Tyron D. Farver Plaintiff - Appellant
Ryan D. McCarthy, Acting Secretary, Department of the Army Defendant-Appellee
Submitted: April 16, 2019
from United States District Court for the Eastern District of
Arkansas - Pine Bluff Division
SHEPHERD, MELLOY, and GRASZ, Circuit Judges.
Farver challenges the decision of Pine Bluff Arsenal
("PBA"), an installation of the Department of the
Army, not to hire him for either a temporary or a permanent
position as a Chemical Equipment Repairer. Farver claims PBA
violated Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e-2000e-17. The district court granted the
defendant's motion for summary judgment. We affirm.
an African American, was employed at PBA as an Industrial
Worker, but was loaned out to the Motor Powered and Systems
Division ("motor pool") for his welding skills for
approximately six months in 2009. There was not enough
welding work to keep Farver busy welding each day at the
motor pool. During times when work was slow, Farver sought
training on chemical equipment such as the M17A3
("M17") decontamination unit. With the assistance
of his coworker Robert Lee, Farver became proficient in the
fabrication of M17s. Farver was never assigned to work on
these units during his time at the motor pool.
applied for a job as a Chemical Equipment Repairer at PBA on
two occasions in 2009. First, Farver applied for a one-year
term position with a possible year-to-year extension. There
were multiple term positions open when Farver submitted his
resume to his second-line supervisor, James Reed. Reed was
uncertain of the exact number, but testified he may have
received as many as 50 to 100 resumes for the one-year term
positions. Reed did not select Farver. Later that year,
Farver applied online for a permanent position. Reed again
passed over Farver for the position.
selected Chad Adams, Brandon Wilson, JC Warren, and Anthony
Foots for the term positions. Reed maintained the chosen
candidates "had more the type of mechanical
experience" he was looking for. This included
"skills with engines, with hydraulics, pneumatics,
troubleshooting, diagnostics, and those types of
skills." Adams's mechanical experience included time
spent as an HVAC technician, experience reading blueprints
and diagrams, and installing components. Warren had
experience with engines and hydraulics because he had
previously owned and operated a trucking and construction
business. Wilson had experience in chemical equipment repair
and was familiar with M17 decontamination units because of
his time as a work leader at PBA. Farver's resume
highlighted his experience with welding and chemical
equipment repair. However, welding experience was not
required in order to be eligible for the position, and his
work with chemical equipment had not been assigned by PBA.
the permanent position, Reed selected seven individuals based
on scores they received on a matrix he created to assess
resumes. Despite the fact Farver's resume received a high
rank from a resume-analyzing computer software program used
by the Army, when Reed reviewed the materials himself he
believed Farver's relevant experience had been
inflated. In his own matrix, Reed did not credit
Farver's unassigned work experiences, work he had not
observed Farver doing, and skills he doubted Farver could
have acquired based on the available equipment in
Farver's assigned area. In addition, Reed's matrix
did not offer significant points for welding, Farver's
primary assigned task in the motor pool. After Reed completed
his own calculations, Farver received the lowest score of the
considered applicants. Reed explained he did not hire Farver
because "[Farver's] resume did not indicate that he
could perform the functions that were required to do that job
in the position description as well as the people [Reed]
sued the Secretary of the Army ("Secretary") on the
basis of race discrimination. In response to the
Secretary's motion for summary judgment, Farver argued
genuine issues of material fact existed as to whether
Reed's failure to select him for the term and permanent
positions was based on his race since he was more qualified
than some of the white individuals selected. The district
court granted the Secretary's motion and Farver appealed.
of summary judgment are reviewed de novo. Cox v. First
Nat'l Bank, 792 F.3d 936, 938 (8th Cir. 2015).
Summary judgment should be granted when "there is no
genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56(a). There is a genuine issue of material fact if there is
enough evidence" that a reasonable jury could return a
verdict for the nonmoving party." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
burden of demonstrating an absence of a genuine dispute of
material fact is on the moving party. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). If the moving party
satisfies the burden, the nonmoving party must present
specific evidence, beyond "mere denials or allegations
[that] . . . raise a genuine issue for trial."
Wingate v. Gage Cty. Sch. Dist., 528 F.3d 1074, 1079
(8th Cir. 2008); see also Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc)
(discussing the nonmovant's burden of showing more than a
survive a motion for summary judgment on a discrimination
claim, a plaintiff must present admissible evidence directly
indicating unlawful discrimination, or create an inference of
unlawful discrimination under the burden-shifting framework
established in McDonnell Douglas . . . ."
Rooney v. Rock-Tenn Converting Co., 878 F.3d 1111,
1115-16 (8th Cir. 2018) (citing McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973)). Farver does not supply
any evidence of direct discrimination, so the question is one
of indirect evidence. To establish an inference of
discrimination, there are three steps: (1) the plaintiff must
establish the prima facie case for race discrimination; (2)
the burden of production then shifts to the employer to show
a legitimate, nondiscriminatory reason for its decision; and,
if the employer produces such evidence, (3) the burden of
production shifts back ...