Juan Gonzalez v. City of San Antonio
Filing
UNPUBLISHED OPINION FILED. [12-50472 Affirmed ] Judge: CDK , Judge: EBC , Judge: SAH Mandate pull date is 04/02/2013 [12-50472]
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IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit
FILED
March 12, 2013
No. 12-50472
Summary Calendar
Lyle W. Cayce
Clerk
JUAN O. GONZALEZ,
Plaintiff-Appellant
v.
CITY OF SAN ANTONIO,
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Texas
No. 5:11-CV-00375
Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Juan Gonzalez appeals the district court’s grant of summary judgment to
the City of San Antonio with respect to his claim of age discrimination. Because
Gonzalez failed to show a genuine issue of material fact that the City of San
Antonio’s reasons for not hiring him for a parking attendant position were
pretextual, we AFFIRM.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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I. FACTUAL AND PROCEDURAL BACKGROUND
Juan Gonzalez was first employed by the City of San Antonio (“the City”)
in 2004 as a part-time parking attendant. He was promoted to a full-time
position in 2005, but returned to a part-time schedule in 2006 when his wife
became ill. In 2009, Gonzalez applied for one of the City’s three newly-opened,
full-time parking attendant positions. The City interviewed multiple applicants,
including Gonzalez, for the positions. The interview panel consisted of Ann Cruz
and Elida Canales, both employees of the City’s Parking Division. Ultimately,
Adam Ortiz, Alison Recendez, and Sofia Coronado (collectively “the selected
applicants”) were chosen over Gonzalez. All three of the selected applicants were
approved by the Division Manager of the Parking Division, Kenneth Appedole.
On February 20, 2010, Gonzalez filed a complaint with the Equal
Employment Opportunity Commission (“EEOC”) alleging discrimination under
the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq.
The EEOC determined that the evidence established an ADEA violation and
provided a “notice of right to sue” letter. On May 12, 2011, Gonzalez filed his
original complaint against the City, alleging discrimination on the basis of his
age in violation of the ADEA.1 The City filed a motion for summary judgment,
which the district court granted, stating that Gonzalez “failed to present
evidence from which a reasonable juror could conclude that the City’s articulated
reason for Gonzalez’s nonselection . . . is unworthy of credence.” The court also
held that a reasonable jury “could not conclude Gonzalez was ‘clearly’ better
qualified than the three persons selected.” Gonzalez timely appeals.
1
At the time this case was filed, Gonzalez was 68 years old, Ortiz was 33 years old,
Recendez was 23 years old, and Coronado was 35 years old.
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II. STANDARD OF REVIEW
We review a grant of summary judgment de novo, applying the same
standard as the district court. Moss v. BMC Software, Inc., 610 F.3d 917, 922
(5th Cir. 2010). Summary judgment is appropriate when, viewing the evidence
in the light most favorable to the non-moving party, the record 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).
III. ANALYSIS
The ADEA prohibits an employer from “fail[ing] or refus[ing] to hire . . .
any individual or otherwise discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment, because of
such individual’s age.” 29 U.S.C. § 623(a)(1). “To establish an ADEA claim, ‘[a]
plaintiff must prove by a preponderance of the evidence (which may be direct or
circumstantial), that age was the “but-for” cause of the challenged employer
decision.’” Moss, 610 F.3d at 922 (alteration in original) (quoting Gross v. FBL
Fin. Servs., Inc., 557 U.S. 167, 177–78 (2009)).
When, as here, a plaintiff’s claim under the ADEA is based purely on
circumstantial evidence, we review a district court’s grant of summary judgment
in favor of the employer using the framework set forth by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973). See Patrick v.
Ridge, 394 F.3d 311, 315 (5th Cir. 2004). “Although intermediate evidentiary
burdens shift back and forth under this framework, ‘the ultimate burden of
[showing] that the defendant intentionally discriminated against the plaintiff
remains at all times with the plaintiff.’” Reeves v. Sanderson Plumbing Prods.
Inc., 530 U.S. 133, 143 (2000) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 253 (1981)). Under the McDonnell Douglas framework, a plaintiff
must first establish a prima facie case of age discrimination. Both parties in this
case concede that Gonzalez has established a prima facie case by showing that
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(1) he belongs to the class of individuals protected under the ADEA, (2) he
applied for and was qualified for the parking attendant position, (3) he was
rejected, and (4) younger applicants were hired. See, e.g., Medina v. Ramsey
Steel Co., 238 F.3d 674, 680–81 (5th Cir. 2001).
Once Gonzalez established a prima facie case of age discrimination, the
burden of production shifted to the City to show “a legitimate, nondiscriminatory
reason for the employment decision.” Moss, 610 F.3d at 922. The City contends
that Gonzalez was not selected for a parking attendant position because he
scored lower than the selected applicants during the interview process. As
evidence of this justification, the City provided the deposition testimony of Ann
Cruz and Elida Canales, the affidavit and interview forms completed by Cruz
and Canales for each person interviewed, and the affidavit of Kenneth Appedole,
the City’s Parking Division Manager. The district court correctly found this
evidence to be sufficient to establish a legitimate, nondiscriminatory reason for
not hiring Gonzalez. See Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir.
2002) (explaining that the defendant’s burden at this stage “is satisfied by
producing evidence, which, taken as true, would permit the conclusion that there
was a nondiscriminatory reason for the adverse action” (internal quotation
marks and citation omitted)).
At this point, the burden shifted back to Gonzalez to show that the City’s
proffered reasons for its hiring decisions were merely pretext for the City’s desire
to recruit younger employees over older ones such as Gonzalez. See Crawford
v. Formosa Plastics Corp., La., 234 F.3d 899, 902 (5th Cir. 2000).
“In
determining whether [a plaintiff’s] rebuttal rescues him from summary
judgment, we look to whether he has ‘raise[d] a genuine issue of material fact as
to whether he has established pretext.’” Haas v. ADVO Sys., Inc., 168 F.3d 732,
733 (5th Cir. 1999) (second alteration in original) (quoting Nichols v. Loral
Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996).
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In assessing a claim of pretext, “we look at rebuttal evidence in tandem
with evidence presented as part of the prima facie case.” Id. Rebuttal evidence
showing the plaintiff to be “clearly better qualified” than the selected applicants
is sufficient to establish pretext. EEOC v. La. Office of Cmty. Servs., 47 F.3d
1438, 1444 (5th Cir. 1995). A plaintiff can also establish pretext by showing that
the employer’s proffered reason was not the real reason for its employment
decision. See Laxton v. Gap Inc., 333 F.3d 572, 579 (5th Cir. 2003) (“Our concern
is whether the evidence supports an inference that [the employer] intentionally
discriminated against [the applicant], an inference that can be drawn if its
proffered reason was not the real reason for [the decision].”). Gonzalez argues
that the City’s reason for not hiring him was pretextual because he was clearly
better qualified than the chosen applicants and because the evidence shows that
the City’s proffered reason for its decision was not genuine. He also argues that
the EEOC’s findings in his favor corroborate his claim that the City declined to
hire him on account of his age.
A. Gonzalez did not Demonstrate that He is Clearly Better Qualified
Under the ADEA,“[a] showing that the unsuccessful employee was ‘clearly
better qualified (as opposed to merely better or as qualified) than the employees
who are selected’ will be sufficient to prove that the employer’s proffered reasons
are pretextual.” Moss, 610 F.3d at 922 (internal quotation marks omitted)
(quoting EEOC, 47 F.3d at 1444). However, as we have previously held, “the bar
is set high for this kind of evidence.” Celestine v. Petroleos de Venezuella SA, 266
F.3d 343, 357 (5th Cir. 2001). In order to show that he was clearly better
qualified, Gonzalez must “present evidence from which a jury could conclude
that ‘no reasonable person, in the exercise of impartial judgment, could have
chosen the candidate selected over [him] for the job in question.’” Moss, 610 F.3d
at 923 (quoting Deines v. Tex. Dep’t of Protective & Regulatory Servs., 164 F.3d
277, 280–81 (5th Cir. 1999)).
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Gonzalez provides several arguments in support of his claim that he was
clearly better qualified than the three individuals who were hired. First,
Gonzalez accurately states that he had more experience working as a parking
attendant than any of the selected applicants.2
While Gonzalez’s prior
experience as a parking attendant is certainly relevant to the City’s assessment
of his qualifications, we previously have held that a candidate’s “better
education, work experience, and longer tenure with [a] company do not establish
that he is clearly better qualified.” Price, 283 F.3d at 723.
Here, Gonzalez has not convincingly demonstrated that having more
experience as a parking attendant should be necessarily equated with possessing
clearly superior qualifications. See Moss, 610 F.3d at 923. Indeed, the City
submits that such experience was not the only factor it considered in making its
decisions. For example, the City noted that although one applicant had no
experience as a parking attendant, she had additional years of experience in
another position requiring similar qualifications.
Further, in contrast to
Gonzalez, another candidate with experience as a parking attendant expressed
willingness to receive additional job-related training. Therefore, even though
Gonzalez had more experience as a parking attendant than the selected
applicants, that experience alone does not indicate that he was clearly better
qualified. Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 959 (5th Cir.1993).
Gonzalez also contends that he was clearly better qualified than the
chosen applicants due to his better attendance and cash-handling records and
his reputation among his superiors as an excellent employee. Although a direct
comparison of the applicants’ statistics confirms that Gonzalez missed fewer
2
At the time the City conducted interviews for the parking attendant positions,
Gonzalez had worked as a part-time parking attendant for 48 months and full time for one
year; Ortiz had worked as a part-time parking attendant for 4 months and had not worked full
time; Recendez had not ever worked as a parking attendant; and Coronado had worked as a
part-time parking attendant for 13 months and had not worked full time.
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days and had fewer overages or shortages than the other applicants, this ignores
the fact that the City used a rating system based on interview answers as the
primary determinant in its hiring process.3 A comparison of the ratings given
by both Cruz and Canales to the applicants demonstrates that Gonzalez’s overall
score was lower than the scores of the selected applicants.4 Based on these
results, the City chose to hire Ortiz, Recendez, and Coronado over Gonzalez.
Any resulting disagreement over whether Gonzalez should have been hired
“merely constitutes a difference of opinion . . . [over] employment decisions that
this court will not presume to second guess.” Cramer v. NEC Corp. of Am., No.
12-10236, 2012 WL 5489395, at *3 (5th Cir. 2012) (unpublished).
Furthermore, the comments of some City employees touting Gonzalez’s
work ethic do not raise a genuine issue of material fact as to whether Gonzalez
was clearly better qualified than the selected applicants. For example, Brenda
Hocott, a Parking Department Supervisor, testified that Gonzalez was “an
excellent employee” and identified some problems that Hocott had experienced
with at least one of the selected applicants. However, as the district court
observed, neither Hocott’s nor the other supervisors’ testimony directly compares
Gonzalez’s qualifications with those of the selected applicants. Although Hocott
might have believed Gonzalez to be a better applicant than those who were
3
In any event, we also note that the statistical disparities between the candidates are
not so great as to evidence that Gonzalez was clearly better qualified than the selected
applicants.
4
After each of their interviews, the applicants received a rating for certain enumerated
job qualifications based on the applicant’s answers to relevant questions. The ratings were
given on the following scale, from best to worst: Great Response, Good Response, Average
Response, and Poor Response. Both Cruz and Canales gave ratings to Ortiz, Recendez,
Coronado, and Gonzalez. Ortiz received “Good Response” ratings from Cruz and Canales in
every category but one, and Recendez and Coronado received “Good Response” ratings from
Cruz and Canales in all of the categories. In contrast, Gonzalez received “Average Response”
ratings from Cruz in all the categories, and received two “Poor Response,” one “Average
Response,” and two “Good Response” ratings from Canales.
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selected, her testimony does not support the conclusion that he was clearly
better qualified for the position. Since Gonzalez’s and the selected applicants’
qualifications were not “so widely disparate that no reasonable employer would
have made the same decision,” Moss, 610 F.3d at 923 (quoting Deines, 164 F.3d
at 280–81), any differences in qualifications among them is “not probative
evidence of discrimination.” Moss, 610 F.3d at 923 (quoting Celestine, 266 F.3d
at 357).
As Gonzalez has failed to show that he was clearly more qualified than the
selected candidates, we need not proceed to evaluate whether the City “made the
best hiring decision or even a good decision.” Cramer, 2012 WL 5489395, at *3.
“Whether the employer’s decision was the correct one, or the fair one, or the best
one is not a question within [our] province to decide. The single issue [before us]
is whether the employer’s selection of a particular applicant over the plaintiff
was motivated by discrimination.” Deines, 164 F.3d at 281. Here, the City
justified its hiring decisions with ample evidence to support its view that the
selected applicants were more qualified than Gonzalez to be parking attendants.
Gonzalez has failed to show that he is clearly better qualified than the selected
applicants, and, by extension, that the City’s proffered explanations for its hiring
decisions are pretextual.
B. Proffered Explanation is not False or Unworthy of Credence
Gonzalez also argues that he has established pretext by providing evidence
that the City’s explanation of its hiring decisions was not truthful. See Laxton,
333 F.3d at 578 (“Evidence demonstrating that the employer’s explanation is
false or unworthy of credence, taken together with the plaintiff’s prima facie
case, is likely to support an inference of discrimination even without further
evidence of defendant’s true motive.”). “An explanation is false or unworthy of
credence if it is not the real reason for the adverse employment action.” Id.
Thus, Gonzalez must produce evidence, viewed in the light most favorable to
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him, that would permit a reasonable jury to believe that the City’s proffered
reason for not hiring him was not its true reason, but rather was pretext for a
discriminatory reason. See Vaughn v. Woodforest Bank, 665 F.3d 632, 637 (5th
Cir. 2011).
According to Gonzalez, the City’s proffered reason for hiring the younger
applicants—that they received higher ratings in their interviews—is false or
unworthy of credence because the City’s employees allegedly did not follow
established hiring procedures and were dishonest about the decisionmaking
process. Ultimately, however, Gonzalez’s arguments do not suffice to raise a
genuine issue of material fact concerning whether the City’s explanations for its
decision were pretextual.
Gonzalez contends that the City deviated from its normal hiring and
selection policies in choosing the three younger applicants over him.
We
previously have held that an employer’s intentional and deliberate departure
from its stated hiring policies can “create a material issue of disputed fact as to
whether the employer’s explanation was false.” Blow v. City of San Antonio, 236
F.3d 293, 298 (5th Cir. 2001). In Blow, for instance, the plaintiff introduced
extensive evidence as to the defendant-employer’s documented hiring procedures
to demonstrate that the employer’s deviation from those procedures was
motivated by intent to discriminate. Id. at 295, 297. We concluded that this
rebuttal evidence was sufficient to save the plaintiff from summary judgment
because it raised a genuine issue of material fact as to whether the employer’s
proffered explanation for its hiring decision was false or unworthy of credence.
Id. at 298.
Here, however, Gonzalez has failed even to show that the City deviated
from its usual hiring practice or established policy in any meaningful way.
Gonzalez contends that, in conducting his interview, the City employed a twoperson panel instead of a three-person panel. He also alleges that the ultimate
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decision not to hire him was made by a single person instead of the usual threeperson panel. Gonzalez’s basis for his contention that these practices violated
the City’s hiring policies is limited to the testimony of a City employee, Brenda
Hocott, who claimed that she had sat on a panel with the parking division where
three people performed the interview, and the testimony of Cruz, who suggests
that a three-person panel is generally used for interviews. Neither Hocott nor
Cruz states, however, whether the use of a three-person panel is an established
City policy or merely a preferred practice. In other words, unlike the plaintiff
in Blow, Gonzalez failed to introduce any evidence as to the City’s documented
hiring procedures. Without evidence of this nature, no reasonable jury could
infer that the City’s proffered explanation for its hiring decisions was false,
much less that the City was “dissembling to cover up a discriminatory purpose.”
Reeves, 530 U.S. at 147.
Gonzalez’s second argument focuses on discrepancies in Cruz’s deposition
testimony as compared to other employees’ testimony and the City’s records.
Gonzalez attempts to compare his claim to that in Gee v. Principi, where we held
that discrepancies in employees’ testimony, in combination with evidence that
the employees collaborated to discriminate against the applicant, were sufficient
to establish pretext.
289 F.3d 342, 346–48 (5th Cir. 2002).
During her
deposition, Cruz testified that she believed that there were three interviewers
on the panel that interviewed Gonzalez, while Canales testified and City records
confirmed that there were only two interviewers. Cruz also testified that she
discussed Gonzalez’s qualifications with Canales, but Canales testified that no
such discussion took place. Finally, Cruz alleged that she scored the applicants
based in part on her personal observations of their work. Gonzalez responds
that such observations would have been impossible because one of the three
selected applicants had not worked for the City prior to being hired by the
parking department.
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Even taken as true, none of these alleged aberrations in Cruz’s testimony
undermine the City’s proffered explanation for its hiring decisions. Contrary to
Gonzalez’s assertions, our holding in Gee v. Principi is inapposite. See id. In
Gee, the plaintiff identified discrepancies in the defendants’ testimony from
which a factfinder could reasonably infer that the defendants formed a
consensus to discriminate against the plaintiff during the interview process. Id.
at 347–48. Unlike the plaintiff in Gee, Gonzalez did not tie the disputed facts in
Cruz’s testimony to any collective or individual antagonism against him. See id.
In other words, in contrast to the plaintiff in Gee, Gonzalez’s identification of
inconsistencies between the testimony of Cruz and other City employees does
nothing to undermine the City’s explanation for hiring the selected candidates,
nor does it give rise to an inference that the City engaged in a calculated attempt
to conceal a discriminatory decsion.
The alleged discrepancies in Cruz’s testimony do not undermine the City’s
description of the hiring process it used to fill the parking attendant positions.
Additionally, absent evidence that the City deviated from its established hiring
policies, Gonzalez’s general objections to the City’s rating system do not permit
an inference of pretext, regardless of how many City employees ultimately
participated in the interviews or the final decisionmaking process. Simply put,
Gonzalez has not cast doubt on the City’s assertion that it did not hire him
because he received the lowest scores of any candidate when the City used a
neutral rating system to rank the applicants. See Warren v. City of Tupelo, 332
F. App’x 176,182 (5th Cir. 2009) (While there may have been “some ambiguity
regarding how the interview ratings form worked and whether [the employer]
even followed such objective criteria in making [its] decision . . [that does not
constitute] evidence that [the employer] did so in a discriminatory manner with
regard to age.”) (citing Risher v. Aldridge, 889 F.2d 592, 597 (5th Cir. 1989) (“As
we have stated before, an agency’s disregard of its own hiring system does not
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of itself conclusively establish that improper discrimination occurred or that a
nondiscriminatory explanation for an action is pretextual.”)).
Finally, Gonzalez’s accusations of discriminatory animus on the part of
Cruz are insufficient to support an inference that the City’s proffered reasons for
hiring the selected applicants were mere pretext. Gonzalez claims to have
evidence that Cruz discriminates against certain employees on the basis of their
age since she previously assigned Epi Garcia, an older employee, to work in only
one parking garage instead of the usual rotating schedule of parking garages.
The evidence, however, indicates that Garcia had not performed well at some
parking garages and was better suited to work at a single garage. Furthermore,
in spite of this unusual assignment, Garcia did not suffer any loss in pay or
hours.
The only other evidence proffered by Gonzalez in support of his claim that
Cruz discriminated against older employees was the deposition testimony of
Hocott, who initially accused the City of discriminating against Gonzalez
because of his age but later undermined her own testimony by conceding that
she had no knowledge of how the panel made its final decisions. Hocott’s
isolated remark that some of the older employees may have been “put out” by the
City is little more than a conclusory allegation of discrimination unsubstantiated
by any supporting facts (aside from her mere speculations regarding Epi Garcia)
that, on its own, does not demonstrate that Cruz or the City harbored a desire
to deny older applicants a place in the workforce.
In sum, the material issue is not whether the City “made the right hiring
choice but whether its proffered reason for that choice is unworthy of credence.”
Cramer, 2012 WL 5489395, at *4. As explained, Gonzalez has failed to produce
evidence that would permit a reasonable jury to believe that the City’s proffered
reason for not hiring him was pretext for a discriminatory reason.
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C. The EEOC’s Findings do not Elicit an Inference of Age Discrimination
Similarly, Gonzalez’s case is not significantly bolstered by the EEOC’s
findings. The EEOC determined that the City violated the ADEA in choosing to
hire the selected applicants over Gonzalez based on the same facts that we have
found insufficient to sustain Gonzalez’s allegations—Gonzalez’s prima facie case,
his qualifications for the position, and the conclusory testimony of a City
employee suggesting that Cruz prefers to hire younger applicants over older
ones. Since the EEOC findings arose out of the same information provided to us
and are not entitled to any more weight than other witnesses’ testimony, those
findings do not alter our analysis. See Smith v. Universal Servs., Inc., 454 F.2d
154, 157 (5th Cir. 1972) (“[T]he [EEOC] report is in no sense binding on the
district court and is to be given no more weight than any other testimony given
at trial.”).
In the absence of additional evidence suggesting that Gonzalez was passed
over for the parking attendant position because of his age, the City’s decision
must stand. The ADEA does not “prohibit an employer from making a bad
hiring decision, only a discriminatory one, and this court ‘should not substitute
[its] judgment . . . for the employer’s in the absence of proof that the employer’s
nondiscriminatory reasons are not genuine.’” Cramer, 2012 WL 5489395, at *5
(quoting EEOC, 47 F.3d at 1448); see also Jenkins v. Ball Corp., 140 F. App’x
519, 525 (5th Cir. 2005) (“[I]t is simply beyond the ken of the judiciary to
determine which . . . applicants [are] the most qualified for a particular
position—versus the opinion of the employer whose responsibility it is [to] hire
such applicants—especially when [none] of the applicants’ credentials are
overwhelmingly and uncontrovertibly superior to the other[s].”).
Because
Gonzalez has not provided us with more than a “shadow of doubt” that the City
employed a non-discriminatory hiring process to make its decisions, see Bauer
v. Albemarle Corp., 169 F.3d 962, 967 (5th Cir. 1999), and because the selected
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applicants were qualified for the parking attendant positions, we agree with the
district court that Gonzalez is not entitled to relief under the ADEA.
IV. CONCLUSION
Gonzalez has failed to demonstrate that he was clearly better qualified
than the selected applicants or that the City’s proffered reason for hiring the
selected applicants over Gonzalez—that Gonzalez received lower ratings than
the selected applicants during their interviews—was false or unworthy of
credence. Gonzalez therefore has not demonstrated that the City’s proffered
rationale was mere pretext for discriminating against him on account of his age.
Consequently, we hold that the district court did not err in granting summary
judgment in favor of the City. AFFIRMED.
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