Cook v. Univ. of Kan.

CYNTHIA G. COOK, Plaintiff,

v.UNIVERSITY OF KANSAS and OLA FAUCHER, Defendants.

CIVIL ACTION No. 11-2184-KHV

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

Dated: October 4, 2012

MEMORANDUM AND ORDER

Cynthia Cook brings suit against Ola Faucher, in her capacity as the Director of Human Resources/Equal Opportunity at the University of Kansas, for age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634. Plaintiff asserts that because of her age, the University did not hire her as an Information Specialist I.¹ Defendant argues that the University did not select plaintiff for the position because other candidates possessed the best combination of supervisory and technical skills, and denies discriminatory intent. This matter comes before the Court on (1) Defendant Ola Faucher's Motion For Summary Judgment (Doc. #45) filed June22, 2012,² and (2) Plaintiff's Motion For Leave To File A Surreply Memorandum In Opposition To Defendant's Motion For Summary Judgment (Doc. #57) filed August 20, 2012. As a preliminary matter, the Court sustains plaintiff's motion for leave to file a surreply. For the following reasons, the Court sustains defendant's motion.

Legal Standards

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir. 1993). A "genuine" factual dispute is one "on which the jury could reasonably find for the plaintiff," and requires more than a mere scintilla of evidence. Liberty Lobby, 477 U.S. at 252. A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Id. at 248.

The moving party bears the initial burden of showing that there are no genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Justice v. Crown Cork & Seal Co., 527 F.3d 1080, 1085 (10th Cir. 2008). Once the moving party meets its burden, the burden shifts to the nonmoving party to show that a genuine issue remains for trial with respect to the dispositive matters for which she carries the burden of proof. Nat'l Am. Ins. Co. v. Am. Re-Ins. Co., 358 F.3d 736, 739 (10th Cir. 2004); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).As to these matters, the nonmoving party may not rest on her pleadings but must set forth specific facts. Fed. R. Civ. P. 56(e)(2); Matsushita, 475 U.S. at 586-87; Justice, 527 F.3d at 1085. Conclusory allegations not supported by evidence are insufficient to establish a genuine issue of material fact. Jarvis v. Potter, 500 F.3d 1113, 1120 (10th Cir. 2007); see Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 853 (10th Cir. 1996).

When applying this standard, the Court must view the factual record in the light most favorable to the party opposing the motion for summary judgment. Duvall v. Ga.-Pac. Consumer Prods., L.P., 607 F.3d 1255, 1260 (10th Cir. 2010); see Ricci v. DeStefano, 129 S. Ct. 2658, 2677 (2009). Summary judgment may be granted if the nonmoving party's evidence is merely colorable or is not significantly probative. Liberty Lobby, 477 U.S. at 250-51. Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.

Facts

The following facts are stipulated, uncontroverted, deemed admitted or construed in the light most favorable to plaintiff.

The University of Kansas hired plaintiff in June of 1980 as a Secretary I. Plaintiff later moved to the Customer Service Center, and as of January of 2009 plaintiff held a Technology Support Tech Senior position in the Information Technology Department. Her position had the working title of "Information Specialist - Customer Service Center (CSC)."

In the fall of 2008, the University created a committee to begin developing a new structure for the CSC. Ann Ermey, the Director of Service Management and Delivery in the University's Information Technology ("IT") department, chaired the committee, which included other IT Department staff andpersonnel from elsewhere on campus. The committee began by looking at results from a survey of campus perception of the CSC and examining other university models. On January 9, 2009, at the conclusion of the review, three IT directors finalized a proposal for a new CSC that outlined specific tactical steps and cost savings as a first step toward building a better CSC. The proposal noted issues and limitations with the CSC as it had been operating, including a lack of defined tiers of support and system services,³ a lack of technical knowledge standards or certifications for staff and the continued use of a "best effort" approach to answering questions on the telephone.

On January 14, 2009, defendant signed letters notifying plaintiff and six other full-time support staff employees at the CSC that the University planned to lay them off effective June 30.⁴ The letters stated that the University was eliminating their positions due to reorganization needs within the CSC. Consistent with those letters, IT Director Judy Loats informed the IT staff in an email message dated January 22, that the CSC would be taking a new direction and that seven staff positions would be eliminated as of June 30. On June 18, however, defendant sent plaintiff and fellow employee Kim Trader another letter informing them that their layoff dates were being extended from June 30 to August 31 because "the customer service area still has a need for your expertise in providing assistance to users while the reorganization is being finalized." Doc. #46-16 at 2. Plaintiff knew of and had agreed to the extension.

As part of the reorganization, the University announced the new position of InformationSpecialist I - Help Desk Team Lead. The announcement of the position included the following:

Position Overview

This position in the KU Information Technology Customer Service Center works as a Team Lead responsible for supervising, training, and mentoring student representatives as well as actively participating in receiving, prioritizing, documenting, and resolving customer issues and requests. The successful candidate will utilize a broad range of technical skills and knowledge as well as highly developed customer service and communication skills to troubleshoot and resolve questions surrounding IT and desktop services/applications. Customer contact includes phone, email, chat, and less frequent in-person interactions serving faculty, staff, and students. Internally, this position interacts frequently with Tier 2 and Tier 3 technical staff to collaborate on issues and resolution.

Doc. #46-7 at 2. The announcement indicated that a Team Lead would spend 60% of his or her time processing, troubleshooting and resolving Tier 1 technical issues; 20% creating technical documentation for the IT knowledge base and actively participating in process/service quality improvement measures; 15% supervising, training and mentoring CSC student staff including performance and quality service monitoring; and 5% in meetings and other duties. Id. at 3-4.⁵ While defendant asserts that the new Team Lead position had different duties than plaintiff's prior positions (including resolving technical issues, preparing technical documents and putting them in the knowledge base, and supervising, training and mentoring student staff), plaintiff contends that the new position had the same duties which she performed as an Information Specialist. Plaintiff concedes, however, that the duties and qualifications had been "tweaked a bit," and were different in some areas. Cook Depo. at 10.

On or about July 6, 2009, plaintiff applied for the Team Lead position. Ninety-five other people also submitted applications. The University selected only seven applicants to interview, and plaintiffwas among them.⁶ The selection committee was composed of Ann Ermey, Heather Coffman, Marianne Reed and David Yarnevich. Lawanna Huslig also sat in on the interviews.⁷ Plaintiff knew all of the interviewers and had not had negative interactions with any. The committee members developed a common set of questions which they posed to all the candidates. Plaintiff interviewed on August 18, and the committee completed its first round of interviews within three days.

Plaintiff did not think that she should have had to sit for an interview, and she was extremely nervous during it. She admits that her interview "could have gone a lot better," and that she did not do her best. Question 10 on the committee's list asked the candidates to "[t]ell us about a time when you had to intervene when a fellow employee was providing poor customer service or inappropriate information." When the committee posed that question to plaintiff, she answered that she would "stand up, wave my arms, and start yelling." She later admitted that "probably wasn't the best answer." In answer to another question, which asked what the candidate would do if a caller complained about not being able to get on line, plaintiff responded that she would ask what the user was trying to do; that it could mean a lot of things; and that she would start from the beginning and take it from there.

The committee conferred after completing the interviews and unanimously agreed to recommend Lindsay Armstrong, Brett Gerstenberger and Kim Trader for the Team Lead position.⁸ All three are younger than plaintiff. During their discussion, no committee member spoke of any candidate's age.They did, however, discuss the quality of the candidates' answers to interview questions and the skills and experiences they demonstrated in their application...