RICHARDSON v. POTTER

HELEN BERRIGAN, Chief Judge, District

Before this Court is Defendant's Motion for Summary Judgment. Having reviewed the motions, administrative record, and the applicable law, for the following reasons, Defendant's Motion for Summary Judgment is DENIED.

Plaintiff Patricia M. Richardson ("Richardson") is a woman over forty years of age who alleges that she was discriminated against by Defendant, John E. Potter, Postmaster General of the United States Postal Service, based upon her age in violation of the Age Discrimination Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"). Specifically, Plaintiff claims that Defendant's Louisiana District Human Resources Manager, Douglas E. Russell ("Russell"), a man over forty years of age, promoted Robert E. Brown ("Brown"), a man under forty years of age, to the position of Manager, Safety and Health, instead of her on December 18, 2002. (Rec. Doc. 1, at 1).

Ms. Richardson began working at the United States Postal Service in 1978 as a distribution clerk. The vacancy for the Manager, Safety and Health position was posted in November 2002, after the incumbent, Richard O'Brien retired. Four employees applied for the vacancy, including Plaintiff, Brown, Mark Merrell and Willie Collier. (Rec. Doc. 16, at 1). With the exception of Brown, all applicants were over the age of forty at the time of the interview. (Rec. Doc. 16, Def's Motion for Summ. J., at 35, 50, 63, 77). At the time of the interview, Plaintiff had served as the Human Resources Safety Specialist for over nine years. (Rec. Doc. 16, Def's Motion for Summ. J., Appendix, at 77). Prior to his promotion to the disputed position, Robert Brown had sewed as the Manager of Distribution for approximately four years and had accumulated twelve years of supervisory managerial experience within the Postal Service. (Rec. Doc. 16, Def's Motion for Summ. J., Appendix, at 50).

On December 18, 2002, Plaintiff contacted her employer's Equal Employment Opportunity counselor to allege that her non-selection was based on gender and age discrimination and subsequently sent notice to the EEOC of her intent to file a civil action alleging age discrimination: (Rec. Doc. 4, Def's Motion to Dismiss, Appendix, at 34). Willie Collier also filed a separate complaint with the EEOC alleging discrimination regarding Brown's hiring. (Rec. Doc. 20, at 2). In her complaint, Richardson asserted that she believed that she was more qualified for the promotion than Brown. Additionally, Richardson contended that the committee responsible for hiring was not properly constituted and violated the restrictions for setting up hiring committees under § 743.523 of the United States Postal Service Rules and Regulations. (Rec. Doc. 1, at 2). On October 10, 2003, Plaintiff amended her claim naming John E. Potter, Postmaster General, as the sole defendant and dropping her allegation of gender discrimination. (Rec. Doc. 14, at 1).

A district court can grant a motion for summary judgment only when 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 a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56c)). When considering a motion for summary judgment, the district court "will review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). The court must find "[a] factual dispute . . . [to be] `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. . . . [and a] fact . . . [to be] `material' if it might affect the outcome of the suit under the governing substantive law." Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial." Engstrom v. First Nat'l Bank of Eagle Lake, 47 F.3d 1459 1462 (5th Cir. 1995) (citing Celotex, 477 U.S. at 322-24 and Fed.R.Civ.P. 56(e)). The mere argued existence of a factual dispute will not defeat an otherwise properly supported motion, See Anderson, 477 U.S. at 248. "If the evidence is merely colorable, or is not significantly probative," summary judgment is appropriate. Id. at 249-50.

Ms. Richardson claims that she was discriminated against because of her age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (ADEA). Title VII provides that "[i]t shall be unlawful employment practice for an employer-(1) to fail or refuse to hire or to discharge any individual . . . because of such individual's race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a)(1). `The ADEA proscribes similar treatment on the basis of age. 29 U.S.C. § 623(a)(1).

"The same evidentiary procedure for allocating burdens of proof applies to discrimination claims under both statutes." Meinecke v. H R Block, 66 F.3d 77, 83 (5th Cir. 1995) (citing Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 n. 4 (5th Cir. 1993); Fields v. J.C. Penney Co., 968 F.2d 533, 536 n. 2 (5th Cir. 1992). An ADEA plaintiff bears the initial burden to prove a prima facie case of discrimination by a preponderance of the evidence. See Shackelford v. Deloitte Touche, 190 F.3d 398 (5th Cir. 1999); see also Meinecke v. H R Block, 66 F.3d 77 (5th Cir. 1995). To establish a prima facie ADEA case, Plaintiff must prove that (1) she belongs to a protected class, i.e. was over the age of forty (40); (2) she applied for and was qualified for a position that was seeking applicants; (3) she was rejected; and (4) following her rejection, another applicant not of the protected class was hired. See Evans v. City of Houston, 246 F.3d 344, 348-49 (5th Cir. 2001). If established, the Plaintiff's case raises a presumption of intentional discrimination, which the defendant must rebut by articulating a legitimate, nondiscriminatory reason for its actions. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981).

The burden then falls on the defendant to state, "through the introduction of admissible evidence, reasons for its actions which, if believed by the trier of fact, would support a finding that the unlawful discrimination was not the cause of the employment action." St. Mary's Honors Center v. Hicks, 509 U.S. 502, 507 (1993) (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55 (1981)). If the defendant articulates such a reason, the presumption disappears and the focus shifts to the ultimate question: whether the plaintiff can prove that the defendant intentionally discriminated against the plaintiff. Burdine, 450 U.S. at 255).

The plaintiff may attempt to overcome the employer's proffered nondiscriminatory reason by providing evidence that the employer's legitimate, nondiscriminatory reason is merely pretextual. See St. Mary's, 509 U.S. at 511. To establish pretext, the plaintiff must show that the evidence, taken as a whole,"(1) create[s] a fact issue as to whether each of the employer's stated reasons was what actually motivated the employer and (2) create[s] a reasonable inference that [age] was a determinative factor in the actions of which plaintiff complains." Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1996). The plaintiff, therefore, "retains the ultimate burden of persuasion throughout the case." Faruki v. Parsons S.I.P., Inc., 123 F.3d 315, 318 (5th Cir. 1997) (citing Burdine, 450 U.S. at 253).

Ms. Richardson meets the necessary requirements to establish a prima facie case of discriminatory discharge because: (1) she is a woman over forty years of age; (2) she applied for and was qualified for the vacant position as manager; (3) she was rejected; and (4) the person who was hired, Robert Brown, was less than forty years of age. (Rec. Doc. 20, at 4). Defendant claims its legitimate nondiscriminatory reasons were: (1) Russell determined that Richardson performed poorly during the interview process and that she lacked the supervisory skills necessary to succeed in the managerial position; (2) Russell evaluated Brown's performance as better than Richardson's in the Manager, Safety and Health detail assignment each performed prior to the position being posted as vacant; (3) Russell considered Brown to be a better candidate because Brown already held a supervisory position with experience on the work room floor; (4) Russell determined that Brown's answers to the interview questions and hypothetical, his background as a Distributions Operations Supervisor and his two college degrees made him the "most superior" candidate; and (5) Russell, himself over the age of forty, has selected a substantial number of individuals older than forty years of age for managerial positions in his District. (Def's Mem. Summ. J. Rec. Doc. 16, at 4-5).

Furthermore, Defendant contends that Russell contacted Southwest Area Safety Specialist Jim Gautney and Ellen St. Cyr, Acting Manager of Labor Relations for the Louisiana District, both over the age of forty, as safety experts for subject matter assistance and invited them to sit in during the interview process, yet Russell alone ultimately made the decision to hire Brown. Defendant asserts that Russell made his hiring decision in accordance with the United States Postal Service Rules and Regulations which require, under § 743.521, the formation of a review committee with at least three members if there are five applicants, but when there are fewer than five applicants, the selecting official may choose to interview all the candidates personally. (Rec. Doc. 16, Def's Motion for Summ. J., Appendix, at 29). Additionally, § 743.523 of the United States Postal Service Rules and Regulations restrict the supervisor or the position to be filled from serving on the hiring committee. (Rec. Doc. 16, Def's Motion for Summ. J., Appendix, at 29). Defendant asserts that Russell did not violate § 743.523 because Gautney and St. Cyr did not serve on a hiring committee and were contacted merely for their safety expertise and assistance with the interview questions and hypothetical. (Rec. Doc. 16, Def's Motion for Summ. J., Appendix, at 10). Defendant asserts that Russell did not violate the hiring regulations because he made the final decision to hire Brown independently, not as part of a hiring committee. (Rec. Doc. 16, Def's Motion for Summ. J., Appendix, at 10).

Rebutting Defendant's explanations, Plaintiff claims that she has greater experience than Brown. According to Richardson, Russell knew that she had served more years in the department and that Russell asked her to train Brown in safety because he did not have a safety background. (Rec. Doc. 4, Def's Motion to Dismiss, Appendix, at 34). Plaintiff asserts that Russell attempted to persuade her to move to another position instead of the vacant position that was later awarded to Brown and that Brown supposedly told other employees that he was going to be hired for the job even before the interviews took place. (Rec. Doc. 20, at 5). She also claims Russell on several occasions, prior to Brown's selection, asked her about her retirement eligibility and plans. (Rec. Doc. 20 at 3-5). Furthermore, Plaintiff claims that Russell formed a hiring committee in violation of United States Postal regulations in order to act as a "cover" for his hiring decision. (Rec. Doc. 20, at 5-6).

In addition to rebutting Defendant's claims, Plaintiff also asserts that summary judgment is inappropriate because it is premature. See Fed.R.Civ.P. 56(f). Specifically, Plaintiff asserts that further discovery, such as production of the personnel files of all applicants to establish qualifications, complete personnel file of Russell, depositions of those who participated in the hiring process, and production of the complaint filed by Willie Collier, will allow her to properly refute Defendant's allegations. (Rec. Doc. 20, at 3)

The Court agrees that the Motion for Summary Judgment is premature. While the government has attached the self-serving affidavits of their key witnesses, none of them have been tested through adversarial deposition. Richardson alleges Russell inquired about her retirement plans which, if true, could indicate an age-bias against her. The government concedes Russell did not review the personnel files of the applicants which might also indicate a less than thorough application process. All of this simply indicates that the motion is premature and discovery needed to yield more of the actual facts. See FED. R. CIV. P. 56(f). It is noted though, that Defendant may raise its claims again after the requisite discovery has taken place.

Accordingly,

IT IS ORDERED that the motion to dismiss by Defendant John E. Potter, Postmaster General of the United States Postal Service is hereby DENIED.