Redmond v. Avalon Indstries Inc ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
INELLA REDMOND,
Plaintiff-Appellant,
v.
AVALON INDUSTRIES, INCORPORATED,
No. 97-1207
Defendant-Appellee,
BALTIMORE COMMUNITY RELATIONS
COMMISSION,
Party-in-interest.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frank A. Kaufman, Senior District Judge.
(CA-95-1343-K)
Submitted: October 21, 1997
Decided: November 17, 1997
Before HALL and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Mark E. Herman, WILLIAM G. KOLODNER, P.A., Baltimore,
Maryland, for Appellant. Carl R. Gold, Maureen Walsh David, Tow-
son, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Inella Redmond appeals from the district court order granting sum-
mary judgment in favor of the Defendant, Avalon, on her claim of
employment discrimination in violation of the Age Discrimination in
Employment Act. We affirm.
We note initially, as did the district court, that Redmond appears
to be advancing two separate theories or incidents of age discrimina-
tion: (1) that she was denied the position for which she applied on the
basis of her age; and (2) that she was denied the opportunity to com-
pete for later available positions on the basis of her age. As to her first
claim, we agree with the district court's determination that Redmond
cannot establish a prima facie case of age discrimination because the
position for which she was applying was no longer open as of the date
of her application. Turning to her second claim, we also agree with
the district court's determination that Redmond cannot establish a
prima facie case because she is unable to demonstrate that she meets
the employer's job qualifications--recent commercial or factory sew-
ing experience--or that anyone who was hired for the position of
stitcher did not at the very least come closer to achieving these quali-
fications than she did.
While Redmond offers a statement made by one of Avalon's repre-
sentatives to the effect that Redmond was older than the candidate
Avalon was looking for, Redmond states that this comment was made
by an individual named Jackie. The only Jackie present at Avalon at
the time Redmond visited to tender her application was a receptionist
who had no impact in the decision-making process. In fact, the only
individual responsible for making hiring decisions at that time was
out of the office. Although this representative arranged for someone
else to meet with Redmond in his absence, it is uncontroverted that
this individual did not have hiring authority at the time in question.
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We thus find there to be an insufficient nexus between the statement
and the decision-making process. See EEOC v. Clay Printing Co., 955
F.2d 936, 942 (4th Cir. 1992) (explaining nexus requirement); see
also Tomsic v. State Farm Mut. Auto. Ins. Co., 85 F.3d 1472, 1479
(10th Cir. 1996) (suggesting that remark must be made by someone
with role in the decisional process); Cone v. Longmont United Hosp.
Ass'n, 14 F.3d 526, 531 (10th Cir. 1994) (stating that age-related
comments made by non-decision-makers are not material in showing
action was based on age discrimination). Finally, we note that Ava-
lon's employee data reveals that they have several employees of an
age covered by the ADEA. Among these, one employee is in her sev-
enties (as was Redmond), another was in his sixties, and two more
were in their fifties. Given the entirety of this information, we agree
that even if Redmond could establish a prima facie case, she could not
carry the burden of overcoming Avalon's legitimate nondiscrimina-
tory reason and establishing that its failure to hire her was the result
of unlawful age discrimination. We therefore affirm. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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