Browning v. Department of Army

• Decision Date: 19 January 2006
• Docket Number: No. 04-5219.,04-5219.
• Citation: 436 F.3d 692
• Parties: David R. BROWNING, Plaintiff-Appellant, v. DEPARTMENT OF THE ARMY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

436 F.3d 692

David R. BROWNING, Plaintiff-Appellant, v. DEPARTMENT OF THE ARMY, Defendant-Appellee.

No. 04-5219.

United States Court of Appeals, Sixth Circuit.

Submitted: December 9, 2005.

Decided and Filed: January 19, 2006.

ON BRIEF: Andrew Sparks, Marianna Jackson-Clay, Assistant United States Attorneys, Lexington, Kentucky, for Appellee. David R. Browning, Berea, Kentucky, pro se.

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

OPINION

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 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 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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

B. Burden of proof

The burden-shifting approach articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and further refined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (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, 120 S.Ct. 2097, 147 L.Ed.2d 105 (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, 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...