JOSE E. MARTINEZ, District Judge.
THIS CAUSE came before the Court upon Defendant's Motion for Summary
For two years, Plaintiff was employed as a Program Support Clerk with the Animal and Plant Health Inspection Service ("APHIS"), which is an agency of the United States Department of Agriculture, the Defendant in this action. (D.E. No. 39, Joint Pretrial Stip. at 2). Plaintiff was employed in a non-permanent capacity. Id. On December 29, 2008, Defendant issued a vacancy announcement, numbered 24PQ-2009-0169, for Program Support Clerk (Office Automation) positions in its Miami, Florida office. Id. Defendant first asked to have five positions filled pursuant to the vacancy, but due to budget constraints, only three positions were actually approved. Id. The parties agree that the following process was used in considering the applicants for these positions.
Id.
Once the applicants were assigned a numerical score and ranked, a list of each applicant's score and rank was provided on a "Certificates of Eligibles" to Pedro Millan ("Millan"), the Area Director for the Miami office of the APHIS. (D.E. No. 37-2, Millan Decl. at ¶¶ 1, 2, 3). Millan is the individual who actually selected which candidates Defendant should hire for the three open positions. Id. at ¶ 2. Plaintiff applied for these positions but was not selected. (D.E. No. 39, Joint Pretrial Stip. at 2). Millan ultimately selected the individuals with the top three scores, Chanel Johnson, Debbie Coleman, and Claudio Fernandez. Id. at ¶¶ 3, 4.
Millan states that
Id. at ¶¶ 6, 7, 8. Millan states that although Plaintiff was "a very good employee ... she was ranked too low by Human Resources to be selected for the three open positions." Id. at ¶ 9. It is undisputed that Plaintiff was ranked fourteenth. Id. at ¶ 3.
At the time Plaintiff applied for these positions she was fifty-seven years old. (D.E. No. 34-2, Affidavit of Vera Garmon at 1). It is undisputed that all three applicants who were chosen for the positions were younger than Plaintiff. (D.E. No. 36-1 at 6, A-43, Final Agency Decision). On December 6, 2010, Plaintiff filed suit against Defendant, alleging that Defendant unlawfully discriminated against her on the basis of her age by not hiring her for one of the three open positions.
A motion for summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). By its very terms, this standard provides that "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there will be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). An issue of fact is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Matsushita Electric Indus. Co., 475 U.S. at 586, 106 S.Ct. 1348. It is "material" if it might affect the outcome of the case under the governing law. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In addition, in considering a motion for summary judgment, the Court is required to view the evidence in the light most favorable to the non-moving party. Id. at 255, 106 S.Ct. 2505.
If the moving party bears the burden of proof at trial, the moving party must establish all essential elements of the claim or defense in order to obtain summary judgment. See United States v. Four Parcels of Real Prop, in Greene and Tuscaloosa Counties, 941 F.2d 1428, 1438 (11th Cir.1991). The moving party "`must support its motion with credible evidence ... that would entitle it to a directed verdict if not controverted at trial.'" Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (Brennan, J., dissenting)). "If the moving party makes such an affirmative showing, it is entitled to summary judgment unless the nonmoving party, in response, `come[s] forward with significant, probative evidence demonstrating the existence of a
In contrast, if the non-moving party bears the burden of proof at trial, the moving party may obtain summary judgment simply by establishing the nonexistence of a genuine issue of material fact as to any essential element of a non-moving party's claim or affirmative defense. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. When the non-moving party bears the burden of proof, the moving party does not have to "support its motion with affidavits or other similar material negating the opponent's claim." Id. at 323, 106 S.Ct. 2548 (emphasis in original). The moving party may discharge its burden in this situation by showing the Court that "there is an absence of evidence to support the nonmoving party's case." Id. at 324, 106 S.Ct. 2548. Once the moving party discharges its initial burden, a non-moving party who bears the burden of proof must "go beyond the pleadings and by [its] own affidavits or by the `depositions, answers to interrogatories, and admissions on file' designate `specific facts showing that there is a genuine issue for trial.'" Id. (quoting Fed. R.Civ.P. 56(e)). A non-moving party "may not rest upon the mere allegations or denials of the adverse party's pleadings, but. . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
Defendant argues that there are no genuine issues of material fact in this case and that it is entitled to summary judgment on Plaintiff's remaining age discrimination claim. In this case, it is undisputed that there is no direct evidence of discrimination. This Court applies the burdenshifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) to determine ADEA age-discrimination claims based on circumstantial evidence of discrimination. Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir.2000). Under this framework, Plaintiff must first establish a prima facie case of discrimination. Id. "One method a plaintiff can use to establish a prima facie case for an ADEA violation is by showing that [s]he (1) was a member of the protected age group, (2) was subjected to adverse employment action, (3) was qualified to do the job, and (4) was replaced by or otherwise lost a position to a younger individual." Id.
If Plaintiff meets her burden and establishes a prima facie case of age discrimination, there is a presumption of discrimination, and the burden then shifts to Defendant to articulate a legitimate, nondiscriminatory reason for the employment action at issue. Chapman, 229 F.3d at 1024. "However, . . . [Defendant's] burden is merely one of production; it `need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.'" Id. (quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir.1997)). If Defendant articulates a nondiscriminatory reason, the presumption of discrimination drops out of the case, and it is Plaintiff's burden "`to come forward with evidence, including the previously produced evidence establishing the prima facie case, sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision.'" Id. If Plaintiff does not submit "sufficient evidence to create a genuine issue of material fact regarding whether each of the defendant
Defendant argues that even assuming that Plaintiff can establish a prima facie case that Plaintiff cannot show that Defendant's reasons for hiring the other applicants for the positions was a mere pretext for discrimination. Plaintiff argues that a genuine issue of material fact remains on the pretext issue because there is evidence that Millan was aware of Plaintiff's age as her birth date appeared on her application despite his statement in the record that he was not aware of her age, because although it is undisputed that Millan hired the top three scoring candidates he was not required to only consider these candidates, because Plaintiff disputes that the candidates Claudio Fernandez and Debbie Coleman
Millan has provided an affidavit stating that he didn't hire Plaintiff and hired the other three applicants based on their rankings provided by Human Resources to Millan after the applicants filled out an electronic questionnaire. See (D.E. No. 27-2, Millan Decl. at ¶¶ 3-9). The questions in the electronic questionnaire included questions concerning the applicant's educational background, the applicant's skills such as the ability to type a certain amount of words per minute, computer proficiency, or proficiency in performing certain office work tasks, and the applicant's work experience. See (D.E. No. 27-2 at 12-19, A-12-A-19). In addition, candidates that were veterans were given preference in the form of extra points. (D.E. No. 27-2, Millan Decl. at ¶ 3). Millan hired the three highest scoring applicants.
First, the Court disagrees that a genuine issue of material fact exists as to whether Millan's proffered reason for not hiring Plaintiff is a mere pretext for discrimination because there is evidence that Millan stated that he was not aware of Plaintiff's age, and there is also evidence that Plaintiff's birth date appeared on her application. In the Defendant's "Report of Investigation" relating to Plaintiff's claim,
Next, the Court disagrees that Millan's failure to consider Plaintiff for the position based on her score demonstrates that his proffered reason for not hiring Plaintiff was a pretext for discrimination. The Court agrees that there is nothing in the record that states that Millan was required to only consider the three highest scoring candidates for the positions. Defendant in fact does not argue that Millan was limited to considering these applicants. It is clear that Millan was simply required under the "Rule of Three" to at least consider the three highest scoring applicants. See (D.E. No. 27-2, McLemore Decl. at 8). However, there is also nothing in the record that shows there was anything wrong with Millan only considering these three top scoring applicants or more accurately, there is nothing demonstrating age discrimination found in Millan's decision to not consider Plaintiff because she received the fourteenth highest score. See (D.E. No. 27-2, Millan Decl. at ¶ 9). In his own business judgment, Millan was entitled to rely on the results of the questionnaire and the rankings provided. Chapman, 229 F.3d at 1030 (stating that a plaintiff may not "recast an employer's proffered nondiscriminatory reasons or substitute . . . [her] own business judgment for that of the employer."). This reliance does not demonstrate that Millan's decision to not consider Plaintiff was discriminatory. Accordingly, the Court cannot find that this establishes a genuine issue of material fact that precludes summary judgment.
The Court also finds Plaintiff's argument that the successful candidates, Claudio Fernandez and Debbie Coleman, were less qualified or not even equally qualified as she was for the positions also fails to demonstrate pretext. "As a general matter, hiring a less qualified person can support an inference of discriminatory motivation." Keaton v. Cobb County, GA, No. 08-11220, 2009 WL 212097, at *4 (11th Cir. Jan. 30, 2009) (internal quotations omitted). "In the context of a promotion, `a plaintiff cannot prove pretext by simply arguing or even by showing that . . . [she] was better qualified than the [person] who received the position . . . [she] coveted. A plaintiff must show not merely that the defendant's employment decisions were mistaken but that they were in fact motivated by . . . [a discriminatory animus].'" Springer v. Convergys Customer Management
Plaintiff argues that Claudio Fernandez was less qualified than Plaintiff or equally qualified because
(D.E. No. 34 at 8) (citations to the record have been omitted). Similarly, Plaintiff argues that
Id. at 9. Plaintiff has not demonstrated that the disparities between her qualifications and the qualifications of Fernandez and Coleman "were `of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate[s] selected over'" her. Springer, 509 F.3d at 1349. Plaintiff's arguments simply question Millan's business judgment.
Moreover, Plaintiff does not dispute that the electronic questionnaire appropriately ranked the individuals with regard to the questions answered and the preferences given to veterans, and here, Millan decided to give weight to these rankings. These were all decisions Millan was entitled to make in his own business judgment. Furthermore, Plaintiff concedes that with regard to Coleman, Coleman was placed ahead of Plaintiff because Coleman is a veteran. Choosing someone for a position because she is a veteran and Plaintiff is not does not demonstrate discrimination. Plaintiff's status as a non-veteran is not a protected class. Accordingly, the Court also finds that Plaintiff has failed to demonstrate a genuine issue of material fact relating to any issues regarding the qualifications of Fernandez and Coleman as compared to Plaintiff.
Finally, Plaintiff argues that statistical information regarding the composition of Defendant's employees reveals that more than 77% of Defendant's employees at that time were over the age of forty and thus, a jury could find that Defendant would have an interest in hiring younger employees.
1. Defendant's Motion for Summary Judgment (D.E. No. 27) is
2. This case is
