McWhorter v. Maynard, Inc

Filing 24

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
FAYETTEVILLE DIVISION
JACKI R. McWHORTER
v.

PLAINTIFF
Civil No. 10-5101

MAYNARD, INC.

DEFENDANT
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
response,

brief

in

opposition

thereto

and

her

responses

to

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:
Background
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
Maynard.
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’s claims.

Plaintiff has responded to the motion and it

is ripe for consideration by the Court.

A jury trial is set for

August 1, 2011.
Material Facts
The Court finds the following material and undisputed facts:
*

Plaintiff was hired by Maynard on August 3, 1998.

She

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
at Maynard.

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
person.

-2-

*

Mr. Maynard also told the attendees that he wanted to

have a follow-up meeting so that people could bring ideas about
what

they

expected

from

the

company

in

terms

of

retirement

packages.
*

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.
Although

not

required

by

company

policies,

Maynard

paid

plaintiff her full salary and benefits during the time she was
absent from work due to her medical condition.
*

On

or

before

January

19,

2009,

plaintiff’s

physician, Dr. Furlow, released her to return to work.

primary

Dr. Furlow

did not place any restrictions on plaintiff’s ability to return to
work.

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
speed.

-3-

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.
*

When

plaintiff

returned

to

work,

she

advised

her

supervisor, Maria Smith, that she “was not strong enough to work
full-time.”
*

Ms. Smith responded in an e-mail to plaintiff in which

she stated:
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
August.
I believe that this approach is very considerate as
well as sustainable.
Please let me know if you have any questions,
Maria.
*
off

of

Beginning in January 2009, Maynard began laying people
work

due

to

an

operational

short

fall

and

production orders.

1

PTO refers to “paid time off.”

2

In order to qualify for full benefits at Maynard,
plaintiff needed to work at least 32 hours per week.
-4-

decreased

*

On

employment.

March

20,

2009,

Maynard

terminated

plaintiff’s

At that time, Ms. Smith completed a “Termination of

Employment” form on which there are several pre-preprinted reasons
for

termination,

e.g.,

resignation,

unsatisfactory work, etc.

job

abandonment,

lay-off,

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.

Rather,

plaintiff’s duties were redistributed to her former supervisor, Ms.
Smith.
Legal Analysis
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).
1.

ADEA Claim -- The ADEA prohibits discrimination against

employees, age 40 and over, because of their age.
623(a)(1), 631(a).

Under the ADEA, a plaintiff may prove age

discrimination based on disparate treatment.
relies

on

See 29 U.S.C. §§

circumstantial

rather
-5-

than

direct

Here, plaintiff
evidence

of

age

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.

See

Chambers v. Metro. Prop. & Cas. Ins. Co., 351 F.3d 848, 855 (8th
Cir. 2003).

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
case

in

the

circumstantial.
requires

criterion.”

context,”

and

it

Ward, 509 F.3d at 461.

evidence

employment

omitted).

RIF

decision

adequate
was

to

based

can

be

or

“[T]he prima facie case

create

an

on

illegal

an

statistical

inference

that

an

discriminatory

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).
-6-

Id. (internal quotation

If plaintiff establishes a prima facie case, the burden of
production

shifts

to

Maynard

to

articulate

a

legitimate,

nondiscriminatory reason for its adverse employment action.

See

Ward, 509 F.3d at 460.
If Maynard puts forward a legitimate, nondiscriminatory reason
for its decision to terminate her employment, then plaintiff must
show

that

Maynard’s

discrimination.

proffered

reason

was

pretext

for

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.

See

“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.”

Id.

With the foregoing concepts in mind, the Court now turns to an
analysis of the parties' contentions relative to the ADEA claim.
(a)

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
her employment.

To support her position that she has met her

burden of proving a prima facie case, plaintiff points to the
following evidence:

-7-

*

the May 2008 meeting and Joe Maynard’s comments made at
that meeting;

*

the statistical evidence; and

*

the inconsistent explanations for her termination.

(b)

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.”
Joe

Maynard

says

that

the

Plaintiff argues that, although

meeting

was

to

discuss

retirement

options, no retirement options were discussed at the meeting.

She

points out that the meeting was specifically for people over the
age of 49 and

it

was held outside, behind one of Maynard’s

buildings.
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
discussion.

If the argument is being made that defendant set the

meeting for a location outside in the open air because of the

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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
from

the

people

he

thought

would

be

most

interested

in

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.

-9-

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.

See

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.”

Fisher v.

Pharmacia & Upjohn, 225 F.3d 915, 923 (8th Cir. 2000) (internal
citations omitted).
The Court notes that plaintiff admits the comments made by Joe
Maynard were not directed specifically at her.

Further, the

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

-10-

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.
(c)

Statistical

evidence

--

The

Court

notes

that,

in

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).
Time period

Total
number of
employees
terminated
at Maynard

Number of
employees
terminated
over 40
years old

Percentage of
terminated
employees over
40 years old

5/1/08 - 6/30/09

82

33

40%

Time period

Total
number of
employees
laid off
at Maynard

Number of
employees
laid off
over 40
years old

Percentage of
laid off
employees over
40 years old

5/1/08 - 6/30/09

28

14

50%

-11-

Time period

Total
number of
employees
terminated
at Maynard

Number of
employees
terminated
over 50
years old

Percentage of
terminated
employees over
50 years old

5/1/08 - 6/30/09

82

12

14.6%

Time period

Total
number of
employees
laid off
at Maynard

Number of
employees
laid off
over 50
years old

Percentage of
laid off
employees over
50 years old

5/1/08 - 6/30/09

28

7

25%

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.
At

first

blush,

these

inference of discrimination.

statistics

may

seem

to

raise

an

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
important

statistic

to

consider

in

the

RIF

context

is

the

difference in the percentage of older employees in the work force
before and after the RIF.”)

-12-

The statistical evidence of the percentage of employees aged
50 or older before and after the RIF is as follows:3
Total Number
of employees
at Maynard

Number of
employees over
50 years old

Percentage of
employees over
50 years old

October 2008

143

22

15.3%

May 26, 2009

97

17

17.5%

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

years old.
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
the

stray

remarks

made

by

Joe

Maynard

--

coupled

with

the

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

3

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.
15-1).
-13-

protected class before the layoff was 25.8%; after the layoff it
was 26.0%.”).
(d)

The

inconsistent

explanations

for

termination

--

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
the

company’s

inconsistent

explanations

for

the

plaintiff’s

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

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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
problems.

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
stated:
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
explanation
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
department,

she

admitted

that

she

was

aware

that,

after

she

returned to work in January 2009, there were layoffs happening

-15-

throughout the company because of “lack of work in a lot of the
departments.”

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.

See Hesse

v. Avis Rent-A-Car Sys., 394 F.3d 624 (8th Cir. 2005).
To
Maynard’s

survive

summary

proffered

judgment,

reason

was

plaintiff

pretext

for

must

show

that

discrimination

by

showing that (1) Maynard’s stated reason for terminating her was
false and (2) that age discrimination was the real reason.
For

the

reasons

set

forth

above,

the

Court

finds

that

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

-16-

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.
2.

The ADA – To establish a prima facie case of disability

discrimination,

the

Court

framework as under the ADEA.

employs

the

same

burden-shifting

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.”

Id.

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
whether

plaintiff

has

established
-17-

a

prima

facie

case

of

discrimination because, even if she had, the Court has concluded
that Maynard has articulated a legitimate, nondiscriminatory reason
for

her

termination.

The

ultimate

question

then

is

whether

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.
Plaintiff

also

asserts

that

Maynard

did

not

decide

to

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
demonstrably false.
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.

-18-

The Court does not believe the fact that Maynard brought her
a

computer

for

her

own

personal

use

while

she

was

at

the

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.

Absent

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
rejected.
sufficient

Thus, the Court finds that plaintiff has failed to offer
evidence

for

a

disability discrimination.

reasonable

trier

of

fact

to

infer

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
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