Browning v. Army

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0023p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellant, -

DAVID R. BROWNING,

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No. 04-5219

v.

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DEPARTMENT OF THE ARMY, -

Defendant-Appellee. -

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Appeal from the United States District Court

for the Eastern District of Kentucky at Lexington.

No. 02-00375—Karl S. Forester, District Judge.

Submitted: December 9, 2005

Decided and Filed: January 19, 2006

Before: DAUGHTREY, GILMAN, and SUTTON, Circuit Judges.

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COUNSEL

ON BRIEF: Andrew Sparks, Marianna Jackson-Clay, ASSISTANT UNITED STATES

ATTORNEYS, Lexington, Kentucky, for Appellee. David R. Browning, Berea, Kentucky, pro se.

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OPINION

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RONALD LEE GILMAN, Circuit Judge. In this age-discrimination case, David Browning,

a 48-year-old male, claims that the Army’s use of a matrix of job-related criteria to determine which

applicant was best qualified for an open position was a pretext designed to mask a discriminatory

motive. Browning worked in the Ammunitions Operation Division (AOD) at the Blue Grass Army

Depot (BGAD) in Richmond, Kentucky as a Material Handler and Forklift Operator/Supervisor.

In 1996, the BGAD Civilian Personnel Office advertised that an Explosives and Handler Supervisor

position was open in the AOD. Browning and five other individuals applied for this position.

Smiley Courtney, the Chief of the AOD, prepared a matrix of job-related criteria to determine which

applicant was best qualified. After reviewing the applications, Courtney ranked Browning third.

Courtney subsequently awarded the position to Steven Rhodus, a 33-year-old First-Line Supervisor

whom Courtney had ranked as the most-qualified applicant.

Claiming that he was discriminated against because of his age, Browning filed a complaint

with the Equal Employment Opportunity Commission (EEOC) in March of 1996. The EEOC found

that the Army had a legitimate, nondiscriminatory reason for hiring Rhodus. Browning then filed

suit in the district court, alleging age discrimination in violation of the Age Discrimination in

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Employment Act (ADEA). The district court granted summary judgment to the Army on all claims.

On appeal, Browning argues that the district court erred in holding that he had failed to present

sufficient evidence to raise a jury question as to whether the Army’s reason for not promoting him

was a pretext designed to hide unlawful discrimination. For the reasons set forth below, we

AFFIRM the judgment of the district court.

I. BACKGROUND

William Ware, a “subject matter expert,” initially ranked the applicants for the Explosives

and Handler Supervisor position pursuant to BGAD’s merit-promotion policy, and he ranked all of

them as “highly qualified.” Courtney received the applications following this initial ranking, but

he did not review Ware’s evaluation or ascertain the ages of any of the applicants.

Pursuant to a Commander’s directive on selection procedures, Courtney was responsible for

developing a method to evaluate the applicants’ qualifications. The directive gave Courtney the

authority to select the job criteria relevant to the position. He proceeded to develop a “Rating

Element Criteria” matrix based upon the description of the job and his personal knowledge of the

job’s requirements. To create the matrix, Courtney reviewed the original job description and

developed the following five criteria that he believed were necessary to perform the job, with the

five criteria adding up to 25 points: (1) supervisory experience (worth 4 points, or 16%),

(2) administrative/managerial experience (worth 5 points, or 20%), (3) ammunition experience

(worth 8 points, or 32%), (4) general supply experience (worth 4 points, or 16%), and (5) education

(worth 4 points, or 16%). Under Criterion #2 (administrative managerial/experience), Courtney

created five subparts, each worth one point: (1) oral and written communication competency,

(2) managerial experience, (3) policy implementation competency, (4) decisionmaking competency,

and (5) analytical/interpretive competency. Courtney developed the criteria and created the matrix

before he received any of the applications.

Because Courtney had served as a supervisor to all six candidates, he did not conduct

interviews for the position and did not review the information in the applicants’ personnel files.

Courtney claims that he did not know the respective ages of the applicants or that Browning was

eligible for early retirement. After reviewing the applications and assigning each applicant a point

value based on the matrix that he had created, Courtney ranked the six applicants. Browning ranked

third with 14 points, and Rhodus ranked first with 16 points. Although Courtney acknowledged that

Browning possessed administrative/managerial experience, he awarded Browning just one out of

five possible points for that criterion, explaining that he awarded points to applicants only if they

had “outstanding capacity” in a particular category. Courtney selected Rhodus for the position in

August of 1996 based on Rhodus’s matrix score and his ability to work with upper management.

After learning that Rhodus had been selected for the position, Browning scheduled a meeting

with Courtney because Browning believed that Courtney had discriminated against him on the basis

of age. Courtney told Browning that Browning’s experience and expertise were better utilized in

his current position and that Rhodus was selected due to his strong administrative skills. Browning,

however, thought that he was more qualified than Rhodus because he had completed coursework

in Technical Ammunition and because he had 17 years of supervisory experience compared with

Rhodus’s 4 years.

Although the position in question requires administrative experience, Browning claims that

Courtney overvalued the administrative/managerial criterion because the job description stated that

only 13% of the position was administrative while the matrix valued administrative experience at

20%. Following his meeting, Browning requested EEOC counseling and later filed a formal

complaint with the EEOC. Joseph Simeone, an EEOC investigator, held a factfinding conference

No. 04-5219 Browning v. Dep’t of the Army Page 3

in February of 1997. He ultimately concluded that Browning’s claim of age discrimination had no

basis in fact.

Browning then requested a hearing before an EEOC administrative law judge (ALJ), who

found that the Army had a legitimate, nondiscriminatory reason for hiring Rhodus instead of

Browning. The agency adopted the ALJ’s recommendation both initially and after completing its

internal appeals procedure. Browning v. Sec’y of the Army, EEOC Doc 01990290 (2002), 2002 WL

1004587. Browning then filed suit in federal court. The district court ultimately granted summary

judgment in the Army’s favor. On appeal, Browning contends that the district court erred in

granting summary judgment because he had allegedly raised genuine issues of material fact on the

issue of pretext and because the Army purportedly relied on subjective criteria not listed in the job

description.

II. ANALYSIS

A. Standard of review

The district court’s grant of summary judgment is reviewed de novo. Minadeo v. ICI Paints,

398 F.3d 751, 756 (6th Cir. 2005). Summary judgment is proper where there exists no genuine issue

of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(c). In considering a motion for summary judgment, the district court must construe the evidence

and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The central issue is “whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52

(1986).

B. Burden of proof

The burden-shifting approach articulated in McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973), and further refined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248

(1981), applies in the present case because Browning presented no direct evidence of discrimination.

See Bush v. Dictaphone Corp., 161 F.3d 363, 368 (6th Cir. 1998) (holding that “[c]laims under the

ADEA are typically analyzed within the framework set forth in McDonnell Douglas” where the

plaintiff presents no direct evidence of discrimination). Under this approach, Browning must first

establish a prima facie case by showing that: (1) he was at least 40 years old at the time of the

alleged discrimination, (2) he was qualified for the job, (3) he suffered an adverse employment

action, and (4) he was replaced by someone substantially younger. Id.

The parties do not dispute that Browning made out a prima facie case. Once Browning

established his prima facie case, the burden shifted to the Army to offer a legitimate,

nondiscriminatory reason for the adverse employment action. Id. Again, the parties agree that the

Army met its burden. As a result, the presumption of discrimination no longer exists, and Browning

must prove that the reasons offered by the Army were in fact pretextual in order to prevail. Id. The

ultimate burden of persuasion remains with Browning at all times. See Reeves v. Sanderson

Plumbing Prods., 530 U.S. 133, 143 (2000) (“Although intermediate evidentiary burdens shift back

and forth under this framework, the ultimate burden of persuading the trier of fact . . . remains at all

times with the plaintiff.”) (citation and quotation marks omitted).

C. Browning’s claim of pretext

Browning can demonstrate pretext by showing that the Army’s reasons for failing to promote

him (1) had no basis in fact, (2) did not actually motivate its conduct, or (3) were insufficient to

warrant the challenged conduct. See Manzer v. Diamond Shamrock Chems., Co., 29 F.3d 1078,

No. 04-5219 Browning v. Dep’t of the Army Page 4

1084 (6th Cir. 1994) (affirming a judgment as a matter of law for the employer because the

employee did not provide sufficient evidence regarding pretext). At the summary-judgment stage

of the proceedings, Browning must set forth evidence from which a reasonable juror could reject the

Army’s explanations for its failure to promote him and infer that the Army instead made its decision

on the basis of Browning’s age. See Braithwaite v. Timken Co., 258 F.3d 488, 494 (6th Cir. 2001)

(affirming the district court’s grant of summary judgment to the employer because “no reasonable

juror could find that the employer’s adverse employment action was pretextual”). So if Browning

failed to raise a genuine issue of material fact on the issue of pretext, he cannot survive summary

judgment. See Johnson v. Kroger Co., 319 F.3d 858, 869 (6th Cir. 2003) (“[T]his case comes down

to a judgment call about whether Johnson presented enough evidence to create a genuine issue of

material fact.”).

Although Browning claims that the Army’s stated reasons for failing to promote him were

pretextual, he neither cites Manzer nor attempts to categorize his arguments as fitting within any of

Manzer’s alternative prongs. His failure to do so is not fatal, however, because Browning must

satisfy only one alternative in order to avoid summary judgment. Manzer, 29 F.3d at 1084.

Browning first argues that the matrix was used as a pretext designed to hide age

discrimination. During the EEOC hearing, Browning initially claimed that Courtney’s development

of the matrix was improper because it valued administrative/managerial experience at 20% while

the job description described the position as just 13% administrative. Later, however, Browning

argued that Courtney’s flexibility in applying the matrix criteria, rather than the matrix itself, was

improper. Browning therefore contradicted his own claim that Courtney developed the matrix as

a pretext to hide age discrimination.

In any event, Browning cites two cases for the proposition that reliance on criteria not listed

in the job description supports an inference of discrimination. See Courtney v. Biosound, Inc., 42

F.3d 414, 421 (7th Cir. 1994) (denying the employer’s motion for summary judgment where the job

description failed to mention a requirement that the employer later claimed was essential); Gallo v.

Prudential Residential Servs., 22 F.3d 1219, 1225 (2d Cir. 1994) (same). Both cases, however, are

easily distinguishable. The employers in Courtney and Gallo hired applicants other than the

plaintiffs based on criteria that were not even mentioned in the job descriptions. In contrast, both

the job description and the matrix in the present case required that the successful applicant have

administrative/managerial experience. Browning was thus on notice that the Army considered

administrative/managerial experience to be an important qualification and, as the district court

stated, “it was reasonable for Courtney to conclude that more weight should be given to an

applicant’s administrative skills if he believed that such skills would prove useful to performing the

subject position.”

Moreover, in contrast to Courtney and Gallo, this court has held that employers are not

rigidly bound by the language in a job description. Wrenn v. Gould, 808 F.2d 493 (6th Cir. 1987).

As explained in Wrenn, employment-discrimination laws do “not diminish lawful traditional

management prerogatives in choosing among qualified candidates,” and an employer has “great[]

flexibility in choosing a management-level employee.” Id. at 502 (holding that an employer can

consider factors external to a job description when selecting among qualified candidates) (citation

and quotation marks omitted). The Wrenn court further held that “the employer’s motivation, not

the applicant’s perceptions, or even an objective assessment []of what qualifications are required for

a particular position,” is key to the discrimination inquiry. Id. at 502. See also Aka v. Washington

Hospital Center, 156 F.3d 1284, 1297 n.15 (D.C. Cir. 1998), where the D.C. Circuit observed that

reasonable employers do not ordinarily limit their evaluation of applicants to a

mechanistic checkoff of qualifications required by the written job descriptions.

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Obviously, they will take additional credentials into account, if those credentials

would prove useful in performing the job.

Id. Courtney’s decision to weigh administrative/managerial experience more heavily than the job

description suggested is simply not sufficient to demonstrate pretext. Browning has failed to show

that Courtney’s motivation in doing so was to unlawfully discriminate on the basis of age.

Several courts, moreover, have held that employers may use matrices that reward applicants

who meet subjective criteria. Although Browning argues that “there were no underlying or

documentary bases to support the objectivity of the matrix [] . . . other than the selecting official’s

testimony,” this subjectivity, without more, does not establish pretext. See Brown v. EE&G Mound

Applied Technologies, Inc., 117 F. Supp. 2d 671, 680 (S.D. Ohio 2000) (“The fact that individual

managers had flexibility in determining individual components of a matrix score[] does not indicate

discrimination.”). So even though the matrix scores were “susceptible to subjective determinations,”

the district court in Brown concluded that the matrix was irrelevant to the pretext inquiry in the

absence of a showing that the matrix inaccurately measured job skills or that the matrix was used

as a pretext to mask discrimination. Id. at 680. Similarly, in Senner v. Northcentral Technical

College, 113 F.3d 750 (7th Cir. 1997), the Seventh Circuit held that using a matrix with subjective

criteria was acceptable:

Senner’s most persuasive argument is that the rating criteria were too subjective . . . .

The result . . . is that the assessors could readily manipulate the results . . . . The

problem is that these arguments, even when construed most favorably toward Senner,

only show that NTC did not give his credentials the emphasis [that] they may have

deserved . . . . Senner has shown, at best, that NTC’s evaluation criteria require a

subjective judgment; they do not suggest that discriminatory intent affected that

judgment.

Id. at 756-57.

As in Senner, Browning at most contends that the Army undervalued his skills and

experience. Browning never asserts a link between the subjective matrix criteria and any

discriminatory intent by the Army. He instead claims that “the use of this [m]atrix and the change

in the requirements of the job description is enough evidence for a jury to find for [him].”

Browning’s argument fails, however, because he has the ultimate burden of persuasion throughout

the suit, see Reeves, 530 U.S. at 142, and because the Army’s reliance on subjective matrix criteria

does not support an inference of discrimination.

Again challenging Courtney’s ability to make subjective determinations, Browning argues

that Courtney should have awarded him more points under Criterion #2, the

administrative/managerial category (which contained the five subcategories set forth above).

Browning received zeroes in every subcategory of Criterion #2 except analytical/interpretive

competency, and he contends that he should have received more points given his 17 years of federal

experience and his undergraduate degree. Courtney explained, however, that “this [matrix] was

meant to identify areas of significant strength as opposed to areas of just able to do it,” and that

“analytical and interpretive competency was the only [subcategory] he felt [Browning] really shone

in.” Rather than simply awarding points for applicants that possessed certain skills, Courtney

wanted to compare the qualifications of the various applicants. Although Browning had 17 years

of experience and an undergraduate degree, Courtney did not believe that these factors translated

into Browning’s potential to excel in the position.

Whether Browning agrees with Courtney’s scoring method, or whether he believes that he

was more qualified for the position that Rhodus ultimately filled, is irrelevant to the age-

No. 04-5219 Browning v. Dep’t of the Army Page 6

discrimination inquiry—what matters is Courtney’s perception of Browning’s qualifications.

Lomax v. Sears, Roebuck, & Co., No. 99-6589, 2000 U.S. App. LEXIS 33884, at *11 (6th Cir. Dec.

19, 2000) (unpublished) (holding that the plaintiff’s assessment of his own qualifications was

irrelevant to the discrimination inquiry). Not only has this court afforded great flexibility to

employers when selecting management personnel, see Gould, 808 F.2d at 502, but it has explicitly

held that “[t]he law does not require employers to make perfect decisions, nor forbid them from

making decisions that others may disagree with. Rather, employers may not hire, fire, or promote

for impermissible, discriminatory reasons.” Hartsel v. Keys, 87 F.3d 795, 801 (6th Cir. 1996)

(holding that the employee’s subjective belief as to why she was terminated fails to satisfy the

summary judgment standard). Questioning the Army’s hiring criteria is not within the province of

this court, even if the Army’s hiring process was entirely subjective. Browning has never asserted

that the Army used subjective criteria to mask a discriminatory motive, and without any allegations

of a discriminatory intent, Browning cannot meet his burden of persuasion on this issue.

Browning also argues that Courtney should have awarded him a point for inventory

experience, a category under Criterion #3 (the ammunition-experience category). During the

factfinding conference, Browning admitted that his inventory experience was “not actually spelled

out in the application,” but he contends that Courtney should have awarded him a point because

Courtney knew about his prior inventory experience. Courtney, however, explained that he did not

award a point to Browning on this basis because Browning was not an “expert” in that field. As

discussed above, Courtney awarded points only to those candidates who demonstrated “outstanding

capacity” in a particular field, and such subjective evaluations, without more, do not support an

inference of discrimination. See Senner, 113 F.3d at 756. Browning, moreover, should not now be

heard to complain that he did not receive an additional point for this criteria when he failed to

include his inventory experience on his application. Furthermore, even if Browning had noted his

inventory experience and Courtney had awarded him the point, his total would still have been lower

than Rhodus’s. Browning’s lower point total, therefore, does not establish pretext.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district court.