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Shumate v. Chao

United States District Court, S.D. Mississippi, Northern Division

January 10, 2020

DAVID SHUMATE PLAINTIFF
v.
ELAINE L. CHAO, Secretary, United States Department of Transportation DEFENDANT

          MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION [41] FOR SUMMARY JUDGMENT

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.

         BEFORE THE COURT is Defendant Elain L. Chao's Motion [41] for Summary Judgment. This suit arises out of Plaintiff's failure to be promoted while serving as a civil engineer for the Federal Aviation Administration. Plaintiff asserts that he was denied promotion because of his age and was retaliated against for engaging in protected activity in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (2012).

         Defendant has filed a Motion [41] for Summary Judgment, asking the Court to dismiss Plaintiff's suit in its entirety. Plaintiff has filed a Response [45]. Having considered the parties' submissions, the record, and relevant legal authority, the Court is of the opinion that Defendant's Motion [41] for Summary Judgment should be granted in part and denied in part. Plaintiff's age discrimination claims and his first retaliation claim should be dismissed with prejudice. His second retaliation claim should proceed.

         I. BACKGROUND

         Plaintiff David Shumate (“Shumate”) was hired as a civil engineer by the Federal Aviation Administration (“FAA”) in 1992 to work in its Airports District Office (“ADO”) in Jackson, Mississippi. Def. Ex. 1 [41-1], Shumate Dep., at 7-8. He has worked in the Jackson ADO his entire career. Id. at 8. In February 2013, Shumate was one of seven people who applied for an assistant manager position in the ADO in Memphis, Tennessee. Pl. Mem. [46] at 2. The manager of the Memphis ADO, Phillip Braden, selected four FAA employees to interview the applicants. Id. at 1. Braden prepared a list of ten questions for the interviewers to ask the applicants, with the same questions being asked to each applicant. Pl. Ex. B [45-2], Braden Dep., at 31. The interviewers also rated each applicant's performance through a numeric score. Pl. Mem. [46] at 2. At the conclusion of the initial interviews, Braden conducted a second interview with the applicants who received the top four scores. Id. at 3-4. Shumate was not one of the top four performing applicants and did not receive a second interview. Pl. Ex. B [45-2], Braden Dep. at 53. Thirty-four-year-old Paul Friedman (“Friedman”) was eventually selected for the position. Pl. Mem. [46] at 9-10. Shumate, who is fifty-three years old, filed an Equal Employment Opportunity (“EEO”) complaint alleging that he was not selected for the job because of his age. Def. Ex. 7 [41-1], First Claim Acceptance Letter, at 1.

         A few months later, in October 2013, Shumate applied for another assistant manager vacancy, this one at the Jackson ADO. Pl. Mem. [46] at 13-14. As part of his application, Shumate was required to submit a form titled “SF-50, Notification of Personnel Action.”[1] Pl. Ex. K [45-11], Brewster Dep. at 10. However, Shumate and two other applicants failed to submit this form by the application closing date. Pl. Mem. [46] at 16. As a result, all three applicants were declared ineligible for the position and received no further consideration. Id. William Schuller, who was fifty years old, was eventually selected to be the Jackson ADO assistant manager. Id. at 24. Shumate amended his EEO complaint to allege that he was declared ineligible for the position because of his age and in retaliation for his original EEO filing. Def. Ex. 13 [45-13], Second Claim Acceptance Letter, at 1.

         The assistant manager position in the Memphis ADO became vacant again in July 2014. Id. at 8. Shumate and another civil engineer were the only qualified applicants for this position. Pl. Mem. [46] at 29. Braden interviewed each applicant twice but decided not to select either of them for the position. Pl. Ex. N [45-14], Second Braden Dep. at 26-29. After the vacancy was re-advertised, Tommy Dupree, age fifty-seven, was chosen for the position. Pl. Mem. [46] at 29, 32. Shumate again amended his EEO complaint to include additional age discrimination and retaliation claims in connection with his application for this position. Def. Ex. 16 [45-16], Third Claim Acceptance Letter, at 1.

         Ultimately, the Equal Employment Opportunity Commission's Office of Federal Operations issued a decision on November 3, 2017, finding that the FAA did not discriminate or retaliate against Shumate when it did not hire him to any of the three assistant manager positions. Compl. [1] at 2-3. Shumate filed this lawsuit on January 30, 2018, claiming that the United States Department of Transportation Secretary Elaine Chao (“Defendant”), through the FAA, violated the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621-634 (2018), by refusing to promote him to any of the three assistant manager positions for which he applied, and retaliating against him for engaging in EEO activity on two occasions when it did not hire him for the Jackson or the Memphis positions. Compl. [1] at 1. At the conclusion of discovery, Defendant filed the instant Motion [41] for Summary Judgment seeking dismissal of all of Shumate's claims. Defendant argues that there is no genuine issue of material fact and that summary judgment is proper. Shumate opposes the Motion.

         II. DISCUSSION

         A. Legal standard

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). If the movant carries this burden, “the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).

         To rebut a properly supported motion for summary judgment, the opposing party must show, with “significant probative evidence, ” that there exists a genuine issue of material fact. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000). “A genuine dispute of material fact means that evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Royal v. CCC&R Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013) (quotation omitted). If the evidence is merely colorable, or is not significantly probative, summary judgment is appropriate. Cutting Underwater Techs. USA, Inc. v. ENI U.S. Operating Co., 671 F.3d 512, 517 (5th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). In deciding whether summary judgment is appropriate, the Court views facts and inferences in the light most favorable to the nonmoving party. RSR Corp. v. Int'l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).

         B. Plaintiff's discrimination claims

         Shumate asserts that Defendant discriminated against him because of his age on three occasions when the FAA did not select him for a promotion to any of the three ADO assistant manager positions for which he applied. The portion of the ADEA governing federal sector employment states that “all personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on age.” 29 U.S.C. § 633a(a) (2018). “We analyze . . . ADEA claims based on circumstantial evidence under the burden shifting framework set out in McDonnell Douglas Corp v. Green.” Allard v. Holder, 494 Fed.Appx. 428, 432 (5th Cir. 2012) (internal citation omitted); see also McDonnell Douglas Co. v. Green, 411 U.S. 792, 802-03 (1973); Ford v. Potter, 354 Fed.Appx. 28, 32 (finding that district court did not err in analyzing federal employee's age discrimination claim under the McDonnell Douglas framework); Anzaldua v. Brennan, No. 7:16cv615, 2017 WL 10153541, at *5-6 (S.D. Tex. 2017) (applying the McDonnell Douglas framework to ADEA discrimination in the federal sector).

         Under the McDonnell Douglas framework, the initial burden is on the employee to establish a prima facie case of age discrimination. Allard, 494 Fed.Appx. at 431. Once the employee establishes a prima facie case, the burden shifts to the employer to show that there was a legitimate, nondiscriminatory reason for its actions. Id. If the employer meets this burden of production, the employee must then prove that the employer's reason for its action was a pretext for age discrimination. Id. To establish a prima facie case of age discrimination, a plaintiff must demonstrate that “1) [he was] within the protected class; 2) [he was] qualified for the position; 3) [he] suffered an adverse employment decision; and 4) [he was] replaced by someone younger or treated less favorably than similarly situated younger employees (i.e., suffered from disparate treatment because of membership in the protected class).” Leal v. McHugh, 731 F.3d 405, 410-411 (5th Cir. 2013) (internal quotations omitted).

         1. 2013 ...


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