[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-12591 DECEMBER 12, 2003
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D.C. Docket No. 02-00662-CV-RWS-1
JEANNE SMITH,
Plaintiff-Appellant,
versus
J. SMITH LANIER & CO.,
Defendant-Appellee.
__________________________
Appeal from the United States District Court for the
Northern District of Georgia
_________________________
(December 12, 2003)
Before BLACK, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Jeanne Smith appeals the district court’s grant of summary judgment to J.
Smith Lanier & Co. (JSL), in her lawsuit alleging failure to rehire or transfer after
her position was eliminated, in violation of the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. § 621, et seq. The district court did not err
in granting summary judgment to JSL. We affirm.
I. BACKGROUND
On October 11, 2002, Bill Edwards, Vice-President of Human Resources
and Administration for JSL, and Tom Yearian, Smith’s supervisor, informed Smith
her job was being eliminated. Smith claims she specifically asked Edwards for
another position in the company during the meeting. She informed him she would
take any position in the company and she was willing to relocate. Edwards,
however, told Smith nothing was available for her at that time.
Smith admitted that, after her termination meeting, but prior to her last day
of work, she possessed knowledge of several positions listed as vacant on JSL’s
corporate website. Smith, however, did not express specific interest in any of
them. Moreover, Smith never submitted a formal application for another position
at JSL at any time.
The district court found Smith failed to produce any evidence she applied
for a job or put JSL on notice she was interested in a specific position.
Accordingly, the district court issued an order granting summary judgment to JSL,
from which Smith now appeals.
II. DISCUSSION
2
We review a district court’s grant of summary judgment de novo.
Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir. 1998). In an
ADEA case, we apply the following burden-shifting scheme. “Initially, the
plaintiff must establish a prima facie case of discrimination. The employer then
must respond with a legitimate, nondiscriminatory reason for its actions. In order
to prevail, the plaintiff must establish that the employer’s articulated legitimate,
nondiscriminatory reason was a pretext to mask unlawful discrimination.” Id. In a
reduction-in-force (RIF) case and where a position is eliminated in its entirety:
the plaintiff establishes a prima facie case [of age discrimination] by
demonstrating (1) that she was in a protected age group and was
adversely affected by an employment decision, (2) that she was
qualified for her current position or to assume another position at the
time of discharge, and (3) evidence by which a fact finder could
reasonably conclude that the employer intended to discriminate on the
basis of age in reaching that decision.
Jameson v. Arrow Co., 75 F.3d 1528, 1531-32 (11th Cir. 1996). The ADEA,
however, “does not mandate that employers establish an interdepartmental transfer
program during the course of an RIF, . . . or impose any added burden on
employers to transfer or rehire laid-off workers in the protected age group as a
matter of course.” Id. at 1532-33 (citations omitted). Rather, the ADEA simply
provides that a discharged employee “who applies for a job for which she is
qualified and which is available at the time of her termination must be considered
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for that job along with all other candidates, and cannot be denied the position
based upon her age.” Id. at 1533 (emphasis added).
The question presented is whether Smith’s October 11 statement of general
interest in any job satisfies Jameson’s requirement that she apply for a job. In
other words, we must decide whether Smith’s general statement relieves her of the
obligation to actually apply for a specific position.
The Sixth Circuit held that a plaintiff’s failure to rehire claim failed where
the plaintiff only expressed a general interest in being rehired and did not actually
submit an application for a publicized open position. Wanger v. G.A. Gray Co.,
872 F.2d 142, 145-46 (6th Cir. 1989). Similarly, the Seventh Circuit held that, if
an employer has a system of posting jobs and allowing employees to apply for
them, an employee’s failure to apply for a particular position prevents the
employee from establishing a prima facie case of discrimination. Box v. A&P Tea
Co., 772 F.2d 1372, 1376 (7th Cir. 1985).1
1
Smith relies on Kehoe v. Anheuser-Busch, Inc., 96 F.3d 1095 (8th Cir. 1996), and
Binder v. Long Island Lighting Co., 57 F.3d 193 (2d Cir. 1995), overruled on other grounds by,
Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997), for the proposition her failure to apply is
not an absolute bar to her claim for age discrimination. Smith’s case, however, is different than
both Kehoe and Binder.
In Kehoe, the Eighth Circuit held a district court did not commit plain error when it
failed to instruct the jury the plaintiff was required to apply for an open position as part of his
prima facie case. 96 F.3d at 1105. The Eighth Circuit found the plaintiff’s evidence was
sufficient to support the jury’s conclusion his employer discriminated against him because of his
age, and therefore, no plain error occurred. Id. The court noted it would be inclined to hold that
4
We agree with the Sixth and Seventh Circuits. A general interest in being
rehired without submitting an application is not enough to establish a prima facie
case of age discrimination when the defendant-employer has publicized an open
position.2 Here, Smith knew of vacant positions, but she chose not to apply for
any of them, even though she admitted she was neither dissuaded nor prevented by
management from doing so. Moreover, Smith advances no evidence suggesting it
was JSL’s policy or practice to transfer individuals to vacant positions who had
not first specifically applied for them. 3
Smith cites Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1133
the application requirement should be excused in this case, as plaintiff’s employer had a reason
or duty to consider him for the job because the supervisors knew they were going to eliminate his
position as a sports promotion coordinator at the same time they were surveying candidates for
an available sports promotion coordinator. Id. at 1105 n.13. In contrast, Smith was the only
proposal technician at JSL and none of the positions she identifies as possible transfers are
similarly situated to the position she held before.
In Binder, the Second Circuit found the employee’s failure to apply for positions through
the formal process was not a bar to his age discrimination suit. 57 F.3d at 200-01. The court
found the words and deeds of the vice president of human resources suggested to the employee
that he did not need to apply for positions filled through the formal process because the vice
president was already investigating those opportunities or because the employee could not be
considered for those positions because it would violate the employer’s underemployment policy.
Id. Smith advances no similar evidence.
2
Smith relies on Beaver v. Rayonier, Inc., 200 F.3d 723 (11th Cir. 1999), as a case with
similar facts where we found age discrimination. In that case, however, we did not discuss either
the impact of vacant jobs being made known publicly or whether the plaintiff actually applied for
any of the open positions. Thus, Beaver is not relevant to our analysis.
3
We agree with the Sixth Circuit in Wanger that there are “limited situations” where an
employee need not necessarily apply for a position before alleging discrimination. This case is
not one of the “limited situations.”
5
(11th Cir. 1984), to support her argument that JSL had some reason or duty to
consider Smith for other positions, even though Smith never applied for those
positions. Carmichael, however, involved a system where there was no formal
notice of jobs, and the company relied on word of mouth and informal review
procedures. There we found the plaintiff was not required to apply for a specific
job, because he had no way of knowing about its availability. Here, JSL formally
posts its vacant positions on the company’s website or in local newspapers and
requires an application be filed for the position. Smith knew about the availability
of positions and chose not to formally apply. Thus, Carmichael is inapplicable.
III. CONCLUSION
For the reasons stated, Smith fails to establish a prima facie case of
discrimination. Accordingly, we hold that the district court did not err by granting
JSL’s motion for summary judgment.4
AFFIRMED.
4
We do not address Smith’s arguments that the district court erred by finding (1) she was
required to show the open positions were similarly situated to her old position, and, (2) she failed
to show she was qualified for the open positions, because we find she failed to apply for the open
positions.
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