Opinion
Civil No. JFM 07-2572.
November 3, 2008
MEMORANDUM OPINION
Plaintiff Equal Employment Opportunity Commission ("EEOC") has filed this lawsuit against Delta Chemical Corporation ("Delta") alleging a violation of the Age Discrimination in Employment Act ("ADEA"), 42 U.S.C. § 621 et. seq. The EEOC claims that Delta illegally refused to hire William Peterson ("Peterson") on the basis of his age (Compl. 1) and seeks injunctive relief, damages, and attorney's fees. (Compl. 3-4.) Delta has moved for summary judgment on the ground that the EEOC has not produced sufficient evidence to support a finding of age discrimination by a reasonable trier of fact. (Def's Mem. in Supp. of Def's Mot. for Summ. J. ("Def's Mem.") 3.) The EEOC opposes the motion. (Pl's Opp'n 1.)
For the following reasons, Defendant's Motion for Summary Judgment is GRANTED.
I. FACTS
The submissions of the parties establish the following facts, construed in the light most favorable to the non-movant. Defendant Delta is a Maryland corporation operating a chemical manufacturing plant in Baltimore, Maryland. (Def's Mem. 3.) In 2006 Delta's management created the position of Plant Engineer to improve the functioning of Delta's maintenance department and address the shortcomings of its maintenance engineers. (Pl's Opp'n 2; Def's Mem. 7-8.) In August of that year, Delta enlisted staffing firm Aerotek, Inc. ("Aerotek") to solicit applications for the position. (Pl's Opp'n 1, 3.) Delta's Operations Manager, Richard White ("White"), provided Aerotek with a verbal description of the new position, and Aerotek subsequently posted an online vacancy announcement. (Pl's Opp'n 3.) The announcement indicated that applicants should have ten to fifteen years experience and be "very solid in equipment maintenance," including experience in "oversee[ing] maintenance function" and "supervis[ing] preventative maintenance." (Pl's Ex. 6.) Although the individual hired through Aerotek would serve in a temporary capacity for up to nine months, Delta expected to make the individual a permanent employee. (Pl's Opp'n 4.)
Around August 30, 2006, William Peterson ("Peterson"), then age 61, applied online for the Plant Engineer position. (Pl's Opp'n 4.) At the time of his application, Peterson had a B.S. in mechanical engineering and more than thirty years of technical experience working with equipment maintenance. (Pl's Opp'n 4.) Aerotek forwarded Peterson's resume and references to Delta for consideration. (Pl's Opp'n 8.) Delta had previously received two other applications for the Plant Engineer position, but Peterson was the only candidate selected for an interview. (White Dep. 87:6-91:20.)
On September 20, 2006, Peterson went through Delta's "consensus [interview] process" (Pl's Opp'n 1), meeting with three of Delta's engineers: White, Engineering Manager Bruce Wonder ("Wonder"), and Senior Process Engineer Frank Votolato ("Votalato"). (Pl's Opp'n 8-9; Def's Mem. 14.) After their individual meetings with Peterson, the three met to discuss their impressions of him. (Pl's Opp'n 9.) White e-mailed Aerotek and reported that while Peterson had "a lot of good credentials," he was not "a fit" for the position. (Pl's Ex. 14.) Delta was considering "the possibility that the position could expand to a more substantial leadership role and want[ed] to keep looking." ( Id.) White did not present Peterson's candidacy to John Besson ("Besson"), Delta's President, but rather told Besson that they needed to "keep looking." (Besson Dep. 52:13-21.)
Plaintiff claims that during Peterson's interview with Delta, White asked Peterson how old he was and how long he expected to continue working before retiring. (Pl's Opp'n 8-9.) Peterson replied that he was 61 years old and that he expected to continue working for another seven to ten years, as long as he remained healthy. (Pl's Opp'n 9.) Upon learning from an Aerotek recruiter that he had not been selected for the Plant Engineer position, Peterson shared with the recruiter the two age-related questions that White had asked during his interview and questioned whether his nonselection was "an age thing." (Pl's Opp'n 10.)
In his deposition, Peterson stated:
A. About a third of the way through the interview, pretty much out of the blue, he asked me how old I was. . . .
Q. You responded 61?
A. Yes.
Q. There was another question?
A. How long do you plan to go before you retire?
Q. That was the very next question?
A. Yes. I told him 7 to 10 years depending on health.
Q. What did he say?
A. He said okay. I said, I don't take aspirin right now. He said, would you? I remember that. And then on to something else.
(Peterson Dep. 86:18-88:19.)
White denies asking Peterson these questions. He stated in his deposition:
A. . . . I've never asked a person their age in any interview in my entire career. I've been in the chemical industry and the workplace almost 35 years. I've interviewed hundreds, if not thousands of people in my career. That question has never come up and I've never asked it and I never will. I didn't ask it.
Q. Did you ask him at all about his retirement plans?
A. No.
(White Dep. 107:7-16.)
Peterson subsequently filed a charge with the EEOC on October 26, 2006 alleging that Delta had discriminated against him because of his age. (Def's Ex. 11.) As the basis for the charge, Peterson cited the two questions asked by White during his interview and a comment made by the Aerotek recruiter that Delta had selected a candidate "that they could move into management in 3 or 4 years." (Pl's Opp'n 10.)
In fact, Defendant had not selected a candidate for the Plant Engineer position. Delta kept the position open and continued to seek candidates after Peterson's interview. (Pl's Opp'n 10; Def's Ex. 20 at 2.) However, when Delta was notified on November 7, 2006 of Peterson's EEOC charge of age discrimination, Delta abandoned its efforts to find a plant engineer, placing the position "on hold." (Pl's Opp'n 10-11.)
The EEOC, as the agency of the United States charged with the administration, interpretation, and enforcement of the ADEA, has brought this action alleging that Delta engaged in unlawful employment practices on the basis of age in failing to hire Peterson. Prior to the institution of this lawsuit, EEOC representatives attempted to eliminate the alleged unlawful employment practices and to effect voluntary compliance with the ADEA through informal methods of conciliation, conference, and persuasion within the meaning of Section 7(b) of the ADEA, 29 U.S.C. § 626(b). (Compl. ¶ 6.)
II. LEGAL STANDARD
Summary judgment is appropriate when there is no genuine issue of material fact and the moving party can demonstrate that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A material fact is one that may affect the outcome of the suit. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "A mere scintilla of evidence in support of the nonmovant's position will not defeat a motion for summary judgment." Detrick v. Panalpina, Inc., 108 F.3d 529, 536 (4th Cir. 1997), cert. denied, 522 U.S. 810 (1997) (citing Anderson, 477 U.S. at 247-48). At this stage, the facts will be construed in the light most favorable to, and all justifiable inferences will be drawn in favor of, the non-moving party. See Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
III. ANALYSIS
The ADEA prohibits a covered employer from failing or refusing to hire an individual who is at least forty years old because of the individual's age. 29 U.S.C. §§ 623(a)(1), 631(a). "In order to establish a claim under the ADEA, a plaintiff must demonstrate that `but for the employer's motive to discriminate against plaintiff on the basis of age,' the discriminatory action would not have occurred." Henson v. Liggett Group, 61 F.3d 270, 274 (4th Cir. 1995) ( quoting EEOC v. Clay Printing Co., 955 F.2d 936, 940 (4th Cir. 1992)). In other words, the plaintiff "must produce sufficient evidence upon which one could find that the protected trait . . . actually motivated the employer's decision." Hill v. Lockheed Martin Logistics Mgmt., 354 F.3d 277, 286 (4th Cir. 2004) (en banc) (quotations and citations omitted).
The Fourth Circuit recognizes two avenues of proof by which a plaintiff can prove an ADEA violation: "(1) under ordinary principles of proof using any direct or indirect evidence relevant to and sufficiently probative of the issue, or (2) under a judicially created proof scheme originally used in the Title VII context in McDonnell Douglas Corp. v. Green . . . and subsequently adapted for use in ADEA cases." Burns v. AAF-McQuay, Inc., 96 F.3d 728, 731 (4th Cir. 1996), cert. denied, 520 U.S. 1116 (1997) (quotations and citations omitted). Plaintiff argues only under the McDonnell Douglas framework. (Pl's Opp'n 12.)
In order to defeat summary judgment under the three-part McDonnell Douglas scheme, the plaintiff must first establish a prima facie case of discrimination. Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 142 (2000). If the plaintiff can make out a prima facie case, the burden then shifts to the defendant to produce evidence of a legitimate non-discriminatory reason for its challenged employment decision. Id. If the defendant meets its burden of production, then the plaintiff bears the ultimate burden of persuading the trier-of-fact that the defendant engaged in unlawful age discrimination. The plaintiff must "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." Id. at 143 ( quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
Applying this framework to the instant case, I find that the EEOC has made out a prima facie case of age discrimination. A plaintiff alleging discrimination in hiring establishes a prima facie case when he demonstrates that: (i) he belongs to a protected class; (ii) he applied and was qualified for a job for which the employer was seeking applicants; (iii) despite his qualifications, he was rejected; and (iv) after his rejection, the position remained open and the employer continued to seek applications from persons of his qualifications. EEOC v. Sears Roebuck Co., 243 F.3d 846, 851 (4th Cir. 2001).
Regarding the first element, it is undisputed that Peterson, age 61 at the time of his interview with Delta, is a member of the protected class. (Pl's Opp'n 12; Def's Mem. 31.) Additionally, Plaintiff satisfies elements three and four: Delta declined to hire Peterson for the job of Plant Engineer and, after doing so, continued to hold the position open. (Pl's Opp'n 10.)
As for the second element, Delta argues that Peterson's qualifications, while sufficient to merit an interview, were insufficient to meet the requirements of the position. (Def's Mem. 31-32.) However, Delta's Operations Manager, White, conceded in his deposition that Peterson met "the minimum qualifications" for the job. (White Dep. 102:16-104:1.) To establish a prima facie case, an applicant need only meet the "minimum requirements" as "set forth in the posted job description." See Reaves v. Blue Cross Blue Shield of South Carolina, No. 4:06-480-TLW-TER, 2008 WL 474235, at *6 (D.S.C. Feb. 20, 2008). The subjective qualifications related to "personal management style" which Defendant now asserts were requirements for the position (Def's Mem. 32) are irrelevant at the prima facie stage of analysis. See Johnson v. Louisiana, 351 F.3d 616, 622 (5th Cir. 2003) (finding that an employer may rely only on objective job requirements to argue that a prima facie case is not established).
Proceeding to the second step of the McDonnell Douglas framework, Defendant must "produce evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason." Burdine, 450 U.S. at 254. To meet its burden of production, an employer must articulate a nondiscriminatory reason with "sufficient clarity" to afford the applicant a fair opportunity to show that the reason is pretextual. Id. at 255-56. Delta satisfies this burden.
Plaintiff asserts that Delta's explanation for its decision not to hire Peterson, that he was "not . . . a fit for [the] position" (Pl's Ex. 14), is too vague to constitute a legitimate, nondiscriminatory rationale. (Pl's Opp'n 15-18.) But Delta has elaborated on its statement that Peterson was "not . . . a fit." In its November 15, 2006 "Position Statement" to the EEOC, Delta stated that "[t]he majority of [Peterson's] experience was in a technical role rather than management." (Pl's Ex. 22 at EEOC 0044.) Later, in its "Responses to Plaintiff's First Set of Interrogatories," Delta explained that "[Peterson's] overall work experience did not meet the requirements of the position," citing Peterson's limited experience in chemical facilities as well as his limited experience in "supervision of maintenance personnel." (Pl's Ex. 23 at 10-11.)
Further, the Delta engineers who interviewed Peterson gave deposition testimony specifying the basis for their impressions of him. White noted that "[Peterson] came on a little bit strong sometimes as far as how he would deal with people." (White Dep. 109:8-9.) He added that he was worried by "the way [Peterson] conducted himself in talking about the people he's worked with in the past." ( Id. 155:14-16.) Votolato characterized his impression of Peterson similarly, also expressing concern about Peterson's ability to work with others. (Votolato Dep. 21:15-17.) He stated that during his interview with Peterson, "the feeling I got from him was that in his accomplishments, and when he would talk about his accomplishments like at Millennium [a former employer] and other places, that he did them by himself." ( Id. 22:5-8.) Wonder was troubled by what he perceived as Peterson's inability "to handle the resistance he was going to get from [Delta's] maintenance staff for someone coming into [the Plant Engineer] position." (Wonder Dep. 37:1-4.) Specifically, Wonder cited Peterson's response to the question "How would you handle your suggestions not being followed?" as problematic. ( Id. 35:2-6.) Though Wonder could not recall Peterson's exact answer, he remembered that based on "[Peterson's] body language and how things were said," he had an "uneasy feeling" about Peterson's ability to supervise hourly workers. ( Id. 34:15-35:16.)
An employer may base its hiring decisions on its subjective impressions of a candidate's personal qualities so long as the employer "articulates a clear and reasonably specific factual basis upon which it based its subjective opinion." Chapman v. AI Transport, 229 F.3d 1012, 1034 (11th Cir. 2000). Defendant-employers have failed to meet this burden only when they have given no explanation for their negative evaluation of a candidate. See, e.g., EEOC v. Target Corp., 460 F.3d 946, 958 (7th Cir. 2006) (employer offered no explanation other than "[b]ased upon [his] interview, Target decided that [candidate] did not meet the requirements for [the] position, and therefore elected not to hire him . . ."); Patrick v. Ridge, 394 F.3d 311, 316 (5th Cir. 2004). In Patrick v. Ridge, the Fifth Circuit criticized the defendant employer for providing "no specifics" for why the plaintiff would not "fit in" with the group. 394 F.3d at 316. The court stated in dicta that had the employer pointed to the plaintiff's "experience, credentials, attitude, or some other such articulable characteristic," it might have met its burden under McDonnell Douglas. Id. at 317.
Here, Delta provides "articulable characteristics." Peterson's interviewers, White, Votolato, and Wonder, cited Peterson's manner and his answers to certain interview questions as the basis for their concern that he would not work well with the engineers in Delta's maintenance department. Because Delta offers some "reasonably specific" explanation for the "feeling" of its interviewers that Peterson would not be a good fit, Delta satisfies its burden.
Thus, the burden shifts back to the EEOC to demonstrate that Delta's proffered explanation for its refusal to hire Peterson is pretextual. To survive summary judgment, the EEOC must show that Delta's explanation is "unworthy of credence," thus supporting an inference of discrimination, or the EEOC must offer other circumstantial evidence sufficiently probative of age discrimination. Dugan v. Albemarle County Sch. Bd., 293 F.3d 716, 721 (4th Cir. 2002) ( citing Reeves, 530 U.S. at 147). Regardless of the type of evidence the EEOC produces, it must be sufficient to support a conclusion that Peterson's age "actually motivated the employer's decision." Hill, 354 F.3d at 286 ( quoting Reeves, 530 U.S. at 141). The evidence offered by the EEOC does not meet this burden.
As evidence probative of age discrimination, Plaintiff offers only the two age-related questions that White allegedly asked Peterson in his interview. Assuming they were indeed asked, these two questions are not probative of a discriminatory animus. As the First Circuit has stated, a question from an employer about an individual's age and retirement plans is "a textbook example of an isolated remark which demonstrates nothing." Shorette v. Rite Aid of Maine, Inc., 155 F.3d 8, 13 (1st Cir. 1998).
Plaintiff also cites a comment from Besson's deposition testimony that Delta's maintenance department was "set in their ways" (Besson Dep. 66:4-6) as well as a comment from Votolato's deposition that "we were back in the Stone Age from a supervising point" (referring to the maintenance group). (Votolato Dep. 26:10-11.) These comments, when examined in context, refer to the maintenance department's manner of reacting to problems. (Besson Dep. 66:7; Votolato Dep. 26:11-16.) The comments refer to conduct, not age; they are not probative of age discrimination.
In Berlett v. Cargill, Inc., 780 F. Supp. 560 (N.D. Ill. 1991), the Northern District of Illinois considered a similar claim and awarded summary judgment to the defendant employer. In that case, the plaintiff alleged that in a job interview with the defendant, the interviewer said to her, "I know I'm not supposed to ask you this, but how old are you?" Id. at 563. The plaintiff gave her age of 55. Id. Although she was subsequently not hired for the position in question, the court concluded, "it strains credulity to attach [the] inference [that age was a substantial factor] to [the interviewer's] single offhand reference to [the plaintiff's] age. After all, awareness of someone's being in the protected age category scarcely equates to being motivated by that factor in making an employment decision." Id. at 567 n. 22.
Though White followed his question about Peterson's age with a question about his retirement plans, that additional question is no more probative of age discrimination than the first one. As the Eighth Circuit held in Lee v. Rheem Manufacturing Co., 432 F.3d 849, 853-54 (8th Cir. 2005), asking an applicant how long he intends to work is not evidence that age discrimination motivated the employer's subsequent decision not to hire him. In Lee two members of the employer's three-person interview committee asked a 63-year-old applicant how long he intended to work if hired. Id. at 852-53. The unsuccessful applicant filed suit under the ADEA. In affirming the grant of summary judgment for the employer, the court found that "[a]lthough [Plaintiff's] expected years of work is related to his age, factors other than age, but which may be correlative with age, do not implicate the prohibited stereotype, and are thus not prohibited considerations." Id. at 853 (internal quotations and citations omitted). Without further evidence that Delta was asking about Peterson's anticipated retirement date as a proxy to accomplish age discrimination, the question is not problematic. Id. ( citing Erickson v. Farmland Indus., Inc., 271 F.3d 718, 725 (8th Cir. 2001)). While I could find no case addressing the situation in which an interviewer asked both of these questions together, no reasonable factfinder could conclude that the two questions are probative of age discrimination.
The "prohibited stereotype" to which the court referred was that referenced by the Supreme Court in Hazen Paper Company v. Biggins, 507 U.S. 604, 610 (1993), a belief by an employer that an older employee is less capable because productivity and competence decline with age.
Moreover, Plaintiff has not offered sufficient evidence to demonstrate that Delta's explanation for not hiring Peterson, his lack of experience and lack of "fit," is pretextual. Plaintiff first argues that Defendant's assertion that Peterson was not hired due, in part, to his lack of supervisory experience, is merely a "post hoc rationale." (Pl's Opp'n 19.) Plaintiff asserts that because "there was no minimum supervisory or management experience required for the position" in the job posting, Delta cannot now claim that supervisory experience was a relevant consideration in its decisionmaking process. ( Id. 19-20.) The EEOC is correct that the job description for Plant Engineer, posted by Aerotek, did not state a requisite minimum amount of supervisory experience; however, the description did indicate that a successful applicant should be "solid in equipment maintenance," including "supervis[ing] preventative maintenance." (Pl's Ex. 6 at EEOC 0097.)
There is additional evidence that Delta intended the position to develop into a supervisory role. As White testified, "[i]f this developed the way I thought it would, we potentially would move this person in a management, actually a leadership role for the maintenance organization." (White Dep. 75:10-14.) White stated in his deposition that there was no guarantee that the Plant Engineer would eventually be overseeing the maintenance department, but Delta wanted to hire someone who could transition into that role if needed. ( Id. 76:1-16.) In the notes that Wonder prepared for his interview with Peterson, he indicated that the position may include the supervision of mechanical maintenance staff (Wonder Dep. 23:21-25:21), and Peterson testified that Wonder told him as much in his interview. (Peterson Dep. 91:3-8.) White also explained to Peterson that, if hired, he would assume all maintenance responsibilities in three to four years. (Pl's Ex. 13 at EEOC 0028.)
Thus, beginning with the Aerotek job posting, Delta indicated that some supervisory experience was desirable. The fact that the job posting did not specify explicitly a minimum amount is not evidence of pretext.
Plaintiff next asserts that Delta's disregard of Peterson's qualifications is probative of pretext. (Pl's Opp'n 21.) "Courts have recognized that an employer's disregard or misjudgment of a plaintiff's job qualifications may undermine the credibility of an employer's stated justification for an employment decision." Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001) ( citing Fishbach v. D.C. Dep't of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996)). Plaintiff argues that Delta cannot claim that Peterson's lack of supervisory experience influenced its decision because Peterson highlighted his relevant experience on his resume and Delta, specifically White and Wonder, neglected to question him about it in his interview. (Pl's Opp'n 21-22.) Plaintiff cites the portion of White's deposition testimony in which White admits failing to ask Peterson specifically about his supervisory experience at FMC Corporation, one of Peterson's former employers. (Pl's Opp'n 22 ( quoting White Dep. 141:9-19).) However, Plaintiff ignores White's deposition testimony that when Peterson described his experience with the maintenance organization at Millennium Chemicals ("Millennium"), White asked him if he had supervised anyone there. (White Dep. 142:19-20.)
Regardless of whether White questioned Peterson directly about his experience supervising maintenance personnel, Peterson did comment during the interview process on his ability to supervise mechanics. (Pl's Ex. 13 at EEOC 0028.) In notes which Peterson recorded several days after his interview at Delta, Peterson wrote that during his interview White asked him "how [he] felt" about being Delta's "`in house' consultant to [the] mechanical maintenance group . . . with the idea that [he] would take over all maintenance responsibilities in 3 to 4 years." ( Id.) Peterson stated that he described the way in which he would work with mechanics and his belief that "training and learning is [sic] very improtant [sic]." ( Id.) He wrote that he told White that "I generally do not tell mechanics how to repair something, rather I give them three or four options that would accomplish the task, and let them pick which one they like the best. I believe the mechanic is ultimately responsible for the work, and I want to engage their brains as well." ( Id.) Based on their discussion, White was aware that Peterson had at least some supervisory experience, but White was left with the impression that "other people [at Millennium] supervised the hands-on workers more." (White Dep. 143:5-8.) Peterson's notes do not rebut White's testimony that Peterson "focused more on the technical things he had done" during the interview process. ( Id. 143:14-15.)
As for Peterson's resume, while it did include bullet points detailing management and mentoring roles he had performed, there are only three such bullet points out of forty-six total on a four-page resume. (Pl's Ex. 9 at EEOC 0112-0115.) Those three bullet points do not belie White's testimony that based on what White knew of "[Peterson's] overall experience" from "[Peterson's] resume and our [his and Peterson's?] discussions," White believed that the majority of Peterson's experience was technical rather than management. (White Dep. 165:1-11.)
As the D.C. Circuit has reasoned, if an employer makes an error about an individual's qualifications that is "too obvious to be unintentional, perhaps it had an unlawful motive for doing so." Fishbach, 86 F.3d at 1183. In this case, if White or Delta's other interviewers were, in fact, in error about Peterson's previous supervisory experience, their error was not "too obvious to be unintentional." Rather, it was a reasonable conclusion in light of their discussions with Peterson and their review of his resume.
Plaintiff further argues that Delta's rationale for not hiring Peterson has evolved over time. (Pl's Opp'n 22.) If Delta had offered inconsistent rationales over the course of litigation, that fact would be probative of pretext. Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 647 (4th Cir. 2002). In Dennis, the Fourth Circuit found that an employer's explanations were inconsistent when the employer testified in deposition that a candidate was preferred because of his management experience but later testified at trial that it was both managerial experience and computer knowledge that set the candidate apart. 290 F.3d at 646-47. Similarly, in Ham v. Washington Suburban Sanitary Commission, 158 Fed. Appx. 457 (4th Cir. 2005), the Fourth Circuit found inconsistency when an employer asserted during the course of litigation that an individual was not selected because of his lack of administrative skill, and the employer had not mentioned administrative skills as a justification for his decision at the outset. Id. at 470. The employer's initial explanation did cite specific characteristics that had led to its decision, but no reference was made to the preferred candidate's administrative skills. Id. Dennis and Ham are inapposite. Over the course of litigation, Delta has elaborated on its initial explanation that Peterson was not hired because he was not "a fit," but Delta has never added an entirely new rationale to its explanation, as the defendant employers did in Dennis and Ham. After White's e-mail to Aerotek indicating that Peterson was not "a fit," Delta's next word on the subject was its November 15, 2006 "Position Statement," in which it restated the language from White's e-mail and added "[b]ased on our discussions with Mr. Peterson and his work experience, we did not feel he was the proper person for our position. The majority of his experience was in a technical role rather than management." (Pl's Ex. 22 at EEOC 0044.) In the "Position Statement," Delta did not change its rationale or add a new one. It merely elaborated on what it meant by the comment that Peterson was not "a fit." Similarly, in its "Responses to Plaintiff's First Set of Interrogatories," Delta elaborated further, noting:
After interviewing Mr. Peterson it was determined that his overall work experience did not meet the requirements of the position. . . . [T]he majority of Mr. Peterson's prior experience was in power plants. . . . Delta's facility, by contrast, is a chemical process plant that produces chemical products. . . . Mr. Peterson's prior experience with equipment . . . utilized in chemical processing . . . is limited. Of the extensive work experience presented in his resume and discussed during his interview, he worked at a chemical manufacturing facility for about three years. In addition, his experience in supervision of maintenance personnel is very limited.
(Pl's Ex. 23 at 10-11.) The deposition testimony of White, Votolato, and Wonder (discussed above) offers more detail explaining the interviewers' concerns about Peterson's lack of chemical experience (White Dep. 102:18-103:4), lack of supervisory experience (White Dep. 142:19-143:20), and general lack of fit. ( See, e.g., White Dep. 155:9-19; Votolato Dep. 22:5-14; Wonder Dep. 34:15-35:16.) What Plaintiff refers to as Delta's "evolving rationales" are not reflective of inconsistency. Rather, they serve to explain Delta's initial rationale: Peterson was not "a fit."
Plaintiff next claims that Defendant's subjective hiring process supports a finding of pretext. (Pl's Opp'n 25.) In making this argument, the EEOC relies, in part, on language in Lilly v. Harris-Teeter Supermarket, 842 F.2d 1496 (4th Cir. 1988), in which the Fourth Circuit affirmed the trial court's finding of discrimination and noted that the defendant employer had "considered only subjective criteria in making . . . promotion decisions." Id. at 1506. However, the lack of objective criteria was only one of several defects in the employer's hiring process cited by the court in Lilly. In addition, the court indicated that "[n]otices of job vacancies were not posted. Required qualifications for open positions were never communicated, and written guidelines not used." Id. Though Delta did indeed rely on its interviewers' subjective evaluations of Peterson in determining whether to hire him, its hiring process did not suffer from the flaws plaguing the process in Lilly. Delta posted a description of its Plant Engineer position with Aerotek, and the job posting listed in general terms the qualifications which Delta required. Delta's interviewers elaborated on the job description during the interview process, explaining that the Plant Engineer would likely take on a supervisory role in the company within several years. (Pl's Ex. 13 at EEOC 0028; Peterson Dep. 91:3-8.)
Moreover, Delta's evaluations of Peterson, while subjective, are not totally without explanation, as were those rejected by courts in the additional cases cited by Plaintiff. See Garrett v. Hewlett-Packard Co., 305 F. 3d 1210, 1218 (10th Cir. 2002); Widoe v. District #111 Otoe County Sch., 147 F.3d 726, 730 (8th Cir. 1998); Rampich v. Zema Sys. Corp., No. 95 C 5760, 1997 WL 285733, at *8 (N.D. Ill. May 22, 1997). In Garrett v. Hewlett-Packard, the defendant's ranking and evaluation of its employees occurred at a meeting of the defendant's supervisors, and the court noted that "nowhere in the record" was there evidence of "how rankings were determined in these meetings." 305 F.3d at 1217-18. In Widoe v. District #111 Otoe County School, the defendant employer indicated that the plaintiff "did poorly on the interview" without explaining what about the plaintiff's performance had led it to that conclusion. 147 F.3d at 730. Similarly, in Rampich v. Zema Systems, the defendant employer offered no basis for its belief that the plaintiff was not a "team player." 1997 WL 285733, at *8. As the Rampich court reasoned, "unspecified `gut feelings' . . . are simply not enough to dispel an inference of pretext in a motion for summary judgment." Id.
Delta has offered more than an "unspecified gut feeling" to explain its decision not to hire Peterson. As discussed above, Delta's interviewers were concerned by Peterson's body language (Wonder Dep. 35:12-14) and his manner in describing both the people he had worked with in the past (White Dep. 155:14-16) and his accomplishments. (Votolato Dep. 22:5-8.) Those concerns led them to the conclusion that Peterson would not work well with Delta's maintenance department, particularly in a supervisory role.
"Absent evidence that subjective hiring criteria were used as a mask for discrimination, the fact that an employer based a hiring or promotion decision on purely subjective criteria will rarely, if ever, prove pretext. . . ." Springer v. Convergys Customer Mgmt. Group Inc., 509 F.3d 1344, 1349 (11th Cir. 2007) ( quoting Denney v. City of Albany, 247 F.3d 1172, 1185 (11th Cir. 2001)). While Delta's decision not to hire Peterson was based on subjective evaluations made by White, Wonder, and Votolato, "[a] subjective reason is a legally sufficient, legitimate, nondiscriminatory reason if the defendant articulates a clear and reasonably specific factual basis upon which it based its subjective opinion." Springer, 509 F.3d at 1349 ( quoting Denney, 247 F.3d at 1186). In their testimony describing their face-to-face experience with Peterson, Delta's interviewers have provided a sufficiently specific factual basis for their conclusion that Peterson was not the right candidate for the job.
Finally, Plaintiff argues that this Court should find pretext based on Defendant's past hiring practices. Plaintiff points out that from the date of White's hire, June 30, 2003, to the date Defendant learned of Peterson's EEOC charge, November 7, 2006, Defendant hired eighteen individuals, seventeen of whom were selected through White's "consensus interview process." (Pl's Opp'n 2.) Of those seventeen, Plaintiff states that their average age was thirty-five. ( Id.) Plaintiff claims that this fact is probative of pretext, but Plaintiff's argument is without merit. As the First Circuit noted in Greenberg v. Union Camp Corporation, 48 F.3d 22 (1st Cir. 1995), even if the plaintiff can show that the defendant hired no employees over age forty in a given time period, which Plaintiff cannot in this case, "without any attempt to establish the demography of the available hiring pool, this evidence has little probative value." Id. at 29 (citations omitted).
In sum, Delta has articulated a non-discriminatory reason for its refusal to hire Peterson, and the EEOC has not presented sufficient evidence to meet its burden of proving that this reason was pretextual and that discriminatory animus was the actual reason for Delta's decision.
Because this Court has found that Defendant's Motion for Summary Judgment should be granted for the above reasons, I need not address Plaintiff's Motion to Strike Inadmissible and Irrelevant Evidence Offered by Defendant in Support of Its Motion for Summary Judgment or Defendant's Opposition thereto. The evidence which Plaintiff moved to strike was not considered by the Court in arriving at the decision to grant Defendant's Motion for Summary Judgment.
IV. CONCLUSION
For the foregoing reasons, Defendant's Motion for Summary Judgment is GRANTED. A separate Order follows.ORDER
For the reasons stated in the Memorandum Opinion, it is, this 3rd day of November 2008
ORDERED
1. Defendant's motion for summary judgment is granted; and
2. Judgment is entered in favor of defendant against plaintiff.