Hollaway v. Woodley

United States Court of Appeals
Fifth Circuit
F I L E D
October 19, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-40883
Summary Calendar
_______________
CAROL HOLLAWAY,
Plaintiff-Appellant,
VERSUS
SECRETARY OF ARMY JOHN PAUL WOODLEY, JR.,
DEPARTMENT OF ARMY CORPS OF ENGINEERS,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m 3:03-CV-904
______________________________
Before SMITH, WIENER, and OWEN,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Carol Hollaway appeals a judgment, after a
bench trial, that is based on a finding that she
did not prove by a preponderance of the evi-
dence that the Army Corps of Engineers (the
“Corps”) discriminated against her on the basis
of age in its selection for the position of GS-13
Plan Formulation Specialist. For the reasons
stated, we affirm.
* Pursuant to 5TH CIR. R. 47.5, the court has deter-
mined that this opinion should not be published and is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.

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I.
Hollaway was a long term employee of the
Corps. She was hired as a GS-9 level social
scientist in 1979 and rose to the rank of GS-12
in 1984; she remains a GS-12 level employee.
After seeing an advertisement posted in Janu-
ary 2002 for the position of GS-13 Plan For-
mulation Specialist, Hollaway applied for the
position but was not selected. Instead, the sel-
ection panel chose Robert Heinly, a younger,
less experienced employee, to fill the role.
Hollaway sued under the Age Discrimination
in Employment Act (“ADEA”), 29 U.S.C.
§§ 621 et seq., alleging that she had suffered
unlawful disparate treatment in the Corps’s
selection process. See § 623(a)(1); Hazen Pa-
per Co. v. Biggins, 507 U.S. 604 (1993). Af-
ter a two-day bench trial, the district court
found that the panel that had evaluated candi-
dates did not consider applicants’ ages, so the
court entered a take-nothing judgment.
The parties agreed that Hollaway was over
forty years old at the time of the events in
question and was thus a member of a protect-
ed class under the ADEA. They also agreed
that, in her more than twenty-eight years of
service with the Corps, Hollaway had been an
exemplary employee who had been nationally
recognized for her planning work and had nev-
er been reprimanded.
The court found that the Corps had fol-
lowed its standard practice in appointing a sel-
ection panel to evaluate applications. Appli-
cants were first screened for minimum thresh-
old qualifications by the Corps’s Civilian Per-
sonnel Operations Center, then referred to the
selection panel, which had five members:
Lloyd Saunders, Division Chief for the Plan-
ning, Environmental and Regulatory Division;
Richard Medina, Chief of the Planning and En-
vironmental Branch; Diana Laird, Chief of the
Planning Section; Dalton Krueger, a project
manager in the Project and Programs Division;
and Peter Shaw, an employee in the Corps’s
Southwest Division. Laird chaired the panel.
The panelreceived nineteen applications af-
ter initial screening. Laird instructed the pan-
elists to evaluate the applications according to
five criteria: (1) demonstrated expert knowl-
edge of procedures and policies associated
with navigation, flood control and ecosystem
restoration projects; (2) demonstrated experi-
ence in providing plan formulation and policy
compliance guidance; (3) ability to provide
authoritative advice on water resources plan-
ning studies during planning, design and con-
struction phases of complex projects;
(4) demonstrated experience directing matrix
project delivery planning teams; and (5) dem-
onstrated experience in providing technical re-
views of plan development, evaluations and
recommendations.
Each panelist was to score each applicant
on a twenty-point scale in each category and
submit his total scores for each applicant to the
rest of the panel; all panelists except Saunders
complied with this directive. Saunders, for
reasons that remain murky, did not submit his
scores. The panel then used the scores as a
guideline to establish a rank order of appli-
cants qualified for the position. Although the
summed raw scores indicated that Hollaway
would have been alone in second place, twenty
points ahead of Heinly (who was third), the
panel listed them as tied for second behind
Robert Van Hook, an older and more experi-
enced applicant than was Hollaway. Laird
indicated that the ranking was done by con-
sensus of the panel rather than strict summa-
tion of the panelists’ raw scores for each
applicant.
The panel decided to interview the top six
candidates and to weigh their interview per-

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formance equally with the panel’s pre-inter-
view evaluation of the qualifications of each
applicant. Each candidate was asked a series
of identical questions in the interview; each in-
terview lasted fifteen to thirty minutes.
Following the interviews, the panel ranked
the candidates’ interview performances. Hein-
ly was ranked second behind Janelle Stokes;
Hollaway was ranked last. According to panel
members’ testimony, Hollaway was curt and
blunt during her interview; it appeared to the
panel that she did not make any effort to an-
swer the questions. Hollaway admitted at trial
that she was put out by the interview because
she thought the questions were not germane to
the position and that she probably had given
short answers.
The panel combined its pre-interview eval-
uations with its impressions from the inter-
views and determined that Heinly and Van
Hook were tied for the top ranking; Stokes
ranked third and Hollaway fourth. The panel
selected Heinly.
II.
The selection process for this specific posi-
tion took place against a background of con-
cern in the Corps about the retention and fu-
ture performance of its aging workforce. In
documents released in September 2002 and
January 2003, the Corps described a Strategic
Management Plan (“SMP”) that noted, inter
alia, that “[w]e are faced with an aging work-
force and a small new generation of workers.
In 1989, approximately 54 percent of the
workforce was more than 40 years of age; in
May 2001, 73 percent were in that category.”
The plan noted that “measures, such as educa-
tion level, length of service, age, awards, and
diversity will also be used to measure success
at maintaining a high quality workforce”
(emphasis added).
In January2002, the Southwestern Division
of the Corps, in which the selection process
for the Plan Formulation Specialist position
took place, promulgated its “Emerging Lead-
ers Program” (“ELP”), the object of which
was “to provide individuals who have exhib-
ited leadership potential at the GS-09 through
GS-12 . . . levels, the opportunity to further
develop and refine their leadership skills.” The
program was open to employees of all ages.
Heinly was a member of the program, but
Hollaway was not.
III.
Hollaway challenges the finding that age
was not a factor in the Corps’s selection pro-
cess. We review findings of fact for clear er-
ror. Couch v. Cro-Marine Transp., Inc., 44
F.3d 319, 327 (5th Cir. 1995). Hollaway also
challenges some of the legal analysis in the dis-
trict court’s dicta. We review conclusions of
law de novo. Randel v. United States Dep’t of
Navy, 157 F.3d 392, 395 (5th Cir. 1998). The
district court’s factual findings are sufficient to
support its disposition, so we do not reach its
legal analysis of the alternate, hypothetical
situation presented in its dicta.
We will overturn a factual finding for clear
error only if we are left “with the definite and
firm conviction that a mistake has been made.”
Couch 44 F.3d at 327. We are left with no
such conviction here. The factual findings are
amply supported in the record.
IV.
A plaintiff may prove an ADEA claim
through direct or circumstantial evidence or a
combination of the two. Sandstad v. CB Rich-
ard Ellis, Inc., 309 F.3d 893, 896 (5th Cir.
2005). Where a plaintiff produces direct evi-
dence that “discriminatory animus played a
role in the decision at issue,” the defendant
must either refute the evidence or prove that it

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would have taken the same action in the ab-
sence of discriminatory animus. Id.
A plaintiff without direct evidence of age
discrimination must make out a prima facie
case of such discrimination through indirect
evidence by showing: (1) that he was a mem-
ber of the protected class; (2) that he had “ap-
plied and [been] qualified for a job for which
the employer was seeking applicants;”(3) that
he was rejected; and (4) that the employer
hired someone younger. See Bodenheimer v.
PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir.
1993); McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973). Once the plaintiff
has made such a case, the employer must re-
spond by offering a non-discriminatory reason
for its adverse employment action. McDonnell
Douglas, 411 U.S. at 802.
If the employer offers such a reason, the
plaintiff must demonstrate that the explanation
is a pretext and that age actually motivated the
decision. See Machinchick v. PB Power, Inc.,
398 F.3d 345, 352 (5th Cir. 2005). A plaintiff
need not produce new evidence of discrimina-
tory intent. A finder of fact may, but is not re-
quired to, infer discrimination from the com-
bination of the plaintiff’s prima facie case and
his evidence that the employer’s proffered rea-
son was a pretext. See id. at 350; Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S.
133, 148 (2000).
Hollaway argues essentially that she was
objectively such a stronger candidate than was
Heinly that age discrimination must have
infected the panel’s selection process. She
contends that the substantial weight given to
the interview was a pretext and that the panel
gradually skewed the process in such a way
that it would inevitably favor the younger
candidate, whom the panel actually desired to
hire because of his youth rather than for any
superior qualities he demonstrated during the
hiring process.
Hollawayemphasizes that the initial ranking
of job candidates did not correlate exactly with
the summed scores of the four panel members
who submitted their scores; according to those
scores, she was twenty points ahead of Heinly
but was ranked in a tie with him for second.
She points out that the panel determined to
interview candidates only after the initial
evaluation, where Heinly ranked second, tied
with Hollaway and behind the older and more
experienced Van Hook. She claims the inter-
view was then unduly prominent in the panel’s
decision.
Holloway points to Shaw’s testimony that
the position had been posted as a “tech” be-
cause the Corps estimated that 75% of the
skills were technical but only 25% were verbal
and interpersonal. She reasons that the panel
weighed verbal and interpersonal skills as 60%
of the overall selection processSS20% under
factor 5 in the initial evaluation process (which
accounted for 50% of the eventual total), then
the entire 50% weight that was accorded to
the interview.
Hollaway notes with suspicion that the ori-
ginal interview scores have been lost and
points to the Corps’s hiring guidelines indicat-
ing that, should a selection panel opt to con-
duct interviews, a candidate’s failure to be
available for an interview may not be counted
against him. Finally, Hollaway intimates that
the promulgation of the ELP and SMP cast all
of this behavior in a particularly suspicious
light; according to her, the Corps developed a
policy of discriminating against older workers,
and that policy was followed in the selection
process for the position for which she applied.

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V.
Hollaway cites the promulgation of the
SMP and ELP as direct evidence of discrimi-
nation. The district court found this evidence
of discrimination unpersuasive. It credited
Laird’s testimony that the panel was unaware
of the SMP when it made its hiring decision
and that the SMP played no role in the panel’s
selection process. It also found that the ELP
was open to employees of any age and was not
used in practice as a tool to discriminate
against older employees. These findings are
not clearly erroneous.
The district court’s credibility determina-
tions with regard to testifying witnesses are
entitled to particular deference by this court,
and there is no reason to overturn them. See
FED. R. CIV. P. 52(a). It is not beyond belief
that panel members making a hiring decision in
April 2002 were not aware of a management
plan originating in central headquarters and
documented in the record by materials from
September 2002 and January 2003. Hollo-
way’s mere implication that the panel members
were lying about the role of the SMP is insuffi-
cient to warrant reversal. Hollaway’s brief,
though full of imputations about the illegality
of the plan, supplies no reason to believe that
the findings concerning the plan’s irrelevance
to the hiring decision are clearly erroneous.
Similarly, rather than pointing to any spe-
cific parts of the record indicating that the
findings regarding the ELP are clearly errone-
ous, Hollaway just reargues her case from the
trial. We see no justification, however, for
overturning the finding that the ELP was not
used to discriminate against older workers in
general or Hollaway in particular.
The district court found that the ELP was
open to anyone of any age working in the
Corps and that workers over the age of forty
who had not participated in the ELP had been
promoted to the GS-13 level. These findings
are amply supported in the record and reason-
ably serve to justify the district court’s conclu-
sion that the Corps did not use the ELP to dis-
criminate against Hollaway. We therefore af-
firm the determination that Hollaway’s direct
evidence of discrimination was insufficient to
establish that discriminatory animus played a
role in the Corps’s employment decision.
VI.
The district court found that Hollaway had
met the McDonnell Douglas requirement for
establishing a prima facie case of employment
discrimination using circumstantial evidence,
and the Corps does not challenge that conclu-
sion. Instead, the Corps argues here, as it did
in the district court, that her poor performance
in the interview was the reason for its decision
not to hire her. As noted above, Hollaway
contends this is pretext; she believes that the
weight given to the interview was merely an
excuse to hire a younger and more personable
candidate for a technical position in which in-
terpersonal skills were relatively insignificant.
The panel members’ testimony supplies an
adequate ground to affirm the conclusion that
Hollaway performed poorly in the interview.
The most obvious flaw in her argument re-
garding the relative weight given to the inter-
view is that it ignores the fact that an interview
is not merely a means by which to test verbal
and interpersonal skills. Interviews may mea-
sure candidates’ enthusiasm for applying their
skills to a particular job, their ability to get
along with the specific group of people with
whom they will be working, and their judg-
ment in the midst of at least one stressful
situation (the interview itself).
The district court did not clearly err when
it determined that the Corps’s choice to con-

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duct a job interview as part of the hiring pro-
cess, and to weigh that interview equally with
the cumulation of all other factors deemed rel-
evant to the position, was a reasonable and ty-
pical exercise of the panel’s discretion rather
than a pretextual feint to mask invidious dis-
crimination. Hollaway’s contention that the
Corps’s policy against counting a candidate’s
failure to be available for an interview against
that candidate precludes the Corps from penal-
izing a candidate for a bad interview is illogi-
cal. The fact that the Corps does not force any
candidate to interview does not preclude it
from taking into account that a candidate who
did interview performed poorly. The law does
not prevent an employer from reacting to neg-
ative information about a candidate where it
would not have reacted had it possessed no
information at all.
The fact that the panel members’ initial
notes from the candidates’ interviews were
lost does not alter our conclusion. Lost notes,
though unfortunate, do not themselves make a
case for invidious discrimination. Likewise,
the district court did not clearly err by dis-
counting the fact that the four submitted raw
scores did not precisely match the final rank-
ings in the pre-interview evaluation. The court
could have credited Laird’s testimony that the
scores were only a rough guideline used to
create rankings, and it could have accounted
for lack of Saunders’s input in the raw scores.
Because Hollaway cites no other persuasive
reason why the district court was clearly in
error, we affirm the conclusion that the selec-
tion of Heinly instead of Hollaway was moti-
vated by her relatively poor interview perfor-
mance rather than by discriminatory animus.
VII.
As noted above, the district court went on
to discuss how it would have disposed of the
case had the Corps raised a business necessity
defense to a claim of disparate impact from the
SMP and ELP. Because we affirm the findings
that the SMP played no role in the selection
process and that the ELP was not used to
discriminate against older employees, we need
not and do not address the court’s alternate
analysis.
AFFIRMED.

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