                     IN THE UNITED STATES COURT OF APPEALS

                                 FOR THE FIFTH CIRCUIT



                                         No. 01-30575



       GERALDINE B. WRIGHT,

                                                           Plaintiff-Appellant,

                                             versus

       COLUMBIA WOMEN & CHILDREN’S HOSPITAL,

                                                           Defendant-Appellee.


                   Appeal from the United States District Court for
                          the Western District of Lousiana
                              (USDC No. 99-CV-1893)
           _______________________________________________________
                                  March 18, 2002


Before KING, Chief Judge, REAVLEY and WIENER, Circuit Judges.

PER CURIAM:*

       Geraldine Wright appeals the district court’s decision granting summary judgment

on her claims under the Age Discrimination in Employment Act (ADEA). Because there

is insufficient evidence in the record to raise a disputed issue of material fact as to



       *
        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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
“pretext,” we AFFIRM.

I.     Background

       Geraldine Wright was born in 1942, and was 55 years old when she applied for a

management job at Columbia Women and Children’s Hospital (CWCH) in Lake Charles,

Louisiana. The hospital created the new position with the title of Diagnostic Services

Director to consolidate and manage the hospital’s Laboratory and Radiology departments

and save on management costs. The desired job qualifications advertised in a local paper

included: “Minimum 3 years management experience, clinical experience with labratory

[sic] or radiology services, experience with . . . laboratory accreditation or experience

with . . . radiology accreditation is required, . . . responsible for the overall leadership for

the laboratory and radiology departments.”

       Bill Willis, Assistant Administrator at the hospital, had primary responsibility for

deciding whom to hire for the position. Wright applied for the job. She had worked at

CWCH since 1985, as a “Staff Technologist-Generalist/Blood Bank Supervisor,” a

position for which Willis had hired her when he was Laboratory Director. Her staff

technologist position gave her lab experience, and she had multiple lab accreditations.

Wright concedes that her blood bank supervisor position did not involve real management

responsibilities, but was simply the title of a job that was necessary for hospital

accreditation purposes. She did, however, have management experience as a laboratory

manager at Children’s Clinic in Lake Charles from 1980-1983.

       Willis did not interview Wright for the new position, and instead hired 28 year old

                                               2
Chris Brown from outside the hospital. Willis claims he had some conversations with

Wright that cast doubt on whether she agreed that merging the positions was a good idea,

and that led him to conclude she was preoccupied with the job’s pay. Wright claims

these conversations did not take place. Willis also maintains that Brown had superior

communication and leadership skills, and that he had received complaints about Wright

from hospital doctors, so he thought she would not be able to work with doctors well

enough to lead the department. He also questioned her commitment to the hospital based

on her history of part-time work. At the time the position opened, Wright was working

mainly weekends at the hospital; she worked as an insurance agent during the week.

There is no evidence or argument that Willis or anyone at Columbia ever expressed overt

age-based hostility. The record contains no evidence of Brown’s education or prior work

experience.

       The district court granted summary judgment on Wright’s claims of age

discrimination. The court found that she failed to prove she met the advertised

qualifications, because she did not have three total years of management experience, and

the experience she did have was too far in the past to be relevant. He also found that

even if she had demonstrated that she were qualified for the job, she had not submitted

sufficient evidence to show that Columbia’s proffered non-discriminatory justifications

for hiring Brown were pretextual.



II.    Analysis

                                            3
       Motions for summary judgment are reviewed de novo, reviewing the record under

the same standards applied by the district court.1 To grant summary judgment, the court

must be convinced that there is no “‘genuine issue as to any material fact’ and that the

movant is entitled to judgment as a matter of law,”2 as demonstrated by the “pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any.”3 “Doubts are to be resolved in favor of the nonmoving party, and any

reasonable inferences are to be drawn in favor of that party.”4

       In ADEA cases, the Supreme Court’s McDonnell-Douglas burden-shifting

framework5 is employed at summary judgment to determine whether the plaintiff has

raised a disputed issue of material fact on the existence of intentional discrimination.

This test “established an allocation of the burden of production and an order for the

presentation of proof in . . . discriminatory-treatment cases.”6 First, the plaintiff must

establish a prima facie case of discrimination. Next, the defendant must produce

evidence demonstrating a legitimate, non-discriminatory reason for the adverse

employment action. Finally, the plaintiff must bear the burden of producing sufficient

       1
           Walker v. Thompson, 214 F.3d 615, 624 (5th Cir. 2000).
       2
           Id.
       3
           FED. R. CIV. P. 56(c).
       4
           Evans v. City of Houston, 246 F.3d 344, 348 (5th Cir. 2001).
       5
           McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).
       6
        Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000) (quoting St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993)).

                                                 4
evidence to allow a jury to conclude that the defendant’s reason was pretextual, or not

credible.7

           At the first step of the analysis, we assume without deciding that Wright made a

prima facie case that she was minimally qualified for the position at issue. A prima facie

showing of discrimination consists of a showing that (1) the employee is a member of the

protected class; (2) she was qualified for the position sought; (3) she was rejected; and (4)

the job was given to someone outside the protected class.8 The district court found that

Wright was not qualified for the position sought because she had less than three total

years of management experience as required by the advertisement, and because it thought

her experience to be so far in the past as to be irrelevant. We need not determine whether

strict compliance with objective advertised hiring criteria is necessary to make a prima

facie case that one is qualified for the position,9 because Wright has failed in any event to

show that CWCH’s reasons for hiring Brown were pretextual.

       CWCH, through Willis’s declaration, has met its burden of supplying non-

discriminatory reasons for its decision to hire Brown instead of Wright. We thus resolve

this appeal at step three of the McDonnell-Douglas framework. “[W]here there is no

direct evidence of discrimination, the plaintiff needs to present sufficient evidence that

       7
           See id. at 142-43, 147.
       8
           See Bennett v. Total Minatome Corp., 138 F.3d 1053, 1060 (5th Cir. 1998).
       9
         See EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1193 (10th Cir. 2000);
Anderson v. Zubieta, 180 F.3d 329, 342 (D.C. Cir. 1999) (both determining that only
qualifications truly necessary to perform the job should be considered at the prima facie stage).

                                                 5
[the defendant’s] proffered reason is false.”10

       In a failure to promote or hire case, the typical way for a plaintiff to prove pretext

is to show that she was “clearly better qualified than the employee selected for the

position at issue. . . . [T]he bar is set high for this kind of evidence because differences 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.”11

       In the present case, Wright has failed to present the court with any evidence that

would us allow to compare Wright’s qualifications with Brown’s. Aside from purely

conclusory statements in Wright’s affidavit, not based on any established personal

knowledge, there is no evidence regarding Brown’s certifications to perform lab work,

and no evidence describing his education or prior work experience. Conclusory

statements not based on personal knowledge do not create a disputed issue of material

fact.12 Instead, CWCH emphasized through Willis’s declaration a belief that Brown


       10
            Crawford v. Formosa Plastics Corp., 234 F.3d 899, 904 (5th Cir. 2000).
       11
           Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 357 (5th Cir. 2001) (internal
citations and quotations omitted).
       12
           Melton v. Teachers Ins. & Annuity Ass’n of America, 114 F.3d 557, 559 (5th Cir.
1997). Wright argues that the CWCH did not file a motion to strike these statements in the
district court. However, the district court granted the motion for summary judgment the same
day CWCH filed its Reply brief objecting to Wright’s conclusory statements about Brown’s
qualifications. The district court plainly did not believe that the statements in Wright’s affidavit
constituted admissible evidence, or the sort of specific evidence needed to create a disputed issue

                                                 6
displayed superior communication and leadership skills during his interview, as well as

through his references, qualities that the hospital weighted heavily.13 Certainly we might

speculate as to the significance of CWCH’s failure to put evidence of Brown’s objective

qualifications into the record, but the burden was on Wright to supply this evidence since

she would bear the burden of proof on this point at trial.

       CWCH has also proffered as a reason for hiring Brown that it had received

complaints from doctors about Wright’s past performance, and that this cast doubt on her

ability to successfully interact with doctors as part of the job’s management

responsibilities. The plaintiff “must put forward evidence rebutting each of the

nondiscriminatory reasons the employer articulates.”14 Although Wright claims no one

ever told her about these complaints before this lawsuit, she has put forth no evidence to

show that they did not occur.15 Wright’s affidavit does dispute CWCH’s assertions that


of material fact under Rule 56, although it is not clear that it had received the Reply brief before
reaching its decision. CWCH continues to urge in its brief on appeal that Wright’s statements
about Brown’s experience were conclusory and made without personal knowledge, an argument
that is well-taken and to which Wright has no substantive response.
       13
           We are mindful that subjective qualifications particularly lend themselves to abuse in the
discrimination context, and that it is difficult to refute subjective assessments of this sort. Medina
v. Ramsey Steel Co., 238 F.3d 674, 681 (5th Cir. 2001). Comparative evidence about objective
qualifications is all the more important when a decision is justified entirely or in part with
subjective reasons.
       14
         Ramirez v. Landry’s Seafood Inn & Oyster Bar, 280 F.3d 576, 577 (5th Cir. 2002)
(emphasis in original and citations omitted).
       15
          Wright is not correct that Willis’s statement about complaints from doctors is hearsay.
Evidence of the complaints is not being offered to show the truth of the content of the complaints,
but rather to show that Willis thought Wright would have trouble interacting with doctors, a
necessary function of the new management position.

                                                  7
she made comments questioning the value of the newly created position and that she was

preoccupied with the job’s pay. But she has not adduced sufficient evidence to

demonstrate that the other non-discriminatory reasons offered by the hospital are

pretextual.

       Finally, we consider Wright’s argument that summary judgment should have been

denied on the basis of an EEOC determination letter expressing an opinion that age

discrimination may have occurred in this case. Although the Fifth Circuit has previously

ruled such letters to be admissible,16 this particular EEOC letter does not create a disputed

issue of material fact on the issue of pretext. “Unsupported allegations or affidavit or

deposition testimony setting forth ultimate or conclusory facts and conclusions of law are

insufficient to defeat a motion for summary judgment.”17 The EEOC letter states:

       The successful applicant did not meet the minimum qualifications for the position
       while the Charging Party did meet the qualifications. The evidence shows that the
       reasons given by the Respondent for not selecting the Charging Party were
       subjective and Respondent gave no evidence to support them. The evidence shows
       that the Respondent did not interview any of the female applicants. . . . Based on
       the evidence, there is reasonable cause to believe that the Charging Party was
       discriminated against because of her age in violation of the [ADEA] and her sex in
       violation of [Title VII].

This determination letter contains only the broadest legal and factual conclusions, does

not identify the qualifications taken into account by the EEOC, and does not outline the


       16
         Lindsey v. Prive Corp., 161 F.3d 886, 894 (5th Cir. 1998). Lindsey did not explain
whether such letters are inherently admissible or subject to the balancing requirements of Rule
403. CWCH concedes admissibility, so we need not reach this issue.
       17
            Clark v. America’s Favorite Chicken Co., 110 F.3d 295, 297 (5th Cir. 1997).

                                                 8
nature of the investigation conducted. Wright has not included any part of the EEOC’s

investigative file in the record. The EEOC’s conclusory opinion, unsupported by any

evidence in the summary judgment record, is not sufficient to defeat the motion for

summary judgment.

III.   Conclusion

       Wright has not placed sufficient evidence in the record to refute as pretextual the

hospital’s proffered non-discriminatory reasons for hiring Brown instead of Wright.

Despite impassioned assertions on these matters, we are left with no evidence as to

Brown’s objective qualifications and no evidence to refute several of the hospital’s

reasons for making the decision to hire Brown. Therefore, summary judgment was

properly granted on Wright’s ADEA claim.

       AFFIRMED.




                                             9
