GOODWIN v. RIDGE

J. HOLMES, District Judge

This is an employment discrimination case. Kenny E. Goodwin, an African American male, brought a race discrimination claim pursuant to 42 U.S.C. § 2000e et seq. (Title VII of the Civil Rights Act of 1964) against Thomas J. Ridge in his official capacity as Secretary of the United States Department of Homeland Security. The defendant has moved for summary judgment (Docket #22). For the reasons stated below, this motion is granted.

A court should grant summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis of its motion and identifying the portions of the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Group Health Plan, Inc. v. Philip Morris USA, Inc., 344 F.3d 753, 763 (8th Cir. 2003). When the moving party has carried its burden under Rule 56(c), the non-moving party must "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1985) (quoting FED. R. CIV. P. 56(e)). The non-moving party sustains this burden by showing that there are "genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250. When a non-moving party cannot make an adequate showing on a necessary element of the case on which that party bears the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323. In deciding a motion for summary judgment, the Court must view the facts and inferences in the light most favorable to the party opposing summary judgment. Boerner v. Brown Williamson Tobacco Corp., 260 F.3d 837, 841 (8th Cir. 2001) (citing Rabuska v. Crane Co., 122 F.3d 559, 562 (8th Cir. 1997)). If the evidence would allow a reasonable jury to return a verdict for the non-moving party, summary judgment should be denied. Derickson v. Fidelity Life Assoc., 77 F.3d 263, 264 (8th Cir. 1996) (citing Anderson, 477 U.S. at 248).

The Eighth Circuit has said that summary judgment should seldom be granted in discrimination cases where inferences are often the basis of the claim. Duncan v. Delta Consol. Indus., Inc., 371 F.3d 1020, 1024 (8th Cir. 2004) (citing Breeding v. Arthur J. Gallagher Co., 164 F.3d 1151, 1156 (8th Cir. 1999)); Bassett v. City of Minneapolis, 211 F.3d 1097, 1099 (8th Cir. 2000). But see Bainbridge v. Loffredo Gardens, Inc., 378 F.3d 756, 762 (8th Cir. 2004) (Arnold, J. dissenting).

Following the terrorist attacks of September 11, 2001, Congress passed the Aviation and Transportation Security Act ("ATSA"), Public Law No. 107-71, 115 Stat. 597, and created the Transportation Security Administration ("TSA") to protect our nation's civil air transportation system. Section 110 of the ATSA requires the TSA to recruit and hire federal employees to provide security screening of passengers and cargo at commercial airports.

Before the ATSA was passed, private firms performed airport security screening functions. Goodwin was employed by one of these private firms, Wackenhut, as an airport screener at the Little Rock National Airport.

After the ATSA was enacted the TSA began the federalization process for airport security personnel. To ensure the qualifications of security screeners, all applicants were required to meet specific job requirements and pass a series of tests. The minimum requirements were (1) a high school diploma, a GED, or equivalent, or (2) one year of work experience performing security work or as an aviation screener or x-ray technician. Applicants meeting these requirements were then required to complete an assessment process successfully.

In the assessment process, job candidates first took Phase I, a battery of computerized tests. Candidates who passed Phase I moved to Phase II, which consisted of a structured interview, physical performance tests, medical evaluations, and a background check. When candidates completed each portion of the assessment, the tester for that station initialed or checked off that the candidate had been to the station. These checklists did not indicate whether the candidate passed or failed that portion of the assessment.

All screener candidates were required to pass two physical performance tests, a luggage/box-lift test and a baggage-search test, which were separate and independent from any medical evaluations. Both physical performance tests were pass/fail tests intended to measure candidates' abilities to perform essential job functions. TSA standardized these tests by providing scripts for testers to use when giving instructions to candidates and conducting the tests.

One of the physical performance tests, the baggage-search test, required candidates to put their hands in a covered box, identify objects by feeling them, and indicate the identified items on a preprinted answer sheet by circling them. The covered box contained 5 items, and the answer sheet listed 20 items. To pass the test, candidates had to correctly identify 4 of the 5 items in the box. All applicants were provided with the same instructions and completed the tests in the same exact manner.

Each candidate was given only one chance to take the physical performance portion of the assessment. Those who failed one or both of the physical performance tests were disqualified from consideration as a screener, and candidates were not informed which of the two tests they failed. None of the candidates was allowed to repeat these tests, and no candidate who failed either of the two physical performance tests was hired. TSA policy allows disqualified candidates to retest for a position after six months, however, if a vacancy is available.

In contrast, candidates who did not meet TSA's medical standards for vision and hearing were told what standards they did not meet and were allowed to attempt to obtain medical clearance by going to a private physician. Any applicant who passed both physical performance tests but did not demonstrate compliance with TSA medical standards at the assessment center could later submit documentation from a personal physician or specialist. Medical documentation demonstrating that a candidate satisfied TSA's medical standards was considered, and some applicants who had failed the medical evaluation at the assessment center were later hired after submitting such documentation.

Goodwin applied for a TSA position and attended a screener assessment. He passed Phase I and the structured interview component of Phase II but failed the baggage-search test in the physical performance portion of Phase II because he correctly identified only three items on the answer sheet. Goodwin was not hired as a TSA screener.

The defendant asserts that Goodwin was not hired because he failed the baggage-search test. Goodwin admits that he failed the baggage-search test, that none of the applicants at the assessment center was allowed to retake this test, and that no applicant who failed this test was hired by TSA as a screener. Goodwin argues, however, that he failed the baggage-search test because he was not wearing his eyeglasses and could not see the answer sheet. Goodwin further contends that he was not allowed to retake the baggage search test because of his race and that he was therefore not selected as a TSA screener due to racial discrimination.

Because there is no direct evidence of discriminatory intent, Goodwin's failure-to-hire claim is analyzed under the burden-shifting framework set out in McDonnell Douglas Corp. V. Green, 411 U.S. 792 (1973), which means that a plaintiff typically must demonstrate the following four elements: (1) that he belonged to a protected class, (2) that he applied and met the minimum qualifications for the job, (3) that he was rejected, and (4) that after rejecting Goodwin the employer continued to seek applicants with Goodwin's qualifications. Caviness v. Nucor-Yamato Steel Co., 105 F.3d 1216, 1223 (8th Cir. 1997) (citing Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995)). The Supreme Court has recognized, however, that facts vary in Title VII cases and the prima facie proof required of a plaintiff may differ according to the situation. McDonnell Douglas, 411 U.S. at 802 n. 13. Accordingly, federal courts in some cases have held that, as an alternative to the fourth element stated above, the plaintiff may show that he was treated differently from similarly-situated members of the unprotected class. E.g., Birch v. Cuyahoga County Probate Court, 392 F.3d 151, 165-66 n. 12 (6th Cir. 2004) (citations omitted). See also Tatum v. City of Berkeley, 408 F.3d 543, 553 (8th Cir. 2005) (fourth element in wrongful-termination case based upon disparate treatment was that the employee "was treated less favorably than a similarly situated employee outside the protected group"); Rose-Maston v. NME Hospitals, Inc., 133 F.3d 1104, 1109 (8th Cir. 1998) (fourth element in failure-to-promote case is "that a similarly qualified employee, not part of a protected group, was promoted instead"). This element of disparate treatment in comparison to similarly-situated members of the unprotected class is most appropriate to apply under the circumstances of this case.

If the plaintiff establishes a prima facie case, a rebuttable presumption of discrimination is created. The employer may rebut this presumption by articulating one or more nondiscriminatory reasons for the employment decision. When the prima facie case has been successfully rebutted, the presumption of discrimination drops out of the picture, and the burden shifts back to the plaintiff to present evidence sufficient to support two findings. McCullough v. Real Foods, Inc., 140 F.3d 1123, 1127 (8th Cir. 1998). First, the plaintiff must present evidence that creates a fact issue as to whether the employer's proffered reasons are mere pretext. Id. Second, he must present evidence that creates a reasonable inference that the adverse employment decision was an act of intentional discrimination based on race. Id. See also Robinson v. Sears, Roebuck and Co., 111 F. Supp. 2d 1101, 1112 (E.D. Ark. 2000).

The parties in this case do not dispute the first and third elements: Goodwin is an African-American, a member of a protected class, and the TSA did not hire him. Goodwin asserts, however, that he was qualified for the screener job and that he was treated differently than other similarly-situated persons in the hiring process. Because Goodwin has failed to produce any evidence to establish that any material fact relevant to these issues is actually in dispute, he has not stated a prima facie case of racial discrimination.

A. Job Qualifications

As to the first issue, whether Goodwin was qualified for the job, he does not dispute that one of the job qualifications established by TSA was successful completion of the physical performance tests, including the baggage-search test. Goodwin does not dispute that he failed this test; rather, he contends that the test itself should be disregarded and that he was qualified for the job based on other factors not required by the TSA.

An employer is not required to hire an applicant who does not possess basic skills essential to performance of a particular job, regardless of the color of his skin. United States v. N.L. Indus., Inc., 479 F.2d 354, 371 (8th Cir. 1973). When the stated qualifications for the job at issue are objective, such as passing a certain test, the plaintiff must show that he meets the stated qualifications. See, e.g., York v. American Tel. Tel. Co., 95 F.3d 948, 952, 954 (10th Cir. 1996) (plaintiff failed to establish in her prima facie case that she met one of the objective job qualifications, prior practical experience, listed in the job advertisement). An employer has wide discretion to establish its requirements and qualifications for particular positions, so long as these requirements do not discriminate based upon impermissible characteristics such as race. See Ross v. Kansas City Power Light Co., 293 F.3d 1041, 1047 (8th Cir. 2002); Duffy v. Wolle, 123 F.3d 1026, 1037-38 (8th Cir. 1997). In the normal course of business, employers will hire the most qualified candidates, and an employer, not a federal court, is in the best position to identify those strengths that constitute the best qualifications. Ross, 293 F.3d at 1047 (citing Duffy, 123 F.3d at 1037-38). The Eighth Circuit has often noted that "`the employment-discrimination laws have not vested in the federal courts the authority to sit as super-personnel departments reviewing the wisdom or fairness of the business judgments made by employers, except to the extent that those judgments involve intentional discrimination.'" Duffy, 123 F.3d at 1038 (quoting McDonnell Douglas, 63 F.3d at 781).

The stated job qualifications in this case were both objective and nondiscriminatory. The purpose of the baggage-search test was to determine whether applicants could identify objects by feeling them, a job function relevant to the TSA screener positions. Goodwin admits that all applicants were provided with the same instructions and completed the test in the same exact manner. The activity of touching and identifying concealed objects would in no way directly discriminate between candidates of different races. Moreover, Goodwin has neither alleged nor offered any evidence to show that the test had a discriminatory impact upon African-Americans. Accordingly, TSA acted within its discretion as an employer in establishing the baggage-search test as a job qualification and rejecting applicants who failed the test.

Instead of offering any evidence or argument that the baggage-search test itself was racially discriminatory, Goodwin argues that he was qualified based upon other factors and that the test should be disregarded because it was poorly designed. Specifically, Goodwin states that he was qualified for the screener position because he had previously worked as a contract security screener, he continued to work as private contract screener until the federalization process of the airport security personnel was completed, he has an aviation management degree, and he is a veteran of the United States Army. None of these factors was a qualification sought by the TSA for the airport screeners. Goodwin further argues that because job applicants had to read an answer sheet to indicate which items they had felt in the box, the test measured more than ability to tactually identify objects; it also measured an applicant's ability to see or read the answer sheet, i.e., vision. Goodwin contends that he failed the test because he had forgotten his eyeglasses on the assessment day and could not see the answer sheet, not because he could not identify the objects by touch.

Even if Goodwin is correct that he possessed other job qualifications and that the baggage-search test had a design flaw, however, these facts are irrelevant. The TSA, as an employer, has the authority to establish its job qualifications, so long as its requirements do not discriminate based upon race or other improper factors. Goodwin, as a job applicant, is not at liberty to establish his own criteria for the TSA screener position and demand that TSA follow them.

B. Disparate Treatment

The remaining issue is whether Goodwin was treated differently than similarly-situated job candidates who were not members of the protected class. At the prima facie stage, a plaintiff's burden to show that he is similarly situated to other job applicants is not onerous. Peterson v. Scott County, 406 F.3d 515, 523 (8th Cir. 2005) (citing Wheeler v. Aventis Pharm., 360 F.3d 853, 857 (8th Cir. 2004)). Goodwin admits that all screener candidates were required to successfully complete the assessment process and that no candidate who failed either of the two physical performance tests, which included the baggage-search test, was hired. Goodwin alleges that he received disparate treatment in the testing process, however, for two reasons.

First, Goodwin alleges that he informed the test proctors at the assessment center that he could not see the answer sheet but was denied the opportunity to either leave the center to get his eyeglasses and return to finish testing later or to retake the baggage-search test after failing it. Goodwin has shown no evidence that he was treated differently from any other job candidate in this regard. The TSA asserts that, to ensure the integrity of the assessment process, none of the job candidates was allowed to leave the assessment center after starting the physical performance tests and then return to complete them. Goodwin has produced no evidence to the contrary.

Instead, Goodwin complains that job candidates who failed the medical evaluations were later allowed to submit documentation from private physicians to establish that they met TSA's medical standards for vision and hearing. That candidates who failed the medical evaluation were permitted to submit later documentation to show that they met the qualifications while candidates who failed the baggage-search test were not in no way establishes disparate treatment based upon race. The candidates who initially failed the medical evaluations were not similarly situated to Goodwin. He failed a proficiency test; they failed a medical evaluation. Goodwin has produced no evidence that TSA's different treatment of those who failed a proficiency test and those who failed a medical evaluation was a subterfuge for race discrimination. To the contrary, the undisputed evidence shows that both African-American and white applicants who initially failed the medical evaluations were later allowed to submit further medical documentation and were hired.

Goodwin complains that the baggage-search test was poorly designed and that his disqualification was unfair because some candidates who initially failed the medical vision tests were later hired. The wisdom or fairness of an employer's hiring practices is not subject to review by a federal court unless improper discrimination is involved. See Duffy, 123 F.3d at 1038 (quoting McDonnell Douglas, 63 F.3d at 781). Although Goodwin insists that TSA's refusal to allow him to leave during the assessment to get his eyeglasses must have been due to some racial animus, he has produced no evidence to support that allegation. Bald allegations alone cannot create an issue of material fact to withstand a motion for summary judgment. See Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 2005) (to withstand a motion for summary judgment, the nonmoving party cannot rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts that create a genuine issue for trial).

There is no genuine issue of material fact. The defendant has established a prima facie case of entitlement to summary judgment. Goodwin has failed to meet proof with proof. The defendant's motion for summary judgment (Docket #23) is GRANTED.

IT IS SO ORDERED.