
those
admin
finishing
her masters
business
person
promotion,
who received- the
re-
veracity of
istration. The minimum educational
may
but we
also consider the
quirements
high position.
contrast,
were a
Miss Anderson had
*21
diploma
school
to
eight
years
and
twelve
of only eight years of experience as a secre-
practical experience in a business or ad-
tary
Anderson,
at the Site. While Miss
area,
degree
ministrative
or an associate
in
years
with seven
experience
of secretarial
discipline
nontechnical or business
with and
typist
stenographer,
twelve as a
or
has
years
at least four
practical
to seven
longer
total tenure at the Site than Mrs.
experience in a
business
administrative Clarke, she cannot choose the
criteria
area, or a
degree
bachelor’s
in a nontechni-
employer
which an
promotion
makes a
de-
cal or
discipline
business
and at least one
Beall,
cision. See
Miss this Anderson fails contends that she has to consider the experience more various factors at that are the Savannah River promotion involved in a Site than Mrs. Clarke. At the decision. It time of her does application prove promotion the CBPS administrative discriminates against assistant black employees Environmental Restoration on the basis of Division, race, Project Depart- Administration Miss Anderson cannot use it to ment, years Mrs. Clarke avoid summary judgment had 15 of secre- on her 1997 fail- experience tarial prior beginning promote ure to work claim. We opinion are of at the Savannah River being Site. After the district court did not err in grant- Site, hired at the she had years ing seven summary judgment to the defendants experience at the time applied she for the on this claim. employer choosing when the of her teria involves claim next
Miss Anderson’s grounds. other See based its decision ad- promotion for a in 1998 application Jiminez, 620; Beall, F.3d at De- in the Business ministrative assistant Divi- Community Outreach velopment and was not selected Miss
sion. that she next contends Miss Anderson woman, Mrs. interview, a white by showing that pretext established Pearson, was selected Brenda Wolfe, manager to.receive hiring Virginia *22 contends Miss Anderson promotion. Develop- the in the Business promotion 1998 due promotion Division, the receive Community that she did not Outreach ment and pro- for the her race. Pearson Mrs. preselected promotion the deci- At the time motion. as we pretext turns on again The issue made, was a secre- Mrs. Pearson sion was has assume, that Miss Anderson arguendo, Wolfe, along tary reported who Miss racial facie case of prima established func- The individuals. eight with other Anderson appeal, Miss On discrimination. which Miss position for tions of the pretext be- she established contends that were, the selec- prior to applied Anderson back- stronger educational cause she has Pearson, being performed by tion of Mrs. Pearson, the defen- that than Mrs. ground secretary position as a her Mrs. Pearson for the Mrs. Pearson pre-selected dants reporting to Miss Wolfe. to Miss ratings given that the position, stage supervisor in the interview selection that a argument Anderson The they do for a employee because an may preselected discrimination have evidence per- Anderson’s evidence for to Miss not sufficient correspond promotion “is not also re- that the Anderson conclude” reasonably Miss jurors reviews. formance contention, hiring Mrs. we have re- for explanation which the defendants’ iterates Shalala, Mackey v. prextext. the CBPS discriminates Pearson was jected, that Cir.2004). (4th “If seeking pro- employees F.3d 468-69 black against for unfairly preselected was employee one at the Site. motions would work preselection the position, the stronger Anderson has Miss While all applicants to the detriment Pear- Mrs. background than educational Blue v. alike.” Unit job, white black and minimum re- son, as is listed education F.2d Army, 914 the ed States Dep’t of not a and is position the for quirement Cir.1990). (4th noted court Blue determining who re- deciding factor may that establish preselection that while Pearson re- promotion. Mrs. ceives treated, “unfairly it does was employee an had a because she promotion ceived the racial prove discrimination.” not itself the core and rating consensus on higher v. United (citing Casillas 914 F.2d at position competencies functional Cir. F.2d Navy, 735 States Burch, employee Judy the other than Miss 1984) (“Title the best not VII does ensure The selec- promotion. interviewed for selection only that will be selected— also for interviews applicants tion of impermissible free from will be process func- core on evaluation based discrimination.”)) educational competencies, on tional before, final conten Anderson’s Miss we Miss backgrounds. As noted promotion is that the 1998 regarding criteria on choose tion may not Anderson interview to her in ratings given Mrs. compete with which wishes she because pretext Moreover, stage establish she selection promotion. Pearson for the evaluation positive they not reflect on cri- do by relying pretext cannot establish during performance she received her drogen technology group. Again, re the issue argument question pretext. views. Miss Anderson’s turns asks us process by to review the which the defen must establish that there employees promotion. dants select genuine is a issue of material fact as to the any Miss Anderson has not introduced evi why defendants’ stated reason for she did dence that performance reviews were promotion place not receive a to SGL 30 hiring manager submitted to the who se SOP. The defendants have introduced affi- applicants lected for an interview. With davits from three compensation analysts proof out hiring manager had who recommended that Miss Anderson’s performance access to Miss Anderson’s re position remain a position SGL 28 SOP views, there is no basis to conclude instead of a SGL 30 SOP as hiring manager was even aware of the 1999. Miss Anderson does not direct us to positive suggests comments Miss Anderson evidence which had re these *23 analysts ceived on performance by her reached their evaluations. conclusions im- Furthermore, properly performance considering evaluation race instead of the actual responsibilities is review of an of employee’s performance Miss Anderson’s position. position, attempts her current Miss Anderson process rely while the on her of own affidavit to selecting person promotion genuine create a in fact, issue of material nothing but volves a that her employ consideration of how affidavit analysts’ controverts the analysis ee will perform position. in a different position of her words, suggests that other the ana- performance evaluation lysts by were motivated racism to refuse the interview stage, selection which qualify position her aas SGL 30 SOP analysis involves an of how the applicant position. meets the core and functional competen cies position open, are not Miss Anderson attempts to estab interchangeable. We do not sit as a “su pretext by lish comparing herself with two per-personnel department weighing the employees white who promotions received prudence employment made decisions” in place within years two of entering their by the defendants. DeJarnette v. Corn position. current argument This fails to Inc., ing, Cir.1998). pretext. establish Miss Anderson seeks to require
We cannot supervi different compare employees herself to who hold sors within the same organization must positions that are dissimilar to her own. reach the same conclusion on an employ The first white employee, Craig Stripling, qualifications ee’s and abilities. is an engineer associate promoted who was from SGL to28 SGL 30 after working as (cid:127) opinion We are of that the district court an associate technical support specialist for did not err in granting summary judgment less than years. second, two Michelle to the defendants on Miss Anderson’s 1998 Trill, a consultant, human resources promote failure to claim. promoted six times between 1989 and Miss Anderson’s final disparate treat- 1995. These two employees white worked ment promote failure to claim centers on separate divisions from Miss Anderson her failure to promotion receive a in place and had responsibilities. different Their from SGL 28 SOP to SGL 30 At SOP. promotions could be based on factors that sought time she promotion, this she was an may not present be in Miss Anderson’s administrative assistant the university position. The fact that the employ white relations group within hy- the chemicals ees promotions received and Miss subclasses, certify two one com failing not, job require- when the did
Anderson
employees
were
Site
who
for the white
of black
posed
responsibilities
ments
the CBPS and
against
from Miss
under
different
discriminated
employees
pretext.
who
Anderson’s,
employees
not establish
of black Site
composed
does
one
the RP3
against under
were discriminated
that the
further claims
Miss
not a member
Anderson is
system. Miss
em-
two white
of these
rapid promotions
As
the two
we
of either of
subclasses.
poli-
of a
in violation
Site
occurred
ployees
above,
all
Miss
discussed
have
in-
pay
do not receive
employees
cy that
claims,
based on
whether
Anderson’s
in their
have been
they
unless
creases
disparate treatment
impact or
disparate
years.
-more than two
position
current
merit, and the district
are without
theory,
on a state-
this claim
bases
Miss Anderson
summary judgment
granted
manager
properly
court
made to her
ment
the claims.
usually
until
given
the defendants
each
were
“promotions
voluntarily
for two
has dismissed
in a
had been
Miss Anderson
employee
statement, which con-
after the
years.” This
claim which remained
to four
the one
“usually,” coupled with
mo
qualifier
ruled on
defendants’
tains
court
district
Stripling
Trill and
were
disparate
that Miss
summary judgment,
the fact
tion for
years
experience
two
Accordingly,
without
promoted
claim.
pay
merit
treatment
pre-
not establish
does
positions,
in their
longer has
valid
Anderson no
manager informed
Miss Anderson’s
text.
in this
Cox v. Bab
case.In
pending
claims
*24
his statement
policy,
usual
but
(4th
her
Co.,
Cir.
471 F.2d
Wilcox
cock &
exist.
exceptions
do
the fact
reflects
1972),
in
v. Schlesin
and later
Goodman
(4th Cir.1978),
con
we
F.2d 1325
ger, 584
pro-
did not receive
Anderson
Miss
issue.
almost the same
sidered
job responsi-
place
in
motion
because
such an increase.
not
bilities did
warrant
Cox,
that he was
plaintiff alleged
the
In
which
any evidence
us
has not shown
She
under
unlawful discrimination
subject
to
pretext
reason was
suggests
this
of the defen-
practices
employment
the
pretext. See
jury could infer
from which
plaintiff
at 14. The
dant.
(noting
jury
that a
333 F.3d at
Bryant,
and class action
brought both individual
“the
based on
infer discrimination
could
to
proceeded
The district court
claims.
Bryant the
deny
to
any
reason
lack of
real
in a
claims
plaintiffs individual
try the
case, the defendant has
In this
job”).
advisory jury without
trial with
bench
did
why Miss Anderson
a reason
stated
class action
plaintiffs
ruling on the
first
and Miss
promotion,
receive
trial, the district
the
After
bench
claims.
it.
to controvert
unable
has
Anderson
been
individual
the plaintiffs
dismissed
court
court
that the district
opinion
are of
We
the defendant
concluding that
after
claims
judgment
summary
granting
in
did not err
discrimination.
illegal
practiced
had not
dis-
on Miss Anderson’s
to the defendants
court then
14. The district
F.2d at
promote
failure
treatment
parate
claims
class action
plaintiffs
dismissed
place claim.
any individu-
without
plaintiff,
because
represen-
claims,
class
proper
not a
al
IX.
rulings
appealed both
The
tative.
the district
appeals
Anderson
court.
this
mo-
denying
plaintiffs’
court’s decision
,
the district
we affirmed
appeal
On
she
appeal,
On
for class certification.
tion
individual
plaintiffs
court’s dismissal
court
the district
erred
argues that
at
Turning
claims.
F.2d
14-15.
next
ances similar to
plaintiffs
appeal],
[the
claims,
plaintiffs
to the
class
we noted
person,
present
prosecute
himself to
-
remanding
awkwardness of
class
representative.
the action as class
Good-
man,
court
claims
the district
where the
We remanded class claims to the dis- classes based on the defendants’ use of the trict court and instructed the district court systems. CBPS and RP3 Her claims have to hold the open docket for the class claims mooted, not been but instead have been case plaintiffs presented prop- other adjudged to be without merit. Miss against er claims the defendant. 471 F.2d Anderson has no give valid claims which at 16. her “the same interest” and cause her to Goodman, the district court denied injury” “suffer the same proposed as the plaintiffs’ motion for class certification class members she represent. seeks to grounds on the plaintiffs did not E. Freight Sys., See Tex. Motor Inc. v. comply requirements with the of Rule 23 Rodriguez,
of the Federal Rules of Civil
(1977).
Procedure.
of the district assessment, draft and partment Energy denied the testimony in which it Bradley’s testimony “from the defen- summary judgment to the granting to exclude motion from stage, and dispa- the interview individual to on Miss Anderson’s qualified dants stage,” stage to the selection interview claims disparate and treatment impact rate motion to exclude granted the but it of a class action The denial affirmed. qual- stage to the testimony pool “from the is af- respect procedure to the RP3 with court held simply, the stage.” Stated ified firmed, action as is the denial of class that not evidence did show that procedure, with respect with to CBPS have might Department Resources Human part of the CBPS exception of those preparing in the list discriminated just This action is noted above. procedure job but openings qualified keep the to the district court to remanded if might be admissible evidence statistical time, docket for a reasonable same on the of discrim- possibility show the it to tended if to determine there with instructions applicants who selecting in those ination maintain a who to plaintiff another wishes selecting and be interviewed would principles under the estab- class action inter- job among from those person re- Goodman we have Cox lished viewed. ferred to. opinion no on whether express we While PART, IN IN VACATED AFFIRMED may fail for want the class action or not PART, IN- REMANDED WITH AND we remand to typicality, or commonality STRUCTIONS. of whether question court the the district to action should be permitted or a class NIEMEYER, concurring Judge, Circuit “qualified to the respect with
proceed part: dissenting interview in stage, part and from the the interview Upon re- stage.” stage to the selection Judge pleased am to concur Widen- I with plaintiffs if mand, proper opinion well reasoned thorough er’s of Miss grievances similar those court’s affirms the district insofar as it respect discrete with a re- agree I cannot with judgment. But procedure presents of the CBPS portion if there is another mand “to determine himself, a class as prosecute, himself maintain a class wishes to plaintiff who should court representative, district action.” is main- a class action then whether decide *26 named the then and whether tainable cognizable has no plaintiff Because the class. We represent should plaintiff claim, to represent is not in a she any, if weight, as to the express opinion no her claims because either a class of others testimony or whether Bradley’s Dr. give to are, or, they if others of the typical If no representative it is admissible. merit. likewise have no others’ claims a reason- forward within so comes plaintiff raises Judge Widener problem The time, the district court should able then would, my judgment, be in Part IX calendar action from the the class strike plain- other just as well some resolved final dismissal thereof. Good- and enter a case, or her tiff, alleging his this not in man, 1332-33. it as seeking prosecute to claim and own X. case, would I As for this class action. affirm- opinion with our consider it ended above, the district Accordingly, as stated court. the district judgment of Bradley’s ing the excluding Dr. decision court’s By remanding gitimate non-discriminatory this case the district rationale was plaintiff, only pretext racially court with no we can be mere for a discriminatory inviting new claims—different from those decision. rejected in have this case—to be we agree Because I cannot with either of plaintiff of a un- filed behalf new contentions, respectfully these I dissent specified This is not the others. situation particular part majority from that plaintiffs
where a claims have been dis- opinion. deficiency, missed on a technical and we allowing
would be
another
without
I.
deficiency
to continue the case. Rath-
Rights
Under Title YII of the Civil
Act
er,
plaintiffs
we have a case where the
of 1991:
claims were dismissed because the claims
It shall
employment
be an unlawful
short,
themselves were deficient.
there
practice for an employer'
nothing
perpetuate
on remand.
—(cid:127)
(1) to fail or refuse to hire or to dis-
I
Accordingly,
respectfully dissent from
individual,
charge any
or otherwise to
remedy
Part IX and the remand
contained
against any
discriminate
individual with
Otherwise,
in Part X.
I concur in this fine
terms,
respect
compensation,
to his
con-
opinion.
ditions,
privileges
or
of employment, be-
race, color,
cause of such individual’s
GREGORY,
Judge,
Circuit
dissenting
sex,
religion,
or
origin;
national
or
part:
(2)
limit,
segregate,
classify
his
Although I agree with most of the ma-
employees or applicants
employment
jority’s analysis, I write separately because
in any way which
deprive
would
or tend
I cannot concur in
disparate impact
deprive any
individual
employment
VII(B).
analysis
There,
part
contained in
opportunities or
adversely
otherwise
af-
majority
grant
summary
affirms a
fect his status as an employee, because
judgment against Ms. Anderson on her
race, color,
of such
religion,
individual’s
disparate impact claim despite the fact
sex,
origin.
or national
produced
that she
evidence
showing sta-
(2005).
§
42 U.S.C. 2000e-2
incep-
From
tistically significant variation between the
tion, it was clear that the act covered cases
number of
apply
African-Americans who
disparate
party
treatment —where one
and the number who are successful at both
intentionally
was
against by
discriminated
the second
stages
and third
of the CBPS.
employer
race, color,
on the basis of
majority
first finds that because Ms.
sex,
religion,
or national origin.
Int.
See
Anderson’s evidence challenging the sub-
States,
Bhd.
Teamsters v. United
jective
nature of the second and third
U.S.
n.
stages of the CBPS failed to control for all
(1977) (“Undoubtedly
L.Ed.2d 396
dispa-
subjective variables potentially taken into
rate treatment
most obvious evil
account
hiring
interview and
deci-
*27
Congress had in mind when it enacted
sions, she failed to establish the causation
VII.”).
Title
prima
element of her
facie burden. Sec-
ond,
majority
However,
finds that
if
even Ms.
in the seminal
Griggs
case of
Co.,
Anderson had in fact
prima
satisfied her
424, 431,
v. Duke Power
91
burden,
facie
849,
her claims
(1971),
would fail because S.Ct.
277 Upon successfully presenting 2777. discriminatory op in S.Ct. form, in but are fair case, facie the burden then shifts prima F.3d a Jenney, 327 Peters v. See eration.” Cir.2003) (“Title (4th employer to “demonstrate that the to the 307, VII n. 17 321 job related for the challenged practice not intentional practices that prohibits in and position question consistent with disparate have a that ly discriminatory but § 42 necessity.” U.S.C. 2000e- racial business particular of a on members impact 2(k)(l)(a)(i); City see v. Peters Title VII Walls in As amended group.”). of F.2d 191 Cir. burg, 895 disparate impact recognizes explicitly now 1990)(“[T]he 2000e-2(k). must then demon employer § Section claims. U.S.C. a 2000e-2(k) ‘any given requirement [has] that strate as follows: states in relationship employment to the manifest (1)(A) practice employment An unlawful to avoid a question,’ finding order impact is established disparate on based discrimination.”). Finally, if the em even if—only subchapter this under that the showing makes a ployer sufficient (i) demonstrates complaining party a related,” “job practice is challenged em- particular a respondent a 'uses may prevail by showing the plaintiff exis dispa- causes a practice that ployment equally an effective tence of alternative race, color, on the basis impact rate im disparate practice that eliminates sex, and the origin or national religion, adopt to and the refuses pact employer that the to fails demonstrate respondent § this alternative. U.S.C. 2000e- job related challenged practice is 2(k)(l)(a)(2); Chicago, City see Allen with and consistent question (7th Cir.2003)(“If 311-12 necessity; or business showing, plaintiffs defendant makes this (ii) party makes the complaining demonstrating prevail can still subpara- described demonstration exists, practice employment alternative (C) an alternative respect with graph it.”). adopt and the defendant refuses respondent and the employment practice alternative em- adopt such refuses II. ployment practice. majority, I believe Contrary to the 2000e-2(k). §
42 U.S.C. satisfy prima in fact Anderson did Ms. treat analysis disparate to its Similar im- disparate for a Title VII facie burden laid out a ment, has Supreme Court Therefore, I will address claim. each pact im disparate shifting scheme burden in turn. analysis step of v. Fort Worth See Watson pact actions. 977, 994-95, Trust, Bank U.S. A. (1988). 2777, 101 Under L.Ed.2d 827 S.Ct. earlier, step first estab- As noted burden-shifting disparate impact case is the identifica- lishing prima a facie
scheme, plaintiff is for the step the first Here, or specific practice. of a policy tion disparate case of prima facie establish the second challenges To Ms. Anderson id. at impact. See Competency Based stages of the third showing, facie prima this make (“CBPS”)1 having a as (1) Posting System prac identify specific policy must African-American impact (2) disparate tice, disparity ex demonstrate that specifically (3) employees. Ms. ists, relationship a causal establish decision-making subjective 994-95, challenges the two. See id. between *28 12, #9, the CBPS. challenged steps # # 13 of Specifically, Ms. Anderson 1.
278
stage.
majority
in
“as-
entail an
panel subjectively
involved
each
interview
rat-
ing qualified
arguendo”
by challenging
sumes
candidates across a number
subjective
criteria.
stage
these
Anderson identified a
The second
stages Ms.
a screening stage,
applications
where the
specific employment practice.
applicants
who are found to meet the
Watson,
In
the Court addressed the is-
requirements by
Human
minimum
Re-
disparate impact analysis
sue of whether a
department
sources
are forwarded to the
applied
subjective
cri-
properly
could
be
manager of the department
open-
with the
Watson,
989,
teria.2 See
487 U.S. at
ing.
person,
That
by
either
themself or in
There,
S.Ct. 2777.
the Court held that
others,
conjunction with two
then screens
“subjective
discretionary employment
or
all
applications
competen-
with “core
practices may
analyzed
be
under the dis-
(teamwork,
leadership,
cies”
communica-
parate impact approach in appropriate
tions, employee development, business re-
991,
cases.” Id. at
tors such case, making the making precisely while those has in this tive decision Similarly, third by in the second system pervaded as a the decisions effects same to were instructed the CBPS stages discrimination, intentional impermissible according to certain candidates evaluate why pro- to Title it is difficult see VII’s showed applicants the whether qualities, discriminatory actions against scription was guideline' qualities the any aptitude 990-91, 108 apply.” not Id. at should After subjective entirely evaluation. an clear focus of the Wat- 2777. The S.Ct. mea- truly quantify or all, one how does to which opinion degree is not the son or “communications” “teamwork” sure unfettered, but subjective discretion is subjective assess- making wholly without objective and fact that both instead the ment? can have subjective criteria deleterious cases attempt distinguish In its from indistinguishable are effects that Rose, I that believe such as Watson discriminatory practices. intentionally level majority overstates the the the reason the Court conclud- That was this case present in which the discretion discretionary em- subjective or ed “that Focusing process. the cabined may analyzed un- practices be ployment language describ- Court’s on the Watson in disparate impact approach der as employment practices subjective ing ’ cases.” Id. at appropriate and as an “undis- discretion” “unchecked 2777. S.Ct. subjective decision system of ciplined majority argues that be- making,” challenged I that Because believe in was not this case cause the discretion subjective in undisputably are practices unfettered, holdings Watson nature, apply I see no reason not ma- here. The applicable not Rose are case, and find that this rule Watson support for this jority finds employ- specific identified a Ms. Anderson makers were that the decision the fact practice. ment function- core and to consider instructed deci- making when their competencies al B. However, majority’s ’focus on sions. describing language
the Watson Court’s required to show was next Ms. Anderson as “un- subjective practices employment challenged a causal nexus between and as “undisci- discretion” checked The statute disparity. practice and subjective decision system of plined demon- plaintiff itself mandates The crux of the misplaced. is making,” particular “uses a employer strate that im- “disparate is Watson decision dispa- that causes practice employment ap- principle no less analysis is pact 2000e-2(k); § see impact.” 42 U.S.C. rate crite- subjective employment plicable to Atonio, 490 Packing Co. Cove Wards objective or standardized ria than 642, 657, 104 L.Ed.2d 109 S.Ct. U.S. case, a facial- because either “[i]n tests” (1989)(“a plaintiff does Title VII adopted dis- practice, without ly neutral disparate impact simply make out a case intent, may have effects criminatory line,’ that, there ‘at the bottom by showing intentionally from indistinguishable force. As in the work racial imbalance is Watson, 487 discriminatory practices.” matter, must demon- general Later U.S. at specific of a application it strate that re- the Court then opinion, the Watson has employment practice that particular an em- or stating peated position, “[i]f this *30 280 disparate impact compared
created the under at- view was to those selected for tack.”)- appointment. J.A. 1645. matter, recognized
As an initial
it is well
this,
Despite
the district court concluded
may
employed
that statistical evidence
be
majority
and the
concludes that because
disparate
to show the exis-
impact cases
Ms.
statistical
Anderson’s
evidence failed
disparity.
City
tence of a
See New York
may
control for all variables that
have
Beazer,
568, 584,
Transit Auth. v.
impacted the decisions
at the chal-
made
1355,
(1979);
99 S.Ct.
have
Further,
position.
all candi-
plain-
posted
for the
Supreme Court formulations
stage
three
im- dates who received
interview
disparate
in Title
burden
VII
tiffs
Watson,
only minimally qualified
where the were
case
pact case.
were also found
subjective prac-
question, but
challenge to
faced a
Court
*31
department manager
the relevant
to be
tices,
plaintiff
that the
required
the Court
applicants.
all
Yet
degree
qualified
suffi-
the most
of
of a kind and
“offer evidence
this,
despite
Bradley
in
Dr.
found a statisti-
practice
question
to show that
cient
of
cally significant under-representation
for
applicants
the exclusion of
has caused
comparing the
of their mem- African-Americans when
jobs
promotions because
or
pools to the successful candidates
group,”
impor-
applicant
in
bership
protected
a
stage.
have
at the end of each
that
its formulations
tantly noted
dis-
“consistently stressed that statistical
facts, I am at a loss to
Given these
sufficiently substantial
must be
parities
majority
understand how the
finds that
an inference of causa-
they
that
raise such
fail to
that
Ms. Anderson’s statistics
show
Watson,
at
108 S.Ct.
tion.”
487 U.S.
applicants
in
select
for
stages
question
Albemarle, the
Similarly, in
Court
2777.
pattern signif-
hire or
a racial
promotion in
to show “that the
required
plaintiff
icantly
pool
from that of the
of
different
applicants for hire
question
tests in
select
present more
applicants. These statistics
signifi-
pattern
in a racial
promotion
or
just
disparity Westinghouse’s
a
than
pool
of
cantly
from that
different
force;
that the
they present evidence
work
Albemarle,
at
applicants.”
U.S.
the exclu-
challenged stages have caused
Dothard,
2362;
also
see
S.Ct.
of their
sion of African-Americans because
(“[T]o
a
establish
at
protected
in a
class. And this
membership
discrimination,
plain-
of
a
prima facie case
evidence,
of the nature of the
by virtue
facially
that the
neutral
only
tiff need
show
itself,
for the ma-
hiring process
controlled
question
applicants
select
standards
jor
hiring process
in the
that could
factor
discriminatory pat-
significantly
in a
hire
for, namely
qualifica-
that of
be controlled
tern.”).
despite the fact that
example,
tion. For
candi-
only
qualified
three
the most
stage
that Ms. Anderson
opinion
I am of the
interviewed,
Bradley
Dr.
found
Bradley’s
dates are
because Mr.
satisfied her burden
under-repre-
African-Americans were
testimony is sufficient
show
actually
of those who
sented
the class
question
applicants
select
for hire
stages
interviewing.
after
signifi-
appointments
received
pattern
in a racial
promotion
no
this court is under
pool
recognize
of
I
cantly
from that of the
different
plaintiffs’ statis-
fact,
obligation to “assume that
the district court rec-
applicants.
Watson, 487
tical evidence is reliable.”
Bradley’s analysis
Dr.
demon-
ognized that
However,
996, 108
2777.
variation U.S. at
S.Ct.
“statistically significant
a
strated
a
that there is
statis-
party
a
shows
number of African-Americans where
between the
of
tically significant under-representation
who are suc-
apply
who
and the number
successfully completing
African-Americans
step
and third
of
cessful at both the second
subjective stage
hiring-
of a
challenged
12228. As the
process.” J.A.
the CBPS
Af-
qualified
a number of
process, despite
up,
is set
all candidates who
process
CBPS
candidates,4 I
to see
fail
pos-
rican-American
process
stage
made it to
two of
qualified applicants.
among the most
stage
to be
Especially
third
where all Afri-
at the
were considered
interviewees
can-American
pur-
disparate impact
has and continues with its
how an
of causation
inference
analysis. According
majority:
facie
to the
establishing
prima
case
poses
shown.
disparate impact has not been
question
proffered
is whether
faulting Ms. Anderson
Additionally, by
circumstantial evidence of discriminato-
variables,
controlling
not
for certain
ry impact
satisfy
is sufficient
faulting her for
majority
is in essence
Douglas
McDonnell
framework
controlling for the exact factor that she
proof....
this framework
Under
challenging
causing
disparate
as
here
first
fa-
prima
must
establish
subjective aspects
stages
impact
Then,
cie case of discrimination.
—the
majority states that
two and three. The
respond
defendant must
with evidence
in the inter-
presentation
such as
“[f]actors
legitimate,
that it acted with a
nondis-
*32
view,
questions, de-
answers to interview
criminatory reason.
If the defendant
meanor,
in
ability
and
demonstrated
the
showing,
plaintiff
makes this
then the
that
in
interview” are factors
entered
the
“present
prove
must
evidence to
that the
decisions,
hiring
ultimate
and that there-
pre-
defendant’s articulated reason was
any
fore in
to show causation
order
statis-
text for unlawful discrimination.”
tical evidence
control for these fac-
must
noting
Ante at 267. After
that under
However,
tors. Ante at
these are all
Douglas
McDonnell
the ultimate
burden
evaluations,
subjective
exactly
and
what
proving intentional discrimination remains
majori-
challenging.
Ms. Anderson is
The
plaintiff, majority
on the
the
finds that Ms.
ty points
did
out that Ms. Anderson
Anderson failed to
that Westing-
show
account for the evaluation of core and
legitimate nondiscriminatory
house’s
rea-
competencies.
again,
functional
But
the
pretext
son was mere
for intentional dis-
competencies,
evaluation of the core
crimination.
competencies,
relevant
functional
is
conclusion,
reaching
majority
In
this
largely
subjective
evaluation. While
ignores
Supreme
in
Court’s decision
faulting
controlling
Ms. Anderson for not
Griggs,
impact
square-
of which was to
factors,
majority
these
never ex-
ly reject
in
the notion that
order to state a
plains how such control would even be
for employment
claim
discrimination the
earlier,
possible.
I questioned
As
how
claimant
a showing
must make
of intent.
does
or
quantify
one
“teamwork”
“leader-
Griggs, “good
As the Court stated in
intent
ship,” such
it
that
can be controlled for in
discriminatory
or absence of
intent does
very
setting.
statistical
nature of
employment procedures
not redeem
or
subjective
challenged
process
makes
testing
operate
mechanisms that
as ‘built
such
impossible.
control
in
minority groups
headwinds’ for
and are
such,
As
identi-
because Ms. Anderson
job
measuring
capability.”
unrelated to
specific practice,
fied a
demonstrated the
Griggs,
at
401 U.S.
III.
discriminatory
the defendant had
intent
Despite its belief that Ms. Anderson motivation.
v.
See Watson
Fort Worth
Trust,
satisfy
burden,
977, 986,
failed to
prima
facie
Bank and
(1988).
majority
arguendo
assumes
that she
101 L.Ed.2d
S.Ct.
contrast,
By finding
that Ms. Anderson had failed
impact seeks
ferret
disparate
Westinghouse’s
that are the
that
employment practices
to show
articulated
out
of. intentional dis-
equivalent
pretext,
majority
in es-
functional
reason
they
significant
because
cause
crimination
that Ms.
had failed
sence held
protected groups,
but
However,
adverse effects
prove
intent.
the context
discriminatory motive.
have no deliberate
claim,
disparate
impact
of her
Ms.
986-87,
impor-
2777. It is
Id.
obligation
Anderson was under no
Supreme
that while the
Court
tant to note
prove intent. As the statute itself makes
burden-shifting schemes
has enunciated
clear,
employer
where the
demonstrates
disparate
disparate
for both
treatment
job
challenged practice
related
that
critical differ-
possess
the schemes
impact,
question
and consistent
prevents
applying
one from
ei-
ences
necessity,
may
with business
context. See Lex K
ther test
the other
prevail by showing
still
the existence of an
Larson,
Employment Discrimination
equally
practice
effective
alternative
(2d
2004) (“The principal
§
ed.
8.01[2]
disparate impact
eliminates the
and that
the McDonnell
category of suits to which
adopt
employer
refuses
alter-
is that
Douglas
apply
formula does not
2000e-2(k)(l)(a)(2).
§
native.
42 U.S.C.
Griggs
the 1971 case of
exemplified
*33
require
Nowhere does the statute
a show-
Co.”).
noted in
Duke Power
As the Court
ing
pretext,
pretext points
because
to
Watson,“[t]he
char-
factual issues and the
Therefore,
majority’s applica-
intent.
inevitably
of the evidence are
some-
acter
tion of
such burden to Ms. Anderson
plaintiff
what different when the
is ex-
is error.
empted
prove
from the need to
intentional
Watson,
discrimination.”
IV.
2777.
108 S.Ct.
more than a mere
Disparate impact is
Green, 411
Douglas Corp. v.
McDonnell
smoking out intentional discrim-
method of
1817,
burden definition, capture. By dard fails in intentional dis problem proof only practices attacks those standard McDonnell crimination cases.5 Under the employ- disparate impact a on the have formula, Douglas shifting after burden by protected opportunities ment of classes case, prima establishes a facie plaintiff are not practices Title when those VII then must shift to the em “the burden justifi- legitimate a business supported legitimate, non ployer to articulate some end-goals can be cation or where the same employee’s discriminatory reason manner. achieved a less deleterious rejection.” employer artic Id. Should the nation, prac- a struggles of this Given reason, must plaintiff such a ulate impact on disparate that has a adverse tice show opportunity be afforded an then class, yet has no either protected merely reason was the articulated justification, or can be discriminatory legitimate deci business racially for a. pretext manner, is not 804-05, achieved in a less harmful 1817. sion. Id. at Larson, necessity recognizing the in most instances Employment Lex K. Discrimina- See evidence, are, (2d 2004) laid ("Employers reliance on circumstantial § ed. 8.01[1] tion whole, evi- proof under which direct sophisticated profess down rules of too on the discriminatoiy neces- intent is not paper dence of prejudices on or before witnesses. their case.”). prima sary making of a facie Douglas, to the Supreme in McDonnell Court allow to stand. practice that we should recognition by society
Ultimately, this is effects, their practices,
that these To continue right.
harmful in their own forward, society any such
moving healing under Title
practices attacked VII must be equal spent to that vigor
with a level of
combating intentional discrimination. today, majority has holdings
With its must plaintiff
made the mountain a climb claim disparate impact
to state a harder majority in only
surmount. Not has the prove here to required plaintiff
essence certainty, they
causation to a scientific in-
have also forced the to show juris- despite statutory and
tent the clear
prudential contrary. to the As I dictates results,
cannot concur either of these with respectfully
I dissent. *34 BRYSON,
In Re: Leland M.
Claimant-Appellant. America,
United States of
Plaintiff-Appellee, Bryson, Jr., M. Defendant.
William
No. 03-1501. Appeals,
United States Court of
Fourth Circuit.
Argued: March 2005. 6,May
Decided: