Barnett v. Department of Veterans Affairs, 96-6145

• Decision Date: 28 August 1998
• Docket Number: No. 96-6145,96-6145
• Citation: 153 F.3d 338
• Parties: 77 Fair Empl.Prac.Cas. (BNA) 1218, 73 Empl. Prac. Dec. P 45,472 Lucile BARNETT, Plaintiff-Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 338

153 F.3d 338

77 Fair Empl.Prac.Cas. (BNA) 1218,

73 Empl. Prac. Dec. P 45,472

Lucile BARNETT, Plaintiff-Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Defendant-Appellee.

No. 96-6145.

United States Court of Appeals Sixth Circuit.

Argued July 29, 1997.

Decided Aug. 28, 1998.

Michael L. Boylan (argued and briefed), Louisville, KY, for Plaintiff-Appellant.

Terry M. Cushing, Asst. U.S. Atty. (briefed), Richard A. Dennis, Asst. U.S. Atty. (argued), Regina S. Edwards (briefed), Office of U.S. Attorney, Louisville, KY, for Defendant-Appellee.

Before: JONES, NELSON, and RYAN, Circuit Judges.

OPINION

NATHANIEL R. JONES, Circuit Judge.

Plaintiff Lucile Barnett appeals the denial of her gender and age discrimination claims under Title VII of the Civil Rights Act of 1964, 78 Stat. 255, 42 U.S.C. § 2000e-2(a)(1) and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, following a bench trial below. Barnett claims that her supervisor intentionally discriminated against her and forced her removal from the Vocational Rehabilitation and Counseling section of the Department of Veterans Affairs (DVA). Having considered the record developed below, we find that the district court did not clearly err in its findings and therefore affirm.

I.

Plaintiff Lucile Barnett worked as a counseling psychologist in the United States Department of Veteran Affairs (DVA) for four years, beginning on August 8, 1987. Her employment followed a previous Title VII action in which Barnett successfully alleged that the DVA wrongfully reduced her rank from GS-12 to GS-7. ¹ As a counseling psychologist, Barnett's duties required her to use her professional assessments of her veteran clients to provide them with "services and assistance" to achieve their employment goals. If her professional assessment permitted, Barnett classified some of her clients as "seriously disabled" or "employment handicapped" in which case such persons were entitled to certain benefits.

Barnett, along with other staff counseling psychologists, was evaluated annually under a Performance Appraisal Plan (PAP). Each year, her superiors would assess her performance as "Outstanding," "Excellent," "Fully Successful," or "Unsuccessful." At the beginning of the evaluation year, the VA staff provided each counseling psychologist with a specific numeric minimal level of performance. All indications are that the minimum performance levels were uniform. In 1991, the year at issue, Barnett received her PAP and was required to make no more than 10 procedural, 6 judgmental, or 3 substantive errors. ² Towards the end of the performance appraisal year, a staff supervisor would review each counseling psychologist's record to determine whether the requisite minimum had been attained.

Prior to 1991, Barnett had received satisfactory marks as a result of her performance. However, in March, 1991, near the end of the appraisal year, Leonard Mullins, Barnett's supervisor, sent her a warning letter marked "Warning of Unacceptable Performance--Notice of Opportunity Period." The letter stated that Barnett had committed seven substantive errors in the performance appraisal year, four more than allowed under the PAP. Mullins further informed Barnett that she would be given an opportunity period of 60 days to improve her performance. The letter specified that Barnett could make no more than one substantive, two judgmental or four procedural errors during the 60 day period.

It is clear from the record that Mullins and Barnett had a stormy relationship. The district court found that Mullins grabbed a pencil from Barnett in the course of a discussion, which she viewed as an act of physical intimidation. There was also uncorroborated testimony from another counseling psychologist, Catherine Marie Zachgo, that Mullins disliked Barnett and joked about her performance to other counseling psychologists.

After the opportunity period passed, Mullins reviewed Barnett's cases and found eight substantive errors, thirteen judgmental errors and eighteen procedural errors. Mullins subsequently sent Barnett a notice of removal along with an offer to respond to the proposed action. Although Barnett contested the removal notice both orally and in writing, the Central Office of the DVA approved the decision. Ray Hill, a younger male employee, replaced Barnett. ³

Subsequently, Barnett filed a complaint in federal district court on September 18, 1991, alleging that the DVA engaged in age and gender-based discriminatory employment practices in violation of the ADEA and Title VII of the Civil Rights Act of 1964. Specifically, Barnett contended that the DVA, through its agent Leonard Mullins, had treated her in a discriminatory fashion and retaliated against her as a result of her 1991 EEO complaint. The district court conducted a bench trial and, in a Memorandum Opinion filed on July 22, 1996, concluded that Barnett had presented a prima facie case of age and gender discrimination but had failed to demonstrate that the DVA acted in a pretextual manner under St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Having heard all of the evidence presented at trial, the district court made the following observation:

While the Court realizes that the opinions of counseling psychologists may often be matters for reasonable disagreement as between them and their superiors, and it also realizes that in some cases the opinions called for on the part of a counseling psychologist are in fact somewhat subjective, it still remains the case that the reasons for Dr. Barnett's discharge were not fabricated nor pretextual; therefore she is not entitled to recover either under the trilogy of cases decided prior to Hicks or under Hicks itself. J.A. at 281 (Memorandum Opinion) (parenthetical omitted).

Regarding Barnett's retaliation claim, the district court examined the claims in light of this court's decision in Cooper v. City of North Olmsted, 795 F.2d 1265 (6th Cir.1986), to find that Barnett had not established a prima facie case of retaliation because her previous EEO activities had no link to her discharge based on the objective performance criteria.

Barnett then filed this timely appeal.

II.

We review the district court finding that Barnett failed to establish pretext for clear error. See Kline v. Tennessee Valley Authority, 128 F.3d 337, 341 (6th Cir.1997) ("A determination of pretext is an intermediate factual step in the determination of the ultimate factual finding of intentional discrimination or the lack thereof. It is a finding of fact subject to the clearly erroneous standard of review.").

In order to prevail under Title VII, Barnett must first establish a prima facie case of gender discrimination, which requires that she prove that: (1) she is a member of a protected class; (2) an adverse employment decision was made against her; (3) she was otherwise qualified for the position from which the adverse decision arose; and (4) a person not of her protected class replaced her. See Ensley-Gaines v. Runyon, 100 F.3d 1220, 1224 (6th Cir.1996); Cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 n. 6, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Once the prima facie elements have been established, the defendant must produce evidence that a legitimate non-discriminatory reason motivated the employment action. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. The burden of persuasion then returns to the plaintiff to demonstrate that the reason proffered by the defendant was pretextual. Texas Dep't of Community Affairs v. Burdine, 450 U.S. at 252-53, 101 S.Ct. 1089 (1981); Goostree v. Tennessee, 796 F.2d 854, 861-63 (6th Cir.1986).

Under the ADEA, a plaintiff must proffer evidence of the following to make out a prima facie case of age discrimination: (1) that plaintiff was between 40 and 65 years old; (2) that she was qualified for the particular position; (3) that she was subjected to adverse employment action; and (4) that she was replaced by a younger individual. See Woythal v. Tex-Tenn Corp., 112 F.3d 243, 246 (6th Cir.1997); see also O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996); Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1390 (6th Cir.1993). Once a prima facie case has been established, this court applies the shifting burden framework of McDonnell Douglas to age discrimination cases as well. See Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1082 (6th Cir.1994).

The district court properly found that Barnett had established a prima facie case of age and gender discrimination. Barnett was 51 years old when she was discharged from her employment, and she was replaced by a substantially younger male, Ray Hill. The parties do not dispute this finding on appeal. As justification for its decision, the DVA proffered evidence at trial that Barnett simply failed to perform according to the PAP, which resulted in her warning notice and eventual removal.

Under both theories of discriminatory treatment, the district court found that Barnett had failed to demonstrate that the reasons for her termination as provided by the employer were pretextual under St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Under Hicks, a plaintiff seeking recovery under Title VII and the ADEA bears the burden of proof of discriminatory animus, notwithstanding the failure of the defendant's proffer of legitimate nondiscriminatory reasons for the adverse employment action. See Hicks, 509 U.S. at 511, 113 S.Ct. 2742; Betkerur v. Aultman Hospital Association, 78 F.3d 1079, 1095 (6th Cir.1996); Mitchell v. Toledo Hospital, 964 F.2d 577, 584 (6th Cir.1992). In other words, if the defendant fails to present any legitimate nondiscriminatory reasons for its actions, the trier of...