The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
SANDRA KAY BROWN, )
)
Plaintiff, )
)
v. ) No. 4:18-CV-00617-DGK
)
ANDREW M. SAUL, )
COMMISSIONER OF SOCIAL SECURITY, )
)
Defendant. )
ORDER GRANTING SUMMARY JUDGMENT
This case arises from Plaintiff Sandra Kay Brown’s allegations of race, color, sex, and age
discrimination, and reprisal by Defendant Andrew M. Saul, Commissioner of Social Security
(Doc. 1). This Court previously dismissed Plaintiff’s claims of race, color, and sex discrimination
for failure to state a claim (Doc. 13), so only her age-discrimination and reprisal claims—both
relating to her non-selection in 2014 for a Supervisory Contact Representative position—remain.
Now before the Court is Defendant’s motion for summary judgment (Doc. 18). For the reasons
discussed below, that motion is GRANTED.
Undisputed Material Facts
Plaintiff worked at the Social Security Administration as a Lead Contact Representative in
the Kansas City Teleservice Center. In June 2014, she applied for a promotion as a Supervisory
Contact Representative (the “Position”). At the time she applied for the Position, Plaintiff was
over the age of forty. Plaintiff and seventeen other qualified candidates were offered interviews,
and four candidates were ultimately offered positions. Managers for the candidates submitted
recommendations in which they scored the candidate on a numerical scale based on his/her
qualification and ultimately highly recommended, recommended, or did not recommend the
candidate for the Position. Curtis Lee completed Plaintiff’s manager recommendation in which
he gave her a numerical score of nineteen (out of a total of thirty-three) and “recommended” her.
(Doc. 18 at ¶ 12). This was neither the lowest nor the highest score.
Plaintiff claims that the manager recommendation portion of her application “had nothing
to do with [her] performance but was based on [her manager’s] own personal feelings about [her]”
(Doc. 22 at 5). She also claims that Mr. Lee should not have been the one to give her
recommendation because he was not her first-line supervisor. She alleges that his negative
assessment “prevent[ed Plaintiff] from receiving a fair and competitive managerial referral” (Doc.
22 at 5).
All candidates, including Plaintiff, were asked the same nine interview questions by an
interview panel comprised of three people. The same panel interviewed all candidates and rated
their responses to each question on a scale from one to five. At the end of the interview, the panel
reached a consensus score for each question and totaled the scores for each candidate. Each
candidate could receive a maximum score of forty-five points for his/her interview. Plaintiff
received a score of twenty-eight, while the four candidates offered positions scored between thirty-
three and forty-one.
Plaintiff claims, based on her own opinion and review of the interview panel’s notes, that
her scores were “deflated” while the scores of the selected candidates were “inflated” (Doc. 22 at
6–7). She claims the panel’s notes do not accurately reflect her answers to its questions. She also
attacks the “honestly and integrity” of the interview panel, claiming a lack of “oversight or
accountability by HR during this process.” Id. She speculates that the panel could have had
multiple blank sheets because her recollection is that “the interview questions and responses are
[not] the same responses I saw from the interview.” Id. Plaintiff offers nothing other than her own
recollection and opinion as evidence of any wrongdoing by the interview panel.
After the interviews were completed, Lorena Chesley, the Teleservice Director in the
Kansas City Region and selecting official for the Position, completed a scoring matrix based on
the candidates’ experience, monetary performance awards, manager recommendations, and
interview performance. After adding up these scores, the four candidates with the highest point
totals were offered the Position. Plaintiff’s score earned her the thirteenth position, out of eighteen
candidates. Three of the four candidates selected for the position were also over the age of forty.
Plaintiff claims that her poor score was also due in part to discrimination by those involved
in the selection process for her prior protected equal employment opportunity (“EEO”) counseling.
She claims that this reprisal took the form of negative labels—including “angry black woman” and
“a non-team player” (Doc. 1-1 at 8)—that caused management to have negative beliefs about her.
She believes her non-selection was based in part on these negative beliefs.
Plaintiff had participated in EEO activity in 2012, but that information was not known by
Ms. Chesley, the selecting officer for the Position. While Mr. Lee, her referring manager, was
aware of prior EEO activity, he had “no knowledge at that time [of referral] of any details of
Ms. Brown’s prior EEO activity” (Doc. 18-12 at 1). Plaintiff asserts that both Mr. Lee and
Ms. Chesley had such knowledge because “it was COMMON knowledge that employee’s personal
information was often leaked from management” (Doc. 22 at 2–3). Again, however, Plaintiff
offers only her own recollections and opinions of evidence of reprisal.
Plaintiff’s age-discrimination and reprisal claims went through the appropriate
administrative process. Plaintiff applied for EEO counseling and her complaint was investigated.
That investigation concluded that she had not been discriminated against in her non-selection. The
Equal Employment Opportunity Commission similarly concluded that Plaintiff was not
discriminated against. Because Plaintiff exhausted her administrative remedies for her claims of
age discrimination and reprisal related to her 2014 non-selection, those claims are properly before
this Court.
Summary Judgment Standard
Summary judgment is appropriate if, viewing all facts in the light most favorable to the
nonmoving party, there is no genuine dispute as to any material fact, and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S.
317, 322–23 (1986). Summary judgment is only appropriate when “there is no dispute of fact and
where there exists only one conclusion.” Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994)
(citation omitted). A genuine dispute of material facts means there is more than “some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). Instead, the party making a factual assertion must support that assertion
by “citing to particular parts of the materials in the record . . . ; or showing that the materials cited
do not establish the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).
Discussion
Under the Age Discrimination in Employment Act (“ADEA”), employees are prohibited
from failing or refusing to hire a job candidate based on the candidate’s age. 29 U.S.C. § 623.
Although not specifically listed in the statute, 42 U.S.C. § 20003-3 applies broadly to employment
actions taken that constitute reprisal. See, e.g., Guimaraes v. SuperValu, Inc., 674 F.3d 962, 977
(8th Cir. 2012). When a plaintiff offers indirect evidence of a reprisal or age-discrimination
claim—as is the case here—courts use a burden-shifting framework to analyze the claim. This
means that the plaintiff bears the initial burden of showing a prima-facie case. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973). If the plaintiff succeeds, the defendant must then
articulate a “legitimate, nondiscriminatory reason” to explain its employment decision. Id. If the
defendant does so, the burden returns to the plaintiff to “demonstrate . . . that the stated
non-discriminatory rational was a mere pretext for discrimination.” Tusing v. Des Moines Indep.
Cmty. Sch. Dist., 639 F.3d 507, 515 (8th Cir. 2011) (citing McDonnell Douglas, 411 U.S. 792). A
plaintiff can show the employer’s rationale is mere pretext by creating a “fact issue as to whether
the employer’s proffered reasons are pretextual” or by creating a “reasonable inference that age
[or reprisal] was a determinative factor in the adverse employment decision.” Rothmeier v. Inv.
Advisors, Inc., 85 F.3d 1328, 1336–37 (8th Cir. 1996).
I. Defendant is entitled to summary judgment on Plaintiff’s age-discrimination
claim.
When a plaintiff makes a claim of age discrimination based on a failure to hire, “a plaintiff
must prove ‘(1) that the plaintiff was in the protected age group (over forty); (2) that the plaintiff
was otherwise qualified for the position; (3) that the plaintiff was not hired; and (4) that the
employer hired a younger person to fill the position.’” Tusing, 639 F.3d at 515 (citing Wingate v.
Gage Cty. Sch. Dist., No. 34, 528 F.3d 1074, 1079 n.3 (8th Cir. 2008). Neither party disputes that
Plaintiff can meet these elements. However, Defendant has provided a legitimate,
nondiscriminatory reason for the non-selection.
Defendant provides ample evidence that the candidates selected were those with the highest
score based on an objective and uniformly applied set of criteria. Plaintiff simply did not
outperform the other candidates, despite her subjective belief that she did so. Thus, Defendant has
met its burden of proving a legitimate, nondiscriminatory reason for Plaintiff’s non-selection.
Thus, the burden shifts to Plaintiff to show that Defendant’s reasons are a mere pretext—
in other words, that its reasoning merely covers up an actual intent to discriminate based on age.
To do so, Plaintiff can present evidence that creates a fact issue as to Defendant’s pretext or creates
a reasonable inference that Defendant used age in making its selections. To prove pretext, Plaintiff
alleges the interview panel “deflated [her] score more than 10 times and inflated Mr. Tymony and
Mr. Heilman more than 10 times.” (Doc. 22 at 7). She further claims she was the only candidate
with “the tenure with the government or the supervisor experience to be selected for the position.”
(Doc. 22 at 7). She spends a great deal of time second-guessing the criteria used in selecting the
Position, the scores given by the interview panel, and the use of Curtis Lee to give her
recommendation.
None of these claims, however, are supported by factual evidence, and mere opinion and
speculation is not legally sufficient. See Fed. R. Civ. P. 56. Accordingly, Plaintiff has not met her
burden of proving Defendant’s legitimate, nondiscriminatory reasons are pretext for age
discrimination. Defendant is entitled to summary judgment on this claim.
II. Defendant is entitled to summary judgment on Plaintiff’s reprisal claim.
As in the age-discrimination context, Plaintiff’s reprisal claim1 is governed by the
McDonnell Douglas burden-shifting framework. Thus, she must first make out a prima facie case
of reprisal. Reprisal requires that a plaintiff show (1) she engaged in legally protected activity;
(2) the defendant took an action against the plaintiff’s interest, called a materially adverse action;
and (3) a causal connection exists between the first two elements, meaning the plaintiff must show
1 Sometimes, words have one meaning outside of the legal sphere and a seemingly different one inside of it. “Reprisal”
seems to be one such word. To survive summary judgment, a plaintiff must prove with evidence all three legal
elements.
that her legally protected activity caused defendant’s adverse action. Carrington v. City of Des
Moines, Iowa, 481 F.3d 1046, 1050 (8th Cir. 2007).
This causal-connection requirement must be more than a mere “temporal connection.”
Arraleah v. Cty. Of Ramsey, 461 F.3d 967, 977 (8th Cir. 2006) (citation omitted). In other words,
a plaintiff cannot prove causation simply by arguing that a defendant took a materially adverse
action a short time after the plaintiff engaged in a protected activity.
Here, Plaintiff cannot establish the elements of reprisal. While she establishes both that
she had participated in protected EEO activity in the past and that Defendant’s non-selection was
materially adverse to her, she cannot establish a causal connection between her conduct and her
non-selection. Most, if not all, of the evidence she presents to the Court is in the form of her own
opinions and speculations as to the motives of various actors responsible for her non-selection,
like examples showing how she was not well liked by her various supervisors, both before and
after her non-selection for the Position.
But at no point does Plaintiff present any evidence that her protected EEO activity caused
her non-selection. She alleges that Defendant was aware of her EEO activity (Doc. 22 at 2), but
mere awareness is not enough to show causation. And to the extent she claims that the temporal
proximity between her EEO activity in August 2012 and her non-selection in July 2014 evidences
causation, there was at least eight months between the two. This is “‘is insufficient to show, and
in fact weakens the showing of, the required causal link.’” Musolf v. J.C. Penney Co., Inc., 773
F.3d 916, 919 (8th Cir. 2014) (quoting Wallace v. Sparks Health Sys., 415 F.3d 853, 859 (8th Cir.
2005)) (finding a seven-month gap to be insufficient to prove causation). Because Plaintiff has
failed to establish a prima facie case of reprisal, Defendant is entitled to summary judgment on
Plaintiff’s reprisal claim.
Conclusion
Because Plaintiff fails to create either a fact issue or a reasonable inference that Defendant’s
proffered rationale was mere pretext for illegal age discrimination, Defendant is entitled to
summary judgment on that claim. Defendant is also entitled to judgment on Plaintiff’s reprisal
claim because she failed to meet her burden of showing that her protected conduct caused
Defendant’s adverse action. This case is DISMISSED.
IT IS SO ORDERED.
Date: April 13, 2020 /s/ Greg Kays
GREG KAYS, JUDGE
UNITED STATES DISTRICT COURT