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granting summary judgment because plaintiff could not show pretext where her interview did not score among the top applicants
Summary of this case from Burkett v. VilsackOpinion
No. C 98-4 MJM
December 1, 2000.
OPINION and ORDER
In a five-count complaint, Plaintiff, Susan Grant, a former employee of the City of Cedar Rapids, alleges that Defendants, in eliminating her job position and failing to hire her for newly-created positions, discriminated against her in violation of federal sex, race and age discrimination laws. (Doc. no. 1). Plaintiff's sex-discrimination and retaliation claims were brought pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., (Pl's Complaint: Count II and IV); and her age discrimination claim was brought under the Age Discrimination in Employment Act, ("ADEA") 29 U.S.C. § 621 et seq., (Count III). Plaintiff also seeks redress under 42 U.S.C. § 1983, alleging that Defendants' discriminatory sex- and age-based policies and practices violated Plaintiff's equal protection and due process rights under the 14th Amendment of the U.S. Constitution, (Count V).
In Plaintiffs brief in support of resistance to motion for summary judgment, see doc. no. 53, tab 6, Plaintiff expressly abandoned her race discrimination claims. See id. at 4. Accordingly, the following claims are dismissed with prejudice: Count I, alleging race discrimination in violation of 42 U.S.C. § 1981; Count II, to the extent it alleges race discrimination in violation of Title VII, 42 U.S.C. § 2000e, et seq.; and Count V, to the extent the 42 U.S.C. § 1983 claim is based on alleged race-based discriminatory policies and practices.
Plaintiff has not specified whether she is asserting liability against the named defendants in their individual or official capacities. However, under the law of this Circuit, "supervisors may not be held individually liable under Title VII." Bales v. Wal-Mart Stores, Inc., 143 F.3d 1103, 1111 (8th Cir. 1998) (quoting Bonomolo-Hagen v. Clay Central-Everly Community Sch. Dist., 121 F.3d 446, 447 (8th Cir. 1997) ( per curiam), and citing Spencer v. Ripley County State Bank, 123 F.3d 690, 691-92 (8th Cir. 1997) ( per curiam)). Therefore, the Court will read Plaintiffs Title VII claims as alleging liability against Defendants only in their capacity as agents of the City of Cedar Rapids, the employer in this case.
Currently before the Court is Defendants' motion for summary judgment on all claims, filed on August 15, 2000. (Doc. no. 40). Plaintiff submitted a brief in resistance on September 26, 2000, and Defendants filed a reply brief on October 13, 2000. (Doc. nos. 54 and 58). Both parties have filed statements of material fact in support of their positions. (Doc. nos. 42 and 53, tab 5). For the reasons discussed herein, Defendants' motion for summary judgment is granted.
On September 20, 2000, the Court granted Defendants' motion for summary judgment on the grounds that it was unresisted by Plaintiff. (Doc. no. 51). Subsequently, Plaintiff filed a motion for relief from that judgment, requesting the Court to set aside the summary judgment order. (Doc. no. 53). On October 4, 2000, the Court granted Plaintiffs motion for relief and ordered that Defendants' motion be considered on the merits. (Doc. no. 57).
Summary Judgment Standard
The standard for granting summary judgment is well-established. A motion for summary judgment may be granted only if, after examining all of the evidence in the light most favorable to the nonmoving party, the court finds that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Montgomery v. John Deere Co., 169 F.3d 556, 559 (1999); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) ( quotation omitted); Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). A fact is material if it might affect the outcome of the suit under the governing substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The party moving for summary judgment bears the "initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show lack of genuine issue." Celotex, 477 U.S. at 323. Once the moving party has carried its burden, the opponent must go beyond the pleadings and designate specific facts-by such methods as affidavits, depositions, answers to interrogatories, and admissions on file-that show that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324. The evidence of the non moving party is to be considered as true, and justifiable inferences arising from the evidence are to be drawn in his or her favor. See Anderson, 477 U.S. at 255. If the evidence of the nonmoving party is "merely colorable," or is "not significantly probative," summary judgment may be granted. Id. at 249-50. Thus, the non moving party does not have to provide direct proof that genuine issues of fact exist for trial, but the facts and circumstances that the nonmoving party relies upon must "attain the dignity of substantial evidence and must not be such as merely to create a suspicion." Metge v. Baehler, 762 F.2d 621, 625 (8th Cir.), cert. denied, 474 U.S. 1057 (1985). In essence, the evidence must be "such that a reasonable jury could find a verdict for the non moving party." Anderson, 477 U.S. at 248.
In undertaking this analysis, the Court is cognizant of the fact that "`discrimination cases often depend on inferences rather than on direct evidence,' [thus,] summary judgment should not be granted unless the evidence could not support any reasonable inference for the nonmovant." Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1111 (8th Cir. 1995), (quoting Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994)). However, although summary judgment should be used sparingly in the context of employment discrimination cases, certainly there will be instances where it is appropriate. See Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 2109 (2000) ("[W]e have reiterated that trial courts should not `treat discrimination differently from other ultimate questions of fact.'") (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 524 (1993)). This is because "the focus . . . always remains on the ultimate question of law: whether the evidence is sufficient to create a genuine issue of material fact as to whether the employer intentionally discriminated against the employer.
Rothmeier v. Investment Advisors, Inc., 85 F.3d 1328, 1336 (8th Cir. 1996).
Background Facts.
In 1990, the Plaintiff, Susan Grant, was hired by the City of Cedar Rapids' Parks Department as Golf Services Coordinator. Her duties included planning all city golf tournaments, scheduling and facilitating golf league play, overseeing the scheduling of tee times, and promoting the use of municipal golf courses. Essentially, the Golf Services Coordinator acted as a liaison among the golf courses, providing technical supervision and program leadership. Coordination was necessary because of the somewhat fragmented manner in which the City's four golf courses were organized. Each golf course had its own "pro" who managed the day-to-day affairs of that course. The professional was not a city employee, but rather had a contract with the City to manage the golf course, the clubhouse, the concession stands, and so forth. In contrast, maintenance "superintendents" were full-time city employees.
In 1995, Evan R. Hughes was elected to a two-year term as Cedar Rapids Commissioner of Parks and Public Property, and among his duties was oversight of the city golf courses. Commissioner Hughes, upon taking office in January 1996, determined that reorganization would be necessary to maximize resources for the benefit of the golfing public. Significant to the Commissioner's decision was the fact that, unlike other park activities, the golf program was not funded by general tax revenues. Rather, maintenance and administration of the City's golf courses depended on revenue generated by golf patrons.
Commissioner Hughes determined that golf operations could be better-coordinated and run more efficiently if one department head supervised all facets of the golf program rather than partitioning the operation among city employees and independent contractors. This new position would be known as the Head Golf Superintendent and would report directly to Commissioner Hughes. A Golf Clubhouse Manager would oversee clubhouse operations for all four city courses, including public relations, merchandising, and concession activities. An Assistant Golf Club House Manager would be named for each course. The Manager and Assistant Managers were to be full-time city employees. However, it was decided that the independently-contracted professionals currently "managing" each course would be "grandfathered" out; that is, those positions would be eliminated — and Assistant Managers officially hired — only as each professional voluntarily relinquished his contract. The duties of the former Golf Services Coordinator would be subsumed within those of the Head Superintendent and Managers. Therefore, the Golf Club Services Coordinator position was eliminated as unnecessary.
After Thomas K. Lavrenz was named Head Golf Course Superintendent, efforts focused on hiring the Golf Clubhouse Manager and one Assistant Manager (due to the "grandfather" provision of the reorganization plan, only one Assistant Manager was needed at this time). The positions were advertised both externally and internally within the City of Cedar Rapids. The advertisement included the comment, "Professional Golf Association (PGA) status preferred." Twenty people, including Ms. Grant, applied for the Golf Clubhouse Manager's position. Among those twenty were three internal City applicants: Ms. Grant and two males. From the twenty applicants, seven finalists, including Ms. Grant, were selected for interview.
Before any interviews were conducted, a three-member interview committee was assembled which consisted of Mr. Lavrenz, the new Head Superintendent; Julie Sina, the Parks' Department Recreation Director; and Gloria McMahon, the Compensation and Classification Manager from the City's Human Resources Department. The committee prepared a scoring matrix and a series of questions to be asked of all candidates in a uniform and consistent fashion. Each interviewer scored each candidate. At the conclusion of all interviews, a composite chart was prepared, ranking the seven candidates. As a result of this process, Gary Louvar, who had been the contracted professional at the City's Jones course, was named Golf Clubhouse Manager. With his appointment, an opening was created for an Assistant Manager at the Jones course, and thus the committee now needed to fill two Assistant Manager positions.
During their interviews for Golf Clubhouse Manager, the seven candidates had been asked if they would be interested in having their application considered for an Assistant Manager position. From the record it appears that Ms. Grant and at least three others said they would consider such an offer. Those four were then interviewed for an Assistant Manager position. There is a factual dispute between the parties as to whether the decision to hold a separate round of interviews for the Assistant Manager openings was a change in position on the Defendants' part. Ms. Grant states that she was told that all open positions would be filled from the first round of interviews. Defendants deny making any such representation. The interview team for the second round remained the same, except for the addition of Mr. Louvar. Because he would be directly supervising the Assistant Managers, it was felt that he should have some input in the selection process.
Following interviews with the four candidates, Michael Brake and John Locher, Jr., having received the highest composite scores, were appointed to the Assistant Manager positions by the City Council. Ms. Grant's position was eliminated shortly thereafter, and she was, accordingly, terminated on April 23, 1996. At the time relevant to this action, Ms. Grant was over forty years old, and was the only female in a management position in the City's golf operations.
Ms. Grant filed civil rights complaints with the Iowa Civil Rights Commission and the Equal Employment Opportunity Commission. Both agencies dismissed her complaints following investigation by the Iowa Civil Rights Commission, citing a lack of evidence to support her allegations. This action was filed on January 9, 1998.
Age Discrimination
The ADEA makes it unlawful for employers to discriminate on the basis of an individual's age if that individual is over 40 years old. See 29 U.S.C. § 623 (a)(1), 631(a). Under the ADEA, a plaintiff may demonstrate age discrimination by either direct or indirect evidence. See Montgomery v. John Deere Co., 169 F.3d 556, 559 (8th Cir. 1999); Beshears v. Asbill, 930 F.2d 1348, 1353 (8th Cir. 1991). When, as here, a plaintiff is unable to put forth direct evidence of age discrimination, the applicable analysis is that established by the Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), and subsequent decisions. See id. at 802-03; Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-253 (1981); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 2106 (2000); see also Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1332 n. 5 (8th Cir. 1996); Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 776 (8th Cir. 1995) (reiterating the well-settled rule that the Eighth Circuit applies the McDonnell Douglas burden-shifting approach to claims made pursuant to the ADEA).
In addition to federal jurisdictional bases, Plaintiff, in her complaint, cursorily cites "the laws of the State of Iowa" but identifies no specific state statute or constitutional provision. To the extent that Plaintiff was attempting to invoke Iowa law, her age claim would fall under the Iowa Civil Rights Act ("IRCA"), Iowa Code ch. 216.6, and the same analytical framework is applicable. See Board of Supervisors of Buchanon County v. Iowa Civil Rights Comm'n, 584 N.W.2d 252, 256 (Iowa 1998); Hy-Vee Food Stores, Inc. v. Iowa Civil Rights Comm'n, 453 N.W.2d 512, 516 (1990).
The McDonnell Douglas line of cases have "established an allocation of the burden of production and an order for the presentation of proof in discriminatory treatment cases." Id., (quoting St. Mary's Honor Ctn, 509 U.S. at 506). Under this paradigm, to avoid summary judgment the plaintiff must first establish a prima facie case of unlawful discriminatory treatment. See Burdine, 450 U.S. at 248; St. Mary's Honor Ctr., 509 U.S. at 506. Accordingly, the plaintiff must produce evidence that: (1) she was within the protected class ("individuals who are at least 40 years of age," 29 U.S.C. § 631 (a)); (2) she was performing her job at a level that met her employer's legitimate expectations; (3) she was discharged or discriminated against with respect to conditions of employment; and (4) substantially younger persons of comparable qualifications were not subject to similar adverse treatment. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 310 (1996); Montgomery, 169 F.3d at 559. Here, the alleged adverse employment actions were the termination of Plaintiff in April, 1996, and the failure to hire her for one of the newly-created management positions.
If the plaintiff establishes a prima facie case, the burden of production shifts to the employer to "produce evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate nondiscriminatory reason." Reeves, 120 5. Ct. at 2106 (quoting Burdine, 450 U.S. at 254). The defendant need not persuade the court that it was actually motivated by the proffered reasons. See Reeves, 120 S.Ct. at 2106. It is sufficient that the defendant set forth, through the introduction of admissible evidence, the reasons for the employment action taken, and that the explanation provided is legally sufficient to justify a judgment for the defendant. See Burdine, 450 U.S. at 254-55.
Once the defendant has met this burden, "the McDonnell Douglas framework — with its presumptions and burdens' — disappear[s]," Reeves, 120 S.Ct. at 2106 (quoting St. Mary's Honor Ctr., 509 U.S. at 510, "and the sole remaining issue [is] `discrimination vel non'." Reeves, 120 S.Ct. at 2106 (quoting U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 714 (1983). The burden shifts back to the plaintiff to show that the employer's articulated reason or reasons were pretext and that a genuine issue of material fact exists as to whether the employer's actions were motivated by discrimination. See Reeves, 120 S.Ct. at 2106; Burdine, 450 U.S. at 253. And while no presumption applies at this stage, "[t]he trier of fact may still consider the evidence establishing the plaintiffs prima facie case `and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual.'" Reeves, 120 S.Ct. at 2106 (quoting Burdine, 450 U.S. at 255, n. 10).
Thus, although the factfinder's disbelief of the employer's explanation may, together with the prima facie case, suffice to show intentional discrimination, "the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Reeves, 120 S.Ct. at 2106 (quoting Burdine, 450 U.S. at 253). "There will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory . . . [and] an employer would be entitled to judgment as a matter of law." Reeves, 120 S.Ct. at 2109; accord Rothmeier, 85 F.3d at 1336 ("[T]he burden of persuasion remains with the plaintiff at all times and . . . this burden is not necessarily satisfied merely be discrediting the employer's explanation."). "[A]ny particular case will depend on a number of factors[, including] the strength of the plaintiffs 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 on a motion for judgment as a matter of law [and, by analogy, summary judgment]." Reeves, 120 S.Ct. at 2109. Therefore, where the plaintiffs prima facie case is weak, the quantum of additional evidence necessary to establish pretext for purposes of summary judgment increases. See, e.g., Montgomery, 169 F.3d at 560 (where plaintiffs prima facie case was "at best, weak," and he failed to come forward with any evidence of pretext besides derogatory name calling, summary judgment was warranted); Rothmeier, 85 F.3d at 1337 ("The focus . . . always remains on the ultimate question of law: whether the evidence is sufficient to create a genuine issue of fact as to whether the employer intentionally discriminated against the plaintiff because of the plaintiffs age.").
"[T]he standard for granting summary judgment `mirrors' the standard for judgment as a matter of law, such that "the inquiry under each is the same.'" Reeves, 120 S.Ct. at 2110 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986)).
Consistent with these guidelines is this Circuit's requirement that, where the plaintiff relies on evidence of disparate treatment to support a finding of pretext (as opposed to meeting its prima facie burden), the plaintiff and the party alleged to have received more favorable treatment must have been "similarly situated in all relevant respects." Phillips v. Union Pac. R.R. Co., 216 F.3d 703, 706 (8th Cir. 2000) (quoting Lanear v. Safeway Grocery, 843 F.2d 298, 301 (8th Cir. 1988), with citations omitted in Phillips). See also Scott v. County of Rasey, 180 F.3d 913, 917 (8th Cir. 1999) (a "strong showing" that disparately treated employees are "similarly situated in all relevant respects . . . is required when the only evidence of pretext or discrimination is disparate treatment.").
In their motion for summary judgment, Defendants argue that Plaintiff cannot meet her initial burden of establishing a prima facie case of discrimination based on age, and even if a prima facie case is found, Plaintiff has failed to demonstrate that Defendants' nondiscriminatory explanation for their actions was pretext for discrimination. Thus, the following issues must be determined by the Court: (1) whether Plaintiff has established a prima facie case of age discrimination; (2) if so, whether Defendants have met their burden of producing a legitimate nondiscriminatory explanation to rebut Plaintiffs prima facie case; and finally, (3) whether Plaintiff has sufficiently demonstrated that the proffered explanation was not the true reason for the employment actions, and that there is a genuine issue of material fact regarding the ultimate question of discrimination.
1. Plaintiffs prima facie case of age discrimination
Viewing the evidence and all justifiable inferences drawn therefrom in favor of Plaintiff, the Court will assume that Plaintiff can establish three of the four requisite elements of a prima facie case of age discrimination: 1) she was over forty at the time of the reorganization and hiring process; 2) she was adequately performing her job prior to reorganization and was qualified for the position of Manager or Assistant Manager, as evidenced by her inclusion among the seven candidates selected for interview out of a pool of twenty; and 3) she was not selected for one of the open management position.
Nowhere does Plaintiff provide this Court with documentation of her exact age during the time period relevant to this action. At the time this lawsuit was filed, in January, 1998, Plaintiff was 45 years old. (Doc. no. 1, Complaint ¶ 8). Therefore, Plaintiff was either 43- or 44-years old in March, 1996, when she submitted applications and interviewed for the open positions.
The fourth element, however, presents serious problems for Plaintiff. Under that element, Plaintiff must demonstrate that, despite her qualifications, Defendants selected someone "substantially younger" for the open position. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996) (adopting "substantially younger" standard on prima facie burden). Mr. Louvar was 45 years old at the time of his selection as Clubhouse Manager. Mr. Brake and Mr. Locher, selected as Assistant Managers, were 48 and 25 years old respectively. Thus, the Court must decide whether, given these facts, Plaintiff can sustain her prima facie burden.
The Court rejects Defendants' contention that this is a reduction-in-force case which would require that Plaintiff provide some "additional showing" that age was a factor in the termination in order to meet her prima facie burden. See Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 776 (8th Cir. 1995) (discussing plaintiffs prima facie burden in RIF case and rationale underlying "additional showing" rule). That rule was established to provide employees in a RIF situation — where employers are often eliminating positions as well as releasing individual employees — with an alternate means of meeting their prima facie burden where it may otherwise be impossible to prove the fourth element. See id. at 776. Here, however, because the reorganization was not a true RIF — Plaintiffs was the only position actually eliminated and her duties were simply absorbed by other employees within the golf program — the "additional showing" rule is inapplicable and unnecessary. Rather, the traditional McDonnell Douglas test applies and Plaintiff can establish the fourth element by showing that her responsibilities were given to a substantially younger employee.
It is difficult, at first blush, to contemplate a viable age discrimination claim where two of the three positions went to candidates older than Plaintiff. However, this seems to beg the question of how the challenged employment actions should properly be characterized. Should the three open management positions be considered as a group from which Plaintiff was excluded? or should each open position be considered separately? If the former, it is not clear that Plaintiff can make out a prima facie case. If the latter, then Defendants' selection of 25-year-old Mr. Locher is sufficient to sustain Plaintiffs prima facie burden.
In making this determination, the Court is cognizant that "the burden of establishing a prima facie case of disparate treatment is not onerous," Williams v. Ford Motor Co., 14 F.3d 1305, 1308 (8th Cir. 1994) (quoting Burdine, 450 U.S. at 253-54), and that "the elements of a prima facie case are not inflexible and vary slightly with the specific facts of each case." Breeding v. Arthur J. Gallager and Co., 164 F.3d 1151 (8th Cir. 1999); Hindman v. Transkrit Corp., 145 F.3d 986, 990-91 (8th Cir. 1998). Thus, the case law supports flexibility in the prima facie analysis to avoid premature resolution of the ultimate issue of discrimination. See Johnson v. Arkansas State Police, 10 F.3d 547, 551 (8th Cir. 1993) (cautioning against conflating prima facie case with ultimate issue of discrimination). This seems particularly appropriate at summary judgment. If the Court were to find that Plaintiff could not, as a matter of law, make her prima facie case where only one out of three positions went to someone substantially younger, would the same result follow if the facts were one out of two, or two out of four? Because this question has not been dispositively answered by this Circuit, the Court will give Plaintiff the benefit of the doubt and find that Defendants' selection of 25-yea r-old Mr. Locher for one of the Assistant Manager positions is sufficient to establish the fourth element of Plaintiffs prima facie case. See Williams v. Ford Motor Co., 14 F.3d 1305, 1308 (8th Cir. 1994) ("The prima facie case requires only that Williams establish facts adequate to permit an inference of discrimination."); cf. Walker v. St. Anthony's Medical Center, 881 F.2d 554, 558 (8th Cir. 1989) (holding, in Title VII sex discrimination case, that gender of employee who replaced plaintiff pertains to weight of evidence as opposed to its legal sufficiency). It follows then that Plaintiff has narrowly made out a prima facie case of age discrimination, and the Court will now turn to Defendants' proffered reasons for the elimination of Plaintiffs job and the selection of Mr. Locher to the Assistant Manager position. See Reeves, 120 S.Ct. at 2106; Burdine, 450 U.S. at 254-55 (explaining burden shift at stage two).
2. Defendants' legitimate nondiscriminatory reasons
Defendants must rebut Plaintiffs prima facie case of unlawful age discrimination by producing admissible evidence supporting a legitimate nondiscriminatory reason or reasons for the employment action at issue. See Reeves, 120 S.Ct. at 2106; Burdine, 450 U.S. at 254-55. This burden is one of production, not persuasion, see St. Mary's Honor Center, 509 U.S. at 509, and the Court concludes that Defendants' explanation is more than sufficient to satisfy their burden.
As to Plaintiffs termination from her position as Golf Services Coordinator in April, 1996, Defendants aver that Commissioner Hughes' reasoned decision to reorganize the city's golf program resulted in the elimination of that position as inefficient and unnecessary. Prior to reorganization, the golf program was a subdivision of the Parks Division within the Parks and Recreation Department. The director of the Parks Division answered to a Parks and Recreation Director who answered to the Commissioner. The reorganization separated the divisions and subdivisions into three distinct departments: Golf, Parks, and Recreation. Golf thus became a separate free-standing department to be run as a business enterprise. Defendants assert that this change was particularly significant to the golf operations which, unlike other Parks activities, are not funded by general property tax revenues. Rather, the City's municipal golf program is funded solely by income generated from golf course users.
Under the new system, the Head Golf Superintendent would oversee all aspects of daily operations and would report directly to Commissioner Hughes. A Golf Clubhouse Manager would be hired to manage clubhouse operations for all four city courses, including public relations, merchandising, and concession activities. To maintain uniformity and consistency, the Manager would supervise an Assistant Manager at each course. Thus, rather than the coalition of independent contractors used previously, each course would have a full-time, on-site manager. Those selected as Manager or Assistant Manager were expected to have broad-based experience in all facets of golf operations short of maintenance. They would market the courses, book programs and tournaments, and teach golf. Those hired would do the jobs that the contracted professionals had traditionally done and also perform those administrative tasks that the Golf Services Coordinator had performed. According to Defendants, working toward bringing both course management and maintenance "in house" was expected to result in more centralized, consistent and efficient operation of the golf program so as to maximize revenue and patron satisfaction.
As to Defendants' failure to hire Plaintiff for a management position, Defendants explain that, after a standardized interview process by a neutral committee, Plaintiff did not score among the top candidates and thus was not offered one of the positions. As noted above, the Manager and Assistant Managers were expected to perform all duties short of maintenance, and the interview questions were designed accordingly. In the Clubhouse Manager interviews, candidates were asked about their qualifications and experience with staff supervision, hiring and training; marketing golf merchandise and food concessions; preparing and monitoring budgets; teaching golf lessons and organizing leagues; and public relations. The Assistant Manager interview questions focused more on qualities deemed important to a cohesive organization, such as teamwork, loyalty, and the ability to implement the Manager's ideas and directives. Defendants have submitted copies of the questions asked to each candidate, the interviewers' notes as to each candidate's' response, and the scoring sheets showing the individual and composite scores from which the new management personnel were chosen. Mr. Louvar received the highest score in the first round of interviews and was named Clubhouse Manager. Mr. Louvar then participated, along with the original committee, in the interviewing process for the two Assistant Managers whom he would be supervising. Mr. Locher and Mr. Brake received the highest scores among the four interviewees, and were named to the open positions.
These explanations satisfy Defendants' production burden under McDonnell Douglas. The Court must therefore determine whether Plaintiff can demonstrate sufficient evidence that Defendants' proffered reasons are false so as raise an issue as to whether Defendants' actions were actually motivated by age discrimination. See Reeves, 120 S.Ct. at 2106; Burdine, 450 U.S. at 253.
3. Plaintiffs pretext burden
Plaintiffs pretext showing is inadequate to survive summary judgment. Plaintiff first argues that the facts belie Defendants' proffered efficiency rationale for the reorganization that led to Plaintiffs termination. Plaintiffs was the only position eliminated, and the reorganization resulted, in fact, in the City adding employees to its full-time roster. From this alone, Plaintiff asks this Court to infer that the reorganization was merely pretext and that her termination was actually motivated by age-based discrimination. There is nothing in the record to support such an inference. First, Defendants' decision to shift clubhouse management from contracted professionals to "in house" employees is not the same as "adding employees." Rather, it is a legitimate business decision to further the Commissioner's goal to centralize golf operations. And the decision to eliminate the Golf Services Coordinator position as unnecessary reasonably reflects the duties of that position, rather than the person who fills it.
Plaintiffs assertions seem to be, essentially, that rather than eliminating her position, more duties could have been shifted to her and some other position could have been eliminated. While this may or may not be true, it is not the job of this Court to choose among an employer's reasonable business decisions. See, e.g., Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 780 (8th Cir. 1995) ("[T]he employment-discrimination laws have not vested in the federal courts the authority to sit as super-personnel departments reviewing the wisdom or fairness of the business judgments made by employers, except to the extent that those judgments involve intentional discrimination."); krenik v. County of Le Seuer, 47 F.3d 953, 960 (8th Cir. 1995); Beith v. Nitrogen Products, Inc., 7 F.3d 701, 703 (8th Cir. 1993). As long as Defendants' personnel and business decisions do not discriminate unlawfully, it is for them to determine how the golf program should best be organized. See Taylor v. QHG of Springdale, Inc., 218 F.3d 898, 900-01 (8th Cir. 2000) (affirming summary judgment to employer where hospital applied objective criteria to reorganization, eliminated plaintiff employee's job, and failed to hire her for new supervisor position); Hanebrink v. Brown Shoe Co., 110 F.3d 644, 646 (8th Cir. 1997); Hutson, 63 F.3d at 780 (employee's opinion that different criteria should have been evaluated in RIF case did not constitute evidence of pretext, but rather was merely an attack on the business judgment of the employer).
The difficulty of such an argument is that Plaintiffs scenario would require shifting traditional "pro" duties to the Golf Services Coordinator position. She would thus have to show that she and the pros — whom she is implying received more favorable treatment — were "similarly situated in all relevant respects." Phillips, 216 F.3d at 706 (quoting Lanear, 843 F.2d at 301, with citations omitted in Phillips). See also Scott v. County of Rasey, 180 F.3d 913, 917 (8th Cir. 1999) (a "strong showing" that disparately treated employees are "similarly situated in all relevant respects . . . is required when the only evidence of pretext or discrimination is disparate treatment."). Even construing the evidence favorably to Plaintiff, it is highly doubtful that she could make that showing, because a significant function of the contracted professionals was to teach golf, preferably at a professionally-certified level. Plaintiff was not a member of the PGA or LPGA. When asked (as all candidates were) whether she could teach lessons, Plaintiff responded that she could not. In light of this fact, Defendants may have reasonably decided that it made more sense to have a golfing teacher who could do administrative duties than an administrator who could not teach golf.
As to the selection process for Assistant Manager, Plaintiff makes no assertion that the interview questions themselves reflected discriminatory intent. Rather, Plaintiffs pretext argument is based predominantly on her contention that she placed third in the first round of interviews and therefore should have been given the third open position — the Assistant Manager position that went to Mr. Locher. Plaintiff argues that the committee's decision to do a second round of interviews for the Assistant Manager positions, rather than relying on the ranked scores from the Manager interviews, was merely pretext to prevent her from getting that third position. In support of this allegation, Plaintiff offers no evidence, except her assertion that some of the second-round questions were hand-written, reflecting, according to Plaintiff, the ad hoc quality of the second interview.
The Court notes first that a careful review of the record contradicts Plaintiffs assertion that she came in third in the Clubhouse Manager interview process. Each of the three interviewers gave each candidate an overall score comprising subscores in a series of categories. The three overall scores were then totaled to give each candidate a composite score. The seven candidates were ranked according to their composite scores and the Clubhouse Manager position was offered to that candidate who ranked highest. Plaintiff came in fifth — not third as she contends — in that ranking. It appears that Plaintiff mistook an individual overall ranking with the composite ranking. Although two interviewers ranked Plaintiff third, the composite scores — which constitute the final "ranking" of the candidates — clearly indicate that Plaintiff came in fifth. Thus, Plaintiffs assertion that but for the second interview she should have been given an Assistant Manager position is fatally flawed.
The Court notes for the record that there are numerous addition errors on the score sheets. For example, one interviewer gave a candidate named Mr. Anrico the following category scores: 17, 8, 7, 7, and 10. However, those scores were incorrectly totaled to "39" rather than "49." The other errors are less significant — a matter of two or three points here and there. Despite the errors, the composite ranking remains approximately the same and Plaintiff falls well below third place.
Nor is there anything else in the record to support Plaintiffs allegation that the decision to do a separate round of interviews for the Assistant Manager position was a change in position by the committee. There are separate job descriptions and separate applications for the two positions, and the questionnaires composed by the interview committee clearly reflect different and distinct roles for the Manager and Assistant Manager. Moreover, it is perfectly logical and reasonable that the Clubhouse Manager would want to be involved in the selection process for those Assistants that he would be supervising. Finally, as noted above, Plaintiff makes no allegation that the interview questions were substantively discriminatory and it is undisputed that all the candidates were asked the same questions.
In sum, Plaintiff has failed to adduce sufficient evidence of pretext, and has offered no evidence from which a jury could reasonably infer that age considerations motivated Defendants' actions, and, in fact, the evidence strongly suggests that contrary. See Anderson, 477 U.S. at 251 ("[I]n every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.") (quoting Pleasant v. Fant, 22 Wall. 116, 120-21 (1875)). Accordingly, Defendants are entitled to summary judgment on Plaintiffs federal and state age discrimination claims.
Sex Discrimination
Title VII makes it unlawful for an employer to discriminate against an employee on the basis of, among other things, the individual's sex. See 42 U.S.C. § 2000e-2 (a)(1); see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998). A plaintiff can establish a submissible case of sex discrimination under either the direct evidence framework of Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989), or the indirect, burden-shifting framework of McDonnell Douglas (applied in the ADEA context above). See Breeding v. Gallagher and Co., 164 F.3d 1151, 1156 (8th Cir. 1999) (discussing alternate modes of proof). When a plaintiff puts forth direct evidence that an illegal criterion, such as sex, was used in an employer's adverse employment decision, the Price Waterhouse mixed motive analysis is applied. See id. Under this standard, the burden of persuasion shifts to the defendant to show that it would have made the same employment decision even if it had not taken gender into account. See id.; Kneibert v. Thomson Newspapers, Mich. Inc., 129 F.3d 444, 451 (8th Cir. 1997); Beshears v. Communications Servs., Inc., 930 F.2d 1348, 1353 (8th Cir. 1991) (stating that burden shifts to defendant when plaintiff produces direct evidence that illegitimate criterion played role in employment decision). When a plaintiff is unable to put forth direct evidence of discrimination, the now-familiar burden-shifting analysis of McDonnell Douglas is applied. See Breeding, 164 F.3d at 1156.
Under "the laws of the State of Iowa," Plaintiffs gender claim falls within the Iowa Civil Rights Act ("IRCA"), Iowa Code ch. 216.6. Because Iowa has adopted the federal framework for evaluating discrimination claims under its state law, see Hulme v. Barrett, 449 N.W.2d 629, 631-33 (Iowa 1989), the Court's analysis of Plaintiffs federal claim will govern the state claim as well. See kerns v. Capital Graphics, Inc., 178 F.3d 1011, 1016 n. 3 (8th Cir. 1999); Brine v. Univ. of Iowa, 90 F.3d 271, 274 (8th Cir. 1996); Board of Supervisors of Buchanon County v. Iowa Civil Rights Comm'n, 584 N.W.2d 252, 256 (Iowa 1998) (applying same analysis to federal and state claims).
As a preliminary matter, the Court declines Plaintiffs invitation to apply the Price Waterhouse analysis to this case. See generally, Price Waterhouse v. Hopkins, 490 U.S. 228, 276-77 (1989). At issue is whether the City's employment advertisement for the Clubhouse Manager position is direct evidence of sex discrimination. That advertisement included language to the effect that applicants with "PGA" affiliation would be preferred. The Eighth Circuit defines direct evidence of discrimination as "conduct or statements by persons involved in the decision making process that is sufficient for a factfinder to find that a discriminatory attitude was more likely than not a motivating factor in the employer's decision." Kerns v. Capital Graphics, Inc., 178 F.3d 1011, 1017 (8th Cir. 1999) (citing Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 634 (8th Cir. 1998)). Such evidence might include proof of an admission that gender was the reason for an action, discriminatory references to the particular employee in a work context, or stated hostility to women being in the workplace at all. See Browning, 139 F.3d at 635; Stacks v. Southwestern Bell, 27 F.3d 1316, 1323 (8th Cir. 1994); Rivers-Frison v. Southeast Mo. Community Treatment Ctr., 133 F.3d 616, 619 (8th Cir. 1998); Beshears, 930 F.2d at 1354. However, "[n]ot all comments that reflect a discriminatory attitude will support an inference that an illegitimate criterion was a motivating factor in an employment decision." Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444, 449 (8th Cir. 1993). For example, direct evidence does not include "stray remarks in the workplace," "statements by nondecisionmakers," or "statements by decisionmakers unrelated to the decisional process itself." See Browning, 139 F.3d at 635 (quoting Price Waterhouse, 490 U.S. at 277). The critical inquiry is, in essence, whether the conduct or comments demonstrate a "discriminatory animus in the decisional process." Price Waterhouse, 490 U.S. at 278 (O'Connor, J., concurring).
There is no copy of the newspaper advertisement in the record. According to Plaintiff, the advertisement included the following comment: "Professional Golf Association (PGA) status preferred." (Pl's Resistance Brief, doc. no. 53, tab 6, at 7).
Plaintiff argues that the advertisement is tantamount to an admission that gender considerations were driving the selection process. The Court disagrees. First, the wording is not discriminatory on its face. The PGA comprises male and female members, and it appears that both can be certified as teaching professionals. See Def.'s exh. 5, "PGA.com: the official website of The PGA of America" (stating that "[s]ince its inception the PGA has grown into the largest sports organization in the world with over 23,000 men and women golf professionals."). Second, as the job description and interview questionnaires make clear, those selected to management positions were expected to be versed in all facets of golf, including teaching. In light of these facts, the advertisement can be read as merely an inartful attempt to emphasize that aspect of the job. The advertisement does not imply that Defendants were looking for a male golfer but rather that they were looking for a golfer with confirmed teaching credentials and affiliation with a professional golfing association — be it PGA, LPGA or an equivalent. And finally, even if one read the advertisement to state a preference for males, there is no evidence that the selection process itself — conducted by a gender-mixed interview committee asking standardized questions related to job duties — was "tainted" by that message. Cf. Simmons v. OCE-USA, Inc., 174 F.3d 913, 916 (8th Cir. 1999) ("Absent a causal link between the [discriminatory] comments and the adverse employment decision, supervisor's derogatory language is best classified as `statement[s] by [a] decisionmaker unrelated to the decisional process.'") (quoting Rivers-Frison, 133 F.3d at 619)). This is not to say that the advertisement's wording will not be relevant to other aspects of this Court's analysis. It is merely to acknowledge that the direct evidence bar is relatively high, and the language here is insufficient to trigger it.
The appropriate framework, then, is the McDonnell Douglas burden-shifting paradigm, and because Plaintiffs gender discrimination claim largely parallels her age claim, the Court will, where appropriate, refer back to that discussion. The Court assumes that Plaintiff can establish a prima facie case of gender discrimination. See Breeding, 164 F.3d at 1156; Lyoch v. Anheuser-Busch Co., 139 F.3d 612, 614 (8th Cir. 1998) (defining the prima facie case in Title VII context). In response, Defendants maintain that Plaintiffs discharge was the result of legitimate reorganization and that the subsequent hiring decisions were based on the relative assessment of candidates after a neutral and standardized evaluation process. As previously concluded, these explanations are more than sufficient to satisfy Defendants' stage two burden, and the Court will now turn to Plaintiffs pretext showing.
As to Plaintiffs termination in April, 1996, there is no difference between the Court's analysis of Plaintiffs age claim and the gender claim asserted here, and Plaintiff accordingly cannot meet her burden to show that Defendants' explanation for the termination — reorganization of the golf program — was pretextual. As to Defendants' failure to hire Plaintiff to a management position, the only additional evidence is the advertisement which, as discussed above, is facially neutral and therefore does not necessarily support an inference of pretext. And it certainly is not enough to raise a genuine issue as to whether Defendants' conduct was actually motivated by unlawful discrimination. See Rothmeier, 85 F.3d at 1336 ("The focus . . . always remains on the ultimate question of law: whether the evidence is sufficient to create a genuine issue of material fact as to whether the employer intentionally discriminated against the plaintiff. . . ."); see also Celotex Corp., 477 U.S. at 323 (if a party fails to make a sufficient showing of an essential element of a claim with respect to which that party has the burden of proof, then the opposing party is "entitled to judgment as a matter of law").
In Reeves, the Supreme Court clarified that there will be cases where a pretext showing is inadequate to defeat a summary judgment motion:
Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if . . . the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. . . . To hold otherwise would be effectively to insulate an entire category of employment discrimination cases from review under Rule 50 [and by analogy, Rule 56], and we have reiterated that trial courts should not `treat discrimination differently from other ultimate questions of fact.'
In Reeves, the matter on review before the Supreme Court was a Rule 50 motion for judgment as a matter of law. However, "the standard for granting summary judgment `mirrors' the standard for judgment as a matter of law, such that `the inquiry under each is the same.'" Reeves, 120 S.Ct. at 2110 (quoting anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986)).
120 S.Ct. at 2109 (internal citations omitted). This is just such a case. The probative value of Plaintiffs pretext showing, if not inexistent, is decidedly weak. And, as discussed in conjunction with the ADEA claim, Plaintiff has shown no reason to doubt that Defendants' employment decisions with regard to Plaintiff were based on anything other than neutral criteria. See Taylor v. QHG of Springdale, 218 F.3d 898, 900-01 (8th Cir. 2000) (applying Reeves, and finding pretext showing insufficient in RIF case where employee essentially argued that she should have been considered for subsequent openings even though those positions called for slightly different skills); Tatom v. Georgia-Pacific Corp., 228 F.3d 926, 932 (8th Cir. 2000) (applying Reeves, and concluding that "no rational jury could find that [employee's] suspension was the result of intentional discrimination"); Palesch v. Missouri Commission on Human Rights, 2000 WL 1724979, *7 (8th Cir. 2000) (same). Accordingly, Defendants are entitled to summary judgment on Plaintiffs federal and state sex discrimination claims.
Retaliatory Discharge
Plaintiffs claim of retaliatory discharge under Title VII fails both procedurally and on the merits. To establish a prima facie case of retaliation, Plantiff must show that she engaged in statutorily protected activity, that Defendants took adverse action against her, and a connection between the two. See Montandon v. Farmland Industries, Inc., 116 F.3d 355 359 (8th Cir. 1997) (applying burden-shifting framework of McDonnell Douglas to retaliation claims under Title VII). Plaintiff states in her complaint that Defendants' employment actions — the decisions to discharge Plaintiff and not to hire her for a management position — were in retaliation for Plaintiffs "investigation of the Parks Department's hiring policies and compensation practices." (Doc. no. 1, ¶ 31). At no time since has Plaintiff adduced any facts that would support this charge or even permit the Court to determine to what extent Plaintiff has engaged in statutorily protected conduct. See 42 U.S.C. § 2000e-3 (a) and Iowa Code 216.11(2) (explaining that remedy for retaliation extends only to statutorily protected conduct).
Plaintiff refused to cite any supporting facts in response to Defendants' interrogatory on this claim, (doc. no. 44, attached Interrogatory No. 9), and did not address this claim in her brief in resistance to summary judgment.
Plaintiff did file timely charges with the Iowa Civil Rights Commission (ICRC) and the Equal Employment Opportunity Commission (EEOC) contesting both her termination and her failure to be hired for a management position, and those filings would of course constitute protected conduct. However, Plaintiff has offered no evidence whatsoever to establish a causal connection between that protected activity — the filings — and the adverse employment actions. The record is not clear on this point, but it appears that both adverse employment actions occurred prior to Plaintiffs filing of charges with the ICRC and the EEOC. If that is the case, then no causal inference whatsoever may be drawn from those filings in support of Plaintiffs retaliation claim.
The wording of Plaintiffs complaint suggests that she did not intend the filing of discrimination charges to serve as the basis of her retaliation claim. However, because Plaintiff has failed to elucidate her complaint, the Court will address the relevance of those administrative filings to the retaliation claim.
The "no probable cause" letters from the ICRC and EEOC were issued on August 5 and October 10, 1997, respectively. Neither in these letters nor elsewhere in the record is there evidence as to the specific date or dates on which the charges were filed.
Rule 56 of the Federal Rules of Civil Procedure provides that:
When a motion for summary judgment is made and supported . . ., an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
Fed.R.Civ.Pro. 56(e); Lujan v. National Wildlife Federation, 497 U.S. 871, 872 (1990) (citing Celotex, 477 U.S. at 322); Bailey v. U.S. Postal Service, 208 F.3d 652, 654 (8th Cir. 2000). Plaintiff has set forth no specific facts in support of her retaliation claim, and the record, as it stands, will not support a prima facie case. Therefore, summary judgment in Defendants' favor is warranted. See, e.g., Alexander v. Pathfinder, Inc., 189 F.3d 735, 741 (8th Cir. 1999) (finding that claim failed at summary judgment for lack of specificity under 56(e) burden); Jetton v. McDonnell Douglas Corp., 121 F.3d 423, 427 (8th Cir. 1997) (applying 56(e) production burden to find summary judgment for movant); Mudlitz v. Mutual Service Insurance Companies, 75 F.3d 391, 395 (8th Cir. 1996) (finding summary judgment properly entered where nonmovant failed to meet "specific facts" burden under 56(e)). Moreover, as the Court's prior discussion makes clear, Plaintiff has failed to present adequate evidence that Defendants' proffered explanations were pretextual, and absent any additional relevant evidence, that finding extends to her retaliation claim as well. See Montandon v. Farmland Indus., Inc., 116 F.3d 355 359 (8th Cir. 1997) (granting summary judgment to employer on retaliation claim where, assuming prima facie case, plaintiff unable to present sufficient evidence to raise issue as to veracity of employer's explanation for adverse employment action); Stevens v. St. Louis Univ. Med. Ctr., 97 F.3d 268, 272 (8th Cir. 1996) (finding plaintiffs failure to carry burden of proving pretext relevant to summary judgment on retaliation charge absent any separate evidence supporting retaliation).
42 U.S.C. § 1983In light of the deficiencies in Plaintiffs section 1983 claims, both procedurally and on the merits, the Court need not engage in a lengthy discussion of those charges. The Court notes, initially, its difficulty in determining Plaintiffs asserted bases for her section 1983 claim. Plaintiffs claim appears to rest on the failure to hire charge, see doc. no. 1, ¶ 35; however, in the interest of completeness, the Court will assume that Plaintiff intended to cite her discharge as a supporting element as well. See doc. no. 44, addendum: Pl's response to Def.'s interrogatory no. 7 ("the promotion, termination, and retaliatory actions violated Plaintiffs rights under the due process and equal protection clauses"). Plaintiff cursorily alleges Equal Protection and Due Process violations, see id. at ¶ 36, but has offered no facts in support of the latter claim. Plaintiff failed to meaningfully respond to Defendants' interrogatory as to the specific facts underlying Plaintiffs section 1983 claim, and failed to address the Due Process issue in her resistance brief. As an at-will employee, Plaintiff had no protected property interest in her employment, see Roark v. City of Hazen, Ark., 189 F.3d 758, 761 (8th Cir. 1999) (citing Johnson v. City of West Memphis, 113 F.3d 842, 843 (8th Cir. 1997)), and she has not established that she possessed a liberty interest that was violated by her termination. See Roarke, 189 F.3d at 761 (citing Singleton v. Cecil, 176 F.3d 419, 424-29 (8th Cir. 1999) (en banc) (holding that an at will employee's termination did not deprive employee of liberty interest)). As noted earlier, Plaintiff has an obligation under Federal Rule of Civil Procedure 56(e) to go beyond her pleading in response to a properly supported motion for summary judgment. See Fed.R.Civ.Pro. 56(e); Lujan, 497 U.S. at 872 (citing Celotex, 477 U.S. at 322); Bailey, 208 F.3d at 654. Plaintiff has failed to do so here, and in light of the record as it presently stands the Court has no choice but to grant summary judgment to Defendants on Plaintiffs due process claim.
Plaintiffs complaint, Count V, ¶ 35, reads:
The actions of Defendant Clancey in failing to promote Ms. Grant, the actions of Defendants Hughes, Lavrenz, and Doe, were in deliberate indifference to Ms. Grant's constitutional rights, and constitute the official custom, policy and practice of Defendant City. [emphasis added].
In response to Defendants' request for specific facts underlying Plaintiffs 42 U.S.C. § 1983 claim, Plaintiffs substantive response consists of the following:
Plaintiff states that the Defendants City and Clancey, Hughes, and Lavernz (policy makers and decision makers) violated 42 U.S.C. § 1983 on the basis of her race and sex, where the promotion, termination, and retaliatory actions violated Plaintiffs rights under the due process and equal protection clauses of the 14th Amendment.
Doc. no. 44, addendum: Pl's response to Def.'s interrogatory no. 7.
Having so concluded, the Court need not address Defendants Hughes and Lavrenz' qualified immunity defense as it applies to Plaintiffs due process claim under 42 U.S.C. § 1983. The qualified immunity inquiry is two-fold; only after a plaintiff properly asserts a violation of a constitutional or statutory right need the Court determine whether the defendant has a viable immunity defense. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Sexton v. Martin, 210 F.3d 905, 909 (8th Cir. 2000). Because Plaintiff has not properly asserted a due process violation, the Court need not undertake the immunity analysis.
Plaintiffs Equal Protection claim also fails summary judgment review. To sustain an Equal Protection claim, Plaintiff must present evidence that she was singled out and treated differently, on the basis of a prohibited characteristic, from persons similarly situated. See Ellebracht v. Police Bd. of Metro. Police Dep't of St. Louis, 137 F.3d 563, 566 (8th Cir. 1998); Roarke v. City of Hazen, Arkansas, 189 F.3d 758, 761 (8th Cir. 1999) (affirming grant of summary judgment to defendant on section 1983 equal protection claim); Ellebracht v. Police Bd. of Metro. Police Dep't. of St. Louis, 137 F.3d 563, 566 (8th Cir. 1998). From the record, it appears that Plaintiffs most likely argument would be one based on gender. However, absent a threshold showing that she is similarly situated to those who allegedly received favorable treatment, Plaintiff does not have a viable Equal Protection claim. See Arnold v. City of Columbia, Mo., 197 F.3d 1217, 1220 (8th Cir. 1999) ("To prove their equal protection claim [based on disparate pay], appellant [police officers] were required, as a threshold matter, to demonstrate that they were treated differently from others similarly situated to them."); Keevan v. Smith, 100 F.3d 644, 648 (8th Cir. 1996) ("Treatment of dissimilarly situated persons in a dissimilar manner by the government does not violate the Equal Protection Clause."). This inquiry focuses on whether the plaintiff is "similarly situated in all relevant respects" to another group for purposes of the challenged government action. Williams v. Ford Motor Co., 14 F.3d 1305, 1309 (8th Cir. 1995) (quoting Smith v. Monsanto Chemical Co., 770 F.2d 719, 723 (8th Cir. 1985)); Klinger v. Department of Corrections, 31 F.3d 727, 731 (8th Cir. 1994), cert. denied, 513 U.S. 1185 (1995).
Plaintiffs Equal Protection claim cites discriminatory treatment based on age, race, and sex. See Pl's Complaint, ¶ 36, and Pl.'s Response to Def.'s Interrogatory No. 7 (doc. no. 44, addendum). The Court's discussion and conclusions herein with regard to gender apply equally to an equal protection challenge based on age, and, as noted earlier, the race claim was expressly abandoned. See footnote 1, supra. To the extent that Plaintiff, in her Statement of Disputed Material Facts, (doc. no. 53, tab 5), filed on September 26, 2000, suggests that correspondence received from Defendant Louvar demonstrates religious bias against Plaintiff, the Court notes that at no time has Plaintiff alleged religious discrimination as a basis for any claim. Thus, the Court will review the record only for evidence relevant to those claims properly pled.
Here, Plaintiff is challenging the Defendant City's decision to terminate her and its decision to pass her over when hiring new management personnel. Plaintiff did not brief her equal protection claim and has adduced no additional or distinct evidence in support of that claim. After reviewing the record in its entirety and granting all favorable inferences to Plaintiff, the Court concludes that Plaintiff has failed to raise a genuine issue of material fact on the threshold question of whether she was actually subjected to different treatment than similarly situated males. Plaintiff was one of seven candidates selected for interview from among twenty applicants. All candidates were asked the same questions by the same interviewers (two males and two females) who took notes and individually ranked each applicant. There is no allegation that the questions were substantively discriminatory, or that the committee's inquiries into the candidates' qualifications for teaching golf were designed to weed out female applicants. Plaintiff herself conceded the importance of professional golf instruction to the City's golf operations, see Def.'s exh. T (1995 Memoranda written by Plaintiff urging City to hire a PGA professional under contemplated new management plan), and the record shows that Plaintiff was the only one of the candidates not qualified to teach golf. Under the circumstances of this case — where there is no evidence to suggest that the discharge and hiring processes were anything but neutral — Plaintiffs failure to demonstrate that she was similarly situated to male employees retained or hired following the reorganization is fatal to her equal protection challenge. See Williams, 14 F.3d at 1309-10 (placing threshold burden squarely on plaintiff). Accordingly, Defendants are entitled to summary judgment on Plaintiffs equal protection claim as well.
There is no indication as to the gender makeup of the twenty applicants, but Plaintiff was the only woman among the seven selected for interviews. In the Title VII context, this Court held that Plaintiffs selection for interview was sufficient to demonstrate her qualifications and similarity to those ultimately hired for purposes of her prima facie case. However, as the Court's subsequent pretext discussion made clear, the meaning of "similarly situated" varies according to the context in which it is used, and the more generous definition is generally restricted to the first stage of the McDonnell Douglas analysis. See Williams v. Ford Motor Co., 14 F.3d 1305, 1309-10 (8th Cir. 1995) (finding prima facie case of discrimination but granting summary judgment to employer where record was "devoid of any evidence" that reinstated employees were similarly situated to plaintiff in all relevant respects). It is the latter, more fact-sensitive standard that applies to Plaintiffs threshold burden in an equal protection challenge under 42 U.S.C. § 1983. See, e.g., Arnold v. City of Columbia, Mo., 197 F.3d 1217, 1220 (8th Cir. 1999); Roark v. City of Hazen, Ark., 189 F.3d 758, 761 (8th Cir. 1999); Klinger, 31 F.3d at 731.
As the Court discussed in the Title VII context, Plaintiff has presented no evidence in support of her contention that the City's stated PGA preference classified individuals according to gender. The PGA comprises male and female members, and offers teaching certification to both. Absent any additional evidence of gender discrimination, the Court must construe the advertisement in that context, symbolizing a preference for a specific skill — professional golf certification — considered integral to the open position. Thus, the newspaper advertisement alone is insufficient to raise a genuine issue as to gender discrimination.
Conclusion
In conclusion, the Court finds that Defendants' motion for summary judgment should be granted in full. Plaintiff has failed to demonstrate that Defendants' proffered reason for terminating her employment — that reorganization made her position unnecessary — was pretextual. Nor has Plaintiff demonstrated that Defendants' subsequent failure to hire her for newly-created positions constituted discrimination. Therefore, Plaintiffs gender and age discrimination claims fail under Title VII, the ADEA, and chapter 216 of the Iowa Code. Because Plaintiff has not established a prima facie case of retaliatory discharge, that claim also fails. And finally, because there is no evidence in the record to support Plaintiffs allegation that Defendants engaged in age- or sex-based discriminatory policies and practices, summary judgment will be granted to Defendants on that claim as well.
ORDER
Accordingly, it is ORDERED:
Defendants' motion for summary judgment (doc. no. 40) is GRANTED.