Powell v. Social Security Administration Commissioner

Filing 28

MEMORANDUM OPINION. Signed by Magistrate Judge T Michael Putnam on 4/26/16. (MRR, )

FILED
2016 Apr-26 PM 01:15
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DIVISION OF ALABAMA
SOUTHERN DIVISION
NORMA POWELL,
Plaintiff,
v.

CAROLYN W. COLVIN, ACTING
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant.

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Case No. 2:13-cv-2314-TMP

MEMORANDUM OPINION
This cause is before the court on the motion for summary judgment filed September 1,
2015, by the defendant, Carolyn W. Colvin, Acting Commissioner of the Social Security
Administration (ASSA@). Defendant seeks dismissal of plaintiff Norma Powell=s claim that she
was discriminated against based on her age, in violation of the Age Discrimination in Employment
Act (AADEA@), 29 U.S.C. § 623(a), when the SSA failed to promote her in 2012. This matter has
been fully briefed, and the court has considered the evidence and arguments set forth by both
parties. The parties have consented to the exercise of jurisdiction by the undersigned magistrate
judge pursuant to 28 U.S.C. ' 636(c).

SUMMARY JUDGMENT STANDARD
Under Federal Rule of Civil Procedure 56(a), summary judgment is proper Aif 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). The party asking for summary judgment
Aalways bears the initial responsibility of informing the district court of the basis for its motion,
and identifying those portions of >the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,= which it believes demonstrate the absence
of a genuine issue of material fact.@ Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting
former Fed. R. Civ. P. 56(c)). The movant can meet this burden by presenting evidence showing
there is no dispute of material fact, or by showing that the nonmoving party has failed to present
evidence in support of some element of its case on which it bears the ultimate burden of proof.
Celotex, 477 U.S. at 322-23. There is no requirement, however, Athat the moving party support its
motion with affidavits or other similar materials negating the opponent=s claim.@

Id. at 323.

Once the moving party has met his burden, Rule 56 Arequires the nonmoving party to go
beyond the pleadings and by her own affidavits, or by the >depositions, answers to interrogatories,
and admissions of file,= designate >specific facts showing that there is a genuine issue for trial.=@
Id. at 324 (quoting former Fed. R. Civ. P. 56(e)). The nonmoving party need not present evidence
in a form necessary for admission at trial; however, he may not merely rest on his pleadings.
Celotex, 477 U.S. at 324. A[T]he plain language of Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party=s case, and on
which that party will bear the burden of proof at trial.@

Id. at 322.

After the plaintiff has properly responded to a proper motion for summary judgment, the
court must grant the motion if there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The substantive law will identify
2

which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). A dispute is genuine Aif the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.@ Id. at 248. A[T]he judge=s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue for
trial.@

Id. at 249. His guide is the same standard necessary to direct a verdict: Awhether the

evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.@ Id. at 251-52; see also Bill Johnson=s
Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 745 n.11 (1983). However, the nonmoving party
Amust do more than show that there is some metaphysical doubt as to the material facts.@
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). If the
evidence is merely colorable, or is not significantly probative, summary judgment may be granted.
Anderson, 477 U.S. at 249 (citations omitted); accord Spence v. Zimmerman, 873 F.2d 256 (11th
Cir. 1989). Furthermore, the court must Aview the evidence presented through the prism of the
substantive evidentiary burden,@ so there must be sufficient evidence on which the jury could
reasonably find for the plaintiff. Anderson, 477 U.S. at 254; Cottle v. Storer Communication,
Inc., 849 F.2d 570, 575 (11th Cir. 1988). Nevertheless, credibility determinations, the weighing
of evidence, and the drawing of inferences from the facts are the function of the jury, and therefore
the evidence of the non- movant is to be believed and all justifiable inferences are to be drawn in his
favor. Anderson, 477 U.S. at 255. The non- movant need not be given the benefit of every
inference but only of every reasonable inference. Brown v. City of Clewiston, 848 F.2d 1534,
1540 n.12 (11th Cir. 1988).

3

FACTS
Viewing the evidence in the light most favorable to the non- moving party, in this case the
plaintiff, the following facts are relevant to the instant motion.
The plaintiff is a female more than 40 years old, being 63 years old at the time the
promotion decision challenged here was made. Powell worked for the SSA for more than 15
years as a Telephone Service Representative (referred to within the SSA as a ATSR@), with an
employment rank of GS-8. She still was employed in that position at the time the complaint was
filed.
In June of 2012, Powell applied for a position as Technical Advisor (ATA@). The position
was a GS-9 position, and thus would have been a promotion. The TA position involved providing
guidance, monitoring, recommendations and oversight to employees working as TSRs. Selection
of the TSRs for the promotion at issue in this case was governed by the SSA=s Merit Promotion and
Placement Plan. The decision regarding selecting employees to be promoted to TA was made by a
Selection Panel, which consisted of four section managers of the Birmingham office of the SSA.
The panel included Rhonda Groveman, who is 54 years old; Vivian Handy, 58; Debra Newbold,
56; and Luis Fernandez, who was then 45. Plaintiff does not allege that Fernandez had any
discriminatory motive. Reginald Jenkins, the deputy director of the Birmingham office, served as
Concurring Official with the Selection Panel. He was 37 years old at the time of the promotion
decision. 1 Although it is not entirely clear, it appears that five TSRs were selected for promotion
to five TA positions.
1

The ages of the panel members is set forth in their declarations, prepared in 2015.
They would have been about three years younger at the time the hiring decisions were made.
4

Powell was 63 years old at the time that she applied. There were 50 other applicants, and
all were younger than Powell. None of the panel members, except Handy, was aware of Powell=s
age, although it was recorded in her personnel records. Powell has testified that Handy was
present at Powell=s 50th birthday party, and that Handy said that she hoped she would look that
good when she turned 50. 2
From the 50 original applicants, the Selection Panel compiled a Ashort list@ of 15
applicants, each of whom had received a Ahighly recommended@ rating from their supervisors.
(Doc. 18-9). Powell was on the short list, along with all of the persons ultimately selected.

The

panel evaluated the 15 on the list, and ranked them based upon supervisory experience, recent
performance awards, education (particularly in relevant coursework), evidence of professional
development, leadership skills, technical skills, and supervisor recommendations.

(Decl. of

Groveman, doc. 18-4; Decl. of Handy, doc. 18-5; Decl. of Newbold, doc. 18-6). 3

The

2

The evidence provided by plaintiff indicates that Handy, who served for several
years as plaintiff=s second- line supervisor, frequently criticized Powell for excessive Awrap-up@
time after she completed a telephone call. While this evidence does suggest that Handy may have
had a lower opinion of Powell’s employment skills than of other applicants, there is no indication
that Handy=s criticism was based on any age-related factor, except the witness affidavit of a
coworker, Lena Nixon (doc. 26-8). Nixon asserts that Powell was constantly assisting other
TSRs, which caused her to have longer wrap- up times, and that younger employees were not
criticized for their Awrap- up@ times. Handy, however, has stated that Powell=s responsibilities did
not involve assisting other TSRs, who were supposed to receive assistance from their TA or their
supervisors.
3

Newbold has stated that the panel identified five top contenders but did not Arank@
the list of 15. This testimony differs from the other decisionmakers= testimony, and from the
documentary evidence, which indicates that the 15 applicants were placed into an order and that
the list was delivered to Jenkins. The testimony by Newbold that no ranking occurred is
thoroughly contradicted by all other evidence in the record, including contemporaneous
documentary evidence showing a ranking of the candidates. As such, it is not substantial
evidence that a reasonable jury could rely upon, see Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct.
5

application did not contain an age or birthdate for any applicant, but did indicate the date of hire.
No interviews were conducted. The panel reviewed the applications and the recommendations,
and compared those to the criteria for selection in order to reach its conclusions.
The criteria applicable to the position of TSR was listed as:

Technical Knowledge: Demonstrated by consistently receiving highest
awards and includes honor awards.
Consistently exhibited outstanding
performance and adhered to the availability policy. Have prior instructor and/or
mentor experience and prior temporary or acting TA experience.
Communication Skills and ability to convey information to othe rs:
Demonstrated through prior instructor and mentor experience and prior temporary
or acting TA experience. Demonstrated by consistently exhibited outstanding
performance and receiving highest awards in the last 5 years.
Inte rpersonal Skills: Demonstrated through prior instructor and mentor
experience. Demonstrated by consistently exhibited outstanding performance and
receiving highest awards in the last 5 years.
Leadership Skills: Demonstrated through prior experience as a lead
instructor, manager or chair, co-chair, president or vice president of and [sic]
organization.
Reliability: Ability to carry out duties with minimum supervision while
working independently. Completes assignments accurately, efficiently, and
accurately [sic].

1769, 167 L. Ed. 2d 686 (2007), and it does not create a genuine issue of fact concerning the
ranking of the applicants. “A mere scintilla of evidence in support of the non- movant is
insufficient to defeat a motion for summary judgment.” Kesinger v. Herrington, 381 F.3d 1243,
1249–50 (11th Cir.2004) (citing Anderson [v. Liberty Lobby, Inc.], 477 U.S. at 252, 106 S. Ct.
2505); Johnson v. Niehus, 491 F. App'x 945, 950 (11th Cir. 2012). But even if considered, this
discrepancy between Newbold=s recollection and the other evidence does not indicate that the
defendant=s proferred reason for the hiring decision--the ranking of the applicants-- is unworthy of
belief. There is no testimony that Powell was one of the top five applicants under either scenario,
and Jenkins= account of the selection being based largely on the panel=s ranking is not in material
dispute.
6

Additional Development within the Agency
Demonstrated ability to effectively teach and research procedure
Dependability
Use and understand CHIP
Initiative
SCD
Time in grade

(Defendant=s Ex. 20, Doc. 18-21).
The panel submitted the list of 15 recommended applicants, ranking the 15 individuals
from first to fifteenth. Jenkins concurred in the selections of candidates ranked as first, second,
third, fourth and sixth. The candidate ranked fifth was not given the promotion. She was age 37
at the time, and Jenkins cannot recall why he did not confirm her selection. Plaintiff was ranked
ninth.
The panel hired the following five of the 15 Ashort list@ candidates for the TA positions:
B Lorenza Ferrell. Ferrell was 54 years old when he received the TA position. He had
worked at SSA since 2004. He had three years of experience supervising eight employees at a
juvenile detention center, had supervised a staff of 10 for 20 years in the Air Force, had served as
co-chair and chair of the Combined Federal Campaign for the Birmingham office, and had served
as a mentor.

He holds an associate=s degree and a bachelor=s degree, with coursework in

leadership and executive management. He had served as president of a community organization
that offered GED classes for adults. He had five years of experience as a TSR and had received
performance awards in six of the seven years preceding his promotion.

He received three

Aoutstanding@ ratings on his recommendation, along with four Aexcellent@ ratings and one

7

Asatisfactory@ rating from his supervisor, Deborah Thomas. 4 Farrell was ranked number one on
the list of 15.
B Michelle Pie rce. Pierce, who was 34 at the time of her promotion, had worked at SSA
as a TSR since 2006. She had been promoted steadily from a GS-5 in 2006 to GS-8 by 2009. She
served as a mentor on two occasions, served as an EEO counselor in 2012, participated in the
Week to Extend Knowledge (AWEK@) program, and took other training courses offered by the
SSA. She holds a bachelor=s degree in psychology, and was on the dean=s list for three quarters.
She received Recognition of Contribution Awards (AROCs@), and other performance awards at the
SSA. She was trained in the SSA=s CHIP program. She received three Aoutstanding@ rankings,
five Aexcellent@ rankings, and one Asatisfactory@ ranking from her supervisor, Victoria Hamilton.
Pierce was ranked second on the list of 15.
B Vanessa Nelson. Nelson, who was 50 years old when promoted, had been an employee
of the SSA since 1997. She had participated in the Opportunity for Excellence Program (AOEP@)
each year during the five years preceding her promotion, and was certified to teach TSR classes.
She had received leadership training during her service as Vice President of Grievances for Union
Local 2206. Her accuracy rating on service calls was 99 percent. She served as a mentor on 10
occasions, participated in the Week to Extend Knowledge (AWEK@) program, and holds both an
associate=s degree and a bachelor=s degree. Her bachelor=s degree is in business administration,
with a minor in organizational management. She received several awards through the SSA,
including Recognition of Contribution Awards (AROCs@), and others.
4

Her recommendation by

Powell, in her rebuttal statement (doc. 26-2), asserts that Ferrell worked as an
acting TA prior to his selection.
8

supervisor Deborah Thomas included one Aoutstanding@ rating, six Aexcellent@ ratings, and two
Asatisfactory@ ratings.

She was ranked third on the list of 15.

B Corinne Smithe rman. Powell does not allege that she is any more qualified than
Smitherman.

Smitherman was ranked fourth on the list.

B Larissa Webb. Webb, who was 42 at the time of the promotion, had worked with the
SSA for 12 years. She had served as a mentor and as a backup mentor, and had completed a
course to be a TSR Instructor. She holds an associate=s degree and a bachelor=s degree in human
resources management, with coursework in management information systems, effective
interpersonal relations, and group and organizational behavior. She received awards each year
from 2002 to 2011, including ROCs. She received six Aoutstanding@ ratings from her supervisor,
along with two Aexcellent@ ratings, and one Asatisfactory@ rating. The Asatisfactory@ rating was for
dependability/reliability, and her supervisor, Luis Fernandez, noted that Webb=s weak point was
her use of leave time Adue to family issues.@ She was ranked sixth on the list of recommendations.
In comparison to these successful promotion candidates, Powell was 63 at the time of the
selection, the oldest of all the applicants. She had been employed at the SSA as a GS-8 since
1997, and had more seniority within the SSA than any of the selected applicants except Nelson,
and she had worked longer as a GS-8 TSR than any of the selected applicants. She had, in 2010,
temporarily performed the duties of a TA when she was an Acting TA. None of the other
applicants selected had been Acting TAs except Ferrell.

She served as a mentor on three

occasions, and had earned an associate=s degree in applied science. She had one previous job that
involved supervision of other employees, and that was in 1979 as an administrative secretary in the
doctor=s office. She had completed training programs offered by the SSA, and had been given
9

performance awards for 10 years preceding the selection, including ROCs. She was given six
Aoutstanding@ and three Aexcellent@ ratings by her supervisor, Claudine Griggs. Griggs listed as
Powell=s weaknesses: ANone noteworthy.@

She was ranked number nine on the list of 15.

Powell contends that Handy, Groveman, and Reginald Jenkins are responsible for the
hiring decision at issue in this case.

(Doc. 26-1, p. 7).

Groveman has stated that the 15

candidates all were highly qualified and recommended, and that the panel looked to which
Acandidates had distinguished themselves with respect to the selection criteria.@ (Doc. 18-4,
paragraph 14). Groveman and other panel members noted that they did not believe that Griggs
was objective when preparing recommendations and that she tended to review her employees too
generously, perhaps to avoid conflict or to be Aliked.@ (Doc. 18-4, para. 20; doc. 18-5, para. 19;
doc. 18-6, para. 28).

DISCUSSION
Defendant seeks summary adjudication of plaintiff=s ADEA claim. Defendant asserts
that, even if plaintiff has proven a prima facie case of age discrimination, she has failed to show
that the stated, non-discriminatory reason for failing to promote plaintiff was pretext, and that the
real reason was violative of the ADEA.

A. Discrimination Based On Age
The Age Discrimination in Employment Act prohibits employers from discriminating
against employees over the age of 40 on the basis of their age. 29 U.S.C. '' 623(a)(1), 631(a). In
the absence of direct evidence, age discrimination claims brought pursuant to the ADEA are
10

analyzed under the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
93 S. Ct. 1817, 36 L. Ed.2d 668 (1973), which is used in evaluating claims brought pursuant to
Title VII. 5 See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S. Ct. 2097, 147
L. Ed. 2d 105 (2000); Jameson v. Arrow Co., 75 F.3d 1528, 1533 n. 3 (11th Cir.1996). The
Eleventh Circuit Court of Appeals has stated that the plaintiff establishes a prima facie age
discrimination case by showing that: (1) she was a member of a protected class; (2) she applied and
was qualified for a position for which the defendant was accepting applications; (3) despite her
qualifications, she was not hired; and (4) the position was filled by an equally or less qualified
younger person. Schoenfeld v. Babbitt, 168 F.3d 1257, 1267 (11th Cir. 1999), citing Welborn v.
Reynolds Metals Co., 810 F.2d 1026, 1028 (11th Cir.1987) (per curiam). 6 The defendant=s
motion does not dispute that the plaintiff has established a prima facie case, instead asserting that
the SSA has articulated a legitimate, non-discriminatory reason for the failure to promote Powell:
that the qualifications of other applicants more closely matched the criteria set by the SSA. The
court assumes, without deciding, that Powell has met the burden of establishing a prima facie case.
She has demonstrated that she is a member of the protected class, that she was qualified for and

5

Plaintiff has not offered any direct evidence of discriminatory animus, nor has
plaintiff argued that there is any statistical pattern of discrimination. She thus relies upon
circumstantial evidence, and must proceed under the burden-shifting framework set forth in
McDonnell Douglas. See Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2000).
6

While the language in Schoenfeld states that the position must be filled by a person
outside of the protected class, it has been established that an age case can be proved simply by
showing that the position went to a person younger than the plaintiff, even if that person also is
over 40. Carter v. City of Miami, 870 F.2d 578, 583 (11th Cir. 1989).
11

sought the position of TA, that she was not promoted, and that the position was given to younger
applicants. 7

B. Pretext
Assuming the plaintiff has succeeded in making a prima facie showing of age
discrimination, the presumption of discrimination that is raised by the prima facie showing may be
rebutted if the employer offers a legitimate, nondiscriminatory reason for the employment action.
To satisfy this burden, Athe employer need only produce admissible evidence which would allow
the trier of fact to rationally conclude that the employment decision had not been motivated by
discriminatory animus.@ Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997),
quoting Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 1096, 67 L. Ed.
2d 207 (1981) (emphasis added). Once the nondiscriminatory reason is articulated, the burden
shifts to the plaintiff to show that the reason is either not worthy of belief, or that, in light of all the
evidence, a discriminatory reason more likely motivated the decision than the proferred reason.
Standard v. A.B.E.L. Servs. Inc., 161 F.3d 1318, 1331-33 (11th Cir. 1998) reh=g and reh=g en banc
denied, 172 F.2d 884 (11th Cir. 1999), citing Combs v. Plantation Patterns, 106 F.3d 1519, 1528
(11th Cir. 1997), cert. denied, 118 S. Ct. 685, 139 L. Ed. 2d 632 (1998). She must show not only

7

It is worthy of note that at least three of the five applicants who were promoted (the
age of Smitherman has not been offered into evidence, although Powell asserts that Smitherman
was in her 40s), also were over 40, and therefore are younger than Powell but still are themselves
members of the protected class. This fact does not prevent the plaintiff from proving her prima
facie case, but it fails to support an inference that the decisionmakers were biased against older
workers, especially in light of the additional evidence that Jenkins chose not to promote one of the
top-five applicants, who was only 37 years old.
12

that the articulated reason is false, but also that the true reason for not promoting her was
discriminatory. See Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1228 (11th Cir. 1993). It is not
the duty of this court to evaluate whether the decision not to hire plaintiff was fair or wise;
employers are free to make unfair or unwise employment decisions so long as they do not violate
anti-discrimination statutes. See Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir.
1991). In the context of an age-discrimination claim, the Eleventh Circuit Court of Appeals has
stated:

Federal courts do not sit as a super-personnel department that reexamines an
entity's business decisions. No matter how medieval a firm's practices, no matter
how high-handed its decisional process, no matter how mistaken the firm's
managers, the ADEA does not interfere. Rather our inquiry is limited to whether
the employer gave an honest explanation of its behavior.

Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir.1991) (quoting Mechnig v. Sears,
Roebuck & Co., 864 F.2d 1359, 1365 (7th Cir.1988) (citations omitted)); see also Nix v. WLCY
Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir.1984). See also Chapman v. AI
Transport, 229 F.3d 1012, 1030 (11th Cir. 2000).
In this case, plaintiff offers no evidence that any decisionmaker held any animus toward
older workers. Such evidence, often seen in discrimination cases, lends support to a contention
that the proffered reason is not worthy of belief. In this case, the court views the four Selection
Panel members and Jenkins as the decisionmakers. 8

8

Of these decisionmakers, Groveman,

Although plaintiff has alleged that she does not consider Fernandez to have acted in
a discriminatory manner, it is undisputed that he helped to make the decisions regarding the
rankings, which ultimately were made the basis for Jenkins= final approval.
13

Handy, and Newbold all were more than 50 years old, and Fernandez was more than 40, at the time
that Powell applied for the TA position. Only Jenkins was under the age of 40 at that time. A
plaintiff has a Adifficult burden@ of showing that age more likely motivated an adverse decision
where the Aprimary players@ were Awell over age 40 and within the class of persons protected by
the ADEA.@ Elrod, 939 F.2d at 1471.
The plaintiff in this case does not rely on direct evidence. There are no offhand remarks,
jokes, or innuendo to support her claim of age discrimination. Powell has admitted that none of
the decisionmakers ever made any comment about her age. It further is undisputed that no
decisionmaker except Handy was aware of plaintiff=s age. 9 Instead, Powell=s case clearly hangs
on her contention that the defendant has stated that its hiring decisions for the TA positions were
based on an assessment that the selected applicants were better qualified than Powell. Because
Powell relies solely on her arguments relating to her qualifications for the jobs, her claim survives
the motion for summary judgment only if she has demonstrated that the stated reason is a pretext,
and that the real reason for the promotion decisions was an illegal motive.
It is well settled that the burden of demonstrating that the defendant=s proffered reason is a
pretext cannot be met Asimply by showing that [plaintiff] is more qualified@ than the applicant that
was hired. Johnson v. City of Mobile, 321 Fed. App=x 826, 832 (11th Cir. 2009).

AA plaintiff

cannot establish pretext merely by showing he or she was better qualified than the hired candidate;
9

Plaintiff has asserted, and defendants do not dispute, that Powell=s age was
recorded in files kept by the SSA, but each of the decisionmakers has asserted that he or she did not
know Powell=s age at the time the decision was made, and that age was not a factor in the decision.
Furthermore, knowledge of the applicant’s age is not sufficient evidence that the age was the
Abut/for reason@ for the hiring decision. Gross v. FBL Financial Services, Inc., 557 U.S. 167, 176,
129 S. Ct. 2343, 2350 (2009).
14

the plaintiff must show the hiring decision was made because of an illegal motive.@ Hillemann v.
University of Central Florida, 167 Fed. App=x 747, 749 (11th Cir. 2006). Instead, a plaintiff must
show that the disparity in qualifications Ais so great that a reasonable factfinder could infer that [the
defendant] did not believe [the hired applicant] to be better qualified. Johnson, 321 Fed. App=x at
832, quoting Cofield v. Goldkist, Inc., 267 F.3d 1264, 1268 (11th Cir. 2001). The level of
disparity that plaintiff must show has been described as Aof such weight and significance that no
reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected
over the plaintiff for the job in question.@ Johnson v. AutoZone, Inc., 768 F. Supp. 2d 1124, 1149
(N.D. Ala. 2011), quoting Tippie v. Spacelabs Medical, Inc., 180 Fed. App=x 51, 56 (11th Cir.
2006). 10 An employer=s reason cannot be successfully challenged Aas long as the reason is one
that might motivate a reasonable employer.@ Johnson, 768 at 1150, quoting Pennington v. City of
Huntsville, 261 F.3d 1262, 1267 (11th Cir. 2001). See also Roper v. Foley, 177 Fed. App=x 40, 48
(11th Cir. 2006). The role of this court is not to evaluate all of the applicants and decide which
candidate was best qualified; the court must determine only whether the employer passed over the
plaintiff based on an unlawful motive. Denney v. City of Albany, 247 F.3d 1172, 1188 (11th Cir.
2001).
The court finds that plaintiff has offered no evidence that the reasons given for promoting
the younger applicants were pretextual, or that the real reasons were based on age. The evidence

10

While it is clear that the Supreme Court has rejected Eleventh Circuit precedent
from Cofield that described the test for qualifications as having to be so great as to Aslap you in the
face,@ the level of disparity required for a showing of pretext remains extremely high. Ash v. Tyson
Foods, Inc., 546 U.S. 454, 126 S. Ct. 1195, 163 L. 2d 1053 (2006); see also Higgins v. Tyson
Foods, Inc., 196 Fed. App=x 781 (2006).
15

offered by the defendant demonstrates that the panel found that the employees promoted to TA, all
of whom also were Ahighly recommended@ and met all qualifications, were better qualified in some
areas than Powell, who had less formal education in a related field, less leadership and supervision
experience, and similar experience and qualifications. 11 Certainly, a reasonable employer could
have found that an applicant who had a bachelor=s degree, or had worked for years in a supervisory
position, might be more qualified for a promotion than was Powell. While it does appear that an
argument can be made that Powell=s superior recommendation and her extra years of experience
may have made her a desirable candidate for the promotion, the defendant has demonstrated that
the decisionmakers believed that Powell=s recommendation was inflated by her supervisor, and
that the education levels, awards, and leadership experience of the other candidates caused them to
Astand out@ above Powell=s 15 years of work as a highly qualified TSR. The court declines to find
that Powell=s years of experience and achievements in that job were Aof such weight and
significance@ that no reasonable employer could have chosen the five selected applicants, each of
whom also had years of experience, excellent recommendations, and more extensive education
and leadership experience than the plaintiff, for the position. Nor can the court say that a
decisionmaker=s belief (even if mistaken) that Grigg=s glowing recommendation of Powell was
inflated would not have entered into a reasonable employer=s evaluation of a candidate=s
qualifications.

Similarly, any argument related to Awrap-up@ time falls short of showing

11

While plaintiff had more years of experience in the SSA than all but one of the
selected applicants, she had less formal education and other qualities sought in the criteria. She has
not offered any evidence that an applicant with 15 years of experience as a TSR was significantly,
or even nominally, superior to an applicant with five or ten years of experience in that role. In
other words, she has not made any showing that a TSR could not obtain the requisite amount of
knowledge after working in that position for only a few years.
16

discriminatory animus because there is no evidence that Handy=s criticisms of Powel=s lengthy
Awrap-up@ time was used in the ultimate decision. 12
In short, plaintiff has failed to produce any evidence that shows that the stated reasons for
hiring the younger applicants for the four TA positions were not the real reasons, or that the real
reasons for the hiring decisions were related in any way to Powell=s age. Accordingly, the SSA=s
motion for summary judgment is due to be granted.

CONCLUSION
Based upon the foregoing undisputed facts and legal conclusions, the magistrate judge
finds that the motion for summary judgment filed by the defendant (doc. 18) is due to be
GRANTED, and that plaintiff=s claims against this defendant are du to be DISMISSED WITH
PREJUDICE.
A separate order will be entered.
DATED the 26th day of April, 2016.

_______________________________
T. MICHAEL PUTNAM
UNITED STATES MAGISTRATE JUDGE

12

Griggs, the supervisor who gave Powell the glowing recommendation, admitted
that Powell Adid have excessive wrap- up time,@ and said Athere were times that she was in wrap-up
time when she should not have been.@ (Doc. 26-10, p. 4). Griggs= apparent agreement with
Handy=s assessment supports a conclusion that Handy was not biased against Powell because of
her age, but that any negative reaction to Powell was based on a legitimate evaluation of Powell=s
job performance.
17