McIntyre v. City of Chesapeake
Filing
29
MEMORANDUM OPINION. Signed by Magistrate Judge David J. Novak on 4/30/2015. Copy of Memorandum Opinion was mailed to Plaintiff. (sbea, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
CHERYL LYNN MCINTYRE,
pro se Plaintiff,
Civil No. 3:14cv449 (DJN)
V.
CITY OF CHESAPEAKE,
Defendant.
MEMORANDUM OPINION
This matter comes before the Court by consent pursuant to 28 U.S.C. § 636(c)(1) on
Defendant's Motion for Summary Judgment (ECF No. 22). In this case, the Court must
determine whether the City of Chesapeake ("Defendant") discriminated against Cheryl Mclntyre
("Plaintiff) based on her race and gender in violation of Title VII of the Civil Rights Act of
1964 ("Title VII"). For the reasons that follow, the Court GRANTS Defendant's Motion (ECF
No. 22).
I.
BACKGROUND
Plaintiff alleges discrimination under Title VII, arguing that Defendant's decision to
promote a white male over Plaintiff constitutes race and gender discrimination. (Def.'s Mem. of
Law in Supp. of Mot. for Summ. J. ("Def's Mem.") (ECF No. 24) at 1, 9; PL's Resp. in Opp'n
to Mot. for Summ. J. ("Pl.'s Resp.") (ECF No. 27) at 1.) Defendant argues that it had a
legitimate and nondiscriminatory rationale for not promoting Plaintiff and that Plaintiff has failed
to produce any evidence that Defendant's asserted rationale was merely pretextual. (Def.'s
Mem. at 1.) The Court determines that the undisputed facts are as follows.'
Plaintiff graduated from Norfolk State University in 1989 with a bachelor's degree in
building construction technology. (Portions ofTr. of Dep. of Cheryl Mclntyre ("Mclntyre
Dep.") (ECF No. 24-1) 5:24-6:8, Feb. 25,2015.) After graduating, Plaintiff worked as a
consultant at a private construction firm in 1989. (Mclntyre Dep. 10:12-15.) In 1990, Plaintiff
left her job as a private consultant and took a job as a construction inspector for the Virginia
Department of Transportation ("VDOT"). (Mclntyre Dep. 10:14.) In this role. Plaintiff
inspected the technical aspects of road construction projects. (Mclntyre Dep. 15:9-16:8.) As she
gained experience, Plaintiff sometimes supervised small projects and helped to train new
inspectors, but she was not involved in employee evaluations or personnel decisions. (Mclntyre
Dep. 16:9-18:6.)
In 2004, after fourteen years with VDOT, Plaintiff left to take a position with Defendant.
(Mclntyre Dep. 14:5-24.) Defendant hired Plaintiff as a Construction Inspector II in the
Engineering Division of the Public Works Department. (Mclntyre Dep. 20:15-21:5.) Plaintiffs
duties included inspecting roadway construction and maintenance projects, as well as performing
some customer service duties. (Mclntyre Dep. 21:13-22:18.) At that time. Plaintiffs supervisor
was Ronald Kelvin ("Kelvin"), who held the position of Construction Inspector Supervisor
("CIS"). (Mclntyre Dep. 22:19-23.) Plaintiff did not have any issues with Kelvin during the
'
Pursuant to Local Rule 56(B), a brief in support ofa motion for summary judgment must
contain a section listing all undisputed material facts. E.D. Va. Loc. R. 56(B). Briefs in
response to such motions must contain a section listing those facts "as to which it is contended
that there exists a genuine issue necessary to be litigated." Id. In its memorandum in support of
its motion for summary judgment. Defendant included a list of undisputed facts. (Def.'s Mem. at
2-8.) In her response. Plaintiff did not identify any disputed facts. (Pl.'s Resp. at 1-2; Def's
Reply to Pl.'s Resp. ("Def.'s Reply") (ECF No. 28) at 1-2.) Accordingly, the Court accepts
Defendant's recitation of the facts as undisputed. Nevertheless, the Court construes the facts in
the light most favorable to Plaintiff, the non-moving party. Anderson v. Liberty Lobby, Inc., All
U.S. 242, 248(1986).
time that he supervised her. (Mclntyre Dep. 23:5-7.) In approximately 2008, Jeff Andleton
("Andleton") replaced Kelvin as Plaintiffs supervisory CIS. (Mclntyre Dep. 23:2-12.) Plaintiff
did not have issues getting along with Andleton. (Mclntyre Dep. 23:23-24.) Plaintiff testified
during her deposition that she had no knowledge of comments on her performance evaluations,
from Andleton or other supervisors, related to her race or gender. (Mclntyre Dep. 45:3-14.)
In approximately July 2008, the Director of Public Works, Eric J. Martin ("Director
Martin"), created a new Contractual Services Section within the Department of Public Works.
(Aff. of Eric J. Martin ("Martin Aff.") (ECF No. 24-2)
1-3.) Inspectors already employed by
the Engineering Division were to staff this new section and would be responsible for overseeing
Defendant's services contracts for small construction projects that did not involve road
construction. (Martin Aff. ^3.) Director Martin assigned Project Manager Robert Matkins
("Matkins") to oversee the Contractual Services Section and CIS Kelvin to supervise inspectors
in the section. (Martin Aff. ^ 4.) DirectorMartin solicited volunteers from the Engineering
Division to transfer to the Contractual Services Section, including Plaintiff. (Martin Aff. ^1 5.)
Plaintiff declined to volunteer for a transfer at that time. (Martin Aff. ^ 5; Mclntyre Dep. 26:1018.) Steven Bonniville ("Bonniville"), a Construction Inspector II employed in the Engineering
Division with Plaintiff, volunteered and transferred to the Contractual Services Section.
(Mclntyre Dep. 41:7-l 3.) At an unspecified later date. Plaintiff mentioned her interest in
transferring to the Contractual Services to Director Martin, but Plaintiff neither made a formal
request nor took any other action to effectuate a transfer. (Mclntyre Dep. 41:1-13.)
In June 2010, Kelvin retired from his employment with Defendant. (Martin Aff. TI 6.)
Around that lime. Plaintiff learned that Kelvin's CIS position in the Contractual Services Section
would soon be available. (Mclntyre Dep. 42:13-43:3.) After consulting with Defendant's
Department of Human Resources, Director Martin posted an advertisement and job description
for the CIS position. (Martin Aff ^ 7.) The job description indicated that to be qualified for the
position, candidates must possess an "[ajssociate's degree, vocational technical degree, or
specialized training equivalent to satisfactory completion of two years of college education with
an emphasis in civil engineering or a closely related field." (Martin Aff. ^ 8; Mclntyre Dep. Ex.
3 ("Job Description")^ at 1.) According to Director Martin, this was a standard requirement for
mid-level technical supervisor positions. (Martin Aff. K8.) Plaintiff knew of the Job
Description at the time that she applied for the CIS position on August 2, 2010. (Mclntyre Dep.
57:23-58:7, 60:13-61:11 & Ex. 5 ("Plaintifrs Application")^ at 1.)
In accordance with Defendant's Administrative Regulation 2.41, Defendant's Department
of Human Resources selected five qualified applicants for consideration for the open CIS
position: Plaintiff (an African-American woman), Steven Bonniville (a white man), Douglas
Segura (an Asian-American man), Kurt Leidig (a white man) and Nicholas Has (an Asian-
American man). (Martin Aff. ^ 9 & Ex. 1("Administrative Regulation 2.41")'' at 1-2; Mclntyre
^
Defendant attached the Job Description as Exhibit 3to the Mclntyre Deposition (ECF
No. 24-1). This exhibit is three pages long and is not separately paginated. For purposes of this
Opinion, therefore, the Court refers to the pages of the Job Description as though they were
numbered one through three.
^
Defendant attached Plaintiffs Application for the CIS position as Exhibit 5 to the
Mclntyre Deposition (ECF No. 24-1). This exhibit is four pages long and is not separately
paginated. For purposes of this Opinion, therefore, the Court refers to the pages of Plaintiffs
Application as though they were numbered one through four.
Defendant attached Administrative Regulation 2.41 as Exhibit 1 to the Martin Affidavit
(ECF No. 24-2). This exhibit is separately paginated, and the Court cites to Administrative
Regulation 2.41 according to that pagination.
Dep. Ex. 7 ("Guide to Employee Selection")^ at 1-2.) Plaintiff was qualified based on her
bachelor's degree in construction building technology and her twenty-one years of experience as
a construction inspector, including six years working for Defendant in the Engineering
Department. (Mclntyre Dep. 6:6-8; 10:10-21, 14:25-18:6,20:15-22.) Defendant's Department
of Human Resources deemed Bonniville a qualified applicant based on his thirty-plus years of
experience in construction, surveying and construction inspection, as well as his completion of
numerous technical and supervisory courses while employed by Defendant. (Martin Aff. ^ 10 &
Ex. 2 ("Bonniville's Application")^ at 1-3, Ex. 3 ("Bonniville's Training Record")^)
Defendant's Department of Human Resources invited the five qualified applicants to interview
for the CIS position. (Martin Aff. ^ 10.)
As required by Defendant's policy, a panel of individuals was selected to conduct the
interviews. (Martin Aff ^11.) The three-person panel included Matkins, William Collins, Sr.,
("Collins") and Kim Logan ("Logan"). (Martin Aff II11.) Matkins, a white man, worked as
Plaintiffs supervisor before becoming head of the Contractual Services Section. (Martin Aff
^ 12.) Plaintiff did not have any problems with Matkins. (Mclntyre Dep. 69:3-5.) Collins, an
African-American man, represented the Customer Service Division of Public Works. (Martin
Aff ^13; Mclntyre Dep. 71:6-8.) Logan, an African-American woman, represented Defendant's
Human Resources Department. (Martin Aff ^ 14.)
'
Defendant attached the Guide to Employee Selection as Exhibit 7 to the Mclntyre
Deposition (ECF No. 24-1). This exhibit is separately paginated, and the Court cites to the
Guide to Employee Selection according to that pagination.
^
Defendant attached Bonniville's Application as Exhibit 2 to the Martin Affidavit (ECF
No. 24-2). This exhibit is separately paginated, and the Court cites to Bonniville's Application
according to that pagination.
'
Defendant attached Bonniville's Training Record as Exhibit 3 to the Martin Affidavit
(ECF No. 24-2).
5
The panel interviewed the five selected candidates, and each interviewer scored each
interviewee. (Martin Aff. ^ 15.) Bonniville achieved the highest interview score of the five
candidates, while Plaintiffs score ranked third. (Martin Aff. ^ 15; Mclntyre Dep. Ex. 4
("Interview Summary")® at 1-17.) As required under Administrative Policy 2.41, the interview
panel forwarded the interview scores to the Department of Human Resources. (Martin Aff.
^ 16.) Ultimately, Defendant's Department of Human Resources selected and approved
Bonniville for the position. (Martin Aff. T] 16.) In late August or early September 2010, Plaintiff
received a letter informing her that she was not selected for the CIS position. (Mclntyre Dep.
74:19-24.)
After Plaintiff learned that Bonniville was selected for the position, she sought to use
Defendant's grievance process to challenge Bonniville's selection, arguing that he was not
qualified for the CISjob. (Martin Aff. TI17; Mclntyre Dep. 92:9-12.) Plaintiff believed that she
was the most qualified applicant for the position based on her bachelor's degree and years of
e.xperience working for VDOT and Defendant, but felt that the interview panel did not properly
weigh her VDOT experience in its decision-making process. (Mclntyre Dep. 77:19-78:2, 79:1125, 81:5-8.) As required under Defendant's grievance procedure, Director Martin reviewed the
selection process, including the Job Description, the applications of the five qualified applicants,
the interview questions and each applicant's interview scores, and interviewed the three
members of the interview panel. (Martin Aff ^ 18.) Based on his review. Director Martin
concluded that Bonniville's selection for the CIS position was "fair, legitimate,
®
Defendant attached the Interview Summary, listing the interview questions and each
interviewer's score for the top three candidates, as Exhibit 4 to the Mclntyre Deposition (ECF
No. 24-1). This exhibit is seventeen pages long and is not separately paginated. For purposes of
this Opinion, therefore, the Court refers to the pages of the Interview Summary as though they
were numbered one through seventeen.
nondiscriminatory, and in accordance with City policy and procedure." (Martin Aff. ^ 19.)^
II.
STANDARD OF REVIEW
Summary judgment is appropriate where "the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.
R. Civ. P. 56(a). The relevant inquiry at the summary judgment stage analyzes "whether the
evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law." Liberty Lobby, Inc., All U.S. at 25152. When reviewing a motion for summary judgment, the Court views the facts in the light most
favorable to the nonmoving party. Id. at 255. The Court cannot weigh the evidence; it must
simply determine whether a genuine issue exists for trial. Greater Bait. Or. For Pregnancy
Concerns v. Baltimore, 721 F.3d 264, 283 (4th Cir. 2013) {qnoXxng Liberty Lobby, Inc., All U.S.
at 249).
Once the movant properly makes and supports a motion for summary judgment, the
burden shifts to the opposing party to show that a genuine dispute of material fact exists.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,A15 U.S. 574, 586-87 (1986). The mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
'
Defendant stated in its brief that Plaintiff fails to make clear whether she alleges a hostile
work environment claim in her Complaint. (Def.'s Mem. at 14 n.2.) In an abundance of caution,
Defendant included facts and argument pertinent to such a claim in its brief in the event that the
Court deemed it alleged. Although mindful of the requirement that pro .se complaints be
"liberally construed," Erickson v. Pardiis, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble,
429 U.S. 97, 104-05 (1976)) (internal quotation marks omitted), the Court nevertheless
concludes that Plaintiff failed to allege a cognizable hostile work environment claim. "Principles
requiring generous construction ofpro se complaints arc not, however, without limits .... It
does not require [district] courts to conjure up questions never squarely presented to them.
District judges are not mind readers." Beaudett i'. City ofHampton, 775 F.2d 1274, 1278 (4th
Cir. 1985). Because the Court finds that Plaintiff made no attempt to allege a cognizable hostile
work environment claim or to argue such a claim in her response, consideration of Defendant's
list of undisputed facts and argument regarding the hostile work environment claim is
unnecessary.
properly supported tnotion for summary judgment; the standard requires "that there be no
genuine issue of material fact." Liberty Lobby, Inc., All U.S. at 247. A genuine issue of
material fact arises only when the evidence, viewed in the light most favorable to the nonmoving
party, sufficiently allows a reasonable jury to return a verdict in that party's favor. Id. at 248.
To defeat an otherwise properly supported motion for summary judgment, the non-moving party
must rely on more than conclusory allegations, "mere speculation," the "building of one
inference upon another," the "mere existence of a scintilla of evidence" or the appearance of
some "metaphysical doubt" concerning a material fact. Lewis v. City of Va. Beach Sheriffs
Office, 409 F. Supp. 2d 696, 704 (E.D. Va. 2006) (citations omitted). The Court must enter
summaryjudgment against a party that, "after adequate time for discovery and upon motion,...
fails to make a showing sufficient to establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at trial." Celolex Corp. v. Catretl,
411 U.S. 317, 322 (1986). "In such a situation, there can be 'no genuine issue as to any material
fact,' since a complete failure of proof concerning an essential element of the norunoving party's
case necessarily renders all other facts immaterial." Id at 323.
III.
DISCUSSION
Defendant moves for summary judgment on the basis that Plaintiffhas failed to produce
any evidence that Defendant's rationale for not promoting her to the CIS position served as
pretext for race or gender discrimination in violation of Title VII. (Def.'s Mem. at 1.) Plaintiff
argues that her qualifications, namely her bachelor's degree in building construction technology
and her relevant work experience, were superior to Bonniville's qualifications and that she was
the most qualified candidate for the position. (PL's Resp. at 1-2.) Therefore, Plaintiff reasons,
Defendant's decision to promote Bonniville to CIS instead of her could only have been
8
motivated by discriminatory intent. (PL's Resp. at 1-2.)
A. Title VII Analytical Framework
"Title VII prohibits all discrimination in employment based upon race, sex, and national
origin." Tex. Dep't ofCmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981). A plaintiff opposing
summary judgment in a Title VII case may prove her claim in one of two ways. Diamond v.
Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005). "First,... she may establish a
claim for discrimination 'under the ordinary standards of proof by direct or indirect evidence
relevant to and sufficiently probative of the issue.'" Harris v. Rumsfeld, 428 F. Supp. 2d 460,
465 (E.D. Va. 2006) (quoting EEOC v. Clay Printing Co., 955 F.3d 936, 940 (4th Cir. 1992))
(citing Diamond, 416 F.3d at 318; Hill v. Lockheed Martin Logistics Mgml., Inc., 354 F.3d 211,
284 (4th Cir. 2004); Goldberg v. B. Green & Co., 836 F.2d 845, 847 (4th Cir. 1988)). Second,
"a Title VII plaintiff may proceed under the burden-shifting framework established by the United
States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)." Id. (citing
Diamond, 416 F.3d at 318; Hill, 354 F.3d at 285; Clay Printing Co., 955 F.2d at 940; Goldberg,
836 F.2d at 847). Because Plaintiff presents neither direct nor indirect evidence of
discriminatory intent, the Court analyzes PlaintifPs disparate treatment claim under the
McDonnell Douglas burden-shifting framework.
B. Plaintiff fails to establish her discrimination claim for failure to promote.
"To prevail on her disparate treatment claim of failure to promote, [Plaintiff] must prove
that she was treated less favorably than the other applicants because of her race" or gender.
Harris, 428 F. Supp. 2d at 466 (citing Ander.son v. Westinghou.se Savannah River Co., 406 F.3d
248,268 (4th Cir. 2005); Carter v. Ball, 33 F.3d 450,456 n.7 (4th Cir. 1994)). Under the
McDonnell Douglas approach. Plaintiff must first establish, by the preponderance of the
evidence, a primafacie case of discrimination. Burdine, 450 U.S. at 252-53 (discussing
McDonnell Douglas, 411 U.S. at 802). If Plaintiff successfully establishes her prima facie case,
then the burden shifts to Defendant to articulate some legitimate, nondiscriminatory reason for
denying the promotion to Plaintiff. Id. at 253; Harris, 428 F. Supp. 2d at 466 {oMmg Anderson,
406 F.3d at 268; Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 760 (4th Cir. 1998)). Once
Defendant rebuts Plaintiffs primafacie case by articulating such a reason, the burden shifts back
to Plaintiff to prove by the preponderance of the evidence that Defendant's proffered explanation
is a mere pretext for discrimination. Burdine, 450 U.S. at 253 (citing McDonnell Douglas, 4\ 1
U.S. at 804); Diamond, 416 F.3d at 318 (citing Hill, 354 F.3d at 285). This final step "merges
with [Plaintiffs] ultimate burden of persuading the court that she has been the victim of
intentional discrimination," which remains with Plaintiff at all times. Burdine, 450 U.S. at 256;
Diamond, 416 F.3d at 319 (citing Burdine, 450 U.S. at 253). The Court considers each step in
turn.
1. Plaintiff establishes a primafacie case for race and gender discrimination.
Defendant concedes that Plaintiff establishes the elements of her primafacie case. "The
burden of establishing a primafacie case of disparate treatment is not onerous." Burdine, 450
U.S. at 253. Plaintiff must show that (1) she is a member of a protected group; (2) she applied
for the position at issue; (3) she was qualified for that position; and (4) she was rejected for that
position under circumstances giving rise to an inference of unlawful discrimination. Harris, 428
F. Supp. 2d at 466 (citing Anderson, 406 F.3d at 268; Williams v. Giant Food Inc., 370 F.3d 423,
430 (4th Cir. 2004); Lowery, 158 F.3d at 760); see also Burdine, 450 U.S. at 253 n.6 (citing
McDonnell Douglas, 411 U.S. at 802) (applying McDonnell Douglas framework). To satisfy the
fourth prong, Plaintiff need only show that the position was filled by an applicant who was not a
10
member of the protected group. Carter, 33 F.3d at 458 (citing Patterson v. McLean Credit
Union,49\ U.S. 164, 186-87 (1989); ^///e v. U.S. Dep't ofthe Army, 9\4F.2d 525, 537 (Mh dr.
1990)).
Plaintiff is an African-American woman. (Def.'s Mem. at 10.) She applied for the CIS
position and was qualified for thejob. (Def.'s Mem. at 10.) Defendant ultimately hired
Bonniville, a white man, to fill the CIS position. (Def.'s Mem. at 10.) Because Plaintiff has
carried her initial burden of establishing a primafacie case of race and gender discrimination, the
burden shifts to Defendant to articulate some legitimate, nondiscriminatorj' reason for denying
the promotion to Plaintiff Burdine, 450 U.S. at 253.
2. Defendant rebuts Plaintiffs primafacie case by articulating a legitimate,
nondiscriminatory reason for declining to promote Plaintiff to CIS.
Although Defendant concedes that Plaintiffhas established herprimafacie case of race
and gender discrimination, Defendant contends that it had a legitimate, nondiscriminatory reason
for not promoting Plaintiff. (Def.'s Mem. at 10-12.) In doing so, Defendant readily carries its
burden of producing evidence of a legitimate, nondiscriminatory rationale for its decision not to
promote Plaintiff to CIS.
Once established, "theprimafacie case in effect creates a presumption that the employer
unlawfully discriminated against the employee." Burdine, 450 U.S. at 254. This presumption
"places upon the defendant the burden of producing an explanation to rebut theprimafacie case
— i.e., the burden of 'producing evidence' that the adverse employment actions were taken 'for a
legitimate, nondiscriminatory reason.'" St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,506-07
(1993) (quoting Burdine, 450 U.S. at 254). To carry this burden, "the defendant must clearly set
forth, through the introduction of admissible evidence, the reasons for the plaintiffs rejection."
Burdine, 450 U.S. at 255. Thus, since Plaintiff has successfully established herprimafacie case,
11
Defendant must produce evidence that it promoted Bonniville over Plaintiff for reasons unrelated
to her race or gender to overcome the presumption of discrimination. Id. at 253 (quoting
McDonnell Douglas, 411 U.S. at 802); Harris, 428 F. Supp. 2d at 466 {c\Ung Anderson, 406 F.3d
at 268; Lowery, 158 P.3d at 760).
In this case, Defendant proffers that it promoted Bonniville over Plaintiff, because
Bonniville attained the highest interview scores of the five qualified applicants who interviewed
for the CIS position. (Def.'s Mem. at 11-12.) Defendant asserts that its "reason for selecting
Bonniville was consistent with its internal policies and procedures which themselves were
designed to ensure a legitimate and nondiscriminatory process for filling vacancies from internal
candidates." (Def.'s Mem. at 12.)
To fill the open CIS position, Defendant engaged in a multi-step selection process
independently supervised by the Department of Human Resources as required by Administrative
Regulation 2.41. (Martin Aff.
7-9; Administrative Regulation 2.41; Guide to Employee
Selection at 1-3.) Director Martin posted the Job Description listing the prerequisites that
applicants must possess to qualify for consideration. (Martin Aff.
7-8; Job Description.)
These requirements included, in pertinent part, an "[a]ssociate's degree, vocational technical
degree, or specialized training equivalent to satisfactory completion of two years of college
education with an emphasis in civil engineering or a closely related field." (Martin Aff. ^ 8; Job
Description at 1.)
In accordance with Administrative Regulation 2.41, Defendant's Department of Human
Resources determined that Plaintiff and four other applicants satisfied the educational and
experiential prerequisites for the position and were qualified to advance to the interview stage of
the selection process. (Martin Aff.
9-10; Guide to Employee Selection at 1-2.) Plaintiffs
12
qualifications included a bachelor's degree in building construction technology and twenty-one
years of experience as a construction inspector, including approximately six years working in
Defendant's Engineering Department. (Mclntyre Dep. 6:6-8; 10:10-21, 14:25-18:6,20:15-22;
Plaintiffs Application at 1-4.) Bonniville's qualifications included numerous technical
certifications and supervisory courses over the course of his employment with Defendant and
more than thirty years of experience working for Defendant in construction, surveying and
construction inspection. (Martin Aff. ^ 10; Bonniville's Application at 1-3; Bonniville's
Training Record.) Further, Bormiville had worked in the Contract Services Section since its
creation in 2008. (Mclntyre Dep. 41:7-13.)
Defendant selected three diverse and qualified employees — an African-American
woman, a white man and an African-American man — to interview the five applicants. (Martin
Aff. ^11.) The panel asked the five candidates the same set of questions and individually scored
their responses to each question. (Martin Aff. H 15.) Bonniville earned the highest total
interview score of the five applicants; Plaintiff ranked third. (Martin Aff ^ 15; Interview
Summary at 1-17.) The Department of Human Resources reviewed the interview scores and
selected Bonniville for the CIS position. (Martin Aff. ^ 15.) The selection process for the CIS
position was carried out as required under Defendant's ovsti hiring regulation, the stated purpose
of which is to "ensure[] that all applicants have an equal opportunity to compete for open
positions on the basis of their knowledge, skills, and abilities." (Martin Aff
7-19;
Administrative Regulation 2.41 at 1.)
Defendant provides ample support for its decision to promote Bonniville, including the
affidavit of Director Martin, Administrative Regulation 2.41, the Guide to Employee Selection,
the Job Description, Plaintiffs Application, Bonniville's Application, Bonniville's Training
13
Record and the Interview Summary. (Def.'s Mem. at 11-12; Martin Aff. 1!^ 8-15.) This
supporting documentation clearly establishes that although Plaintiff and Bonniville were both
qualified for the CIS position, Defendant promoted Bonniville over Plaintiff for reasons
unrelated to race and gender. Specifically, Defendant promoted Bonniville over Plaintiff,
because Bonniville achieved the highest score of the five applicants during the interview process,
whereas Plaintiff only ranked third. Thus, Defendant has successfully rebutted the presumption
of discrimination by articulating a valid and nondiscriminatory reason for declining to promote
Plaintiff to CIS.
3. Plaintiff fails to prove that Defendant's reason for not promoting Plaintiff was a
mere pretext for discrimination.
Defendant next argues that, because Plaintiff fails to show that Defendant's asserted
reason for not promoting her constitutes a mere pretext for race and gender discrimination, the
Court must enter summary judgment in Defendant's favor. (Def.'s Mem. at 12-14.) Plaintiff
simply responds that she possessed superior qualifications for the CIS position. (Pl.'s Resp. at 1-
2.) Consequently, Plaintiff fails to carry her burden of establishing pretext.
Once Defendant rebuts Plaintiffs primafacie case by articulating a legitimate and
nondiscriminatory reason for its decision not to promote her, "the McDonnell Douglas
framework — with its presumptions and burdens — disappear[s], and the sole remaining issue
[is] discrimination vel non." Diamond, 416 F.3d at 318 (alteration in original) (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000)) (internal quotation marks
omitted). To prevail on her claim, therefore, Plaintiff must prove by a preponderance of the
evidence that Defendant's proffered explanation serves as a mere pretext for discrimination.
Burdine, 450 U.S. at 253 (citing McDonnell Douglas, 411 U.S. at 804); Diamond, 416 F.3d at
318 (citing Hill, 354 F.3d at 285). "A plaintiff alleging a failure to promote can prove pretext by
14
showing that [she] was better qualified, or by amassing circumstantial evidence that otherwise
undermines the credibility of the employer's stated reasons." Hia v. City ofNewport News, 451
F.3d 311, 315 (4th Cir. 2006) (quoting Heiko v. Colombo Savings Bank, F.S.B., 434 F.3d 249,
259 (4th Cir. 2006)) (alteration in original) (internal quotation marks omitted). "The general
standards for summary judgment naturally inform any assessment of whether a plaintiff has
provided sufficient evidence of pretext such that her case may proceed to trial." Id. (citing
Anderson, 406 F.3d at 272; Mereish v. Walker, 359 F.3d 330, 339 (4th Cir. 2004)).
Employers have "discretion to choose among equally qualified candidates, provided the
decision is not based upon unlawful criteria." Burdine, 450 U.S. at 259. Thus, when considering
whether Plaintiff has established pretext, the Court must "assess relative job qualifications based
on the criteria that the employer has established as relevant to the position in question." Heiko,
434 F.3d at 259 (citing Anderson, 406 F.3d at 269). Plaintiff "cannot establish her own criteria
forjudging her qualifications for the promotion. She must compete for the promotion based on
the qualifications established by her employer." Anderson, 406 F.3d at 269. To that same end.
Plaintiff"cannot simply compare herselfto otheremployees on the basis of a single evaluative
factor artificially severed from the employer's focus on multiple factors in combination." Hia,
451 F.3d at 315 (c\\\x\gAnderson, 406 F.3d at 271); Diamond, 416 F.3d at 319-20. Further,
Plaintiffs own perceptions of her qualifications are irrelevant — "Mt is the perception of the
decision maker which is relevant,' not the self-assessment of the plaintiff." Evans v. Techs.
Applications
Serv. Co., 80 F.3d 954, 960-61 (4th Cir. 1996) (quoting Smith v. Flax, 618 F.2d
1062, 1067 (4th Cir. 1980)).
In this case, despite the undisputed evidence that Bonniville was selected for promotion
because he earned the highest interview score of the five candidates who interviewed. Plaintiff
15
asserts that she was the most qualified applicant for the CIS position. (PL's Resp. at 1-2.)
Indeed, the entire basis of Plaintiff s claim rests upon her belief that her academic credentials and
work experience made her a superior candidate to Bonniville. (PL's Resp. at 1-2.) Promoting
her to CIS, Plaintiff argues, "would have been [Defendant's] perfect opportunity of showing
fairness in the workplace." (PL's Resp. at 2.) The parties do not dispute that the prerequisites
for the CIS position included an "[a]ssociate's degree, vocational technical degree, or specialized
training equivalent to satisfactory completion of two years of college education with an emphasis
in civil engineering or a closely related field" at the time that Plaintiff applied for the position.
(Mclntyre Dep. 57:23-58:11.) Further, neither party disputes that Defendant's Department of
Human Resources determined that Bonniville satisfied this requirement by virtue of his extensive
experience working for Defendant in the fields of construction, surveying and construction
inspection, and that Plaintiff satisfied this requirement by virtue of her bachelor's degree.
(Def.'s Mem. at 13 (citing Martin Aff. ^ 10; Bonniville's Application at 1-3; Bonniville's
Training Record).) Therefore, both Bonniville and Plaintiff satisfied the minimum educational
and experiential requirements for the CIS position.
But Defendant's decision to promote Bonniville rather than Plaintiff was not based on
their relative academic achievements. Rather, Defendant proffers that it promoted Bonniville,
because he scored higher than the other four applicants on his interview, whereas Plaintiff ranked
third out of five. (Def.'s Mem. at 11-14.) As discussed above. Defendant has produced ample
evidence to support this assertion. (Def.'s Mem. at 11-12.) As the Fourth Circuit noted in Evans
V. Technologies Applications & Service Co., "[j]ob performance and relative employee
qualifications are widely recognized as valid, non-discriminatory bases for any adverse
employment decision." 80 F.3d at 960. "Interview scores are an important tool that employers
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use to make all sorts of hiring decisions, and [the court] may not lightly overturn the reasonable
conclusions an employer reaches after actually meeting with a candidate face-to-face." Mux, 415
F.3dat319.
Defendant's decision to promote Bonniville to CIS after he earned the top interview score
suggests that the very purpose of the interview was to determine who among the qualified
applicants was most qualified for the position. See Harris, 428 F. Supp. 2d at 468 ("The purpose
of the interview itself was to assess the relative skills of the applicants."). When Defendant has
produced evidence to support its proffer that it promoted Bonniville based on his superior
interview performance, Plaintiff cannot reframe the selection criteria to make it more favorable
for herself. Hiix, 415 F.3d at 315 (ching Anderson, 406 F.3d at 271); Anderson, 406 F.3d at 269;
Diamond, 416 F.3d at 319-20. Indeed, Plaintiff offers nothing more than her own assessment of
her credentials in support of her argument that Defendant's decision to promote Bonniville
instead of her was the product of discriminatory intent. Because it is Defendant's assessment of
Bonniville's and Plaintiffs relative qualifications that controls — not Plaintiffs — the Court
finds that Plaintift' fails to show that Defendant's proffered reason for not promoting her
constitutes pretext. See Heiko, 434 F.3d at 259 (citing Anderson, 406 F.3d at 269) (stating that
the Court must "assess relative job qualifications based on the criteria that the employer has
established as relevant to the position in question").
Plaintiff offers no other argument or evidence to buttress her claim with regards to
pretext.She does not suggest any flaw in the interview panel's scoring system or dispute the
As the non-movant, Plaintiff has a duty to offer evidence establishing a triable issue and
to cite to "particular parts of materials in the record" to support her arguments. Fed. R. Civ. P.
56(c)(1)(A); E.D. Va. Loc. R. 56(B). Although Plaintiff submitted some evidence with her
response, including the Determination of the Equal Employment Opportunity Commission, she
neither disputed Defendant's recitation of the facts, nor offered her own. (PL's Resp. at 1-2 &
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fairness of tiie panel's scoring results. In a factually similar case, the Fourth Circuit held that
even if it assumed that the plaintiff had more experience than the candidate who was hired, "in
the face of [the defendant's] nondiscriminatory — and unanswered — explanation for not
promoting [the plaintifQ, we must conclude that [the plaintiff] has failed to forecast sufficient
evidence of pretext to avert summary judgment" in favor of the defendant. Diamond, 4\6 F.3d
at 320 (citation omitted). And in the face of no iniquitous evidence offered by Plaintiff, it is the
"affirmative obligation of the trial judge to prevent factually unsupported claims and defenses
from proceeding to trial." Drewiit v. Pra(f, 999 F.2d 774, 778-79 (4th Cir. 1993). Because
Plaintiff fails to establish that Defendant's articulated explanation for its decision not to promote
her was a mere pretext for discrimination, her claim must fail.
IV.
CONCLUSION
For the reasons set forth above, the Court finds that Plaintiff failed to establish that
Defendant unlawfully discriminated against her on the basis of her race and gender in violation
of Title VII by declining to promote her. Accordingly, the Court GRANTS Defendant's Motion
Exs. 1-4.) Instead, despite Rule 56's clear requirements and her ample opportunity to propound
discovery, Plaintiff reiterates and relies on the allegations in her Complaint (ECF No. 4) and her
own assertions regarding Defendant's promotion process. (Pl.'s Resp. at 1-2.) Thus, she fails to
raise a genuine dispute of material fact as required to overcome summary judgment on her Title
VII claim.
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(ECF No. 22). An appropriate order shall issue.
The Clerk is directed to file tliis Opinion electronically and send a copy to pro se Plaintiff
at her address of record and to all counsel of record.
It is so ORDERED.
/s/
David J. Novak
United States Magistrate Judge
Richmond, Virginia
Date: April 30. 2015
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