Appeal by respondent from order entered 18 September 2002 by
Judge Abraham Penn Jones in Orange County Superior Court. Heard in
the Court of Appeals 14 October 2003.
McSURELY & OSMENT, by Alan McSurely and Ashley Osment, for
petitioner-appellee.
Attorney General Roy Cooper, by Assistant Attorney General
Kathryn J. Thomas, for respondent-appellant.
TIMMONS-GOODSON, Judge.
University of North Carolina Hospitals (“respondent”) appeals
the trial court order granting judgment in favor of Robin B. Smith
(“petitioner”). For the reasons discussed herein, we reverse.
The facts and procedural history pertinent to the instant
appeal are as follows: On 14 October 1999, petitioner filed a
contested case petition with the Office of Administrative Hearings,
alleging that respondent denied petitioner a promotion based upon
discriminatory and impermissible selection factors. In the spring
of 2002, petitioner's case was heard before an Administrative Law
Judge (“ALJ”). Petitioner, a forty-three-year-old African-American
female, argued that respondent denied her a promotion in favor ofBert Basabe (“Basabe”), a thirty-eight-year-old Hispanic male.
Petitioner alleged that respondent based its decision to select
Basabe on petitioner's race, color, sex, and age. After hearing
testimony and receiving evidence from both parties, the ALJ
concluded that petitioner had failed to establish a prima facie
case on any of the alleged grounds of discrimination. The ALJ also
concluded that petitioner had failed to establish a prima
facie case of retaliation, and had failed to demonstrate a
disparate impact in the hiring processes of respondent. In an
order filed 14 July 2000, the ALJ recommended that the State
Personnel Commission (“SPC”) affirm respondent's decision not to
promote petitioner.
After considering the ALJ's recommended decision, the SPC
concluded that petitioner had failed to meet her burden of proving
that respondent had discriminated against her on the basis of race,
color, sex, or age. In an order filed 12 January 2001, the SPC
adopted the ALJ's findings of fact and conclusions of law, thereby
affirming respondent's decision not to promote petitioner.
Petitioner appealed the SPC's decision to the superior court.
After considering oral and written arguments from the parties, the
trial court concluded that the SPC had failed to apply the proper
legal standard to petitioner's claim. Specifically, the trial
court concluded that the SPC had failed to consider applicable case
law in reaching its decision, most notably the Supreme Court's
holding in Reeves v. Sanderson Plumbing Prod., 530 U.S. 133, 147 L.
Ed. 2d 105 (2000). The trial court also examined the merits ofpetitioner's claim, and in an order entered 18 September 2002, the
trial court reversed the SPC's decision and held that petitioner
had sufficiently demonstrated claims of race, color, age, and sex
discrimination. It is from this order that respondent appeals.
The issues on appeal are whether the trial court erred by:
(I) choosing to apply the
de novo standard of review; and (II)
concluding that the SPC decision contained errors of law. We note
initially that “an appellate court's obligation to review a
superior court order examining an agency decision 'can be
accomplished by addressing the dispositive issue(s) before the
agency and the superior court without examining the scope of review
utilized by the superior court.'”
Shackleford-Moten v. Lenoir Cty.
DSS, 155 N.C. App. 568, 572, 573 S.E.2d 767, 770 (2002) (quoting
Capital Outdoor, Inc. v. Guilford Cty. Bd. of Adjust., 146 N.C.
388, 392, 552 S.E.2d 265, 268 (2001) (J. Greene, dissenting),
rev'd
per curium, 355 N.C. 269, 559 S.E.2d 547 (2002)),
disc. review
denied, 357 N.C. 252, 582 S.E.2d 609 (2003). Thus, we need not
address respondent's arguments concerning the trial court's
decision to apply
de novo review, and we therefore limit our
present review to those arguments regarding the trial court's
analysis of the instant case.
Moreover, because our review of the trial court's order “is
the same as in any other civil case -- consideration of whether the
court committed any error of law[,]”
we will review the trial
court's order
de novo.
In re Appeal by McCrary, 112 N.C. App. 161,165, 435 S.E.2d 359, 363 (1993).
De novo review requires that the
reviewing court consider the matter anew, thereby freely
substituting its own judgment for that of the trial court.
Sutton
v. N.C. Dep't of Labor, 132 N.C. App. 387, 388-89, 511 S.E.2d 340,
341 (1999). Based upon this standard, we will impose our own
judgment on this matter consistent with the record on appeal.
N.C. Gen. Stat. § 126-16 (2003) requires that equal
opportunity be given to both applicants to and employees of state
agencies, providing as follows:
All State departments and agencies and all
local political subdivisions of North Carolina
shall give equal opportunity for employment
and compensation, without regard to race,
religion, color, creed, national origin, sex,
age, or handicapping condition . . . . This
section with respect to equal opportunity as
to age shall be limited to individuals who are
at least 40 years of age.
Where a claimant alleges employment discrimination, the
Supreme Court has established a burden-shifting scheme of review,
where the following standards apply:
(1) The claimant carries the initial burden
of establishing a prima facie case of
discrimination.
(2) The burden shifts to the employer to
articulate some legitimate
nondiscriminatory reason for the
applicant's rejection.
(3) If a legitimate nondiscriminatory reason
for rejection has been articulated, the
claimant has the opportunity to show that
the stated reason for rejection was, in
fact, a pretext for discrimination.
Dept. of Correction v. Gibson, 308 N.C. 131, 137, 301 S.E.2d 78, 82
(1983) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36L. Ed. 2d 668 (1973)). In applying the burden-shifting scheme, the
“'ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff remains
at all times with the plaintiff.'”
Gibson, 308 N.C. at 138, 301
S.E.2d at 83 (quoting
Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 253, 67 L. Ed. 2d 207, 215 (1981)).
A
prima facie case of discrimination is established by
demonstrating that the claimant:
(1) is a member of a protected class;
(2) applied for the position in question;
(3) is qualified for the position; and
(4) was rejected for the position in favor of
someone not a member of a protected
class.
See Gibson, 308 N.C. at 137, 301 S.E.2d at 82-83;
Alvarado v. Bd.
of Trustees of Montgomery College, 928 F.2d 118, 121 (4th Cir.
1991);
Enoch v. Alamance Co. Dep't of Soc. Servs., ___ N.C. App.
___, ___, 595 S.E.2d 744, 752 (2004).
Once the claimant establishes a
prima facie case of
discrimination, “a presumption arises that the employer unlawfully
discriminated against the employee.”
Gibson, 308 N.C. at 138, 301
S.E.2d at 83. However, “[t]he showing of a prima facie case is not
equivalent to a finding of discrimination.”
Id. Instead, the
burden shifts to the employer, which then “must clearly explain by
admissible evidence, the nondiscriminatory reasons for the
employee's rejection or discharge.”
Id. at 139, 301 S.E.2d at 84.
The employer's explanation “must be legally sufficient to supporta judgment for the employer.”
Id. “If the employer is able to
meet this requirement, the prima facie case, and the attendant
presumption giving rise thereto, is successfully rebutted[,]” and
the claimant “is then given the opportunity to show that the
employer's stated reasons are in fact a pretext for intentional
discrimination.”
Id.
In order to demonstrate that the employer's stated reasons are
a pretext for intentional discrimination, the claimant “can reuse
evidence from their
prima facie showing . . . though the
prima
facie presumption has been dispelled.”
Enoch, ___ N.C. App. at
___, 595 S.E.2d at 752;
Gibson, 308 N.C. at 139, 301 S.E.2d at 84.
However, “[t]he trier of fact is not at liberty to review the
soundness or reasonableness of an employer's business judgment when
it considers whether alleged disparate treatment is a pretext for
discrimination.”
Gibson, 308 N.C. at 140, 301 S.E.2d at 84.
“Whether the employer's stated reasons are pretextual does not turn
on whether the trier of fact approves of them. The issue is not
whether the employer's decision was reasonable, but whether it was
unlawfully motivated.”
Olsen v. Southern Pac. Transp. Co., 480 F.
Supp. 773, 780 (N.D. Cal. 1979),
aff'd sub nom.
Willey v. Southern
Pacific Transportation Co., 654 F.2d 733 (9th Cir. 1981). Thus,
“it is not enough . . . to
disbelieve the employer; the factfinder
must
believe the [claimant's] explanation of intentional
discrimination.”
St. Mary's Honor Center v. Hicks, 509 U.S. 502,
519, 125 L. Ed. 2d 407, 424 (1993) (emphasis in original).
In the instant case, the SPC adopted the ALJ's conclusions oflaw, which held that petitioner failed to establish a
prima facie
case of discrimination on any of the alleged grounds. The SPC and
ALJ further determined that, even if petitioner did establish a
prima facie case of discrimination, petitioner was unable to
demonstrate that respondent's legitimate reason for not promoting
petitioner was actually a pretext for discrimination. On appeal,
the trial court determined that the SPC failed to consider relevant
case law in reaching its decision, and that its decision was
contrary to law. We conclude that the trial court erred.
The trial court first determined that the SPC had erred by
failing to consider
Reeves, which, according to the trial court,
“strongly reiterated the evidentiary burdens and standards to be
followed in employment discrimination cases.” In
Reeves, the
Supreme Court granted certiorari “to resolve a conflict among the
Courts of Appeals as to whether a plaintiff's prima facie case of
discrimination . . . combined with sufficient evidence for a
reasonable factfinder to reject the employer's nondiscriminatory
explanation for its decision, is adequate to sustain a finding of
liability for intentional discrimination.” 530 U.S. at 140, 147 L.
Ed. 2d at 115 (internal citations omitted). The Court rejected the
“pretext-plus” approach adopted by many circuits, where, in order
to rebut the presumption that the employer's explanation was
legitimate, the claimant was required to introduce additional
evidence of discrimination, independent of that used to establish
a
prima facie case.
Id. at 146, 147 L. Ed. 2d at 119. The Court
concluded that the “pretext-plus” approach placed too high a burdenon the claimant, and the Court reiterated that “a plaintiff's prima
facie case, combined with sufficient evidence to find that the
employer's asserted justification is false, may permit the trier of
fact to conclude that the employer unlawfully discriminated.”
Id.
at 148, 147 L. Ed. 2d at 120. We conclude that
Reeves is
inapplicable to the instant case.
As discussed above, the ALJ and SPC concluded as a matter of
law that petitioner failed to establish a
prima facie case of
discrimination on any of the alleged grounds. The ALJ began its
discussion of respondent's proffered explanation by noting that it
was assuming for the sake of argument that petitioner had
established a
prima facie case.
Thus, the subsequent discussion
regarding the explanation was
dicta, and whether the ALJ or SPC
employed a “pretext-plus” analysis in its discussion was irrelevant
to the conclusion that petitioner had failed to establish a
prima
facie case of discrimination. Therefore, we conclude that the
trial court erred by determining that petitioner was prejudiced by
the discussion of respondent's proffered explanation.
After determining that the SPC had erred by failing to
consider
Reeves, the trial court then examined petitioner's claim
de novo. The trial court concluded that petitioner had established
a
prima facie case of discrimination based on race, color, age, and
sex, and that respondent's explanation for not hiring petitioner
was merely a pretext for discrimination. After reviewing the
record in the instant case, we conclude that the trial court erred.
As discussed above, to establish a
prima facie case ofdiscrimination, the claimant must first demonstrate that she is a
member of a protected class.
See Gibson, 308 N.C. at 137, 301
S.E.2d at 83. Next, the claimant must demonstrate that she applied
for the position in question.
See id. In the instant case, the
evidence presented at the ALJ hearing tends to show that petitioner
is an African-American female over the age of forty, who applied
for the Medical Laboratory Technologist III (“Med Tech III”)
position offered by respondent. Thus, petitioner has clearly
satisfied the first two prongs of the
prima facie case
requirements.
The third prong requires that the claimant demonstrate she is
qualified for the position offered by the employer.
See id. In
the instant case, the recruitment form for the Med Tech III
position states that the following specific skills are required of
applicants for the position:
Demonstrated experience in Histology with a
thorough understanding of laboratory
operations. Knowledge of theory and
background information that is associated with
histopathology. Paraffin embedding,
sectioning using the microtome,
troubleshooting of automated instruments.
Petitioner's evidence tends to show that she has worked for
respondent since 1976, and that from 1976 to 1982, she worked as an
histology technician. From 1982 to 1996, petitioner worked in the
electromicroscopy laboratory, but she returned to the histology
laboratory in 1996. Petitioner has been certified as an histology
technician, and she has experience embedding, sectioning, and
staining human tissue for analysis. Based upon her testimony,petitioner appears to have a thorough understanding of the
histology laboratory's functions and operations. Thus, the
evidence tends to show petitioner was qualified for the position
offered by respondent, and therefore satisfied the third prong of
the
prima facie case requirements.
The fourth prong requires the claimant demonstrate she was
rejected for the position in favor of someone not a member of a
protected class.
See id. In the instant case, we conclude that
petitioner failed to satisfy the fourth prong with respect to her
race, color, and age. With regard to her claim of discrimination
based upon race and color, the evidence tends to show that Basabe,
the individual selected for the Med Tech III position, is Hispanic
with light brown-colored skin. In his application for the
position, Basabe twice listed his race as Hispanic, once on the
form granting respondent authority to conduct a background check,
and once on the applicant log kept by respondent's personnel
department. Basabe testified at trial that he was born in Quito,
Ecuador, and considered himself “Spanish.” He noted that
petitioner had referred to him as “Latino” and that he had marked
that he is Hispanic on his application, but that “they are the
same.” In its recommended decision adopted by the SPC, the ALJ,
who witnessed Basabe at the hearing, found that “Mr. Bert Basabe is
a Hispanic male with light brown-colored skin, who was thirty-nine
years old on June 15, 1999.
(See footnote 1)
Mr. Basabe was born in Quito,Ecuador.” Our courts have previously recognized that Hispanic
individuals are members of a protected group.
Alvarado, 928 F.2d
at 121;
EEOC v. Sears Roebuck and Co., 243 F.3d 846, 851 (4th Cir.
2001).
Thus, in light of the evidence in the instant case, we are
unable to conclude that petitioner was rejected for the Med Tech
III position in favor of an applicant who was not a member of a
protected group. Therefore, we conclude that petitioner failed to
establish a
prima facie case of discrimination based on race or
color, and the trial court erred in concluding to the contrary.
With respect to petitioner's claim of discrimination based
upon age, we note that “the prima facie case requires '
evidence
adequate to create an inference that an employment decision was
based on a[n] [illegal] discriminatory criterion[.]'”
O'Connor v.
Consol. Coin Caterers, 517 U.S. 308, 312, 134 L. Ed. 2d 433, 438
(1996) (quoting
Teamsters v. United States, 431 U.S. 324, 358, 52
L. Ed. 2d 396, 429 (1977)) (emphasis in original). “In the
age-discrimination context, such an inference cannot be drawn from
the replacement of one worker with another worker insignificantly
younger.”
O'Connor, 517 U.S. at 313, 134 L. Ed. 2d at 439.
Although a difference of less than ten years has been held
insignificant, we note that
There may be situations where a difference of
less than ten years is substantial, and we
have also previously made clear that “in cases
where the disparity is less, the plaintiff
still may present a triable claim if she
directs the court to evidence that her
employer considered her age to be
significant.”
Hoffmann v. Primedia Special Interest Publications, 217 F.3d 522,524-25 (7th Cir. 2000) (quoting
Hartley v. Wisconsin Bell, Inc.,
124 F.3d 887, 893 (7th Cir. 1997) (holding that a six-to-seven year
age difference is insignificant)).
In the instant case, petitioner was forty-three years old when
she was denied the promotion given to Basabe, who was thirty-eight
years old. We conclude that the difference in age of the
applicants was insignificant, and thus presumptively insufficient
to establish a
prima facie case of age discrimination.
A review of
the record indicates that respondent routinely promotes individuals
over the age of forty, including two of the individuals involved in
interviewing petitioner. Petitioner failed to produce any
competent evidence tending to show that age was a factor in
respondent's decision. Thus, petitioner failed to establish a
prima facie case of discrimination based upon age, and the trial
court erred in concluding to the contrary.
With respect to petitioner's claim of discrimination based
upon sex, because Basabe is male and petitioner is female, we
conclude that petitioner did establish a
prima facie case.
Accordingly, we proceed to the next phase in the discrimination
analysis, that is, determining whether respondent offered a
legitimate explanation for its decision to promote Basabe rather
than petitioner.
As discussed above, once petitioner establishes a
prima
facie case of sex discrimination, the burden shifts to respondent
to offer a legitimate nondiscriminatory explanation for
petitioner's rejection.
Gibson, 308 N.C. at 138, 301 S.E.2d at 83. “The employer is not required to prove that its action was actually
motivated by the proffered reasons[,] for it is sufficient if the
evidence raises a genuine issue of fact as to whether the claimant
is a victim of intentional discrimination.”
Id.
In the instant case, respondent asserts that, although
petitioner and Basabe both met the skills and training requirements
for the Med Tech III position, respondent believed Basabe was more
suitable for the position because of the responses he gave during
his interviews. In its memorandum decision, the trial court
concluded that respondent's interview procedure runs counter to the
General Provisions of the North Carolina Administrative Code.
Specifically, the trial court determined that the interview process
violated the requirements of 25 N.C.A.C. 1H. 0606, which requires
that a promotion be “based upon a relative consideration of
[applicants'] qualifications for the position to be filed” and that
employers “reasonably document hiring decisions to verify” that
“advantage” was “given to applicants determined to be most
qualified[.]” The trial court further determined that respondent
failed to consider properly the qualifications of the applicants.
We disagree.
To support the assertion that respondent's interview process
was discriminatory, petitioner and the trial court both cite this
Court's decision in
N.C. Dep't of Correction v. Hodge, 99 N.C. App.
602, 394 S.E.2d 285
(1990). In
Hodge, we rejected an employer's
explanation that it based its promotion decision on the scores
achieved by applicants in an interview process similar to the oneused in the instant case. We first noted that “[t]he committee's
interview was the only part of the application process in which
Hodge was rated less qualified than another candidate, and its
rankings contradict Hodge's achievements on objective tests
evaluating his knowledge of the same subjects tested in the
interview.”
Id. at 613, 394 S.E.2d at 291. Based on these facts,
we concluded that “[t]he State's use of the interview as the sole
criteria for not promoting Hodge contravened its own system of
promotion, in which the State used the interview as one item that
carried more weight than all of the other items of evaluation
combined.”
Id. We conclude that
Hodge is distinguishable from the
instant case.
Unlike
Hodge, in the instant case, respondent had consistently
utilized the interview process since 1991, and therefore its
decision to implement the process did not contravene its own system
of promotion. Furthermore, the interview process was not the only
part of the promotion decision in which Basabe was rated more
qualified. Although the evidence presented tends to show that
petitioner had twenty-three years of histology and related
experience while Basabe had sixteen years of histology and related
experience, the evidence also tends to show that the interviewers
were more impressed with the nature of Basabe's experience. Prior
to being interviewed, both Basabe and petitioner submitted
applications for the position, which were reviewed by the
interviewers prior to interviewing the applicants. At the ALJ
hearing, Dr. Mary Iacocca (“Iacocca”), the medical director forhistology and one of the individuals who interviewed the
candidates, testified as follows:
THE COURT: And then, I have that you --
could you tell me -- or qualify
your testimony about what their
qualifications were, your
opinion of the three
applicants' qualifications as
far as their histology
experience?
THE WITNESS: Based on my experience or based
on what I read off their
applications?
THE COURT: Applications. Before the
interview.
THE WITNESS: I remember making a note that
[Basabe] had trained at the
[Armed Forces Institute of
Pathology], which, in
pathology, has a very good
reputation, and that he also
worked in a private lab. . . .
And I was aware of
[petitioner's] recent history
of employment, in that she had
been in electron
microscopy . . . and then had
been in histology for the last
several years at UNC.
THE COURT: Had you at that point had any
opinion whether they were
qualified, not making any final
decision, but how their
qualifications ranked before
the interview?
. . . .
THE WITNESS: If I had to give my personal
feeling about qualifications
simply on histology experience,
I would say the length of time
actually in the histology lab
was very important to me. And
so I would have ranked [Basabe]
highly on that.
In support of its explanation, respondent offered the
“interview guides” of Howard Parker (“Parker”), the supervisor of
the pathology laboratory, Michael McDade (“McDade”), the financial
and compliance officer for the laboratory, and Beverly Jones
(“Jones”), a cytotechnologist in the cytology laboratory. The
interview guides contained the interviewer's notations of the
applicant's answers, including the scaled ratings relied upon in
reaching a decision. The interviewers testified at the hearing and
explained the interview process thoroughly. The interview process
was structured to allow each candidate to interview with a panel of
three to four interviewers, and its aim was to select the most
qualified candidate. The interviewers asked each candidate
questions set forth in the interview guide and then rated the
candidate's answers on a scale of one to five. Basabe averaged a
score of four on his answers to the interview questions, while
petitioner averaged a score of three on her answers. Thus, in
light of the record in the instant case, we conclude that the
explanation and evidence offered by respondent satisfied its
burden. Accordingly, we now consider whether respondent's
explanation was a mere pretext for sex discrimination.
As discussed above, after the employer articulates a
legitimate, nondiscriminatory reason for its hiring decision, the
burden shifts to the claimant, who, in order to maintain a claim of
discrimination, must demonstrate by a preponderance of the evidence
that the employer's explanation is actually a pretext for
discrimination.
Gibson, 308 N.C. at 139, 301 S.E.2d at 84. Courtshave considered the following factors as relevant evidence of
pretext:
(2) Evidence of the employer's treatment of
the employee during his term of employment,
(3) Evidence of the employer's response to the
employee's legitimate civil rights activities,
and
(4) Evidence of the employer's general policy
and practice with respect to minority
employees.
Id. at 139-40, 301 S.E.2d at 84.
In the instant case, petitioner asserts that a pattern of sex
discrimination existed in her work environment. She testified that
Parker did not take women “seriously,” and that she did not believe
Parker “treated the women in the lab the same way [he] treat[ed]
the men that are under his supervision.” Petitioner asserts that
Parker did not offer interview training to her or other females, or
ask them if they wanted to be included on the computer
implementation team. However, we note that petitioner's evidence
is largely subjective, and, when considered in light of the
evidence to the contrary, cannot reasonably be said to demonstrate
that respondent's proffered explanation was a pretext for sex
discrimination. Many of petitioner's fellow female co-workers were
promoted, and one, Mary Parker (“Mary Parker”), was offered the Med
Tech III position before it was ever posted. The laboratory had
previously been supervised by women, and four of the six
interviewers were women. In sum, petitioner's evidence is
insufficient to establish that respondent intentionally
discriminated against her based upon her sex. Thus, in light ofthe record in the instant case, we conclude that petitioner has
failed to demonstrate by a preponderance of the evidence that
respondent's explanation for hiring Basabe was a pretext for sex
discrimination. Therefore, we conclude that the trial court erred
by determining that petitioner was discriminated against based upon
her sex.
In light of the foregoing conclusions, we hold that petitioner
has failed to establish a claim of discrimination and that the
trial court erred in concluding that the SPC's decision was
effected by errors of law. Accordingly, the order of the trial
court is reversed.
Reversed.
Judges WYNN and ELMORE concur.
Report per Rule 30(e).
Footnote: 1