Opinion
Civil Action No. 3:00-CV-2559-D
February 11, 2002
MEMORANDUM OPINION AND ORDER
A 64-year-old with extensive restaurant management experience applied for a position as a store General Manager with a franchisee of Arby's brand fast food restaurants. Following a successful interview, the company's Director of Training and Human Resources indicated that plaintiff would be able to start work the following morning, subject only to a decision regarding the particular store where he would be assigned. Instead, he never heard again from the company, who hired younger applicants who had no fast food restaurant experience to be General Managers. Plaintiff maintains that defendant declined to hire him due to his age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. Defendant moves for summary judgment. Concluding that plaintiff has adduced evidence that would permit a reasonable trier of fact to find discrimination, the court denies the motion.
I
Defendant Sybra, Inc. ("Sybra"), a franchisee of Arby's brand fast food restaurants, placed a newspaper advertisement soliciting applications for General Managers and Assistant Managers at local Arby's restaurants. Plaintiff Philip Sanders ("Sanders") responded to the notice and submitted his resume to Sybra's personnel department on or about the date the advertisement appeared. A Sybra employee contacted Sanders and arranged for him to interview with Gary Green ("Green"), the Director of Training and Human Resources. The interview took place within three days of the date the advertisement appeared in the newspaper.
The court recounts the evidence favorably to Sanders and draws all reasonable inferences in his favor as the summary judgment nonmovant. See Clift v. Clift, 210 F.3d 268, 270 (5th Cir. 2000).
Over the course of two hours or more, Green and Sanders discussed Sanders' background in the restaurant industry, which included 15 years of managerial experience as owner and operator of three Dallas fast food restaurants under the name Cowboy Chicken, and a period of employment beginning in 1998 and ending in March 1999 supervising the construction and opening of a "sit-down" restaurant in Dallas. The interview went very well, concluding with an assurance from Green that Sanders would be able to go to work at an Arby's store the following morning, pending only a discussion with District Manager concerning the particular store location at which Sanders was to begin.
Green denies making such an assurance, but the court must resolve the factual dispute in favor of Sanders as the nonmovant.
Near the conclusion of the interview, and, following Green's representation that Sanders was all but hired, Green presented Sanders with a form that required Sanders to supply basic personal information, including his age. Sanders filled out the form truthfully, listing his date of birth as October 25, 1934. Based on the general tenor of the interview and on Green's assurances, Sanders disregarded his customary reservations about disclosing his age in an employment application context.
The form stated, in relevant part:
The information provided above is used by cms INSIGHT to verify identity only and will not be used as criteria in the hiring decision or be part of your personnel file, should you be hired. All information obtained through background check(s) will be held in strictest confidence.
Sanders did not receive any further communication from Sybra following his interview. He then filed a charge of age discrimination against Sybra with the Equal Employment Opportunity Commission ("EEOC"). Following an investigation, the EEOC issued a letter of determination concluding that Sybra had violated the ADEA in its employment decision relating to Sanders.
Citing Tulloss v. Near North Montessori School, 776 F.2d 150, 153 (7th Cir. 1985), Sybra argues that the court must give no weight to the EEOC's determination in deciding the motion for summary judgment. See D. Rep. at 5. Tulloss itself cites Garcia v. Gloor, 618 F.2d 264, 272 (5th Cir. 1980), as establishing a rule in the Fifth Circuit that EEOC determinations are per se admissible. Whatever the status of the per se admissibility rule, cf. Cortes v. Maxus Exploration Co., 758 F. Supp. 1182, 1183 (S.D. Tex. 1991), the court need not rely on the EEOC determination in deciding this motion. Instead, the court holds that the EEOC report is admissible and considers it as supplementary evidence concerning when certain employees were hired by Sybra, their positions, salaries, and ages.
II A
The ADEA makes it "unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). Sanders may prove age discrimination by direct evidence or by circumstantial evidence under the familiar McDonnell Douglas burden-shifting framework. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). Under McDonnell Douglas the plaintiff must establish a prima facie case of discrimination. Id. Once he meets that burden, the employer is obligated to produce a legitimate, nondiscriminatory reason for the employment decision at issue. See id This is a burden of production, not persuasion. Id. Once the employer meets this production burden, the presumption of discrimination disappears. Id. at 142-43. The plaintiff must prove by a preponderance of the evidence that the legitimate reasons offered were not the true reasons but were a pretext for discrimination. Id. at 143. "[T]he plaintiff may attempt to establish that he was the victim of intentional discrimination `by showing that the employer's proffered explanation is unworthy of credence.'" Id (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981)). "[A] plaintiff's 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 employer unlawfully discriminated." Id. at 147. "[I]t is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation." Id. "Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive." Id. At the summary judgment stage, the plaintiff need only raise a genuine issue of material fact. See Tutton v. Garland Indep. Sch. Dist., 733 F. Supp. 1113, 1116 (N.D. Tex. 1990) (Fitzwater, J.).B
Sybra argues that Sanders' claim fails at the first step. It maintains that he has not met his prima facie burden.
To establish a prima facie case for refusal to hire based on age, Sanders must show that (1) he is a member of the protected class; (2) he was qualified for the job he sought; (3) he was rejected despite his qualifications; and (4) the position remained open and the employer continued to seek applicants from persons of Sanders' qualifications. See McDonnell Douglas, 411 U.S. at 802. It is undisputed that Sanders, who was 64 years of age at the time of his application, is a member of the protected class. Similarly, it is not contested that Sanders was generally qualified for the job, having had extensive past experience in the fast-food industry and restaurant industry in general. Sanders' job application was rejected, and the record indicates that Sybra continued to actively solicit applications from job candidates for General Manager and Assistant Manager positions at Arby's restaurants throughout the Dallas-Fort Worth area. Sanders has established a prima facie case under the ADEA.
C
In response to plaintiff's prima facie case, Sybra cites three legitimate, nondiscriminatory reasons for its failure to hire Sanders: he lacked recent fast food experience; Sanders' requested salary of $35,000 per year, coupled with the fact that he had earned $60,000 annually in a prior position, was viewed as prohibitive; and Sybra did not have an immediate need for a restaurant General Manager.
If credited by the finder of fact, Sanders' sworn testimony that Green informed him during the interview that he would be able to go to work at an Arby's store the following morning, pending only a discussion with District Manager concerning the particular store location at which Sanders was to begin, coupled with the subsequent rejection of Sanders' application following disclosure of his age, would tend to undercut each of Sybra's proffered nondiscriminatory explanations. While it is true that Sanders' most recent employment prior to his application with Sybra was at a "sit-down" rather than a fast food restaurant, Sanders' employment history reflects a lengthy period of experience owning and operating a fast food business. Moreover, the record reflects that, shortly after rejecting Sanders' application, Sybra hired younger job applicants with no fast food experience. The record similarly reflects that both before and after Sanders' application, younger applicants were hired at salaries approximating or exceeding $35,000 per year, and that many applicants were hired at a salary lower than what they requested on their employment applications rather than rejected on the basis of the salary requested. The fact that Sybra solicited candidates for General Manager positions in print advertisements both before and, for an appreciable period, after Sanders' application is evidence that Sybra's proffered reason that it did not have an immediate need for a restaurant General Manager is pretextual. That Sanders himself was interviewed for such a position within a few days of Sybra's receiving his application also evidences pretext.
Moreover, the record reflects that Sybra made several hires of considerablyyounger personnel for General Manager positions in the Dallas-Fort Worth area during the months that followed the rejection of Sanders' application. Sybra attempts to limit the evidentiary impact of its hiring decisions made for stores other than newly-opened Arby's restaurants in the North Dallas area by asserting that Green was the sole decisionmaker regarding Sanders' application and was only empowered to make decisions concerning openings at this subset of restaurants. In part by citing Green's testimony, Sanders has raised a genuine issue of material fact regarding whether his application was reviewed at higher levels within the Sybra organization. Moreover, the record reflects that Sanders was applying for a position at a restaurant in the Dallas-Fort Worth area generally, and specifically indicated a willingness to work at locations beyond the North Dallas area. In light of this, it is not improper to consider evidence of hiring decisions made in the Dallas-Fort Worth area as a whole in passing on the question of pretext.
The court does not suggest a view regarding whether evidence of this breadth would be relevant at trial if Sanders cannot lay the foundation that he was applying for a position in the general Dallas-Fort Worth area.
This evidence, taken as a whole, would permit a reasonable trier of fact to find that Sybra's proffered reasons for failing to hire Sanders are pretextual. Because a plaintiff's prima fade 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 employer unlawfully discriminated, see Reeves, 530 U.S at 147, the court holds that a genuine issue of material fact is raised in this case regarding the question of unlawful discrimination.
* * *
Accordingly, Sybra's motion for summary judgment is denied.
SO ORDERED.
P. App. 7.