Opinion
CTVIL ACTION NO 3:01-CV-0152-P
January 6, 2004
MEMORANDUM OPINION AND ORDER
Now before the Court is the Motion for Summary Judgment filed by Defendant Tom Ridge, Secretary, Department of Homeland Security on August 18, 2003. Plaintiff filed her Response on August 29, 2003, and an Amended Response on October 20, 2003. Defendant filed its Reply to Plaintiff's Amended Response on November 4, 2003. After considering the parties' arguments and briefing, and the applicable law, the Court GRANTS Defendant's Motion for Summary Judgment as to each of Plaintiff's claims against it.
The Department of Homeland Security, the employer in this case, is represented by Secretary Tom Ridge, named in his official capacity as head of the Department. Secretary Ridge, the named Defendant, and the Department will be collectively referred to as "the Defendant."
I. Background and Procedural History
Plaintiff Clara Patrick ("Plaintiff) is a sixty-five year old female. Appendix to Plaintiff's Response to Defendant's Motion for Summary Judgment, Ex. 1 ("Pl.'s Aff.") at ¶ 6. In 1989, she began employment with the Central Region Administrative Center (the "CRAC") for the Immigration and Naturalization Service ("INS") in Dallas, Texas as a Contracting Officer and Realty Specialist. Plaintiff's First Amended Complaint, pp. 4-5. Although she began at a GS-11 pay grade, Plaintiff was subsequently upgraded to a GS-12 pay grade for the same position in 1993. Id. As a Contracting Officer and Realty Specialist, Plaintiff was responsible for locating and obtaining the necessary realty needs of the INS and, later, the Department of Homeland Security. Pl's Aff. at ¶ 9.
When Plaintiff began working at the CRAC, she was an employee of the Immigration and Naturalization Service. However, in March 2003, the interior enforcement functions of the INS were transferred to the Bureau of Immigration and Customs Enforcement, a division of the Department of Homeland Security ("DHS").
Sometime in 1999, a GS-13 Supervisory Realty Specialist ("SRS") position became available. Id. at ¶¶ 6, 8. The SRS was the first-line supervisor to the non-supervisory Realty Specialists, and was responsible for real estate and leasing project management at the CRAC. App. to Pl.'s Resp. to Def.'s Mot. For Summ. J., Ex. 1, p. 20 ("SRS Info. Sheet"). Plaintiff applied for the position, but Lisa Ann Bokun was selected over her. Pl's Aff. at ¶ 8. Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission with respect to this non-selection, claiming that she was denied the promotion on the basis of her age. Id. Later, in August 2001, the SRS position became available again. Id. at ¶¶ 6, 8. Applications were accepted from August 17 to 31, 2001 (the "First Application Period"), and Plaintiff once more applied for the position. Id. at ¶ 8; Appendix to Defendant's Motion for Summary Judgment, Ex. 1 ("Pomplun Decl.") at ¶ 6. At the time of her application, Plaintiff had over 12 years of experience as a Realty Specialist at the INS, and had actually served as acting SRS on several occasions. Pl's Aff. at ¶¶ 6, 12.
Plaintiff, who was born in 1938, was over forty years of age at the time she applied for the SRS position in 1998. Bokun is more than ten years younger than Plaintiff.
Upon completion of the First Application Period, the Human Resources department produced a list of the best qualified candidates, and submitted the list to a three member panel for further consideration. Pomplun Decl. at ¶ 8. The panel consisted of Daniel A. Pomplun, Director of the Facilities and Engineering Division at the CRAC, Robert Gawel, Assistant Director of the CRAC, and Bokun, whose reassignment to Special Assistant to the Director of the CRAC created the SRS vacancy. App. to Def.'s Mot. For Summ. J., Ex. 2 ("Gawel Decl.") at ¶ 4. Of the three panel members, Pomplun was the "selecting official," and was ultimately responsible for the "final selection decision." Pomplun Decl. at ¶ 8.
Plaintiff was rated as "qualified" by the Human Resources department, and was one of the candidates selected to be interviewed by the panel. Pomplun Decl. at ¶ 8. The panel rated each candidate interviewed on the basis of "how the candidate responded to a uniform set of questions . . ., the strengths of each candidate, and how the panelist felt each candidate would fit into [the] work group." Id. The panel ultimately concluded that none of the candidates from the First Application Period, including Plaintiff, was "sufficiently suited" for the position. Id. at ¶ 9. Consequently, the application process was re-opened in October 2001 (the "Second Application Period"). Id. at ¶ 6.
At about the time of the Second Application Period, Gawel contacted Margaret Hartigan and discussed with her the SRS position. Id. at ¶ 9; Gawel Decl. at ¶ 8. Hartigan was a GS-13 pay grade employee working at the General Services Administration, and had "considerable experience working with INS on Facilities matters, and had a broad based background in realty and construction." Gawel Decl. at ¶ 8. Because she was already a GS-13 level employee and she met the basic qualifications for the SRS position, Hartigan was classified as a non-competitive candidate. Id. at ¶ 9. As a non-competitive candidate, Hartigan was allowed to apply for the SRS position at any time prior to selection, and was not required to go through the standard interview before the panel. Id. After Gawel's discussion with her, Hartigan formally applied for the SRS position, and was interviewed individually by Pomplun. Id. After discussing Hartigan's qualifications with Keith Roemeling, the Director of the CRAC, Pomplun selected Hartigan to fill the SRS position. Id.; Pomplun Decl. at ¶ 9. At the time of her selection, Hartigan was 42 years old. Pl.'s First Amend. Compl. at pp. 6-7.
In her original Complaint, Plaintiff brought an age discrimination claim against Defendant arising out of her non-promotion in 1999 (the "1999 claim"). The Court granted summary judgment in favor of the Defendant with respect to the 1999 claim in its June 11, 2002 Memorandum Opinion and Order. However, on March 21, 2002, Plaintiff had filed a First Amended Complaint, adding two additional claims against Defendant. First, Plaintiff claimed that Defendant discriminated against her on the basis of her age when she was not selected for the SRS position in 2001. Second, Plaintiff also claimed that her non-selection was in retaliation for her prior protected activities. Defendant now moves for summary judgment as to each of Plaintiff's remaining claims against it.
Plaintiff's First Amended Complaint states: "The selection of Ms. Hartigan over Plaintiff violated the Age Discrimination in Employment Act as applicable to federal employees because it was motivated by Plaintiff's age. Absent notice to the contrary, however, Plaintiff will pursue this claim through administrative processing by the agency rather than adding it to this lawsuit." Pl.'s First Amend. Compl. at p. 7. Plaintiff has not filed any other amended pleadings in this case, and it is not clear whether the administrative processing of Plaintiff's EEOC complaint arising out of the 2001 non-promotion has completed, or if she has received a right to sue letter from the EEOC. Nonetheless, Defendant has not challenged the jurisdiction of the Court to hear this claim, and has briefed the claim in its Motion for Summary Judgment as if it was properly before the Court. Accordingly, the Court will rule on the merits of the claim based on the briefing of the parties.
In addition to the EEOC claim she filed with respect to her non-selection in 1999, Plaintiff also filed an earlier EEOC claim with regard to a negative performance evaluation she received.
II. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. Celotex, 471 U.S. at 323.
Once the moving party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party defending against the motion for summary judgment cannot defeat the motion unless she provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent summary judgment. Id. at 248-50; Abbott v. Equity Group, 2 F.3d 613, 619 (5th Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to her case, and on which she bears the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
Finally, the Court has no duty to search the record for triable issues. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). "The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which the evidence supports his or her claim." Id. A party may not rely upon "unsubstantiated assertions" as competent summary judgment evidence. Id.
III. Plaintiff's ADEA Claim
Plaintiff claims that she was discriminated against in violation of the Age Discrimination in Employment Act of 1967 ("ADEA") when she was denied promotion to the SRS position. See 29 U.S.C. § 621, et seq. (2003). The same burden-shifting framework set forth by the Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), for Title VII cases is applicable to claims brought under the ADEA. See O'Conner v. Consol. Coin Caterers Corp., 517 U.S. 308, 311 (1996); Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 n. 4 (5th Cir. 1993).
a. The McDonnell Douglas Framework
Under the McDonnell Douglas framework, a prima facie case of discrimination in a failure to promote case may be established if the plaintiff proves that (1) she belongs to a protected class; (2) she was qualified for the job she sought; (3) despite her qualifications, she was rejected; and (4) after she was rejected, the employer promoted, hired, or continued to seek applicants with her qualifications. See generally McDonnell Douglas, 411 U.S. at 801-03; Medina v. Ramsey Steel Co., 238 F.3d 674, 680-61 (5th Cir. 2001); Grimes v. Texas Dept. of Mental Health and Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996). Because she claims discrimination based on her age, Plaintiff may alternatively satisfy the fourth element by showing that she "was either (a) replaced by someone outside the protected class, (b) replaced by someone younger, or (c) otherwise discriminated against because of [her] age. Brown v. Bungee Corp., 207 F.3d 776, 781 (5th Cir. 2000). The prima facie case, once established, raises a presumption of discrimination which the defendant must rebut by articulating legitimate, nondiscriminatory reasons for the plaintiff's rejection. See Medina, 238 F.3d at 680. This burden on the employer is only one of production, not persuasion, involving no credibility assessments. See Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000).
If the employer carries its burden, the mandatory inference of discrimination created by the prima facie case drops out of the picture. Id. In order to survive summary judgment, a plaintiff must then "raise a genuine issue of material fact as to whether the employer's proffered reason was merely a pretext for age discrimination." Id. (citing Lindsey v. Prive Corp., 987 F.2d 324, 326 (5th Cir. 1993)). The plaintiff may do so "by providing evidence that [s]he was `clearly better qualified' than the employee selected for the position at issue." Celestine v. Petroleos de Venez. SA, 266 F.3d 343, 356-57 (5th Cir. 2001). The key issue is "whether the employer's selection of a particular applicant over the plaintiff was motivated by discrimination, and evidence of the plaintiff's superior qualification is thus probative of pretext." Id.
b. Plaintiff's Prima Facie Case
Defendant contends that Plaintiff has failed to establish a prima facie case of age discrimination because she has not demonstrated that her rejection was motivated by unlawful age discrimination. However, under the McDonnell Douglas framework, a plaintiff is not required to establish discriminatory motive at the prima facie case stage. Rather, the prima facie case by itself raises a mandatory inference of discrimination, and a plaintiff's burden does not extend beyond having to establish each element of the prima facie case. See Reeves v. Sanderson Plumbing, 530 U.S. 133, 142-43 (2000); Smith v. City of Jackson, 2003 U.S. App. LEXIS 23125, *39, n. 15 (5th Cir. 2003). In this case, Plaintiff has established each element of her prima facie case of age discrimination: (1) she is a member of a protected class, (2) she was qualified for the SRS position, (3) she did not receive the SRS position, and (4) Defendant continued seeking applicants with her qualifications, and the SRS position ultimately went to someone who was younger than she. Therefore, under the McDonnell Douglas framework, the burden shifts to the Defendant, who must articulate a legitimate, non-discriminatory reason for choosing Hartigan rather than Plaintiff for the SRS position.
c. Defendant's Legitimate, Non-Discriminatory Reason
Defendant claims that Plaintiff was not selected for promotion because Hartigan was the best-qualified candidate for the position. In support of this decision, Pomplun cited to Hartigan's thorough knowledge of the GSA practices and pricing structure, her involvement in several joint INS and GSA initiatives, and her in depth experience in leasing. See Pomplun Decl. at ¶ 11. In addition, Hartigan had served as a GS A Regional Account Manager, and in this capacity had provided project management support for INS Facilities projects. Id. Finally, Pomplun noted Hartigan's "inside corporate knowledge" of the lease acquisition process, as well as her experience in Repair and Alteration, Design and Construction, and Contracting. Id. Gawel, who first approached Hartigan about the SRS position, further testified that he first considered her because he knew of her "considerable experience working with INS on Facilities matters," and her "broad based background in realty and construction." Gawel Decl. at ¶ 8.
Plaintiff contends that Defendant has not met its burden to articulate a legitimate, non discriminatory reason for not selecting her for promotion. She argues that "to claim . . . Plaintiff, who was clearly qualified as a result of her experience, training, and actual knowledge of the department in which she would be working, was not `sufficiently suited for the position' is not a legitimate, non-discriminatory reason for [Defendant's] actions." Pl.'s Resp. to Def.'s Mot. For Summ. J., p. 7. Defendant claims that none of the candidates from the First Application Period was "sufficiently suited" for the position. According to Pomplun, candidates were evaluated not only on the basis of work experience and credentials, but also on "how, each candidate would fit into [the] work group." Pomplun Decl. at ¶ 8. Thus, even if Plaintiff had sufficient experience, training, and actual knowledge of the SRS position, other factors may have caused her not to be "sufficiently suited" for the position.
In addition to its claim that none of the First Application Period candidates were sufficiently suited for the SRS position, Defendant also asserts that Hartigan was the best-qualified candidate. Plaintiff argues that this also "cannot [sic] be the articulated legitimate non-discriminatory reason . . ., because [Hartigan] was not being considered at the time Plaintiff was deemed not suited for the position." Pl.'s Resp. to Def.'s Mot. For Summ. J., p. 7. While it is true that Hartigan was not being considered at the same time as Plaintiff, this has no bearing on Defendant's legitimate, non-discriminatory reason for its actions. According to Defendant, at the time the candidates from the First Application Period were being considered, the panel concluded that none of them was sufficiently suited for the position. Subsequently, Pomplun selected Hartigan for the position because he felt she was the best-qualified of all the candidates he had considered. The Court finds that Defendant has articulated a legitimate, non-discriminatory reason for its decision not to promote Plaintiff. Under the McDonnell Douglas framework, the burden shifts back to the Plaintiff, who, in order to survive summary judgment, must raise a genuine issue of material fact as to whether Defendant's proffered reason was merely a pretext for age discrimination.
d. Pretext
A plaintiff may create a fact issue as to whether an employer' s legitimate, non-discriminatory reason is a pretext for discrimination "by providing evidence that [s]he was `clearly better qualified' than the employee selected for the position at issue." Celestine, 266 F.3d at 356-57 (5th Cir. 2001). Plaintiff asserts that "the differences between her credentials and those of [Hartigan] are so favorable to her that there can be no dispute among reasonable persons of impartial judgment that [she] was clearly better qualified" for the SRS position. Pl.'s Resp. to Def.'s Mot. For Summ. J., p. 11. In support of this assertion, Plaintiff points to her qualifications and accomplishments at the time of her application for the SRS position: (1) she owned and operated her own realty appraisal business, (2) she had a college degree in Business Education, and had begun taking classes for a Masters in Business Education, (3) she had a real estate license, (4) she had 27 years of experience directly dealing with realty as an employee of the federal government, (5) she had over 12 years experience as a Realty Specialist with the INS at the ADC, (6) as a Realty Specialist, she had been the acting SRS on several occasions, (7) she had a contracting warrant which allowed her to enter into leases and contracts without prior approval, (8) because of her contracting authority, she had direct experience supervising the work of her co-workers, (9) she had received positive performance evaluations, (10) she had extensive experience in construction projects with GSA, and (11) she had been directly involved in INS realty projects worth over $120,000,000. See Pl.'s Aff. at ¶¶ 11-16.
According to the information sheet for the SRS position, all applications for the position were to be rated based on the following knowledge, skills, and abilities:
(1) Knowledge of real estate principles, laws, practices, and processes and federal real estate acquisition, appraisal, management, disposal, planning, and control functions. (2) Ability or demonstrated potential to lead, manage, and execute a real property program. (3) Demonstrated ability to interact with high level field and Headquarters personnel, other government agencies, and the private sector concerning all aspects of a real property program. (4) Ability to communicate effectively orally and in writing. SRS Info. Sheet
In addition, the information sheet lists the duties of the SRS position as centering primarily on the planning, managing, and supervising of real estate and leasing projects. Id. Further, Pomplun testified that he also considered each candidate's interview performance, and how he felt each candidate would fit into the work group. See Pomplun Decl. at ¶ 8.
Plaintiff's contention that she was "clearly better qualified" for the SRS position is largely conclusory, and is not sufficient for her ADEA claim to survive summary judgment. Although the litany of "qualifications" she cites to indicates that she has had extensive experience in real estate, this alone does not make her a "clearly better candidate" for the SRS position. The SRS position is primarily a supervisory one, and knowledge and experience in real estate is but one of several qualifications for the job. In addition, the information sheet for the position makes clear that interaction with other entities, leadership, and communication were also important qualifications. At best, Plaintiff has demonstrated that she had more experience in realty and as a Realty Specialist than Hartigan. However, this alone does not show that she was a "clearly better qualified" candidate for the SRS position. As noted by Pomplun and Gawel, Hartigan's experience as a GSA Regional Account Manager and her prior involvement in joint GSA-INS ventures were among the reasons she was selected for the position.
It is well-established that the employment discrimination laws are "not intended to be a vehicle for judicial second-guessing of employment decisions nor . . . to transform the courts into personnel managers." EEOC v. Louisiana Office of Community Servs., 47 F.3d 1438, 1448 (5th Cir. 1995). "Federal Courts `do not sit as a super-personnel department that reexamines an entity's business decisions,'" and the Court will not do so in this case. Elrod v. Sears, Roebuck Co., 939 F.2d 1466, 1470 (11th Cir. 1991) (quoting Mechnig v. Sears, Roebuck Co., 864 F.2d 1359, 1365 (7th Cir. 1988)). Defendant has asserted that Hartigan was selected for the promotion because she was the best-qualified candidate, and Plaintiff has not raised a fact issue as to whether Defendant's proffered reason was a pretext for discrimination. Plaintiff has not demonstrated that she was a "clearly better qualified" candidate than Hartigan, nor has she presented any evidence that the real motivation for Defendant's actions was age discrimination. Accordingly, Defendant's Motion for Summary Judgment with respect to Plaintiff's ADEA claim is hereby GRANTED.
III. Plaintiff's Retaliation Claim
Under Title VII, an employer is prohibited from retaliating against employees who engage in protected conduct, such as filing a charge or complaint of discrimination. See 42 U.S.C. § 2000e-3 (a). To make out a prima facie case of retaliation, a plaintiff must show: (1) she engaged in a protected activity; (2) she suffered an adverse employment action; and (3) a causal nexus exists between the protected activity and the adverse employment action. See Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002). The prima facie case establishes an inference of retaliatory motive that the employer can rebut by producing evidence of a legitimate, non-retaliatory reason for the adverse action. See Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 2001). If the employer produces such evidence, summary judgment is appropriate unless the plaintiff can present evidence demonstrating that the employer's rationale is pretextual. Id. Plaintiff claims that the Defendant retaliated against her by not selecting her for promotion to the SRS position.
a. Plaintiff's Prima Facie Case
Defendant claims that Plaintiff has failed to show a prima facie case of retaliation because, at her deposition, she testified that she believed she was retaliated against only because she complained about programming documents involving Hartigan. App. to Def.'s Mot. For Summ. J., Ex. 4 ("Pl.'s Dep.), p. 46, In. 17-25. Defendant correctly notes that complaints about programming documents are not protected activities under Title VII, and if Plaintiff's deposition testimony was the only evidence before the Court, summary judgment might be appropriate. However, notwithstanding the limiting statements made at her deposition, Plaintiff's brief in response to Defendant's Motion for Summary Judgment claims that she was also retaliated against for EEOC complaints she had previously filed. Complaints filed with the EEOC are clearly protected activities, and the Court finds that Plaintiff has satisfied the first element of the prima facie case. In addition, Plaintiff suffered an adverse employment action in being denied a promotion which would have resulted in an increase in pay. Finally, Plaintiff has demonstrated a causal link between her protected activities and the adverse employment action. The lawsuit which arose out of her prior EEOC complaint was pending before this Court when she was denied promotion, and Pomplun testified at his deposition that he was informed of Plaintiff's EEOC complaints at the same time he was reviewing her application for the SRS position. Having established a prima facie case of retaliation, the burden again shifts to Defendant to articulate a legitimate, non-discriminatory reason for its actions.
Although the circuit courts are split on the issue of what constitutes an adverse employment action, the Fifth Circuit has adopted a standard where "ultimate hiring decisions, such as hiring, granting leave, discharging, promoting, and compensating satisfy the adverse employment action element." Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995) (citation omitted); See also Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir. 1997).
b. Defendant's Legitimate, Non-Discriminatory Reason
Defendant's legitimate, non-discriminatory reason for its selection of Hardigan over Plaintiff is the same as its proffered reason with respect to Plaintiff's ADEA claim, discussed supra. Simply put, Pomplun did not believe Plaintiff was sufficiently suited for the SRS position. After an individual interview with Hardigan, he found her to be the best-qualified candidate, and selected her for the position. Further, although Pomplun admits that he was informed of Plaintiff's EEOC activities at the time she was being considered for the promotion, he maintains that it had no bearing on the decision not to promote her.
c. Pretext
Plaintiff again asserts that this proffered explanation is a pretext for retaliation, and maintains that Defendant's legitimate, non-discriminatory reason for her non-promotion is "unworthy of credence." Plaintiff presents no additional evidence in support of this argument, but relies on the claims and assertions made with respect to her ADEA claim. As discussed above, Plaintiff has provided no summary judgment type evidence to suggest that the decision not to promote her was motivated by any type of discriminatory or retaliatory animus. Further, Plaintiff has not presented any evidence to support her assertion that she was "clearly better qualified" than Hardigan, or that she would have been promoted "but for" her protected activities. In fact, at her deposition, Plaintiff admitted that Hardigan was qualified for the SRS position, and felt "sure" that Pomplun considered Hardigan to be more qualified than she. See Pl.'s Dep. at p. 60, In. 13-16. Even though Pomplun acknowledged that he had been told of her EEOC complaints, Plaintiff has not pointed to anything in the record indicating a retaliatory animus against her. Plaintiff has not created any fact issue as to whether the true motivation behind her non-promotion was retaliation. Accordingly, Defendant's Motion for Summary Judgment is also GRANTED with respect to Plaintiff's retaliation claim.
IV. Conclusion
For the foregoing reasons, Defendant's Motion for Summary Judgment is hereby GRANTED with respect to each of Plaintiff's claims against it.