Jacques v. Sierra Pacific Power Co.

872 F. Supp. 776, 1994 U.S. Dist. LEXIS 19298, 66 Fair Empl. Prac. Cas. (BNA) 1583, 1994 WL 738455
CourtDistrict Court, D. Nevada
DecidedDecember 5, 1994
DocketNo. CV-N-93-404-ECR
StatusPublished

This text of 872 F. Supp. 776 (Jacques v. Sierra Pacific Power Co.) is published on Counsel Stack Legal Research, covering District Court, D. Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jacques v. Sierra Pacific Power Co., 872 F. Supp. 776, 1994 U.S. Dist. LEXIS 19298, 66 Fair Empl. Prac. Cas. (BNA) 1583, 1994 WL 738455 (D. Nev. 1994).

Opinion

MEMORANDUM AND ORDER GRANTING SUMMARY JUDGMENT

EDWARD C. REED, Jr., District Judge.

Robert Jacques has worked for the Sierra Pacific Power Company since 1960. In mid-1992, a supervisor’s position came open and Jacques applied for the job. He was fifty-six years old at the time. The job went to another Sierra Pacific employee, Tim Berg, who was about twenty years younger. Jacques believes he was denied the promotion because of his age and has brought suit under the federal Age Discrimination in Employment Act (ADEA). To his federal claim, Jacques appends both a claim made under Nev.Rev.Stat. § 613.330 — a state statute essentially identical to ADEA — and common law claims for breach of contract and “bad faith” (i.e., tortious breach of contract). (Jacques’ complaint also alleged intentional and negligent infliction of emotional distress, but he now concedes that these claims cannot be proved and does not pursue them. See Opposition to Motion for Summary Judgment, at 8.) The case is here on Sierra Pacific’s motion for summary judgment.

The facts are not in dispute. In March 1992, Sierra Pacific advertised “in-house” a job opening for “Supervisor — Standards and Material Development.” About ten employees, including Jacques, applied for the position. See Sierra Pacific’s Memorandum in Support of Motion for Summary Judgment (“Motion for Summary Judgment”), at 2. Ed Anderson, Sierra Pacific’s Director of Electric Systems Engineering (and the person to whom the new supervisor would report), selected certain applicants for interviews; Jacques was not among them. See Deposition of Edward Anderson, Exh. 6 to Motion for Summary Judgment (“Anderson Dep.”), at 31. Jacques and other employees complained about the conduct of the selection process; Jacques, in particular, believed he should have been interviewed. Id. at 33-34; see also Deposition of Robert Jacques, Exh. 4 to Motion for Summary Judgment (“Jacques Dep.”), at 10-11.

Anderson and other Sierra Pacific managers then decided to formalize the process by which applicants for the supervisor position were selected for interviews, id. at 33, and to begin the selection process anew. Anderson drew up an “Applicant Screening Form,” listing ten important criteria for the job. Age was not a criterion, nor was seniority.1 An interviewing team was assembled, composed of four individuals: Anderson; George Smith, Sierra Pacific’s Director of Customer Services Engineering; Larry Holmes, the Director of Central District Customer Operations; and Barbara Giovanetti, a member of Sierra Pacific’s Human Resources Department. Deposition of Robert Aramini, Exh. 5 to Motion for Summary Judgment (“Aramini Dep.”), at 19-21. There were twelve applicants for the position. Id. at 21. Each member of the interviewing team independently reviewed each applicant’s written submissions and assigned that applicant a numerical score with respect to each category on the screening form. See “Applicant Screening Forms,” Motion for Summary Judgment, Exh. 3. On that basis, six applicants, including Jacques, were selected for interviews. Id. at 18-24.

The interviews were then conducted. Again, each member of the interviewing team independently rated the applicants, this time by filling out an “Interviewer’s Rating Sheet” for each applicant. The “Interviewer’s Rating Sheet” listed eight categories in which each applicant was to be rated on a five-point scale.2 See Motion for Summary Judgment, [778]*778Exh. 2. Again, neither age nor seniority was a criterion. Each “Interviewer’s Rating Sheet” also contained a space at the bottom for the interviewer’s comments.

When the candidates’ scores based on their interviews were totalled, Tim Berg was ranked first. He received the highest score of any candidate from Mr. Anderson and Ms. Giovanetti, the second-highest score from Mr. Holmes (who ranked Jacques first), and tied for the highest score (with another, unidentified candidate) in Mr. Smith’s estimation. See Motion for Summary Judgment, Exh. 2. The numerical scores were not dis-positive; Berg was awarded the job only after the members of the interviewing team discussed the matter and determined that there was a consensus that Berg was the best candidate. Anderson Dep., at 47.

Like the facts, the applicable law is not in dispute. It is clear that a decision not to promote an employee because of the employee’s age can constitute a violation of ADEA. See Merrick v. Farmer’s Ins. Group, 892 F.2d 1434 (9th Cir.1990). It is also clear that the McDonnell Douglas analytical framework developed under Title VII applies to ADEA as well, id. at 1436; see also Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104 (9th Cir.1991), and that the “ultimate burden of persuasion” in an ADEA case therefore remains, at all times, on the plaintiff. See St. Mary’s Honor Center v. Hicks, — U.S. -, -, 113 S.Ct. 2742, 2749 (1993).

Jacques has, Sierra Pacific concedes, made out a prima facie case. See Motion for Summary Judgment, at 6. Sierra Pacific, on the other hand, has articulated a legitimate, nondiscriminatory reason for its decision, i.e., that Berg was a better candidate for the job. The McDonnell Douglas framework therefore “simply drops out of the picture,” id., and the relevant question, on summary judgment, is whether Jacques has produced evidence, sufficient to create a triable question, that age was a factor in Sierra Pacific’s decision not to promote him. He has not, and summary judgment must therefore be granted to Sierra Pacific.

This is made clear by a review of the documents and deposition testimony submitted by both parties. A review of both the “Applicant Screening Forms” and the “Interviewer’s Rating Sheets,” Exhs. 2 and 3 to Motion for Summary Judgment, reveals that neither age nor seniority was expressly listed, on either form, as a criterion for evaluation.

The written comments on the “Interviewer’s Rating Sheets” contain no mention of age or anything similar. With respect to Jacques, Mr. Holmes wrote “[sjtrong technical field background — open question as to how the future would be handled. Responses indicated continuation of previous practices.” Mr. Smith felt that Jacques “[d]em-onstrated strong field/construction orientation, minimal indication of planning/financial considerations.” ' Ms. Giovanetti took extensive notes but apparently made no comments expressing her own opinion of Jacques, and Mr. Anderson’s rating sheet for Jacques contained no written comments. See Exh. 2 to Motion for Summary Judgment.

Jacques himself, in a deposition, was unable to give any foundation for his belief that he was a victim of age discrimination. The following colloquy is the most relevant:

Q: What makes you think that age, your age had anything to do with the decision to choose Mr. Berg for the position of Supervisor, Standards and Material Development?
A: Three and a half years in the job, commendable MPA evaluations from the former manager and Mr. Anderson.
The three people that filled the job after-wards are all younger than I am.
Basically that’s it. That is all I can think of right now at this present moment.

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872 F. Supp. 776, 1994 U.S. Dist. LEXIS 19298, 66 Fair Empl. Prac. Cas. (BNA) 1583, 1994 WL 738455, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jacques-v-sierra-pacific-power-co-nvd-1994.