United States District Court, S.D. Mississippi, Northern Division
MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION
 FOR SUMMARY JUDGMENT
HALIL SULEYMAN OZERDEN UNITED STATES
THE COURT is Defendant Elain L. Chao's Motion  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).
has filed a Motion  for Summary Judgment, asking the
Court to dismiss Plaintiff's suit in its entirety.
Plaintiff has filed a Response . Having considered the
parties' submissions, the record, and relevant legal
authority, the Court is of the opinion that Defendant's
Motion  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.
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.
 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.
 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.  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.
months later, in October 2013, Shumate applied for another
assistant manager vacancy, this one at the Jackson ADO. Pl.
Mem.  at 13-14. As part of his application, Shumate was
required to submit a form titled “SF-50, Notification
of Personnel Action.” 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.
 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.
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.  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.  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.
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.  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.  at 1. At the conclusion of discovery,
Defendant filed the instant Motion  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.
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).
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).
Plaintiff's discrimination claims
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).
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).