United States District Court, D. Arizona
HONORABLE DAVID C. BURY UNITED STATES DISTRICT JUDGE
Court finds that the Plaintiff has made a prima
facie case of age and sex discrimination but has failed
to produce any evidence of pretext to rebut the
Defendant's assertion of a legitimate reason for not
promoting the Plaintiff to the VPHR position. The Court
grants the Motion for Summary Judgment.
was hired by Defendant on August 14, 2013, when she was 61
years oldas Senior Human Resources Manager, the
number two position in Walbro's human resource
department. In April 2015, when she was 62 years old, she was
promoted to Human Resources Director. She was supervised by
Vice President, Human Resources and Compliance, Ann Guernsey,
until July 2015, when Guernsey was demoted to Chief
Compliance Officer, leaving the Vice President, Human
Resource (VPHR) position open. Walbro did not post the
opening internally, but Plaintiff sent an email and her
resume to Chief Executive Officer, Matt Riddle, allegedly
inquiring about the position. According to the Plaintiff, he
responded by telling her that she would not be considered for
the position. Plaintiff alleges she was fully qualified for
it. On October 8, 2015, Walbro hired Andy Arkells, who was
substantially younger and a man. Plaintiff charges Walbro
with sex and age based discrimination. (Second Amended
Complaint (Doc. 4) at 2-3.)
seeks summary judgment. Walbro argues that the Plaintiff
cannot make a prima facie case of either age or sex
based discrimination. Alternatively, Defendant asserts that
even if she does make a prima facie case, they hired
Arkells for legitimate nondiscriminatory reasons and she
cannot establish pretext because there is absolutely no
evidence whatsoever that Plaintiff was denied the promotion
to the VPHR position because of her age or sex.
Defendant argues that the qualifications for the position
were based on recommendations of a third-party consultant
whom Plaintiff has not charged with discrimination. The
record reflects that the Plaintiff did not possess the
qualifications for the job because: she never held an
executive HR position, had no global experience, had never
interacted with a Japanese board, and had no experience
influencing Japanese executives.
she cannot establish she applied for the VPHR position, and
therefore cannot show she was denied the position. Based on
an email sent by the Plaintiff to Riddle on August 5, he
understood that Plaintiff was not interested in the position.
Walbro submits alternatively, that the two finalists for the
position, and Arkells specifically, were more qualified than
Plaintiff; the search, which was conducted by a third party,
included female candidates and did not exclude candidates
based on age-Defendant sought “seasoned
candidates.” Neither Riddle nor any person in any
management position at Walbro made any ageist or anti-female
Standard of Review for Summary Judgment
summary judgment, the moving party is entitled to judgment as
a matter of law if the Court determines that on the record
there is no genuine issue as to any material fact to be
decided by a jury. Fed.R.Civ.P. 56(a). The moving party bears
the initial burden of demonstrating the absence of a genuine
issue of material fact, but is not required to support its
motion with affidavits or other similar materials negating
the opponent's claim. Celotex Corp. v. Catrett,
477 U.S. 317, 323-325 (1986). In determining whether to grant
summary judgment, the Court views the facts and inferences
from these facts in the light most favorable to the
non-moving party. Matsushita Elec. Co. v. Zenith Radio
Corp., 475 U.S. 574, 577 (1986).
mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be
no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986). A material
fact is any factual dispute that might affect the outcome of
the case under the governing substantive law. Id. at
248. A factual dispute is genuine if the evidence is such
that a reasonable jury could resolve the dispute in favor of
the non-moving party. Id.
moving party is under no obligation to negate or disprove
matters on which the non-moving party bears the burden of
proof at trial. Id. at 325. Rather, the moving party
need only demonstrate that there is an absence of evidence to
support the non-moving party's case. Id.
moving party meets its burden, then the non-moving party must
"designate 'specific facts showing that there is a
genuine issue for trial.'" Id. at 324
(quoting Fed.R.Civ.P. 56(e)). To carry this burden, the party
opposing a motion for summary judgment cannot rest upon mere
allegations or denials in the pleadings or papers.
Anderson, 477 U.S. at 252. The non-moving party must
"do more than simply show that there is some
metaphysical doubt as to the material facts."
Matsushita, 475 U.S. at 586. "The mere
existence of a scintilla of evidence . . . will be
insufficient; there must be evidence on which the jury could
reasonably find for the [non-moving party]."
Anderson, 477 U.S. at 252.
trilogy of 1986 cases opened the door for the district courts
to rely on summary judgment to weed out frivolous lawsuits
and avoid wasteful trials. Rand v. Rowland, 154 F.3d
952, 956 -957 (9th Cir. 1998);10A Charles A Wright, Arthur R.
Miller & Mary Kay Kane, Federal Practice & Procedure,
§ 2727, at 468 (1998). As explained in Celotex:
"the plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear
the burden of proof at trial." Celotex, 477
U.S. at 322.
on summary judgment the question is limited to whether there
is a genuine issue for trial. It is not the Judge's role
on a motion for summary judgment to determine the truth of
the matter or to weigh the evidence, or determine
credibility. The question is simply whether there is
sufficient evidence that a reasonable jury could find in
favor of the non-moving party, the Plaintiff.
Anderson, 477 U.S. at 252.
Prima facie Age and Sex Based Discrimination
unlawful for an employer to discriminate based on an
individual's age or sex. 29 U.S.C. § 623(a)(1) (the
Age Discrimination in Employment Act); 42 U.S.C. §
2000e-2(a)(1) (Title VII Civil Rights Act of 1964). The
Plaintiff may establish her claims of discrimination by
either direct evidence of conduct or statements made by
persons involved in the decision-making process that may be
viewed as directly reflecting a discriminatory attitude was
more likely than not a motivating factor in the employment
decision. Enlow v. Salem-Keizer Yellow Cab Co., 389
F.3d 802, 812 (9th Cir. 2004). The Plaintiff may
also carry her initial burden by presumption under the
McDonnel Douglas burden shifting framework: 1) The
employee establishes a prima facie case of
discrimination, an inference of discrimination arises and the
burden shifts to the employer to produce a legitimate,
nondiscriminatory reason for its employment decision. 2) If
the employer does so, the burden shifts back to the employee
to prove that the employer's explanation is a pretext for
discrimination. McDonnell Douglas Corp. v. Green,
411 U.S. 791, 802 (1973).
failure to promote case, a prima facie case of
discrimination is made if the Plaintiff produces evidence
that she: 1) was at least 40 years old/was a member of a
protected class, i.e., female; 2) she was qualified for the
position for which an application was submitted, 3) she was
denied the position, and 4) the promotion was given to a
substantially younger person/a male. Shelley v.
Geren, 666 F.3d 599, 608 (9th Cir. 2012);
Dominguez-Curry v. Nev. Transp. Dept., 424 F.3d
1027, 1037 (9th Cir. 2005).
does not submit any direct evidence of discriminatory animus.
She relies on the McDonnell Douglas presumption.
Defendant's Motion for Summary Judgment challenges the
second and third prong of Plaintiff's prima
facie case. Defendant argues the facts are as follows:
The Plaintiff's April 2015 promotion to HR Director was
approved by Defendant's CEO, Riddle, who had been hired
approximately one month earlier. It is undisputed that the
Plaintiff did not “formally” apply for the VPHR
position with the third-party consultant hired by Walbro to
conduct the job search. During the time that the search was
underway to fill the VPHR position, she sent Riddle an email
on August 5, 2015, from which he concluded that she was
“not interested in the position” and had taken
“herself out of the running.” The Defendant asks
the Court to find that as a matter of fact, she did not apply
for the position and they did not deny her the promotion,