Brown v. South Central Kansas Education Service Center, District #628
Filing
45
MEMORANDUM AND ORDER granting 25 Defendant's Motion for Summary Judgment. Signed by District Judge Eric F. Melgren on 4/25/2018. (mam)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARK E. BROWN,
Plaintiff,
vs.
Case No. 16-1314-EFM
SOUTH CENTRAL KANSAS
EDUCATION SERVICE CENTER,
DISTRICT # 628, d/b/a NEW DIRECTIONS
LEARNING ACADEMY,
Defendant.
ORDER
This case arises out of the non-renewal of Plaintiff Mark E. Brown’s teaching contract with
Defendant South Central Kansas Education Service Center, District # 628, doing business as New
Directions Learning Academy, and Defendant’s failure to hire Plaintiff when a teaching position
became available shortly after he received his notice of non-renewal. Plaintiff alleges that
Defendant failed to hire him on the basis of his race in violation of federal and state antidiscrimination laws.1 This matter comes before the Court on Defendant’s Motion for Summary
Judgment (Doc. 25). For the reasons explained below, the Court grants Defendant’s motion.
1
Plaintiff also brought claims alleging discrimination and retaliation in relation to his Spring 2015 evaluation
and subsequent grievance, and a retaliation claim based on Defendant’s failure to hire him in June 2015. Plaintiff
concedes that these claims cannot survive summary judgment. Doc. 36, p. 15. Accordingly, the Court will address
I.
Factual and Procedural Background2
Defendant’s mission includes helping school districts to educate students in the most
effective and efficient manner. It serves approximately 27 Kansas school districts, and provides
various services, including adult education services. Defendant provides adult education services
in Topeka, Kansas, under the name New Directions Learning Academy (“New Directions”). New
Directions helps adults obtain high school diplomas by assisting students with their questions—it
does not offer teacher-led classes, but rather, students make their own lesson plans.
In 2012, New Directions provided services at four Topeka locations—Fairlawn Plaza,
Oakland Community Center, Shawnee County Jail, and Shawnee County Jail Annex. In the spring
of 2012, Plaintiff applied for a part-time teaching position at the Jail Annex. After interviewing
with Susan Lindstrom, program coordinator for New Directions, Plaintiff received and accepted
an offer for the position. Defendant’s Executive Director, Dr. Bradley Mark Pepper, did not
participate in the decision to hire Plaintiff. In March 2014, Plaintiff’s security clearance to work
at the Jail Annex was terminated—a decision Defendant had no involvement in making. Rather
than terminate Plaintiff’s employment, Lindstrom and Dr. Pepper created a position for Plaintiff
at the Fairlawn location.
In March 2015, in response to changes in Kansas law affecting Defendant’s funding, Dr.
Pepper determined that Defendant needed to cut 50% or more from its budget. As a result,
Defendant implemented a reduction in force (“RIF”) that reduced Defendant’s total staff by
Plaintiff’s only remaining claim—that Defendant unlawfully discriminated against him when it failed to hire him in
June 2015.
2
The Court sets forth the uncontroverted facts in the light most favorable to the non-moving party.
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approximately 32%. At the time of the RIF, the Fairlawn location employed three full-time
teachers, two part-time teachers, two counselors, and one teaching assistant. All of the teachers
held at least one certification. Of the three full-time teachers, one held a certification in math, one
held a certification in social studies, and one held a certification in English. Plaintiff held
certifications in physical education, health, special education, and psychology, and the other parttime teacher held certifications in math and science. As part of the RIF, Defendant elected not to
renew the teaching contracts of two Fairlawn employees—Plaintiff and the teaching assistant.
Plaintiff received his notice of non-renewal on or about May 7, 2015.
After Defendant completed the RIF process, and after Plaintiff had been issued his notice
of non-renewal, the full-time teacher holding a certification in social studies resigned. Lindstrom
submitted an internal New Hire Request Form to fill the vacancy. The form included, among other
things, separate sections for the person completing the form to indicate the “qualifications” and
“requirements” for the position.
The qualifications box includes the following notation:
“Secondary Certification in preferably Social Studies, Science, . . .” and the requirements box
states “9-12 Kansas license current, . . .”
Plaintiff attached to his Response a purported
advertisement for the position placed in the Topeka Capital Journal Newspaper, titled “Secondary
Certified Teacher New Direction Learning Academy.” The advertisement does not appear to
identify any “qualifications” or “requirements” for the position, does not include a job description,
and does not state any certification preferences for the position.
Defendant’s employee handbook addresses the rehiring of an employee affected by a RIF.
It states, in relevant part:
Any certified/licensed employee who has not been re-employed as a result of
reduction of the teaching staff shall be considered for re-employment if a
vacancy exists for which the certified/licensed employee would be qualified.
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The Executive Director will recommend to the Board reinstatement of any such
certified/licensed person whom he/she deems qualified and able to serve the
best interests of the Service Center. The Board shall not be required to consider
reinstatement of any such person after a period of one year from the date of
non-renewal.
In seeking to fill the vacancy, Lindstrom was particularly interested in hiring a teacher
certified in social studies. The teacher that created the vacancy held a social studies certification
and Lindstrum believes it is important to have teachers certified in the main core areas of math,
social studies, and English. Lindstrom received four applications for the position, including one
from Plaintiff. Although Plaintiff held other certifications and met the minimum requirements to
work as a teacher at New Directions, he did not have a certification in science or social studies.
Lindstrom did not consider Plaintiff qualified for the vacancy, and Defendant did not consider
Plaintiff for the position because he did not have a social studies certification. The applicant hired
to fill the position held a certification in social studies.
Plaintiff is African American and argues that Defendant discriminated against him on the
basis of his race when it failed to hire him to fill a teaching vacancy in June 2015, and instead
filled the position with a Caucasian applicant, in violation of Title VII, 42 U.S.C. § 1981, and the
Kansas Act Against Discrimination (“KAAD”). While Plaintiff’s Complaint alleged several
violations of federal and state law, Plaintiff agrees that the only “remaining issue is whether or not
he was discriminated against because of his race in relation to the failure to hire him for the vacancy
created at the end of the school year by the resignation of an employee retained under the RIF.”
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II.
Legal Standard
Summary judgment is proper if the moving party demonstrates that there is no genuine
issue as to any material fact, and the movant is entitled to judgment as a matter of law.3 A fact is
“material” when it is essential to the claim, and issues of fact are “genuine” if the proffered
evidence permits a reasonable jury to decide the issue in either party’s favor.4 The movant bears
the initial burden of proof and must show the lack of evidence on an essential element of the claim.5
If the movant carries its initial burden, the nonmovant may not simply rest on its pleading, but
must instead “set forth specific facts” that would be admissible in evidence in the event of trial
from which a rational trier of fact could find for the nonmovant.6 These facts must be clearly
identified through affidavits, deposition transcripts, or incorporated exhibits—conclusory
allegations alone cannot survive a motion for summary judgment.7 The Court views all evidence
and reasonable inferences in the light most favorable to the non-moving party.8
3
Fed. R. Civ. P. 56(a).
4
Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1219 (10th Cir. 2006).
5
Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (citation omitted).
6
Id. (citing Fed. R. Civ. P. 56(e)).
7
Mitchell v. City of Moore, 218 F.3d 1190, 1197 (10th Cir. 2000) (citation omitted).
8
LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004).
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III.
Analysis9
A plaintiff may demonstrate intentional discrimination either through direct or indirect
evidence.10 The Court applies the familiar McDonnell Douglas burden-shifting framework where,
as here, the plaintiff seeks to prove discrimination with indirect evidence.11 Under this framework,
Plaintiff must first establish a prima facie case of discrimination—his burden at this stage is not
onerous.12 In a failure to hire case, this requires that Plaintiff show: (1) he belongs to a protected
class, (2) he applied for and was qualified for the position in question, and (3) he “was rejected
under circumstances which give rise to an inference of unlawful discrimination.”13 Once Plaintiff
establishes his prima facie case, the burden shifts to Defendant to “articulate a legitimate,
nondiscriminatory reason for the adverse employment action.”14 Defendant’s burden at this stage
“is ‘exceedingly light,’ ” and Defendant’s “stated reasons need only be legitimate and nondiscriminatory ‘on their face.’ ”15 Once Defendant meets its burden to articulate a legitimate,
9
The Court’s analysis applies to Plaintiff’s claims under Title VII, 42 U.S.C. § 1981, and the KAAD as each
claim relies on the same allegations and is governed by the same legal standard. See Kendrick v. Penske Transp.
Servs., Inc., 220 F.3d 1220, 1225 (10th Cir. 2000); Aramburu v. Boeing Co., 112 F.3d 1398, 1403 n.3 (10th Cir. 1997)
(noting that the same standard applies to Title VII, § 1981, and KAAD discrimination claims).
10
DePaula v. Easter Seals El Mirado, 859 F.3d 957, 969 (10th Cir. 2017) (citing McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973)).
11
Id. at 969. Under this three-part framework, “the burden of production shifts from the plaintiff to the
defendant and back to the plaintiff,” while the “ultimate burden of persuasion” to show discrimination remains on
Plaintiff. Id. (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 256 (1981); St. Mary’s Honor Ctr.
v. Hicks, 509 U.S. 502, 507 (1993)).
12
Id.; Burdine, 450 U.S. at 252
13
Burdine, 450 U.S. at 252-53.
14
DePaula, 859 F.3d at 970 (citation omitted).
15
Id. (quoting Williams v. FedEx Corp. Servs., 849 F.3d 889, 889-900 (10th Cir. 2017); EEOC v. C.R.
England, Inc., 644 F.3d 1028, 1042 (10th Cir. 2011)).
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nondiscriminatory reason for its hiring decision, the burden shifts back to Plaintiff to demonstrate
that Defendant’s proffered justification is pretext.16
A.
Plaintiff has established a prima facie case of discrimination.
Defendant argues that Plaintiff cannot establish a prima facie case of discrimination
because he was not qualified for the full-time teaching position and no evidence supports an
inference that Defendant’s decision not to hire Plaintiff resulted from unlawful discrimination. As
noted above, Plaintiff does not face an onerous burden at this stage, and the Court concludes that
Plaintiff has met his burden. First, the parties do not dispute that Plaintiff belongs to a protected
class.
Second, although the “qualifications” identified by Lindstrom include a secondary
certification, “preferably” in social studies or science, Plaintiff has presented evidence suggesting
that he met the listed “requirements” to fill the position.17 Further, the notation that a social studies
or science certification was “preferred” suggests that a candidate may be qualified for the position
without having a preferred certification. Plaintiff has presented sufficient facts at this stage to
allow an inference that he met the minimum qualifications for the position. Finally, that Defendant
did “not eliminate the position for which the candidate was rejected,” and instead hired a Caucasian
16
Id.
17
Defendant’s internal hiring form included separate areas to indicate the qualifications and requirements for
the position. While the parties dispute whether Plaintiff satisfied the qualifications, Defendant appears to concede
that Plaintiff met the listed requirements for the position.
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applicant to fill the position satisfies the third requirement in Plaintiff’s prima facie case—that he
“was rejected under circumstances which give rise to an inference of unlawful discrimination.”18
B.
Defendant has proffered a legitimate, nondiscriminatory reason for rejecting
Plaintiff’s application.
Defendant states that it did not hire Plaintiff because it needed to replace a teacher that held
a social studies certification and Plaintiff did not possess a social studies or science certification,
the certifications preferred by Defendant. In explaining its desire to hire a teacher with a social
studies certification, Defendant posits that it is important to have teachers certified in the main
core areas of math, social studies, and English.19 Ultimately, Defendant rejected Plaintiff’s
application in favor of a candidate holding a social studies certification. Defendant has satisfied
its light burden to articulate a legitimate, nondiscriminatory reason for not hiring Plaintiff, and the
burden shifts back to Plaintiff to demonstrate that Defendant’s proffered justification is pretextual.
C.
Plaintiff cannot show pretext.
Plaintiff may show pretext by identifying “such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for
its action” such “that a reasonable factfinder could rationally find them unworthy of credence and
18
Burdine, 450 U.S. at 252-53; Perry v. Woodward, 199 F.3d 1126, 1140 (10th Cir. 1999) (noting that [a]n
inference of discrimination is raised when an employer rejects an otherwise qualified minority employment candidate
and thereafter does not eliminate the position for which the candidate was rejected). See also Hysten v. Burlington N.
& Santa Fe Ry. Co., 296 F.3d 1177, 1181 (10th Cir. 2002) (recognizing that prima facie case is satisfied if all other
elements are met and after a plaintiff’s rejection, the position remains open and the employer continues to seek
applicants from persons with the plaintiff’s qualifications).
19
Plaintiff’s attempt to controvert this fact fails as he merely states that “someone certified in all of the main
core areas would be more valued and able to meet all students needs.” First, this does not controvert Defendant’s
statement that it is important to employ teachers certified in the main core areas. Second, even if having one teacher
certified in all of these areas provides more value, this is irrelevant as Plaintiff has not alleged that he held certifications
in each of the main core areas. Third, Plaintiff’s arguments based on his own value assessments invite the Court to
second-guess Defendant’s value determinations—a request the Court will not indulge. See Santana v. City & Cty. of
Denver, 488 F.3d 860, 865 (10th Cir. 2007) (quotation omitted)) (acknowledging that it is not the Court’s role to “act
as a super personnel department that second guesses employer’s business judgments”).
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hence infer that the employer did not act for the asserted non-discriminatory reasons.”20 When
analyzing pretext, Courts “examine the facts as they appear to the person making the decision, not
the plaintiff’s subjective evaluation of the situation.”21 Courts will not question the wisdom,
fairness, or correctness of an employer’s proffered reasons; rather, the “relevant inquiry is . . .
whether [the employer] honestly believed those reasons and acted in good faith upon those
beliefs.”22
“[M]ere conjecture that an employer’s explanation is a pretext for intentional
discrimination is an insufficient basis for denial of summary judgment.”23
Evidence of pretext “may take a variety of forms,”24 but typically a plaintiff will
demonstrate pretext in one of three ways:
(1) with evidence that defendant’s stated reason for the adverse employment
action was false; (2) with evidence that the defendant acted contrary to a written
company policy prescribing the action to be taken by the defendant under the
circumstances; or (3) with evidence that the defendant acted contrary to an
unwritten policy or contrary to company practice when making the adverse
employment decision affecting the plaintiff.25
The Tenth Circuit has warned courts to “ ‘proceed with caution when considering the
relative merits of individual employees’ or candidates for employment.”26 A plaintiff arguing “that
an employer’s claim that it hired someone else because of superior qualifications is pretext for
20
Lobato v. N.M. Env’t Dep’t, 733 F.3d 1283, 1289 (10th Cir. 2013) (quotations omitted).
21
Id. (quotation and alteration omitted).
22
Id. (quotation omitted).
23
Jaramillo v. Adams Cty. Sch. Dist. 14, 680 F.3d 1267, 1270 (10th Cir. 2012) (quotation omitted).
24
Ramsey v. Labette Cty. Med. Ctr., 297 F. App’x 730, 734 (10th Cir. 2008) (quotation omitted).
25
Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000).
26
Hamilton v. Okla. City Univ., 563 F. App’x 597, 602 (10th Cir. 2014) (quoting Jaramillo, 427 F.3d at
1308).
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discrimination . . . must come forward with facts showing an ‘overwhelming’ ‘disparity in
qualifications.’ ”27
Plaintiff’s primary argument in favor of pretext appears to be that Defendant’s failure to
consider him for and offer him the vacant position violated Defendant’s written policy, holding a
certification in social studies or science was not a true qualification for the vacant position, and
Plaintiff was in fact qualified for the position. Even if Plaintiff held the minimum requirements to
fill the vacant position, however, he did not hold the preferred qualifications, as did the candidate
selected to fill the vacancy. Plaintiff has identified no evidence in the record that could support a
finding that Defendant’s proffered reason for not hiring Plaintiff—that he did not hold a
certification desired by Defendant—constitutes pretext. Plaintiff’s arguments to the contrary rely
on speculation and conjecture.
1.
Written policy regarding rehiring after a RIF
The Court disagrees that Defendant’s alleged failure to follow its written policy regarding
the rehiring of employees terminated as part of a RIF demonstrates pretext. While a failure to
follow company policy can be evidence of pretext, it does not follow that every failure to follow a
company policy satisfies a plaintiff’s burden to establish pretext. Indeed, the Tenth Circuit
recognizes that “the mere fact that an employer failed to follow its own internal procedures does
27
Id. (quoting Johnson v. Weld Cty., Colo., 594 F.3d 1202, 1211 (10th Cir. 2010)).
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not necessarily suggest that the substantive reasons given by the employer for its employment
decision were pretextual.”28
Here, the written policy Defendant allegedly violated states, in relevant part, that any
employee terminated in a RIF “shall be considered for re-employment if a vacancy exists for which
[he] would be qualified,” and that the “Executive Director will recommend to the Board
reinstatement of any such . . . person whom he/she deems qualified and able to serve the best
interests of the Service Center.”29 It is undisputed that Defendant did not consider Plaintiff
qualified for the vacant position—whether correct in that determination or not. Plaintiff admits
that (1) both Lindstrom and Dr. Pepper “assumed” Plaintiff was not qualified for the position and
(2) Defendant did not consider Plaintiff as “qualified” for the position because he did not hold a
certification in either social studies or science. Accordingly, any failure to follow policy stems
from a belief regarding Plaintiff’s qualifications. Nothing in the record supports an inference that
Defendant did not honestly believe that Plaintiff lacked qualifications for the position or that
Defendant did not act in good faith on its belief. The Tenth Circuit has recognized that if a decision
maker did not believe that a policy existed, a “mistake in failing to follow [that policy] does not
show pretext.”30 Likewise, where a decision maker did not believe that a policy applied, a mistake
in failing to follow that policy does not show pretext. In sum, Plaintiff has failed to meet his
28
Cooper v. Wal-Mart Stores, Inc., 296 F. App’x 686, 695 (10th Cir. 2008) (quoting Berry v. T-Mobile USA,
Inc., 490 F.3d 1211, 1222 (10th Cir. 2007)).
29
Defendant alternatively argues that even if it the policy did apply, it did not violate the policy because
hiring Plaintiff would not have served “the best interests of the Center.” Defendant has proffered that it is important
to have teachers certified in certain core subjects and it is not the Court’s role to disregard that business judgment in
the absence of pretext.
30
Cooper, 296 F. App’x at 695 (quoting Berry, 490 F.3d at 1222).
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burden to demonstrate pretext based on Defendant’s alleged failure to follow its RIF re-hire policy
because the uncontested facts show that Defendant did not believe Plaintiff held the requisite
qualifications to fill the vacant position such that it should have proceeded under the policy.
2.
Qualifications to perform the vacant position
Plaintiff’s argument regarding qualifications for the vacant position appears twofold—first,
Plaintiff argues that a social studies certification is not a qualification for the position, and second,
Plaintiff argues that he held the requisite skills for the position.
First, Plaintiff points to evidence that the only requirement to teach at New Directions was
that the teacher must be a licensed, certified teacher—Defendant does not dispute this. Plaintiff,
however, does not contest that Lindstrom was in fact seeking a candidate with a social studies
certification or that Defendant did not consider Plaintiff qualified for the position due to his lack
of a social studies certification. Thus, while the teacher filling the vacancy may not have been
required to hold a specific certification to be employed by New Directions, it is uncontroverted
that Defendant did not consider Plaintiff qualified because it was seeking a candidate with a social
studies certification and Plaintiff did not hold that certification. Plaintiff has simply failed to set
forth any evidence to suggest that Defendant’s value determination regarding teaching certificates
is unworthy of belief. Defendant produced evidence explaining that when making hiring decisions
it seeks to ensure that it has teachers in certain core subjects on staff, and Plaintiff has produced
no evidence to refute this explanation.
Likewise, Plaintiff has not shown that Defendant
considered other applicants for the position that did not hold the identified certifications. Whether
the certification in question actually constituted a requirement or qualification for the position does
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not matter where, as here, it is uncontested that Defendant, acting in good faith, treated it as a true
requirement or qualification.
Second, Plaintiff argues that he held the skills required of someone with a social studies
certification, and that his special education certification is equivalent to or preferable over a social
studies certification.
Plaintiff’s self-valuation of his special education certification lacks
evidentiary support and does not demonstrate that Defendant’s stated reason for not hiring Plaintiff
constitutes pretext.31 Plaintiff represents that as a special education teacher he must be able to
assist students with all subjects, including all core subjects, and thus, argues that he held the
necessary qualifications to teach social studies. He has failed, however, to present any evidence
that the requirements to obtain a special education certification include the same requirements to
obtain a social studies or science certification for teaching students outside of the special education
context. Nor has he identified any evidence that holding a special education certification is
equivalent to holding certifications in each of the core subjects. Plaintiff merely speculates that
his certification offers the same value as a teacher certified in a core subject—this unsupported
speculation does not establish pretext.32 Likewise, Plaintiff’s self-valuation of his skills does not
rise above mere conjecture that Defendant’s stated reason for not hiring him constitutes pretext.
Defendant sought a teacher with one of two specific certifications, neither of which Plaintiff held.
31
See, e.g., Hollis v. Aerotek, Inc., 2015 WL 8375117, at *2 (D. Kan. 2015) (citing Rivera v. City & Cty. of
Denver, 365 F.3d 912, 924-25 (10th Cir. 2004)) (“A plaintiff’s opinion that an interviewer was wrong in his assessment
of the plaintiff’s qualifications does not demonstrate pretext.”).
32
Plaintiff also argues that Defendant should have interviewed him and allowed him to demonstrate that he
held the requisite skills desired for the position. It is not this Court’s role to act as a super personnel department or
second-guess Defendant’s business decisions. Accordingly, absent circumstances not present here—for example, if
Defendant had interviewed other candidates also lacking the preferred certifications—the Court will not require
Defendant to grant Plaintiff an interview when it believes that Plaintiff lacks the requisite qualifications.
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Plaintiff’s self-serving and conclusory statements to the contrary do not satisfy his burden to
establish pretext.
3.
Past treatment of Plaintiff
Defendant argues that the record lacks any evidence suggesting Plaintiff’s race played any
role in its employment decisions, and cites its prior interactions with Plaintiff to argue against an
inference of discrimination. The U.S. Supreme Court recognizes that in failure-to-hire cases
involving a former employee, “facts as to the [company’s] treatment of [the employee] during his
prior term of employment” may be relevant to the pretext inquiry.33 Although not necessary to the
Court’s decision, the Court notes that the record concerning Plaintiff’s prior employment with
Defendant further confirms the lack of evidence of intentional discrimination in this case. For
example, when the Shawnee County Department of Corrections revoked Plaintiff’s security
clearance in 2014, instead of terminating Plaintiff’s employment, Defendant created a new position
for Plaintiff at its Fairlawn location. Likewise, Plaintiff has previously represented that Lindstrom
had always treated him fairly.
Plaintiff has failed to carry his burden to show that Defendant’s proffered justifications for
its employment decision are pretext, and his claims cannot survive summary judgment.
IV.
Conclusion
Defendant has proffered legitimate, nondiscriminatory reasons for its decision not to hire
Plaintiff to fill a vacancy created in June 2015, and Plaintiff has failed to meet his burden to
demonstrate that Defendant’s justifications constitute pretext. There exists no genuine issue of
33
McDonnell Douglas, 411 U.S. at 804.
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material fact precluding summary judgment in Defendant’s favor. Accordingly, the Court grants
Defendant’s motion for summary judgment.
IT IS THEREFORE ORDERED that Defendant’s Motion for Summary Judgment (Doc.
25) is GRANTED.
IT IS SO ORDERED.
Dated this 25th day of April, 2018.
ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE
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