The opinion of the court was delivered by: Judge Mattice
Plaintiff Alton L. Petty brought this action against Defendant State of Tennessee, Department of Children's Services ("DCS") claiming that Defendant's failure to hire Plaintiff was motivated by Plaintiff's gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq., and by Plaintiff's age in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 622 et seq.
Before the Court is Defendant's Motion for Summary Judgment. For the reasons discussed below, Defendant's Motion for Summary Judgment is GRANTED.
Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Nat'l Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence, judge the credibility of witnesses, or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a showing, the nonmoving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material factual dispute. Id. at 322. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The Court's role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the nonmoving party. Anderson, 477 U.S. at 248-49; Nat'l Satellite Sports, 253 F.3d at 907. If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. If the Court concludes that a fair-minded jury could not return a verdict in favor of the nonmoving party based on the evidence presented, it may enter a summary judgment. Anderson, 477 U.S. at 251-52; Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).
The facts, viewed in the light most favorable to the Plaintiff, are as follows. Plaintiff Alton Petty is a male resident of Coffee County, Tennessee who was born on October 3, 1946. (Court Doc. No. 1 ¶ 1, 4.) Defendant Tennessee Department of Children's Services ("DCS") is a state agency which provides protective and preventative services to children and families that are at risk for commitment to state custody for reasons of neglect, unruly behavior, dependency, and delinquency. (Court Doc. No. 22-2 ¶ 4.) DCS employs fifty-two case managers who are grouped into eight teams. At the head of each team is a team leader who is responsible for hiring and supervising the team's case managers. There are two team coordinators who oversee the eight team leaders. (Court Doc. No. 16-3 at 4.)
When DCS has an open position that it needs to fill, it informs the Tennessee Department of Personnel. The Tennessee Department of Personnel provides DCS with a "register" which lists all of the minimally-qualified applicants who have expressed an interest in the available position. DCS then interviews the applicants on the register. The interviews are conducted by three to five team leaders, including the leader of the team hiring for the open case manager position. (Court Doc. No. 15, Affidavit of Elizabeth Anderson ("Anderson Aff.") ¶ 4.) The team leader whose team has the open position decides who they want to hire. The team leader can, but is not required to, discuss their employment decision with the other team leaders who participated in the interviewing process. (Court Doc. No. 16-4, Deposition of Olivia Aschenbacher ("Aschenbacher Dep.") at 15.) The team coordinator is then notified which applicant the team leader has chosen to hire for the position. The team coordinator reviews the recommended applicant's credentials and submits the recommended applicant to the central office for hire. (Court Doc. No. 16-5, Deposition of James Coop ("Coop Dep.") at 5-7.)
In January 2004, DCS had two open Case Manager I positions. DCS requested, and the Tennessee Department of Personnel provided, a register of minimally qualified eligible applicants consisting of six names, including that of the Plaintiff. (Court Doc. No. 16-3.) Elizabeth Anderson was the leader of the team that was hiring for the open case manager positions. (Aschenbacher Dep. at 15.) As such, Anderson led the interview process and made the decision as to which applicants should be hired. (Id.)
On January 15, 2004, Plaintiff was interviewed by a panel of DCS team leaders, including Anderson. (Anderson Aff. ¶ 6.) During Plaintiff's interview, he was asked a number of questions about his work experience. Plaintiff had written on his application that he was previously employed as a teacher with the Rutherford County School District for two years. (Court Doc. No. 23-4.) During the discussion about his teaching experience, Plaintiff revealed that he was not a full-time, certified teacher but was a substitute teacher. (Anderson Aff. ¶ 7.) Plaintiff's application also stated that he had been employed by the Veteran's Administration as a police officer. (Court Doc. No. 23-4.) After discussing with Plaintiff his duties as a police officer with the Veteran's Administration, Anderson understood his position to have been more akin to that of a security guard, not a police officer in the traditional sense. (Anderson Aff. ¶ 9.)
Following the interviews, DCS hired two women, Rita Owens and Beverly Jordan, for the case manager positions. (Court Doc. No. 16-3 at 31.) Plaintiff was not hired because Anderson believed that Owens and Jordan were more qualified and because she felt that Plaintiff had misrepresented information on his employment application. (Anderson Aff. ¶ 11.)
DCS was again hiring for a case manager position in October 2004. DCS requested a list of eligible applicants from the Department of Personnel and Plaintiff was on the register, along with two women. Plaintiff had updated his employment application to state that he had previously been employed as a substitute teacher to clear up any misconception about whether he was a licensed, certified teacher. (Petty Dep. at 39, 46.)
On October 27, 2004, Plaintiff was interviewed by an all-female panel of team leaders, including Anderson, whose team was again hiring for the open position. (Petty Dep. at 43; Anderson Aff. at ¶ 13.) During his interview, Plaintiff asked the interview panel if DCS ever hired men because almost everyone he saw working at DCS were women. (Petty Dep. at 43-44.) He was informed that men were hired by DCS and that a number of men were then working for DCS. Plaintiff also asked if he was not hired because of his age. Anderson informed Plaintiff that he was not hired because he had misrepresented his work experience on his employment application. (Anderson Aff. at ¶ 14.) Members of the interview panel have described Plaintiff's demeanor during the October 2004 interview as rude, confrontational, and argumentative. (Aschenbacher Dep. at 12; Anderson Aff. ¶ 15.) Plaintiff claims that he was forceful and straightforward but not argumentative during the interview. (Petty Dep. at 42-43.)
Following the October 2004 interviews, DCS hired Tenna Hopkins, a woman, for the case manager position. (Court Doc. No. 16-3 at 31.) According to Anderson, Plaintiff was not hired because Anderson believed that Hopkins was more qualified for the position, because Plaintiff had performed poorly in his interview, and because Plaintiff had previously misrepresented his work experience on his employment application. (Anderson Aff. ¶ 15.)
Plaintiff later spoke with Noah Maignon, a former DCS team leader. (Petty Dep. at 60.) Maignon told Plaintiff that he did not understand why Plaintiff had not been hired by DCS and that he believed Plaintiff was being discriminated against because of his age and gender. Maignon said that he had lobbied to get Plaintiff hired but that another DCS employee had said that Plaintiff was not a good worker and had threatened to quit if he were hired. (Id. at 60-61, 64.)
Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") on November 20, 2004. (Court Doc. No. 16-6.) The EEOC conducted an interview with Noah Maignon as part of its investigation into Plaintiff's complaint.*fn1 Maignon told the EEOC that he overheard discussions about whether to hire Plaintiff. The overall contention was that Plaintiff would be hard to manage because of his age, gender, and his military background. Maignon did not indicate who was involved in these discussions. He stated only that "when you work in an area, you hear things." (Court. Doc. No. 23-9.)
Plaintiff asserts causes of action under Title VII for employment discrimination based on gender and under the ADEA for employment discrimination based on age. Each cause of action will be addressed separately below.
A. Plaintiff's Claim Under the ADEA
Defendant argues that the Court does not have subject matter jurisdiction over Plainitff's ADEA claim. (Court Doc. No. 26-2.) In Kimel v. Florida Board of Regents, 120 S.Ct. 631 (2000), the Supreme Court held that "the ADEA is not a valid exercise of Congress' power under § 5 of the Fourteenth Amendment."
In the absence of express state consent or express congressional abrogation by federal statute, the Eleventh Amendment bars action in federal court against the state. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114 (1996). A state agency is protected by the state's immunity as the state itself. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900 (1984). Tennessee has expressly preserved its sovereign immunity, see Tenn. Code Ann. § 20-13-102, and the state has not consented to suit in the federal court. See, e.g., Boyd v. Tennessee State University, 848 F.Supp. 111, 114-15 (M.D. Tenn 1994). The ADEA did not validly abrogate the states' sovereign immunity from suits brought by private individuals. Kimel, 528 U.S. at 91; Coger v. Board of Regents of Tenn., 209 F.3d 485, 486 (6th Cir. 2000). Thus, the Court does not have subject matter jurisdiction over Plaintiff's claim against Defendant under the ADEA.
Plaintiff argues that the Supreme Court of Tennessee "apparently rejected the immunity argument" in Bresden v. Tennessee Judicial Selection Committee, 214 S.W.3d 419 (Tenn. 2007). In Bresden, the court had to decide whether judicial nominees were "employees" under the Tennessee Human Rights Act ("THRA"). Because "employee" is not defined in the THRA, the court looked to federal case law interpreting Title VII for instruction. The court noted the "the intent of the THRA is to provide for execution within Tennessee of the policies embodied in the federal civil rights statutes" and that "the THRA is generally interpreted consistently with Title VII." Id. at 430. Plaintiff argues that, because the Bresden court stated that a claim under the THRA should be treated the same as a claim under Title VII, the same should be true for a claim under the ADEA. (Court Doc. No. 32 at 2-3.)
Plaintiff's argument might be persuasive if this were an issue of the merits of Plaintiff's ADEA claim and not an issue of jurisdiction based on Eleventh Amendment sovereign immunity. The merits of a claim under the ADEA and the THRA are treated as overlapping claims in most instances. See Butts v. McCullough, 237 Fed. App'x 1, 4 (6th Cir. 2007) (noting that the ADEA analysis subsumes the state law claim under the THRA). However, whether the state has waived its Eleventh Amendment immunity is unrelated to the merits of a claim and thus, unrelated to the THRA. There is no doubt that Tennessee has expressly preserved its Eleventh Amendment immunity and that ADEA did not validly abrogate the state's immunity right.
A Court must dismiss an action in which it lacks subject matter jurisdiction. Fed. R. Civ. Proc. 12(h)(3). Accordingly, Plaintiff's claim against Defendant alleging age discrimination in violation of the ADEA is DISMISSED WITHOUT PREJUDICE.
B. Plaintiff's Title VII Claims
An employee may prove claims of discrimination under Title VII by either direct evidence or circumstantial evidence. Abbott v. Crown Motor Co., 348 F.3d 537, 542 (6th Cir.2003). When a plaintiff presents direct evidence of discrimination, "the burden of both production and persuasion shifts to the employer to prove that it would have terminated the employee even if it had not been motivated by impermissible discrimination." Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000). "[D]irect evidence is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions." Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999). "Consistent with this definition, direct evidence of discrimination does not require a fact finder to draw any inferences in order to conclude that the challenged employment action was motivated at least in part by prejudice against members of the protected group." Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir. 2003) (internal citations omitted).
When, however, a plaintiff's claims of discrimination are based on circumstantial evidence, the Court applies the burden-shifting analysis initially described by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). McClain v. NorthWest Community Corr. Ctr Judicial Corr. Bd., 440 F.3d 320, 332 (6th Cir. 2006). That analysis may be summarized as follows:
First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence ...