Wakefield v. State Farm Ins, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-11215
Summary Calendar
_______________
JAMES CARL WAKEFIELD,
Plaintiff-Appellant,
VERSUS
STATE FARM INSURANCE, ET AL.,
Defendants,
TERRY L. VICE, BRUCE SUTTON,
AND
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:98-CV-1092-T)
_________________________
August 10, 2000

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Before SMITH, BARKSDALE, and
PARKER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
James Wakefield sued his employer, State
Farm Mutual Automobile Insurance Company
(“State Farm”), and individuals employed
thereby, claiming to have been discriminated
against because of race. The district court
granted State Farm summary judgment, and
Wakefield appeals with regard to those claims
that arose, purportedly, under title VII of the
Civil Rights Act, 42 U.S.C. § 2000e, et seq.,
particularly 42 U.S.C. § 2000e-2(a)(1)-(2).
Finding no reversible error, we affirm.
I.
Wakefield began working for State Farm in
1991. Terry Vice had always been the man-
ager of his department; for much of that time,
Bruce Sutton had been his second-line su-
pervisor as one of the assistant managers.
Wakefield’s direct supervisor was Bart Ord.
Wakefield rose during 1992 from “job
class 1” to “job class 3,” then received the
position of Field Maintenance Technician, at
“job class 5,” for which his supervisors rec-
ommended him. In December 1994, he was
promoted yet again, with Terry Vice’s approv-
al, to “job class 6,” as a Senior Field Main-
tenance Technician, and has since held that job
class.
State Farm introduced a new method of
evaluating employees, called a quarterly per-
formance review (“QPR”), in January 1997.
Supervisors were instructed to rate employees
on a scale of “1” to “5” (“1” being the worst)
in several performance categories. Each em-
ployee’s direct supervisor was to make the rat-
ings in three-month intervals calculated from
his employment anniversary date (which was
late December for Wakefield); each supervisor
was to pro vide his employees with initial rat-
ings, called “benchmark” ratings, to apprize
them of their status at the inception of this new
system. Ord rated Wakefield in late January
1997 as a “2” in nine of the fifteen per-
formance categories, and as a “3” in the rest,
and testified that Wakefield’s benchmark rat-
ings were the worst of any of the employees he
supervised.
On April 8, 1997, Wakefield filled out an
electronic form requesting consideration for
the position of Structural Estimator, which
carries an entry-level job class of “SF-6”SSthe
same job class Wakefield then held. Wakefield
forwarded the form to Ord, who recommend-
ed him for the position and forwarded the form
to Sutton. When Sutton received the form, he
was struck by the inconsistency of Ord’s rec-
ommending Wakefield for a position such a
short time after Ord had rated him so poorly
on his benchmark QPR. Sutton instructed Ord
to advise the Human Resources Department to
put a hold on Wakefield’s request for consid-
eration so they could discuss the recom-
mendation.
Sutton and Vice tried to convince Ord of
the impropriety of rating an employee as so
poor, but then recommending him for a po-
sition in another department. They also ex-
plained that they would not recommend Wake-
field for the position because of Ord’s low
benchmark ratings of him. Vice and Sutton
then instructed Ord not to recommend Wake-
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be
published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R.
47.5.4.

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field for the position, but to advise him that he
still could submit the request for consideration
anyway.
Wakefield submitted his application, which
was forwarded to the hiring department by
Human Resources on April 14, 1997. On Ap-
ril 16, Human Resources notified Ord that
Wakefield would not be interviewed because
his supervisors had not recommended him.
Ord mentioned to Sutton in early April
1997 that he planned to raise four of Wake-
field’s performance ratings from his bench-
mark scores of “2” to “3” for the first quarter,
which concluded in late March for Wakefield
(three months after his anniversary date). Sut-
ton pointed out that less than three months
had elapsed since Wakefield had received his
original benchmark ratings in late January, and
because they were quarterly ratings, any im-
provements should be based on at least three
months’ performance. For that reason, Sutton
instructed Ord to leave Wakefield’s first-
quarter ratings the same as his benchmark rat-
ings and to reflect any improvement in his job
performance on the second-quarter ratings, to
be issued in July. Ord made the desired chang-
es in July.
II.
Wakefield claims that Vice and Sutton dis-
criminated against him on the basis of race by
instructing Ord not to recommend him for the
Structural Estimator position or to raise his
QPR ratings until the second quarter of 1997.
The district court found that neither of these
actions constituted an adverse employment de-
cision under Fifth Circuit precedent.
.
The methodology for considering a claim
under title VII has been well rehearsed. As the
district court explicated the process with spe-
cificity to these facts,
[a] plaintiff must first establish a prima
facie case of disparate treatment on the
basis of race by demonstrating that:
(1) he is a member of a protected class;
(2) he was qualified for the position;
(3) despite his qualification, he suffered
an adverse employment decision made
by a defendant; and (4) he was replaced
by, or received less favorable treatment
than, similarly situated non-African
Americans.
Citing Crawford v. Western Elec. Co., 614
F.2d 1300, 1315 (5th Cir. 1980). Once the
plaintiff has demonstrated his prima facie case,
the employer is obliged to articulate legitimate,
nondiscriminatory reasons for the adverse em-
ployment action. McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802 (1973). If the
employer can, then the inference of discrim-
ination created by the prima facie demonstra-
tion disappears, and the court focuses on the
ultimate question of whether the employer
intentionally discriminated against the plaintiff
employee. St. Mary’s Honor Center v. Hicks,
509 U.S. 502, 510-11 (1993). The employee
demonstrates discrimination by showing either
direct evidence of discrimination or, circum-
stantially, that the employer’s articulation of
legitimate reasons for adverse treatment was
pretextual. McDonnell Douglas, 411 U.S. at
804. Wakefield claims that he has stated caus-
es of action under § 2000e-2(a)(1) and (2).
A.
Section 2000e-2(a)(1) forbids employers to
“fail or refuse to hire or to discharge any in-
dividual, or otherwise to discriminate against
any individual with respect to his compensa-
tion, terms, conditions, o r privileges of em-
ployment, because of such individual’s race,

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color, religion, sex, or national origin.” Id. As
the district court indicated, we repeatedly have
held that this subsection, like the anti-
retaliation provisions of § 2000e-3(a),
proscribes “ultimate employment decisions,
and not . . . ‘interlocutory or mediate’
decision[s] which can lead to an ultimate
decision.” Mattern v. Eastman Kodak Co.,
104 F.3d 702, 708 (5th Cir. 1997). See also
Burger v. Central Apartment Management,
Inc., 168 F.3d 875, 878-79 (5th Cir. 1999).
“Ultimate employment decisions include acts
such as hiring, granting leave, discharging,
promoting, and compensating.” Id. at 707
(citation and internal quotation marks
omitted). In the context of § 2000e-2(a)(1), at
least, “employment actions are not adverse
where pay, benefits, and level of responsibility
remain the same.” Watts v. Kroger Co., 170
F.3d 505, 512 (5th Cir. 1999).
Wakefield concedes that he “did not seek a
promotion”; rather, he claims to have sought
“a new job opportunity,” which was not a pro-
motion but nevertheless was not a mere
“transfer.” Wakefield was not denied his “new
job opportunity” after he had been fully vetted
for it. Rather, his request for consideration
was excluded preliminarily because he was not
recommended by his supervisor.
A similar situation arose in Dollis v. Rubin,
77 F.3d 777 (5th Cir. 1995). There, an
employee complained that, among other
things, she had been denied a “desk audit” to
determine whether promotion was in order,
which denial “restricted her promotional
opportunities and upward mobility.” Dollis,
id. at 779. We held that “none of Dollis’ . . .
complaints involved adverse personnel
actions.” Id. at 781. The district court drew
from this holding that “an opportunity to be
reviewed for a promotion does not constitute
an ultimate employment decision.” Citing
Dollis, 77 F.3d at 781-82 (emphasis added).
This reading is justified and is sufficient to
defeat Wakefield’s claim that he suffered an
adverse employment action under § 2000e-
2(a)(1). He, too, was denied full re-
viewSSbecause of his supervisors’ failure to
recommend him at a specific time, based on
the fact that his employment review was
exceedingly poor and that sufficient time had
not elapsed to allow meaningful review and
reconsideration of that score under company
procedure.1
Even if we ignore the fact that State Farm
merely denied Wakefield the opportunity to
participate in the promotion-selection process,
rather than denying him promotion outright,
we are still faced with the fact that, by his own
admission, Wakefield was not seeking
promotion. Rather, he sought only a “new job
opportunity.” As we have said, this circuit
does not consider an employment action to be
1 Wakefield writes in his brief:
Interestingly, in Burger[, 168 F.3d] at 878
. . . the [c]ourt stated that “‘[u]ltimate em-
ployment decisions’ include acts such as hir-
ing, granting leave, discharging, promoting,
and compensating.’” The [d]istrict [c]ourt
wrote in its Order for this case that “an op-
portunity to be reviewed for a promotion
does not constitute an ultimate employment
decision” and credited Dollis at 781-82 as
authority.
Wakefield implies that the district court
contradicted itself. If Wakefield so contents, it
must be because he failed to distinguish between
the act of promoting (final promotion decisions)
and the preliminary opportunity to be reviewed for
a promotion.

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an ultimate employment action, and therefore
to establish a prima facie case under § 2000e-
2(a)(1), if “pay, benefits, and level of
responsibility remain the same.” Watts, 170
F.3d at 512.
Wakefield argues that he developed, in the
summary judgment record, evidence that
“[t]he [job] class for this opening was MA2N
and included a salary range that was higher
than the highest range available in the class ap-
pellant was in at the time of his request for
consideration.” The portion of the record to
which he points us for this proposition,
however, establishes no such thing. Rather, it
reflects that Wakefield would have received no
raise upon transfer, that a merit review would
have been available (even as it would have
been available to him in his current position),
and that State Farm considered the “new job
opportunity” a completely lateral move.2
Meanwhile, Wakefield makes no pretense,
beyond bare assertion, that his benefits would
have changed upon his transfer to his “new job
opportunity.” Finally, he points out that “[t]he
new job opportunity was located in another
town, under different management, and includ-
ed entirely different and new job
responsibilities . . . includ[ing] the benefits of
specialized training in claims work that was
different than any he had received.”
We do not question that Wakefield’s
responsibilities upon transfer would have been
different. Difference, however, is not enough.
Rather, our precedent requires that Wakefield
make a showing that his level of responsibility
would have increased. Nothing to which he
points us suggests this would have occurred.
In short, Wakefield fails to make a prima facie
case under § 2000e-2(a)(1), because he cannot
show an ultimate employment action.
B.
Wakefield also claims that he properly has
stated a claim under § 2000e-2(a)(2), which
forbids an employer to
limit, segregate, or classify his
employees or applicants for employment
in any way which would deprive or tend
to deprive any individual of employment
opportunities or otherwise adversely af-
fect his status as an employee, because
of such individual’s race, color, religion,
sex, or national origin.
Id. Wakefield points us to Mattern, wherein
we explained in dictum that § 2000e-2(a)(2) is
a “more vague proscription” that “reaches
much farther than” does § 2000e-2(a)(1).
Wakefield makes no effort, however, to
delineate the extended reach of § 2000e-
2(a)(2) except to assert that the conduct he
describes falls within it.
Despite Wakefield’s failure to cite it, our
precedent does explicate the role and scope of
§ 2000e-2(a)(2). In Carpenter v. Stephen F.
Austin State Univ., 706 F.2d 608 (5th Cir.
1983), we explained that “[t]he disparate im-
pact model of [t]itle VII liability is based on
. . . § 2000e-2(a)(2).” Id. at 620 n.7 (emphasis
2 Wakefield asserts, without citation to the
record, that “the maximum salary grade for the
new position is higher than the maximum salary
grade for the position appellant held at the time he
attempted to apply for this job opportunity.” We
see no support in the record for this assertion.
State Farm’s summary judgment evidence,
meanwhile, supports the opposite conclusion: that
the transfer was, from the standpoint of
compensation, entirely lateral. Wakefield’s
conclusional assertions do not effectively oppose
State Farm’s evidence.

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added).3
We have identified the procedures for
making a valid disparate impact claim.
[A] a plaintiff must (1) identify the
challenged employment practices or
policy, and pinpoint the defendant’s use
of it; (2) demonstrate a disparate impact
on a group that falls within the
protective ambit of [t]itle VII; and (3)
demonstrate a causal relationship
between the identified practice and the
disparate impact.
Gonzales v. City of New Braunfels, 176 F.3d
834, 839 n. 26 (5th Cir. 1999).4
Construing Wakefield’s complaint with
maximum generosity as a disparate impact
claim, we find that the two “practices”
complained of are his superiors’ decisions not
to allow his immediate supervisor to change
his quarterly review ratings until at least three
months had passed since his initial review, and
not to allow that supervisor to recommend him
for a transfer while his ratings were as low as
originally determined, with the result that he
was not interviewed for the transfer position
because he had not been recommended by his
superiors. By this recitation of evidence,
Wakefield has satisfied the first requirement in
stating a disparate impact claim.
Wakefield does not, however, satisfy the
second step. He does not make any
evidentiary showing that the practices
complained of had the effect of harming the
interests of black employees at State Farm,
either anecdotally or statistically. Neither does
he show that he was treated differently as a
class of one for race-motivated reasons. See
Vaughn, 918 F.2d at 519-20, 523. In short, be
the group many or one, Wakefield has not
demonstrated any impact particular to that
group that was different from that on others at
State Farm. Without such a showing, he can
hardly demonstrate the third element of a
prima facie case of disparate-impact
discrimination, because he has not shown any
disparity in impact.
C.
State Farm argues that even had Wakefield
made out a prima facie case under either of
the above theories, he could not have
prevailed, because he failedSSonce State Farm
had enunciated a legitimate, non-
discriminatory justification for its actionsSSto
provide any evidence that State Farm’s
justification was pretextual. Wakefield
demonstrates no such showing of pretext, and
our review of the record discloses none.
Wakefield has not shown that State Farm’s
policies were invented ex post to explain its
3 See also Vaughn v. Edel, 918 F.2d 517, 519-
20, 523 (5th Cir. 1990); Sagers v. Yellow Freight
Sys., Inc., 529 F.2d 721, 725, 729 (5th Cir. 1976).
4 In Gonzales, we faced a disparate impact
claim under the Americans with Disabilities Act
(“ADA”) and explained that “[i]n the ADA
context, a plaintiff may satisfy the second prong of
his prima facie case by demonstrating an adverse
impact on himself rather than on an entire group.”
Id. That this is true in the title VII context is
demonstrated by Vaughn, wherein the plaintiff did
not suggest that the challenged employment prac-
ticesSSdenying her timely and constructive review
because of her raceSSwere carried out against all
blacks, but instead demonstrated evidence that she
alone was subjected to them because she was
black. Vaughn, 918 F.2d at 519-20, 523. Wake-
field, therefore, enjoys the same opportunity; as we
explain, however, he has failed to make use of it.

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behavior; he did not demonstrate that the pol-
icies had been employed in discriminatory
ways; he did not provide evidence, other than
the unsupported and uncorroborated suspicion
of his immediate supervisor, that race actually
motivated his employers. Anecdotal and spec-
ulative evidence that racial considerations
motivated behavior, without more, does not
allow inference of the proposition that race
was in fact a motivating factor.5
“[W]e may affirm the district court’s
judgment for different reasons than the district
court relied upon.” Burger, 168 F.3d 875,
878 (5th Cir. 1999). Here, we decide, not in-
stead of but in addition to the district court’s
conclusion, that Wakefield failed to articulate
a prima facie case of discrimination under title
VII and that he failed as well to articulate any
competent reasons to suggest that State
Farm’s proffered explanations for its behavior
were pretextual.
AFFIRMED.
5 See, e.g., Swanson v. General Servs. Admin.,
110 F.3d 1180, 1186 (5th Cir. 1997) (holding that
“a broad, generalized statement that black
employees were ‘watched’ more closely than whites
is incompetent to establish a pattern of dis-
crimination”); Odom v. Frank, 3 F.3d 839, 849
(5th Cir. 1993) (rejecting anecdotal and speculative
opinion testimony concerning an "unwritten policy"
discouraging advancement of older employees).

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