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Garland's Digest
on employment discrimination law
online since 1997
 

 

Disclaimer: The case on which this summary is based may no longer be current law. Also, if the case was decided on summary judgment, the court recited the "facts" in the light most favorable to the non-movant, which may not be the true facts.

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Scott v. University of Mississippi, 148 F.3d 493 (5th Cir. July 27, 1998)

Keywords: ADEA (failure to hire, pretext, statistical evidence; Eleventh Amendment immunity)

Introduction: Linda Anne Scott sued the University under the ADEA for failure to hire and for retaliation. A jury found in favor of Scott on the failure to hire claim. The Fifth Circuit reverses and renders judgment for the University.

Facts: In 1991, the University hired Scott as a reference librarian at the Law School. In 1993, when she was 54 years old, Scott applied for the position of legal writing specialist. The hiring committee selected six finalists for the position. Sandra Shelson was ranked first, Anne Gullick second, and Scott third. Shelson was offered the position and declined it. Gullick, age 33, was offered the position and accepted it. Scott filed an age discrimination charge with the EEOC and one year later filed this lawsuit.

In 1995, Scott applied for another legal writing specialist position. Once again, she was a finalist, but was not hired. She amended her original complaint to allege discrimination and retaliation with respect to the 1995 hiring.

Law:

1. Eleventh Amendment immunity
   1. The Fifth Circuit holds that states are not entitled to Eleventh Amendment immunity in ADEA actions. Congress properly abrogated the immunity pursuant to the test set forth in Seminole Tribe of Florida v. Florida, 577 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996):
      1. Did Congress unequivocally express its intent to abrogate the immunity? Yes, in the 1974 amendment to the ADEA.
      2. Did Congress act pursuant to a valid exercise of constitutional power? Yes, Section 5 of the Fourteenth Amendment.
2. Denial of motion for judgment as a matter of law
   1. There must be a conflict in substantial evidence to create a jury question. Substantial evidence is defined as evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions.
   2. A plaintiff can take her case to a jury with evidence that she was "clearly better qualified" than the person hired. The Fifth Circuit reviews the qualifications of Gullick and Scott -- and determines that Scott has not met this standard. In other words, Scott's qualifications are not so superior to those of Gullick's to allow an inference of pretext.
3. Statistical evidence
   1. Scott claims that statistical evidence shows that the Law School had a policy of not hiring tenure-track professors or legal writing teachers over the age of forty. But her statistics are flawed because she failed to compare the persons hired to the pool of qualified applicants.
4. Notation of graduation dates
   1. Scott argues that the fact that a member of the hiring committee wrote on Scott's resume the dates Scott received her graduate degrees is evidence of age discrimination. The Fifth Circuit disagrees.
5. Different treatment
   1. Scott argues that a jury could infer discrimination because Scott was treated differently from other applicants:
      1. she was not taken to lunch;
      2. the committee did not call her references;
      3. she was not told to bring her writing sample to her interview.
   2. But Scott was not the only applicant not taken to lunch. The committee only checked references for the top two ranking applicants and would have checked Scott's had Gullick turned down the job offer. And with respect to her writing sample, she was told during the interview to get her sample to the committee.
6. Evidentiary issues
   1. Scott argues that the district court erred in excluding her expert's testimony about the 1995 hiring. But she did not comply with disclosure deadlines concerning this testimony.
   2. Scott argues that the district court erred in excluding evidence of retaliation that occurred after she filed her second amended complaint. But Scott did not inform the University about these alleged acts until only three weeks before trial.
   3. Scott argues that the district court erred in excluding testimony about age discrimination in the 1995 hiring. But Scott failed to exhaust her administrative remedies with respect to this claim. The district court did allow her to proceed under the theory that the failure to hire in 1995 was in retaliation for alleging age discrimination with respect to the 1993 hiring.
7. Therefore, the Fifth Circuit holds that the district court erred in denying the University's motion for judgment as a matter of law.
8. Click here to see actual case.