Graise v. Entergy Operations

*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this opinion should not be published and is not precedent except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 28, 2006
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 05-60966
JOHNNIE EARL GRAISE,
Plaintiff-Appellant
VERSUS
ENTERGY OPERATIONS, INC.,
Defendant-Appellee
Appeal from the United States District Court For the Western
District of Louisiana, Lake Charles Division
5-04-CV-179
Before JONES, Chief Judge, and DAVIS and GARZA, Circuit Judges.
PER CURIAM*
Plaintiff-appellant in this age discrimination suit appeals
the district court’s grant of summary judgment in favor of
Defendant-appellee Entergy Operations, Inc. Because Appellant
fails to demonstrate the existence of a genuine issue of material

-- 1 of 6 --

1Grand Gulf is owned by EOI. Security for the facility is
provided by two separate functional divisions: (1) Security
Operations (“Security Ops”) and (2) Access Authorization/Fitness
for Duty (“AA/FFD”).
2Security Ops is responsible for external threats, i.e.
securing the physical sites of EOI’s nuclear plants.
3AA/FFD secures Grand Gulf from threats from within and has
no responsibility for the security of the nuclear plant.
2
fact, we AFFIRM.
I. Background
The Appellant Johnnie E. Graise (“Graise”) filed this
employment discrimination suit alleging that he was denied a
promotion because of his age, which was 52 at the time of the
promotion decision, in violation of the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. Graise met the
minimum qualifications and interviewed for the position, but
Entergy Operations, Inc. (“EOI”) gave the promotion to Gregory
Brown (“Brown”) who was 43 at the time.
Graise worked at Grand Gulf Nuclear Power Station (“Grand
Gulf”)1 in physical plant security from 1982 until January of 1995.
In 1995, Graise voluntarily transferred out of Security Ops2 and
into the AA/FFD division.3 In May 2003, Graise sought a promotion
to the position of Plant Superintendent at EOI’s Grand Gulf nuclear
plant. This position is in the Security Ops division. The manager
of Security Ops, Claudia Parker, was the hiring manager for this
position and is the individual Graise claims discriminated against
him. For Graise, the promotion would have been a jump over the

-- 2 of 6 --

3
Supervisor’s position to the Superintendent’s position, a jump of
two levels. The job required a high school diploma or equivalent
and eight years of experience.
Three applicants met the minimum qualifications. One
applicant withdrew his application, leaving only Graise and Brown.
Both men participated in the Behavioral Interviewing Process
(“BIP”) which requires use of pre-determined, behavior-based
interview questions to determine how candidates have dealt with
actual situations in the past. Based on both candidates’ responses
to the Behavioral Interview questions, and the relevant experience
of both individuals, all three members of the interviewing panel,
which included Parker, agreed that Brown was the better candidate
for the Superintendent position.
Graise filed suit against EOI alleging that he had been
wrongfully denied the promotion under the ADEA. EOI then moved for
summary judgment. The district court granted EOI’s motion for
summary judgment on grounds that Graise’s proffered evidence on
pretext failed to suggest a genuine issue of material fact.
II. Discussion
We review a district court’s grant of summary judgment de
novo. E.g., Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902
(5th Cir. 2000). Summary judgment is appropriate if “the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is

-- 3 of 6 --

4
no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106
S. Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). On a motion for summary
judgment, a court must review the facts in the light most favorable
to the non-movant. Walker v. Thompson, 214 F.3d 615, 624 (5th Cir.
2000). In an ADEA case, “[t]he ultimate determination . . . is
whether, viewing the evidence in a light most favorable to the
plaintiff, a reasonable factfinder could infer discrimination.”
Crawford, 234 F.3d at 902.
Where, as here, the plaintiff has failed to produce any direct
evidence of discrimination, this court applies the well-known
McDonnell Douglas burden-shifting framework. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d 668
(1973). EOI did not dispute below and does not now dispute that
Graise properly established a prima facie case of discrimination.
In response, EOI has articulated two nondiscriminatory reasons for
promoting Brown rather than Graise to the Superintendent position:
(1) Brown had superior experience in plant security and (2) Brown
scored higher on the Behavioral Interview test.
Graise can prove pretext by providing evidence that each of
EOI’s two reasons is false and that age discrimination is the real
reason. Wallace v. Methodist Hospital System, 271 F.3d 212, 220
(5th Cir. 2001). Graise has provided this court with no summary

-- 4 of 6 --

4Recent experience in physical plant security is important because of the many changes in
security procedures and techniques made since 9/11.
5
judgment evidence demonstrating that the reasons EOI gave for its
decision were false.
Graise also attempts to show pretext by demonstrating that he
was “clearly better qualified” than Brown for the Superintendent
position because Graise had a college degree and superior
experience. “[D]ifferences in qualifications are generally not
probative evidence of discrimination unless those disparities are
of such weight and significance that no reasonable person, in the
exercise of impartial judgment, could have chosen the candidate
selected over the plaintiff for the job in question.” Celestine v.
Petroleos de Venezuella SA, 266 F.3d 343, 357 (5th Cir. 2001).
(internal quotation marks and citation omitted). Graise’s “clearly
better qualified” argument fails because, inter alia, it is
undisputed that Brown had superior experience in physical plant
security post 9/11,4 and the Superintendent position required only
a high school diploma or equivalent and not a college degree. The
district court properly concluded that Graise’s evidence failed to
create a fact issue tending to show that he was “clearly better
qualified.”
In sum, no genuine issue of material fact exists. The
district court correctly held that Graise failed to make a showing
that the reasons of EOI for failing to promote him was a pretext

-- 5 of 6 --

6
for discrimination. We therefore affirm the judgment of the
district court.
AFFIRMED.

-- 6 of 6 --