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Slovinec v. American University

October 15, 2007

JOSEPH SLOVINEC, PLAINTIFF,
v.
AMERICAN UNIVERSITY, DEFENDANT.



The opinion of the court was delivered by: Gladys Kessler United States District Judge

MEMORANDUM OPINION

This matter is before the Court on Defendant's motion for summary judgment. Having considered the motion, Plaintiff's opposition, and the entire record of this case, the Court will grant summary judgment for Defendant.

I. BACKGROUND

According to his resume, Plaintiff obtained a Bachelor of Arts degree from the University of Notre Dame in 1980, where he majored in Government and International Studies. Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment ("AU Mot."), Ex. 27 (Plaintiff's Resume) at 1. He obtained a Master's Degree in International Affairs from Columbia University in 1982 and a Master of Arts in History from DePaul University in 1996. Id.

The resume sets forth Plaintiff's professional objective, which states:

Search includes new entry-level positions in writing, editing, education[,] communications, public administration[,] business, or real estate development.

Id. In a section titled "Highlights of Qualifications," Plaintiff lists the following:

Research, writing, and editing in history, international affairs, and public relations. Public Administration managerial skills including auditing and verification of eligibility for Medicaid.

Id. As a Social Services Career Trainee (July 1999 - June 2000), Plaintiff processed patient admissions and discharges and verified eligibility for Medicaid. Id. His professional experience included work as a Real Estate Sales Associate (1998 - 2003), a Canvasser for the United States Census Bureau (1980, 1990, and 2000), an Intern with the Archives and Manuscript Section of the Chicago Historical Society (1994), an Adjunct Professor at South Suburban College (1988), and a Clerk at the Circuit Court of Cook County, Illinois (1986 - 1992). Id. His resume lists various research and writing accomplishments in the fields of foreign affairs, national affairs, and public relations. Id. at 2.

Plaintiff alleges that, in early 2005, he applied for the following 18 positions at American University ("Defendant" or "the University"):

* Communications Specialist (Position #1402) (Department of Safety & Security)

* Associate Director, Center for Democracy, (Position #4299) (Department of International Affairs)

* Staff Assistant (Position #4490) (Department of International Affairs)

* Producer (Position #5396) (WAMU 88.5)

* Administrative Assistant (Position #1717) (School of Communication)

* Document & Imaging Specialist (Position #1895)*fn1 (Office of Enrollment)

* Program Coordinator (Position #4928) (School of Public Affairs)

* Grant & Contract Manager (Position #3617) (Office of Sponsored Programs)

* Research Assistant (Position #2875)*fn2 (School of Public Affairs)

* Administrative Assistant (Position #4041) (Washington Semester Program)

* Lead Researcher (Position #5412) (School of Education)

* Technology Specialist (Position #5422) (School of Education)

* Academic Advisor (Position #1058) (School of International Services)

* Customer Relations Representative (Position #1877) (Enrollment Services)

* Administrative Assistant (Position #3673) (School of Public Affairs)

* Program Coordinator (Position #5473) (GLBTA Resource Center)

* Project Coordinator (Position #5470) (Center for Democracy & Elections)

* Graduate Advising Assistant (Position #1713) (School of International Services)

AU Mot., Ex. 8 (listing positions); see Complaint ("Compl."), Attach. (Charge of Discrimination dated June 24, 2005). He alleges that, in spite of his qualifications, the University neither interviewed nor selected him for any of the positions because of his age (then 47 years). Compl., Attach. (Charge of Discrimination). He brings this action against the University under the Age Discrimination in Employment Act ("ADEA"), see 29 U.S.C. § 621 et seq.

II. DISCUSSION

A. Summary Judgment Standard

The Court grants summary judgment for a Defendant "only if the pleadings, depositions, answers to interrogatories, admissions, and affidavits . . . show that, first, 'there is no genuine issue as to any material fact' and, second, 'the moving party is entitled to judgment as a matter of law.'" Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting Fed. R. Civ. P. 56(c)). In making this determination, the Court views the evidence in the light most favorable to the Plaintiff, and draws all reasonable inferences in his favor. Id. A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it affects the outcome of the action under controlling law. See id. The Court neither makes credibility decisions nor weighs evidence. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

If there are no genuine issues of material fact in dispute, a defendant is entitled to judgment as a matter of law if the plaintiff "fails to make a showing sufficient to establish the existence of an element essential to [his] case, and on which [he] will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The nonmoving party "may not rely on unsubstantiated, conclusory allegations to generate 'specific facts showing that there is a genuine issue for trial.'" Whitener v. England, No. 04-0273, 2006 WL 3755220, at *3 (D.D.C. Dec. 19, 2006) (quoting Fed. R. Civ. P. 56(e)); Celotex Corp. v. Catrett, 471 U.S. at 323-24. If evidence is "merely colorable" or "not significantly probative," the Court may grant summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50.

B. Burden-Shifting Analysis Under McDonnell Douglas Corp. v. Green

In this case, Plaintiff has produced no direct evidence of Defendant's discrimination against him because of his age. In an ADEA case where there is no direct evidence, the Court applies the analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1976). See Forman v. Small, 271 F.3d 285, 292 (D.C. Cir. 2001), cert. denied, 536 U.S. 958 (2002); Hall v. Giant Food, Inc., 175 F.3d 1074, 1077 (D.C. Cir. 1999).

To make out a prima facie case of age discrimination, Plaintiff "must demonstrate facts sufficient to create a reasonable inference that age discrimination was a determining factor in the employment decision." Cuddy v. Carmen, 694 F.2d 853, 856-57 (D.C. Cir. 1982) (internal quotation marks omitted). A plaintiff creates this inference by showing that "he (1) belongs to the statutorily protected age group (40-70), (2) was qualified for the position, [and] (3) was not hired." Id. at 857 (citations omitted); Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1155 (D.C. Cir. 2004). In addition, a plaintiff must show that the employer continued to seek applicants from persons with his qualifications after he was rejected. McDonnell Douglas Corp. v. Green, 411 U.S. at 802; Carter v. George Washington Univ. 387 F.3d 872, 878 (D.C. Cir. 2004). However, a plaintiff "need not demonstrate that [he] was replaced by a person outside [his] protected class in order to carry [his] burden of establishing a prima facie case under McDonnell Douglas." Stella v. Minetta, 284 F.3d 135, 146 (D.C. Cir. 2002); O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996).

Once a plaintiff has established a prima facie case, the burden shifts to the defendant, which "has the burden of producing evidence tending to show that [plaintiff] was denied employment for a legitimate, nondiscriminatory reason." Cuddy v. Carmen, 694 F.2d at 857. "This burden is one of production, not persuasion; it 'can involve no credibility assessment.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 142 (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993)). "[D]efendant must clearly set forth, through the introduction of admissible evidence, reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action." St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 507 (emphasis in original) (citing Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-555 & n.8 (1981)).

If the defendant meets its burden of production, "the presumption raised by the prima facie case is rebutted." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 255. "At this stage, the question of whether the proffered non-discriminatory explanation was pretextual 'merges with [plaintiff's] ultimate burden of persuading the [C]court that [he] has been the victim of intentional discrimination.'" Simpson v. Leavitt, 437 F. Supp. 2d 95, 101 (D.D.C. 2006) (citing Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256). The plaintiff "must prove by a preponderance of the evidence that age made a difference in the employer's decision not to hire him." Cuddy v. Carmen, 694 F.2d at 857-58. He may do so by relying on evidence establishing his prima facie case, evidence attacking the employer's proffered explanation, and any other evidence available to him. Holcomb v. Powell, 433 F.3d at 897; see Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998) (en banc).

C. The Court Treats Defendant's Motion as Conceded In Part

Because Plaintiff is proceeding pro se, the Court construes his papers liberally and holds him to less stringent pleading standards than those applied to lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972). However, his pro se status does not relieve him of his obligation to comply with the Federal Rules of Civil Procedure and the ...


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