Opinion
CIVIL ACTION NO. 01-3832
March 5, 2003
ORDER
Before the Court is a Motion for Summary Judgment filed by the defendants which came for hearing on the briefs and is opposed. After consideration of the briefs, the record and the applicable law, for the following reasons, the Court has determined that summary judgment is warranted.
FACTS
According to plaintiff, he was hired as the Assistant Chief of Police for the Veterans Administration in May 1994. He contends that his supervisor, Chief of Police, Mr. William White, began to demonstrate "discriminatory tendencies" toward plaintiff which resulted in a 10 days suspension for plaintiff in April 1995. Plaintiff filed an EEOC complaint, but the complaint was never adjudicated. Later that summer, Chief White proposed removing plaintiff from his position based on three charges. This adverse action was mitigated by the agency to a demotion. Plaintiff appealed the demotion to the Merit System Protection Board, which upheld the decision. His appeal to the full Board was affirmed, and the Federal Circuit dismissed his case for failure to timely file a brief.
In September 1997, a new position was created, Supervisory Security Specialist. This position was in a different classification series than the Assistant Chief position previously occupied by plaintiff, however, according to Chief White, it was virtually the same job at a lower grade in order to attract more candidates. Five candidates were certified by the Human Resources Management to be eligible for the position. Chief White formed a selection panel comprised of four managers. The panel ranked the eligible candidates according to very specific objective criteria. Plaintiff received a first place ranking from one panel member. The selected candidate, a younger white male, received a first place ranking from two panel members. Plaintiff claims that he was not selected for the position because he was black, older and had participated in EEOC activity. Chief White testified that plaintiff had the knowledge and experience to perform the job, but questioned plaintiffs ability because plaintiff was previously demoted from the position of Assistant Chief of Police.
Defendants contend that plaintiffs claims of discrimination arising out of his suspension should be dismissed for failure to exhaust administrative remedies. Defendants contend that plaintiffs claims relating to his demotion should be dismissed as res judicata. Defendants contend that plaintiffs claims relating to non-selection fora newly created position within the department should be dismissed because plaintiff cannot prove that the defendants acted with a discriminatory purpose.
LAW AND ANALYSIS
The defendants are correct in their contention that the only viable cause of action before the Court in this case is plaintiffs claim of discriminatory non-selection. All other claims have either been previously litigated, or are subject to dismissal for failure to exhaust administrative remedies. Accordingly, all claims other that plaintiffs claim of discriminatory non-selection are hereby dismissed.
To prove race and age discrimination in employment, the plaintiff must make a prima facie showing of the following elements: 1) he belongs to a protected class, 2) he applied for and was qualified for a vacant position, 3) he was rejected, and 4) someone who does not belong to the protected class was selected for the position. Shackelford v. Deloitte Touche, 190 F.3d 398 (5th Cir. 1999). in Title VII retaliation cases, the plaintiff must first make the following prima facie showing: "(1) that he engaged in activity protected by Title VII, (2) that an adverse employment action occurred, and (3) that a causal link existed between the protected activity and the adverse action." Raggs v. Miss. Power Light Co., 278 F.3d 463, 471 (5th Cir. 2002).
For purposes of this motion, the Court will assume that plaintiff can establish a prima facie case of age, race and retaliatory discrimination. Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to demonstrate a legitimate nondiscriminatory purpose for the employment action. Aldrup v. Caldera, 274 F.3d 282, 286 (5th Cir. 2001); Meinecke v. H R Block of Houston, 66 F.3d 77, 83 (5th Cir. 1995). If the defendant satisfies this burden, the plaintiff must prove that the employer's stated reason for the adverse action was merely a pretext for the real, discriminatory purpose. Aldrup, 274 F.3d at 286. The Court finds that plaintiffs proven inability to perform the job as stated by Chief White is a legitimate, non-discriminatory reason for not-selecting plaintiff.
To show that a genuine issue of fact exists as to whether the defendant intentionally discriminated against the plaintiff, plaintiff must present evidence, not just speculation and conjecture, that the defendants discriminated against him on the basis of his race and age. Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002). "Once a Title VII case reaches the pretext stage, the only question on summary judgment is whether there is a conflict in substantial evidence to create a jury question regarding discrimination." Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999), citing Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir. 1996) (once a Title VII case reaches the pretext stage, the sufficiency of the evidence test is applied).
Plaintiff relies upon testimony of Jerome Simone, Bobby Short, Carrie Knoten, and Connie Washington, all of whom are current or former police officers and supervisory police officers, with the VA Medical Center. Mr. Jerome Simone testified that he believed plaintiff was discriminated against because of his race, his age and because plaintiff participated in prior EEOC activity. Mr. Bobby Short testified that Chief White and Jeffrey Ulmer were personal friends, that plaintiff was more qualified for the position and that plaintiff was discriminated against because of his race and prior EEOC activity. Carrie Knoten testified that plaintiff was more qualified for the position and that plaintiff did not get the position because of his race and his prior EEOC activity. Connie Washington testified that Chief White and Jeffrey Ulmer were friends and that plaintiff was more qualified for the position.
This testimony, however, points to no evidence other than subjective, conclusory opinions of discrimination by persons not involved in the selection process. Statements by non-decisionmakers do not satisfy the plaintiffs burden of proof. Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O'Connor, J., concurring in the judgment). Chief White testified that plaintiff had the knowledge and experience to perform the job, but questioned plaintiffs ability because plaintiff was previously demoted from the position of Assistant Chief of Police. In addition, plaintiff received a first place ranking from only one panel member. The selected candidate received a first place ranking from two panel members. Evidence that Chief White had a personal friendship with the selected candidate does not suggest that plaintiffs race, age or prior EEOC activity played a part in the selection process. Plaintiff has submitted no evidence which controverts the statements by Chief White that plaintiff had a demonstrated inability to perform the job.
According, the Motion for Summary Judgment is GRANTED. Plaintiffs claims are DISMISSED WITH PREJUDICE, each party to bear its own costs.