Lusk v. Gulf Coast Community

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
June 12, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-20870
VESTA LUSK,
Plaintiff - Appellant
versus
GULF COAST COMMUNITY SERVICES ASSOCIATION,
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Texas
(No. 4:04-cv-01904)
Before KING, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Vesta Lusk appeals the district court’s
order that granted a summary judgment in favor of Defendant-
Appellee, Gulf Coast Community Service Association (“Gulf Coast”),
dismissing Lusk’s age discrimination claim. We affirm.
I. FACTS AND PROCEEDINGS
Lusk began working for Gulf Coast in 1976 as an outreach
worker. Over the years, she worked her way up through the ranks of
the agency. In 2001, Lusk became the Managing Director of Gulf

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1 Jonita Wallace is also called Jonita Solomon. We refer
to her as Wallace, because that is the name she used when she
applied for the position of Executive Director.
2
Coast, reporting directly to the Executive Director, Fran Holcombe.
Holcombe resigned in April 2002, and Gulf Coast’s Board of
Directors (“the Board”) voted unanimously to appoint Lusk as the
Interim Executive Director. She was 55 years old at the time.
The Personnel Committee (“the Committee”), made up of Board
members Jaime de la Isla, Stella Walters, Gertha Williams, Randy
Bostic, and Dorothy Olmos, and chaired by Walters, was responsible
for filling the Executive Director position. The Committee first
posted the position in January 2003. This posting contained the
following “minimum requirements”:
(1) Masters degree in Business Administration,
Public Administration, Education, and/or
Behavioral Sciences; or business, financial,
and social services-related professional
certification (e.g., CPA, etc.);
(2) Five (5) years experience with social
services agencies; and
(3) Five (5) years experience with federal
grantor or grantee agencies (Department Health
and Human Services, Head Start, etc.);
(4) Demonstrated, verifiable fundraising
skills; knowledge of non-profit industry;
prior experience managing multi-million dollar
budgets; and
(5) Extensive knowledge of MIS.
Both Lusk and Jonita Wallace,1 the person eventually hired as
Executive Director, submitted applications in January 2003.

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3
Wallace, a friend of Walters, submitted her application before the
position was posted. Wallace requested a starting salary that was
exactly the same as the figure previously discussed during a board
meeting.
After this first posting, the Committee recommended five
persons to the Board for interviews, including Wallace, but not
including Lusk. Board member Olmos averred in her affidavit that
Bostic threw Lusk’s application in the trash and stated that Lusk
was “too old for the position.”
Before anyone was interviewed, the Committee decided to re-
post the position. Board Chairman Michael Harris and Committee
Chairman Walters stated in their affidavits that the reason for re-
posting the position was because (1) LULAC, a Hispanic advocacy
group, was urging that at least one Hispanic candidate be
interviewed (none of the five originally recommended for an
interview was Hispanic), and (2) the wording of the January 2003
posting had not made clear that a Master’s degree was required.
Olmos stated in her affidavit that the Committee made the education
requirement more stringent, because they did not want Lusk to
apply, and she does not have a Master’s degree. When the position
was re-posted in April 2003, however, the posting specified the
exact same “minimum requirements” as had the January posting.
Walters averred that she had asked the human resources director to
change the wording to emphasize that a Master’s degree was required
but that he failed to make the changes. In any event, Lusk’s

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2 29 U.S.C. § 623.
4
application did not list any professional certifications other than
a B.A. in Social Work.
After the April 2003 posting, the Committee reviewed the
applications from both the January and April postings, after which
four candidates, all with Master’s degrees, were interviewed by the
Board: (1) Walter Hunt, (2) Kenna Bush, (3) Teresa Ramirez, and
(4) Wallace. In August 2003, the Board voted on the position of
Executive Director. Walters, Bostic, Dr. R. Joseph Rodriguez, and
Williams voted for Wallace; Olivia Garza, de la Isla, Olmos, and
Allen Parker voted for Ramirez. Board Chairman Harris did not
participate in the initial vote, but then cast the tie-breaking
vote for Wallace, who was under 40 years old at the time.
Wallace was hired as Executive Director, and Lusk returned to
the position of Managing Director. Lusk’s employment was
terminated in April of the following year when the agency was
reorganized. Lusk filed suit against Gulf Coast, claiming that she
was discriminated against because of her age, in violation of the
Age Discrimination in Employment Act (“ADEA”).2 She alleged that
such discrimination occurred when the Board refused to promote her
to Executive Director and instead hired the younger Wallace for
that position. The district court granted summary judgment in
favor of Gulf Coast, and Lusk timely appealed.
II. ANALYSIS

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3 American Int’l Specialty Lines Ins. Co. v. Canal Indem.
Co., 352 F.3d 254, 260 (5th Cir. 2003).
4 Weeks Marine, Inc. v. Fireman’s Fund Ins. Co., 340 F.3d
233, 235 (5th Cir. 2003).
5 Id.
6 29 U.S.C. § 623(a)(1).
7 Rachid v. Jack In the Box, Inc., 376 F.3d 305, 309 (5th
Cir. 2004).
5
A. Standard of Review
We review de novo the district court’s decision to grant
summary judgment.3 A motion for summary judgment should be granted
only when there is no genuine issue of material fact.4 In
determining whether there is a genuine issue of material fact, we
view all facts and draw all inferences therefrom in favor of the
non-moving party.5
B. Age Discrimination
The ADEA states that “[i]t shall be unlawful for an employer
. . . to . . . discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment,
because of such individual’s age.”6 To demonstrate age
discrimination, Lusk had to show that (1) she is a member of a
protected class (over 40 years of age), (2) she sought and was
qualified for the position, (3) she was rejected for the position,
and (4) someone outside the protected class obtained the position.7
She could have satisfied her burden by offering either direct or

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8 Id.
9 Id. at 309-10 (quoting Louis v. E. Baton Rouge Parish
Sch. Bd., 303 F. Supp. 2d 799, 801-04 (M.D. La. 2003)). Although
the mixed-motives analysis was initially applied when the
plaintiff offered direct evidence, since Desert Palace v. Costa,
539 U.S. 90 (2003), it has also applied when the plaintiff has
offered only circumstantial evidence. Rachid, 376 F.3d at 312.
10 The requirement that the Executive Director have a
master’s degree or professional certification existed well before
Lusk ever applied for the job.
6
circumstantial evidence of discrimination.8 If she had shown that
discrimination was a motivating factor in an adverse employment
decision, Gulf Coast would then have had to “‘demonstrate that it
would have taken the same action in the absence of the
impermissible motivating factor.’”9
In light of Bostic’s numerous remarks about Lusk’s age, we
assume without deciding that Lusk presented evidence that her age
was a motivating factor in the employment decision. Nevertheless,
we agree with the district court’s conclusion that Gulf Coast would
have made the same decision regardless of any discrimination. When
viewed in its entirety, the summary judgment evidence demonstrates
that this was simply a hiring decision made by a divided committee.
Although we agree with Lusk that the decision to hire Wallace was
probably partially influenced by Walters to ensure that the
candidate she preferred received the job, such a preference is not
tantamount to age discrimination.
Unlike Lusk, all finalists selected for interviews had masters
degrees.10 Although Lusk contends that she had professional

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7
certifications, she did not include this information on her
application. It is noteworthy that, when the prior director
resigned and had to be replaced, the board unanimously selected
Lusk, who was then fifty-five, to serve until a replacement could
be found; yet that same board passed up the easy opportunity to
name Lusk as the permanent director. This supports Gulf Coast’s
assertion that it would not have hired Lusk, regardless of her age,
because she lacks qualifications and because of her performance as
Interim Director.
III. CONCLUSION
As Gulf Coast has met its burden of demonstrating that it
would not have hired Lusk even in the absence of any possible
discriminatory motive, the district court’s grant of Gulf Coast’s
motion for summary judgment is
AFFIRMED.

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