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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
October 23, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,v.GEORGE ELLIS WALLACE, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F09095)
P. v. Wallace
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant George Ellis Wallace argues on appeal that the circumstantial evidence of motive, identity, opportunity, and gunshot residue is insufficient evidence to sustain jury verdicts of first degree murder with special circumstances. His briefing reads like a closing argument to the jury and is dismissive of the exacting scope of appellate review. There is, quite simply, ample evidence to support the verdicts, and we reject his evidentiary and instructional objections as well. We accept the Attorney General's concession to award additional presentence custody credits and to eliminate the stayed/suspended restitution fine. In all other respects, we affirm the judgment.
A man with a shotgun shot and killed James Turner and Clifford Brown at very close range in their apartment sometime after midnight on December 15, 2009. The prosecution relied on a mountain of circumstantial evidence that defendant was the shooter.
Motive. In November 2009 defendant lived with his girlfriend, Bryanna Warren, her four-year-old son, and their nine-month-old son. Clifford Brown lived with his girlfriend, Lawanda Shoals, and James Turner. Shoals, angry with Brown, had moved home with her mother for a few days but brought him food on Thanksgiving Day, November 26. She was surprised to encounter Warren at their apartment. A physical altercation between the two women ensued, with Warren coming out on the losing end. Shoals moved back in with Brown on November 27.
Shoals testified that at 6:00 o'clock the following morning, Warren returned to the apartment and shot both Brown and Shoals. Turner was at the apartment when the shooting occurred. Warren was subsequently arrested and charged with two counts of attempted murder.
Defendant lied to the police that he had not seen Warren after the shooting. One of the investigating police officers showed him pictures of the victims. Defendant sought out Brown's mother, who called Brown and allowed defendant to talk to him. She heard defendant say they should "squash this," but Brown hung up on him.
Defendant told another resident of his apartment complex, Antonio Meneses, that his girlfriend was in jail for the shooting and asked him what he should do about it. At the end of the conversation, he told Meneses he would "kill a nigga." Meneses, a hostile witness, testified he thought defendant was joking and that the comment did not relate to defendant's girlfriend's problem.
Identity. There were no witnesses who identified defendant as the shooter. There were many, however, who testified that he had the same ethnicity and physique as the shooter. In short, the shooter was an overweight African American male dressed in all black clothing, including a black beanie.
On the night of December 14 and the early morning hours of December 15, George Clark was visiting Brown, Shoals, and Turner at their apartment. Sometime after midnight, Clark was in the living room when a "real heavy-set" African American, "dressed all in black," including a black vest, pointed a shotgun at him but did not shoot him. He ran out of the house. Clark testified that the person with the gun was the same size as defendant as he appeared in a photograph Clark viewed.
A neighbor testified that he saw a "big guy," weighing at least 200 pounds, peering into the windows of the victims' apartment. According to the neighbor, defendant fit the description of the man he saw. He was wearing a heavy jacket with a hood.
Brown, who had been in the bedroom with Shoals, walked into the hallway, hollered, "oh, shit," and ran back into the bedroom. He pulled Shoals off the bed and onto the floor out of defendant's sight. As she was being pulled off the bed, Shoals caught a brief glimpse of the shooter. She testified he wore a black sweat suit with long pants and a ski mask. He was very bulky in the chest. She estimated that the shooter was between five feet nine inches and five feet eleven inches tall and weighed approximately 210 pounds. She testified that defendant looked like he was the same size as the man with the shotgun.
Detective Zachary Bales of the Sacramento Police Department was assigned to do a follow-up investigation of the shooting. On December 15 he estimated that defendant was approximately five feet nine inches tall and weighed about 300 pounds. Another officer did a search for a physical description of defendant, which revealed that he was six feet one inch tall and weighed 280 pounds.
Defendant appeared on a video surveillance tape at Walmart on December 14, 2009, arriving at about 11:24 p.m. and leaving around 11:50 p.m. He was dressed in all black.
Opportunity. Defendant did not have an alibi. He told the police he had been in his apartment on the night of the shooting. He denied going to Walmart. He claimed the only time he left the apartment was to drive around the apartment complex for a short while at about two or three in the morning.
Forensic Evidence. The assailant kicked in the kitchen door to gain access. There was a footprint left on the door. A shoe matching that footprint was never found.
Defendants' clothes, however, contained gunshot residue. Police officers found a black hooded sweatshirt, black pants, and a black vest in defendant's apartment. There was gunshot residue on the black hooded sweatshirt on the lower front panel and lower right sleeve. There was gunshot residue on the black vest. There was gunshot residue on a Dickies jacket on the bottom of the left sleeve, bottom of the right sleeve, bottom of the right front, top of the right front shoulder area, and bottom of the left front. The gunshot residue was consistent with firing a gun. There was no blood found on the clothing.
Nor was there any blood found in any of defendant's vehicles, including his pickup truck, a pink Honda, or a silver Pontiac. A small amount of gunshot residue was found on the pickup truck's exterior driver's door handle. There was no residue on the Honda or the Pontiac.
Evidence Found in Defendant's Apartment. The police found in defendant's apartment a police report on the Warren shooting prepared for the district attorney's office, including the statements of Brown, Shoals, and Turner, as well as their address and contact information. An examination of defendant's computer revealed a search for "Clifford Brown" on November 28, a Mapquest search for a route from defendant's apartment to the victims' apartment on December 9, and also searches for news reports about the Warren shooting.
No Evidence of Robbery or Revenge. Shoals testified that none of the jewelry, including a ring valued at $40,000, electronics, or cash she had in the house was taken at the time of the shooting. She insisted neither she nor Brown nor Turner sold drugs, and they did not owe anyone any money. She claimed they owned a cleaning and hauling business.
Defense. Defendant did not testify at trial. His lawyer argued that the inferences the prosecutor urged the jury to make were either unreasonable or pointed to both guilt and innocence, and therefore they were required to accept the inference that favored innocence. In particular, he insisted that the gunshot residue could have gotten on defendant's clothes from his contact with Warren after she shot Shoals and Brown. Cross-contamination, in his view, was the likely explanation. He emphasized that liars are not necessarily murderers. Although he had been seen with two pistols, defendant had not been seen at the apartment complex with a shotgun.
DISCUSSION I Sufficiency of the Evidence
There is no dispute about the scope of appellate review of a challenge to the sufficiency of the evidence. A challenger faces an extraordinary burden on appeal to demonstrate that "no rational trier of fact could have agreed with the jury." (Cavazos v. Smith (2011) ___ U.S. ___, ___ [181 L.Ed.2d 311, 313].) We must "'"review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt."' [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 396.)
Because the prosecution's case rests entirely on circumstantial evidence, defendant reminds us that a reasonable inference "'may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence.' [Citation.]" (People v. Morris (1988) 46 Cal.3d 1, 21, disapproved on another ground in In re Sassounian (1995) 9 Cal.4th 535, 543, fn. 5.) He dissects each piece of evidence in a futile attempt to expose fatal weaknesses in the inferences the jury was asked to, and presumably did, draw from the evidence.
We need not determine whether any of the evidence independently would be sufficient to support the judgment. Defendant argues, for example, that the "clothes were not substantial evidence, and the Walmart recordings that [defendant] wore black clothing at 11:30 p.m. also do not constitute substantial evidence." The question is not whether the clothes or the Walmart tapes or the gunshot residue or the directions to the victims' house or the computer searches constitute substantial evidence, but whether cumulatively all the evidence is sufficient to support the judgment. Defendant posits that innocent circumstances were made to look incriminating by piling one conjecture upon another conjecture. (People v. Flores (1943) 58 Cal.App.2d 764, 769-770.) We disagree. This case was not built on conjecture, but on abundant circumstantial evidence that, when viewed as a whole, gave rise to the reasonable inference that defendant was the shooter and he killed two potential witnesses in his girlfriend's upcoming trial.
Our recitation of the facts presents a compelling distillation of the evidence that defendant had the motive to kill Turner and Brown, two witnesses to his girlfriend's attempted murders; that he had the same body type and ethnicity as the shooter; that he was wearing the same kind of clothes as the shooter a short time before the murders; that gunshot residue was found on his clothes; that he had no alibi during the time the murders occurred; that he lied to the police; that he had obtained a police report on his girlfriend's shootings and knew who the witnesses were and where they lived; and that he had contacted Brown and told him of his desire to "squash" the case. Defendant argues on appeal, as he did in closing argument before the jury, weaknesses in the evidence and why the inferences the prosecution urged the jury to make should be rejected. It was the jury's prerogative, however, and not ours to accept or reject defendant's arguments and determine whether the inferences were indeed reasonable.
Although defendant recites the appropriate standard of review, he fails to apply it. We acknowledge any number of weaknesses in the evidence, including the lack of blood on defendant's clothes, the somewhat improbable possibility the gunshot residue was transferred to defendant's clothes, the fact that there are other African American males who are overweight and wear black clothing, and that a protective lover might lie, investigate, or cover up for his girl without being willing to kill witnesses against her, but we do not agree that the jury's verdict is irrational or premised on mere conjecture and speculation. To the contrary, the evidence is circumstantial, but it is compelling. It is neither physically impossible nor inherently improbable. Rather, defendant fit the physical description of the assailant, he had the opportunity and the means to commit the shooting, and he certainly had the motive to eliminate the witnesses to his girlfriend's shootings. Indeed, he chose not to shoot George Clark, a guest at Brown's house who was not a witness to the earlier shootings, and proceeded to shoot both Turner and Brown, both of whom had been witnesses, twice at very close range. Fortunately for Shoals, the only remaining witness, Brown successfully hid her from defendant before Brown himself was shot and killed. All said, there is ample evidence to support the jury verdicts.
II Evidentiary Ruling
Defendant makes much ado about two routine rulings on the admissibility of two questions of a witness particularly hostile to the prosecution. Antonio Meneses, a resident at defendant's apartment complex, knew defendant as a casual acquaintance for about a month. To understand defendant's objection to the trial court's rulings, we must put the questions in context. In the context of the entire examination of this witness, let alone in the context of all the evidence presented at trial, any theoretical prejudice from the rulings vanishes.
The prosecutor sought to establish that defendant had sought Meneses' advice after defendant's girlfriend was arrested and Meneses had seen defendant with guns. During direct examination, Meneses testified defendant told him that his girlfriend had been "jumped," that "she went back and shot them," and that she was in jail. The prosecutor asked, "Did he ask you, should I do something about it or what?" Meneses responded, "I said, I would leave it alone."
During an effective cross-examination, defense counsel provided a broader context for the conversation Meneses had reported. Defense counsel inquired: "And the context of the conversation was that he wanted to get an attorney for her, right?" Meneses responded affirmatively. Defense counsel elicited greater clarification in the following exchange:
"[Defense Counsel:] And the problem was attorneys costing a lot of money, right?
"[Meneses:] Yes.
"[Defense Counsel:] And things being as they are, money was a little tight, and he was worried about if he had enough and if he could afford an attorney, right?
"[Defense Counsel:] And so when he says if he should do something about it or what, that was in the context about his girlfriend in jail and needing a lawyer, right?
"[Meneses:] Yes."
Defense counsel also solicited more information about the guns he had seen defendant carry. Meneses, during cross-examination, also revealed that he had seen defendant carrying two guns during Halloween. He had never seen defendant with a shotgun.
The issue arises during the prosecutor's redirect and defense counsel's recross-examination. The prosecutor probed deeper into defendant's inquiry as to whether he should do something about his girlfriend's situation. During cross, Meneses' responses would have led the jury to believe that defendant's dilemma related exclusively to whether he should hire a lawyer.
The prosecutor sought to impeach Meneses with a statement he had made to a detective during the investigation of the case. The following exchange occurred:
"[Prosecutor:] Do you remember telling the detective that [defendant] told you that his girl went back and popped two people that had jumped him. And he said he was like, quote, should I do something about it or what? He asked me if I was in this situation, what would I do? Do you remember telling the detective that?
"[Prosecutor:] Do you remember telling the detective that you thought he was asking you about whether or not he should kill some people?"
Defense counsel objected to the question, claiming it called for speculation. The trial court overruled the objection because defense counsel had "asked about what the context was and -- [¶] . . . [¶] -- this may be consistent or inconsistent with his estimation of context." Defendant argues the trial court abused its discretion because what Meneses thought defendant was asking was irrelevant.
But that was not the end of the examination of the same subject. During recross-examination, defense counsel broached the subject again. He asked Meneses if defendant ever threatened anyone or said he was going to kill anyone. Meneses responded, "He didn't threaten nobody, no." Again, defense counsel probed: "At the time that [defendant] is saying should he do something about it, at the time of that conversation, are you thinking that he's going to kill somebody, or are you thinking at the time that you are being questioned, hey, now, it makes sense. I should have been thinking he was killing somebody?" Meneses answered: "I mean, I didn't think he was going to do that. We was talking about, you know, his girlfriend problem, the issue." Meneses insisted he was referring to paying the lawyers some more money when defendant asked if he should do something about it.
Defense counsel continued to probe even further. Meneses acknowledged that in talking to the detective he added something like "probably talking about killing them, I guess," and that he was just guessing. But he was adamant that he never told the detective that defendant had said anything about killing anyone.
This line of inquiry led to further redirect examination by the prosecutor and the second evidentiary ruling defendant challenges. Meneses admitted he had told the detective that he heard defendant say, "I will kill a nigga." But again, defense counsel was able to elicit from Meneses the broader context and meaning of the slang defendant had used. Meneses testified that defendant's comment, "I will kill a nigga," was said in an entirely different conversation when the two of them were laughing and talking about problems Meneses was having with his wife. According to Meneses, defendant was joking when he made the statement. He explained that "kill a nigga" is common slang in rap songs, but when defense counsel asked him if the slang was used to actually mean to kill somebody, the trial court sustained the prosecutor's objection that the question was irrelevant and speculative. Defendant contends the trial court again abused its discretion by disallowing relevant evidence necessary to educate the jury on an alternative usage of the phrase.
We conclude that if the court made any errors in ruling on the propriety of either the prosecutor's question during redirect examination or defense counsel's question during recross-examination, the errors were harmless. Simply put, defendant could have suffered no prejudice from the innocuous rulings when the topic was thoroughly explored through effective cross- and recross-examination and the information defense counsel sought to elicit eventually was put before the jury.
Defendant's first complaint is to the prosecutor's question about whether Meneses had told the detective what he thought defendant meant when he asked if he should do something. Through apt recross-examination, defense counsel gave Meneses the opportunity to explain that he was simply guessing what defendant meant and that defendant had never said he was planning to kill someone. As the court anticipated, Meneses was able to expand upon the context of his statements by explaining that he was only guessing what defendant meant and that he did not take him seriously or believe he was threatening anyone.
Similarly, Meneses was able to explain that "kill a nigga" was slang popularized in rap songs, with the obvious inference that the words were not to be taken literally. Meneses' subjective interpretation of the language would not have added much, if anything, to the jurors' further understanding that the phrase was not a serious threat. Indeed, during further recross-examination, Meneses was able to explain that defendant made the statement while they were laughing and talking about an entirely different topic having nothing to do with his girlfriend and her predicament. Again, Meneses told the jury that he did not consider the statement a threat; rather, it was a joke he discounted immediately.
Thus, in the context of the entire examination of Meneses, the two challenged rulings, sustaining one objection and overruling the other, did nothing to limit the exploration of the topics before the jury in any meaningful way. They were but minuscule blips in an exhaustive examination of two finer points with little potential to influence the jury on the important and dispositive questions before it. Given the abundance of circumstantial evidence we chronicle above, it is simply not reasonably probable that these rulings would have impacted the outcome of the deliberations. Because defendant suffered no prejudice, there is no reversible error.
III Special Circumstance
Although defendant does not challenge the multiple victim special circumstance, he does challenge the special circumstance imposed because he intended to kill two witnesses who would have testified in his girlfriend's trial for attempted murder. We will address the merits of his challenge. (People v. Mungia (2008) 44 Cal.4th 1101, 1139.)
It is generally accepted that motive is not an element of a crime. Indeed, CALCRIM No. 370 instructs the jury that the prosecution is not required to prove motive. Motive, intent, and malice are separate mental states, and while intent remains paramount, the reason for forming that intent does not. (People v. Hillhouse (2002) 27 Cal.4th 469, 504.) Defendant insists, however, that in this special case the lines between motive and intent were erroneously blurred and the jury was hopelessly misled. He cites no cases in which a California court has vacated a special circumstance because the motive instruction was at odds with the mental state necessary to find true the special circumstance. He urges us to be the first.
The problem, in defendant's view, is that the motive instruction was modified to include "or allegations" charged or, in other words, the special circumstance. Thus the court instructed the jury: "The People are not required to prove the defendant had a motive to commit the crimes or allegations charged. In reaching your verdict, you may, however, consider the defendant had a motive. Having a motive may be a factor tending to show the defendant is guilty. And not having a motive may be a factor tending to show the defendant is not guilty."
Yet the jury was also instructed in the language of CALCRIM No. 725 that the prosecution must prove the victims were witnesses, that the killings were intentional, that the killings were not committed during the crime to which they were witnesses, and that "[t]he defendant intended that James Turner or Clifford Brown be killed to prevent him from testifying in a criminal proceeding." Defendant maintains that the language of the last part of the preceding sentence, "to prevent him from testifying," was tantamount to motive. As a result, defendant argues the modified CALCRIM No. 370 told the jurors they did not have to find motive, whereas CALCRIM No. 725 told them effectively that they did.
The Attorney General maintains there is no reason to upset established precedent. Simply put, motive is not an element of the special circumstance finding. A fitting example, argues the Attorney General, is People v. Fuentes (2009) 171 Cal.App.4th 1133, 1139-1140 (Fuentes). In Fuentes, the defendant argued, as here, that the motive instruction was inconsistent with the instruction on the special circumstance of committing a murder "'to further the activity of the criminal street gang.'" (Id. at p. 1139.) The court explained that the instructions were not inconsistent, confusing, or misleading.
"An intent to further criminal gang activity is no more a 'motive' in legal terms than is any other specific intent. We do not call a premeditated murderer's intent to kill a 'motive,' though his action is motivated by a desire to cause the victim's death. Combined, the instructions here told the jury the prosecution must prove that Fuentes intended to further gang activity but need not show what motivated his wish to do so. This was not ambiguous and there is no reason to think the jury could not understand it. Fuentes claims the intent to further criminal gang activity should be deemed a motive, but he cites no authority for this position. There was no error." (Fuentes, supra, 171 Cal.App.4th at pp. 1139-1140.)
The problem, as the court so astutely observed in Fuentes, is that the lay meaning of "motive" is at odds with the legal nuances of motive and intent. Thus the court in Fuentes explained at some length: "If Fuentes's argument has a superficial attractiveness, it is because of the commonsense concept of a motive. Any reason for doing something can rightly be called a motive in common language, including--but not limited to--reasons that stand behind other reasons. For example, we could say that when A shot B, A was motivated by a wish to kill B, which in turn was motivated by a desire to receive an inheritance, which in turn was motivated by a plan to pay off a debt, which in turn was motivated by a plan to avoid the wrath of a creditor. That is why there is some plausibility in saying the intent to further gang activity is a motive for committing a murder: A wish to kill the victim was a reason for the shooting, and a wish to further gang activity stood behind that reason. The jury instructions given here, however, were well adapted to cope with the situation. By listing the various 'intents' the prosecution was required to prove (the intent to kill, the intent to further gang activity), while also saying the prosecution did not have to prove a motive, the instructions told the jury where to cut off the chain of reasons. This was done without saying anything that would confuse a reasonable juror." (Fuentes, supra, 171 Cal.App.4th at p. 1140.)
In considering the sufficiency of the evidence that defendant shot and killed Turner and Brown, we discussed the inferences that reasonably could be drawn about defendant's motive. Nevertheless, the jury was properly instructed that the prosecution was not required to prove motive. The jury was at liberty to accept or reject the prosecution's theory that "the reason behind" the shooting was defendant's desire to eliminate two witnesses who would testify in his girlfriend's trial.
To find the special circumstance true, however, the jury was required to find true that the victims were witnesses to a crime and that they were "intentionally killed for the purpose of preventing [their] testimony in a criminal proceeding." We do agree with defendant that there is a very thin, somewhat nebulous, line between intent and motive when a jury is instructed to determine the "purpose" behind the intentional killing. We do not agree, however, that there is a reasonable likelihood the jurors understood motive and intent to be synonymous, that the prosecution's burden of proof was in any way diluted or diminished, or that the jurors would have been impermissibly confused. The instructions as a whole did not use the terms "motive" and "intent" interchangeably, nor did they misstate the elements of the special circumstance finding.
Defendant asserts that People v. Heishman (1988) 45 Cal.3d 147 (Heishman) is the gold standard for clarity and the trial court, having modified the motive instruction, deviated from the Heishman standard. In Heishman, the court in fact rejected the defendant's contention that the motive instruction conflicted with the special circumstance instruction on preventing a witness from testifying at trial. The court explained: "The instructions, however, made a clear distinction between the crime of murder, of which the jury was directed to find defendant guilty or not guilty, and the special circumstance, which the jury was directed to find true or not true. The motive instruction, CALJIC No. 2.51, focused on guilt. The special circumstance instruction told the jury that if they found defendant guilty of murder, then they should decide whether the special circumstance was true or not true in accordance with criteria dealing with the purpose of the killing. There was no reasonable basis for the jury to think that CALJIC No. 2.51 modified the special circumstance instruction." (Heishman, at p. 178.)
We do not think that the mere addition of the two words "or allegations" in the motive instruction materially changes the calculus. It remains true, however fine the distinction, that the prosecution does not bear the burden of proving motive, but it does bear the burden of proving that defendant intended to murder the victims to prevent them from testifying. As the courts in Fuentes and Heishman found, there is no reasonable basis for the jurors to think they need not find all the elements of the special circumstance because they were instructed they did not need to find a motive. For the same reasons articulated in both cases, we do not believe the instructions confused a reasonable juror.
The Attorney General concedes that defendant is entitled to an additional 42 days of custody credit to represent the time he served between the initial sentencing date of October 29, 2010, and the actual sentencing date of December 10, 2010. We accept the concession and order the superior court to correct the actual time credits to show 361 days of presentence custody.
Similarly, the clerical error in the abstract of judgment containing a stayed/suspended restitution fine of $10,000 must be corrected. The trial judge correctly did not impose a fine pursuant to Penal Code section 1202.45.
The trial court is directed to prepare a corrected abstract of judgment to reflect a total of 361 days of presentence custody credit and to eliminate reference to a stayed/suspended restitution fine, and to forward a certified copy thereof to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: BUTZ , J. MURRAY , J.
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Well, we checked in with the Alameda County Registrar of Voters, and it's official: Measure H is a done deal. The registrar certified the election results a little over a week ago, and no one has asked the county for a recount of the results, they said. Any voter could have challenged the results within five days of the certification, but it didn't happen. The temporary parcel tax, which looked down for the count right after the election, bounced into the win column eight days after the June 3 election and stayed there to finish. The measure passed 11,445 to 5,663, with 66.9 percent of voters in favor. You can view the official results and get a whole lot more detail on the election here.
On a related note, the school board is holding a special meeting tonight where they'll discuss Superintendent Ardella Dailey's contract. (Since contracts are a personnel matter, the board will discuss it in closed session.) The meeting starts at 5:30 p.m. and will be held in the superintendent's conference room at the district offices, 2200 Central Avenue. The agenda is here.


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PS by Paul Smith Purple Striped Pullover. A classic mens pullover that has been crafted from 100% premium knitted cotton and features a vibrant striped pattern throughout.
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text:
Cleaning Filament is valuable when transitioning between filaments that require different printing temperatures or have very different colors. Cleaning Filament cannot be used to create objects, instead it is a complementary filament to properly maintain your LulzBot® 3D printer.
3 mm , 100g coil
Works with: LulzBot Mini, LulzBot TAZ 6, LulzBot TAZ 5, LulzBot TAZ 1-4, LulzBot TAZ 1-4 Budaschnozzle, LulzBot TAZ 5 Hexagon,LulzBot TAZ 6 Hexagon, LulzBot Hexagon, LulzBot Budaschnozzle, LulzBot TAZ Dual Extruder, LulzBot TAZ FlexyDually, LulzBot TAZ/Mini Flexystruder


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Error Unresolved dependency field_collection_uuid (Missing) WetKit WET-BOEW requires this module.
When the database upgrade part took place I got the next error message: Unresolved dependency: uuid(Missing) Menu Token requires this module. Probably some part of Menu token needs to be present or needs to be update also ?
Unresolved dependency content_migrate (Missing). AnreeChess. Версия Drupal
Unresolved Dependencies. If any of the objects in your migration package depend on resources that are not included in the package, those missing resources are listed in the Dependency column.
I Tried updating 2 different sites and both gave error messages saying "Unresolved dependency" missing from different modules. The pages no longer load on the site saying. Fatal error: Call to undefined function libraries_load().
Do you have this bundle installed in your container (Felix) as well? <dependency> <. GroupId>org.hibernate</groupId> <. ArtifactId>hibernate</artifactId> <.
Subject: [play-framework] [2.1-RC1] unresolved dependencies. Date Index Thread: Prev Thread Index.
xfsprogs-devel is missing uuid/uuid.h dependency. Last modified: 2010-05-10 19:50:08 EDT.
I was trying to deploying composite applications on AS Java of Netweaver CE trial version and encountering the Unresolved dependency error.
Home > development, osgi > Understanding the 'unresolved constraint', 'missing requirement' message from Apache Felix.


text:
Boomtown Heights iOS / Android Gameplay Trailer
- App name: Boomtown Heights
- Developer: Chris McGuire
- Genre: Puzzle
- Release: Oct 13, 2012
Let's play Boomtown Heights on iOS. In this part of the walkthrough, you will learn more tips and tricks while playing the Boomtown Heights game on the iPhone.
Gameplay Walkthrough
This page contains Boomtown Heights video walkthroughs for iOS (iPhone/iPad) called "- iphone video" and has been uploaded on Admin official channel at Jul 29, 2015.
Still need help with this level? Here you can ask questions and discuss with other Boomtown Heights users.
Hit like if this helped you!
Stuck on some levels in Boomtown Heights? This walkthrough can help you finish the game.


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Thread: panels question
09-26-2006, 12:52 PM #1Newbie
- Join Date
- Sep 2006
- Posts
- 7
panels question
What do you recommend for a good reseller panel to look for?
09-27-2006, 09:51 AM #2WHT Addict
- Join Date
- Aug 2005
- Location
- Los Angeles, CA
- Posts
- 112
We recommend iBiz Panel and Alabanza. Both are fully automated and are well liked by end users. Both allow reselling to resellers. This is what we use.Thank You,
Servers And Domains
100% Private Label Reseller Hosting
09-27-2006, 10:34 AM #3Junior Guru Wannabe
- Join Date
- Aug 2006
- Location
- Teppa DC
- Posts
- 38
iBizPanel is Pretty good,
Just My opinion
09-27-2006, 10:52 AM #4Web Hosting Master
- Join Date
- Sep 2004
- Posts
- 1,904
I would say to choose the panel that your provider of choice offers. Many offer cpanel which is much like the Microsoft Windows of Hosting. Basically it isn't really the best or most secured option - but it is the most used and requested panel at this moment. A few others to research - Direct Admin, Interworx, and HSphere. Hsphere by far is the most flexiable.
09-27-2006, 11:03 AM #5Retired Moderator
- Join Date
- Sep 2004
- Location
- Flint, Michigan
- Posts
- 5,765
Personal favorite is DirectAdmin. Most all hosts are going to have a demo for you (as well as demos at the actual panel providers). Give each a try and see what you really enjoy best.
cPanel does have the name recognition within the hosting market, but it really is going to depend greatly on your target market. Are you targeting people that have already had hosting before and would request cPanel by name, or are you targeting a first time hoster? Find your target market and figure out what they would want.


text:
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The World's Greatest Music
The Prince of Cambridge was born on 22 July at 4.24pm, weighing 8lbs 6oz. Join us as we take a look at the incredible pictures, and the reaction on social media from the classical world and beyond.
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The Military Wives couldn't help but be excited about the Prince of Cambridge's future. @Milwiveschoir: "Many many congratulations to the Duke and Duchess of Cambridge on the birth of your baby boy. Exciting times ahead :) x x"
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I am a an enthusiastic professional who thrives in an educational and mentorship role. I aim to help develop thorough, analytical skills like those that I have developed in my four years at Georgia Tech. I recently graduated from my undergrad with a degree in International Affairs and a Minor in Public Policy - next year I'll be working on my masters degree. I am part of a 5-year program (bachelors-masters) so I have experience taking graduate classes and writing graduate-level papers. I have numerous years of experience in professional positions and various informal leadership and educational experiences - I look forward to passing on the lessons I've learned.
Georgia Institute of Technology-Main Campus - Bachelors, International Affairs
Georgia Institute of Technology-Main Campus - Current Grad Student, International Affairs
SAT Verbal: 780
AP US History
College English
Conversational Spanish
High School English
Spanish 1
US History


text:
We thank you for taking the time in attending the webinar on Digitization of Manufacturing held on April 23, 2015 and giving us the opportunity to connect with you.
For you convenience, we would like to share with you the recording of the webinar and couple of brochures and case studies giving you an insight about Infor and its solutions.
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Adsorbents & Desiccants
We make use of qualitative ingredients in formulation of desiccants and adsorbents, chromatography adsorbents, desiccant packaging, adsorbent and moisture desiccant that finds wide usage in various sectors owing to their chemical and physical properties. Our array comprises molecular adsorbents, chromatography adsorbents, container desiccant, desiccants and oxygen absorber. These find wide application in various industries such as agriculture, pharmaceuticals, defense, electronics and shipping and storage. Apart from this, we even offer pharmaceutical coils and laminated & aluminum tubes that are widely appreciated for its quality standards.
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text:
White Wine Ginger Cooler
Total Time
Prep 1 min
Cook 1 min
From Sheila Lukins, U.S.A. Cookbook. A very refreshing cocktail for the warm summer evenings.
Ingredients Nutrition
- 4 ounces white wine
- 2 dashes Angostura bitters
- 3 ounces ginger beer, soda
- 1 strip lemon (to garnish)
- Fill a large goblet with ise cubes.
- Stir in the wine and the bitters and top off with ginger beer.
- Garnish with lemon.
Most Helpful
Quite a nice blend of flavours, I just happened to have all these on hand so made this for Friday night cocktails. thanks for posting!


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MBdP, SG, AS and CC contributed equally to this study.
Letter to the Editor
A novel compound heterozygous mutation of C20orf54 gene associated with Brown–Vialetto–Van Laere syndrome in an Italian family
Version of Record online: 10 JUN 2013
DOI: 10.1111/ene.12163
© 2013 The Author(s) European Journal of Neurology © 2013 EFNS
European Journal of Neurology
Volume 20, Issue 7, pages e94–e95, July 2013
Additional Information
How to Cite
Bandettini di Poggio, M., Gagliardi, S., Pardini, M., Marchioni, E., Monti Bragadin, M., Reni, L., Doria-Lamba, L., Roccatagliata, L., Ceroni, M., Schenone, A. and Cereda, C. (2013), A novel compound heterozygous mutation of C20orf54 gene associated with Brown–Vialetto–Van Laere syndrome in an Italian family. European Journal of Neurology, 20: e94–e95. doi: 10.1111/ene.12163
Publication History
- Issue online: 10 JUN 2013
- Version of Record online: 10 JUN 2013
- Manuscript Accepted: 28 FEB 2013
- Manuscript Received: 27 SEP 2012
Funded by
- Italian Ministry of Health
- National Institute of Neurology Foundation
- the Italian Telethon. Grant Numbers: GGP02169, GUP04002
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Note: Sample below may appear distorted but all corresponding word document files contain proper formattingExcerpt from Essay:
By suggesting that the Chinese methods of parenting are better -- or that at least Chinese mothers produce more skillful and successful children -- Chua is touching upon the popular American concern. Just consider that there are a billion like Chua back in China! Chua again appeals to similar rhetoric when she tries to defend her argument. Trying to convince her readers that rote repetition is a good method of learning, she says that it is actually a "fun" learning technique. Here again Chua knows her readers. It is known that the idea of a practice involving "fun" is very important and popular in America. But here, Chua explains that the Chinese method of forcing children to learn more and rigorously through rote repetition may seem harsh and dull for Western parents, but when it is done properly, it is not only a road to success but also a fun practice!
But even in appealing to the rhetoric of ethos, Chua makes weak arguments. For example, when she talks about a response by Western and Chinese parents when their children get a B, she rhetorically adds "which would never happen." Unless intended just to make a point by resorting to a deliberate hyperbole, her claim is totally false. The argument is neither logically nor rhetorically sustainable. Likewise, in a recent interview, Chua said: "To be perfectly honest, I know that a lot of Asian parents are secretly shocked and horrified by many aspects of Western parenting," including "how much time Westerners allow their kids to waste -- hours on Facebook and computer games -- and in some ways, how poorly they prepare them for the future" (Dejesus, 2011). But these parents, and Chua in particular, would also be shocked and horrified to learn that today China "is one of the world's biggest markets for online games, with tens of millions of players, many of whom hunker down for hours in front of PCs in public Internet cafes," and that three years ago one Chinese died of exhaustion after playing a computer game for three days straight ("Chinese Man Drops After 3-Day Gaming Binge," 2007).
Another problem with Chua's article is when she discusses how she forced her daughter to play "The Little White Donkey." Chu's main concern seems to be that she wants her child to succeed, period. She does not address the ethical dimensions of treating a child in such a harsh manner. She discusses her disputes with her husband, even her own doubts, but at the very end, when she realized that her methods worked in forcing her child to play and succeed, she and her husband were happy. Here, she probably even forgot to consider the sensibilities of her American readers when she says that she "used every weapon and tactic I could think of." Using the rhetoric of "war" in discussing one's parenting methods is surely not the best way of appealing to the sensibilities of Americans, and, I believe, most parents in the world. But again at the end she makes up for that by reminding that Chinese parents' strictness is not a reflection of their evil nature or that they don't care about their children. On the contrary, Chinese parents are ready to do anything to make sure that their children succeed. After a war talk, Chua offers peace and mutual understanding when she says that all Western and Chinese "decent parents want to do what's best for their children."
Chua's article is provocative and some of her arguments are not very convincing, but her efforts are not without a merit. Her article may indeed be a wake-up call to many Western parents who are too soft and cuddling of their children, allowing them to gratuitously waste their time on many unnecessary things in their lives.
aChua, a. (2011) Why Chinese Mothers Are Superior. Wall Street Journal. Retrieved February 5, 2011, from http://online.wsj.com/article/SB10001424052748704111504576059713528698754.html
bChua, a. (2011) the Tiger Mother Responds to Readers. Wall Street Journal. Retrieved February 5, 2011, from http://blogs.wsj.com/ideas-market/2011/01/13/the-tiger-mother-responds-to-readers/
"Chinese Man Drops After 3-Day Gaming Binge," (2007) Associated Press. Retrieved February 5, 2011, from http://www.foxnews.com/story/0,2933,297059,00.html#ixzz1D9EhR7sO
Dejesus, I. (2011) 'Battle Humn of the Tiger Mother' Book Says Chinese Mothers, Offspring are Superior. The Patriot News. Retrieved on February 5, 2011, from http://www.pennlive.com/midstate/index.ssf/2011/01/battle_hymn_of_the_tiger_mothe.html
Wu, E.H., & Hertberg-Davis, H. (2009) Parenting the Chinese Way in America. Gifted and Talented International, 23(2): 141-145.[continue]
"Chinese Parenting Amy Chua's Model" (2011, February 05) Retrieved December 10, 2016, from http://www.paperdue.com/essay/chinese-parenting-amy-chua-model-5047
"Chinese Parenting Amy Chua's Model" 05 February 2011. Web.10 December. 2016. <http://www.paperdue.com/essay/chinese-parenting-amy-chua-model-5047>
"Chinese Parenting Amy Chua's Model", 05 February 2011, Accessed.10 December. 2016, http://www.paperdue.com/essay/chinese-parenting-amy-chua-model-5047
However, there may be cases when a mild form of corporal punishment such as spanking on buttocks in a reasoned and caring manner, under certain conditions, may have beneficial effects. It is also my opinion -- and for this I am heavily indebted to Cleverley and Phillips -- that no rival model should be rejected outright. All our paradigmatic assumptions must be critically analyzed before we come to a
It is argued that while land tenure data can be instrumental in addressing land-related conflicts, much of the practical value is lost because of inconsistency of information and because information is not readily accessible, or cannot be combined to allow for greater depth of analysis. In practice, this means that policy-makers cannot make immediate use of the information that is available because additional time and expense are required either


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March 25, 2008
DELORES GRAY, PLAINTIFF,v.CAMDEN CITY BOARD OF EDUCATION, ET AL., DEFENDANTS.
This matter has come before the Court on the motion of defendant, Camden City Board of Education, for summary judgment on plaintiff's age discrimination claim under New Jersey's Law Against Discrimination, which is the only remaining claim in the case.*fn1 For the reasons expressed below, defendant's motion will be granted.
Plaintiff, Delores Gray, has been employed by defendant Camden City Board of Education from 1969 until 1972, and then again in 1984 until the present. Plaintiff is currently the In-House Suspension Coordinator at the Cooper B. Hatch Middle School, a position she has held since September 2003.
During her years of employment, plaintiff held many positions, and she claims she applied for many positions that she was not awarded. Plaintiff, born December 31, 1947, alleges that the reason defendant did not hire her for those positions was because of her age. Specifically, plaintiff claims that since 1999, she applied (1) two times for the principal position at Camden High School and once at an elementary school, (2) three times for the vice-principal position at Camden High School and two other schools, (3) once for the Scheduler position at one of Camden's high schools, (4) once for the Health and Human Services Coordinator at Cooper B. Hatch Middle School, and (5) once for Supervisor of Staff Development.
Defendant has filed a motion for summary judgment on plaintiff's age discrimination claim. Plaintiff has opposed defendant's motion.
A. Jurisdiction
When plaintiff filed her complaint, it contained both federal and state claims. As a result, this Court had jurisdiction over plaintiff's federal claims under 28 U.S.C. § 1331, and supplemental jurisdiction over plaintiff's state law claims under 28 U.S.C. § 1367. Now that the only claim in the case is based on state law, the Court has chosen to continue exercising its supplemental jurisdiction to resolve the remaining claim. See Growth Horizons, Inc. v. Delaware County, Pa., 983 F.2d 1277, 1284-85 (3d Cir. 1993) (stating that as the statute makes clear, the decision to exercise supplemental jurisdiction over remaining state law claims pursuant to 28 U.S.C. § 1367 is committed to the discretion of the district court).
B. Summary Judgment Standard
Summary judgment is appropriate where the Court is satisfied that "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." Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(c).
An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. A party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
C. Analysis
1. Standard for Age Discrimination Claim under NJLAD
A claim of age discrimination under the New Jersey Law Against Discrimination ("NJLAD") uses the burden shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803-05 (1974). See Dunleavy v. Montville Tp., 192 Fed. Appx. 100, 101 (3d Cir. 2006) (citing Stanziale v. Jargowsky, 200 F.3d 101, 105 (3d Cir. 2000)). To prove a NJLAD age discrimination claim, a plaintiff must first establish a prima facie case. A prima facie case requires proof that (1) the plaintiff, at 40 years or older, was a member of the protected class; (2) that the plaintiff applied for and was qualified for the job; (3) that the plaintiff was rejected despite her qualifications; and (4) that the employer ultimately filled the position with someone sufficiently younger to allow an inference of age discrimination. Fowle v. C & C Cola, a Div. of ITT-Continental Baking Co., 868 F.2d 59, 61 (3d Cir. 1989); see also Keller v. Orix Credit Alliance, 130 F.3d 1101, 1114 n.5 (3d Cir. 1997) (stating that the same legal principles of the Age Discrimination in Employment Act are applied to an age discrimination claim under NLJAD).
Should plaintiff establish a prime facie case, a presumption of discrimination is created and the burden of production shifts to the defendant to articulate some legitimate, nondiscriminatory reason for its actions. "The employer satisfies its burden of production by introducing evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision. The employer need not prove that the tendered reason actually motivated its behavior, as throughout this burden-shifting paradigm the ultimate burden of proving intentional discrimination always rests with the plaintiff." Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). This is a light burden. Id.
Once the employer answers its relatively light burden by articulating a legitimate, nondiscriminatory reason for the unfavorable employment decision, the burden of production rebounds to the plaintiff, who must now show by a preponderance of the evidence that the employer's explanation was merely a pretext for its actions, thus meeting the plaintiff's burden of persuasion. Goosby v. Johnson & Johnson Medical, Inc., 228 F.3d 313, 319 (3d Cir. 2000) (citing Reeves v. Sanderson Plumbing Products Inc., 530 U.S. 2097 (2000)).
2. Plaintiff's Claims
Plaintiff claims that she was denied five positions due to her age. Each will be addressed in turn.
(i) Principal and Vice-Principal
Plaintiff does not provide any specifics, but she claims that since 1999, she applied two times to become principal of Camden High School, and once to become a principal of either an elementary or middle school. She also claims that she applied three times for the vice-principal at Camden High School and two other schools. Plaintiff claims that she was qualified for the positions, but did not receive any of them because of her age.
Defendant does not have records for job applicants prior to 2004, when applications began to be tracked on the computer system. As such, defendant accepts for the purposes of summary judgment that plaintiff did apply for those principal and vice-principal positions. Accepting as true that plaintiff applied for those positions, defendant argues that plaintiff has not proven her prima facie case because she was not qualified for those positions.
With regard to plaintiff's prima facie case, it is undisputed that plaintiff was over the age of 40 when she applied for the principal and vice-principal positions. Plaintiff, however, has failed to establish that she was qualified for those positions, and she has not shown that those positions went to someone younger than her.
The requirements for principal in the Camden school district include: (1) New Jersey Principal Certificate of Certificate of Eligibility; (2) minimum of a master's degree from an accredited college or university; (3) minimum of two years administrative/supervisory experience; (4) minimum of three years teaching experience. (Def. Ex. C.) The requirements for high school vice-principal include: 1) New Jersey Principal Certificate of Certificate of Eligibility; (2) minimum of a master's degree from an accredited college or university; (3) minimum of five years teaching experience at high school. (Def. Ex. D.)
Defendant explains that plaintiff was not qualified for principal because she did not have two years of administrative/supervisory experience. With regard to the applications for the high school principal and vice-principal positions, defendant explains that plaintiff was not qualified because she did not hold a secondary education teaching certificate, and therefore could not meet the teaching requirement. Defendant does not state how she was not qualified for the positions in the elementary schools.
In response, plaintiff does not specifically refute defendant's position with regard to her applications for principal and vice-principal. Rather, plaintiff makes the conclusory statement that she "had the requisite qualifications for the positions she applied for." (Pl. Statement of Facts, ¶ 10.) In her supporting brief, plaintiff also makes the general statement that she "had all the necessary certifications." (Pl.'s Br. at 4.) She adds, "And if she did not, surely her experience, and seniority, should have been used as a factor to determine her eligibility for the promotion." (Id.)
It is plaintiff's burden to prove her prima facie case, and she has failed to do so. Even though it appears that plaintiff had a principal certificate and an elementary school teaching degree, and defendant has not commented on her qualifications with regard to the elementary school positions, she has not articulated how she meets the other qualifications for principal or vice-principal. It is not up to the Court to independently review plaintiff's resume and determine whether her experience made her qualified for those positions. Further, without specifically identifying which positions she applied for, it is impossible to determine her qualifications for a particular job. Plaintiff may have met the requirements for an elementary school principal or vice-principal, but plaintiff has not even alleged when and where she applied for those positions.*fn2
Also fatal to plaintiff's prima facie case is her failure to show who was awarded those positions instead of her. The fourth element of a prima facie case for age discrimination is showing that the employer ultimately filled the position with someone sufficiently younger to allow an inference of age discrimination. Plaintiff has provided no evidence, and she has not even alleged, that a person "sufficiently younger" than her got the principal and vice-principal jobs. Consequently, because she has failed to establish her prima facie case, defendant is entitled to summary judgment on plaintiff's claims of age discrimination with regard to the principal and vice-principal jobs.
(ii) Scheduler Position
Plaintiff claims that she was denied the high school scheduler position because of her age. Defendant argues that plaintiff cannot establish her prima facie case because she was not qualified for the position and because it was not filled by someone younger than plaintiff.
The requirements for the high school scheduler position include: (1) minimum of a bachelor's degree; (2) N.J. instructional certificate; (3) at least five years teaching experience at the secondary level; (4) training in master scheduling procedures and practices; and (5) knowledge of scheduling software. (Def. Ex. E.)
Defendant states generally that plaintiff did not meet these qualifications. Defendant also states that the position went to the person who had been temporarily filling in as scheduler, and that person was older than plaintiff. Just like her response with regard to the principal and vice-principal positions, plaintiff only makes a general statement that she was qualified for the position.
Again, it is plaintiff's burden to prove her prima facie case. She not only fails to articulate how she was qualified for the scheduler position, she has not demonstrated that someone significantly younger than her was awarded the job. Moreover, plaintiff has failed to refute defendant's evidence that defendant offered the position a woman who was older than plaintiff. As such, defendant is entitled to summary judgment on plaintiff's age discrimination claim with regard to the scheduler position.
(iii) Health & Human Services Coordinator
Plaintiff also contends that she was not awarded the health and human services coordinator position because of her age. Defendant argues that she was not qualified for the job, and that even if she was, she has not refuted defendant's reasons for hiring someone else.
The qualifications for the health and social services coordinator (the correct name for the position) include: (1) minimum of a bachelor's degree; (2) experience in related health and social services; and (3) demonstrated knowledge of area service providers. (Def. Ex. F.) Plaintiff applied for this position in April 2004. Fifteen candidates were chosen for interviews. (Def. Ex. I.) Plaintiff was not one of the fifteen. Ten people interviewed for the position, and it was awarded to Karen Gore, who was born March 27, 1969.
Even though not presented by plaintiff, defendant admits that plaintiff held the health and social services coordinator position on a temporary basis for six months from September 1, 2002 through March 18, 2003, when she went on medical leave. This satisfies the presumption for plaintiff's prima facie case that she was qualified for the position. Additionally, plaintiff was over the age of 40 when she reapplied for the position in April 2004, and it was awarded to someone under the age of 40. Consequently, for the purposes of this summary judgment motion, plaintiff has made her prima facie case.
To rebut plaintiff's prima facie case, defendant explains that plaintiff was not awarded the position because a more qualified candidate applied, and not because of plaintiff's age. Defendant states that each job opening is competitive. With thirty-seven schools and 3600 employees in the Camden School, the human resources department receives approximately 250 applications a month for various openings. (Def. Ex. H, Aff. of Movetia Salter, Human Resources Manager for Camden Schools.) To determine who should be selected for the health and social services coordinator position, a committee was formed. That committee included four employees who were all over the age of 50. Defendants relate that Karen Gore was selected because she had a bachelor of science degree in health promotions and marketing, and a master's degree in human service management. (Def. Ex. J, Resume of Karen Gore.) Her work experience included management of the service case management program for the New York Urban League, job placement for individuals with disabilities, senior citizens, gays/lesbians, women and minorities for Diversity Services Human Resource Agency, and as a project consultant and clinician for the Family Health Project for Memorial Sloan Kettering Institute. (Id.)
Defendant has met its burden of demonstrating a legitimate, nondiscriminatory reason for its actions. Taking as true that defendant hired Gore based on her qualifications, defendant has shown that age was not the reason plaintiff was not awarded the job.
Defendant also points out two additional reasons for discounting plaintiff's age discrimination claim. First, when the decision-makers for an employment decision are themselves over the age of 40, courts have held that the discriminatory intent is lacking. Young v. Hobart West Group, 897 A.2d 1063, 1070 (N.J. Super. Ct. App. Div. 2005) (citing Lowe v. J.B. Hunt Transp., Inc., 963 F.2d 173, 175 (8th Cir. 1992) (affirming dismissal of age discrimination claim because it would be "simply incredible, in light of the weakness of the plaintiff's evidence otherwise, that the company officials who hired him at age fifty-one had suddenly developed an aversion to older people less than two years later."). Second, courts have rejected age discrimination claims when a plaintiff was both hired and fired while a member of the protected age group. Id. (citing Richter v. Hook-SupeRx, Inc., 142 F.3d 1024, 1032 (7th Cir. 1998) ("While not dispositive, this Court has found it significant that individuals alleged to have discriminated on the basis of age were themselves members of the protected class." (citation omitted)). Even though plaintiff left the position due to medical leave, and was not fired, the principle holds true in this situation.
Because defendant has answered its its relatively light burden of articulating a legitimate, nondiscriminatory reason for the unfavorable employment decision, the burden of production rebounds to the plaintiff, who must now show by a preponderance of the evidence that the employer's explanation was merely a pretext for its actions, thus meeting the plaintiff's burden of persuasion. Plaintiff has failed to do this. To demonstrate that defendant's decision was a pretext, plaintiff argues that defendant overlooked plaintiff's experience as a psycho-education specialist and program coordinator with the Philadelphia Child Guidance Clinic, her experience as an administrative substance awareness coordinator, her work with Camden Adolescent Pregnancy, and her job as a crisis worker with the Steininger Center.
The problem with plaintiff's argument is that it is not for the Court to determine whether plaintiff's experience makes her qualified for the health and human services coordinator position. Indeed, for the sake of her prima facie case, the Court has accepted as true that she was qualified for the position. What plaintiff must prove is that defendant choosing Karen Gore because she was more qualified for the position was actually a pretext--that is, plaintiff must prove that did not get the position on the sole basis of her age.
To meet the standard of proving pretext, plaintiff must point "to some evidence, direct or circumstantial, from which a fact-finder would reasonably either: (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of [the employer's] action." Foxworth v. Pennsylvania State Police, 228 Fed. Appx. 151, 158 (3d Cir. 2007) (citing Sheridan v. DuPont de Nemours & Co., 100 F.3d 1061, 1067 (3d Cir. 1996); Fuentes, 32 F.3d at 764)). Other than plaintiff's own subjective opinion, she has not provided any evidence to support her position. Plaintiff may have a difference in opinion about which qualifications--Gore's or her own--are better suited to hold the health and human services coordinator position, but that does not provide any proof to support her contention that she did not get the position because of her age. Consequently, defendant is entitled to summary judgment on this claim.
(iv) Supervisor of Staff Development
Plaintiff claims that she applied for, but did not get, the position of supervisor of staff development because of her age. Defendant argues that no such position exists, and, therefore, plaintiff's claim fails.
Plaintiff does not refute defendant's statement that no such position exists. She does not provide the qualifications for such a job, and she does not articulate how she meets any requirements for the job. Consequently, defendant is entitled to summary judgment on this claim.
For the reasons expressed above, plaintiff has failed to meet her burden of showing that an issue of material fact remains as to her age discrimination claims with regard to the five positions she applied for, but did not get. Accordingly, summary judgment must be entered in favor on defendant. An appropriate Order will issue.
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