* Pursuant to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

January 25, 2006

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-20825

RAYMOND RUNNELS ET AL.,

Plaintiffs-Appellants,

v.

TEXAS CHILDREN’S HOSPITAL SELECT PLAN,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

Before BENAVIDES, STEWART and OWEN, Circuit Judges.

PER CURIAM: *

This appeal is from a d istrict court’s grant of summary

judgment in favor of an employer in a race discrimination case

under 42 U.S.C. § 1981. Appellants allege disparate treatment in

compensation and disparate treatment in promotion. Appellants

claim that the district court erroneously admitted the employer’s

expert evidence and erroneously granted summary judgment. With

respect to the expert wi tness evidence challenge, Appellants2

strenuously argue that discrimination suits should not become a war

of experts. However, binding precedent instructs that statistical

evidence serves an important role in employme nt discrimination

cases. We have reviewed the record and are convinced that there is

no genuine issue of material fact. Finding no reversible error, we

AFFIRM.

I. FACTUAL AND PROCEDURAL HISTORY

Appellants are eight African-American technicians employed in

the Biomedical Engineering Department (“Biomed”) of Appellee Texas

Children’s Hospital (“TCH”). Biomed employs more than eighty

individuals, most of whom are engaged in maintaining and repairing

biomedical equipment. Biomed is divided into three groups, each of

which services different types of equipment and has its own

manager. Biomed’s Director, Yadin David, and Assistant Director,

John Weimert, oversee all three groups. Biomed’s managers are all

white males.

Biomed has three technician classifications of increasing

responsibility: Biomedical Equipment Technician (“BMET”), Senior

Biomedical Equipment Technician (“Sr. BMET”), and Specialist.

Appellant Samuel Mojay is a BMET; Appellants Raymond Runnels,

Beleke Awigichew, Marvin Henry, Kevin Davis, Kenneth Jenkins, and

Glen White are Sr. BMETs; and Appellant Keidrick Perry is a

Specialist.

E ach Biomed employee receives an annual evaluation with a

total rating that falls into one of four categories: Fails to Meet3

Expectations, Meets Expectations, Exceeds Expectations, and

C onsistently Exceeds Expectations. The evaluation is based on

hours spent on preventative maintenance; trouble-shooting and

repairing equipment; providing project support, technical support,

and leadership when needed; performing incident investigations;

ensuring quality of group work; documenting all work and materials;

and attending meetings as assigned. Biomed technicians receive an

annual merit pay increase, which is tied to the evaluation rating

the employee received.

In August 2000, a Specialist position opened in the Intensive

Care/Operating Room (“ICU/OR”) unit. According to David, four Sr.

BMETs were co nsidered for the opening: Randy Taylor, Van Nguyen,

Runnels, and Awigichew. Management selected Taylor, a white male,

to fill the Specialist position.

In June 2002, another Specialist position became available in

the ICU/OR unit. According to David, management considered all Sr.

BMETs in that unit, including Nguyen (who had been the “runner up”

for the 2000 opening) and Appellants Perry and White. Nguyen, an

Asian male, was selected to fill the position.

Shortly after management filled the 2002 Specialist position,

Appellants filed this suit. After discovery, TCH moved for summary

judgment. On August 10, 2004, a Magistrate Judge recommended

granting s ummary judgment, concluding that Appellants failed to

raise a genuine issue of ma terial fact that TCH discriminated

against them. The district court adopted the Magistrate Judge’s4

recommendation and granted summary judgment.

II. STANDARD OF REVIEW

The district court’s decision to admit expert testimony is

reviewed for abuse of discretion and should not be disturbed unless

it is manifestly erroneous. G eneral Electric Co. v. Joiner

, 522

U.S. 136, 141-42 (1997). This Court reviews a district court’s

grant of summary judgment de novo , applying the same standards as

the district court. E .g.

, Hirras v. Nat’l R.R. Passenger Corp

., 95

F.3d 396, 399 (5th Cir. 1996). Summary judgment is proper if the

record reflects “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.” F ED

. R. C IV

. P. 56(c).

III. ANALYSIS

A. Admission of Expert Reports

1. Dr. Jeanneret

Appellants claim that the district court erroneously admitted

the defendant ’s expert reports. The admissibility of expert

evidence is governed by Federal Rule of Evidence 702, which

requires district courts to ensure that (1) e xpert testimony is

“rele vant to the task at hand” and (2) it “rests on a reliable

foundati on.” D aubert v. Merrell Dow Pharmaceuticals, Inc.

, 509

U.S. 579, 597 (1993). The admissibility of expert evidence “is

governed by the same rules, whether at trial or on summary

judgment.” First United Fin. Corp. v. United States Fid. & Guar.1 Appellants do not dispute that Jeanneret is qualified to

provide expert evidence.

2 Appellants also sta te that the “underlying documents have

not been produced by Defendant.” To the extent that Appellants

intend to raise a discovery c laim, we conclude that it is not

adequately briefed and thus, need not be addressed. S ee

Communications Workers of America v. Ector County Hosp. Dist.

, 392

F.3d 733, 748 (2004).

5 Co. , 96 F.3d 135, 136-37 (5th Cir. 1996).

TCH attached a report from Dr. P. R. Jeanneret to their motion

for summary judgment. Jeanneret holds advanced degrees in the

fields of industrial and organizational psychology with minors in

measurement and industrial socio logy. 1 Jeanneret conducted a

statistical analysis assessing the effect of race on B iomed

technicians’ compensation, performance evaluations, and pay raises.

His report concluded that there was no stat istically significant

race effect.

Appellants argue that the district court should have excluded

Jeanneret’s report for several reasons. First, they allege that

Jeanneret’s report failed to list the documents the expert reviewed

and “[t]hus the failure to base his opinion on all the relevant

facts makes any testimony of Dr. Jeanneret unreliable and therefore

inadmissible.” 2

The Federal Rules of Civil Procedure require that an expert

report con tain “the data or other information considered by the

witness in form ing the opinions.” F E D

. R. C IV

. P. 26(a)(2)(B).

Jeanneret’s report provides that the statistical analyses were6

based on (1) three years of Biomed technician salary information,

(2) performance ratings from 1981 to 2002, and (3) annual pay

increases during th e relevant period. This data is set forth in

Table 1 of the report. Additionally, even assuming the report

omitted relevant data, the Supreme Court has held that the omission

of relevant variables generally affects only the probative value,

not the admissibility, of statistical analysis. S ee Bazemore v.

Friday , 478 U.S. 385, 400 (1986).

Second, Appellants argue that Jeanneret’s report should have

been excluded because it “submits the ultimate question and seeks

to answer the same

. . . .” The Rules of Evidence, however,

provide that “testimony in the form of an opinion or inference

oth erwise admissible is not objectionable because it embraces an

ultimate issue to be decided by the trier of fact.” F E D

. R. E VID

.

704.

Third, Appellants argue that the statistical evidence was

irrelevant and u nhelpful to the trier of fact. Federal Rule of

Evidence 702 provides that an expert may offer an opinion if it

“will assist the trier of fact to under stand the evidence or to

determine a fact in issue.” Courts have long recognized the

relevance and helpfulness of statistical evidence in proving, and

disproving, employment discrimination. S ee, e.g., Int’l Bhd. of

Teamsters v. United States

, 431 U.S. 324, 339 (1 977) (explaining

that statistics are not only “competent in proving employment7

discrimination” but “serve an important role”). Therefore, this

argument fails.

Appellants also point out, presumably as a part of their

relevancy ch allenge, that Jeanneret’s report combined the three

technician classifications in order to obtain a sufficient sample

size. Appellants themselves allege department-wide discrimination

within all three job classifications. Further, personnel decisions

for all three classifications during the relevant period were made

by the same group of four managers. Therefore, it was relevant

that no statistically significant evidence of racial bias existed

across job classifications.

Fourth, Appellants argue that Jeanneret’s methodology was

unreliable. They make the conclusory assertion, citing K umho Tire

Co. v. Carmichael

, 526 U.S. 137, 149 (1999), that Jeanneret’s

method “cannot be tested, subjected to peer review, there is no

known rate of error, etc.” The district court, however, found it

unnecessary to assess the “ Daubert factors” individu ally, and it

need not have considered them. “ D aubert makes clear that the

factors it mentions do n ot constitute a ‘definitive checklist or

test .’” Id. a t 150 (emphasis in original). Indeed, the Supreme

Court has held that a trial judge has “considerable leeway” in

determining “ how to test an expert’s reliability.” I d. at 152

(emphasis i n original). The district court reasonably relied on

the general rule that statistical analyses of the type employed by8

Jeanneret are reliable. S ee, e.g., Lavin McEleney v. Marist

College

, 239 F.3d 476, 483 (2d Cir. 2001). In sum, the district

court’s decision to admit Jeanneret’s report was not manifestly

erroneous.

2. Dr. Dyro

Appellants also challenge the district cou rt’s admission of

Dr. Joseph Dyro's expert testimony. Dyro, who has a doctorate

degree in Biomedical Electronics Engineering, pr ovided a report

cont aining his expert opinion regarding TCH's organization table

and job descriptions. Dyro concluded that “[p]romotion withi n

functional groups is con sistent with industry norms as the skill

level of group members is specialized and the development of those

skills typically requires a considerable exp enditure in training

expenses.”

Appellants assert that Dyro likewise failed to provide a

description of the documents he reviewed. Contrary to Appellants’

assertion, Dyro’s report listed the documents upon which he relied

and summarized the information contained in the documents.

Appellants also argue that Dyro’s opinion invaded the province

of the jury. As previously set forth, the Federal Rules of

Evidence do not prohibit evidence on this basis. Accordingly,

Appellants have failed to demonstrate that the district court

committed manifest error in admitting evidence from Dyro.3 Appellants complain that job openings should have been, but

were not, communicated to all employees via a job posting list.

Appellants cite no authorit y for this proposition and at oral

argument could not identify any legal obligation to post the job

openings.

9

B. Discrimination Claims

1. Denial of Promotion

Five of the Appellants, Runnels, Awigichew, Perry, Mojay, and

White, generally contend that they “were denied promotions and/or

an opportunity to apply for position[s] when employees of different

races were simply placed in the position.” 3 Appellants’ claims of

discrimination are governed by the tripartite burden-shifting test

established by McDonnell Douglas v. Gre en , 411 U.S. 792, 802–04

(1973). Under M cDonnell Douglas, Appellants first must make a

prima facie case. The prima facie elements of a claim for

disparate treatment are that: (1) the plaintiff is a member of a

protected class under the statute; (2) he applied and was qualified

for a job or promotion for which his employer was seeking

applicants; (3) despit e his qualifications, he was rejected; and

(4) the position remained open and the employer continued to seek

ap plicants, or the position was given to someone outside the

protected class. Id. at 802.

Second, if Appellants establis h a prima facie case of

discrimination, the burden shifts to TCH to articulate a

legitimate, non-discriminatory reason for not selecting Appellants.4 It is not clear whether Mojay raises a claim of denial of

promotion. Nevertheless, because he was not a Sr. BMET, his claim

fails for the same reason. Also, it should be noted that

sub sequent to the promotions at issue in this lawsuit, Perry

10 Id

. Third, if TCH satisfies this burden, Appellants must prove

that “the legitimate reasons offered by the defendant were not its

true reasons, but were a pretext for discrimination.” R eeves v.

Sanderson Plumbing Prods. Inc

., 530 U.S. 133, 143, 120 S. Ct. 2097,

2106 (2000) (citation and internal quotation marks omitted). The

“ultimate burden of persuading the trier of fact that the defendant

intentionally discriminated against the plaintiff remains at all

times with the plaintiff.” Id.

a. August 2000 Promotion of Taylor

i. Perry and White

In August of 2000, Taylor was promoted from the position of

Sr. BMET to Specialist in the ICU/OR unit. With respect to Perry

and White, the district court agreed with TCH that because they

were classified in a position two levels below the position of

Specialist, neither were qualified for the promotion to Specialist.

Only Sr. BMETs were considered for the promotio n to Specialist.

TCH provided evidence that promotions always were given one level

at a time, and Appellants have not shown otherwise. Thus, because

Perry and White were not qualified for the promotion, the district

court correctly concluded that they have failed to make a prima

facie case of discrimination. 4ultimately was promoted.

11 ii. Runnels and Awigichew

The district court found that Runnels and Awigichew, who were

both Sr. BMETs, demonstrated a prima facie case of discrimination

with respect to this denial-of-p romotion claim. TCH introduced

evidence indicating that both Runnels and Awigichew were considered

for the promotion. The decisionmakers, David, Weimert, and the

ICU/OR unit ma nager, however, agreed that Taylor was the best

qualified for t he promotion. The managers believed that Taylor

was the best choice because he had already worked in the unit.

Neither Runnels nor Awigich ew had as much experience with the

equipment for the ICU/OR unit. Also, a Specialist would spend the

majority of his time on administr ative functions, and management

believed that Taylor had excellent administrative skills. Based on

this ev idence, the district court correctly found that TCH

articulated a legitimate, non-discriminatory reason for not

selecting either Runnels or Awigichew.

Runnels and Awigichew must now demonstrate that the legitimate

reasons offered by TCH were not its true reasons but were a pretext

for discrimination. This Court has held that a plaintiff may

survive summary judgment by submitting evidence that he was

“clearly better qualified” than the employee selected for the

promotion at issue. Celestine v. Petroleos de Venezuella SA, 266

F.3d 343, 356–57 (5th Cir. 2001). “However, the bar is set high12

for this kind of evidence because differences in qualifications are

generally not probative evidence of discrimination u nless those

disparities are ‘of such weight and significance that no reasonable

p erson, in the exercise of impartial judgment, could have cho sen

the candidate selected over the plaintiff for the job in

question.’” Id . at 357 (quoting Deines v. Texas Dept. of Prot. &

Regulatory Servs. , 164 F.3d 277, 280–81 (5th Cir. 1999)).

Runnels has admitted in his deposition that it had been twenty

years since he had worked on the OR/ICU or laboratory equipment

that a Specialist would be responsible for maintaining. Awigichew

admitted that he had never worked in the ICU/OR unit and had no

experience working on that equipment. Although both Runnels and

Awigichew point to their longer service with TCH and believe they

were more qualified than Taylor, neither of them has shown that

they were “clearly better qualified” than Taylor.

In their brief, Appellants state that in the history of Biomed

there has never been an African American promoted to a management

position. Appellants do not raise a disparate treatment claim with

respect to any of the five management positions. Moreover,

Appellants have failed to allege, much less show, that any

qualified African American applied for one of the five management

positions. Thus, the lack of African-American management does not

app ear to be relevant as to whether management engaged in

purposeful discrimination against Appellants.5 Appellants also rely on Weimert's statement to Runnels that

because Runnels filed this lawsuit he would never be promoted.

This statement may suggest animus because of the filing of the

suit, but it does not indicate racial discrimination at the time of

the promotions at issue.

13 Appellants have failed to show that they were clearly better

qualified than Taylor. Thus, the district court properly granted

summary judgment on their denial-of-promotion claims with respect

to the 2000 promotion of Taylor. 5

b. June 2002 Promotion of Nguyen

In June of 2002, another Specialist position became available

in the ICU/OR unit. The management gave the promotion to Nguyen,

who had been the supervisors' second choice for the August 2000

promotion.

In the district court, Runnels, Awigichew, Perry, White, and

Mojay alleged a denial-of-promotion claim regarding this promotion

given to Nguyen. By this time, Perry and White had been promoted

to Sr. BMETs. It is not clear whether the district court concluded

that all the Plaintiffs were qualified and had alleged a prima

facie case. Assuming all the Plaintiffs did demonstrate a prima

facie case, TCH had to articulate a legitimate, non-discriminatory

reason for selecting Nguyen over them. Again, TCH states that

Nguyen was more qualified than Appellants.

TCH argues, and the district court found, that Runnels and

Awigiche w still lacked significant expertise with the relevant14

equipment. Although Perry and White were Sr. BMETs in the ICU/OR

unit, they had less experience in that position than Nguyen. TCH

also points to Nguyen's outstanding performance as a reason for the

promotion. The relevant experience and performance cited by TCH is

a legitimate, non-discriminatory reason for selecting Nguyen over

the Plaintiffs. Indeed, it appears that, as a group, even

Appellants had championed Nguyen as the person most qualified for

the previous 2000 promotion Taylor received.

As previously set forth, to survive summary judgment, the

plaintiffs must show “no reasonable person, in the exercise of

impartial judgment, could have chosen the candidate selected over

the plaintiff for the job in question.” C elestine

, 266 F.3d at 357

(quoting Deines

, 164 F.3d at 280–81). This Appellants have failed

to do. Appellants have offered no more arguments or evidence than

is set forth above regarding the 2000 promotion. Because they have

not shown that they w ere “clearly better qualified” than Nguyen,

their claims fail. The district court properly granted summary

judgment on the 2002 denial-of-promotion discrimination claims.

2. Disparate Treatment in Compensation

a. Across Job Classifications

To establish a prima f acie case of discrimination regarding

compensation, a plaintiff must prove that (1) he is a member of a

protected class and (2) he is paid less than a nonmember for work

requiring substantially the same responsibility. U viedo v. Steves15

Sash & Door Co.

, 738 F.2d 1425, 1431 (5th Cir. 1984). Appellants

Runnels and Awigichew, both Sr. BMETs, seek to establish a prima

facie case by comparing their salaries to those of Specialists, a

higher job classification. Relying on U viedo

, 738 F.2d at 1431,

the district court found that Appellants failed to make out a prima

facie case of compensation discrimination with respect to

techni c ians “one promotion level up the organizational chart”

because “the record does not support Plaintiffs’ contention that

Specialist, Sr. BMET, and BMET had the same job responsibilities.”

Runnels and Awigichew argue, however, that they are “performing the

work of a Specialist.” The only evidence that Appellants point to

in support of the claim that their salaries should be compared to

a Specialist's salary is their own testimony, and even this does

not explain how their work is the same.

TCH contends that there is no d ispute that Specialists have

different job duties than do Sr. BMETs. Indeed, at one point in

their brief, Appellants admit that there are important “position

differences” between BMETs, Sr. BMETs, and Specialists. Similarly,

Runnels testified that Specialists did more complicated technical

work than Sr. BMETs. As TCH points out, Appellants' claim appears

to be that they are performing above their level of “assigned

responsibilities.” Yet, they do not cite any authority for the

proposition that this is sufficient to establish a prima facie case

of compensation discrimination. Thus, Appellants fail to16

demonstrate that their job responsibilities are substantially the

same as those of a nonmember Specialist. S e e Little v. Republic

Refining Co., Ltd. 924 F.2d 93, 97 (5th Cir. 1991) (holding that

plaintiffs must show “nearly identical” circumstances in a claim of

disp arate treatment). Accordingly, the district court properly

concluded that Runnels and Awigichew were not similarly situated to

Specialists and that they could not establish a prima facie case by

comparing their compensation to that of Specialists.

b. Within Job Classifications

The remaining Appellan t s seek to show pay discrimination

within their job classification. The district court held that

Appellants made a prima facie case of discrimination with respect

to this claim. TCH disputes this holding. We will assume a rguendo

that the district court correctly found a prima facie case was

made.

TCH points to its merit-based evaluation system as a

legitimate, non-discriminatory reason for the difference in

compensation levels. Appellants respond that the “uneven

application of the evaluation process” to minorities demonstrates

a genuine issue of material fact regarding whether race is a factor

in determining pay. For example, in support of this argument,

Appellants compare the production numbers of certain nonminorities

to their production numbers; however, produ ction numbers are but

one facet of an employee’s evaluation. Furthermore, a Biomed17

technician’s salary is based upon starting pay, job classification,

and performance evaluations. Thus, the evaluation is but one of

three factors upon which an employee’s pay is determined.

Appellants never show that they are similarly situated as to all

the factors with a nonminori ty employee who is more highly

compensated. Appellants have failed to show “nearly identical”

circumstances. S ee Little, 924 F.2d at 97. Further, as

previously set forth, Jeanneret analyzed Biomed’s technicians’

compensation and performance evaluations and concluded that there

was no statistical ly significant race effect. Accordingly,

Appellants have failed to raise a genuine issue of material fact

with respect to whether the evaluation process is pret ext for

discrimination.

IV. CONCLUSION

For the above reasons, the district c ourt’s judgment is

AFFIRMED.