IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

MAURICE TOVAL, §

§

Plaintiff, §

§

VS. § NO. 4:05-CV-780-A

§

NORMAN MINETA, Secretary, §

Department of Transportation, §

§

Defendant. §

MEMORANDUM OPINION

and

ORDER

On October 5, 2006, defendant, Norman Mineta, Secretary,

Department of Transportation, moved for summary judgment on the

discrimination claims asserted by plaintiff, Maurice Toval

("Toval"), in this suit. Having considered the motion, the

summary judgment evidence, and the applicable legal authorities,

the court concludes that the motion should be granted. 

I.

Toval's Claim

On December 7, 2005, Toval filed his original complaint in

this court. He contends that defendant discriminated against him

on the basis of race, color, sex, and age in violation of Title

VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., 

and the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et

seq.. 

II.

The Motion for Summary Judgment

 

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 According to defendant's motion, of the three-member Panel reviewing

Toval's application, two members had no knowledge of his race, age, or any

previous EEO activity, and one member "was not fully aware" of these facts. 

Def.'s Motion 8. 

2

First, defendant maintains that Toval cannot establish a prima

facie case of racial discrimination and, consequently, that such a

claim cannot survive summary judgment. Second, while "Toval has

established a prima facie case for gender and age discrimination,"

defendant urges that it had a legitimate, nondiscriminatory reason

for not promoting Toval to the position at issue. Def.'s Br. in

Supp. of Mot. for Summ. J. 11. Thus, according to the motion,

because Toval has failed to meet his burden to show that

defendant's asserted rationale was actually a pretext for

discrimination, Toval's claims for gender and age discrimination

must also fail. III. 

Undisputed Facts

Toval has been employed by defendant in a GM/GS-13 position

since 1985 and currently works as a GS-13 Auditor in the Fort

Worth, Texas office. On July 11, 2003, Toval applied for a

promotion to Supervisory Auditor under defendant's Announcement No.

I-03-64. Toval's application was found by defendant's Office of

Human Resources to meet the minimum qualifications for the

position, and along with fourteen other applications, was sent to a

three-member rating and ranking panel ("Panel") for consideration. 

The purpose of the Panel was to conclude which, if any, of the

applications should be sent to the selecting official, Debra Ritt

("Ritt"), for further review. Following the Panel's evaluation1,

 

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 Ms. Heggins-Carter is a black, African-American female under the age

of forty. 

3

Toval received the lowest possible overall rating, "qualified" as

opposed to "highly qualified" or "best qualified," and his

application was not included in those sent to Ritt for review. Out

of the nine applicants interviewed by Ritt, Ms. Paulette HegginsCarter2 was chosen on October 18, 2003, as the best qualified for

the position as Supervisory Auditor in the Fort Worth, Texas

office. 

In a complaint filed with defendant's Equal Employment Office

("EEO") program manager on August 25, 2003, Toval complained that

defendant was engaged in discriminatory hiring practices. A

counselor with the EEO contacted Toval on November 19, 2003,

concerning his discrimination claims. On December 15, 2003, Toval

filed a formal complaint with the EEO asserting that "[b]ecause of

[p]laintiff's race (African American), color (Black), sex (male),

and age ([p]laintiff's date of birth is August 25, 1946), the

[d]efendant failed to promote [p]laintiff." Pl.'s Compl. 2. On

February 2, 2004, defendant's Departmental Office of Civil Rights

accepted plaintiff's complaint for investigation. On August 25,

2005, the Equal Employment Opportunity Commission ("EEOC") rendered

a decision regarding plaintiff's complaint. See Pl.'s Compl. Ex. C

(issuing summary judgment against Toval). Subsequently, on

September 8, 2005, Toval received a letter indicating that the EEOC

decision had been reviewed and accepted and that he was now

eligible to file a civil suit concerning the alleged

 

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discrimination. 

IV.

Applicable Summary Judgment Principles

A party is entitled to summary judgment on all or any part of

a claim as to which there is no genuine issue of material fact and

as to which the moving party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 247 (1986). The moving party has the initial burden of

showing that there is no genuine issue of material fact. Anderson,

477 U.S. at 256. The movant may discharge this burden by pointing

out the absence of evidence to support one or more essential

elements of the nonmoving party's claim "since a complete failure

of proof concerning an essential element of the nonmoving party's

case necessarily renders all other facts immaterial." Celotex

Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). Once the moving

party has carried its burden under Rule 56(c), the nonmoving party

must do more than merely show that there is some metaphysical doubt

as to the material facts. Matsushita Elec. Indus. Co., Ltd. v.

Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party opposing

the motion may not rest on mere allegations or denials of pleading,

but must set forth specific facts showing a genuine issue for

trial. Anderson, 477 U.S. at 248, 256. 

V.

Analysis

A. Racial and Gender Discrimination Under Title VII

 To establish a claim for discrimination under Title VII,

 

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Toval must adduce prima facie evidence that such discrimination

occurred. The court applies the three-step analytical framework

from McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973)See also

Oden v. Oktibbeha County, 246 F.3d 458, 468 (5th Cir. 2001). In a

Title VII action, the complainant must first carry the initial

burden under the statute of establishing a prima face case of

discrimination. McDonnell at 802. If he does, "the burden then

must shift to the employer to articulate some legitimate,

nondiscriminatory reason for the employee's rejection." Id. 

Finally, complainant must "be afforded a fair opportunity to show

that [defendant's] stated reason for [his] rejection was in fact

pretext." Id. at 804. 

In order to prove his claims for racial and gender

discrimination, the first step in that framework requires Toval to

make a prima facie showing of such discrimination under Title VII. 

To do so, Toval must adduce evidence that (1) he was within a

protected class, (2) he was qualified for the position sought, (3)

he was not promoted, and (4) the position was filled by someone

outside the protected class. See Oden, 246 F.3d at 468. If there

is no evidence supporting any of those elements, then Toval will

fail to meet his burden of producing a prima facie case, that is,

establishing a "legally mandatory, rebuttable presumption" that he

was not promoted because of his being a member of the protected

class. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254

n.7 (1981). 

Toval has failed to meet his burden in proving a prima facie

 

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case of racial discrimination because he cannot show that the

position at issue was filled by someone outside the protected

class. Ms. Heggins-Carter, the applicant chosen by defendant to

fill the position, is the same color and race as Toval, i.e. black

and African American, thus, she is not outside the protected class

and Toval's claim for racial discrimination cannot succeed.

Defendant concedes that Toval has established a prima facie

case of gender discrimination. Thus, defendant attempts to prove

in his motion for summary judgment that he had a legitimate,

nondiscriminatory reason for rejecting Toval for the position. The

summary judgment evidence outlines step by step the process that

was used in selecting an applicant to fill the position. Further,

the summary judgment evidence shows that defendant's legitimate,

nondiscriminatory reason for selecting someone other than Toval,

was simply that Toval was not the most qualified applicant for the

job. See Def.'s Br. in Supp. of Mot. for Summ. J. 11-15. 

Accordingly, defendant has met his burden of demonstrating a valid

reason for the non-selection. See Price v. Federal Express Corp.,

283 F.3d 715, 720 (5th Cir. 2002) (stating that selecting a more

qualified applicant for a position is a legitimate,

nondiscriminatory reason for non-selection of an employee claiming

discrimination). Consequently, the inference of discrimination

created by Toval's prima facie case "drops out" and the burden

shifts to him to prove defendant's supposed legitimate 

reason was actually a pretext for discrimination. See id. at 720. 

On summary judgment, once the burden has shifted back to the 

 

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plaintiff, he "must substantiate his claim of pretext through

evidence demonstrating that discrimination lay at the heart of the

employer's decision." Id. (citing Rubenstein v. Adm'rs. of the

Tulane Educ. Fund, 218 F.3d 392, 400 (5th Cir. 2000). Because

Toval has failed to show that such pretext existed, his claim for

gender discrimination must fail. 

B. Age Discrimination under the ADEA 

The ADEA provides that "it shall be unlawful for an employer .

. . [to] discriminate against any individual . . . because of such

individual's age." 29 U.S.C. § 623(a)(1). To establish a prima

facie case under the ADEA, Toval must show that: (1) he was not

selected for promotion, (2) he was qualified for the position in

question, (3) he is a member a protected class (i.e. over the age

of forty), and (4) he was replaced by someone outside the protected

class or younger. See, e.g., Evans v. City of Houston, 246 F.3d

344, 350 (5th Cir. 2001); Bennett v. Total Minatome Corp., 138 F.3d

1053, 1060 (5th Cir. 1998). Defendant concedes that Toval has met

his burden in proving a prima facie case under the ADEA. 

Once a plaintiff has established a prima facie case under the

ADEA, the court's analysis of the claim is identical to that of a

Title VII action. Accordingly, the court's earlier discussion of

Toval's Title VII gender discrimination claim is instructive. See

supra Part V.A. First, defendant's asserted reason for not

selecting Toval for the position at issue was legitimate and

nondiscriminatory, he was not the most qualified applicant for the

job. Second, Toval has failed to prove that such a reason was a

 

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pretext for any discrimination, gender or age. Thus, Toval's age

discrimination claim must also fail. 

VI.

Order

For the reasons discussed above, the court concludes that

defendant's motion for summary judgment should be granted. 

Therefore,

The court ORDERS that all claims and causes of action brought

by Toval against defendant in the above-captioned action 

be, and are hereby, dismissed with prejudice. 

SIGNED November 1, 2006.

 /s/ John McBryde 

JOHN McBRYDE

United States District Judge

 

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