     Case: 15-30129      Document: 00513155433         Page: 1    Date Filed: 08/14/2015




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

                                                                               FILED
                                    No. 15-30129                         August 14, 2015
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
SHARON CLINE,

              Plaintiff - Appellant

v.

JEFFERSON PARISH,

              Defendant - Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:14-CV-1956


Before JOLLY, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
       Sharon Cline appeals the summary judgment dismissing her age
discrimination claims against her employer, Jefferson Parish. We AFFIRM.
                                             I.
       Cline has been employed by Jefferson Parish since 1990. Her current
position is Administrative Assistant. At age 52, Cline applied for the position



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                         No. 15-30129
of Executive Assistant. The Parish selected a 28-year-old employee, Maria
Cooper, for that position. Cline filed suit against the Parish, alleging age
discrimination in violation of the Age Discrimination in Employment Act, 29
U.S.C. § 621, et seq. 1 The Parish moved for summary judgment, arguing that
Cline was not selected for the position because she lacked the technical
knowledge and skill required for the position.
        The Parish supported its motion for summary judgment with the
Executive Assistant job description and several affidavits. According to the job
description, the essential functions of the Executive Assistant position include
responsibility for the maintenance and updating of all computers, servers, and
wiring of the computer network, as well as experience in setting up Excel
spreadsheets. Amber Breaux, Cline’s immediate supervisor for the previous
eight years, stated in her affidavit that although Cline is efficient in her
current position, she lacks the technical knowledge, skill, and experience for
the Executive Assistant position.
        Randy Nicholson, Director for the Jefferson Parish Department of
Streets, stated in his affidavit that he made the decision to hire Cooper rather
than Cline, because Cooper was the strongest candidate on all levels.                       He
stated that his decision was based on the candidates’ skills, experience and
qualifications in the light of the job requirements, as well as his personal
experience in working with each of them.                   Based on his direct, personal
experience in working with Cooper, he observed her to have extensive
knowledge and technical skill in various software programs, network
maintenance, and data system development. He stated that he was also aware
that Cooper had worked closely with Richard Lamoureux, the former Executive



        1   Cline also asserted state law claims, but states in her brief that she has abandoned
them.
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                                 No. 15-30129
Assistant, and took on his duties and responsibilities when he was out on
extended leave. Nicholson also had experience working with Cline. When
reviewing drainage cost reports that she had submitted, he found them to
contain unnecessary information and to lack the information he needed. He
stated that he personally observed her limited technical skill while working
with her.
      Richard Lamoureux stated in his affidavit that he was the former
Executive Assistant and retired at age 74.        While Cooper served as his
administrative assistant, he trained Cooper on the use of the inventory and
automotive vehicle locator systems that he had developed for the Department.
He stated that he could rely on Cooper to execute tasks efficiently without
supervision or monitoring, and that she handled his duties and responsibilities
when he was on extended leave for six months.
      Cooper’s affidavit described her positions with the Jefferson Parish
Department of Streets and stated that she had extensive knowledge and skill
in all of the various software programs used by the Department.
      In opposition to summary judgment, Cline argued that the affidavits
presented by the Parish were self-serving and not “hard evidence” that Cooper
was more qualified for the Executive Assistant position. Cline asserted that
she is qualified for the position and that any shortcomings or lack of experience
resulted from the Parish’s age-based refusal to allow her the same
opportunities to train or get experience that it offered Cooper. She also
submitted a certificate reflecting training in Microsoft Excel Basics and
claimed knowledge and skill in all relevant software programs as well as
network maintenance. In addition, she submitted an unsigned statement and
various emails evidencing work that she had performed for the Parish.
      The district court granted summary judgment for the Parish. It held
that Cline failed to establish a prima facie case because she did not present
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                                  No. 15-30129
evidence that she was qualified for the position of Executive Assistant. It held
further that, even if Cline had established a prima face case, the Parish offered
a legitimate, non-discriminatory reason for selecting Cooper for the position,
and Cline failed to offer sufficient evidence to create a genuine issue of material
fact that the reason offered by the Parish is a pretext for age discrimination.
                                          II.
      We review the grant of summary judgment de novo. Reed v. Neopost
USA, Inc., 701 F.3d 434, 438 (5th Cir. 2012).          We “draw all reasonable
inferences in favor of the nonmoving party, and avoid credibility
determinations and weighing of the evidence.” Sandstad v. CB Richard Ellis,
Inc., 309 F.3d 893, 896 (5th Cir. 2002) (citing Reeves v. Sanderson Plumbing
Prods. Inc., 530 U.S. 133, 150 (2000)).
      When a plaintiff relies on circumstantial evidence to prove age
discrimination, we apply the three-part burden-shifting analysis from
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the McDonnell
Douglas framework, the plaintiff must first establish a prima facie case by
showing that (1) she was forty years of age or older at the time she was not
selected; (2) she was qualified for the position; (3) she was not selected; and (4)
either (a) a candidate outside her protected class was selected; (b) someone
younger was selected; or (c) she otherwise was not selected because of her age.
See Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005); McClaren
v. Morrison Mgmt. Specialists, Inc., 420 F.3d 457, 462 (5th Cir. 2005). If the
plaintiff establishes a prima facie case, the burden shifts to the employer to
articulate a legitimate, nondiscriminatory reason for its decision.         If the
employer meets that burden of production, the plaintiff, to withstand summary
judgment, must offer sufficient evidence to create a genuine issue of material
fact as to whether “the legitimate reasons offered by the defendant were not
its true reasons, but were a pretext for discrimination.” Squyres v. Heico Cos.,
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L.L.C., 782 F.3d 224, 231 (5th Cir. 2015) (internal quotation marks and citation
omitted).
      Cline argues that the Parish provided training to Cooper, but not to her,
based on age, and then used that training to justify its decision to hire the
younger woman.       She contends that, despite the Parish’s effort to keep her
from getting the training she needed, she is nevertheless better qualified for
the position than Cooper.
      The Parish argues that Cline did not establish a prima facie case because
she failed to show that she was qualified for the position. It asserts that the
affidavits it presented in support of its motion for summary judgment establish
that Cooper was selected for the position because of her technical training,
skill, and experience in not just comparable work, but in the actual position for
which she interviewed. Finally, the Parish argues that even if Cline did
establish a prima facie case, she failed to rebut the Parish’s non-discriminatory
reasons with sufficient evidence to permit a jury to find that age was a
determinative factor in the decision.
      Reviewing the summary judgment evidence in the light most favorable
to Cline, we conclude that the district court did not err in granting summary
judgment for the Parish. Assuming, without deciding, that Cline established
a prima facie case, she did not present evidence sufficient to demonstrate that
a material question of fact exists as to whether the Parish’s legitimate, non-
discriminatory reasons for selecting Cooper for the position were a pretext for
age discrimination. Evidence that the plaintiff is “clearly better qualified” than
the candidate selected can support a finding of pretext. See Price v. Federal
Express Corp., 283 F.3d 715, 723 (5th Cir. 2002). To show that she was “clearly
better qualified” than Cooper and raise a fact question as to whether age
discrimination was a factor in the Parish’s hiring decision, Cline bore the
burden of presenting evidence “from which a jury could conclude that ‘no
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reasonable person, in the exercise of impartial judgment, could have chosen
the candidate selected over the plaintiff for the job in question.’” Moss v. BMC
Software, Inc., 610 F.3d 917, 923 (5th Cir. 2010) (quoting Deines v. Texas Dep’t
of Protective & Regulatory Servs., 164 F.3d 277, 280–81 (5th Cir. 1999)). The
district court properly concluded that Cline’s evidence failed to create a fact
issue tending to show that she was “clearly better qualified” than Cooper for
the position of Executive Assistant. Cline’s subjective belief that age was the
motivation for the training that Cooper received from Lamoureux while
serving as his administrative assistant is insufficient to defeat summary
judgment. See Waggoner v. City of Garland, Tex., 967 F.2d 1160, 1164 (5th
Cir. 1993).
      Although she did not raise it as a separate issue, Cline complains
throughout her brief that discovery should have been allowed. She does not,
however, cite any record evidence that she requested an opportunity to conduct
discovery in the district court. See Fed. R. Civ. P. 56(d). Nor does she explain
what evidence she sought to obtain through discovery or how any such evidence
would create a genuine issue of material fact. See Krim v. BancTexas Grp.,
Inc., 989 F.2d 1435, 1443 (5th Cir. 1993).
                                      III.
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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