Chouinard v . Corrections CV-02-594-JD 01/06/05 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Karyn Chouinard

v. Civil N o . 02-594 JD Opinion N o .

New Hampshire Department of Corrections

O R D E R

Karyn Chouinard, proceeding pro s e , brings a claim pursuant

to the Age Discrimination in Employment Act (“ADEA”), against the

New Hampshire Department of Corrections (“DOC”). She contends

that the DOC failed to promote her to the position of parole and

probation officer because of her age. The DOC moves for summary

judgment, and Chouinard objects.

Standard of Review

Summary judgment is appropriate when “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). The party seeking summary judgment must first demonstrate

the absence of a genuine issue of material fact in the record.

See Celotex Corp. v . Catrett,

1 7 , 323 (1986). A party opposing a properly supported motion for summary judgment must

present competent evidence of record that shows a genuine issue

for trial. See Anderson v . Liberty Lobby, Inc.,

4 2 ,

256 (1986). All reasonable inferences and all credibility issues

are resolved in favor of the nonmoving party. See id. at 255.

Background

The DOC hired Karyn Chouinard as a corrections officer

trainee in April of 1984. At the end of the probationary period,

Chouinard became a corrections officer assigned to the men’s

prison in Concord. She received positive job evaluations and

moved to the women’s prison in 1989. At the same time, Chouinard

was considered for promotion to corporal. As part of the

promotion process, Chouinard appeared before an oral interview

board in August of 1989 and earned an average score of 29.7 out

of a possible 35 points. She was promoted to corporal and

continued to work at the women’s prison, receiving positive job

evaluations.

In 1992, Chouinard transferred back to the men’s prison and

worked as a corrections officer in the minimum security unit.

Later in 1992, she applied for the position of sergeant mentor.

She appeared before an oral board that was considering her

application in mid-November. Her average oral board score was

2 30.5. She was selected for the sergeant mentor position and

began work in that capacity at the Lakes Region Facility in

January of 1993. She received positive job evaluations in that

position. In July of 1998, Chouinard transferred back to the

men’s prison in Concord and continued to work as a sergeant

mentor there. Chouinard applied for promotion to the position of parole

and probation officer in February of 2000, when she was forty-two

years old. Her application, which indicated a “B.S.” degree, was

accepted on February 2 8 , 2000. That position required a

bachelor’s degree. In March, the DOC was notified that Chouinard

had completed all of the requirements for a bachelor of science

degree from the College of Lifelong Learning, and that she would

receive her degree in June of 2000.

On April 7 , 2000, Chouinard appeared before an oral board, composed of three members, who evaluated her for the position of

parole and probation officer. She scored 39.33 points out of a

possible 50 points in the oral interview process and 43 points on

the factors score, which is heavily weighted in favor of

seniority. In general, the applicant with the highest oral board

score is offered the position. Although Chouinard had the

highest overall score, two other candidates received higher oral

scores, and one of those candidates, Karen Tremblay, was offered

3 the position. In recommending Tremblay, the board’s memorandum

noted her excellent interview, her master’s degree in social

work, her previous work experience, and her demonstrated writing

skills. Tremblay was thirty years old when she was hired for the

position.

Chouinard continued working for the DOC as a sergeant mentor

and received generally positive job evaluations. She also

continued to apply for promotion to the position of parole and

probation officer. She was not selected for any of the openings.

On December 2 7 , 2002, Chouinard filed suit against the DOC,

alleging that the DOC discriminated against her based on her age

in the hiring for the parole and probation officer position.

Discussion

The DOC moves for summary judgment, asserting that Chouinard

cannot make a prima facie case of discrimination, and,

alternatively, that the DOC’s decisions were made for legitimate

reasons. Chouinard contends that she can establish a prima facie

case and that the DOC’s asserted reasons for not promoting her

are a pretext for discrimination. She argues that summary judgment is not appropriate.1

1 Chouinard raises issues that arose in discovery to undermine the Warden’s credibility. Although the parties’

4 The ADEA makes it unlawful for an employer to take an

adverse employment action against an employee based on the

employee’s age. Estades-Negroni v . Assocs. Corp. of North Am.,

2 , 63 (1st Cir. 2004). When considering a motion for

summary judgment in a case alleging disparate treatment due to

age without direct evidence of discrimination, the court first

considers whether the plaintiff can establish a prima facie case

under the McDonnell Douglas test. See Raytheon C o . v . Hernandez,

4 , 50 (2003) (citing McDonnell Douglas, Corp. v . Green,

9 2 , 802-05 (1973)); Currier v . United Techs. Corp.,

(1st Cir. Dec. 2 2 , 2004); Rivera-Aponte v .

Restaurant Metropol # 3 , Inc.,

(1st Cir. 2003). A

prima facie case is made if the plaintiff shows that she was at

least forty years old, she was qualified for an open position for

which she applied, she was not promoted to that position, and

someone else with similar qualifications was hired for the position. De La Vega v . San Juan Star, Inc.,

1 1 , 117

(1st Cir. 2004); Rathbun v . Autozone, Inc.,

2 , 71 (1st

Cir. 2004).

If the prima facie case is made, the defendant must come

discovery process was hotly contested, those matters are not pertinent to the merits of Chouinard’s case for purposes of summary judgment.

5 forward with a legitimate, non-discriminatory reason for its

decision. Raytheon,

0 . Then, “the inference of

discrimination disappears and the plaintiff is required to show

that the employer’s stated reason is a pretext for

discrimination.” Kosereis v . Rhode Island,

0 7 , 212

(1st Cir. 2003). The showing necessary to establish a prima facie case of discrimination is not burdensome. Rivera-Aponte,

1 . The more difficult question in most

discrimination cases is whether the employer’s proferred reason

for its decision is a pretext for discrimination. Candelario

Ramos v . Baxter Healthcare Corp. of P.R., Inc.,

3 , 56

(1st Cir. 2004).

Although the DOC disputes the issue, the court will assume

that Chouinard can make a prima facie case of discrimination.

Therefore, the analysis moves to the question of whether the DOC’s explanations for its decisions not to hire Chouinard for a

position as a parole and probation officer are pretext for an

underlying discriminatory purpose.

The DOC explains that Chouinard was not offered the first

parole and probation officer position, in April of 2000, because

Karen Tremblay, the successful applicant, was more qualified.

Tremblay had a master’s degree in social work while Chouinard had

not yet been awarded her bachelor’s degree. In addition,

6 Tremblay provided an outstanding writing sample and had relevant

work experience.2 The DOC also points out that because Chouinard

would not have been qualified for the position until she received

her degree in June, while Tremblay was qualified in April,

Chouinard could not have started in the position as soon as

Tremblay could.

Chouinard argues that the DOC’s reason is pretextual because

she had completed the requirements for her degree and had a

higher factor score, due to her seniority, which made her overall

score higher than Tremblay’s overall score. Those qualifications

are undisputed. However, they do not show that Tremblay was only

as qualified as Chouinard; instead, it is clear that Tremblay was

more qualified.3 Therefore, as to the April 2000 decision,

Chouinard has not shown that the DOC’s reasons for hiring

Tremblay are pretextual.

In her interviews with oral board panels after April of

2 Tremblay also had a higher oral board score than Chouinard, although Chouinard’s overall score, the combination of her factor score with her oral score, was higher. The factor score is heavily influenced by the applicant’s years of service with the DOC. Although Chouinard attempts to undermine the DOC’s reliance on the oral score, the record does not support her argument. 3 The affidavits Chouinard submits from people who worked with her that attest to her competence as a corrections officer do not affect the difference in qualifications between Chouinard and Tremblay for the parole and probation officer position.

7 2000, Chouinard received progressively lower scores. The DOC

explains that they chose other applicants for those parole and

probation officer positions because those applicants had higher

scores than Chouinard. She contests the scores she received in

the later interviews, arguing that her abilities and

qualifications could not have deteriorated as quickly as the scores would indicate and that the low scores were given as a

pretext to discriminate against her because of her age. In

particular, Chouinard contends that the negative changes in the

scores given by Chief Probation and Parole Officers Crockett and

Allen between their evaluations of her in April of 2000 and

subsequent evaluations are evidence of pretext. She argues that

if her oral score from her first interview, done in April of

2000, which she believes is the only valid score, was used in

each of the following application processes, her overall scores would have been higher than those of the successful applicants.

In Currier, the court noted that an inference of pretext may

be drawn from evidence of low evaluation scores that do not

correlate with an applicant’s demonstrated capabilities.

, at * 7 . There, the plaintiff asserted that his low score

on a subjective evaluation completed by the manager was not a

fair representation of his abilities and did not properly

evaluate his work performance and history.

at *2 & * 7 . The

8 jury agreed.

Chouinard submits affidavits from people who worked with her

to show that, contrary to the scores she received from her

interviews, she had good communication skills. Since the oral

board scores are based on particular circumstances during the

interview, rather than general communication skills, the affidavits do not undermine the scores Chouinard received. In

addition, the positions of corrections officer and parole and

probation officer are significantly different, so that competence

in the corrections officer position would not necessarily mean an

applicant would be qualified for a parole and probation officer

position. Therefore, although the affidavits show that Chouinard

performed well in her position as a corrections officer, they do

not show a triable issue as to whether the panel scores were

pretextual. Further, the oral board scores were not merely a subjective

evaluation of a single supervisor, as was the case in Currier.

Instead, Chouinard was interviewed by many different panels of

interviewers with similar results. Although Parole and Probation

Office Chiefs Crockett and Allen, and others, served on more than

one of the oral board panels that evaluated Chouinard, the other

panel members for each board varied. The Warden submits the

affidavit of one of the panel members who remembers Chouinard’s

9 poor performance and gave Chouinard low scores.4 Chouinard

offers no evidence of collusion among the various board members

to give her low scores, nor is there evidence that the panel

members ignored pertinent positive information about Chouinard’s

qualifications. Therefore, unlike the situation in Currier,

Chouinard’s evaluations do not suggest pretext.

Even if Chouinard could show a triable issue as to whether

her low scores were pretext for discrimination, she would also

have to show that “‘the true reason was an age-based animus.’”

(quoting Brennan v . GTE Gov’t Sys.

Corp,

1 , 26 (1st Cir. 1998)). While a strong prima

facie case along with an employer’s unpersuasive explanations,

4 Chouinard offers the affidavit of Sherwood M . Vachss who served on the panel that interviewed her on September 2 5 , 2000. He states that he does not recall that she answered his scenario question in a way that would indicate she would imperil herself or others, as suggested by another member of the panel, and that he recalls she was not at the top or bottom of the list of applicants. The scoring for that board confirms that Chouinard was in the middle of the group of applicants and shows that Vachss gave Chouinard above average scores, but not outstanding scores as he remembers, while the other two panel members, who had not interviewed Chouinard previously, gave her lower scores. Applicants with higher scores were chosen for the position. Therefore, Vachss’s affidavit does not create a factual dispute as to the legitimacy of the scoring process. The affidavit of another applicant, who believes he was not chosen because of a conflict with the director although he had previously worked as a parole and probation officer, does not support Chouinard’s claim that she was not chosen because of her age.

10 and no indication of other legitimate reasons may be evidence of

discrimination, see

at *7 Chouinard has not presented that

kind of case here. She offers no other persuasive evidence of

age-based animus. C f .

(plaintiff passed over in favor of

younger and less qualified candidates and expert witness offered

some statistical evidence of discrimination).

While the record shows that most of the successful

applicants were younger than Chouinard, the record does not

indicate that they were also only similarly qualified. Instead,

it appears that in each case the successful applicant had a

higher oral score than Chouinard.5 That the DOC considered her

seniority but did not give it controlling weight is not evidence

of age discrimination. Further, one of the successful applicants

was only a year younger than Chouinard and was also within the

protected group for age when he was chosen, over Chouinard, for a

parole and probation officer position. Even if the record showed a triable issue as to whether the DOC’s explanation was

pretextual, that would not be sufficient to avoid summary

judgment in the circumstances of this case. See Feliciano De la

Cruz v . El Conquistador Resort & Country Club,

, 8 (1st

5 Chouinard’s argument that her first oral score should be used instead of her later lower scores to show that she was the more qualified applicant in each case is not persuasive.

11 Cir. 2000) (noting that anti-discrimination laws do not

“transform courts into super personnel departments, assessing the

merits--or even the rationality--of employers’ nondiscriminatory

business decisions.” (internal quotation marks omitted)); Hildago

v . Overseas Condado Ins. Agencies, Inc.,

2 8 , 337 (1st

Cir. 1997) (stating that ADEA does not stop employers from making hiring decisions “for any reason (fair or unfair) or for no

reason, so long as the decision . . . does not stem from the

person’s age.”).

Therefore, summary judgment is appropriate in the DOC’s

favor.

Conclusion

For the foregoing reasons, the defendant’s motion for

summary judgment (document n o . 73) is granted. The clerk of

court shall enter judgment accordingly and close the case.

SO ORDERED.

Joseph A . DiClerico, J r . United States District Judge

January 6, 2005 cc: Karyn Chouinard, pro se Mary E . Schwarzer, Esquire

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