                                                                                        United States Court of Appeals
                                                                                                 Fifth Circuit
                                                                                               F I L E D
                                                       In the                                 October 19, 2006
                         United States Court of Appeals                                    Charles R. Fulbruge III
                                          for the Fifth Circuit                                    Clerk
                                                 _______________

                                                  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,                                Carol Hollaway appeals a judgment, after a
  Circuit Judges.                                           bench trial, that is based on a finding that she
                                                            did not prove by a preponderance of the evi-
JERRY E. SMITH, Circuit Judge:*                             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
   *
      Pursuant to 5TH CIR. R. 47.5, the court has deter-    stated, we affirm.
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.
                       I.                              manager in the Project and Programs Division;
   Hollaway was a long term employee of the            and Peter Shaw, an employee in the Corps’s
Corps. She was hired as a GS-9 level social            Southwest Division. Laird chaired the panel.
scientist in 1979 and rose to the rank of GS-12
in 1984; she remains a GS-12 level employee.               The panel received nineteen applications af-
After seeing an advertisement posted in Janu-          ter initial screening. Laird instructed the pan-
ary 2002 for the position of GS-13 Plan For-           elists to evaluate the applications according to
mulation Specialist, Hollaway applied for the          five criteria: (1) demonstrated expert knowl-
position but was not selected. Instead, the sel-       edge of procedures and policies associated
ection panel chose Robert Heinly, a younger,           with navigation, flood control and ecosystem
less experienced employee, to fill the role.           restoration projects; (2) demonstrated experi-
Hollaway sued under the Age Discrimination             ence in providing plan formulation and policy
in Employment Act (“ADEA”), 29 U.S.C.                  compliance guidance; (3) ability to provide
§§ 621 et seq., alleging that she had suffered         authoritative advice on water resources plan-
unlawful disparate treatment in the Corps’s            ning studies during planning, design and con-
selection process. See § 623(a)(1); Hazen Pa-          struction phases of complex projects;
per Co. v. Biggins, 507 U.S. 604 (1993). Af-           (4) demonstrated experience directing matrix
ter a two-day bench trial, the district court          project delivery planning teams; and (5) dem-
found that the panel that had evaluated candi-         onstrated experience in providing technical re-
dates did not consider applicants’ ages, so the        views of plan development, evaluations and
court entered a take-nothing judgment.                 recommendations.

   The parties agreed that Hollaway was over              Each panelist was to score each applicant
forty years old at the time of the events in           on a twenty-point scale in each category and
question and was thus a member of a protect-           submit his total scores for each applicant to the
ed class under the ADEA. They also agreed              rest of the panel; all panelists except Saunders
that, in her more than twenty-eight years of           complied with this directive. Saunders, for
service with the Corps, Hollaway had been an           reasons that remain murky, did not submit his
exemplary employee who had been nationally             scores. The panel then used the scores as a
recognized for her planning work and had nev-          guideline to establish a rank order of appli-
er been reprimanded.                                   cants qualified for the position. Although the
                                                       summed raw scores indicated that Hollaway
   The court found that the Corps had fol-             would have been alone in second place, twenty
lowed its standard practice in appointing a sel-       points ahead of Heinly (who was third), the
ection panel to evaluate applications. Appli-          panel listed them as tied for second behind
cants were first screened for minimum thresh-          Robert Van Hook, an older and more experi-
old qualifications by the Corps’s Civilian Per-        enced applicant than was Hollaway. Laird
sonnel Operations Center, then referred to the         indicated that the ranking was done by con-
selection panel, which had five members:               sensus of the panel rather than strict summa-
Lloyd Saunders, Division Chief for the Plan-           tion of the panelists’ raw scores for each
ning, Environmental and Regulatory Division;           applicant.
Richard Medina, Chief of the Planning and En-
vironmental Branch; Diana Laird, Chief of the             The panel decided to interview the top six
Planning Section; Dalton Krueger, a project            candidates and to weigh their interview per-

                                                   2
formance equally with the panel’s pre-inter-               In January2002, the Southwestern Division
view evaluation of the qualifications of each           of the Corps, in which the selection process
applicant. Each candidate was asked a series            for the Plan Formulation Specialist position
of identical questions in the interview; each in-       took place, promulgated its “Emerging Lead-
terview lasted fifteen to thirty minutes.               ers Program” (“ELP”), the object of which
                                                        was “to provide individuals who have exhib-
   Following the interviews, the panel ranked           ited leadership potential at the GS-09 through
the candidates’ interview performances. Hein-           GS-12 . . . levels, the opportunity to further
ly was ranked second behind Janelle Stokes;             develop and refine their leadership skills.” The
Hollaway was ranked last. According to panel            program was open to employees of all ages.
members’ testimony, Hollaway was curt and               Heinly was a member of the program, but
blunt during her interview; it appeared to the          Hollaway was not.
panel that she did not make any effort to an-
swer the questions. Hollaway admitted at trial                                 III.
that she was put out by the interview because               Hollaway challenges the finding that age
she thought the questions were not germane to           was not a factor in the Corps’s selection pro-
the position and that she probably had given            cess. We review findings of fact for clear er-
short answers.                                          ror. Couch v. Cro-Marine Transp., Inc., 44
                                                        F.3d 319, 327 (5th Cir. 1995). Hollaway also
   The panel combined its pre-interview eval-           challenges some of the legal analysis in the dis-
uations with its impressions from the inter-            trict court’s dicta. We review conclusions of
views and determined that Heinly and Van                law de novo. Randel v. United States Dep’t of
Hook were tied for the top ranking; Stokes              Navy, 157 F.3d 392, 395 (5th Cir. 1998). The
ranked third and Hollaway fourth. The panel             district court’s factual findings are sufficient to
selected Heinly.                                        support its disposition, so we do not reach its
                                                        legal analysis of the alternate, hypothetical
                       II.                              situation presented in its dicta.
   The selection process for this specific posi-
tion took place against a background of con-               We will overturn a factual finding for clear
cern in the Corps about the retention and fu-           error only if we are left “with the definite and
ture performance of its aging workforce. In             firm conviction that a mistake has been made.”
documents released in September 2002 and                Couch 44 F.3d at 327. We are left with no
January 2003, the Corps described a Strategic           such conviction here. The factual findings are
Management Plan (“SMP”) that noted, inter               amply supported in the record.
alia, that “[w]e are faced with an aging work-
force and a small new generation of workers.                                  IV.
In 1989, approximately 54 percent of the                   A plaintiff may prove an ADEA claim
workforce was more than 40 years of age; in             through direct or circumstantial evidence or a
May 2001, 73 percent were in that category.”            combination of the two. Sandstad v. CB Rich-
The plan noted that “measures, such as educa-           ard Ellis, Inc., 309 F.3d 893, 896 (5th Cir.
tion level, length of service, age, awards, and         2005). Where a plaintiff produces direct evi-
diversity will also be used to measure success          dence that “discriminatory animus played a
at maintaining a high quality workforce”                role in the decision at issue,” the defendant
(emphasis added).                                       must either refute the evidence or prove that it

                                                    3
would have taken the same action in the ab-             superior qualities he demonstrated during the
sence of discriminatory animus. Id.                     hiring process.

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

                                                    4
                      V.                               who had not participated in the ELP had been
   Hollaway cites the promulgation of the              promoted to the GS-13 level. These findings
SMP and ELP as direct evidence of discrimi-            are amply supported in the record and reason-
nation. The district court found this evidence         ably serve to justify the district court’s conclu-
of discrimination unpersuasive. It credited            sion that the Corps did not use the ELP to dis-
Laird’s testimony that the panel was unaware           criminate against Hollaway. We therefore af-
of the SMP when it made its hiring decision            firm the determination that Hollaway’s direct
and that the SMP played no role in the panel’s         evidence of discrimination was insufficient to
selection process. It also found that the ELP          establish that discriminatory animus played a
was open to employees of any age and was not           role in the Corps’s employment decision.
used in practice as a tool to discriminate
against older employees. These findings are                                    VI.
not clearly erroneous.                                     The district court found that Hollaway had
                                                       met the McDonnell Douglas requirement for
   The district court’s credibility determina-         establishing a prima facie case of employment
tions with regard to testifying witnesses are          discrimination using circumstantial evidence,
entitled to particular deference by this court,        and the Corps does not challenge that conclu-
and there is no reason to overturn them. See           sion. Instead, the Corps argues here, as it did
FED. R. CIV. P. 52(a). It is not beyond belief         in the district court, that her poor performance
that panel members making a hiring decision in         in the interview was the reason for its decision
April 2002 were not aware of a management              not to hire her. As noted above, Hollaway
plan originating in central headquarters and           contends this is pretext; she believes that the
documented in the record by materials from             weight given to the interview was merely an
September 2002 and January 2003. Hollo-                excuse to hire a younger and more personable
way’s mere implication that the panel members          candidate for a technical position in which in-
were lying about the role of the SMP is insuffi-       terpersonal skills were relatively insignificant.
cient to warrant reversal. Hollaway’s brief,
though full of imputations about the illegality            The panel members’ testimony supplies an
of the plan, supplies no reason to believe that        adequate ground to affirm the conclusion that
the findings concerning the plan’s irrelevance         Hollaway performed poorly in the interview.
to the hiring decision are clearly erroneous.          The most obvious flaw in her argument re-
                                                       garding the relative weight given to the inter-
    Similarly, rather than pointing to any spe-        view is that it ignores the fact that an interview
cific parts of the record indicating that the          is not merely a means by which to test verbal
findings regarding the ELP are clearly errone-         and interpersonal skills. Interviews may mea-
ous, Hollaway just reargues her case from the          sure candidates’ enthusiasm for applying their
trial. We see no justification, however, for           skills to a particular job, their ability to get
overturning the finding that the ELP was not           along with the specific group of people with
used to discriminate against older workers in          whom they will be working, and their judg-
general or Hollaway in particular.                     ment in the midst of at least one stressful
                                                       situation (the interview itself).
  The district court found that the ELP was
open to anyone of any age working in the                   The district court did not clearly err when
Corps and that workers over the age of forty           it determined that the Corps’s choice to con-

                                                   5
duct a job interview as part of the hiring pro-        defense to a claim of disparate impact from the
cess, and to weigh that interview equally with         SMP and ELP. Because we affirm the findings
the cumulation of all other factors deemed rel-        that the SMP played no role in the selection
evant to the position, was a reasonable and ty-        process and that the ELP was not used to
pical exercise of the panel’s discretion rather        discriminate against older employees, we need
than a pretextual feint to mask invidious dis-         not and do not address the court’s alternate
crimination. Hollaway’s contention that the            analysis.
Corps’s policy against counting a candidate’s
failure to be available for an interview against          AFFIRMED.
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

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