United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE, District Judge.
Tanya Gilmore claims that the Whitley County Board of Education passed over her for special education teaching positions in its school district because of her age, thereby violating the Age Discrimination in Employment Act (ADEA). The Whitley County Board of Education responds that Gilmore's candidacy was rejected in favor of others who better met the needs of the school district at the time. Further, the Board claims that Gilmore has not placed any facts in the record that would indicate that she is the victim of intentional age discrimination. Because the Court finds that Gilmore has failed to meet her burden of persuasion in showing that the Board's legitimate nondiscriminatory reasons for failing to hire her are pretextual, the Whitley County Board of Eduction's Motion for Summary Judgment shall be GRANTED.
Tanya Gilmore began applying for positions with the Whitley County School Board in 2006, when she was just over forty years old. [R. 33 at 13]. While she was not yet fully certified, she sought positions for which she qualified for a temporary provisional certification under Kentucky law. [ Id. ] By 2009, Gilmore had achieved her Rank I certification, which qualified her to teach classes for students with Leaning Behavioral Disorders (LBD). [ Id. ] After that time, she claims to have unsuccessfully applied to every LBD opening in the Whitley County School District. [ Id. ] In several cases, the schools chose to hire teachers substantially younger than her, including: Roger Tyler Ayers, Dena Hodge, Michael Jeremy Lake, Stephanie Leann Lawson, and James Michael Petrey. [R. 33 at 4-5]. In Gilmore's view, many of these individuals were not only younger than her, but also less qualified than her for the position for which the school hired them.
Being passed over for these positions was especially surprising for Gilmore because she claims that school administrators essentially promised her a job. She states that former Superintendent Lonnie Anderson told her that he felt "reasonably assured" that Gilmore could be hired if she finished her certification. [R. 31-1 at 48]. Anderson has tendered an affidavit denying that he ever promised Gilmore a teaching position. [R. 27 at 1]. Gilmore also claims that former principal Linda Rickett, who had previously been complementary of her work as a substitute teacher, told Gilmore that she wanted to hire her for a special education position at Whitley County Middle School, but "they" would not let her. [R. 33 at 15]. The record never makes clear who exactly "they" are or why "they" did not want to hire Gilmore, but Rickett has tendered an affidavit denying that she ever promised Gilmore a position. [R. 29 at 2]. Finally, Gilmore asserts that John Clifton, the principal at Whitley East Elementary, told her on multiple occasions that he would hire her if a position opened up, but when one did become available in his school, it was not filled. [R. 33 at 15].
Gilmore served as a substitute teacher, presumably for the Whitley County School District, from 2006 to 2010. [R. 1 at 2]. In January 2010, she left Whitley County Schools for a position with the Middlesboro Independent School Board, which she maintained until June of the same year. [R. 32-1 at 2]. In August 2012, she became employed by the Fulton Independent Board of Education, where she continued to work at the time of the filing of the Defendant's motion for summary judgment. [ Id. ]. Nonetheless, Gilmore continued to seek employment in Whitley County. Despite her applications, her qualifications, and the alleged promises of school employees, she remained unable to secure a full-time special education position with the Whitley County Board of Education.
Believing that the Whitley County Board of Education had discriminated against her on the basis of her age, Gilmore filed a charge of discrimination with the Equal Opportunity Commission and received a Notice of Right-to-Sue on March 28, 2011. [R. 1 at 3]. Gilmore now brings claims against the Whitley County Board of Education for violating the ADEA. [R. 1]. The Board has moved to have summary judgment entered in its favor on these claims, and having been briefed by both parties, that motion is now ripe for review. [R. 32].
Under Rule 56, summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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. A fact's materiality is determined by the substantive law, and a dispute is genuine if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).
In deciding a motion for summary judgment, the Court must view 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 (1986). The burden is initially on the moving party to inform "the district court of the basis of its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, ' which it believes demonstrates the absence of a genuine issue of a material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may make this showing by demonstrating the absence of evidence to support one of the essential elements of the nonmoving party's claim. Id. at 322-25. Once this burden is met, the nonmoving party, "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56. Further, "the trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact." Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989). Instead, "the non-moving party has an affirmative duty to direct the Court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact." In re Morris, 260 F.3d 654, 665 (6th Cir. 2001).
The ADEA prohibits an employer from refusing to hire an employee "because of such individual's age." 29 U.S.C. § 623(a)(1). "The ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination." Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir. 2009) (quoting Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 153 (2000)). In the Sixth Circuit, when a plaintiff seeks to prove intentional discrimination under the ADEA with circumstantial evidence, the McDonnell Douglas framework applies. Id. (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 174 (2009)). Under this familiar analysis, the plaintiff must first establish a prime facie case of age discrimination. Schoonmaker v. Spartan Graphics Leasing, LLC, 595 F.3d 261, 264 (6th Cir. 2010) (quoting Reeves, 530 U.S. at 153). If the plaintiff is successful, the burden then shifts to the defendant employer to "articulate a legitimate nondiscriminatory reason for the adverse employment action." Id. at 264 (citing Allen v. Highlands Hosp. Corp., 545 F.3d 387, 394 (6th Cir. 2008)). Once this showing has been made, "the burden of production shifts back to the plaintiff to show that the employer's explanation was a mere pretext for intentional age discrimination." Id. Importantly, though the burden of production shifts throughout the analysis, "[t]he burden of persuasion, however, remains on the ADEA plaintiff at all times to demonstrate that age was the but-for' cause of their employer's adverse action." Id. (citing Geiger, 579 F.3d at 620; Gross, 557 U.S. at 623 n. 4).
For Gilmore to establish a prima facie case of age discrimination under the ADEA, she must prove that: (1) she was over forty years old at the time of the alleged discrimination and thus a member of a protected class; (2) she was subjected to an adverse employment decision; (3) she applied for and was qualified to perform the relevant position; and (4) she was rejected in favor of a similarly qualified person, who is substantially younger. Viergutz v. Lucent Technologies, Inc., ...