McWhorter v. Maynard, Inc
ORDER granting 15 Motion for Summary Judgment and dismissing case with prejudice. Signed by Honorable Jimm Larry Hendren on July 18, 2011. (src)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
JACKI R. McWHORTER
Civil No. 10-5101
O R D E R
Now on this 18th day of July 2011, comes on for consideration
defendant’s Motion for Summary Judgment, brief in support and
statement of undisputed facts (Docs. 15, 16 and 17) and plaintiff’s
defendant’s statement of undisputed facts (Docs. 18, 19 and 20),
and defendant’s reply (Doc. 21).
The Court, being well and
sufficiently advised, finds and orders as follows:
Plaintiff, Jacki McWhorter, was employed by Maynard, Inc.
(“Maynard”), for approximately ten and one-half years. On November
3, 2008, plaintiff suffered a brain aneurysm and a stroke.
On January 19, 2009, after spending time in a hospital and
then a rehabilitation facility, plaintiff returned to work at
Approximately two months later, on March 20, 2009, Maynard
terminated plaintiff’s employment.
at that time.
Plaintiff was fifty years old
Plaintiff commenced this action against Maynard on June 7,
2010, alleging violations of the Americans with Disabilities Act
(“ADA”) and the Age Discrimination in Employment Act (“ADEA”).
In its Answer, Maynard denies that it violated either the ADA
or the ADEA.
On June 20, 2011, Maynard moved for summary judgment on all of
Plaintiff has responded to the motion and it
is ripe for consideration by the Court.
A jury trial is set for
August 1, 2011.
The Court finds the following material and undisputed facts:
Plaintiff was hired by Maynard on August 3, 1998.
primarily worked in bookkeeping.
Joe Maynard is the president of Maynard.
On May 30, 2008, Joe Maynard held a meeting to discuss
the future expectations of employees regarding retirement options
Eleven people, including plaintiff, were invited to
attend the meeting.
All eleven people were over 49 years old.
At the May 2008 meeting, Mr. Maynard said something to
the effect that “when people get older, they tend to slow down
. . . but in order to stay employed at Maynard, you will need to
give 100 percent.”
(Plaintiff’s depo. at 52-53). Plaintiff does
not believe that he was directing his comment to any specific
Mr. Maynard also told the attendees that he wanted to
have a follow-up meeting so that people could bring ideas about
During the second follow-up meeting, Maynard employees
shared their ideas about possible retirement options.
On November 3, 2008, plaintiff suffered a brain aneurysm
and a stroke.
As a result of her medical condition, plaintiff
could not return to work until January 19, 2009.
plaintiff her full salary and benefits during the time she was
absent from work due to her medical condition.
physician, Dr. Furlow, released her to return to work.
did not place any restrictions on plaintiff’s ability to return to
Rather, he told her that he “would just leave it up to [her]
[as to] how much [she] could work.”
(Plaintiff’s depo. at 25).
Plaintiff’s occupational therapist told her that she
should not work more than 20 hours a week.
When plaintiff returned to work, she could not use her
left hand at all, but she made adjustments using her right hand –although she was not able to do such things as typing at her prior
In addition, plaintiff was limited in her driving abilities,
she had trouble dressing herself when items of clothing had buttons
or snaps, and she had some trouble with balancing when walking on
uneven surfaces, such as gravel.
supervisor, Maria Smith, that she “was not strong enough to work
Ms. Smith responded in an e-mail to plaintiff in which
I’d like to keep you on full time rather than have you
deal with part-time and cobra and 3 month wait for
conversion back to full-time benefits.
In order to do this, you will need to use your PTO1
hours to make up the difference b/n 32 hours2 and hours
worked. As you build stamina and strength, it should
be less and less...but, you will probably have to go a
few months without any PTO until your anniversary in
I believe that this approach is very considerate as
well as sustainable.
Please let me know if you have any questions,
Beginning in January 2009, Maynard began laying people
PTO refers to “paid time off.”
In order to qualify for full benefits at Maynard,
plaintiff needed to work at least 32 hours per week.
At that time, Ms. Smith completed a “Termination of
Employment” form on which there are several pre-preprinted reasons
unsatisfactory work, etc.
Maynard indicated that the reason for
plaintiff’s termination was “Lay-Off” –- and both Ms. Smith and Mr.
Maynard signed the form.
(Plaintiff declined to sign the form).
There is also space on the form for “additional remarks,
and in that section Ms. Smith wrote “lack of business coupled with
recent discovery of poor choices made in PRC manager capacity.”
No one was hired to fill plaintiff’s position.
plaintiff’s duties were redistributed to her former supervisor, Ms.
Summary judgment is appropriate when the evidence, viewed in
the light most favorable to the nonmoving party, presents no
genuine issue of material fact and the moving party is entitled to
judgment as a matter of law.
See Fitzgerald v. Action, Inc., 521
F.3d 867, 871 (8th Cir. 2008).
ADEA Claim -- The ADEA prohibits discrimination against
employees, age 40 and over, because of their age.
Under the ADEA, a plaintiff may prove age
discrimination based on disparate treatment.
See 29 U.S.C. §§
discrimination, and, thus, her case is considered under the burdenshifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.
792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
See Tusing v. Des
Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 515 (8th Cir. 2011).
Under the McDonnell Douglas framework, plaintiff must first
establish a four-part prima facie case of age discrimination.
Chambers v. Metro. Prop. & Cas. Ins. Co., 351 F.3d 848, 855 (8th
To establish a prima facie case of age discrimination
in cases involving a reduction-in-force (“RIF”), plaintiff must
show that: (1) she is over 40 years old, (2) she met Maynard’s job
qualifications; (3) she was terminated; and (4) there is some
additional evidence that age was a factor in Maynard’s decision to
terminate her employment.
See Ward v. Int'l Paper Co., 509 F.3d
457, 460 (8th Cir. 2007).
“Additional evidence is a necessary part of the prima facie
Ward, 509 F.3d at 461.
“[T]he prima facie case
Id. (internal brackets, quotation marks and citations
“The ADEA does not require that every plaintiff in a
protected age group be allowed a trial simply because [she] was
discharged during a reduction-in-force.”
marks and citation omitted).
Id. (internal quotation
If plaintiff establishes a prima facie case, the burden of
nondiscriminatory reason for its adverse employment action.
Ward, 509 F.3d at 460.
If Maynard puts forward a legitimate, nondiscriminatory reason
for its decision to terminate her employment, then plaintiff must
See Ward, 509 F.3d at 460.
At all times, plaintiff retains the burden of persuasion to
prove that age was the "but-for" cause of the termination.
Tusing, 639 F.3d at 516.
“Thus, proof that the explanation is
false is necessary, but not sufficient, to show a pretext for
discrimination under the ADEA.
In other words, the plaintiff must
show that the employer’s stated reason was false and that age
discrimination was the real reason.”
With the foregoing concepts in mind, the Court now turns to an
analysis of the parties' contentions relative to the ADEA claim.
There is no dispute that plaintiff has met the first
three elements of a prima facie case.
The question is whether she
has met the fourth element by coming forward with additional
evidence that age was a factor in Maynard’s decision to terminate
To support her position that she has met her
burden of proving a prima facie case, plaintiff points to the
the May 2008 meeting and Joe Maynard’s comments made at
the statistical evidence; and
the inconsistent explanations for her termination.
The May 2008 meeting and Joe Maynard’s comments --
Plaintiff alleges that an inference of age discrimination can be
found in Joe Maynard’s comments at the May 2008 meeting where he
said something to the effect of “when people get older, they tend
to slow down . . . but in order to stay employed at Maynard, you
will need to give 100 percent.”
Plaintiff argues that, although
options, no retirement options were discussed at the meeting.
points out that the meeting was specifically for people over the
age of 49 and
was held outside, behind one of Maynard’s
Plaintiff contends that both the topic and the location of the
meeting are “suspect.”
The e-mail to the attendees of the May 30,
2008, meeting told them to meet outside “weather permitting,
otherwise B1 breakroom.”
The Court is not persuaded by plaintiff's argument that the
proposed outside location for the meeting -- weather permitting -can properly be characterized as "suspect" in the context of this
If the argument is being made that defendant set the
meeting for a location outside in the open air because of the
advanced age of those invited, the argument, itself, would appear
to be “suspect.”
If the location selection was meant to turn on
the consideration of age, one would think that a meeting location
indoors in a predictable, controlled environment would have been
selected as opposed to an outside location susceptible to possible
inclement weather or weather extremes.
The Court declines to
consider the location selected for the meeting as any basis to
infer age discrimination.
The Court also does not see any basis to conclude that the
occurrence of the meeting, itself, is evidence from which age
discrimination can properly be inferred.
During the meeting, Mr. Maynard told the attendees he wanted
to have a follow-up meeting so that people could bring forth ideas
about what they expected from the company in terms of retirement.
In the Court's view, it is reasonable to infer therefrom that, in
essence, Mr. Maynard was soliciting ideas for retirement packages
participating in those programs.
Plaintiff has cited to no case which holds that there is
something inherently unlawful or discriminatory about an employer
holding a meeting to discuss possible retirement packages with
those employees who, based on their age and/or tenure with the
company, might be interested in such a discussion.
Further, the Court believes that Joe Maynard’s statement made
at the meeting (about older people tending to slow down, etc.) is
properly characterized as a “stray remark,” which does not -- by
itself -- give rise to an inference of discrimination.
Fitzgerald, 521 F.3d at 876-77.
As the Eighth Circuit has noted,
however, such remarks are not irrelevant.
[S]uch comments are surely the kind of fact which could
cause a reasonable trier of fact to raise an eyebrow,
thus providing additional threads of evidence that are
relevant to the jury.
When combined with other
evidence, stray remarks constitute circumstantial
evidence that . . . may give rise to a reasonable
inference of age discrimination.
Id. (internal quotation marks and citations omitted);
“Stray remarks therefore constitute circumstantial evidence
that, when considered together with other evidence, may give rise
to a reasonable inference of age discrimination.”
Pharmacia & Upjohn, 225 F.3d 915, 923 (8th Cir. 2000) (internal
The Court notes that plaintiff admits the comments made by Joe
Maynard were not directed specifically at her.
meeting at which he made these comments occurred almost one year
before plaintiff was terminated -- and eight months prior to the
first company lay-off.
Based on these two facts, the Court finds
that the remarks -- while they might be seen as evidence of some
discriminatory animus -- are somewhat “outdated” and also lack
significant probative value.
See Walton v. McDonnell Douglas
Corp., 167 F.3d 423 428 (8th Cir. 1999) (holding that stray remarks
made almost two years prior to employment action was “outdated” and
“lacking in apparent probative value.”).
Thus, the Court finds that these remarks by Joe Maynard, by
themself, do not amount to sufficient “additional evidence” that
age was a factor in Maynard’s decision to terminate plaintiff’s
employment and the stray remarks do not alone satisfy the fourth
element of plaintiff’s prima facie case. The Court will, however,
consider such remarks in the context of the statistical evidence.
analyzing the statistical evidence, it has focused on the time
period between May 1, 2008 (the month of the meeting when Mr.
Maynard made the stray remarks about age) and June 30, 2009 (the
month in which the last lay off occurred pursuant to Maynard’s
responses to plaintiff’s discovery requests, Ex. A, Doc. 20-5).
40 years old
5/1/08 - 6/30/09
40 years old
5/1/08 - 6/30/09
50 years old
5/1/08 - 6/30/09
50 years old
5/1/08 - 6/30/09
As set forth in the tables above:
of the total terminations, 40% were over 40 years old, and
14.6% were over 50 years old;
of the total layoffs, 52% were over 40 years old, and 25%
were over 50 years old.
inference of discrimination.
However, the Eighth Circuit has held
that this type of statistical evidence is “meaningless” without
some analysis of the age of the entire workforce at Maynard before
and after the RIF.
See Chambers, 351 F.3d at 856; EEOC v.
McDonnell Douglas Corp., 191 F.3d 948, 952 (8th Cir. 1999) (“an
difference in the percentage of older employees in the work force
before and after the RIF.”)
The statistical evidence of the percentage of employees aged
50 or older before and after the RIF is as follows:3
50 years old
50 years old
May 26, 2009
The above statistics show:
that prior to the RIF, 15.3% of the workforce at Maynard
was over 50 years old; and
that after the RIF, 17.5% of the workforce was over 50
The foregoing shows that the percentage of employees aged 50
years or older at Maynard actually increased after the RIF.
In light of the foregoing analysis, the Court concludes, that
statistical evidence -- are insufficient to establish a prime facie
case of age discrimination.
See Holley v. Sanyo Mfg., Inc., 771
F.2d 161, 1167 (8th Cir. 1985) (holding no statistical evidence of
age discrimination where “[t]he percentage of such employees in the
The Court notes that it compiled this statistical data by
using the information provided by Maynard in its response to the
EEOC request for information (see Doc. 20-3), Maynard’s discovery
responses (see Doc. 20-5) and Joe Maynard’s Affidavit (see Doc.
protected class before the layoff was 25.8%; after the layoff it
Plaintiff asserts that Maynard provided inconsistent explanations
for its decision when it checked the box on her “Termination of
Employment Form” that the reason for her termination was “Lay-Off”
and stated in the additional remarks section that the termination
was due to “lack of work coupled with recent discovery of poor
choices made in PRC manager capacity.”
Plaintiff also points to the fact that, in completing the
“Notice to Last Employer” form submitted to the Arkansas Department
of Workforce Services regarding plaintiff’s unemployment benefits,
Maynard stated the reason for her termination was “lack of work.”
Plaintiff cites to the case of Young v. Warner-Jenkinson Co.,
152 F.3d 1018 (8th Cir. 1998) in which the Eighth Circuit held that
termination were enough to support an inference of discriminatory
treatment such that plaintiff had stated a prima facie case, and,
moreover, had created a genuine issue of fact as to the issue of
pretext to avoid summary judgment.
The Court believes that the facts of Young are distinguishable
from those in this case and that it is not controlling on the issue
under discussion here.
In Young, the plaintiff presented evidence
that -- at a meeting -- he was informed by his manager of the
company’s decision to terminate his employment for poor performance
and that, during this meeting, the manager referred to a memorandum
which outlined three areas wherein the plaintiff had performance
Later, after plaintiff filed complaints with the EEOC,
the company stated that his termination was due to “lack of
available work.” After reviewing this evidence, the Eighth Circuit
Warner-Jenkinson's insistence on characterizing Young's
dismissal as a layoff prompted by a lack of available work
flies in the face of substantial evidence that Young was
earlier told a completely different story. Although
Warner-Jenkinson may be able to offer a plausible
for this apparent change in positions, as
well as for the apparent mendacity of the alleged
deficiencies in Young's job performance, these are matters
to be decided at trial and not by summary judgment.
Young, 152 F.3d at 1024.
In the case at bar, Maynard has consistently stated that the
reason for plaintiff’s termination was a lay-off due to lack of
work and plaintiff admits that she was told at the meeting on
January 19, 2009, that she was being laid-off.
The fact that
Maynard also provided an additional basis for her termination
(i.e., poor management choices) does not, in the Court's view,
undermine Maynard’s primary stated reason for her termination.
Although plaintiff alleges in her brief that there was no
reason to lay her off because there was no lack of work in her
returned to work in January 2009, there were layoffs happening
throughout the company because of “lack of work in a lot of the
She also admits that she “really did not know that
much about the layoffs and the reasons behind them or even the
purposes of them.”
(Plaintiff’s depo. at 63).
Plaintiff does not
point to any evidence to support her allegation and it appears that
her own testimony fails to support it.
The Court also notes that it is undisputed that Maynard did
not fill plaintiff’s position, but merely redistributed her duties
to Ms. Smith.
This fact is also undermines plaintiff’s allegation
that there was no lack of work in her department and supports
Maynard’s position that plaintiff was laid-off for lack of work.
Thus, even if the Court could properly conclude that plaintiff
had established a prima facie case of age discrimination, Maynard
has articulated a legitimate, nondiscriminatory reason for its
adverse employment action, i.e., a reduction in force.
v. Avis Rent-A-Car Sys., 394 F.3d 624 (8th Cir. 2005).
showing that (1) Maynard’s stated reason for terminating her was
false and (2) that age discrimination was the real reason.
plaintiff has failed to meet her burden at both the prima facie
stage and the pretext stage.
Specifically, the Court finds that
plaintiff has not presented evidence that shows that Maynard’s
reason for her termination was false, or that age discrimination
was the real reason. Thus, Maynard is entitled to summary judgment
on plaintiff’s ADEA claim.
The ADA – To establish a prima facie case of disability
framework as under the ADEA.
Namely, plaintiff must show that she
has a disability within the meaning of the ADA, that she was
qualified to perform the essential functions of the job, with or
without reasonable accommodation, and she suffered an adverse
employment action because of her disability. Norman v. Union Pac.
R.R. Co., 606 F.3d 455, 459 (8th Cir. 2010).
If she makes out a prima facie case, then Maynard must
articulate a legitimate, nondiscriminatory reason for its decision
to terminate her employment.
(8th Cir. 2010).
See Lors v. Dean, 595 F.3d 831, 834
If Maynard meets its burden, then plaintiff must
present sufficient evidence that Maynard’s articulated reason for
the adverse employment action was false and that “discrimination
was the real reason.”
To demonstrate pretext, plaintiff “must
do more than simply create a factual dispute as to the issue of
pretext; [she] must offer sufficient evidence for a reasonable
trier of fact to infer discrimination.”
Id. (internal quotation
marks and citations omitted).
The Court finds it unnecessary to address the issues regarding
discrimination because, even if she had, the Court has concluded
that Maynard has articulated a legitimate, nondiscriminatory reason
plaintiff has established pretext such that a reasonable trier of
fact could infer disability discrimination.
Plaintiff alleges that she has established pretext by showing
the inconsistent explanations Maynard gave for her termination.
The Court has already considered and rejected this allegation.
In addition, plaintiff points to the fact that, during her
hospitalization, Maynard provided her with a laptop computer.
Plaintiff says that, if her position was going to be terminated due
to “lack of work,” then Maynard would not have provided her with a
laptop computer while she was in the hospital.
terminate her employment until after she returned to work and
Maynard discovered the true extent of her injuries, i.e., that she
had to work part-time at a slower pace.
Thus, says plaintiff,
Maynard’s explanation for her termination –- lack of work –- is
With respect to the laptop computer, plaintiff testified at
her deposition that Maynard gave her the laptop computer for her
personal rehabilitation use -- and that she was not expected to
work from her hospital bed.
The Court does not believe the fact that Maynard brought her
rehabilitation facility is any evidence -- one way or the other -that her department was suffering from lack of work since she
acknowledged that it was admittedly provided for rehabilitation
purposes and not so she could work from her hospital bed.
some proof that Maynard’s explanation was false, the Court sees no
reason to discount or reject it -- especially when plaintiff does
not actually dispute it.
It must be remembered that the Court does
not sit as a super-personnel department reviewing the wisdom or
fairness of the business judgments made by employers. See Anderson
v. Durham D&M, L.L.C., 606 F.3d 513, 522 (8th Cir. 2010).
With respect to the other reasons that plaintiff has offered
as amounting to pretext, those issues have been addressed above and
Thus, the Court finds that plaintiff has failed to offer
Thus, Maynard is entitled to summary
judgment on plaintiff’s ADA claim.
IT IS THEREFORE ORDERED that defendant’s Motion for Summary
Judgment (Doc. 15) is hereby GRANTED and plaintiff’s complaint is
hereby DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
/s/JIMM LARRY HENDREN
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?