Learn v. Hummert et al

Filing 36

Opinion on Summary Judgment. Richard Learn will take nothing from the United States of America.(Signed by Judge Lynn N. Hughes) Parties notified.(amwilliams, 4)

UNITED STATES DISTRICT COURT

Richard Learn,
Plaintiff,
'Versus

Marie Hummert,

ct

al.,

Defendants.

SOUTHERN DISTRICT OF TEXAS

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Civil Action H'I3'2388

Opinion on Summary Judgment
1.

Introduction.
Richard Learn sued the United States, his employer, because he was not promoted. He

says its decision not to promote him was based on his age. It had four legitimate reasons,
unrelated to his age, for not promoting him. He has not rebutted the reasons. Learn will take
nothing.

2.

Background.
Richard Learn was an asylum officer in Houston with United States Citiz;enship and

Immigration Services - a division of the Department of Homeland Security. He worked for
seven years before he applied to be a supervisory asylum officer. Learn was 63 years old when
he applied.
Immigration Services ranked a list of candidates. This list was sent to the selecting
officer, Marie Hummert. She chose Bryan Hemming, as her first choice, and Kirk Wills as her
second choice. Hemming was 29 and had worked as an asylum officer for three years. Kirk
Wills was 39 and had worked there for four years. Hummert's choices were sent to
headquarters for approval. Immigration Services approved Hemming. It then decided that it
needed a second supervisory asylum officer and it approved her second choice, Wills.
Learn says that he was not promoted because he was old.

3.

Reasons.
Hemming and Wills were better candidates than Learn for four reasons.
Both had other training that was well suited for asylum work. Hemming had earned a

law degree from Indiana University. Wills had worked as a district-adjudication officer interviewing and deciding applications for immigration.
Hemming and Wills wrote better. Hemming's writing was clear, concise, and well
organiz;ed. Wills also wrote well.
Hemming and Wills were tactful and polished. Hemming was professional and calm
with people both in and out of the Houston office. Wills's interviews were cordial and
professional.
Hemming and Wills were leaders. Hemming had served as an acting supervisor when
the office was short-staffed. He also served as the office's quality-assurance trainer - he led
four-hour training sessions each week for other asylum officers. Wills showed leadership and
dedication by reporting to work during hurricane Ike despite having been out of contact with
his supervisors.
Learn's evaluations show only that he was doing a good job generally. They do not rank
his performance, and they say nothing about it compared to his colleagues. Learn's writing was
adequate. His legal sophistication, though adequate, was inferior to the others.
Learn was quick tempered, sarcastic, and often rude. He says that his job as a union
steward explains his conflict with his supervisors. He says that he never argued with supervisors
otherwise. One evaluation notes that Learn lost his patience with a supervisor and was
unprofessional. Learn's job is to serve the public; his union work cannot supply a missing
qualification.
Learn says that his position as union steward and his military experience show him to
be a leader. Although he had had those jobs, he demonstrated no leadership in accomplishing
the Houston office's work. He says that he showed his leadership by taking over

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online-training courses - many dealing with leadership skills. Learn was a student in those
classes, while Hemming had taught training courses.

4.

Standard.
Learn's facts, taken as true, do not undermine the government's explanation. He cannot

show that the proffered reasons for his having not been promoted were either unworthy of
credence or that he was clearly better qualified for the promotion than his peers. The facts
Learn presents merely show that he was qualified; the government agrees. Learn, however, was
not a materially better candidate than either Hemming or Wills.
Learn has not shown that age discrimination played a role in his not being promoted.
Without discrimination, this court need not reach the question of whether a "but for" or
"mixed motive" standard should apply. Under either standard, Learn fails to prove a casual
connection.

5.

Conclusion.
Learn was not promoted because his peers were materially better candidates, not

because he was old. He has offered no fact to contradict the government's explanation for
selecting Hemming and Wills. He has shown only that he was old and not promoted. Those
are necessary conditions, not sufficient ones.
Richard Learn will take nothing from the United States of America.

Signed on August 2.4, 2.015, at Houston, Texas.

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Lynn N. Hughes
United States DistrictJudge