James Darnell v. Tyson Foods, Inc.
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:11-cv-00473-RJC-DCK Copies to all parties and the district court/agency. [999162834].. [13-1011]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1011
JAMES M. DARNELL,
Plaintiff - Appellant,
v.
TYSON FOODS, INC.,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Robert J. Conrad,
Jr., Chief District Judge. (3:11-cv-00473-RJC-DCK)
Submitted:
July 15, 2013
Decided:
July 31, 2013
Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Kirk J. Angel, THE ANGEL LAW FIRM, PLLC, Concord, North
Carolina, for Appellant.
Kevin J. Dalton, Matthew R. Korn,
FISHER & PHILLIPS LLP, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
James
Darnell
(Darnell)
appeals
the
district
court’s
decision to grant summary judgment to his former employer, Tyson
Foods,
Incorporated
(Tyson).
Darnell
alleged
that
Tyson
intentionally discriminated against him on the basis of his age
in violation of the Age Discrimination in Employment Act (ADEA),
29 U.S.C. § 621 et seq.
This case centers on the proposed
reassignment of Darnell from a supervisory position on the first
shift to a supervisory position on the third shift.
We agree
with the district court that Darnell is unable to establish a
prima
facie
case
of
discrimination
because
the
proposed
reassignment does not satisfy the threshold ADEA requirement of
an adverse employment action.
Accordingly, we affirm.
I
Darnell
became
an
employee
of
Tyson
in
1989
when
Tyson
purchased a poultry processing facility owned by Holly Farms,
Inc.
in
Wilkesboro,
North
Carolina.
In
June
1992,
Darnell
voluntarily transferred to a maintenance technician position at
Tyson’s Monroe, North Carolina processing plant (Monroe Plant).
In
December
1996,
Darnell
was
promoted
to
the
position
of
maintenance supervisor in the labeling department, a position he
held at the Monroe Plant until his resignation in May 2010.
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Darnell typically arrived at the Monroe Plant around 6:00 a.m.
and ended his shift around 5:00 p.m.
The Monroe Plant had five departmental equipment lines at
the time of Darnell’s resignation and a maintenance supervisor
assigned to each line: evisceration; debone; cut-up; net-weight;
and labeling.
Only the labeling line regularly operated during
the third shift.
Monroe
Plant
During the third shift, the machines at the
were
cleaned
and
preventive
maintenance
was
performed by a crew of maintenance technicians so the equipment
was ready to run at the start of the first shift.
On December 1, 2009, the positions of thirty-six year old
Assistant Maintenance Manager Glenn Rossi (Darnell’s superior)
and fifty-six year old third shift Maintenance Supervisor Jimmy
Vo (Vo) were eliminated through a reduction in force to reduce
costs.
At the time of his termination, Vo’s regularly scheduled
hours were from 11:00 p.m. until approximately 9:00 a.m.
Vo was
the only maintenance supervisor and member of management on the
third shift and his termination left the third shift with no
management supervision.
By the end of December 2009, there was an increase in the
frequency of machines breaking down that resulted in a marked
decrease in production at the Monroe Plant.
On March 4, 2010,
Plant
provided
Manager
disciplinary
Jonathan
counseling
Edwards
to
former
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(Edwards)
Maintenance
Manager
written
David
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McHugh
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(McHugh)
equipment
regarding
breakdowns
deficiencies.
There
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the
and
need
rectify
were
no
to
correct
the
the
preventive
significant
increased
maintenance
improvements
during
March 2010, and, on April 2, 2010, Edwards notified McHugh that
he
was
being
removed
from
the
maintenance
manager
position,
effective April 19, 2010.
In
March
2010,
Tyson
sent
Dennis
Joy
(Joy)
from
its
corporate office in Springdale, Arkansas to the Monroe Plant to
analyze the processes, costs, and performance of the maintenance
departments at the plant.
In performing this analysis, Joy was
concerned about the lack of maintenance supervision on the third
shift and that preventive maintenance was not being performed,
resulting
in
significant
and
increasing
equipment
failures.
Because an additional maintenance supervisor position could not
be added due to the costs involved, Joy concluded that one of
the five maintenance supervisors at the Monroe Plant needed to
have his schedule adjusted to cover the third shift, provide
management
presence,
and
ensure
preventative
maintenance
was
being properly performed.
Joy
adjusted
recommended
based
on
to
Edwards
Darnell’s
that
training
Darnell’s
and
schedule
experience
in
be
the
labeling department and relative lack of experience in the other
departments.
In reaching his recommendation, Joy analyzed the
qualifications of all of the maintenance supervisors and whether
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any of the other supervisors would be a better fit for the shift
adjustment,
but
inexperience
in
Darnell’s
the
experience
other
in
departments,
labeling,
made
him
and
the
his
only
feasible choice.
Darnell was initially informed of the reassignment decision
during
a
meeting
on
April
23,
2010.
Darnell
agreed
a
maintenance supervisor was needed on the third shift, but said
he was not interested.
After the meeting, Joy and Complex Human
Resources Manager Leonard Parks (Parks) discussed whether the
third shift 11:00 p.m. to 9:00 a.m. schedule could be modified
in an effort to find an alternative that Darnell might accept
that would also comply with business needs.
two potential options.
They came up with
One option was a 3:00 a.m. to 1:00 p.m.
shift for Darnell that would also entail adjusting the schedule
of a second shift maintenance supervisor to stay later until
Darnell arrived.
Another alternative was to permit Darnell, if
he preferred, to take a non-management maintenance technician
position on the first shift and Tyson would hire a maintenance
supervisor for the third shift.
Edwards was advised of and
approved the potential alternatives to be offered.
On April 24, 2010, a second meeting was held, with Edwards,
Joy, Parks, and Darnell present.
Darnell was provided with the
other two options as alternatives to the 11:00 p.m. start time.
Darnell was advised to let them know his decision on Monday,
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April 26, 2010.
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Darnell said “There ain’t no way in hell I’m
going to do that” and walked out of Edwards’ office and slammed
the door behind him.
(J.A. 121).
After leaving the meeting,
Darnell told several hourly maintenance employees: “These damn
fools think I’m going to go third shift.”
(J.A. 128).
This was
the last shift Darnell worked at the Monroe Plant.
On
April
26,
2010,
rather
than
advising
Tyson
of
his
decision, Darnell informed Joy: “I got five weeks’ vacation.
want
two
Darnell’s
of
them
decision
right
to
now.”
continue
(J.A.
124-25).
employment,
I
Regarding
Darnell
told
Joy:
“I’ll let you know what I think about it when I come back.”
(J.A. 126).
Darnell was granted the two-week vacation request
until May 10, 2010.
On May 10, 2010, Darnell met with Parks and informed him
that he was not going to adjust his schedule.
and left the Monroe Plant.
At the time of his resignation,
Darnell was sixty-three years old.
Tyson
temporarily
maintenance
adjusted
supervisors
by
Darnell resigned
the
After Darnell’s resignation,
schedules
extending
of
their
its
four
working
other
hours
to
twelve-hour shifts for over seven months while a search for a
replacement was performed.
Kevin Shaw was hired to become the
third shift maintenance supervisor in December 2010.
fifty-seven years old at the time he was hired.
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Shaw was
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On September 22, 2011, Darnell sought relief under the ADEA
by filing a complaint in the United States District Court for
the Western District of North Carolina.
Following the close of
discovery, Tyson filed a motion for summary judgment, which the
district court granted on December 7, 2012.
The district court
concluded that Darnell could not establish a prima facie case of
age
discrimination
evidence
to
constituted
because
demonstrate
an
constructively
he
that:
adverse
failed
(1)
the
employment
discharged;
and
to
offer
proposed
(3)
action;
he
was
sufficient
reassignment
(2)
he
replaced
was
by
a
substantially younger individual.
This timely appeal followed.
II
A
We review the district court’s grant of summary judgment de
novo.
Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d
277, 283 (4th Cir. 2004).
“[S]ummary judgment is proper ‘if the
pleadings,
answers
depositions,
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, 322 (1986) (quoting Fed.
R.
Civ.
P.
56(c)).
Rule
56
mandates
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the
entry
of
summary
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judgment
if
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the
nonmoving
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party,
after
a
reasonable
time
of
discovery, “fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.”
at 322.
Id.
“[A] complete failure of proof concerning an essential
element of the nonmoving party’s case necessarily renders all
other facts immaterial [and] [t]he moving party is entitled to a
judgment as a matter of law.”
Id. at 323 (internal quotation
marks omitted).
B
The
ADEA
forbids
“an
employer
.
.
.
to
discharge
any
individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of
employment,
§ 623(a).
we
analyze
because
of
such
individual’s
age.”
29
U.S.C.
Absent direct evidence of intentional discrimination,
ADEA
claims
under
the
burden-shifting
framework
established for Title VII claims in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).
Warch v. Ohio Cas. Ins. Co., 435
F.3d 510, 513–14 (4th Cir. 2006).
Under this framework, Darnell
must first establish a prima facie case of age discrimination by
a preponderance of the evidence.
Id. at 513.
To establish a
prima facie case of age discrimination, Darnell must demonstrate
that: (1) he is a member of a protected class; (2) he suffered
an
adverse
employment
action;
(3)
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he
was
performing
his
job
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duties
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at
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a
level
that
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met
his
employer’s
legitimate
expectations at the time of the adverse employment action; and
(4) the position remained open or was filled by a similarly
qualified applicant outside the protected class.
Hill, 354
F.3d at 285.
If a prima facie case is established, the burden shifts to
Tyson to
demonstrate
“a
legitimate,
for the adverse employment action.
nondiscriminatory
reason”
Warch, 435 F.3d at 513–14.
If Tyson meets this burden, “the presumption of discrimination
created by the prima facie case disappears from the case and the
plaintiff
must
pretextual.”
prove
that
the
proffered
justification
is
Id. at 514 (internal quotation marks omitted).
We agree with the district court that Darnell failed to
establish a prima facie case of age discrimination because there
was no adverse employment action.
In James v. Booz-Allen &
Hamilton, Inc., 368 F.3d 371 (4th Cir. 2004), we stated that
“absent
any
decrease
in
compensation,
job
title,
level
of
responsibility, or opportunity for promotion, reassignment to a
new
position
commensurate
with
one’s
salary
level
does
not
constitute an adverse employment action even if the new job does
cause some modest stress not present in the old position.”
at
376
(citation,
alterations,
and
omitted).
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internal
quotation
Id.
marks
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It
is
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undisputed
that
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Darnell’s
salary,
benefits,
job
title, and promotion opportunities were not threatened by the
proposed reassignment.
He testified at his deposition that his
job duties “would be basically the same,” but that he would be
working
at
“a
different
time.”
(J.A.
136).
Moreover,
the
duration of the new shift was not longer than the duration of
his first-shift schedule.
In short, the change in time, without
any change to Darnell’s terms and conditions of employment, does
not
constitute
an
adverse
employment
action.
Id.
Because
Darnell cannot demonstrate that the proposed reassignment was an
adverse employment action under the ADEA, the district court
correctly granted Tyson’s motion for summary judgment. *
III
For the reasons stated herein, the judgment of the district
court is affirmed.
facts
and
materials
legal
before
We dispense with oral argument because the
contentions
are
adequately
the
and
argument
court
presented
would
not
in
the
aid
the
decisional process.
AFFIRMED
*
Because Darnell cannot demonstrate that the proposed
reassignment was an adverse employment action, we need not
decide the issues of whether Darnell was constructively
discharged or whether he was replaced by a substantially younger
individual.
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