Opinion
Civil Action No. 3:02-CV-0124-N
September 29, 2003
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Accenture LLP's ("Accenture") motion for summary judgment. Plaintiff James Byrom ("Byrom") filed the instant action under the Age Discrimination in Employment Act("ADEA"), 29 U.S.C. § 621 et seq., alleging that he was refused employment as a consultant because of his age. Because Byrom has failed to raise a material issue as to the nondiscriminatory rationale articulated by Accenture, Accenture's motion is granted.
I. BACKGROUND
James Byrom graduated from the University of Texas at Austin in 1979. Between 1979 and 1999, Byrom worked as a petroleum landman, working on the acquisition of oil and gas leases and performing tasks related to the exploration, purchase and sale of properties and pipelines.
By early 1999, there was no work available for Byrom with the firms he had previously assisted, and Byrom returned to school for vocational training in computer applications. Byrom received training during 1999, primarily in the software application commonly referred to as "SAP." In connection with his training, Byrom received certificates indicating his proficiency in particular computer applications.
During the year 2000, Byrom returned to his work as an oil and gas landman and also performed nonsupervisory tasks utilizing his newly-acquired computer skills. Byrom was employed through a recruiting firm that placed him into two positions: a three week placement as an SAP consultant doing data cleansing work, and a five and one half or six and one half week position as a consultant with an SAP module referred to as CRM. In November of 2000, Byrom had approximately nine or ten weeks of paid work experience with the SAP application.
By November of 2000, Byrom had posted his resume on the internet and was discussing possible opportunities as an SAP consultant with several companies. At that time, Tim Reiter, a corporate recruiter working out of the offices of Accenture, contacted Byrom to arrange for an interview for the position of SAP Consultant.
On November 17, 2000, Byrom, then 43 years old, met with Reiter at Accenture's office in Dallas, Texas. Following a twenty minute meeting with Reiter, Byrom was taken to a "skills interview" conducted by Accenture manager Brett Mossman. During that ninety minute interview, Mossman evaluated Byrom's qualifications for an SAP Consultant position and memorialized his own impressions on a written evaluation. Mossman ranked Byrom as "below standard" in three of seven evaluation categories, largely due to Byrom's relative inexperience in real-world application programming, software implementation and project supervision in the SAP application. Mossman also expressed his concern that Byrom might have "some trouble w[ith] the corporate culture." According to the written evaluation, Mossman concluded that Byrom might be an appropriate candidate for an analyst position, but should not be further considered for a consultant position.
Following the skills interview, Byrom met with Accenture employee Beryl D'Souza, who conduced an hour-long "behavioral interview." D'Souza and Byrom discussed topics including Byrom's work experience, communication and managerial skills. In addition, D'Souza gauged Byrom's ability to handle hypothetical situations in the workplace. Byrom alleges that D'Souza made two age-related comments during this interview. D'Souza allegedly asked (1) whether Byrom would have a problem working with someone younger than he was; and (2) whether he had any concerns about fitting into the corporate culture at Accenture, where most of the employees were younger than he was. Byrom testified that he told D'Souza that he would have no problems or concerns with respect to either issue.
After the behavioral interview, Byrom was sent home to await a call from Reiter. Later that day or the next day, Reiter contacted Byrom and informed him that his application for employment was rejected because he lacked "core competency skills" in the area of SAP, and Byrom required additional experience before he could be "billable for SAP consulting work." Byrom contacted Reiter either the same day or the next day to ask whether the alleged age-related comments were in any way related to the decision not to hire him. Reiter allegedly stated that D'Souza was from England and "they're much more open over there," but that the decision was based on lack of experience.
II. ANALYSIS
A. Direct Evidence of Intentional DiscriminationA 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). Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216 (5th Cir. 1995). Byrom argues that D'Souza's age-related comments constitute direct evidence of discrimination, precluding summary judgment without need to apply the burden-shifting framework adopted in McDonnell Douglas. 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. 401CV1009Y, 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").
Fifth Circuit courts have frequently held that statements which merely suggest discriminatory motive are not sufficient to constitute direct evidence of discrimination and avoid the burden-shifting framework of McDonnell Douglas. For example, the Court in Mooney v. Aramco Servs. Co. held that statements do not prove discriminatory animus "without inference or presumption" unless it is clear that the employer " actually relied on [the forbidden factor] in making its decision." Mooney v. Aramco Servs. Co., 54 F.3d at 1218 (quoting Langley v. Jackson State Univ., 14 F.3d 1070, 1075 (5th Cir. 1994)) (emphasis in original). In that case, four plaintiffs alleged that age-related comments were made by their supervisors shortly before their termination. Those statements, held to be insufficient to constitute direct evidence of discrimination, were: (1) supervisor stated that he wanted to replace plaintiff with a "younger and cheaper" engineer; (2) supervisor, discussing discharge, stated it "must have been your age;" (3) supervisor stated that plaintiff would have a "good case of age discrimination;" (4) plaintiff overheard supervisor who recommended his discharge stating that defendant was "going to get rid of the older employees with the higher salaries." Id. Similarly, the Court in EEOC v. Texas Instruments, Inc., 100 F.3d 1173, 1181 (5th Cir. 1996) held that statements to a discharged worker that "you've reached that age and years of service that we can bridge you to retirement" and that it was time to "make room for the younger supervisors" did not constitute direct evidence of discrimination sufficient to avoid McDonnell Douglas' burden shifting framework. Id.
Assuming, as this Court must, that D'Souza made the alleged statements, such stray remarks simply do not constitute "direct evidence." One must infer that D'Souza's question concerning younger workers is evidence of discriminatory intent, that this intent was relied on in evaluating Byrom's application, that D'Souza would not recommend Byrom's hiring, and that Accenture relied on D'Souza's improperly-motivated determination in deciding not to extend an offer to Byrom. In short, Byrom's evidence is insufficiently "direct and unambiguous" to establish unlawful discrimination without inferences and conjecture. "Therefore, he must rely on the traditional burden-shifting analysis as set forth by the Supreme Court and adopted by this Circuit." Nichols v. Loral Vought Sys. Corp., 81 F.3d at 41.
This Court does not reach the issue of whether D'Souza was the relevant decision maker, since her comments fail to constitute direct evidence of discrimination.
B. The McDonnell Douglas Test
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 Lindsay v. Prive Corp., 987 F.2d 324, 326 (5th Cir. 1993)).
1. Plaintiffs Prima Facie Case
In order to establish a prima facie case for age discrimination under the ADEA, a plaintiff must show that (1) he belongs to the protected class; (2) he applied to and was qualified for a position for which applicants were being sought; (3) he was rejected; and (4) the position remained open and the employer continued to seek applications from persons of complainant's qualifications. See McDonnell Douglas Corp. v. Green, 411 U.S. at 802; see also, Moody v. United States Sec'y of the Army, No. 02-31208, 2003 WL 21983014, at *2 (5th Cir. Aug. 21, 2003). The Fifth Circuit has consistently cautioned that, "to establish a prima facie case, a plaintiff need only make a very minimal showing." Nichols v. Loral Vought Sys. Corp., 81 F.3d at 41 (quoting Thornbrough v. Columbus Greenville R. R. Co., 760 F.2d 633, 639 (5th Cir. 1985)).
It is undisputed that Byrom was within the protected age group, since he was 43 years old when he was denied employment with Accenture. See AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, 29 U.S.C. § 621 et seq. His application for employment was clearly rejected. The remaining elements of Byrom's prima facie case — that the position remained open following Byrom's rejection and that Byrom was qualified for the position of SAP Consultant — are not as self-evident.
Accenture implies that no position remained open following Byrom's rejection, stating that "[b]ecause Byrom was not being interviewed for a specific opening, no specifically identifiable person was hired instead of him for the SAP Consultant position." Defendant's Brief in Support of Its Motion for Summary Judgment at 10. A rigid application of the McDonnell Douglas test might preclude a finding that Byrom satisfied this element of the prima facie case; however, "the precise requirements of a prima facie case can vary depending on the context and were `never intended to be rigid, mechanized, or ritualistic.'" Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)). The Court notes that Accenture does not expressly argue that Byrom fails this part of the McDonnell Douglas test, and the fact that Accenture identified and interviewed Byrom for a position suggests strongly that once Byrom was rejected, a position remained open and further applicants were sought. See Ikpoh v. Cent. DuPage Hosp., No. 90 C 7146, 1992 WL 211074, at *11 (N.D. Ill. Aug. 21, 1992) (although not plead as part of plaintiffs prima facie case, circumstances of plaintiffs interview suggested that defendant "more than likely continued to seek applicants" for open position after rejecting plaintiff). Therefore, the Court assumes that an open position remained following Byrom's rejection, satisfying that element of the McDonnell Douglas test.
In the Affidavit of Timothy Reiter, Mr. Reiter explains that he worked as a recruiter for Accenture through February 28, 2001, over three months after Byrom was interviewed. Reiter Aff. ¶ 7.
Accenture primarily argues that Byrom cannot establish his prima facie case because he was "woefully unqualified" for the position of SAP Consultant. Byrom contends that he was instead interviewing for a non-SAP consulting position involving a "new Accenture product in the oil and gas field," a job which he "was well-qualified for." In the alternative, Byrom claims that the dispute as to what position was available constitutes an issue of material fact sufficient to avoid summary judgment. There is no substantial evidence that Byrom was interviewing for a position other than that of SAP Consultant, and Byrom's evidence of qualification for this position is exceptionally weak; however, this Court finds that the evidence presented in support of Byrom's prima facie case is sufficient to satisfy the "very minimal showing" of qualification required by existing Fifth Circuit precedent. Nichols v. Loral Vought Sys. Corp., 81 F.3d at 41.
The evidence presented to this Court overwhelmingly supports the conclusion that Byrom was interviewing for the position of SAP Consultant, and Byrom's argument to the contrary is unsupported by probative evidence. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) ("mere existence of some alleged factual disputes between the parties will not defeat an otherwise properly supported motion for summary judgment"). First, Plaintiffs computer training was "primarily SAP related." Deposition of James Byrom, at 11:4-5. Byrom's personal data sheet submitted to Accenture stated that his reason for leaving his position as Independent Landman was "SAP Training." Defendant's Exhibit B-2. His placements following his vocational education were through "a recruiting firm for an SAP project." Deposition of James Byrom, at 12:23. Byrom's first title following his computer training was "SAP consultant." Id. at 14:6. Byrom's second position following his computer training was also as an "SAP consultant." Id. at 15:22. At the time Byrom interviewed with Accenture (which would have been his third position), he had also applied with N2 for the position of "SAP Consultant." Id. at 53:8-10. The salary range Byrom requested from Accenture was based on the "market for SAP consultants." Id. at 64:25-65:11; 76:13-20. Tim Reiter explained to Byrom that the position involved "SAP, oil and gas, their need and — their need for someone to assist in their E and P or oil and gas division and/or SAP." Id. at 49:22-50:4. The screening interview form prepared by Reiter lists "SAP" as the skill track being applied for. Def. Aff. at 61. Byrom's interviewers discussed the role of an SAP Consultant. Deposition of James Byrom, at 85-86. Finally, the given rationale for rejecting Byrom's application was consistently stated as his lack of "core competency skills in the area of SAP." Id. at 95:1-3.
Although this Court agrees with Accenture that Byrom interviewed for a position as an SAP Consultant, the evidence indicates that Byrom was at least sufficiently "qualified" for this position to satisfy the minimal showing required for a prima facie case of discrimination. See, e.g., Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) ("the burden of establishing a prima facie case of disparate treatment is not onerous"). A rational jury could find that Byrom was qualified for the job of SAP Consultant simply because of his vocational training in the application of SAP and his limited work experience. Byrom was sufficiently qualified, on paper, to be contacted by Reiter for an interview and pass Reiter's initial screening. Although probative of the rationale for their refusal to hire Byrom, Accenture's extensive evidence that Byrom had minimal experience in hands-on application of SAP, had never lead a team in an SAP environment, had never implemented SAP for a client, and had no work experience in several important SAP applications, does not establish that there is no issue of material fact as to Byrom's qualifications. At least for the purpose of establishing a prima facie case, a plaintiff "is not required to prove that he was the most qualified applicant for the position, but only that his background was such that he was at least presumptively qualified for the job he sought." Wright v. Western Elec. Co., 664 F.2d 959, 964 (citing East v. Romine, Inc., 518 F.2d 332, 338 (5th Cir. 1975), overruled by Burdine v. Tex. Dep't of Cmty. Affairs, 647 F.2d 513, 514 n. 4 (5th Cir. 1981)). Byrom's training and his ten weeks' experience in the position of SAP Consultant is enough to establish that he was presumptively qualified for the position he sought. Accordingly, the Court holds that Byrom's evidence of qualification, although weak, is sufficient to satisfy that element of his prima facie case.
2. Accenture's Rationale for Rejecting Byrom
Once a plaintiff makes a prima facie case for discrimination, the defendant must articulate a legitimate, nondiscriminatory reason for its employment decision. Medina v. Ramsey Steel Co., 238 F.3d at 682-83. The defendant's burden during this second step is satisfied by producing evidence which, " taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993) (emphasis in original).
Here, Accenture states that Byrom was rejected because of his lack of experience in the application, implementation, and supervision of SAP and SAP-related applications. Accenture points to interview evaluations completed by Reiter, Mossman, and D'Souza, the affidavits of Reiter and Mossman, the transcript of Byrom's deposition, and the written profile of the position of SAP Consultant, all tending to support the conclusion that Byrom was rejected because of his lack of work experience, not his age. Indeed, it is undisputed that (1) Byrom had never led a team in an SAP environment and had never implemented SAP for a client; (2) Byrom had never supervised anyone in an SAP environment; (3) Byrom had no paid work experience in SAP applications such as ABAP/4 programming, FI/CO, and HR; and (4) Byrom had "limited" SAP experience, which consisted of classroom training and less than ten weeks of paid work in SAP applications. Accenture claims that it was searching for a more knowledgeable SAP Consultant who had in-depth, hands-on experience in guiding one or more businesses through a full SAP life cycle, which, they allege, requires two or more years of work experience. The Court holds that the evidence produced by Accenture, if taken as true, would permit the conclusion that there was a nondiscriminatory reason for rejecting Byrom's application. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 509. Therefore, Accenture has satisfied its burden under the second stage of the McDonnell Douglas test.
3. Byrom's Claim of Pretext
With Accenture having carried this burden of production, "the presumption of discrimination [established by the prima facie case] fades, and the plaintiff must prove that the employer's articulated reason is a pretext for unlawful discrimination." Reeves v. Sanderson Plumbing Prods., Inc., 197 F.3d 688, 692 (5th Cir. 1999) (citing Price v. Marathon Cheese Corp., 119 F.3d 330, 337 (5th Cir. 1997)). It is well-settled that a nonmoving plaintiff can defeat a motion for summary judgment by either creating a fact issue concerning direct evidence of discriminatory intent, see supra, 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. Checkpoint Software Technologies, Inc., No. 3:01-CV-1906-P, 2002 WL 31455598, at *8 (N.D. Tex. Oct. 31, 2002) (Solis, J.). Factors relevant to this inquiry include "the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered." Id. (quoting Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002)). Byrom fails to submit evidence that creates a fact issue as to whether Accenture's stated reasons actually motivated Byrom's rejection.
Byrom has raised just four arguments to support his contention that Accenture's stated reason for rejecting him is pretextual. First, he alleges that the qualifications for an SAP Consultant are a red herring, since he interviewed for a non-SAP consulting position. Second, Byrom cites the strength of his prima facie case. Third, Byrom argues that D' Souza's comments, combined with Mossman's note that Byrom might have "some trouble w[ith] the corporate culture," are direct evidence of discrimination. Finally, Byrom points to statistical evidence suggesting that the vast majority of new hires for consultant and manager positions at Accenture were under 40 years of age, and a majority of employees in analyst or consultant positions were under 40. Taken together, this evidence still fails to raise a genuine issue of material fact to undercut Accenture's articulated, non-discriminatory rationale for rejecting Byrom's application.
This Court has held that the overwhelming evidence supports the conclusion that Byrom was interviewed for a position as an SAP Consultant. Supra. Even had the Court found a fact question as to the position being applied for, Accenture may properly make a determination that an applicant with little real-world experience in SAP is a less attractive candidate for a non-SAP consultant position, as long as this determination does not mask unlawful discrimination. See Scales v. Slater, 181 F.3d 703, 711 (5th Cir. 1999) (explaining that narrowing an applicant field, unless performed in a discriminatory manner, is permissible); Wright v. Western Elec. Co., 664 F.2d at 964 (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981)) (holding that "the employer has discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria"). This Court recognizes that 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. La. Office of Cmty. 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.'" 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)). In sum, Byrom has presented no evidence to suggest that Accenture's preference for more knowledgeable candidates for the consultant position masked discriminatory intent.
The strength of Byrom's prima facie case does little to assist his pretext argument. See Haas v. ADVO Sys., Inc., 168 F.3d 732, 733 (5th Cir. 1999) (evidence adduced to support pretext must be viewed in tandem with evidence presented as part of the prima facie case). In short, the prima facie case presented by Byrom is extremely weak, primarily because of serious questions as to his qualifications for the position he applied for. Although sufficient to satisfy the minimal prima facie standard, Byrom's limited experience is not enough to raise a fact issue regarding his allegation that Accenture was using work experience as a pretext for unlawful discrimination.
Byrom's contention that D'Souza's questions are "direct evidence" of discrimination is similarly misplaced. Supra. D'Souza's comments are, at most, stray remarks not independently determinative of discrimination. See Wyvill v. United Companies Life Ins. Co., 212 F.3d at 304. The comments are only vaguely age-related, as they touch upon Byrom's comfort working with Accenture's younger workers rather than any animus based on Byrom's age. In addition, Accenture contends that D'Souza had no influence over the decision not to hire Byrom and was approximately the same age as Byrom. Even D'Souza's role and age disregarded by a jury, D'Souza's questions do not create a fact issue as to whether Accenture's stated reason for failing to hire Byrom were false.
Finally, Byrom points to statistics that suggest that Accenture's workforce is overwhelmingly under the age of 40. Such use of statistics is misplaced, since Byrom fails to "compare the relevant portion of the employer's work force with the qualified population in the relevant labor market." Anderson v. Douglas Lomason Co., 26 F.2d 1277, 1286 (5th Cir. 1994)). That Accenture has relatively few analysts and consultants over the age of forty, alone, does not support the conclusion that Accenture relies on unlawful age discrimination in making hiring decisions. In addition, Byrom's statistics fail to consider the ages of those rejected for consulting positions at Accenture, their skills and work experience, and the internal promotion practices of Accenture. See EEOC v. Texas Instruments, Inc., 100 F.3d at 1184-85. The Fifth Circuit has cautioned that "more than statistics are usually necessary to rebut an employer's strong showing of a legitimate, non-discriminatory reason for [an adverse employment decision]." Bauer v. Albemarle Corp., 169 F.3d 962, 968 (5th Cir. 1999). The statistics cited here, combined with Byrom's other evidence of pretext, are not sufficient to rebut Accenture's stated reason for rejecting Byrom's application. Byrom fails to raise a genuine issue of material fact as to whether Accenture's proffered reason for rejecting his application was merely a pretext for age discrimination. Therefore, summary judgment is appropriate.
CONCLUSION
The Court's review of the summary judgment proof indicates that there are no fact questions on Plaintiffs claim for age discrimination and Defendant is entitled to judgment as a matter of law. Defendant's motion for summary judgment is therefore granted in its entirety.