Free Motion for Summary Judgment - District Court of Arizona - Arizona

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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 moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. No genuine issue as to any material fact exists in this case and judgment in favor of AdvancePCS should be granted as a matter of law. This Motion is supported by the below Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND SUMMARY OF ARGUMENT On February 13, 2004, Plaintiff Connie Alms ("Plaintiff" or "Alms") commenced this action against her former employer, AdvancePCS, alleging a violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA"). Plaintiff's claim arises out of, and is limited to, her separation from AdvancePCS's employ during a 2002
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Case No.: CIV 04 0332 PHX JWS DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

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

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

reduction in force in which the Company also separated 150 other employees. As explained below, Plaintiff's claim does not withstand even the slightest scrutiny. Essentially, Plaintiff argues that she was separated from her employment because of her age and a younger person with less experience was retained and placed in her position of Senior Information Security Analyst. However, as the discussion that follows demonstrates, this Motion must be granted because Plaintiff admits she has no direct or circumstantial evidence to show that AdvancePCS terminated her because of her age. To the contrary, the undisputed facts establish that AdvancePCS had legitimate, economic reasons for a Company-wide reduction in force that led to the elimination of Plaintiff's position, and that Plaintiff was not retained to fill a new position created in her Department for legitimate, nondiscriminatory reasons wholly unrelated to her age. In summary, no genuine issue of material fact exists that precludes the entry of judgment for AdvancePCS on Plaintiff's claim. AdvancePCS therefore requests that the Court enter summary judgment in its favor and dismiss this action in its entirety. II. STATEMENT OF FACTS A. Plaintiff's Employment with AdvancePCS

While Plaintiff worked there and before being purchased in March 2004 by Caremark Rx, AdvancePCS provided integrated pharmacy benefit management and certain clinical and formulary services in connection with its clients' prescription drug health benefit plans. Plaintiff was hired by the Company on May 15, 2000, as an Information Security Analyst in the Information Security ("IS") Department that was located in Scottsdale, Arizona. SOF 1. The IS Department was responsible for preserving and maintaining often highly confidential and private medical and other information residing in the Company's computer systems. SOF 2. An IS Analyst administered one or more of the multiple computer security products, including ACF2, Tandem/Guardian/Safeguard, Windows NT, OS/400, AIX, Solaris, HP-UX and Lotus Notes. The employees provided IS "help desk" assistance in support of internal and external customers and directly (or through supervision of delegated authority) administered application security including web-based applications, batch jobs, on-line
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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

applications under certain operating systems or other network applications. IS employees also reviewed appropriate security logs and followed up on suspected violations. They also supported the overall IS organization by participating in teams and taskforces. SOF 2. As an IS Analyst, Plaintiff's main responsibility was working with only one of the computer platforms, the ACF2 system, assisting in maintaining the security of the system, creating access for employees, working with technical personnel who supported ACF2, assisting programmers with ACF2 when a new application was installed, and training other employees in the Department on any new developments with the ACF2 software. SOF 3. Other employees in the IS Department supported the other platforms used by the Company. Plaintiff remained in this position until her position was eliminated effective March 28, 2002. SOF 4. B. AdvancePCS's Reorganization

In late 2001, based on the general business climate and other economic factors, AdvancePCS decided to undergo a significant reorganization. SOF 5. That effort resulted in a substantial reduction in force. SOF 6. The Company determined that it needed to

eliminate approximately 150 positions throughout the United States. SOF 7. As part of the reorganization, the Company determined that the IS Department in Scottsdale would be transitioned to the Company's Dallas, Texas offices. SOF 8. On or about January 2, 2002, Ralph Poore, Vice President of AdvancePCS, and Rick Wenban, Director of the Company's IS Department, held a meeting with the Scottsdale IS employees to inform them about the IS reorganization. SOF 9. The employees were informed that the restructuring would include eliminating the Scottsdale IS Department and a transition of those positions to the Dallas facility. SOF 10. At the initial meeting, all of the employees in the IS Department were offered a position in the IS Department in Dallas. SOF 11. Each Scottsdale IS employee, including Plaintiff, rejected the offer to relocate to Dallas. SOF 12. In addition, the employees were encouraged to apply for other available jobs within the Company. SOF 13. The employees also were told that if they did not move

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

to Dallas or find another job in the Company, they would be offered a severance package because their positions were being eliminated. SOF 14. C. The New Temporary Position Created for the Scottsdale Facility

After the January 2 meeting, Management decided that in order to facilitate a smooth transition of the IS functions from Scottsdale to Dallas, a new IS Analyst position would be created in Scottsdale that would be temporary and ultimately would be eliminated or transferred to Dallas once the reorganization of the IS functions to Dallas was complete.2 SOF 15. Mr. Wenban met with each employee in the IS Department and explained that a new position was being created and would temporarily remain in Scottsdale to facilitate a smooth transition to Dallas. SOF 15. All the employees in the IS Department were

encouraged to apply for the new, temporary Analyst position. SOF 16. Like her coworkers, Plaintiff expressed interest in applying for the new IS Analyst position. SOF 17. Mr. Wenban, the person charged with deciding who would fill this new position, explained to Ms. Alms and the other applicants that the new position differed from those currently in the IS Department and that the Company was looking for an employee with a working knowledge of the security functions of the multiple computer platforms/systems used by the Company (rather than in-depth of knowledge of just one platform, as was the case with Plaintiff). SOF 18-19. In addition, he explained that the Company also wanted to make sure the employee who was chosen was skilled at working independently because there would not be an on-site, immediate supervisor and the employee would often need to solve problems on his/her own. SOF 19. He also explained that successful applicant needed to have excellent interpersonal skills, temperament, and critical thinking skills because in the new position, the employee would be required to deal with other Company employees who were often upset because their computer system's security was not operating properly. SOF 20. The employee who took the new Analyst position also would have to remain calm and
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The Company also decided to keep another IS position in Scottsdale on a temporary basis to support the transition. This other position was for someone who dealt with mainframe, rather than software, issues and Plaintiff admittedly was not qualified for or interested in the mainframe position. SOF 15.

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

handle crisis situations on a regular basis, while doing so with tact and a positive and comforting attitude. SOF 21. In essence, the new IS Analyst position was an internal "customer service" position requiring patience and good interpersonal skills in addition to broad technical knowledge. SOF 22. In making his decision of who to retain for the new position, Mr. Wenban considered and treated all of the applicants for this position the same. He never considered age as a factor in selecting an employee for the newly created Analyst position. In fact, Mr. Wenban was especially careful not to use age as a factor in his decision making process because at a previous employer, Mr. Wenban himself had been the victim of age discrimination in a restructuring when his and other older employees' jobs were eliminated, leading to a charge of discrimination and lawsuit. SOF 23. Thus, in making this decision, Mr. Wenban bent over backwards to make sure the most qualified employee was retained, based on the qualifications the Company needed for the position, without any regard to age. SOF 23. 1. The Selection Process

In order to make the most reasoned decision, over the next few months, Mr. Wenban gathered information from supervisors and other sources, conducted several meetings and face-to-face interviews with the employees, and reviewed the applications and other materials submitted by each applicant. Mr. Wenban spent time with each of the employees to allow them to explain their daily job responsibilities and qualifications for the new position. In addition, each employee communicated their qualifications for the new position to Mr. Wenban either verbally or via e-mail. SOF 24. Following this process, Mr. Wenban determined that Rosetta Carr, followed by Annie Simonton, were the most qualified for the new position because they were the best in terms of having working knowledge of the various computer platforms used by the Company and they had the necessary interpersonal and other skills required for the new position. Ms. Alms, on the other hand, was only proficient in one of the computer platforms utilized by the Company, ACF2, and was not well-regarded by her supervisors, co-workers and the internal customers for her patience and interpersonal skills. SOF 25. Thus, Mr. Wenban determined
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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

that Ms. Carr and Ms. Simonton had the broadest knowledge of the various platforms and were most suited for the newly-created position. SOF 25. Once Mr. Wenban made his initial determination, he discussed it with Gina Wise, supervisor of the IS Department, and Rick Gounaris, Vice President of Information Security, both of whom reviewed and concurred with Mr. Wenban. SOF 26. Thereafter, Mr. Wenban offered the position to Ms. Carr. Ultimately, however, Ms. Carr changed her mind and decided to move with the IS Department to Dallas, so Ms. Simonton was hired for the new temporary Analyst position in Scottsdale. SOF 27. After several months of working in this position, Ms. Simonton did not return after taking pregnancy leave and, as planned, her temporary position was not refilled. Rather, the duties for this position were moved to Dallas and made permanent, thus removing the entire IS presence from Scottsdale. SOF 30. 2. The Most Suitable Candidates a. Rosetta Carr

Both Ms. Carr and Ms. Simonton had been with the Company for longer than the Plaintiff. Ms. Carr was hired by AdvancePCS on November 23, 1998 as a Senior

Information Security Analyst. SOF 28. In terms of the newly-created IS position, after interviewing her, reviewing her application materials and speaking with others, Mr. Wenban determined Ms. Carr best fit the new job description in terms of her breadth of knowledge of multiple platforms, interpersonal skills and the other criteria. SOF 31. Before Mr. Wenban offered the position to Ms. Carr, however, he determined that she would be most useful in Dallas because of the extensive experience she had acquired during her tenure with the Company, including an in-depth knowledge of all of the platforms used by AdvancePCS as well as her exceptional interpersonal skills and knowledge of the different job responsibilities and daily tasks of each position in the IS Department. SOF 32.

Accordingly, he offered Ms. Carr a financial incentive of $25,000 to move to Dallas, which she accepted. SOF 33.

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

b.

Annie Simonton

After Ms. Carr accepted the transfer to Dallas, Mr. Wenban offered the Scottsdale position to his second choice, Annie Simonton. SOF 36. Ms. Simonton had been hired by AdvancePCS on January 4, 1999, as an IS Technician, so she had been with the Company almost 1½ years longer than the Plaintiff. SOF 29, 34. She was hired after receiving her Computer Science Degree from Northern Arizona University (unlike Plaintiff who did not have a college degree) and, during her employment with AdvancePCS, she had become competent in dealing with security issues for all of the various platforms utilized by AdvancePCS. SOF 25, 34. Based on his conversations with others, Mr. Wenban also learned that Ms. Simonton had impressive interpersonal skills, an even temperament, the ability to stay calm and work independently and strong critical thinking skills. Thus, Mr. Wenban believed Ms. Simonton was the second best candidate following Ms. Carr based on his interviews with her, his conversations with others familiar with her work, and his review of the paperwork she submitted for the position. Accordingly, Mr. Wenban offered Ms. Simonton the position and Ms. Simonton accepted. SOF 35-36. After remaining in the new, temporary position for a few months, Ms. Simonton quit after becoming pregnant and did not return and, as contemplated, the Company did not fill the position, but moved its functions to Dallas as part of the Department's reorganization. SOF 38. D. Plaintiff Did Not Receive the New, Temporary Position Because She Was Not the Most Qualified for the New Position.

Contrary to her allegations, Plaintiff was not replaced; the position she sought was a newly-created position for which she was not the most qualified. SOF 40. The new position differed from Plaintiff's Analyst position in that the new position required experience on the security functions of all of the various computer platforms utilized by the Company rather than just one.3 SOF 41. In addition, Mr. Wenban was looking for an individual with
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As evidence of Plaintiff's age discrimination claim, Plaintiff alleges that she was replaced by Ms. Simonton because the new job description that was initially posted was entitled Senior Information Security Analyst, which was Plaintiff's then-current job title. Contrary to Plaintiff's assertion, however, this is not evidence of age discrimination. Rather, Mr. Wenban testified that he needed to use an existing job title that was recognized by the Company's computer system in order to post the new job, and Senior Information Security

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

exceptional interpersonal skills because the new position would serve as a liaison between the Dallas and Scottsdale IS facilities and the person essentially needed to act as a oneperson, stand-alone help desk to assist the Company's Scottsdale employees with their IS needs. SOF 43. Thus, the new position required excellent customer service skills and the ability, without direct supervision, to work well with others to answer any technical questions employees may have regarding access to and operation of the security functions of the various computer systems utilized by the Company. SOF 44. Plaintiff applied for and was considered for the new position. SOF 45. In fact, all employees in the IS Department applied for and were considered for new position. SOF 46. Mr. Wenban considered all the applicants equally, without regard to age; he met with them individually, reviewed their application materials and asked others about them. SOF 23, 47. Because Plaintiff's main experience with the Company had been the ACF2 platform, she did not possess the working knowledge of the other computer systems utilized by the Company, which was one of the requirements of the new position. SOF 48. In fact, Plaintiff told Mr. Wenban that she did not want to work on any platform other than ACF2. SOF 49.

Moreover, during her interviews and based upon conversations Mr. Wenban had with Plaintiff's supervisors, he determined that Plaintiff did not have the necessary interpersonal and other skills required for the new position, especially when compared to Ms. Carr and Ms. Simonton. SOF 50. Accordingly, Plaintiff did not receive an offer for the new position, and was offered a severance package when she refused to transfer to Dallas or find another job elsewhere in the Company. Plaintiff's last day of work was March 28, 2002. SOF 4. E. There Is No Direct or Circumstantial Evidence of Discrimination

Plaintiff admits that no one at AdvancePCS, including Mr. Wenban, ever told her she was being terminated or not chosen for the position because of her age. SOF 51. Similarly, Plaintiff admits she knows of no one at AdvancePCS telling Mr. Wenban or any other supervisor not to chose her because of her age. SOF 52. Admittedly, Plaintiff's entire claim
Analyst was the closest job title to the new position created, which was an Information Security Analyst position. SOF 42.

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

of age discrimination is based solely on the fact that Ms. Simonton, a younger person, received the new position as part of the reorganization of the Company, and Plaintiff concedes she has no evidence at all to show the decision was based on her age. SOF 54. Most tellingly, when asked in her deposition if she had any evidence whatsoever to prove that the decision not to retain her was motivated by her age, Plaintiff answered "I have no proof." SOF 53. III. LEGAL ARGUMENT A. Plaintiff Cannot State a Claim under the ADEA

The ADEA prohibits an employer from discriminating against any forty-year-old or older individual on the basis of age. 29 U.S.C. § 623(a)(1). In order to establish a prima facie case of age discrimination in a reduction in force case, the plaintiff must establish: (1) she is forty years old or over; (2) she was qualified for the position; (3) despite being qualified she was adversely affected; and (4) someone younger, with equal of inferior qualifications, received the position. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Dept. of Community Affairs v. Burdine, 450, U.S. 248 (1981). Under the ADEA, a plaintiff has the burden of proving, by a preponderance of the evidence, that her employer intentionally discriminated against her because of her age. See Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). A plaintiff may prove intentional "Absent direct

discrimination by presenting either direct or circumstantial evidence.

evidence of discriminatory intent, as is typically the case, proof via circumstantial evidence is assembled using the framework set forth in the seminal case of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)." Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000); see also Cassino v. Reichhold Chemicals, Inc., 817 F.2d 1338 (9th Cir. 1987) (to show a violation of the ADEA, the plaintiff must prove "age was the determining factor" in the employer's decision). While Ms. Alms may subjectively believe that she was not retained because of her age, she has no evidence of such discrimination. Ms. Alms readily admits that she has no direct evidence of age discrimination. Specifically, she admits that no supervisor or manager
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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

at AdvancePCS, including Rick Wenban, 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. SOF 51. Similarly, she knows of no one at AdvancePCS telling Mr. Wenban or any other supervisor to terminate her or not retain her because of her age. SOF 52. Thus, she has no direct evidence to prove age discrimination. Likewise, there is no circumstantial evidence to support her claim. In fact, Ms. Alms' claim of age discrimination is based solely on the fact that Ms. Simonton, a younger employee, was retained and received the newly created position, even though it had new job responsibilities that were different from Alms' position. SOF 54. Most significantly,

Plaintiff admitted in her deposition to having "no proof" that the decision was motivated by her age. SOF 53. Instead, the evidence demonstrates that although Ms. Carr, Ms. Simonton and Ms. Alms all had been performing well in their previous positions, Mr. Wenban's decision to offer Ms. Carr and Ms. Simonton the new position was based on his assessment that they were more qualified than Ms. Alms. SOF 25. In fact, that determination was based on relevant experience, especially experience with and technical knowledge of the Company's multiple systems, production levels, performance evaluations, interpersonal skills, temperament, critical thinking skills, ability to work independently and cross-training experience. SOF 25, 35. Moreover, Ms. Carr had been with the Company two years longer than Ms. Alms and Ms. Simonton had been with the Company almost 1½ years longer than Ms. Alms and they both possessed a broader technical knowledge on a variety of computer systems as compared to Ms. Alms. SOF 28-29, 34. Additionally, Plaintiff's experience with AdvancePCS systems was limited to only one of the platforms (ACF2) used by the Company. SOF 25, 48. Plaintiff simply did not have the breadth of knowledge of various platforms and she did not possess the interpersonal skills and temperament required for the new position. Id. Clearly, the Company offered the position to the most qualified

employees, Ms. Carr and Ms. Simonton, based on the qualifications the Company felt were needed for the position. Therefore, the fact that Ms. Carr and Ms. Simonton are younger
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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

than Ms. Alms was completely irrelevant to the Company's decision, and that fact alone is not sufficient to prove the Company engaged in intentional age discrimination, which it obviously did not. In addition, in ADEA cases, courts consistently have found that when the decision maker also is over 40 and/or about the same age as the plaintiff, there is an inference of nondiscrimination. See, e.g., Elrod v. Sears, Roebuck and Company, 939 F.2d 1466, 1471 (11th Cir. 1991) ("Elrod faces a difficult burden here, because all of the primary players behind his termination . . . were well over age forty and within the class of persons protected by the ADEA"); see also Hardy v. Marriott Corp., 670 F. Supp. 385, 391 (D.D.C. 1987). In the instant case, the decision maker, Mr. Wenban, was 53 at the time he make the decision not to retain Plaintiff (who was 56 at the time), and he believed he was older than her. SOF 57. Therefore, the Court should infer age was not a motivating factor in his decision. Thus, Ms. Alms 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 who was hired for a new position, and that only satisfies one element of the 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. B. Plaintiff Cannot Establish Pretext for Age Discrimination.

Even assuming the Plaintiff could make a prima facie case of age discrimination, which she cannot, the burden of production would shift to AdvancePCS to produce evidence that the Plaintiff was dismissed or not given the new position for a legitimate, nondiscriminatory reason. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); Reeves v. Sanderson Plumbing, Prods., Inc., 530 U.S. 133, 142 (2000); McDonnell Douglas Corp., 411 U.S. at 802. This burden is one of production, not proof; it cannot involve any credibility assessment. Id.; see also Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000). Moreover, a court is not permitted to substitute its belief as to what an employer's decision should have been for the employer's actual decision as long as the decision are not based on illegal discrimination. Burdine, 450 U.S. at 253. The court
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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

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 the claim to survive a motion for summary judgment. Id. Thus, it is critical that the court refrain from acting as a "super personnel department" that reexamines or second-guesses an employer's business decisions and give credence to the employer's business judgment. Dale v. Chicago Tribune Co.¸ 797 F.2d 458, 464 (7th Cir. 1986). If AdvancePCS succeeds in carrying its burden of production, as it can here, any presumption of discrimination is effectively rebutted. Then, the burden of proof is on the Plaintiff to prove that AdvancePCS's articulated reasons are false, that is, a pretext for illegal discrimination. Costa v. Desert Palace, Inc., 299 F.3d 838, 855 (9th Cir. 2002); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1282 (9th Cir. 2000). Indeed, merely showing that the employer's stated reasons for the decision are pretextual is insufficient; the Plaintiff must establish that the reasons for the decision were discriminatory. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 508 (1993). Stated differently, once AdvancePCS articulates its

legitimate, non-discriminatory reason for the challenged action, to avoid summary judgment, Ms. Alms must offer sufficient evidence for the Court to infer that AdvancePCS's articulated reason is merely a pretext for intentional age discrimination. See Reeves, 530 U.S. at 143 (noting that a plaintiff must present "sufficient evidence to find that the employer's asserted justification is false."). "[P]laintiff may attempt to establish that [s]he was the victim of intentional discrimination by showing that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256; Reeves, 530 U.S. at 143. However, AdvancePCS's proffered reason for termination "cannot be proved to be a pretext for discrimination unless it is shown both that the reason was false and that discrimination was the real reason." Hicks, 509 U.S. at 508 (emphasis added). In fact, the law obligates the Plaintiff to produce

"specific, substantive evidence of pretext," which must consist of more than the minimum necessary to establish a prima facie case. See Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994) (an employee cannot simply deny the employer's legitimate, nondiscriminatory reason).
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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

Of course, a plaintiff's prima facie case of discrimination, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the Court not to grant summary judgment. Reeves, 530 U.S. at 143. However, an employer is entitled to summary judgment if the record shows some non-discriminatory reason for the employer's decision, or if the plaintiff creates only a weak issue of fact as to whether the employer's proffered reason is untrue and there is evidence that no discrimination occurred. Id. Even assuming arguendo that Ms. Alms can 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 reduction in force and that she was not the most qualified applicant. Therefore, Ms. Alms simply has no evidence to prove that AdvancePCS's reasons are false and a pretext for age discrimination. As mentioned, as part of the Company-wide reduction in force in 2002, AdvancePCS decided to reduce the number of employees throughout the organization, including eliminating the IS Department in Scottsdale. SOF 5-8. A reduction in force is a legitimate, non-discriminatory reason for discharging an employee under the ADEA. See Coleman, 232 F.3d at 1282; Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918 (9th Cir. 1997). Moreover, Ms. Alms' age was not a factor in determining whether she would be hired for the newly-created temporary Analyst position. SOF 23. Two more qualified candidates from the Scottsdale group were offered the new position (Ms. Carr who was over 40 and Ms. Simonton who was under 40) by a decision maker 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. Consequently, the Court should grant summary judgment in favor of AdvancePCS on Plaintiff's age discrimination claim. C. The EEOC's Determination Does Not Preclude Summary Judgment

Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") on April 29, 2002. SOF 55. After a very cursory investigation,
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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

which did not even include an interview of Mr. Wenban, the decision maker, or any other AdvancePCS supervisor or manager, the EEOC issued its determination baldly stating that Plaintiff had been discriminated because of her age "by failing to select her for the position of Senior Information Security Analyst even though she had been the incumbent in the position. A younger, less qualified individual was selected. As a result, [Plaintiff] was laid off/discharged." SOF 56. As is obvious from that statement, and the evidence provided herein, that statement is not true and the EEOC clearly did not investigate the claim sufficiently. Thus, despite the EEOC's determination, the Court still should grant summary judgment for AdvancePCS. Court's have long recognized that EEOC determinations do not create a genuine issue of material fact precluding summary judgment because "such letters are `not homogeneous products; they vary greatly in quality and factual detail." See, e.g., Coleman, 232 F. 3d at 1283 (citing Johnson v. Yellow Freight System, Inc., 734 F.2d 1304, 1309 (8th Cir. 1984)). In this case, it is impossible to tell from the EEOC's letter in the instant case what facts the EEOC considered and how it analyzed them. Examining similarly conclusory EEOC letters, other courts have concluded that when the letters only report bare conclusions, they have little probative value and do not preclude summary judgment for the employer. See

Coleman, 232 F.3d at 1283; Cortes v. Maxus Exploration Co., 977 F.2d 195, 201-02 (5th Cir. 1992); Goldberg v. B. Green & Co., Inc., 836 F.2d 845, 848 (4th Cir. 1988). Moreover, as the undisputed facts now show, the EEOC's conclusory opinion clearly is without merit. Plaintiff was not "replaced" by a younger individual. Instead, her position was eliminated for a legitimate, non-discriminatory reason - a reduction in force. Plaintiff applied for the new, different position that was created as part of the Company's reorganization, however, Plaintiff was not the most qualified because she did not possess the required skills and abilities for that new position. Accordingly, Plaintiff did not receive the new position and instead was laid off due to the reduction in force.

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

IV.

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

fact and that AdvancePCS is entitled to summary judgment. The evidence shows that Plaintiff's position was eliminated due to a reduction in force and Plaintiff even admits there is no evidence that her age played any part in the Company's decision to eliminate her position and not retain her. Consequently, AdvancePCS respectfully requests that the Court grant its Motion for Summary Judgment. RESPECTFULLY SUBMITTED this 6th day of January 2006.

s/ Steven G. Biddle Steven G. Biddle Christie L. Kriegsfeld LITTLER MENDELSON, P.C. Attorneys for Defendant 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 6th day of January 2006: Michael R. Pruitt Jackson White 40 North Center, Suite 200 Mesa, AZ 85201 s/ ME Martin
Firmwide:80688042.1 038005.1020

Case 2:04-cv-00332-JWS

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