                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                    Revised November 12, 2003
                                                            November 10, 2003
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT              Charles R. Fulbruge III
                        _________________                        Clerk

                             No. 02-41722



     TRINA JERGE,

                                            Plaintiff - Appellant,

                                  v.


     THE CITY OF HEMPHILL, TEXAS

                                            Defendant - Appellee.



          Appeal from the United States District Court
                for the Eastern District of Texas
                           1:01-CV-607



Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:*



     Plaintiff-Appellant Trina Jerge initiated this action

against her former employer, the City of Hemphill, Texas (the

City), alleging gender discrimination in violation of 42 U.S.C. §

1983 and Title VII of the Civil Rights Act of 1964.     The City

filed a motion for summary judgment, which the district court

     *
      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this opinion should not be published and is not precedent except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.

                                   1
granted in part and denied in part.   Jerge appeals the district

court’s denial of her claims for failure-to-hire and constructive

discharge.   We find that the record reveals direct and

circumstantial evidence sufficient to raise a genuine issue of

fact as to whether the City unlawfully discriminated against

Jerge.   We therefore vacate the judgment of the district court

and remand the case for trial.



                                 I.

     The City of Hemphill, Texas, is governed by an elected mayor

and a city council comprised of five elected officials, all of

whom are male.   The daily administration of City business is

conducted by the City Manager, who is assisted by the City

Secretary.   In the mid-1980s, the City hired Tommy Neal as City

Manager.   The City did not advertise the position, but instead

promoted a City employee to the position.   At the time of Neal’s

appointment, Neal had experience working for the City, but he did

not have a college degree.   Neal left the City Manager’s Office

in 1992.

     In October 1992, the City hired Jerge as City Secretary.

The City Manager position remained unfilled for several years

after Neal’s departure.   During the first few years of her

employment with the City, Jerge performed the bulk of the duties

normally assigned to the City Manager as well as performing her

own duties as City Secretary.    She received no complaints about

                                  2
her work, and Mayor Robert Hamilton often expressed satisfaction

with her performance.   Despite assuming many of the duties of

City Manager, Jerge did not receive the title of City Manager,

nor did she receive the attendant pay increase.

     In November 1996, the City promoted Frank Coday from City

Superintendent to City Manager.   As before, the City did not

advertise the position, nor was the hiring identified on the

agenda for the council meeting.   As City Secretary, Jerge

reported directly to Coday, and their working relationship was,

by all accounts, acrimonious.   In October 2000, Coday announced

his intention to retire from the position of City Manager and let

it be known that he was supporting a man named Don Iles for the

position.

     Upon learning of the impending vacancy, Jerge expressed to

the Mayor her interest in applying for the job of City Manager.

Initially, Mayor Hamilton encouraged her.   However, after

speaking with Councilman Ener, the Mayor became less supportive

of her candidacy.   Jerge stated that the Mayor told her it was

his appointment and that he would appoint her if she wanted the

job, but warned her that the council would “never go along with

it because they don’t think a woman can do the job.”

     Jerge officially applied for the position of City Manager

and interviewed for the job along with several other finalists.

During her interview, Jerge was told she had five minutes to

explain why she wanted the job.   In response, Jerge listed

                                  3
several substantive reasons why she felt she was right for the

job, including her experience, her administrative ability and her

knowledge of and love for the City.    Councilmen Tomlison and Rice

each asked Jerge how she would contend with a situation in which

she was called out in the middle of the night.1   The interviewers

did not ask her about her education or about her past experience

performing the duties of City Manager.

     Upon completing the final interview, the council unanimously

selected Don Iles, who had recently earned a college degree, but

who had no experience in municipal government.    Although the

Mayor was present at the deliberations, he declined to vote for

any candidate and instead left the decision to the council.2

     Jerge resigned following the council’s decision to appoint

Iles.    Jerge avers that she was “devastated” because she

perceived that she was denied a “fair opportunity” in her home

town merely because she was a woman.    She subsequently initiated

the present action.

     1
      Jerge answered that she would not have a problem being
called out to work at night. Jerge explained to the councilmen
that as a City Judge, she was called out at night to perform
duties such as issuing arrest warrants, entering emergency
protective orders and performing inquests.
     Jerge asserts in her declaration that she was not asked at
the interview about her ability to engage in or supervise outside
work, but she states that she was well acquainted with “outdoor
work” as she was raised on a farm and has a significant amount of
experience working outdoors and making repairs.
     2
      The council meeting in which the council voted to appoint
Iles was not tape recorded, which was a departure from the
council’s usual practice.

                                  4
                                II.

     This Court reviews de novo a grant of summary judgment and

applies the same standard as the district court. Blow v. City of

San Antonio, 236 F.3d 293, 296 (5th Cir. 2001).3   To mount a

claim for gender discrimination in violation of Title VII, Jerge

must demonstrate that she was not selected for the City Manager

position because of her sex. 42 U.S.C. §§ 2000e et seq.   She may

do this in one of two ways.   She may present direct evidence of

discrimination.   Alternatively, she may provide circumstantial

evidence of discrimination in accordance with the burden shifting

framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973).   Here, Jerge contends she has presented both direct

and circumstantial evidence of discrimination, and we agree.




     3
      Thus, to determine if summary judgment was properly entered
in favor of the City, we review the record in the light most
favorable to Jerge and resolve all reasonable inferences in her
favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Moreover, we will affirm the district court's judgment only if we
find that those facts that are material to Jerge's claim are
undisputed by the parties; at this stage of litigation, the
reviewing court will not “step into the stead of the jury and
weigh the evidence in a search for truth, but is instead to
determine whether there exists a genuine issue for trial.” Fabela
v. Socorro Indep. Sch. Dist., 329 F.3d 409, 414 (5th Cir. 2003);
see also Caboni v. General Motors Corp., 278 F.3d 448, 451 (5th
Cir. 2002) (stating that in deciding whether summary judgment was
properly granted, "this court will not weigh the evidence or
evaluate the credibility of witnesses.").


                                 5
     A.   Direct Evidence



     If a plaintiff presents direct evidence of discrimination,

the McDonnell - Douglas framework does not apply, and the burden

shifts directly to the defendant to show that he would have taken

the same action regardless of the impermissible criterion. See

Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th Cir.

2003); Fierros v. Tex. Dept. of Health, 274 F.3d 187, 192 (5th

Cir. 2001).

     Direct evidence is “evidence which, if believed, proves the

fact [of intentional discrimination] without inference or

presumption.” Portis v. First Nat’l Bank, 34 F.3d 325, 328-29

(5th Cir. 1994) (quoting Brown v. E. Miss. Elec. Power Ass’n, 989

F.2d 858, 861 (5th Cir. 1993)) (alteration in original).      “In a

Title VII context, direct evidence includes any statement or

document which shows on its face that an improper criterion

served as a basis, not necessarily the sole basis, but a basis,

for the adverse employment action.” Fabela, 329 F.3d at 415.

     To that end, Jerge presents evidence that both the Mayor and

the city councilmen considered her gender to be a relevant factor

in their decision not to appoint her City Manager.4   Jerge

     4
      Jerge presents evidence that Coday often yelled at her and
berated her. She also presents evidence that Coday supported a
male candidate, Don Iles, who had no previous experience working
for the City. However, most of Jerge’s allegations concerning
Coday are primarily relevant to her hostile workplace claim,

                                6
presents evidence that the Mayor initially supported her

candidacy, but a few days later, after a conversation with

Councilman Ener, the Mayor expressed reservations based solely on

Jerge’s gender.   Jerge avers that the Mayor told her that, based

on his conversation with a councilman, the Mayor believed the

council would not support her candidacy because they “don’t think

a woman can do the job.”   Jerge also presents deposition evidence

that Councilman Dutton expressed reservation as to whether the

two women applicants could handle the “outside parts” of the job.



which she has not appealed.
     Jerge does contend that Coday treated her differently
because she was a woman and that Coday remarked that Jerge lacked
the “nuts” for the job of City Manager. Jerge also presents
evidence that Coday informed Cecil Mott that Jerge had not been
doing her job adequately since she had her hysterectomy and that
he did not feel she could handle the position of City Manager and
that the community would never accept a woman as City Manager.
These remarks could potentially amount to direct evidence of
discriminatory intent. However, because Coday was not a final
decision-maker, Coday’s discriminatory intent is only relevant to
Jerge’s remaining claim insofar as Jerge is able to demonstrate
that Coday used his influence over the council to have Iles
appointed instead of her because she is a woman. See Russell v.
McKinney Hosp. Venture, 235 F.3d 219, 226 (5th Cir. 2000) (“If
the employee can demonstrate that others had influence or
leverage over the official decisionmaker, and thus were not
ordinary coworkers, it is proper to impute their discriminatory
attitudes to the formal decisionmaker.”); Long v. Eastfield
Coll., 88 F.3d 300, 307 (5th Cir. 1996) (stating that if the
official decisionmaker “merely ‘rubber stamped’” the wishes of
others, that decisionmaker would inherit the discriminatory
taint). Here, Jerge presents sufficient evidence to create a
material fact question as to whether the council generally rubber
stamped Coday’s decisions. However, it is less clear from the
record that Coday disfavored Jerge as a candidate because she was
a woman, as opposed to disfavoring her because he had a
personality conflict with her. However, we need not resolve this
question as other issues are dispositive of the appeal.

                                 7
Finally, Jerge presents the testimony of Councilman Edwards in

which he admits he was concerned about a woman being called out

to work at night — one of the requirements of the job of City

Manager.   The following is an excerpt of Councilman Edwards’

deposition:

                Question: [Other City employees] said
                          that you said you were
                          concerned about a woman being
                          called out [at night to
                          perform City Manager duties],
                          that that wouldn’t be a good
                          idea.

                Edwards:   Right.

                Question: That’s what you said?

                Edwards:   Right. I said that, probably.
                           Because you know how it is
                           now. You never know who you
                           are going to run into at
                           night. Dark carries a lot of
                           things.5


Deposition of Pierce Edwards at 35.

     Thus, Jerge provided sufficient direct evidence to raise a

genuine issue of material fact regarding whether the City


     5
      Although the district court observes that some of the
statements offered by the councilmen “may be indicative of an
antiquated view of women,” it nonetheless concludes that these
statements are not direct evidence of discrimination. However,
these statements provide direct evidence that the councilmen’s
reliance on sex-role stereotypes played a role in their decision
not to hire Jerge as City Manager. Therefore, the district court
erred in finding that Jerge did not provide direct evidence of
discrimination and in failing to employ the direct evidence
burden allocation standard as opposed to the McDonnell - Douglas
standard.

                                    8
discriminated against her in violation of Title VII.    Although

the City presents evidence that the councilmen believed Iles to

be better qualified, such evidence merely creates a triable issue

of fact; it is insufficient to secure summary judgment under the

direct evidence rubric. Fabela, 329 F.3d at 418.    Consequently,

we must remand this question for resolution by a jury.



     B.   Jerge’s Circumstantial Evidence



     Because we find that Jerge has presented sufficient direct

evidence, she is permitted to bypass the McDonnell - Douglas

framework at trial.   Even assuming that Jerge had presented only

circumstantial evidence and that the McDonnell - Douglas

framework applied, however, she would have raised a factual issue

precluding summary judgment.

     Jerge’s circumstantial evidence is certainly sufficient to

establish a prima facie case of gender discrimination under the

McDonnell - Douglas burden-shifting framework.6    Thus, the

     6
      The district court found, and the City does not dispute,
that Jerge established a prima facie case of discrimination,
i.e., (1) that she is a member of a protected class; (2) that she
applied and was qualified for the position of City Manager; (3)
that, despite her qualifications, she was not selected for the
position; and (4) that the position subsequently remained open or
was filled by a man.     Jerge v. City of Hemphill, Texas, 224 F.
Supp. 2d 1086, 1092 (E.D. Tex. 2002) (citing Davis v. Chevron
U.S.A., Inc., 14 F.3d 1082, 1087 (5th Cir. 1994)); see also
McDonnell Douglas Corp., 411 U.S. at 802.


                                 9
evidentiary burden of production shifts to the defendant to

proffer a legitimate and nondiscriminatory reason for the adverse

employment decision. Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 142 (2000).   Here, the City met this burden by

providing evidence from the councilmen that they selected Iles

over Jerge because they believed Iles was better qualified for

the job.   Specifically, the City asserts that Iles was better

qualified because he has a college degree in finance.

     Because the City demonstrated a nondiscriminatory reason for

not selecting Jerge for the job, Jerge then has the opportunity

to demonstrate that the City’s proffered nondiscriminatory

rationale was merely a pretext for discrimination. Reeves, 530

U.S. at 142.

     Jerge presents both evidence which calls the City’s reason

for choosing Iles into doubt and affirmative evidence of

discrimination.   First, she points to the fact that the City

Manager before Coday did not have a college degree, but instead

had municipal experience.   She notes that she was not asked

anything about college courses, but was instead only questioned

about her ability to be out late at night.   She further points to

deposition testimony of councilmen in which they admit they were

not familiar with Iles’ background in finance and statements by

councilmen in which they attest that they did not deem a college

degree to be an absolute requirement of the job.   She also notes


                                10
that a woman who did possess a college degree and municipal

finance experience applied for the job of City Manager, but was

not hired, and at least one of the top three candidates did not

have a college degree.   She observes also that Iles had neither

municipal experience nor administrative experience.

Additionally, Jerge submits evidence that demonstrates that the

Mayor and several of Jerge’s colleagues believed her to be

qualified for the job.   Moreover, she had eight years of relevant

experience, including three years during which she performed as

acting City Manager without complaint.

     Thus, Jerge presents evidence from which a jury could

reasonably conclude that Iles’ qualifications for the job were

not the real reason that he was selected over Jerge.7


     7
      The district court nonetheless concludes that no reasonable
jury could find that the City’s proffered reason was pretext. In
reaching this conclusion, the district court impermissibly
weighed the evidence in favor of the City. For example, the
district court was “unwilling to discount the testimony of the
councilmen that they were looking for a college degree.” Jerge,
224 F. Supp. 2d at 1094. In ruling on a motion for summary
judgment, however, “[c]redibility determinations, the weighing of
the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge.” Anderson, 477
U.S. at 255.
     Similarly, the district court drew a negative inference
against Jerge based on inferences that are unsubstantiated by the
record. The district court reasoned that the fact that the City
Manager prior to Coday did not have a college degree was not
evidence of pretext because “the composition of the council has
probably changed in the ensuing decade, as have, perhaps, its
views on necessary qualifications to manage a changing city.”
Jerge, 224 F. Supp. 2d at 1094 (emphasis added). In ruling on
the City’s motion for summary judgment, however, the district
court may not draw negative inferences, let alone inferences

                                11
     C.   Constructive Discharge



     Jerge also alleged constructive discharge, and the district

court granted summary judgment to the City on this point.   In

light of the fact that the district court relied on the

discrimination claim in determining that Jerge was not

constructively discharged and, as we are vacating the judgment

with respect to the discrimination claim, we also vacate the

judgment dismissing the constructive discharge and remand for

further consideration.



                              III.

      For the foregoing reasons, we VACATE the judgment of the

district court and REMAND the case for trial on the merits and

other proceedings consistent with the renderings herein.

     VACATED and REMANDED




based on speculation, against a nonmoving party. Fabela, 329 F.3d
at 418 n.9.

                               12
