Conner v. Celanese Ltd

* 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opinion should not be published and is not precedent except under the limited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
November 29, 2006
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 05-41487
_______________________
HAZEL CONNER,
Plaintiff-Appellant,
versus
HOECHST CELANESE CHEMICAL, INC.;
ET AL.,
Defendants,
CELANESE LTD.,
Defendant-Appellee.
On Appeal from the United States District Court
for the Southern District of Texas, Victoria Division
Docket No. 6:03-CV-49
Before JONES, Chief Judge, and DAVIS and GARZA, Circuit Judges.
PER CURIAM:*
Hazel Conner appeals a grant of summary judgment to the
defendant Celanese Ltd. (“Celanese”) on her Age Discrimination in
Employment Act (“ADEA”) claim. See 29 U.S.C. § 621 et. seq.
Although Celanese adduced legitimate, nondiscriminatory reasons for
its failure to promote Conner, Conner’s evidence that she was

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1 Lab analysts are responsible for performing analyses of routine
process samples, finished product samples, and incoming raw materials, analyzing
storage tanks and outgoing shipments, and performing tests on wastewater samples.
2 The Traffic Department was responsible for packaging and shipping
samples, as well as ensuring compliance with Department of Transportation
regulations.
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clearly better qualified than the younger employee who was promoted
is sufficient to withstand summary judgment. We therefore REVERSE
and REMAND for further proceedings.
I. BACKGROUND
Conner began working at Celanese in May 1977, and worked
in various analyst positions in the laboratory for the Technical
Department until her retirement in February 2005.1 Around May
2001, Celanese began reducing its workforce through a Voluntary
Separation Package program. Conner refused the package, although
several other employees accepted it. One of these employees,
Carolyn Griffith, was the lab’s Environmental Chemist (“EC”), a
higher-level position for which Conner had been trained.
After Griffith’s retirement, Conner’s superior, Charles
O’Rear, decided not to replace the EC position, opting instead to
distribute the EC responsibilities between three other positions,
including a new role of Environmental Specialist (“ES”). The ES
was to assume part of the EC duties, as well as some of the
responsibilities of the Traffic Department,2 which was being
dissolved. O’Rear assigned Kathy Wilson, an employee in the
Traffic Department, to the ES position. Wilson is eleven years

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younger than Conner and admitted that she had no laboratory or
analyst experience or knowledge prior to June or July of 2001 when
Celanese began training her for the ES position.
Because Wilson received the ES position, Conner remained
in her prior shift-work analyst job, which paid less and had less-
desirable hours. In addition to the lower salary, Conner claims
this caused her emotional pain, inconvenience, mental anguish, and
loss of enjoyment of life.
On April 19, 2002, Conner filed an employment
discrimination charge with the Equal Employment Opportunity
Commission, alleging violations of the Age Discrimination in
Employment Act of 1967, the Americans with Disabilities Act,
42 U.S.C. § 1981, the Texas Labor Code, and Texas common law. On
September 16, 2005, the district court granted Celanese’s motion
for summary judgment on all counts. Conner appeals the district
court’s ruling as to the ADEA claim.
II. DISCUSSION
This court reviews a district court’s grant of summary
judgment de novo, applying the same standards as the trial court.
MacLachlan v. ExxonMobil Corp., 350 F.3d 472, 478 (5th Cir. 2003).
A court should grant summary judgment when “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine

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issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” FED. R. CIV. P. 56(c).
Defendants can demonstrate the absence of a genuine issue
of material fact either by (1) submitting summary judgment evidence
negating the existence of a material element of the plaintiff’s
claim or (2) showing there is no evidence to support an essential
element of the plaintiff’s claim. See Celotex Corp. v. Catrett,
477 U.S. 317, 322-25, 106 S. Ct. 2548, 2552-54 (1986). “Credi-
bility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions,
not those of a judge. . . .” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255, 106 S. Ct. 2505, 2513 (1986).
Courts analyze a motion for summary judgment based on a
failure to promote under the ADEA using the McDonnell Douglas
three-step, burden-shifting framework. See Medina v. Ramsey Steel
Co., Inc., 238 F.3d 674, 680 (5th Cir. 2001). First, Conner must
raise a genuine issue of material fact as to each element of her
prima facie case. Celanese must then articulate a legitimate,
nondiscriminatory reason for the employment decision. Finally,
Conner must raise a genuine issue of material fact as to whether
Celanese’s proffered reason was false or merely a pretext for age
discrimination. Id.
Conner established her prima facie case by showing that
(1) she belongs to a protected class; (2) she applied for and was
qualified for a position for which applicants were being sought;

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(3) she was rejected; and (4) a younger applicant was hired. Id.
at 680-81; see also O’Connor v. Consol. Coin Caterers Corp.,
517 U.S. 308, 312, 116 S. Ct. 1307, 1310 (1996) (there can still be
an ADEA claim if the younger, successful applicant was also a
member of the protected class).
Celanese responds with two legitimate, nondiscriminatory
reasons for not promoting Conner to the ES position. First, had
Kathy Wilson not received the position, she would have been
terminated from Celanese, an outcome the company asserts it wanted
to avoid. Second, because of the recent staff reduction in
Conner’s department, Celanese asserts Conner was not considered for
the ES position because her expertise and experience were needed in
the lab.
The issue now becomes whether Conner created a material
fact issue that the proffered reasons were mere pretexts for age
discrimination. See Blow v. City of San Antonio, 236 F.3d 293, 298
(5th Cir. 2001) (“[A] plaintiff’s prima facie case, combined with
sufficient evidence to find that the employer’s asserted
justification is false, may permit the trier of fact to conclude
that the employer unlawfully discriminated.”). Conner attempts to
meet this burden by establishing, among other things, that she was
clearly better qualified than Wilson for the position. See Price
v. Fed. Express Corp., 283 F.3d 715, 723 (5th Cir. 2002) (“[A]
showing that the unsuccessful employee was clearly better qualified

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3 The Supreme Court in Ash v. Tyson Foods, Inc., 126 S. Ct. 1195
(2006), impliedly approved of the “clearly better qualified” standard and
criticized the Eleventh Circuit’s requirement that “the disparity in
qualifications [be] so apparent as virtually to jump off the page and slap you
in the face,” 126 S. Ct. at 1197, which some of our cases also used.
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is enough to prove that the employer's proffered reasons are
pretextual.”).3
The district court compared Conner’s and Wilson’s
qualifications as of April 2002, when Wilson began performing the
ES duties. Conner asserts that Wilson was effectively selected
over her in June or July of 2001, when Celanese began training
Wilson for the position, and it is that time period to which the
court should look.
Regardless of which time period we consider, however,
Conner presented substantial evidence to the trial court that she
was clearly better qualified than Wilson for the Environmental
Specialist position. While both Conner and Wilson had been
employed at Celanese for a number of years, Conner had significant
lab experience, particularly with the Environmental Chemist duties
that the ES was to perform. In fact, she had been trained
specifically for the EC position, from which many ES
responsibilities were drawn. On the other hand, Wilson’s only
experience consisted of the nine months of training Celanese
provided her. In fact, even after receiving months of training,
Wilson often had to turn to Conner with questions on how to perform
the job. Additionally, Joe Rowland, Celanese’s former training

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coordinator, admitted that he believed Conner to be more qualified
than Wilson for the position.
Although Wilson had Traffic Department experience, which
Conner lacked, traffic accounted for a very small percentage of the
ES duties. In fact, Wilson admitted that eighty-five to ninety
percent of the position consisted of environmental and analyst
tasks, for which she had no prior experience. Moreover, despite
her traffic experience, Wilson still had to attend a specialized
course after her selection for the ES position in order to become
certified in the ES’s traffic duties. Celanese cannot point to any
reason why Conner could not have attended the same course and
received the same traffic certification.
III. CONCLUSION
Although Celanese asserted legitimate, nondiscriminatory
reasons for its employment decision, Conner rebutted these reasons
by demonstrating a genuine issue of material fact whether she was
clearly better qualified for the position than the younger employee
whom Celanese hired. Summary judgment is therefore inappropriate.
REVERSED and REMANDED.

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