Henry v. Gibson, No. 2:2014cv01049 - Document 49 (M.D. Ala. 2015)
Court Description: OPINION. Signed by Honorable Judge Myron H. Thompson on 11/23/15. (djy, )
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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION MARY JO HENRY, ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. SLOAN D. GIBSON, Acting Secretary for the Department of Veterans Affairs, Defendant. CIVIL ACTION NO. 2:14cv1049-MHT (WO) OPINION Pursuant to the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-624 (the ‘ADEA’), Jo Henry filed this lawsuit against plaintiff Mary defendant Acting Veterans Affairs. denied her a Secretary She for the Department of contends that the Department promotion because of her age. Jurisdiction is proper under 28 U.S.C. § 1331 (federal question), 28 U.S.C. U.S.C. § 626(c). § 1343 (civil rights), and 29 This matter is before the court on the Secretary’s motion for summary judgment in his favor. For the reasons that follow, the motion will be granted. I. SUMMARY-JUDGMENT STANDARD Summary judgment is warranted if, after viewing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in its favor, the court is convinced “that there is no genuine dispute as to any material fact and the entitled to judgment as a matter of law.” P. 56(a); see also Matsushita Elec. movant is Fed. R. Civ. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). II. BACKGROUND The following are the relevant facts taken in the light most favorable to Henry. At the time of the events that gave rise to this lawsuit, Henry was 62 years old and had been employed by the Central Veterans 2 Healthcare System--a Department healthcare facility--for approximately six years. A. The Vacancy On July announcement Assistant Support 2, 2009, for position Section. Central Veterans a Supervisory in its It Medical business stated that published Support office’s the an Clinic vacancy would close later that month. The available supervisory position involved significant responsibilities, including “supervising the administrative processes and the clerical employees performing Health and sites,” grievances, duties in Primary Care organizing training Primary at work staff, Care all Clinics; [Central assignments, and Mental Veterans] resolving monitoring leave. Def.’s Mot. Summ. J. (doc. no. 24-13) at 2-3. In addition, the person selected would be responsible for managing appointments, producing reports, and providing customer service. 3 B. Application Process and Selection A group reviewed the from the received Human Resources applications and Department referred the five applicants it deemed ‘best qualified,’ including Henry, to Nina McConico, the charge of filling the vacancy. applicants on responses several to six selecting official in McConico rated the five factors, including skillset-related performance appraisals, and resumes. their questions, Applicant Tenesha Burks received 58 points and Henry received 52, and they were ranked first and second, respectively. Burks, a considerably younger applicant, was selected for the position. When Burks and Henry submitted their applications, they were both employed by Central Veterans, though in different positions at different campuses. Henry was employed as a Claims Assistant in the Fee Section, and Burks was employed as a Medical Support Assistant in the Clinic Support Section. 4 The materials Burks and Henry submitted reflect relevant differences in their work experience and work history. Henry’s resume shows that she had around 11 years of experience working in a healthcare setting, including around six years at Central Veterans. 1982 to 1987, she Representative, worked which as a required Patient her to From Services transcribe medical orders, make patient appointments, and train new employees, tasks. in addition to some administrative After a long gap in employment, she resumed working in 2002 and came to Central Veterans in 2003. In her six years in the Central Veterans System, she worked first in a laboratory setting, then spent four years as setting. a Medical Support Assistant in a clinical This required her to transcribe physicians’ orders, perform patient care, administrative and serve as duties Lead related to Medical Support Assistant on occasions of the Lead’s absence. At the time of her application for the position at issue, she had been promoted to and 5 was working as a Claims Assistant, where she processed claims and assisted patients with billing issues. Burks about had six Veterans. considerably years total, less overall including experience-- two at Central However, her experience was in some ways quite different from Henry’s. From 1993 to 1997, she worked Director--a as Assistant Program position--for the Department of the Army. then shows an approximately 10-year managerial Her resume gap in work history, after which she worked with Central Veterans for two years as a Medical Support Assistant in a clinical setting, where she remained until she applied for the position at issue here. Her work environment as a Medical Support Assistant, in outpatient clinic, differed from relevant ways: Her position a community-based Henry’s in required two little supervision, and she often worked in a ‘lead’ role. In late December 2009, Henry received notification that she had consideration for been the referred to opening, but 6 McConico had not for been selected. Henry then approached McConico to ask the reason she was not selected. McConico said that she selected Burks because she was the applicant who would have “the shortest learning curve.” Def.’s Ex. A, Dep. Nina McConico (doc. no. 24-2) at 9. explain her comment further at McConico did not that time. Henry interpreted McConico’s comment to be related to her age. To her, McConico was implying that, as a considerably older applicant, she would be less able to pick up quickly on the skills the position required. In April 2010, Henry filed an age-discrimination complaint with Commission (EEOC). the Equal Employment Opportunity After a hearing, Henry received an adverse decision, which she appealed. On appeal, the EEOC affirmed the administrative judge’s decision and issued Henry a ’right to sue’ notice. this lawsuit. 7 Henry then filed III. DISCUSSION To survive summary judgment on an ADEA claim, a plaintiff must put forward sufficient evidence for a reasonable jury to conclude that she discrimination on the basis of her age. suffered Where, as here, the plaintiff relies on circumstantial evidence to prove discrimination, courts analyze the evidence using the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).* * At various points in her briefing, Henry contends that McConico’s “shortest learning curve” statement is direct evidence of discrimination. The court disagrees. While Henry may have understood the comment to refer to the age difference between herself and Burks, it is not the type of “blatant remark[], whose intent could be nothing other than to discriminate on the basis of age,” that can serve as direct evidence of discrimination in this circuit. Van Voorhis v. Hillsborough Cnty. Bd. Of Cnty. Comm’rs, 512 F.3d 1296, 1300 (11th Cir. 2008) (citing Carter v. City of Miami, 870 F.2d 578, 582 (11th Cir. 1989)) (internal quotation marks omitted). See also Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189-90 (11th Cir. 1997) (citing ”no woman would be named to a B scheduled job,” Burns v. Gadsden State Community College, 908 F.2d 1512, 1518 (11th Cir. 1990), and a manager’s statement that “if it was his company, he wouldn’t hire any black people,” EEOC v. Beverage Canners, Inc., 90 F.2d 920, 923 (11th (continued…) 8 Israel v. Sonic-Montgomery FLM, Inc., 231 F. Supp. 2d 1156, 1159 (M.D. Ala. 2002) (Thompson, J.). Under this framework “(1) a plaintiff must first make out a prima facie case, (2) then the burden shifts to the defendant to produce legitimate, nondiscriminatory reasons for the adverse employment action, and (3) then the burden shifts back to the plaintiff to establish that these reasons are pretextual.” Co., 101 F.3d 1371, Mayfield v. Patterson Pump 1375 (11th Cir. 1996) McDonnell Douglas, 411 U.S. at 802-04). burden “is merely one of (citing The employer’s production; it need not persuade the court that it was actually motivated by the proffered reasons.” Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (internal quotation marks omitted). To satisfy her ultimate burden, the plaintiff may either persuade the court directly by demonstrating “that a discriminatory reason more than likely motivated the employer, or indirectly, Cir. 1990), as representative examples evidence in discrimination cases). 9 of by direct showing that the proffered reason for the employment decision is not worthy of belief.” Israel, 231 F. Supp. 2d at 1160. In an ADEA case involving a failure to hire or promote, a plaintiff may make a prima-facie case by demonstrating (1) that she was a member of a protected group of persons between the ages of 40 and 70, (2) that she was subject to adverse-employment action, (3) that a substantially younger person filled the position that she sought, and (4) that she was qualified to do the job for which she was rejected. Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir. 1998). Because legitimate, the Secretary nondiscriminatory has reasons articulated for Burks’s selection and because Henry has not produced sufficient evidence from which a factfinder could reasonably conclude that these reasons are pretextual, the court need not address whether prima-facie case. 10 she has established a The Secretary offers six reasons for Burks’s selection as Supervisory Medical Support Assistant over Henry: (1) Burks had worked as a Medical Support Assistant in a mental-health clinic and a health clinic more recently, applicable seamless “and work was already process”; transition, and (2) would familiar “Burks be with could able to the make hit a the ground running”; (3) “Burks was working as a Medical Supervisory Assistant demonstrated ability effectively, and learning curve”; in a of similar working therefore (4) would McConico environment with efficiently and have wanted a to minimum fill the position as quickly as possible; (5) Burks “best fit the critical needs of the service and the section for which [she was] hired” and “would be prepared to immediately respond to the issues and concerns based on recent transferable knowledge and experience”; and (6) Burks ranked number one based on her resume, answers to questions concerning her skillset, and the supervisory appraisal. Reply Mem. Supp. Def.’s Mot. Summ. J. (doc. 11 no. 32) at 5-6. Most of the Secretary’s reasons boil down to the same basic justifications: that Burks had the most recent experience working as a Medical Support Assistant in a clinical setting and therefore was already familiar with the work process and that Burks had been doing that work in a work environment that required her to perform an essentially ‘lead’ role with little oversight, and therefore would have an easier transition to being a supervisor. Henry has failed to produce sufficient that would support a finding of pretext. evidence First, she does not dispute that Burks has more recent experience in a Medical Support Assistant role, or in a clinical setting more generally. experience may selection over plaintiff’s serve as other own, A a candidate’s reasonable qualified less-recent insufficient to rebut this reason. more basis candidates, recent for and qualifications her a are See e.g., MacKenzie v. City & Cnty. of Denver, 414 F.3d 1266, 1278 (10th Cir. 2005) (holding that a 12 plaintiff’s “proffer of being more experienced” was insufficient to defeat summary judgment where “the City never contended that [the selected candidate] had more payroll experience, only that she had relevant and more recent experience”); Kohrt v. MidAmerican Energy Co., 364 F.3d 894, 898 (8th Cir. 2004) (holding that a district court’s grant of summary judgment on plaintiff’s ADEA claim was proper where the plaintiff “had not worked as a lineman since October 1987, and he [did] not dispute that the other candidates had more recent experience than he”). Second, Henry has failed to rebut that Burks worked in a position that required less supervision than hers had. McConico materials testified demonstrated that that Burks’s she application was “working independently with little supervision” and, according to a supervisor’s clinic” and recommendation, “functioning in [a Support Assistant] capacity.” Dep. Nina McConico (doc. 13 no. was “managing Supervisory the Medical Def.’s Ex. A, Excerpts 24-2) at 4. Henry provides no evidence that would call this into question. Third, Henry does not rebut that Burks had worked more frequently in a lead role and was, therefore, more familiar with Secretary the work that, contends applicable taking even process. into The account Henry’s past experience as a Medical Support Assistant, Henry’s application intermittently demonstrated acted as a that Lead she had Medical only Support Assistant while working in that role, whereas Burks served in a lead role on a regular basis. that Burks Supervisory was essentially Medical Support already Assistant This meant acting as in prior her a position and could transition easily into the vacant position. Henry provides no evidence to suggest that McConico’s assessment of Burks’s experience is inaccurate, or that her own experience as a Medical Support Assistant made her familiarity applicable work process comparable. 14 with the Nor has Henry provided any evidence to suggest that her more recent position as a Claims Assistant provided comparable, or even relevant, experience. At the time of her application for the open position, Burks had been working in a clinic support role directly subordinate to the position at issue here, and in a position that required her to be involved with administration of the clinic and with patient care. the In contrast, Henry, at the time of her application for the position as Supervisory Medical Support Assistant, was much more removed from patient-care duties and was working in the Fee Section, processing billing claims. Although the evidence does indicate that Henry had been promoted from her position as Medical Support Assistant and had, at least arguably, mastered the skillset required by the Medical Support Assistant position and clinic support work more generally, it is not sufficient to “merely ... question[] the wisdom of the employer’s reasons, at least not where ... the reason is one that might motivate 15 a reasonable employer.” Brooks v. Cnty. Comm’n of Jefferson Cnty., 446 F.3d 1160, 1163 (11th Cir. 2006) (citations omitted). Finally, Henry cannot rely on her own belief that her experience and qualifications Burks’s. Admittedly, significant range of Henry’s are superior resume experience. to lists However, a “[a] plaintiff seeking to use comparative qualifications to rebut a defendant's proffered nondiscriminatory reasons for promoting another employee must show that the disparities between the successful applicant's and her own qualifications were of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff.” Gray v. City of Montgomery, 756 F. Supp. 2d 1339, 1347-48 (M.D. Ala. 2010) (Thompson, J.) (quoting Brooks, 446 F.3d at marks omitted). reasonable 1163) (internal quotation This is not such a case. employer selecting among Because a qualified applicants might rely more on the skills required by and displayed in one’s current job than on the skills 16 one has displayed in past positions, Henry reliance on her qualifications alone is insufficient to demonstrate pretext. As to one of the Secretary’s proffered reasons--the need to fill the position quickly--the evidence sufficient to call that reason into question. is Henry offers evidence that both she and Burks applied within the allotted window announcement, that of both time provided applicants were by the referred to McConico for consideration on the same day, and that she was evidence ready to could start lead a immediately. Even reasonable if factfinder this to determine that this reason, considered in isolation, is implausible or insufficient, because it defendant’s matter.” by “is not worthy itself, not credibility to of defeat belief, it summary is judgment strong enough to call into question as a the general Alexander v. Chattahoochee Valley Community College, 325 F. Supp. 2d 1274, 1293 (M.D. Ala. 2004) (Thompson, J.). Because she has not offered evidence 17 sufficient to rebut each and every one, that is, all, of the Secretary’s proffered reasons, she has not met her burden. See Chapman, 229 F.3d at 1037 (“In order to avoid summary judgment, a plaintiff must produce sufficient conclude evidence that for each a of reasonable the factfinder employer's to proffered nondiscriminatory reasons is pretextual.”); Crawford v. City of Fairburn, 482 F.3d 1305, 1308 (11th Cir. 2007). (“If the employer proffers more than one legitimate, nondiscriminatory reason, the plaintiff must rebut each of the reasons judgment.”); to Combs v. survive a motion Plantation for Patterns, summary 106 F.3d 1519, 1543 (11th Cir. 1997) (where plaintiff failed to rebut one of the three reasons, defendant was entitled to judgment as a matter of law on charge of impermissible discrimination). Thus, Henry Secretary’s discriminated has failed proffered against to show--by reasons--that her. Nor attacking the can she the Department rely on McConico’s “shortest learning curve” comment to show 18 directly that a discriminatory reason more than likely motivated the Department. This comment, without more, is not sufficient to meet her burden. It lends itself to several quite reasonable interpretations, including that Burks’s more recent experience in a similar position and in a supervisory role made her a better candidate. Henry, instead, asks this court to rely on her subjective impression alone. This is simply not enough to survive summary judgment. See Mayfield, 101 F.3d allegations at 1376 discrimination, raise an without inference discrimination ... discriminatory more, of where extensive quotation (“Conclusory marks not pretext an for or employer evidence reasons are of its omitted). The sufficient to intentional has offered legitimate, actions.”) record of non (internal provides no additional basis for concluding that McConico was more likely motivated by stated reliance on age discrimination Burks’s more than recent by her relevant experience in a very similar position, her familiarity 19 with the open position’s requirements, and her greater experience working in a lead role. *** For the above reasons, the Acting Veterans Affairs Secretary’s motion for summary judgment in his favor will be granted. An appropriate judgment will entered. DONE, this the 23rd day of November, 2015. /s/ Myron H. Thompson____ UNITED STATES DISTRICT JUDGE be
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