Smith v. LaHood et al
Filing
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ORDER granting 31 Motion for Summary Judgment. Signed by District Judge Victoria A. Roberts. (CPin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PHILLIP T. SMITH,
Plaintiff,
No. 12-cv-10649
Honorable Victoria A. Roberts
v.
RAYMOND L. LAHOOD, Secretary
Department of Transportation and
JOHN WHITEHURST,
Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Phillip T. Smith (“Smith”) filed this action against Raymond Lahood and John
Whitehurst alleging he was not selected for an air traffic controller position because of his age,
in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.
Smith says that the evidence establishes direct and indirect discrimination.
By stipulation, Whitehurst was dismissed. LaHood filed this motion for summary
judgment saying that Smith was not hired because he received a bad reference.
LaHood’s motion is GRANTED. This Complaint is DISMISSED. There was no age
discrimination. Age could not be ascertained from the applications; thus, there could be no
direct discrimination. LaHood establishes a legitimate nondiscriminatory reason for not hiring
Smith; and, Smith fails to demonstrate pretext. This defeats Smith’s claim of indirect
discrimination.
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II. BACKGROUND
Smith is an air traffic controller specialist at the Flint Bishop Airport (“FNT”); he is
certified at FNT. Smith -- and forty-eight others-- applied for one of the seven open air traffic
control specialist positions at Detroit Metropolitan Airport (“DTW”). At the time of applying,
Smith had more than twenty-two years of experience and forty-two awards. He was also over
forty.
Human resources for the Federal Aviation Administration (“FAA”) screened the
applications, and found thirty-nine qualified. Their applications were sent to DTW air traffic
manager, Gary Ancinec; he delegated the evaluation and recommendation of candidates to
operations manager Whitehurst. Whitehurst was to make recommendations for Ancinec’s final
approval.
Ancinec told Whitehurst to pick applicants who: (1) could be trained and certified as
controllers at DTW; (2) came highly recommended by current and former supervisors; and (3)
would bring a positive attitude to the DTW facility.
Whitehurst had a specific list of questions to ask each applicant’s manager:
[1] Can you tell me some information about the candidates’ [sic] abilities?
[2] Is the employee a team player and do they [sic] work well with others?
[3] Are they [sic] able to handle difficult situations well?
[4] What are the strengths of this employee?
[5] What are the weaknesses of this employee?
[6] Please tell me about the attitude of the employee?
[7] What positive contributions has this employee brought to the work environment?
[8] Do they [sic] take that extra effort/step to help of their [sic] co-workers or provide
quality service?
[9] Is the employee reliable?
[10] Are there any issues with this employee?
[11] Based on your knowledge of the employees’ [sic] performance, do [sic] believe
they [sic] possess [sic] the abilities to learn to effectively control the increased traffic
volume at DTW?
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[12] If they [sic] were [sic] selected, when would you be able to release this
employee?
[13] Do you have anything further you would like to add?
Whitehurst contacted James Schneider, Smith’s manager. While Schneider said Smith
was the “strongest of all candidates from FNT,” he declined to comment on Smith’s
interpersonal skills. Specifically, Whitehurst asked Schneider whether Smith was “a team
player.” Schneider evaded the question telling him that Smith had “somewhat of a Flint
attitude.” Schneider does not deny this testimony.
Schneider testified that as Whitehurst probed further into Smith’s interpersonal skills,
Schneider discussed that Smith could be adversarial. Schneider and Whitehurst agree that no
comment was made about Smith’s ability to work with others.
Whitehurst selected his top candidates; he included Smith, but ranked him lowest
because his reference check was questionable.
Whitehurst met with Ancinec to discuss his recommendations. Whitehurst informed
Ancinec of his concern with Smith’s reference. Ancinec then called Christina Hartges, who he
believed was Smith’s former Flint supervisor and who Ancinec had a prior working relationship
with, to gather information about Smith’s personality.
Hartges did not give Smith a positive recommendation, describing Smith as a “trouble
maker.” Ancinec then removed Smith’s name from the list of recommended candidates.
Smith says that this call to Hartges was not mentioned in the EEOC investigation.
Further, Smith says Hartges was not qualified to provide a reference for him because she was:
(1) not his supervisor and (2) only knew him for eight months. He also says that Ancinec did not
conduct two reference checks for other candidates.
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The seven selected air traffic controller specialists were all under forty; the oldest was
thirty-five. All but one had under three years experience; the thirty-five year old applicant had
fifteen and twelve awards. And, all seven received strong, positive recommendations. LaHood
says the candidates were primarily selected based on these positive recommendations.
Smith alleges that the seven were hired because they were young. He alleges that before
the selections were announced, Justin Dolfus, a young trainee controller who was not yet
certified, told him that he spoke with Whitehurst. During their conversation, Whitehurst said he
was “not going to select anyone trying to get their high-three.” Dolfus testified that Whitehurst
did not make the statement and Dolfus did not tell Smith anything.
Smith argues that this comment shows direct evidence of discrimination. In the
alternative, he says that there is circumstantial evidence of discrimination which warrants jury
review.
III.
STANDARD OF REVIEW
The Court will 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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986). A fact is material if
it could affect the outcome of the case based on the governing substantive law. Id. at 248. A
dispute about a material fact is genuine if on review of the evidence, a reasonable jury could find
in favor of the nonmoving party. Id.
The moving party bears the initial burden to demonstrate the absence of a genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets this
burden, the nonmoving party must “go beyond the pleadings and...designate specific facts
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showing that there is a genuine issue for trial.” Id. at 324. The Court may grant a motion for
summary judgment if the nonmoving party who has the burden of proof at trial fails to make a
showing sufficient to establish the existence of an element that is essential to that party’s case.
See Muncie Power Prods., Inc. v. United Tech. Auto., Inc., 328 F. 3d 870, 873 (6th Cir. 2003).
“The mere existence of a scintilla of evidence in support of the plaintiff’s position will be
insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”
Anderson, 477 U.S. at 252. “Conclusory allegations do not create a genuine issue of material fact
which precludes summary judgment.” Johari v. Big Easy Restaurants, Inc., 78 F. App’x 546,
548 (6th Cir. 2003).
When reviewing a summary judgment motion, the Court must view the evidence and all
inferences drawn from it in the light most favorable to the nonmoving party. Kochins v. LindenAlimak, Inc., 799 F.2d 1128, 1133 (6th Cir. 1986). The Court’s function at the summary
judgment stage “is not to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.
III.
ANALYSIS
Age discrimination can be proven by either direct or indirect, i.e., circumstantial
evidence. Blizzard v. Marion Technical Coll., 698 F.3d 275, 283 (6th Cir. 2012) (quoting Geiger
v. Tower Auto., 579 F.3d 614, 620 (6th Cir. 2009)); Manzer v. Diamond Shamrock Chemicals, 29
F.3d 1078 (6th Cir. 1994). If an employee establishes direct evidence, he must also show that the
discrimination was the “but for” cause of the discriminatory treatment.
When there is no direct evidence of age discrimination, the claim is analyzed using the
burden-shifting framework of McDonnell Douglas, Corp. v. Green, 411 U.S. 792 (1973).
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Blizzard, 698 at 283.
A.
Direct Evidence
Smith says that Whitehurst’s alleged comment to Dolfus that he was “not going to select
anyone trying to get their high-three,” is direct evidence of discrimination.
Lahood says that the statement is hearsay within hearsay and cannot create a genuine fact
dispute. Alternatively, Lahood argues that there is no direct discrimination because the term
high three relates to pensions, not age.
The Court need not determine whether this statement is admissible because a straight
forward interpretation of Whitehurst’s alleged statement does not implicate age discrimination.
“Direct evidence of discrimination is that evidence which, if believed, requires the conclusion
that unlawful discrimination was at least a motivating factor in the employer’s actions.” Geiger
v. Tower Auto., 579 F.3d 614, 620 (6th Cir. 2009) (quoting Wexler v. White’s Fine Furniture,
Inc., 317 F.3d 564, 570 (6th Cir. 2003)).
Allegedly saying one will “[n]ot select anyone trying to get their high-three[,]” does not
mean one will not hire someone who is old. High three refers to the highest salary obtained by
averaging salaries over a three-year time period and is relevant to calculating pensions. It is a
term of art in the FAA. The high-three can be earned anytime during one’s career.
Interpretation of the statement means that Whitehurst would not hire a person who was seeking
higher pay than s/he received throughout his/her career. While all controllers must retire at age
fifty-six, there is no age correlation.
And, Smith fails to show how the statement could relate to age. Nothing in the record
shows that the older a controller is, the higher the pay. Nor does the evidence show that the
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length of employment impacts pay.
Importantly, an applicant’s age could not be determined from the application.
Undisputedly, no applicant disclosed age. The only experience listed on the application was
military and controller. None of the applicants was contacted or had a face-to-face interview.
There were no telephone interviews. Each packet was analyzed based on telephone interviews
with supervisors only.
Even if this evidence did show evidence of direct discrimination, Smith’s claim would
fail because he cannot show that age was the “but-for” cause. Gross v. FBL Fin. Servs., Inc., 557
U.S. 167, 177 (2009) (employee has the burden of proof to establish that “age was the ‘but-for’
cause of adverse action.”). “But-for” means that if the discriminatory action was removed,
Smith would have received the job. Geiger, 579 F.3d at 621.
Smith’s reference from Schneider alone defeats his claim. Schneider is a manager who
insinuated that Smith was a “trouble” employee. As Whitehurst probed, Schneider admittedly
evaded his questions. Concerned with this reference, Ancinec contacted someone whom he
trusted in Flint to provide a frank opinion; he discovered that Smith was perceived as having a
bad attitude. Smith’s failure to receive an offer was not related to his age; it was based on his
reference.
There is no direct evidence of age discrimination.
B.
Indirect Evidence
Alternatively, Smith argues that even if his statement is inadmissible, he can prevail
under the McDonnell Douglas framework. He is wrong.
To establish a prima facie case of age discrimination, Smith must show that: “(1) he was
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at least 40 years old at the time of the alleged discrimination, (2) he was subjected to an adverse
employment action, (3) he was otherwise qualified for the position, and (4) he was rejected and
someone outside the protected class was selected.” Harris v. Metro Gov’t of Nashville &
Davidson Cnty., Tenn., 594 F.3d 476, 485 (6th Cir. 2010). To overcome a prima facie case of
discrimination, an employer must “articulate a legitimate nondiscriminatory reason” for its
action. See Barnes v. GenCorp Inc., 896 F.3d 1457, 1465 (6th Cir. 1990) (citing Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)). Afterwards, the burden shifts to
Smith to prove by a preponderance of the evidence that LaHood’s asserted reasons “were not its
true reasons, but were a pretext for discrimination.” Id. at 1464.
Assuming arguendo that Smith can establish a prima facie case, his claim fails because
Ancinec had a legitimate non-discriminatory reason for deciding not to hire Smith. And, Smith
shows no pretext.
To establish pretext, Smith must show that the proffered reason:
(1) has no basis in fact, (2) did not actually motivate the defendant’s challenged
conduct, or (3) was insufficient to warrant the challenged conduct. Wexler v. White’s
Furniture, Inc., 317 F.3d 564, 576 (6th Cir. 2003) (citing Dews v. A.B. Dick Co., 231
F.3d 1016, 1021 (6th Cir. 2000).
Id.
“The three-part test need not be applied rigidly. Blizzard, 698 at 285. “Pretext is a
commonsense inquiry: did the employer [not hire Smith] for the stated reason or not?” Chen, 580
F.3d at 400 n.4.
Neither Smith’s current nor former manager gave Smith a positive recommendation on
attitude, reliability, or positive contributions to the Flint facility. Schneider said Smith could be
adversarial; Hartges described him as a trouble maker.
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All seven of the selected employees received glowing recommendations which included
comments like “good team player,” “very good attitude” and “personable, easy going.”
LaHood says Smith’s bad references prevented him from getting the job; and, Smith
presents no evidence from which a jury could reasonably reject LaHood’s explanation for
declining to hire him. Whitehurst and Ancinec placed heavy emphasis on employee morale and
were free to do so. Indeed, while a thirty-five year old controller was hired, that applicant came
highly recommended.
Smith’s attempt to establish pretext by arguing that no applicant over forty was hired is
unavailing. To establish pretext, Smith must show that he was more qualified than the applicants
hired, i.e., that he had better recommendations and more experience. See Bender v. Hecht's
Dep't Stores, 455 F.3d 612 (6th Cir. Tenn. 2006).
While Smith was more experienced, his recommendations did not check out; he was not
more qualified. No one who received a poor recommendation was hired, regardless of age.
Smith’s experience evidence is not enough for his claim to survive summary judgment.
Additionally, the Court cannot infer discrimination based on a statistical analysis because
Smith does not provide all applicants’ data.
There is no pretext; Ancinec and Whitehurst decided not to hire Smith because he
received a bad recommendation.
V. CONCLUSION
LaHood’s motion for summary judgment is GRANTED. This Complaint is
DISMISSED. There was no age discrimination. Age could not be ascertained from the
applications; thus, there could be no direct discrimination. LaHood establishes a legitimate
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nondiscriminatory reason for not hiring Smith; and, Smith fails to demonstrate pretext. This
defeats Smith’s indirect claim of discrimination.
IT IS ORDERED.
s/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: October 18, 2013
The undersigned certifies that a copy of this
document was served on the attorneys of record
by electronic means or U.S. Mail on October 18,
2013.
s/Linda Vertriest
Deputy Clerk
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