Hixson v. Houston Independent School District et al
Filing
68
MEMORANDUM AND ORDER GRANTING 61 MOTION for Summary Judgment, GRANTING 59 MOTION to Strike 22 Designation of Expert Witness List MOTION to Strike 22 Designation of Expert Witness List, 66 MOTION for Leave to File Attachments to Motion on a CD instead of a Thumbdrive.(Signed by Judge Keith P Ellison) Parties notified.(sloewe)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ALVA RALPH HIXSON, III,
Plaintiff,
v.
HOUSTON INDEPENDENT SCHOOL
DISTRICT, ET AL.,
Defendants.
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§ CIVIL ACTION NO. 4:09-cv-3949
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MEMORANDUM AND ORDER
Pending before the Court are Defendant’s Motion to Strike Plaintiff’s Statistical Expert
(Doc. No. 59) and Defendant’s Motion for Complete Summary Judgment (Doc. No. 61). Upon
considering the motions, all responses thereto, and the applicable law, the Court finds that
Defendant’s Motion to Strike Plaintiff’s Statistical Expert must be granted and Defendant’s
Motion for Complete Summary Judgment must be granted.
I.
BACKGROUND
Plaintiff Alva Ralph Hixson, III (“Plaintiff” or “Hixson”) has filed suit against Defendant
Houston Independent School District (“Defendant” or “HISD”) for HISD’s alleged failure to hire
him in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §
629 et seq. The following undisputed facts are drawn from the record.
Hixson was born on August 19, 1952. (Hixson Dep. 16:10.) After many years of work in
unrelated fields, Hixson decided to change careers and begin work in the education industry. (Id.
34:22-25.) He moved to McAllen in 2003. (Id. 18:2-23.) While living in McAllen, Hixson was
accepted into the A-STEP alternative certification program, which provides individuals with a
path to becoming a certified teacher. (Id. 38:21-39:15.) Hixson worked as a substitute teacher in
1
various area school districts, including PSJA ISD, Harlingen ISD, and La Joya ISD, from
approximately 2003 to 2005. (Id. 18:3-23.) During this time, Hixson applied for permanent
teaching positions but was not chosen for them. (Id. 38:11-12, 42:3-43:5.)
In January 2006, Hixson moved to Houston. (Hixson Dep. 48:11-13.) Prior to his move,
Hixson submitted an application to join HISD’s alternative certification program (“ACP”). (Id.
53:8-13.) Hixson was accepted to ACP on November 29, 2005. (Id. 59:5-8, Ex. 6.) ACP provides
individuals (also known as “interns”) with the opportunity to become certified teachers. (WarrenArds Decl. ¶ 2.) ACP interns must complete a six-month training, pass the content portion of the
Texas Examination of Education Standards (“State-required tests”) and independently find
employment within HISD. (Id.; Hixson Dep. 59:13-17, 60:8-16.) Once an ACP intern passes his
or her first State-required test, the intern is eligible to apply for permanent teaching positions at
various schools. (Hixson Dep. 61:6-8.) If chosen for a permanent teaching position, the ACP
intern is given a one-year probationary teaching certificate. (Id. 59:18-23.) During this one-year
probationary period, the ACP intern must complete all of the State-required testing. (Id. 68:2469:4.) If the ACP intern does not pass the State-required testing by the end of their probationary
term, their employment in the permanent teaching position will not be renewed. (Id. 69:5-11.) On
the other hand, once the ACP intern meets all the ACP benchmarks and obtains
recommendations from the school principal and the ACP director, the ACP intern is eligible to
apply for their standard teaching certificate. (Warren-Ards Decl. ¶ 2; Hixson Dep. 69:13-19.)
Hixson began the HISD ACP program in February 2006 and completed his classes within
the six month period. (Hixson Dep. 85:21-86:6.) Hixson had passed two State-required tests prior
to moving to Houston. In December 2003, Hixson took the “special [education] content
examination” from early childhood through 12th grade. (Id. 74:13-22.) In February 2004, he took
2
the special education “pedagogy and professional” text for early childhood through 12th grade.
(Id. 72:18-73:8.) These tests allowed him to teach special education from early childhood
through twelfth grade. (Id. 74:16-19.) He took his third State-required test, a generalist
examination from early childhood to Grade 4, on February 18, 2006. (Id. 71:16-72:6.) This exam
allowed him to teach early childhood to fourth grade students. (Id. 72:10-13.) Hixson’s score on
this exam placed him in the top eight percent of his “class.”1 (Id. 72:8-9.)
Because Hixson had already passed two State-required tests prior to his move to Houston,
Hixson began applying in December 2005 for permanent teaching positions at HISD. (Id. 61:915; 71:2-5.) He continued to apply for permanent teaching positions at HISD schools throughout
2006, 2007, 2008, 2009, and until the present time. (Id. 86:7-8, 115:25-116:4, 128:22-129:6.) He
has applied for approximately five thousand permanent teaching positions over the course of this
time, and exactly three hundred thirty-eight (338) jobs in 2008.2 (Id. 95:4; Warren-Ards Decl. ¶
3.) In order to apply for permanent teaching positions at HISD, Hixson submitted an on-line
employment application and attached his resume to the application. (Hixson Dep. 77:19-78:8,
101:14.) Over the years, Hixson updated his on-line employment application several times. (Id.
106:24-107:23.) More than one iteration of Hixson’s employment application contained errors.
In an application dated August 29, 2006, Hixson stated that he had a “professional certificate”
for special education and a “probationary certificate” for EC-4 generalist, but should have
indicated that he had probationary certificates for both positions. (Id. 79:4-22.) He also
inaccurately described the special education certificate’s length as “lifetime,” when it should
1
It is unclear whether Hixson refers to the “class” of fellow HISD ACP interns who might have taken this test or to
the “class” of individuals at large who took this test, or to some other group altogether.
2
In our Memorandum and Order dated May 2, 2011 (Doc. No. 46), we dismissed Hixson’s claims of age
discrimination that are based on HISD’s discriminatory acts before May 26, 2008 or after December 22, 2008. We
found that discriminatory acts that occurred outside of May 26, 2008 – December 22, 2008 were either time-barred
or administratively unexhausted. Thus, we focus only on HISD’s discriminatory acts between the dates of May 26,
2008 and December 22, 2008. Of the 338 positions Hixson applied to in 2008, it is unclear how many Hixson
applied to between the dates of May 26, 2008 and December 22, 2008.
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have stated “one year.” (Id. 81:11-16.) Hixson characterized these as “clerical errors” and
ascribes them to pressing the wrong button the computer. (Id. 79:23-24, 80:2, 81:14.) In another
application, Hixson answered affirmatively to the question of whether he held a valid Texas
certification even though he did not. (Id. 103:16-21.) He believed that holding a special
education and elementary education certificate was the same as a valid Texas certification. (Id.
103:23-104:8.)
After failing to receive interest in his application, Hixson sought assistance from various
HISD personnel. He spoke to Robin Williams (“Williams”), a recruiter for HISD’s human
resources department, who gave him advice regarding certain items on his on-line application
that should be fixed. (Id. 101:13-25, 110:2-111:12.) Williams put Hixson in touch with Josephine
Morgan (“Morgan”), an EEO officer at HISD. (Id. 120:20-121:6.) Hixson drafted a letter that
outlined his qualifications, including his status as ACP intern and HISD Associate Teacher, his
success on the State-required tests, and his two-years of experience as a substitute teacher.
Hixson also included language stating that “[t]ypically, other ACP candidates have passed only
one test and do not have the years of classroom teaching experience as substitute or associate
teachers possessed by Hixson.” (Doc. No. 64 Ex. 2.) Williams sent Morgan the letter drafted by
Hixson and changed the sentence stating that Hixson was “head and shoulders” more qualified
than other ACP candidates to instead state that Hixson was “highly recommended.” (Hixson
Dep. 121:6-9.) Morgan signed the letter in September 2006, though she had never met Hixson in
person and only exchanged emails with him. (Id. 120:15-17, 145:22-24, 146:24-25.)
In 2008, HISD followed a selection process for its elementary education positions
(kindergarten through fourth grade) and its special education positions. (Best Decl. ¶ 3.) School
principals first reviewed an applicant’s application, resume, cover letter, and reference letters.
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(Id.) If the principal was impressed with the applicant’s traits, the principal interviewed the
applicant and sometimes asked the applicant to conduct a demonstrative teaching lesson. (Id.) At
the end of this process, the principal made a job offer to the applicant chosen for the position.
(Id.)
Since he began applying for permanent teaching positions at HISD, Hixson has been
called for between five and ten in-person interviews with school principals or vice-principals.
(Hixson Dep. 96:3-16.) At these interviews, Hixson spoke about his substitute teaching
experience at HISD and in McAllen and about his test scores. (Id.132:20-22.) Hixson also
conducted a computer demonstration of a pedagogical website to demonstrate the need for and
utility of computers in the classroom. (Id. 132:22-134:16.) Hixson told the principals that he
intended to purchase a computer for each student in his class and showed the principals $10,000
in cash to demonstrate his commitment. (Id. 134:17-135:21.)
Hixson heard numerous comments from other teachers and teacher aids at HISD schools
that HISD did not hire older individuals for permanent teacher positions and looked for ways to
get rid of older individuals. (Id. 91:13-93:21.) At a school board meeting in March 2009, Hixson
heard school board member Harwin Moore congratulate Melissa Garrett, HISD’s director of
finance, for savings on healthcare costs for the school district. (Id. 87:16-89:3.) Based on
comments of fellow teachers and Moore’s remarks at the school board meeting, Hixson
concluded that HISD’s policy is to save on healthcare costs by hiring people under 40 years of
age due to their lower healthcare costs as compared to people over 40 years old. (Id. 88:12-16;
99:5-6.) Hixson also concluded that the principals in charge of hiring decisions are given a bonus
for keeping the school budget low, which fuels a financial incentive not to hire individuals with
high healthcare costs, such as those over the age of 40. (Id. 140:22-142:18.) However, Hixson
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never heard a principal comment that he or she would not hire someone over 40 years of age or
that Hixson was not hired due to his age. (Id. 94:8-12; 96:22-25, 98:14-17.)
In September or October 2006, Hixson was hired by HISD as a substitute teacher. (Id.
49:18-21, 84:8-12.) Hixson remains a substitute teacher at HISD today. (Id. 84:13-15.) As a
substitute teacher, Hixson is paid $10 per hour, receives no health insurance, and receives no
benefits. (Id. 85:5-6, 143:25-144:4.)
Hixson filed a Charge of Discrimination with the EEOC on January 27, 2009, alleging
age discrimination by HISD due to its failure to hire him for special education permanent
teaching positions and EC-4 generalist permanent teaching positions. (Id. 112:7-15, 114:18-22.)
In the Charge, Hixson stated that the earliest date of discrimination occurred on May 26, 2008
and that the latest date of discrimination was on December 22, 2008. (Id. 112:18-113:15.) Hixson
claims that he was told by an EEOC representative that he could only put down charges for two
years even though he had been discriminated against since “day 1.” (Id. 112:22-113:9.) Hixson
has not filed amended or new Charges of Discrimination against HISD. (Id. 113:16-114:10.)
Hixson subsequently filed suit against HISD and several individual defendants for age
discrimination in violation of ADEA arising out HISD’s refusals to hire him for permanent
teaching positions. The individual defendants were subsequently dismissed. (Doc. No. 46.)
Defendant HISD has now filed a motion for summary judgment and a motion to strike Hixson’s
statistical expert. The motions are briefed and ripe for disposition.
II.
MOTION TO STRIKE PLAINTIFF’S STATISTICAL EXPERT
Hixson has proffered the expert report of Brian D. Marx (“Marx”), Ph.D., who is a
professor in the Department of Experimental Statistics at Louisiana State University. Marx
performed certain statistical analyses on a set of data supplied by Hixson. The results of Marx’s
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analyses have been submitted by Hixson as evidence that HISD discriminates on the basis of age
in its hiring decisions.
HISD moves to strike Marx as an expert and to exclude his expert opinion on numerous
grounds. Primarily, HISD argues that Marx’s expert report does not meet the standards of Rule
702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), because his
opinions and methodologies are unreliable. In addition, HISD contends that Marx advances
impermissible legal conclusions, his testimony will not assist the trier of fact, and that his
testimony is unduly prejudicial.
A. Legal Standard
Federal Rule of Evidence 702 provides for the admission of expert testimony that assists
the trier of fact to understand the evidence or to determine a fact in issue. A court is charged with
a “gatekeeping function” to ensure expert testimony is both reliable and relevant. Daubert, 509
U.S. at 597. Reliability is analyzed under Rule 702, which requires that: (1) the testimony is
based upon sufficient facts or data, (2) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and methods reliably to the facts of the
case. Fed. R. Evid. 702. As to the second prong, the Supreme Court has provided five, nonexclusive factors to consider when assessing whether a methodology is scientifically reliable.
These factors are (1) whether the expert's theory can be or has been tested, (2) whether the theory
has been subject to peer review and publication, (3) the known or potential rate of error of a
technique or theory when applied, (4) the existence and maintenance of standards and controls,
and (5) the degree to which the technique or theory has been generally accepted in the scientific
community. Daubert, 509 U.S. at 593-94. The test for determining reliability is flexible and can
adapt to the particular circumstances underlying the testimony at issue. Kumho Tire Co. v.
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Carmichael, 526 U.S. 137, 150-51 (1999). The party seeking to have the district court admit
expert testimony must demonstrate that the expert’s findings and conclusions are reliable, but
need not show that the expert's findings and conclusions are correct. Moore v. Ashland Chem,
Inc., 151 F.3d 269, 276 (5th Cir. 1998).
Further, the expert witness must be qualified “by knowledge, skill, experience, training,
or education . . . .” Fed. R. Evid. 702. A court must exclude an expert witness “if it finds that the
witness is not qualified to testify in a particular field or on a given subject.” Wilson v. Woods,
163 F.3d 935, 937 (5th Cir. 1999); However, “Rule 702 does not mandate that an expert be
highly qualified in order to testify about a given issue. Differences in expertise bear chiefly on
the weight to be assigned to the testimony by the trier of fact, not its admissibility.” Huss v.
Gayden, 571 F.3d 442, 452 (5th Cir. 2009) (citing Daubert, 509 U.S. at 596).
Under Rule 704(a), “testimony in the form of an opinion or inference otherwise
admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of
fact.” Fed. R. Evid. 704(a); United States v. Izydore, 167 F.3d 213, 218 (5th Cir. 1999). “Rule
704, however, does not open the door to all opinions.” Owen v. Kerr-McGee Corp., 698 F.2d
236, 240 (5th Cir. 1983). Expert witnesses may neither tell the jury what result to reach nor
provide legal conclusions. Id.
The party seeking to rely on expert testimony bears the burden of establishing, by a
preponderance of the evidence, that all requirements have been met. Daubert, 509 U.S. at 593,
n.10; Moore, 151 F.3d at 276.
B. Marx’s Professional Qualifications and Expert Opinions
Marx has been a Full Professor of Statistics in the Department of Experimental Statistics
at Louisiana State University since 1999. (Expert Report of Brian D. Marx (“Marx Report”)
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App. A at 2, Doc. No. 37.) He previously held academic positions at Leiden University in The
Netherlands, at LMU University of Munich in Germany, and at Stanford University. (Id.) Marx
received his Master’s Degree in Statistics from Penn State University and his Ph.D. in Statistics
from Virginia Tech (Virginia Polytechnic Institute and State University). (Id. at 1.) He has
published a number of book chapters and articles regarding regression models in statistical
modeling and has two books scheduled to be published in the forthcoming year. (Id. at 2-5.) He
is editor of a journal, Statistical Modelling: An International Journal, and is the statistical editor
of another journal, Journal of Apicultural Research. (Id. at 8.) Over the last seventeen years, he
has provided professional statistical consulting services in a variety of cases and topics. (Marx
Dep. 11:5-14:7.)
In one project from 1994 to 1996, Marx analyzed the possible employment
discrimination in the mass firing of restaurant workers at a major hotel. (Id. 14:11-15:2.) Marx
conducted several statistical analyses in order to determine whether there was a significant
association between the race of an employee and the proportion in which a particular race was
represented in a management level or level of employment. (Id. 15:11-18:2.) His analyses
resulted in a determination that there was a disparity in the distribution across race at various
levels of management and that these disparities were significant. (Id. 19:17-19.) Marx did not
testify as an expert in that case, but did present several charts with statistical summaries to his
client. (Id. 18:18-19:5.) Other than this case and Hixson’s case, Marx has not performed any
consulting work with respect to employment discrimination litigation. (Id. 20:16.) Marx does not
have any specialized training with respect to statistical analyses in employment discrimination,
has never taught courses on employment discrimination or employer hiring, and has never
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conducted research or authored publications on the topic of employment discrimination or hiring
practices, (Id. 21:6-21, 22:22-23:5, 28:15-23, 29:1-4, 30:2-23, 32:8-12, 32:25, 35:7-12, 43:2-17.)
Marx has prepared and submitted an expert report at the request of Hixson. (Marx Report
App. B.) In his report, Marx conducted one statistical analysis. Marx was given by Hixson a
chart containing data purportedly supplied by the Texas Education Agency (the “TEA Chart” or
“PIR 9794”). (Marx Report App. D; Marx Dep. 69:22-70:3, 78:8-10.) In addition, Marx was
supplied a statistical analysis containing programming, a summary of the data, charts, and tables
prepared by an individual named Yanli Chen (“Chen”). (Marx Dep. 70:6-9.) Chen’s
programming synopsis and charts are attached to Marx’s Report as Appendix C. (Marx. Report
App. C; Marx Dep. 70:8-9.) Marx spoke to Chen about her statistical methodology and data
structure and confirmed that Chen’s statistical analysis was also based upon the data in the TEA
Chart. (Marx Dep. 71:2-24.) Marx then performed his own statistical analysis using certain data
in the TEA Chart. (Id. 72:2.)
The TEA Chart contains a list of HISD ACP candidates who applied for employment at
HISD between 2006 and 2008. (Marx Dep. 83:9-12, 85:2-5.) The TEA Chart contained
information regarding a number of characteristics about each individual (e.g., ethnic group,
gender), only two of which are relevant here. First, each individual was assigned to an age or
“birth” group. (Id. 72:16-19; Marx Report App. D.) Second, each individual was listed as
“employed” or not employed (also referred to as “hired” or “not hired”). (Marx Report App. D;
Marx Dep. 72:20-73:9.) Marx assumed that the list of HISD ACP candidates in the TEA Chart
was representative of the entire applicant pool for teaching jobs at HISD because the TEA Chart
was “an applicant pool provided by the Texas Education Agency.” (Marx Dep. 77:13-21.)
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Marx began with the null hypothesis that there was no association between age group and
hiring rate. (Marx Dep. 74:15-17.) In other words, Marx began with the hypothesis that the
hiring rate was constant across age group, i.e., that the proportion of individuals with each age
group would remain constant across the “hired” group of individuals and the “not hired” group
of individuals. (Id. 74:20-23.)
Marx then used the Chi-Square Test for Independence. (Id. 69:7-8.) The Chi-Square Test
is a statistical method that tests for association across two variables that are categorical in
nature.3 (Id. 69:11-12.) He used “age group” as the first variable and “hired or not hired” as the
second variable within the Chi-Square Test in order to determine whether there was a significant
association or dependency contingency between these two variables. (Id. 69:17-20.) In essence,
Marx used the test to arrive at percentages of individuals who were hired within a particular age
group. (Id. 73:6-9.) The results of his analysis were that “the profiles of the distributions of age
groups significantly varied across those people who were hired when compared to those people
who were not hired.” (Id. 73:12-14.) In other words, Marx found that older age groups are hired
at a lesser rate than persons in the younger age group. (Id. 75:15-18.) Specifically, Marx found
3
As succinctly described in Local Union Nos. 605/985, IBEW v. Miss. Power & Light Co., Case No. 3:96-CV572WS, 2004 U.S. Dist. LEXIS 31182 (S.D. Miss. Sept. 30, 2004), the Chi-Square test is a statistical method that
may be used to determine whether differences in selection rates are associated with a particular variable, such as
age:
The chi-square procedure establishes an expected selection rate and then determines whether the
difference between the expected selection rate and the actual selection rate is statistically
significant. Small deviations are expected to occur as a result of chance, but at some point the
deviation becomes so large that chance alone can be ruled out. For example, if thirty-three (33)
persons passed an exam that made them eligible for promotion, and, of this thirty-three (33), the
racial breakdown was twenty-four (24) whites, six (6) African Americans, and three (3)
Hispanics, then the percentage of whites is 72%; the percentage of African Americans is 18%; and
the percentage of Hispanics is 10%. If 22 of these persons are promoted, then one might expect
that 72% of the 22 would be white (16); 18% would be African American (4); and 10% would be
Hispanic (2) if the promotions were made at random. The chi-square test measures deviation from
expected behavior. Any deviation from this expectation may indicate some influence other than
random chance. Although some deviation may be expected to occur by chance, too much
deviation must be accounted for by something other than chance. A significant chi-square value
would indicate favoritism.
Id. at *30-*31 (omitting internal citations).
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that the odds of one being hired under the age of 40 is 4.75 times greater than the odds of being
hired if one was over the age of 40. (Id.76:3-5.)
Marx believed that the rate of error of his findings was one in 1,000, but could be as low
as one in 12,000. (Id. 76:7-12, 121:11-18.) Marx found the statistical discrepancy to be
significant. (Id. 73:15-16.) Marx summarizes his statistical expert report as follows:
I have been asked to review, summarize and verify the statistical methods
performed on data related to the above case. I have read and reviewed a
preliminary report based on 2008 data. The data are analyzed using a Chisquare test for association, which is an appropriate method for the tabulated
data: Age group and Hiring count. The hypothesis that was tested is that no
association exists between age group and hiring rate. The test statistic follows a
chi-square distribution (with appropriate degrees of freedom) under this
assumption of no association. The data finds extremely compelling evidence of
a significant association (i.e. older age groups are hired less), and thus there is
significant evidence to reject this hypothesis of no association. The data were
explored more thoroughly through statistical regression techniques by breaking
down the data by various job types, which also demonstrated significant
relationships. In summary, I found the statistical analysis to be valid and highly
significant in finding associations.
(Marx Report App. B.)
Outside of his expert report, Marx conducted two additional statistical analyses. The first
analysis involved data provided by HISD consisting of a list of the positions for which Hixson
applied and were filled by ACP interns during the period of 2008-09 (the “HISD Chart”). (Marx
Dep. 102:15-17, 124:12-22.) Not all the ACP interns on the HISD Chart were HISD ACP
interns; some were interns enrolled in ACP programs offered by other school districts or
organizations. (Id. 127:17-15.) The HISD Chart contained only information regarding ACP
interns who were hired, and did not contain information regarding ACP interns who were not
hired. (Id. 102:15-17, 124:25-125:1.) Similar to his analysis of the TEA Chart, Marx examined
whether the age distribution of individuals hired was similar to the age distribution of applicants
to the positions. (Id. 125:2-9.) Because the HISD Chart did not contain information about the
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individuals who applied, but were not hired for the positions, Marx estimated the age distribution
of the entire pool of applicants using the data contained in the TEA Chart. (Id. 125:6-9.) Marx’s
applied the Chi-Square Test to the data in the HISD Chart. (Id. 129:13-14.) The hypothesis Marx
tested was whether the data in the HISD Chart fit well with or significantly departed from the
age distribution of individuals in the TEA Chart. (Id. 130:1-4.) Marx could not conduct the same
analysis as he had with the TEA Chart because he did not have data regarding the individuals
who were “not hired” for the positions to which Hixson applied. (Id. 130:1-14.) His analysis of
the HISD Chart showed that the hiring rate (or distribution of hired individuals over and under
40) was not representative of the applicant age pool, as supplied by the TEA Chart, and that there
was a significant association between age and hiring rate. (Id. 125:9-19, 126:2-5.) Marx found
that the odds of someone under 40 being hired was approximately 2.25 times greater than the
odds of someone over 40 being hired. (Id. 125:9-19.) He believed that this finding was
statistically significant, with the probability of making an error as one in 30.03. (Id. 125:16-19.)
The second analysis involved data provided by Hixson. (Id. 115:10-116:3.) Hixson told
Marx that he had applied for approximately 2000 jobs and that there were approximately 300
applicants per job. (Id. 115:10-14.) Hixson also told Marx that he had zero offers. (Id. 115:1415.) Based on this data, Marx calculated the probability of Hixson receiving zero offers as one
out of 750. (Id. 115:14-19.) Marx’s calculations showed that Hixson should have received
approximately seven offers assuming that Hixson was average-qualified applicant. (Id. 115:19116:3.)
As a result of his analyses, Marx concluded that HISD engaged in age discrimination in
hiring decisions relating to teachers. (Marx Dep. 105:19-22, 106:3-8.)
C. Analysis
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As many courts have recognized, statistics can play a significant role in discrimination
cases. See, e.g., Wilkins v. Univ. of Houston, 654 F.2d 388, 395 (5th Cir. 1981) (citing
Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 307-08 (1977)); Carter v. Ball, 33 F.3d
450, 456 (4th Cir. 1994) (“Statistics can provide important proof of employment
discrimination.”). Statistical evidence can be used either to establish an inference of
discrimination as an element of plaintiff’s prima facie case, or to rebut the employer’s stated
nondiscriminatory reason for its action as pretext. See EEOC v. Texas Instruments Inc., 100 F.3d
1173, 1185 (5th Cir. 1996) (“statistical evidence may be probative of pre-text in limited
circumstances”); Anderson v. Douglas & Lomason Co., 26 F.3d 1277, 1285 (5th Cir. 1994)
(“The plaintiffs may establish a prima facie case of disparate treatment by the use of statistics . . .
.”) (internal citations omitted). However, “the Supreme Court has cautioned ‘that statistics are
not irrefutable; they come in infinite variety and, like any other kind of evidence, they may be
rebutted. In short, their usefulness depends on all the surrounding facts and circumstances.’”
Wilkins, 654 F.2d at 395 (citing Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324,
340 (1997)).
“Where plaintiffs use statistical evidence to challenge an employer’s hiring practices, that
evidence, to be probative of discriminatory intent, must compare the relevant portion of the
employer’s work force with the qualified population in the relevant labor market.” Anderson, 26
F.3d at 1286 (quoting EEOC v. Olson's Dairy Queens, Inc., 989 F.2d 165, 168 (5th Cir. 1993));
Carter, 33 F.3d at 456 (statistical analysis must compare presence or absence of minority
employees to relevant labor pool). In determining the composition of the relevant labor market or
labor pool, “[a]ctual applicant flow figures are the preferred method by which to measure an
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employer's hiring practices and performance.” Anderson, 26 F.3d at 1287; see also Scott v. Univ.
of Miss., 148 F.3d 493, 510 (5th Cir. 1998).
With these guidelines regarding the use of statistical evidence in employment
discrimination cases in mind, we review the three statistical analyses conducted by Marx.4
1. Analysis of TEA Chart
In his first analysis, Marx used data contained in the TEA Chart that provided the age
groups and hiring rate of members of HISD’s ACP program who applied to teaching positions.
He compared the age distribution among all of the individuals listed in the TEA Chart to the age
distribution among the individuals who were hired for teaching positions. He concluded that
there was a statistically significant discrepancy in the hiring rate of applicants over 40 years of
age as compared to the hiring rate of applicants under 40 years of age. Marx found that older
applicants were hired at a lesser rate than persons in the younger age group. HISD has
challenged this opinion on a number of grounds, including the unreliability of his methodology
and the inaccuracy and incompleteness of the facts upon which his opinions are based. After a
careful review of the data underlying Marx’s analysis and the methodology he used, we must
exclude Marx’s opinion. We confine ourselves to the most serious deficiencies in Marx’s
analysis.5
4
Although we have no doubt that Marx is an eminently qualified statistician, we view his almost-complete lack of
academic and professional experience in the area of statistical analyses of employment discrimination and employer
hiring practices as a serious challenge to his qualification to render an expert opinion in this case. See Fed. R. Evid.
702. Our findings regarding the deficiencies in Marx’s data and analysis, including the failure to analyze the actual
or potential applicant pool, suggest that familiarity with the use of statistics with the specialized area of employment
discrimination law is essential. However, because we exclude Marx’s expert opinion on other grounds, we need not
resolve the issue of whether Marx is qualified to render an opinion in this case.
5
There are many other deficiencies in Marx’s analysis. For example, Marx’s analysis did not limit itself to 2008,
which is the relevant time period to this lawsuit. (Marx Dep. 97:9-11.) Neither Marx nor Hixson offer an explanation
of why an analysis of the time period 2006 to 2008 should be appropriate when examining hiring decisions that
occur within a much smaller segment of time within the larger time period. In addition, Marx’s analysis appears to
be based upon an analysis performed by an individual named Yanli Chen. Hixson has not identified who Chen is,
what her role in this lawsuit has been, her statistical methods, why her charts and graphs should be included in
Marx’s report, or how her analysis meets the Daubert standard.
15
First, Marx’s analysis is based upon data contained in a chart that was purportedly
furnished by TEA to Hixson. However, the TEA Chart neither has been authenticated by an
individual with personal knowledge that it contains accurate information and nor falls within a
category of self-authenticating documents. See Fed. R. Evid. 901, 902. Other than Hixson’s
statement that the chart was provided by the TEA, we have no information about the chart’s
provenance. Without authentication of the TEA Chart, we cannot conclude that data underlying
Marx’s analysis is based upon sufficient facts or data, as required by Rule 702.
Second, the TEA Chart does not identify the positions for which the “hired” individuals
were hired. (Marx Dep. 78:21-79:9, 98:23-25.) The TEA Chart does not even identify whether
the “hired” individuals were hired as teachers. (Marx Dep. 133:14-19.) Hixson cannot use the
TEA Chart to challenge discriminatory teacher hiring practices when he cannot even confirm
that the data corresponds to individuals hired as teachers. Hixson is not bringing a challenge to
discriminatory hiring practices by HISD in general (including, administrative, executive, or other
positions), but rather is challenging HISD’s hiring practices with respect to permanent teaching
positions. Thus, data that does not confine itself to the hiring rate applicable to teaching positions
is an insufficient bases upon which to test discriminatory hiring specific to this position.
Third, Marx does not know whether any of the individuals on the chart were actually
hired by HISD. (Marx Dep. 83:17-23.) On the TEA Chart, each individual has a “yes” or “no”
under the column entitled “Employed?”. (Marx Report App. D.) However, there is also a column
called “Organization Name” on the TEA Chart. (Marx Report App. D.) Each individual who is
listed as employed has an “Organization Name” also listed. Each individual who is listed as not
employed does not have an associated “Organization Name.” (Marx Report App. D.) Four
individuals who are listed as employed are associated with “Aldine ISD” as the “Organization
16
Name.” (Marx Report App. D at 1.) Three individuals who are employed are associated with
“Alief ISD.” (Marx Report App. D at 1.) Two individuals who are employed are associated with
“Pasadena ISD.” (Marx Report App. D at 4.) One person who is employed is associated with
“Northwest Preparatory” and one person is associated with “Yes College Preparatory School.”
(Marx Report App. D at 4.) This information suggests that the data, and the subsequent analysis,
did not confine itself to the hiring rate of HISD and included the hiring rate of other schools.
However, Hixson is challenging the discriminatory hiring practices of HISD, not the
discriminatory hiring practices of HISD in conjunction with other schools. Neither is Hixson
challenging the HISD ACP program’s vulnerability to discriminatory hiring practices by
employers in general. Rather, Hixson challenges HISD’s discriminatory hiring practices with
respect to permanent teaching positions. Thus, a data set that includes information about hiring
by schools other than HISD is inappropriate to support an analysis of HISD’s discriminatory
hiring practices.
Fourth, and perhaps most importantly, the TEA Chart does not comprise the entire pool
of candidates for teaching positions at HISD. (Marx Dep. 85:2-13.) The applicant pool Marx
analyzed consisted only of HISD ACP candidates, but did not include ACP candidates from
other ACP programs, or even more significantly, certified teachers who applied for teaching
positions at HISD. (Marx Dep. 85:2-13.) Marx simply assumed that the TEA Chart represented
the age distribution of the actual, entire pool of applicants for teaching positions at HISD. (Marx
Dep. 126:10-17.) However, when determining the composition of the relevant labor pool, the
actual applicant flow figures are the “preferred method” by which to measure HISD’s hiring
practices and should be used if available. See McClain v. Lufkin Indus., 519 F.3d 264, 279 (5th
Cir. 2008), cert. denied, 555 U.S. 881; Anderson, 26 F.3d at 1287; Scott, 148 F.3d at 510. Here,
17
Hixson has not demonstrated that actual applicant flow data is unavailable. What Marx analyzed
and used as the “relevant labor pool” was not the entire actual pool (or even the entire potential
pool) of applicants for HISD’s permanent teaching positions, but only a subset of applicants (the
subset being members of HISD’s ACP program). In order for Marx’s statistical analysis to meet
the standards outlined by the Fifth Circuit, Marx should have analyzed data regarding the entire
actual applicant pool, or if this was unavailable the entire potential applicant pool, for HISD’s
permanent teaching positions. Alternatively, Marx should have provided some basis for his
assumption that the age distribution of individuals in the TEA Chart was representative of the
age distribution of the actual applicant pool or the age distribution of the potential labor pool. We
cannot credit Marx’s assumption based only upon his ipse dixit statement. Indeed, we note that
some of the applicants left out of the labor pool, i.e. certified teachers, are individuals whose age
distribution might skew towards the older range of ages.
Fifth and finally, Marx’s analysis did not take into account various factors that may have
been used by principals in making hiring decisions, such as references for each candidate,
substitute teaching experience, and other variables, because he did not believe that the
distribution of these factors would vary across age groups in the TEA Chart. (Marx Dep. 107:1220, 107:12-20.) In Bazemore v. Friday, 478 U.S. 385 (1986), the Supreme Court held that the
plaintiffs’ regression analysis of a wage disparity between black and white employees with the
same job title, education and tenure was admissible even though there were other variables, such
as county-by-county wage variations, that might have accounted for the salary disparity. The
Supreme Court found that, though “the omission of variables from a regression analysis may
render the analysis less probative than it otherwise might be,” it does not make the analysis
unacceptable as evidence. Id. at 400. However, a regression analysis that fails to take into
18
account significant non-discriminatory factors, such as education and prior work experience,
may be rejected as flawed. See Medley v. DOJ of La., No. 10-31107, 2011 U.S. App. LEXIS
9954, *8-*9 (5th Cir. May 16, 2011) (statistical analysis failed to account for several major
variables, including education, past work experience, and length of job tenure); Sheehan v.
Purolator, Inc., 839 F.2d 99, 103 (2d Cir. 1988). Here, Marx failed to take into account two
extremely important factors—education and prior work experience—that may account for the
disparity he found between the hiring rate of individuals under 40 and the individuals over 40.
As such, we find that this flaw is one that renders the statistical analysis inadmissible. See
Medley, 2001 U.S. App. LEXIS 9954 at *8 (citing Bazemore, 478 U.S. at 400 n.10 (noting that
there are “some regressions so incomplete as to be inadmissible as irrelevant”)).
2. Analysis of HISD Chart
In his second analysis, Marx relied upon the data contained in the HISD Chart. The HISD
Chart listed all of the positions for which Hixson applied and were filled by ACP interns during
the period of 2008-09. Marx’s analysis of the HISD Chart showed that the hiring rate of ACP
interns was not representative of the applicant age pool. However, the labor pool used in this
analysis was drawn from the TEA Chart, which, as discussed above, was not representative of
either the actual applicant pool or the potential applicant pool for permanent teaching positions at
HISD. As such, we must reject this analysis as unsound because it did not analyze the actual or
potential applicant pool and did not provide a basis for assuming that the age distribution among
the individuals in the TEA Chart is representative of the age distribution among the actual or
potential applicant pool.
3. Analysis of Job Offers Hixson Should Have Received
19
In his third and final analysis, Marx took information provided by Hixson regarding the
number of permanent teaching positions at HISD to which Hixson applied, the number of
applicants for each position, and the number of job offers Hixson received. Marx analyzed this
data and concluded that Hixson should have received a certain number of job offers based on the
number of applications he submitted. In addition, Marx concluded that the probability that
Hixson received zero offers considering the number of job applications he submitted to be one
out of 750.
We find Marx’s analysis here to be based upon insufficient data. Marx relied only on the
figures provided by Hixson, which Hixson, in turn, heard at a court hearing. Marx testified that
he did not know in what time period Hixson applied for the approximately 2000 jobs. (Marx
Dep. 120:11-13.) He does not know how many jobs Hixson applied for in 2008. (Marx Dep.
120:8-10.) He does not possess the exact number of jobs that Hixson applied to. (Marx Dep.
120:6-7.) Hixson himself obtained these numbers during an “evidentiary” hearing where HISD’s
counsel stated that Hixson applied for 2000 jobs and that 300 applicants applied for each job.
(Marx Dep. 144:16-20.) However, Hixson has not verified that these figures are exact or even
close approximations to the actual number of Hixson’s job applications and the number of
applicants for each position. Without appropriate evidence supporting these figures as accurate
and complete, we cannot conclude that they comprise sufficient data for Marx’s analysis.
In sum, we exclude the entirety of Marx’s expert opinion due to the insufficient facts and
data upon which it is based and the failure of Marx’s statistical method to take into account
significant variables distinguishing the applicant pool, such as education and prior work history.
III.
SUMMARY JUDGMENT LEGAL STANDARD
20
A motion for summary judgment requires the Court to determine whether the moving
party is entitled to judgment as a matter of law based on the evidence thus far presented. FED. R.
CIV. P. 56(c).
Summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.” Kee v. City of Rowlett, 247 F.3d 206, 210 (5th Cir. 2001) (quotations omitted). A
genuine issue of material fact exists if a reasonable jury could enter a verdict for the non-moving
party. Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000). The party
moving for summary judgment must demonstrate the absence of a genuine issue of material fact
but need not negate the elements of the nonmovant’s case. Exxon Corp. v. Oxxford Clothes, Inc.,
109 F.3d 1070, 1074 (5th Cir. 1997). If the movant meets this burden, then the nonmovant is
required to go beyond its pleadings and designate, by competent summary judgment evidence,
the specific facts showing that there is a genuine issue for trial. Id. The Court views all evidence
in the light most favorable to the non-moving party and draws all reasonable inferences in that
party’s favor. Id. Hearsay, conclusory allegations, unsubstantiated assertions, and unsupported
speculation are not competent summary judgment evidence. F.R.C.P. 56(e)(1); See, e.g., Eason
v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996), McIntosh v. Partridge, 540 F.3d 315, 322 (5th Cir.
2008); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1975 (5th Cir. 1994) (noting that a nonmovant’s burden is “not satisfied with ‘some metaphysical doubt as to the material facts.’”
(citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
III.
SUMMARY JUDGMENT ANALYSIS
HISD has moved for summary judgment on Hixson’s claim of age discrimination under
the ADEA. It contends that Hixson cannot establish a prima facie case of discrimination, that it
21
possesses legitimate, nondiscriminatory reasons for not hiring Hixson, and that Hixson cannot
show that HISD’s legitimate, nondiscriminatory reasons were pretextual. In Response, Hixson
contends that he has established a prima facie case of discrimination, that HISD has failed to
offer legitimate, nondiscriminatory reasons for its failure to hire him, and that HISD’s reasons
are mere pretext.
A plaintiff filing suit under the ADEA may allege age discrimination either under a
theory of disparate treatment or disparate impact. See Smith v. City of Jackson, 544 U.S. 228, 240
(2005) (disparate impact theory of liability is available under ADEA); Reeves v. Sanderson
Plumbing Prods., 530 U.S. 133, 141 (2000) (disparate treatment theory of liability available
under ADEA). Only a disparate treatment claim is at issue here.6 To prove disparate treatment
under the ADEA, a plaintiff must prove, by a preponderance of the evidence, that age was the
“but-for” cause of the challenged adverse employment action. Gross v. FBL Fin. Servs., 557 U.S.
__, 129 S. Ct. 2343, 2352 (2009). A plaintiff may prove intentional discrimination by presented
either direct or indirect evidence. Scott v. Univ. of Miss., 148 F.3d 493, 504 (5th Cir. 1998).
When a plaintiff does not possess direct evidence of discrimination, courts apply the
burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). See, e.g., Reeves, 530 U.S. at 142-43 (applying McDonnell Douglas to ADEA claim);
Scott, 148 F.3d at 504 (same). Under this framework, a plaintiff must first establish a prima facie
case of discrimination. Reeves, 530 U.S. at 142. If the plaintiff establishes a prima facie case, the
burden shifts to the employer to “produce evidence that the plaintiff was rejected, or someone
else was preferred, for a legitimate, nondiscriminatory reason.” Texas Dept. of Community
6
Although Hixson devotes a portion of his response brief to arguing a claim based on disparate impact, we will not
consider this argument. In our Memorandum and Order dated June 13, 2011 (Doc. No. 58), we denied Hixson leave
to amend his complaint and add a claim of age discrimination based on disparate impact. We found that granting
leave was futile because Hixson had failed to exhaust his administrative remedies with respect to a disparate impactbased claim.
22
Affairs v. Burdine, 450 U.S. 248, 254 (1981). The burden imposed upon the employer at this
stage is one of production, not persuasion; the evidence, if taken as true, would permit the
conclusion that there was a nondiscriminatory reason for the adverse action. See St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993). If the employer proffers such a justification, the
plaintiff must come forward with some evidence, direct or circumstantial, “to rebut each of the
employer's proffered reasons and allow the jury to infer that the employer's explanation was a
pretext for discrimination.” Scott, 148 F.3d at 504. “[T]he ultimate burden of persuading the trier
of fact that the defendant intentionally discriminated against the plaintiff remains at all times
with the plaintiff.” Burdine, 450 U.S. at 253.
It is undisputed that Hixson does not possess direct evidence of discrimination. (Hixson
Dep. 94:8-12; 96:22-25, 98:14-17.) Therefore, we will analyze Hixon’s claims of age
discrimination under the McDonnell Douglas burden-shifting framework.
A. Hixson’s Prima Facie Case of Discrimination
To establish a prima facie case for discriminatory failure to hire under the ADEA, the
plaintiff must show that (1) he was over the age of forty at the time he was not selected; (2) he
was qualified for the position he sought; (3) he was not selected; and (4) the job remained open
or was filled by someone younger. See Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir.
2007) (citations omitted) (setting forth a prima facie case under the ADEA for discriminatory
discharge); Lindsey v. Prive Corp., 987 F.2d 324, 327 (5th Cir. 1993).
It is undisputed that the first and third elements of Hixson’s prima facie case are met.
Hixson was born on August 19, 1952 and over the age of 40 when he applied to all of the
permanent teaching positions at HISD. (Hixson Dep. 16:10.) He was not selected for any of these
23
positions. Therefore, we will focus on the second and fourth elements of Hixson’s prima facie
case.
1. Hixson Was Qualified for Positions Sought
HISD argues that Hixson was not qualified for the permanent teaching positions he
sought because (1) his application and resume were poorly drafted and contained mistakes (or
even misrepresentations), and (2) his resume was not tailored to the positions he sought because
he failed to indicate that he wished to teach non-Special Education classes. HISD concedes that
Hixson had completed and passed all State-required tests for the Special Education and
Elementary Education (Kindergarten through Fourth Grade) teaching positions to which he
applied in 2008. (Mot. Summ. J. at 4.) As a result of passing these tests, Hixson was eligible to
teach Elementary Education up to the Fourth Grade or Special Education. (Id.)
The Fifth Circuit has recognized that this element of a prima facie case is met once a
plaintiff demonstrates that he possesses the “objective” employment qualifications; whether the
plaintiff possesses “subjective” qualifications are left to the pretext stage of the McDonnellDouglas analysis. See Lindsey v. Prive Corp., 987 F.2d 324, 326-27 (5th Cir. 1993) (holding
prima facie case should not involve assessment of whether plaintiff met defendant’s subjective
qualification that dancers be “beautiful, gorgeous, and sophisticated”). Here, Hixson certainly
possessed some of HISD’s objective qualifications for permanent teaching positions because he
had passed all of the State-required tests.7 As for the “objective” requirement that Hixson specify
the teaching position he sought on his resume, Hixson’s failure to list his interest in Elementary
Education positions potentially renders him unqualified only for the Elementary Education
7
Hixson has also proffered evidence of his qualifications in the form of audio recordings and recommendation
letters from HISD personnel. HISD has challenged the admissibility of audio recordings. We need not resolve this
issue because we determine that Hixson was qualified for the positions he sought based on his undisputed deposition
testimony that he passed the three State-required tests.
24
positions he sought. He remains qualified for the Special Education positions he sought because
he clearly indicated in his resume that he desired to work in special education. Finally, with
respect to HISD’s “objective” criterion that applications and resumes be error-free and accurate,
it is not clear that HISD actually used this as an objective qualification by which to reject
applicants. Of the twenty-six declarations HISD submitted from the principals charged with
hiring decisions, only four principals indicated that errors in Hixson’s application materials were
a reason they had chosen not to hire him. (Mot. Summ. J Ex. D-14, D-17, D-22, D-23.) Hixon’s
inclusion of errors in his application materials likely would have put him out of the running for
teaching positions, but we believe there are fact issues as to whether principals actually used
such errors as an “objective” criterion by which to disqualify applicants. Based on the undisputed
fact that Hixson passed the State-required tests, we find that Hixson has proffered sufficient
evidence to establish that he was qualified for the permanent teaching positions he sought.
2. Someone Outside Hixson’s Protected Class Was Hired or the Position
Remained Open
HISD argues that Hixson cannot establish this element of his prima facie case because, of
the three hundred thirty-eight (338) positions to which he applied in 2008, thirty-two (32)
individuals hired for those positions were over the age of 40. Twenty-seven (27) positions were
either closed or not filled between May 26, 2008 and December 22, 2008.
Hixson has submitted a chart prepared by HISD listing the positions to which Hixson
applied that were filled by ACP interns and containing birthdate information for the ACP interns.
(Response to Mot. Summ. J. App. 6.) This chart demonstrates that many of the positions to
which Hixson applied were filled by ACP interns younger than the age of 40.
Hixson has also submitted a chart prepared by HISD listing the positions to which Hixson
applied that were filled by certified teachers, although this chart does not contain any birthdate
25
information for the certified teachers. (Id. App. 7.) The declaration of Sharron Warren-Ards,
HISD Certification Officer, confirms the information contained in this chart—that, of the
positions to which Hixson applied, two hundred twenty-three positions (223) were filled by
certified teachers. (Warren-Ards Decl. ¶ 3.) Further, Warren-Ards states that thirty-two (32)
individuals hired were over the age of 40. (Warren-Ards Decl. ¶ 4.) Assuming that these thirtytwo individuals over 40 were all certified teachers, we are still left with the fact that HISD hired
191 certified teachers under the age of 40 for positions to which Hixson applied. As such, we
find that Hixson has proffered sufficient evidence that the positions to which he applied were
filled by individuals under the age of 40.
As for the 32 individuals hired who were over the age of 40, they may have been
younger, the same age as, or older than Hixson. Hixson can meet his prima facie case by
showing that someone younger was hired for the teaching positions. See Berquist, 500 F.3d at
349. To the extent that these 32 individuals were younger than Hixson, Hixson has demonstrated
that someone younger was hired for the teaching positions.
With respect to HISD’s contention that Hixson cannot meet this element of his prima
facie case because 27 positions were either closed or not filled between May 26, 2008 and
December 22, 2008, the positions that were not filled (remained open) can still serve as a basis
for a prima facie case. See Lindsey, 987 F.2d at 327. As for the positions that were closed, these
cannot serve as the basis for Hixson’s prima facie case because these are not positions that were
either filled by someone outside the protected class, someone younger than Hixson, or remained
open.
Therefore, we find that Hixson has demonstrated that, with the exception of the positions
that were closed between May 26, 2008 and December 22, 2008, the positions were filled by
26
individuals under 40, individuals younger than himself, or remained open. In sum, we find that
Hixson has demonstrated the necessary elements of a prima facie case of age discrimination.
B. HISD’s Proffered Legitimate, Nondiscriminatory Reasons
HISD has proffered several legitimate, nondiscriminatory reasons for not hiring Hixson
for the positions to which he applied. First, with respect to 223 positions, HISD hired certified
teachers, who were more qualified than Hixson because they already possessed state
certification. Second, with respect to 88 positions, HISD hired ACP interns instead of Hixson for
several reasons: (a) Hixson’s resume and application did not indicate the type of prior experience
he had working with younger children; (b) Hixson’s resume and application indicated that he
was looking for a position other than the one posted at that particular school; (c) Hixson did not
have prior experience teaching students with behavioral needs; (d) in his application materials,
Hixson did not express a desire to be a part of a team; (e) Hixson did not possess a strong
background in mathematics or some other particular field the principal was focused upon; (f)
Hixson did not have as impressive of academic credentials as some other ACP interns; (g)
Hixson’s resume and application was poorly written and contained errors; (h) Hixson did not
have prior experience working with the principal, unlike the person who was hired; (i) Hixson
was not part of Teach for America, unlike other HISD ACP interns; (j) Hixson’s act of offering
$10,000 to principals at his interview left an unfavorable impression. (Mot. Summ J. at 12-15 &
Ex. D; Best Decl. ¶¶ 4-8.)
All of the reasons proffered by HISD for not hiring Hixson are legitimate and
nondiscriminatory. HISD’s desire to hire individuals with greater experience or better
qualifications, such as certified teachers, teachers with superior academic credentials or
enrollment in Teach for America, or teachers with a particular type of work experience or subject
27
matter background, have been recognized as legitimate, nondiscriminatory reasons. See Price v.
Fed. Express Corp., 283 F.3d 715, 721 (5th Cir. 2002) (promoted candidate’s management
experience, military training and ties to local law enforcement served as legitimate,
nondiscriminatory reasons for failure to promote plaintiff); Scott, 148 F.3d at 505-507 (plaintiff’s
lack of federal clerkship experience, inferior legal writing experience, and lack of classroom
teaching experience as legitimate, nondiscriminatory reasons for failure to hire); Bennett v. Total
Minatome Corp., 138 F.3d 1053, 1061 & n.11 (5th Cir. 1998) (plaintiff’s inability to speak
French, insufficient offshore experience, and lack of drilling experience recognized as legitimate,
nondiscriminatory reasons); Pond v. Braniff Airways, 500 F.2d 161, 165 (5th Cir. 1974) (no
discrimination where employer weighed talents of respective applicants and chose one over other
based on talent). As for Hixson’s failure to profess a desire to work as part of a team, this too has
been recognized as a legitimate, nondiscriminatory reason for an employer’s adverse
employment action. See Bennett, 138 F.3d at 1061 n.11 (legitimate, nondiscriminatory reason
found in plaintiff’s lack of team-building skills). With respect to the omissions and deficiencies
in Hixson’s application, these are very clear and specific reasons, unrelated to age, why Hixson
would not have been selected for teaching positions. Finally, Hixson’s offer of $10,000 in cash to
purchase computers serves as a legitimate, nondiscriminatory reason for why he was not hired
for the positions, even though the principals’ negative reaction to this gesture was subjective. See
Alvarado v. Texas Rangers, 492 F.3d 605, 616 (5th Cir. 2007) (subjective assessment of
candidate’s performance in interview may serve as legitimate, nondiscriminatory reason for
candidate’s non-selection); Richter v. Hook-SupeRx, 142 F.3d 1024, 1029 (7th Cir. 1998)
(accepting employee’s weak performance and lack of involvement in important job functions as
legitimate, nondiscriminatory reasons).
28
Hixson challenges HISD’s proffered legitimate, nondiscriminatory reasons on various
grounds, none of which are meritorious. First, Hixson claims that HISD’s preference for
“prestigious schools, “highly regarded” programs, and applicants known to principals are not
legitimate, nondiscriminatory reasons for hiring one candidate in favor of another because they
have the tendency to result in discriminatory hiring practices. However, the case cited by Hixson,
Thomas v. Washington Cnty. Sch. Bd., 915 F.2d 922, 924-26 (4th Cir. 1990), dealt with hiring
practices based on nepotism and “word-of-mouth.” Here, the desire of HISD to hire graduates
from prestigious schools or Teach for America and individuals with experience with a particular
principal are perfectly legitimate, merit-based factors through which HISD attempts to hire the
best qualified candidates. Second, Hixson contends that several of the proffered reasons are not
credible8 and that the declarations from principals are all self-interested. At this stage, however,
HISD’s burden is one of production, not persuasion. See Bodenheimer v. PPG Indus., 5 F.3d
955, 958 (5th Cir. 1993) (court should avoid making credibility determinations because “the
burden-of-production determination necessarily precedes the credibility-assessment stage. The
employer need only articulate a lawful reason, regardless of what its persuasiveness may or may
not be.” (omitting internal quotation)).
We find that HISD has come forward with legitimate, nondiscriminatory reasons for its
failure to hire Hixson sufficient to meet its burden under the McDonnell Douglas framework.
C. Hixson’s Demonstration of Pretext
To establish pretext in a failure to hire claim, a plaintiff must demonstrate that the
employer’s nondiscriminatory reason was false or that the plaintiff was “clearly better qualified”
8
For example, Hixson challenges the inference that his presentation of $10,000 at interviews was a bribe. Hixson
claims that a close reading of the email he sent to a principal, and his continued work at the school after his
interview without incident, shows that he did not offer a bribe and the principal did not take offense to offer.
29
than the others chosen for the position. See Price v. Fed. Express Corp., 283 F.3d 715, 721-23
(5th Cir. 2002).
1. Clearly Better Qualified
As an initial matter, Hixson cannot establish that he was “clearly better qualified” than
the 223 individuals who were already certified teachers when HISD hired them for the teaching
positions. Although Hixson is correct in stating that he was equally eligible to be hired for
teaching positions as a certified teacher, he was not better qualified than the certified teachers
because he was not yet certified. And, although Hixson may have had more years of substitute
teaching experience than some of the certified teachers, this characteristic does not demonstrate
that Hixson was clearly better qualified than certified teachers.
With respect to the 88 ACP interns hired by HISD for teaching positions sought by
Hixson, Hixson has not demonstrated that he was clearly better qualified than these individuals
either. Hixson claims that he had passed all three State-required tests at the time he applied to
teaching positions, while some ACP interns had not passed any tests and some actually had
failed tests. Hixson points to the TEA Chart as evidence for this assertion, but this evidence does
not serve the purpose for which it is marshalled because we have no idea whether any of the
individuals on this chart were hired for the positions sought by Hixson. Hixson also points to a
chart entitled “Chart 1: Positions Hixson Applied For That Were Filled by ACP Interns.” (Doc.
No. 64 App. 6.) In reviewing this chart, we can only see four positions that were filled by ACP
interns that had not passed a State-required test prior to their date of hire: Position Nos. 48232-2,
20169-3, 7141-1, and 62577-2. However, two of these positions (48232-2, 7141-1) were for
Special Education teachers and the individuals who were hired for them had passed their Special
Education test prior to their date of hire, even though they passed their Content test after the date
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of hire. Hixson cannot demonstrate that he was clearly better qualified than these individuals,
because they had passed the test necessary for a Special Education teaching position. The other
two positions (20169-3, 62577-2) were also for Special Education teachers and the individuals
hired for those positions had passed only the Content test prior to the date of hire, but not the
Special Education exam. Arguably, Hixson could have been more qualified than these
individuals, but without evidence about who these individuals were and their qualifications
relative to those of Hixson, we cannot conclude that Hixson was clearly better qualified than
them for the positions.
2. Legitimate, Nondiscriminatory Reasons Were False
Hixson offers several arguments to rebut HISD’s proffered legitimate, nondiscriminatory
reasons as false. None of these succeeds in demonstrating that there is a genuine issue of material
fact regarding the falsity of HISD’s legitimate, nondiscriminatory reasons.
First, Hixson has argued that HISD had a policy to control healthcare costs by not hiring
older applicants for teaching positions. However, Hixson has submitted no summary judgment
evidence supporting the existence of such a policy. Hixson’s references in his deposition to
statements made by an HISD school board member at a school board meeting are insufficient to
support a reasonable inference of age discrimination. These statements about the successful
reduction of HISD’s health care costs cannot serve as evidence of age discrimination because
they do not refer in any way to Hixson’s age, let alone the age of any applicant or employee, or
the employment decisions of which he complains. See Bennett v. Total Minatome Corp., 138
F.3d 1053, 1061 (5th Cir. 1998) (employer’s statement that it intended to focus recruitment
efforts on young people did not support inference of age discrimination because it did not refer to
plaintiff’s age or demotion); Turner v. North American Rubber, Inc., 979 F.2d 55, 59 (5th Cir.
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1992) (comment by plaintiff's supervisor that he was sending him “three young tigers” to assist
with operations not sufficient evidence of age discrimination because it did not refer in any way
to plaintiff's age and was not in any way related to plaintiff's discharge). The other comments
Hixson heard about HISD’s hostility towards older employees and desire to get rid of them have
not been attributed to any HISD decisionmaker. See Manning v. Chevron Chem. Co. LLC, 332
F.3d 874, 882 (5th Cir. 2003) (in order for workplace comments to serve as evidence of
discrimination, they must be made by individual with authority over the employment decision at
issue). Therefore, Hixson has not shown that HISD’s legitimate, nondiscriminatory reasons are
pretext because HISD was, in fact, motivated by a desire to lower healthcare costs through the
lack of hiring of older applicants.
Next, Hixson contends that HISD’s reliance on errors in his resume and application as a
legitimate, nondiscriminatory reason is pretext because he had his resume reviewed by various
people in HISD’s personnel department. These HISD employees, specifically Josephine Morgan
and Robin Williams, either did not catch the errors on Hixson’s application or endorsed Hixson
as a highly recommended applicant despite the errors. Unfortunately, neither of these
individuals’ actions can demonstrate that HISD’s failure to hire Hixson was pretext. It is
undisputed that neither individual was involved in hiring decisions with respect to the positions
that Hixson applied. Therefore, Williams’ and Morgans’ review and endorsement of Hixson’s
materials says nothing about whether the principals’ who reviewed Hixson’s materials found the
errors contained in them to be a reason to exclude Hixson. Hixson cannot use the endorsement
by Williams and Morgan as evidence that the principals who made the hiring decisions were
actually motivated by Hixson’s age rather than by the errors. We also note that Morgan signed a
recommendation letter drafted by Hixson and sent to Williams. There are no facts in the record
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to indicate whether Morgan actually reviewed Hixson’s application materials. Therefore,
Hixson’s claim that Morgan reversed her endorsement of Hixson’s application materials postlawsuit is undermined by ambiguous nature of Morgan’s initial review of Hixson’s materials.
Next, Hixson argues that HISD’s reliance on the Teach for America (“TFA”) program as
a source of highly qualified candidates is pretext. Hixson’s argument is not very clear, but it
appears that he believes that the real reason why HISD prefers TFA participants is because they
are young and they have lower health care costs. In addition, Hixson believes that nepotism is at
work in the hiring of TFA candidates because Ann Best, HISD’s Chief Human Resources
Officer, is an alumna of the TFA program. As the Fifth Circuit has stated, “we should not
substitute our judgment of an employee's qualifications for the employer's in the absence of
proof that the employer's nondiscriminatory reasons are not genuine.” EEOC v. Louisiana Office
of Community Servs., 47 F.3d 1438, 1448 (5th Cir. 1995). Here, Hixson’s arguments do not
attack HISD’s reliance on TFA as false in the sense that HISD did not hire TFA candidates or
was not motivated by a preference for TFA candidates. Rather, Hixson is really arguing that
HISD is unjustified in using TFA candidates because of the propensity for nepotism and doubts
about the program’s cost-effectiveness.9 These types of arguments do nothing to meet Hixson’s
burden that age discrimination is actually what lay behind HISD’s preference for TFA candidates
over him. Finally, with respect to the purported lower health care costs of TFA candidates, we
simply do not possess competent summary judgment evidence to consider this proposition.10
9
Hixson also contends that HISD’s reliance on TFA candidates leads to a disparate impact upon individuals over 40
who apply for teaching positions because TFA has only been in place for 12 years and, consequently, TFA
candidates are unlikely to be over the age of 40. Again, we have dismissed Hixson’s claims based upon a disparate
impact theory of discrimination.
10
Hixson attempts to rely upon newspaper articles and academic studies of the TFA program as evidence that TFA
candidates are younger and have lower health care costs than individuals over 40. (Doc. No. 64 App. 8, 9.) HISD
has challenged this evidence as hearsay. We agree with HISD that these documents are not competent summary
judgment evidence.
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Similarly, Hixson challenges as pretext HISD’s reliance on “prestigious schools,” the fact
that individuals hired were previously known to the hiring principals, and the hired candidates’
prior successful experience working at the schools where they were hired. However, Hixson has
not submitted any summary judgment evidence that HISD did not, in fact, rely upon these
reasons when making hiring decisions. See Scott, 148 F.3d at 504 (jury issue presented where
there is fact issue as to whether each of employer’s stated reasons was what actually motivated
employer). Hixson relies heavily on the case of Lindsey v. Prive Corp., 987 F.3d 324, 328 (5th
Cir. 1983), for the proposition that “an employer may not utilize wholly subjective standards by
which to judge its employees’ qualifications and then plead lack of qualification when its
promotion process, for example, is challenged as discriminatory.” This case is inapposite to the
situation presented here. The reliance upon “prestigious” schools is not wholly subjective, as
there are rankings and other metrics by which to decide which schools provide better academic
training than others. Similarly, the reliance upon prior teaching experience at a school and the
principal’s familiarity with a candidate is not a subjective assessment, but an objective
characteristic about an application. Even assuming that these characteristics were subjective,
Hixson has not supplied any evidence to indicate that HISD was less than truthful when relying
upon these characteristics. In Lindsey, in contrast, the plaintiff provided some evidence that a
gentleman’s club was not truthful when it claimed she was not “beautiful, gorgeous, and
sophisticated.” Id. at 328.
Rather, Hixson contends that HISD should not have relied upon these characteristics
when hiring teachers. However, none of the reasons why Hixson contends that reliance upon
these characteristics is unadvisable is linked to age discrimination. Hixson believes that taking
into consideration academic prestige, connections to hiring principals, and prior experience at a
34
school results in the exclusion of qualified candidates. While this may be true, there is no
indication that any exclusion is motivated by a desire to discrimination against applicants based
on age.
Finally, Hixson believes that HISD’s reliance upon the purported “bribe” Hixson made to
principals is pretext. Hixson contends that he did not attempt to bribe the principals, but merely
intended to demonstrate his financial ability to purchase computers for students. He attacks the
credibility of the declaration of Clifford W. Buck (“Buck”), principal of Shearn Elementary who
hired a Special Education Support Class Teacher (Position No. 26368-4). (Mot. Summ. J Ex. D2.) In his declaration, Buck states that the individual hired was selected because she had prior
experience working with children who had behavioral problems. (Id. ¶ 2.) Buck states that he did
not hire Hixson due to Hixson’s problems with classroom management while a substitute teacher
at the school and Hixson’s derogatory statements about students. (Id. ¶ 3.) Buck also states that
Hixson emailed him with an offer of $10,000 dollars to buy computers for students, which Buck
interpreted as inappropriate bribery to solicit a job. (Id.) Hixson contends that Buck’s proffered
reasons are not credible because Buck never brought the derogatory comments or his concerns
about the “bribe” to Hixson’s attention at any point during the last three years that Hixson has
worked at Buck’s school as a substitute teacher. (Doc. No. 64 at 16.) We believe that Hixson’s
assertions do raise a genuine issue of material fact with respect to pretext over HISD’s failure to
hire him for Position No. 26368-4. Hixson has shown that there are reasons to doubt the
credibility of Buck’s reasons for not hiring Hixson. However, Hixson’s assertions are merely
arguments contained in a motion and are not competent summary judgment evidence. Hixson
cannot use these unsupported assertions as a basis to defeat summary judgment.
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We conclude that Hixson’s evidence fails to raise a genuine issue of material fact as to
pretext or falsity. Hixson has failed to meet his burden in order to defeat summary judgment.
Therefore, we grant summary judgment to HISD on all of Hixson’s claims.
IV.
CONCLUSION
Defendant’s Motion to Strike Plaintiff’s Statistical Expert (Doc. No. 59) is GRANTED.
Defendant’s Motion for Complete Summary Judgment (Doc. No. 61) is GRANTED. Plaintiff’s
claims against Defendant HISD are DISMISSED.
IT IS SO ORDERED.
SIGNED this the 17 day of August, 2011.
KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE
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