IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

MAUREEN MAURER, §

§

Plaintiff, §

§

VS. § NO. 4:05-CV-792-A

§

AMERICAN AIRLINES, §

§

Defendant. §

MEMORANDUM OPINION

and

ORDER

On November 3, 2006, defendant, American Airlines, Inc.,

(“American”), moved for summary judgment on all claims asserted

by plaintiff, Maureen Maurer ("Maurer"), in this suit. Having

considered the motion, the response, the reply, the summaryjudgment evidence, and the applicable legal authorities, the

court concludes that the motion should be granted as stated

below. 

I.

Plaintiff's Claims

In this lawsuit, Maurer contends that American, in refusing

to promote her, is liable for (1) gender discrimination under

Title VII of the Civil Rights Act of 1964 (“Title VII”), 42

U.S.C. § 2000e et seq., and (2) age discrimination under the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et

seq..

II.

 

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The Motion for Summary Judgment

First, American maintains that Maurer has failed to adduce

any direct evidence of age discrimination. Second, American

concedes that she has established a prima facie case of both

gender and age discrimination with circumstantial evidence. 

Nonetheless, American contends that it had a legitimate, nondiscriminatory reason for not promoting Maurer and that she has

failed to produce evidence that such reason was pretext for

discrimination. 

 III.

Facts

The facts set forth below are undisputed in the summary 

judgment record:

Maurer began working for American in Chicago, Illinois in

July of 1984. She transferred to American’s corporate office in

Fort Worth, Texas in May of 1988. At that time, her position was

“Analyst-International Security” and she reported to Dave Divan

(“Divan”). In 1990 Maurer was promoted to Senior AnalystInternational Security and has remained in that position to the

present. 

Divan announced that he would be retiring in May of 2004. 

Before he officially retired, his responsibilities were split

into two separate positions, one titled “Manager-International

Security” and the other, the job at issue in Maurer’s suit,

 

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 The position was later re-named Manager-International Regulatory

Compliance. 

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“Manager-ISP and Compliance”.1 In February of 2004, American

posted the opening for the Manager-ISP and Compliance (“Manager

position”) in its internal Career Opportunity System (“COS”).

indicating Ann Dudley, Managing Director-Corporate Security, as

the Hiring Manager. David Vance (“Vance”) replaced Dudley in

April of 2004 and took over her responsibility of filling the

vacancy being left by Divan’s retirement.

After the Manager position was posted on COS, a list of the

candidates who had applied for the job was created and Vance

chose a group from that list who he considered to be the “most

qualified,” including Maurer. Def.’s App. 63. Those

candidates then submitted a resume and were interviewed by a

panel of American’s managers. Based on the candidates' resumes,

answers to written questions, and oral interviews, the panel

scored each candidate on a scale of 1 to 9 on the areas of: work

experience, presentation, leadership, organizational skills,

influence, general questions, and an overall score. Vance then

took the panel’s evaluations and ranked them from first to last

based on their scores. The top four candidates were Van Zanden

(total score of 186), Maurer (Total Score of 184), David Stewart

(Total Score of 176), and Brandon Sorrell (total score of 174). 

Vance prepared a memo with each of the four candidates' strengths

and weaknesses and discussed them with Peggy Sterling, Vice-

 

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 Following the panel's ranking for the August promotion, the top three

candidates were Jim Wilson (total score of 245), Maurer (Total Score of 203),

and Kevin Parlane (Total Score of 191). 

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President-Safety, Security, and Environmental. Vance stated that 

[t]he top two things I sought from the person who would

fill the job were: first, proven management experience;

and second, the ability to bring a different

perspective and operational experience to the job. 

After the interview process ... I determined that the

person who the panel scored the highest for each of the

two positions at issue was, in fact, the best suited

for the job. That person was selected in each

instance.

Def.’s App. 64. 

In May of 2004 American announced that Frank Van Zanden

(“Van Zanden”) had been selected for the Manager position (“May

promotion”). Van Zanden did not fill the position and Vance

began the process of filling the vacancy again by posting the

Manager position in the COS. He then followed the same procedure

that was used to hire Van Zanden.2 In August of 2004, American

announced that Jim Wilson (“Wilson”) was selected for the

position (“August promotion”). On both occasions, Vance gave as

his reason for not selecting Maurer that she was not the most

qualified for the job because she “lacked management experience”

and that she would not be able to “bring a different perspective

from operational experience to the job.” Def.’s App. 64-65. 

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

 

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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 non-moving 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 non-moving 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. To meet this burden, the nonmovant must

"identify specific evidence in the record and articulate the

'precise manner' in which that evidence support[s] [its]

claim[s]." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). 

An issue is material only if its resolution could affect the

outcome of the action. Anderson, 477 U.S. at 248. Unsupported

allegations, conclusory in nature, are insufficient to defeat a

proper motion for summary judgment. Simmons v. Lyons, 746 F.2d

265, 269 (5th Cir. 1984). 

The standard for granting a motion for summary judgment is

 

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 Maurer does not contend that there is direct evidence of her alleged

gender discrimination claim. 

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the same as the standard for rendering judgment as a matter of

law. Celotex Corp., 477 U.S. at 323. If the record taken as a

whole could not lead a rational trier of fact to find for the

non-moving party, there is no genuine issue for trial. 

Matsushita, 475 U.S. at 597. See also Boeing Co. v. Shipman, 411

F.2d 365, 374-75 (5th Cir. 1969) (en banc) (explaining the

standard to be applied in determining whether the court should

enter judgment on motions for directed verdict or for judgment

notwithstanding the verdict).

V.

Analysis

A. Gender Discrimination Under Title VII

Absent direct evidence of gender discrimination as here,3 a

plaintiff may rely on circumstantial evidence to establish her

case, which, in turn, is analyzed under the evidentiary burdenshifting framework of McDonnell Douglas v. Green, 411 U.S. 792,

802 (1973) as modified by Desert Palace, Inc. v. Costa, 530 U.S.

90 (2003); see Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312

(5th Cir. 2004); see also Oden v. Oktibbeha County, 246 F.3d 458,

468 (5th Cir. 2001). This framework requires plaintiff first to

establish a prima facie case. See McDonnell Douglas, 411 U.S. at

802. In order to establish a prima facie case, Maurer must

adduce evidence that (1) she was within a protected class, (2)

she was qualified for the position sought, (3) she was not

 

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 In analyzing American’s motion for summary judgment, the court will

only address the pretext alternative as Maurer did not assert that American’s

decisions were based on “mixed motives” nor has the court found any evidence

of such motives in the summary-judgment record. 

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promoted, and (4) the position was filled by someone outside the

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

establishes a prima facie case, the burden shifts to the

defendant to articulate a legitimate, non-discriminatory reason

for its actions. Id. If the defendant meets this burden, then

plaintiff must offer evidence sufficient to create an issue of

material fact "'either (1) that the defendant's reason is not

true, but is instead a pretext for discrimination (pretext

alternative); or (2) that the defendant's reason, while true, is

only one of the reasons for its conduct, and another motivating

factor is the plaintiff's protected characteristic (mixedmotive[s] alternative).'" Id. (quoting Rishel v. Nationwide Mut.

Ins. Co., 297 F. Supp.2d 854, 865 (N.D.N.C. 2003).4

Because American concedes that Maurer has established a

prima facie case of gender discrimination, it must articulate a

legitimate, nondiscriminatory reason for rejecting Maurer for the

position. There is summary judgment evidence that a thorough

process was used in choosing which applicant would fill the

position and that American's reason for twice selecting someone

other than Maurer was simply that she was not the most qualified

applicant for the job. 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,

 

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nondiscriminatory reason for non-selection of an employee

claiming discrimination). Accordingly, American has met its

burden of expressing a valid reason for the non-selection. 

Consequently, the inference of discrimination created by Maurer's

prima facie case "drops out" and the burden shifts to her to

prove American's supposed legitimate reason was actually a

pretext for discrimination. See id. at 720. 

The burden having shifted back to Maurer, she must now

substantiate her 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)). Maurer’s only evidence in this

regard is her subjective belief that Vance’s stated factors

behind the decision on the promotion – i.e. management experience

and bringing a new perspective to the job – were a mere cover up

for his true discriminatory motive. An employee’s subjective

belief about an employer’s alleged animus is not, however, alone

sufficient to prove discriminatory intent. See Byers v. Dallas

Morning News, Inc, 209 F.3d 419, 427 (5th Cir. 2000). Further,

to the extent Maurer attempts to use her own qualifications as

evidence of discriminatory intent, she has failed to do this as

well. Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 882 (5th

Cir. 2003)(stating that an employee must be “clearly better

qualified” to use her own qualifications as evidence of pretext).

There is evidence that both of the persons selected for the

position, Van Zanden and Wilson, possessed not only the qualities

 

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of management experience and an outside perspective that Vance

was looking for, but other relevant qualifications. There is no

evidence that Maurer was "clearly better qualified." See id. at

882. In short, Maurer has failed to adduce summary judgment

evidence that discrimination “lay at the heart” of American’s

employment decisions. See Price, 283 F.3d at 720. Therefore,

her claim for gender discrimination must fail as a matter of law. 

B. Age Discrimination under the ADEA 

The ADEA provides that it is unlawful for an employer to

discriminate “against any individual . . . because of such

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

1. Maurer Failed to Adduce Direct Evidence of Age 

 Discrimination

The Fifth Circuit has stated that “[d]irect evidence is 

evidence that, if believed, proves the fact of discriminatory

animus without inference or presumption.” Sandstad v. CB Richard

Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002)(citing Mooney v.

Aramco Servs. Co., 54 F.3d 1207, 1217 (5th Cir. 1995)). Maurer

has failed to adduce direct evidence of discrimination. Even if

Vance had made the remarks attributed to him by Maurer, including

that Maurer and others “just had old ideas,” the remarks would be

insufficient to establish unlawful discrimination without any

inferences. Plf.’s App. 81. Therefore, Maurer must rely on

circumstantial evidence to survive summary judgment. 

 

2. Maurer Failed to Adduce Circumstantial Evidence of Age 

 

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 The modified burden-shifting framework of McDonnell Douglas applies to

ADEA claims just as it does to claims brought under Title VII. See, e.g.,

Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004) (applying

the McDonnell Douglas test to an ADEA claim).

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Discrimination

Because Maurer has not presented any direct evidence of age

discrimination by American, the court must apply the three-step

test from McDonnell Douglas, 411 U.S. at 8025; see also Sandstad

v. CB Richard Ellis, Inc., 309 F.3d 893, 896-97 (5th Cir. 2002).

To establish a prima facie case, Maurer must show that: (1) she

was not selected for promotion, (2) she was qualified for the

position in question, (3) she is a member of a protected class

(i.e. over the age of forty), and (4) she was replaced by someone

outside the protected class or younger. See Evans v. City of

Houston, 246 F.3d 344, 350 (5th Cir. 2001). American concedes

that Maurer has met her 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. See Rachid, 376 F.3d at 312. 

Accordingly, the court's earlier discussion of Maurer's Title VII

gender discrimination claim is instructive. See supra Part V.A. 

First, American has asserted a legitimate and nondiscriminatory

reason for not selecting Maurer for the position at issue. There

is no summary judgment evidence that she was the most qualified

applicant for the job. Thus, Maurer's age discrimination claim

must also fail. 

 

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VI.

Order

For the reasons discussed above, the court concludes that

American’s motion for summary judgment should be granted. 

Therefore,

The court ORDERS that all of Maurer’s claims and causes of

action against American in the above-captioned action be, and are

hereby, dismissed with prejudice. 

SIGNED December 22, 2006.

 /s/ John McBryde 

JOHN McBRYDE

United States District Judge

 

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