Henry v. Gibson
Filing
49
OPINION. Signed by Honorable Judge Myron H. Thompson on 11/23/15. (djy, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
MARY JO HENRY,
)
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
SLOAN D. GIBSON, Acting
Secretary for the
Department of Veterans
Affairs,
Defendant.
CIVIL ACTION NO.
2:14cv1049-MHT
(WO)
OPINION
Pursuant to the Age Discrimination in Employment
Act
of
1967,
29
U.S.C.
§§
621-624
(the
‘ADEA’),
Jo
Henry
filed
this
lawsuit
against
plaintiff
Mary
defendant
Acting
Veterans Affairs.
denied
her
a
Secretary
She
for
the
Department
of
contends that the Department
promotion
because
of
her
age.
Jurisdiction is proper under 28 U.S.C. § 1331 (federal
question),
28
U.S.C.
U.S.C. § 626(c).
§ 1343
(civil
rights),
and
29
This matter is before the court on the Secretary’s
motion for summary judgment in his favor.
For the
reasons that follow, the motion will be granted.
I.
SUMMARY-JUDGMENT STANDARD
Summary judgment is warranted if, after viewing the
evidence in the light most favorable to the non-moving
party
and
drawing
all
reasonable
inferences
in
its
favor, the court is convinced “that there is no genuine
dispute
as
to
any
material
fact
and
the
entitled to judgment as a matter of law.”
P.
56(a);
see
also
Matsushita
Elec.
movant
is
Fed. R. Civ.
Indus.
Co.
v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
II. BACKGROUND
The following are the relevant facts taken in the
light most favorable to Henry.
At the time of the
events that gave rise to this lawsuit, Henry was 62
years old and had been employed by the Central Veterans
2
Healthcare
System--a
Department
healthcare
facility--for approximately six years.
A. The Vacancy
On
July
announcement
Assistant
Support
2,
2009,
for
position
Section.
Central
Veterans
a
Supervisory
in
its
It
Medical
business
stated
that
published
Support
office’s
the
an
Clinic
vacancy
would
close later that month.
The
available
supervisory
position
involved
significant
responsibilities,
including
“supervising
the administrative processes and the clerical employees
performing
Health
and
sites,”
grievances,
duties
in
Primary
Care
organizing
training
Primary
at
work
staff,
Care
all
Clinics;
[Central
assignments,
and
Mental
Veterans]
resolving
monitoring
leave.
Def.’s Mot. Summ. J. (doc. no. 24-13) at 2-3.
In
addition, the person selected would be responsible for
managing appointments, producing reports, and providing
customer service.
3
B. Application Process and Selection
A
group
reviewed
the
from
the
received
Human
Resources
applications
and
Department
referred
the
five applicants it deemed ‘best qualified,’ including
Henry,
to
Nina
McConico,
the
charge of filling the vacancy.
applicants
on
responses
several
to
six
selecting
official
in
McConico rated the five
factors,
including
skillset-related
performance appraisals, and resumes.
their
questions,
Applicant Tenesha
Burks received 58 points and Henry received 52, and
they
were
ranked
first
and
second,
respectively.
Burks, a considerably younger applicant, was selected
for the position.
When Burks and Henry submitted their applications,
they were both employed by Central Veterans, though in
different positions at different campuses.
Henry was
employed as a Claims Assistant in the Fee Section, and
Burks was employed as a Medical Support Assistant in
the Clinic Support Section.
4
The
materials
Burks
and
Henry
submitted
reflect
relevant differences in their work experience and work
history.
Henry’s resume shows that she had around 11
years of experience working in a healthcare setting,
including around six years at Central Veterans.
1982
to
1987,
she
Representative,
worked
which
as
a
required
Patient
her
to
From
Services
transcribe
medical orders, make patient appointments, and train
new
employees,
tasks.
in
addition
to
some
administrative
After a long gap in employment, she resumed
working in 2002 and came to Central Veterans in 2003.
In her six years in the Central Veterans System, she
worked first in a laboratory setting, then spent four
years
as
setting.
a
Medical
Support
Assistant
in
a
clinical
This required her to transcribe physicians’
orders,
perform
patient
care,
administrative
and
serve
as
duties
Lead
related
to
Medical
Support
Assistant on occasions of the Lead’s absence.
At the
time of her application for the position at issue, she
had
been
promoted
to
and
5
was
working
as
a
Claims
Assistant,
where
she
processed
claims
and
assisted
patients with billing issues.
Burks
about
had
six
Veterans.
considerably
years
total,
less
overall
including
experience--
two
at
Central
However, her experience was in some ways
quite different from Henry’s.
From 1993 to 1997, she
worked
Director--a
as
Assistant
Program
position--for the Department of the Army.
then
shows
an
approximately
10-year
managerial
Her resume
gap
in
work
history, after which she worked with Central Veterans
for
two
years
as
a
Medical
Support
Assistant
in
a
clinical setting, where she remained until she applied
for the position at issue here. Her work environment as
a
Medical
Support
Assistant,
in
outpatient
clinic,
differed
from
relevant
ways:
Her
position
a
community-based
Henry’s
in
required
two
little
supervision, and she often worked in a ‘lead’ role.
In late December 2009, Henry received notification
that
she
had
consideration
for
been
the
referred
to
opening,
but
6
McConico
had
not
for
been
selected.
Henry then approached McConico to ask the
reason she was not selected.
McConico said that she
selected Burks because she was the applicant who would
have “the shortest learning curve.”
Def.’s Ex. A, Dep.
Nina McConico (doc. no. 24-2) at 9.
explain
her
comment
further
at
McConico did not
that
time.
Henry
interpreted McConico’s comment to be related to her
age.
To
her,
McConico
was
implying
that,
as
a
considerably older applicant, she would be less able to
pick up quickly on the skills the position required.
In April 2010, Henry filed an age-discrimination
complaint
with
Commission (EEOC).
the
Equal
Employment
Opportunity
After a hearing, Henry received an
adverse decision, which she appealed.
On appeal, the
EEOC affirmed the administrative judge’s decision and
issued Henry a ’right to sue’ notice.
this lawsuit.
7
Henry then filed
III. DISCUSSION
To survive summary judgment on an ADEA claim, a
plaintiff must put forward sufficient evidence for a
reasonable
jury
to
conclude
that
she
discrimination on the basis of her age.
suffered
Where, as
here, the plaintiff relies on circumstantial evidence
to prove discrimination, courts analyze the evidence
using
the
burden-shifting
framework
set
forth
in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).*
* At various points in her briefing, Henry contends
that McConico’s “shortest learning curve” statement is
direct
evidence
of
discrimination.
The
court
disagrees. While Henry may have understood the comment
to refer to the age difference between herself and
Burks, it is not the type of “blatant remark[], whose
intent could be nothing other than to discriminate on
the basis of age,” that can serve as direct evidence of
discrimination in this circuit.
Van Voorhis v.
Hillsborough Cnty. Bd. Of Cnty. Comm’rs, 512 F.3d 1296,
1300 (11th Cir. 2008) (citing Carter v. City of Miami,
870 F.2d 578, 582 (11th Cir. 1989)) (internal quotation
marks omitted). See also Merritt v. Dillard Paper Co.,
120 F.3d 1181, 1189-90 (11th Cir. 1997) (citing ”no
woman would be named to a B scheduled job,” Burns v.
Gadsden State Community College, 908 F.2d 1512, 1518
(11th Cir. 1990), and a manager’s statement that “if it
was his company, he wouldn’t hire any black people,”
EEOC v. Beverage Canners, Inc., 90 F.2d 920, 923 (11th
(continued…)
8
Israel v. Sonic-Montgomery FLM, Inc., 231 F. Supp. 2d
1156, 1159 (M.D. Ala. 2002) (Thompson, J.).
Under this
framework “(1) a plaintiff must first make out a prima
facie case, (2) then the burden shifts to the defendant
to
produce
legitimate,
nondiscriminatory
reasons
for
the adverse employment action, and (3) then the burden
shifts back to the plaintiff to establish that these
reasons are pretextual.”
Co.,
101
F.3d
1371,
Mayfield v. Patterson Pump
1375
(11th
Cir.
1996)
McDonnell Douglas, 411 U.S. at 802-04).
burden
“is
merely
one
of
(citing
The employer’s
production;
it
need
not
persuade the court that it was actually motivated by
the proffered reasons.”
Chapman v. AI Transport, 229
F.3d 1012, 1024 (11th Cir. 2000) (internal quotation
marks omitted).
To satisfy her ultimate burden, the
plaintiff may either
persuade the court directly by
demonstrating “that a discriminatory reason more than
likely
motivated
the
employer,
or
indirectly,
Cir. 1990), as representative examples
evidence in discrimination cases).
9
of
by
direct
showing that the proffered reason for the employment
decision is not worthy of belief.”
Israel, 231 F.
Supp. 2d at 1160.
In an ADEA case involving a failure to hire or
promote, a plaintiff may make a prima-facie case by
demonstrating (1) that she was a member of a protected
group of persons between the ages of 40 and 70, (2)
that she was subject to adverse-employment action, (3)
that a substantially younger person filled the position
that she sought, and (4) that she was qualified to do
the job for which she was rejected.
Turlington v.
Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir.
1998).
Because
legitimate,
the
Secretary
nondiscriminatory
has
reasons
articulated
for
Burks’s
selection and because Henry has not produced sufficient
evidence
from
which
a
factfinder
could
reasonably
conclude that these reasons are pretextual, the court
need
not
address
whether
prima-facie case.
10
she
has
established
a
The
Secretary
offers
six
reasons
for
Burks’s
selection as Supervisory Medical Support Assistant over
Henry:
(1)
Burks
had
worked
as
a
Medical
Support
Assistant in a mental-health clinic and a health clinic
more
recently,
applicable
seamless
“and
work
was
already
process”;
transition,
and
(2)
would
familiar
“Burks
be
with
could
able
to
the
make
hit
a
the
ground running”; (3) “Burks was working as a Medical
Supervisory
Assistant
demonstrated
ability
effectively,
and
learning
curve”;
in
a
of
similar
working
therefore
(4)
would
McConico
environment
with
efficiently
and
have
wanted
a
to
minimum
fill
the
position as quickly as possible; (5) Burks “best fit
the critical needs of the service and the section for
which
[she
was]
hired”
and
“would
be
prepared
to
immediately respond to the issues and concerns based on
recent transferable knowledge and experience”; and (6)
Burks ranked number one based on her resume, answers to
questions concerning her skillset, and the supervisory
appraisal.
Reply Mem. Supp. Def.’s Mot. Summ. J. (doc.
11
no. 32) at 5-6.
Most of the Secretary’s reasons boil
down to the same basic justifications: that Burks had
the most recent experience working as a Medical Support
Assistant
in
a
clinical
setting
and
therefore
was
already familiar with the work process and that Burks
had been doing that work in a work environment that
required her to perform an essentially ‘lead’ role with
little oversight, and therefore would have an easier
transition to being a supervisor.
Henry
has
failed
to
produce
sufficient
that would support a finding of pretext.
evidence
First, she
does not dispute that Burks has more recent experience
in a Medical Support Assistant role, or in a clinical
setting
more
generally.
experience
may
selection
over
plaintiff’s
serve
as
other
own,
A
a
candidate’s
reasonable
qualified
less-recent
insufficient to rebut this reason.
more
basis
candidates,
recent
for
and
qualifications
her
a
are
See e.g., MacKenzie
v. City & Cnty. of Denver, 414 F.3d 1266, 1278 (10th
Cir.
2005)
(holding
that
a
12
plaintiff’s
“proffer
of
being
more
experienced”
was
insufficient
to
defeat
summary judgment where “the City never contended that
[the selected candidate] had more payroll experience,
only
that
she
had
relevant
and
more
recent
experience”); Kohrt v. MidAmerican Energy Co., 364 F.3d
894,
898
(8th
Cir.
2004)
(holding
that
a
district
court’s grant of summary judgment on plaintiff’s ADEA
claim was proper where the plaintiff “had not worked as
a lineman since October 1987, and he [did] not dispute
that the other candidates had more recent experience
than he”).
Second, Henry has failed to rebut that Burks worked
in a position that required less supervision than hers
had.
McConico
materials
testified
demonstrated
that
that
Burks’s
she
application
was
“working
independently with little supervision” and, according
to
a
supervisor’s
clinic”
and
recommendation,
“functioning
in
[a
Support Assistant] capacity.”
Dep.
Nina
McConico
(doc.
13
no.
was
“managing
Supervisory
the
Medical
Def.’s Ex. A, Excerpts
24-2)
at
4.
Henry
provides
no
evidence
that
would
call
this
into
question.
Third, Henry does not rebut that Burks had worked
more frequently in a lead role and was, therefore, more
familiar
with
Secretary
the
work
that,
contends
applicable
taking
even
process.
into
The
account
Henry’s past experience as a Medical Support Assistant,
Henry’s
application
intermittently
demonstrated
acted
as
a
that
Lead
she
had
Medical
only
Support
Assistant while working in that role, whereas Burks
served in a lead role on a regular basis.
that
Burks
Supervisory
was
essentially
Medical
Support
already
Assistant
This meant
acting
as
in
prior
her
a
position and could transition easily into the vacant
position.
Henry provides no evidence to suggest that
McConico’s
assessment
of
Burks’s
experience
is
inaccurate, or that her own experience as a Medical
Support
Assistant
made
her
familiarity
applicable work process comparable.
14
with
the
Nor has Henry provided any evidence to suggest that
her more recent position as a Claims Assistant provided
comparable, or even relevant, experience.
At the time
of her application for the open position, Burks had
been
working
in
a
clinic
support
role
directly
subordinate to the position at issue here, and in a
position
that
required
her
to
be
involved
with
administration of the clinic and with patient care.
the
In
contrast, Henry, at the time of her application for the
position as Supervisory Medical Support Assistant, was
much
more
removed
from
patient-care
duties
and
was
working in the Fee Section, processing billing claims.
Although the evidence does indicate that Henry had been
promoted from her position as Medical Support Assistant
and
had,
at
least
arguably,
mastered
the
skillset
required by the Medical Support Assistant position and
clinic
support
work
more
generally,
it
is
not
sufficient to “merely ... question[] the wisdom of the
employer’s reasons, at least not where ... the reason
is
one
that
might
motivate
15
a
reasonable
employer.”
Brooks v. Cnty. Comm’n of Jefferson Cnty., 446 F.3d
1160, 1163 (11th Cir. 2006) (citations omitted).
Finally, Henry cannot rely on her own belief that
her
experience
and
qualifications
Burks’s.
Admittedly,
significant
range
of
Henry’s
are
superior
resume
experience.
to
lists
However,
a
“[a]
plaintiff seeking to use comparative qualifications to
rebut a defendant's proffered nondiscriminatory reasons
for
promoting
another
employee
must
show
that
the
disparities between the successful applicant's and her
own qualifications were of such weight and significance
that no reasonable person, in the exercise of impartial
judgment, could have chosen the candidate selected over
the plaintiff.”
Gray v. City of Montgomery, 756 F.
Supp. 2d 1339, 1347-48 (M.D. Ala. 2010) (Thompson, J.)
(quoting Brooks, 446 F.3d at
marks omitted).
reasonable
1163) (internal quotation
This is not such a case.
employer
selecting
among
Because a
qualified
applicants might rely more on the skills required by
and displayed in one’s current job than on the skills
16
one has displayed in past positions, Henry reliance on
her qualifications alone is insufficient to demonstrate
pretext.
As to one of the Secretary’s proffered reasons--the
need
to
fill
the
position
quickly--the
evidence
sufficient to call that reason into question.
is
Henry
offers evidence that both she and Burks applied within
the
allotted
window
announcement,
that
of
both
time
provided
applicants
were
by
the
referred
to
McConico for consideration on the same day, and that
she
was
evidence
ready
to
could
start
lead
a
immediately.
Even
reasonable
if
factfinder
this
to
determine that this reason, considered in isolation, is
implausible
or
insufficient,
because
it
defendant’s
matter.”
by
“is
not
worthy
itself,
not
credibility
to
of
defeat
belief,
it
summary
is
judgment
strong
enough
to
call
into
question
as
a
the
general
Alexander v. Chattahoochee Valley Community
College, 325 F. Supp. 2d 1274, 1293 (M.D. Ala. 2004)
(Thompson, J.).
Because she has not offered evidence
17
sufficient to rebut each and every one, that is, all,
of the Secretary’s proffered reasons, she has not met
her burden.
See Chapman, 229 F.3d at 1037 (“In order
to avoid summary judgment, a plaintiff must produce
sufficient
conclude
evidence
that
for
each
a
of
reasonable
the
factfinder
employer's
to
proffered
nondiscriminatory reasons is pretextual.”); Crawford v.
City of Fairburn, 482 F.3d 1305, 1308 (11th Cir. 2007).
(“If the employer proffers more than one legitimate,
nondiscriminatory reason, the plaintiff must rebut each
of
the
reasons
judgment.”);
to
Combs
v.
survive
a
motion
Plantation
for
Patterns,
summary
106
F.3d
1519, 1543 (11th Cir. 1997) (where plaintiff failed to
rebut one of the three reasons, defendant was entitled
to
judgment
as
a
matter
of
law
on
charge
of
impermissible discrimination).
Thus,
Henry
Secretary’s
discriminated
has
failed
proffered
against
to
show--by
reasons--that
her.
Nor
attacking
the
can
she
the
Department
rely
on
McConico’s “shortest learning curve” comment to show
18
directly that a discriminatory reason more than likely
motivated the Department.
This comment, without more,
is not sufficient to meet her burden.
It lends itself
to several quite reasonable interpretations, including
that
Burks’s
more
recent
experience
in
a
similar
position and in a supervisory role made her a better
candidate.
Henry, instead, asks this court to rely on
her subjective impression alone.
This is simply not
enough to survive summary judgment.
See Mayfield, 101
F.3d
allegations
at
1376
discrimination,
raise
an
without
inference
discrimination
...
discriminatory
more,
of
where
extensive
quotation
(“Conclusory
marks
not
pretext
an
for
or
employer
evidence
reasons
are
of
its
omitted).
The
sufficient
to
intentional
has
offered
legitimate,
actions.”)
record
of
non
(internal
provides
no
additional basis for concluding that McConico was more
likely
motivated
by
stated
reliance
on
age
discrimination
Burks’s
more
than
recent
by
her
relevant
experience in a very similar position, her familiarity
19
with the open position’s requirements, and her greater
experience working in a lead role.
***
For the above reasons, the Acting Veterans Affairs
Secretary’s motion for summary judgment in his favor
will be granted.
An
appropriate
judgment
will
entered.
DONE, this the 23rd day of November, 2015.
/s/ Myron H. Thompson____
UNITED STATES DISTRICT JUDGE
be
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