Olivia Williams v. VWR International, LLC

Filing

Opinion issued by court as to Appellant Olivia Williams. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-11541

Date Filed: 04/18/2017

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-11541
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cv-04214-ODE
OLIVIA WILLIAMS,
Plaintiff-Appellant,
versus
VWR INTERNATIONAL, LLC,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(April 18, 2017)
Before MARCUS, JULIE CARNES and JILL PRYOR, Circuit Judges.
PER CURIAM:
Olivia Williams appeals the district court’s grant of summary judgment in
favor of defendant VWR International, LLC (“VWR”) on her failure-to-promote
claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1)

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(“Title VII”). On appeal, Williams argues that the district court erred in: (1)
holding that she did not present a prima facie case that VWR discriminated against
her when it did not promote her to a “tele-sales representative position” in January
2008; (2) failing to conclude that VWR’s proffered reasons for promoting a white
employee to the position were pretext for discrimination; and (3) refusing to
consider allegations about different positions to which she was not promoted.
After thorough review, we affirm.
We review a grant of summary judgment de novo. McDowell v. Brown,
392 F.3d 1283, 1288 (11th Cir. 2004). Summary judgment is proper when the
movant has shown that there is no genuine dispute as to any material fact and that
she is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In our review,
we must make all reasonable inferences from the facts in favor of the nonmovant.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

Conclusory

allegations are insufficient to defeat a motion for summary judgment. Leigh v.
Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir. 2000). A genuine dispute only
exists where a jury could reasonably find for the nonmovant; a mere “scintilla of
evidence” supporting the nonmovant’s position cannot overcome a motion for
summary judgment. Walker v. Darby, 911 F.2d 1573, 1576-77 (11th Cir. 1990).
We do not demand literal compliance with the requirement that plaintiffs
exhaust their administrative remedies with the EEOC prior to filing a Title VII suit,
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and “[a]s long as allegations in the judicial complaint and proof are reasonably
related to charges in the administrative filing and no material differences between
them exist, the court will entertain them.” Wu v. Thomas, 863 F.2d 1543, 1547
(11th Cir. 1989) (quotation omitted). However, “[a]t the summary judgment stage,
the proper procedure for plaintiffs to assert a new claim is to amend the complaint
in accordance with Fed. R. Civ. P. 15(a). A plaintiff may not amend her complaint
through argument in a brief opposing summary judgment.” Gilmour v. Gates,
McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004).
Title VII makes it unlawful for any employer to discharge or otherwise
discriminate against any individual because of their race. 42 U.S.C. § 2000e2(a)(1). In evaluating a Title VII claim for failure to promote on the basis of race,
we apply the burden-of-proof framework outlined in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See, e.g., Walker v. Mortham, 158 F.3d 1177, 1183,
1185 (11th Cir. 1998). Under this analysis, the plaintiff must first establish a prima
facie case of discrimination, which raises a presumption of discrimination. Id. at
1184. If the plaintiff does so, the defendant may rebut the prima facie case by
articulating a legitimate, nondiscriminatory reason for the adverse employment
action. Id. If the defendant rebuts the prima facie case, the presumption of
discrimination drops, and the plaintiff must persuade the trier of fact that the
defendant’s offered explanation(s) are pretext for discrimination. Id.
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To establish a prima facie case of racially discriminatory failure to promote,
a plaintiff must establish that: (1) she was a member of a protected class, (2) she
was qualified for and applied for the job, (3) she was rejected, and (4) someone
outside of that protected class was promoted. Vessels v. Atlanta Indep. Sch. Sys.,
408 F.3d 763, 768 (11th Cir. 2005). However, there are certain exceptions that
allow a plaintiff to establish a prima facie case even if she did not apply for the
position at issue. See, e.g., id.; E.E.O.C. v. Joe’s Stone Crabs, Inc., 296 F.3d 1265,
1274 (11th Cir. 2002). One exception is the “informal process” exception, where a
plaintiff need not show that she applied for the job if she can show that the
employer “d[id] not formally announce [the] position, but rather use[d] informal
and subjective procedures to identify a candidate.” Vessels, 408 F.3d at 768.
However, under this exception the plaintiff must still show that the employer had
some reason to consider her for the position. Id. We have not given a precise
definition or test for what constitutes an informal hiring process, but we’ve rejected
an argument that a hiring process was informal when the employer had formally
posted vacant positions on its website or in local newspapers and required
candidates to file an application, and the plaintiff knew about the position but
chose not to formally apply. Smith v. J. Smith Lanier & Co., 352 F.3d 1342, 1346
(11th Cir. 2003). In Smith, we distinguished the prior case of Carmichael v.
Birmingham Saw Works, 738 F.2d 1126, 1133 (11th Cir. 1984), which “involved a
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system where there was no formal notice of jobs, and the company relied on word
of mouth and informal review procedures,” and thus the plaintiff “had no way of
knowing about [a specific job’s] availability.” Smith, 352 F.3d at 1346.
Another exception is the “futile gesture” exception, where a plaintiff need
not show that she applied for the job if she had a “justifiable belief that the
employer’s discriminatory practices made application a futile gesture.”

Joe’s

Stone Crabs, Inc., 296 F.3d at 1274. To have a “justifiable belief” for purposes of
the “futile gesture” exception to the application requirement, a plaintiff must
demonstrate: “(1) that she had a real and present interest in the job for which the
employer was seeking applications; and (2) that she would have applied for the job
but effectively was deterred from doing so by the employer’s discriminatory
practices.” Id. We’ve considered an applicant’s inquiry into the hiring process to
be indicative of a real and present interest in the job. See id. at 1275. The
Supreme Court has described the types of discriminatory practices that render an
application futile as “the most entrenched forms of discrimination.” Int’l Bhd. of
Teamsters v. United States, 431 U.S. 324, 367 (1977). Conclusory allegations of
discrimination, without more, are not sufficient to raise an inference of
discrimination so as to defeat a motion for summary judgment. See Young v. Gen.
Foods Corp., 840 F.2d 825, 830 (11th Cir. 1988).

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Here, the district court did not err in finding that Williams failed to make a
prima facie case that VWR discriminated against her by failing to promote her to
the tele-sales position in 2008.1 As the record shows, Williams did not actually
apply for the position, and she is not able to show that an exception to the
application requirement applies. First, the district court correctly determined that
her claim did not fall within the “informal process” exception. Vessels, 408 F.3d
at 768. Although Williams provided evidence that VWR breached its formal job
posting policy and did not post the position on its intranet until after it had chosen
which candidate it would promote, Williams presented no evidence that creates an
issue of fact as to whether the job was posted on the company’s external website.
Further, the evidence is undisputed that the position was posted on third-party
websites, 33 candidates applied by submitting resumes, and that VWR conducted
formal interviews. On this undisputed record, the evidence indicates that VWR
used a formal process. See Smith, 352 F.3d at 1346.
Moreover, even if the hiring process was informal, Williams failed to show
that the relevant decision-maker, Robert Schultz, had any reason to consider her
1

In addition, Williams’s argument that the district court erred in failing to consider her
additional failure-to-promote claims fails. Early in the proceedings, the district court dismissed
all claims except for the failure-to-promote claim regarding the tele-sales position filled in
January 2008. While it is true that Williams is permitted to raise additional claims discovered
during discovery if they are reasonably related to the facts alleged in her EEOC complaint, she
still must comply with general pleading rules for these claims. See Wu, 863 F.2d at 1547. But
Williams never moved the district court to amend her complaint -- which she should have done if
she was seeking relief for these additional allegations. Gilmour, 382 F.3d at 1315. Williams
cannot raise new claims through a response to a motion for summary judgment. Id.
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for the positon. As the undisputed record reveals, Williams testified that she never
spoke to Schultz about the position and did not believe that Schultz was ever aware
that she was interested in the position. Vessels, 408 F.3d at 768. Schultz testified
that he was never told by anyone, including Williams’s supervisor Jan Knight, that
she was interested in the position, and never considered her for the position.
Williams also presented evidence that VWR had a “Job Progression Promotion
Policy” through which employees were considered for advancement based on their
performance, and which did not require employees to submit applications for
promotions. But this policy only applied to promotions within the department the
employee was currently working in, so it did not apply here, since Williams was
working in the customer service department and the tele-sales position was in the
sales department. Indeed, Schultz was not Williams’s supervisor and did not know
her.

Therefore, VWR had no reason to consider Williams for the tele-sales

position, and Williams cannot show that she fell within the “informal process”
exception to the application requirement.
Nor did the district court err in finding that Williams failed to establish that
her application would have been a futile gesture. Williams testified that she never
expressed an interest in the position to anyone. While she sent an email to her
supervisors in 2006 expressing a general interest in advancement, it was sent oneyear earlier to people who were not decision-makers for the tele-sales position.
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These facts are insufficient to demonstrate that Williams had a real and present
interest in the tele-sales position at issue. See Joe’s Stone Crabs, Inc., 296 F.3d at
1275.

Further, Williams has not produced facts demonstrating the sort of

entrenched forms of discrimination that would have made applying a futile gesture.
Teamsters, 431 U.S. at 367.

Although she had been told that VWR only

considered outside candidates for field sales positions, this allegation does not
relate to the tele-sales position at issue and has no direct connection to race and,
thus, does not demonstrate “entrenched discrimination.”

Id.

Also, Williams

testified that she received an email inviting her to apply to be a “team coordinator,”
which shows that she was encouraged to apply for promotions just as Schultz, a
white employee, had been. Therefore, no evidence in the record supports her
allegation that VWR had a policy of discrimination that was so pervasive that her
application would have been a futile gesture. See Joe’s Stone Crabs, Inc., 296 F.3d
at 1274.
In short, the district court did not err in concluding that Williams had failed
to show that there were disputed facts concerning her prima facie case of
discrimination. Because this ruling is dispositive of Williams’s failure-to-promote
claim, we need not address the pretext issue. See Walker, 158 F.3d at 1183-84.
AFFIRMED.

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