Irvin v. Ascension Parish School Board

Filing 22

RULING AND ORDER denying 16 Motion for Summary Judgment filed by Defendant Ascension Parish School Board. Signed by Judge John W. deGravelles on 01/24/2017. (KDC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
SHELIA A. IRVIN
CIVIL ACTION
VERSUS
NO. 15-518-JWD-EWD
ASCENSION PARISH SCHOOL BOARD
RULING AND ORDER
This matter comes before the Court on the Motion for Summary Judgment (Doc. 16) filed
by Defendant Ascension Parish School Board (“Defendant”). The Plaintiff Shelia A. Irvin
(“Irvin” or “Plaintiff”) opposes the motion. (Doc. 18.) Oral argument is not necessary. Having
carefully considered the law, the record, and the arguments of the parties, the motion is denied.
I.

Introduction
Plaintiff Shelia A. Irvin works for the Defendant Ascension Parish School Board as the

Transportation Secretary. She has worked in that position for about sixteen years and for the
Defendant for nearly forty years.
In the fall of 2014, Plaintiff applied for the position of Coordinator of Transportation.
Her supervisor, Larry Grant, testified that she has already performed the Coordinator job, that
she trains Coordinators, and that she in fact trained him for his job as Supervisor of
Transportation.
Nevertheless, Plaintiff did not receive the position. Mr. Aubrey Yates did. The week
after being passed over for the new job, Plaintiff was told by the Assistant Superintendent, who
was the highest-ranking member of the committee interviewing applicants, that “this was a
position that [she] expected the person to work in for at least [ten] or more years.”

Plaintiff was born in August 1955, and she was, at the time the job became available,
fifty-nine years old. Yates was born in December 1963 and was fifty years old when he was
hired. Their age difference is approximately eight and one quarter years.
Plaintiff now brings this suit alleging that the Defendant discriminated against her on the
basis of her age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et
seq. (“ADEA”). Specifically, Plaintiff claims discrimination for failure to promote.
The Court has carefully reviewed the law and the record as a whole and finds that the
Defendant’s motion should be denied. First, Plaintiff has made a prima facie case of
discrimination. Though the person who ultimately got the job was over the age of forty,
Supreme Court and Fifth Circuit precedent hold that this does not prevent a plaintiff from
proving a prima facie case. As long as the person who received the job was “substantially
younger” than the Plaintiff, she has met her burden. The Court finds that the eight and one
quarter year difference between Plaintiff and Yates satisfies this standard.
Though the Defendant has articulated a legitimate, non-discriminatory reason for the
decision (namely, that Yates had better qualifications), the Court finds that the Plaintiff has
created an issue of fact as to whether this reason was a pretext for discrimination. Drawing all
inferences in the Plaintiff’s favor, a reasonable juror could find that age discrimination was the
but-for cause of the Defendant’s employment decision. The Court bases this decision on the
following: (1) the Plaintiff’s prima facie case, (2) the fact that she was “clearly better qualified”
than Yates (that is, a jury could conclude that no reasonable person, in the exercise of impartial
judgment, could have chosen Yates over the Plaintiff for the Coordinator position); and (3) the
above comment by her supervisor about expecting the person who got the job to work for the
next ten years, which a reasonable juror could find was made with discriminatory animus on the

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part of a person who is either primarily responsible for the challenged employment action or by a
person with influence or leverage over the relevant decisionmakers.
Contrary to Defendant’s argument, this holding is not in conflict with Hazen Paper Co. v.
Biggins, 507 U.S. 604, 113 S. Ct. 1701, 123 L. Ed. 2d 338 (1993). Hazen found that there is no
disparate treatment under the ADEA when the factor motivating the employer is some feature
other than the employee’s age. Conversely, here the Court finds that a reasonable juror could
conclude that the Plaintiff was not promoted because of her age (that is, that age was the but-for
cause of the Defendant’s employment action) . Accordingly, the Defendant’s motion is denied.
II.

Relevant Factual Background
A. Plaintiff’s Background
Plaintiff is an employee with the Ascension Parish School Board and has been since

1976. (Doc. 18-2 at 2.) She began as a library clerk. (Id.) She was also a head secretary at East
Ascension High School for ten years. (Doc. 18-2 at 3.) From 1999 to the present, the Plaintiff
has been the Transportation Secretary. (Doc. 16-5 at 9.)
When Plaintiff first got the Transportation Secretary job in 1999-2000, her duties
included “taking care of the bus drivers and their substitutes.” (Doc. 16-5 at 4.) During this
time, she also did the state-mandated reports, figured out the bus drivers’ routes, and assisted the
Transportation Supervisor with the routes. (Doc. 18-2 at 5.) At that time in the department, there
was only a Supervisor of Transportation and a Transportation Secretary. (Doc. 18-2 at 6.)
B. Position of Coordinator of Transportation
In 2008, the position of Coordinator of Transportation was created. (Doc. 18-2 at 6–7.)
The hierarchy was Supervisor of Transportation, then Coordinator of Transportation, and then

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Secretary of Transportation. (Doc. 18-2 at 7.) To this day, these are the only positions in the
department. (Doc. 18-2 at 7.)
Even after the position of Coordinator of Transportation was created, Plaintiff still
reported directly to the Supervisor of Transportation. (Doc. 18-2 at 8.) Plaintiff did not report to
the Coordinator. (Doc. 18-2 at 8.)
With respect to the Coordinator’s job duties in 2008, Plaintiff testified that “[t]hey took
my duties and created that job description for the Coordinator. So he got some of my duties[,] . .
. [such as] [r]eports, taking care of the bus driver [sic], absences, scheduling. I stopped doing it
and gave it to him.” (Doc. 18-2 at 9.) The job description of the Coordinator included
responsibility for assisting with scheduling bus routes, for helping bus drivers find substitutes
when they couldn’t find one,” and preparing all state reports. (Doc. 18-2 at 9.) Plaintiff was still
responsible for assisting with routes. (Doc. 18-2 at 9.)
Plaintiff saw the job description for Coordinator because she applied for the position in
2008. (Doc. 18-2 at 10–11.) She did not get the job; Kennie Ridgdell did. (Doc. 18-2 at 8, 11.)
Larry Grant was Supervisor of Transportation and had been since 2003. (Doc. 18-2 at 6–
7, 25.) He said that the position of Coordinator was created because there was too much to do in
the Transportation Department, because they wanted to disperse the work, and because they
wanted someone at the office at all times. (Doc. 18-2 at 26.) They wanted to take some of
Grant’s duties and some of Plaintiff’s duties and give them to a new person. (Doc. 18-2 at 26–
27.) Grant testified that, though Plaintiff did not get the Coordinator job in 2008, she was
capable of doing the job at that time. (Doc. 18-2 at 27.)

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C. The Plaintiff Applies for the Coordinator Position in 2014
When Ridgdell left the job in 2014, a vacancy was created for the Coordinator position,
and the Plaintiff applied again. (Doc. 18-2 at 11, 28.) At the time the job became available,
Plaintiff was fifty-nine years old. (Doc. 16-5 at 4.)
The position was a twelve-month job. (Doc. 18-2 at 20.) Four individuals were
interviewed for the Coordinator position: Mr. Aubrey Yates, Ms. Irvin, Mr. Clark Sanchez (a
person from ETEL), and Chad Burke (from Associated Grocers). (Doc. 18-2 at 11, 28–29, 43.)
D. Mr. Yates Was Selected for the Job
Of the four people interviewed, Mr. Yates was chosen for the job. (Doc. 18-2 at 11, 45.)
Yates was born in December of 1963 and was fifty years old at the time he was hired. (Doc. 16-5
at 2; Doc. 18-2 at 39–40.)
Yates worked in real estate from 1991 until “the crash,” after which he became a
substitute teacher in Ascension Parish, and then he was a paraprofessional at Dutchtown Middle
School for four or five years. (Doc. 18-2 at 34–35.) From there, he went to being a truancy
interventionist. Yates said that he was trained for the Coordinator position by Mr. Grant, but the
“job mainly consists of problem solving, and those skills come naturally as you work.” (Doc. 182 at 37.) Yates said that his truancy position prepared him for that “as far as dealing with irate
parents, administrators, [and] things of that nature:”
Q:

Give me an example of problems you would solve in the truancy
department.

A:

Okay. You got three drivers at a school with no way to get them home, so
you have got to get them home, so you have got to figure out where you
got a driver that can make an emergency route there and bring in that
driver.

Q:

Or ten people calling in sick on the same day?
5

A:

That’s correct. You have got to get subs and take care of that. There’s a
lot of hats to wear in this department.

(Doc. 18-2 at 37.)
Yates said that, since becoming Coordinator, the Plaintiff helps him with “procedures that
go[] on in the department when [he] need[s] something[,]” but Yates does the “problem solving”
on his own. (Doc. 18-2 at 38.) Yates will use the Plaintiff for “specific transportation issues,
like what form do we use for this or for a sub or something like that, but as far as policy stuff,”
he relies on Grant or Chad Lynch, the Director of Planning and Construction. (Doc. 18-2 at 12–
13, 38–39, 42.) Yates said his other main duties that he performs regularly are: “Going to
accidents, making sure the kids are safe, getting the correct information to report to the insurance
company and to Ms. Peraza’s office about what happened, taking pictures. Dealing with
principals as far as problems at their school or student problems they may have problems with.”
(Doc. 18-2 at 40.)
E. The Hiring Committee, The Interviews, and The Stated Reasons for
Selecting Mr. Yates
Four different people performed all the interviews for the Coordinator position: Denise
Graves, Chad Lynch, Larry Grant, and Randy Watts. (Doc. 18-2 at 19.) Denise Graves is the
Assistant Superintendent. (Doc. 18-2 at 12.) As stated above, Chad Lynch’s title was the
Director of Planning and Construction, but he was also director over transportation and
maintenance. (Doc. 18-2 at 12–13, 42.) Larry Grant, the Supervisor of Transportation, was on
the committee as well. (Doc. 18-2 at 6–7, 25.) He reports to Mr. Lynch. (Doc. 18-2 at 7.) Randy
Watts is the Director of Human Resources. (Doc. 18-2 at 17.) Ms. Graves had authority over the
other individuals on this hiring committee. (See Doc. 18-2 at 15–16, 19, 23.)

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At the interview, the applicants were given an opportunity to give an opening statement,
then the four interviewers asked questions. (Doc. 18-2 at 19.) Mr. Lynch had a list of questions
generated and given to the interviewers, which they could ask if they so chose. (Doc. 18-2 at 19.)
“The four of us would actively ask the applicant questions based upon their experience and
expectations and abilities, and then we would close with them having the opportunity to give a
closing statement.” (Doc. 18-2 at 19.) Watts would also give details of the job. (Doc. 18-2 at
19.)
Yates said he did not recall Denise Graves telling him in the job interview that she would
expect him to stay in that job for at least ten years. (Doc. 18-2 at 39.) Similarly, Lynch testified
that he did not recall Ms. Graves saying during the interview with Plaintiff that whoever was
hired would be expected to work in the job at least ten years or more. (Doc. 18-2 at 43.)
Graves was asked, “What particular attributes did Mr. Yates bring to the table, if you
recall,” and Graves responded:
His experience, first of all, being a current employee. He worked as a truancy
interventionist, so he had good skills in working with the school administrators.
We needed that feedback we had gotten over time with the difficult situations that
he dealt with, that he had a good rapport with administrators that he spoke to them
appropriately.
They were pleased with his handling of documents.
Also, because he was a truancy interventionist, he was very familiar with all of
the nooks and crannies of the district, so if we asked him to go drive the Buzzard
route, he would know where that would be. He was very familiar with the entire
district, which would be a determining factor. And just the people skills he had
been demonstrating as a truancy interventionist.
(Doc. 16-5 at 11–12.) Yates’ bachelor’s degree did not “play into it.” (Doc. 16-5 at 12; see also
Doc. 16-5 at 14–15.) Conversely, Ms. Irvin got an interview because: “She worked for Mr.

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Grant. She worked in the Transportation Department, she had been a longtime, good employee
with us.” (Doc. 16-5 at 12.)
Larry Grant testified that, in his opinion as direct supervisor of the Coordinator job, Irvin
“possess[ed] all of the attributes needed in order to assume the position” and was “absolutely”
qualified for the job. (Doc. 18-2 at 29.) Grant also testified that he preferred Ms. Irvin for the
position:
A:

It goes back to my statement earlier, and this is no offense to other
applicants, but prior to me getting there, Ms. Irvin was in the chair, so she
was basically coordinating and doing secretarial work before any of us got
to that department. She had the experience, the professionalism, the
organizational skills. I am who I am right now in that department not
because I get all of my information from the State Department or some
other agency, it came directly from Ms. Irvin. She has been the trainer for
myself, and she is the trainer now for any Coordinator that comes into that
office.
So with all of that longevity that she has as a Secretary and all of the
duties that go along with being a Coordinator, she was doing all of those
particulars prior to any of us getting there, so she had that, she possessed
those qualities.

Q:

Would the title “Secretary” be a misnomer as far as what Ms. Irvin has
done over the years in the department?

A;

Absolutely.

(Doc. 16-5 at 17.) Grant further testified that, when the Coordinator job came into existence,
Plaintiff’s duties were shifted and given to Mr. Ridgdell. (Doc. 16-5 at 17–18.) Grant testified:
Q:

And so it was–you wanted her to show him how to do what she had
previously been doing?

A:

Absolutely.

Q:

And the same would be true with Mr. Yates?

A:

Absolutely.
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(Doc. 16-5 at 18.)
Grant said that Ms. Graves “took the lead for Mr. Yates.” (Doc. 16-5 at 18.) Grant
testified that the final decision came about as follows:
Discussions at the table about qualifications and abilities and the what-ifs and all
those things, so everybody was throwing their pieces in the pot.
Again, I will say Ms. Graves was in Mr. Yates’ corner, and that is no offense to
her. I was standing on my convictions, and eventually, we had to make
concessions. We were at a stalemate, for lack of a better word. I am a team
player. Ms. Graves is over all of us that was at that table, including Mr. Lynch, so
eventually we all decided that we will go in the direction of Mr. Yates.
(Doc. 16-5 at 22–23.) Grant was asked if he “basically . . . conceded to Ms. Graves’ position,”
and he replied, “Absolutely.” (Doc. 16-5 at 23.) When asked if Grant would speak for her again,
he stated:
Unless somebody brings something really outstanding beyond the shadow of a
doubt. Again, you know, when you sit at a table to interview people, it is a
process. It is yes, this is who I think is a great person based upon what I know
about her, and you can say something different about another person. At some
point, you have to come together.
(Doc. 18-2 at 32.)
Grant testified that age was never a consideration in making the decision of who to hire,
including Ms. Irvin’s age. (Doc. 16-5 at 21.) Grant said that he could not speak for anyone else.
(Doc. 16-5 at 22.) However, he did not “recall age being discussed in the general conversation.
Like, you are too old or you have got too many – no. That conversation was not had openly at
that table.” (Doc. 16-5 at 23.)
Chad Lynch testified that Ms. Irvin had the following strengths or good points after they
interviewed her:

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Her strengths would be her presence in the office over there, knowledge of who
the bus drivers are, the ability to point people in the right direction in our school
system. She has been in the school system a long time, so there are things she
knows about who to call at HR. Drivers call her and ask questions, and she
directs them to the right people. . . . Being involved in transportation, I would tell
you that being there in the office is what got her the interview. I know that she
knows what we do in there.
(Doc. 16-5 at 30–31.) Lynch said they did not discuss anybody’s negatives; “it was more of us
trying to say who we thought we should recommend and if we had a consensus already or not.”
(Doc. 16-5 at 31.) Lynch stated that, though he was not 100% sure, he felt like, based on the job
description that was posted, the Plaintiff met all of the qualifications outlined in the job
description for the Coordinator position. (Doc. 18-2 at 44.)
Lynch said that Grant “felt like, out of loyalty to Ms. Shelia, [Grant] wanted to give
[Plaintiff] a chance. That was [Grant’s] statement, and he explained why, you know. She had
been his employee for a long time, and he wanted to recommend her.” (Doc. 16-5 at 31.)
Lynch’s top candidate was Mr. Sanchez from ETEL because of his transportation experience.
(Doc. 16-5 at 31.) Lynch did not remember if Mr. Watts even picked one, but Ms. Graves
wanted Mr. Yates. (Doc. 16-5 at 31.) Lynch testified:
We had a vote, then further discussion, and Ms. Graves made some comments
about Mr. Yates and the things she had seen with him in his capacity he had
before this, which I agreed with because I had seen them as well through my
experience with him in his other role. And once she said that, I said I could live
with that.
Mr. Grant, I remember him not objecting, saying he could live with that, and we
felt like we could go with that and we all agreed to the selection.
(Doc. 16-5 at 31–32.)
Randy Watts could not remember the pluses that Ms. Graves discussed with respect to
Mr. Yates. (Doc. 16-5 at 34.) He testified:

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Mr. Yates got my vote – and I said there was a tie. If I had to give it for
transportation knowledge, it would have been for Mr. Sanchez because he dealt
with it on a daily basis. But Mr. Yates far exceeded everyone else, in my eyes, as
far as what I thought was needed within the district, which is total collaboration
and understanding of the principals and assistant principals and what they go
through and how they operate during the course of a day.
Mr. Yates has had internal experience with those people for a couple of years in
dealing with truancy. He deals with parents with truancy each and every day, and
it is very, very hostile sometimes. A lot of them are not very, very pleased. A lot
of shouting and hollering has come through that office because people believe
they should be able to go to any school they want to regardless of where they live.
He is the one who would catch them crossing lines and not telling the truth about
where they would live, so on a daily basis, Mr. Yates would deal with employees
and adults. And I thought that was very, very important that we had someone
who was experienced in that because when you are dealing with buses, this is
what you are going to deal with. An irate parent who calls in the afternoon,
regardless of whether or not they are correct with their information, or they are
worried because they think their kid has been kidnapped, whatever it may be, you
know, something wrong. And he has had total experience in dealing with those
situations.
So that is why he had my vote . . . One of the reasons. One of the main reasons he
had my vote.
(Doc. 16-5 at 34–35.)
F. The Meeting That Took Place After the Interviews and the Alleged Comment
Plaintiff testified that, on the Monday after the interview, Ms. Graves, Mr. Lynch, and
Mr. Grant called her in a meeting to explain why she did not get the job. (Doc. 18-2 at 12.)
Plaintiff testified that, at the meeting, Graves said “usually when they hire somebody in a
position like that, they are expected to work 10 or more years in that position.” (Doc. 16-5 at 5;
Doc. 18-2 at 14.) Plaintiff testified:
Q:

Did she say that to you in a way that made you understand that she didn’t believe
that you’d be there for 10 years?

A:

That’s what I got from it.

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(Doc. 16-5 at 5; Doc. 18-2 at 14.) According to Plaintiff, Lynch and Grant said nothing at that
meeting. (Doc. 16-5 at 5; Doc. 18-2 at 14.)
Graves also testified about a follow-up meeting that occurred. (Doc. 16-5 at 13.) Graves
said that she, Grant, Lynch, and Watts met with Plaintiff at a conference room in Sorrento. (Doc.
16-5 at 13.) Graves “did all of the talking and wanted to let Ms. Irvin know she was not going
to get the position, that we appreciated her applying for the position, but that we had chosen
someone else.” (Doc. 16-5 at 13.) Graves was asked if she told the Plaintiff that “this was a
position that [she] expected the person to work in for at least 10 or more years,” and Graves
responded:
In my conversation in the interview telling her she did not get the position, I did
say that. It was part of the conversation just trying to give an example, as she did
not get the position because she wasn’t the best person for it, she did not have the
best experience and wasn’t the most qualified. I said that as a platform for
discussion. We were looking for someone long-term, but certainly, historically,
as an HR person, we have hired people for half a year, 1 year, but that she did not
get the position because we were looking for someone long-term.
I did say that we can hire someone and they can resign the next year, but we went
with what we were responsible for, which was to pick the best possible person for
the position.
(Doc. 16-5 at 13–14.) She denied that age was a factor in the decision:
Q:

When you said that because of her longevity in the system, she had
worked here for 38 years, and because of her age, did you think she was
not going to hold the job for 10 years or more.

A:

Absolutely not. I don’t know we are that far apart in age. She is a little bit
older than I, but I expect to work 10 more years also, so that was not a
factor at all.

Graves also discussed other reasons given to Plaintiff for not giving her the position:
One of the reasons we met with her was just to let her know that we had
applicants that certainly had better hands-on experience that would better suit the
position. The position had filled for a number of years, we knew what the daily
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tasks were and what the responsibilities were, and those were just not her
strengths. She had no evidence of those strengths or even having those skills.
She had never supervised either, never been a situation where she had to deal with
different employees or parents, and we had two applicants with that experience.
(Doc. 16-5 at 15.)
Grant also testified about the meeting. He said that, after the consensus was made to hire
Mr. Yates, a decision was made to talk to Ms. Irvin to “smooth things over with her.” (Doc. 16-5
at 24.) The four people who interviewed her sat down with her, and Ms. Graves was the lead in
the conversation. (Doc. 16-5 at 25.) Grant was asked if he remembered Ms. Graves saying that
“she expected the person who filled the Coordinator’s job to be in the job for at least 10 years,”
and Grant did not “recall those exact words.” (Doc. 16-5 at 25.) Grant elaborated:
I don’t want to misquote Ms. Graves. I can tell you the process that I think Ms.
Graves was trying to allude to.
Get Miss Shelia to the table, and basically, explain to her the reasons why, so in
the process of that explanation, if those particular wordings came about directly, I
don’t want to believe there was anything that was basically to try to make Miss
Shelia feel she was inadequate or that she only had a few years left before she
retired. I think she was just trying to explain the reasons why.
So whatever the wording that was quoted or whatever by someone, I don’t recall
the exact words verbatim, but I do know the gist of what Ms. Graves was trying to
do because we talked about it prior. And we were just trying to make Miss Shelia
feel better about the process.
(Doc. 16-5 at 26.) When Grant was told that Ms. Graves admitted to saying it, he said there was
a “strong possibility” that she did, but he only remembered the gist of what she said and not the
specifics. (Doc. 16-5 at 27–28.)
Lynch testified that, in a meeting that they had with the Plaintiff after her interview, Ms.
Graves said something to the effect that whoever was hired would be expected to work in the job
at least [ten] years or more. (Doc. 18-2 at 43.) Lynch stated:

13

Q:

And when you heard that, what did you think she meant by that?

A:

Can I just state that the purpose of the meeting was really to try and help
an employee understand that even though you were not selected, you are
still a valuable employee.
That sentence to me, or whatever she said about the age didn’t appear to
me to be the point of the meeting.

Q:

But you did take it to be about her age, right?

A:

I vaguely remember what she said. It was about longevity or how much
time you have left. I can’t remember exactly how she said it.

(Doc. 18-2 at 44.)
III.

The Relevant Standard
“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). If the mover bears his burden of showing that there is no genuine issue of fact, “its
opponent must do more than simply show that there is some metaphysical doubt as to the
material facts . . . [T]he nonmoving party must come forward with ‘specific facts showing that
there is a genuine issue for trial.’ ” See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586–87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (internal citations omitted). The nonmover's burden is not satisfied by “conclusory allegations, by unsubstantiated assertions, or by
only a ‘scintilla’ of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(citations and internal quotations omitted). “Where the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ”
Matsushita Elec. Indus. Co., 475 U.S. at 587. Further:
In resolving the motion, the court may not undertake to evaluate the credibility of
the witnesses, weigh the evidence, or resolve factual disputes; so long as the
evidence in the record is such that a reasonable jury drawing all inferences in
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favor of the nonmoving party could arrive at a verdict in that party's favor, the
court must deny the motion.
International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).
IV.

Discussion
A. ADEA Standard Generally
The Fifth Circuit recently laid out the applicable law as follows:
The Age Discrimination in Employment Act (ADEA) “prohibit[s] employers
from discharging or otherwise discriminating against any individual because of
his or her age.” Miller v. Raytheon Co., 716 F.3d 138, 144 (5th Cir. 2013); see 29
U.S.C. § 621. Under the ADEA, it is unlawful for an employer “to discharge any
individual or otherwise discriminate against any individual . . . because of such
individual's age.” 20 U.S.C. § 623(a)(1); accord Phillips v. Leggett & Platt, Inc.,
658 F.3d 452, 455 (5th Cir. 2011). To establish a claim under the ADEA, “[a]
plaintiff must prove by a preponderance of the evidence (which may be direct or
circumstantial), that age was the ‘but-for’ cause of the challenged employer
decision.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177–78, 129 S. Ct. 2343,
174 L. Ed. 2d 119 (2009). A plaintiff may prove her case by either direct or
circumstantial evidence. Id.

Palacios v. City of Crystal City, Tex., 634 F. App'x 399, 401–02 (5th Cir. 2015) (per curiam).
The Fifth Circuit has further explained:
When a plaintiff relies on circumstantial evidence to prove age discrimination, we
apply the three-part burden-shifting analysis from McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Under the
McDonnell Douglas framework, the plaintiff must first establish a prima facie
case by showing that (1) she was forty years of age or older at the time she was
not selected; (2) she was qualified for the position; (3) she was not selected; and
(4) either (a) a candidate outside her protected class was selected; (b) someone
younger was selected; or (c) she otherwise was not selected because of her age.
See Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005); McClaren
v. Morrison Mgmt. Specialists, Inc., 420 F.3d 457, 462 (5th Cir. 2005). If the
plaintiff establishes a prima facie case, the burden shifts to the employer to
articulate a legitimate, nondiscriminatory reason for its decision. If the employer
meets that burden of production, the plaintiff, to withstand summary judgment,
must offer sufficient evidence to create a genuine issue of material fact as to
whether “the legitimate reasons offered by the defendant were not its true reasons,
but were a pretext for discrimination.” Squyres v. Heico Cos., L.L.C., 782 F.3d
224, 231 (5th Cir.2015) (internal quotation marks and citation omitted).
15

Cline v. Par., 622 F. App'x 423, 425 (5th Cir. 2015) (per curiam).
B. Plaintiff’s Prima Facie Burden
The parties’ arguments concerning the prima facie case are straightforward and center on
the fourth element of the test. Defendant asserts that the Plaintiff can only show a prima facie
case by demonstrating that the position was filled by someone outside the “protected class” (i.e.,
over the age of forty). Defendant contends that, because Mr. Yates was fifty years old, Plaintiff
cannot satisfy her prima facie burden.
Plaintiff maintains that the Defendant cites to incorrect case law. Plaintiff argues that she
can satisfy her prima facie burden merely by showing that Mr. Yates was younger than the
Defendant and that Courts in the Fifth Circuit have “routinely treated the fourth element as
satisfied for summary judgment purposes when the age difference between a plaintiff and his
replacement is seven years or more.” (Doc. 18 at 7 (citation omitted).)
In short, the Court rejects the Defendant’s argument and agrees with the Plaintiff. This
case is controlled by O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 116 S. Ct.
1307, 134 L. Ed. 2d 433 (1996). Under it, the Plaintiff has satisfied her prima facie burden.
In O’Connor, the question was “whether a plaintiff alleging that he was discharged in
violation of the [ADEA] must show that he was replaced by someone outside the age group
protected by the ADEA to make out a prima facie case under the framework established by”
McDonnell Douglas. O’Connor, 517 U.S. at 309, 116 S. Ct. at 1309. In finding that he did not,
the Supreme Court explained:
The discrimination prohibited by the ADEA is discrimination “because of [an]
individual's age,” 29 U.S.C. § 623(a)(1), though the prohibition is “limited to
individuals who are at least 40 years of age,” § 631(a). This language does not
ban discrimination against employees because they are aged 40 or older; it bans
discrimination against employees because of their age, but limits the protected
class to those who are 40 or older. The fact that one person in the protected class
16

has lost out to another person in the protected class is thus irrelevant, so long as
he has lost out because of his age. Or to put the point more concretely, there can
be no greater inference of age discrimination (as opposed to “40 or over”
discrimination) when a 40-year-old is replaced by a 39-year-old than when a 56year-old is replaced by a 40-year-old. Because it lacks probative value, the fact
that an ADEA plaintiff was replaced by someone outside the protected class is not
a proper element of the McDonnell Douglas prima facie case.
Id., 517 U.S. at 312, 116 S. Ct. at 1310 (emphasis in original). The high court concluded:
[T]he prima facie case requires “evidence adequate to create an inference that an
employment decision was based on a[n] [illegal] discriminatory criterion . . . .”
Teamsters v. United States, 431 U.S. 324, 358, 97 S. Ct. 1843, 1866, 52 L. Ed. 2d
396 (1977) (emphasis added). In the age-discrimination context, such an inference
cannot be drawn from the replacement of one worker with another worker
insignificantly younger. Because the ADEA prohibits discrimination on the basis
of age and not class membership, the fact that a replacement is substantially
younger than the plaintiff is a far more reliable indicator of age discrimination
than is the fact that the plaintiff was replaced by someone outside the protected
class.
Id., 517 U.S. at 312–13, 116 S. Ct. at 1310 (emphasis in original). Thus, under O’Connor, the
replacement cannot be “insignificantly younger;” he must be “substantially younger.”
Relying on O’Connor, the Fifth Circuit has explained that the fourth requirement of the
prima facie case is that the plaintiff prove that “she was either (i) replaced by someone
substantially younger or (ii) otherwise discharged because of her age.” Ripoll v. Dobard, 618 F.
App'x 188, 191 (5th Cir. 2015) (per curiam) (emphasis added) (citing Jackson v. Cal–W.
Packaging Corp., 602 F.3d 374, 378 (5th Cir. 2010) (citing O’Connor, 517 U.S. at 312–13, 116
S. Ct. 1307)). In Flanner v. Chase Inv. Servs. Corp., 600 F. App'x 914 (5th Cir. 2015) (per
curiam), the Fifth Circuit articulated the same standard from the same cases and stated:
The Supreme Court has clarified that the prima facie case requires evidence
adequate to create an inference that an employment decision was based on an
illegal discriminatory criterion. In the age-discrimination context, such an
inference cannot be drawn from the replacement of one worker with another
worker insignificantly younger. Thus, a plaintiff's replacement must be
“substantially younger” to create an inference of discrimination.

17

Id. at 917–18 (alterations, footnotes, and quotations omitted).
Defendant claims that this rule has applied in other ADEA cases (e.g., discharge,
termination, or replacement) but does not apply in failure-to-promote cases. But Defendant cites
to no authority, and provides no good reason, for this proposition. Moreover, case law from this
and other circuits shows that O’Connor applies in failure-to-promote cases. See Cline v. Par.,
622 F. App'x 423, 425 (5th Cir. 2015); Shelley v. Geren, 666 F.3d 599, 608 (9th Cir. 2012) (“In a
failure-to-promote case, a plaintiff may establish a prima facie case of discrimination in violation
of the ADEA by producing evidence that . . . (4) the promotion was given to a substantially
younger person.” (citations, one of which is O’Connor, omitted)); McKay v. U.S. Dep't of
Transp., 340 F.3d 695, 698 (8th Cir. 2003) (“First, the [district] court ruled that [the employee]
did not establish a prima facie case [of a failure to promote claim] because (i) . . . the selected
candidate[] was over age forty and therefore a member of the ADEA protected class, . . . . We
disagree. As to [the selected candidate’s] age, ‘the fact that a replacement is significantly
younger than the plaintiff’ satisfies this aspect of the prima facie case. [O’Connor, supra.].”);
Murphree v. Potter, 226 F. Supp. 2d 826, 831 (N.D. Miss. 2002) (“Such reasoning [from
O’Connor] applies with equal force in a failure to promote context. . . . The defendant has failed
to advance a sufficient rationale which would justify applying such a principle only in cases
other than a failure to promote context. [(citation omitted)]”). Thus, the Court will apply
O’Connor here.
As a result, the only question is whether Mr. Yates is substantially younger than the
Plaintiff. Yates was born on December 5, 1963. (Doc. 18-2 at 39–40, 45.) Plaintiff was born on
August 26, 1955. (Doc. 16-5 at 4; Doc. 16-5 at 4.) Consequently, there is a roughly eight and
one-quarter year difference in age between Yates and Plaintiff.

18

The Court finds this age difference is sufficient to satisfy the Plaintiff’s prima facie
burden. “Unlike some [other] circuits, [the Fifth Circuit] has not settled on a standard for what
age difference qualifies as ‘substantially younger’ such that an inference of age discrimination
may be made to establish a prima facie case.” Flanner, 600 F. App’x at 919 (citations omitted).
“This [circuit] has stated: ‘[t]he ADEA does not lend itself to a bright-line age rule . . . in which
replacement by a worker outside the protected category is a convenient proof guideline.’ ” Id.
(quoting Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1506 (5th Cir. 1988)); see also Ruth v.
Eka Chemicals, Inc., 92 F. Supp. 3d 526, 530 (N.D. Miss.), reconsideration denied, No. 13-165,
2015 WL 3673134 (N.D. Miss. June 12, 2015), and aff'd, 623 F. App'x 281 (5th Cir. 2015)
(“Neither the Supreme Court nor the Fifth Circuit has provided a bright-line rule to determine
which age differences are considered substantial and which are considered insubstantial.”
(citations omitted)). Nevertheless, as the district court stated in Ruth:
The Fifth Circuit has, however, stated in dicta that five years presents a “close
question” as to whether the age difference is legally sufficient, [Rachid v. Jack In
The Box, Inc., 376 F.3d 306, 313 (5th Cir. 2004)], and has held four years to be
insubstantial as a matter of law. Earle v. Aramark Corp., 247 Fed. Appx. 519, 523
(5th Cir. 2007).
Without any clear guidance on the issue, district courts within the Fifth Circuit
have routinely treated the fourth element as satisfied for summary judgment
purposes when the age difference between a plaintiff and his replacement is seven
years or more. See Frazier v. Lockheed Martin Operations Support, Inc., 2013
WL 2897897, at *4 (S.D. Miss. June 13, 2013) (finding that age differences of
seven, eight, and seventeen years were sufficient for purposes of the plaintiff's
prima facie case). See [Hall v. Sealy, Inc., 2011 WL 4389701, at *5 (N.D. Tex.
Sept. 21, 2011)] (declining “to conclude as a matter of law that an age difference
of more than nine years is insubstantial”); Bell v. Raytheon Co., 2009 WL
2365454, at *6 (N.D. Tex. July 31, 2009) (assuming that an approximately sevenyear difference is substantial); Daly v. Home Depot U.S.A., Inc., 2007 WL
4260900, at *5 (W.D. Tex. Dec. 3, 2007) (finding that a difference of seven years
is a “close question,” but assuming for summary judgment purposes that it is
sufficient); Cannon v. St. Paul Fire & Marine Ins. Co., 2005 WL 1107372, at *4
(N.D. Tex. May 6, 2005) (“The Court is not prepared to declare an age difference
of approximately seven years insubstantial as a matter of law.”).
19

Id., 92 F. Supp. 3d at 530–31; see also Baiamonte v. Sizeler Real Estate Mgmt. Co., No. CIV. A.
96-1732, 1997 WL 3256, at *3 (E.D. La. Jan. 3, 1997) (“with specific regard to the age
discrimination claims, the Court finds that the nine-year differential in age between the plaintiff
and her replacement does present a jury issue under O'Connor[.]”).
Based on these cases, the Court finds that the Plaintiff has made a prima facie burden of
discrimination; an eight and one-quarter age difference makes Yates “substantially younger”
than the Plaintiff for purposes of this prong of the analysis.
C. Legitimate, Nondiscriminatory Reasons
Because Plaintiff has made a prima facie case of discrimination, the burden shifts to the
Defendant to produce evidence of a legitimate, non-discriminatory reason for Yates being
selected for the job. Cline, 622 F. App'x at 425. Defendant quotes at length much of the above
testimony from Graves, Watts, Lynch, and Grant and argues that Yates was a “better fit” and
more qualified for the position that the Plaintiff. (See Doc. 16-2 at 10; Doc. 19 at 3.)
Preliminarily, the Court is skeptical of the Defendant’s vague claim that Yates was a
“better fit.” As the Fifth Circuit held in Patrick v. Ridge, 394 F.3d 311 (5th Cir. 2004):
In fact, the explanation given by [the employer], i.e., that [the employee] was not
“sufficiently suited” for the position–even including [the hiring official’s] belief
that she would not “fit in”–does not necessarily qualify as a “nondiscriminatory”
reason. After all, a hiring official's subjective belief that an individual would not
“fit in” or was “not sufficiently suited” for a job is at least as consistent with
discriminatory intent as it is with nondiscriminatory intent: The employer just
might have found the candidate “not sufficiently suited” because of a protected
trait such as age, race, or engaging in a protected activity. We hold as a matter of
law that justifying an adverse employment decision by offering a content-less and
nonspecific statement, such as that a candidate is not “sufficiently suited” for the
position, is not specific enough to meet a defendant employer's burden of
production under McDonnell Douglas. It is, at bottom, a non-reason.
Id. at 317.

20

Nevertheless, the Court finds that the Defendant has satisfied its burden of production;
viewing the statements of Graves, Watts, Lynch, and Grant as a whole, it is clear that some of
them believed that Yates had better qualifications, experience, or skills for the job. Specifically:


Graves pointed to his experience, explaining, “He worked as a truancy
interventionist, so he had good skills in working with the school
administrators.” (Doc. 16-5 at 11–12.) He dealt with difficult situations, had
a good rapport with administrators, and pleased them “with his handling of
documents.” (Doc. 16-5 at 11–12.) He was very familiar with district and had
the right people skills. (Doc. 16-5 at 11–12.) Additionally, in explaining her
discussion with the Plaintiff on the day following Yates’ selection, Graves
said that Plaintiff “did not get the position because she wasn’t the best person
for it, she did not have the best experience and wasn’t the most qualified.”
(Doc. 16-5 at 13–14.)



Though Grant supported the Plaintiff, he said that the final decision came
about through “[d]iscussions at the table about qualifications and abilities.”
(Doc. 16-5 at 22–23.)



Lynch said he could live with the choice of Mr. Yates because Lynch had seen
what Graves had said about Yates and because of Lynch’s own experience
with him. (Doc. 16-5 at 31–32.)



Watts testified that Yates “far exceeded everyone else . . . as far as what [he]
thought was needed within the district, which is total collaboration and
understanding of the principals and assistant principals and what they go
through and how they operate during the course of a day.” (Doc. 16-5 at 34–
35.) Watts pointed to Yates’ “internal experience with those people for a
couple of years in dealing with truancy,” particularly his experience with
parents, “very, very hostile” situations, and “shouting and hollering.” Watts
said it was “very, very important that [they] had someone who was
experienced in that” because of the need to deal with buses and irate parents.
(Doc. 16-5 at 34–35.)

Thus, Defendant has satisfied its burden at this stage of the McDonnell Douglas analysis.
“[T]he promotion of a better qualified applicant is a legitimate and nondiscriminatory reason for
preferring the successful applicant over the rejected employee who claims that the rejection was
discriminatory.” Price v. Fed. Exp. Corp., 283 F.3d 715, 721 n. 2 (5th Cir. 2002) (quoting
21

Jefferies v. Harris Cty. Cmty. Action Ass'n., 693 F.2d 589, 590 (5th Cir.1982)). The Court notes
that the only question here is whether the Defendant has “introduce[d] evidence which, taken as
true, would permit the conclusion that there was a nondiscriminatory reason for the adverse
action;” “the burden-of-production stage determination necessarily precedes the credibilityassessment stage.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509, 113 S. Ct. 2742, 2749,
125 L. Ed. 2d 407 (emphasis in original). In short, Defendant has satisfied its burden of
production, so the Court must turn to the final prong of the analysis.
D. Pretext
1. Parties’ Arguments
Defendant argues that all of the above evidence shows that there were legitimate reasons
for selecting Mr. Yates. Defendant addresses the after-interview meeting in which Graves stated
that she hoped the employee would work for ten years and states that this comment contained
“no mention of the age of anyone involved.” Defendant says there is no evidence that any
participant knew the age of the final two candidates.
The Defendant also argues that there is no evidence of disparate treatment. Addressing
Graves’ comment further, the Defendant relies on Hazen Paper Co. v. Biggins, 507 U.S. 604,
113 S. Ct. 1701, 123 L. Ed. 2d 338 (1993), where the Supreme Court said that there “is no
disparate treatment under ADEA when the factor motivating the employer is some feature other
than the employee’s age” and that it “would be incorrect to say that a decision based on years of
service – which is analytically distinct from age – is necessarily age based.” The Defendant
quotes Hazen at length and concludes by saying that Hazen “clearly draws a distinction between
years of service and a legitimate age based discrimination claim. There is no evidence to suggest

22

that her rejection was due to some belief that her productivity and competence had declined or
would decline.” (Doc. 16-2 at 16.)
Plaintiff concisely argues that an inference of discrimination can be drawn from the
following:
(a) Ms. Irvin had been working for the Board for [thirty-eight] years; Mr. Yates
had only been working for the Board for approximately six years.
(b) Ms. Irvin had been working in the Transportation Department for over
[fifteen] years; Mr. Yates had never worked in the Transportation Department.
(c) Ms. Irvin had performed the job duties of the Coordinator of Transportation
and had trained others how to perform those duties; Mr. Yates had done
neither.
(d) Ms. Irvin was told that she was not hired for the position because it was
expected that the person hired would work for [ten] or more years; Mr. Yates
was not told that he would be expected to [work] for at least [ten] years if
hired.
(e) Ms. Graves had direct line authority over the persons on the committee that
selected Mr. Yates for the position and used her position of authority to
convince the other members of the interview committee to be “team players”
and support her selection of Mr. Yates for the position.
(Doc. 18 at 9.) Plaintiff argues that Graves’ statement that Plaintiff “did not get the position
because we were looking for someone long-term” is, when viewed in a light most favorable to
the Plaintiff, an assumption that she, a fifty-nine year old, “was not expected to work 10
additional years – an age-based assumption specifically prohibited by the ADEA.” (Doc. 18 at
9.) Lastly, Plaintiff says that Hazen is not applicable:
In that case, an employee was terminated because he was “close to vesting” in the
company’s retirement program after nine years of service – not because of his
age. In the present case, Ms. Irvin was not promoted because of the assumption
made by Ms. Graves that Ms. Irvin, who was 59 years old, was not expected to
work 10 additional years (an issue that was not even raised with the person hired

23

for the position). This is the precise type of stereotype that is prohibited by the
ADEA.
(Doc. 18 at 10.)
Defendant responds that Plaintiff was a secretary, so she lacked the “daily interaction
with parents, principals, administrators and/or outside knowledge of the logistics and physical
boundaries of the transportation department” and thus did not have the “set of experiences and
skills that were so important to the committee members.” (Doc. 19 at 3.) Yates had those skills.
Defendant argues that Plaintiff can point to nothing making her a “better fit” or more qualified
than Yates. Defendant says that there is no evidence that the committee’s reasons were “weak,
implausible, inconsistent, incoherent or contradictory;” Yates “simply was and is more qualified
for the duties of that position.” (Doc. 19 at 3–4.) Defendant concludes that there was no
evidence of pretext, so Plaintiff’s claims should be dismissed.
2. Analysis
“If the employer provides a legitimate, non-discriminatory reason, then the burden shifts
back to the plaintiff to prove that the employer's proffered reason was not true–but was instead a
pretext for age discrimination–or that, even if the employer's reason is true, [s]he was terminated
because of h[er] age.” Palacios v. City of Crystal City, Tex., 634 F. App'x 399, 402 (5th Cir.
2015) (citation and quotations omitted). “At the summary judgment stage, the question is
whether the plaintiff has shown that there is a genuine issue of material fact as to whether this
reason was pretextual.” Id. (citation and quotation omitted). “A plaintiff may show [a genuine
issue of material fact regarding] pretext either through evidence of disparate treatment or by
showing that the employer's proffered explanation is false or unworthy of credence.” Id. (citation
and quotation omitted). The key issue with pretext is whether the employer's justification, “even
if incorrect, was the real reason for the plaintiff's termination. A plaintiff's prima facie case,
24

combined with sufficient evidence to find that the employer's asserted justification is false, may
permit the trier of fact to conclude that the employer unlawfully discriminated.” Goudeau v. Nat'l
Oilwell Varco, L.P., 793 F.3d 470, 476 (5th Cir. 2015) (alterations, citations, and quotations
omitted). “At the end of the day, the pretext inquiry asks whether there is sufficient evidence
demonstrating the falsity of the employer's explanation, taken together with the prima facie case,
to allow the jury to find that discrimination was the but-for cause” of the failure to promote. Id.
at 478.
Having carefully considered the law, facts in the record, and arguments of the parties, the
Court finds that a reasonable juror could conclude that age was the but-for cause of the
Defendant failing to promote the Plaintiff. The Court bases this conclusion on the following: (1)
the Plaintiff’s prima facie case; (2) the fact that she was clearly better qualified than Yates; and
(3) Graves’ comment about the Plaintiff not working for ten years, along with Graves’ position
of authority and influence over the other committee members.
First, the prima facie case was detailed above. In short, Plaintiff, a woman in her upper
fifties, was denied a promotion that went to someone substantially younger than she was. The
Court notes that, “although it does not defeat her prima facie case, the fact that [Yates] was
within the protected class is not irrelevant . . . . [Yates’] status as a protected class member . . .
cuts against any inference of discrimination by [Defendant] on the basis of age.” Murphree, 228
F. Supp. 2d at 837 (citations omitted). But, though weakened, the prima facie case is still
relevant on the issue of pretext. See Baiamonte, 1997 WL 3256, at *3 (“The Court does find
significant in the defendant's favor that the plaintiff was replaced by a 47 year old female with
computer skills and that all but one of the other [the employer’s] office managers were of the
same protected class as the plaintiff. However, with specific regard to the age discrimination

25

claims, the Court finds that the nine-year differential in age between the plaintiff and her
replacement does present a jury issue under O’Connor[.]”)
The second issue (qualifications) is a close call. “A showing that the unsuccessful
employee was ‘ “clearly better qualified” (as opposed to merely better or as qualified) than the
employees who are selected’ will be sufficient to prove that the employer's proffered reasons are
pretextual.” Moss 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)). To meet this burden, Plaintiff
“must present evidence from which a jury could conclude that ‘no reasonable person, in the
exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for
the job in question.’ ” Id. (quoting Deines v. Texas Dep't of Protective & Regulatory Servs., 164
F.3d 277, 280–81 (5th Cir. 1999)). “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.” Id. (alterations, citations, and quotations
omitted). “An attempt to equate years served with superior qualifications is unpersuasive.” Id. at
923 (alterations, citations, and quotations omitted). “Obviously, work experience is one
component of defining who is more qualified, but greater experience alone will not suffice to
raise a fact question as to whether one person is clearly more qualified than another.” Id. at 923
(citation and quotations omitted). “Thus, ‘the bar is set high for this kind of evidence.’ ” Id.
(quoting Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 357 (5th Cir.2001)). As the
Fifth Circuit has stated a number of times:
The ADEA was not intended to be a vehicle for judicial second-guessing of
employment decisions nor was it intended to transform the courts into personnel
managers. The ADEA cannot protect older employees from erroneous or even
arbitrary personnel decisions, but only from decisions which are unlawfully
motivated.

26

Id. at 926 (quoting Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1507–08 (5th Cir. 1988)).
Nevertheless, even considering this high burden, the Court finds, construing the evidence
in a light most favorable to the Plaintiff, that she has met the burden. Putting aside those parts of
the record that demonstrate the Plaintiff had superior experience1 (which, though relevant, are
not dispositive), the Court finds particularly important and convincing Grant’s testimony that the
Plaintiff trained him in his position as Supervisor, that she trains the Coordinator in his position,
and that her title as Secretary is “absolutely” a misnomer:
A:

It goes back to my statement earlier, and this is no offense to other
applicants, but prior to me getting there, Ms. Irvin was in the chair, so she
was basically coordinating and doing secretarial work before any of us got
to that department. She had the experience, the professionalism, the
organizational skills. I am who I am right now in that department not
because I get all of my information from the State Department or some
other agency, it came directly from Ms. Irvin. She has been the trainer for
myself, and she is the trainer now for any Coordinator that comes into that
office.
So with all of that longevity that she has as a Secretary and all of the
duties that go along with being a Coordinator, she was doing all of those
particulars prior to any of us getting there, so she had that, she possessed
those qualities.

Q:

Would the title “Secretary” be a misnomer as far as what Ms. Irvin has
done over the years in the department?

A;

Absolutely.

(Doc. 16-5 at 17.)

1
As stated above, Plaintiff had fifteen years of experience working in the Transportation Department (Doc. 16-5 at
4, 9). According to both Plaintiff and Larry Grant, the Plaintiff had performed the job duties of Coordinator of
Transportation prior to the creation of the position. (Doc. 18-2 at 9, 26–27). Grant, her supervisor, testified that
Plaintiff was capable of doing the job even at the time the position was created. (Doc. 18-2 at 27.) Conversely,
Yates had no experience in the Transportation Department and had worked only briefly as a truancy interventionist.
(See Doc. 18-2 at 34–35.)

27

Conversely, Yates’ alleged superior qualifications are vague and unclear; the committee
members say that he has “good rapport with the administrator” (Doc. 16-5 at 11–12), that he had
the right “people skills” (Doc. 16-5 at 11–12), that he had “total collaboration and understanding
of the assistant principals and what they go through and how they operate during the day”
through his time with truancy (Doc. 16-5 at 34–35), and that he dealt with “very, very hostile”
situations. (Doc. 16-5 at 34–35.) None of the administrators provide any specifics on how these
facts make Yates more qualified than someone who has performed the duties for the position and
who in fact trained the position’s supervisor. Yates himself referred to his “problem solving . . .
skills” (Doc. 18-2 at 37), which strike the Court as vague, entirely subjective, and unworthy of
credence.
In sum, drawing all inferences in the Plaintiff’s favor, a reasonable juror could have
found that no reasonable person, in the exercise of impartial judgment, could have chosen Yates
over the Plaintiff for the Coordinator job. This further supports a finding of pretext.
Third, “[r]emarks by a supervisor showing discriminatory animus may be utilized by a
plaintiff to demonstrate pretext.” Goudeau, 793 F.3d at 477 (citation and quotations omitted).
“This makes sense as the pretext inquiry is asking the ultimate question whether a jury could find
discrimination caused” the adverse employment action. See id. (citation omitted).
The Fifth Circuit has explained:
In a circumstantial case[,] . . . in which the discriminatory remarks are just one
ingredient in the overall evidentiary mix, we consider the remarks under a more
flexible standard. To be relevant evidence considered as part of a broader
circumstantial case, the comments must show: (1) discriminatory animus (2) on
the part of a person that is either primarily responsible for the challenged
employment action or by a person with influence or leverage over the relevant
decisionmaker.

28

Id. at 475–76 (finding that comments by supervisor about “old farts” and about employee
wearing “old man clothes” “easily meet this less stringent standard”) (citations and internal
quotations omitted); see also Machinchick v. PB Power, Inc., 398 F.3d 345, 353 (5th Cir. 2005)
(holding that vice president's e-mail announcing the continuation of his “recruiting plan” to
“strategically hire some younger engineers and designers to support and be entered by the current
staff,” along with “age stereotyping remarks” such as claiming an employee had a “ ‘low
motivation to adapt’ to change” and describing him as “inflexible,” “not adaptable,” and
possessing a “business-as-usual attitude,” was evidence of discrimination).
The Court finds that Plaintiff meets this standard. As stated above, Graves was asked if
she told the Plaintiff that “this was a position that [she] expected the person to work in for at
least [ten] or more years,” and Graves responded, “In my conversation in the interview telling
her she did not get the position, I did say that.” (Doc. 16-5 at 13–14.) Plaintiff was asked, “Did
she say that to you in a way that made you understand that she didn’t believe that you’d be there
for [ten] years?”, and she replied, “That’s what I got from it.” (Doc. 16-5 at 5; Doc. 18-2 at 14.)
A reasonable juror drawing inferences in the Plaintiff’s favor could conclude from Graves’
comment that she had a discriminatory animus and that the Plaintiff did not get the job because
of her age.
This conclusion is further supported by the testimony of Yates and one of the
committee’s own members. Yates testified that he did not recall Graves asking him in the job
interview that she would expect him to stay in that job for at least ten years, and Lynch testified
that he did not recall Graves telling the Plaintiff during her interview that whoever was hired
would be expected to work in the job at least ten years or more. (Doc. 18-2 at 39, 43.) These
facts support the conclusion that Graves’ explanation for the comment – that she was looking for

29

someone long term (Doc. 16-5 at 13–14) – was unworthy of credence and that age was the real
motivation for the statement.
Moreover, Lynch stated:
Q:

And when you heard that, what did you think she meant by that?

A:

Can I just state that the purpose of the meeting was really to try and help
an employee understand that even though you were not selected, you are
still a valuable employee.
That sentence to me, or whatever she said about the age didn’t appear to
me to be the point of the meeting.

Q:

But you did take it to be about her age, right?

A:

I vaguely remember what she said. It was about longevity or how much
time you have left. I can’t remember exactly how she said it.

(Doc. 18-2 at 44 (emphasis added).) Construing this exchange in a light most favorable to the
Plaintiff, the Court finds that even one of the Defendant’s own hiring officials interpreted the
comment as being about age.
Additionally, this remark was made by someone who was either “primarily responsible
for the challenged employment action or by a person with influence or leverage over the relevant
decisionmakers.” As explained above, Graves was the Assistant Superintendent and had
authority over the other committee members. (See Doc. 18-2 at 15–16, 19, 23.) Moreover, Grant
was asked if he “basically . . . conceded to Ms. Graves’ position,” and he replied, “Absolutely.”
(Doc. 16-5 at 23.) He also stated that “Ms. Graves [was] over all of us that was at that table,
including Mr. Lynch, so eventually we all decided that we will go in the direction of Mr. Yates.”
(Doc. 16-5 at 22–23.) This testimony indicates that all the committee members agreed to Yates
because of Graves’ authority.

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Construing all of this in a light most favorable to the Plaintiff, the Court finds that
Graves’ comments, combined with the prima facie case and the fact that the Plaintiff was
“clearly better qualified,” are sufficient to create a genuine issue of material fact on the issue of
pretext. That is, looking at the record as a whole and drawing all inferences in favor of the
Plaintiff, a reasonable juror could find that the Defendant’s stated reasons are unworthy of
credence and that age discrimination was the but-for cause of the employment decision.
The Court further finds that this decision is consistent with Hazen. There, plaintiff
worked as a technical director for a paper company owned and operated by two cousins. Hazen,
507 U.S. at 606, 113 S. Ct. at 1704. He was fired at the age of sixty-two. Id. He filed suit under
the ADEA. Id. The jury found in favor of the plaintiff. Id.
The First Circuit affirmed on the issue of liability, relying “heavily on evidence that [the
paper company and cousins] fired [the technical director] to prevent his pension benefits from
vesting.” Id., 507 U.S. at 607, 113 S. Ct. at 1704. The paper company’s “pension plan had a
[ten]-year vesting period and . . . [the plaintiff] would have reached the [ten]-year mark had he
worked ‘a few more weeks’ after being fired.” Id. The paper company offered to keep the
plaintiff as an advisor, which would not have entitled him to pension benefits. Id. The appellate
court found that a reasonable jury could have found that the plaintiff was fired “before his
pension rights vested . . . [and] that age was inextricably intertwined with the decision to fire
[him]. If it were not for [his] age, sixty-two, his pension rights would not have been within a
hairsbreadth of vesting.” Id., 507 U.S. at 607, 113 S. Ct. at 1705.
The Supreme Court granted writs on the following issue: “does an employer’s
interference with the vesting of pension benefits violate the ADEA?” Id., 507 U.S. at 608, 113 S.
Ct. at 1705. The high court noted the split in appellate courts on the issue and then “clarif[ied]

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that there is no disparate treatment under the ADEA when the factor motivating the employer is
some feature other than the employee’s age.” Id., 507 U.S. at 609, 113 S. Ct. at 1705. After
discussing the nature of disparate treatment, the Supreme Court explained:
Disparate treatment, thus defined, captures the essence of what Congress sought
to prohibit in the ADEA. It is the very essence of age discrimination for an older
employee to be fired because the employer believes that productivity and
competence decline with old age. As we explained in EEOC v. Wyoming, 460
U.S. 226, 103 S. Ct. 1054, 75 L. Ed. 2d 18 (1983), Congress' promulgation of the
ADEA was prompted by its concern that older workers were being deprived of
employment on the basis of inaccurate and stigmatizing stereotypes.
“Although age discrimination rarely was based on the sort of animus
motivating some other forms of discrimination, it was based in large part
on stereotypes unsupported by objective fact. . . . Moreover, the available
empirical evidence demonstrated that arbitrary age lines were in fact
generally unfounded and that, as an overall matter, the performance of
older workers was at least as good as that of younger workers.” Id., at 231,
103 S. Ct., at 1057-1058.
Thus the ADEA commands that “employers are to evaluate [older] employees . . .
on their merits and not their age.” Western Air Lines, Inc. v. Criswell, 472 U.S.
400, 422, 105 S. Ct. 2743, 2756, 86 L. Ed. 2d 321 (1985). The employer cannot
rely on age as a proxy for an employee's remaining characteristics, such as
productivity, but must instead focus on those factors directly.
When the employer's decision is wholly motivated by factors other than age, the
problem of inaccurate and stigmatizing stereotypes disappears. This is true even if
the motivating factor is correlated with age, as pension status typically is. Pension
plans typically provide that an employee's accrued benefits will become
nonforfeitable, or “vested,” once the employee completes a certain number of
years of service with the employer. See 1 J. Mamorsky, Employee Benefits Law §
5.03 (1992). On average, an older employee has had more years in the work force
than a younger employee, and thus may well have accumulated more years of
service with a particular employer. Yet an employee's age is analytically distinct
from his years of service. An employee who is younger than 40, and therefore
outside the class of older workers as defined by the ADEA, see 29 U.S.C. §
631(a), may have worked for a particular employer his entire career, while an
older worker may have been newly hired. Because age and years of service are
analytically distinct, an employer can take account of one while ignoring the
other, and thus it is incorrect to say that a decision based on years of service is
necessarily “age based.”

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Id, 507 U.S. at 610–11, 113 S. Ct. at 1706–07 (emphasis in original). The Supreme Court found
Hazen illustrative of this principle, explaining:
Perhaps it is true that older employees of Hazen Paper are more likely to be “close
to vesting” than younger employees. Yet a decision by the company to fire an
older employee solely because he has nine-plus years of service and therefore is
“close to vesting” would not constitute discriminatory treatment on the basis of
age. The prohibited stereotype (“Older employees are likely to be ___”) would
not have figured in this decision, and the attendant stigma would not ensue. The
decision would not be the result of an inaccurate and denigrating generalization
about age, but would rather represent an accurate judgment about the employeethat he indeed is “close to vesting.”
Id., 507 U.S. at 611–12, 113 S. Ct. at 1707. The Supreme Court acknowledged that an employer
could not legally fire an employee to prevent pension benefits from vesting, as this would violate
ERISA; “[b]ut it would not, without more, violate the ADEA. That law requires the employer to
ignore an employee’s age (absent a statutory exemption or defense); it does not specify further
characteristics that an employer must also ignore.” Id., 507 U.S. at 612, 113 S. Ct. at 1707. “An
employer [does not] violate the ADEA whenever its reason for firing an employee is improper in
any respect.” Id. (emphasis in original). The Supreme Court then provided by way of example:
“it cannot be true that an employer who fires an older black worker because the worker is black
thereby violates the ADEA. The employee's race is an improper reason, but it is improper under
Title VII, not the ADEA.” Id.
The Supreme Court then limited its opinion:
We do not preclude the possibility that an employer who targets employees with a
particular pension status on the assumption that these employees are likely to be
older thereby engages in age discrimination. Pension status may be a proxy for
age, not in the sense that the ADEA makes the two factors equivalent . . . , but in
the sense that the employer may suppose a correlation between the two factors
and act accordingly. Nor do we rule out the possibility of dual liability under
ERISA and the ADEA where the decision to fire the employee was motivated
both by the employee's age and by his pension status. Finally, we do not consider
the special case where an employee is about to vest in pension benefits as a result
of his age, rather than years of service . . . , and the employer fires the employee
in order to prevent vesting. That case is not presented here. Our holding is simply
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that an employer does not violate the ADEA just by interfering with an older
employee's pension benefits that would have vested by virtue of the employee's
years of service.
Id., 507 U.S. at 612–13, 113 S. Ct. at 1707–08. The Supreme Court ultimately remanded the
case to the Court of appeals to determine whether there was sufficient evidence for a reasonable
jury to find an ADEA violation. Id., 507 U.S. at 614, 113 S. Ct. at 1308.
Here, the Defendant’s reliance on Hazen is misplaced. Hazen held that an employer does
not violate the ADEA by interfering with an older employee’s pension benefits – or that there is
no disparate treatment under the ADEA when the factor motivating the employer is some feature
other than the employee’s age. But Hazen does not mean that age was not the but-for cause of
the employment action in this case. Defendant is, in a sense, begging the question.
Rather, the Court already held above that a reasonable juror could conclude from Graves’
comment, the prima facie case, and Plaintiff's clearly better qualifications that the Defendant did
deny a promotion to the Plaintiff because of her age. That is, a reasonable juror could conclude
that the Defendant based its decision, not on any vesting, but on an inaccurate and stigmatizing
stereotype that the Plaintiff would be unable or unwilling to work in ten years solely because her
productivity would fall and/or because she was already fifty-nine. As Hazen said, the ADEA
commands that “employers are to evaluate [older] employees . . . on their merits and not their
age,” id., 507 U.S. at 611, 113 S. Ct. at 1706 (quoting Western Air Lines, Inc., 472 U.S. at 422,
105 S. Ct. at 2756), and, construing Graves’ comment in a light most favorable to the Plaintiff,
Defendant failed to do so here. Unlike Hazen, when the Court draws all inferences in favor of
the Plaintiff, it must conclude that age was the but-for cause of the employment decision.
In sum, considering (1) the Plaintiff’s prima facie case; (2) the fact that Plaintiff was
clearly better qualified than Yates; and (3) Graves’ comment and her authority over the other
members of the committee, a reasonable juror could conclude that the Plaintiff’s offered reasons
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are unworthy of credence and that Plaintiff was discriminated against because of her age. Given
this genuine issue of material fact, summary judgment is not warranted, and the case should
proceed to trial.
V.

Conclusion
Accordingly,
IT IS ORDERED that the Motion for Summary Judgment (Doc. 16) filed by Defendant

Ascension Parish School Board is DENIED.
Signed in Baton Rouge, Louisiana, on January 24, 2017.

S

JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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