Free Reply to Response to Motion - District Court of Arizona - Arizona

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

Steven G. Biddle; AZ Bar No. 012636 [email protected] Christie L. Kriegsfeld, AZ Bar No. 022537 [email protected] LITTLER MENDELSON, P.C. 2425 East Camelback Road, Suite 900 Phoenix, AZ 85016 Telephone: 602.474.3600 Facsimile: 602.957.1801 Attorneys for Defendant UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Connie Alms, a single woman, Plaintiff, v. AdvancePCS, a Delaware corporation, n/k/a CaremarkRx, Inc., a Delaware corporation, Defendant. Defendant AdvancePCS ("AdvancePCS" or "the Company")1 hereby files its Reply in support of its Motion for Summary Judgment. Plaintiff's proffered evidence submitted with her Response falls significantly short of establishing a genuine issue of material fact with respect to her single claim of age discrimination. Even viewing the evidence in the light most favorable to Plaintiff, summary judgment in Defendant's favor is appropriate. MEMORANDUM OF POINTS AND AUTHORITIES DEFENDANT'S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT Case No.: CIV 04 0332 PHX JWS

I.

INTRODUCTION Plaintiff's claim arises out of, and is limited to, her separation from AdvancePCS during a

2002 reorganization. Specifically, Plaintiff claims that she was separated from her employment because of her age and was replaced by someone younger and less qualified. In reality, the

undisputed facts establish that Defendant reorganized Company-wide, leading to the elimination of Plaintiff's position, along with 150 other employees. As part of the reorganization, AdvancePCS moved the entire Information Security Department from Scottsdale to Dallas. Additionally, the
1

In March 2004, AdvancePCS was acquired by CaremarkRx, Inc.

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

Company created a new temporary position in Plaintiff's Department, however, the Company did not chose Plaintiff for that position. (Plaintiff's claim in her Response that the Company created two positions, a permanent one and a temporary one, is absolutely false; rather, the undisputed evidence is that only one temporary position was created for a person to remain in Scottsdale to help transition the Department to Dallas). The record conclusively shows AdvancePCS had legitimate, economic reasons for the Company-wide reorganization and reduction in force that led to the elimination of Plaintiff's position, and that Plaintiff was not retained to fill the new position created in her Department for legitimate, non-discriminatory reasons wholly unrelated to her age. Nonetheless, in her Response, Plaintiff is attempting to create a genuine issue of fact by repeatedly claiming the employee chosen for the newly-created, temporary position, Annie Simonton, was not qualified for Plaintiff's then-current position of Senior Information Security Analyst. However, Ms. Simonton was not hired as a Senior Information Security Analyst, and she was not placed in Plaintiff's then-current position; rather, she assumed the new position that differed from Plaintiff's position, a point Plaintiff completely ignores in her Response. Without any evidence that her age was a factor, Plaintiff is simply trying to convince the Court that her own feeling that she was more qualified for the new position should take precedent over the Company's judgment of who it felt was best suited for its needs. The proper issue is whether Plaintiff was discriminated against because of her age when she did not receive the newly-created position that had different job responsibilities and requirements from her then-current position. The undisputed facts establish that AdvancePCS did not terminate Plaintiff because of her age, but chose Ms. Simonton for the new position over Ms. Alms and the other employees in the Department because the Company felt Ms. Simonton was best suited to fill the new position. In a misguided attempt to create an issue of fact, however, Plaintiff ignores the undisputed facts contained in the record that establish the new position was considered a different position for which Plaintiff was not the most qualified because she lacked the necessary interpersonal skills, temperament, critical thinking skills, and a basic working knowledge of all of the computer platforms used by the Company, all of which Ms. Simonton possessed. Indeed, Plaintiff does not dispute that she did not possess the required skills to perform the newly-created position. Instead, Document 61 2 Filed 03/24/2006

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

she alleges she could have learned the job responsibilities if she had been mentored. In doing so, Plaintiff ignores the fact that an employee cannot be trained to develop interpersonal skills, temperament and critical thinking skills ­ you either have these abilities or you do not. Moreover, Plaintiff does not dispute AdvancePCS's explanation that the new position was created to facilitate the transfer of the Department to Dallas from Scottsdale. Instead, Plaintiff simply alleges she was qualified for the Senior Information Security Analyst position that she once held with the Company. Again, Plaintiff misstates the issue in an attempt to create an issue of fact. Additionally, Plaintiff's only "evidence" is either inadmissible or otherwise based on unsupported statements. This includes the two affidavits from her former co-workers (Covey and Yauch), one who was not even still employed with AdvancePCS for almost a year prior to the reorganization at issue herein (Yauch), and an EEOC investigator's notes of an interview with another co-worker (Leary). None of these people were supervisory employees or had any input or involvement whatsoever in the Company's decision regarding the new position. Thus, obviously, none of these people have any relevant, personal knowledge, their "testimony" is purely hearsay, and there is no foundation for their "testimony." Accordingly, the Court should not consider this clearly inadmissible evidence. See F.R.C.P. 56(e). In summary, the Court should grant AdvancePCS's Motion because Plaintiff's conclusory assertions and misguided attempts to create a genuine issue of fact are insufficient to allow a reasonable jury to conclude that she was discriminated against because of her age. Instead, the facts clearly establish AdvancePCS acted in its best interests in choosing the employee it felt would do the best job regardless of age.

II.

PLAINTIFF'S AGE DISCRIMINATION CLAIM FAILS

A.

Plaintiff Has Not Stated a Claim under the ADEA.

Plaintiff cannot establish a prima facie case of discrimination. To do so, she must establish that AdvancePCS intentionally discriminated against her because of her age by presenting direct and/or circumstantial evidence. Although Plaintiff is claiming she subjectively believes she was not retained because of her age, she has provided absolutely no direct or circumstantial evidence of such discrimination. In fact, Plaintiff admits that no one at AdvancePCS ever told her that she was being Document 61 3 Filed 03/24/2006

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

terminated or not chosen for the new position because of her age. As a result, Plaintiff admits she has no direct evidence of age discrimination. Indeed, she specifically admits that no supervisor or manager, including Rick Wenban, the Director of the Company's IS Department and the decisionmaker, ever told her that she was part of the reduction in force or that she did not get the new position because of her age. Defendant's Statement of Facts ("DSOF") ¶ 51. Similarly, she admits she has no evidence that anyone at AdvancePCS told Mr. Wenban or any other supervisor to terminate her or otherwise not retain her because of her age. DSOF ¶ 52. Thus, she cannot state a claim of age discrimination.

B.

Plaintiff Does Not Have Any Direct Evidence of Discrimination

Plaintiff argues she has produced sufficient evidence to establish a prima facie case of age discrimination under the ADEA. In making this argument, however, she mischaracterizes the facts and, as a result, misstates what is required to establish her prima facie case (Pl.'s Resp., p. 11). Regardless of how Plaintiff characterizes her claim, summary judgment is appropriate. Plaintiff has not and cannot offer any direct evidence that establishes, by a preponderance of the evidence, that AdvancePCS intentionally discriminated against her because of her age when she did not receive the new position created as part of the Company's reorganization and reduction in force. See Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). As stated by the Ninth Circuit in a 2005 case, "Direct evidence typically consists of clearly sexist, racist or similarly discriminatory statements or actions by the employer." Coghlan v. American Seafoods Co., Inc., 413 F.3d 1090, 1095 (9th Cir. 2005). Such evidence certainly does not exist in this case. Nevertheless, Plaintiff attempts to offer as "direct evidence" a statement she allegedly made in the meeting she attended with Mr. Wenban and two Human Resources representatives when the Company was telling her she was not chosen for the new position and would instead be offered a severance package. Specifically, she claims that after she was told Ms. Simonton was chosen for the position, Plaintiff said, "Oh, does that mean I'm too old to be mentored" even though no one had made any mention of age as being a factor in the decision. She claims none of the Company representatives responded, so their silence is an admission that age did play a factor. Obviously, this is a bizarre analysis. Even if this had occurred, and Defendant denies this ever happened, Plaintiff Document 61 4 Filed 03/24/2006

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

herself was the only one to mention age and no case has ever held that mere silence is an admission of discrimination. To the contrary, courts routinely hold that even "stray remarks" are not direct evidence to preclude summary judgment. See, e.g., Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir. 1993) (even the supervisor's comment that "we don't necessary like grey hair" regarding plaintiff was not sufficient to withstand summary judgment). More importantly, in the instant case, Plaintiff's claim that courts have found silence in the face of an accusation of discrimination to be direct evidence of intentional discrimination is blatantly false. (Pl's Resp. p. 7). As support for her assertion, Plaintiff improperly cites irrelevant and inapplicable criminal cases that involve a criminal defendant's right to due process and a criminal defendant's right to be questioned on cross-examination about his silence during a police interrogation, and have nothing whatsoever to do with employment discrimination. See U.S. v. Hale, 422 U.S. 171 (1975); U.S. ex. rel. Biolkumsky v. Tod, 263 U.S. 149 (1923); Baxter v. Palmigiano, 425 U.S. 309 (1976). Not only do none of these cases stand for the proposition that the Company representatives had an obligation to deny Plaintiff's implication that her age played a role in the decision, Plaintiff's argument also is illogical. Plaintiff allegedly made this statement in her termination meeting after she had been told about the adverse decision. It unquestionably would have been a bad idea, under the circumstances, for the Company representatives to argue with Plaintiff, even assuming they understood that Plaintiff's vague statement indicated she believed age played a factor in the decision. Indeed, Mr. Wenban testified that he was instructed by Human Resources not to engage in any arguments with the employees when he had to inform them that they did not receive the new position. Mr. Wenban recalled Plaintiff was very upset and she began to argue with him over the Company's decision not to hire her for the new position, however, she did not mention age and he did not engage her because he was following Company instructions not to argue with any employees over the reasons they were not hired for the new position. Moreover, even if Plaintiff's rendition of the conversation was true, the angry and unprofessional behavior she exhibited during the meeting further supported the Company's decision that she did not possess the required patience and good interpersonal skills needed for the new position, requiring the employee to remain calm and handle Document 61 5 Filed 03/24/2006

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

crisis situations on a regular basis, while doing so with tact and a positive and comforting attitude. DSOF ¶ 21. Furthermore, there would be no reason for Mr. Wenban to engage in such an argument or otherwise defend the Company's legitimate business decision that was wholly unrelated to Plaintiff's age. In fact, Mr. Wenban testified that age was never even considered in deciding who would receive the new position, so there was not a need to discuss how the hiring decision might be perceived in terms of age. Mr. Wenban testified he was especially sensitive to age discrimination because he previously had been the victim of age discrimination and had to sue a previous employer on that basis. Indeed, Mr. Wenban testified that his hiring recommendations had absolutely nothing to do with the age of any of the candidates, rather, his recommendations were solely based on whether the candidates met the Company's desired requirements for the new position. DSOF ¶ 23. Plaintiff also claims direct evidence exists because, as Plaintiff contends, Ms. Simonton was not qualified for "Plaintiff's position of Senior Information Security Analyst." (Pl's Resp., p. 8, 11, 12). Again, this is absolutely irrelevant and ignores the undisputed facts that Plaintiff's position, like the others in the IS Department in Scottsdale, was eliminated and no longer existed. Rather, the Company created an entirely new position, with new job requirements, so the relevant inquiry is whether Plaintiff established she was more qualified than Ms. Simonton for the newly-created position, that required a different skill set from her then-current position, but she did not receive the position because of her age. The record clearly establishes the Company did not feel Plaintiff was as qualified for the position for reasons wholly unrelated to her age. Plaintiff also misstates the undisputed facts by claiming Mr. Wenban admitted he "never considered Plaintiff a serious candidate for the open position." In reality, Mr. Wenban clearly testified he considered all of the applicants equally and made his decision based on the Company's plans and needs for the new position and the Company's judgment as to each of the applicants' relative ability to perform the new position. DSOF ¶¶ 23-25. After speaking with all of the applicants, reviewing supporting materials and discussing them with the IS supervisors, Mr. Wenban ranked the applications and decided that his top two candidates were Rosetta Carr and Annie Simonton. Id. It was only at that point, as clear from his deposition transcript and Declaration, that Document 61 6 Filed 03/24/2006

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

Mr. Wenban no longer considered Plaintiff to be a "serious candidate" for the one new position, because he had at least two others rated above the Plaintiff. Id. Accordingly, while Plaintiff may subjectively believe she was not retained because of her age, she has no direct evidence to support her claim.

C.

There Also is No Circumstantial Evidence of Discrimination.

Likewise, there is no circumstantial evidence to support Plaintiff's claim. Contrary to wellestablished precedent, Plaintiff argues she does not have to provide "specific and substantial circumstantial evidence of intentional discrimination" to overcome summary judgment. As support for her incorrect argument, on March 22, 2006, Plaintiff submitted as supplemental authority a recent Ninth Circuit case, Cornwell v. Electra Central Credit Union, ___ F.3d ___ 2006, WL 473845 (9th Cir. 2006), in which Plaintiff alleges the court diminished the quality of circumstantial evidence that must be presented by a plaintiff to overcome summary judgment. In doing so, Plaintiff misstates the court's analysis of the circumstantial evidence requirement that, in fact, endorses the long line of Ninth Circuit cases requiring the Plaintiff to provide "specific and substantial evidence of discrimination" to overcome summary judgment. See, e.g., Coghlan, 413 F.3d at 1095. An accurate reading of Cornwell reveals the court merely stated that Title VII does not require a disparate treatment plaintiff relying on circumstantial evidence to produce more, or better, evidence than a plaintiff who relies on direct evidence. Id. at * 9. Indeed, the court was quick to note that its decision in Cornwell did not overturn Ninth Circuit precedent requiring the circumstantial evidence of pretext offered by a plaintiff must be specific and substantial to overcome a summary judgment motion. Id. Accordingly, Plaintiff still must provide circumstantial evidence that is specific and substantial to create a genuine issue of material fact. In this case, Plaintiff has failed to do so because no such evidence exists. Nevertheless, to support her age discrimination claim, Plaintiff alleges there was a job posting for a Senior Information Security Analyst that stated there was an open position for Plaintiff's job title with a job description that was the same as the position she then held. (Pl's Resp., p. 11). Contrary to Plaintiff's assertion, Mr. Wenban testified that the new position was different from Plaintiff's position of Senior Information Security Analyst and he needed to use an Document 61 7 Filed 03/24/2006

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

existing job title that was recognized by the Company's computer system in order to post the new job. DSOF ¶ 42. Moreover, Mr. Wenban testified that the new position was different from Plaintiff's then-current position in that the new position required exceptional interpersonal skills, temperament, critical thinking skills, and a broad working knowledge of the various computer systems utilized by the Company. DSOF ¶¶ 20, 43-44. Indeed, Plaintiff does not and cannot dispute that her former position differed from the new position that was created to effectuate a smooth transfer and reorganization of the IS function to Dallas. Moreover, Plaintiff focuses on the fact that she received good performance reviews in her former position of Senior Information Security Analyst and she received a letter of recommendation from her supervisor (who at that time knew Plaintiff was not remaining with the Company). (Pl's Resp., p. 11). The Company does not dispute that Plaintiff generally performed well in her position, in which she focused on one particular computer platform (ACF2). However, the fact that she performed well in her then-current position is not evidence of discrimination. Instead, the

undisputed facts show that Plaintiff was not as qualified as the other candidates for the new position because the Company believed she lacked the interpersonal skills and broad knowledge of other computer platforms required to perform well in the new position. DSOF ¶¶ 20, 25, 31, 35, 43-44. Moreover, Plaintiff offers as evidence affidavits from her former co-workers, Joseph Yauch and Colleen Covey, in which they state that Ms. Simonton was not qualified to hold the Senior Security Analyst position. These affidavits should not be considered by the Court and they are not circumstantial evidence of intentional discrimination. Mr. Yauch and Ms. Covey were not Ms. Simonton's or Plaintiff's supervisors. They do not have personal knowledge of Ms. Simonton's abilities and job performance and they have no personal knowledge of Plaintiff's job performance. These affidavits are based solely on their limited observations of Ms. Simonton and Plaintiff as coworkers. They are simply not qualified to provide opinions as to who was more qualified for a new position that did not even exist at the time but was created as a result of the reorganization and reduction in force. Indeed, Mr. Yauch was an independent contractor who ceased work at

AdvancePCS in June 2001, almost a year before Plaintiff was terminated. Accordingly, Mr. Yauch was not even employed during the time of the reorganization and reduction in force and cannot Document 61 8 Filed 03/24/2006

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

provide any information as to Plaintiff's qualifications for the new position that was created as a result. Thus, Plaintiff has no direct or circumstantial evidence to show she was terminated because of her age. The only "evidence" she has is that she was older than the employee hired for the new position, and that only satisfies one element of her prima facie case. Consequently, she cannot establish a prima facie case of age discrimination and AdvancePCS is entitled to summary judgment as a matter of law.

D.

AdvancePCS has articulated legitimate, non-discriminatory reasons for its actions.

Plaintiff is attempting to withstand summary judgment by arguing that AdvancePCS's articulated reasons for the adverse employment action were pretextual. Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 147-49 (2000). In doing so, Plaintiff cites Garrett v. HewlettPackard Co., 305 F.3d 1210 (10th Cir. 2002), for the proposition that she can show pretext by revealing weaknesses, implausibilities, inconsistencies, or contradictions in AdvancePCS's proffered legitimate reasons for not offering Plaintiff the new position. In Garrett, however, the court

provided specific examples of evidence that it relied upon to establish pretext, all of which Plaintiff cannot offer in this case. Specifically, the court in Garrett stated that evidence of pretext may include prior treatment of plaintiff, the employer's policy and practice regarding minority employment and disturbing procedural irregularities (e.g., falsifying or manipulating hiring criteria). Id. at 1217. Upon review of the record in this case, there is no evidence of inconsistent treatment of Plaintiff, a discriminating policy and practice regarding minority employment, or any procedural irregularities in the hiring process to fill the new positions. Instead, Plaintiff's alleged evidence of pretext is that Ms. Simonton was not as qualified for Plaintiff's then-current position of Senior Information Security Analyst. Plaintiff again misses the critical issue, that is, whether Plaintiff was as or more qualified than Ms. Simonton for the new position that had different job responsibilities from Plaintiff's then-current position. As amply established, Mr. Wenban's decision to offer Ms. Simonton the new position was based on his assessment that she was more qualified than Plaintiff.

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

In fact, that determination was based on her relevant experience, especially her experience with and technical knowledge of the Company's multiple systems, production levels, supervisors' input, interpersonal skills, temperament, critical thinking skills, ability to work independently and crosstraining experience. DSOF ¶¶ 25, 35. The record shows that Plaintiff's experience with

AdvancePCS was limited to only one of the platforms (ACF2) used by the Company. DSOF ¶¶ 25, 48. Plaintiff simply did not have the breadth of knowledge of the various platforms used by the Company and she did not possess the interpersonal skills and temperament required for the new position. DSOF ¶¶ 40-41, 48, 50. As further evidence of pretext, Plaintiff argues that two of her co-workers thought she was qualified to hold the Senior Security Analyst position. (Pl.'s Resp. p. 14). Again, Plaintiff misses the critical issue in the case ­ that she was not one of the most qualified for the new position created to facilitate the Department reorganization and reduction in force. The fact that Plaintiff was recognized as qualified for her then-current position by two of her co-workers is completely irrelevant and clearly not evidence of pretext. In any event, the Court cannot act as a "super personnel department" by second-guessing AdvancePCS's business decision of hiring Ms. Simonton for the new position in light of Plaintiff's age discrimination claim. See Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986). The Court may not review each employment action to determine if it was fair or arbitrary; rather, its role is to determine if there is legally sufficient evidence of discrimination to allow Plaintiff's claim to survive a motion for summary judgment. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). In this case, Plaintiff cannot and has not offered such legally sufficient evidence of intentional discrimination. Even assuming, without admitting, that Plaintiff could establish a prima facie case of age discrimination, which she cannot, AdvancePCS nonetheless is entitled to summary judgment because the record conclusively reveals that she was terminated and not given the new position for legitimate, non-discriminatory reasons; respectively, a reorganization/reduction in force and that she was not the most qualified applicant for the new position created as a result of the

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

reorganization. Therefore, Plaintiff simply has no evidence to establish that AdvancePCS's reasons are false and a pretext for age discrimination. Moreover, the Company clearly did not consider Plaintiff's age when it determined who should be offered the newly-created temporary Analyst position. Two more qualified candidates were offered the new position (Ms. Carr was over 40 and Ms. Simonton was under 40) by a decisionmaker who also was over 40, Mr. Wenban. Accordingly, the Company demonstrated a willingness to employ those in the protected age category as well as a commitment to hire the most qualified candidates regardless of their age. Plaintiff mistakenly relies on dicta in Kadas v. MCI Systemhouse Corp., 255 F.3d 359 (7th Cir. 2001), to put forth the unsupported, contrary view that the relative ages of the person making the decision and the terminated employee are unimportant because an older person might illegally discriminate against another older individual because of age. Some of the proffered reasons for this was that an older person may want to surround himself with younger people or that the older person may be oblivious to the prejudices he holds, especially the prejudices against the group to which he belongs. Here, there is no evidence that Mr. Wenban wanted to spend time around Ms. Simonton, who was younger than him. Despite Plaintiff's statement in her Response that Mr. Wenban implied he would mentor Ms. Simonton, Mr. Wenban never testified that he was going to mentor or train Ms. Simonton after she was hired for the new position. Moreover, Ms. Simonton was hired to work in the new position in Scottsdale, whereas Mr. Wenban worked at the Company's Dallas facility. Additionally, Mr. Wenban testified he was very sensitive to age discrimination because he had been a victim of such discrimination with a previous employer. Accordingly, the Court should infer age was not a motivating factor in Mr. Wenban's decision to hire Ms. Simonton. Moreover, the correct analysis of this issue in the Ninth Circuit (as well as the other circuits) is that there is a presumption of non-discrimination in two instances: (1) when a Company hires an employee already in the protected age category and the alleged age discrimination occurs shortly thereafter; and (2) when the decisionmaker also is in the protected category. See Coghlan v. American Seafoods Co., Inc., 413 F.3d 1090, 1096 (9th Cir. 2005) (even though there were three Document 61 11 Filed 03/24/2006

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

years between the employee's hiring and the alleged discriminatory action, the court upheld summary judgment stating, "...an employer's initial willingness to hire the employee-plaintiff is strong evidence that the employer is not biased against the protected class in which the employee belongs."); see also Brown v. CSC Logic, Inc., 651, 658 (5th Cir. 1996); LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 847 (1st Cir. 1993); Dedyo v. Baker Eng'g N.Y. Inc., 1998 U.S. Distr. LEXIS 132, at *20 (S.D.N.Y. Jan. 13, 1998); Rand v. CF Industries, Inc., 42 F.3d 1139, 1147 (7th Cir. 1994) ("...seems rather suspect to claim the company that hired [plaintiff] at age 47 `had suddenly developed an aversion to older people' two years later."). In the instant case, Plaintiff was hired by AdvancePCS in May 2000 when she was 55 years old and terminated as part of the reorganization less than two years later. Moreover, the decisionmaker, Mr. Wenban, was 53 when he made his decision not to choose Plaintiff for the new position. For these reasons, the Court should presume the decision was not based on Plaintiff's age and Defendant's Motion for Summary Judgment should be granted.

E.

The EEOC's Conclusory Cause Determination Does Not Require a Trial.

Plaintiff argues that she "has a right to introduce an EEOC probable cause determination allowing this Court to consider what the EEOC determination says and weigh it as persuasive evidence in this matter." (Pl.'s Resp. at 16). The Court should reject Plaintiff's argument for two reasons. First, the EEOC's Determination in this case simply recites Plaintiff's allegations,

AdvancePCS's position, and the EEOC's unexplained conclusion that there is reasonable cause to believe discrimination occurred. The Determination contains absolutely no analysis. There is no indication what information the EEOC considered in reaching its conclusion, or how or why the EEOC reached its conclusion. Thus, there is no basis for this Court to review the legal and factual bases, if any, for the EEOC's conclusion or to find that the EEOC considered evidence from both sides. Second, the Ninth Circuit has recently and unequivocally held that a conclusory EEOC determination does not preclude summary judgment. Indeed, the court held that such conclusory EEOC determinations "have little probative value." Coleman v. Quaker Oats Co., 232 F.3d 1271, 1284 (9th Cir. 2001). As Coleman points out, given that the EEOC's decision to file suit does not Document 61 12 Filed 03/24/2006

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

preclude summary judgment, a Determination letter, "at least by itself, does not create an issue of material fact." Id. Similarly, the Ninth Circuit has held that a two-page EEOC determination, that simply recites the employee's allegations without offering any analysis, as in this case, is insufficient to defeat summary judgment. Mondero v. Salt River Project, 400 F.3d 1207, 1215 (9th Cir. 2005). The Mondero court explained that "[t]he fact that a determination from the EEOC is highly probative, however, does not support [the plaintiff's] contention that an EEOC determination letter is somehow a free pass through summary judgment." Id. Based on Coleman and Mondero, and contrary to Plaintiff's argument, the EEOC's conclusory Determination in this case, that provides no analysis of what information the EEOC considered or how it reached its conclusion, does not preclude summary judgment.

III.

CONCLUSION The uncontroverted evidence demonstrates that there is no genuine issue of material fact

precluding summary judgment in this case.

The evidence shows that Plaintiff's position was

eliminated due to a reorganization and Plaintiff even admits there is no evidence that her age motivated the Company's decision not to choose her for the newly-created position. Unlike the

Plaintiff, who has every reason to lie, the decisionmaker, Mr. Wenban, is not a defendant in this matter and has not even been employed by the Company for almost two years. See Wenban Declaration ¶ 3. Importantly, Mr. Wenban testified in his deposition that his job also was ultimately eliminated due to the Company's continuing reorganization/reduction in force. See Exhibit 4 to Defendant's Response to Motion to Strike. Moreover, Mr. Wenban's testimony in his deposition and Declaration was believable, consistent and based on his personal knowledge. Consequently, because Plaintiff has not provided evidence to create a genuine issue of material fact, AdvancePCS respectfully requests that the Court grant its Motion for Summary Judgment. RESPECTFULLY SUBMITTED this 24th day of March 2006. s/ Steven G. Biddle Steven G. Biddle Christie L. Kriegsfeld LITTLER MENDELSON, P.C. Attorneys for Defendant Document 61 13 Filed 03/24/2006

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

I hereby certify that I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants, and mailed a copy of same to the following if non-registrants, this 24th day of March 2006: Michael R. Pruitt Jackson White 40 North Center, Suite 200 Mesa, AZ 85201 s/ ME Martin
Firmwide:80917019.1 026154.1122

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