United States District Court, E.D. Arkansas, Pine Bluff Division
TYRON D. FARVER PLAINTIFF
MARK T. ESPER, Secretary, Department of the Army DEFENDANT
OPINION AND ORDER
LEON HOLMES UNITED STATES DISTRICT JUDGE
Farver, an African American, works at the Pine Bluff Arsenal.
He applied for but was denied two different jobs at the
Arsenal in 2009. He alleges that he was denied these jobs on
account of his race, and he has sued Mark Esper, the
Secretary of the Department of the Army, under Title VII of
the Civil Rights Act of 1964. Esper has moved for summary
should grant summary judgment if the evidence demonstrates
that there is no genuine dispute as to any material fact and
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). The moving party bears the initial burden
of demonstrating the absence of a genuine dispute for trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the moving party
meets that burden, the nonmoving party must come forward with
specific facts that establish a genuine dispute of material
fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89
L.Ed.2d 538 (1986); Torgerson v. City of Rochester,
643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). A genuine
dispute of material fact exists only if the evidence is
sufficient to allow a reasonable jury to return a verdict in
favor of the nonmoving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91
L.Ed.2d 202 (1986). The Court must view the evidence in the
light most favorable to the nonmoving party and must give
that party the benefit of all reasonable inferences that can
be drawn from the record. Pedersen v. Bio-Med.
Applications of Minn., 775 F.3d 1049, 1053 (8th Cir.
2015). If the nonmoving party fails to present evidence
sufficient to establish an essential element of a claim on
which that party bears the burden of proof, then the moving
party is entitled to judgment as a matter of law.
Id. The Eighth Circuit has made clear that
“[t]here is no discrimination case exception to the
application of summary judgment.” Torgerson v. City
of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011)
(internal quotations and citations omitted).
was hired in August 2008 to work as an industrial worker at
the Pine Bluff Arsenal. He primarily did welding work. In
January 2009, Farver was “loaned” to the Mobile
and Powered Systems Division to assist the division with
welding. He says that he was also expected to do mechanical
work. James Reed was the chief of the Mobile and Powered
Systems Division and was Farver's second-level
supervisor. Reed says that Farver was only assigned welding
April 2009, the Mobile and Powered Systems Division
advertised open positions for chemical equipment repairers.
These were one-year term positions but could be extended
year-to-year. Farver told Reed that he was interested in the
equipment repairer position, and Reed told Farver that he
would consider his resume if he submitted it. Farver did, and
Reed considered it along with 50 to 100 other resumes. The
chemical equipment repairer position listed the major duties
of that position as “the rebuild, repair, modification,
service and maintenance of a variety of chemical and
biological collective protection equipment including heater
pump blower, electric motors, circuit breakers and switches,
air purifier, hose assemblies and decontamination
units.” The position skills and knowledge listed
included making minor repairs and replacing parts on
decontamination pumps, heaters, and electric motors; basic
mechanical knowledge of units with gasoline, diesel, and
2-cycle engines; ability to diagnose repairs required;
ability to disassemble and examine assemblies, subassemblies,
and component parts; and skill in using a variety of hand and
power tools. Welding was not listed.
ultimately selected the following four applicants to hire as
equipment repairers: Chad Adams, Brandon Wilson, and J.C.
Warren, each white males, and Anthony Foots, an
African-American male. Reed says that he hired the men he did
over Farver because they “had more of the type of
mechanical experience that I was looking for than Mr.
Farver.” Reed was looking for people “with
mechanical skills with engines, with hydraulics, pneumatics,
troubleshooting, diagnostics, and [similar] skills.”
2009, the Mobile and Powered Systems Division had vacancies
for permanent chemical equipment repairers. Human resources
advertised the positions and individuals were able to apply
online. Computer software scored the online applications
based on knowledge, skills, and abilities that applicants
listed in their resumes and that matched the position
description. Farver applied for one of the permanent chemical
equipment repairer positions. His resume described his
current position-an industrial worker tasked primarily with
welding-as including duties of “repair activities on a
variety of chemical equipment, ” repairing
“equipment by dismantling, overhauling, installing
repair parts, and reassembling the equipment, ” and
various other duties relevant to the chemical repairer
position that Reed says were not assigned to Farver in his
current position. The software scored applicants through a
simple word search and had no way of verifying the accuracy
of the provided information.
resources emailed Reed a list of thirteen applicants and
their computed scores. Army policy required Reed to select at
least one of the top three scoring applicants. Farver's
score was tied for fourth with Chad Adams. Reed created his
own matrix to evaluate the candidates from the list.
Reed's matrix scored the candidates based on thirteen
categories of major duties required for the job and the
candidate's relevant work experience. The scoring was
simple: the more experience a candidate had in the categories
of major duties, the higher his score. Reed's matrix gave
Farver a score of 20, which was the lowest of all of the
candidates. The scores of the candidates Reed selected ranged
from 44 to 100.
only credited Farver with work experience listed under his
current position that he could verify. Reed did not credit
Farver with experience in repairing “equipment by
dismantling, overhauling, installing repair parts, and
reassembling the equipment” because none of that work
was assigned to Farver nor was it being done in the area
where Farver worked. Farver says that he gained this
experience by observing others work during down time. He
would watch what other workers were doing and participate in
installing components on decontamination units. He estimated
that he spent “about [a] month and a half to two
months” acquiring skills in this manner. Robert Lee,
Farver's coworker, states that because there was not
enough welding for Farver to do every day he trained Farver
on mechanical work, repairs, modifications, and maintenance
of decontamination units. Lee was not a supervisor and was
not given authority to assign work to other employees.
argues that he was denied promotions to the temporary and
permanent chemical equipment repairer positions because he is
black. He presents no argument or evidence of direct
discrimination, and so his racial discrimination claim is
analyzed using the McDonnell Douglas framework.
Under McDonnell Douglas, Farver must first make a
prima facie showing of intentional discrimination. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04,
93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973). The burden at
this stage “is not onerous.” See Tex.
Dep't of Cmty. Affairs v. Burdine, 450 U.S.
248, 253-54, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981).
Farver need only show that (1) he is a member of a protected
group; (2) he was qualified and applied for a promotion to an
available position; (3) he was denied the promotion; and (4)
similarly situated employees outside of the protected group
were promoted instead. See Shannon v. Ford Motor
Co., 72 F.3d 678, 682 (8th Cir. 1996).
Farver makes out a prima facie case, the burden then shifts
to Esper to articulate a legitimate, nondiscriminatory reason
for the hiring decisions. See McDonnell Douglas, 411
U.S. at 802-03, 93 S.Ct. at 1824-25. This is a
“minimal” burden, and when met, shifts the burden
back to Farver to show that the proffered reason is pretext
for unlawful discrimination. Id. at 804, 93 S.Ct. at
1825. Farver must both rebut the proffered reason and provide
evidence that the real reason for the move was unlawful
discrimination. See Johnson v. AT&T Corp., 422
F.3d 756, 763 (8th Cir. 2005). At all times, Farver bears the
ultimate burden “of proof and persuasion” that he
was the victim of unlawful discrimination. See
Torgerson, 643 F.3d at 1046.
concedes that Farver can make a prima facie showing as to the
denial for the temporary position, but he argues that Farver
was not similarly situated to the candidates Reed ultimately
selected for the permanent position because Farver (WG-4) was
a lower grade worker than those hired (WG-6 and WG-8). This
argument is not supported with any case law and lacks merit.
Cf. Id. at 1047 (“It is undisputed that
Torgerson and Mundell, by making the eligibility list, were
qualified for the firefighter positions.”). The
candidates who made it on the list that human resources
provided to Reed were similarly situated. They were all
applicants to an open position, which had no worker-grade
so, Farver cannot show the proffered reasons for Reed's
hiring decisions were pretext for racial discrimination.
See Tusing v. Des Moines Indep. Cmty. Sch. Dist.,
639 F.3d 507, 515 (8th Cir. 2011) (presuming without deciding
that plaintiff established a prima facie case).
explanation of his hiring decision for both the temporary and
permanent positions boils down to qualification and
experience. Reed did not think that Farver had as much
relevant experience as those he hired, which is a legitimate,
nondiscriminatory explanation. Farver attempts to rebut this
explanation and show that is a pretext for unlawful
discrimination by arguing that he was more qualified than
those Reed hired. In a case where “the employer
contends that the selected candidate was more qualified for
the position than the plaintiff, a comparative analysis of
the qualifications is relevant to determine whether there is
reason to disbelieve the employer's proffered reason for
its employment decision.” Torgerson,, 643 F.3d
at 1048 (quotation and citation omitted). To show pretext
here, Farver “must show that the [employer] hired a
less qualified applicant.” See Kincaid v.
City of Omaha, 378 F.3d 799, 805 (8th Cir. 2004)
(emphasis in the original); Wingate v. Gage County Sch.