McDaniel v. National Railroad Passenger Corporation

Filing 76

ORDER GRANTING 41 Motion for Summary Judgment; DENYING 56 Motion to Strike Plaintiff's Statement of Disputed Material Facts. Signed by Judge Nannette Jolivette Brown on 12/22/2016. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAMES J. MCDANIEL

CIVIL ACTION

VERSUS

NO. 15-5845

NATIONAL RAILROAD PASSENGER
CORPORATION, D/B/A “AMTRAK”

SECTION: “G”(1)

ORDER
In this litigation, Plaintiff James McDaniel (“McDaniel”) alleges that he was discriminated
against on the basis of age, race, and/or gender by his employer, Defendant National Railroad
Passenger Corporation, d/b/a “Amtrak” (“Amtrak”), in violation of Title VII of the Civil Rights
Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), and Louisiana
state law.1 McDaniel also alleges that he was retaliated against by Amtrak for filing an internal
complaint with Amtrak and a complaint of discrimination with the Equal Employment Opportunity
Commission (“EEOC”) in violation of Title VII and Louisiana state law.2 Pending before the
Court are Amtrak’s “Motion for Summary Judgment”3 and “Motion to Strike Plaintiff’s Statement
of Disputed Material Facts.”4 Having considered the pending motions, the memoranda in support
and in opposition, the record, and the applicable law, the Court will deny Amtrak’s “Motion to

1

Rec. Doc. 1 at 7–11.

2

Id. at 9–10.

3

Rec. Doc. 41.

4

Rec. Doc. 56.

1

Strike Plaintiff’s Statement of Disputed Material Facts”5 and grant Amtrak’s “Motion for
Summary Judgment.”6
I. Background
A.

Factual Background
McDaniel, a white male born on February 15, 1955, has been employed by Amtrak since

1988.7 In 2006, McDaniel was promoted to the position of Assistant Superintendent, Passenger
Services, of the Southern Division (“Assistant Superintendent”).8 According to McDaniel, at some
time prior to December 2, 2013, Amtrak decided to implement a reduction in force (“2013 RIF”)
in order to eliminate certain management positions, including McDaniel’s Assistant
Superintendent position.9 Simultaneously, Amtrak created a new position of Route Director in
New Orleans (“Route Director”), a position which McDaniel alleges had substantially similar but
fewer duties and responsibilities as his former Assistant Superintendent position.10
Upon learning of the intention to eliminate his position, McDaniel states that he applied
for the newly created position of Route Director, but the position was awarded to Anella Popo
(“Popo”) instead.11 McDaniel avers that Popo was a 42-year-old African American female who
had worked for Amtrak for less than fourteen years at the time of her selection.12 McDaniel alleges

5

Rec. Doc. 56.

6

Rec. Doc. 41.

7

Rec. Doc. 1 at 2.

8

Id.

9

Id.

10

Id. at 2–3.

11

Id. at 3.

12

Id.

2

that he was more qualified for the position than Popo “based on his depth of experience,
knowledge, past positions with the company, performance, and temperament.”13
McDaniel further argues that he applied and was not selected for at least five more positions
prior to his position being eliminated.14 Instead, McDaniel asserts that four of the individuals
selected were African-American females, and three were “significantly younger” than McDaniel.15
On December 2, 2013, McDaniel, who was 58 years old at the time, was terminated from
management pursuant to the 2013 RIF.16 Following his termination, McDaniel “exercised his
Union craft seniority that entitled him to a non-management position,” and was assigned to a nonmanagement position at Amtrak with substantially less compensation and benefits.17
On December 23, 2013, McDaniel sent Amtrak an internal complaint of discrimination
concerning his non-selection for Route Manager and the other five positions for which he
applied.18 McDaniel avers that the average age of those affected by the 2013 RIF was 57.3 years
old.19 On August 20, 2014, Amtrak sent a letter to McDaniel, in which, according to McDaniel,
Amtrak stated that its “investigation did not uncover credible evidence to support Mr. McDaniel’s
claims of unfair treatment based on race, gender, or age.”20 McDaniel further alleges that he
continued to apply for Amtrak management positions after filing his internal Amtrak complaint

13

Id.

14

Id.

15

Id. at 4.

16

Id.

17

Id.

18

Id. at 5.

19

Id.

20

Id. at 5–6.

3

and an EEOC complaint, but that he was not selected for those positions.21 McDaniel contends
that he was not selected for those positions in retaliation for his complaints of discrimination and/or
on the basis of his age, race, and/or gender.22
B.

Procedural Background
On June 18, 2014, McDaniel filed a Charge of Discrimination with the EEOC.23 On

October 7, 2015, McDaniel filed a second Charge of Discrimination with the EEOC regarding his
non-selection for other positions that occurred after he filed his first EEOC complaint.24 On
September 17, 2015, the EEOC issued Notices of Right to Sue in connection with McDaniel’s two
Charges of Discrimination.25
On November 12, 2015, McDaniel filed his Complaint against Amtrak.26 McDaniel also
alleged Amtrak engaged in intentional discrimination on the basis of race and/or gender, age
discrimination, and retaliation in violation of Louisiana state law.27 The case was originally
assigned to Section “C” of the Eastern District of Louisiana. 28 After the Court granted Amtrak
additional time to respond to the Complaint,29 Amtrak filed an Answer on December 30, 2015.30

21

Id. at 6.

22

Id.

23

Id.

24

Id.

25

Id.

26

Id. at 8–10.

27

Id. at 11 (citing La. Rev. Stat. §§ 23:332, 23:312, 23:967).

28

Rec. Doc. 2.

29

Rec. Doc. 7.

30

Rec. Doc. 8.

4

On January 6, 2016, this case was reassigned to Section “K” of the Eastern District of Louisiana,31
and on March 24, 2016, this case was reassigned to this Court.32
On November 8, 2016, Amtrak filed the instant motion for summary judgment.33 On
November 15, 2016, McDaniel filed an opposition.34 In his opposition, McDaniel waived his
claims concerning six positions he was not selected for and averred that he now only asserts
violations of Title VII, the ADEA, and Louisiana law for three positions: (1) Route Director,
Crescent/New Orleans; (2) Crew Base Manager, New Orleans; and (3) Onboard Services Manager,
New Orleans.35 On November 22, 2016, Amtrak filed a reply.36
On November 21, 2016, Amtrak filed the motion to strike McDaniel’s statement of
disputed material facts that was attached to his opposition to Amtrak’s motion for summary
judgment.37 Amtrak also filed a motion to expedite the submission date of its motion to strike so
that it would be considered along with Amtrak’s motion for summary judgment.38 On November
22, 2016, the Court denied Amtrak’s motion for an expedited submission date, and instead set the
submission date for both motions for December 7, 2016.39 The Court ordered that any opposition

31

Rec. Doc. 11.

32

Rec. Doc. 17.

33

Rec. Doc. 41.

34

Rec. Doc. 52.

35

Id. at 22.

36

Rec. Doc. 64.

37

Rec. Doc. 56.

38

Rec. Doc. 59.

39

Rec. Doc. 62.

5

to Amtrak’s motion to strike must be filed by December 2, 2016.40 On December 2, 2016,
McDaniel filed an opposition to Amtrak’s motion to strike.41
II. Parties’ Arguments
A.

Amtrak’s Motion to Strike McDaniel’s Statement of Disputed Material Facts
Amtrak’s Arguments in Support of the Motion

1.

In this motion, Amtrak argues that this Court should strike McDaniel’s “Statement of
Disputed Material Facts” (“Statement”) attached to his opposition to Amtrak’s “Motion for
Summary Judgment.”42 Amtrak contends that McDaniel’s Statement is not comprised of
statements of fact, but of “a series of 25 questions” without citations to the record.43 According to
Amtrak, Local Rule 56.2 requires that “[a]ny opposition to a motion for summary judgment must
include a separate and concise statement of the material facts which the opponent contends present
a genuine issue.”44 Amtrak argues that Local Rule 56.2 and Federal Rule of Civil Procedure 56(c)
“requires more than simply alleging that a dispute exists,” and instead requires McDaniel to point
to specific evidence and parts of the record that establish a genuine issue of material fact for trial.45
Amtrak avers that McDaniel’s Statement does not meet these requirements, and thus must be
stricken by the Court.46

40

Id.

41

Rec. Doc. 67.

42

Rec. Doc. 56.

43

Rec. Doc. 56-2 at 1–2.

44

Id. at 2.

Id. (quoting Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992); Brown v. Board of Comm’rs,
2013 WL 4548462, *1 (E.D. La. Aug. 27, 2013)).
45

46

Id. at 2–3.

6

McDaniel’s Arguments in Opposition to the Motion

2.

McDaniel argues that, in opposition to Amtrak’s motion for summary judgment, McDaniel
disputed more than twenty facts listed in Amtrak’s “Statement of Uncontested Material Facts.”47
McDaniel avers that he also provided a twelve page detailed summary of the material facts in this
case with 59 footnotes referencing depositions, affidavits, and other evidence as support.48
According to McDaniel, all Local Rule 56.2 requires is “a separate and concise statement of the
material facts which the opponent contends present a genuine issue.”49
McDaniel further asserts that Amtrak seeks to strike his entire Statement without
addressing each of the twenty five facts he alleged, and instead “makes general objections” against
some and specifically identifies only five statements that it finds objectionable.50 McDaniel states
that his counsel chose to list the disputed facts in the form of questions to make it clear to the Court
what factual issues exist that need to be resolved by a trier of fact.51 McDaniel avers that the
stylistic difference between listing disputed facts as a question, e.g., “[w]as Plaintiff more qualified
. . .”, and Amtrak’s preferred format of listing disputed facts as a statement, e.g., “[w]hether
Plaintiff was more qualified . . .”, is not a proper basis for a motion to strike.52 McDaniel also
contests whether any of its listed questions of fact are irrelevant or improperly go to the ultimate
issue at trial.53

47

Rec. Doc. 67 at 1.

48

Id. at 1–2.

49

Id. at 2.

50

Id.

51

Id. at 3.

52

Id.

53

Id. at 3–5.

7

B.

Amtrak’s Motion for Summary Judgment
Amtrak’s Arguments in Support of the Motion54

1.

In this motion, Amtrak argues that McDaniel’s claims fail as a matter of law because his
“entire theory of liability rests on nothing more than his subjective belief that, if Amtrak selected
employees who were not white males as old or older than him for several of the positions he applied
for, it must have been discrimination.”55 Amtrak avers that discrimination and retaliation claims
brought under Louisiana state law are “governed by the same analysis” as federal discrimination
and retaliation claims.56 Accordingly, Amtrak addresses McDaniel’s federal claims and state law
claims simultaneously.57
a.

Disparate Treatment Claim under Title VII and Louisiana Law

First, Amtrak avers that to succeed on his disparate treatment claim for a failure to promote,
McDaniel must show that he was “clearly better qualified” than the selected candidate, and that
“mere subjective speculation will not suffice.”58 Amtrak asserts that McDaniel applied to, and was
not selected for, nine positions, and that in each case, McDaniel argues that he was not selected
because of his race, gender, and/or age or because he filed a Charge of Discrimination with the
EEOC.59 In sum, Amtrak argues that the “undisputed evidence” demonstrates that McDaniel

In McDaniel’s opposition memorandum, McDaniel states that he waives his claims concerning six
positions that he was not selected for, and only asserts claims for three positions: (1) Route Director, Crescent/New
Orleans; (2) Crew Base Manager, New Orleans; and (3) Onboard Services Manager, New Orleans. Rec. Doc. 52 at
20–22. Accordingly, the Court will only address Amtrak’s arguments regarding these three positions.
54

55

Rec. Doc. 41-1 at 8 (emphasis in original).

56
Id. at 11 (DeCorte v. Jordan, 497 F.3d 433, 437 (5th Cir. 2007); Chen v. Ochsner Clinic Found., 630
Fed. App’x 218, 223 (5th Cir. 2015)).
57

Id.

58

Id. at 10 (citing Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir. 1996); EEOC v. La. Office
of Cmty. Servs., 47 F.3d 1438, 1444 (5th Cir. 1995)).
59

Id. at 12.

8

interviewed poorly, failed to present any enthusiasm or interest for the jobs he applied for, and did
not impress seven different decision makers or the panels who interviewed candidates.60 Amtrak
also points out that most of the decision makers shared a common age, race, or gender class with
McDaniel.61
i.

Route Director, New Orleans

According to Amtrak, McDaniel alleges he was not selected for the Route Director position
because of his age, gender, and/or race.62 However, Amtrak avers that it has met its “exceedingly
light” burden to articulate a non-discriminatory reason for its selection decision.63 Amtrak states
that it received applications from several employees for the Route Director position, and that
Thomas Kirk (“Kirk”), a 55-year-old white male, selected Anella Popo, a 41-year-old African
American female, for the position.64 According to Amtrak, Kirk states that the candidates’ age,
race, and gender “played no role in the decision making process.”65 Amtrak avers that Kirk selected
Popo because she performed well during her interview because she: provided examples of relevant
past experiences and initiatives she had implemented at Amtrak; demonstrated an ability to lead;
and obtained a Master’s degree in Business Administration while working full time at Amtrak.66
By contrast, Amtrak alleges that McDaniel provided vague answers during his interview and did

60

Id. at 29.

61

Id.

62

Id. at 12.

63

Id.

64

Id. at 3.

65

Id.

66

Id. at 12–13.

9

not demonstrate he had the experience needed for the position.67 Amtrak also contends that Kirk
knew of McDaniel’s leadership style and found it lacking, and knew that McDaniel had received
negative feedback from other managers.68 Amtrak states that nothing McDaniel said in his
interview showed he learned from his past mistakes or had changed.69 Amtrak argues that the Fifth
Circuit acknowledges that a candidate who does not “interview well” or “display the same
leadership ability as [the person selected]” are “legitimate, non-discriminatory reasons to prefer
one candidate over another.”70
Amtrak contends that because it has met its burden of production, the burden shifts back
to McDaniel to establish that these non-discriminatory reasons are pretext.71 However, Amtrak
avers that McDaniel’s subjective belief that he was more qualified than Popo is not evidence of
pretext.72 According to Amtrak, the Fifth Circuit requires evidence that the plaintiff was “clearly
better qualified” than the selected candidate, such that no reasonable person could have selected
the chosen candidate over the plaintiff.73 Amtrak contends that neither Kirk’s use of subjective
criteria, such as assessing a candidate’s interview, nor Amtrak’s selection of several African
American women younger than McDaniel are evidence of pretext.74 Amtrak avers that McDaniel

67

Id. at 13.

68

Id.

69

Id.

70

Id. (citing Gregory v. Town of Verona, Miss., 574 Fed. App’x 525, 528 (5th Cir. 2014)).

71

Id.

72

Id.

73

Id. at 13–14 (citing Manning v. Chevron Chem. Co., 332 F.3d 874, 882 (5th Cir. 2003); Bright v. GB
Bioscience, Inc., 305 F. App’x 197, 205 n.8 (5th Cir. 2008); EEOC v. La. Office of Cmty. Servs., 47 F.3d 1438, 1444
(5th Cir. 1995)).
74

Id. (citing Manning, 332 F.3d at 882).

10

cannot point to any statement or testimony that gave him the impression that Popo was selected
based on her race, gender, or age.75 Moreover, Amtrak argues that the fact that Kirk, who made
the employment decision, was in the same protected age, gender, and race classes as McDaniel is
evidence that discrimination was not a motivating factor.76 Thus, Amtrak asserts that McDaniel
failed to meet his burden to establish pretext and Amtrak is entitled to summary judgment on his
claims with respect to this position.77
ii.

Crew Base Manager, New Orleans

Amtrak contends that it has presented nondiscriminatory reasons for why Lori Ball-Austin,
a 50-year-old African American female, was selected for the Crew Base Manager, New Orleans
position.78 Amtrak avers that Anella Popo, a 43-year-old African American female, selected BallAustin because she was very organized with reports, had the skills to develop materials at the last
minute, and could manage multiple tasks at once.79 According to Amtrak, Popo was familiar with
McDaniel’s work and found it lacking “in numerous respects,” as she previously had to make
“numerous changes to correct issues with his work,” and that Popo did not believe McDaniel had
the organizational skills needed for the position.80
Amtrak argues that McDaniel cannot establish pretext because he does not know how he
ranked among the other candidates, never spoke with Popo about why he was not selected, and

75

Id. at 15.

76

Id. (citing Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 1002 (5th Cir. 1996); Easterling v. Tensas Parish
Sch. Bd., No. 14-0473, 2016 WL 1452435 at * 6 (W.D. La. Apr. 13, 2016); Elrod v. Sears, Roebuck and Co., 939
F.2d 1466, 1471 (11th Cir. 1991); Coggins v. Gov’t of D.C., 173 F.3d 424, 1999 WL 94655 at *4 (4th Cir. 1999)).
77

Id.

78

Id. at 21–22.

79

Id. at 22.

80

Id.

11

never heard anything from Popo that gave him the impression that her selection was based on
gender, race, or age.81 Amtrak asserts that merely having more experience than Ball-Austin is
insufficient, as McDaniel must show he was clearly more qualified for the position.82 Amtrak avers
that McDaniel’s argument during his deposition that he believes he was discriminated against
because of a “pattern of selecting African Americans for positions [he has] applied for” is not
enough to survive summary judgment.83
iii.

Onboard Service Manager, New Orleans

Amtrak asserts that McDaniel’s discrimination claim for the Onboard Service Manager,
New Orleans position fails as well because Amtrak has offered legitimate, non-discriminatory
reasons for selecting Horatio Ames, a 56-year-old African American male, for this position.84
Amtrak contends that Anella Popo, a 43-year-old African American female, selected Ames
because he had experience in customer services, management, and train and engine equipment.85
Amtrak also states that Popo selected Ames because he had leadership qualities, mentorship
abilities, enthusiasm, and motivation, and because he gave good answers with specific examples
during his interview.86 Amtrak avers that Ames had no onboard experience, but Popo believed this
could be easily learned, and that she respected him for his military service, how he motivated
employees and performed his work duties well, and that he had a good rapport with employees

81

Id.

82

Id.

83

Id.

84

Id. at 24.

85

Id.

86

Id.

12

working under him.87 Amtrak argues that military experience and leadership potential are
legitimate reasons for selecting a candidate.88
According to Amtrak, McDaniel testified that he did not know what qualities Popo was
looking for or how he ranked against other candidates, and that he never spoke to Popo about why
he was not selected.89 Thus, Amtrak asserts that he cannot argue that his qualifications were “so
superior” to Ames’ qualifications that no reasonable person could have selected Ames over
McDaniel.90 Thus, Amtrak contends that McDaniel has not provided any evidence of pretext other
than his “subjective unsupported” beliefs.91
b.

Retaliation Claims under Title VII and Louisiana Law

Second, Amtrak argues that to establish retaliation under Title VII, McDaniel must
demonstrate that he (1) engaged in a protected activity, (2) was not offered a position, and (3) that
the protected activity and adverse employment action were causally linked.92 According to
Amtrak, if it shows a legitimate, non-retaliatory justification for its action, McDaniel must
demonstrate that Amtrak’s reason is pretext for retaliation.93 In sum, Amtrak contends that there
is no evidence of retaliation, and that McDaniel continued to fail to impress interview panels after
he made a discrimination complaint.94

87

Id.

88

Id. (citing Price, 283 F.3d at 723).

89

Id.

90

Id. at 24–25.

91

Id. at 24.

92

Id. at 11 (citing Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014)).

Id. (citing Coleman v. Jason Pharm., 540 Fed. App’x 302, 303–04 (5th Cir. 2013); Serling v. Am.
Airlines, Inc., 237 Fed. App’x 972 (5th Cir. 2007)).
93

94

Id. at 29.

13

i.

Crew Base Manager, New Orleans

Amtrak contends that it has presented sufficient non-retaliatory reasons, stated supra, for
why Lori Ball-Austin, a 50-year-old African American female, was selected for the Crew Base
Manager, New Orleans position over McDaniel.95 Additionally, Amtrak argues that McDaniel’s
retaliation claim fails because Popo was not aware that McDaniel had engaged in any activity
protected under Title VII when she made her selection decision.96 According to Amtrak, Popo only
testified that McDaniel told her “at some unknown time” that he filed a lawsuit against Amtrak,
but “it had nothing to do with her.”97 Moreover, Amtrak points out that McDaniel did not file the
lawsuit until November 2015, well after the selection decision.”98 Amtrak alleges that McDaniel’s
only evidence to establish that Popo knew about any protected activity was that her manager,
Thomas Kirk, knew about McDaniel’s December 2013 internal complaint; however, Amtrak
argues that McDaniel admitted he did not know if Kirk told Popo about the complaint, and offers
only a “factually-unsupported assumption to rebut Popo’s testimony.”99
iii.

Onboard Service Manager, New Orleans

Amtrak contends that it has also presented sufficient non-retaliatory reasons, stated supra,
for its selection of Horatio Ames, a 56-year-old African American male, for the position of
Onboard Service Manager, New Orleans.100 Amtrak argues that McDaniel’s retaliation claim fails
here because Popo was not aware that McDaniel made any complaint of discrimination when she

95

Id. at 21–22.

96

Id. at 23.

97

Id.

98

Id.

99

Id.

100

Id. at 25.

14

made her selection decision for this position.101 According to Amtrak, McDaniel “assumes that
Popo acted with retaliatory intent” because he was not initially scheduled for an interview.102
However, Amtrak avers that Popo testified in her deposition that she had selected McDaniel for
an interview, but that the Human Capital Department “inadvertently failed to contact him.”103
According to Amtrak, McDaniel “has no information to dispute her testimony,” and that McDaniel
was ultimately interviewed.104 Additionally, Amtrak states that McDaniel cannot establish pretext,
as “merely questioning whether he might not have initially been scheduled for an interview” is
insufficient evidence.105
c.

Age Discrimination Claim under the ADEA and Louisiana Law

Third, Amtrak argues that the ADEA requires that McDaniel demonstrate that age was the
“but for” cause of Amtrak’s adverse action, and that mixed motive claims are not cognizable under
the ADEA.106 Here, Amtrak avers that McDaniel asserts multiple reasons other than age that
motivated Amtrak’s selection decisions.107 Thus, Amtrak asserts that McDaniel “necessarily
concedes that age was not the but-for cause of these employment decisions.”108 Additionally,
Amtrak contends that McDaniel’s individual age discrimination claims each fail as a matter of
law.

101

Id.

102

Id.

103

Id.

104

Id.

105

Id. (citing Anderson, 477 U.S. at 249–50).

106

Id. at 10 (citing Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009); Leal v. McHugh, 731 F.3d
405, 411 (5th Cir. 2013)).
107

Id. at 12.

108

Id.

15

i.

Crew Base Manager, New Orleans

Amtrak contends that it has presented nondiscriminatory reasons, stated supra, for why
McDaniel was not selected for the Crew Base Manager, New Orleans position.109 Amtrak avers
that McDaniel has not presented evidence that Popo’s reasons for her selection decision were
pretext.110 In addition, Amtrak argues that Plaintiff’s testimony that he believed he was a threat to
Popo because his age translated to “experience . . . wisdom . . . [a]nd the institutional knowledge
of the business,” does not establish age discrimination.111 Rather, Amtrak avers that this would
only show Popo acted in her own interest and was motivated by self-preservation, not
discrimination.112
ii.

Onboard Service Manager, New Orleans

Amtrak asserts that McDaniel’s age discrimination claim for the Onboard Service
Manager, New Orleans position fails because Horatio Ames, the 56-year-old African American
male who was selected for the position, was not significantly younger than McDaniel.113 Rather,
Amtrak states that Ames was only two years younger than McDaniel and “well within the protected
class.”114 Additionally, as stated supra, Amtrak argues that it has articulated legitimate, nondiscriminatory reasons for selecting Ames, and McDaniel cannot offer any proof of pretext.115

109

Id. at 21–22.

110

Id. at 22.

111

Id. at 22–23.

112

Id. at 23.

113

Id. at 24.

114

Id.

115

Id.

16

d.

Disparate Impact Age Discrimination Claim under the ADEA

Fourth, Amtrak argues that McDaniel’s disparate impact age discrimination claim, i.e. his
ADEA claim that Amtrak’s facially neutral employment policies adversely and unequally affected
persons falling within his protected age class, fails as a matter of law.116 According to Amtrak, in
order for McDaniel to establish his prima facie case of disparate-impact discrimination, he must:
“(i) identify the challenged employment practice or policy, and pinpoint [Amtrak’s] use of it; (ii)
demonstrate a disparate impact on a group that falls within the protective ambit of the ADEA; and
(iii) demonstrate a causal relationship between the identified practice and the disparate impact.”117
Amtrak contends that this burden is “heavy,” and also requires McDaniel to produce “statistical
evidence of a kind and degree sufficient to show” a “substantially disproportionate” impact on his
protected age group.118
Here, Amtrak avers that McDaniel has not identified any facially neutral policy that had an
adverse impact on employees protected by the ADEA.119 According to Amtrak, the “entire basis”
of McDaniel’s claim is that the average age of the nineteen individuals who were offered severance
packages as a result of Amtrak’s 2013 RIF was 57.3.120 However, Amtrak argues this does not
identify a specific facially-neutral policy responsible for the purported disparate impact, as it is not
enough to allege that a reorganization plan in general was responsible.121 Additionally, Amtrak

116

Id. at 30 (citing Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977)).

117

Id. (citing Gonzalez v. City of New Braunfels, Tx., 176 F.3d 834, 839 n.26 (5th Cir. 1999); Cefalu v.
Tangipahoa Parish Sch. Bd., 2013 WL 5329808 at *7–8 (E.D. La. Sept. 20, 2013)).
118

Id. (citing Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 657 (1989); Munoz v. Orr, 200 F.3d 291,
299 (5th Cir. 2000); Moore v. Southwestern Bell Tele. Co., 593 F.2d 607, 608 (5th Cir. 1979); Powell v. Dallas
Morning News L.P., 776 F. Supp. 2d 240, 257 (N.D. Tex. 2011)).
119

Id. at 31.

120

Id.

121

Id. (citing Leichihman v. Pickwick Int’l, 814 F.2d 1263, n.5 (8th Cir. 1987); Powell v. Dallas Morning

17

asserts that averaging the ages of nineteen employees impacted by the RIF “is woefully insufficient
as evidence of a disparate impact because it does not show a disparity between how a policy
impacted persons inside and outside of the protected class.”122 Amtrak avers that McDaniel’s
calculation is fatally flawed because it does not make any comparison; in fact, Amtrak argues that
a comparison would show that the pre-RIF average age of the “non-agreement workforce” that
McDaniel was a part of was 49.80 years and the post-RIF average was 49.70 years.123 Amtrak
contends that McDaniel also failed to take into account the varying job titles impacted by the RIF,
the reasons for eliminating those positions, or the ages of the persons whose jobs were retained.124
Amtrak avers that McDaniel does not consider if nineteen employees is a large enough sample size
to have any statistical significant or acknowledge that a 0.1 year change in the average age between
pre-RIF and post-RIF is not probative of disparate impact.125
McDaniel’s Arguments in Opposition to the Motion

2.

a.

Discrimination and Retaliation Claims under Title VII, the ADEA, and
Louisiana Law

McDaniel contends that material issues of disputed fact exist regarding whether he was not
selected for three positions he applied for because of his race, gender, and/or age or as retaliation
for filing an EEOC claim: (1) Route Director Crescent, New Orleans; (2) Crew Base Manager,
New Orleans; and (3) Onboard Services Manager, New Orleans.126 McDaniel “waives his claims

News L.P., 776 F. Supp. 2d 240, 257 (N.D. Tex. 2011)).
122

Id. at 31–32 (citing Munoz v. Orr, 200 F.3d 291, 299 (5th Cir. 2000)).

123

Id. at 32.

124

Id.

125

Id. (citing Bennett v. Total Minatome Corp., 138 F.3d 1053, 1062 (5th Cir. 1998); Overstreet v. Siemens
Energy & Automation, Inc., 2005 WL 3068792, * 4 (W.D. Tex. Sept. 26, 2005)).
126

Rec. Doc. 52 at 20–22.

18

concerning the other selection decisions” and “concedes” that there is not sufficient evidence to
support a claim for discrimination in his non-selection for the other six positions.127
McDaniel further asserts that Amtrak misstates the applicable law for McDaniel’s
claims.128 First, McDaniel avers that his age discrimination claim does not fail simply because he
has alleged multiple reasons for the adverse employment actions, because he had plead his causes
in the alternative.129 According to McDaniel, he alleged that his non-selection was motivated “in
whole or in party” by his “age, race and/or gender,” and that a jury could find that but for
McDaniel’s age, he would have been selected for the positions he applied for.130 Second, McDaniel
argues that Amtrak overstated the “clearly better qualified” standard for failure to promote
claims.131 McDaniel contends that showing he is merely better qualified for a position can also be
one factor that can be considered alongside other evidence to demonstrate discrimination.132
McDaniel avers that he can show pretext by establishing that Amtrak’s proffered reasons were not
the real reasons for its employment decision.133
i.

Route Director Crescent, New Orleans

McDaniel, a 58-year-old male at the time of the selection, asserts that he was qualified for
the position of Route Direct Crescent, New Orleans, and that the position was filled “by someone

127

Id. at 22.

128

Id. at 16–20.

129

Id. at 16–17 (citing Griffin v. United Parcel Service, Inc., 2010 WL 126229 (E.D. La. Jan. 8, 2010)).

130

Id. at 17.

131

Id. at 19.

132

Id.

133

Id. (citing Gonzalez v. City of San Antonio, 2013 WL 1149996 (5th Cir. 2013)).

19

17 years younger, black and female.”134 According to McDaniel, the duties and responsibilities of
the Route Director were “substantially the same” as McDaniel’s prior position as Assistant
Superintendent, with the additional responsibility for overseeing the profit and loss of the
budget.135 However, McDaniel avers that he was previously responsible for managing a
$24,000,000 budget, and the Route Director position had a smaller geographical territory, one less
train, and fewer managers and employees to supervise as he had as Assistant Superintendent.136
McDaniel also contends that he was an “exemplary” employee with twenty-five years of service,
“strong” performance evaluations, and no record of being disciplined.137 McDaniel points out that
Thomas Kirk, the decision maker, reviewed and approved his prior positive performance
evaluations.138 McDaniel asserts that his application for the Route Director position included his
resume and a letter of recommendation from the Deputy Director of the North Carolina Department
of Transportation, Allan Paul, who worked with McDaniel in his capacity as Assistant
Superintendent for Amtrak and praised McDaniel as “a highly qualified candidate” for the
position.139 Even though Kirk testified that he respected Paul’s opinion, McDaniel avers, Kirk
selected Anella Popo for the position of Route Director instead.140

134

Id. at 20.

135

Id. at 3.

136

Id.

137

Id. at 3–4.

138

Id. at 4.

139

Id. at 4–5.

140

Id. at 5.

20

According to McDaniel, Popo had less work experience with Amtrak than McDaniel did.141
McDaniel points out that Popo was seventeen years younger and worked in non-management
positions from 1995 to 2007, while McDaniel had managerial responsibility from 2002 to 2006
until he was promoted to Assistant Superintendent.142 Moreover, McDaniel argues that Popo’s first
management position was as Manager of Stations in D.C., which reports to an Assistant
Superintendent, the same position that McDaniel had.143 McDaniel asserts that in 2011, Popo was
transferred to a new position in Miami where she did not supervise management employees and
was only responsible for a budget of $9,000,000, as opposed to McDaniel’s management of a
$24,000,000 budget for seven years.144 Thus, McDaniel argues that Popo did not supervise any
non-agreement management employees for two years prior to being selected for the Route Director
position and only had four years of experience managing non-agreement management employees,
as opposed to his “highly successful and consecutive total of eleven years in management.”145
Additionally, McDaniel states that Amtrak refused to produce Popo’s 2010 or 2011
performance evaluations, and claims to have lost her 2013 evaluation, and therefore cannot argue
that Popo’s prior performance was superior to McDaniel’s.146 According to McDaniel, the 2012
performance evaluations were the latest evaluations available to Kirk when making his decision,
which showed that both Popo and McDaniel had identical scores but McDaniel had greater job

141

Id. at 5–6.

142

Id. at 5.

143

Id.

144

Id.

145

Id. at 6.

146

Id.

21

responsibilities.147 Moreover, McDaniel points out that Popo’s evaluation had “a dose of healthy
criticism, recommendations and directives,” and listed accomplishments that, McDaniel contends,
would not prepare her for the Route Director position.148
McDaniel argues that, while Popo had a Masters of Business Administration, a Master’s
Degree was only listed under the “Preferred Education” section for the position, and only a
Bachelor’s Degree or “the equivalent combination of education and training/experience” was listed
under “Requirements.”149 McDaniel avers that he had an associate’s degree in business, studied
finance at George Washington University, and had 25 years of experience at Amtrak, and that a
Master’s Degree was clearly not necessary as Thomas Kirk himself, who only holds a Bachelor’s
Degree in political science, was selected to be Deputy General Manager in 2013. 150 Additionally,
McDaniel asserts that the job description for at least two Assistant Superintendent positions, one
of which McDaniel held for seven years, also now lists a Master’s Degree as the “preferred”
education level; McDaniel argues that the new preference for an MBA “is essentially code” for
Amtrak managers to hire younger employees, as “it is a rare event” for older employees to have
earned an MBA.151
McDaniel also asserts that there are inconsistencies between Popo’s resume and deposition
testimony concerning when she obtained her MBA.152 For example, McDaniel alleges that in
Popo’s deposition, she said she was living in Fredericksburg, Virginia, while working on her

147

Id.

148

Id. at 7.

149

Id.

150

Id. at 8.

151

Id.

152

Id. at 8–9.

22

Master’s Degree at Strayer University until July 2013, but was also allegedly living in Miami from
2011 to 2013 while working full-time for Amtrak.153 Thus, McDaniel contends that there is a
material issue of disputed fact regarding “what Mr. Kirk, the decision maker, should or could have
reasonably believed about what Ms. Popo had truly been doing educationally and career wise in
the two or three years leading up to her selection.”154
McDaniel also avers that Kirk’s interview notes demonstrate that there was “nothing more
impressive” about Popo’s responses that would “justifiability outweigh or compensate” for Popo’s
lack of experience and knowledge for this position.155 Additionally, McDaniel states that Amtrak
required Kirk to complete a “Candidate Selection Justification” form, which states the race and
gender for each applicant and the birthday of every applicant except McDaniel.156 McDaniel
argues that this document shows that Popo was the youngest applicant, and the very fact that the
form includes race, gender, and birthdays of the applicants is circumstantial evidence that Amtrak
encouraged its decision makers to consider such factors.157 McDaniel further contends that Kirk’s
Declaration states that the hiring manager completed and signed the form, but that Amtrak’s
purported uncontested facts states that a Talent Acquisition Specialist may choose to fill out the
form.158 McDaniel avers that this is a disputed issue of fact precluding summary judgment.159

153

Id.

154

Id. at 9.

155

Id. at 10.

156

Id.

157

Id.

158

Id.

159

Id. at 10–11.

23

Furthermore, McDaniel points out that Kirk made a “disingenuous statement to the internal
EEO investigator that [Kirk] doesn’t know how he knows about [McDaniel’s] evaluations and
[Kirk’s] misrepresentations” that McDaniel was not meeting expectations.160 McDaniel points to
an affidavit by Bruce Mullins, who worked under McDaniel and stated that McDaniel was an
effective leader, accessible, a good mentor, and knew more about Amtrak operations than any
other manager that Mullins had worked with, and that Popo was not as skilled, experienced, or
temperamentally suited for her position.161 McDaniel also asserts that, prior to the selection of the
Route Director, Amtrak’s monthly publication, “Amtrak Ink,” ran several articles recognizing
under-40-year-old employees and “younger influencers” as integral parts of Amtrak’s
“multigenerational team.”162
McDaniel concedes that Amtrak has met its burden under the McDonnell Douglas
framework pointing to non-discriminatory reasons for why Thomas Kirk selected Anella Popo for
the position instead of McDaniel.163 However, McDaniel points to evidence that he contends, taken
together, demonstrates a factual dispute as to: (1) whether McDaniel was “more and/or clearly
more qualified” for the position of Route Director; and (2) whether Kirk’s rationale for his
selection has any credibility or merit.164

160

Id. at 12, 14, 21.

161

Id.

162

Id. at 11.

163

Id.

164

Id. at 21.

24

ii.

Crew Base Manager, New Orleans

According to McDaniel, after he filed his EEOC complaint, he applied for two more
positions in New Orleans in 2015.165 McDaniel asserts that there is a disputed issue of material
fact about whether he was “more and/or clearly more qualified” for the position of Crew Base
Manager, New Orleans than the individual selected, Lori Ball-Austin.166 McDaniel avers that BallAustin had no prior experience managing a crew base, and “barely met [her] goals” when she was
Onboard Services Manager working under the supervision of McDaniel when he was Assistant
Superintendent.167 By contrast, McDaniel states that he held the Crew Base Manager position for
four years in North Carolina “with great success,” and that he had supervised the Crew Base
Manager position for seven years as Assistant Superintendent.168 McDaniel also contends that
Popo admitted that she had no complaints about his performance of his duties.169 McDaniel argues
that Anella Popo, the decision maker, and Thomas Kirk, her direct supervisor, knew that he had
filed an EEOC claim, because he had informed Popo of the EEOC complaint the same day he filed
it on June 18, 2014, and she called Kirk to let him know.170
iii.

Onboard Service Manager, New Orleans

McDaniel further contends that there is a disputed issue of material fact regarding whether
he was “more and/or clearly more qualified” for the position of Onboard Service Manager, New

165

Id. at 14.

166

Id. at 15, 21.

167

Id.

168

Id.

169

Id. at 14.

170

Id. at 13, 21.

25

Orleans than the individual selected, Horatio Ames.171 McDaniel avers that Ames had no prior
onboard experience and had only been with Amtrak for three years.172 McDaniel states that he also
supervised the Onboard Services Manager while he was Assistant Superintendent.173 Moreover,
McDaniel asserts that he was not included on the interview list until he complained to the Human
Capital Department.174 McDaniel argues that, while Popo stated that this was Human Capital’s
error, he asserts that Popo and Kirk knew he had filed an EEOC claim, and alleges that he was not
selected as retaliation for filing the internal complaint and the EEOC complaint.175
b.

Disparate Impact Age Discrimination Claim

According to McDaniel, Amtrak articulated a “facially-neutral policy” in the “Declaration
of Kathryn Huss,” the Human Capital Business Partner in 2013, who detailed the elimination of
nineteen positions during the 2013 RIF.176 In her declaration referred to by McDaniel, Huss states
that the 2013 reorganization resulted in the elimination of a number of Superintendent and
Assistant Superintendent positions “primarily in the Long Distance business line.”177 Huss
contends that this included McDaniel’s Assistant Superintendent position, which was eliminated
“as a result of the realignment to a route based management organizational structure in the Long
Distance business line.”178 McDaniel argues that the policy does not explain why his Assistant

171

Id. at 15, 22.

172

Id.

173

Id. at 15.

174

Id. at 22.

175

Id. at 15, 22.

176

Id.

177

Rec. Doc. 41-6 at 3.

178

Id.

26

Superintendent Position was eliminated or what new position would assume his previous
responsibilities, and that there is “no true rationale” for why these positions were eliminated that
led to “such an adverse impact on older employees.”179 According to McDaniel, the statistical
evidence is “simple and clear” because the average age of those holding the eliminated positions
were 57.3 while the average age of the non-eliminated positions was 49.8.180
In his “Summary of Relevant Facts,” McDaniel points out that Amtrak changed its
retirement plan after the reorganization, such that current employees under the age of 50 on July
1, 2015, are no longer entitled to certain retirement benefits.181 McDaniel argues that by doing so,
“Amtrak was able to reduce its costs by intentionally lowering the ages of its employees through
the purportedly neutral reorganization.”182
Amtrak’s Reply Memorandum in Further Support of the Motion

3.

a.

Route Director, New Orleans

In its reply, Amtrak asserts that McDaniel merely compares his background and experience
to that of Anella Popo, but that such an argument must fail because “better education, work
experience, and longer tenure with a company do not establish that [plaintiff] is clearly better
qualified.”183 According to Amtrak, the Fifth Circuit has stated that “[d]ifferences in qualifications
between job candidates are generally not probative evidence of discrimination unless those
differences are so favorable to the plaintiff that there can be no dispute among reasonable persons

179

Rec. Doc. 52 at 23.

180

Id.

181

Id. at 11.

182

Id.

183
Rec. Doc. 64 at 2 (citing Price v. Fed. Exp. Corp., 283 F.3d 715, 723 (5th Cir. 2002); Gonzalez v. City
of San Antonio, 2013 WL 1149996 at *4 (5th Cir. Mar. 12, 2013)).

27

of impartial judgment that the plaintiff was clearly better qualified for the position at issue.”184
Amtrak asserts that McDaniel’s comparison of the performance evaluations of McDaniel and Popo
is irrelevant, as Kirk did not review or compare the evaluations when making his decision.185
Additionally, Amtrak argues that McDaniel admitted he does not know what qualities Kirk was
seeking for the position.186
Amtrak further contends that Kirk explained that he thought Popo showed good work ethic
by obtaining a Master’s Degree while working.187 Thus, Amtrak asserts that McDaniel’s
arguments that the Master’s Degree is irrelevant or that Popo may not have earned the degree fail,
because what matters is Kirk’s perception of Popo’s work ethic at the time he made the selection
decision.188 Amtrak states that questioning the legitimacy of Popo’s degree does not constitute
evidence that Kirk’s decision was based on age, race, or gender.189 Moreover, Amtrak argues that
McDaniel’s allegation that a preference for a Master’s Degree was meant to eliminate older job
candidates was made without evidence and does not support a disparate treatment claim.190
Amtrak avers that the opinions of Allan Paul, who does not work for Amtrak and was not
involved in the Route Director selection decision, and Bruce Mullins, who also was not a decision
maker, are irrelevant and do not create a factual dispute.191 Likewise, Amtrak argues that simply

184

Id. at 2–3 (quoting Deines v. Tex. Dep’t of Prot. & Reg. Svcs., 164 F.3d 277, 279 (5th Cir. 1999)).

185

Id. at 3.

186

Id.

187

Id.

188

Id.

189

Id.

190

Id. (citing Bennett v. Total Minatome Corp., 138 F.3d 1053, 1061 (5th Cir. 1998)).

191

Id. at 4.

28

because Kirk filled out the Candidate Justification Form instead of a Human Capital representative
as McDaniel points out is also irrelevant, particularly because the form was not required to be
filled out and was not used during the decision-making process.192 Amtrak also asserts that the fact
that Kirk’s handwritten interview notes are difficult to read or scant does not undermine his more
detailed recollection of the interview.193 Amtrak contends that the Amtrak articles about younger
employees do not establish pretext or serve as evidence of age discrimination, and points out that
this argument was rejected by the Fifth Circuit in Bennett v. Total Minatome Corp.194 Additionally,
Amtrak argues that McDaniel’s unsubstantiated allegation that the 2013 RIF was done to reduce
retirement benefit costs was not based on any evidence, and would not be evidence that Kirk
selected Popo based on age.195 Finally, Amtrak avers that McDaniel’s allegations that Amtrak’s
investigation of his internal complaint was not timely completed has no relevance to why Kirk
selected Popo for Route Director.196
b.

Crew Base Manager, New Orleans

Amtrak asserts that McDaniel’s sole argument in support of his claim of discrimination
regarding the Crew Base Manager position is that he was more experienced than the selected
candidate, Lori Ball-Austin, and his own “self-serving testimony” that she “barely met goals.”197

192

Id.

193

Id.

194

Id. at 4–5 (citing Bennett v. Total Minatome Corp., 138 F.3d 1053, 1061 (5th Cir. 1998)).

195

Id. at 5.

196

Id.

197

Id.

29

Amtrak argues that it is irrelevant that Ball-Austin may have lacked management experience when
the decision maker was seeking a candidate with exception organizational skills.198
Additionally, Amtrak avers that McDaniel only supports his retaliation claim by alleging
that he told Popo, the decision maker, that he filed an EEOC charge seven months before the Crew
Base Manager position was posted.199 However, Amtrak contends that McDaniel testified three
times in his deposition that he only suspected Popo knew about his EEOC charge, but had no proof
that she knew about it.200 Amtrak avers that McDaniel cannot submit a self-serving affidavit now
to create a factual dispute with his own testimony. 201 Amtrak also points out that even if Popo
knew about the EEOC charge, it would be insufficient evidence to establish pretext.202
c.

Manager Onboard Services, New Orleans

Amtrak argues that McDaniel’s mere suspicion that Amtrak’s decision to select Horatio
Ames for this position “may have been” retaliatory or based on race because he had less experience
than Ames is not evidence of pretext.203 Moreover, Amtrak asserts that McDaniel cites to no
evidence to dispute Popo’s testimony that he did not initially receive an interview due to an
administrative error, and alleges without support that this was not truthful.204 Amtrak also points

198

Id. at 5–6 (citing Rowe v. Jewell, 88 F. Supp. 3d 647, 669–70 (E.D. La. 2015)).

199

Id. at 6.

200

Id.

201
Id. (citing Kelly v. U.S., 805 F. Supp. 14, 16 (E.D. La. 1992) (“A party opposing a motion for summary
judgment cannot simply rely on self-serving affidavits.”)).
202

Id. (citing Strong v. Univ. Healthcare Sys., LLC, 482 F.3d 802, 808 (5th Cir. 2007)).

203

Id.

204

Id. at 7.

30

out that it appears that McDaniel has waived his age discrimination claim, as Ames is only three
years younger than McDaniel, and previously waived his gender discrimination claim.205
d.

Disparate Impact Claim

Amtrak avers McDaniel failed to identify a specific facially-neutral policy that caused a
disparate impact on a protected age class, as the case law makes clear that identifying a
reorganization plan is insufficient.206 Moreover, Amtrak argues that McDaniel presents no credible
evidence of a disparate impact on employees over 40, as his numbers lack the required statistical
significance.207 Further, Amtrak asserts that McDaniel failed to show that a statistically significant
disparity was caused by the facially-neutral policy, as correlation is insufficient evidence.208 Here,
Amtrak contends that simply alleging that the average ages of 19 terminated employees, which is
less than half of the employees whose jobs were eliminated in the 2013 RIF, were higher than the
average ages of more than 1,500 employees not impacted by the 2013 RIF fails to establish
disparate impact.209
III. Applicable Law
A.

Legal Standard on a Motion for Summary Judgment
Summary judgment is appropriate when the pleadings, the discovery, and any affidavits

show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment

205

Id. at 7 n.24.

206

Id. at 8 (citing Powell v. Dallas Morning News L.P., 776 F. Supp. 2d 240, 258–259 (N.D. Tex. 2011)).

207

Id. (citing Moore v. Southwestern Bell Tele. Co., 593 F.2d 607, 608 (5th Cir. 1979)).

208

Id. at 9 (citing Munoz v. Orr, 200 F.3d 291, 301 (5th Cir. 2000)).

209
Id. (citing Overstreet v. Siemens Energy & Automation, Inc., 2005 WL 3068792, * 4 (W.D. Tex. Sept.
26, 2005)(comparison of group of 11 to group of 100 could not show strong statistical disparity)).

31

as a matter of law.”210 When assessing whether a dispute as to any material fact exists, the court
considers “all of the evidence in the record but refrains from making credibility determinations or
weighing the evidence.”211 All reasonable inferences are drawn in favor of the nonmoving party,
but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and
conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.”212
If the record, as a whole, “could not lead a rational trier of fact to find for the non-moving party,”
then no genuine issue of fact exists and the moving party is entitled to judgment as a matter of
law.213 The nonmoving party may not rest upon the pleadings, but must identify specific facts in
the record and articulate the precise manner in which that evidence establishes a genuine issue for
trial.214
The party seeking summary judgment always bears the initial responsibility of informing
the Court of the basis for its motion and identifying those portions of the record that it believes
demonstrate the absence of a genuine issue of material fact.215 Thereafter, the nonmoving party
should “identify specific evidence in the record, and articulate” precisely how that evidence
supports her claims.216 To withstand a motion for summary judgment, a plaintiff must show that

210

Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
211

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).

212

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.

213

Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986).

214

See, e.g., Celotex, 477 U.S. at 325; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).

215

Celotex, 477 U.S. at 323.

216

Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994).

32

there is a genuine issue for trial by presenting evidence of specific facts.217 The nonmovant’s
burden of demonstrating a genuine issue of material fact is not satisfied merely by creating “some
metaphysical doubt as to the material facts,” “by conclusory allegations,” by “unsubstantiated
assertions,” or “by only a scintilla of evidence.”218 Rather, a factual dispute precludes a grant of
summary judgment only if the evidence is sufficient to permit a reasonable trier of fact to find for
the nonmoving party. Hearsay evidence and unsworn documents that cannot be presented in a form
that would be admissible in evidence at trial do not qualify as competent opposing evidence.219
B.

McDonnell Douglas Burden-Shifting Framework
The burden-shifting framework established in McDonnell Douglas Corp. v. Green governs

claims alleging discrimination and retaliation under Title VII, as well as allegations of age
discrimination under the ADEA.220 To survive summary judgment in a case under the McDonnell
Douglas framework, a plaintiff must first establish a prima facie case of discrimination.221 “To
establish a prima facie case, a plaintiff need only make a very minimal showing.”222 If the plaintiff
can establish a prima facie case, the burden will shift to the defendant to articulate a legitimate,
nondiscriminatory purpose for an adverse employment action.223 The defendant must point to

217

Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (citing Anderson v. Liberty, 477 U.S. 242, 248–

49 (1996)).
218

Little, 37 F.3d at 1075.

219

Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed. R .Civ. P. 56(c)(2).

220

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Munoz v. Seton Healthcare, Inc., 557 F.
App’x 314, 321 (5th Cir. 2014)).
McDonnell Douglas Corp., 411 U.S. at 802; see also Mendoza v. Helicopter, 548 F. App’x 127, 129
(5th Cir. 2013) (applying the McDonnell Douglas framework to discrimination and retaliation claims).
221

222

Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996) (quoting Thornbrough v. Columbus
& Greenville R.R. Co., 760 F.2d 633, 639 (5th Cir. 1985)).
223

Id.

33

admissible evidence in the record,224 but the burden is one of production, not persuasion.225 The
defendant is not required to show that the employment decision was proper, only that it was not
discriminatory.226 “[E]ven an incorrect belief that an employee’s performance is inadequate
constitutes a legitimate, non-discriminatory reason” for an adverse employment action.227
If the defendant satisfies its burden of production, the burden shifts back to the plaintiff to
show that any non-discriminatory purposes offered by the defendant are merely a pretext for
discrimination.228 Plaintiff can do this by presenting evidence of disparate treatment or
demonstrating that the proffered explanation is false or “unworthy of credence.”229
IV. Analysis
A.

Amtrak’s Motion to Strike McDaniel’s Statement of Disputed Facts
Amtrak argues that this Court should strike McDaniel’s “Statement of Disputed Material

Facts” (“Statement”) attached to his opposition to Amtrak’s “Motion for Summary Judgment,”
because the Statement is comprised of a series of 25 questions rather than statements.230 In
opposition, McDaniel asserts that all Local Rule 56.2 requires is “a separate and concise statement
of the material facts which the opponent contends present a genuine issue,” which he contends he

224

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981).

225

Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000).

LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 390 (5th Cir. 2007). See also Perez v. Region 20
Educ. Serv. Ctr., 307 F.3d 318, 325 (5th Cir. 2002); Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir.
1995) (“The question is not whether an employer made an erroneous decision; it is whether the decision was made
with discriminatory motive.”).
226

227

Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991).

228

Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003).

229

Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010).

230

Rec. Doc. 56-2 at 1–2.

34

satisfied by (1) listing the disputed facts in the form of questions and (2) providing a thirteen page
detailed summary of the material facts of the case.231
Local Rule 56.2 states that “[a]ny opposition to a motion for summary judgment must
include a separate and concise statement of the material facts which the opponent contends present
a genuine issue.” Here, McDaniel attached a “Statement of Disputed Material Facts” to his
opposition to Amtrak’s Motion for Summary Judgment.232 In his “Statement,” McDaniel provides
a series of questions where McDaniel asserts there are disputed material facts.233 McDaniel also
attached a separate “Response to Amtrak’s Statement of Uncontested Material Facts,” where
McDaniel disputes many of Amtrak’s 166 statements of allegedly uncontested material facts with
references to evidence in the record.234 Additionally, McDaniel included a thirteen page summary
of alleged relevant facts in his opposition memorandum that McDaniel contends creates genuine
disputed issues of material fact precluding summary judgment.235 While McDaniel contends this
collectively satisfies Local Rule 56.2, the Court notes that the Rule is clear: an opposition must
include a “separate and concise statement” of material facts which McDaniel contends present a
genuine issue.236 A “statement” is an affirmative fact submitted in opposition to the motion for
summary judgment; a question is not an undisputed fact. However, the Court finds that even taking

231

Rec. Doc. 67 at 1–2.

232

Rec. Doc. 52-4.

233

Id.

234

Rec. Doc. 52-5.

235

Rec. Doc. 52 at 3–15.

236

Local Rule 56.2 (emphasis added).

35

McDaniel’s questions into consideration does not change the outcome of this Order. Accordingly,
the Court denies Amtrak’s motion to strike McDaniel’s “Statement of Disputed Material Facts.”237
B.

Amtrak’s Motion for Summary Judgment
In this motion, Amtrak argues that summary judgment should be granted because

McDaniel has not presented any evidence that Amtrak discriminated against McDaniel based on
his age, race, or gender, or in retaliation for filing complaints of discrimination with Amtrak and
the EEOC.238 In response, McDaniel contends that there are disputed issues of material fact
precluding summary judgment on his claims that he was discriminated against when he was not
selected for three positions at Amtrak: (1) Route Director Crescent, New Orleans; (2) Crew Base
Manager, New Orleans; and (3) Onboard Services Manager, New Orleans.239 McDaniel also
contends that there are material issues of disputed fact precluding summary judgment on his
disparate impact age discrimination claim.240
The Court first notes that McDaniel “waives his claims concerning the other selection
decisions” and “concedes” that there is not sufficient evidence to support a claim for discrimination
in his non-selection for six out of the nine positions to which he applied.241 Accordingly, because
McDaniel has not identified any evidence in the record that would support those claims, the Court
will grant summary judgment on McDaniel’s claims based on the following positions: (1) Assistant
237
See Greco v. Velvet Cactus, LLC, No. 13-3514, 2014 WL 2943598, at *7 (E.D. La. June 27, 2014)
(Vance, J.) (“Greco's objections are primarily minor disputes as to the proper way to characterize the facts and as
such are not a proper basis for a motion to strike.”). See also Oiler v. Biomet Orthopedics, Inc., No. 02-3778, 2004
WL 325389, at *1 n.2 (E.D. La. Feb. 17, 2004) (Africk, J.) (finding that the court would not deem defendant’s
statement of undisputed facts “admitted” because, although the plaintiff failed to include statement of contested
material facts as required by Local Rule 56.2, he specifically disputed certain facts in his opposition).
238

Rec. Doc. 41-1.

239

Rec. Doc. 52 at 20–22.

240

Id. at 22.

241

Id.

36

Superintendent of Passenger Services, Washington D.C.; (2) Onboard Service Manager, Chicago;
(3) Senior Officer, Customer Service Standards; (4) Manager Food and Beverage Operations, New
Orleans; (5) Assistant Superintendent, Miami; and (6) Onboard Service Manager, Chicago.
Next, the Court will address McDaniel’s allegations of race, gender, and/or age
discrimination and retaliation for each remaining position in turn. Both parties agree that claims
for discrimination and retaliation under Title VII and Louisiana law are both governed by the same
analysis.242 Louisiana state courts and federal courts in the Fifth Circuit have repeatedly held the
same. 243 Accordingly, the Court will address McDaniel’s intentional discrimination claims under
state and federal law on the basis of race, gender, and/or age, and for retaliation simultaneously.
Title VII prohibits discrimination in hiring or terminating an individual based on race,
color, religion, sex, or national origin.244 Allegations of intentional discrimination can be
established using either circumstantial or direct evidence.245 Likewise, Title VII “prohibits an
employer from discriminating against an employee because she made a charge, testified, assisted,
or participated in a Title VII investigation, proceeding, or hearing.”246 Ultimately, “Title VII

242

See Rec. Doc. 41-1 at 11; Rec. Doc. 52 at 19.

DeCorte v. Jordan, 497 F.3d 433, 437 (5th Cir. 2007) (“Claims of racial discrimination in employment,
pursuant to 42 U.S.C. § 1981 and the Louisiana Employment Discrimination Law, are governed by the same
analysis as that employed for such claims under Title VII.”); McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th
Cir. 2007) (stating that the outcome of plaintiff’s statutory discrimination and retaliation claims will be the same
under the federal and state statutes); Motton v. Lockheed Martin Corp., 2003-0962 (La. App. 4 Cir. 3/2/05), 900 So.
2d 901, 909 (“Louisiana courts have looked to federal jurisprudence to interpret Louisiana discrimination laws.”).
See also Minnis v. Bd. of Sup'rs of Louisiana State Univ. & Agric. & Mech. Coll., 55 F. Supp. 3d 864, 884–85 (M.D.
La. 2014) (applying, without further discussion, the court’s Title VII analysis to the plaintiff’s state law claims and
finding that he could not satisfy his burden of proving race discrimination and retaliation), aff'd sub nom. Minnis v.
Bd. of Sup'rs of Louisiana State Univ. & Agr. & Mech. Coll., 620 F. App’x 215 (5th Cir. 2015); Stevenson v.
Williamson, 547 F. Supp. 2d 544, 551 (M.D. La. 2008) (“Therefore, the federal analysis applicable to plaintiff's Title
VII claim also governs plaintiff's state law claims under La. R.S. 23:967 (Louisiana’s anti-retaliation statute)”).
243

244

Thomas v. Trico Prod. Corp., 256 F. App’x 658, 661 (5th Cir. 2007) (citing 42 U.S.C. § 2000e–2(a)(1)).

245

Johnson v. Maestri-Murrell Prop. Mgmt., LLC, 487 F. App’x 134, 136 (5th Cir. 2012).

246
Smith v. Bd. of Supervisors of S. Univ., 656 F. App’x 30 (5th Cir. 2016) (quoting Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006) (quoting 42 U.S.C. § 2000e–3(a))) (internal quotation marks omitted).

37

retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged
employment action.”247
Under the ADEA, it is “unlawful for an employer . . . to fail or refuse to hire or to discharge
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.”248 When a
plaintiff alleges disparate treatment, “liability depends on whether the protected trait (under the
ADEA, age) actually motivated the employer’s decision.”249 Courts in the Fifth Circuit analyze
discrimination claims and retaliation claims through the burden-shifting framework established by
the Supreme Court in McDonnell Douglas Corp. v. Green.250 In order to state a valid claim under
the ADEA, the plaintiff “must prove, by a preponderance of the evidence that age was the ‘butfor’ cause of the challenged adverse employment action.”251 Here, although McDaniel does not
allege he was discriminated against solely on the basis of age, he has pled each of his causes of

247

Minnis, 55 F. Supp. 3d at 882 (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2521
(2013)), aff'd sub nom. Minnis, 620 F. App’x at 215.
248

Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 141 (2000) (citing 29 U.S.C. § 623(a)(1)).

249

Id. (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)).

Thomas, 256 F. App’x at 661 (citing 411 U.S. 792 (1973)); see Smith v. Bd. of Supervisors of S. Univ.,
656 F. App’x 30 (5th Cir. 2016) (“Title VII retaliation claims based on circumstantial evidence are analyzed under
the McDonnell Douglas burden-shifting framework. . . [c]laims for age discrimination under the ADEA are also
evaluated under the McDonnell Douglas framework.”); Jones v. Overnite Transp. Co., 212 F. App’x 268, 272–73
(5th Cir. 2006) (stating that, “[a]bsent direct evidence of intentional race discrimination, a plaintiff must establish
the following elements of a prima facie case under the McDonnell Douglas framework”); Puleo v. Texana MHMR
Ctr., No. 3:13-CV-00393, 2016 WL 3792746, at *6 (S.D. Tex. May 9, 2016) (“In Title VII sex discrimination cases,
federal courts employ a burden-shifting framework first articulated by the Supreme Court in McDonnell Douglas.”).
See also Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003) (“Under this framework, the plaintiff must first create
a presumption of discrimination by making out a prima facie case of discrimination. The burden then shifts to the
employer to produce a legitimate, nondiscriminatory reason for her termination. This causes the presumption of
discrimination to dissipate. The plaintiff then bears the ultimate burden of persuading the trier of fact by a
preponderance of the evidence that the employer intentionally discriminated against her because of her protected
status.” (citations omitted)).
250

251
Griffin v. United Parcel Serv., Inc., No. 08-2000, 2010 WL 126229, at *2 (E.D. La. Jan. 8, 2010)
(Barbier, J.). (citing Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343, 2352 (2009)).

38

action in the alternative.252 Accordingly, the Court will consider McDaniel’s age discrimination
claims.
a.

Route Director Crescent, New Orleans

McDaniel alleges that he was not selected for the position of Route Director because of his
race, gender, and/or age in violation of Title VII and Louisiana law.253 Amtrak asserts that
summary judgment on McDaniel’s Route Director position claim is warranted because Amtrak
has articulated several non-discriminatory reasons for not selecting McDaniel for this position, and
McDaniel has not identified any evidence that this decision was pretextual and was impermissibly
based on race, gender, and/or age.254
1.

Prima Facie Case of Discrimination

First, McDaniel must establish a prima facie case of discrimination under the McDonnell
Douglas framework by demonstrating that he: “(1) is a member of a protected group; (2) was
qualified for the position at issue; (3) was discharged or suffered some adverse employment action
by the employer; and (4) was replaced by someone outside his protected group or was treated less
favorably than other similarly situated employees outside the protected group.”255 Here, McDaniel,
alleges that he is a white male who was 58 years old at the time he was not selected for the position
of Route Director.256 He presents evidence that he was qualified for the position, and states that

Id. (“However, Defendant fails to acknowledge that Plaintiff has plead his causes of action in the
alternative.”) (citing Fed. R. Civ. Pro. 8(d)(2)). See also Leal v. McHugh, 731 F.3d 405, 415 (5th Cir. 2013)
(“Appellants need not plead that age was the sole cause of their injury to survive a motion to dismiss.” (emphasis in
original)).
252

253

Rec. Doc. 1 at 3, 8.

254

Rec. Doc. 41-1 at 12.

255

McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007).

256

Rec. Doc. 52 at 3–5.

39

Amtrak selected Anella Popo, a 41-year-old African American female, for the position instead.257
McDaniel alleges that he was not selected for the position because he is a member of a protected
race, gender, and/or age class.258 It appears that Amtrak does not dispute that McDaniel has made
out a prima facie case of discrimination.259 Thus, the Court finds that McDaniel has established a
prima facie showing that he was discriminated against on the basis of race, gender, and/or age in
violation of Title VII and Louisiana law.
2.

Legitimate, Nondiscriminatory Reasons for Employment Action

Once the Court finds that McDaniel has made his prima facie showing, the burden shifts
to Amtrak to articulate a legitimate, nondiscriminatory reason for its employment action.260
Amtrak only bears the burden of production, not persuasion.261 Here, Amtrak identifies several
nondiscriminatory reasons for why McDaniel was not selected for the Route Director position.
Amtrak asserts that Thomas Kirk, a 55-year-old white male, selected Anella Popo, a 41-year-old
African American female, for the position because she interviewed well by providing past
examples of relevant experiences and initiatives she had implemented at Amtrak and demonstrated
an ability to lead.262 Amtrak argues that Kirk, the decision maker, knew that Popo obtained a
Master’s Degree while working full time at Amtrak and was impressed with her work ethic.263
Amtrak contends that McDaniel did not interview well, provided vague answers to interview

257

Id. at 5.

258

Id. at 20–21.

259

See Rec. Docs. 41, 64.

260

McCoy, 492 F.3d at 557.

261

Id.

262

Rec. Doc. 41 at 12–13.

263

Rec. Doc. 64 at 3.

40

questions, failed to demonstrate that he had the experiences needed for the position, and failed to
show that he had learned from his past mistakes.264 Amtrak further avers that Kirk was familiar
with McDaniel’s leadership style and found it lacking, and knew that McDaniel had received
negative feedback from other managers.265
As the Fifth Circuit has made clear, “[b]asing a promotion decision on an assessment of
qualifications will almost always qualify as a legitimate, nondiscriminatory reason” sufficient to
rebut a plaintiff’s prima facie case.266 Likewise, McDaniel concedes that Amtrak has met its burden
of production and identifies six nondiscriminatory reasons proffered by Amtrak for its employment
action.267 Thus, the Court finds that Amtrak has satisfied its burden of producing evidence of
legitimate, nondiscriminatory reasons for its decision not to select McDaniel for this position.268
3.

Pretext for Discrimination

Once the Court finds that Amtrak has met its burden of production, McDaniel then bears
the final burden of producing “substantial evidence” to prove that the Amtrak’s “proffered reason
is not true but instead is a pretext for the real discriminatory or retaliatory purpose.”269 To defeat

264

Rec. Doc. 41 at 13.

265

Id.

266
Johnson v. Louisiana ex rel. Louisiana Bd. of Sup'rs for Louisiana State Univ. Agr. & Mech. Coll., 79 F.
App’x 684, 689 (5th Cir. 2003); Scales v. Slater, 181 F.3d 703, 712 (5th Cir. 1999).
267

Rec. Doc. 52 at 20–21.

Gregory v. Town of Verona, Miss., 574 F. App’x 525, 528 (5th Cir. 2014)(finding that not interviewing
well and not displaying the same leadership ability as the selected employee are legitimate, non-discriminatory
reasons to prefer one candidate over another); Price v. Fed. Exp. Corp., 283 F.3d 715, 720 (5th Cir. 2002) (stating
that a plaintiff must produce evidence which, “taken as true, would permit the conclusion that there was a
nondiscriminatory reason for the adverse action.” (emphasis in original)) (citing St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 506 (1993)); see, e.g., Gonzalez v. City of San Antonio, No. 12-50472, 2013 WL 1149996, at *2 (5th Cir.
Mar. 12, 2013) (finding that scoring lower during the interview process is sufficient evidence to establish a
legitimate, nondiscriminatory reason for not hiring an individual).
268

269
McCoy, 492 F.3d at 557 (citing Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000));
Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003).

41

summary judgment, McDaniel must rebut each of the nondiscriminatory reasons articulated by
Amtrak.270 Overall, McDaniel may establish pretext by showing that: (1) he was “clearly better
qualified” than the person selected for the position; (2) Amtrak’s “proffered reason was not the
real reason for its employment decision,” i.e. the explanations are false or “unworthy of credence;”
or (3) that Amtrak was otherwise motivated by considerations of race, gender, and/or age.271
i.

Whether McDaniel was “clearly better qualified” than Popo

First, McDaniel asserts that he has produced sufficient evidence demonstrating that he was
“clearly better qualified” for the position of Route Director to defeat summary judgment.272 The
Fifth Circuit has held that demonstrating that an unsuccessful employee applicant was “clearly
better qualified” than the employee selected for a position is sufficient to establish pretext under
the McDonnell Douglas framework.273 “A fact finder can infer pretext if it finds that the employee
was ‘clearly better qualified’ (as opposed to merely better or as qualified) than the employees who
are selected.”274 However, courts will not find pretext when the employer’s “judgments on
qualifications are somewhere within the realm of reason.”275 Moreover, “[t]he fact that one

270

Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 412 (5th Cir. 2007); McCoy, 492 F.3d
at 557. See Rec. Doc. 52 at 19.
271

Gonzalez v. City of San Antonio, No. 12-50472, 2013 WL 1149996, at *3 (5th Cir. Mar. 12, 2013);
Burrell, 482 F.3d at 412 (“ Burrell has two methods available to him to try to prove that Dr. Pepper's proffered
reason for failing to promote him was a pretext for racial discrimination: (1) Burrell could show that Dr. Pepper's
proffered explanation is false or ‘unworthy of credence’; or (2) Burrell could try to prove that he is ‘clearly better
qualified’ than the person selected for the position.”); McCoy, 492 F.3d at 557. See Rec. Doc. 52 at 19 (McDaniel
stating that he can establish pretext through both methods of proof).
Rec. Doc. 52 at 19 (“If Plaintiff demonstrates he is clearly better qualified, as we believe he will, then
that in and of itself is enough to prove pretext.”); id. at 21 (“The facts and exhibits alleges create, at the very least, an
issue of material dispute facts as to whether Plaintiff was more and/or clearly more qualified for this position than
the individual selected . . . .”).
272

273

Price v. Fed. Exp. Corp., 283 F.3d 715, 723 (5th Cir. 2002)

274

Moss v. BMC Software, Inc., 610 F.3d 917, 922–23 (5th Cir. 2010) (quoting EEOC v. La. Office of
Cmty. Servs., 47 F.3d 1438, 1444 (5th Cir. 1995)).
275

Churchill v. Texas Dep't of Criminal Justice, 539 F. App’x 315, 321 (5th Cir. 2013).

42

candidate has ‘better education, work experience, and longer tenure with the company do[es] not
establish that he is clearly better qualified.’”276 “[T]he bar is set high for this kind of evidence
because differences in qualifications are generally not probative evidence of discrimination unless
those disparities are ‘of such weight and significance that no reasonable person . . . could have
chosen the candidate selected over the plaintiff for the job in question.’”277 “Unless the
qualifications are so widely disparate that no reasonable employer would have made the same
decision, any differences in qualifications are generally not probative evidence of
discrimination.”278
According to its original job posting, the Route Director for Crescent/City of New Orleans
is responsible for “one or more long-distance train routes including financial, customer
satisfaction, ridership and revenue, safety, and overall business line goals.”279 The Route Director
is also responsible for “profit and loss of the route[s] by overseeing all field operations and
directing business planning and decision making.”280 Other essential responsibilities include
creating a “safe and secure work environment,” providing customer service, managing a budget
and expenditures, and closely corroborating with other employees. 281 The position also requires a
Bachelor’s Degree or an equivalent combination of education, training, and experience, and lists
a Master’s Degree in a relevant business field as its preferred education.282 The required work

276

Id. (citing Price, 283 F.3d at 723).

Gregory v. Town of Verona, Miss., 574 F. App’x 525, 529 (5th Cir. 2014) (quoting Celestine v.
Petroleos de Venezuella SA, 266 F.3d 343, 357 (5th Cir. 2001)).
277

278

Moss, 610 F.3d at 923 (quotation marks and citations omitted).

279

See Rec. Doc. 41-7 at 4.

280

Id.

281

Id. at 5.

282

Id. at 6.

43

experience section includes “[s]ignificant leadership, customer service and financial management
experience,” as well as experience in operating a budget, advanced leadership and management
skills, and an ability to effectively facilitate change and innovative approaches.283
Moreover, according to Thomas Kirk, the decision maker, he was “most interested in
finding a candidate who had demonstrated business acumen in order to successfully handle
budgetary responsibilities, oversee profit and loss, oversee union and management employees and
collaborate with other departments providing services to New Orleans.”284 Kirk also states that the
Route Director job had some of the responsibilities of the former Assistant Superintendent
position, but also included “more responsibility and accountability for profit and loss of the
assigned routes.”285 Kirk asserted that he was looking for a candidate who was “willing to make
changes, encourage the employees to accept those changes in a positive way and look at the process
and think of ways to implement changes in order to save the routes money and effect the bottom
line.”286 The candidate needed to be able to take initiative and proactively come up with ideas,
projects, and plans to be implemented.287
McDaniel, a 58-year-old male at the time of the selection, asserts that he was qualified for
the position of Route Director, and that the position was filed “by someone 17 years younger, black
and female” and, according to McDaniel, substantially less qualified than he was for the
position.288 According to McDaniel, the duties and responsibilities of the Route Director were

283

Id.

284

Rec. Doc. 41-9 at 2.

285

Id.

286

Id.

287

Id.

288

Rec. Doc. 52 at 20.

44

“substantially the same” as McDaniel’s prior position as Assistant Superintendent, with the
additional responsibility for overseeing the profit and loss of the budget.289 However, McDaniel
avers that he was previously responsible for managing a $24,000,000 budget, and the Route
Director position had a smaller geographical territory, one less train, and fewer managers and
employees to supervise as he had as Assistant Superintendent. 290 McDaniel also contends that he
was an “exemplary” employee with 25 years of service, “strong” performance evaluations, and no
record of being disciplined.291
According to McDaniel, Popo had less work experience with Amtrak than McDaniel did.292
McDaniel points out that Popo was 17 years younger and worked in non-management positions
from 1995 to 2007, while McDaniel had managerial responsibility from 2002 to 2006 until he was
promoted to Assistant Superintendent.293 Moreover, McDaniel argues that Popo’s first
management position was as Manager of Stations in D.C., which reports to an Assistant
Superintendent, the same position that McDaniel had.294 McDaniel asserts that in 2011, Popo was
transferred to a new position in Miami where she did not supervise management employees and
was only responsible for a budget of $9,000,000, as opposed to McDaniel’s management of a
$24,000,000 budget for seven years.295 Thus, McDaniel argues that Popo did not supervise any
non-agreement management employees two years prior to being selected for the Route Director

289

Id. at 3.

290

Id.

291

Id. at 3–4.

292

Id. at 5–6.

293

Id. at 5.

294

Id.

295

Id.

45

position and only had four years of experience managing non-agreement management employees,
as opposed to his “highly successful and consecutive total of eleven years in management.”296
Here, the evidence produced by McDaniel does not support his argument that he was
clearly better qualified than Popo such that “no reasonable person . . . could have chosen the
candidate selected over the plaintiff for the job in question.’”297 Kirk stated that he selected Popo
because, during her interview, “she provided solid examples of her experience and ability to lead
various teams, identified initiatives she had taken to improve financial performance in her
department, and explained how she had implemented change that resulted in minimal disruption
of services and minimal dissatisfaction of employees.”298 These qualifications identified by Kirk
match the qualifications listed in the job positing for the Route Director position, such as an ability
to lead, innovate, and make financial changes.299 Kirk also states that he knew Popo had completed
a Master’s Degree while working full time, which he believed demonstrated a strong work ethic
and ability to multi-task.300 Moreover, both Popo and McDaniel had managerial experience at
Amtrak, and although Popo was working at one managerial level below McDaniel at the time of
the selection, Kirk states that he believed they had similar managerial experience because Popo
had filled in as a manager at McDaniel’s level for six months at the “particularly busy”
Washington, D.C. station.301

296

Id. at 6.

Gregory v. Town of Verona, Miss., 574 F. App’x 525, 529 (5th Cir. 2014) (quoting Celestine v.
Petroleos de Venezuella SA, 266 F.3d 343, 357 (5th Cir. 2001)).
297

298

Rec. Doc. 41-2 at 4.

299

See Rec. Doc. 41-7 at 4–5.

300

Rec. Doc. 41-9 at 3.

301

Id. at 4.

46

McDaniel argues that, while Popo had a Masters of Business Administration, a Master’s
Degree was only listed under the “Preferred Education” section for the position, but only a
Bachelor’s Degree or “the equivalent combination of education and training/experience” was listed
under “Requirements.”302 McDaniel avers that he had an Associate’s Degree in business, studied
finance at George Washington University, and had 25 years of experience at Amtrak, and that a
Master’s Degree was clearly not necessary as Thomas Kirk himself, who only holds a Bachelor’s
Degree in political science, was selected to be Deputy General Manager in 2013.303 However,
McDaniel offers no evidence that his Associate’s Degree combined with his years of experience
makes him “clearly better qualified” than an applicant holding an MBA. Moreover, McDaniel fails
to address the fact that Kirk stated that the MBA was relevant to his decision because he believed
obtaining an MBA while working full time displayed a strong work ethic.304
McDaniel also asserts that there are inconsistencies between Popo’s resume and deposition
testimony concerning when she obtained her MBA.305 For example, McDaniel alleges that in
Popo’s deposition, she said she was living in Fredericksburg, Virginia, while working on her
Master’s Degree at Strayer University until July 2013, but was also allegedly living in Miami from
2011 to 2013 while working full time for Amtrak.306 Thus, McDaniel contends that there is a
material issue of disputed fact regarding “what Mr. Kirk, the decision maker, should or could have
reasonably believed about what Ms. Popo had truly been doing educationally and career wise in

302

Rec. Doc. 52 at 7–8.

303

Id. at 8.

304

Rec. Doc. 41-9 at 3.

305

Rec. Doc. 52 at 8–9.

306

Id.

47

the two or three years leading up to her selection.”307 However, Kirk testified that he believed
obtaining a Master’s Degree while working full time demonstrated a strong work ethic, and
McDaniel has not presented any evidence that Kirk knew about any inconsistencies regarding
Popo’s education at the time he made his selection. Moreover, the Court notes that McDaniel
creates such an “inconsistency” by citing to portions of Popo’s deposition where Popo was
discussing her Bachelor’s Degree, not her Master’s Degree, and references other pages of Popo’s
deposition that were omitted from McDaniel’s exhibits.308 Additionally, McDaniel’s evidence of
alleged inconsistencies in Popo’s educational background does not establish that McDaniel was
clearly more qualified than Popo in light of her other qualifications, or that Kirk’s decision was
based on age, race, or gender. Moreover, the Court notes that McDaniel does not provide any
supporting evidence for his allegation that Amtrak’s preference for a Master’s Degree was meant
to eliminate older job candidates, and merely relies on his own supposition and conjecture. Such
pure speculation, without pointing to any evidence in the record, is insufficient to establish
pretext.309
The additional evidence that McDaniel points to also does not establish that he is “clearly
better qualified” for the position. For example, McDaniel points to the performance reviews of
both candidates, which show that McDaniel had more experience and responsibilities than Popo

307

Id. at 9.

See Rec. Doc. 52 at 8–9 (McDaniel arguing in his opposition memorandum that Popo “claimed that she
was living in Fredericksburg at the time she studied for her Masters.”); Rec. Doc. 52-3 at 6–9 (Popo stating in her
deposition that she was living in Fredericksburg at the time she was studying for her bachelor’s degree). The Court
notes that McDaniel also cites to page 40 of Popo’s deposition, but fails to include it in the attached exhibit. See
Rec. Doc. 52-3 at 6–7 (skipping from page 39 to 41).
308

309

See Reynolds v. Sovran Acquisitions, L.P., 650 F. App'x 178, 184 (5th Cir. 2016) (finding that a
plaintiff’s “unsubstantiated and subjective beliefs and opinions regarding good employment practices are
insufficient to create a genuine fact issue.”) (citations and quotation marks omitted); Ramsey v. Henderson, 286 F.3d
264, 269 (5th Cir. 2002) (“[C]onclusory allegations, speculation, and unsubstantiated assertions are inadequate to
satisfy the nonmovant’s burden on a motion for summary judgment.”).

48

did.310 However, the reviews also show that both candidates received the same overall scores, and
Popo’s performance review contains significant praise regarding her managerial skills, including
her ability to aggressively make changes, improve service to customers, ensure a safe and clean
working environment, and other efforts to make improvements.311 More importantly, Kirk stated
that he did not consider the performance reviews in making his decision.312 McDaniel has not
identified any evidence that the performance reviews were considered by Kirk or that this
establishes that McDaniel is clearly better qualified than Popo.
McDaniel also points to a letter of recommendation from Allan Paul, the Deputy Director
of the North Carolina Department of Transportation Rail Division, which states that, in Paul’s
opinion, McDaniel was “a very highly qualified candidate” for the position.313 However, including
a letter of recommendation to his application from a colleague not involved in the selection process
does not provide a sufficient basis for this Court to find that McDaniel was “clearly better
qualified” than Popo.
Next, McDaniel points to the testimony of former Amtrak employee Bruce Mullins, who
stated that, based upon his “experience and observations through the years” at Amtrak, McDaniel
was a better manager than Popo.314 Mullins states that McDaniel knew more about Amtrak than
any other manager Mullins worked with, was an effective leader, accessible, a good mentor, and

310

Rec. Doc. 52 at 6–7.

311
See Rec. Doc. 52-3 at 16–18 (“This is Anella’s first year as a manager in the division, but few people
would know because she aggressively went about making changes that certainly improved service to customers and
providing employees with all tools needed to properly perform there [sic] duties.”).
312

Rec. Doc. 41-9 at 2.

313

Rec. Doc. 52-2 at 81.

314

Rec. Doc. 52-3 at 47–49.

49

had a good working relationship with his colleagues.315 By contrast, Mullins contends that Popo
was “not as skilled, experienced, or temperamentally suited to her position” as McDaniel had
been.316 For example, Mullins states that: Popo moved her office to a different building “so that
she would not be as accessible to the employees;” did not work as long hours as McDaniel did;
would act “in a disrespectful and condescending manner;” did not dress appropriately for the
workplace and would wear “skirts that were too short and distracting to employees;” did not
display good leadership skills; had difficulty obtaining what she needed from other departments;
and that employees took pictures of her and laughed at her.317
However, even accepting all of Mullins’ accusations against Popo as true, Mullins’
affidavit does not establish that McDaniel was “clearly better qualified” than Popo. At best,
Mullins’ testimony would establish that McDaniel was better qualified than Popo in some areas,
but his statements, such as that Popo was “not as skilled, experienced, or temperamentally suited”
to be Route Director, does not show that Popo was so less qualified or McDaniel was so much
more qualified as to establish pretext. Merely being less qualified or less respected than the nonselected candidate is insufficient to rebut Amtrak’s legitimate, nondiscriminatory reasons for
selecting Popo, as McDaniel must establish that he was “clearly” better qualified than Popo to
succeed on his discrimination claim. McDaniel has not done so here, nor could a reasonable jury
find that he was.
More importantly, Mullins was not the decision maker in this position, and McDaniel has
not presented any evidence that Kirk knew about Mullins’ opinion or that Mullins’ opinion was

315

Id. at 48.

316

Id.

317

Id. at 48–49.

50

shared by other Amtrak employees and managers. In Gregory v. Town of Verona, Miss., the Fifth
Circuit held that the testimony of a non-voting member of a hiring committee that he “felt” that
race may have been a factor in a plaintiff’s non-selection is “not competent evidence that race
actually was a motivating factor in the hiring decision,” as “mere opinions, with no supporting
evidence” are insufficient to support a claim of discrimination.318 Likewise, in Bright v. GB
Bioscience Inc., the Fifth Circuit found that producing evidence of a “few supporters who vouch
for [plaintiff’s] performance” was insufficient to preclude summary judgment.319 Here, Mullins’
testimony is even less supportive of McDaniel’s discrimination claim, as Mullins offers no
testimony or evidence regarding the motivating factors of the decision makers.
Finally, McDaniel also avers that Kirk’s interview notes demonstrate that there was
“nothing more impressive” about Popo’s responses that would “justifiability outweigh or
compensate” for Popo’s lack of experience and knowledge for this position.320 Even accepting this
as true, such evidence does not establish that McDaniel was “clearly better qualified.” Moreover,
McDaniel has not presented any evidence that Kirk’s handwritten interview notes contradict Kirk’s
testimony that Popo interviewed well and fit the qualifications of Route Director or that Kirk’s
application and interview was deficient in multiple ways.
Accordingly, considering together all the evidence McDaniel has presented on this motion
for summary judgment, the Court finds that McDaniel has not created a genuine issue of material
fact regarding pretext by meeting the “high bar” of showing that he was “clearly better qualified”

318

574 F. App’x 525, 529 (5th Cir. 2014).

319

305 F. App’x 197, 205 (5th Cir. 2008).

320

Rec. Doc. 52 at 10.

51

than Popo for the position of Route Director.321 Popo had several years of managerial experience
at Amtrak, including as a manager at the Washington, D.C. station for six months, identified past
experiences and accomplishments that matched those qualifications needed in a Route Director,
and had impressed Kirk by obtaining a Master’s Degree, a greater level of education than
McDaniel had, while working full time. Amtrak also pointed to evidence that Kirk knew of
McDaniel’s leadership style and found it lacking, as McDaniel had received negative feedback
from other mangers and did not provide mentoring or guidance to his team.322 Amtrak further
alleges that Kirk believed McDaniel had not learned from past mistakes and had not progressed or
changed.323 While McDaniel appears to have also been qualified for the position, “[t]he fact that
one candidate has ‘better education, work experience, and longer tenure with the company do[es]
not establish that he is clearly better qualified.’”324
Moreover, the evidence pointed to is clear that an applicant’s years of experience was not
the only factor in Kirk’s decision, and that he sought other key qualities that he identified in
Popo.325 The Court notes that Popo clearly “met the minimum job qualifications and had her own
array of qualifications and certifications not considered or accounted for by [McDaniel].”326 In

321

Gregory v. Town of Verona, Miss., 574 F. App’x 525, 529 (5th Cir. 2014).

322

Rec. Doc. 41-1 at 13.

323

Id.

324
Churchill, 539 F. App’x at 321 (citing Price, 283 F.3d at 723). See also Gregory, 574 F. App’x at 529
(finding that it is not sufficient to show that two applicants had “comparable levels” of certification and experience
or that the two applicants were “similarly qualified”).
325

See Rowe v. Jewell, 88 F. Supp. 3d 647, 670 (E.D. La. 2015) (Wilkinson, Mag.) (affirming summary
judgment for defendant when plaintiff had more years of experience and more formal education than successful job
applicant, but successful candidate outperformed plaintiff on the job interview, which defendant cited as the most
important criterion for the job, and the selecting official stated that years of experience and formal education were
“not the best indicators of who will make the best training instructor” and that these qualifications “are ‘of little
consequence’”) (citing Churchill, 539 Fed. App’x at 320).
326

Id.

52

other words, McDaniel’s qualifications are “not so superior to those of the selectee[] to allow an
inference of pretext,”327 and it is clear that Kirk’s “judgments on qualifications are somewhere
within the realm of reason” sufficient to prevent a finding of pretext by a reasonable jury.328 As
the Fifth Circuit has previously stated, employers “are generally free to weigh the qualifications
of prospective employees, so long as they are not motivated by [race, gender and/or age].” 329
Considering all the evidence identified by McDaniel, the Court cannot find that the alleged
disparities between Popo’s and McDaniel’s qualifications are “of 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.”330 Accordingly, the Court finds that McDaniel
has not raised a genuine issue of fact regarding pretext or created an inference of discriminatory
intent by showing he was “clearly better qualified” for the position than Popo such that “no
reasonable employer would have made the same decision.”331
ii. Whether Amtrak’s proffered reasons are false or Amtrak was
otherwise motivated by race, gender, and/or age
Second, McDaniel argues that he has established pretext by showing that Amtrak’s
proffered reasons were not the real reasons for the decision not to select McDaniel for the position
of Route Director.332 To prove that each of Amtrak’s stated reasons are false, McDaniel must point
to “substantial” evidence “to support a reasonable inference that the proffered reason is false; a

327

E.E.O.C. v. Louisiana Office of Cmty. Servs., 47 F.3d 1438, 1445 (5th Cir. 1995).

328

Churchill, 539 F. App’x at 321.

329

Martinez v. Texas Workforce Comm'n-Civil Rights Div., 775 F.3d 685, 688 (5th Cir. 2014).

330

Bright v. GB Bioscience Inc., 305 F. App’x 197, 205 (5th Cir. 2008).

Id. at 687 (“We have held that a plaintiff may establish pretext by demonstrating that he was ‘clearly
better qualified’ such that ‘the qualifications are so widely disparate that no reasonable employer would have made
the same decision.’” (quoting Moss v. BMC Software, Inc., 610 F.3d 917, 923 (5th Cir. 2010)).
331

332

Rec. Doc. 52 at 2.

53

mere shadow of a doubt is insufficient.”333 “An explanation is false or unworthy of credence if it
is not the real reason for the adverse employment action.”334 The Court further notes that a plaintiff
alleging a disparate treatment claim may also survive summary judgment by pointing to evidence
showing that the employer’s reasons, while true, are not the only reasons for its conduct, and
another motivating factor was the plaintiff’s protected characteristics.335 Although McDaniel did
not specifically assert both arguments, the Court will consider both approaches together.
Here, McDaniel argues Amtrak’s proffered reasons are false or unworthy of credence by
pointing to much of the same evidence discussed supra. McDaniel contends that he was more
qualified than Popo and had more experience relevant to the position than Popo had.336 McDaniel
also points to his and Popo’s performance reviews, Allan Paul’s letter of reference, and Bruce
Mullins’ affidavit as evidence that he was more qualified than Popo for the position and that
Amtrak’s reasons are false.337 However, as the Court stated supra, merely having greater
experience at Amtrak or presenting the opinions of other individuals who were not the decision
makers here is insufficient to demonstrate that each of Amtrak’s stated legitimate,
nondiscriminatory reasons are pretext, or to establish that Amtrak was otherwise motivated by
McDaniel’s protected characteristics.

333

E.E.O.C., 47 F.3d at 1443–44.

334

Laxton v. Gap Inc., 333 F.3d 572, 578–79 (5th Cir. 2003) (citing Sandstad v. CB Richard Ellis, Inc., 309
F.3d 893, 899 (5th Cir. 2002)).
Reynolds v. Sovran Acquisitions, L.P., 650 F. App’x 178, 180–81 (5th Cir. 2016) (quoting Alvarado v.
Tex. Rangers, 492 F.3d 605, 611 (5th Cir. 2007)). The Court further notes that McDaniel’s ADEA claim must
satisfy a slightly different burden by showing that, even if the employer’s stated reasons are true, McDaniel was not
hired for this position because of his age. See Reynolds v. Sovran Acquisitions, L.P., 650 F. App’x 178, 181 (5th Cir.
2016) (citing Miller v. Raytheon Co., 716 F.3d 138, 144 (5th Cir. 2013)).
335

336

Rec. Doc. 52 at 21.

337

Id. at 3–11, 21.

54

Additionally, McDaniel argues that Kirk’s assertion that Popo interviewed well and that
McDaniel did not is false, as Kirk’s interview notes show that “there was nothing more impressive
about Ms. Popo’s responses that would justifiably outweigh or compensate for the very evident
lack of experiential preparation and knowledge for this position.”338 Thomas Kirk testified during
his deposition that he would take handwritten notes during the interviews of each applicant, and
did so for McDaniel and Popo.339 Although Kirk’s handwriting is difficult to read, McDaniel had
Kirk read his notes out loud during his deposition.340 However, McDaniel has not identified any
part of McDaniel’s notes that contradict his deposition testimony that Popo interviewed well and
provided concrete examples of relevant experiences that Kirk was looking for, while McDaniel
did not interview well and only provided vague answers to the panel’s questions. Indeed, McDaniel
testified during his deposition that he did not remember any of his answers to any of the interview
questions.341 Rather, Kirk’s interview notes for Popo provide support for the qualities Kirk
identified as reasons he selected her for the position; for example, it states that Popo has a “Master
degree MBA;” that “customer service at Washington as stationed exceeded 200 employees. Very
busy;” “looked at ways to save money and keep employees;” and “cut cost for 100, arrow, 20
miles.”342 Additionally, Kirk testified that he “didn’t write down everything” he heard during the
interview, and offered a more in-depth explanation of his perception of the two interviewees in his
deposition.343 In Rowe v. Jewell, another court of the Eastern District of Louisiana found that

338

Id. at 9–10, 21.

339

See Rec. Doc. 52-2 at 12–13.

340

Id.

341

Rec. Doc. 41-4 at 28.

342

Id. at 25–27.

343

Id. at 31.

55

defendant’s destruction of interview notes was insufficient to establish pretext when he had
extensively explained the interview results through deposition testimony. 344 Similarly, here the
Court finds that the existence of handwritten notes that partially corroborate, and do not directly
contradict, Kirk’s testimony does not support McDaniel’s claim of pretext.
McDaniel also points to a document titled “Candidate Selection Justification” for Route
Director completed by Kirk, which lists the race and gender of each applicant and the birthday of
every applicant except for McDaniel.345 McDaniel alleges that the fact that Amtrak “requires” its
decision-makers to complete the form and that the justification information includes race, gender,
and birthdays is circumstantial evidence that Amtrak “either directly or tacitly encouraged” its
decision makers to consider such factors.346 McDaniel points out that Kirk stated he did not know
why the form identifies candidates based on their race and gender.347 McDaniel also contends that
there is a factual dispute here because Kirk filled out the form whereas another witness testified
that the form is normally completed by a Human Capital representative.348 However, Amtrak has
introduced evidence that the Candidate Justification Form is not required to be filled out and was
not used in making the selection of Popo over McDaniel, and that Amtrak is legally required to
track the races and genders of candidates who interview for positions.349 McDaniel does not
present any contradicting evidence that the Candidate Selection Justification form was used to
make Kirk’s decision or that Amtrak was not legally required to track certain demographic

344

Rowe, 88 F. Supp. 3d at 665.

345

Rec. Doc. 52 at 10.

346

Id.

347

Id.

348

Id.

349

Rec. Doc. 41-2 at 23.

56

information about applicants. Instead, he merely states these facts are “disputed” without any
citations to evidence in the record to support his unsubstantiated allegation that they support a
claim of pretext.350
While McDaniel argues that the fact that Kirk completed the form and not a Human Capital
representative creates a factual dispute, McDaniel does not explain why this would be a genuine
dispute of material fact to preclude summary judgment.351 Even taking McDaniel’s insinuation as
true that Kirk was not supposed to complete this form does not demonstrate why his stated reasons
for hiring Popo amount to pretext. Moreover, while the birthdays for each candidate interviewed
are listed, ranging in ages from 42 years old to 59 years old, it does not state McDaniel’s
birthday.352 Additionally, the Court notes that the Candidate Selection Justification form for the
position of Route Director includes a separate section for “Selection Justification,” which does not
state Popo’s age, race, and/or gender was a consideration.353 Instead, it reiterates the same reasons
for why Popo was selected as stated supra; for example, it states that she demonstrated her overall
experience in leadership, is highly innovative in problem solving, understands Amtrak’s budgetary
process, and has a strong educational background in finance, leadership, organizational behavior,
and general business processes.354
McDaniel points to several more pieces of circumstantial evidence to argue that Amtrak’s
stated reasons for selecting Popo are false. For example, McDaniel avers that Amtrak’s job
description for Route Director stated that a Master’s Degree was the preferred education level, and

350

Rec. Doc. 52-5 at 9–10.

351

Reynolds v. Sovran Acquisitions, L.P., 650 F. App’x 178, 182 (5th Cir. 2016).

352

Rec. Doc. 52-2 at 35.

353

Id.

354

Id.

57

argues that this was “essentially code for a mandate to managers to hire . . . younger employees.”355
However, McDaniel does not point to any evidence in the record or case law supporting this
allegation. Even accepting as true McDaniel’s unsubstantiated representation that it is a “rare
event” for a long-term Amtrak employee to have earned an MBA, this does not establish that
Kirk’s proffered reasons for selecting Popo are pretext for age discrimination.356 As stated supra,
McDaniel also calls into question whether Popo was truthful about receiving an MBA by citing
parts of the record where Popo discusses her Bachelor’s Degree in her deposition; however,
McDaniel does not offer any evidence that Kirk knew about any inconsistencies in her educational
history, or that Popo did not actually obtain an MBA, and McDaniel does not explain how this
rebuts Amtrak’s other explanations for selecting Popo over McDaniel.357 Rather, all McDaniel
offers here are vague, unsubstantiated insinuations that fail to raise a genuine dispute of material
fact regarding pretext or create an inference of discriminatory intent. “Simply disputing the
underlying facts of an employer’s decision is not sufficient to create an issue of pretext.”358
Moreover, the issue here is not whether Kirk may have been correct in his view that Popo displayed
strong work ethic by obtaining an MBA while working full time, but only whether Amtrak did not
select McDaniel for this position because of a discriminatory reason.359

355

Rec. Doc. 52 at 8.

356

Id.

357

Id. at 8–9.

358
LeMaire v. Louisiana Dep't of Transp. & Dev., 480 F.3d 383, 391 (5th Cir. 2007) (finding that the
plaintiff’s denial that she was sleeping on the job when other employers stated she was does not establish pretext, as
the court will not second-guess an employer’s decision to disbelieve the plaintiff’s explanation).

Palacios v. City of Crystal City, Tex., 634 F. App’x 399, 404 (5th Cir. 2015) (“The issue is not whether
the city council's view that Palacios's performance was poor was correct, but only whether it terminated her because
of its dissatisfaction with her performance or because of a discriminatory reason.”).
359

58

Additionally, McDaniel points out that Amtrak changed its retirement plans after the
reorganization, and argues that Amtrak could reduce its costs by intentionally lowering the ages
of its employees through the “purportedly neutral reorganization.”360 However, McDaniel points
to no evidence that Amtrak carried out the 2013 RIF with the goal of reducing benefits costs by
lowering the age of employees. McDaniel has also not provided any evidence that the 2013 RIF
was connected with Amtrak’s plans to change retirement benefits. More fundamentally, McDaniel
has not offered any proof that the changes in the retirement plans demonstrate that Kirk’s stated
nondiscriminatory reasons for hiring Popo instead of McDaniel were false or unworthy of credence
or that Kirk otherwise made his decision based on the ages of the applicants.
McDaniel also points to two articles in Amtrak’s monthly publication, “Amtrak Ink,”
which included positive articles about younger employees.361 For example, in August 2013, the
“Amtrak Ink” included an article titled “Amtrak Recognizes Under-40 Employees,” while the
September 2013 edition had an article on “Younger Influencers: Integral Part of the Amtrak
Multigenerational Team.”362 However, in Bennett v. Total Minatome Corp., the Fifth Circuit
rejected a similarly, albeit stronger, argument.363 There, the defendant had published an article
quoting the chairman of the board of directors as saying “[i]t is our intention to continue
recruitment, but at a more moderate rate, focusing exclusively on young people.” 364 As the Fifth
Circuit explained, this comment “cannot service as evidence of age discrimination because it does

360

Rec. Doc. 52 at 11.

361

Id.

362

Id.

363

138 F.3d 1053, 1061 (5th Cir. 1998).

364

Id.

59

not refer in any way to Bennett’s age or the employment decisions of which he complains.”365
Here, McDaniel’s evidence that Amtrak’s monthly publication included positive articles on
younger employees does not establish pretext or support his claim that his age was the “but for”
cause of McDaniel not selecting him for Route Director. Neither article mentions McDaniel’s age,
and McDaniel has not pointed to any portion of the articles that suggest Kirk may have been
motivated by age in choosing Popo instead.
McDaniel also points out that Amtrak took almost six months to respond to his internal
complaint regarding the alleged discrimination against him;366 however, McDaniel filed his
internal complaint of discrimination on December 23, 2013, after and with regard to his nonselection for the Route Director position.367 McDaniel does not explain how a delay in
investigating a complaint made after the selection process demonstrates that Amtrak’s proffered
reasons are pretext. McDaniel also alleges that Kirk told Amtrak’s Senior EEO Compliance
Officer that, to his knowledge, McDaniel was not meeting expectations and received “low 2s” in
his performance reviews, rather than his assertion that he “consistently received high performance
reviews.”368 McDaniel argues that Kirk had to review and approve McDaniel’s performance
reviews that had higher scores than “low 2s,” and thus this is “clear evidence of a lack of candor
and pretext.”369 However, as stated supra, McDaniel has not presented any evidence that Kirk or
the interview panel considered the applicants’ performance reviews while making their selection,
and Amtrak has presented uncontroverted evidence that the performance reviews were not

365

Id.

366

Rec. Doc. 52 at 13.

367

Id.

368

Id. at 13–14.

369

Id. at 14.

60

considered.370 Again, McDaniel does not explain how Kirk’s “disingenuous statement to the
internal EEO investigation that he doesn’t know how he knows about Plaintiff’s evaluation and
his misrepresentations about their content”371 would rebut each of Kirk’s legitimate
nondiscriminatory reasons to establish pretext, or show that Kirk was motivated by race, gender,
and/or age. To survive summary judgment, McDaniel cannot simply point to any factual disputes
in the record; rather, as the Fifth Circuit has held, McDaniel must point to evidence that raises a
“genuine dispute as to material fact.”372
iii.

Conclusion

Considering all of McDaniel’s evidence presented, the Court finds that McDaniel has failed
to rebut each of Amtrak’s legitimate, nondiscriminatory reasons for selecting Popo for the position
of Route Director under either theory asserted by McDaniel. As conceded by McDaniel, Amtrak
identified at least six reasons for why it selected Popo over McDaniel, including Popo’s several
years of management experience, work ethic, and strong interview performance as well as
McDaniel’s failure to interview well.373 McDaniel argued in response that these reasons were
pretextual because he was clearly better qualified than Popo for the position, or because the
evidence presented cumulatively showed that Amtrak’s stated reasons were false or unworthy of
credence.374
However, for the reasons stated supra, McDaniel’s evidence is not sufficient to raise a
genuine dispute of material fact regarding Amtrak’s stated reasons or that Amtrak was motivated

370

Rec. Doc. 65 at 3; Rec. Doc. 41-2 at 3.

371

Rec. Doc. 52 at 21.

372

Reynolds v. Sovran Acquisitions, L.P., 650 F. App’x 178, 182 (5th Cir. 2016).

373

Rec. Doc. 52 at 20–21.

374

Id. at 2–3.

61

by considerations of race, gender, and/or age. As the Fifth Circuit has repeatedly stated, the “mere
fact that an employer uses subjective criteria is not . . . sufficient evidence of pretext.”375 Moreover,
the Court notes that the decision maker here, Kirk, was part of the same protected race, gender,
and age class as McDaniel. The Fifth Circuit has held that when the decision maker is of the same
protected class as the plaintiff, it is “less likely that unlawful discrimination was the reason for the
discharge.”376 Therefore, the Court finds that McDaniel has failed to produce sufficient evidence
to rebut Amtrak’s legitimate, nondiscriminatory reasons to establish pretext, or point to other
evidence sufficient to support an inference that Amtrak discriminated against McDaniel.377
McDaniel’s subjective belief that race, gender, and/or age was a motivating factor in his
nonselection for the position of Route Director finds insufficient support in the record.378 Amtrak
has produced substantial evidence demonstrating that there is no genuine dispute of material fact
that no discrimination occurred, and, at best, McDaniel “has raised only a weak issue of fact and
therefore cannot survive summary judgment.”379 Accordingly, the Court will grant summary

375

Churchill, 539 F. App’x at 320; Manning, 332 F.3d at 882.

376

Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 1002 (5th Cir. 1996) abrogated on other grounds by
Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000); see Easterling v. Tensas Par. Sch. Bd., No. 140473, 2016 WL 1452435, at *6 (W.D. La. Apr. 13, 2016) (“Finally, the Court notes that the decision maker
(Johnson) and Easterling are both members of the same protected class which further supports the conclusion that
discriminatory animus did not taint Tensas' hiring decisions.”); Agoh v. Hyatt Corp., 992 F. Supp. 2d 722, 744 (S.D.
Tex. 2014) (“When decision makers are in the same protected class as the plaintiff, there is a presumption that
unlawful discrimination is not a factor in the discharge.”).
377
Laxton, 333 F.3d at 579–80 (“Our concern is whether the evidence supports an inference that Gap
intentionally discriminated against Laxton, an inference that can be drawn if its proffered reason was not the real
reason for discharge.”).
378

Churchill, 539 F. App’x at 320–21.

379

Id. (quotation marks and citations omitted). See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S.
133, 148 (2000) (“[A]n employer would be entitled to judgment as a matter of law if the record conclusively
revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak
issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent
evidence that no discrimination had occurred.”).

62

judgment in favor of Amtrak on McDaniel’s claims of race, gender, and/or age discrimination for
the Route Director Position.
b.

Crew Base Manager, New Orleans

McDaniel alleges that he was not selected for the position of Crew Base Manager because
of his race, gender, and/or age380 or in retaliation for filing an EEOC claim in violation of Title VII
and Louisiana law.381 Amtrak asserts that summary judgment on McDaniel’s Crew Base Manager
position claim is warranted because Amtrak has articulated several non-discriminatory reasons for
not selecting McDaniel for this position, and McDaniel has not identified any evidence that this
decision was pretextual and was impermissibly based on race, gender, and/or age.382 Courts in the
Fifth Circuit analyze allegations of both employment discrimination and retaliation under the
McDonnell Douglas burden-shifting framework.383 Accordingly, the Court will address all of
McDaniel’s discrimination claims regarding the Crew Base Manager position simultaneously, and
will address McDaniel’s retaliation claim and additional evidence separately infra.
1.

Prima Facie Case of Race, Gender, and/or Age Discrimination

First, McDaniel must establish a prima facie case of discrimination under the traditional
McDonnell Douglas framework by demonstrating that he: “(1) is a member of a protected group;
(2) was qualified for the position at issue; (3) was discharged or suffered some adverse

In McDaniel’s Opposition memorandum, McDaniel does not allege he was discriminated against
because of age for the Crew Base Manager position. Rec. Doc. 52 at 21. Amtrak interprets this as McDaniel waiving
his age discrimination claim. Rec. Doc. 64 at 5. However, because McDaniel’s complaint alleges age discrimination
generally, and because McDaniel does not explicitly state he waives his age discrimination claim for the Crew Base
Manager position, the Court will proceed as if McDaniel has alleged age discrimination here as well.
380

381

Rec. Doc. 1 at 6.

382

Rec. Doc. 41-1 at 21.

See, e.g., Smith v. Bd. of Supervisors of S. Univ., 656 F. App’x 30 (5th Cir. 2016) (finding that Title VII
retaliation claims and ADEA age discrimination claims are both analyzed under the McDonnell Douglas burdenshifting framework).
383

63

employment action by the employer; and (4) was replaced by someone outside his protected group
or was treated less favorably than other similarly situated employees outside the protected
group.”384 Here, McDaniel alleges that he is a white male who was 60 years old at the time he was
not selected for the position of Crew Base Manager in 2015.385 He presents evidence that he was
qualified for the position, and that Anella Popo, the decision maker for this position, instead
selected Lori Ball-Austin, a 50-year-old African American female.386 It also does not appear that
Amtrak disputes that McDaniel has made out a prima facie case of discrimination.387 Thus, the
Court finds that McDaniel has established a prima facie showing that he was discriminated against
on the basis of race, gender, and/or age in violation of Title VII and Louisiana law.
2.

Legitimate, Nondiscriminatory Reasons for Employment Action

Once the Court finds that McDaniel has made his prima facie showing for discrimination,
the burden shifts to Amtrak to articular a legitimate, nondiscriminatory reason for its employment
action.388 Here, Amtrak identifies several nondiscriminatory reasons for why McDaniel was not
selected for the Crew Base Manager position. Amtrak states that it posted the position of Crew
Base Manager on January 20, 2015, and applicants were interviewed by a panel consisting of
Anella Popo (Route Manager, New Orleans), Paul Carver (Assistant Superintendent, Mechanical
Department), and Janet Burnett (of Amtrak’s Human Capital department), “who reviewed the
candidates’ resumes and asked each candidate an identical set of questions.”389 Amtrak avers that

384

McCoy, 492 F.3d at 556.

385

Rec. Doc. 52 at 3, 14, 21.

386

Id.

387

See Rec. Docs. 41, 64.

388

McCoy, 492 F.3d at 557.

389

Rec. Doc. 41-2 at 14.

64

Anella Popo, a 43-year-old African American female and the decision maker here, selected Lori
Ball-Austin, a 50-year-old African American female, because she was very organized, particularly
with reports, had the skills to develop materials at the last minute, and could manage multiple tasks
at once.390 According to Amtrak, Popo was familiar with McDaniel’s work and found it lacking
“in numerous respects,” as she previously had to make “numerous changes to correct issues with
his work,” and that Popo did not believe had had the organizational skills needed for the position.391
As the Fifth Circuit has made clear, “[b]asing a promotion decision on an assessment of
qualifications will almost always qualify as a legitimate, nondiscriminatory reason” sufficient to
rebut McDaniel’s prima facie case.392 Thus, the Court finds that Amtrak has satisfied its burden of
producing evidence of legitimate, nondiscriminatory reasons for its decision not to select
McDaniel for this position.393
3.

Pretext for Race, Gender, and/or Age Discrimination

Once the Court finds that Amtrak has met its burden of production, McDaniel then bears
the final burden of producing “substantial evidence” to prove that Amtrak’s “proffered reason is
not true but instead is a pretext for the real discriminatory or retaliatory purpose.”394 To defeat

390

Rec. Doc. 41 at 22.

391

Id.

392

Johnson v. Louisiana ex rel. Louisiana Bd. of Sup'rs for Louisiana State Univ. Agr. & Mech. Coll., 79 F.
App’x 684, 689 (5th Cir. 2003); Scales v. Slater, 181 F.3d 703, 712 (5th Cir. 1999).
See Gregory v. Town of Verona, Miss., 574 F. App’x 525, 528 (5th Cir. 2014) (finding that not
displaying the same leadership ability as the selected employee is a legitimate, non-discriminatory reason to prefer
one candidate over another); McCoy, 492 F.3d at 557 (analyzing discrimination claims and retaliation claims under
Title VII under the same framework); Price v. Fed. Exp. Corp., 283 F.3d 715, 720 (5th Cir. 2002) (stating that a
defendant must produce evidence which, “taken as true, would permit the conclusion that there was a
nondiscriminatory reason for the adverse action.” (emphasis in original)) (citing St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 506 (1993)).
393

394

McCoy, 492 F.3d at 557 (citing Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000));
Laxton, 333 F.3d at 578; see also Moss, 610 F.3d at 922 (“The question is whether [the plaintiff] has shown that
there is a genuine issue of material fact as to whether [these] reason[s] [were] pretextual.”)

65

summary judgment, McDaniel must rebut each of the nondiscriminatory reasons articulated by
Amtrak.395 Overall, McDaniel may establish pretext by showing that: (1) he was “clearly better
qualified” than the person selected for the position; (2) Amtrak’s “proffered reason was not the
real reason for its employment decision,” i.e. the explanations are false or “unworthy of credence;”
or (3) that Amtrak was otherwise motivated by considerations of race, gender, and/or age.396
i.

Whether McDaniel was “clearly better qualified” than Ball-Austin

First, McDaniel asserts that he has produced sufficient evidence demonstrating that he was
“clearly better qualified” for the position of Crew Base Manager to defeat summary judgment.397
As stated supra, “A fact finder can infer pretext if it finds that the employee was ‘clearly better
qualified’ (as opposed to merely better or as qualified) than the employees who are selected.”398
However, courts will not find pretext when the employer’s “judgments on qualifications are
somewhere within the realm of reason.”399 Moreover, “[t]he fact that one candidate has ‘better
education, work experience, and longer tenure with the company do[es] not establish that he is
clearly better qualified.’”400 “[T]he bar is set high for this kind of evidence because differences in

395

Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 412 (5th Cir. 2007); McCoy, 492 F.3d

at 557.
396

Gonzalez v. City of San Antonio, No. 12-50472, 2013 WL 1149996, at *3 (5th Cir. Mar. 12, 2013);
Burrell, 482 F.3d at 412 (“ Burrell has two methods available to him to try to prove that Dr. Pepper's proffered
reason for failing to promote him was a pretext for racial discrimination: (1) Burrell could show that Dr. Pepper's
proffered explanation is false or ‘unworthy of credence’; or (2) Burrell could try to prove that he is ‘clearly better
qualified’ than the person selected for the position.”); McCoy, 492 F.3d at 557. See Rec. Doc. 52 at 19 (McDaniel
stating that he can establish pretext through both methods of proof).
397
Rec. Doc. 52 at 19 (“If Plaintiff demonstrates he is clearly better qualified, as we believe he will, then
that in and of itself is enough to prove pretext.”); id. at 21.
398

Moss, 610 F.3d at 922–23 (quoting EEOC v. La. Office of Cmty. Servs., 47 F.3d 1438, 1444 (5th Cir.

399

Churchill, 539 F. App’x at 321.

400

Id. (citing Price, 283 F.3d at 723).

1995)).

66

qualifications are generally not probative evidence of discrimination unless those disparities are
‘of such weight and significance that no reasonable person . . . could have chosen the candidate
selected over the plaintiff for the job in question.’”401
According to its original job posting, the Crew Base Manager position is responsible for
the field management of on-board service personal and provides administrative support for road
operations.402 The position is also responsible for responding to employees’ needs and issues, but
had no supervisory responsibilities.403 The position requires three to five years of work experience,
particularly in customer service performing audits, as well as proven success in developing and
leading teams and proficiency in Microsoft Office.404 Applicants also were required to have
excellent oral and written communication skills and a Bachelor’s Degree.405
McDaniel argues he was clearly more qualified for this position than Ball-Austin, as she
had no prior experience managing a crew base and McDaniel had held this position for four years
in North Carolina “with great success.”406 McDaniel also avers that he supervised the position of
Crew Base Manager for seven years as Assistant Supervisor.407 Moreover, McDaniel states that he
supervised Ball-Austin when she was Onboard Services Manager and he was Assistant
Superintendent, during which he argues that “she barely met [her] goals.”408 McDaniel also points

401

Gregory, 574 F. App’x at 529 (quoting Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 357 (5th

Cir.2001)).
402

Rec. Doc. 41-23 at 2.

403

Id.

404

Id.

405

Id.

406

Rec. Doc. 52 at 21.

407

Id. at 15.

408

Id. at 21.

67

out that Popo stated in her deposition she did not have any complaints about McDaniel’s
performance of his duties.409
Here, the evidence produced by McDaniel does not support his argument that he was
clearly better qualified than Ball-Austin such that no reasonable person would have selected BallAustin over McDaniel.410 Ball-Austin was the On Board Services Manager, New Orleans for eight
years, and had worked in various positions at Amtrak for 28 years at the time of her selection.411
Ball-Austin’s resume, which was reviewed by the selection panel, 412 states that her Amtrak
experience had allowed her to interact with customers daily, understand what Amtrak employees
face every day, develop training programs, lead and motivate employees, and obtain clerical
knowledge.413 Considering the requirements for the Crew Base Manager position, it is clear that
Ball-Austin was qualified for the position. Moreover, Popo stated she chose Ball-Austin because
of her organization skills, ability to develop materials at the last minute, and ability to multi-task.414
By contrast, Popo testified in her deposition that she did not believe McDaniel was organized.415
Popo stated that she had to “redo everything,” such as the audit system, crew base, and manager
schedule, after McDaniel left the position of Assistant Superintendent.416 While McDaniel alleges
that Ball-Austin “barley met goals” while he worked under him, McDaniel was not the decision

409

Rec. Doc. 52-3 at 13.

410

Bright v. GB Bioscience Inc., 305 F. App’x 197, 205 (5th Cir. 2008).

411

Rec. Doc. 41-23 at 4.

412

Rec. Doc. 41-2 at 14.

413

Rec. Doc. 41-23 at 4.

414

Rec. Doc. 41-2 at 15.

415

Rec. Doc. 41-10 at 24.

416

Id.

68

maker for this position and has presented no evidence that Popo took his opinion of the other
applicants into consideration.417
McDaniel has not presented sufficient evidence to raise a genuine issue of fact regarding
whether he was clearly better qualified for this position in light of Popo’s desired qualities in a
candidate, Ball-Austin’s extensive relevant experience at Amtrak, and Popo’s stated complaints
with McDaniel’s work as Assistant Superintendent. As stated supra, “[t]he fact that one candidate
has ‘better education, work experience, and longer tenure with the company do[es] not establish
that he is clearly better qualified.’”418 Moreover, the evidence is clear that an applicant’s years of
experience was not the only factor in Popo’s decision, and that she sought other key qualities that
she identified in Ball-Austin.419 The Court notes that Ball-Austin clearly “met the minimum job
qualifications and had her own array of qualifications and certifications not considered or
accounted for by [McDaniel].”420 In other words, McDaniel’s qualifications are “not so superior
to those of the selectee[] to allow an inference of pretext,”421 and it is clear that Popo’s “judgments
on qualifications are somewhere within the realm of reason” sufficient to prevent a finding of

Rec. Doc. 41-2 at 14 (stating that the interview plane considered “candidates’ resumes and asked each
candidate an identical set of questions.”).
417

Churchill, 539 F. App’x at 321 (citing Price, 283 F.3d at 723). See also Gregory, 574 F. App’x at 529
(finding that it is not sufficient to show that two applicants had “comparable levels” of certification and experience
or that the two applicants were “similarly qualified”).
418

419

See Rowe, 88 F. Supp. 3d at 670 (affirming summary judgment for defendant when plaintiff had more
years of experience and more formal education than successful job applicant, but successful candidate outperformed
plaintiff on the job interview, which defendant cited as the most important criterion for the job, and the selecting
official stated that years of experience and formal education were “not the best indicators of who will make the best
training instructor” and that these qualifications “are ‘of little consequence.’”) ((citing Churchill, 539 Fed. App’x at
320).
420

Id.

421

E.E.O.C, 47 F.3d at 1445.

69

pretext.422 As the Fifth Circuit has previously stated, employer’s “are generally free to weigh the
qualifications of prospective employees, so long as they are not motivated by [race, gender and/or
age].” Considering all the evidence presented by McDaniel, the Court cannot find that the alleged
disparities between Ball-Austin’s and McDaniel’s qualifications are “of 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.”423 Accordingly, the Court finds
that McDaniel has failed to present sufficient evidence that he was “clearly better qualified” for
the position of Crew Base Manager. 424
ii.

Whether Amtrak’s proffered reasons are false or Amtrak was
otherwise motivated by race, gender, and/or age

Second, McDaniel argues that he has established pretext by showing that Amtrak’s
proffered reasons were not the real reasons for the decision not to select McDaniel for the position
of Crew Base Manager.425 To prove that each of Amtrak’s stated reasons are false, McDaniel must
point to “substantial” evidence “to support a reasonable inference that the proffered reason is false;
a mere shadow of a doubt is insufficient.”426 “An explanation is false or unworthy of credence if
it is not the real reason for the adverse employment action.”427 Additionally, as stated supra, a
plaintiff alleging a disparate treatment claim may also survive summary judgment by pointing to
evidence showing that the employer’s reasons, while true, are not the only reasons for its conduct,

422

Churchill, 539 F. App’x at 321.

423

Bright v. GB Bioscience Inc., 305 F. App’x 197, 205 (5th Cir. 2008).

424

Gregory, 574 F. App’x at 529.

425

Rec. Doc. 52 at 2.

426

E.E.O.C, 47 F.3d at 1443–44.

427

Laxton, 333 F.3d at 578–79 (citing Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir.

2002)).

70

and another motivating factor was the plaintiff’s protected characteristics.428 Although McDaniel
did not specifically assert both arguments, the Court will again consider both approaches together.
Here, McDaniel again does not offer sufficient evidence to establish that Amtrak’s
proffered reasons are false or unworthy of credence or that Amtrak was otherwise motivated by
race, gender, and/or age. McDaniel contends that he is more qualified than Ball-Austin, and offers
little to no additional evidence to support his assertion that Amtrak’s selection decision was based
on race, gender, and/or age.429 McDaniel does point out that at one point in her deposition, Popo
testified that she did not have any issues or complaints with McDaniel’s performance, which
appears to contradict her later testimony in the same deposition that one of the reasons she did not
select McDaniel was because she found his work lacking “in numerous respects” and that she
previously had to make “numerous changes to correct issues with his work.”430
However, even assuming Popo’s conflicting testimony was sufficient to rebut that stated
reason, McDaniel must rebut each of Amtrak’s legitimate, non-discriminatory reasons to establish
pretext.431 Here, McDaniel does not offer sufficient evidence rebutting Popo’s other stated reasons
that she selected Ball-Austin because she was very organized, particularly with reports, had the
skills to develop materials at the last minute, and could manage multiple tasks at once.432
Moreover, Popo averred that she did not believe McDaniel had the organizational skills needed
for the position, and provided several examples during her deposition of areas she had to redo after

Reynolds v. Sovran Acquisitions, L.P., 650 F. App’x 178, 180–81 (5th Cir. 2016) (quoting Alvarado v.
Tex. Rangers, 492 F.3d 605, 611 (5th Cir. 2007)).
428

429

See Rec. Doc. 52 at 21.

430

Id.

431

Burrell, 482 F.3d at 412; McCoy, 492 F.3d at 557.

432

Rec. Doc. 41 at 22.

71

McDaniel left the Assistant Superintendent position.433 While McDaniel does allege that his
discrimination claim is supported by the fact that there was a “pattern of selecting African
Americans for positions [he] applied for,”434 such evidence is insufficient to survive summary
judgment. As the Fifth Circuit held in Sessions v. Rusk State Hosp., pointing to statistical evidence
of a pattern of selectees outside the protected race group may buttress a prima facie case, “but it
does not demonstrate that the reason advanced for failure to promote him lacked either substance
or credibility.”435 Like in Sessions, where the plaintiff argued that African Americans constituted
17.3% of employees but only 2.8% of management, McDaniel’s argument that some of the nine
positions he applied for were filled by African Americans is insufficient to establish pretext.436
Even considering the additional evidence presented by McDaniel in support of his Route Director
claim analyzed supra, such as the “Amtrak Ink” articles and changes in Amtrak’s retirement plans,
McDaniel still has not proven that Amtrak’s stated reasons here are pretextual or that Amtrak was
otherwise motivated by race, gender, and/or age. Accordingly, the Court finds that McDaniel has
failed to point to sufficient evidence to establish that Amtrak’s stated reasons for not selecting him
were false or unworthy of credence or that Amtrak was otherwise motivated by McDaniel’s
protected characteristics.
iii.

Conclusion

Considering all of McDaniel’s evidence presented, the Court finds that McDaniel has failed
to rebut each of Amtrak’s legitimate, nondiscriminatory reasons for selecting Ball-Austin, an 50-

433

Id.; Rec. Doc. 41-10 at 24.

434

Rec. Doc. 41-4 at 38.

435

648 F.2d 1066, 1071 (5th Cir. 1981).

436

Id. See also Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 882 (5th Cir. 2003) (holding that
evidence of a pattern of failure to promote African American males to managerial or supervisory positions is not
sufficient to demonstrate pretext).

72

year-old African American woman, for the position of Crew Base Manager under either theory
asserted by McDaniel. Amtrak has articulated several legitimate, nondiscriminatory reasons for
selecting Ball-Austin over McDaniel, and McDaniel’s evidence is not sufficient to raise a genuine
dispute of material fact regarding Amtrak’s stated reasons or support his allegation that Amtrak
was motivated by race, gender, and/or age. As the Fifth Circuit has repeatedly stated, the “mere
fact that an employer uses subjective criteria is not . . . sufficient evidence of pretext.”437
Therefore, the Court finds that McDaniel has failed to produce sufficient evidence to rebut
Amtrak’s legitimate, nondiscriminatory reasons to establish pretext, or point to other evidence
sufficient to support an inference that Amtrak discriminated against McDaniel. 438 McDaniel’s
subjective belief that race, gender, and/or age was a motivating factor in his non-selection for the
position of Route Director finds insufficient support in the record.439 The Court is not willing to
tie the hands of employers by imposing a seniority requirement on an employer’s hiring choices,
especially where, as here, an employer has identified multiple other relevant qualifications for
choosing a candidate over the plaintiff.440 Amtrak has produced substantial evidence that no
discrimination occurred, and, at best, McDaniel “has raised only a weak issue of fact and therefore

437
Churchill v. Texas Dep't of Criminal Justice, 539 F. App’x 315, 320 (5th Cir. 2013); Manning v.
Chevron Chem. Co., 332 F.3d 874, 882 (5th Cir. 2003).

Laxton v. Gap Inc., 333 F.3d 572, 579–80 (5th Cir. 2003) (“Our concern is whether the evidence
supports an inference that Gap intentionally discriminated against Laxton, an inference that can be drawn if its
proffered reason was not the real reason for discharge.”).
438

439

Churchill, 539 F. App’x at 320–21.

The Fifth Circuit has “repeatedly and emphatically stated that [anti-discrimination] laws ‘are not
vehicles for judicial second-guessing of business decisions.’” Mato v. Baldauf, 267 F.3d 444, 452 (5th Cir. 2001)
(abrogated on other grounds by Staub v. Proctor Hosp., 562 U.S. 411 (2011)) (quoting Deines v. Tex. Dep't of Prot.
& Regulatory Serv., 164 F.3d 277, 281 (5th Cir. 1999)). See also Bryant v. Compass Grp. USA Inc., 413 F.3d 471,
478 (5th Cir. 2005) (employment discrimination laws not intended to permit judicial second-guessing of business
decisions, nor to transform courts into personnel managers); Heggemeier v. Caldwell Cty. Comm'rs Court, No. 1:13CV-746-LY, 2015 WL 1737861, at *8 (W.D. Tex. Apr. 15, 2015), subsequently aff'd sub nom. Heggemeier v.
Caldwell Cty., Texas, 826 F.3d 861 (5th Cir. 2016).
440

73

cannot survive summary judgment.”441 Accordingly, the Court will grant summary judgment in
favor of Amtrak on McDaniel’s claims of race, gender, and/or age discrimination for the Crew
Base Manager position.
c.

Onboard Service Manager, New Orleans

McDaniel alleges that he was not selected for the position of Onboard Service Manager
because of his race, gender, and/or age or in retaliation for filing an EEOC claim in violation of
Title VII and Louisiana law.442 Amtrak asserts that McDaniel stated in his deposition that he is not
asserting a gender discrimination claim when the selected individual was also male. 443 McDaniel
did not contest this point in his opposition memorandum, and instead only says that he believes
race or retaliation may have been a factor in his nonselection for the Onboard Service Manager
position.444 However, Amtrak failed to attach the relevant pages of McDaniel’s deposition that
allegedly includes such a stipulation to its Motion for Summary Judgment.445 Thus, because
McDaniel’s complaint alleges discrimination on the basis of race, gender, and/or age for all
positions, the Court will proceed with its analysis for all three claims, and will address McDaniel’s
retaliation claim separately infra. Amtrak asserts that summary judgment on McDaniel’s Onboard
Service Manager position claim is warranted because Amtrak has articulated several nondiscriminatory reasons for not selecting McDaniel for this position, and McDaniel has not

441
Id. (quotation marks and citations omitted). See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S.
133, 148 (2000) (“[A]n employer would be entitled to judgment as a matter of law if the record conclusively
revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak
issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent
evidence that no discrimination had occurred.”).
442

Rec. Doc. 1 at 6.

443

Rec. Doc. 41-1 at 12.

444

Rec. Doc. 52 at 22.

445

See Rec. Doc. 41-4.

74

identified any evidence that this decision was pretextual or was impermissibly based on race,
gender, and/or age.446
1.

Prima Facie Case of Race, Gender, and/or Age Discrimination

First, McDaniel must establish a prima facie case of discrimination under the traditional
McDonnell Douglas framework by demonstrating that he: “(1) is a member of a protected group;
(2) was qualified for the position at issue; (3) was discharged or suffered some adverse
employment action by the employer; and (4) was replaced by someone outside his protected group
or was treated less favorably than other similarly situated employees outside the protected
group.”447 Here, McDaniel, alleges that he is a white male who was 60 years old at the time he was
not selected for the position of Onboard Service Manager in 2015.448 He presents evidence that he
was qualified for the position, and that Anella Popo, the decision maker for this position, instead
selected Horatio Ames, a 56-year-old African American male.449
Amtrak argues that McDaniel cannot state a prima facie case of age discrimination because
Horatio Ames was not significantly younger than McDaniel, and assumes that McDaniel does not
assert a gender discrimination claim here.450 However, Title VII allows a plaintiff to state a prima
facie case by showing he was replaced by someone outside his protected group or was treated less
favorably than other similarly situated employees outside the protected group. 451 Here, while
McDaniel does not directly address this argument, he does arguably aver that Amtrak treated older,

446

Rec. Doc. 41-1 at 21.

447

McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007).

448

Rec. Doc. 52 at 15, 22.

449

Id.

450

Rec. Doc. 41-1 at 24.

451

McCoy, 492 F.3d at 556.

75

white, male employees less favorably despite his alleged greater level of experience.452 Thus, the
Court finds that McDaniel has established a prima facie showing that he was discriminated against
on the basis of race, gender, and/or age in violation of Title VII and Louisiana law.
2.

Legitimate, Nondiscriminatory Reasons for Employment Action

Once the Court finds that McDaniel has made his prima facie showing for discrimination
and retaliation, the burden shifts to Amtrak to articulate a legitimate, nondiscriminatory reason for
its employment action.453 Amtrak only bears the burden of production, not persuasion. 454 Here,
Amtrak identifies several nondiscriminatory reasons for why McDaniel was not selected for the
Onboard Service Manager position. Amtrak avers that Anella Popo, a 43-year-old African
American female and the decision maker here, selected Horatio Ames, a 56-year-old African
American male, because he had experience in customer services, management, and train and
engine equipment.455 Amtrak also asserts that Popo selected Ames because of his leadership
qualities, mentorship abilities, enthusiasm, and motivation.456 Additionally, Popo averred that she
believed Ames gave good answers with specific examples during his interview, that she respected
Ames’ military service, saw how he motivated employees and performed his duties, and
appreciated how he had a good rapport with employees working under him.457 Popo states that she

452

Rec. Doc. 1 at 6–7; Rec. Doc. 52 at 11.

453

McCoy, 492 F.3d at 557.

454

Id.

455

Rec. Doc. 41-1 at 24.

456

Id.

457

Id.

76

believed Ames could learn the onboard experience in this position that he lacked, and that he had
demonstrated the leadership qualities and strength for which she was looking for this position.458
As the Fifth Circuit has made clear, “[b]asing a promotion decision on an assessment of
qualifications will almost always qualify as a legitimate, nondiscriminatory reason” sufficient to
satisfy Amtrak’s burden here.459 Moreover, the Fifth Circuit has held that considerations of an
applicant’s military and leadership experience can also constitute sufficient nondiscriminatory
reasons for selecting one candidate over another.460 Thus, the Court finds that Amtrak has satisfied
its burden of producing evidence of legitimate, nondiscriminatory reasons for its decision not to
select McDaniel for this position.461
3.

Pretext for Discrimination

Once the Court finds that Amtrak has met its burden of production, McDaniel then bears
the final burden of producing “substantial evidence” to prove that the Amtrak’s “proffered reason
is not true but instead is a pretext for the real discriminatory or retaliatory purpose.” 462 To defeat
summary judgment, McDaniel must rebut each of the nondiscriminatory reasons articulated by

458

Id.

459

Johnson v. Louisiana ex rel. Louisiana Bd. of Sup'rs for Louisiana State Univ. Agr. & Mech. Coll., 79 F.
App’x 684, 689 (5th Cir. 2003); Scales v. Slater, 181 F.3d 703, 712 (5th Cir. 1999).
Price v. Fed. Exp. Corp., 283 F.3d 715, 723 (5th Cir. 2002) (“While Price clearly met the qualifications
for the Zone Manager position as posted, due to the specific needs of FedEx in combating the problems in Atlanta,
Paone's skill set, including his significant military, security, and leadership experience, could have reasonably
outweighed Price's better education and longer tenure with the company.”).
460

See Gregory v. Town of Verona, Miss., 574 F. App’x 525, 528 (5th Cir. 2014) (finding that not
displaying the same leadership ability as the selected employee is a legitimate, non-discriminatory reason to prefer
one candidate over another); McCoy, 492 F.3d at 557 (analyzing discrimination claims and retaliation claims under
Title VII under the same framework); Price, 283 F.3d at 720 (stating that a plaintiff must produce evidence which,
“taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action.”
(emphasis in original)) (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993)).
461

462

McCoy, 492 F.3d at 557 (citing Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000));
Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003); see also Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th
Cir. 2010) (“The question is whether [the plaintiff] has shown that there is a genuine issue of material fact as to
whether [these] reason[s] [were] pretextual.”)

77

Amtrak.463 Overall, McDaniel may establish pretext by showing that: (1) he was “clearly better
qualified” than the person selected for the position; (2) Amtrak’s “proffered reason was not the
real reason for its employment decision,” i.e. the explanations are false or “unworthy of credence;”
or (3) that Amtrak was otherwise motivated by considerations of race, gender, and/or age.464
i.

Whether McDaniel was “clearly better qualified” than Ames

First, McDaniel asserts that he has produced sufficient evidence demonstrating that he was
“clearly better qualified” for the position of Onboard Service Manager to defeat summary
judgment.465 As stated supra, “[a] fact finder can infer pretext if it finds that the employee was
‘clearly better qualified’ (as opposed to merely better or as qualified) than the employees who are
selected.”466 However, “[t]he fact that one candidate has ‘better education, work experience, and
longer tenure with the company do[es] not establish that he is clearly better qualified.’”467 “Unless
the qualifications are so widely disparate that no reasonable employer would have made the same
decision, any differences in qualifications are generally not probative evidence of
discrimination.”468

463

Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 412 (5th Cir. 2007); McCoy, 492 F.3d

at 557.
464

Gonzalez v. City of San Antonio, No. 12-50472, 2013 WL 1149996, at *3 (5th Cir. Mar. 12, 2013);
Burrell, 482 F.3d at 412 (“ Burrell has two methods available to him to try to prove that Dr. Pepper's proffered
reason for failing to promote him was a pretext for racial discrimination: (1) Burrell could show that Dr. Pepper's
proffered explanation is false or ‘unworthy of credence’; or (2) Burrell could try to prove that he is ‘clearly better
qualified’ than the person selected for the position.”); McCoy, 492 F.3d at 557. See Rec. Doc. 52 at 19 (McDaniel
stating that he can establish pretext through both methods of proof).
Rec. Doc. 52 at 19 (“If Plaintiff demonstrates he is clearly better qualified, as we believe he will, then
that in and of itself is enough to prove pretext.”); id. at 21.
465

466

Moss, 610 F.3d at 922–23 (quoting EEOC v. La. Office of Cmty. Servs., 47 F.3d 1438, 1444 (5th Cir.

1995)).
Churchill v. Tex. Dep't of Criminal Justice, 539 F. App’x 315, 321 (5th Cir. 2013) (citing Price, 283
F.3d at 723).
467

468

Moss, 610 F.3d at 923 (quotation marks and citations omitted).

78

According to its original job posting, the Onboard Service Manager position is responsible
for overseeing and directing on-board service operations and achieving optimum customer and
passenger satisfaction.469 The Onboard Service Manager is tasked with, among other
responsibilities, ensuring passengers are safe and satisfied, leading and developing talent in
employees, and serving as a liaison with other departments.470 The posting states that candidates
are required to have three to five years of work experience, and states that work experience in this
position includes contributing to a safe and secure work environment, demonstrating leadership in
particular programs and initiatives, working with crew base, and dealing with customer
complaints.471 The position did not have supervisory responsibilities, does not state that previous
onboard experience is required, and notes that applicants needed excellent oral and written
communication skills.472
McDaniel argues he was clearly more qualified for this position than Ames, as Ames had
no prior onboard experience and had only worked for Amtrak for three years. 473 McDaniel also
points out that he was not included on the initial interview list until he called Human Capital and
complained.474 McDaniel notes that Popo stated in her deposition that this was an error at Human
Capital and that McDaniel did receive an interview after he raised the issue, but McDaniel argues
that this constitutes a disputed material fact.475

469

Rec. Doc. 41-24 at 2.

470

Id.

471

Id.

472

Id.

473

Rec. Doc. 52 at 22.

474

Id.

475

Id.

79

Here, the evidence produced by McDaniel is insufficient to support his argument that he
was clearly better qualified than Ames for this position such that “no reasonable person, in the
exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the
job in question.”476 While it is undisputed that McDaniel had worked for Amtrak longer and
previously had greater responsibilities and experiences at Amtrak, Amtrak has identified multiple
other qualifications of Ames that Popo noted when she selected him for the Onboard Service
Manager position. Ames had experience in customer services, management, and train and engine
equipment.477 Popo also stated that Ames was qualified because of his leadership qualities,
mentorship abilities, enthusiasm, and motivation.478 Additionally, Popo averred that she believed
Ames gave good answers with specific examples during his interview, and that she respected
Ames’ military service, how he motivated employees and performed his duties, and had a good
rapport with employees working under him.479 Popo states that she believed Ames could easily
acquire onboard experience in this position, and that he had demonstrated the leadership qualities
and strength for which she was looking for this position.480 Considering the requirements for the
Onboard Service Manager position, it is clear that Ames was qualified for the position.
Accordingly, McDaniel has not presented sufficient evidence that he was clearly better
qualified for this position to create a genuine dispute of material fact regarding pretext or an
inference of discriminatory intent. As stated supra, “[t]he fact that one candidate has ‘better

476

Julian v. City of Houston, No. 4:12-CV-2973, 2014 WL 3795580, at *11 (S.D. Tex. July 31, 2014),
aff'd, 618 F. App'x 211 (5th Cir. 2015) (quoting Deines v. Tex. Dep't of Protective & Regulatory Servs., 164 F.3d
277, 280–81 (5th Cir. 1999)).
477

Rec. Doc. 41-1 at 24.

478

Id.

479

Id.

480

Id.

80

education, work experience, and longer tenure with the company do[es] not establish that he is
clearly better qualified.’”481 Moreover, the evidence is clear that an applicant’s years of experience
was not the only factor in Popo’s decision, and that she identified other key qualities in Ames that
that McDaniel did not have.482 The Court notes that Ames clearly “met the minimum job
qualifications and had [his] own array of qualifications and certifications not considered or
accounted for by [McDaniel].”483 In other words, McDaniel’s qualifications are “not so superior
to those of the selectee[] to allow an inference of pretext,”484 and it is clear that Popo’s “judgments
on qualifications are somewhere within the realm of reason” sufficient to prevent a finding of
pretext.485 As the Fifth Circuit has previously stated, employers “are generally free to weigh the
qualifications of prospective employees, so long as they are not motivated by [race, gender and/or
age].”486 Considering all the evidence presented by McDaniel, the Court cannot find that the
alleged disparities between Ames’ and McDaniel’s qualifications are “of 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.”487 As stated supra, the Court is

Churchill, 539 F. App’x at 321 (citing Price, 283 F.3d at 723). See also Gregory, 574 F. App’x at 529
(finding that it is not sufficient to show that two applicants had “comparable levels” of certification and experience
or that the two applicants were “similarly qualified”).
481

482

See Rowe v. Jewell, 88 F. Supp. 3d 647, 670 (E.D. La. 2015) (Wilkinson, Mag.) (affirming summary
judgment for defendant when plaintiff had more years of experience and more formal education than successful job
applicant, but successful candidate outperformed plaintiff on the job interview, which defendant cited as the most
important criterion for the job, and the selecting official stated that years of experience and formal education were
“not the best indicators of who will make the best training instructor” and that these qualifications “are ‘of little
consequence.’”) (citing Churchill, 539 Fed. App’x at 320).
483

Id.

484

E.E.O.C. v. Louisiana Office of Cmty. Servs., 47 F.3d 1438, 1445 (5th Cir. 1995).

485

Churchill, 539 F. App’x at 321.

486

Martinez v. Texas Workforce Comm'n-Civil Rights Div., 775 F.3d 685, 688 (5th Cir. 2014).

487

Bright v. GB Bioscience Inc., 305 F. App’x 197, 205 (5th Cir. 2008).

81

not willing to tie the hands of employers by imposing a seniority requirement on an employer’s
hiring choices, especially where, as here, an employer has identified multiple other relevant
qualifications for choosing a candidate over the plaintiff.488 Accordingly, the Court finds that
McDaniel has failed to present sufficient evidence that he was “clearly better qualified” for the
position of Onboard Service Manager to raise a genuine issue of fact regarding pretext.489
ii.

Whether Amtrak’s proffered reasons are false or Amtrak was
otherwise motivated by race, gender, and/or age

Second, McDaniel argues that he has established pretext by showing that Amtrak’s
proffered reasons were not the real reasons for the decision not to select McDaniel for the position
of Onboard Service Manager.490 To prove that each of Amtrak’s stated reasons are false, McDaniel
must point to “substantial” evidence “to support a reasonable inference that the proffered reason
is false; a mere shadow of a doubt is insufficient.”491 “An explanation is false or unworthy of
credence if it is not the real reason for the adverse employment action.”492 Additionally, as stated
supra, a plaintiff alleging a disparate treatment claim may also survive summary judgment by
pointing to evidence showing that the employer’s reasons, while true, are not the only reasons for

The Fifth Circuit has “repeatedly and emphatically stated that [anti-discrimination] laws ‘are not
vehicles for judicial second-guessing of business decisions.’” Mato v. Baldauf, 267 F.3d 444, 452 (5th Cir. 2001)
(abrogated on other grounds by Staub v. Proctor Hosp., 562 U.S. 411 (2011)) (quoting Deines v. Tex. Dep't of Prot.
& Regulatory Serv., 164 F.3d 277, 281 (5th Cir. 1999)). See also Bryant v. Compass Grp. USA Inc., 413 F.3d 471,
478 (5th Cir. 2005) (employment discrimination laws not intended to permit judicial second-guessing of business
decisions, nor to transform courts into personnel managers); Heggemeier v. Caldwell Cty. Comm'rs Court, No. 1:13CV-746-LY, 2015 WL 1737861, at *8 (W.D. Tex. Apr. 15, 2015), subsequently aff'd sub nom. Heggemeier v.
Caldwell Cty., Texas, 826 F.3d 861 (5th Cir. 2016).
488

489

Gregory v. Town of Verona, Miss., 574 F. App’x 525, 529 (5th Cir. 2014).

490

Rec. Doc. 52 at 2.

491

E.E.O.C., 47 F.3d at 1443–44.

492
Laxton v. Gap Inc., 333 F.3d 572, 578–79 (5th Cir. 2003) (citing Sandstad v. CB Richard Ellis, Inc., 309
F.3d 893, 899 (5th Cir. 2002)).

82

its conduct, and another motivating factor was the plaintiff’s protected characteristics. 493 Again,
the Court notes that although McDaniel did not specifically assert both arguments, the Court will
consider both approaches.
Here, McDaniel again does not offer sufficient evidence to establish that Amtrak’s
proffered reasons are false or unworthy of credence or that Amtrak was otherwise motivated by
race, gender, and/or age. McDaniel contends that he is more qualified than Ames, and offers little
additional evidence to support his assertion that Amtrak’s selection decision was based on race,
gender, and/or age.494 McDaniel does assert that he was initially not included on the interview list
and did not receive an interview until he called Human Capital and complained.495 However, Popo
testified in her deposition that she did select McDaniel for an interview and that he was “always
on the list,” but that the Human Capital representative in Miami failed to send McDaniel an
interview.496 McDaniel does not present any evidence in contradiction to this explanation, or offer
any evidence that supports his insinuation that he was left off the interview list because of his race,
gender, and/or age. Additionally, McDaniel does not explain how being left off the interview list
rebuts any of Amtrak’s legitimate, non-discriminatory reasons for selecting Ames instead of
McDaniel.497 Moreover, the Court notes that after McDaniel raised the issue, he subsequently
received an interview.

493
Reynolds v. Sovran Acquisitions, L.P., 650 F. App’x 178, 180–81 (5th Cir. 2016) (quoting Alvarado v.
Tex. Rangers, 492 F.3d 605, 611 (5th Cir. 2007)).
494

See Rec. Doc. 52 at 22.

495

Id.

496

Rec. Doc. 41-10 at 17.

See Bright v. GB Bioscience Inc., 305 F. App’x 197, 203–04 (5th Cir. 2008) (noting that the plaintiff’s
testimony that he submitted three resumes did not controvert the defendant’s evidence that they did not receive his
resume, and that the plaintiff’s “other evidence [has] not shown that Mullis, who screened the resumes during this
period, ever received it, let alone rejected it.”).
497

83

Even considering the additional evidence presented by McDaniel in support of his other
claims, such as the alleged pattern of selecting African Americans or Amtrak’s alleged preference
for younger employees, it is clear that McDaniel has failed to rebut each of Amtrak’s legitimate,
non-discriminatory reasons to establish pretext or otherwise show that Amtrak was motivated by
McDaniel’s protected characteristics.498 As discussed supra, merely being more experienced than
the selected candidate does not establish pretext, and Amtrak has offered multiple other
qualifications Ames possessed that Popo noted when she selected him for the Onboard Service
Manager position.499 Accordingly, the Court finds that McDaniel has failed to point to sufficient
evidence to establish that Amtrak’s stated reasons for not selecting him were false or unworthy of
credence or that Amtrak was motivated by considerations of race, gender, and/or age.
iii.

Conclusion

Considering all of McDaniel’s evidence presented, the Court finds that McDaniel has failed
to rebut each of Amtrak’s legitimate, nondiscriminatory reasons for selecting Ames, an African
American in a similar age group and the same gender as McDaniel, for the position of Onboard
Service Manager under either theory asserted by McDaniel. Amtrak has articulated several
legitimate, nondiscriminatory reasons for selecting Ames over McDaniel, and McDaniel’s
evidence is not sufficient to raise a genuine dispute of material fact regarding Amtrak’s stated
reasons. Moreover, McDaniel has not produced sufficient evidence to support his allegation that
Amtrak was otherwise motivated by considerations of race, gender, and/or age. As the Fifth Circuit
has repeatedly stated, the “mere fact that an employer uses subjective criteria is not . . . sufficient

498

Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 412 (5th Cir. 2007); McCoy, 492 F.3d

at 557.
Price v. Fed. Exp. Corp., 283 F.3d 715, 723 (5th Cir. 2002) (“Showing that two candidates are similarly
qualified does not establish pretext under this standard . . . [and] Price's better education, work experience, and
longer tenure with the company do not establish that he is clearly better qualified.”);
499

84

evidence of pretext.”500 Therefore, the Court finds that McDaniel has failed to produce sufficient
evidence to rebut Amtrak’s legitimate, nondiscriminatory reasons to establish pretext, or point to
other evidence sufficient to support an inference that Amtrak discriminated against McDaniel.501
McDaniel’s subjective belief that race, gender, and/or age was a motivating factor in his nonselection for the position of Onboard Service Manager finds insufficient support in the record.502
Amtrak has produced substantial evidence that no discrimination occurred, and, at best, McDaniel
“has raised only a weak issue of fact and therefore cannot survive summary judgment.”503
Accordingly, the Court will grant summary judgment in favor of Amtrak on McDaniel’s claims of
race, gender, and/or age discrimination for the Onboard Service Manager position.
c.

Retaliation Claims under Title VII and Louisiana State Law

McDaniel also alleges that he was not selected for both the Crew Base Manager position
and the Onboard Service Manager position in retaliation for filing an internal complaint with
Amtrak and/or a complaint with the EEOC.504 Retaliation claims under Title VII and Louisiana
state law are also analyzed through the McDonnell Douglas burden-shifting framework.505

Churchill v. Tex. Dep't of Criminal Justice, 539 F. App’x 315, 320 (5th Cir. 2013); Manning v. Chevron
Chem. Co., 332 F.3d 874, 882 (5th Cir. 2003).
500

Laxton, 333 F.3d at 579–80 (“Our concern is whether the evidence supports an inference that Gap
intentionally discriminated against Laxton, an inference that can be drawn if its proffered reason was not the real
reason for discharge.”).
501

502

Churchill, 539 F. App’x at 320–21.

503
Id. (quotation marks and citations omitted). See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S.
133, 148 (2000) (“[A]n employer would be entitled to judgment as a matter of law if the record conclusively
revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak
issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent
evidence that no discrimination had occurred.”).
504

See Rec. Doc. 52 at 13–15.

Thomas, 256 F. App’x at 661 (citing 411 U.S. 792 (1973)); see Smith v. Bd. of Supervisors of S. Univ.,
656 F. App’x 30 (5th Cir. 2016) (“Title VII retaliation claims based on circumstantial evidence are analyzed under
the McDonnell Douglas burden-shifting framework . . . .”).
505

85

Because McDaniel’s evidence supporting his retaliation claim for both positions are largely
identical, the Court will consider both claims simultaneously.
1.

Prima Facie Case of Retaliation

To establish a prima facie case of retaliation under Title VII and Louisiana law, McDaniel
must show “(1) that [he] engaged in activity protected by Title VII, (2) that an adverse employment
action occurred, and (3) that a causal link existed between the protected activity and the adverse
employment action.”506 Ultimately, “Title VII retaliation claims require proof that the desire to
retaliate was the but-for cause of the challenged employment action.”507
Here, McDaniel presents evidence that he filed an internal complaint of discrimination on
December 23, 2013, and he filed a complaint with the EEOC on June 18, 2014, concerning his
nonselection for the Route Director position and six other positions.508 McDaniel also presents
evidence that subsequently, “in the first quarter of 2015,” he applied for and was not selected for
the positions of Crew Base Manager and Onboard Service Manager.509 McDaniel avers that he
was not selected by Popo in retaliation for his EEOC complaint involving her selection for Route
Director, and alleges that Popo knew about the EEOC claim.510 It appears that Amtrak does not
dispute that McDaniel has made out a prima facie case of retaliation.511 Thus, the Court finds that
McDaniel has established a prima facie showing that he was not selected for the Crew Base

506

Smith v. Bd. of Supervisors of S. Univ., 656 F. App’x 30 (5th Cir. 2016).

507

Minnis v. Bd. of Sup'rs of Louisiana State Univ. & Agric. & Mech. Coll., 55 F. Supp. 3d 864, 882 (M.D.
La. 2014) (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2521 (2013)), aff'd sub nom. Minnis v. Bd.
of Sup'rs of Louisiana State Univ. & Agr. & Mech. Coll., 620 F. App’x 215 (5th Cir. 2015).
508

Rec. Doc. 52 at 13.

509

Id. at 13–15.

510

Id.

511

See Rec. Docs. 41, 64.

86

Manager position or the Onboard Service Manager position in retaliation for engaging in a
protected activity in violation of Title VII and Louisiana law.
2.

Legitimate, Nondiscriminatory Reasons for Employment Action

Once the Court finds that McDaniel has made his prima facie showing for retaliation, the
burden shifts to Amtrak to articular a legitimate, nondiscriminatory or nonretaliatory reason for its
employment action.512 As explained supra, the Court finds that Amtrak’s stated reasons for
selecting Ball-Austin for the Crew Base Manager position and Ames for the Onboard Service
Manager position constitute legitimate, nonretaliatory reasons sufficient to satisfy Amtrak’s
burden here.513
3.

Pretext for Retaliation

In addition to the evidence considered for McDaniel’s discrimination claims supra, which
the Court found was insufficient to establish pretext, McDaniel presents additional evidence that
he was not selected for the Crew Base Manager position and the Onboard Service Manager
position in retaliation for filing an internal complaint and/or an EEOC complaint and that Amtrak’s
stated reasons are mere pretext.514 McDaniel alleges that both Popo, the decision maker here, and
Kirk, Popo’s immediate superior, knew that McDaniel had filed an internal complaint of
discrimination and an EEOC complaint.515

512

McCoy, 492 F.3d at 557.

See Gregory v. Town of Verona, Miss., 574 F. App’x 525, 528 (5th Cir. 2014) (finding that not
displaying the same leadership ability as the selected employee are legitimate, non-discriminatory reasons to prefer
one candidate over another); McCoy, 492 F.3d at 557 (analyzing discrimination claims and retaliation claims under
Title VII under the same framework); Price, 283 F.3d at 720 (stating that a plaintiff must produce evidence which,
“taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action.”
(emphasis in original)) (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993)).
513

514

See Rec. Doc. 52 at 13–15, 21–22.

515

Id.

87

However, McDaniel’s additional evidence fails to establish pretext or show that his nonselection for either position was in retaliation for any protected activity. First, McDaniel’s affidavit
states that he only informed Kirk of his internal complaint of discrimination on December 23,
2013,516 but he has not provided any evidence that Popo, the decision maker for both positions,
was aware of the internal complaint or that Kirk told Popo about the internal complaint. Rather,
McDaniel admitted during his deposition that he does not know if Kirk told Popo about the internal
complaint.517 Additionally, Popo testified in her deposition that she was not aware of any internal
complaint at the time she made her selections, and that she only found out about it in October of
2016.518 The Fifth Circuit has determined that, “in order to establish the causation prong of a
retaliation claim, the employee should demonstrate that the employer knew about the employee's
protected activity.”519
Similarly, McDaniel’s affidavit states that he told Popo about the EEOC complaint in
2014;520 however, in his deposition, McDaniel stated that he did not know for sure whether Popo
was aware that he had made any type of internal or external complaint of discrimination, and
instead asserted that it was “reasonable” to think she did know.521 “It is well settled that this court
does not allow a party to defeat a motion for summary judgment using an affidavit that impeaches,

516

Rec. Doc. 52-1 at 7.

517

Rec. Doc. 41-2 at 15; Rec. Doc. 41-4 at 29.

518

Rec. Doc. 41-2 at 14–15; Rec. Doc. 41-10 at 6–7, 14.

519

Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 883 (5th Cir. 2003); see also Chaney v. New
Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 168 (5th Cir. 1999) (“If an employer is unaware of an employee's
protected conduct at the time of the adverse employment action, the employer plainly could not have retaliated
against the employee based on that conduct.”).
520

Rec. Doc. 52-1 at 7.

521
See Rec. Doc. 41-4 at 37. See also id. at 28–29 (McDaniel stating in his deposition that he “believe[d]
so” that Popo knew about the complaints, but because he had sent his internal complaint to Kirk).

88

without explanation, sworn testimony.”522 Likewise, “[a] party opposing a motion for summary
judgment cannot simply rely on self-serving affidavits.”523 By contrast, Popo testified that
McDaniel only told her that he filed a lawsuit against Amtrak, which occurred after both selection
decisions took place, and did not state that she knew he filed a complaint with the EEOC.524
Even if McDaniel had established that Popo knew about both complaints filed by
McDaniel, mere knowledge of the protected activity or the fact that an adverse employment action
occurred after a complaint was filed is insufficient to establish pretext. Here, McDaniel submitted
his internal complaint to Kirk on December 23, 2013, and filed his EEOC complaint on June 18,
2014.525 However, the position of Crew Base Manager was posted months later on January 20,
2015, and the position of Onboard Service Manager was posted over two months after that, and
thus Popo’s selection decisions occurred well after the protected activity took place.526 However,
the Fifth Circuit has explicitly stated that it has “never held that a 10-month time lapse, on its own,
is sufficient to satisfy the causal connection” of a retaliation claim for summary judgment
purposes.527 Rather, the Fifth Circuit has previously noted that time lapses of “up to four months”
have been found to be sufficient for a retaliation claim to survive summary judgment.528

522
Ripple v. Marble Falls Indep. Sch. Dist., 99 F. Supp. 3d 662, 681 (W.D. Tex. 2015) (citing S.W.S.
Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996) (citing Thurman v. Sears, Roebuck & Co., 952 F.2d
128, 137 n. 23 (5th Cir. 1992))).
523

Kelly v. United States, 805 F. Supp. 14, 16 (E.D. La. 1992).

524

Rec. Doc. 41-2 at 14 & n.7; Rec. Doc. 41-10 at 4, 14.

525

Rec. Doc. 1 at 5.

526

Rec. Doc. 41-2 at 14.

527

Harvey v. Stringer, 113 F. App’x 629, 631 (5th Cir. 2004).

528

Id. (citing Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 2001)).

89

As the Fifth Circuit has made clear, “the mere fact that some adverse action is taken after
an employee engages in some protected activity will not always be enough for a prima facie
case.”529 Here, having found that Amtrak offers legitimate, nonretaliatory reasons for not selecting
McDaniel for this position, the burden on McDaniel becomes “more stringent,” 530 such that he
must do more than point to a tenuous temporal proximity between the complaint and the adverse
employment action and “offer some evidence from which the jury may infer that retaliation was
the real motive.”531 Considering all the evidence provided by McDaniel in support of his
discrimination and retaliation claims for these two positions, the Court finds that McDaniel has
not presented sufficient evidence here. In Roberson v. Alltell Information Services, the Fifth Circuit
stated that, “[w]ithout more than timing allegations, and based on [defendant’s] legitimate,
nondiscriminatory reason in this case, summary judgment in favor of [defendant] [is] proper.”532
Likewise, the Fifth Circuit has held that summary judgment is proper when a plaintiff “has failed
to even attempt to provide evidence to counter most of [defendant’s] proffered reasons for his
termination of [plaintiff].”533 Accordingly, because McDaniel has failed to present sufficient
evidence establishing that Amtrak did not select him for the position of Crew Base Manager or the
position of Onboard Service Manager in retaliation for either of McDaniel’s complaints of
discrimination, the Court finds that summary judgment on both retaliation claims is proper.

529
Roberson v. Alltel Info. Servs., 373 F.3d 647, 655 (5th Cir. 2004); see also McCoy v. City of Shreveport,
492 F.3d 551, 561–62 (5th Cir. 2007).
530

Medina v. Ramsey Steel Co., 238 F.3d 674, 685 (5th Cir. 2001) (citing McMillan v. Rust College, Inc.,
710 F.2d 1112, 1116–1117 (5th Cir. 1983))
531

Id.

Roberson, 373 F.3d at 656. See also McCoy, 492 F.3d at 561–62 (“McCoy's attempt to prove pretext
simply by showing that the SPD decisionmakers knew of her complaints and took an adverse employment action
shortly thereafter fails.”).
532

533

Harvey, 113 F. App’x at 631.

90

d.

Disparate Impact Age Discrimination Claim under the ADEA

Finally, Amtrak argues that McDaniel’s disparate impact age discrimination claim, i.e.
McDaniel’s claim that Amtrak’s facially neutral employment policies adversely and unequally
affected persons falling within a protected age class, fails as a matter of law.534 Amtrak avers that
McDaniel has not identified any facially neutral policy that had an adverse impact on employees
protected by the ADEA, because, according to Amtrak, courts in the Fifth Circuit have held that it
is not enough to claim a reduction in force (“RIF”) in general caused a disparate impact.535 Rather,
Amtrak asserts that McDaniel must challenge a specific policy or process within the RIF.536
Moreover, Amtrak argues that McDaniel presents no credible evidence of a disparate impact on
employees protected by the ADEA, as his numbers lack the required statistical significance.537
Amtrak asserts that averaging the ages of 19 employees impacted by the RIF “is woefully
insufficient as evidence of a disparate impact because it does not show a disparity between how a
policy impacted persons inside and outside of the protected class.”538

Amtrak avers that

McDaniel’s attempt to compare the average ages of 19 employees who were terminated to the
averages ages of the more than 1,500 employees that were not impacted by the RIF fails to have
any statistical meaning.539

534

Rec. Doc. 41 at 30 (citing Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n.15

(1977)).
Id. at 31; Rec. Doc. 64 at 8 (citing Leichihman v. Pickwick Int’l, 814 F.2d 1263, 1263 n.5 (8th Cir.
1987); Powell v. Dallas Morning News L.P., 776 F. Supp. 2d 240, 258–259 (N.D. Tex. 2011)).
535

536

Id.

537

Rec. Doc. 64 at 8 (citing Moore v. Southwestern Bell Tele. Co., 593 F.2d 607, 608 (5th Cir. 1979)).

538

Rec. Doc. 41 at 31–32 (citing Munoz v. Orr, 200 F.3d 291, 299 (5th Cir. 2000)).

539

Rec. Doc. 64 at 9.

91

In response, McDaniel contends that Amtrak’s facially-neutral policy was articulated in
the “Declaration of Kathryn Huss,” the Human Capital Business Partner in 2013, who detailed the
elimination of nineteen positions during the 2013 RIF.540 McDaniel argues that the policy does not
explain why his Assistant Superintendent Position was eliminated or what new position would
assume his previous responsibilities, and that there is “no true rationale” for why these positions
were eliminated that led to “such an adverse impact on older employees.”541 Additionally,
according to McDaniel, the statistical evidence is “simple and clear” because the average age of
those holding the eliminated positions were 57.3 while the average age of the non-eliminated
positions was 49.8.542 McDaniel further contends that Amtrak has failed to point to reasonable
factors other than age to justify why the particular positions impacted were eliminated. 543In his
“Summary of Relevant Facts,” McDaniel points out that Amtrak changed its retirement plan after
the reorganization, such that current employees under the age of 50 on July 1, 2015, are no longer
entitled to certain retirement benefits.544 McDaniel argues that by doing so, “Amtrak was able to
reduce its costs by intentionally lowering the ages of its employees through the purportedly neutral
reorganization.”545
“[Disparate impact claims] involve employment practices that are facially neutral in their
treatment of different groups but that in fact fall more harshly on one group than another and

540

Rec. Doc. 52 at 15, 22.

541

Id. at 23.

542

Id.

543

Id. at 23.

544

Id. at 11.

545

Id.

92

cannot be justified by business necessity.”546 These claims “focus on facially neutral employment
practices that create such statistical disparities disadvantaging members of a protected group that
they are ‘functionally equivalent to intentional discrimination.’”547 To establish a prima facie case
of discrimination under a disparate impact theory, McDaniel must show: “(1) an identifiable,
facially neutral personnel policy or practice; (2) a disparate effect on members of a protected class;
and (3) a causal connection between the two.”548 The Supreme Court has stated that “a prima facie
case of disparate-impact liability [is] essentially, a threshold showing of a significant statistical
disparity, and nothing more.”549 Once the plaintiff carries his burden of establishing a prima facie
disparate impact case, the burden of production and persuasion shifts to the defendant to identify
a “reasonable factor other than age” to which the adverse impact is attributable.550
Here, the parties dispute whether McDaniel has satisfied the first prong of his disparate
impact claim by identifying a facially neutral employment policy or practice. McDaniel alleges
that Amtrak’s facially neutral policy was articulated in the “Declaration of Kathryn Huss,” the
Human Capital Business Partner in 2013, who detailed the elimination of the 19 positions during
the 2013 RIF.551 In her Declaration, Huss averred that the reorganization eliminated 50 occupied

546

Stout v. Baxter Healthcare Corp., 282 F.3d 856, 860 (5th Cir. 2002) (quoting Int'l Brotherhood of
Teamsters v. United States, 431 U.S. 324 (1977)).
547
Munoz v. Orr, 200 F.3d 291, 299–300 (5th Cir. 2000) (citing Watson v. Fort Worth Bank and Trust, 487
U.S. 977, 987 (1988)).

Davis v. Dallas Indep. Sch. Dist., 448 F. App’x 485, 492 (5th Cir. 2011) (quoting McClain v. Lufkin
Indus., Inc., 519 F.3d 264, 275–76 (5th Cir. 2008)).
548

549

Id. (quoting Ricci v. DeStefano, 557 U.S. 557, 587 (2009)).

550
Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 100 (2008); Cefalu v. Tangipahoa Par. Sch. Bd.,
No. 12-1380, 2013 WL 5329808, at *7 (E.D. La. Sept. 20, 2013); Powell v. Dallas Morning News L.P., 776 F. Supp.
2d 240, 257–58 (N.D. Tex. 2011), aff'd sub nom. Powell v. Dallas Morning News, LP, 486 F. App’x 469 (5th Cir.
2012).
551

Rec. Doc. 52 at 15, 22.

93

non-agreement positions in the Operations Department, including Superintendent and Assistant
Superintendent positions “primarily in the Long Distance business line.”552
McDaniel avers that pointing to Huss’s Declaration is sufficient to satisfy the first prong
of his disparate impact claim.553 However, a plaintiff asserting a disparate impact claim under the
ADEA must do more than “merely allege a disparate impact, or point to a generalized policy that
leads to such an impact.”554 Rather, the plaintiff is “responsible for isolating and identifying the
specific employment practices that are allegedly responsible for any observed statistical
disparities.”555 For example, in Smith v. City of Jackson, Miss., the Supreme Court held that merely
pointing to a new pay plan that is less generous to older workers than it is to younger workers is
insufficient to state a disparate impact claim, as the plaintiffs had not “identified any specific test,
requirement, or practice within the pay plan that has an adverse impact on older workers.”556 The
Court made clear that simply pointing to a disparate impact on workers or to a generalized policy
creating such an impact cannot sustain a disparate impact claim.557 The Court further noted that
allowing a claim to go forward without identifying a specific practice being challenged could
“result in employers being potentially liable for ‘the myriad of innocent causes that may lead to
statistical imbalances . . . .’”558

552

Rec. Doc. 41-6 at 3.

553

Rec. Doc. 52 at 22.

554

Meacham, 554 U.S. at 100 (quotation marks and citations omitted) (emphasis added); Powell, 776 F.
Supp. 2d at 257–58.
555
Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656 (1989) (quoting Watson v. Fort Worth Bank &
Trust, 487 U.S. 977, 994 (1988)) (emphasis added); Powell, 776 F. Supp. 2d at 257–58.
556

544 U.S. 228, 241–42 (2005) (emphasis added).

557

Id. (citing Wards Cove, 490 U.S. at 656).

558

Id. (quoting Wards Cove, 490 U.S. at 657).

94

Other courts considering allegations that a reduction in force or layoff caused a disparate
impact by age have similarly found that plaintiffs have failed to sufficiently identify a facially
neutral employment policy.559 For example, in Powell v. Dallas Morning News L.P., a Northern
District of Texas court found that an allegation that the selection process for a reduction in force
created a disparate impact failed to state a disparate impact claim.560 The court held that “Plaintiffs’
purported discriminatory applications of the RIF policy are not facially neutral and are more
properly considered as disparate treatment claims.”561 According to the court, the plaintiffs failed
to identify a specific, measurable policy or practice within the selection process that created a
statistical disparity based on age, as the “broad claim of undue subjectivity in the RIF termination
process is not a proper basis for a disparate impact claim in an ADEA case.”562 The court’s decision
was affirmed by the Fifth Circuit, which held that the plaintiffs did not make out a prima facie
disparate impact case under the ADEA.563 Similarly, in Cefalu v. Tangipahoa Parish School
Board, another section of the Eastern District of Louisiana found that a plaintiff’s argument that

559
See, e.g., Mustelier v. Equifax, Inc., No. CIV. 08-1008, 2009 WL 890468, at *6 (D.P.R. Mar. 25, 2009)
(finding that a plaintiff fails to establish a prima facie disparate impact claim when he or she only alleges that older
workers were overrepresented in a restructuring process, rather than identifying any facially neutral rule responsible
for the disparity); Oinonen v. TRX, Inc., No. 3:09–CV–1450, 2010 WL 396112, at *4–5 (N.D. Tex. Feb. 3, 2010)
(rejecting a disparate impact claim because the plaintiff failed to identify a specific policy or practice within the
layoff selection process that plaintiff alleged was responsible for purported statistical disparities); White v. Am. Axle
& Mfg., Inc., No. 05-CV-72741, 2006 WL 335710, at *6 (E.D. Mich. Feb. 14, 2006) (finding that pointing to layoffs
and the procedures for selecting employees for layoffs is insufficient to identify a facially neutral policy as required
to sustain a disparate impact claim); Kourofsky v. Genencor Int'l, Inc., 459 F. Supp. 2d 206, 215 (W.D. N.Y. 2006)
(finding that alleging that an involuntary reduction in force created a disparate impact against employees over the
age of 50 fails to sufficiently identify a facially neutral policy to sustain such a claim); Leidig v. Honeywell, Inc.,
850 F. Supp. 796, 802 n.6 (D. Minn. 1994) (finding that a plaintiff failed to identify a specific employment practice
when plaintiff only pointed to the reduction in force).
560
Powell v. Dallas Morning News L.P., 776 F. Supp. 2d 240, 259 (N.D. Tex. 2011), aff'd sub nom. Powell
v. Dallas Morning News, LP, 486 F. App’x 469 (5th Cir. 2012).
561

Id. at 260.

562

Id. at 261.

563

Powell, 486 F. App’x 469, at *1.

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the defendant’s reconstitution plan and subjective evaluation process for reassigning teachers
caused a disparate impact failed to make out a prima facie case.564 The court held that the plaintiff
had not provided evidence that “any of the particular methods that the evaluation team used fell
more harshly on faculty members of older age.”565 The court also found that alleging that the
employer failed to provide age discrimination training to its evaluation team was also insufficient,
as plaintiff was “merely pointing to a generalized policy of the [defendant] (or to the lack of such
a policy), not a specific employment practice.”566
Additionally, in Leichihman v. Pickwick Int'l, the Eighth Circuit held that a disparate
impact claim could not be based on defendant’s reduction in force plans, as it “was not
implemented through some facially neutral procedure, such as a height and weight requirement or
an aptitude test, but was conducted through a series of subjective decisions eliminating certain
positions in order to cut costs.”567 The Eighth Circuit further stated that “[t]here existed no neutral
policy, the impact of which could be measured. Thus, a disparate impact model provides an
inappropriate vehicle for analysis.”568
Here, McDaniel broadly points to the entirety of Amtrak’s 2013 RIF, but fails to point to
any particular policy, practice, or portion of the 2013 RIF that was responsible for creating the
alleged disparate impact by age. As the Supreme Court has held, identifying a specific practice “is
not a trivial burden.”569 By failing to identify the specific policy or practice that he is challenging,

564

No. 12-1380, 2013 WL 5329808, at *7–8 (E.D. La. Sept. 20, 2013) (Barbier, J.).

565

Id. at *7.

566

Id.

567

814 F.2d 1263, 1270 n.5 (8th Cir. 1987).

568

Id.

569

Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 101–02 (2008).

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the Court finds that McDaniel has not satisfied the first prong required to state a prima facie case
for disparate impact claims.
The parties also dispute whether McDaniel has satisfied the second prong of his prima facie
case by identifying a disparate effect on members of a protected class. A prima facie disparate
impact case ordinarily “requires a showing of a substantial statistical disparity between protected
and non-protected workers in regards to employment or promotion.”570 As Amtrak points out,
courts have held that a claim premised on insignificant statistical evidence fail to state a prima
facie disparate impact case.571 However, even assuming that McDaniel has demonstrated that there
was a statistically significant disparity caused by a facially neutral policy or practice, this only
establishes McDaniel’s prima facie claim, and the burden shifts to Amtrak to demonstrate that its
policy was based on reasonable factors other than age.572
Here, McDaniel argues that Amtrak has not explained why his Assistant Superintendent
Position was eliminated or what new position would assume his previous responsibilities, and that
there is “no true rationale” for why these positions were eliminated that led to “such an adverse
impact on older employees.”573 However, as stated in the “Declaration of Kathryn Huss,” which
McDaniel previously cited as establishing a facially neutral policy, Amtrak reorganized its
Operations Department in 2013 “to create a structure that brings front-line, mechanical,
engineering and transportation activities in line with Amtrak’s strategic plan to run like a

Davis, 448 F. App’x at 492 (quoting Stout v. Baxter Healthcare Corp., 282 F.3d 856, 860 (5th Cir.
2002)) (emphasis added).
570

571

See, e.g., Apsley v. Boeing Co., 691 F.3d 1184, 1206–07 (10th Cir. 2012) (finding that, although the
employees’ statistics revealed a “highly unlikely disparity in the treatment of older and younger workers,” the
disparity was, “in absolute numbers, very small,” and thus did not amount to a “significant disparate impact” on
older employees).
572

Smith v. City of Jackson, Miss., 544 U.S. 228, 241 (2005).

573

Id. at 23.

97

business.”574 In her statement, Huss notes that the 2013 reorganization realigned the management
structure “to create business line accountability, dissolve departmental silos and move decisionmaking and accountability closer to customers.”575 In order to do so, Huss contends that Amtrak
created some new roles and eliminated or restructured existing roles to better accomplish its
mission.576 Huss further states that this included eliminating certain mid- to upper-level
management positions in its Operations Department, including a number of Superintendent and
Assistant Superintendent positions primarily in the Long Distance business line.577 Huss
specifically avers that this included McDaniel’s former Assistant Superintendent position, which
was eliminated “as a result of the realignment to a route based management organizational
structure in the Long Distance business line.”578 Huss states that similar positions such as the
Assistant Superintendent position in Washington, D.C. were not eliminated in the 2013
reorganization because the Northeast Corridor did not transition to a route based structure.579
Accordingly, the Court finds that, even assuming McDaniel has sufficiently stated a prima
facie case for disparate impact based on age, Amtrak has articulated that such an impact was based
on reasonable factors other than age. Contrary to McDaniel’s contention, Amtrak has stated a
legitimate rationale for its 2013 RIF, and has satisfied both its burdens of production and
persuasion that the 2013 RIF was based on reasonable factors other than age.580 In Smith, the

574

Rec. Doc. 41-6 at 2.

575

Id.

576

Id. at 3.

577

Id.

578

Id.

579

Id.

580

See Smith v. City of Jackson, Miss., 544 U.S. 228, 241 (2005); Cefalu v. Tangipahoa Par. Sch. Bd., No.
12-1380, 2013 WL 5329808, at *7 (E.D. La. Sept. 20, 2013) (Barbier, J.) (also holding that a plaintiff failed to
articulate a sufficient policy and that the defendant had articulated a sufficient reason other than age to rebut

98

Supreme Court held that a defendant’s plan to raise the salaries of junior officers more than its
senior officers was reasonable in light of the defendant’s desire to make the positions more
competitive with comparable offers in the market.581 Here, Amtrak has offered similar reasons that
the 2013 RIF was needed to improve Amtrak’s operations and ensure that Amtrak operates more
like a business, which Amtrak pursued by making changes to its management structure.582
Amtrak’s evidence constitutes a valid defense to McDaniel’s disparate impact claim, and
McDaniel offers no evidence or argument that such factors were unreasonable or age-related.583
Accordingly, like the Supreme Court held in Smith, this Court finds that “not only did [McDaniel]
thus err by failing to identify the relevant practice, but it is also clear from the record that
[Amtrak’s] plan was based on reasonable factors other than age.”584 Thus, summary judgment on
McDaniel’s disparate impact claim is supported here.
V. Conclusion
As discussed supra, the Court will not strike McDaniel’s Statement of Disputed Material
Facts as inconsistent with Local Rule 56.2, and thus will deny Amtrak’s “Motion to Strike
Plaintiff’s Statement of Disputed Material Facts.”585 Second, the Court finds that McDaniel has

plaintiff’s prima facie case). See also Doyle v. City of Medford, 512 F. App’x 680, 681 (9th Cir. 2013) (finding that
evidence that the City’s policy saved the City and its employees money constitutes a reasonable factor other than
age); Allen v. Sears Roebuck & Co., 803 F. Supp. 2d 690, 698 (E.D. Mich. 2011) (finding that a reasonable factor
other than age includes reducing operating costs, and that eliminating paid time off and business expense
reimbursement would support this goal).
581

Smith, 544 U.S. at 242.

582

See Rec. Doc. 41-6.

583

Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 97 (2008); Allen, 803 F. Supp. 2d at 698.

584
Smith, 544 U.S. at 241; see Rollins v. Clear Creek Indep. Sch. Dist., No. 06-081, 2006 WL 3302538, at
*5 (S.D. Tex. Nov. 13, 2006) (“In the instant case, even if Plaintiff were able to show a disparate impact on older
workers due to the nonrenewal policy, her claim would fail because Defendant based its policy on a reasonable
factor other than age.”).
585

Rec. Doc. 56.

99

failed to present sufficient evidence demonstrating there are genuine disputes of material fact
regarding his disparate treatment, retaliation, and disparate impact claims under Title VII, the
ADEA, and Louisiana state law. The Court finds that McDaniel affirmatively waived his claims
based on six of the nine positions that he was not selected for, and thus summary judgment on
these claims is proper.586
Additionally, the Court finds that McDaniel has failed to present sufficient evidence
creating disputed material facts at issue that Amtrak’s decision to not select McDaniel for the
positions of Route Director, Crew Base Manager, and Onboard Service Manager was motivated
by race, gender, and/or age, or for retaliation for engaging in a protected activity. In particular,
McDaniel failed to present sufficient evidence that Amtrak’s legitimate, nondiscriminatory or
nonretaliatory reasons for not selecting McDaniel for those positions were pretextual, either by
establishing that he was “clearly better qualified” for the position, that Amtrak’s stated reasons are
false or unworthy of credence, or that Amtrak was otherwise motivated by race, gender, and/or
age considerations. McDaniel has also not presented sufficient evidence to create a genuine dispute
of material fact that he was not selected for those positions in retaliation for filing complaints of
discrimination, as McDaniel has not shown that Amtrak’s stated reasons are pretextual or
presented other evidence demonstrating that he was not selected for Crew Base Manager or
Onboard Service Manager in retaliation for engaging in protected activity six months prior to the
job posting. Finally, McDaniel has not presented sufficient evidence to create a genuine dispute of
material fact on his disparate impact claim, as McDaniel has failed to make a prima facie case and
Amtrak has presented sufficient evidence that the 2013 RIF was based on reasonable factors other
than age. Accordingly,

586

See Rec. Doc. 52 at 22.

100

IT IS HEREBY ORDERED that Amtrak’s “Motion to Strike Plaintiff’s Statement of
Disputed Material Facts”587 is DENIED.
IT IS FURTHER ORDERED that Amtrak’s “Motion for Summary Judgment”588 is
GRANTED.

22nd
NEW ORLEANS, LOUISIANA, this _____ day of December, 2016.

________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

587

Rec. Doc. 56.

588

Rec. Doc. 41.

101