[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-14031 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 11, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cv-01247-CCH
PATRICK LUCAS,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,
versus
U.S. ATTORNEY GENERAL,
in his official capacity as head of the
Federal Bureau of Prisons, U.S. Department of Justice,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(May 11, 2012)
Before TJOFLAT, EDMONDSON and FAY, Circuit Judges.
PER CURIAM:
Patrick Lucas appeals the magistrate judge’s grant of summary judgment in
favor of Eric H. Holder, Jr., in his official capacity as the head of the Federal
Bureau of Prisons (“the government”), in Lucas’s employment discrimination
action under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.
§ 633a(a), and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
§ 2000e-16.1 On appeal, Lucas argues that the government’s legitimate,
nondiscriminatory reasons for promoting another candidate rather than Lucas were
pretextual. For the reasons set forth below, we affirm the magistrate’s grant of
summary judgment to the government.
I.
Lucas, an employee of the Bureau of Prisons, was promoted to the position
of correctional counselor in 1989. In 2004, he moved to Atlanta to live near
elderly relatives. No correctional counselor positions were available in Atlanta at
the time, so he accepted a position as a correctional officer. Later, a correctional
counselor position became available in Atlanta, and he applied for the position,
which would have been a promotion. Laura McDonald, who was younger than
Lucas, also applied for the position. Loren Grayer, then-warden of the
penitentiary in Atlanta, selected McDonald for the position. Lucas was 53 years
1
The parties consented to have the case proceed before a magistrate judge.
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old at the time. Lucas ultimately filed this lawsuit, alleging that his ADEA and
Title VII rights were violated when McDonald, rather than Lucas, was selected for
the correctional counselor position.
The government filed a motion for summary judgment, conceding, for the
purpose of resolving its motion, that Lucas could establish a prima facie case of
age or gender discrimination. Nonetheless, the government argued, summary
judgment was appropriate because Grayer had a legitimate, nondiscriminatory
reason for promoting McDonald rather than Lucas: namely, Grayer felt that
McDonald was doing the best possible job in her pre-promotion position, as
reflected in her “outstanding” performance rating. The government asserted that
Lucas could not show that Grayer’s reason for promoting McDonald was a pretext
for discrimination. The government submitted a number of exhibits with its
motion for summary judgment.
According to the exhibits, a correctional counselor was responsible for,
among other duties, interviewing new inmates and serving as an expert on inmate
personal property and trust funds. A correctional counselor was required to have
at least one year of specialized experience. Lucas stated in his application for the
position that he had worked as a correctional counselor from 1989 until 2004, he
had a bachelor’s degree in sociology, and his last performance rating had been
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“exceeds.” According to McDonald’s application for the position, she had
experience in areas such as special housing unit policies, inmate counseling and
dispute resolution, and inmate discipline; she had taken some community college
and university classes; and her most recent performance rating was “outstanding.”
Lucas declared in an affidavit that his coworker, Kenneth Houston, heard Grayer
state that he did not want to choose anyone in “retirement mode” for the position.
Grayer testified in a deposition that, when a position, such as the
correctional counselor position, became available, interested applicants first
submitted their applications to a central staffing unit. That unit would then send
Grayer a list of the eligible candidates and their application packets. In making his
selection, Grayer considered the application packets, the applicants’ current
performance evaluations, and the recommendation of the associate warden. In the
employee evaluation rating scale, “outstanding” was ranked higher than
“exceeds.” The performance evaluation was the most important factor because
Grayer wanted to select the best possible person for each position. That is, when
Grayer had to consider comparable applicants, he wanted to choose the individual
doing the best possible job at that point in the individual’s career. Grayer looked
for an individual with potential in the future and who was “the cream of the crop.”
In this case, Grayer testified, Lucas and McDonald had the same department head.
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Their department head told Grayer that McDonald was a positive employee, a
team player, and had received an outstanding evaluation. Lucas, on the other
hand, was described by the department head “as probably an average-to-good
employee.”
Grayer further testified that any comments he made about employees in
retirement mode referred to his personal philosophy that, if, for example, he
started focusing on retirement rather than on doing his job, he would know that it
was time for him to retire. He did not expect others to make career decisions using
his philosophy. Grayer did not think that Lucas was focused on retirement,
because he did not think that Lucas would have applied for the promotion if he
was focused on retirement. Finally, a college degree was not required to be a
correctional counselor.
Lucas argued in response that Grayer’s reasons for hiring McDonald, such
as looking for an individual with potential in the future, were subjective and
discriminatory toward candidates nearing the Bureau of Prisons’s mandatory
retirement age of 57. Additionally, Lucas’s superior qualifications as compared to
McDonald’s qualifications showed that Grayer’s reasons for promoting McDonald
were pretextual.
In support of his response, Lucas submitted Kenneth Houston’s deposition
5
and affidavit. Houston stated that he applied for the correctional counselor
position and that he spoke with Grayer about the position. During that
conversation, Grayer made a comment “about some of the staff being in retirement
mode.” Grayer did not, however, state that he would not promote anyone in
retirement mode. Houston believed that Grayer was referring to “older
counselors” because there had been problems with the older counselors
completing their work.
Following a reply from the government, the magistrate granted the
government’s motion for summary judgment. The magistrate first noted that the
government conceded that Lucas established a prima facie case of discrimination.
Second, the government had shown a legitimate, nondiscriminatory reason for
promoting McDonald rather than Lucas. Specifically, McDonald was rated
“outstanding” on her most recent evaluation, while Lucas had been rated
“exceeds.” Third, the magistrate found that, viewing the evidence in the light
most favorable to Lucas, Lucas had not shown that the government’s legitimate,
nondiscriminatory reason was pretextual.
II.
We review a district court’s grant of summary judgment de novo, “applying
the same legal standards as the district court.” Chapman v. AI Transport,
229 F.3d
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1012, 1023 (11th Cir. 2000) (en banc). “[S]ummary judgment is appropriate if the
evidence before the court shows that there is no genuine issue as to any material
fact.”
Id. (quotation omitted). “A genuine issue of material fact does not exist
unless there is sufficient evidence favoring the nonmoving party for a reasonable
jury to return a verdict in its favor.”
Id. (quotation omitted). In making this
determination, we “make all reasonable inferences in favor of the” nonmoving
party.
Id. (quotation omitted).
The federal government is prohibited from discriminating against an
employee on the basis of age (ADEA) or sex (Title VII). 29 U.S.C. § 633a(a)
(ADEA); 42 U.S.C. § 2000e-16 (Title VII). A plaintiff bears the burden of
proving unlawful employment discrimination. Hinson v. Clinch Cnty.,
231 F.3d
821, 827 (11th Cir. 2000). Under the McDonnell Douglas Corp. v. Green,
411
U.S. 792,
93 S.Ct. 1817,
36 L.Ed.2d 668 (1973), framework, a plaintiff may rely
upon circumstantial evidence to prove his ADEA and Title VII claims. Brown v.
Ala. Dep’t of Transp.,
597 F.3d 1160, 1174 (11th Cir. 2010) (Title VII); Chapman,
229 F.3d at 1024 (ADEA). McDonnell Douglas established a three-step process:
first, a plaintiff must “establish a prima facie case of discrimination”; second, the
defendant “must articulate a legitimate, nondiscriminatory reason for the
challenged employment action”; and third, the plaintiff must proffer evidence
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“sufficient to permit a reasonable factfinder to conclude that the reasons given by
the employer were not the real reasons for the adverse employment decision.”
Chapman, 229 F.3d at 1024 (quotation omitted).
To meet the requirements of the pretext step, a plaintiff must produce
sufficient evidence for a reasonable factfinder to conclude that the employer’s
legitimate, nondiscriminatory reason was “a pretext for discrimination.” Vessels v.
Atlanta Indep. Sch. Sys.,
408 F.3d 763, 771 (11th Cir. 2005). In so doing, the
plaintiff may not recast the reason or attempt to “substitute his business judgment
for that of the employer.” Chapman, 229 F.3d at 1030. “Provided that the
proffered reason is one that might motivate a reasonable employer, an employee
must meet that reason head on and rebut it, and the employee cannot succeed by
simply quarreling with the wisdom of that reason.” Id. (noting, in an ADEA case,
that a reasonable employer could choose not to hire an individual based on the job
applicant’s recent job instability because how the applicant would act in the future
was “better predicted from recent behavior than from what happened ten or twenty
years ago”).
Rather, the plaintiff must show “such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons . . . that a reasonable factfinder could find them unworthy of
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credence.” Combs v. Plantation Patterns,
106 F.3d 1519, 1538 (11th Cir. 1997)
(quotation omitted). For example, where a plaintiff attempts to show pretext by
arguing that he was more qualified than another individual, he must show, in light
of those superior qualifications, that “no reasonable person” would have selected
the other candidate rather than the plaintiff. Springer v. Convergys Customer
Mgmt. Grp. Inc.,
509 F.3d 1344, 1349 (11th Cir. 2007) (quotation omitted).
An employer’s proffered reason may be based on subjective qualities so
long as the employer “articulates a clear and reasonably specific factual basis upon
which it based its subjective opinion.” Chapman, 229 F.3d at 1033-34. Finally,
statements may be “highly suggestive circumstantial evidence” of discriminatory
intent. Damon v. Fleming Supermarkets of Fla., Inc.,
196 F.3d 1354, 1362 (11th
Cir. 1999). For example, after terminating an older employee and replacing him
with a younger employee, a district manager’s comment that he wanted to promote
“aggressive, young men” might show discriminatory intent given its “substance,
context, and timing.”
Id. (quotation omitted).
The magistrate was correct that Lucas did not show that Grayer’s reasons
for selecting McDonald rather than Lucas were a pretext for discrimination.2
2
The first two steps of the McDonnell Douglas framework are not at issue on appeal.
The government does not dispute that Lucas can establish a prima facie case of discrimination.
In his brief, Lucas makes no argument that the government failed to proffer legitimate,
9
Although both McDonald and Lucas were qualified for the correctional counselor
position, Grayer determined that McDonald would be more successful in the
position based on her work ethic and outstanding performance evaluation. Lucas
first argues that these reasons were pretextual based on Grayer’s comments
regarding employees in retirement mode. However, unlike the comment regarding
“aggressive, young men” in Damon, the “substance, context, and timing” of
Grayer’s “retirement mode” comments do not indicate that he harbored
discriminatory animus in selecting McDonald. 196 F.3d at 1362 (quotation
omitted). Rather, the comment was made during a conversation that did not
involve Lucas, Grayer did not state that he would not promote anyone in
retirement mode, and there had been problems with older counselors completing
their work. Further, Grayer testified that these comments referred to his personal
career philosophy and that, based on the fact that Lucas applied for the position,
he did not think that Lucas was focused on retirement. Thus, the context of the
remarks indicates that Grayer was expressing concern that employees were not
completing their work, not indicating that he would not hire an employee
nondiscriminatory reasons for promoting McDonald. Accordingly, he has abandoned any
argument as to the second step in the McDonnell Douglas framework. See Tanner Adver. Grp.,
L.L.C. v. Fayette Cnty., Ga.,
451 F.3d 777, 785 (11th Cir. 2006) (en banc) (noting that issues not
briefed are ordinarily abandoned).
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approaching retirement age.
Lucas’s second pretext argument is that Grayer’s criteria were subjective
and showed discriminatory animus. Grayer’s subjective criteria, such as his desire
to find an employee doing the best job possible, who was “the cream of the crop,”
and who had potential in the future, are not evidence of pretext or discriminatory
animus. Grayer used a sufficiently specific factual basis to determine which
applicant met those subjective criteria: the applicants’ most recent performance
evaluations. See Chapman, 229 F.3d at 1033-34. As in Chapman, it was
reasonable for Grayer to consider the applicants’ recent job performance as an
indication of how they would perform in the future if they were promoted. See
229 F.3d at 1030-31.
Lucas’s third pretext argument centers on the validity of Grayer’s selection
in light of the fact that Lucas and McDonald did not have the same job
responsibilities. In questioning the validity of comparing Lucas and McDonald,
Lucas merely questions the wisdom of Grayer’s decision without rebutting
Grayer’s legitimate, nondiscriminatory reasons. See Chapman, 229 F.3d at 1030.
Because Grayer looked for the applicant putting in the best effort to be an
outstanding employee, there is no reason that their specific job duties would have
been relevant to Grayer’s final decision, nor is there evidence of discrimination.
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Finally, Lucas argues that he was better qualified than McDonald to be a
correctional counselor, which he asserts is evidence of pretext. Lucas fails to
acknowledge that the Bureau of Prisons’s central staffing unit—not
Grayer—determined which applicants met the required qualifications for a
position. As both McDonald and Lucas were qualified for the correctional
counselor position, a reasonable person could select McDonald rather than Lucas
despite Lucas’s college degree and prior experience in the Bureau of Prisons. See
Springer,
509 F.3d at 1349. This conclusion is particularly evident in light of
Lucas’s recent lower performance rating, which, in the employer’s permissible
judgment, was a better predictor of the effort he would put into the position than
his past educational and work accomplishments. See Chapman, 229 F.3d at
1030-31. Based on the above, Lucas has not shown that Grayer’s legitimate,
nondiscriminatory reasons for promoting McDonald were a pretext for
discrimination.
For the foregoing reasons, we affirm the magistrate’s grant of summary
judgment to the government.
AFFIRMED.
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