Smith v. Hytrol Conveyor Company Inc
AMENDED ORDER granting 13 Defendant's Motion for Summary Judgment. This Order replaces, nunc pro tunc, 22 Order filed 7/7/11, correcting an omission from a footnote. Signed by Judge Billy Roy Wilson on 7/14/2011. (jct)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
HYTROL CONVEYOR COMPANY, INC.
Pending is Defendant’s Motion for Summary Judgment (Doc. No. 13). Plaintiff has
responded,2 and Defendant has replied.3 For the reasons set out below, the Motion is
Plaintiff filed this action under the Age Discrimination in Employment Act5 (“ADEA”)
after being terminated from his employment at Defendant Hytrol Conveyor Company, Inc.
(“Hytrol” or “Defendant”). Plaintiff worked for Hytrol from April 1987 until he was terminated
in February 2009 at the age of 56. Hytrol manufactures material handling conveyors, and
Plaintiff worked in the programming department. His primary job duty was programming a
This order replaces, nunc pro tunc, the original order filed on July 7, 2011. This
decision corrects an omission from a footnote.
Doc. No. 16.
Doc. No. 19.
Unless otherwise noted, the information in the background section is taken from the
parties’ statements of facts (Doc. Nos. 15, 18).
29 U.S.C. § 621, et seq.
In 2006, Hytrol began bringing in Trumpf laser presses. With each new laser press, a
Wiedemann press was phased out. By 2009, Hytrol was operating three Trumpf laser presses
and two Wiedemann presses. When Hytrol purchased its first laser press, it sent two employees,
Ronald Wise and Cary Middlecoff, to be formally trained to write computer programs for the
lasers. All programmers but Plaintiff learned to write the programs necessary to operate the
Trumpf Laser—either during working hours or by working overtime.
In late 2008 and early 2009, Hytrol experienced a downturn in business, and Plaintiff and
230 other employees lost their jobs in a six-month period, with cuts being made in October 2008,
January 2009, February 2009, and May 2009. As of January 1, 2009, the programming
department consisted of the following seven people: Plaintiff (age 56); Ronald Wise (51); Ricky
Tubbs (46); Cary Middlecoff (45); Larry Johnson (43); Cameron Gillean (33); and Joseph
Martin (23). In January 2009, Joseph Martin’s job was eliminated based on seniority.
Plaintiff admits that at the time of his termination he was not “stand alone” capable of
writing programs for the Trumpf lasers. While he was never specifically denied training on the
lasers, he asserts he did not have time to train because of his assignments working on the
Wiedemanns. Hytrol asserts that Plaintiff was terminated because he could not program the
Trumpf lasers. No one was hired to replace Plaintiff; his job duties were distributed among the
five remaining programmers.
Summary judgment is appropriate only when there is no genuine issue of material fact, so
that the dispute may be decided on purely legal grounds.6 The Supreme Court has established
guidelines to assist trial courts in determining whether this standard has been met:
Holloway v. Lockhart, 813 F.2d 874 (8th Cir. 1987); Fed. R. Civ. P. 56.
The inquiry performed is the threshold inquiry of determining whether there is the
need for a trial -- whether, in other words, there are any genuine factual issues that
properly can be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party.7
The Court of Appeals for the Eighth Circuit has cautioned that summary judgment is an
extreme remedy that should be granted only when the movant has established a right to the
judgment beyond controversy.8 Nevertheless, summary judgment promotes judicial economy by
preventing trial when no genuine issue of fact remains.9 I must view the facts in the light most
favorable to the party opposing the motion.10 The Eighth Circuit has also set out the burden of
the parties in connection with a summary judgment motion:
[T]he burden on the party moving for summary judgment is only to demonstrate,
i.e.,“[to point] out to the District Court,” that the record does not disclose a genuine
dispute on a material fact. It is enough for the movant to bring up the fact that the
record does not contain such an issue and to identify that part of the record which
bears out his assertion. Once this is done, his burden is discharged, and, if the record
in fact bears out the claim that no genuine dispute exists on any material fact, it is
then the respondent’s burden to set forth affirmative evidence, specific facts,
showing that there is a genuine dispute on that issue. If the respondent fails to carry
that burden, summary judgment should be granted.11
Only disputes over facts that may affect the outcome of the suit under governing law will
properly preclude the entry of summary judgment.12
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
Inland Oil & Transport Co. v. United States, 600 F.2d 725, 727 (8th Cir. 1979).
Id. at 728.
Id. at 727-28.
Counts v. MK-Ferguson Co., 862 F.2d 1338, 1339 (8th Cir. 1988) (quoting City of Mt.
Pleasant v. Associated Elec. Coop., 838 F.2d 268, 273-74 (8th Cir. 1988) (citations omitted)).
Anderson, 477 U.S. at 248.
The ADEA prohibits an employer from discharging an employee within the
age-protected group (age 40 and over) because of the employee’s age.13 To establish a prima
facie case of age discrimination resulting from an employer’s reduction in force, a plaintiff must
show that (1) he is 40 years old or older, (2) he was qualified for the job, (3) he was discharged,
and (4) age was a factor the employer’s decision to terminate him.14 Following Gross v. FBL
Financial Services, Inc.,15 a plaintiff must prove that age was the “but-for” cause of the
employer’s decision to terminate him—thus raising the bar on the fourth element of the prima
facie case to require a plaintiff to prove that the employer would not have taken the challenged
action but for the plaintiff’s age.16
Here, Plaintiff was 56 at the time of the adverse employment action (termination), and
Hytrol concedes that he was satisfactorily performing his existing job duties.17 At issue, then, is
whether Plaintiff has presented evidence that his age was the “but-for” cause of his termination,
so that there are factual issues to be tried.
Plaintiff contends that he has met his burden of proof on this point with the following
29 U.S.C. §§ 623(a)(1), 631(a).
Chambers v. Metropolitan Prop. and Cas. Ins. Co., 351 F.3d 848, 855 (8th Cir. 2003);
Bashara v. Black Hills Corp., 26 F.3d 820, 823 (8th Cir. 1994) (citing Holley v. Sanyo Mfg., Inc.,
771 F.2d 1161 (8th Cir. 1985)).
Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2350 (2009).
Gross, 129 S.Ct. at 2351 (“[T]he burden of persuasion necessary to establish employer
liability is the same in alleged mixed-motives cases as in any other ADEA disparate-treatment
action. A plaintiff must prove by a preponderance of the evidence (which may be direct or
circumstantial), that age was the “but-for” cause of the challenged employer decision.”).
Doc. No. 14.
(1) he was the oldest programmer for Hytrol; (2) that he was significantly older than
the other programmers, ranging from five (5) to twenty-three (23) years; (3) that he
was the only employee in the reduction-in-force laid off due to an alleged skill set,
whereas all other 200 plus employees were laid off in order of seniority; (4) that
Verlin Smith’s job duties upon termination were distributed among the remaining
programmers, all of whom were substantially younger than Verlin Smith; and (5) that
the testimony of Cary Middlecoff and Ronald Wise supports that of Verlin Smith that
he was not afforded the same actual opportunity to train for this alleged skill set as
the other programmers were, contrary to the assertion of Defendant Hytrol.18
Finally, Plaintiff argues that Defendant’s explanation for his termination has changed over time,
and that this is evidence of that the explanation is pretextual.
The additional evidence of discrimination necessary to make a prima facie case can be
statistical or circumstantial.19 Here, statistics do not support Plaintiff’s claim because Hytrol’s
workforce became slightly older as a result of the February 2009 job eliminations. Before the
February 2009 workforce reduction, the average age of Hytrol’s workforce was 44.65; after that,
the average age was 45.22.20
Plaintiff was the oldest employee in the programming department at the time of his
termination, and his job duties were taken over by the remaining programmers, all of whom were
younger than Plaintiff. The Eighth Circuit has stated, however, that “the fact that the plaintiff’s
duties were assumed by a younger person is not enough in itself to establish a prima facie
case.”21 Here, programmers who received formal training on the laser press, Ronald Wise and
Doc. No. 17, p. 12.
Ward v. Int’l Paper Co., 509 F.3d 457, 461 (8th Cir. 2007).
Doc. No. 15-1.
Fast v. Southern Union Co., Inc., 149 F.3d 885, 890 (8th Cir. 1998) (quoting Bialas v.
Greyhound Lines, Inc., 59 F.3d 759, 763 (8th Cir. 1995)). See also Ward v. Int’l Paper Co., 509
F.3d 457, 461 (8th Cir. 2007) (In a reduction in force case, “[t]hat a younger employee assumed
some of plaintiff’s duties does not establish a prima facie case because often at least one younger
worker receives some of plaintiff’s duties.”).
Cary Middlecoff, were only 5 and 11 years younger than Plaintiff, respectively.22 There is no
evidence that Defendant’s selection of these two individuals to receive training was based on a
discriminatory motive. Plaintiff contends that he was effectively denied training on the laser
press because his other duties did not allow him time for such training and his requests for
training were put off. But there is no evidence that the circumstances preventing Plaintiff from
training to operate the lasers were the result of discrimination.
Plaintiff also argues that because other positions were eliminated based on seniority, not
skill set, Hytrol deviated from its own “objective criterion of seniority” to discriminate against
him because of his age. Neither the fact that a programmer had recently been selected for
termination because of seniority, nor the fact that most other employees (particularly plant, not
office, employees) were selected for termination on seniority grounds, raises an inference of
discriminatory motive in terminating Plaintiff. It is undisputed that he lacked a critical skill set
that all other programmers had attained.
Plaintiff’s argument that Hytrol’s stated reasons for terminating him have changed over
time also fails. Pretext may be shown with evidence that the employer’s reason for the
termination has changed substantially over time.23 In its position statement to the EEOC, Hytrol
stated that Plaintiff was the only employee in the programming department who was “not trained
(by his own choice) to program the Trumpf laser”24 and that the decision to terminate him was
See Schiltz v. Burlington Northern R.R., 115 F.3d 1407, 1413 (8th Cir. 1997) (holding
that a five-year age difference between a plaintiff and the youngest person hired is insufficient to
establish a prima facie case); Girten v. McRentals, Inc., 337 F.3d 979, 982 (8th Cir. 2003)
(expressing doubt whether a nine-year age difference is sufficient to infer age discrimination).
Loeb v. Best Buy Co., Inc., 537 F.3d 867, 873 (8th Cir. 2008); Wierman v. Casey’s Gen.
Stores, 638 F.3d 984, 995 (8th Cir. 2011).
Doc. No. 18, Exhibit E.
based on objective criteria—education, training, and skill set. An exhibit to the position
statement provided that “the decision to eliminate [Plaintiff’s] position was primarily based on
his skill set, but there were other factors that influenced the decision.”25 It went on to explain
that Plaintiff had made “disparaging comments” about the lasers. Andy Maupin, who
recommended that Plaintiff’s position be eliminated, testified at his deposition that he made the
decision based solely on skill set.26 Because Plaintiff’s inability to program the laser presses has
remained Hytrol’s primary reason for his termination, the proffered reason for Plaintiff’s
termination has not changed substantially over time.
In sum, Plaintiff has failed to come forward with evidence that permits a reasonable
inference that he was terminated because of his age. Accordingly, Defendant’s Motion for
Summary Judgment is GRANTED.
IT IS SO ORDERED this 14th day of July, 2011.
/s/Billy Roy Wilson
UNITED STATES DISTRICT JUDGE
Doc. No. 18, Exhibit F.
Doc. No. 18, Exhibit A.
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