Lead Opinion
Nikоlas Malacara, a Hispanic male, began working for the City of Madison in 1987 as a seasonal maintenance employee in the City’s Parks Division. In 1989, he was given a permanent position as a Maintenance Worker I in the Water Utility Supply Section where he remains today. During this time, Malacara requested cross training in other jobs within the Water Utility. All cross-training requests are handled by the employee’s supervisor, in this case Earl Cheek. Malacara claims that all his requests were denied. Then in 1996, he applied, but was not hired, for a Maintenance Mеchanic I position.
Malacara filed suit claiming that he was racially discriminated against by not being allowed to cross-train and by not being hired for the Maintenance Mechanic I position, in violation of 42 U.S.C. §§ 1981 and 1983 and Title VII. The district court granted a motion for summary judgment finding that no reasonable jury could conclude by a preponderance of the evidence that the defendants discriminated against Malacara on the basis of race. Malacara appeals that decision.
Because Malacara did not present direct evidence that he was discriminated against by defendants’ failure to promote him or provide him training in maintenance, the district court used the burden shifting formula established by McDonnell Douglas Corp. v. Green,
Once the prima facie case is established, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. Miranda, at 1015. The burden of persuasion remains with the plaintiff at all times. St. Mary’s Honor Center v. Hicks,
The district court determined that the defendants met their burden of production and did not address whether Malacara established a prima facie case. Where the defendant has met its burden, it is irrelevant whether a prima facie case has been made. Sample v. Aldi,
Malacara argues that Tim Sullivan received opportunities to cross-train that he did not. Sullivan, a white male, was hired in 1994 as an hourly employee in the Suрply Section. Specifically, Malacara asked for cross-training in the Maintenance Section. In 1994, Cheek lent Sullivan to the Maintenance department instead of Mala-cara, citing staffing shortages and his preference to move hourly employees.
Cheek considered Sullivan’s transfer as a temporary employee loan, not a training transfer. He testified that it was his general practice to transfer hourly employees rather than permanent employees. Cheek loaned Sullivan, an hourly employee, rаth
Other employees were denied cross-training as well. Theresa Peters verbally requested cross-training and was told that “it was not a good time to do cross-training.” Frank Rane and Jack Henderson, both white employees, were denied their requests in writing. Further, defendants established that Malacara did in fact receive cross-training on at least two occasions, including meter-reading in the Supply Section and training in the Distribution Section. There is no evidence that the plaintiff was treated differently than similarly situated emplоyees in his request for cross-training nor is there any evidence that race was a factor in those decisions. The district court properly dismissed Ma-lacara’s cross-training claims.
Malacara next argues that defendants failed to promote him to the position of Maintenance Mechanic I because of race. Chuck Englehart and Gail Glasser conducted the interviews of the certified candidates. They used the same questions and topic material for each candidate. Each interview began with a description of the duties of the position. Again, we will only discuss whether the defendants established legitimate, nondiscriminatory reasons for not promoting Malacara.
First, the defendants’ decision was based on which candidate they believed to have the most relevant experience for the duties of Maintenance Mechanic I position, not on race. The Maintenance Mechanic I position required more advanced skills than Malacara possessed. Malacara’s experience involved janitorial and lawn care wоrk. Much of the experience Malacara indicated on his application included informal jobs for his family or friends and described them as being “sporadic.” He failed to provide in his application the information necessary for the defendants to verify these experiences. The defendants determined that while he had some related experience, he lacked the direct experience that Sullivan possessed.
Sullivan provided the information necessary to verify his work history. He had held numerous positions relating tо maintenance. He worked in the service and parts departments for several golf cart manufacturers with duties which included tune-ups and major overhauls of golf carts and utility vehicles. While working for the Water Utility, Sullivan maintained fans and pumps, heating and ventilating equipment, repaired chlorinators and fluorida-tors, valves and other equipment in the pump houses, and removed, installed, and repaired well pumps and booster pumps. These are all tasks that were part of the primary duties listed for a Maintenance Mechanic I and which could be verified.
Englehart and Glasser found that Sullivan provided a more accurate, complete understanding of the responsibilities and expectations of a Maintenance Mechanic I than Malacara did during his interview. Sullivan exhibited a better understanding that the responsibilities included repair and maintenance of in-unit wells and buildings. Without personal knowledge of Sullivan’s responses, Malacara can not dispute the defendants’ opinion that Sullivan had a more accurate understanding than him.
Finally, defendants argue that their pri- or experience with each of the candidates and the work histories within the Water Utility played an important role in their decision. Malacara had several instances of unsafe conduct that violated the Water Utility Safety policies. Malacara had been seen by Cheek riding on top of a lawn tractor’s backrest. He was told to sit
The defendants determined that Sullivan was the more qualified candidate for the position and went on to say that had Sullivan not taken the job, the position would have been offered to Peters and then Henderson, and if they had declined, they would have interviewed a new pool of applicants.
Defendants established legitimate, nondiscriminatory reasons for not hiring Malacara. An employer may hire or refuse to hire an employee “for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for discriminatory reason.” Bruno v. City of Crown Point, Ind.,
The district court corrеctly found that Malacara failed to satisfy his burden on summary judgment and properly granted judgment for the defendant on both his failure to cross-train and failure to hire claims. Affirmed.
Dissenting Opinion
dissenting in part.
Although I agree with my colleagues’ assessment of Malacara’s failure to train claim, I must disagree with their conclusion that no reasonable juror could find that defendants failed to promote Mala-cara on the basis of race. In reviewing Malacara’s claims, the majority focuses solely on the issue of whether defendants established a “legitimate, nondiscriminatory rеason for not promoting Malacara.” Since both parties already agree that defendants met their burden, which is merely one of production, the proper focus should be on whether or not Malacara has presented sufficient evidence to create a genuine issue as to whether or not the proffered reason is pretextual. Instead of doing this, however, my colleagues rely solely on defendants’ version of the evidence and give little or no credence to Malacara’s version.
The line which purрorts to distinguish the questions that are to be examined by a trier of fact from those that are to be decided by a judge can at times be difficult to discern. Walking this line becomes particularly problematic for the judge contemplating a motion for summary judgment involving claims of discrimination in the workplace, as is the case here. Taking note of this difficulty, the Supreme Court has recently offered guidance in the form of Reeves v. Sanderson Plumbing Prods., Inc., — U.S. -,
The Reeves Court focuses on the plaintiffs burden to create a genuine issue as to pretext. The Court’s decision reinforces the notion that when considering whether sufficient evidence exists to submit a question to the jury, a court need look only to the evidence and reasonable inferences that tend to support the case of the non-moving party. “That is, the court should give crеdence to the evidence favoring the
In his position as Maintenance Worker I, Malacara worked under the direct supervision of Earl Cheek (“Cheek”) and was responsible for basic maintenance as well as maintenance and repair of grounds-keeping equipment. Malacara has experience in maintenance and repair and hoped to one day obtain a position as a Maintenance Mechanic I with the City. Malacara informed Cheek that he would like to obtain job assignments and training in the Maintenance Section, so that he could gain the experience needed to qualify for a permanent job as a Maintenance Mechanic. Malacara also made his desire to work as a Maintenance Mechanic known to the Division Operations Manager, George Holden (“Holden”). Holden discouraged Ma-lacara and told him that the move he was hoping to make was a very big one and that “that just wasn’t done.” The union steward, Alice Grob (“Grob”), testified that minorities at the Water Utility Division are given more discipline and fewer opportunities for advancement, while less qualified, white employees are provided ample training opportunities and career guidance.
In April 1994, the City hired Tom Sullivan (“Sullivan”), a white male. Initially, Sullivan was assigned to grounds-keeping and worked with Malacara. In mid-1994, Sullivan was given a work assignment in the Maintenance Section. In mid 1995, Sullivan was given a permanent position as a Mаintenance Worker I in the Water Utility Division, Distribution Section, but was loaned back to the Maintenance Section where there was a staff shortage. The union contract prohibited the City from hiring hourly employees to fill in permanent positions. Since Sullivan had been an hourly employee, Malacara voiced his objection to Sullivan’s hiring.
In the spring of 1995, the permanent position for Maintenance Mechanic I opened and both Malacara and Sullivan applied. The minimum qualifications for the position included: (1) three years exрerience in skilled building and mechanical repair work and (2) knowledge of and ability to perform skilled building and maintenance repair tasks. The parties dispute the level of experience each applicant had. Malacara had more formal education in electronics, home and auto repair, plumbing and welding than Sullivan. However, in the Water Utility Division, he spent most of his time on the lawn crew, from 1989 to the time he filed suit. Malacara says he performed some maintenance, and appellees admit that he received some training in meter reading. Appellees discount Malacara’s experiences before joining the City as work for family and friends and sporadic home and auto repair. Sullivan had prior experience working on golf-carts and experience with the Water Utility Division in the Maintenance Section. During his time with the City, he performed some grounds-keeping tasks and did some work at Water Utility buildings.
Judy Hughes (“Hughes”) of the City’s Human Resource’s department screened all applications for basic minimum qualifications, and then conducted a series of tests and compiled a list ranking all remaining applicants for the Maintenance Mechanic I position (“certification process”). This process was done whenever a new position became available. Under the City’s hiring policy, candidates were in
As for Malacara’s performance record on the job, he was never formally disciplined for any of the three separate incidents Glasser and Englehart say colored Malacara’s record. He was never told his work was deficient or that he had committed a safety violation. Malacara explains that he sat on the top of the backseat of the tractor because the grass he was cutting would get in his eyes, but after he received safety goggles, he discontinued the practice. Further, Malacara claims that Glasser laughed about his incident with the bus and that Englehart left the well unit door open that he hit with the City truck. Additionally, while Englehart had formed the impression that Malacara did sloppy work when they were co-workers, Cheek, Malacara’s immediate supervisor, reported favorably on Malacara when asked for an evaluation of his work. Glas-ser contends that Cheek told her otherwise.
In addition, Malacara reported to the City’s affirmative action office that he had been discriminated against. Grob testified that a worker in that office, Nancy Curtis (“Curtis”), wondered why Malacara was not hired even though Curtis told Mala-cara he had not suffered from discrimination. However, Curtis informed Grob that the real reason Malacara was not hired was because Glasser believed Malacara was the kind of Hispanic other Hispanics did not want in their community. When Malacara confronted Glasser about the hiring decision, she responded that the best candidate had been hired. She did not inform Malacara that he was not qualified or that he had committed safety violations. Malacara later received a memo from Glasser detailing his perceived deficiencies.
While these facts do not all necessarily work in Malacara’s favor, they certainly offer a different picture of the case than that presented in the majority opinion. The real issue in this case is whether defendant’s proffered explanation for not promoting Malacara is pretextual. When examining this issue with Malacara’s facts and only defendants’ uncontradicted evidence in mind, as Reeves says we must, it becomes clear that a genuine issue does exist.
Pretext can be established “by proving one of the following: ‘(1) [defendant's explanation had no basis in fact, or (2) the explanation was not the real reason, or (3) at least, the reason stated was insufficient to warrant’ ” the adverse job action. Hughes,
In my view, the facts surrounding this issue present a text-book example of an issue that should proceed to trial — it is classic “he said, she said.” This time, however, defendants are the ones with the self-serving affidavits and the plaintiff has the objective evidence. Appellees argue that Mаlacara’s reliance upon the objective evaluation measures, which rank Malacara higher than Sullivan, is misplaced. Yet, the test scores and eligibility list rankings, while not binding on Glasser and Engle-hart when they made their decision, are certainly probative here. Regardless of whether Glasser and Englehart were
Furthermore, appellees maintain that Sullivan worked eighteen months in the Maintenance Division getting “on-the-job” experience. However, there is testimony that Sullivan was just a helper and was not really working as a maintenance mechanic. This calls into question whether the eighteen month stint on loan to the Maintenance section was as valuable, for Sullivan, as appellees claim. Of course, Malacara maintains that this experience is exactly what he had requested on several occasions and had been denied the opportunity to get that experience. Moreover, he actually did obtain some experience performing tasks similar to those required by a Maintenance Mechanic I employee. Ap-pellees state that Malacara obtained “extensive cross-training in the Distribution section” and while there, “received training as an Operator I driving dump trucks as well as lead replacement experience, and experience repairing mains, repairing and replacing hydrants, and installing valves and services.” Appellees Br. at 34. This contradicts their claim that “[pjrior to applying for the Maintenance Mechanic I position, all of Plaintiffs work for the City of Madison and in the Water Utility involved janitorial and lawn care work.” Appellees Br. at 46.
In addition, a close look at all of the evidence raises several questions as to the veracity of appellees’ proffered reasons for not promoting Malacara. This court has held that plaintiffs may establish pretext by “simply attacking] the credibility of the employer’s proffered reason for termination.” McCoy v. WGN Continental Broadcasting Co.,
First, Glasser claims Malacara did not provide reference numbers for his prior employers or sufficient descriptions of his past work experience and that this prevented her from verifying the true extent of his qualifications. At the same time, Malacara presented evidence that she took notes saying his references were “OK.” According to Malacara, Glasser also reported that she did not need his references because she would check with his supervisor at the City. This is conflicting testimony that calls into question the veracity of Glasser’s explanation.
Second, the interview ratings calculated by Glasser and Englehart were more subjective measures, albeit important and legitimate ones, than those obtained in the certification process. In contrast, the more objective evidence, test scores and work history scores suggest that Malacara was at least one of the most qualified candidates and certainly more qualified than Sullivan. Glasser and Englehart reviewed the exact same work experience information as Hughes did, yet they came to a completely different conclusion. The conflicting valuations of Malacara’s work experience present an important question of fact and raise questions about Glasser and Englehart’s subjective determination.
Third, there is nothing in the record, besides Englehart and Glasser’s self-serving testimony, to suggest that Malacara had performed his job unsatisfactorily or even sloppily, as appellees indicate. Mala-cara’s direct supervisor, Cheek, is reported to have given Malacara a favorable evaluation. However, Glasser says Cheek gave a less than positive appraisal of Malacara’s
Malacara’s pre-interview test scores, his work history rankings, his performance record, Sullivan’s arguably lesser qualifications, Cheek’s positive appraisal of Mala-cara’s work, the contradicted reports of Malacara’s alleged sloppy work and contradictory statements regarding the type of experience Malacara received at the City call into question the veracity of ap-pellees’ proffered reason for not promoting Malacara. “[I]f a plaintiff convinces the tijiеr of fact that it is more likely than not that the employer did not act for its proffered reasons, the employer’s decision remains unexplained and the inferences from the evidence produced by the plaintiff may be sufficient to prove the ultimate fact of discriminatory intent.” McCoy,
Rarely have I seen a set of facts so clearly pointing to the need for resolution before a trier of fact. The court will not render summary judgment if “a reasonable jury could return a verdict for the nonmov-ing party.” Sullivan v. Cox,