Michael Moss v. BMC Software, Inc.

Filing 511162468

Michael Moss v. BMC Software, Inc.

Doc. 511162468

Case: 09-20488

Document: 00511162468

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Date Filed: 07/02/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
July 2, 2010 N o . 09-20488 Lyle W. Cayce Clerk

M I C H A E L MOSS P la in t iff - Appellant v. B M C SOFTWARE, INC. D e fe n d a n t - Appellee

A p p e a l from the United States District Court for the Southern District of Texas

B e fo r e BENAVIDES, STEWART, and SOUTHWICK, Circuit Judges. C A R L E. STEWART, Circuit Judge: M ic h a e l Moss, a commercial transactions and information technology la w y e r , brought this case alleging that software company BMC Software, Inc. (B M C ) violated the Age Discrimination in Employment Act, 29 U.S.C. § 621, et s e q . (ADEA), by declining to hire him when he applied for a Staff Legal Counsel p o s it io n . At that time, Moss was 68 years old. BMC instead hired a younger la w y e r . In response to Moss's claims, BMC asserted that the younger lawyer was t h e better qualified candidate. The district court granted summary judgment in fa v o r of BMC, concluding that Moss failed as a matter of law to show that he was c le a r ly more qualified than the candidate hired in order to establish pretext and h a d not proffered any direct evidence of discrimination. We AFFIRM.

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No. 09-20488 I . FACTUAL AND PROCEDURAL BACKGROUND A. Moss Applies for a Position at BMC I n September 2006, at the age of 68, Moss submitted his application for an in -h o u s e Staff Legal Counsel position with BMC, a company that develops, lic e n s e s , and markets software. BMC's job announcement included the following d e s c r ip t io n of the Staff Legal Counsel position: J o b Functions & Responsibilities: · M a n a g e the legal aspects of all transactions involving the c r e a t io n or acquisition of technology for resell [sic] to c u s t o m e r s either on a stand-alone basis or as part of a BMC p r o d u c t and subject to either BMC's or another party's end u s e r license, including OEM, Alliance, Development O u t s o u r c in g , Resell and other agreements. · M a n a g e the legal aspects of all transactions involving the c r e a t io n of migration routes for customers of withdrawn BMC p r o d u c ts and methods for extracting additional value from t h o s e products · C r e a te , implement, and maintain policies, processes and p r o g r a m s around the use of third party code · P r o v id e general legal support for R&D, Alliances, and other b u s in e s s groups S k ills Required: · A d v a n c e d legal drafting and negotiating skills, especially in a n IP licensing practice · A d v a n c e d legal and non-legal communication skills · A d v a n c e d team leadership and project management skills E d u c a t io n /T r a in in g Required: · J .D . from an accredited U.S. law school with top academic c r e d e n tia ls

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No. 09-20488 · F iv e or more years experience in a transactional IP practice T h e Staff Legal Counsel position would report to BMC's Associate General C o u n s e l, Catherine Stallworth. Prior to a restructuring of BMC's legal d e p a r t m e n t , Stallworth had been responsible for the matters that would be a s s u m e d by the Staff Legal Counsel and therefore she had the most familiarity w it h the type of work that would be performed by the successful candidate. S t a llw o r t h was responsible for making the final hiring decision. A fte r Moss applied for the position, he received no response from BMC. S t a llw o r t h stated that she rejected Moss's application because he did not have r e le v a n t experience and was therefore not qualified for the position. BMC c o n t in u e d to seek applications, and received an application from Monika Lim. W h e n Moss received no response to his application, he sent a letter d ir e c t ly to BMC's General Counsel, Denise Clolery. In the letter, Moss outlined in greater detail that he believed he possessed the necessary experience and s k ills for the open position. After receiving Moss's letter, Clolery forwarded his r e s u m e to Stallworth. According to Stallworth, she thought "it wouldn't hurt to c a ll" and ask Moss about some of the experience that he described in his letter. S t a llw o r t h conducted a telephone interview with Moss. During the conversation, M o s s stated that he had experience with what BMC referred to as OEM t r a n s a c t io n s , but that he used different terminology to describe that type of w o r k . Based on the telephone interview, Stallworth scheduled Moss for an inp e r s o n interview. Moss and Lim interviewed at BMC on the same day. Both candidates in t e r v ie w e d with Stallworth, Clolery, and two other members of the legal d e p a r t m e n t . At the conclusion of the interviews, the interviewers met to discuss

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No. 09-20488 t h e candidates and unanimously agreed that Moss lacked the hands-on e x p e r ie n c e with the specific transactions necessary for the Staff Legal Counsel p o s it io n , and would likely be unable to successfully and quickly assume the r e s p o n s ib i l i t i e s of the position. Moss was not offered the job. BMC hired Lim, w h o was substantially younger than Moss. B. Moss's Qualifications M o s s obtained his law degree from Berkeley in 1964 and then worked for t w o years at a litigation firm in California. He then joined a Chicago law firm, a n d made partner after three years. Moss remained at that firm as a partner for t h e next five years, until the firm dissolved. At that time, Moss formed another fir m with some of his former partners, Katten Muchin. There, Moss handled c o m p le x corporate transactions, became the firm's draftsman, and had a role in o v e r s e e in g all of the transactions that the firm handled. After eleven years with K a t t e n Muchin, Moss moved to another firm, Neiman & Grais, as a partner. Five years later, Moss joined Gordon & Glickson as a partner. Gordon & G lic k s o n was a specialized information technology (IT) law firm. For the next 14 y e a r s , Moss did nothing but IT transactions, which primarily involved software lic e n s in g . During that time, Moss was intimately involved in reviewing software lic e n s e agreements and modifying the agreements as necessary to protect his c lie n t s . Moss was responsible for translating all of the technical concepts of a d e a l into contract-grade wording. Moss also did a substantial amount of systems in t e g r a t io n work, which involved the installation of hardware and software a p p lic a t io n s to fit a customer's needs. In 2004, Moss retired from the firm.

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No. 09-20488 C. Lim's Qualifications L im received her law degree in 1997 from Regent University School of Law in Virginia and then worked for three years at a litigation firm in Irving, Texas. S h e subsequently spent one year working in Hong Kong as in-house counsel to a company offering satellite and multimedia broadcast services in Asia and the M id d le East. There she structured, negotiated, and drafted contracts with the c o m p a n y 's technology partners. Lim next moved to a position as in-house counsel for Landmark Graphics C o r p o r a t io n , a subsidiary of Halliburton Energy Services, where she had been w o r k in g for four years at the time she applied for the position at BMC. At L a n d m a r k , Lim handled software licensing and open source code legal issues, a n d her resume reflects responsibilities including: negotiating software lic e n s in g , managing open source legal issues, managing alliance partner m a t t e r s , and assisting with outsourcing. Lim handled several software OEM a g r e e m e n ts and was extensively involved in software licensing. Lim interacted w it h numerous internal client groups, balancing the various interests of those g r o u p s to manage transactions and projects related to software issues. D. ADEA Lawsuit I n March 2007, Moss filed a charge of age discrimination against BMC w it h the Equal Employment Opportunity Commission (EEOC) and in October 2 0 0 7 the EEOC issued a Notice of Right to Sue letter. In January 2008, Moss file d the present action in district court. The district court granted summary ju d g m e n t in favor of BMC, concluding that although Moss established a prima fa cie case of discrimination, BMC had advanced a legitimate, non-discriminatory r e a s o n for not hiring Moss. The district court held that, as a matter of law, Moss

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No. 09-20488 h a d failed to show that he was clearly more qualified than Lim in order to e s t a b lis h pretext, nor had he proffered any direct evidence of discrimination. II. DISCUSSION We review the grant of a motion for summary judgment de novo, applying t h e same standard as the district court. Threadgill v. Prudential Sec. Group, I n c ., 145 F.3d 286, 292 (5th Cir. 1998). Summary judgment is proper "if the p lea d in g s , the discovery and disclosure materials on file, and any affidavits show t h a t there is no genuine issue as to any material fact and that the movant is e n tit le d to judgment as a matter of law." FED. R. CIV. P. 56(c). When considering a motion for summary judgment, the court views all facts and evidence in the lig h t most favorable to the non-moving party. United Fire & Cas. Co. v. Hixson B r o s . Inc., 453 F.3d 283, 285 (5th Cir. 2006). Mere conclusory allegations are in s u ffic ie n t to defeat summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5 t h Cir. 1996). M o s s asserts that the district court erred in granting summary judgment b e c a u s e it improperly discounted his evidence that BMC's articulated reasons fo r not hiring him were pretext and because it improperly disregarded evidence o f a discriminatory intent. A. Pretext Analysis Under the ADEA, "[i]t shall be unlawful for an employer to fail or refuse t o hire . . . any individual or otherwise discriminate against any individual with r e s p e c t to his compensation, terms, conditions, or privileges of employment, b e c a u s e of such individual's age." 29 U.S.C. § 623(a)(1). To establish an ADEA c la im , "[a] plaintiff must prove by a preponderance of the evidence (which may

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No. 09-20488 b e direct or circumstantial), that age was the `but-for' cause of the challenged e m p lo y e r decision." Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2351 (2009). Applying the framework from McDonnell Douglas Corp. v. Green, 411 U.S. 7 9 2 , 802 (1973), "[a] plaintiff relying on circumstantial evidence must put forth a prima facie case, at which point the burden shifts to the employer to provide a legitimate, non-discriminatory reason for the employment decision." Berquist v . Washington Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007). If the employer a r t ic u la t e s a legitimate, non-discriminatory reason for the employment decision, t h e plaintiff must then be afforded an opportunity to rebut the employer's p u r p o r t e d explanation, to show that the reason given is merely pretextual. J a c k s o n v. Cal-Western Packaging Corp., 602 F.3d 374, 378­79 (5th Cir. 2010). I n determining whether the plaintiff's rebuttal precludes summary ju d g m e n t , "[t]he question is whether [the plaintiff] has shown that there is a g e n u in e issue of material fact as to whether this reason was pretextual." Id. A p la in t iff may show pretext "either through evidence of disparate treatment or by s h o w in g that the employer's proffered explanation is false or `unworthy of c r e d e n c e .'" Id. (quoting Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)). A s h o w in g that the unsuccessful employee was "`clearly better qualified' (as o p p o s e d to merely better or as qualified) than the employees who are selected" w ill be sufficient to prove that the employer's proffered reasons are pretextual. E E O C v. La. Office of Cmty. Servs., 47 F.3d 1438, 1444 (5th Cir. 1995). 1. Whether Moss was "Clearly Better Qualified" than Lim T h e parties agree that Moss made out a prima facie case of age d is c r im in a t io n and that BMC has asserted a legitimate, nondiscriminatory r e a s o n for hiring Lim. The contested issues arise under the pretext stage of the

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No. 09-20488 a n a ly s is . Moss first asserts that he has presented sufficient evidence to create a genuine issue of material fact as to whether he was clearly better qualified t h a n Lim for the Staff Legal Counsel position. T o show that he was "clearly better qualified" than Lim and raise a fact q u e s t io n as to whether discrimination was a factor in BMC's hiring decisions, M o s s must present evidence from which a jury could conclude that "no r e a s o n a b le person, in the exercise of impartial judgment, could have chosen the c a n d id a t e selected over the plaintiff for the job in question." Deines v. Texas D e p 't of Protective & Regulatory Servs., 164 F.3d 277, 280­81 (5th Cir. 1999). " [U ]n le s s the qualifications are so widely disparate that no reasonable employer w o u ld have made the same decision," id., any "differences in qualifications are g e n e r a lly not probative evidence of discrimination," Celestine v. Petroleos de V e n e z u e lla SA, 266 F.3d 343, 357 (5th Cir. 2001). Thus, "the bar is set high for t h is kind of evidence." Id. a. Quality and Extent of Experience v. Specific Experience Moss first claims that he was clearly better qualified than Lim for the S t a ff Legal Counsel job based on the higher quality and extent of his legal e x p e r ie n c e with IT licensing and commercial transactions. BMC responds that d e s p it e Moss's excellent qualifications and greater length of experience, Lim's w o r k experience was better suited to the specific needs of BMC--particularly w it h respect to the OEM transactions for which the Staff Legal Counsel would b e responsible. " [A ]n `attempt to equate years served with superior qualifications . . . [is] u n p e r s u a s iv e .'" Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir. 1996) (q u o tin g Bodenheimer v. PPG Indus., 5 F.3d 955, 959 (5th Cir. 1993)).

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No. 09-20488 " O b v io u s ly , work experience is one component of defining who is more qualified," b u t "greater experience alone will not suffice to raise a fact question as to w h e t h e r one person is clearly more qualified than another." Id. (internal q u o t a t io n s and citations omitted). In EEOC v. Louisiana Office of Community S e r v ic e s , this court recognized that the fact that a candidate's experience is r e c e n t and specialized in relation to the job at issue is a consideration relevant t o qualification, in addition to simple length of experience. 47 F.3d at 1444­45; s e e also Odom v. Frank, 3 F.3d 839, 846 (5th Cir. 1993) (noting that the hired c a n d id a t e "had significant recent experience in several of the . . . areas that were m o s t relevant to the new position. . . . Most of the work for which [plaintiff] had b e e n primarily responsible during the several years preceding [ ] the application p r o c e s s simply was not relevant to the new position."). As the district court noted, both Moss and Lim met the basic skills and e d u c a t io n requirements for the job. Both had a J.D. from an accredited law s c h o o l, had five or more years of experience in a transactional IP practice, had a record of advanced legal drafting and negotiating skills in an IP licensing p r a c t ic e , and had demonstrated advanced communication, leadership, and p r o je c t management skills. A review of the two resumes demonstrates that Moss u n d o u b t e d ly has more experience and higher-level experience generally. But M o s s ' undisputedly lengthier tenure of experience--fourteen years practicing IT la w compared with Lim's five years--does not necessarily demonstrate superior q u a lific a t io n s . Nichols, 81 F.3d at 42. BMC asserts that handling OEM agreements was a critical responsibility o f the position. Consequently, BMC claims, because Lim's experience with OEM s o ft w a r e transactions "was directly on point" for the specific needs of the Staff

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No. 09-20488 L e g a l Counsel position, and Moss simply lacked experience with the type of O E M software agreements for which the attorney hired would be responsible, he c a n n o t show that he was "clearly better qualified" for the position than Lim. M o s s argues that, contrary to BMC's assertions, he has extensive experience w o r k in g on OEM transactions or similar OEM-type transactions. B e y o n d his own conclusory assertions, Moss advances no evidence that he h a s experience with OEM transactions. OEM refers to Original Equipment M a n u f a c t u r e r ; in the software context an OEM agreement refers to an a g r e e m e n t under which a party licenses software from another company and r e s e lls that software as its own or as part of a larger software product it owns or lic e n s e s . Moss described his areas of principal expertise as IT outsourcing and s y s t e m s integration. Although Moss claims that his areas of experience dealt w it h "identical issues which BMC was required to address in handling the t r a n s a c t io n s that they labeled as `OEM agreements,'" his deposition testimony r e g a r d in g his OEM-type work experience was vague: he discussed his work in b r o a d terms of contract, he had trouble with software-specific technical t e r m in o lo g y , and he could not detail how his prior deals involved OEM-type w o r k . He revealed his lack of familiarity with OEM transactions in the software c o n t e x t when he frankly admitted that in order to prepare for his deposition he " p u lle d an OEM license agreement . . . just to see what--in a conventional s e t t in g , where the licensee was somebody situated similarly to BMC--what they w o u l d consider the issues to be . . . I just looked it up on Google. I looked up O E M software licenses."1 Moreover, Moss forthrightly stated in his deposition

1

The excerpt from the deposition is included below:

Q: Did you review any other documents, sir, in preparation for the deposition,

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No. 09-20488 t e s t im o n y that during his interview with Stallworth, "[o]nce she went into the b u s in e s s about how the OEM was really the key to the deal, I made it very clear t o her that OEM was not an area of specialty for me . . . ." 2 He further stated t h a t "I [ ] hadn't spent time with the sole transaction being a deal that you could id e n tify as a self-contained OEM licensing deal." 3

other than those that you have just mentioned? . . . A: I thought of one. I pulled--and I don't even remember the source or who it was, or whatever--but I pulled an OEM license agreement, because that has been the subject of so much discussion here, just to see what--in a conventional setting, where the licensee was somebody situated similarly to BMC--what they would consider the issues to be, and to see how that stacked up against the discussions that I had with Catherine Stallworth in my initial interview with her, where we had a discussion of OEM software licenses. Q: Okay. And, specifically what OEM license agreement did you pull? A: I don't remember. . . . I just looked it up on Google. I looked up OEM software licenses. And one of the links that came up was to a license agreement with a company that looked to me like a large sized company that might in some way--that it--I assumed they were themselves an original producer, manufacturer, whatever of software, a la BMC; so I thought that might be reasonably representative.
2

To place the statement in context, the entire excerpt from the deposition states:

Q: Do you remember anything else about that call, what you shared with Ms. Stallworth with regard to your qualifications for the position? A: Well, one thing stands out in my mind. And that is, I think I bent over backwards to tell her what I wasn't, and what I didn't have. Once she went into the business about how the OEM was really the key to the deal, I made it very clear to her OEM was not an area of specialty for me, that I had done transactions relating to it, and transactions that actually amounted to an OEM, but where we didn't so label it. And, therefore, you know, she should be aware that if she was looking for somebody who had been doing nothing or nearly nothing but OEM inbound licenses, I wasn't that person.
3

This statement appeared in the following context:

Q: What, specifically, did [Stallworth] say to you, that indicated to you . . . that the breadth of your experience would be something that the group could exploit?

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No. 09-20488 B M C 's employment requisition form and job announcement also stated t h a t , in addition to OEM agreements, the Staff Legal Counsel would be r e s p o n s ib le for Alliance and Development Outsourcing agreements. Regarding t h e term "alliance" in the job announcement, Moss stated that: I didn't know what the heck it meant. . . . they use jargon all the t im e in the IT industry--I wasn't sure what "alliance" meant. But t o the extent it seemed to suggest [ ] more than one party on the s a m e side of a transaction, where their interests are more or less a lig n e d , yeah, I have done that many times. I n the software development industry, according to Stallworth, "alliance work is when you use a peer or a similar company's technology for testing and d e v e lo p m e n t , [or] compatibility testing. Sometimes it also has a marketing c o n n o t a t io n ." With respect to Development Outsourcing, Moss stated "I don't k n o w that there is such a concept, at least in my lexicon, as development

... A: --she said: Boy, you--something like: You've really covered a lot of stuff. And, you know--this is part of the same conversation--you know [ ] so much about software licensing, there won't be any trouble with OEM. And, moreover, you know so much other stuff, you could be a real asset around here. You could help other people. You could teach other people. You could fill in, in various places. She might even have used the term "mentoring" or "training" or something. But definitely, we got into the topic that my--the breadth of my background would be an asset. I mean, I came away from that first conversation--literally--I don't want to exaggerate--thinking: I got this job, unless there's something weird going on here. I thought she got it. I thought she knew exactly what I could do. [ ] I gave her every opportunity, with all the [ ] you know, what she might view as the glitches in there about the fact that I didn't--hadn't spent time with the sole transaction being a deal that you could identify as a self-contained OEM licensing deal. That was all before her. She knew that I had never done an open source deal. All these things that are negatives were all out there. And notwithstanding all of that, she's telling me: I want you back. I want you to run through all these other people. And giving me a very strong sense verbally . . . that she really thought I would have the job, that she wanted me to do the job, and that she thought that I would get the job.

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No. 09-20488 o u ts o u r c in g . Maybe it means something at BMC. But to me . . . development and o u ts o u r c in g are two different concepts. . . . I took those not to be a combined t e r m because, to me, that was almost gibberish." At BMC, Stallworth explained, a development outsourcing agreement is "an agreement where you engage s o m e b o d y else to take over your development function . . . the creation of s o ft w a r e products." The fact that Moss's experience, however extensive, did not e n ta il familiarity with OEM, Alliance, and Development Outsourcing a g r e e m en ts in the software context--the specific transactions for which the Staff L e g a l Counsel would be responsible--was relevant to the hiring decision. Odom, 3 F.3d at 846. Because Moss lacked experience with the three specific types of t r a n s a c t io n s that comprised the primary responsibilities of the Staff Legal C o u n s e l, whereas Lim had been performing precisely those types of transactions in her prior job, Moss cannot show that he was "clearly better qualified" than L im for the position. Although Moss' accomplishments and qualifications are u n q u e s t io n a b ly impressive, as this court has stated on numerous occasions: The ADEA was not intended to be a vehicle for judicial s e c o n d -g u e s s in g of employment decisions nor was it intended to t r a n s f o r m the courts into personnel managers. The ADEA cannot p r o t e c t older employees from erroneous or even arbitrary personnel d e c is io n s , but only from decisions which are unlawfully motivated. Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1507­08 (5th Cir. 1988). b . Validity of the Emphasis on OEM Transactions M o s s further argues that even if experience or lack thereof as to one p a r tic u la r type of transaction may in some situations be dispositive of a hiring d e c is io n , such is not the case here. He asserts that BMC's emphasis on OEM

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No. 09-20488 t r a n s a c t io n s "smacks of pretext" because BMC overlooked Moss's superior e x p e r ie n c e as to the other responsibilities covered by the job. An employer's reliance on a previously unmentioned job requirement to ju s tify a challenged hiring decision would raise a genuine issue of material fact a s to pretext. See Bergene v. Salt River Project Agric. Improvement & Power D is t., 272 F.3d 1136, 1143 (9th Cir. 2001) (holding that the fact-finder could r e g a r d an employer's explanation as pretextual when the person promoted b e c a m e qualified for the position only after a change in the job requirements); W illia m s v. Nashville Network, 132 F.3d 1123, 1132­33 (6th Cir. 1997) (per c u r ia m ) (holding that the fact-finder might view the employer's explanation as p r e t e x t u a l when the employer's proffered reason for hiring another candidate w a s not a listed job requirement). Here, for example, BMC also cites Moss's lack o f experience with open source licensing and Lim's experience as in-house c o u n s e l as influencing their conclusion that Lim was better qualified for the S t a ff Legal Counsel position. Neither experience with open source licensing nor e x p e r ie n c e as in-house counsel, however, were listed in the job announcement o r BMC's internal job requisition form as responsibilities or desired q u a lific a t io n s ; although these qualifications are likely relevant to the position, w e do not consider them for purposes of summary judgment. Our review demonstrates that BMC's emphasis on hands-on experience w it h OEM, Development Outsourcing, and Alliance transactions is supported by t h e record. Not only were these responsibilities listed in the job announcement a n d BMC's internal job requisition form, but the affidavits and deposition t e s t im o n y of Stallworth, Clolery, Lim, and other members of the legal d e p a r t m e n t confirm that experience with these specific agreements was a

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No. 09-20488 c e n t r a l and legitimate hiring consideration. Clolery stated that "the key r e s p o n s ib ilit y of this position was to handle the very important OEM t r a n s a c t io n s , both inbound and outbound, that BMC was involved in." S t a llw o r t h said that the Staff Legal Counsel was expected to spend a p p r o x im a t e ly 70% of his or her time on managing transactions involving the c r e a t io n or acquisition of technology for resell to customers through OEM, A llia n c e , Development Outsourcing, and Resell agreements. The BMC legal d e p a r t m e n t therefore commonly referred to the Staff Legal Counsel position as t h e "OEM Attorney" position. Clolery further explained that BMC needed the n e w hire to "get up to speed quickly" and Stallworth similarly stated that BMC n e e d e d an individual in the Staff Legal Counsel position who could "hit the g r o u n d running" and "operate immediately with little supervision." They t h e r e fo r e believed that someone who had previously worked on these specialized t y p e s of transactions in the software context would be optimal. L im confirms that the focus on OEM transactions was genuine: she stated t h a t during her interview Stallworth asked about her software licensing e x p e r ie n c e and her reseller OEM experience. She explained in her deposition t h a t the primary responsibilities of the job were "[n]egotiating OEM agreements a n d responsibility in general for the legal portions of OEM agreements. . . . o v e r s e e [in g ] the open source program, the reseller contracts which were the m a r k e t zone contracts, alliance agreements and general questions from R and D ." When she started with BMC she worked mainly on "OEM agreements, a llia n c e agreements, market zone agreements. . . ." M o s s argues that the evidence offered by BMC and relied on by the district c o u r t was not proper summary judgment evidence because it consisted of

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No. 09-20488 " [B M C 's ] own self-serving statements." But "[s]worn affidavits . . . are certainly a p p r o p r ia te for review on a Rule 56 motion for summary judgment" and Moss h a s proffered no evidence suggesting this testimony to be less than truthful. E E O C v. WC&M Enters., Inc., 496 F.3d 393, 398 (5th Cir. 2007). Moreover, Moss h a s not asserted in the district court or on appeal that additional discovery w o u ld produce a quality or quantity of evidence different from the current s u m m a r y judgment record. Therefore, as the district court concluded, Moss lacks e v id e n c e of pretext, and as a matter of law would not be able to prove "that age w a s the `but-for' cause of the challenged adverse employment action." Gross, 129 S . Ct. at 2352. 2 . Standard for Pretext Claims Based on Superior Qualifications M o s s next argues that the district court erred by applying a heightened s t a n d a r d in comparing his qualifications to Lim's--a standard that has been r e je c t e d by the Supreme Court. In its summary judgment order, the district c o u r t stated that: A court can infer pretext if it determines that the plaintiff was " c le a r ly better qualified (as opposed to merely better or as qualified) t h a n the employee[ ] who [was] selected." Office of Cmty. Serv., 47 F .3 d at 1444. To demonstrate that the employee who was selected is clearly better qualified than the defendant, the plaintiff must s h o w that "disparities in curricula vitae are so apparent as to jump o ff the page and slap [the fact finder] in the face." Odom v. Frank, 3 F.3d 839, 847 (5th Cir. 1993). T h e standard articulated in the first sentence, "clearly better qualified," is good law. Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408, 4 1 2 (5th Cir. 2007). In Ash v. Tyson Foods, Inc., however, the Supreme Court h e ld that the Eleventh Circuit "erred in articulating the standard for d e t e r m in in g whether the asserted nondiscriminatory reasons for [the 16

Case: 09-20488

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No. 09-20488 e m p lo y e r 's ] hiring decisions were pretextual" when it stated that "[p]retext can b e established through comparing qualifications only when the disparity in q u a lific a t io n s is so apparent as virtually to jump off the page and slap you in the fa c e ." 546 U.S. 454, 456­57 (2006) (internal citations and quotation marks o m itte d ). T h e district court erred by reciting the "slap you in the face" standard. A lt h o u g h the district court stated the incorrect standard, however, its careful a n d fact-specific analysis reflects that it actually applied the proper standard. R e g a r d le s s , as discussed above, summary judgment was appropriate under the c o r r e c t "clearly better qualified" standard. See Holtzclaw v. DSC Comm'n. Corp., 2 5 5 F.3d 254, 258 (5th Cir. 2001) (a panel may "affirm summary judgment on a n y ground supported by the record, even if it is different from that relied on by t h e district court."). 3 . Disparate Opportunity to Interview M o s s also claims that BMC's failure to request an interview after he in it ia lly submitted his resume, and the fact that his interview with Stallworth w a s cut short, function as evidence of pretext. As BMC notes, however, Moss's asserted qualifications for the job were not a p p a r e n t from the face of his resume. On that basis, Stallworth attested that she in it ia lly determined that Moss did not have the requisite experience and chose n o t to interview him. Moss's subsequent cover letter to Clolery outlined e x p e r ie n c e related to the position which was not included in his previously s u b m it t e d resume. Accordingly, Moss's argument that he was not provided an in t e r v ie w before he submitted a cover letter which he patterned after BMC's job p o s t in g does not show pretext.

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No. 09-20488 M o s s 's argument that his interview with Stallworth was shorter than L im 's also does not show pretext. Moss's interview process consisted of a lengthy p h o n e interview with Stallworth, and on-site interviews with Stallworth and o t h e r senior BMC lawyers. Moss had sufficient time during the interview process t o present his qualifications to BMC. Further, the timing of Moss's interview w it h Stallworth is not evidence of discrimination as the schedule was d e t e r m in e d by BMC's human resources department based on the interviewers' a v a ila b ilit y . Therefore, the fact that Stallworth was last on Moss's interview s c h e d u le and he spent more time than allotted with the other interviewers, r e s u lt in g in less time with Stallworth, does not show pretext. B. Motivating Factor M o s s asserts that he presented ample evidence that age discrimination w a s a motivating factor in BMC's decision not to hire him, sufficient to survive s u m m a r y judgment. In Gross v. FBL Financial Services, Inc., however, the S u p r e m e Court rejected the application of Title VII's "motivating factor" s t a n d a r d to ADEA cases. Gross, 129 S. Ct. at 2349­51. A plaintiff bringing an A D E A claim must prove, by a preponderance of the evidence, that age was the " b u t -fo r " cause of the challenged adverse employment action. Id. at 2345. In light o f the Supreme Court's holding in Gross, to the extent that Moss alleges that d is c r im in a t io n was a motivating factor--rather than the "but for" cause--in B M C 's decision not to hire him, his claims must fail. C. Direct Evidence of Discriminatory Animus M o s s 's final argument is that remarks by Stallworth serve as direct e v id e n c e of age discrimination. Specifically, Moss asserts that Stallworth's c o m m e n t that she was searching for a lawyer at a "more junior" level than

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No. 09-20488 h e r s e lf functions as direct evidence of discrimination. BMC claims that S t a llw o r t h 's comment was facially neutral and not probative of age d is c r im in a t io n . In some ADEA cases, evidence of pretext is not needed. Rachid v. Jack in th e Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004). In Rachid, for example, the p la in t iff presented evidence that the decision maker told the plaintiff ". . . you're t o o old." Id. at 315. The court held that "such comments preclude summary ju d g m e n t because a rational trier of fact could conclude that age played a role in [the employer's] decision to terminate [plaintiff]." Id. at 315­16. However, this c o u r t has also "repeatedly held that `stray remarks' do not demonstrate age d is c r im in a t io n ." EEOC v. Texas Instruments, Inc., 100 F.3d 1173, 1181 (5th Cir. 1 9 9 6 ). "In order for an age-based comment to be probative of an employer's d is c r im in a t o r y intent, it must be direct and unambiguous, allowing a reasonable ju r y to conclude without any inferences or presumptions that age was an im p e r m is s ib le factor in the decision to terminate the employee." Id. (citing B o d e n h e im e r , 5 F.3d at 958). "Remarks may serve as sufficient evidence of age d is c r im in a t io n if they are: 1) age related, 2) proximate in time to the e m p l o y m e n t decision, 3) made by an individual with authority over the e m p lo y m e n t decision at issue, and 4) related to the employment decision at is s u e ." Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 683 (5th Cir. 2001). S t a llw o r t h testified that her statement relating to hiring someone at a " m o r e junior level" referenced the need to hire an attorney at a lower level in the o r g a n iz a t io n , as opposed to the age of the desired candidate. She explained that a ft e r her "role changed" and her responsibilities increased at BMC, the Staff L e g a l Counsel position was created to assume some of her previous

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No. 09-20488 r e s p o n s ib ilit ie s , but that they did "not necessarily need someone with [her] level o f general experience as [she] would be available to get involved in major m a t t e r s if needed." As BMC notes, in this context "more junior level" could very w e ll refer to an older individual who went to law school later in life or otherwise h a d less experience, who would come into the position at a "more junior level" t h a n Stallworth. In fact, Moss himself characterizes the position as "effectively a n entry level position." After reviewing the record, we conclude that S t a llw o r t h 's comment was consistent with the evidence regarding the position, t h e proposed salary of $8,000-$11,000 per month, and the hierarchy of BMC's le g a l department. Stallworth's comment was not "direct and unambiguous" or e v e n age-related, and therefore not "probative of [BMC's] discriminatory intent." T e x a s Instruments, Inc., 100 F.3d at 1181. III. CONCLUSION For the reasons discussed, we AFFIRM the judgment of the district court.

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