Slack v. McHugh et al
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the Clerk shall substitute Robert M. Speer, in his capacity as the Acting Secretary of the Department of the Army, as the proper party defendant. IT IS FURTHER ORDERED that Defendants Motion for Summary Judgment (ECF No. 20) is GRANTED.IT IS FURTHER ORDERED that Plaintiffs Motion to Strike Exhibits D and E toDefendants Motion for Summary Judgment and Portions of Testimony of James Rudy and Douglas Jump (ECF No. 38.) is DENIED as moot. 20 20 Signed by District Judge Jean C. Hamilton on 6/7/17. (CLA)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
ROBERT L. SLACK,
ROBERT M. SPEER,1
ACTING SECRETARY OF THE ARMY
Case No. 4:15-cv-01853-JCH
MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion for Summary Judgment, filed on
March 13, 2017. (ECF No. 20.) The Motion has been fully briefed and is ready for disposition.
Also pending before the Court is Plaintiff’s Motion to Strike Exhibits D and E to Defendant’s
Motion for Summary Judgment and Portions of Testimony of James Rudy and Douglas Jump.
(ECF No. 38.) For the reasons set forth below, the Court will grant Defendant’s Motion.
Because the Court does not base its summary judgment determination upon the exhibits or
testimony objected to in Plaintiff’s Motion, the Court will also deny Plaintiff’s Motion as moot.
On December 14, 2015, Plaintiff Robert Slack filed this action pursuant to the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”), alleging that he had
applied for a towboat operator position with the Department of the Army, and that because of his
Robert M. Speer, the Acting Secretary of the Department of the Army, is substituted as the
proper party defendant. See Fed. R. Civ. P. 25(d).
age he was not selected. (ECF No. 1.) The summary judgment record reveals the following
From 2008 to the time of the relevant job posting, Plaintiff, age 72, was employed by the
U.S. Army Corps of Engineers (“Corps”) as a Master Towboat Operator stationed on the
Mississippi River. Plaintiff had received a Master of Towing License from the U.S. Coast Guard
in 2005, and he had assisted with and operated various towboats, primarily on the Mississippi
River, since 2001.
In March 2010, Plaintiff applied for a towboat operator position with the Corps on the
Missouri River (hereinafter, the “Position”). The Position was ultimately offered to and accepted
by David Heye, who is approximately seventeen years younger than Plaintiff. Mr. Heye had
received a Master of Towing License from the U.S. Coast Guard in 2004, he had prior
experience as the Officer in Charge (a position equivalent to that of Master Towboat Operator)
of a U.S. Coast Guard towboat stationed on the Missouri River from 2005 until 2009, and he had
experience as the Officer in Charge of U.S. Coast Guard vessels dating back to 1997.
The selecting officials for the Position were Corps supervisors James Rudy and Douglas
Jump. Mr. Rudy and Mr. Jump independently ranked the candidates’ resumes. Mr. Rudy
utilized the following criteria:
(1) Coast Guard towboat operator’s licensure; (2) towboat
operator experience; (3) Missouri River experience; (4) input from current supervisor or
references; and (5) miscellaneous information, such as awards, specialized education, type of
discharge from the military, etc. Mr. Jump exclusively considered experience on the Missouri
River, since candidates with such experience would require less training and instruction. No
interviews were held for any of the candidates, and neither Mr. Rudy nor Mr. Jump had ever met
Plaintiff or Mr. Heye. Of the top eight candidates, both Mr. Rudy and Mr. Jump ranked Mr.
Heye first, Mr. Rudy ranked Plaintiff fifth, and Mr. Jump ranked Plaintiff fourth.
Statement of Uncontroverted Material Facts, ECF No. 22, ¶¶ 3, 6, 9, 14-22, 43-47, 49, 52-54, 5659.)
SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment shall be
granted 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.” In ruling on a motion for summary judgment,
a court is required to view the facts in the light most favorable to the non-moving party and must
give that party the benefit of all reasonable inferences that may be drawn from the record. See
Hott v. Hennepin Cnty., Minn., 260 F.3d 901, 904-05 (8th Cir. 2001).
The moving party bears the burden of showing the absence of a genuine issue of material
fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). When a summary
judgment motion is properly supported by evidence, the burden then shifts to the non-moving
party who must set forth affirmative evidence showing that there is a genuine issue for trial. See
id. at 256-57. The non-moving party may not rest on the allegations in his pleadings, but must
set forth specific facts showing that a genuine issue of material fact exists. See Fed. R. Civ. P.
56(c); Stone Motor Co. v. Gen. Motors Corp., 293 F.3d 456, 465 (8th Cir. 2002). Self-serving,
conclusory statements without support are not sufficient to defeat summary judgment. See
Armour & Co., Inc. v. Inver Grove Heights, 2 F.3d 276, 279 (8th Cir. 1993).
The ADEA prohibits discrimination against employees, age 40 and over, because of their
age. 29 U.S.C. §§ 623(a)(1), 631(a). “In order to prove his claim, [a plaintiff] must show, by a
preponderance of the evidence, that age was the ‘but for’ cause of the challenged adverse
employment action.” Haigh v. Gelita USA, Inc., 632 F.3d 464, 468 (8th Cir. 2011) (citing Gross
v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009)). Where, as here, a plaintiff relies on
circumstantial rather than direct evidence of age discrimination, “his claims are analyzed under
the familiar burden-shifting scheme of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 80203 (1973).” Id. (applying McDonnell Douglas framework to ADEA claim).
Under the McDonnell Douglas framework, a plaintiff must first establish a prima facie
case of age discrimination by showing (1) that he was in the protected age group (over 40), (2)
that he was qualified for the position, (3) that he was not hired, and (4) that a younger person was
hired. See Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 515 (8th Cir. 2011); see
also Onyiah v. St. Cloud State Univ., 684 F.3d 711, 719 (8th Cir. 2012). Once the plaintiff
establishes a prima facie case of discrimination, the burden of production then shifts to the
employer to “articulate a legitimate nondiscriminatory reason for its employment action.”
Tusing, 639 F.3d at 515 (quotation and citation omitted). If the employer meets its burden, the
burden “shifts back to the employee to demonstrate by a preponderance of the evidence that the
stated non-discriminatory rationale was a mere pretext for discrimination.” Id. (quotation and
“To survive summary judgment, an employee must both discredit the
employer’s articulated reason and demonstrate the circumstances permit a reasonable inference
of discriminatory animus.” Johnson v. Securitas Sec. Servs. USA, Inc., 769 F.3d 605, 611 (8th
Cir. 2014) (quotation and citation omitted).
Defendant argues that Plaintiff has failed to establish a prima facie case of age
discrimination because the record shows that Mr. Heye was more qualified for the Position, and
that Plaintiff was therefore not similarly situated to Mr. Heye. Defendant further argues that
Plaintiff cannot demonstrate pretext, as he has failed to show that Defendant’s proffered reason
for hiring Mr. Heye (i.e., Mr. Heye’s superior qualifications) was false, and that age was the real
reason behind the employment action. (ECF No. 21.)
Plaintiff counters that he need not establish that Mr. Heye was similarly situated to him in
order to make a prima facie showing of failure-to-hire age discrimination, and that there exists a
genuine issue of material fact regarding whether Mr. Heye was more qualified than Plaintiff, and
thus whether Defendant’s proffered reason for its hiring action was a mere pretext. Plaintiff
argues that his qualifications—specifically, his over twenty years of experience with the Corps,
his experience operating tow boats for approximately eight or nine years, and his Master of
Towing license on western rivers—exceeded those of Mr. Heye’s.2 (ECF No. 37.)
Assuming Plaintiff has succeeded in establishing a prima facie case of age
discrimination, the Court nevertheless concludes that he has failed to offer sufficient evidence to
raise a genuine issue of material fact regarding whether Defendant’s proffered reason for its
employment action was merely a pretext for age discrimination. See Tusing, 639 F.3d at 515.
Contrary to Plaintiff’s assertions that he was more qualified for the Position, the summary
judgment record demonstrates beyond genuine dispute that, compared to Plaintiff, Mr. Heye had
his Master of Towing license for longer and possessed more experience on the Missouri River
and as an Officer in Charge, and that the selecting officials considered these factors in ranking
the candidates’ resumes. See Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 793 (8th
Cir. 2011) (fact that plaintiff may have been capable of filling role, or that he had specific
strengths as candidate, did not show pretext); Wingate v. Gage Cnty. Sch. Dist., No. 43, 528 F.3d
To the extent Plaintiff argues that Defendant’s failure to hire him for essentially the same
position in 2009 serves as evidence of pretext, the Court disagrees. Neither Mr. Rudy nor Mr.
Jump were involved as selecting officials in connection with the 2009 job posting, and without
additional information regarding how the candidates, including Plaintiff, were evaluated at that
time, a reasonable juror could not infer that Defendant “makes discriminatory hiring
decision[s].” (ECF No. 37 at 10.)
1074, 1079-80 (8th Cir. 2008) (if comparison of plaintiff and selected candidate reveals that
plaintiff was only similarly qualified or not as qualified as selected candidate, then no inference
of age discrimination arises); see also Torgerson v. City of Rochester, 643 F.3d 1031, 1051 (8th
Cir. 2011) (en banc) (plaintiff has burden to prove that he and top applicant were similarly
situated in all relevant respects—“a rigorous standard at the pretext stage”); Kincaid v. City of
Omaha, 378 F.3d 799, 805 (8th Cir. 2004) (“[I]t is the employer’s role to identify those strengths
that constitute the best qualified candidate….[T]he employment-discrimination laws have not
vested in the federal courts the authority to sit as super-personnel departments reviewing the
wisdom or fairness of business judgments, except to the extent that those judgments involve
In view of the foregoing, the Court finds that Defendant is entitled to summary judgment.
IT IS HEREBY ORDERED that the Clerk shall substitute Robert M. Speer, in his
capacity as the Acting Secretary of the Department of the Army, as the proper party defendant.
IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment (ECF
No. 20) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike Exhibits D and E to
Defendant’s Motion for Summary Judgment and Portions of Testimony of James Rudy and
Douglas Jump (ECF No. 38.) is DENIED as moot.
Dated this _7th__ day of June, 2017.
/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE
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