Venita Billingslea v. Michael Astrue , 502 F. App'x 300 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1528
VENITA Y. BILLINGSLEA,
Plaintiff – Appellant,
v.
MICHAEL J. ASTRUE, Commissioner, Social Security
Administration,
Defendant – Appellee,
and
SOCIAL SECURITY ADMINISTRATION,
Defendant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. J. Michelle Childs, District
Judge. (6:10-cv-01467-JMC)
Submitted: December 18, 2012 Decided: December 28, 2012
Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Vernon F. Dunbar, TURNER PADGET GRAHAM & LANEY P.A., Greenville,
South Carolina, for Appellant. William N. Nettles, United
States Attorney, Terri Hearn Bailey, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Venita Y. Billingslea appeals the district court order
adopting the magistrate judge’s recommendation to grant summary
judgment in favor of Defendant Michael J. Astrue, Commissioner
of the Social Security Administration (“SSA”), on Billingslea’s
employment discrimination claims. On appeal, Billingslea argues
that the district court erred in granting summary judgment as to
Billingslea’s claim under the Age Discrimination in Employment
Act (“ADEA”), as amended, 29 U.S.C.A. §§ 621-634 (West 2008 &
Supp. 2012), based on its conclusion that Billingslea failed to
provide evidence from which a reasonable jury could conclude
that the SSA’s stated reasons for not selecting her for a
promotion were a pretext for age discrimination. * We affirm.
We review a district court’s grant of summary judgment
de novo. PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d 111,
119 (4th Cir. 2011). We will not weigh evidence or make
credibility determinations, but view the evidence and all
*
Because Billingslea’s response to the magistrate judge’s
report and recommendation and her opening brief address only her
ADEA claim, she has forfeited appellate review of her gender and
marital status discrimination claims. See United States v.
Winfield, 665 F.3d 107, 111 n.4 (4th Cir. 2012) (stating that
arguments not raised in the opening brief are considered
waived); United States v. Midgette, 478 F.3d 616, 621 (4th Cir.
2007) (concluding that a party waives appellate review of an
issue by failing to file a timely objection to the magistrate
judge’s report and recommendation addressing the issue).
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reasonable inferences drawn from it in the light most favorable
to the nonmoving party. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 151 (2000). Summary judgment is appropriate
“if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). “Conclusory or speculative
allegations do not suffice, nor does a mere scintilla of
evidence in support of [the nonmoving party’s] case.”
Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir.
2002) (internal quotation marks omitted). Summary judgment will
be granted unless “a fair-minded jury could return a verdict in
favor of the [nonmoving party] on the evidence presented.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
“Only disputes over facts that might affect the outcome of the
suit under the governing law will properly preclude the entry of
summary judgment.” Id. at 248.
The ADEA makes it “unlawful for an employer . . . to
fail or refuse to hire or . . . otherwise discriminate against
any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual’s age.” 29 U.S.C. § 623(a). Billingslea provided no
direct evidence of intentional discrimination, but pursued her
ADEA claim under the burden-shifting framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See
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Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 513-14 (4th Cir.
2006); Mereish v. Walker, 359 F.3d 330, 334-37 (4th Cir. 2004).
Under this framework, Billingslea must first establish a prima
facie case of age discrimination by a preponderance of the
evidence. Warch, 435 F.3d at 513. If this burden is met, the
burden shifts to Astrue to demonstrate “a legitimate,
non-discriminatory reason” for the selectee’s promotion over
Billingslea. See id. at 513-14. If Astrue meets this burden,
“the presumption of discrimination created by the prima facie
case disappears from the case and the plaintiff must prove that
the proffered justification is pretextual.” Id. at 514(internal quotation marks omitted).
“The ultimate question in every employment
discrimination case involving a claim of disparate treatment is
whether the plaintiff was the victim of intentional
discrimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 153 (2000). Thus, Billingslea ultimately “retains the
burden of persuasion to establish that age was the ‘but-for’
cause of the employer’s adverse action.” Gross v. FBL Fin.
Servs., Inc., 557 U.S. 167, 177 (2009).
Billingslea is correct in noting that an employer’s
shifting and inconsistent justifications for its adverse
employment discrimination decision may give rise to an inference
of discrimination and provide evidence of pretext. EEOC v.
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Sears Roebuck & Co., 243 F.3d 846, 852-54 (4th Cir. 2001); see
Reeves, 530 U.S. at 147 (stating that when “the employer’s
justification has been eliminated, discrimination may well be
the most likely alternative explanation, especially since the
employer is in the best position to put forth the actual reason
for its decision”). However, our review of the record indicates
no such shifting justifications, notwithstanding discrepancies
between details provided in the parties’ discovery plan and the
sworn testimony obtained during discovery.
Billingslea also attempts to challenge the accuracy of
the SSA’s stated justifications for selecting a younger employee
over Billingslea. Under appropriate circumstances, “a
plaintiff’s prima facie case, combined with sufficient evidence
to find that the employer’s asserted justification is false, may
permit the trier of fact to conclude that the employer
unlawfully discriminated.” Reeves, 530 U.S. at 148. However,
this is not always the case, depending upon “the probative value
of the proof that the employer’s explanation is false.” See
Holland v. Wash. Homes, Inc., 487 F.3d 208, 215 (4th Cir. 2007)
(internal quotation marks omitted). Importantly, when the
employer articulates a legitimate, non-discriminatory basis for
its action, this court does not “decide whether the reason was
wise, fair, or even correct, ultimately, so long as it truly was
the reason for the [adverse employment action].” Hawkins v.
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PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir. 2000). In assessing
whether an employer’s proffered reasons are pretextual, “it is
the perception of the decisionmaker which is relevant.”
Holland, 487 F.3d at 217 (internal quotation marks and
alteration omitted); see Hawkins, 203 F.3d at 280.
Here, the selecting official testified as to his
reasons for choosing the selectee instead of Billingslea.
Having thoroughly reviewed the record, we conclude that
Billingslea failed to provide evidence adequate for a reasonable
jury to conclude that the selecting official did not, in fact,
rely on his stated justifications in choosing the selectee.
Additionally, the record contains no evidence to suggest that
Billingslea, rather than the selectee, would have been chosen
but for Billingslea’s age. While Billingslea also adduced
testimony from two SSA employees indicating their opinions
regarding the SSA’s discriminatory hiring practices, we conclude
that this testimony was “so tenuous as to amount to speculation
or conjecture,” and thus not useful in opposing a motion for
summary judgment. See JKC Holding Co. LLC v. Wash. Sports
Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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