McGrady v. Mattis

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

MISTY D. MCGRADY, )

)

Plaintiff, )

) NO. 3:17-cv-00390

v. )

) JUDGE CAMPBELL

MARK ESPER, ) MAGISTRATE JUDGE BROWN

Secretary of the Army, )

)

Defendant. )

MEMORANDUM

Pending before the Court is Defendant’s Motion for Summary Judgment (Doc. No. 94).

Plaintiff filed a Response (Doc. No. 99) and Defendant filed a Reply (Doc. No. 107). Defendant

filed a Statement of Undisputed Facts in support of the motion (Doc. No. 97) and Plaintiff

responded (Doc. No. 102). Plaintiff filed a Statement of Additional Undisputed Facts (Doc.

No. 103) and Defendant responded (Doc. No. 108).

For the reasons stated below, Defendant’s Motion for Summary Judgment is DENIED.

I. FACTUAL BACKGROUND

Plaintiff complains Defendant’s decision not to hire her for a position for which she was

qualified, and to hire a younger candidate instead, was based on age discrimination in violation

of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §633a. The following

facts relevant to her claim are presented in the light most favorable to Plaintiff.

Plaintiff is a former dual status military technician with the National Guard. Dual status

technicians must be a member of the National Guard. See 32 U.S.C. § 709(b). If a dual-status

technician is separated from the National Guard, the technician must also be “promptly

separated from military technician (dual status) employment. Id. A non-dual status technician,

on the other hand, is a civilian employee. 10 U.S.C. § 10217. Plaintiff was attempting to move

from a dual status position to a non-dual status position, which would have allowed her to

remain in her job after ending her service with the National Guard.

Plaintiff began her employment with the National Guard in 2006 as a dual-status GS-11

Account IR Evaluator (later referred to as an “auditor”) with the Internal Review section of the

U.S. Property and Fiscal Office (USPFO). (Doc. No. 102, ¶¶ 8-11.) Because Plaintiff was a

dual status employee, she was required to be a member of the National Guard to retain her

position as auditor. (Id. ¶ 12.) Plaintiff worked in Internal Review from April 2006 until

February 2010. (Id., ¶ 17.) While working at Internal Review, Plaintiff served as temporary

lead auditor (a GS-12 position) from February 2009 to February 2010. In February 2010,

Plaintiff applied for a dual-status position as staff accountant in the Comptroller’s Division and

was transferred to that division in March 2010. (Id. ¶¶ 38, 41.)

Plaintiff had been trying to get a non-dual-status position since she started working for

Internal Review in 2006, so that she could retire at the end of her enlistment and keep her job.

(Id., ¶ 54, 56.) Plaintiff told Col. William Hardin, head of the USPFO, that she “needed him to

go to bat for her or she would have to find another agency to work for when her contract runs

out in October 2011. (Id., ¶ 57 (citing McGrady Dep., Doc. No. 95-1 at 47-8).) In January 2011,

Plaintiff applied for a non-dual status auditor position at Internal Review (her former job, except

as a non-dual status position), but was not selected. (Doc. No. 102, ¶ 60.) Plaintiff retired from

the National Guard and resigned from her dual-status position as a staff accountant in October

2011. (Id., ¶¶ 43, 46.)

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Plaintiff alleges Maj. Hess showed favoritism to younger employees.1 Specifically,

Maj. Hess hired a young officer, Dannie Frederick, to work in Internal Review. Plaintiff alleges

Maj. Hess agreed to take on 1st Lt. (now Captain) Janna Moore, as a management analyst “to

groom some folks to be auditors.” (Hess. Dep., Doc. No. 95-2 at 15-17.) Plaintiff claims Moore

received preferential treatment and “advanced rapidly.” (McGrady Aff., Doc. No. 101, ¶ 5.)

According to Plaintiff, Moore studied for her accounting classes while “on the clock,” and

received annual performance reviews (Plaintiff was not reviewed annually). (Doc. No. 101, ¶¶

16, 17.) Plaintiff also claims Maj. Hess, while assigned to a different division than Internal

Review, lobbied for Moore to receive a promotion to a GS-11 auditor position. (McGrady Aff.,

Doc. No. 101, ¶ 20.) Ultimately, the GS-11 auditor position was given to different employee,

who was in his 50s, but Moore was promoted two months later when another GS-11 position

became available. (Doc. No. 108, ¶ 7.)

In January 2011, Plaintiff applied for a non-dual status auditor position that was open

to three categories of applicants (referred to as “areas of consideration”): (1) current non-dual

status employees; (2) current dual-status employees; and (3) open to the public. (Doc. No. 102,

¶ 71.) The applicants are presented to the selecting official, one category at a time. (Id.) If the

supervisor decided not to offer the position to the applicant(s) in the first category, he or she

could request candidates under the second category; and if none in the second category were

selected, he could request the candidates in the third category. (Id., ¶ 74.) At each stage, the

supervisor received the names of the candidates in the new category together with the

1 Plaintiff did not lodge any official complaints of age discrimination until she contested her

nonselection for the non-dual status auditor position in 2011.

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candidates he or she had previously interviewed, so that at stage two the supervisor could review

candidates from stages one and two, and at stage three he or she could review candidates from

categories one, two, and three. (Celatka Dep., Doc. No. 95-6 at 19-20.)

Three candidates met the minimum qualification for the position – by coincidence, one

candidate in each applicant category. (Id., ¶ 73.) Plaintiff, as a current dual-status employee,

was interviewed by Maj. Hess and Lt. Col. Elliot Pacetti as a part of category two. Maj. Hess,

who had previously been Plaintiff’s supervisor, was familiar with her qualifications and said he

did not want to discuss them during the interview. (Doc. No. 102, ¶ 82; Doc. No. 108, ¶ 14).

Instead, Maj. Hess presented Plaintiff with a series of scenario-based questions. (Id.) Following

the interview, Lt. Col. Pacetti voiced concern about Plaintiff’s interpersonal skills and “some

of the attitude she was displaying during the interview.” (Hess Dep., Doc. No. 95-2 at 34.) Maj.

Hess said he did not have the same concern about Plaintiff’s attitude during the interview, but

knew Plaintiff had a history of problems with interpersonal skills. (Id.) Specifically, Maj. Hess

recalled that clients had complained of her attitude toward them, but said that he had not

personally witnessed her having difficulties interacting with others. (Id. at 35.)

After Plaintiff’s interview, Maj. Hess decided to move on to the third category of

applicants, those from the general public, in order to see what other qualified candidates were

available. (Doc. No. 102, ¶ 86.) During stage three, Plaintiff was offered the opportunity to re-

interview, but declined to do so. (Doc. No. 108, ¶ 21.)

Ultimately, Ms. Miller, the candidate interviewed at the third stage, was selected for the

non-dual-status auditor position. Ms. Miller was 32 years old at the time. (Doc. No. 102, ¶ 94.)

Plaintiff was 50 years old. (Doc. No 102, ¶ 61.) Maj. Hess stated that Plaintiff was qualified

for the position and would have been his second choice. (Hess Decl., Doc. No. 95-2 at 55.)

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Maj. Hess explained that he chose Ms. Miller for the position because she “gave us a much

more qualified individual and gave a much better interview, and [he] thought that she would be

a good fit for the organization.” (Hess Dep., Doc. No. 95-2 at 39.) Additionally, Maj. Hess said

Ms. Miller’s interview was one of the better interviews he has had: “I had a highly skilled

individual that knew what she was talking about. Very personable, very professional. It just

made it much more enjoyable for both sides.” (Id. at 38.)

Explaining why Ms. Miller was the “absolute best qualified and the most desirable

candidate,” Maj. Hess stated:

[Ms. Miller] had documented supervisory experience, and, per her

reference, was a very capable leader. Also, while Ms. McGrady had

relevant auditing experience, Ms. Miller had a greater depth of

professional auditing experience as evidenced by her resume. For

example, [Ms. Miller] had worked for a large corporate structure which is

most like the Tennessee National Guard. Both experience and leadership

qualities are very desirable attributes and exactly what I need in my

section. Additionally, the selectee came across as a more effective

communicator, one who would be very approachable by our client base.

Particularly, in the interview she appeared to communicate in a more

professional and yet amicable manner than Ms. McGrady. A diplomatic

and effective communication style is important in the identification and

resolution of auditing problems with a clientele that includes high-ranking

military commanders and upper level civilian managers who hold highly

visible positions and whose programs are susceptible to a high levels [sic]

scrutiny from public and governmental oversight.

(Hess Decl., Doc. No. 95-2 at 54-55.)

After Plaintiff learned she had not been selected, she requested a meeting with Col.

Bates and Col. Andy Hardin. (McGrady Aff., Doc. No. 101, ¶ 34.) Maj. Hess had discussed

his reasons for selecting Ms. Miller for the position with Col. Bates, and Col. Bates signed off

on the selection. (Bates Depo., Doc. No. 95-2 at 13, 15.) Plaintiff asked the colonels how they

could justify the expense of training someone when Plaintiff already had the requisite training.

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(McGrady Depo., Doc. No. 95-1 at 80.) Plaintiff claims Col. Bates said, “Well, when you

consider the longevity of the selectee, it’s not that big of a deal.” (Id.)

On May 24, 2011, Plaintiff timely filed a formal administrative complaint of

discrimination alleging that her non-selection was the result of unlawful discrimination based

on age. (Am. Compl., Doc. No. 26, ¶ 78.) After a lengthy dispute within the National Guard as

to whether Plaintiff’s complaint was civilian or military, Plaintiff filed this action. The Court

granted a motion to dismiss several defendants, holding that the acting Secretary of the Army

should be the only defendant in this case, and all claims except for Plaintiff’s claim of age

discrimination. (Doc. No. 53.)

II. ANALYSIS

A. Standard of Review

Summary 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). The party bringing the summary judgment motion has the initial burden of informing

the Court of the basis for its motion and identifying portions of the record that demonstrate the

absence of a genuine dispute over material facts. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir.

2003). The moving party may satisfy this burden by presenting affirmative evidence that

negates an element of the non-moving party’s claim or by demonstrating an absence of evidence

to support the nonmoving party’s claims. Id.

In evaluating a motion for summary judgment, the court views the facts in the light most

favorable for the nonmoving party and draws all reasonable inferences in favor of the

nonmoving party. Bible Believers v. Wayne Cty., Mich., 805 F.3d 228, 242 (6th Cir. 2015);

Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003). The Court does not

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weigh the evidence, judge the credibility of witnesses, or determine the truth of the matter.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Rather, the Court determines

whether sufficient evidence has been presented to make the issue of material fact a proper

question of fact. Id. The mere scintilla of evidence in support of the nonmoving party’s position

is insufficient to survive summary judgment; instead, there must be evidence of which the trier

of fact could reasonably find for the nonmoving party. Rodgers 344 F.3d at 595.

In ruling on a motion for summary judgment, “[a] district court is not … obligated to

wade through and search the entire record for some specific facts that might support the

nonmoving party’s claim.” InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989).

In determining whether a genuine issue of material fact exists on a particular issue, the court is

entitled to rely only upon those portions of the verified pleadings, depositions, and answers to

interrogatories, and admissions on file, together with any affidavits submitted, specifically

called to its attention by the parties.

B. Age Discrimination

The federal sector ADEA, 29 U.S.C.A. § 633a, provides in relevant part:

All personnel actions affecting employees or applicants for employment

who are at least 40 years of age … in military departments as defined in

section 102 of Title 5, in executive agencies as defined in section 105 of

Title 5 (including employees and applicants for employment who are paid

from nonappropriated funds) … shall be made free from discrimination

based on age.

“To prevail on a claim under ADEA, it is not sufficient for the plaintiff to show that age

was a motivating factor in the adverse action; rather, the ADEA’s … language requires that a

plaintiff ‘prove by a preponderance of the evidence (which may be direct or circumstantial) that

age was the ‘but-for’ cause of the challenged employer decision.” Scheick v. Tecumseh Pub.

7

Sch., 766 F.3d 523, 529 (6th Cir. 2014) (quoting Gross v. FBL Fin. Servs, Inc., 557 U.S. 167,

177-8 (2009).

The ADEA has separate provisions applicable to private-sector and federal-sector

employees. Compare 29 U.S.C.A. § 633a(a) (requiring that actions be “free from any

discrimination based on age”) with 29 U.S.C.A. § 623 (prohibiting discrimination because of

… age”). The Supreme Court, in Gross, held that the private-sector ADEA required a plaintiff

to show age was the “but for” cause of the employment action. Gross, 557 U.S. at 177. Plaintiff

urges the Court to follow the D.C. Circuit and decline to apply Gross to federal sector ADEA

claims. (Pl. Br., Doc. No. 99 at 15 (citing Ford v. Mabus, 629 F.3d 198, 207 (D.C. Cir. 2010)).

In Ford, the court held the “but for” standard does not apply to federal-sector ADEA claims

and a plaintiff may establish liability by showing that “age was a factor in the challenged

personnel action.” Ford, 629 F.3d at 207.

The Sixth Circuit has not authoritatively decided this question. The Court is unaware

of any appellate court that has adopted the D.C. Circuit’s holding in Ford, and the Ninth and

Eleventh Circuits have specifically rejected the decision. See Shelley v. Geren, 666 F.3d 599,

606-07 (9th Cir. 2012); Babb v. Sec’y, Dept. of Veterans Affairs, 743 F. App’x. 280, 287 (11th

Cir. 2018).

Although the Sixth Circuit has not addressed the applicability of Gross to federal-sector

ADEA claims, the Court believes it would apply the same standard to both private and federal

sector claims. Historically, the Sixth Circuit has evaluated private and federal sector ADEA

claims using the same standard, despite the slight difference in language. See e.g., Parnell v.

Stone, 12 F.3d 213 (per curiam) (6th Cir. 1993) (applying the “but for” standard to a federal

sector ADEA claim); Browning v. Dept. of the Army, 436 F.3d 692, 695 (6th Cir. 2006)

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(applying the ADEA standard articulated in a private-sector ADEA case to federal sector

ADEA claims). Accordingly, absent contrary guidance from the Supreme Court or the Sixth

Circuit, the Court finds that Plaintiff must prove by a preponderance of the evidence that but

for age discrimination, she would have been selected for the auditor position.

1. Direct Evidence

Plaintiff asserts Col. Bates’s reference to the longevity of the selectee – training

expenses were “not that big of a deal when you think of the longevity of the person they hired”

– is direct evidence of discrimination based on age. (Pl. Br., Doc. No. 99 at 16.) Direct evidence

is “that evidence which, if believed, requires the conclusion that unlawful discrimination was

at least a motivating factor in the employer’s actions.” See Alberty v. Columbus Twp, 730 Fed.

Appx. 352, 356 (6th Cir. 2018). Direct evidence cannot require the finder of fact to draw any

inferences to reach the conclusion that Plaintiff was not hired because of her age. Sharp v. Aker

Plant Servs. Grp., Inc., 726 F.3d 789, 798 (6th Cir. 2013). “Direct evidence is composed of

only the most blatant remarks, whose intent could mean nothing other than to discriminate on

the basis of some impermissible factor.” Umani v. Mich. Dep’t. of Corr., 432 Fed. Appx. 453,

458 (6th Cir. 2011).

Plaintiff argues Col. Bates “used ‘longevity’ to mean younger people are a better hiring

risk because he perceives them to stay with the employer longer.” (Pl. Br., Doc. No. 99 at 16.)

Defendant contends the statement, which Col. Bates denies making, is capable of multiple

meanings. (Def. Br., Doc. No. 95 at 16-17.) In addition, Defendant argues that because Col.

Bates did not participate in the selection process, any statements made by him are not direct

evidence of discriminatory motive. (Id. at 17.)

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As this is a motion for summary judgment, the Court will assume Col. Bates did, in fact,

make the statement as Plaintiff claims. Even if he was involved in the selection process by

virtue of approving the selection, this statement is capable of multiple meanings and, therefore,

not direct evidence of age discrimination. “Longevity” could refer to the age of the successful

candidate; to the fact that the position, which was a non-dual track position would not require

the holder to resign at the conclusion of military service2; to the Guard’s commitment to

ensuring all employees receive the necessary training to do their jobs; or to the fact that some

amount of training is a minimal investment in an employee they expect to remain in the position

for some period of time. In other words, the use of the word “longevity” in this context is

capable of meanings other than as a reference to the applicants age or predicted lifespan.

Accordingly, the Court finds Plaintiff has not established a prima facie case via direct

evidence of age-based discrimination.

2. Circumstantial Evidence

The remainder of Plaintiff’s evidence of discrimination is circumstantial.

Circumstantial evidence is proof that “does not on its face establish discriminatory animus but

does allow a finder of fact to draw a reasonable inference that discrimination occurred.” Wexler

v. White’s Fine Furniture, 317 F.3d 564, 570 (6th Cir. 2003). The Sixth Circuit applies the

evidentiary framework of McDonnell Douglas to analyze circumstantial evidence of ADEA

claims. See Geiger v. Tower Automotive, 579 F.3d 614, 622 (6th Cir. 2009).

2 See Bates Depo, Doc. No. 95-7 at 4-5 (discussing “longevity” with regard to dual-

status versus non-dual status positions).

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To state a prima facie case, Plaintiff must establish: (1) she was at least 40 years old at

the time of the alleged discrimination; (2) she applied and was rejected for the auditor position;

(3) she was qualified for the position; and (4) someone significantly younger was hired. Id.

Once a prima facie case has been established, the burden of production shifts to Defendant to

provide a legitimate reason for the adverse employment action. “This burden is one of

production only, not of persuasion.” Gray v. Toshiba Am. Consumer Prod., Inc., 263 F.3d 595,

599 (6th Cir. 2001).

If Defendant offers a legitimate reason for not hiring Plaintiff, the burden shifts to

Plaintiff to prove, by a preponderance of the evidence that Defendant’s proffered reason was

not its true reason but was, in fact, a pretext for illegal discrimination. Texas Dept. of

Community Affairs v. Burdine, 450 U.S. 248, 256. Plaintiff has the burden of persuasion to

demonstrate that age was the “but-for” cause of the adverse employment decision. See Gross,

557 U.S. 167, 177-78, n.4. At this final stage, “[t]he burden of producing evidence of pretext

essentially merges with the burden of persuasion, which always lies with the plaintiff.” Bender

v. Hecht’s Dept. Stores, 455 F.3d 612, 624 (6th Cir. 2006) (citing Gragg v. Somerset Tech.

Coll., 373 F.3d 763, 768 (6th Cir. 2004) (internal quotations omitted)). Plaintiff must show, in

essence, that Defendant’s “‘business decision’ was so lacking in merit as to call into question

its genuineness.” Id. at 625; see also, Browning v. Dep’t of Army, 436 F.3d 692, 696-98 (6th

Cir. 2006) (allowing “traditional management prerogatives” in the Army’s decision not to

promote plaintiff).

The parties do not dispute Plaintiff has established a prima facie case of age-based

discrimination and that Defendant has provided a legitimate reason for not hiring Plaintiff. (See

Def. Br., Doc. No. 95 at 18; Pl. Br., Doc. No. 99 at 17.) Accordingly, the only issue is whether

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Plaintiff has provided evidence from which the trier of fact could conclude the proffered

“legitimate reason” for hiring Ms. Miller and not hiring Plaintiff, was a “mere pretext” for

discrimination. Plaintiff may offer evidence showing: (1) Defendant’s stated reason had no

basis in fact; (2) the stated reason did not actually motivate Defendant; or (3) the stated reason

was insufficient to warrant the adverse employment action. Loyd, 766 F.3d 580, 590 (6th Cir.

2014) (citing Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 576 (6th Cir. 2003) (en

banc)).

To this point, Plaintiff offers the following evidence that Defendant’s stated reasons for

not selecting her were pretext for discrimination: she was better qualified for the position than

the selectee; there were irregularities in the selections process; Maj. Hess had a history of

favoritism toward younger employees; and Col. Bates, who approved Maj. Hess’s selection of

Miller, used the word “longevity” when referring to the tenure of the selectee. The Court

considers whether this evidence, taken as a whole, establishes a genuine issue for trial.

A. Qualifications

Plaintiff argues that she was the better qualified candidate. (See Pl. Br., Doc. No. 99 at

22.) “Whether qualifications evidence will be sufficient to raise a question of fact as to pretext

will depend on whether a plaintiff presents other evidence of discrimination.” Davis v. Cintas

Corp., 717 F.3d 476, 492 (6th Cir. 2013) (quoting Bender v. Hecht’s Dept. Stores, 455 F.3d

612, 626 (6th Cir. 2006)). If a plaintiff presents other evidence of discrimination, “that

evidence, taken together with evidence that the plaintiff was as qualified or better qualified than

the successful applicant, might well result in the plaintiff’s claim surviving summary

judgment.” Id. However, if “there is little or no other probative evidence of discrimination, to

survive summary judgment the rejected applicant’s qualifications must be so significantly better

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than the successful applicant’s qualifications that no reasonable employer would have chosen

the latter applicant over the former.” Id.

Plaintiff argues that Ms. Miller’s longer experience as a CPA (by one year), is

outweighed by Plaintiff’s slighter longer experience (13 years to Miller’s 10 years) working in

accounting and more relevant experience auditing government programs. (Id.) In addition,

Plaintiff had already undergone the required training for the position. (Id. at 20-21.) In

comparison, Miller was a multi-lingual CPA with international experience working for a big

four accounting firm. Subjectively, Maj. Hess found Miller to be a more effective

communicator. (Hess Decl., Doc. No. 95-2 at 54-55.) (“[Miller] appeared to communicate in

a more professional and yet amicable manner than [Plaintiff].)

Plaintiff has not shown her qualifications are so significantly better than Miller’s that

no reasonable employer would have chosen Ms. Miller. However, Plaintiff does not rely solely

on her allegedly superior qualifications as evidence of discrimination. Accordingly, the Court

will consider this evidence together with the other evidence presented.

B. Irregularities in the Selection Process

In addition to her assertion that she was better qualified for the position, Plaintiff has

articulated complaints about irregularities in the interview and selection process.3 The

3 Plaintiff initially complained that she was entitled to priority consideration for the position, but

now acknowledges that this was incorrect. (Doc. No. 102, ¶¶ 62-63.) (“Plaintiff admits that she thought

that she was entitled to priority consideration under applicable personnel regulations at the time she filed

the complaint, but she no longer contends this after completion of the discovery process.”)

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complaints about the process boil down to a sense of unfairness and a belief that Ms. Miller

was “preselected” for the position.4

Before the interview, Maj. Hess spoke with Ms. Miller’s husband about the non-dual

status auditor position. (Doc. No. 108, ¶ 12; Hess Dep., Doc. No. 100-1 at 4-5.) During the

interview, Maj. Hess indicated there was some urgency to fill the position so the selectee could

attend training in April. (Doc. No. 101, ¶ 29.) “[Plaintiff] knew that she did not need such

training so it appeared Maj. Hess was looking elsewhere to fill the position.” (Pl. Br., Doc. No.

99 at 21.) Maj. Hess did not allow Plaintiff to discuss her credentials during the interview,

stating, “I am well aware of your qualifications. I don’t want to discuss it.” (Doc. No. 108, ¶

14.) Finally, Maj. Hess took good notes of his interview with Plaintiff, but failed to take such

detailed notes of his interview of Miller.5 (Hess Depo., Ex. 13, Doc. No. 95-2.) Plaintiff claims

this was in preparation to justify her nonselection. (Pl. Br., Doc. No. 99 at 20.)

Finally,6 Plaintiff alleges Maj. Hess never should have considered Ms. Miller’s

application because he should have selected Plaintiff at stage two. (Pl. Br., Doc. No. 99 at 18.)

4 Plaintiff’s statement that a friend told her Miller’s husband was “bragging that his wife was

going to get the position” is hearsay and not properly considered on a motion for summary judgment.

Back v. Nestle USA, Inc., 694 F.3d 571, 579 (6th Cir. 2012) (plaintiff limited to admissible evidence

when showing issue of material fact as to pretext).

5 Specifically, the interview notes of Ms. Miller’s interview did not note a response to seven of

the 19 interview questions. (Id., Ex. 15.)

6 Plaintiff also cites to a document that purports to be an Internal Review Section Listing dated

February 15, 2011, and lists Ms. Miller as an employee even though she was not hired until March 7,

2011, as further evidence that Ms. Miller was preselected. Defendant contends that the document

“obviously” contains errors and, in any event, is not properly considered by the Court because it has not

been authenticated. At the summary judgment stage, Plaintiff must present “admissible evidence” in

support of her claim. An unauthenticated document is not admissible. Accordingly, the Court has not

considered the document.

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Essentially, Plaintiff argues that Maj. Hess’s desire to interview more than two candidates for

the position is evidence of age discrimination, citing Blong v. Sec’y of the Army, 877 F. Supp.

1494 (D. Kansas 1995).

In Blong, the plaintiff applied for a competitive (open to military and non-military)

position for a warehouse clerk. Id. at 1498. Only one of the 14 employees in the warehouse

was female and the plaintiff was the only qualified candidate. Id. at 1499. The supervisor who

interviewed the plaintiff “appear[ed] to be the hiring authority responsible for the largely

unexplained gender disparity in the USPFO warehouse.” Id. at 1503. After interviewing her,

the supervisor, decided he wanted to “obtain a larger applicant pool.” Id. at 1500. The position

was reannounced as an “excepted” position (open to military only) with lower qualifications

than those in the original announcement. Id. The plaintiff was not informed the position had

been reannounced and she did not apply again. Id. The court held that these circumstances,

where plaintiff was qualified, but rejected based entirely on an inherently subjective decision

to reannouncement the position to get the “best person,” and the position was reannounced with

lower qualifications, created an issue of fact as to whether the refusal to hire plaintiff was

because of her sex. Id. at 1503.

Plaintiff’s allegations of age discrimination are distinguishable from those

circumstances in Blong. Here, Maj. Hess’s decision to see the other candidates who qualified

for the vacancy announcement, does not have the same hallmarks of unreasonableness as the

supervisor in Blong. Maj. Hess asked only to see the remaining candidates who qualified for

the vacancy. He did not insist the position be reannounced to allow for a larger pool of less

qualified candidates under the guise of searching for the “best person.”

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C. Favoritism Toward Younger Employees

Plaintiff presents evidence to suggest Maj. Hess favored younger employees. The

evidence provides only weak support for Plaintiff’s age discrimination claim. Plaintiff states

that Capt. Moore was young and inexperienced when Maj. Hess accepted her into an entry level

position and allowed her to be trained as an auditor. Plaintiff alleges Maj. Hess also hired

another young employee as if their mere presence in an entry level position is evidence of

favoritism. Defendant notes that Maj. Hess also brought David Walchak into Internal Review

at age 52. (Def. Br., Doc. No. 95 at 21 (citing Walchak Decl., Doc. No. 96).)

Plaintiff complains Capt. Moore was reviewed more regularly and was ultimately

promoted, by someone other than Maj. Hess, to a GS-11 auditor position. (Doc. No. 108, ¶ 6,

8.) Defendant adds that Plaintiff and David Walchak were also promoted while working for

Internal Review. (Doc. No. 108, ¶¶ 7, 8.) Moreover, Maj. Hess was a supervisor for less than

half of the time Plaintiff was in Internal Review, and Plaintiff made no complaints of age

discrimination until she was not chosen for the auditor position.

D. The “Longevity” Comment

After Plaintiff learned she had not been selected, she requested a meeting with Col.

Bates and Col. Andy Hardin. (McGrady Aff., Doc. No. 101, ¶ 34.) Maj. Hess had discussed

his reasons for selecting Ms. Miller for the position with Col. Bates and Col. Bates signed off

on the selection. (Bates Depo., Doc. No. 95-2 at 13, 15.) McGrady asked the colonels how they

could justify the expense of training someone when McGrady already had the requisite training.

(McGrady Depo., Doc. No. 95-1 at 80.) McGrady claims Col. Bates said, “Well, when you

consider the longevity of the selectee, it’s not that big of a deal.” (Id.) Plaintiff argues Col.

Bates was referring to the age of the new selectee.

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“[D]iscriminatory remarks, even by a nondecisionmaker, can serve as probative

evidence of pretext.” Blizzard v. Marion Tech. College, 698 F.3d 275, 287 (6th Cir. 2012). Col.

Bates’s comment about the longevity of the candidate is ambiguous. He does not clearly and

unambiguously refer to Ms. Miller’s youth as compared to Plaintiff. It could be that he was

referring to the relatively short duration of training as compared to a long-term job placement.

In fact, the Court finds it unlikely that Col. Bates expected either candidate to serve in the

position until their retirement (or death). Even Plaintiff was more than ten years away from

retirement age. Nevertheless, the statement is ambiguous enough that a trier of fact could find

is evidence of age discrimination.

E. Ultimate Burden

Plaintiff’s burden at this stage is not merely to produce evidence capable of persuading

a factfinder to reject Defendant’s explanation. “[A] prima facie case and sufficient evidence to

reject the employer’s explanation may permit a finding of liability.” Carter v. Toyota Tsusho

America, Inc., 529 Fed. Appx. 601, 609 (6th Cir. 2013) (quoting Griffin v. Finkbeiner, 689 F.3d

584, 592 (6th Cir. 2012). However, rejection of the employer’s legitimate, nondiscriminatory

reasons for its action does not compel judgment for the plaintiff. Reeves v. Sanderson Plumbing

Products, Inc. 530 U.S. 133, 146 (2000). “The ultimate question is whether the employer

intentionally discriminated, and proof that ‘the employer’s proffered reason is unpersuasive, or

even obviously contrived, does not necessarily establish that plaintiff’s proffered reason is …

correct.’” Id. (quoting St. Mary’s, 509 U.S. at 511). Plaintiff must provide proof sufficient that

a reasonable finder of fact could conclude that if not for Plaintiff’s age, Col. Hess would have

chosen Plaintiff over Ms. Miller. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993)

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(“It is not enough to dis believe the employer; the fact finder must believe the plaintiff’s

explanation of intentional discrimination.”) (emphasis in original).

A showing of pretext is not always adequate to sustain a finding of liability. Id. As the

Supreme Court stated in Reeves:

Certainly there will be instances where, although the plaintiff has

established a prima facie case and set forth sufficient evidence to reject

the defendant’s explanation, no rational factfinder could conclude that the

action was discriminatory. For instance, an employer would be entitled to

judgment as a matter of law if the record conclusively revealed some other

nondiscriminatory reason for the employer’s decision, or if the plaintiff

created only a weak issue of fact as to whether the employer’s reason was

untrue and there was abundant and uncontroverted evidence that no

discrimination occurred. Reeves, 530 U.S. at 148.

Though it is a close question, considering all of the evidence in the light most favorable

to the Plaintiff, the Court finds Plaintiff has presented sufficient evidence from which a trier of

fact could conclude Defendant’s reason for not selecting Plaintiff was pretext for age

discrimination. Plaintiff has raised a question of fact regarding her qualification for the position

as compared with those of the ultimate selectee, Ms. Miller. Defendant concedes Plaintiff was

qualified for the position and that his decision to hire Ms. Miller was based, in part, on

subjective criteria – her superior interview. In addition, Plaintiff presented evidence that Maj.

Hess may not have conducted an entirely unbiased hiring process. While bias toward Ms.

Miller, if it existed, may not have been based on age, Plaintiff has presented evidence from

which a trier of fact could so conclude. Finally, Plaintiff has presented some evidence, although

slight, from which a trier of fact could conclude the decision not to hire plaintiff was because

of her age.

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I. CONCLUSION

For the reasons stated, Defendant’s Motion for Summary Judgement is DENIED.

WILLIAM L. CAMPBELL, J 4

UNITED STATES DISTRICT JUDGE

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