James McDaniel v. National Railroad Psngr Corp.

Case: 17-30027 Document: 00514127249 Page: 1 Date Filed: 08/22/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 17-30027 FILED

Summary Calendar August 22, 2017

Lyle W. Cayce

Clerk

JAMES J. MCDANIEL,

Plaintiff–Appellant,

v.

NATIONAL RAILROAD PASSENGER CORPORATION, doing business as

Amtrak,

Defendant–Appellee.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:15-CV-5845

Before REAVLEY, OWEN, and ELROD, Circuit Judges.

PER CURIAM:*

James McDaniel applied for several management positions with the

National Railroad Passenger Corporation (Amtrak) following the company’s

elimination of his managerial position. After Amtrak did not select him for

any of the positions, McDaniel filed this suit, claiming that Amtrak unlawfully

discriminated against him based on his race, gender, and age and retaliated

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

CIR. R. 47.5.4.

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against him based on his protected activities in pursuing these claims. The

district court granted summary judgment in favor of Amtrak on all claims. We

affirm.

I

McDaniel’s discrimination and retaliation claims stem from what

Amtrak describes as a reorganization and reduction-in-force. At the time,

McDaniel had worked at Amtrak for twenty-five years and was an Assistant

Superintendent of Passenger Services, a position which Amtrak’s

reorganization eliminated. Employees whose positions the reorganization

eliminated could apply for other management positions. McDaniel alleges that

his position’s responsibilities were transferred to a new Route Director

position.

McDaniel applied for the Route Director position. He believed he was

qualified for the position, alleging that the job “would be substantially the

same” as his old position because he would continue to live in New Orleans and

supervise many of the same employees. Amtrak acknowledges that the new

position entailed some of the same responsibilities as McDaniel’s old position

but contends it included more responsibility and accountability. Thomas Kirk,

a Deputy General Manager who had supervised McDaniel for several years,

was part of the panel that interviewed McDaniel for the position and was

responsible for selecting a candidate. Kirk selected Anella Popo as his first

choice for the position and, after consulting the interview panel, offered Popo

the position. McDaniel, a white male, was fifty-eight years old. Popo, an

African-American woman, was forty-one years old.

After not being selected for the Route Director position, McDaniel

applied for six other managerial positions, but Amtrak selected other

applicants for each position. Amtrak terminated McDaniel after he refused its

offer of a severance package in exchange for the release of potential claims. He

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then exercised union seniority to take a non-management position, which had

reduced salary and benefits.

He filed an internal complaint of discrimination, alleging that Amtrak

discriminated against him on the basis of his age, race, and gender in the

selection process for Route Director and some or all of the other positions for

which he was not selected. After Amtrak did not respond to this internal

complaint for six months, McDaniel filed a charge of discrimination with the

EEOC. Two months later, Amtrak’s internal employment compliance officer

concluded that no discrimination had occurred.

McDaniel later applied for Crew Base Manager and Onboard Services

Manager, both of which are management positions. Popo, as Route Director,

was the decision maker for both. Popo selected other applicants for both

positions: Lori Ball-Austin for the Crew Base Manager position and Horatio

Ames for the Onboard Services Manager position. Ball-Austin is an African-

American female and was fifty years old; Ames is an African-American male

and was fifty-five years old.

McDaniel received right to sue letters from the EEOC and filed this

lawsuit, claiming Amtrak violated Title VII, 1 the Age Discrimination in

Employment Act (ADEA), 2 and Louisiana state law 3 by discriminating and

retaliating against him when not selecting him for any management position.

He subsequently pursued only the claims for discrimination based on his age,

race, and gender in the selection process for the Route Director, Crew Base

Manager, and Onboard Services Manager positions, and for retaliation in the

selection process for the latter two positions. He also made a disparate impact

age discrimination claim based on Amtrak’s reduction-in-force. Amtrak moved

1 42 U.S.C. §§ 2000e et seq.

2 29 U.S.C. §§ 623 et seq.

3 LA. STAT. ANN. §§ 23:312, 23:332, 23:967.

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for summary judgment on all of McDaniel’s claims. The district court granted

the motion for summary judgment in full. McDaniel appealed.

II

“We review the grant of a motion for summary judgment de novo,

applying the same standard as the district court.” 4 “Summary judgment is

proper when there is no genuine dispute as to any material fact and the moving

party is entitled to judgment as a matter of law.” 5 “When considering a motion

for summary judgment, the court views all facts and evidence in the light most

favorable to the non-moving party.” 6

III

On appeal, McDaniel claims Amtrak discriminated and retaliated

against him in violation of Title VII, the ADEA, and Louisiana law. Both

parties agree that the federal and state law claims are governed by the same

analysis; we will not separately analyze McDaniel’s state law claims.

McDaniel does not appeal the district court’s dismissal of his disparate impact

claim.

“The plaintiff must carry the initial burden of establishing a prima facie

case of discrimination” 7 and retaliation. 8 A plaintiff may prove both ADEA

and Title VII claims by direct or circumstantial evidence. 9 If the plaintiff relies

on circumstantial evidence, we apply to both Title VII and ADEA claims the

burden-shifting framework set forth in McDonnell Douglas Corp. v. Green. 10

4 Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010).

5 Reed v. Neopost USA, Inc., 701 F.3d 434, 438 (5th Cir. 2012).

6 Moss, 610 F.3d at 922.

7 Haas v. ADVO Sys., Inc., 168 F.3d 732, 733 (5th Cir. 1999).

8 Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001).

9 McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007) (per curiam); see

Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir. 2004).

10 McCoy, 492 F.3d at 556; Patrick, 394 F.3d at 315.

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Under this framework, once a plaintiff makes a prima facie case, “the burden

shifts to the employer to provide a legitimate, non-discriminatory reason for

the employment decision.” 11 “If the employer articulates a legitimate, non-

discriminatory reason for the employment decision, the plaintiff must then be

afforded an opportunity to rebut the employer’s purported explanation, to show

that the reason given is merely pretextual.” 12

A plaintiff can show pretext through “evidence of disparate treatment,” 13

“by showing that the employer’s proffered explanation is false or ‘unworthy of

credence,’” 14 or by showing that he was “‘clearly better qualified’ (as opposed to

merely better or as qualified) than the employees who are selected.” 15 “The

plaintiff must rebut each nondiscriminatory reason articulated by the

employer.” 16 “The ‘rare’ instances in which a showing of pretext is insufficient

to establish discrimination are (1) when the record conclusively reveals some

other, nondiscriminatory reason for the employer’s decision, or (2) when the

plaintiff creates 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.” 17

To establish a prima facie Title VII discrimination case, the plaintiff

must show he:

(1) is a member of a protected group; (2) was qualified for the

position at issue; (3) was discharged or suffered some adverse

employment action by the employer; and (4) was replaced by

11 Moss, 610 F.3d at 922 (quoting Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th

Cir. 2007)).

12 Id.

13 Id. (quoting Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 378 (5th Cir.

2010)).

14 Id. (quoting Jackson, 602 F.3d at 379).

15 Id. (quoting EEOC v. La. Office of Cmty. Servs., 47 F.3d 1438, 1444 (5th Cir. 1995)).

16 Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003).

17 Id.

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someone outside his protected group or was treated less favorably

than other similarly situated employees outside the protected

group. 18

“To establish an ADEA claim, ‘[a] plaintiff must 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.’” 19 A plaintiff

makes a prima facie ADEA discrimination claim for failure to hire by showing

“(1) he belongs to a protected class; (2) he applied for and was qualified for a

position that was seeking applicants; (3) he was rejected; and (4) following his

rejection, another applicant not of the protected class was hired.” 20

To establish a prima facie retaliation case under Title VII or the ADEA,

a plaintiff must show that “(1) that she engaged in activity protected by Title

VII or the ADEA; (2) that an adverse employment action occurred; and (3) that

there was a causal connection between the participation in the protected

activity and the adverse employment decision.” 21 For an ADEA retaliation

claim, a plaintiff must also show “he was qualified for his position.” 22

IV

A

We first consider McDaniel’s claim that Amtrak discriminated against

him by not hiring him for the Route Director position. Amtrak does not dispute

that McDaniel established a prima facie case for age, race, and gender

discrimination regarding the Route Director position. Instead, Amtrak asserts

six reasons for hiring Popo over McDaniel: Popo’s work ethic, her strong

18 McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007) (per curiam).

19 Moss, 610 F.3d at 922 (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78

(2009)).

20 Haas v. ADVO Sys., Inc., 168 F.3d 732, 733 (5th Cir. 1999).

21 Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992).

22 Wooten v. McDonald Transit Assocs., Inc., 788 F.3d 490, 497 (5th Cir. 2015).

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leadership skills, her strong interview performance, her management

experience, McDaniel’s poor interview performance, and his “lacking”

leadership style. These are legitimate, non-discriminatory reasons to prefer

one candidate over another, as we have previously confirmed in an

unpublished decision. 23 These justifications satisfy Amtrak’s burden at the

second step, because they, “taken as true, would permit the conclusion that

there was a nondiscriminatory reason for the adverse action.” 24

In response, McDaniel argues Amtrak’s justifications are merely pretext,

on six bases. He first argues that he was more qualified than Popo. “A showing

that the unsuccessful employee was ‘“clearly better qualified” (as opposed to

merely better or as qualified) than the employees who are selected’ will be

sufficient to prove that the employer’s proffered reasons are pretextual.” 25

However, “[t]he bar is set high for this kind of evidence.” 26 McDaniel must

“present evidence from which a jury could conclude that ‘no reasonable person,

in the exercise of impartial judgment, could have chosen the candidate selected

over the plaintiff for the job in question.’” 27 “[U]nless the qualifications are so

widely disparate that no reasonable employer would have made the same

decision,” 28 “differences in qualifications are generally not probative evidence

23 See Gregory v. Town of Verona, 574 F. App’x 525, 528 (5th Cir. 2014) (unpublished)

(per curiam) (noting that not interviewing well and not displaying leadership abilities are

“legitimate, non-discriminatory reasons to prefer one candidate over another”).

24 Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002) (emphasis omitted)

(quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993)).

25 Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010) (quoting EEOC v. La.

Office of Cmty. Servs., 47 F.3d 1438, 1444 (5th Cir. 1995)).

26 Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 357 (5th Cir. 2001), abrogated

on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).

27 Moss, 610 F.3d at 923 (quoting Deines v. Tex. Dep’t of Protective & Regulatory Servs.,

164 F.3d 277, 280-81 (5th Cir. 1999)).

28 Id. (alteration in original) (quoting Deines, 164 F.3d at 282).

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of discrimination.” 29 “Employment discrimination laws are ‘not intended to be

a vehicle for judicial second-guessing of business decisions, nor . . . to

transform the courts into personnel managers.’” 30

To demonstrate his qualifications, McDaniel relies on positive

performance reviews, two positive references, and his twenty-five years of

experience at Amtrak, including in a position he claims was “essentially

identical” to the Route Director position. He also claims that Popo had seven

fewer years of managerial experience and less complex job duties, and he

supplied a statement by an Amtrak employee who worked for both McDaniel

and Popo that Popo was less skilled than McDaniel.

Amtrak acknowledges that McDaniel had “lengthy experience with

Amtrak.” However, “[t]his court has repeatedly stated that ‘an “attempt to

equate years served with qualifications . . . is unpersuasive.”’” 31 An employee’s

“better education, work experience, and longer tenure with the company do not

establish that he is clearly better qualified.” 32 Even if McDaniel had more

years at Amtrak and had served in a managerial role for longer, Popo’s

qualifications were not clearly inferior. She had a Bachelor’s degree and

Master’s degree in Business Administration, and Kirk believed that her

completion of those degrees while working full time “demonstrated a strong

work ethic and the ability to successfully manage multiple responsibilities at

once.” Though Popo’s managerial experience was not as lengthy as McDaniel’s,

Kirk believed it was sufficient and similar to that of McDaniel, as Popo had

done well managing a “particularly busy” station in Washington, D.C.

29 Id. (quoting Celestine, 266 F.3d at 357).

30 Bryant v. Compass Grp. USA Inc., 413 F.3d 471, 478 (5th Cir. 2005) (alteration in

original) (quoting Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1507-08 (5th Cir. 1988)).

31 Nichols v. Lewis Grocer, 138 F.3d 563, 569 (5th Cir. 1998) (second alteration in

original) (quoting Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir. 1996)).

32 Price v. Fed. Express Corp., 283 F.3d 715, 723 (5th Cir. 2002).

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McDaniel emphasizes that a comparison of his performance evaluation

to Popo’s is valuable evidence of pretext. The district court did not consider

the content of the evaluations, determining that McDaniel did nothing to

controvert Kirk’s statement that he did not consider the evaluations in the

selection process. McDaniel contends that Kirk’s statement “defies credulity”

and, in any case, that Kirk had actual knowledge of the evaluations. However,

even if we were to consider the performance evaluations, they do not further

McDaniel’s pretext argument as evidence that he was clearly more qualified.

Both McDaniel and Popo received the same overall rating and positive

summaries. Popo’s stated that, although she was a new manager (as McDaniel

stresses), she had “shown great strengths in managing her overall operations”

and would “only get stronger” “[a]s she bec[ame] thoroughly acclimated to her

responsibilities.”

McDaniel attempts to create a factual dispute by questioning whether

Popo was truthful in stating she earned her Master’s degree. He alleges that

Popo’s work and university were located in different states. However, “[s]imply

disputing the underlying facts of an employer’s decision is not sufficient to

create an issue of pretext.” 33 McDaniel provides no reason to believe that Kirk

would have questioned whether Popo had in fact obtained a Master’s in

Business Administration.

McDaniel’s other evidence of pretext is equally unavailing. McDaniel

contends that Amtrak’s use of a “Candidate Selection Justification” form that

includes the candidate’s race, gender, and birthdate is evidence of pretext. But

McDaniel does not explain how inclusion of these facts signals that

discrimination occurred. Nor does McDaniel dispute Amtrak’s assertion that

it is legally obligated to track the race and gender of candidates interviewed.

33 LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 391 (5th Cir. 2007).

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McDaniel offers four other pieces of evidence that go only to age

discrimination. First, he states that Amtrak “suddenly” advertised multiple

management positions as preferring candidates with a Master’s degree, which

McDaniel contends was an attempt to hire younger workers because Master’s

degrees are “disproportionately held by younger applicants.” McDaniel cites

no record evidence to support this assertion. Nor does he account for any

legitimate reason Amtrak would have for such a preference. Second, McDaniel

cites two articles, which appeared in an Amtrak monthly publication, that

discuss the contributions of Amtrak employees under the age of forty. One

focuses on an Amtrak employee who was named a rising star by an outside

magazine, and the other highlights “Younger Influencers” as an “Integral Part

of the Amtrak Multigenerational Team,” noting that twenty-nine percent of

Amtrak employees are under the age of forty. McDaniel can point to no portion

of these articles suggesting that Amtrak would prefer to hire younger workers.

These two articles, “praising young workers” as McDaniel puts it, do not create

a “genuine issue of material fact as to pretext.” 34 Third, he suggests that

Amtrak implemented a new benefit plan “to disfavor older employees.” Not

only does he not offer record support as to how this plan disfavors older

employees, he does not offer evidence that such a plan would indicate Amtrak’s

preference for hiring younger employees.

Finally, McDaniel claims Amtrak’s reduction-in-force disproportionally

affected older workers, citing a statistic that the average age of the nineteen

employees offered a severance package through the reduction-in-force was

higher than the age of employees not offered the severance package. McDaniel

did not cite this statistic as evidence of pretext to the district court, and the

34 Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 380 (5th Cir. 2010).

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district court did not consider it as pretext evidence. “An argument not raised

before the district court cannot be asserted for the first time on appeal.” 35

Even considering all of McDaniel’s discrimination evidence together, it

does not create a fact issue as to whether there is “evidence of disparate

treatment” 36 or as to whether Amtrak’s six “proffered explanation[s] [are] false

or ‘unworthy of credence.’” 37 We therefore hold that McDaniel does not meet

his burden of creating a material fact issue as to whether Amtrak’s reasons are

“merely pretextual.” 38

B

McDaniel next claims Amtrak’s decision to hire Ball-Austin for the Crew

Base Manager position instead of him was the result of age, race, or gender

discrimination. Again, Amtrak does not dispute that McDaniel established a

prima facie case of discrimination, and McDaniel does not dispute that Amtrak

offers legitimate justifications for hiring Ball-Austin. Popo selected Ball-

Austin for the position because she believed Ball-Austin was “very organized

with the reports,” “could develop stuff at the last minute,” “was easy to work

with,” and could manage “multiple tasks at one time.” Additionally, Popo

believed that McDaniel “wasn’t organized.”

To show that Popo’s explanation is merely pretext, McDaniel reasserts

the same evidence he relied on for the Route Director position. We reject the

bulk of that evidence for the same reasons as stated above. We will analyze

McDaniel’s claim that he was “clearly better qualified” than Ball-Austin, as the

facts differ from the comparison to Popo.

35 Nunez v. Allstate Ins. Co., 604 F.3d 840, 846 (5th Cir. 2010) (quoting XL Specialty

Ins. Co. v. Kiewit Offshore Servs., Ltd., 513 F.3d 146, 153 (5th Cir. 2008)).

36 Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010) (quoting Jackson, 602

F.3d at 378).

37 Id. (quoting Jackson, 602 F.3d at 379).

38 Id.

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The Crew Base Manager position required, inter alia, three to five years

of employment experience and a Bachelor’s degree. Ball-Austin had worked

for Amtrak for twenty-eight years, and McDaniel had worked there for twenty-

five. McDaniel claims he had more management experience, as he had

previously supervised the position of Crew Base Manager and had been a Crew

Base Manager. Ball-Austin had been an Onboard Services Manager for eight

years. McDaniel adds that he had formerly supervised Ball-Austin and claims

she barely met her performance goals.

A reasonable juror could not conclude that McDaniel was clearly more

qualified than Ball-Austin. Aside from his claim that she barely met her

performance goals, McDaniel’s argument rests the fact that he had more years

of managerial experience. As noted above, having more experience does not

necessarily indicate that one is “clearly better qualified.” 39 Moreover, not only

did Ball-Austin have managerial experience, but Popo testified that other

aspects of Ball-Austin’s performance qualified her for the position, notably,

Ball-Austin’s organizational skills. We therefore hold that McDaniel cannot

create a genuine fact issue as to whether he is clearly more qualified than Ball-

Austin, and that his other evidence of pretext falls short for the same reasons

as noted above.

C

McDaniel also claims Amtrak discriminated against him by hiring

Horatio Ames for the Onboard Services Manager position. McDaniel does not

make a claim of sex discrimination, as both he and Ames are the same gender.

Amtrak contends that Ames and McDaniel were within the same protected age

class, as Ames was only two years younger than McDaniel. We need not

address this contention because McDaniel’s Onboard Services Manager

39 Price v. Fed. Express Corp., 283 F.3d 715, 723 (5th Cir. 2002).

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position discrimination claim fails for the same reason as his previous

discrimination claims. Even if McDaniel were to make out a prima facie age-

based discrimination claim along with his race-based claim, he does not create

a genuine issue of material fact as to whether Amtrak’s legitimate reasons for

hiring Ames were merely pretextual.

As with the Crew Base Manager position, Popo was the final decision

maker for the Onboard Services Manager position. She testified that she

selected Ames because of his experience in customer service, management, and

train and engine equipment as well has his personal attributes and

experiences such as leadership qualities, military service, enthusiasm,

motivation, and interview performance.

Again, McDaniel argues he was clearly better qualified than Ames.

McDaniel points out that Ames had only three years of experience at Amtrak

and had not worked in onboard service management. However, Ames had

considerable management experience with other companies and supervisor

experience in the Air Force. Though he had not specifically worked in onboard

service management, Popo testified that the “policies or processes” were

something he could learn and that Ames had the leadership qualities she

wanted. McDaniel does not “present evidence from which a jury could conclude

that ‘no reasonable person, in the exercise of impartial judgment, could have

chosen the candidate selected over the plaintiff for the job in question.’” 40

McDaniel also argues that a fact issue exists as to why he was not

initially offered an interview. He claims Popo intentionally left him off the

interview list, only to include him after he called to secure his spot. Popo

testified that McDaniel had been on the list but failed to receive an invitation

40Moss, 610 F.3d at 923 (quoting Deines v. Tex. Dep’t of Protective & Regulatory Servs.,

164 F.3d 277, 280-81 (5th Cir. 1999)).

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due to an administrative error. McDaniel has failed to point to any record

evidence that would create a material factual dispute. 41 Even if Popo

intentionally left McDaniel off the interview list, McDaniel provides no reason

to believe that it was for discriminatory purposes. 42

McDaniel also reasserts the same circumstantial evidence of pretext as

he did for the Route Director position. As discussed above, this evidence does

not create a genuine issue of material fact as to whether Amtrak’s legitimate

reasons were merely pretext.

D

Finally, McDaniel argues that Amtrak did not hire him for the Crew

Base Manager position or the Onboard Services Manager position in

retaliation for filing an EEOC claim. Prior to applying for these positions,

McDaniel filed an internal complaint and a formal charge of discrimination

with the EEOC alleging discrimination in his non-selection for the Route

Director position.

Amtrak contends that McDaniel fails to make out a prima facie case of

retaliation for both positions because Popo was unaware that McDaniel filed

the discrimination complaints. McDaniel alleges that he informed Popo of his

EEOC complaint. Even if McDaniel has established a factual dispute as to the

prima facie retaliation case, he again is unable to proffer evidence that

Amtrak’s legitimate justifications are merely pretext. For his retaliation

claims, McDaniel offers no new evidence that Amtrak’s reasons were pretext

in addition to those we have already determined were insufficient to raise a

41 See Jackson, 602 F.3d at 378 (“The question is whether Jackson has shown that

there is a genuine issue of material fact as to whether this reason was pretextual.” (emphasis

added)).

42 See Moss, 610 F.3d at 928.

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fact issue for his discrimination claims. For the reasons listed above,

McDaniel’s retaliation claims do not survive summary judgment.

* * *

For the foregoing reasons, we AFFIRM the judgment of the district court.

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