                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 12, 2007

                                                         Charles R. Fulbruge III
                           No. 05-20870                          Clerk


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



     *
       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this opinion should not be published and is not precedent except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.
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.


     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
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

                                            3
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


      2
           29 U.S.C. § 623.

                                    4
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



     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
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

     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
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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