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Thompson v. Zinke

United States District Court, E.D. Louisiana

July 9, 2019

EARL P. THOMPSON
v.
RYAN ZINKE, SECRETARY OF INTERIOR

         SECTION: “J” (1)

          ORDER AND REASONS

          CARL J. BARBIER, UNITED STATUES DISTRICT JUDGE

         Before the Court is a Motion to Dismiss and Motion for Summary Judgment (Rec. Doc. 47) filed by Defendant, Ryan Zinke, Secretary of the Interior (“Defendant”). Plaintiff, Earl P. Thompson (“Plaintiff”) opposes the motion (Rec. Doc. 59). Defendant filed a reply (Rec. Doc. 64). Having considered the motion and legal memoranda, the record, and the applicable law, the Court finds that the motion should be GRANTED.

         FACTS AND PROCEDURAL HISTORY

         This litigation derives from Plaintiff's allegation that he was subjected to discrimination on the basis of his race (African American), sex (male), age (date of birth 12/26/50), and retaliation in the workplace in violation of Title VII of the Civil Rights Act and the Age Discrimination in Employment Act of 1967. (See Rec. Doc. 1). In September 2015, the Measurement Approval and Enforcement Section of the Commingling and Measurement Approval Unit within the Bureau of Safety and Environmental Enforcement (BSEE) accepted applications for a vacant GS-09 Petroleum Engineering Technician position. Kelly Johnson was the selecting official for the position and the person selected was to work for him. Mr. Johnson interviewed the four applicants listed on the Certificate of Eligibles, asking each candidate the same twelve question and giving them an opportunity to go into further detail on the basis of their answers. After interviewing the four candidates and reviewing their resumes, Mr. Johnson selected Rose Hampton because he believed she was the best qualified candidate for the position. In accordance with BSEE policy where a competitive selection is made, Mr. Johnson wrote a Rationale for Selection Memorandum on October 7, 2015.

         In the instant suit, Plaintiff alleges that he was discriminated against when he applied for the Engineering Technician position, but a Caucasian female-Ms. Hampton-with less seniority, expertise, and experience was selected for the position. (See Rec. Doc. 1, at 18). Plaintiff has since voluntarily dismissed all claims alleged in his complaint with the exception of his claim for employment discrimination based on race. (See Rec. Docs. 59-4 at 1 and 66).

         LEGAL STANDARD

         Summary judgment is appropriate when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed.R.Civ.P. 56); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a dispute as to any material fact exists, a court considers “all of the evidence in the record but refrains from making credibility determinations or weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but a party cannot defeat summary judgment with conclusory allegations or unsubstantiated assertions. Little, 37 F.3d at 1075. A court ultimately must be satisfied that “a reasonable jury could not return a verdict for the nonmoving party.” Delta, 530 F.3d at 399.

         If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party “must come forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.'” Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). The nonmoving party can then defeat the motion by either countering with sufficient evidence of its own, or “showing that the moving party's evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party.” Id. at 1265.

         If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Id. at 324.

         The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for trial. See, e.g., id. at 325; Little, 37 F.3d at 1075.

         PARTIES' ARGUMENTS AND DISCUSSION

         Title VII prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2. It makes it unlawful for an employer “to fail or refuse to hire or to discharge an individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin ....” 42 U.S.C. § 2000e-2(a)(1). In order to prevail on a Title VII race discrimination claim, the plaintiff must show that he was treated in a manner which “but for” race, would have been different. City of Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 711 (1978). A Title VII plaintiff bears the initial burden of establishing a prima facie case of racial discrimination by showing that: (1) he is a member of a protected class; (2) he was qualified for the employment position at issue; (3) he suffered an adverse employment action; and (4) he was treated less favorably than similarly situated employees outside of his protected group. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Corley v. Louisiana ex rel. Div. of Admin., Office of Risk Management, 498 Fed.Appx. 448, 450 (5th Cir. 2012). A plaintiff who establishes a prima facie case is entitled to an inference of intentional discrimination. McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817. The burden then shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse employment decision. Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004). “If the employer articulates such a reason, the plaintiff then has an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant [i.e., the employer] were not its true reasons, but were a pretext for discrimination.” Fairchild v. All Am. Check Cashing, Inc., 815 F.3d 959, 967 (5th Cir. 2016) (citations omitted).

         Here, Defendant does not dispute that Plaintiff has made a prima facie case of racial discrimination. Plaintiff likewise concedes that Defendant has satisfied its burden of articulating a legitimate, non-discriminatory reason for selecting Ms. Hampton for the Engineering Technician position. Rather, the parties dispute whether the Defendant's reason-that Ms. Hampton was the most qualified candidate-is mere pretext. Defendant argues that Plaintiff cannot establish pretext because the Fifth Circuit has made clear that years of experience alone is not sufficient to raise a fact question as to whether one candidate is more qualified than the other. (Rec. Doc. 47-1 at 12). Defendant asserts that Mr. Johnson selected Ms. Hampton for the position because he believed she was the best qualified candidate. (Rec. Doc. 47-1 at 11). Specifically, Mr. Johnson noted that Ms. Hampton's six years of experience in the pipeline section was a valuable asset for the position, while Defendant had no pipeline experience. (Rec. Doc. 47-1 at 11). ...


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