Venita Billingslea v. Michael Astrue
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 6:10-cv-01467-JMC Copies to all parties and the district court/agency. [999011508].. [12-1528]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1528
VENITA Y. BILLINGSLEA,
Plaintiff – Appellant,
v.
MICHAEL
J.
ASTRUE,
Administration,
Commissioner,
Social
Security
Defendant – Appellee,
and
SOCIAL SECURITY ADMINISTRATION,
Defendant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville.
J. Michelle Childs, District
Judge. (6:10-cv-01467-JMC)
Submitted:
December 18, 2012
Decided:
December 28, 2012
Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Vernon F. Dunbar, TURNER PADGET GRAHAM & LANEY P.A., Greenville,
South Carolina, for Appellant.
William N. Nettles, United
States Attorney, Terri Hearn Bailey, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Venita Y. Billingslea appeals the district court order
adopting the magistrate judge’s recommendation to grant summary
judgment in favor of Defendant Michael J. Astrue, Commissioner
of the Social Security Administration (“SSA”), on Billingslea’s
employment discrimination claims.
On appeal, Billingslea argues
that the district court erred in granting summary judgment as to
Billingslea’s claim under the Age Discrimination in Employment
Act (“ADEA”), as amended, 29 U.S.C.A. §§ 621-634 (West 2008 &
Supp. 2012), based on its conclusion that Billingslea failed to
provide evidence from which a reasonable jury could conclude
that
the
SSA’s
stated
reasons
for
not
selecting
promotion were a pretext for age discrimination. *
her
for
a
We affirm.
We review a district court’s grant of summary judgment
de novo.
PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d 111,
119
Cir.
(4th
credibility
2011).
We
determinations,
will
not
weigh
but
view
the
*
evidence
evidence
or
make
and
all
Because Billingslea’s response to the magistrate judge’s
report and recommendation and her opening brief address only her
ADEA claim, she has forfeited appellate review of her gender and
marital status discrimination claims.
See United States v.
Winfield, 665 F.3d 107, 111 n.4 (4th Cir. 2012) (stating that
arguments not raised in the opening brief are considered
waived); United States v. Midgette, 478 F.3d 616, 621 (4th Cir.
2007) (concluding that a party waives appellate review of an
issue by failing to file a timely objection to the magistrate
judge’s report and recommendation addressing the issue).
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reasonable inferences drawn from it in the light most favorable
to the nonmoving party.
Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 151 (2000).
Summary judgment is appropriate
“if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.”
Fed. R. Civ. P. 56(a).
allegations
evidence
do
suffice,
support
in
not
of
“Conclusory or speculative
nor
does
[the
a
mere
nonmoving
scintilla
party’s]
of
case.”
Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir.
2002) (internal quotation marks omitted).
Summary judgment will
be granted unless “a fair-minded jury could return a verdict in
favor
of
Anderson
the
v.
[nonmoving
Liberty
party]
Lobby,
on
Inc.,
the
477
evidence
U.S.
242,
presented.”
252
(1986).
“Only disputes over facts that might affect the outcome of the
suit under the governing law will properly preclude the entry of
summary judgment.”
Id. at 248.
The ADEA makes it “unlawful for an employer . . . to
fail or refuse to hire or
any
individual
conditions,
or
with
respect
privileges
individual’s age.”
. . . otherwise discriminate against
to
of
his
compensation,
employment,
29 U.S.C. § 623(a).
because
terms,
of
such
Billingslea provided no
direct evidence of intentional discrimination, but pursued her
ADEA claim under the burden-shifting framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
4
See
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Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 513-14 (4th Cir.
2006); Mereish v. Walker, 359 F.3d 330, 334-37 (4th Cir. 2004).
Under this framework, Billingslea must first establish a prima
facie
case
evidence.
burden
of
age
discrimination
by
Warch, 435 F.3d at 513.
shifts
to
non-discriminatory
Billingslea.
Astrue
reason”
to
for
a
preponderance
the
If this burden is met, the
demonstrate
the
See id. at 513-14.
of
“a
selectee’s
legitimate,
promotion
over
If Astrue meets this burden,
“the presumption of discrimination created by the prima facie
case disappears from the case and the plaintiff must prove that
the
proffered
justification
is
pretextual.”
Id.
at
514
(internal quotation marks omitted).
“The
ultimate
question
in
every
employment
discrimination case involving a claim of disparate treatment is
whether
the
plaintiff
discrimination.”
was
the
victim
of
intentional
Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 153 (2000).
Thus, Billingslea ultimately “retains the
burden of persuasion to establish that age was the ‘but-for’
cause of the employer’s adverse action.”
Gross v. FBL Fin.
Servs., Inc., 557 U.S. 167, 177 (2009).
Billingslea is correct in noting that an employer’s
shifting
and
inconsistent
justifications
for
its
adverse
employment discrimination decision may give rise to an inference
of
discrimination
and
provide
evidence
5
of
pretext.
EEOC
v.
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Sears Roebuck & Co., 243 F.3d 846, 852-54 (4th Cir. 2001); see
Reeves,
530
U.S.
at
147
(stating
that
when
“the
employer’s
justification has been eliminated, discrimination may well be
the most likely alternative explanation, especially since the
employer is in the best position to put forth the actual reason
for its decision”).
However, our review of the record indicates
no such shifting justifications, notwithstanding discrepancies
between details provided in the parties’ discovery plan and the
sworn testimony obtained during discovery.
Billingslea also attempts to challenge the accuracy of
the SSA’s stated justifications for selecting a younger employee
over
Billingslea.
Under
appropriate
circumstances,
“a
plaintiff’s prima facie case, combined with sufficient evidence
to find that the employer’s asserted justification is false, may
permit
the
trier
of
fact
unlawfully discriminated.”
to
conclude
that
the
employer
Reeves, 530 U.S. at 148.
However,
this is not always the case, depending upon “the probative value
of the proof that the employer’s explanation is false.”
See
Holland v. Wash. Homes, Inc., 487 F.3d 208, 215 (4th Cir. 2007)
(internal
quotation
marks
omitted).
Importantly,
when
the
employer articulates a legitimate, non-discriminatory basis for
its action, this court does not “decide whether the reason was
wise, fair, or even correct, ultimately, so long as it truly was
the reason for the [adverse employment action].”
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Hawkins v.
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PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir. 2000).
In assessing
whether an employer’s proffered reasons are pretextual, “it is
the
perception
Holland,
487
of
F.3d
the
at
decisionmaker
217
which
(internal
is
relevant.”
quotation
marks
and
alteration omitted); see Hawkins, 203 F.3d at 280.
Here,
reasons
Having
for
the
selecting
choosing
thoroughly
the
reviewed
official
selectee
the
testified
instead
record,
of
we
as
to
his
Billingslea.
conclude
that
Billingslea failed to provide evidence adequate for a reasonable
jury to conclude that the selecting official did not, in fact,
rely
on
his
stated
justifications
in
choosing
the
selectee.
Additionally, the record contains no evidence to suggest that
Billingslea, rather than the selectee, would have been chosen
but
for
Billingslea’s
testimony
from
two
age.
SSA
While
employees
Billingslea
indicating
also
their
adduced
opinions
regarding the SSA’s discriminatory hiring practices, we conclude
that this testimony was “so tenuous as to amount to speculation
or conjecture,” and thus not useful in opposing a motion for
summary
judgment.
See
JKC
Holding
Co.
LLC
v.
Wash.
Sports
Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).
Accordingly, we affirm the district court’s judgment.
We
dispense
with
oral
argument
7
because
the
facts
and
legal
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contentions
are
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adequately
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presented
in
the
materials
before
this court and argument would not aid the decisional process.
AFFIRMED
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