Opinion
Civil Action No. 5:98CV-261(R)
July 13, 1999.
MEMORANDUM OPINION ORDER
This matter is before the Court on cross motions for summary judgment. For the following reasons, Defendant's motion is GRANTED and this case is DISMISSED.
I. FACTS AND CLAIMS
Plaintiff brought this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and the Kentucky Civil Rights Act, K.R.S. 344.040, alleging that Defendant discriminated against her on the basis of her gender when it failed to hire her as a firefighter.
There is no dispute that Plaintiff met the objective qualifications for the job, including age, education, vision, and valid driver's license.
The parties disagree as to one of the basic qualifications, which requires the applicant to "be a person of good moral character, good reputation in the community in which s/he lives, law-abiding, and loyal to the U.S. government." Counsel for Defendant argues that Plaintiff may not be "of good moral character" based on her former employment as an striptease dancer. Since there is no evidence in the record that Plaintiff's former employment had any effect on Defendant's hiring decision, the Court need not address this issue further.
Defendant's hiring process is also not in dispute. Applicants must first score a 70% or better to pass a written examination. Applicants who pass the written exam must pass a physical agility test. The physical agility test is "pass/fail" and the scores are not considered in the ranking of applicants.
Those that pass the physical agility test are interviewed by a Firefighter Review Board ("Review Board") consisting of a member of management in the fire department; the personnel director; a union representative; a person selected by the City Manager from a represented minority group; and a person selected by the Mayor and approved by the Board of Commissioners. The Review Board completes a questionnaire on each interviewee, which is then scored by someone else. The members of the Review Board do not know the weight given to the various categories on the questionnaire.
Following the interviews with the review board, applicants are ranked according to their scores on the written exam (40%) and the compiled interview scores (60%). The highest ranked applicants, three people for every vacant position, are interviewed by the Fire Chief. The City Manager makes recommendations to the Board of Commissioners based on the recommendations from the Fire Chief. The Board of Commissioners hires one applicant for each vacant position.
In this case, there were nine vacant firefighter positions available. Therefore, the highest ranked 27 applicants were interviewed by the Fire Chief.
Plaintiff was one of 110 applicants for the nine vacant firefighter positions. Plaintiff was one of 78 applicants to pass the written test, and had the 61st score at that time. After the physical agility test, 62 applicants were interviewed by the Review Board. Prior to the interview, Plaintiff was ranked 51 out of 62. Based on the combined scores of the written exam and the interviews, Plaintiff was ranked 38 out of 62. Plaintiff was not interviewed by the Fire Chief because she was not ranked in the top 27.
Two applicants who were ranked below Plaintiff prior to the interviews ranked in the top 27 after the interviews and were eventually hired. Both of these applicants had experience in the area of emergency services.
Plaintiff asserts that Defendant's failure to hire her constituted a violation of Title VII and the Kentucky Civil Rights Act. Defendant asserts that Plaintiff failed to state a prima facie case under Title VII, and failed to rebut Defendant's legitimate, non-discriminatory reasons for not hiring Plaintiff.
II. DISPARATE TREATMENT
The Kentucky Civil Rights Act and Title VII are subject to the same analysis. Harker v. Federal Land Bank of Louisville, 679 S.W.2d 226 (Ky. 1984); Wathen v. General Elec. Co., 115 F.3d 400, 403-04 n. 5 (6th Cir. 1997). Therefore, the Court will rely on Title VII case law to evaluate both of Plaintiff's claims.
Plaintiff offers no "direct evidence" that she was denied a position with Defendant because of her gender. The Sixth Circuit has held that while various circuits have different definitions of "direct evidence", the Sixth Circuit defines "direct evidence" as "evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor." Bartlik v. United States Department of Labor, 73 F.3d 100, 103, n. 5 (6th Cir. 1996) (citations omitted). For example, the Sixth Circuit has recognized that evidence of racial slurs made by a plaintiff's supervisor and "statements by a principal about his concern that a `white presence' be maintained among the faculty of a newly integrated school in order to avoid `white flight'" constituted direct evidence of racial discrimination. Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1249 (6th Cir. 1995).
In this case, Plaintiff has produced no direct evidence that, if believed, would require the conclusion that unlawful discrimination was at least a motivating factor in the alleged discrimination. Absent "direct evidence" of discrimination, a plaintiff may still proceed with a federal discrimination claim by raising the inference of discrimination with circumstantial evidence through the "burden shifting" test developed in McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973).
Under McDonnell Douglas, a plaintiff states a prima facie case of discrimination under Title VII in failure to hire cases where she establishes (1) she is a member of a protected class; (2) that she applied for and was qualified for employment (3) that she was denied employment decision despite her qualifications, and (4) after her rejection the position remained open and the employer continued to seek applicants from persons with the same qualifications. Shah v. General Electric Co., 816 F.2d 264, 268 (6th Cir. 1987) (citing McDonnell Douglas, 411 U.S. at 802). The fourth element has also been expressed as an employee with substantially similar or lesser qualifications, but not a member of the protected class, received the favorable employment decision. Huguley v. General Motors Corp., 52 F.3d 1364, 1371 (6th Cir. 1995) (citing McDonnell Douglas, 411 U.S. at 802).
Defendant does not dispute that Plaintiff meets the first and the third element, that she is a member of a protected class (female) and that she was denied employment. Defendant does question whether Plaintiff meets element two based on the "moral character" requirement. Defendant also disputes that Plaintiff meets element four since the position was filled by the same applicant pool that included Plaintiff and therefore Defendant did not seek further applicants and the job did not "remain open" after her rejection.
The Court cannot determine, as a matter of law, whether Plaintiff's former occupation disqualifies her under Defendant's subjective "moral character" requirement. Certainly the Defendant was aware of Plaintiff's past employment and still included her in the interview portion of the application process. Therefore, Plaintiff meets the second element for purposes of this motion.
The fourth element is less clear because it is difficult to apply its legal theory to the facts of this case. However, the fourth element must apply to this case under the purpose of the element as expressed in Huguley, because applicants of similar qualifications, but not members of the protected class, received the favorable employment decisions.
Once the plaintiff proves his prima facie case, the burden shifts to the employer to "articulate some legitimate non-discriminatory reason" for the employment action. West v. Wright Constr. Co., 756 F.2d 31, 33 (6th Cir. 1985). The employer need not persuade the court that it was actually motivated by the proffered reasons. Id. It is sufficient if the employer raises a genuine issue of fact as to whether or not it discriminated. "If the employer meets the burden of articulation, then the burden shifts back to the plaintiff to prove by a preponderance of the evidence that the reason proffered by the employer was not its true reason but merely pretext for discrimination." Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1329 (6th Cir. 1994) (citing Ang v. Procter Gamble Co., 932 F.2d 540, 548 (6th Cir. 1991)).
Defendant has articulated legitimate, non-discriminatory reasons for not hiring Plaintiff — that the hiring process demonstrates that the successful applicants were more qualified than Plaintiff for the position. Therefore, the burden shifts to Plaintiff to prove that the legitimate reason proffered by Defendant is not the true reason for its actions.
Sixth Circuit case law has articulated three primary ways "to make a submissible case on the credibility of [her] employer's explanation." Manzer v. Diamond Shamrock Chemicals, Co., 29 F.3d 1078, 1084 (6th Cir. 1994). A plaintiff must show by a preponderance of the evidence either (1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate the adverse employment action, or (3) that the proffered reasons were insufficient to motivate the adverse employment action. Manzer, 29 F.3d at 1084 citing McNabola v. Chicago Transit Authority, 10 F.3d 501, 513 (7th Cir. 1993).
The first and the third showings allow a court to find a inference of discrimination with no further evidence. "[W]hen a plaintiff proves that the defendant's proffered reasons either have no basis in fact or are insufficient to motivate discharge, a permissive inference of discrimination arises." Kline v. Tennessee Valley Authority, 128 F.3d 337, 346 (6th Cir. 1997) reh'g denied (1998).
However, Manzer "requires plaintiffs to introduce additional evidence of discrimination when the plaintiff has failed to introduce evidence that the reasons offered by the defendant are `factually false.'" Id.
The second showing, however, is of an entirely different ilk. There, the plaintiff admits the factual basis underlying the employer's proffered explanation and further admits that such conduct could motivate dismissal. The plaintiff's attack on the credibility of the proffered explanation is, instead, an indirect one. In such cases, the plaintiff attempts to indict the credibility of his employer's explanation by showing circumstances which tend to prove that an illegal motivation was more likely than that offered by the defendant. In other words, the plaintiff argues that the sheer weight of the circumstantial evidence of discrimination makes it "more likely than not" that the employer's explanation is a pretext, or coverup.Id. at 1084.
A plaintiff may not rely solely on "the bare bones elements" of her prima facie case to demonstrate the second showing or else "the entire `burden shifting analysis of McDonnell Douglas and its successors would be illusory." Id. at 1084.
In this case, Plaintiff does not assert that the Defendant's proffered reasons have no basis in fact, are false or were insufficient to motivate the action taken. Further, Plaintiff never argues that she was more qualified than the successful nine applicants who were hired. The Sixth Circuit has held "that when an employer selects a more qualified candidate, a claim of discrimination by a disappointed applicant is likely to fail. Cesaro v. Lakeville Community School, 953 F.2d 252, 255 (6th Cir. 1992) (citations omitted).
Therefore, the Court must examine all of the circumstantial evidence to determine whether it meets the second showing of the Manzer test, whether that the proffered reasons did not actually motivate the adverse employment action.
Plaintiff relies on several depositions to demonstrate that Defendant's failure to hire her was based on unlawful discrimination.
A. Terry Keeling
Terry Keeling, former Fire Marshall for the City of Paducah, stated that the facilities at the fire department were not designed for women. Mr. Keeling also told Plaintiff that she should not get her hopes up because there were a lot of things against her being hired. However, Mr. Keeling was not involved in any way in the hiring decision while Plaintiff was an applicant nor was he employed by the City at that time. Mr. Kelling had no input or actual knowledge in and of the current employment decision. Since Plaintiff has failed to show that Mr. Keeling had any actual knowledge of the hiring decision made when Plaintiff was an applicant, his testimony is irrelevant to this case and cannot be used as a basis to dispute Defendant's proffered reasons for its employment actions.
B. Rene Long
Rene Long, a City of Paducah Police Officer, stated in his deposition that everyone in the "firefighting family" seemed to be upset that Plaintiff passed the physical agility test. However, Officer Long also stated that he was not acquainted with the fire department's hiring process, and that he could not say whether anyone within the fire department who had a role in the hiring process was upset with Plaintiff's success on the physical test. Since Officer Long has no actual knowledge of the hiring decision made when Plaintiff was an applicant, his testimony is lay speculation and is irrelevant to this case.
C. Don Montgomery
Plaintiff also relies on the testimony of Don Montgomery, former assistant fire chief and member of the Review Board that interviewed Plaintiff. Plaintiff relies on Mr. Montgomery's statements that there was some doubt before Plaintiff took the physical test as to whether she would pass it. It is unclear what relevance this statement has as to whether Plaintiff was discriminated against after she passed the physical test.
Plaintiff also relies on Mr. Montgomery's statement that someone in the fire department had said "we don't want a damn woman on the fire department." However, Mr. Montgomery actually testified that he was sure such a comment was made, but "I couldn't really say who, or don't even remember if it was, for sure." There is no evidence that such a comment, if made at all, was made by anyone who influenced the hiring decision as it pertained to Plaintiff.
D. Brian Wade
Brian Wade, a City of Paducah firefighter, testified that there were sexist comments made regarding Plaintiff within the Fire Department. However, Mr. Wade testified that none of the comments were made by anyone in a supervisory capacity. Plaintiff also relies on Mr. Wade's speculation that three of the five members of the Review Board were from the "old school" and would not hire a woman firefighter. However, he also stated that this was only his opinion and that the members of the Review Board had never expressed such opinions to him. Since Mr. Wade offers only inadmissable opinions with no direct comments or other evidence to support his claim, Mr. Wade's testimony cannot support Plaintiff's claim.
E. Gladman Humbles
Gladman Humbles, former assistant fire chief and member of the Review Board that interviewed Plaintiff, stated that there was "talk around the firehouse" that there might be problems if a woman firefighter was hired. Mr. Humbles also speculated that Leon Dodge, former fire chief and member of the Review Board, would not be in favor of hiring a woman firefighter. His opinion of another Board member's thought process is insufficient to support Plaintiff's claim. Mr. Humbles denies any discriminatory intent and there is no probative evidence of any discriminatory action or intent by him.
F. Leon Dodge
Plaintiff relies on a statement by Leon Dodge, former fire chief and member of the Review Board, when asked whether he received instructions regarding the interview procedure, stated "I'd been doing this for seventeen years, I didn't need many instructions." It is unclear how Plaintiff draws an inference from this statement that "Leon Dodge conducted his interview of Ackerson, not needing instructions, because he knew what to do. He knew that women should not be hired." (Dkt. # 29 at 7).
Plaintiff also argues that "Leon Dodge's associates established that Leon Dodge is from the "old school" and that Leon Dodge would not want women working for him as firefighters." (Dkt. # 29 at 7). Again, this statement is supported only by speculation, and no reliable evidence has been introduced.
G. Employment History
Finally, Plaintiff argues that evidence "that no woman has ever been a firefighter in Paducah, clearly raises the inference that the City discriminates against women in its hiring." (Plaintiff's Response, dkt. # 29 at 3). Plaintiff repeatedly states that Defendant has "built-in barriers from women becoming firefighters," but does not state what these barriers are. This evidence of past male exclusivity is troubling, but when considered in the framework of the revised application process employed in this case, it is insufficient to rebut Defendant's legitimate reason for denying Plaintiff employment.
II. ADVERSE IMPACT
A prima facie case is established under a disparate impact theory of employment discrimination where "(1) plaintiff identifies a specific employment practice to be challenged; and (2) through relevant statistical analysis proves that the challenged practice has an adverse impact on a protected group. Johnson v. United States Department of Health and Human Services, 30 F.3d 45, 48 (6th Cir. 1994) (citing Scales v. J.C. Bradford Co., 925 F.2d 901, 907-08 (6th Cir. 1991)).
While the fact that no women have ever been employed as firefighters with the Paducah fire department would certainly constitute relevant statistical evidence, Plaintiff has not identified a specific employment practice that is discriminatory. Plaintiff does not challenge any aspect of the hiring process beyond the speculation that members of the Review Board are against hiring women.
As Defendant notes, Plaintiff's lowest score came from a Review Board member who Plaintiff does not accuse of bias. Also, Plaintiff increased in rank following the interviews by the Review Board.
Since Plaintiff failed to identify a specific employment practice which discriminates against women, she has not established her prima facie case under a disparate impact theory, and summary judgment is appropriate on this claim.
IV. PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Plaintiff moves for summary judgment based on the argument by counsel for Defendant that Plaintiff was not qualified for the position because her prior employment as a striptease dancer did not make her "a person of good moral character with a good reputation in the community." Plaintiff argues that this is an admission by the Defendant that Plaintiff was not hired because of her prior gender-based occupation.
Beyond defense counsel's bare assertion that the prior occupation made Plaintiff unqualified to be a firefighter, there is no evidence in the record to indicate that Plaintiff's prior employment had any impact on Defendant's employment action. Therefore, the Court need not address the substance of this issue, and Plaintiff's motion for summary judgment must be denied.
IT IS ORDERED:
Defendant's motion for summary judgment (dkt # 19) is GRANTED; Plaintiff's motion for summary judgment (dkt # 35) is DENIED; and this case is DISMISSED.
This is a final and appealable order. There is no just cause for delay.