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Click here for the full text of this decision FACTS:Clara Patrick advances charges of age discrimination and retaliation arising out of the U.S. Immigration and Naturalization Service’s refusal to promote her to a supervisory position for which she had applied. In 1999, Patrick applied for a position as a GS-13 Supervisory Realty Specialist. She was denied this promotion, which was given instead to one of her co-workers who is more than 10 years her junior. Patrick timely filed a charge of age discrimination with the EEOC. She eventually brought suit against the INS on this first claim, but, in 2002, the district court granted the INS’s motion for summary judgment and dismissed Patrick’s first claim. Between the time that she brought suit on her first claim and the date of its dismissal, the SRS position again became available and Patrick reapplied. An INS panel interviewed Patrick and five other applicants for the job but eventually selected an outside candidate recommended by a panel member. Patrick amended her original 1999 complaint to include new charges of age discrimination and retaliation. The INS filed a motion for summary judgment, which the district court granted, and Patrick appealed. HOLDING:Reversed and remanded. The agency asserts that none of the six applicants initially interviewed was sufficiently suited and that this is why it subsequently conducted an interview with the outside candidate and hired her. Yet no evidence in the summary judgment record clarifies or expands on the statement of the INS that Patrick was not “sufficiently suited for the job” other than the panelist’s statement that he evaluated candidates based not only on work credentials and experience but also on how he thought they would fit into the work group. The INS gave no explanation of what this means and produced no specifics for why Patrick would not fit in with the group. “Fatal to the INS’s position here is the well-established rule that, to meet its burden of production under McDonnell Douglas, an employer must articulate a nondiscriminatory reason with”sufficient clarity’ to afford the employee a realistic opportunity to show that the reason is pretextual,” the court writes. “We hold as a matter of law that justifying an adverse employment decision by offering a content-less and nonspecific statement, such as that a candidate is not “sufficiently suited” for the position, is not specific enough to meet a defendant employer’s burden of production under McDonnell Douglas. It is, at bottom, a non-reason,” the court continues. The court finds that because Patrick has 1. established prima facie cases of discrimination and retaliation and 2. the INS has failed to satisfy its burden of producing a legitimate, nondiscriminatory reason for its employment decision, “the McDonnell Douglas pas de deux is over and the INS’s motion for summary judgment must be denied.” OPINION:Wiener, J.; Reavley, Davis and Wiener, JJ.

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