Woolbright v. Tankinetics, Inc. et al
MEMORANDUM OPINION AND ORDER denying as moot 32 Motion in Limine; denying as moot 34 Motion for Extension of Time to File; granting 22 Motion for Summary Judgment. Signed by Honorable P. K. Holmes, III on March 7, 2014. (adw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
Case No. 3:12-CV-03123
TANKINETICS, INC. and STRAND
COMPOSITE ENGINEERING &
OPINION AND ORDER
This matter arises out of Plaintiff Helen Woolbright’s allegations of employment
discrimination against her former employer. Currently before the Court are a motion for summary
judgment (Doc. 22) and supporting documents (Docs. 23 and 24) filed by Defendants Tankinetics,
Inc. (“Tankinetics”) and Strand Composite Engineering & Construction, LLC (“Strand”). Plaintiff
has filed a response in opposition (Doc. 26) and a statement of facts in dispute (Doc. 27), to which
Defendants have replied (Docs. 28 and 29). For the reasons stated herein, Defendants’ motion for
summary judgment is GRANTED.
Plaintiff Helen Woolbright was discharged from her job at Strand on April 11, 2011. She
was 60 years old at the time. In her complaint, Plaintiff alleges that she was terminated because of
her age in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et
seq., and that Strand and Tankinetics are both liable as her employer. Defendants contend that
Plaintiff was discharged for a legitimate non-discriminatory reason, namely that as part of a plan to
reduce overhead and increase profitability, Plaintiff’s position was eliminated and her job duties
were reassigned to other employees. Defendants further contend that Tankinetics was not Plaintiff’s
employer at the time of discharge and otherwise had no role in the employment decision.
To the extent that Plaintiff, in responding to Defendants’ motion or statement of undisputed
facts, has relied on speculation, denials, or allegations, without a proper basis in fact or clear citation
to facts already in the record, the Court will view such facts as essentially undisputed. See Fed. R.
Civ. P. 56(e)(2) (“When a motion for summary judgment is properly made and supported, an
opposing party may not rely merely on allegations or denials in its own pleading; rather, its response
must . . . set out specific facts showing a genuine issue for trial.”). To the extent they are relevant,
those facts not specifically controverted by Plaintiff will be deemed to have been admitted pursuant
to Local Rule 56.1. Where Plaintiff has provided some basis in fact or in the record, however, the
Court has made all inferences in her favor, as is appropriate when making a summary judgment
determination. Canada v. Union Elec. Co., 135 F.3d 1211, 1212–13 (8th Cir. 1998) (citing Buller
v. Buechler, 706 F.2d 844, 846 (8th Cir. 1983)).
Plaintiff was originally hired by Tankinetics on July 7, 1997, as an assistant in the
Accounting Department. At that time, Tankinetics was in the business of making fiberglass tanks,
fiberglass ducting pipe, mobility boxes, and rapid runway mats. George Angle, a majority
shareholder of Tankinetics, hired St. Clair Guess, III to be President of Tankinetics in February of
2009. Guess was hired to increase profits and grow the company. However, Guess did not believe
he could grow Tankinetics.
He and Angle decided the best option was to create a new
company—Strand—to build the fiberglass reinforced tanks. After Strand was created in 2010,
Guess resigned his position at Tankinetics and became the President and General Manager of Strand.
That same year, Plaintiff was transitioned from being an employee of Tankinetics to being an
employee of Strand.
Prior to her termination, Plaintiff earned an annual salary of $60,000 as the Human
Resources Director and Office Manager for Strand. She performed a variety of administrative and
clerical tasks in both the Human Resources and Accounting Departments, and reported directly to
William Schwarz, Strand’s CFO. Plaintiff was the only person in Strand’s Human Resources
Department, but the Accounting Department included at least three other employees: Jim Johnson,
Manager of Corporate Finance; Dina Greene, who handled accounts payable; and Dana Lisk, a
Guess, accompanied by Schwarz, approached Plaintiff after work on April 11, 2011. Guess
told Plaintiff that they needed to talk to her and had some bad news. He informed Plaintiff that the
company was having money problems and her position was going to be eliminated. He offered her
severance pay and explained that her job duties would be redistributed to other employees. After
Plaintiff’s termination, the Human Resources Department was eliminated and Guess, Schwarz,
Johnson, Greene, and Lisk each assumed some of Plaintiff’s duties in addition to their own job
responsibilities. Specifically, Guess took over Plaintiff’s human resources duties; Schwarz assumed
her office management duties; Schwarz, and then Johnson, took over management of employee
benefits; and Schwarz, Johnson, Greene, and Lisk all took on responsibility for personnel files and
processing payroll. At the time, Guess was 57, Schwarz was 70 years old, and Johnson, Greene, and
Lisk were each 48 years old.
The standard of review for summary judgment is well established. Under Federal Rule of
Civil Procedure 56(a), “[t]he court shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
The Court must review the facts in the light most favorable to the opposing party and give that party
the benefit of any inferences that logically can be drawn from those facts. Canada, 135 F.3d at
1212–13. The moving party bears the burden of proving the absence of a genuine dispute of
material fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c);
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986); Nat’l. Bank of
Commerce of El Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602 (8th Cir. 1999). Once the moving
party has met its burden, the non-moving party must “come forward with ‘specific facts showing
that there is a genuine issue for trial.’” Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(c)).
In order for there to be a genuine issue of material fact, the non-moving party must produce evidence
“such that a reasonable jury could return a verdict for the nonmoving party.” Allison v. Flexway
Trucking, Inc., 28 F.3d 64, 66 (8th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)). “The nonmoving party must do more than rely on allegations or denials in the
pleadings, and the court should grant summary judgment if any essential element of the prima facie
case is not supported by specific facts sufficient to raise a genuine issue for trial.” Register v.
Honeywell Fed. Mfg. & Techs., LLC, 397 F.3d 1130, 1136 (8th Cir. 2005) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986)).
The case at bar involves a claim of discrimination in the workplace. The Court observes that
“[w]hile employment discrimination cases are often fact intensive and dependent on nuance in the
workplace, they are not immune from summary judgment, and there is no separate summary
judgment standard for employment discrimination cases.” Fercello v. Cnty. of Ramsey, 612 F.3d
1069, 1077 (8th Cir. 2010). A plaintiff can survive summary judgment on an age discrimination
claim “either by providing direct evidence of discrimination or by creating an inference of unlawful
discrimination” using circumstantial evidence. Bone v. G4S Youth Servs., LLC, 686 F.3d 948, 953
(8th Cir. 2012). When a plaintiff relies on circumstantial evidence to prove age discrimination based
on disparate treatment, the claim is analyzed using the burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Rahlf v. Mo-Tech Corp., 642 F.3d 633, 637 (8th Cir.
2011) (citations omitted). Under this framework, “the plaintiff initially has the burden to establish
a prima facie case of discrimination.” Ramlet v. E.F. Johnson Co., 507 F.3d 1149, 1153 (8th Cir.
2007). Once this burden is met, a rebuttable presumption of discrimination arises. Id. The burden
then shifts to the defendant to offer a legitimate, non-discriminatory reason for the adverse
employment action. Id. “If the defendant provides such a reason, the presumption disappears, and
the burden shifts back to the plaintiff to show that the proffered reason was pretext for age
discrimination. At all times, the ultimate burden of persuasion is on the plaintiff.” Id. (citations
Defendants argue that Tankinetics is entitled to summary judgment because Tankinetics had
no role in Plaintiff’s discharge and that Strand is entitled to summary judgment because (1) there
are no facts from which a reasonable juror could infer age discrimination, and (2) Plaintiff cannot
establish causation. In response, Plaintiff argues that she has produced direct evidence in support
of her age discrimination claim and has established a prima facie case of age discrimination, and
therefore summary judgment is inappropriate. She further contends that Tankinetics is liable based
on an agency relationship with Strand or because Tankinetics and Strand were an “integrated
In the employment discrimination context, direct evidence is that which shows “a specific
link between the alleged discriminatory animus and the challenged decision, sufficient to support
a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse
employment action.” Bone, 686 F.3d at 593 (internal quotation omitted). Such evidence “may
include evidence of actions or remarks of the employer that reflect a discriminatory attitude,
comments which demonstrate a discriminatory animus in the decisional process, or comments
uttered by individuals closely involved in employment decisions.” King v. United States, 553 F.3d
1156, 1160 (8th Cir. 2009) (internal quotations and citations omitted). However, “stray remarks in
the workplace, statements by nondecisionmakers, and statements by decisionmakers unrelated to the
decisional process do not constitute direct evidence.” Id.
Plaintiff maintains that she has presented direct evidence of age discrimination in the form
of remarks by Guess that reflect a discriminatory attitude and animus. The only evidence offered
concerning these remarks is the affidavit of Ron Perry, a former employee of both Tankinetics and
Strand. Perry avers, among other things, that Guess made age-related comments to him about other
The Court finds that Perry’s testimony does not create a genuine dispute as to any material
fact because the statements in Perry’s affidavit contradict Plaintiff’s earlier sworn testimony. “It is
well-established that parties to summary judgment cannot create sham issues of fact in an effort to
defeat summary judgment and . . . a district court may grant summary judgment where a party’s
sudden and unexplained revision of testimony creates an issue of fact where none existed before.”
Marathon Ashland Petroleum, LLC v. International Brotherhood of Teamsters, Local 120, 300 F.3d
945, 951 (8th Cir. 2002) (internal quotations omitted); Prosser v. Ross, 70 F.3d 1005, 1008 (8th Cir.
1995) (noting that a plaintiff cannot avoid summary judgment by offering the affidavit of another
person if that person’s testimony contradicts the plaintiff’s own earlier testimony). Here, Plaintiff
testified in her deposition that there were never any age-related comments made (Doc. 22-3, p.19).
Plaintiff cannot revise her own testimony by raising new allegations of discriminatory statements
through another person’s affidavit.
Aside from Perry’s affidavit, Plaintiff presents no direct evidence of intentional age
discrimination.1 Therefore, to succeed on her ADEA claim, Plaintiff must create an inference of
unlawful discrimination based on circumstantial evidence.
To satisfy the prima facie case of age discrimination in a typical termination scenario, a
plaintiff must show he or she was: (1) over 40 years old; (2) qualified for the position; (3) discharged
from employment; and (4) replaced by someone sufficiently younger to permit an inference of age
discrimination. Anderson v. Durham D & M, L.L.C., 606 F.3d 513, 523 (8th Cir. 2010). The fourth
prong of the prima facie case is altered in reduction-in-force cases, where the plaintiff was laid off2
and his or her duties were either eliminated or redistributed to remaining workers. Rahlf, 642 F.3d
at 637. Where there has been a reduction in force, the plaintiff must provide “some additional
evidence that age was a factor in the employer’s termination decision.” Id.
Furthermore, prior to Plaintiff’s proffer of Perry’s affidavit, the only alleged discriminatory
statement raised in this case was Plaintiff’s averment that another former employee, Tex Pickron,
was told by Graham Keymer, a manager at Strand, that Keymer was instructed to terminate “old
hands.” (Doc. 1, ¶ 12). Plaintiff does not argue that Keymer’s comment regarding terminating the
“old hands” constitutes direct evidence. Even if she did, the Court finds this comment is merely a
stray remark that does not count as direct evidence.
Plaintiff testifies that she was not “laid off” because she had no expectation of returning
to employment with Strand. (Doc. 22-2, p. 30). However, her interpretation of being “laid off”
holds no legal significance. In the context of discussing Plaintiff’s age discrimination claim, the
Court interprets the phrase “laid off” to indicate termination from employment due to a reduction
In this case, it is undisputed that Plaintiff’s employment with Strand was terminated, and she
was over 40 years old at the time. Further, Defendants do not challenge Plaintiff’s qualification for
her prior position. The Court therefore presumes that Plaintiff has made a sufficient showing with
regard to the first three elements of a prima facie case of age discrimination. At issue is whether
Plaintiff has shown that she was replaced by a younger employee or that some evidence exists to
indicate that age was a factor in the employer’s termination decision. The Court concludes Plaintiff
has failed to make this showing.
Plaintiff contends that the fourth element is met because she was replaced with younger
employees. This assertion contradicts the evidence, including Plaintiff’s own testimony that her job
duties were assumed by other employees who were already employed by Strand, and Plaintiff was
unaware of Strand hiring anyone to replace her. (Doc. 22-3, pp. 20–22). The evidence provided to
the Court shows that Plaintiff’s position was eliminated and her various duties were reassigned to
remaining employees. Because of this, Plaintiff must provide “some additional evidence that age
was a factor” in her discharge. Although this is a very low standard, Plaintiff failed to meet it.
Plaintiff has submitted virtually no evidence to support her contention that age played a part
in her termination. The only affidavit attached to her response in opposition to Defendants’ motion
is that of Ron Perry, which the Court has determined to be a sham affidavit. Plaintiff’s only proof
of her age discrimination claim is that she was older than some of the employees who absorbed her
former duties. She testified that this fact, by itself, is evidence that the company terminated her
employment due to her age because she did her job, dedicated a lot of hours to the company, and
was never told that she did not perform her job correctly. (Doc. 22-3, p. 29). This, without more,
does not indicate that age was a factor in the decision to discharge Plaintiff from employment. Ward
v. Int’l Paper Co., 509 F.3d 457, 461 (8th Cir. 2007) (“That 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.”).
Assuming arguendo that Plaintiff has established a prima facie case of age discrimination,
Defendants would still be entitled to summary judgment because Plaintiff failed to show that
Defendants’ legitimate, non-discriminatory reason for Plaintiff’s termination was mere pretext.
Defendants’ stated reason for eliminating her position was to cut expenses as part of Strand’s general
goal of increasing profitability. To substantiate this reason, Defendants submit the following
evidence: the second affidavit of Guess (Doc. 22-1); the affidavit of Schwarz (Doc. 22-2); excerpts
and exhibits from the deposition of Plaintiff (Doc. 22-3); and excerpts from the deposition of Tex
Pickron, another former employee of Strand (Doc. 22-4). Guess explains that layoffs were necessary
to reduce Strand’s overhead and make the company more profitable. He further avers that Strand
laid off approximately 15 employees in 2011, and at least 13 of those employees were younger than
Plaintiff. With regard to Plaintiff, Guess determined—and Schwarz agreed—that she made a high
salary relative to what she did. By eliminating her position and redistributing her duties to other
Strand employees, Strand could save Plaintiff’s $60,000 per year salary and benefits, while still
accomplishing the work. This is a legitimate, non-discriminatory justification for Plaintiff’s
termination. See Floyd v. Mo. Dep’t of Social Servs., Div. of Family Servs., 188 F.3d 932, 936 (8th
Cir.1999) (“The burden to articulate a nondiscriminatory justification is not onerous, and the
explanation need not be demonstrated by a preponderance of the evidence.”).
Because Defendants have articulated a legitimate, non-discriminatory reason for Plaintiff’s
termination, the burden shifts back to Plaintiff. To avoid summary judgment, Plaintiff must present
evidence that creates a genuine dispute of material fact as to whether Defendants’ proffered reason
is pretext and that creates a reasonable inference that age was a determinative factor in the decision
to discharge Plaintiff. Rahlf, 642 F.3d at 638. At this stage of the analysis, “the factual inquiry
proceeds to a new level of specificity.” Dammen v. UniMed Med. Ctr., 236 F.3d 978, 981 (8th Cir.
2001) (quoting USPS Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983)). After reviewing the
record before the Court, it is clear that Plaintiff failed to meet this burden.
Plaintiff’s arguments in favor of pretext are twofold. First, she argues that there was no need
for Strand to cut expenses. To support this contention, Plaintiff points out that Strand hired two new
employees, Clint Broome in 2010 and Jim Johnson in March of 2011, and paid them annual salaries
of $80,000 and $85,000, respectively. She also states that Guess’s own salary was never reduced,
bonuses were distributed, and according to Guess’s testimony, sales were around $20 million in
December of 2011. This evidence does not support an inference that Strand’s reduction in force was
pretextual. See Rahlf, 642 F.3d at 638–39. (“When a company exercises its business judgment in
deciding to reduce its work force, it need not provide evidence of financial distress to make it a
legitimate RIF.”) (internal quotations and citations omitted). For example, Guess testified that “[w]e
reorganized the—the facility to be able to produce a lot more at one time than it ever had before, and
the orders on the books, I believe, when PMS came to look at the company, may have been in the
range of $20 million.”3 (Doc. 26-2, p. 3). The Court does not see how increased production—and,
presumably, increased sales—eight months after Plaintiff’s termination could support an inference
that Defendants’ proffered reason was pretext for age discrimination.
“PMS” refers to the company Plant Maintenance Services, which purchased Strand on
March 1, 2012.
Second, Plaintiff argues that Defendants have provided contradictory reasons for the decision
to terminate Plaintiff. The Court recognizes that “[p]retext may be shown with evidence that the
employer’s reason for the termination has changed substantially over time.” Loeb v. Best Buy Co.,
537 F.3d 867, 873 (8th Cir. 2008). As mentioned above, Defendants assert that Plaintiff’s
termination was a business decision based on Strand’s goal of reducing overhead to increase
profitability. Plaintiff argues that Defendants have changed the reason for her termination from cost
saving to restructuring, and again to telling confidential information. The Court finds this argument
is not supported by the evidence. Plaintiff does not explain how “cost saving” and “restructuring”
are mutually exclusive justifications. It appears to the Court that Strand’s goal was to save costs,
and one method of doing so was restructuring the company. This is Defendants’ stated reason for
eliminating Plaintiff’s position. Furthermore, Guess explicitly stated in his affidavit that his belief
that Plaintiff had previously violated Strand’s confidentiality policy was “incidental to [his] decision
to eliminate the HR Department later on.” (Doc. 22-1, p. 3). Accordingly, Plaintiff has failed to
provide the Court with any evidence indicating that Defendants have changed the reason for her
Plaintiff has come forward with nothing, other than her own speculation that Guess was
laying off older workers, to indicate that age played a role in the decision to terminate her
employment. Speculation, absent any proof, is simply insufficient to make her case. See Dammen
v. UniMed Med. Ctr., 236 F.3d 978, 981 (8th Cir. 2001) (noting that an employer would still be
entitled to judgment as a matter of law “if the record conclusively revealed some other,
nondiscriminatory reason for the employer’s decision, or if the plaintiff created only a weak issue
of fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted
independent evidence that no discrimination had occurred”). Plaintiff has not provided the Court
with sufficient, specific evidence of disparate treatment to survive summary judgment. Because the
Court finds that there is no genuine dispute of fact as to the reason for Plaintiff’s termination, it is
not necessary to address the parties’ arguments regarding Tankinetics’ liability or Defendants’
alternative arguments for summary judgment.
For the reasons set forth above, IT IS ORDERED that Defendants’ motion for summary
judgment (Doc. 22) is GRANTED, Plaintiff’s claims are DISMISSED WITH PREJUDICE, and
judgment will be entered in favor of Defendants.
IT IS FURTHER ORDERED that all other pending motions in this case are DENIED AS
IT IS SO ORDERED this 7th day of March, 2014.
/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE
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