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Opinion issued January = 25,=20 2006

















In=20 The

Court of=20 Appeals

For=20 The

First=20 District of Texas



NO. = 01-04-01160-CV


PATRICIA = DAVIS,=20 Appellant



V.


HOUSTON = COMMUNITY=20 COLLEGE SYSTEM, Appellee



On = Appeal from the=20 152nd District Court

Harris = County,=20 Texas

Trial = Court Cause=20 No. 2003-25164



MEMORANDUM=20 OPINION

Patricia Davis, appellant, = appeals the=20 trial court's granting of summary judgment against her and in = favor of=20 appellee Houston Community College System (HCC). Davis sued HCC = for race=20 discrimination. See Tex. Lab. Code Ann. =A7 21.051 = (Vernon=20 2006). The trial court rendered summary judgment in favor of HCC. = In her=20 sole issue on appeal, Davis contends that a remark made by an HCC = employee=20 about the race of another employee is sufficient evidence to show = a=20 genuine issue of material fact that Davis was not hired by HCC due = to her=20 race. We conclude that Davis has not raised a fact issue as to = whether the=20 racially neutral reason proffered by HCC to justify its hiring = decision=20 was false or a pretext for discrimination. Accordingly, we = affirm.

Background

In the=20 spring of 2001, Davis, an African-American woman holding a = master's degree=20 in counseling, applied for a full-time position as a counselor at = HCC's=20 West Loop campus. A long-time employee of HCC, Davis had been at = the West=20 Loop campus as a counselor for about one-and-one-half years under = a=20 temporary, month-to-month contract.

Kathy=20 Lockwood, chair of the counseling department at the West Loop = campus, led=20 a screening committee in charge of initially evaluating the = applicants.=20 The screening committee examined the 48 written applications and = narrowed=20 the pool to nine people, including Davis. The screening committee = then=20 interviewed the nine people, and again narrowed the pool of = applicants to=20 three people, including Davis. When one of the three people = withdrew his=20 name from consideration because he received other employment, the = pool was=20 limited to two applicants, Davis and Sandy Nemeth, an Anglo woman = with a=20 Master's Degree in Curriculum and Instruction.

Davis and=20 Nemeth were again interviewed, but this time by "the final = selection=20 committee" that was composed of only two people, Lockwood and = Irene=20 Porcarello, Dean of Student Development at HCC's Southwest = College.=20 Lockwood and Porcarello asked the two candidates questions that = had been=20 approved by the Human Resources Department. After conducting both=20 interviews, Lockwood gave Nemeth a higher rating and recommended = Nemeth=20 for the position. Porcarello, however, gave the two candidates = equal=20 rankings.

After the=20 interviews, and before a decision was made, Porcarello and Nemeth=20 discussed "how the interviews had gone." During those discussions, = Porcarello concurred with Lockwood that Nemeth was the better = candidate.=20 Lockwood described her role in the hiring process by stating that = she=20 "assisted [Porcarello] in the selection process."

Although=20 Lockwood assisted with the selection process, Porcarello=20 maintains

that her=20 decision regarding which candidate to hire was made independently. = Porcarello's affidavit states that Lockwood "was present for the=20 interviews, [but] I was charged with making the final = recommendation to=20 the President." Porcarello also asserts in her affidavit that she=20 "independently decided" that Nemeth was the "better candidate, = based on=20 her greater experience." Porcarello further states that "nothing = Ms.=20 Lockwood said influenced my decision to recommend Ms. Nemeth, = because I=20 had already made that decision based on my personal evaluation of = the two=20 candidates." Porcarello testified similarly in her deposition that = she=20 "made the final decision . . . as the lead person, Dean of Student = Services."

Later that=20 year, in the summer of 2001, Lockwood was reprimanded for making = an=20 inappropriate racial comment to a fellow employee, Mary Page, who = was an=20 African-American counselor at HCC's Southwest College. That = incident arose=20 when Porcarello asked Lockwood to inform Page that Page was being=20 transferred from the Southwest College to the Stafford campus = because Page=20 was frequently absent from work and her absences could better be=20 accommodated at the larger campus. Rather than discuss the = absences,=20 Lockwood informed Page that Page was being transferred because = "there=20 needs to be a greater presence of white counselors at the West = Loop=20 campus." Page complained about Lockwood's comment, and after an=20 investigation, HCC's president removed Lockwood from her position = as chair=20 of the counseling department and required her to participate in=20 sensitivity training. After learning of Lockwood's inappropriate = comment=20 concerning the race of counselors at the HCC campus, Davis filed = this=20 lawsuit contending that she was not hired for the counselor = position due=20 to her race.

Standard = of=20 Review

We review summary judgments de = novo.=20 Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 = (Tex.=20 2005). Summary judgment is proper only when the movant establishes = that=20 there is no genuine issue of material fact and that the movant is = entitled=20 to judgment as a matter of law. Tex. R. Civ. P. 166a(c). The = motion must=20 state the specific grounds relied upon for summary judgment. = Id.=20 In reviewing a traditional summary judgment, we must indulge every = reasonable inference in favor of the nonmovant, take all evidence=20 favorable to the nonmovant as true, and resolve any doubts in = favor of the=20 nonmovant. Valence, 164 S.W.3d at 661.

Elements of=20 Claim of Discrimination

The=20 relevant portion of the Texas Labor Code states, "An employer = commits an=20 unlawful practice if because of race . . . the employer . . . = fails or=20 refuses to hire an individual . . . ." Tex. Lab. Code Ann. =A7 = 21.051(1). A=20 claim for discrimination has three steps with shifting burdens of = proof.=20 Here, the parties do not challenge the first two steps, and = dispute only=20 whether the third step has been met.=20 (1)

The third=20 step, which is the step that is disputed in this motion for = summary=20 judgment, places the burden of proof on the plaintiff. See = Crawford v.=20 Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000). To = prevail=20 on her claim of discrimination, Davis must produce evidence from = which a=20 reasonable juror could infer that HCC's proffered reason for not = promoting=20 her is false and a pretext for discrimination. See id. A=20 plaintiff's prima facie case, "combined with sufficient evidence = to find=20 that the employer's asserted justification is false, may permit = the trier=20 of fact to conclude that the employer unlawfully discriminated."=20 Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 148, = 120 S.=20 Ct. 2097, 2109 (2000). The question here is whether Lockwood's = role in the=20 selection process is sufficient to raise a genuine issue of = material fact=20 that HCC did not hire Davis due to Davis's race.

HCC's=20 Reasons for Failing to Hire Davis

HCC's=20 motion for summary judgment contends that Davis has failed to = produce any=20 evidence to show that HCC's proffered reason for not promoting her = is=20 false and a pretext for discrimination and that Davis's race was a = substantial or motivating factor in the decision to promote = another=20 candidate ahead of her. See Crawford, 234 F.3d = at 902.=20 Davis responds that she has produced some evidence to show that = HCC's=20 proffered reason for not promoting her is false and a pretext for=20 discrimination. See id. Davis relies on two arguments. = First,=20 Davis claims that she is more qualified for the position than = Nemeth.=20 Second, Davis contends that Lockwood participated in hiring Nemeth = and=20 that Lockwood made a discriminatory statement about the need for = Anglo=20 counselors at the HCC campus later during the year. We agree with = the=20 trial court that Davis fails to raise facts from which a = reasonable juror=20 could infer that HCC's reasons for hiring Nemeth were false or a = pretext=20 for discrimination.

A.=20 Comparative Qualifications of Candidates

Davis=20 asserts that, as the candidate who holds a Master's degree in = Counseling,=20 she is more qualified for the counseling position than Nemeth.=20 HCC responds that Nemeth = not only had=20 a Master's degree in Curriculum and Instruction that met the job=20 description, but also had more years of experience as a counselor = than=20 Davis.

The Fifth Circuit has = recognized that=20 courts are "not well suited by training and experience to evaluate = qualifications." Odom v. Frank, 3 F.3d 839, 847 (5th Cir. = 1993).=20 "[U]nless disparities in curricula vitae are so apparent as = virtually to=20 jump off the page and slap us in the face, we judges should be = reluctant=20 to substitute our views for those of the individuals charged with = the=20 evaluation duty by virtue of their own years of experience and = expertise=20 in the field in question." Id.; see also Scott v. = Univ. of=20 Miss., 148 F.3d 493, 508 (5th Cir. 1998); E.E.O.C. v. La. = Office=20 of Cmty. Serv., 47 F.3d 1438, 1444 (5th Cir. = 1995).

HCC's evidence shows that = Nemeth had a=20 Master's Degree in Curriculum and Instruction, which met the job=20 description that required a "Master's Degree in Counseling and = other=20 related fields of study." Porcarello testified at her deposition = that=20 "Curriculum and Instruction" is considered a related field of = study that=20 meets the academic requirements of the position.

HCC's evidence also shows that = Nemeth had=20 more experience as a counselor--11 years, in contrast to Davis's=20 one-and-one-half. Porcarello noted that Nemeth had been a = full-time=20 counselor at Northwest College for six years, where she counseled = disabled=20 students in issues related to the Americans with Disabilities Act. = She=20 also had worked as a part-time counselor for five years and had "a = wealth=20 of experience in different fields." Although Porcarello scored = Davis and=20 Nemeth equally after interviewing both of them, Porcarello = explained that=20 she broke the tie by going with the candidate who had the most = counseling=20 experience.

HCC's evidence shows that = Nemeth was=20 qualified for the position and thus no disparity in qualifications = exists=20 that raises a fact issue on any discriminatory intent. See = Odom,=20 3 F.3d at 847. We conclude that Davis has failed to raise a fact = issue=20 concerning her claim that she was more qualified than Nemeth.=20 (2)

B. Lockwood's = Participation in=20 the Selection Process

Because the evidence = undisputedly shows=20 that Lockwood assisted in the selection process and consulted with = Porcarello before Porcarello made the decision to recommend the = hiring of=20 Nemeth, Davis further asserts that Lockwood, who Davis contends = was=20 racially biased against African-Americans, improperly affected the = hiring=20 decision by HCC, thus raising a fact issue as to HCC's = discriminatory=20 intent. HCC responds that it is undisputed that Porcarello made = the=20 independent and final decision regarding who to recommend for = hiring.=20 Moreover, Davis conceded in her deposition that Porcarello was not = biased=20 against her on the basis of race.

Davis has not shown a causal = nexus=20 between Lockwood's remark and the hiring decision by Porcarello at = issue=20 in this case. Lockwood's inappropriate comment was made to Page, = another=20 employee at HCC, and was not to Davis or about Davis. Moreover, = the=20 screening committee led by Lockwood recommended Davis as a = possible=20 candidate for the counselor position, together with two others,=20 (3) from an applicant pool of 48 people. Thus Davis has = failed=20 to raise a fact issue regarding a nexus between the later comment = made by=20 Lockwood to another employee and Porcarello's decision not to = recommend=20 Davis. See Smith v. Firestone Tire & Rubber Co., 875 = F.2d=20 1325, 1330 (7th Cir. 1989) ("Such remarks, as offered by the = plaintiff,=20 when unrelated to the decisional process, are insufficient to = demonstrate=20 that the employer relied on illegitimate criteria, even when such=20 statements are made by the decision-maker in issue. Plaintiff has = failed=20 to provide the requisite nexus between the statements made by the=20 defendant and the demotion of the plaintiff to demonstrate that=20 plaintiff's race was a 'substantial factor' in the defendant's=20 decision."); see also Price Waterhouse v. Hopkins, 490 = U.S. 228,=20 251, 109 S. Ct. 1775, 1791 (1989) ("Remarks at work that are based = on sex=20 stereotypes do not inevitably prove that gender played a part in a = particular employment decision. The plaintiff must show that the = employer=20 actually relied on her gender in making its decision."). =

Davis relies on Porcarello's = acknowledged=20 compliance with HCC's Screening Committee Guidelines as some = evidence that=20 Lockwood affected Porcarello's hiring decision. HCC's guidelines = state=20 that "Members of the Screening Committee provide applicant = evaluation,=20 input, attend meetings, maintain confidentiality about information = on all=20 candidates, and work as a cooperative team to achieve consensus of = decisions." Porcarello's deposition testimony, however, explains = that=20 there were two phases for hiring. One was the screening committee = that she=20 did not participate in, and the latter was her sole decision, = after=20 discussions with Lockwood. HCC's screening committee guidelines = were=20 pertinent to the first phase of hiring. Davis's complaint, = however, is=20 related solely to the final decision to hire Nemeth over her. = HCC's=20 screening committee guidelines at the first stage of hiring did = not affect=20 the ultimate hiring decision because the committee did not reject = Davis,=20 but recommended her as a finalist. Porcarello's compliance with = the=20 screening committee guidelines, therefore, is no evidence that = Lockwood=20 affected the final hiring decision.

HCC contends that the facts = here are=20 similar to those in Cesaro v. Lakeville Community School=20 District, in which the court held that Cesaro failed to = establish=20 discrimination under circumstances that showed that board members = of the=20 school district, not the superintendent, made the ultimate hiring=20 decision, and that Cesaro had been one of the finalists chosen by = the=20 screening committee. 953 F.2d 252 (6th Cir. 1992). Although = Cesaro=20 alleged that a lower-level supervisor was improperly biased = against her=20 due to her gender, the court noted that the final decision-maker = was not=20 improperly biased and hired the more qualified candidate. = Id.=20 Here, although Davis alleges that Lockwood showed bias, the = screening=20 committee led by Lockwood chose Davis as a finalist, and the = ultimate hiring decision was made by = Porcarello,=20 not by Lockwood. The holding in Cesaro supports HCC's = claim that=20 Davis has failed to make a showing of discrimination by = Porcarello.=20 See id.

Davis further contends that = Porcarello's=20 affidavit in support of the motion for summary judgment contains a = false=20 statement, and asserts that the trier of fact may "infer the = ultimate fact=20 of discrimination from the falsity of the employer's explanation." = Reeves, 530 U.S. at 147, 120 S. Ct. at 2108. Davis = identifies as=20 a false statement Porcarello's statement in her affidavit that = "nothing=20 Ms. Lockwood said influenced my decision to recommend Ms. Nemeth, = because=20 I had already made that decision based on my personal evaluation = of the=20 two candidates."=20 (4) Even when we view = this=20 evidence in a light most favorable to Davis, we cannot conclude = that the=20 record shows that Porcarello made false statements about how she = reached=20 her hiring decision. Porcarello consistently acknowledges that she = had=20 discussions with Lockwood during the hiring process. Porcarello's=20 statement that she was not "influenced" in her decision by her = discussions=20 with Lockwood is not inconsistent with the fact that she had the=20 discussions. The evidence in this case thus is unlike the evidence = in=20 Reeves, where the employee "made a substantial showing = that [the=20 employer's] explanation was false." Id. at 144, 120 S. = Ct. at=20 2107. Although Lockwood undisputedly participated in the selection = process, it is also undisputed that Porcarello, as dean of the = college,=20 was the final decision-maker and states that she independently = decided not=20 to hire Davis because Nemeth had more counseling experience. = Compare=20 Russell v. McKinney Hosp. Venture, 235 F.3d 219, 227 (5th = Cir. 2000)=20 (holding plaintiff proved discrimination by person who was not = formal=20 decision-maker because person wielded "sufficiently great = 'informal' power=20 within Homecare that he effectively became the decision maker with = respect=20 to Russell's termination") with Lampallas v. Mini-Circuits, = Lab.,=20 Inc., 163 F.3d 1236, 1249-50 (11th Cir. 1998) (refusing to = impute=20 supervisor's bias to president when president met personally with=20 plaintiff to discuss situation before firing her). We note further = that=20 Davis conceded in her deposition that Porcarello did not have any = racially=20 discriminatory bias against her. Any discriminatory intent by = Lockwood,=20 therefore, cannot be imputed to Porcarello. See = Willis v.=20 Marion, 118 F.3d 542, 546 (7th Cir. 1997) ("Statements by=20 subordinates normally are not probative of an intent to retaliate = by the=20 decision maker."); Blanding v. Pa. State Police, 12 F.3d = 1303,=20 1308 (3d Cir. 1993) (holding alleged racial bias of officer who=20 investigated allegations against plaintiff that resulted in his=20 termination did not prove discrimination, where plaintiff's = supervisor=20 based termination on independent review of objective evidence).=20 We hold=20 that Davis has failed to raise a genuine issue of material fact = that she=20 was not hired due to her race.=20

We overrule=20 Davis's sole issue in this appeal.






Conclusion

We affirm the trial court's=20 judgment.





Elsa Alcala

Justice


Panel consists of Chief Justice = Radack=20 and Justices Alcala and Bland.=20

1. The first step in establishing a claim of = discrimination places the burden on the plaintiff to make a prima = facie=20 case of race discrimination. HCC concedes for the purposes of the = motion=20 for summary judgment that Davis has established the four elements = that=20 make a prima facie case for race discrimination because (1) she is = a=20 member of a protected class, (2) she was qualified for her = position, (3)=20 she was subject to an adverse employment action, and (4) she was = treated=20 less favorably than others outside the protected class who were = similarly=20 situated to her. See Okoye v. Univ. of Tex. Houston Health = Science=20 Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001). The second step = in=20 establishing a claim of discrimination places the burden on the = defendant=20 to articulate a legitimate, nondiscriminatory reason for failing = to=20 promote Davis to the counselor position. See Tex. Dep't of = Cmty.=20 Affairs v. Burdine, 450 U.S. 248, 260, 101 S. Ct. 1089, 1097 = (1981).=20 HCC contends that the legitimate, nondiscriminatory reason for = failing to=20 promote Davis to the counselor position is that "Nemeth had more=20 applicable counseling experience." Davis does not challenge that = HCC has=20 articulated a legitimate, nondiscriminatory reason for failing to = promote=20 Davis to the counselor position. See id., 101 S. Ct. at = 1097.=20

2. Davis's=20 subjective belief that her failure to be promoted was race = discrimination=20 "is not enough to survive a summary judgment motion, in the face = of proof=20 showing an adequate nondiscriminatory reason." Patton v. = United Parcel=20 Serv., Inc., 910 F. Supp. 1250, 1263 (S.D. Tex. = 1995).=20

3. One applicant dropped out before the = final=20 interviews.=20

4. Davis contends that this assertion = is=20 inconsistent with other statements by Porcarello and Lockwood. = Davis=20 points to Porcarello's other testimony, which is as = follows:


Q. After you consulted with Kathy Lockwood and got her input - = -

A. Yes.

Q. - - that you made your decision.

A. Yes. And also input from our President.

Q. Okay. Who did Kathy Lockwood recommend?

A. When we met she did not recommend Patricia Davis.


Davis also points to Lockwood's testimony that states


Q. And prior to Irene [Porcarello] recommending the hiring of = Sandy=20 Nemeth, as full-time counselor, you told Ms. Porcarello that you = believed=20 Sandy Nemeth was the better candidate?

A. Yes, I did.

Q. So, you assisted her in the selection process?

A. Yes, I = did.

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