Opinion
No. SA-02-CA-1087-RF.
September 14, 2004
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S CLAIM FOR DISPARATE IMPACT
BEFORE THE COURT is Defendant Norman Y. Mineta's Motion to Dismiss (Docket No. 69), filed on March 16, 2004, along with Plaintiff's response. Having carefully considered the arguments before it, the Court finds that it does not have jurisdiction to hear Plaintiff's claim for disparate impact under Title VII because Plaintiff failed to exhaust his administrative remedies for this claim. Therefore, Defendant's Motion to Dismiss should be GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
Carlos Pacheco, a Hispanic male, brings this suit against his employer, the Federal Aviation Administration (FAA), an agency of the federal Department of Transportation (DOT). Plaintiff alleges that FAA's hiring and promotion policies created a disparate impact upon Hispanic employees and that this impact resulted in his non-selection for a supervisory position. Plaintiff asserts this claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq, as amended by the Civil Rights Act of 1991. On March 16, 2004, Defendant FAA filed a motion to dismiss, or in the alternative, for summary judgment, arguing that Pacheco's claim should be dismissed because Plaintiff failed to exhaust his administrative remedies.
Plaintiff is employed by the FAA in Corpus Christi, Texas. In early 2000, he applied for a supervisory position pursuant to vacancy announcement ASW-AT-00-078. Plaintiff was qualified for the position, but was informed on February 28, 2000, that he had not been selected for the position. Believing that his non-selection for the position was the result of Defendant's discrimination against Hispanics, Plaintiff filed a timely complaint of discrimination, referencing the February non-selection, as well as numerous other instances of alleged discrimination. In a notice letter dated June 2, 2000, the DOT's Office of Civil Rights responded to the complaint, characterizing Plaintiff's allegation as one stating a claim for disparate treatment on the basis of national origin.
Plaintiff's administrative Formal Complaint did not state a claim of discrimination based on the disparate impact theory. Rather, the administrative complaint which Plaintiff filed on May 22, 2004, described the complained-of action as "non-selection for a supervisor's job opening at this facility. Once again, the `good old boy' was selected even though I was more qualified. . . ."
The DOT's June 2000 letter also addressed Pacheco's claims related to earlier instances of alleged discrimination, dismissing them as untimely.
DISCUSSION
I. Rule 12(b)(1) StandardDefendant moves to dismiss Plaintiff's disparate impact claim pursuant to Fed. Rule Civ. P. 12(b)(1) and 12(b)(6). When motions to dismiss based on Rules 12(b)(1) and (6) are filed together, a court should consider the jurisdictional attack before addressing the attack on the merits. A motion under 12(b)(1) to dismiss for lack of subject matter jurisdiction should be granted "only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief." The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist.
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998).
Ramming, 281 F.3d at 161.
Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980).
To assess whether subject matter jurisdiction exists, this Court may look to the complaint and the undisputed facts in the record. When analyzing the complaint, the Court treats the allegations in the complaint as true. Ultimately, a motion to dismiss for lack of subject matter jurisdiction should be granted only if it appears certain that the plaintiff can prove no set of facts in support of his claim that would entitle plaintiff to relief.
Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996).
Sawar Partnership v. United States, 67 F.3d 567, 569 (5th Cir. 1995).
Home Builders Ass'n, 143 F.3d at 1010; Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
II. Failure to Exhaust
Title VII allows federal employees to sue their employer, but requires that they exhaust the administrative remedies provided for by statute prior to bringing suit. Aggrieved employees must first seek administrative resolution of their discrimination complaints before commencing suit in district court. If they fail to do so, district courts are without jurisdiction to hear the merits of their claims.
Fitzgerald v. Secretary, U.S. Dep't of Veterans Affairs, 121 F.3d 203, 206 (5th Cir. 1997) (citing 42 U.S.C. § 2000e-16(c)).
42 U.S.C. § 2000(e)-16(c).
Porter v. Adams, 639 F.2d 273, 276 (5th Cir. 1981) (noting that exhaustion is "an absolute prerequisite" to suit under § 2000e-16).
FAA argues that the Court is without jurisdiction to hear Plaintiff's disparate impact claim because Pacheco did not exhaust the administrative remedies provided by Title VII to address charges of discrimination in federal employment decisions. In support of this contention, the FAA relies on three related arguments. First, it argues that Pacheco's formal administrative complaint failed to include a claim for disparate impact. Second, FAA argues that Plaintiff failed to object when the DOT's Office of Civil Rights framed his EEO complaint as one alleging intentional discrimination on the basis of Plaintiff's race, Hispanic. Finally, FAA argues that since Plaintiff failed to identify a specific, neutral FAA supervisory selection policy that created the alleged, adverse impact in his administrative complaint, he did not exhaust the administrative remedies related to such a claim and cannot pursue it here.
In response to FAA's motion to dismiss, Plaintiff counters that his statements in the administrative complaint sufficiently alleged that a "good old boy selection process" was in place, which put the government on notice that Plaintiff was asserting a disparate impact claim in addition to his disparate treatment claim. Plaintiff further points out that there is no requirement that a complainant use the term "disparate impact" in a charge of discrimination. Defendant concedes this latter point, but maintains that Pacheco's reference to a `good old boy' selection process is insufficient to notify the government that he was asserting a claim under a disparate impact theory. Plaintiff argues that the language he used in his May 2000 EEO complaint and the way the DOT's Office of Civil Rights framed the issue it presented is sufficient to state his disparate impact claim. In support of this, Plaintiff relies upon Supreme Court precedent holding that a Title VII complaint need not contain specific facts that establish a prima facie case under McDonnell Douglas.
See Swierkiewicz v. Sorema, 534 U.S. 506 (2002).
After careful review of the parties' arguments and the record in this case, the Court finds that it is without jurisdiction to hear the merits of Plaintiff's disparate impact claim. On its face, Plaintiff's EEO complaint reveals nothing more than an employee complaining about how he was treated. Read in the most favorable light, Plaintiff's formal complaint clearly supports claims for unfair and intentional discrimination, but does not even suggest claims under a disparate impact theory. In his EEO complaint, Pacheco alleged that another employee (the "good old boy") was selected, even though Plaintiff was more qualified and had more experience. Pacheco also noted other instances of non-selection which occurred prior to 2000, complaining that less-qualified white applicants were chosen over him in those situations as well. Finally, Plaintiff complained of an incident in 1998 in which a photograph of his son was defaced.
Under any reading, these anecdotes support a claim for intentional discrimination, since they all support Plaintiff's argument that he himself was discriminated against. The DOT's Office of Civil Rights agreed with this analysis, and communicated this understanding of the complaint to Plaintiff in the June 2000 letter. However, the complaint simply does not even hint at a claim of disparate impact, which would require that Plaintiff allege some neutral employment policy that disproportionately impacts Hispanics. Indeed, at his deposition, Plaintiff admitted that he knew of nothing about the supervisory interview process that was discriminatory against Hispanics. Given this read, the Court is unable to conclude that Defendant could have been put on notice that Plaintiff intended to pursue both intentional discrimination and disparate impact claims.
See, e.g., Butler v. MBNA Technology, 2004 W.L. 389101 (N.D. Tex. Mar. 1, 2004) at *6 (holding that since the administrative charge of disparate treatment discrimination filed with the EEOC did not contain allegations from which a disparate treatment claim could be expected to grow, plaintiff had failed to exhaust administrative remedies for that claim); Woodman v. WWOR-TV, 293 F. Supp.2d 381, 390 (S.D.N.Y. 2003) (rejecting disparate impact claim on grounds that "simply gesturing toward the hiring process as a whole will not suffice . . . [plaintiff] fails to identify a specific, facially neutral employment practice . . .").
The Court finds, on the facts before it, that Plaintiff has failed to demonstrate that jurisdiction exists. The EEO complaint simply did not put FAA on notice that Pacheco was alleging that its supervisory selection process created a disparate impact upon Hispanics. Further, when presented with the DOT Office of Civil Rights' June 2002 letter — which characterized his claim solely as one of intentional discrimination — Pacheco failed to correct this description of his claim. Finally, the Court notes that Plaintiff has failed to describe any aspect of the selection process it believes created disparate impact upon Hispanic applicants in general or Pacheco in particular. Because of its resolution of this issue, the Court need not reach the FAA's other, independent grounds in support of its motion to dismiss. Pacheco has failed to meet its burden of showing that he exhausted his administrative remedies related to the disparate impact claim. As a result, the Court is without jurisdiction to hear the merits of Plaintiff's disparate impact claim, and may not reach other grounds for dismissing it.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that Defendant's Motion to Dismiss (Docket No. 69) is GRANTED.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT is Defendant Norman Y. Mineta's Motion for Summary Judgment (Docket No. 66), filed on March 11, 2004, as well as Plaintiff's brief in opposition. Having considered the written briefs and the evidence submitted by both parties, the Court finds that Plaintiff has been unable to adduce evidence of a genuine issue of material fact as to one or more elements of his cause of action against Defendant. Accordingly, the Defendant's Motion for Summary Judgment should be GRANTED.FACTUAL AND PROCEDURAL BACKGROUND
Carlos Pacheco, a Hispanic male, brings this Title VII lawsuit claiming discrimination in hiring practices against his employer, the Federal Aviation Administration (FAA) in Corpus Christi, Texas. Plaintiff challenges the FAA's selection of another candidate for a supervisory position for which Pacheco applied, alleging it reflects discriminatory treatment on the basis of race. Plaintiff originally complained in the alternative that the hiring process used by FAA to rank the candidates created a disparate impact on Hispanic applicants. The disparate impact claim was dismissed by prior Order of this Court for lack of jurisdiction.
Plaintiff applied for a supervisory position with the FAA pursuant to a vacancy announcement issued in early 2000. The announcement listed seven individuals as candidates qualified for the position. Warren Meehan, an FAA regional manager, instructed his two deputies to create a twenty-three question form based on the leadership qualities the FAA had identified as desirable traits in new managers, to be used in selecting an individual for the position. A three-member panel that included a Hispanic female was charged with the duty of interviewing the candidates' immediate supervisors. The panel asked each candidate's supervisor to rate the candidates with whom they were familiar on a numerical scale on each of the twenty-three questions. The FAA's process was designed to avoid possible inappropriate influence by asking each supervisor identical questions with limited responses, rather than allowing unlimited, narrative explanations in response to the questions. Upon completion of the question and response process, the three-member panel reviewed the cumulative responses of the supervisors and recommended two highly rated candidates, neither of which were Pacheco. The panel then selected Rodney Kline for the position, and Meehan concurred with the panel's decision.
Deft's Mot. For Summ. J. at Ex. 1.
The FAA now moves for summary judgment, presenting explanations for its promotion decision as both legitimate and non-discriminatory. Plaintiff responds that Meehan pre-selected Kline and thus that the FAA's process was pretext.
DISCUSSION
I. Summary Judgment StandardSummary judgment is appropriate if, after adequate time for discovery, no genuine issue as to any material facts exists, and the moving party is entitled to judgment as a matter of law. Where the issue is one for which the nonmoving party bears the burden of proof at trial, it is sufficient for the moving party to identify those portions of the record which reveal the absence of a genuine issue of material fact as to one or more essential elements of the nonmoving party's claim. The nonmoving party must then "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate specific facts showing that there is a genuine issue for trial." To prevail on summary judgment, the moving party need only demonstrate that "there is an absence of evidence to support the nonmoving party's case."
Fed.R.Civ.P. 56(c); Celotex Corp v. Catrett, 477 U.S. 317, 322-24 (1986).
Celotex, 477 U.S. at 323-24.
Id. at 324.
Id. at 325.
It is well-settled in employment discrimination cases that the plaintiff's subject belief that he has been discriminated against is insufficient to raise an inference of discrimination and does not allow the plaintiff to survive summary judgment. Thus, conclusory allegations shall not be considered competent summary-judgment evidence. Upon viewing the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party, the court, in order to grant summary judgment, must be satisfied that no rational trier of fact could find for the nonmoving party as to each element of his case.
See, e.g., Lawrence v. Univ. of Tex. Med. Branch at Galveston, 163 F.3d 309, 313 (5th Cir. 1999).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
II. Title VII Claim
A disparate treatment claim under Title VII refers to deliberate discrimination in the terms or conditions of employment and is assessed under the familiar burden-shifting framework. To establish a prima facie claim for disparate treatment, the plaintiff must prove that: (1) he is a member of a protected class under Title VII; (2) he applied and was qualified for a job or promotion for which his employer was seeking applicants; (3) despite his qualifications, he was rejected; and (4) the job for which he applied was filled by an applicant outside the protected class.
Munoz v. Orr, 200 F.3d 291, 299 (5th Cir. 2000).
Once the prima facie showing has been met, the burden of production, but not of persuasion, shifts to the employer to articulate a legitimate, non-discriminatory reason for his employment action. If the employer produces a legitimate reason for his decision, then the plaintiff must demonstrate that the reason articulated by the employer is pretextual. Pacheco thus has the burden of proving that his race was the real reason for his non-selection.
Id.
Patel v. Midland Mem. Hospital Medical Center, 298 F.3d 333, 342 (5th Cir. 2002).
It is undisputed that Plaintiff establishes a prima facie case of discriminatory disparate treatment. Plaintiff is a Hispanic male who was qualified for the job he was seeking. The FAA rejected Plaintiff and hired a candidate who was not Hispanic. In its motion for summary judgment, the FAA argues that its reasons for hiring Kline were legitimate and non-discriminatory because Kline received a higher overall ranking from the panel designed to evaluate the qualified candidates.
The FAA contends that its hiring process worked effectively to find the better qualified candidate for the position among several qualified candidates. In support of this argument, the FAA produces evidence that Pacheco received an average score of 4.36, a score which was sixth out of seven candidates. Kline was the candidate ranked third, with an average score of 6.7. Upon review of the comments made by supervisors, the panel removed from consideration the highest-ranked individual, Mr. Courtade. Next, the FAA presents evidence that the panel unanimously agreed that the two highest-ranked candidates, after consideration of all factors, were Kline and Mr. Ayers. Thus, the panel recommended these two individuals to Meehan. Meehan considered these two individuals and chose Kline, based upon his more diversified experience. The Court finds that the FAA has come forward with evidence of a legitimate and non-discriminatory reason for its selection of Kline.
Def.'s Mot. For Summ. J. at Ex. 11.
Id.
Thus, it is Plaintiff's burden to "demonstrate that the reason articulated by the employer was pretextual." Plaintiff "bears the burden of showing intent on the employer's part." Plaintiff here fails to do so. Instead, he merely contends that the FAA's process was a sham and that in reality Meehan pre-selected Kline for the position. Plaintiff argues that disputed issues of material facts remain, precluding summary judgment at this point. But Plaintiff fails to adduce any evidence of these claimed disputes. Plaintiff's bare allegation is insufficient to meet this burden.
Munoz, 200 F.3d at 299.
Id.
In order to show that a proffered reason was merely a pretext, and defeat a summary judgment dismissal of a non-promotion discrimination case, this Court requires that a plaintiff show a difference in his qualifications superior to that of the person selected "so apparent as to virtually jump off the page and slap us in the face." We have held that a plaintiff's subjective belief or unsubstantiated assertions of racial discrimination are insufficient to raise an inference of discrimination sufficient to defeat a summary judgment dismissal. It is not enough to defeat summary judgment dismissal that a plaintiff show that a trier of fact could find that he was just as qualified as the person selected to show an inference of discrimination. Rather, a plaintiff must show that a trier of fact could find that he was clearly better qualified than the person selected.
Edwards v. Principi, 80 Fed. Appx. 950, 952-53 (5th Cir. 2003) (internal citations omitted).
Plaintiff has not adduced any facts or evidence that would permit a jury to find that FAA's process was pretext, that Kline was pre-selected or that Plaintiff was as qualified as Kline.
In response to FAA's motion for summary judgment, Plaintiff argues that FAA failed to comply with procedures for filling vacancies in the SW region of FAA. This was the first instance Plaintiff has raised this issue, which was not raised administratively, in discovery, or in Plaintiff's Second Amended Complaint. Plaintiff's argument supposes that FAA seeks to explain its decision by relying on its merit selection regulations in Appendix 9. A careful read of FAA's pleadings belies this argument. FAA does not argue that it made its decision to select Mr. Kline because of Appendix 9, which governs how the human resources department screens and ranks applicants to create the list sent to the ultimate decision maker. Instead, the FAA has consistently maintained that the reason Mr. Kline was selected was because he was more qualified than Pacheco, according to his supervisors and the three-member assessment panel.
Plaintiff argues that FAA failed to comply with the procedures set out in Federal Aviation Personnel Manual (FAPM) 330-4, Appendix 9 ["Appendix 9"], which governs the policies, procedures, and requirements for filling vacancies.
Plaintiff has the burden of demonstrating that the procedure FAA used was biased against him, but he fails to offer facts or evidence supporting this assertion. As the FAA urges, the questionnaires and instructions given to each supervisor were identical. Further, FAA submits further evidence that each of the supervisors interviewed judged Kline to be better qualified than Pacheco. The FAA notes that its policy does not require a particular selection procedure and that their regional manager mandated use of the questionnaires. Plaintiff's bare allegation that the use of the hiring procedure described above was prejudicial and discriminatory, without demonstrating the manner in which the process discriminated, does not present a disputed issue of fact to preclude summary judgment after the showing made by the FAA of the hiring process and its function to select the best among several qualified candidates. Courts do not require employers to follow company procedure in hiring, unless discrimination can be proved.
Indeed, a similar determination was made about the selection of Mr. Kline in a case brought by another disappointed applicant for this same supervisory position with the FAA. Another applicant, Ronald Boyd, filed suit regarding his non-selection, alleging age discrimination. Mr. Boyd's case was tried in the Southern District of Texas on November 25, 2002. At the conclusion of Mr. Boyd's case, Judge Head granted the FAA's Rule 52(c) Motion for Judgement, finding that the FAA had successfully articulated legitimate, non-discriminatory reasons for selecting Mr. Kline. Order on Motion to Dismiss filed in No. C-01-558, Boyd v. Mineta (November 29, 2002).
Risher v. Aldridge, 889 F.2d 592, 597 (5th Cir. 1989).
Plaintiff also claims that Kline was pre-selected to be the new supervisor. Again, Plaintiff fails to offer any fact or evidence that would permit a jury to find in his favor on this issue. By way of affidavit, two supervisors interviewed by the three-member panel stated that rumors circulated among employees that Kline would be selected but that no one from management made any statements on the matter. Discriminatory statements must be made by the relevant decision makers, not office gossip.
Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir. 1996).
Plaintiff has not produced any evidence in support of his claim that Kline was pre-selected beyond his own conclusory statement and office gossip. Indeed, all four of the supervisors who were interviewed denied under oath that Mr. Kline was pre-selected, or that they were pressured in any way to rank Kline above the other candidates. Further, for Plaintiff's theory of discriminatory pre-selection to be true in this case, Pacheco would have to show that the rating system in place to aid FAA in selecting candidates was manipulated. However, Plaintiff admits that he has no evidence to suggest that the "numbers were fudged" to justify a pre-selection of Mr. Kline. Mere water-cooler rumors and unsubstantiated assumptions, without more, are insufficient to create a genuine issue of material fact.
See Deft's Mot. For Summ. J. at Ex. 15.
See Raggs v. Mississippi Power Light Co., 278 F.3d 463, 468 (5th Cir. 2002) ("evidence of pretext is not enough where the plaintiff has created only a weak issue of fact as to whether the employer's reason is untrue, and there is `abundant and uncontroverted evidence that no discrimination . . . occurred.'") (citing Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133 (2000)).
CONCLUSION
For the foregoing reasons, the Court finds that Plaintiff has failed to raise a genuine issue of material fact as to one or more essential elements of each of his federal causes of action.ACCORDINGLY, IT IS ORDERED that Defendant's Motion for Summary Judgment (Docket No. 66) is GRANTED.
FINAL JUDGMENT
On this day, the Court entered an Order granting Defendant's Motion for Summary Judgment and dismissing Plaintiff's claim for disparate treatment with prejudice. The Court also entered an Order granting Defendant's Motion to Dismiss Plaintiff's claim for disparate impact without prejudice. The Court now enters its Final Judgment pursuant to Federal Rule of Civil Procedure 58.Accordingly, it is hereby ORDERED that Defendant's Motion for Summary Judgment as to Plaintiff's claim for disparate treatment be GRANTED.
It is further ORDERED that Plaintiff's claim for disparate treatment be DISMISSED WITH PREJUDICE.
It is further ORDERED that Defendant's Motion to Dismiss Plaintiff's claim for disparate impact be GRANTED.
It is further ORDERED that Plaintiff's claim for disparate impact be DISMISSED WITHOUT PREJUDICE.
It is further ordered that all pending motions be DENIED AS MOOT and that each party BEAR its own costs.