Mustafa v. State of Nebraska Dept. of Correctional, 4:99CV3280.

• Citation: 196 F.Supp.2d 945
• Decision Date: 06 March 2002
• Docket Number: No. 4:99CV3280.,4:99CV3280.
• Parties: Vernon H. MUSTAFA, Plaintiff, v. STATE OF NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES; Harold Clarke, individually; Theresa Predmore, individually; and Dan Schmuecker, individually, Defendants.
• Court: U.S. District Court — District of Nebraska

Page 945

196 F.Supp.2d 945

Vernon H. MUSTAFA, Plaintiff, v. STATE OF NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES; Harold Clarke, individually; Theresa Predmore, individually; and Dan Schmuecker, individually, Defendants.

No. 4:99CV3280.

United States District Court, D. Nebraska.

March 6, 2002.

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Elaine A. Waggoner, Waggoner Law Firm, Lincoln, NE, for plaintiff.

Vicki L. Boone-Lawson, Attorney General's Office, Lincoln, NE, for defendants.

MEMORANDUM AND ORDER

KOPF, Chief Judge.

This matter is before me on the defendants' amended motion for summary judgment. (Filing no. 66.) After careful consideration of the pleadings, evidence, and briefs submitted by the parties, I will deny the motion in part and grant it in part.

I. BACKGROUND

In July 1997, Theresa Predmore (Predmore) was a Unit Administrator at the Nebraska State Penitentiary (NSP). (Filing no. 65, Predmore aff. ¶ 2.) To meet a need for more Case Managers under her supervision, Predmore submitted a job requisition to the Nebraska Department of Correctional Services (DCS) Personnel Department. (Filing no. 65, Predmore aff. ¶ 2.) The DCS Personnel Department approved eight new Case Manager positions for NSP. (Filing no. 65, Predmore aff. ¶ 17, Ex. D.) The positions were advertised internally,¹ and forty-four individuals applied. (Filing no. 65, Avecedo aff. ¶ 9.) Among the forty-four applicants was the plaintiff, Vernon Mustafa (Mustafa). Mustafa is an African-American male and a Muslim. (Filing no. 46, ¶ 7.) At the time he applied for the Case Manager position, Mustafa was approximately fifty years old (Filing no. 46, ¶ 7), and he had worked as a DCS Case Worker² since 1986 (Filing no. 46, ¶ 10).

Hope Avecedo (Avecedo), a "Personnel Officer" with the DCS, conducted an initial review of the applications to select interview candidates. (Filing no. 65, Avecedo aff. ¶ 8.) Originally, Avecedo did not select Mustafa to interview. (Filing no. 65, Avecedo aff. ¶ 10-12.) After Mustafa complained to another DCS employee, however, Mustafa was permitted to interview for the Case Manager position. (Filing no. 46, ¶ 12.)

Mustafa interviewed before a board of four DCS employees. The interview board consisted of Predmore, Dan Schmuecker (Schmuecker), Fred Britten (Britten), and Aaron Hall (Hall). (Filing no. 65, Predmore aff. ¶ 5.) Predmore, Schmuecker, and Britten are Caucasian (Filing no. 65, Mustafa dep. 27:15-25); Hall is African-American (Filing no. 67, Hall aff. ¶ 5). During each interview, the board asked a series of nine questions³ and scored each interviewee's responses on a numerical scale of zero to four. (Filing no. 67, Hall aff. ¶ 15.) Mustafa received a combined score of 54, the lowest score of the four African-American candidates, and a score "substantially lower" than the scores received by the successful applicants.⁴ (Filing no. 65, Avecedo aff. ¶ 17.) Ultimately, the interview board did not recommend Mustafa for a Case Manager position, noting that he "[a]nswered several questions incorrectly or incompetently." (Filing no. 65, Predmore aff. ¶ 17, Ex. D.) Instead, the board submitted eight other names for recommended hire: six men, one of whom was a racial minority,⁵ and two women. (Filing no. 65, Predmore aff. ¶ 17, Ex. D.) At least some of the selected candidates were younger than Mustafa.⁶ (Filing no. 46, ¶ 34.)

Ultimately, Mustafa exhausted his administrative remedies and instituted this suit, asserting a battery of claims under state and federal law. I then dismissed some of Mustafa's claims on immunity grounds. (Filing no. 59.) The defendants now seek summary judgment on all of the remaining claims. (Filing no. 66.)

II. DISCUSSION

After reviewing the Amended Complaint (Filing no. 46) and Mustafa's brief in opposition to the amended motion for summary judgment, I conclude Mustafa asserts six remaining claims. All are related to the defendants' failure to promote Mustafa to Case Manager in 1997. Mustafa claims: (1) discrimination based on race in violation of Title VII; (2) discrimination based on race in violation of the equal protection guarantee of the Fourteenth Amendment; (3) discrimination based on age in violation of the equal protection guarantee of the Fourteenth Amendment; (4) discrimination based on religion in violation of the equal protection guarantee of the Fourteenth Amendment; (5) retaliation for exercise of speech protected by the First Amendment; and (6) deprivation of due process for damage to a liberty interest in reputation.

A. STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 56, summary judgment is appropriate when, viewing the facts and inferences in the light most favorable to the nonmoving party, "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Harder v. ACandS, 179 F.3d 609, 612 (8th Cir.1999). "In making this determination, the function of the court is not to weigh evidence and make credibility determinations, or to attempt to determine the truth of the matter, but is, rather, solely, to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Hedges v. Poletis, 177 F.3d 1071, 1074 (8th Cir. 1999). I must "look to the substantive law to determine whether an element is essential to a case, and `[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.'" Dulany v. Carnahan, 132 F.3d 1234, 1237 (8th Cir.1997) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505).

I am mindful that "summary judgment should seldom be granted in discrimination cases." Bassett v. City of Minneapolis, 211 F.3d 1097, 1099 (8th Cir. 2000) (collecting cases). To survive summary judgment, however, the plaintiff's evidence "must go beyond the establishment of a prima facie case to support a reasonable inference regarding the alleged illicit reason for the defendant's action." Landon v. Northwest Airlines, Inc., 72 F.3d 620, 624 (8th Cir.1995) (citing Reich v. Hoy Shoe Co., 32 F.3d 361, 365 (8th Cir. 1994)). Furthermore, "[s]ummary judgment is proper when a plaintiff fails to establish a factual dispute on an essential element of [his] claim." Bialas v. Greyhound Lines, Inc., 59 F.3d 759, 762 (8th Cir.1995).

B. TITLE VII

Mustafa first contends the DCS failed to promote him based on his race in violation of section 703(a)(1) of Title VII of the Civil Rights Act of 1964 (Title VII). Title VII provides in pertinent part: "It shall be an unlawful employment practice for an employer—`(1) ... to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin....'" 42 U.S.C. § 2000e-2(a). Under Title VII, a plaintiff can establish the existence of intentional discrimination by presenting either direct or indirect evidence of employment discrimination. Lang v. Star Herald, 107 F.3d 1308, 1311 (8th Cir.1997). In the present case, Mustafa relies on indirect, circumstantial evidence of discrimination.

In "indirect" evidence cases under Title VII, the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), governs the burden of production and order of proof. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); see also St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Under McDonnell Douglas, the plaintiff must first establish a prima facie case of employment discrimination. To prove a prima facie failure-to-promote claim, an employee must establish that: (1) the employee was a member of a protected group; (2) the employee was qualified and applied for a promotion to a position for which the employer was seeking applicants; (3) the employee was not promoted; and (4) similarly situated employees, not part of the protected group, were promoted instead. Austin v. Minnesota Min. and Mfg. Co., 193 F.3d 992, 995 (8th Cir.1999) (citing Lyoch v. Anheuser-Busch Cos., 139 F.3d 612, 614 (8th Cir.1998)).

Here, Mustafa is African-American and thus a member of a protected group. He applied for one of eight open positions and was ultimately permitted to interview. Mustafa was not selected as a Case Manager yet several nonprotected persons received positions. Accordingly, the prima facie case is arguably met. See Landon, 72 F.3d at 624 (noting that "[t]he prima facie burden is not so onerous as, nor should it be conflated with, the ultimate issue of racially-motivated action.").

Under McDonnell Douglas, "[e]stablishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee." Burdine, 450 U.S. at 254, 101 S.Ct. 1089. The presumption shifts the burden of production to the employer to demonstrate a legitimate, nondiscriminatory reason for the adverse employment action. Id. Here, the DCS cites Mustafa's poor interview as the legitimate, nondiscriminatory reason for not recommending promotion.

The nondiscriminatory reason proffered by the DCS is sufficient to rebut the presumption raised by the prima facie case. When the employer successfully rebuts the prima facie case, the presumption of discrimination is eliminated and the court must proceed to the ultimate issue of discrimination. St. Mary's Honor Center, 509 U.S. at 511, 113 S.Ct. 2742; Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). In the summary judgment context, I must determine whether "the evidence considered in its entirety (1) creates a fact issue as to whether the employer's proffered reasons are pretextual and (2)...