Fair v. NorrisFair v. Norris
Scott P. Richardson, Little Rock, AR, for appellee.
Before MELLOY, SMITH, and BENTON, Circuit Judges.
MELLOY, Circuit Judge.
Plaintiff Viola Fair, an African-American woman, brought several employment-discrimination claims against the Arkansas Department of Correction and some of its officers (collectively, “the ADC“) for events relating to the ADC‘s handling of her application for an internal promotion. The district court1 granted the ADC‘s motion for summary judgment on all of Fair‘s claims. Fair appeals only the grant of summary judgment as to her claim under Title VII of the Civil Rights Act of 1964,
I. BACKGROUND
We recount the relevant evidence in Fair‘s case below. Because this is an appeal from an adverse grant of summary judgment, we present the evidence in the light most favorable to the nonmoving party. Gilmore v. AT & T, 319 F.3d 1042, 1046 (8th Cir.2003).
Fair graduated from the University of Arkansas at Pine Bluff in 1995, with a bachelor‘s degree in criminal justice. That same year, the ADC hired her for the entry-level position of Administrative Assistant II at the standard pay level for the job, Grade 17/Level I. Her formal performance reviews were strong. While working at the ADC, she attended graduate school part-time at the urging of a supervisor, Ray Hobbs.2 Fair eventually earned a master‘s degree in social work from the University of Arkansas at Little Rock in the spring of 2003. Shortly after obtaining this degree, Hobbs informed her of job vacancies in the ADC‘s Internal Affairs Division, told her that she would be a strong candidate, and encouraged her to apply. Fair applied for two vacant, identical positions as an investigator for the ADC‘s Internal Affairs Division. The job posting stated that the salary for the position was $23,768 annually, a Grade 18/Level I pay level. In her application, Fair listed her educational history (including her master‘s degree) and her work experience, and she attached copies of relevant training certificates, scholastic transcripts, and letters of recommendation. Fair did not state in her application or attached materials that she harbored reservations about accepting the position at the advertised level of compensation.
The ADC claims to have received an application from Fair for only one of the positions, and it delivered the application to Tammy Luckett, the Unit Human Resources Manager and employee responsible for “pre-screening” the applicants. In the pre-screening process, it was Luckett‘s duty to perform an initial review of the applications and award standard numbers of “points” for applicant qualifications above the minimum required for the posted job opening. The Internal Affairs investigator position required a bachelor‘s degree “in criminal justice or a related field,” which Fair possessed. Fair‘s additional master‘s degree in social work entitled her to five pre-screening points for education above the minimum job requirements, but Luckett did not award the points to Fair. Luckett claimed she failed to award the points because she mistakenly believed that social work was not a “related field” within the meaning of the job requirements. There is no evidence that Luckett knew Fair‘s race, and Luckett made the same error in pre-screening the application of Cynthia Tillman, a white woman who was also seeking an investigator position in Internal Affairs. Tillman also possessed a master‘s degree in social work, and Luckett also failed to grant Tillman five points for her advanced educational qualifications.
After conferring with a lawyer, she asked that the ADC remedy the situation by hiring her as an investigator at the maximum pay level for the position (Grade 18/Level IV), including retroactive pay and benefits from the date the position was filled. Under the state compensation scheme, the Level IV pay rate is reserved for “Exceptionally Well-Qualified” candidates. Such a pay rate for an employee entering a new position would require approval from the Arkansas Office of Personnel Management, the state‘s Chief Fiscal Officer, the Committee on Uniform Classification and Compensation, and the Arkansas Legislative Council. According to Kay Barnhill, State Classification and Compensation Manager for the Arkansas Department of Finance and Administration, “level IV special entry rates are rarely sought and rarely granted,” as the state generally reserves Exceptionally Well-Qualified status for “professional positions . . . for which pay level I may not provide a salary that is competitive with the private marketplace.” Barnhill noted that it was “highly unlikely” that her office would have approved level IV compensation for Fair, and she stated that the Office of Personnel Management probably would have denied that entry rate if there were other qualified applicants who would have accepted the regular rate. Fair admits that she did not expect to receive Grade 18/Level IV compensation for the position, but nevertheless made the aggressive request with the hope of receiving an offer for some increase in compensation above Grade 18/Level I.
In a memo dated August 25, 2003, Luckett informed Human Resources Administrator Kevin Murphy that she had mistakenly failed to award five points to Fair during the pre-screening process. With the five points, Fair would have had the highest score of the remaining applicants.3 Murphy contacted the hiring authority for the Internal Affairs position, told him that there was a new top applicant, and received confirmation that the hiring authority wished to employ Fair as an investigator.
Murphy and Richard Rodgers, the Equal Employment Opportunity/Grievance Officer for the ADC, contacted Fair to arrange a meeting the next day. They did not permit Fair‘s attorney to attend. Fair met as scheduled with Murphy, Rodgers, and Nedenia Blair, an African-American employee at the ADC. Rodgers explained the mistake in the pre-scoring process and offered Fair the position at the Grade 18/Level I compensation scale. This compensation package included the standard six-percent pay raise for a one-grade intra-departmental promotion, which would be retroactive to the date she would have been hired absent Luckett‘s mistake. Fair asked for higher pay, and Murphy told her he was not authorized to go above the standard increase. Fair pointed out that Murphy could request “Exceptionally Well-Qualified” status for her from the proper state agencies, and Murphy became upset and struck the desk. Fair then said that, given her exceptional qualifications, she would not accept the position unless she received more than the standard pay raise.
Later that day, Rodgers sent Fair a memo memorializing the meeting. The memo noted that Fair was offered and had refused to accept the job for which she had applied on the ground that she wanted higher compensation. Because she had been offered the promotion, Rodgers noted that the basis of her grievance had been resolved; now that her dispute was merely a matter of compensation, it was no longer subject to the ADC‘s grievance procedures. Therefore, he dismissed the grievance.
The ADC moved for summary judgment, arguing that Fair had not suffered any adverse employment action and that Fair had not shown that her initial non-selection for the position was anything but a mistake. The district court granted the motion as to each of Fair‘s claims. With regard to her racial-discrimination claim under Title VII, the court found that even “[a]ssuming Fair has presented sufficient evidence to satisfy her prima facie burden” of proof under Title VII, she had not produced evidence to contradict the ADC‘s claim that its initial failure to promote Fair was a result of Luckett‘s mistake rather than discrimination. Thus, because the ADC had presented a legitimate, non-discriminatory reason for not initially promoting Fair, and because Fair lacked any evidence that this articulated reason was a mere pretext for discrimination, the court found that summary judgment for the ADC was appropriate.
II. DISCUSSION
We review the district court‘s grant of summary judgment de novo. Wheeler v. Aventis Pharm., 360 F.3d 853, 857 (8th Cir.2004). In doing so, we affirm only when “the evidence, viewed in a light most favorable to the non-moving party, demonstrates that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law.” Gordon v. Shafer Contracting Co., 469 F.3d 1191, 1194 (8th Cir.2006) (quotation omitted). In the employment-discrimination context, a plaintiff may avoid summary judgment if she presents evidence “sufficient for a reasonable factfinder to infer that the employer‘s decision was motivated by discriminatory animus.” Dionne v. Shalala, 209 F.3d 705, 709 (8th Cir.2000) (quotation omitted).
We limit our discussion to the district court‘s grant of summary judgment on Fair‘s Title VII claim for racial discrimination because she failed to exhaust administrative remedies with regard to her gender discrimination claim, see note 2, supra, and waived any arguments related to her other claims by failing to raise them in her opening brief. See Harris v. Folk Constr. Co., 138 F.3d 365, 367 n. 1 (8th Cir.1998) (“[B]y failing to assert grounds for reversal of these orders in his briefs, [the appellant] is deemed to have waived these issues on appeal.“).
Fair presented no direct evidence of discrimination, and therefore the district court applied the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under that framework, the plaintiff must establish a prima facie case of discrimination; if she does so, the burden of production shifts to the employer to articulate a “legitimate, nondiscriminatory reason” for the employment decision. Ross v. Kansas City Power & Light Co., 293 F.3d 1041, 1046 (8th Cir. 2002). If the employer presents such a reason, the burden returns to the plaintiff to present evidence that the reason was a pretext for intentional discrimination. Id. Fair argues that the district court failed to recognize evidence that the purported mistake in pre-scoring her application may have been pretextual.
We need not reach the question of pretext in this case, because Fair was not ultimately rejected for the promotion. Therefore, we find that Fair failed to present a prima facie case of discrimination. See Ross v. Kansas City Power & Light Co., 293 F.3d 1041, 1046 (8th Cir.2002) (listing the four elements of a prima facie case for the failure to promote under Title VII, one of which is a showing that the plaintiff was rejected for the position she sought). It is true that the ADC initially failed to hire Fair for the position she sought. Had the ADC not taken corrective action and offered Fair the job after reviewing her grievance, she may have been able to present a prima facie case of discrimination. Once the ADC made its subsequent offer of the promotion with retroactive pay and benefits, however, it had no longer rejected Fair for the promotion. The basis for Fair‘s initial grievance was the ADC‘s failure to select her for the position; the ADC acted upon this grievance, discovered that it had erroneously rejected her for the promotion, and attempted to right its prior wrong by offering her the position she wanted. Even if there were flaws in the manner in which the ADC handled Fair‘s grievance, its ultimate decision to offer the promotion to Fair is the kind of extrajudicial corrective action envisioned by Congress when it passed Title VII. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (noting “Congress’ intention to promote conciliation rather than litigation in the Title VII context“).
The compensation issue also lacks the necessary factual support to survive summary judgment. While Title VII does prohibit race-based wage discrimination,
In sum, Fair sought a promotion. The ADC ultimately offered her the promotion at the advertised salary. Fair turned it down. Absent additional facts not present in the record before us, no reasonable factfinder could conclude that Fair is entitled to relief under Title VII.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.