G.R. SMITH, Magistrate Judge.
Betty Warnock, a school nurse at Coastal Middle School in Savannah, Georgia, claims that she was passed over for a promotion to lead nurse for the Savannah-Chatham County Public School District in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621, et seq. (Doc. 1 (complaint)
Under Federal Rule Civil Procedure 56(a), the Court must grant summary judgment where the movant "shows that there is no genuine dispute as to any material fact and [it] is entitled to judgment as a matter of law." Id. A genuine dispute as to a material fact can only be found "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quotation omitted). The movant meets this burden by presenting evidence showing there is no dispute of material fact, or by showing the non-moving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-23; see also Fed. R. Civ. P. 56(c)(1). After the movant satisfies this requirement, the burden shifts to "the adverse party [who] must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250 (quotation omitted). "[T]his 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." Id. at 247-48 (emphasis in original). The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). And "[a]ll reasonable inferences arising from the undisputed facts should be made in favor of the nonmovant, but an inference based on speculation and conjecture is not reasonable." Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480, 1482 (11
The basic facts here are not in dispute. Warnock was one of four qualified applicants selected to be interviewed for the school district's lead nursing position, which included a posting to the Woodville Tompkins Technical and Career High School. (Doc. 24 at 1.) A five-member interview panel — Tammy Perkins, a pupil personnel analyst; Jeffery Baker, a school social worker; Christina Chancey, a school nurse; Carol Gamble, the "Center Leader" for Woodville Tompkins; and Marsha Pierce, an outside school health consultant — met with each applicant separately and focused the interview on the following eight issues: (1) introduce yourself and discuss your personal characteristics; (2) how would a supervisor describe you; (3) what administrative experience have you had in nursing, and did you enjoy it; (4) explain an immunization audit process; (5) give examples of where you demonstrated leadership; (6) have you dealt with controversial situations, and how did you overcome them; (7) discuss your strengths and how they would apply to the lead nurse position; and (8) what are your top three priorities for the year. (Doc. 24-2 (Perkins all.); doc. 24-3 (Baker aff.); doc. 24-4 (Chancey aff.); doe. 24-5 (Gamble aff.); doc. 24-6 (Pierce aff.).) Defendant only offered Warnock's interview reports from four members of the panel, but those interviewers uniformly found that Warnock's answers to sections 5 and 6 were poor. On a scale of one to five, the highest score she received was a "two" on section 5; the rest of the ratings on sections 5 and 6 were "ones" across the board. (Doc. 24-2 at 8; doc. 24-3 at 36; doc. 24-4 at 8; doc. 24-5 at 8.) Additionally, Gamble felt that she avoided answering portions of certain questions. (Doc. 24-5 (Gamble's notes stating that Warnock did not answer "part 2" of section 3 or offer any outcomes in section 6.) Based on her relatively poor interview performance, every interviewer ranked Warnock third out of the four candidates. (Doc. 24-2 at 14 (candidate rankings); doc. 24-6 at 4 (Pierce's overall rankings).) The interview panel recommended the top scoring candidate, Patricia Hilliard, to the school district's superintendent, Thomas Lockamy. (Doc. 24-7 (Lockamy all.).) Lockamy recommended Hilliard's appointment as lead nurse to the School Board, which approved the recommendation. (Id. at 2-3.) Hilliard was either 42 or 43 at the time of the interview. (Doc. 24-8 at 2.) Warnock was either 54 or 553
Since Warnock has not alleged any direct or statistical evidence of discrimination — e.g., someone's admission that defendant was looking for a younger candidate or the unstated but statistically obvious hiring policy of bringing in younger workers — she must rely upon circumstantial evidence from which an inference of intentional discrimination may be drawn. E.g., Armstrong v. Flowers Hosp., Inc., 33 F.3d 1308, 1313 (11
According to defendant, it chose Hilliard because of her superior interview performance. (Doc. 24.) Having provided a "legitimate, non-discriminatory reason" for its actions, Warnock must show that the reason is a mere pretext. for discriminatory conduct. See Tex. Dep`t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54 (1981) (if a legitimate, nondiscriminatory reason is articulated by defendant, then plaintiff has the ultimate burden of proving the reason to be a pretext). This is a difficult burden to shoulder since "an ADEA plaintiff must prove `but-for' causation — not mere proximate causation."
In her response, Warnock focuses almost entirely upon her admittedly excellent credentials, though she grudgingly admits that Hilliard "barely met the minimum requirements for the job posting." (Doc. 26 at 2.) Seniority and credentials are not everything:
Chapman v. Al Transp., 229 F.3d 1012, 1033-35 (11
Warnock contends that the interview was effectively a sham since defendant has consistently provided the position to younger employees. (Doc. 26 at 3.) Natasha Harris-Haggan, who had the lowest total interview score of all of the applicants for the 2008 opening, had actually been lead nurse in 2007, and she was also Warnock's junior by seven years. (Doc. 24-8 (Holliday aff.); doc. 26 at 3.) Moreover, Deborah Charles, Warnock's senior by two years, was also passed over for the promotion. (Doc. 26 at 3.)
Again, Warnock is fixated upon years of service, education, and experience as the sole benchmarks for promotion determinations. Simply pointing out that other employees, younger than her, have maintained supervisory positions in the school district in the recent past hardly shows that the School Board is excluding candidates based solely upon age. The affidavits of every interviewer show the opposite. Moreover, had Hilliard declined the position, the evidence of record shows that the position would have gone to Deborah Charles, the oldest of all of the candidates.
Warnock also states that the School Board failed to follow its own procedures. (Id. at 1-2.) She contends that the interview was to be only one of several factors, including the application, licensure and certification, relevant experience, personal interview, education and training, and background checks. (Id. at 2 & attach.) Additionally, "if the abilities and qualifications of two or more internal applicants are deemed to be equal, the applicant with seniority in the school district shall be appointed to the position." (Id. at 1 & attach.)
The regulations assign no explicit weight to the listed factors. In any event, this was not a photo-finish situation. The School Board found that Hilliard was actually more qualified for the lead nurse position than Warnock after the interview phase of the hiring process. The interviewers received and reviewed each candidate's applications before the interviews, and despite Hilliard's relative inexperience as a school nurse, the interviewers consistently found that she was the best fit to perform the job. (Doc. 24-2 at 2; doc. 24-3 at 2; doc. 24-4 at 2.) They were generally impressed with Hilliard's past job as a co-owner and director of a technical CNA and phlebotomy training school. (Doc. 24-2 at 6; doc. 24-3 at 34; doc. 24-5 at 6.)
Warnock's arguments in response simply do not show that defendant's proffered reason was so weak, implausible, inconsistent, or contradictory that a reasonable fact finder would find it unworthy of credence. Haugabrook, 518 F. App'x at 807. She has failed to offer any compelling evidence suggesting that she would have received the promotion but for defendant's age-based discrimination. Accordingly, defendant's motion for summary judgment (doc. 24) should be GRANTED and this case should be
Even if not barred for lack of exhaustion, the retaliation claim fails because it is untimely. Warnock was aware of the basis for the retaliation claim in October 2013, but she failed to move to add it as a claim for relief until May 6, 2014. (Doc. 21.) The filing comes more than two months after the scheduling order's deadline for submitting amended pleadings. (Doc. 17.) Such late-filed motions are usually construed as motions to amend the scheduling order under Fed. R. Civ. P. 16(b). Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218, 1231-32 (11