Opinion
Civil Action No. 3:03-CV-2352-P.
August 10, 2004
ORDER
Now before the Court are the following motions:
1. Plaintiff's Motion for Summary Judgment, filed January 26, 2004;
2. Defendant's Motion to Strike Plaintiff's Motion for Summary Judgment, filed February 25, 2004;
3. Plaintiff's Response to Defendant's Motion to Strike Plaintiff's Motion for Summary Judgment, filed March 4, 2004;
4. Defendant's Motion for Summary Judgment, filed May 3, 2004;
5. Plaintiff's Response to Defendant's Motion for Summary Judgment, filed May 18, 2004;
6. Defendant's Reply to Plaintiff's Response to Defendant's Motion for Summary Judgment, filed June 2, 2004;
7. Plaintiff's Motion to Reconsider Findings of the Magistrate Judge, filed June 2, 2004; and
8. Plaintiff's Second Motion to Compel Production of Documents, filed June 2, 2004.
After a thorough review of the evidence, the parties' briefs, and the applicable law, the Court GRANTS the Defendant's Motion for Summary Judgment for the reasons outlined below. The Court DENIES Plaintiff's Motion for Summary Judgment and Defendant's Motion to Strike Plaintiff's Motion for Summary Judgment as moot. The Court DENIES Plaintiff's Motion to Reconsider Findings of the Magistrate Judge and Plaintiff's Second Motion to Compel Production of Documents.
I. Background and Procedural History
Plaintiff, seeking a job with Edward Jones, faxed his resume to the Edward Jones home office in St. Louis, Missouri from the office of Edward Jones Investment Representative Art McGuinness in Plano, Texas in December 2001. (Def.'s App. at pp. 12, 37.) Elizabeth Wilson, an Edward Jones recruiting representative, sent Plaintiff an application packet and called him to direct him to speak with Ken Box, an investment representative and regional leader in Waxahachie, Texas, to get an idea of what working for Edward Jones is like. Id. at p. 2. Plaintiff met with Box in early December for two to three hours, and they discussed Plaintiff's employment background, the duties and responsibilities of an Investment Representative, prospecting for clients, and other aspects of the Edward Jones business. Id. at pp. 33, 38.
Plaintiff's employment history, explained by his Edward Jones Application and discussed in his meeting with Box, shows that Plaintiff's most recent job was as an equity and mutual fund trader at Fidelity Investments from September 1999 to December 2001. Id. at p. 20. Prior to that, Plaintiff was unemployed from February 1999 to September 1999. Id. Plaintiff worked as a credit counselor for First USA Management from March 1998 to January 1999, and before that as a credit counselor for the Credit Counseling Center from August 1997 to March 1998. Id. at pp. 20-21. From September 1987 to August 1997, Plaintiff was self-employed as a consulting expert to attorneys. Id. at p. 21. Between 1982 and 1987, Plaintiff worked for five brokerage firms in Houston, four of which Plaintiff alleges went out of business due to the energy depression, and spent two periods of time self-employed as a consulting expert to attorneys. Id. at pp. 21-23. From June 1970 to December 1981, Plaintiff worked as General Partner and Portfolio Manager for a hedge fund. Id. at p. 22. Plaintiff worked as an account executive and Assistant Manager from August 1966 to June 1970 at Frances duPont Company. Id. at p. 23. Prior to that, Plaintiff worked as an account executive at Merrill Lynch from October 1962 to August 1966 and as a sales manager for General Electric Co. from January 1960 to September 1962. Id. at p. 22.
While Plaintiff alleges in a separate paragraph on his Edward Jones Employment Application that four of these firms went out of business because of the energy depression, he only lists in his employment history one firm that went out of business because of the energy depression, Cadden Company, and one firm that closed its Houston office because of the energy depression, Robert W. Baird Company. (Def.'s App. at pp. 21-23.) Plaintiff writes that E.F. Hutton went out of business due to a check-writing scandal and limited partnership scandals and that ACI Securities, a government bond firm, went out of business because of losses in their trading department. Id. at p. 22.
Not including Plaintiff's periods of self-employment, Plaintiff states that he left three of the companies because they went out of business, three because they closed the office he was working at, one because of a major reduction in force, four to pursue another business opportunity, and one because the partnership contractually expired. Id. at pp. 20-23. Plaintiff alleges that Box said during their meeting that his employment record was not a problem and that he understood Plaintiff's job changes. Id. at p. 49.
Plaintiff also believes that Box stated "I want you," at this meeting, and that Box wanted him to work in the Allen, Texas office or another yet to be established office in the area. Id. at p. 39. Defendant contends that Box never offered Plaintiff a position in any office, and that Box had no authority to hire new investment representatives. Id. at pp. 33, 34. Box told Plaintiff to complete the application packet, and gave him an Edward Jones brochure. Id. at pp. 33-34. After meeting with Plaintiff, Box reported to Wilson that Plaintiff was a good candidate, but he was concerned with the number of employers for whom Plaintiff had worked. Id. at p. 34.
Wilson then spoke with Plaintiff again, telling him that Box had recommended him for a position with Edward Jones. Id. at p. 42. Plaintiff and Wilson discussed what Plaintiff had told Box about his employment record, and Plaintiff states that Wilson said they would not hold him responsible for it. Id. at p. 45. Wilson said that Plaintiff still needed to submit the application packet, along with an authorization form for a background check which is conducted by an outside organization. Id. at pp. 5, 47. Plaintiff states that Wilson told him he had to fill out the form completely, so he did, including his birth date. Id. at p. 47. The form states that all information is provided voluntarily and is not considered a part of the application; however, Plaintiff understood that filling it out completely was necessary. Id. Plaintiff then faxed his application and background check to Wilson. Id. at pp. 38, 48.
At some point when Plaintiff spoke with Wilson, Plaintiff claims she stated that Box's recommendation was either "critical or crucial" to the hiring process. Id. at p. 42. Plaintiff understood, based on Wilson's statement, that Box was the one who made the decision on whether to hire Plaintiff. Id. at p. 39. Plaintiff admits that Box never said that he had the authority to hire Plaintiff or the words "you're hired," but that when Box stated that he wanted Plaintiff to man the Allen office or another office nearby, it came across that he had that authority. Id. While the hiring brochure contains a chart characterizing the application as the first step in the hiring process, Plaintiff claims that he understood that the application was the final step. Id. Plaintiff added that he understood from his previous investment firm experience that once Box had made the final recommendation, the home office would follow suit and hire Plaintiff after they had his application. Id. at pp. 42-45.
Plaintiff alleges that since he faxed his application and background check together and addressed it to Wilson's attention, and because Wilson said she would process it, Wilson had to have seen his age. Id. at p. 48. However, Plaintiff admits he has no personal knowledge of whether she did see his age. Id. Edward Jones states that the authorization form for the background check is utilized only if Edward Jones has conducted a telephone interview with the applicant and wants to proceed further in the application process. Id. at p. 5. Tracy Spinaio, a Senior Hiring Specialist in the Sales Hiring section of the Market Development Department of Edward Jones, says that Plaintiff faxed the authorization form with his application, but that she did not review the authorization form when reviewing his application. Id. After reviewing Plaintiff's application, Spinaio notified Plaintiff that Edward Jones would not pursue Plaintiff's application further, without stating a reason why. Id. at pp. 9, 28.
Plaintiff filed a claim of age discrimination with the Texas Commission on Human Rights ("TCHR") and the U.S. Equal Opportunity Employment Commission ("EEOC"). Id. at pp. 53-55. Edward Jones filed a response with the TCHR, stating that they had rejected Plaintiff because of a spotty employment record. Id. at p. 50. The TCHR issued a determination on June 24, 2003 that it was unable to conclude that any statutes had been violated, although it did not certify that the respondent was in compliance, and that Plaintiff had a right to file a civil action within sixty days. Id. at p. 53. The EEOC issued Plaintiff a notice on July 17, 2003 that it was closing his case and he had a right to sue if the suit was filed within ninety days. Id. at 55.
Plaintiff filed his Complaint on October 7, 2003, alleging a claim under the Age Discrimination in Employment Act of 1967 ("ADEA"), codified as 29 U.S.C. § 621 et seq. (2002), and the Texas Commission on Human Rights Act ("TCHRA"). Defendant filed an Answer to Plaintiff's Complaint on December 11, 2003. Plaintiff filed a Motion to Proceed in Forma Pauperis on October 9, 2003, which Magistrate Judge William F. Sanderson granted. Plaintiff also filed a Motion for the Appointment of Counsel on October 9, 2003 and an Emergency Motion for the Appointment of Counsel on February 19, 2004, both of which were denied by the Court on March 30, 2004. Plaintiff filed a Motion to Compel Production of Documents on April 15, 2004, which Defendant filed a Response to on May 6, 2004. Magistrate Judge Sanderson conducted a hearing on Plaintiff's Motion on May 7, 2004, and issued an order on May 26, 2004, granting in part and denying in part Plaintiff's requests.
II. Plaintiff's Motion to Reconsider and Second Motion to Compel
a. Background of Plaintiff's Motion
Plaintiff has filed a combined Motion to Reconsider Magistrate Judge Sanderson's Order in reference to Plaintiff's First Motion to Compel Production of Documents and a Second Motion to Compel Production of Documents ("Pl.'s Combined Mot."). Magistrate Judge Sanderson stated on the record that he was denying Plaintiff's first request, that Defendant produce a list of all applicants for an investment representative position with Edward Jones for the two years prior to the submission of his application, including the applicants' ages and who was hired, because the Defendant had made a substantial showing that to comply with this request would be difficult because it has an estimated 30,000 applicants a year and they don't keep records in that fashion, that is, by age and name. (Def.'s Resp. to Pl.'s Mot. to Compel Production of Documents at 1; Record.) While Plaintiff claimed that Defendants were required to keep such records for at least three years (Pl.'s Mot. to Compel at 1), Magistrate Judge Sanderson still denied Plaintiff's request, pointing out that Plaintiff had not submitted a statute, provision, or case law that they were required to do so. (Record.) In Plaintiff's Combined Motion, he cites 29 C.F.R. § 1627(b)(1)(I) (2003), which provides that employers should keep records of job applications, resumes, or other employment inquiries for one year from the date of the personnel action to which any records relate, and requests records of applicants from the past year. (Pl.'s Combined Mot. at 3.)
Magistrate Judge Sanderson characterized Plaintiff's second request, that Defendant produce a list of all ADEA actions brought against Defendant in federal and state courts (Def.'s Resp. to Pl.'s Mot. to Compel Production of Documents at 1), on the record as overly broad because Plaintiff did not restrict his request by date or type of action. His order limits Plaintiff's request to all court cases filed up to three years prior to Plaintiff's complaint in which the Defendant was accused of failing to hire an applicant on account of their age. (Order at 1.) Plaintiff objects because he claims that failure to hire actions are rare and suggests that if he can find cases of age discrimination by Edward Jones toward their current employees it will help his case, adding that he will be able to find age-bias evidence for his own case. (Pl.'s Combined Mot. at 1.) In his Combined Motion, Plaintiff requests the Court to compel Defendants to provide a listing of all ADEA actions filed against Defendant.
Plaintiff does not expressly object to Magistrate Judge Sanderson's limitation of the request to the three years prior to the date of Plaintiff's Complaint, although he does not limit his Second Motion to Compel by date. The Court believes Plaintiff's request is meant to apply to cases within the three year range; however, if it is not, the Court rejects the request as overly broad and burdensome to Defendants.
As for Plaintiff's third request, that Defendant produce a list of all EEOC charges of discrimination, all age discrimination charges filed with a state agency, and all arbitration cases of age discrimination filed against Defendant (Def.'s Resp. to Pl.'s Mot. to Compel Production of Documents at 1), Magistrate Judge Sanderson found that this request was overly broad because it was not limited by time, geography, or type of age discrimination. (Record.) Magistrate Judge Sanderson added that Plaintiff was only trying to assert an individual claim of age discrimination, and not file a class action suit or establish that Defendant had a pattern and practice of age discrimination. Id. As well, Magistrate Judge Sanderson found that the documents would have no relevance to Plaintiff's case if the administrative agency decided not to pursue the complainant's case and the complainant was satisfied with the agency's findings and failed to file suit. Id. However, Magistrate Judge Sanderson, based on this denial, expanded Plaintiff's second request to include all age discrimination cases filed against Defendant, including those not under the ADEA. (Order at 1.)
b. Legal Standard
Under Fed.R.Civ.P. 72(a), a district court "shall consider such objections and shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law." Further, 28 U.S.C. § 636 (2002) allows the district court to "reconsider any pretrial matter . . . where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law."
Fed.R.Civ.P. 26(b)(1) provides that "parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party . . . relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." However, the Court may limit discovery if "the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues." Fed.R.Civ.P. 26(b)(2). Moreover, courts should not allow parties to "roam in the shadow zones of relevancy to explore matter which does not presently appear germane on the theory that it might conceivably become so." Boyd v. American Airlines, Inc., 2002 WL 32360294, at *1 (N.D. Tex. Oct. 17, 2002) (citing Spina v. Our Lady of Mercy Medical Center, 2001 WL 630481, at *2 (S.D.N.Y. June 7, 2001)).
c. Application
As for Plaintiff's first request, the Court believes that Magistrate Judge Sanderson was not "clearly erroneous or contrary to law" ( see Fed.R.Civ.P. 72(a)) in deciding that requiring Defendants to provide information requested by Defendant on approximately 60,000 applicants, the amount Edward Jones estimates it receives during an average two-year period, would be burdensome to Defendants. See Fed.R.Civ.P. 26(b)(2); Def.'s Resp. to Pl.'s Mot. to Compel Production of Documents at 4. As Magistrate Judge Sanderson pointed out on the record, Defendants have already provided statistics of those hired in 2001 and 2002 and their ages. (Def.'s App. at pp. 29-31.) As for Plaintiff's renewed Motion to Compel, the Court does not feel that the applicants whose records Defendants were required to keep, those from the past year, would be relevant to Plaintiff's claims, as Defendant failed to hire Plaintiff in December 2001 and as Plaintiff's suit is based on his individual complaint, not a class action. See Fed.R.Civ.P. 26(b)(1); 29 C.F.R. § 1627(b)(1)(I); Boyd, 2002 WL 32360294, at *1 (citing Spina, 2001 WL 630481, at *2). Additionally, the Court believes compelling the Defendant to provide records of approximately 30,000 applicants, as estimated by Defendant, would still impose a substantial burden on Defendant. See Fed.R.Civ.P. 26(b)(2).
The Court finds that Magistrate Judge Sanderson was not "clearly erroneous or contrary to law" ( see Fed.R.Civ.P. 72(a)) in limiting Plaintiff's second request. Limiting Plaintiff's request by date prevents Defendant from being burdened by having to retrieve all ADEA cases filed against it since 1967, the date the ADEA was enacted. See 29 U.S.C. § 623(a)(1). Also, Plaintiff's request for all types of age discrimination cases would produce information that is irrelevant to his failure to hire case. See Fed.R.Civ.P. 26(b)(1); Boyd, 2002 WL 32360294, at *1 (citing Spina, 2001 WL 630481, at *2). Plaintiff cannot simply ask for court cases in the hopes that he might uncover information or evidence to help his own case. See id.; Pl.'s Combined Mot. at 1. For these reasons, the Court also denies Plaintiff's Second Motion to Compel Plaintiff's second request.
Magistrate Judge Sanderson also acted well within the scope of his discretion by denying Plaintiff's third request. By tailoring Plaintiff's second request to include all age discrimination claims, Magistrate Judge Sanderson allowed many of the documents requested in Plaintiff's third request, and only excluded those claims against Defendant that were not within the three years prior to Defendant's complaint, were not pursued in court, or were based on types of age discrimination other than failure to hire. (Order at 1.) Thus, Plaintiff's motion was granted to the extent that the documents were relevant to his individual failure to hire suit. See id.; Fed.R.Civ.P. 26(b)(1). For these reasons, the Court also denies Plaintiff's Second Motion to Compel as to Plaintiff's third request.
Therefore, the Court concludes that Magistrate Judge Sanderson's denial of Plaintiff's Motion to Compel was not "clearly erroneous or contrary to law," and that it is appropriate for the Court to deny Plaintiff's Second Motion to Compel. As such, Plaintiff's Motion for Reconsideration and Second Motion to Compel Production of Documents are DENIED.
III. Summary Judgment Standard
Although summary judgment is not favored in claims of employment discrimination, it is appropriate when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Waggoner v. City of Garland, Tex., 987 F.2d 1160, 1164 (5th Cir. 1993) (citing Thornbrough v. Columbus G.R. Co., 760 F.2d 633, 639 (5th Cir. 1985)). All evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once the moving party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party opposing the motion for summary judgment cannot defeat the motion unless it can provide specific facts that show the case presents a genuine issue of material fact such that a reasonable jury might return a verdict in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent summary judgment. Id. at 248-50; Abbott v. Equity Group, 2 F.3d 613, 619 (5th Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). The Fifth Circuit has held that, "although pro se litigants are not held to the same standards of compliance with formal or technical pleading rules applied to attorneys, we have never allowed such litigants to oppose summary judgments by the use of unsworn materials." Barker v. Norman, 651 F.2d 1107, 1123 (5th Cir. 1981) (citing Gordon v. Watson, 622 F.2d 120, 123 (5th Cir. 1980)). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to his case, and on which he bears the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
Finally, the Court has no duty to search the record for triable issues. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). "The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which the evidence supports his or her claim." Id.
IV. Plaintiff's State Law Claim
Tex. Lab. Code § 21.254 (Vernon 1996) provides that, "Within 60 days after the date a notice of the right to file a civil action is received, the complainant may bring a civil action against the respondent." Plaintiff received a notice from TCHR, dated June 24, 2003, that he had a right to file suit within sixty days. (Def.'s App. at p. 53.) However, Plaintiff waited to file suit until October 7, 2003, beyond the sixty-day filing period. Neither Plaintiff nor Defendant disputes the date of the notice. Therefore, the Court grants Defendant's Motion for Summary Judgment in regards to Plaintiff's state law claim.
V. Plaintiff's ADEA Claim
The ADEA prohibits employers from failing to hire any individual because of his age. 29 U.S.C. § 623(a)(1). When a plaintiff alleges discrimination, "liability depends on whether the protected trait actually motivated the employer's decision." Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 141 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). That is, the plaintiff's age must have "actually played a role in the employer's decisionmaking process and had a determinative influence on the outcome." Id. Thus, the plaintiff must prove intentional discrimination either through direct evidence or indirect evidence. See Price v. Marathon Cheese Corp., 119 F.3d 330, 336 (5th Cir. 1997).
a. The McDonnell Douglas Framework
Direct evidence of discrimination is evidence that proves discriminatory animus without inference or presumption. West v. Nabors Drilling USA, Inc., 330 F.3d 379, 384 (5th Cir. 2003) (citing Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002); Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1217 (5th Cir. 1995)). Plaintiff has not submitted any direct evidence for the court to consider. Where no direct evidence is available, the Court must rely on the guidelines set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973) to find indirect evidence of discrimination. See West, 330 F.3d at 384 (citing Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000)). Though McDonnell Douglas dealt with a Title VII claim, the same evidentiary procedure for allocating burdens of production and proof applies to ADEA claims. See Brown v. Bunge Corp., 207 F.3d 776, 781 (5th Cir. 2000) (citing Meinecke v. H R Block, 66 F.3d 77, 83 (5th Cir. 1995)).
Under the McDonnell Douglas framework, the plaintiff must first establish a prima facie case of discrimination by a preponderance of evidence. Texas Dept. Of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). A plaintiff may show a prima facie case in an age discrimination suit by proving that (1) he belongs to a protected class, in that he is over age forty; (2) he was qualified for the job he sought; (3) despite his qualifications, he was rejected; and (4) after he was rejected, the employer promoted, hired, or continued to seek applicants with his qualifications. See Brown, 207 F.3d at 781 (citing Meinecke, 66 F.3d at 83); Dotie v. Richardson Indep. Sch. Dist., No. 02-1898, 2003 U.S. Dist. LEXIS 10492, at *8 (N.D. Tex. June 19, 2003). As to the fourth element, for age discrimination cases the plaintiff must show that "he was either i) replaced by someone outside the protected class, ii) replaced by someone younger, or iii) otherwise discharged because of his age." See Brown, 207 F.3d at 781 (citing Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993)). If the plaintiff can establish a prima facie case, it creates a presumption that the employer unlawfully discriminated against the employee. See Brown, 207 F.3d at 781 (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502, 525 (1993); Burdine, 450 U.S. at 254; Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 992 (5th Cir. 1996)).
The burden then shifts to the defendant to produce evidence that the defendant had a legitimate, nondiscriminatory reason for failing to hire the plaintiff. See Id. at 781 (citing Hicks, 509 U.S. at 507; Burdine, 450 U.S. at 254; Rhodes, 75 F.3d at 992-93). The employer's burden is only one of production, not persuasion, involving no credibility assessments. See Russell, 235 F.3d at 222.
If the employer carries its burden, the burden shifts back to the plaintiff, who must "raise a genuine issue of material fact as to whether the employer's proffered reason was merely a pretext for age discrimination." Id. (citing Lindsey v. Prive Corp., 987 F.2d 324, 326 (5th Cir. 1993)). To create a material issue of fact, the plaintiff must present "sufficient evidence to find that the employer's asserted justification is false." Crawford v. Formosa Plastics Corp., 234 F.3d 899, 903 (5th Cir. 2000) (citing Reeves, 530 U.S. at 143). "An employee's subjective belief that he suffered an adverse employment action because of discrimination, without more, is not enough to survive an summary judgment motion, in the face of proof showing an adequate nondiscriminatory reason." Douglass, 79 F.3d at 1430 (granting summary judgment to employer when all that plaintiff offered in response to employer's legitimate, nondiscriminatory reason were his personal perceptions and speculation that his employer's decision was based on age); see also Little v. Republic Refining Co., Ltd., 924 F.2d 93, 96 (5th Cir. 1991). b. Plaintiff's Prima Facie Case
It is undisputed that Plaintiff has established the first element of a prima facie case, in that he was born on March 10, 1931 and is a member of the protected class. (Def.'s App. at p. 17.) See Brown, 207 F.3d at 781 (citing Meinecke, 66 F.3d at 83); Dotie, 2003 U.S. Dist. LEXIS 10492, at *8. It is also undisputed that Plaintiff was not hired by Edward Jones, the third element of a prima facie case. See id.
Plaintiff must next prove that he was qualified for the position. See id. Box, who spoke with Plaintiff, attested to Plaintiff's qualifications in his affidavit. (Def.'s App. at p. 33.) Box stated that he "was impressed by Mr. Conboy," that he "reported to Elizabeth Wilson that [he] though Mr. Conboy might be a good candidate," and that he "encouraged Mr. Conboy to submit an application so that Edward Jones could consider him for employment." Id. at pp. 22-23. Plaintiff also argues that his past job experience qualifies him for the position. (Pl.'s Resp. at 1.) Plaintiff cites his time at Frances I. du Pont Co., from August 1966 through June 1970, where he was "always ranked in the top one percent" of 2,400 stockbrokers and sometimes in the top ten producers, and at Merrill Lynch, from October 1962 through August 1966, where he was an account executive. Id. Though Plaintiff did not submit evidence to support his argument, his Edward Jones application, submitted by Defendant, does show that he has experience with those two firms and several other investment firms. (Def.'s App. at p. 23.) Therefore, Plaintiff has successfully alleged the second element of a prima facie case.
The last element of a prima facie case Plaintiff must prove is that he was after he was rejected, the employer hired or continued to seek applicants with his qualifications who were younger than Plaintiff. See Brown, 207 F.3d at 781 (citing Meinecke, 66 F.3d at 83; Bodenheimer, 5 F.3d at 957); Dotie, 2003 U.S. Dist. LEXIS 10492, at *8. Plaintiff states that he was interviewing for the Allen office or potentially another new office to be opened in the area. (Def.'s App. at p. 39.) The person hired as an Investment Representative at the Allen branch office, Andrea Barrett, was born on October 16, 1972 and the person hired as an Investment Representative in a new Allen office, Tony Pritchard, was born on March 30, 1954. (Def.'s Obj. and Answers to Pl.'s First Interrogs. at 2, 4.) Because both Investment Representatives hired were younger than Plaintiff, Plaintiff has established this element. Thus, Plaintiff has alleged a prima facie case.
Plaintiff did not submit Defendant's responses to his interrogatories with either his Response to Defendant's Motion for Summary Judgment or his Motion for Summary Judgment. However, the interrogatories were submitted by Defendants as part of their Response to Plaintiff's Motion to Compel Production of Documents. Because Plaintiff is proceeding pro se and has stated in his Reply to Defendant's Response to Plaintiff's Motion for Summary Judgment that he is confused by the process to submit evidence to the Court, the Court will consider the interrogatories as part of the record.
c. Defendants' Legitimate Non-Discriminatory Reason
The burden now shifts to Defendants to provide evidence that they had a legitimate, non-discriminatory reason for failing to hire Plaintiff. See Brown, 207 F.3d at 781 (citing Hicks, 509 U.S. at 507; Burdine, 450 U.S. at 254; Rhodes, 75 F.3d at 992-93). Spinaio's affidavit states that she did not believe Plaintiff should be considered for an Investment Representative position because there were several periods during which Plaintiff was unemployed or worked outside of the industry. (Def.'s App. at p. 6.) Additionally, Spinaio noted that his compensation, when provided on the application by Plaintiff, had decreased in recent years, from $95,000 to $125,000 per year to $25,000 to $40,000 per year, and that Plaintiff's failure to provide earnings for some of the positions he held suggested that his earnings had fluctuated during those periods as well. Id. at pp. 6-7. Spinaio declares in her affidavit that Edward Jones looks for applicants with an employment history of staying at a particular job for 2-5 years at a time and whose earnings have shown a steady increase over time. Id. at p. 7. Spinaio also noted that Plaintiff's employment history indicated that he had a trend of leaving positions when his compensation would have changed from being salaried to being mostly commission based. Id. Specifically, she stated:
The application also gave me the impression that Conboy had not "stuck with" any of these positions to see if his abilities might develop and grow, and instead had given up immediately after his employers had invested significant time, effort, and resources in getting him set up in his position.Id. at p. 8.
As well, Plaintiff had stated on his application that he had worked for E.F. Hutton and that the firm went out of business. Id. However, Spinaio claims that E.F. Hutton did not go out of business, but merged with another company. Id. Spinaio adds that when she decided not to continue in the application process with Conboy, she did not know his age, and that McGuinness, the representative who had initial contact with Plaintiff, agreed with her decision to close Plaintiff's file. Id. at pp. 8-9.
Defendant has presented sufficient evidence that they had a legitimate, non-discriminatory reason for failing to hire Plaintiff. Thus, the inference of discrimination created by the Plaintiff's prima facie case does not stand and the burden shifts back to Plaintiff. Russell, 235 F.3d at 222 (citing Hicks, 509 U.S. at 511-12; Burdine, 450 U.S. at 256 n. 10).
d. Pretext and Evidence of Age Discrimination
At this stage, Plaintiff must create an issue of material fact by showing that Defendant's stated legitimate, non-discriminatory reason is merely a pretext for discrimination. Russell, 235 F.3d at 222 (citing Lindsey, 987 F.2d at 326). Plaintiff believes, based on Box's statements that he "wanted" him and that his job history would not be a problem, his conversation with Wilson where he claims she said she understood his job history, his belief that all the home office had to do to hire him was to go forward on Box's recommendation, his allegations that before he filled out the background check, Edward Jones representatives "knew everything about [him]," except for his age, and his claims that he looks much younger than his age, that Defendants were ready to hire him until they learned his age. (Pl.'s Resp. at pp. 1-3.) Plaintiff supplements this argument by claiming that Defendant follows a different procedure for background checks than other firms Plaintiff has worked with, conducting the background check before hiring an employee, enabling it to discriminate based on age. (Def.'s App. at p. 47.) Plaintiff also accuses Box, Wilson, and Spinaio of making false statements, and alleges that they were ordered to do so by Edward Jones senior management to protect the firm from an ADEA suit. (Pl.'s Resp. at 2.) Plaintiff claims that because Edward Jones's statement was an "egregious use of lies," in that they knew he had not jumped around from firm to firm with no reason, that tipped him off that there must have been another reason for the firm not to hire him. (Def.'s App. at p. 50.)
However, Plaintiff has submitted no evidence in support of his claims, and cannot prove an existence of a genuine issue of material fact to overcome Defendant's stated reason for failing to hire Plaintiff. Crawford, 234 F.3d at 903 (citing Reeves, 530 U.S. at 143); Russell, 235 F.3d at 222 (citing Lindsey, 987 F.2d at 326). Rather, his allegations appear to be based on his subjective beliefs, which are not enough to survive a summary judgment motion. See Crawford, 234 F.3d at 903 (citing Reeves, 530 U.S. 143); Douglass, 79 F.3d at 1430. Therefore, Plaintiff has not carried his burden with respect to showing that Defendant's reason is a mere pretext.
VI. Conclusion
For the foregoing reasons, Defendant's Motion for Summary Judgment is GRANTED. Plaintiff's Motion for Summary Judgment, Defendant's Motion to Strike Plaintiff's Motion for Summary Judgment, Plaintiff's Motion to Reconsider Findings of the Magistrate Judge and Plaintiff's Second Motion to Compel Production of Documents are DENIED.
It is so ordered.