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Haas v. ADVO Systems, Inc.

United States Court of Appeals, Fifth Circuit
Feb 10, 1999
168 F.3d 732 (5th Cir. 1999)

Summary

holding that a job interviewer's statement that the plaintiff's age caused him "concern" was not direct evidence of age discrimination in the employer's decision not to hire plaintiff because an additional inference of discrimination was required

Summary of this case from Vital v. Nat'l Oilwell Varco

Opinion

No. 98-20535 Summary Calendar

February 10, 1999

Gregg M. Rosenberg, Gregg M. Rosenberg Associates, Houston, TX, for Defendant-Appellant.

Fraser Angus McAlpine, Kathleen Weron Toth, Littler Medelson, Houston, TX for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before JOLLY, SMITH, and WIENER, Circuit Judges.


Ron Haas appeals a summary judgment in favor of ADVO Systems, Incorporated ("ADVO"), on Haas's claim of age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"). Because Haas raises a genuine issue of material fact regarding evidence of a nondiscriminatory motive, we reverse and remand.

I.

Haas submitted an application to ADVO for a Sales Manager position. He interviewed with Craig Rosengarden, ADVO's Vice President for Sales. The interview lasted eighty minutes, during which Rosengarden commented that Haas was the "first well qualified candidate that he had met." Haas then met with Jean Dickson, ADVO's Human Resource Manager, for another sixty to eighty minutes.

Haas was called back to ADVO for a second interview, in which Rosengarden told him that he had offered the Sales Manager position to another person who had turned it down, leaving Haas and Marie Barden as the finalists. Rosengarden added that his only concern about hiring Haas was his age.

About a week later, Haas was invited to meet with Greg Parnell, who was ADVO's Regional Vice President and the official with ultimate hiring authority over the Sales Manager position. This interview lasted approximately two hours. Shortly thereafter, Dickson informed Haas that he was not hired. The reason given was that Rosengarden felt that the chemistry was better with Barden. At the time, Haas was fifty-four years old, Barden thirty-four.

II.

This court generally analyzes claims under the ADEA via the burden shifting approach in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1972). See Ross v. University of Tex., 139 F.3d 521, 525 (5th Cir. 1998). The plaintiff must carry the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. Haas has done this by showing that (1) he belongs to a protected class; (2) he applied for and was qualified for a position that was seeking applicants; (3) he was rejected; and (4) following his rejection, another applicant not of the protected class was hired. See id.

Thereafter, the burden shifts to the employer, which must articulate "some legitimate, nondiscriminatory reason for the employee's rejection." Id. ADVO's argument that Barden was the better of the two candidates, on the basis of experience, qualifications, and chemistry, suffices to meet this burden. Cf. id. at 802-03.

Lastly, Haas must be afforded an opportunity to rebut ADVO's purported explanation, to show that the reason given is merely pretextual. Id. at 804. In determining whether Haas's rebuttal rescues him from summary judgment, we look to whether he has "raise[d] a genuine issue of material fact as to whether he has established pretext." Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996). In so doing, we look at rebuttal evidence in tandem with evidence presented as part of the prima facie case. Id.

Haas's only evidence that possibly could rebut ADVO's explanation is the statements made by Rosengarden regarding Haas's age. Between his second and third interviews, Haas was told by Rosengarden that Rosengarden's "only concerns about hiring [Haas] were [his] age. . . ." Construing all reasonable inferences in favor of Haas, we find that this statement, in light of its circumstances, precludes summary judgment.

Although, as ADVO forcefully argues, Parnell and not Rosengarden had ultimate hiring authority, it would be inappropriate for us to infer that Rosengarden's recommendation to Parnell regarding Haas was both (1) free from the taint of his concerns regarding Haas's age and (2) inconsequential to Parnell's final decision. It is more reasonable to infer that Rosengarden's expressed concern over lack of "chemistry" between the office and Haas was linked to Haas's age and that Rosengarden's input indeed was influential in Parnell's decision making.

Instructive in our treatment of Rosengarden's remarks is Brown v. CSC Logic, Inc., 82 F.3d 651, 655-56 (5th Cir. 1996), in which we noted that

remarks may serve as sufficient evidence of age discrimination if the offered comments are: 1) age related; 2) proximate in time to the [employment decision]; 3) made by an individual with authority over the employment decision at issue; and 4) related to the employment decision at issue. Comments that are "vague and remote in time" are insufficient to establish discrimination.

Id. at 655. Rosengarden's statements were not "vague and remote in time," but rather were closely connected in subject matter and time to the employment decision. Brown suggests, therefore, that Rosengarden's comments be viewed as evidence of discrimination as a matter of law.

We also reject ADVO's argument that only Parnell was a relevant decision maker and that Rosengarden exerted no influence over Parnell's ultimate decision. The record does not support this argument, and the inference we make must be to the contrary. Likewise, we reject ADVO's assertion that no causal nexus between Rosengarden's statements and Parnell's decision exists as a matter of law.

See Long v. Easterfield College, 88 F.3d 300, 307 (5th Cir. 1996) ("The degree to which [the ultimate hiring officer]'s decisions were based on his own independent investigation is a question of fact which has yet to be resolved at the district court level. Viewing the evidence in the light most favorable to [plaintiffs], we must assume on appeal that [hiring officer] merely `rubber stamped' the recommendations of [his subordinates].") (emphasis added).

Because we do not construe Haas's evidence to constitute "direct evidence" of discrimination, however, we do not reach the issue of ADVO's mixed-motives defense. Instead, we merely conclude that Rosengarden's statements provide indirect, inferential evidence of discrimination, albeit sufficient evidence to defeat summary judgment.

See Mooney v. Aramco Servs. Corp., 54 F.3d 1207, 1218 (5th Cir. 1995) (stating that direct evidence of discrimination is that which shows that the employer in question "actually relied on [the forbidden factor] in making its decision"); Price Waterhouse v. Hopkins, 490 U.S. 228, 241-46 (1988) (discussing mixed-motives defense).

The summary judgment is REVERSED, and this matter is REMANDED for further appropriate proceedings. We express no views as to the ultimate merits of the claim; we conclude only that the matter should not be resolved on summary judgment.


Summaries of

Haas v. ADVO Systems, Inc.

United States Court of Appeals, Fifth Circuit
Feb 10, 1999
168 F.3d 732 (5th Cir. 1999)

holding that a job interviewer's statement that the plaintiff's age caused him "concern" was not direct evidence of age discrimination in the employer's decision not to hire plaintiff because an additional inference of discrimination was required

Summary of this case from Vital v. Nat'l Oilwell Varco

holding that a job interviewer's statement that the plaintiff's age caused him "concern" was not direct evidence of age discrimination in the employer's decision not to hire plaintiff because an additional inference of discrimination was required

Summary of this case from Ibrahim v. City of Houston, Texas

holding that a job interviewer's statement that the plaintiff's age caused him "concern" was not direct evidence of age discrimination in the employer's decision not to hire plaintiff because an additional inference of discrimination was required

Summary of this case from Leach v. Baylor College of Medicine

holding that job interviewer's statement that plaintiff's age caused him "concern" was not direct evidence of age discrimination in employer's decision not to hire plaintiff

Summary of this case from Dickerson v. Jones County, Mississippi

holding that job interviewer's statement that plaintiff's age caused him "concern" was not direct evidence of age discrimination in employer's decision not to hire plaintiff because an additional inference of discrimination was required

Summary of this case from Stover v. Hattiesburg Public School District

holding that a job interviewer's statement that the plaintiff's age caused him concern was not direct evidence of discrimination in the employer's decision not to hire the plaintiff

Summary of this case from Grother v. Union Pacific Railroad Company

finding that remarks may serve as sufficient evidence of age discrimination if, in addition to proximity in time to the employment decision, they are age related, are made by an individual with authority over the employment decision at issue, and are related to the employment decision at issue

Summary of this case from Clardy v. Silverleaf Resorts, Inc.

rejecting the contention that there was no discriminatory influence upon the relevant decision maker

Summary of this case from Ratliff v. City of Gainesville

setting forth a prima facie case under the ADEA for failure to hire

Summary of this case from Cramer v. NEC Corp. of America

stating that the Fifth Circuit generally analyzes ADEA claims under the McDonnell Douglas burden-shifting approach

Summary of this case from Belcher v. Roche

stating that the Fifth Circuit generally analyzes ADEA claims under the McDonnell Douglas burden-shifting approach

Summary of this case from Hurston v. Henderson

In Haas, the Fifth Circuit found probative an age-related remark by a Vice President who interviewed the applicant and made a recommendation about the applicant to the ultimate hiring authority.

Summary of this case from Tiemeyer v. Quality Pub., Inc.

In Haas, the employer's vice-president told the plaintiff, a 54-year-old job applicant, after an interview, that "his only concern about hiring [the applicant] was [the applicant's] age."

Summary of this case from Wallace v. Methodist Hosp. System
Case details for

Haas v. ADVO Systems, Inc.

Case Details

Full title:RON HAAS, PLAINTIFF-APPELLANT, v. ADVO SYSTEMS, INCORPORATED…

Court:United States Court of Appeals, Fifth Circuit

Date published: Feb 10, 1999

Citations

168 F.3d 732 (5th Cir. 1999)

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