Harvey v. City of Arlington, Texas
Filing
41
Memorandum Opinion and Order granting 27 Motion for Summary Judgment filed by City of Arlington, Texas: The court ORDERS that defendant's motion for summary judgment be, and is hereby, granted and that all claims and causes of action asserted by plaintiff against defendant be, and are hereby, dismissed. (See order for specifics.) (Ordered by Judge John McBryde on 4/24/2014) (mdf)
U.S. DISTRICT COURT
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NORTHERN DISTRICT OF TEXAS
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IN THE UNITED STATES DISTRI
NORTHERN DISTRICT OF TE
FORT WORTH DIVISION AS
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Plaintiff,
VS.
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CITY OF ARLINGTON, TEXAS,
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CLERK, U.S. DISTRlCi
THOMAS A. HARVEY,
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Defendant.
NO. 4:13-CV-143-A
MEMORANDUM OPINION
and
ORDER
After having considered the motion for summary judgment of
defendant, City of Arlington, Texas, the response thereto of
plaintiff, Thomas A. Harvey, the entire summary judgment record,
and pertinent legal authorities, the court has concluded that the
motion should be granted.
1.
Nature of Plaintiff's Complaint
This action was initiated by plaintiff, acting pro se, on
February 22, 2013, by the filing of a four-sentence complaint,
which read, in its entirety, as follows:
The City, by and through it's [sic] Fire Chief, has
adopted an unlawful emplOYment practice - namely it now
denies promotion and positions to employees at or over
the age of 50. This includes me. I request trial by
jury. I am filing suit within 90 days of my receipt of
the EEOC "Notice of Right to Sue" letter.
Compl. at 1.
;
'After plaintiff obtained counsel, he, through his counsel,
filed an amended complaint on March 13, 2013.
While the amended
complaint was significantly more verbose than the original, it
makes essentially the same complaint plaintiff made originally.
When plaintiff stated his contentions in a joint status report
the parties filed on May 9, 2013, he described them as follows:
This is an emploYment discrimination case. It is
based on age, and it involves the Clty's decision not
to promote Harvey to the position of Battalion Chief in
its Fire Department.
The City has a longstanding practice in its Fire
Department of not promoting to the position of
Battalion Chief any individual whose age is fifty (50)
years or older. Consistent with this practice, i.e.,
no one fifty (50) years or older need apply, the City
has refused to promote Harvey, who is over the age of
fifty, to the position of Battalion Chief.
The City's decision(s) not to promote Harvey to
the position of Battalion Chief in its Fire Department
decision violates 29 U.S.C. §623(a) (1) of the Age
Discrimination in EmploYment Act ("ADEA").
Harvey seeks damages and equitable relief for the
City's unlawful emploYment practices pursuant to the
ADEA.
Joint Status Report at 1,
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1.
2
II.
Grounds of Defendant's Motion;
and Nature of Plaintiff's Response
A.
Grounds of the Motion
Defendant notes in its motion that plaintiff mentions in his
amended complaint that four persons were promoted to the
Battalion Chief position on occasions when plaintiff was seeking
that position.
Two of those persons, Jackie Parker ("Parker")
and Joe Morris ("Morris"), were promoted on November 8, 2011,
another, Wes Montgomery ("Montgomery"), was promoted on May 2,
2012, and the fourth, Gerald Randall ("Randall"), was promoted on
November 8, 2012.
Defendant asserts that to whatever extent
plaintiff is making claims related to his failures to obtain the
positions to which Parker and Morris were promoted, those claims
would be time barred, and should be dismissed.
As to the
selections of Montgomery and Randall over plaintiff, defendant
contends that plaintiff cannot adduce evidence of all elements of
a prima facie case in either of those instances because neither
Montgomery nor Randall was sUbstantially younger than plaintiff
at the time of the promotions.
Significant attention is devoted by defendant in its motion,
brief, and appendix to development of summary judgment evidence
of defendant's justifications for failing to promote plaintiff to
3
the Battalion Chief position each of the four times plaintiff was
unsuccessful.
Defendant asserts that, even if plaintiff could
adduce evidence in support of all of the elements of a prima
facie case of age discrimination in any of the instances when he
sought a promotion to Battalion Chief, defendant has articulated
as to each instance a legitimate, non-discriminatory reason for
the denial of the promotion and that plaintiff can adduce no
probative evidence that in any instance defendant's proffered
reason was not true but was a pretext for intentional
discrimination.
In conclusion, defendant contends that plaintiff cannot
adduce evidence from which it can be inferred that the adverse
employment decisions about which he complains were based on age,
or, put another way, defendant maintains that plaintiff cannot
adduce evidence sufficient to raise a genuine issue of material
fact that defendant's proffered reasons for its promotion
decisions were a pretext for age discrimination and that "but
for" plaintiff's age he would have been promoted.
B.
Plaintiff's Response
Plaintiff acknowledges that any age discrimination claim he
might have had based on the Parker and Morris promotions to
Battalion Chief positions are barred by limitations, and cannot
form the basis of any failure-to-promote claim.
4
PI.'s Resp. Br.
at 1-2,
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1.
He contends that the summary judgment evidence he
has presented with his response raises issues of fact as to all
elements of a prima facie case related to the Montgomery and
Randall promotions.
Plaintiff does not respond head-on to defendant's contention
that Montgomery and Randall were not significantly younger than
him when they received the promotions to Battalion Chief.
Rather, plaintiff takes the position that his summary jUdgment
evidence establishes that defendant had a policy of not promoting
anyone to the Battalion Chief position who is fifty years of age
or older.
According to plaintiff, that alleged fact raises an
issue that his failure to be promoted was the result of
prohibited age discrimination.
III.
Undisputed Evidence
The following is an overview of evidence pertinent to the
motion for summary jUdgment that is undisputed in the summary
judgment record:
Plaintiff is a former employee of the fire department of the
City of Arlington, Texas.
resigned in 2013.
He was a Captain at the time he
Don Crowson ("Chief Crowson") is the Chief of
the Arlington Fire Department, and has been so employed since
July 26, 2010.
5
In September 2011 there were two openings for Battalion
Chief positions in the Arlington Fire Department.
Battalion
Chief is an important, high-level supervisory and managerial
position within the fire department.
The position is just below
Assistant Chief, and it requires oversight of large numbers of
operational personnel, as well as direct involvement in the
management of departmental resources and business operations,
promulgation of departmental policy, and interaction and
cooperation with citizens, local businesses, and community
entities.
A Battalion Chief selection process was announced on
September 30, 2011.
The process started with interviews by a
team of three Assistant Chiefs.
interviewed by Chief Crowson.
After that, each candidate was
Thirteen people were interviewed
for the two positions, including plaintiff, Parker, Morris, and
Montgomery.
Chief Crowson concluded that plaintiff's interview
performance had been average.
However, plaintiff's responses to
Chief Crowson's questions tended to focus solely upon plaintiff's
job performance in fire suppression duties, which was only a
small part of the emergency services provided by the fire
department.
His interview performance lacked an appreciation of
the overall, city-wide mission of the fire department, focusing
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instead on concerns restricted to his local firenouse and
district.
In addition to information gained from the interviews, Chief
Crowson spoke with each applicant's immediate supervisor to
solicit the supervisor's opinion regarding plaintiff's
qualifications to be a Battalion Chief.
Plaintiff's immediate
supervisor did not recommend that plaintiff be promoted.
After the interview and selection process had been
completed, on November 8, 2011, Chief Crowson selected Parker and
Morris to be the next two Battalion Chiefs.
They were selected
over plaintiff due to their broader experience, deeper
appreciation for the fire department's city-wide mission, and
superior performances during the interviews.
The promotion
decisions made by Chief Crowson were based on the factors
mentioned above and not, to any extent, on plaintiff's age, nor
on the age of any of the other candidates for the open positions.
When Parker and Morris received their promotions, Parker was
forty years of age, Morris was forty-eight years of age, and
plaintiff was fifty-one years of age.
Chief Crowson was not
aware of the ages of any of them when he made the promotion
decisions.
In May 2012, another Battalion Chief position became open
due to a retirement.
utilizing the results of the interviews and
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selection process that had been conducted in late 2011, Chief
Crowson selected Montgomery from the same group of candidates who
had applied then to fill the new Battalion Chief vacancy.
He
selected Montgomery over plaintiff because Montgomery had shown
important managerial skills critical to the effective functioning
as a Battalion Chief, because of his broad work experience with
the fire department, because his skills were better suited to the
Battalion Chief position than plaintiff's, and because Montgomery
had done better than plaintiff in the interview process.
Neither
plaintiff's age, nor the age of any other candidate, played any
role in Chief Crowson's decision to promote Montgomery.
At the
time of the promotion, Montgomery was forty-seven years of age
and plaintiff was fifty-one years of age.
Chief Crowson was not
aware of the ages of either of them when he made the promotion
decision.
In October 2012, there was another Battalion chief position
opening, for which nine persons, including plaintiff, applied and
were interviewed.
The applicants were examined by an interview
panel using a set of standardized questions, which were posed to
each candidate.
Assistant Chiefs.
The panel consisted of Chief Crowson and three
Plaintiff's performance in his interview,
which was conducted in October 2012, was extremely poor.
posture, attitude, and demeanor were inappropriate and
8
His
disrespectful.
He sat slumped in his chair and turned to the
side, held his hands behind his head, sometimes spun around in
his chair during the interview, and appeared disinterested and
aloof throughout the interview.
Plaintiff's responses to many of
the questions posed to him during the interview were of concern
to the members of the committee.
Plaintiff performed so poorly during his interview, that the
members of the interview panel concluded that he was not a good
candidate for the Battalion Chief position.
His responses and
conduct caused the panel to believe that he had little or no
confidence in his own ability, a lack of alignment with fire
department management on important issues and programs, a failure
to exhibit an appropriate management-level demeanor, and a lack
of preparation for the interview process.
Also, plaintiff had an
emotional event during the interview process that caused the
interviewers to question plaintiff's emotional ability to handle
the pressure of being a Battalion Chief.
As part of the interview process, each candidate was asked
who the candidate would select as Battalion Chief if the
candidate was not selected.
None of the other candidates
recommended plaintiff for the position.
Instead, the majority of
the candidates recommended another applicant, who happened to be
the youngest applicant, for the Battalion Chief position.
9
None
of the Assistant Chiefs who were part of the interview process
recommended that plaintiff be offered the Battalion Chief
position.
He was not ranked by the Assistant Chiefs among the
top three candidates.
The failure of the Assistant Chiefs to
recommend plaintiff for the Battalion Chief position had nothing
to do with his age but, instead, was based on his obvious lack of
preparation for the interview, his extremely poor performance in
the interview, and his improper and/or disappointing responses to
mUltiple, important questions during the interview process.
On November 8, 2012, Chief Crowson selected Randall to fill
the open Battalion Chief position.
That selection was not based
on the age of Randall or of plaintiff.
Randall was forty-seven
years of age and plaintiff was fifty-two years of age at that
time, but Chief Crowson was not aware of the age of either of
them when he selected Randall.
Randall's selection was based
upon the superior and positive qualifications, work history, and
interview performance of Randall in contrast to plaintiff's
extremely poor performance in the interview process.
Plaintiff filed his charge of discrimination against the
City of Arlington Fire Department with the EEOC after the
November 2012 interview and selection process was completed.
Charge of Discrimination, which was signed by plaintiff on
November 27, 2012, complained that U[f]rom approximately
10
His
November 15, 2011 until present, I have been continuously denied
the promotion to the Battalion Chief position" and that "I
believe that I have been discriminated against because of my age,
fifty-two, in violation of Age Discrimination in Employment Act
of 1967, as amended."
Mot., App. at 67.
After plaintiff resigned from the Arlington Fire Department,
he became employed in October 2013 as the Fire Chief at the Fire
Department of City of Princeton, Texas, a job at which he has
been earning more money than he was earning while employed at the
Arlington Fire Department.
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nonmoving party's claim, "since a complete failure of proof
concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial."
Id. at 323.
Once the movant has carried its burden under Rule 56(a), the
nonmoving party must identify evidence in the record that creates
a genuine dispute as to each of the challenged elements of its
case.
Id. at 324; see also Fed. R. Civ. P. 56(c)
("A party
asserting that a fact . . . is genuinely disputed must support
the assertion by
citing to particular parts of materials in
the record . . . . ").
If the evidence identified could not lead
a rational trier of fact to find in favor of the nonmoving party
as to each essential element of the nonmoving party's case, there
is no genuine dispute for trial and summary jUdgment is
appropriate.
Matsushita Elec. Indus. Co. v. zenith Radio Corp.,
475 U.S. 574, 587, 597 (1986).
The standard for granting a motion for summary judgment is
the same as the standard for rendering judgment as a matter of
law.
Celotex Corp., 477 U.S. at 323.
If 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, 475 U.S. at 597; see also Boeing Co. v. Shipman, 411
F.2d 365, 374-75 (5th Cir. 1969)
(en banc)
(explaining the
standard to be applied in determining whether the court should
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enter judgment on motions for directed verdict or for judgment
notwithstanding the verdict) .
B.
Plaintiff Has Not Adduced Summary Judgment Evidence of an
Essential Element of a Prima Facie Case
Inasmuch as plaintiff concedes that he is barred by
limitations from asserting age discrimination claims based on the
Parker and Morris promotions to Battalion Chief positions, the
court focuses under this heading on whatever contention plaintiff
might be making that he suffered unlawful age discrimination by
reason of the selections of Montgomery and Randall over
plaintiff.
One of the elements a plaintiff claiming age discrimination
in emploYment must establish to make a prima facie case of
discrimination under the ADEA for failure to promote is that
either (a) the position was filled by someone younger or (b) the
failure to promote was because of his age.
See Palasota v.
Haggar Clothing Co., 342 F.3d 569, 575-76 (5th Cir. 2003);
Bennett v. Total Minatome Corp., 138 F.3d 1053, 1060 (5th Cir.
1998)
.1
IThe third option, that the position was filled by someone outside the protected class, has no
potential applicability here.
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1.
The "Someone Younger" Option Has Not Been satisfied
Defendant takes the position that the "someone younger"
feature has been interpreted by court decisions to mean
"substantially younger," and that the age differences between
Montgomery and Randall, on the one hand, and plaintiff, on the
other, do not satisfy the "substantially younger" requirement.
The court agrees.
The "substantially younger" concept seems to have been
introduced into emploYment discrimination jurisprudence by the
Supreme Court in O'Connor v. Consolidated Coin Caterers Corp., in
which the Court explained:
Perhaps some courts have been induced to adopt the
principle urged by respondent in order to avoid
creating a prima facie case on the basis of very thin
evidence--for example, the replacement of a 68-year-old
by a 65-year-old. While the respondent's principle
theoretically permits such thin evidence (consider the
example above of a 40-year-old replaced by a 39-yearold), as a practical matter it will rarely do so, since
the vast majority of age-discrimination claims come
from older employees. In our view, however, the proper
solution to the problem lies not in making an utterly
irrelevant factor an element of the prima facie case,
but rather in recognizing that the prima facie case
requires "evidence adequate to create an inference that
an employment decision was based on a Tn] [illegal]
discriminatory criterion . . . . " Teamsters v. united
States, 431 U.S. 324, 358 (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
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reliable indicator of age discrimination than is the
fact that the plaintiff was replaced by someone outside
the protected class.
517 U.S. 308, 312-13
(1996).
In the course of holding that a five-year age differential
did not satisfy the "substantially younger" requirement, the
Sixth Circuit explained in Bush v. Dictaphone Corp., that:
Assuming that Bush met the first three prongs of
the McDonnell Douglas test, he was then required to
show that he was replaced by someone "substantially
younger." When Bush was demoted, he was replaced by a
woman less than five years younger, who was herself
more than forty years o~d. The district court held
that such a small age gap did not meet the
"SUbstantially younger" standard.
In the absence of
any proof to the contrary, we agree that no reasonable
jury could find that Bush's 41 year old ~eplacement was
"SUbstantially younger" than Bush (then 46 years old).
As a result, with regard to his demotion, Bush failed
to make out a prima facie claim under McDonnell
Douglas.
161 F.3d 363, 368 (6th Cir. 1998).
Similarly, in Schiltz v.
Burlington Northern R.R., the Eighth Circuit held that an age
differential of five years did not raise an inference of
discrimination as the individuals hired for the position were not
"SUbstantially younger" than the plaintiff in that action.
F.3d 1407, 1413 (8th Cir. 1997).
Also supporting defendant's
position is the holding of the Seventh Circuit in Hartley v.
Wisconsin Bell, Inc., 124 F.3d 887, 892-93
15
115
(7th Cir. 1997).
2.
The ~Failure-to-Promote-Because-Of-Age/l
Option Has Not
Been Satisfied
Plaintiff all but concedes that he has not satisfied the
~someone
younger/l option.
PI.'s Resp. Br. at 2, , 2; 17-18.
Instead of relying on that option, plaintiff contends that he has
adduced summary judgment evidence that the fire department's
failure to promote him was because of his age, or, as plaintiff
puts it, he
~suffered
an adverse emploYment action--namely,
mUltiple failures to promote--because of his age./I
, 2.
Id. at 2,
Plaintiff presents as justification for that contention his
assertion hat
~the
City has not promoted a single person 50 years
of age or over to the position of Battalion Chief at any time
between April of 2000 and November 27, 2012./1
Id. at 17-18.
His
sole record references for that assertion are to the following
statements he made in the declaration he included in the appendix
to his response:
21.
~The last time the City promoted pn
individual to the position of Battalion Chief who was
over the age of 50 was back in April 3, 2000, i.e.,
almost fourteen (14) years ago. On that date the City
promoted Ms. Debbie Bradberry.
22. On November 27, 2012, I filed charge number
450-2013-00739 (~Charge/l) with the U.S. Equal
EmploYment Opportunity Commission (~EEOC/I). When I
filed the EEOC Charge, the City still had not announced
the promotion of any individuals over 50 years of age
to the position of Battalion Chief since promoting
Bradberry in April 2000.
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Pl.'s Resp., App. at 03-04, "
21-22.
The court agrees with defendant that those unsupported
assertions by plaintiff are not probative of anything relevant to
plaintiff's age discrimination claim.
Even if plaintiff had
provided authentication for his statements, the failures to
promote are meaningless absent additional information, such as
the number of Battalion Chief promotions that have occurred since
2000, the number of candidates who applied for each of those
positions, the nUmber, if any, of those candidates who were over
the age of fifty, the number, if any, of those candidates were
close to the age of fifty, the ages of the candidates that were
selected, and the qualifications of the candidates under the age
of fifty who were selected compared with those fifty years or
older who were not selected.
Plaintiff weaves into his argument that defendant failed to
promote him because of his age the use by Chief Crowson of the
phrases "baby boomer bubble," "80s group," and "within sight of
retirement."
rd. at 03, "17-20.
The material upon which
plaintiff relies in which Chief Crowson used those phrases
discloses that they were not used in a discriminatory context or
with a discriminatory intent.
rd. at 08-011.
Rather, Chief
Crowson quite clearly had in mind making the fire department
employees aware that a larger than usual number of retirements
17
could be expected in the near future, and that the non-retiring
employees should be preparing to assist in bringing along new
hires and for the promotional opportunities that those
retirements would present.
For example, in a pUblication headed
"NOW IS THE TIME--Are You Ready For The Next Promotional
Opportunity?", id. at 11, the following explanation was given:
Retirements
The "baby boomer bubble" attrition issue is significant
because much of the Fire Department's growth occurred
in the late 1970's to the late 1980's. The individuals
hired during this timeframe were hired from the general
population "off the street" and are now eligible to
retire. Additionally in the 1990s-2009 the Department
only hired certified personnel, which meant that many
of the individuals hired during this period had TMRS
service credits from other cities and now some of those
employees are also eligible to retire.
Recruitment
The strength of the Department is directly related to
the quality of the people we hire. We've developed a
comprehensive recruitment program designed to attract
and hire the best quality candidates. Many of you have
provided feedback as to the outstanding quality of
performance associated with our new members. Their
success is a credit to many members of this
organization who actively participate in the
recruitment, hiring, and training process. Your hard
work is paying off and helping keep us strong.
Plaintiff's reliance on the stray remark by his then
immediate supervisor, Morris, that he was "past the 'age bubble'
for further advancement," id. at 3, has no relevance to the
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instant action because Chief Crowson was the decision maker, not
Mr. Morris.
C.
There is No Summary Judgment Evidence That Defendant's NonDiscriminatory Reasons for the Denial of Promotion Were a
Pretext for Intentional Discrimination
Defendant has articulated the legitimate non-discriminatory
reasons for promoting Montgomery and Randall, rather than
plaintiff, to the Battalion Chief positions that Montgomery and
Randall each was better qualified than plaintiff for the
promotion and each of them performed better than plaintiff in the
interview and selection process.
None of the summary judgment
evidence would support a finding that the reasons given by
defendant for denying plaintiff's promotion were a pretext for
intentional discrimination.
The court already has explained why
some of the evidence upon which plaintiff relies is not probative
in favor of plaintiff on that subject.
Plaintiff devotes attention in his declaration to recounting
his experiences with the Arlington Fire Department, and the
promotions and honors he received while with the department.
PI.'s Resp., App. at 01-03, "4-15.
point.
Plaintiff seems to miss the
Defendant has not contended that plaintiff is not
qualified to serve as a firefighter or as a Captain in the fire
department.
Defendant's contention is that, after a fair
competition that did not consider age, plaintiff failed to
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persuade the decision maker, Chief Crowson, that he was the best
qualified person to be selected as a Battalion Chief when the
selections of Montgomery and Randall were made to serve in that
position.
D.
Conclusion
For all the reasons discussed above, the court has concluded
that plaintiff has adduced no summary judgment evidence raising
an issue that could lead to the inference or ultimate finding
that age played a role in Chief Crowson's decisions to select
Montgomery and Randall over plaintiff for promotion.
Much less
has plaintiff adduced evidence that he would have been promoted
to Battalion Chief instead of Montgomery or Randall had it not
been for his age.
Thus, defendant is entitled to a summary
adjudication dismissing plaintiff's claims.
IV.
Order
For the reasons stated above,
The court ORDERS that defendant's motion for summary
jUdgment be, and is hereby, granted and that all claims and
causes of action asserted by plaintiff against defendant be, and
are hereby, dismissed.
SIGNED April 24, 2014.
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