Opinion
No. 3:01-CV-0152-P
June 11, 2002
MEMORANDUM OPINION AND ORDER
Now before the Court are:
1. Defendant's Motion for Summary Judgment and Brief in Support, filed Nov. 21, 2001;
2. Plaintiffs Response to Defendant's Motion for Summary Judgment and Brief in Support, filed Jan. 4, 2002;
3. Plaintiffs Supplemental Response to Defendant's Motion for Summary Judgment, filed Mar. 25, 2002; and
4. Defendant's Brief and Reply to Plaintiffs Supplemental Response, filed Apr. 3, 2002.
Defendant John Ashcroft ("Defendant") has filed this motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, as to Plaintiff Clara Patrick's ("Plaintiff" or "Patrick") cause of action. After reviewing the motion, the parties' briefing, the summary judgment evidence, and the applicable law, the Court hereby GRANTS IN PART Defendant's Motion for Summary Judgment as to Plaintiffs claim of failure to promote.
On March 21 2002, the Court allowed Plaintiff to amend her Complaint and add a retaliation claim. The Court grants summary judgment only as to Plaintiffs ADEA claim for failure to promote, but does not address Plaintiffs more recently added retaliation claim.
I. Background
This dispute arises out of Patrick's employment with the Immigration and Naturalization Service ("INS," represented here by United States Attorney General John Ashcroft, named in his official capacity as head of the agency). At the time of the events giving rise to this action, Patrick was employed as a GS-12 Realty Specialist with the INS Central Region Administrative Center in Dallas, Texas. Pl.'s First Amend. Complaint at 4. Plaintiff was born in 1938, making here more than forty years of age at the relevant time. Id. In 1999, Patrick applied for the position of Supervisory Realty Specialist in the Dallas Office. Id. at 5. At that time, Plaintiff had some 26 years of real-estate related experience, including 10 years in similar positions at the INS. Id. Patrick was rated as "qualified" for the position by the INS human resources staff. Id. However, INS supervisors selected another person, Lisa Ann Bokun ("Bokun"), for the position. Id. at 6. Bokun is more than ten years younger than Plaintiff. Id. Plaintiff claims that the selection of Bokun violates the Age Discrimination in Employment Act as applicable to federal employees, 29 U.S.C. § 633a, because Plaintiff claims a younger, less qualified person was selected instead of Plaintiff. Id. at 1.Defendant moves for summary judgment on two grounds. First, Defendant argues that Plaintiff cannot establish the fourth element of the prima facie case of age discrimination. Defendant claims Plaintiff cannot establish that a substantially younger employee was treated more favorably, or that Plaintiff was not promoted because of her age. Def's. Mot. at 2. Second, Defendant argues that Plaintiff cannot create a jury issues as to whether Defendant's legitimate, non-discriminatory reasons for not hiring Plaintiff were pretext for discrimination. Id.
II. Standard for Summary Judgment
Summary judgment shall be rendered 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); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to be party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The moving party has 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 identifying that portion of the record that demonstrate such an absence. Celotex, 477 U.S. at 323. Once the moving party has made and 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 defending against the motion for summary judgment cannot defeat the motion unless he provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict is her 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, Inc., 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. 1 996) (en banc). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case, and on which he bears the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23. The Court will not, in the absence of any proof, assume that the nonmoving party could or would prove the essential facts necessary to support a judgment in favor of the nonmovant. Little v. Liquid Air Corp., 37 F.3d 1069, 1075-76 (5th Cir. 1994).
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. A party may not rely on "unsupported assertions" as competent summary judgment evidence. Id.
III. Proof of Discrimination
Claims under the ADEA require a showing that an employer discriminated against an employee based upon a protected trait. The burden-shifting analysis known as the McDonnell-Douglas analysis has been applied by the Fifth Circuit to ADHA claims. See O'Conner v. Consol. Coin Caterers Corp., 517 U.S. 308, 311 (1996); Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 n. 4 (5th Cir. 1993).
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 plaintiffs age must have "actually played a role in the employer's decision making process and had a determinative influence on the outcome." Id. Thus, 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).
Direct evidence of discrimination is evidence that proves the defendant acted with discriminatory intent, without the need for inference or presumption. Mooney v. Aramco Serv. Co., 54 F.3d 1207, 1217 (5th Cir. 1995). If direct evidence is unavailable, as is typically the case, the plaintiff may create an inference of discrimination by using the familiar McDonnell Douglas/St. Mary's burden shifting framework. See Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000).
In order to create an inference of discrimination, the plaintiff must first establish a prima facie case of discrimination. Shackleford v. Deloitte Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999). The prima facie case, once established, raises a presumption of discrimination which the defendant must rebut by articulating legitimate, nondiscriminatory reasons for its actions. Shackleford, 190 F.3d at 404. This burden on the employer is only one of production, not persuasion, involving no credibility assessments. Russell, 235 F.3d at 222. If the employer carries its burden, the mandatory inference of discrimination established by the prima facie case drops out of the picture. Id.
Since the ultimate burden of persuasion remains at all times with the plaintiff, the Supreme Court has stated that in attempting to satisfy this burden, the plaintiff — once the employer produces sufficient evidence to support a nondiscriminatory explanation for its decision — must be afforded the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Reeves, 530 U.S. at 143. Consequently, the Supreme Court has found that a plaintiffs prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employee was unlawfully discriminated against. Id. at 148. However, this is not to say that a showing of pretext alone automatically would entitle an employee to a judgment as a matter of law. Id. That is, there may be instances where the employer would be entitled to judgment if the record conclusively revealed some other nondiscriminatory reason for its decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reasons were untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. Id. Regardless, at this summary judgment stage, Plaintiff need only raise a genuine issue of material fact. See Khanna v. Park Place Motorcars of Houston, Ltd., NO. CIV.A. 3:99-CV-0 135, 2000 WL 1801850 *2 (N.D. Tex. Dec. 06, 2000) (Fitzwater, J.).
IV. Plaintiff's ADEA Claim
The ADEA prohibits discrimination based upon age. A prima facie case claim under the ADEA is established if the plaintiff provides evidence that she: (1) she is a member of a protected class, (2) that she sought and was qualified for an available employment position, (3) that she was rejected for that positions, and (4) that after she was rejected, the Defendant promoted, hired, or continued to seek applicants with her qualifications. Grimes v. Texas Dept. of Mental Health and Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996) Because she claims discrimination based on her age, Patrick may alternatively satisfy the fourth element by showing that she was either (a) replaced by someone outside the protected class, (b) replaced by someone younger, or (c) otherwise discriminated against because of [her] age. Brown v. Bungee Corp., 207 F.3d 776, 781 (5th Cir. 2000).
Despite Defendant's arguments to the contrary, Patrick has established a prima facie case. She is a member of the protected class, she was qualified for the available employment position, she did not receive the position, and the position went to someone who was younger than she. Therefore, the Court looks to Defendant's articulated reason for choosing Bokun rather than Patrick for the position.
Defendant claims that Plaintiff was not selected for promotion to Supervisory Realty Specialist because the selecting official (Debbie Dusenberry or "Dusenberry") judged that Bokun was the best-qualified applicant based on Bokun's ability to work well with co-workers and clients, and her demonstrated ability to manage projects. Def' Brief in Support of Defs Mot. at 8. Defendant has provided evidence from two supervising officials that commend Bokun's qualifications for the job. Dusenberry, the selecting official, specifically relied upon her knowledge of Bokun's past experiences and successes in managing projects and interacting with customers. Dusenberry Decl. ¶ 6. Additionally, Michael Sheehan also had been impressed with Bokun, both because he had worked directly with her, and because he heard others giving her very positive feedback. Sheehan Decl. ¶ 4.
Plaintiff asserts that Defendant's articulated reason for choosing Bokun over Patrick fails because it is based upon subjective criteria. When comparing two employees and deciding if an employer had a legitimate, non-discriminatory reason for choosing one over the other, Plaintiff can only create a fact issue if she shows that she was "clearly better qualified" than her younger replacement. Bodenheimer, 5 F.3d at 959. Patrick also points to a recent Fifth Circuit opinion and argues that the INS utilized only subjective criteria, which Patrick claims should at least allow her to survive summary judgment. See Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 681 (5th Cir. 2001). While certainly the Fifth Circuit warns that subjective criteria can be used to mask discriminatory intent, the Court finds that this employer has provided a legitimate reason for choosing Bokun over Patrick. Bokun had a record of experience, was recommended by three supervisors, was known to be an effective manager and was skilled at customer relations.
The 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." EEOC v. Louisiana Office of Community Servs., 47 F.3d 1438, 1448 (5th Cir. 1995). "Federal Courts do not sit as a super-personnel department that reexamines an entity's business decisions." Elrod v. Sears, Roebuck Co., 939 F.2d 1466, 1470 (11th Cir. 1991) (quoting Mechnig v. Sears, Roebuck Co., 864 F.2d 1359, 1365 (7th Cir. 1988)).
The Court concludes that Defendant has articulated non-discriminatory reasons for choosing Bokun over Patrick and accordingly now allows Plaintiff the opportunity to disprove Defendant's reason or provide evidence of pretext.
Plaintiff claims a fact issue is created by deposition testimony of Denise Bodner ("Bodner"), former incumbent of the Supervisory Realty Specialist position at issue. Pl.'s Brief in Support of Pl.'s Resp. at 8. In sum, Bodner testified that: (1) Bokun may not have returned phone calls, (2) Bodner found some of Patrick's qualifications "weighed more heavily" than some of Bokun's qualifications, and (3) Dusenberry had previously disagreed with high performance ratings Bodner previously awarded to Patrick. Id. at 6.
All Plaintiffs evidence on this point demonstrates is that Bodner may have preferred Patrick to Bokun. However, Bodner's comparison is not dispositive. Plaintiff has still not shown that she was "clearly better qualified" than Bokun. Because this Court will not second guess the employer's decision, the Court finds that this testimony is not sufficient to disprove Defendant's articulated reason. Further, Plaintiff has still failed to provide any evidence of age based animus. Accordingly, there is no showing of pretext by Defendant in choosing Bokun over Patrick. Plaintiff fails to overcome Defendant's articulated legitimate and nondiscriminatory reason for denying Patrick the promotion she sought. Therefore, the Court GRANTS Defendant's motion for summary judgment as to Plaintiff Patrick's claim for age discrimination in Defendant's failure to promote Plaintiff.
It is so ordered.