           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                          October 2, 2007

                                     No. 07-10360                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


MAUREEN MAURER

                                                  Plaintiff-Appellant
v.

AMERICAN AIRLINES

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:05-CV-792


Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
       Maureen Maurer appeals the district court’s grant of summary judgment
in favor of American Airlines. Maurer sued American alleging claims of gender
and age discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e–2000e-17, and the Age Discrimination in Employment Act, 29 U.S.C.
§§ 621–634, respectively. Reviewing Maurer’s claims de novo, we affirm. See
Manning v. Chevron Chem. Co., 332 F.3d 874, 877 (5th Cir. 2003).


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                 No. 07-10360

      Maurer, a Senior Analyst-International Security, applied for a job posted
on American’s Career Opportunity System (COS) for the position of Manager
International Regulatory Compliance, which was posted in February 2004.
Maurer and several other applicants were interviewed and given rating scores
by a four-member panel, including David Vance, who had taken over the hiring
responsibility in April 2004 after the initial job posting. In May 2004 Maurer
received the second highest overall score after the interviews, but Vance offered
the position to a younger male, Frank Van Zanden, who had received the highest
overall score. Van Zanden ultimately withdrew his name from consideration,
and American re-posted the job on its COS in June 2004 under the new title of
Manager ISP & Compliance. Maurer reapplied for the job, and Vance followed
the same process for evaluating the candidates. Maurer again received the
second highest score after the interview process. In August 2004 Vance offered
the position to James Wilson, a younger male who had scored the highest.
Maurer filed suit against American contending that she had been improperly
passed over for promotion based on her gender and age.
      Maurer’s gender and age discrimination claims are analyzed under the
familiar burden-shifting test established by McDonnell Douglas v. Green, 411
U.S. 792, 802–04, 93 S. Ct. 1817, 1824–25 (1973). See Willis v. Coca Cola Enter.,
Inc., 445 F.3d 413, 420 (5th Cir. 2006); Machinchick v. PB Power, Inc., 398 F.3d
345, 350 (5th Cir. 2005). Under this analysis the plaintiff must present a prima
facie case of discrimination, which then shifts the burden to the defendant “to
articulate a legitimate, non-discriminatory reason for the adverse employment
action.” Willis, 445 F.3d at 420. Once the defendant comes forth with a
legitimate explanation for its action, the burden shifts back to the plaintiff to
raise a genuine issue of material fact that the non-discriminatory reason is
merely pretextual. Id.



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      American concedes that Maurer has made a prima facie case, and Maurer
concedes that American has put forth a legitimate, non-discriminatory reason
for not promoting her. Therefore, we are concerned only with the issue whether
Maurer has shown that a genuine issue of material fact exists that the stated
reason is pretextual. The plaintiff may demonstrate pretext “by showing that
the employer’s proffered explanation is unworthy of belief.” Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143, 120 S. Ct. 2097, 2106 (2000).
Further, in a failure to promote case, “a showing that the unsuccessful employee
was clearly better qualified is enough to prove that the employer’s proffered
reasons are pretextual.” Price v. Federal Express Corp., 283 F.3d 715, 723 (5th
Cir. 2002). In such a case, “the losing candidate’s qualifications must leap from
the record and cry out to all who would listen that he was vastly–or even
clearly–more qualified for the subject job.” Id. (internal quotation and citation
omitted).
      American’s stated reason for not promoting Maurer was that she was not
the most qualified applicant because she lacked proven managerial experience
and the ability to bring a different perspective and new ideas to the position from
operational experience. Maurer argues that the purported reason for promoting
others ahead of her is unworthy of belief and therefore pretextual because it was
made up after the fact to justify American’s discriminatory conduct. In support
of her argument, she contends that the two COS job postings did not expressly
require managerial experience and new ideas as prerequisites; that these
qualifications were not graded by the interviewing panel; that Vance never
discussed with her these qualifications or her lack thereof; and that Vance gave
her and Van Zanden the same overall score. She also argues that she had
substantially more years on the job in the security department. She essentially
argues that American should not have re-posted the position after Van Zanden
withdrew and that American’s purported reasons for the re-posting should not

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be believed in light of the above arguments and the fact that Vance made
minimal changes to the job description. Maurer further contends that the
district court applied the wrong standard when evaluating her claims.
      We conclude that Maurer has failed to show a genuine issue of material
fact concerning pretext. The record shows that the COS job postings stated that
extensive operational experience as a manager, or some other specific
alternative, was preferred. It is undisputed that Maurer lacked this experience.
Further, both Van Zanden and Wilson possessed this qualification. A member
of the interview panel, Pamela Jo Yourek, also testified that Vance informed the
panel before the interviews that he desired the applicant to have management
experience and the ability to bring different ideas to the position. Although
Vance scored Maurer and Van Zanden the same overall, Vance’s scoring sheet
specifically noted Van Zanden’s operational experience and scored Van Zanden
higher than Maurer in the category of leadership, which the job posting
associated with managing offsite team members. Vance also created an outline
of all the candidates’ strengths and weaknesses in which he noted that although
Maurer had the most experience in terms of years, she lacked supervisory
experience and had a questionable ability to manage people and to “think
outside the box.” The above evidence severely undermines Maurer’s assertion
that Vance’s reasons were made up after the fact.
      Maurer argues that Vance’s stated reasons for not promoting her must be
pretextual because Van Zanden was not clearly better qualified in light of the
fact that Van Zanden was being investigated internally for embezzlement, which
ultimately prompted him to withdraw his name from consideration. In other
words, Maurer argues that she was better qualified than Van Zanden because
Van Zanden was under investigation. There is no evidence, however, that Vance
knew about the internal investigation at the time he offered Van Zanden the
position, and the record indicates that Van Zanden otherwise possessed the


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requisite experience for the job. Vance’s denial of such knowledge is supported
by testimony from one of American’s internal security personnel showing that
the investigation of Van Zanden was dormant until Van Zanden was offered the
position. With respect to Wilson, Maurer adopts her earlier arguments made
with respect to Van Zanden.
      Maurer has not shown that she was “clearly better qualified” than either
Van Zanden or Wilson at the time Vance offered them the position. See Price,
283 F.3d at 723. Further, Maurer fails to show that Vance’s decision to re-post
the position after Van Zanden withdrew was pretextual or even unreasonable
given that Vance was the new hiring manager and Maurer lacked the desired
managerial and operations experience. We cannot fault American for exploring
the potential for additional candidates after the position was not filled from the
initial group of applicants. Cf. Odom v. Frank, 3 F.3d 839, 847 (5th Cir. 1993)
(noting that “judges should be reluctant to substitute our views for those of the
individuals charged with the evaluation duty by virtue of their own years of
experience and expertise in the field in question”).
      We conclude that Maurer has failed to show a genuine issue of material
fact as to whether American’s stated reasons for the employment action were
unworthy of belief or that she was clearly the better qualified candidate. See
Willis, 445 F.3d at 420; Price, 283 F.3d at 723. Accordingly, the district court’s
judgment is AFFIRMED.




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