Opinion
Civil Action No. 3:01-CV-2108-N
October 14, 2003
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant's Motion for Summary Judgment on Plaintiff Arleigh Miller's ("Miller") complaint for failure to promote and retaliation under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"). Because Miller was not qualified for promotion, she fails to raise a prima facie case of discrimination under the ADEA; Because Miller was not subjected to adverse employment action, a retaliation claim must also fail. Accordingly, Defendant's motion is granted.
I. BACKGROUND
Arleigh Miller worked for the Army and Air Force Exchange Service ("AAFES") from 1971 until her retirement in 2003. AAFES is an organization within the United States Department of Defense that operates retail, food, and service facilities at Army and Air Force installations around the world. Miller alleges that in June of 2000, when she was 52 years old, her supervisor Michael Schepps ("Schepps") indicated that he would assure her promotion to a higher pay band if she would commit to working until age 62, rather than retiring at age 55. Under the institutional promotion processes of AAFES, employees are considered for promotion to a certain number of openings in higher "pay bands" within the employee's career field. This consideration is conducted by a Ranking Board, which reviews an employee's performance evaluations, records of disciplinary matters, and records of information and training, and assigns the candidate a numerical score. Employees who have the highest rankings in career fields with an open pay band are selected for pay promotion. In the year 2000, Miller was in pay band 4-2, and was considered for promotion to pay band 5-1.
On July 31, 2000, Miller filed a formal age discrimination complaint with the equal employment opportunity office at AAFES. Miller alleges that following her EEO filing, she was retaliated against by actions including: (1) being removed from the position of "lead analyst"; (2) being issued a pager; (3) treatment in a manner that made it impossible for her to achieve her stated goals; (4) being "set up" to be late for a meeting; (5) being taken out of the "information loop"; (6) being "virtually demoted" by having responsibilities taken away; and (7) being relegated to less attractive and interesting job tasks. Miller filed a charge of retaliation on October 12, 2000. Miller retired in January, 2003. At that time, she was still in pay band 4-2.
II. ANALYSIS A. Rule 56 Standard
Summary judgment is appropriate under Rule 56 when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits presented, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c), Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A dispute about a material fact is "genuine" only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party must demonstrate the absence of any genuine issue of material fact, Celotex, 477 U.S. at 322-23, and the Court construes all evidence in favor of the party opposing the motion. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962), Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). The party moving for summary judgment must "demonstrate the absence of a genuine issue of material fact, but need not negate the elements of the nonmovant's case." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citing Celotex, 477 U.S. at 323).B. Plaintiffs Claim for Failure to Promote
A claim for age discrimination may be proved by direct evidence or by following the "pretext method" of indirect proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216 (5th Cir., 1995). Miller contends that, in addition to establishing a prima facie case of discrimination, she has provided direct evidence of discrimination under the ADEA. The Court disagrees.
In an age discrimination case, direct evidence of discrimination must be, "direct and unambiguous, allowing a reasonable jury to conclude without any inferences or presumptions that age was a determinative factor in the [adverse] decision." Wyvill v. United Companies Life Ins. Co., 212 F.3d 296, 304 (5th Cir. 2000). Direct evidence of discrimination includes comments that "directly suggest the existence of bias," Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1085 (5th Cir. 1994), but does not include "`stray remarks in the workplace,' `statements by nondecisionmakers,' or `statements by decisionmakers unrelated to the decisional process itself.'" Nouanesengsy v. City of Arlington, Tex., No, 40 ICV1009Y, 2003 WL 21448596, at *2 (N.D. Tex. Mar. 12, 2003) (Means, J.) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O'Connor, J., concurring)). The Fifth Circuit has recognized that such direct evidence of discrimination is "rare." Davis v. Chevron U.S.A., Inc., 14 F.3d at 1085; Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 40 (5th Cir. 1996). See also, e.g., Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999) (citing Carter v. City of Miami, 870 F.2d 578, 582 (11th Cir. 1989)) (stating that Eleventh Circuit precedent defines direct evidence as "only the most blatant remarks, whose intent could be nothing other than to discriminate").
Assuming, as this Court must, that Schepps made the alleged statement, such a stray remark does not constitute "direct evidence." Initially, Miller does not dispute that Schepps awarded her the highest evaluation of any employees in his section, and recommended that she be "promoted ahead of others." Despite these positive reviews, Schepps did not have the authority to award Miller a pay band promotion.
In addition, in order for Schepps' alleged comment to constitute direct evidence of discrimination, one must infer that the comment is evidence of discriminatory intent, that such intent was reflected in his evaluation of Miller, that this evaluation resulted in a lower rating by the Ranking Board, and that Miller was otherwise qualified for promotion to a higher pay band. In short, Miller's evidence is insufficiently "direct and unambiguous" to establish unlawful discrimination. "Therefore, [s]he must rely on the traditional burden-shifting analysis set forth by the Supreme Court and adopted by this Circuit." Nichols v. Loral Vought Sys. Corp., 81 F.3d at 41.
Lacking direct evidence of discrimination, the Court analyzes employment discrimination claims, including allegations of age discrimination, under the three-step, burden-shifting framework established in McDonnell Douglas. Medina v. Ramsey Steel Co., 238 F.3d 674, 680 (5th Cir. 2001). As the Fifth Circuit explained in Medina v. Ramsey Steel Co., the McDonnell Douglas test requires the following steps:
First, the employee must raise a genuine issue of material fact as to each element of his prima facie case. Then, the employer must articulate a legitimate, nondiscriminatory reason for its employment decision. Finally, the employee 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)).
In order to establish a prima facie case for failure to promote under the ADEA, a plaintiff must show that (1) the employee is a member of the protected class; (2) she sought and was qualified for the position; (3) she was rejected for the position; and (4) the employer continued to seek applicants with the plaintiffs qualifications, or similarly-situated persons outside of the class were treated more favorably. Celestine v. Petroleos de Venezuela SA, 266 F.3d 343, 354-55 (5th Cir. 2001); Nieto v. L H Packing Co., 108 F.3d 621, 623 n. 5 (5th Cir. 1997).
Defendant argues that Miller was not qualified for pay band promotion because of the numerical score assigned to her by the Ranking Board, and thus she cannot establish the second element of her prima facie case. The Court agrees.
In order to be eligible for promotion to the 5-1 pay band, Miller must have been ranked highly enough on the applicable promotion board listings for open pay band slots. Despite Schepps' recommendation that Miller should be "promoted ahead of others" and his awarding of the highest evaluation of any of the employees in his section, the score assigned to Miller by the Ranking Board did not qualify her for a pay band promotion. Defendants explain that in 1999, there were 29 employees in the computer programmer analyst career field with a higher ranking than Ms. Miller; in 2000, there were 19 employees with a higher ranking; in 2001, 11 employees, and in 2002, 7 employees with a higher rating than Miller. In short, the institutional promotion practices of AAFES forestall Miller's claim that she was "qualified" for a promotion. See EEOC v. La. Office of Cmty. Servs., 47 F.3d 1438, 1448 (5th Cir. 1995) (employment discrimination laws are "not intended to be a vehicle for judicial second-guessing of employment decisions nor . . . to transform the courts into personnel managers."). Patrick v. Ashcroft, No. 3:01-CV-0152P, 2002 WL 1298739, at *4 (N.D. Tex. June 11, 2002) (Solis, J.) (quoting Elrod v. Sears, Roebuck Co., 939 F.2d 1466, 1470 (11th Cir. 1991)) ("Federal Courts `do not sit as a super-personnel department that reexamines an entity's business decisions.'").
Even had the Court determined that Miller was sufficiently "qualified" to establish her prima facie case of discrimination, she has failed to create a fact issue as to whether Defendant's articulated rationale for failure to promote was pretextual. Defendant has produced evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993). Thus, Miller must either create a fact issue by establishing direct evidence of discriminatory intent or "by submitting evidence which, taken as a whole, creates a fact issue as to whether the employer's stated reasons actually motivated the employer." Burns v. Check Point Software Technologies, Inc., No. 3:01-CV-1906-P, 2002 WL 31455598, at *8 (N.D. Tex. Oct. 31, 2002) (Solis, J.), "Evidence that the proffered reasons is unworthy of credence must be enough to support a reasonable inference that the proffered reason is false; a mere shadow of a doubt is insufficient." EEOC v. La. Office of Cmty. Servs., 47 F.3d at 1444. In the instant matter, Defendant has produced evidence that Schepps, the party alleged to have acted with discriminatory intent, provided exemplary performance evaluations of Miller, and that the failure to promote was due to Miller's placement on the AAFES ranking list. Lacking evidence suggesting that discriminatory intent was behind Defendant's failure to promote Miller, this Court concludes that no material issue has been raised by Miller as to pretext, and summary judgment is appropriate.
C. Plaintiffs Claim for Retaliation
Miller further alleges that following her filing of an EEO charge, Defendant subjected her to acts of retaliation. In particular, Miller claims that she was retaliated against by actions including: (1) being removed from the position of "lead analyst"; (2) being issued a pager; (3) treatment in a manner that made it impossible for her to achieve her stated goals; (4) being "set up" to be late for a meeting; (5) being taken out of the "information loop"; (6) being "virtually demoted" by having responsibilities taken away; and (7) being relegated to less attractive and interesting job tasks. Because Miller cannot establish that any such action constitutes an "adverse employment action," as defined in this Circuit, summary judgment must be granted on her claim for retaliation.
A plaintiff alleging retaliation must demonstrate that (1) she engaged in an activity protected by Title VII; (2) the employer took adverse employment action against the employee; and (3) a causal connection exists between that protected activity and the adverse employment action. Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir. 1997) (citing Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992)). While Miller clearly engaged in an activity protected by Title VII by instituting a discrimination charge against Defendant, Defendant did not take any action that rises to the level of an "adverse employment action" under Fifth Circuit precedent.
It is well-settled in this Circuit that "Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions." Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995). Ultimate employment decisions include "hiring, discharging, promoting, compensating, or granting leave," Messner v. Meno, 130 F.3d 130, 140 (5th Cir. 1997), but not "events such as disciplinary filings, supervisor's reprimands, and even poor performance by the employee — anything which might jeopardize employment in the future." Mattern, 104 F.3d at 707-08 (emphasis in original).
The Fifth Circuit has repeatedly held that allegations of mistreatment similar to those made by Miller are not sufficient to constitute an "adverse employment action" and support a claim for retaliation. In Mattern v. Eastman Kodak Co., 104 F.3d at 707-08, the Fifth Circuit reversed a lower court's judgment for an employee on her retaliation claim, holding that the instances of alleged retaliation failed to constitute an "adverse employment action." There, the Court held that hostility from fellow employees, having tools stolen, unannounced visits to an employee's home, verbal threats of being fired, verbal reprimands, a missed pay increase, and being placed on "final warning," did not constitute actionable "adverse employment actions." Id. Similarly, the Court in Dollis v. Rubin held that an employee who was denied consideration for promotion, was refused attendance at a training conference, had her work criticized to a government vendor, and was given false information regarding aspects of her employment, had not shown an "ultimate employment decision" sufficient to support a charge of retaliation. Dollis, 77 F.3d at 779-80. In the instant proceeding, Miller's allegations of mistreatment similarly fail to rise to the level of actionable retaliation.
In sum, Miller's allegations suggest that she was subjected to minor variations in her work conditions in 2000, none of which rise beyond the realm of normal business decisions by Defendant. The Fifth Circuit has consistently held that such charges simply do not constitute "adverse employment actions" actionable under the ADEA' s retaliation protections. See Dollis v. Rubin, 77 F.3d at 781-82. Therefore, Defendant's Motion for Summary Judgment on Miller's retaliation claim is granted.
Although Miller alleges demotion from the position of "lead analyst," Defendant explains that there is no such job title at AAFES. Miller was simply removed from an internal contact list for a particular task, which does not constitute an "ultimate employment decision." See Messner v. Meno, 130 F.3d at 140.
CONCLUSION
The Court's review of the summary judgment proof indicates that there are no fact questions on Plaintiffs claims for discrimination and retaliation under the ADEA, and Defendant is entitled to judgment as a matter of law. Defendant's motion for summary judgment is therefore granted in its entirety.