Opinion
Case No. 12-10641
06-11-2013
TODD SCHICK, Plaintiff, v. RAYMOND L. LaHOOD, Defendant.
HON. AVERN COHN
MEMORANDUM AND ORDER
GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
AND DISMISSING CASE (Doc. 20)
I. INTRODUCTION
This is an employment age discrimination case. Plaintiff Todd Schick ("Schick"), a certified air traffic controller employed by the Federal Aviation Administration ("FAA") at Flint Bishop Airport ("FNT"), is suing Raymond LaHood ("defendant"), the Secretary of the Department of Transportation ("DOT"), claiming that in 2010 he was denied a promotion to certified air traffic controller specialist at the Detroit Metropolitan Airport ("DTW") because of his age, in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621, et seq.
LaHood resigned his position as the Secretary of the DOT in early January of 2013. He continues his position until a new Secretary is confirmed by the Senate. On April 29, 2013, President Barack Obama nominated Anthony Foxx to succeed LaHood.
Schick also sued John Whitehurst, the operations manager for the Detroit Tower. On July 24, 2012, the Court dismissed Whitehurst. (Doc. 11).
Now before the Court is defendant's motion for summary judgment (Doc. 20) on the grounds that the FAA did not discriminate against Schick when it failed to promote him. For the reasons that follow, the motion is GRANTED. This case is DISMISSED.
II. BACKGROUND
Schick did not initially follow the Court's summary judgment guidelines. At oral argument, the Court directed Schick to submit a response to defendant's statement of undisputed material facts. Schick complied. (Doc. 31).
Schick has been employed as an air traffic controller ("controller") at FNT since December 4, 1989. (Doc. 20-2 at 4, Schick Dep.).
In 2010, the DOT posted a vacancy announcement stating that there were "many" open positions described as "Air Traffic Control Specialist (Certified Professional Controller)" at the DTW. (Doc. 20-3 at 2, DOT Vacancy Announcement). There were seven total openings. (Doc. 20-4 at 4, Whitehurst Dep.). The DOT received forty-nine total applications, including Schick's. (Doc. 20-6 at 2, Applicants List). The DOT also received applications from three of Schick's coworkers at FNT, Phillip Smith, James Kallas and Justin Dolfus. The specialist position at DTW was a promotion from Schick's current controller position at FNT.
On August 27, 2010, Schick submitted a "Request for Promotion Consideration and Acknowledgment" for a specialist position at DTW. (Doc. 21-1 at 2, Request for Promotion). At the time Schick submitted his application, he was forty-four years old. (Doc. 20-2 at 6, Schick Dep.).
Of the forty-nine total applicants, thirty-nine, including Schick, made the first cut. (Doc. 20-7, Merit Selection Certificate). Their applications were forwarded to DTW managers Gary Ancinec ("Ancinec"), who was the acting air traffic manager and John Whitehurst ("Whitehurst"), who was the operations manager. (Doc. 20-4 at 4, Whitehurst Dep.). Ancinec gave Whitehurst the applications to review and assigned Whitehurst the task of contacting the applicants' facilities to get necessary information and references about the applicants. (Id.).
Whitehurst did not interview the applicants personally. Instead, at the direction of Ancinec, Whitehurst wrote a list of questions to ask the facility managers or first level supervisors and "got some recommendations based on the list of questions that [he] had supplied. . . ." (Id.).
The questions Whitehurst asked the applicants' mangers were as follows:
Could you tell me some information about the candidates' abilities?(Doc. 20-9 at 2, DTW CPC Bid Questions).
Is the employee a team player and do they work well with others?
Are they able to handle difficult situations well?
What are the strengths of this employee?
What are the weaknesses of this employee?
Please tell me about the attitude of the employee:
What positive contributions has this employee brought to the work environment?
Do they take that extra effort/step to help out their co-workers or provide quality service?
Is the employee reliable?
Are there any issues with this employee?
Based on your knowledge of the employees' performance, do [you] believe they possess the abilities to learn to effectively control the increased traffic volume at DTW?
If they were selected, when would you be able to release this employee?
Do you have anything further you would like to add?
Whitehurst stated that the questions he compiled were used to determine the applicants' abilities, motivation, positive attitude, contributions to facilities, and recommendations from their managers and/or supervisors. (Doc. 24 at 38, Whitehurst Dep.).
On October 14, 2010, Whitehurst called James Schneider, the air traffic manager at FNT, to inquire about Schick. (Doc. 20-10 at 2, Schneider DTW CPC Bid Questions). At some point during this conversation, Whitehurst says that Schneider informed him that Schick had "somewhat of a FNT attitude." Based on his understanding about FNT employees, Whitehurst took "FNT attitude" to mean that Schick "was somewhat adversarial, and didn't get along well with the management folks" at FNT. (Doc. 20-4 at 6, Schick Dep.).
Schneider admitted that he informed Whitehurst that Schick "doesn't consistently go above and beyond," and that he had a "Flint attitude," but, overall, Schneider told Whitehurst that a change would probably be good for Schick. (Doc. 24 at 89, Schneider Dep). Schneider testified at his deposition that "FNT attitude" meant "pushing back on everything . . . , being adversarial, not accepting things well, not saying much when I say how are you doing, not displaying great joy and happiness, but if I call up there I hear a bunch of laughing and stuff." (Doc. 20-11 at 4, Schneider Dep.). Schneider further explained:
So it was that whole thing, I'm going to show management we're upset with these work rules kind of thing and we're not gonna change in a comfortable fashion and a cooperative(Id.).
fashion, in a can-do fashion.
So that was kind of the Flint attitude during that contract. They were trying - many were trying to go in that direction, and what I saw from Mr. Smith and Mr. Schick, they were kind of in that frame of work mode.
Schick's immediate supervisor, Todd McGaughey, testified at his deposition that, based on his daily conversations with Schneider, he knew "FNT attitude" to mean "a generally poor attitude." (Doc. 26-8 at 5, McGaughey Dep.). McGaughey further stated that his opinion of a "generally poor attitude is non-enthusiastic, laziness, sense of self entitlement, being disgruntled. Low morale, not low morale, but generally unpleasant to be around. Argumentative." (Id. at 5-6).
Notwithstanding that Schneider told Whitehurst that Schick had a "FNT attitude," he still recommended Schick for the position. In fact, Schneider recommended all of the Flint candidates for the position. Schick, however, was not selected for any of the seven positions. Defendant says Schick was not selected for promotion because of the "FNT attitude" comment.
The following candidates were selected for promotion:
+-----------------------------------------------------------+ ¦Last Name ¦First Name ¦Date of Birth ¦Age at Selection ¦ +-----------+------------+---------------+------------------¦ ¦Arington ¦Matthew ¦11/30/1982 ¦27 ¦ +-----------+------------+---------------+------------------¦ ¦Barron ¦Melissa ¦11/17/1977 ¦32 ¦ +-----------+------------+---------------+------------------¦ ¦Berbrich ¦Sarah ¦12/6/1983 ¦26 ¦ +-----------+------------+---------------+------------------¦ ¦Bozzo ¦Nicola ¦7/30/1984 ¦26 ¦ +-----------+------------+---------------+------------------¦ ¦Kasal ¦Brian ¦2/27/1981 ¦29 ¦ +-----------+------------+---------------+------------------¦ ¦Morris ¦Corinna ¦5/17/1986 ¦23 ¦ +-----------------------------------------------------------+
+-------------------------------+ ¦Overman ¦John ¦8/19/1975 ¦35¦ +--------+-------+-----------+--¦ ¦Redies ¦Michael¦9/14/1979 ¦30¦ +--------+-------+-----------+--¦ ¦Roberson¦Ryan ¦11/12/1982 ¦27¦ +--------+-------+-----------+--¦ ¦Thompson¦Shaun ¦9/14/1981 ¦28¦ +-------------------------------+ (Doc. 24 at 93).
Schick claims that he was not selected because of his age. Whitehurst testified at his deposition that he did not know the ages of the candidates when he made his selections. (Doc. 20-4 at 12, Whitehurst Dep.). Whitehurst says Schick was not selected because of his "FNT attitude."
Schick disputes that Whitehurst did not know his age at the time he made his decision. Schick says that Whitehurst told Justin Dolfus, Schick's coworker and another applicant who was also not selected for promotion, that he was not looking to give anyone his or her "high threes." "High threes" is a reference to the calculation of retirement pay. FAA controllers are mandated to retire at the age of fifty-six.
Dolfus's testimony at his deposition contradicts Schick's assertion. Dolfus testified that Whitehurst told him he was looking for "a seasoned controller with experience." (Doc. 20-17 at 3, Dolfus Dep.). When asked whether Whitehurst told him that he was not going to select anyone in his or her "high threes," Dolfus stated that, "I don't believe he ever said anything like that." (Id.)
Even though Dolfus denied that Whitehurst made the "high threes" comment, Schick relies on the hearsay testimony of several coworkers who say that Dolfus told them that Whitehurst told him that he was not going to "give anyone" his or her "high threes." See (Doc. 24 at 45, Bickford's Statement; id. at 47, Doughtery's Statement; id. at 49, Poma's Statement). Coworker Jared Bickford wrote a statement that:
During the month of November 2010, more than once I heard Mr. Justin Dolfus say that while he was at DTW ATCT for the OJTI class, the manager [Whitehurst] told him that he was not going to hire any older controllers looking for their high three.(Doc. 24 at 45, Bickford's Statement). Similarly, John Dougherty, another of Schick's coworkers, made a statement that he "was present in the tower cab in Flint Tower when Mr. Justin Dolfus . . . stated that Mr. Whitehurst said that he was not looking to pick up anyone looking to get their high three." (Doc. 24 at 47, Doughtery's Statement). Finally, coworker Jill Poma wrote a statement that, "[w]hile working in the radar room at Flint . . . Mr. Dolfus stated that Mr. Whitehurst [said], 'Well, don't count yourself out because I'm not going to pick up a bunch of controllers only interested in getting their high three.'" (Doc. 24 at 49, Poma Statement).
III. LEGAL STANDARDS
A. Summary Judgment
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A moving party may meet that burden "by 'showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Revised Rule 56 expressly provides that:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:Fed. R. Civ. P. 56(c)(1).
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits, or declarations, stipulations (including those made
for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support a fact.
The revised Rule also provides the consequences of failing to properly support or address a fact:
If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may:Fed. R. Civ. P. 56(e). "The court need consider only the cited materials, but it may consider other materials in the record." Fed. R. Civ. P. 56(c)(3).
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it; or
(4) issue any other appropriate order.
When the moving party has met its burden under Rule 56, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Ultimately a district court must determine whether the record as a whole presents a genuine issue of material fact, id. at 587, drawing "all justifiable inferences in the light most favorable to the non-moving party," Hager v. Pike Cnty. Bd. of Ed., 286 F.3d 366, 370 (6th Cir. 2002).
B. Age Discrimination In Employment Act
The Age Discrimination in Employment Act ("ADEA") "prohibits an employer from discharging an individual 'because of such individual's age.'" Blizzard v. Marion Technical Coll., 698 F.3d 275, 283-84 (6th Cir. 2012) (citing 29 U.S.C. §623(a)(1)). A plaintiff may rely on two types of evidence to support a claim that age discrimination was a but-for cause of an adverse employment decision: direct or circumstantial evidence. Id. at 283 (citing Geiger v. Tower Auto, 579 F.3d 614, 620 (6th Cir. 2009)).
"'Direct evidence is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions.'" Ondricko v. MGM Grant Detroit, LLC, 689 F.3d 642, 649 (6th Cir. 2012) (quoting Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999)).
"Circumstantial evidence, on the other hand, is proof that does not on its face establish discriminatory animus, but does allow a factfinder to draw a reasonable inference that discrimination occurred." Ondricko, 689 F.3d at 649 (citing Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997)). Where the plaintiff "fails to present direct evidence of age discrimination, the claim is analyzed using the burden-shifting framework of McDonnell Dougals Corp. v. Green, 411 U.S. 792 (1973)." Blizzard, 698 F.3d at 283. As the Sixth Circuit has recently explained,
Under McDonnell Douglas and its progeny, once the plaintiff succeeds in making out a prima facie case of age discrimination, the defendant must "articulate some legitimate, nondiscriminatory reason" for the termination. "If the defendant meets this burden, then the burden of production shifts back to the plaintiff to demonstrate that the proffered reason is a pretext.Id. (internal citations omitted).
Whether using direct or circumstantial evidence, "the burden of persuasion remains on ADEA plaintiffs to demonstrate 'that age was the 'but-for' cause of their employer's adverse action.'" Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir. 2009) (citing Gross v. FBL Financial Servs., Inc., 557 U.S. 167 (2009)).
IV. DISCUSSION
A. Direct Evidence of Age Discrimination
Schick first says that he has introduced direct evidence that age was the but-for cause of the decision not to promote him. As '"[t]he ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination,'" "[a]ny discriminatory statements must come from decisionmakers to constitute evidence of discrimination." Geiger, 579 F.3d at 620-21 (citations omitted). Unfortunately for Schick, the evidence on which he relies as direct evidence is inadmissable hearsay and cannot be used to create a genuine issue of material fact on summary judgment.
Schick says that Whitehurst told Schick's coworker, Dolfus, that he was not going to recommend for hiring anyone who would be eligible for his or her "high threes." Essentially, Schick says that, by the reference to not wanting to hire anyone in his or her "high threes," Whitehurst was communicating to Dolfus that he was not going to recommend hiring any of the older candidates. Significantly, however, Dolfus testified at his deposition that Whitehurst never made such a comment to him. (Doc. 20-17 at 3, Dolfus Dep.). Therefore, Schick relies on statements of three coworkers, Bickford, Doughtery and Poma, who say that Dolfus told them that Whitehurst told Dolfus that he would not "give" the applicants their "high threes." The coworkers' statements are inadmissible hearsay within hearsay.
Reaching this conclusion requires drawing an inference.
Hearsay is a statement that "(1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement." FRE 801. Hearsay is not admissible unless allowed by a federal statute, the Federal Rules of Evidence, or other rules prescribed by the Supreme Court. FRE 802. Here, the coworkers' statements are hearsay within hearsay. The first level of hearsay is Whitehurst allegedly telling Dolfus that he would not hire anyone in his or her "high threes." This alleged statement was made out of court. Even if Dolfus's testimony would be a party admission under FRE 801(d)(2)(D), it is not Dolfus that has testified that Whitehurst made the "high threes" comment. Thus, there is a second level of inadmissible hearsay: Dolfus allegedly communicating to his coworkers what Whitehurst allegedly told him.
If Dolfus testified that Whitehurst told him he was not going to recommend for hiring anyone close to his or her "high threes," it would fall within the scope of FRE 801(d)(2)(D) as a party admission. However, that is not the case. In fact, in his witness statement to the DOT, Dolfus stated that Schick and the other coworkers began claiming that Dolfus told them that Whitehurst was not going to hire anyone in his or her "high threes" only after Dolfus complained about them to the FAA Security Accountability Board. (Doc. 24 at 62-65, Dolfus DOT Affidavit of Witness).
Schick relies on Zaben v. Air Products & Chemicals, Inc., 129 F.3d 1453 (11th Cir. 1997) (per curiam) for his position that the coworkers' statements are not hearsay. Zaben, however, supports defendant's position that the coworkers' statements are inadmissible double hearsay.
In Zaben, two employees filed an age discrimination case against their employer under the ADEA claiming that they were terminated because of their age under the guise of "downsizing." Id. at 1454. As evidence of age discrimination, one of the employees testified that he was told by two supervisors that they had heard from others in the company "that the company wanted to get rid of its older employees." Id. at 1455. The Eleventh Circuit Court of Appeals reasoned that "statements made by a supervisory official who plays some role in the decision making process are generally admissible . . . [and] can constitute direct evidence of discrimination." Id. at 1456 (citations omitted). Nevertheless, the court of appeals determined that the testimony was inadmissable double hearsay because the employee was testifying as to what the employer told him that someone else told the employer. Id. at 1456-57. The same is true here; the coworkers' statements are not based on personal conversations they had with Whitehurst. Rather, the statements are inadmissable double hearsay.
In sum, as defendant states, "[a]bsent testimony from someone who heard Whitehurst make the comment, Schick cannot identify a hearsay exception applicable to each part of the 'hearsay within hearsay' statement, and he does not have admissible evidence that Whitehurst made the comment." (Doc. 26 at 3, Def.'s Reply).
Schick also lists several other facts that he says amount to direct evidence of age discrimination: (1) the selected candidates were all younger than forty years of age; (2) six of the seven selected candidates were recently certified and had no "seasoning" or experience; (3) none of the candidates selected received awards or accommodations demonstrating their dedication or benefit to the facility; and (4) the mandatory retirement age for FAA controllers is fifty-six years of age. These facts, however, are not direct evidence of age discrimination because an inference must first be drawn from each fact. Accordingly, these facts are circumstantial evidence of age discrimination and will be considered under the McDonnel Douglas tripartite burden shifting standard discussed infra.
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B. Circumstantial Evidence of Age Discrimination
Having failed to prove his case by proffering direct evidence, Schick next says that he has proffered circumstantial evidence which establishes that his age was the but-for cause of the decision not to promote him. Where an employee seeks to prove his claim of age discrimination based on circumstantial evidence, the burden-shifting framework of McDonnell Douglas governs. See Geiger, 579 F.3d at 622 ("In this circuit . . . , while recognizing the differences between Title VII and the ADEA, we have long found the McDonnell Douglas framework useful in analyzing circumstantial evidence ADEA claims.") (citations omitted).
In order to establish a prima facie case of age discrimination, Schick must show that "(1) he was at least 40 years old at the time of the alleged discrimination, (2) he was subjected to an adverse employment action, (3) he was otherwise qualified for the position, and (4) he was rejected and someone outside the protected class was selected." Harris v. Metro. Gov't of Nashville and Davidson Cnty., Tenn., 594 F.3d 476, 485 (6th Cir. 2010) (citing Burzynski v. Cohen, 264 F.3d 611, 621-22 (6th Cir. 2001)). Defendant does not challenge the first three requirements. However, defendant says that Schick has not established that he has similar qualifications to the younger employees who received the promotions. The Court disagrees.
All of the candidates selected for a promotion were under the age of forty. Schick had more seniority than any of the selected candidates; he had worked as a certified air traffic controller for twenty-one years. None of the candidates that were selected were air traffic controllers for as long as Schick. Overman, who is the oldest (35 years old) and had the most experience out of the selected candidates, worked for fifteen years as a certified air traffic controller. In addition, Schick has received numerous awards, including the National Flight Assist award in 2010. Schick therefore has established that he has similar, if not better, qualifications than the candidates who were selected for promotions.
As Schick has established a prima facie case of age discrimination, the burden shifts back to defendant to offer "some legitimate, nondiscriminatory reason for [Schick]'s rejection." McDonnell Douglas, 411 U.S. at 802. Defendant has met this burden. According to defendant, Schick was rejected because Schneider, the air traffic manager at FNT, stated that Schick had a bad attitude towards management, i.e. a "FNT attitude."
As defendant explains,
Schick was not selected for the controller . . . position in Detroit because he did not receive a favorable recommendation from his manager. Both John Whitehurst and Gary Ancinec testified that they based their decision on the candidates' abilities as a controller and the recommendations they received from their managers. While Schick received a favorable recommendation as to his abilities from his manager, he did not receive a positive recommendation with regard to his attitude, team work, reliability or positive contributions to his facility. In response to these questions, Schick's manager told Whitehurst that Schick had a "FNT attitude," a term which both Schneider and Whitehurst interpreted as meaning adversarial and difficult to work with. In contrast, all of the applicants who were selected for the positions in Detroit received positive recommendations from their manager about their attitude and willingness to help out at their respective facilities.(Doc. 20 at 15-16, Def's. Mot. for Summ. J.).
The burden shifts back to Schick "to show that [defendant's] stated reason for [his] rejection was in fact pretext" for age discrimination. McDonnell Douglas, 411 U.S. at 804. Schick has failed to meet his burden.
"[A] reason cannot . . . be a pretext for discrimination unless it is shown both that the reason was false, and that discrimination was the real reason." Seeger v. Cincinnati Bell Telephone Co., LLC, 681 F.3d 274, 285 (6th Cir. 2012) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993). "A plaintiff may establish pretext by showing that the employer's proffered reasons (1) have no basis in fact; (2) did not actually motivate the action; or (3) were insufficient to warrant the action." Id. (citation omitted).
Schick first takes issue with the fact that the questionnaire form that Whitehurst used when he questioned Schneider, (Doc. 20-10), is incomplete. For example, Whitehurst testified at his deposition that he did not receive an answer from Schneider about Schick's abilities, whether he was a team player, whether he could handle difficult situations, etc.
Schick's challenge to the answers, or lack thereof, on the questionnaire form is misplaced. Schick has not established that, by Whitehurst not completing the entire form, the real reason that he was not chosen for promotion is because of his age. In other words, that Whitehurst did not complete the entire form does not negate that Schneider told Whitehurst that Schick had a "FNT attitude." Likewise, that Schneider ultimately recommended Schick for a promotion, regardless of the fact that he had a "FNT attitude," is of little consequence. The failure to complete the entire form does not negate that Whitehurst was told that Schick had a "FNT attitude," and that he relied on that statement in arriving at his decision.
Schick next challenges Whitehurst's reliance on Schneider's statement that Schick had a "FNT attitude." Schick says that Whitehurst did not follow up with Schneider to ask what "FNT attitude" meant. However, Whitehurst testified at his deposition that, based on his understanding about FNT employees, he believed "FNT attitude" meant that Schick "was somewhat adversarial, and didn't get along well with the management folks" at FNT. (Doc. 20-4 at 6, Schick Dep.). Schneider confirmed at his deposition that "FNT attitude" meant "pushing back on everything . . . , being adversarial, not accepting things well, not saying much when I say how are you doing, not displaying great joy and happiness, but if I call up there I hear a bunch of laughing and stuff." (Id. at 4).
To the extent that Schick challenges the fact that Whitehurst did not know for certain what "FNT attitude" meant on the day the hiring decision was made, the decision not to promote Schick is protected by the "honest belief" rule. The Sixth Circuit has described the "honest belief" rule as follows:
Under [this] rule, an employer's proffered reason is considered honestly held where the employer can establish it reasonably reli[ed] on particularized facts that were before it at the time the decision was made. Thereafter, the burden is on the plaintiff to demonstrate that the employer's belief was not honestly held. An employee's bare assertion that the employer's proffered reason has no basis in fact is insufficient to call an employer's honest belief into question, and fails to create a genuine issue of material fact.Seeger v. Cincinnati Bell Telephone Co., LLC, 681 F.3d 274, 285 (6th Cir. 2012) (citation omitted). The central inquiry is "whether the employer made a reasonably informed and considered decision before taking an adverse employment action." Id. (citing Smith v. Chrystler Corp., 155 F.3d 799, 807 (6th Cir. 1998)). "An employer's invocation of the honest belief rule does not automatically shield it, because the employee must be afforded the opportunity to produce evidence to the contrary, such as an error on the part of the employer that is 'too obvious to be unintentional.'" Id. at 286 (citation omitted).
Here, even if Whitehurst did not know for certain that "FNT attitude" meant that Schick had some problems with management, his honest belief, based on his knowledge of the FNT facility, was that "FNT attitude" meant that Schick did not get along well with management. Further, his honest belief was supported by Schneider. Schneider confirmed that "FNT attitude" meant that Schick had certain problems with management. Schick has not proffered any evidence to challenge this assertion.
Schick has failed to create a genuine issue of material fact that the decision not to promote him was pretext for age discrimination. Schick says genuine issues of material fact exist because Schick was more qualified for the position, no one above the age of forty was selected, and the forced retirement age for FAA controllers is fifty-six. Schick also makes other general statements, such as pointing out what he believes to be inconsistences in deposition testimony. However, Schick has not proffered any evidence that the decision not to promote him was based on age and not because he had a "FNT attitude." He cannot establish that Schneider did not tell Whitehurst that Schick had a "FNT attitude" or that "FNT attitude" means anything different than what Whitehurst, Schnedier and McGaughey testified that it means. Thus, Schick has failed to meet his burden in showing that the real reason he did not get the promotion was because of his age.
IV. CONCLUSION
For the reasons stated above, defendant's motion for summary judgment has been granted and this case has been dismissed.
SO ORDERED.
____________________________
AVERN COHN
UNITED STATES DISTRICT JUDGE
12-10641 Todd Schick v. Raymond LaHood
I hereby certify that a copy of the foregoing document was mailed to the attorneys of record on this date, June 11, 2013, by electronic and/or ordinary mail.
Sakne Chami
Case Manager, (313) 234-5160