Burback v. CEVA Freight, LLC et al

Filing 35

Memorandum Opinion and Order. It is ORDERED that Defendants' 22 Motion for Summary Judgment is granted. By Judge Richard P. Matsch on 05/20/13. (alvsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Richard P. Matsch
Civil Action No. 11-cv-01862-RPM
HENRY J. BURBACK,
Plaintiff,
v.
CEVA FREIGHT, LLC, and
CEVA LOGISTICS U.S., INC.,
Defendant.
__________________________________________________________________________
MEMORANDUM OPINION AND ORDER
__________________________________________________________________________
Plaintiff Henry Burback claims that his former employer, CEVA Freight, discriminated
against him on the basis of age when it demoted and ultimately fired him, in violation of the Age
Discrimination in Employment Act (“ADEA”). Defendants CEVA Freight and CEVA Logistics
have moved for summary judgment.1
CEVA was formed in August 2007 after EGL Eagle Global Logistics and TNT Logistics
merged. CEVA is a logistics company that currently operates 78 stations throughout the United
States. Each station is managed by a Station Manager, and Station Managers report to Vice
Presidents of Operations.
Henry Burback worked at CEVA’s Denver Station from July, 2000 until his employment was
terminated in November 2010, when he was 61 years old. Before the events giving rise to this
lawsuit, Burback served as the inbound shipping Operations Manager.

1

Given the Court’s Order today, it need not determine whether CEVA Logistics should be dismissed from the lawsuit
because it is not an “employer” under the ADEA.

In January 2010, CEVA Vice President of Operations, Shawn Stewart, then 35 years old, took
over management of CEVA’s Denver Station. Stewart observed that Denver had two Operations
Managers, one for inbound shipping and one for outbound shipping, whereas CEVA stations of
similar size and complexity only employed one Operations Manager to cover both functions. Fred
Ivan, then 62 years old, was outbound shipping Operations Manager.
Plaintiff has evidence to support the following statement of facts, some of which are disputed.
In a meeting with Brad LaChapelle, the Denver Station Manager, Shawn Stewart asked how old Ivan
and Burback were and when they planned to retire. LaChapelle replied that Ivan would probably
retire in another year, but that Burback was not looking to retire. Stewart disparaged Burback during
the conversation, though the comments were not age-related. LaChapelle reported Stewart’s
comments to Burback and Ivan.2
In February 2010, Stewart told Burback that the two Operations Manager positions would be
consolidated into one. On May 25, 2010, Stewart removed LaChapelle as Station Manager. On the
same day, Stewart asked Burback his age and when he planned to retire.
While eliminating one Operations Manager position, Shawn Stewart created a new position of
Operations Supervisor to report directly to the new Operations Manager. Hiring for the Operations
Manager and Operations Supervisor positions was open to internal and external applicants.
When Burback and Stewart discussed this change and Burback asked about applying for the new
Operations Manager position, Stewart told him that he “could roll the dice and see what happened.”
Stewart also said there was a “bright young lady” in the company looking for an opportunity, and
if she did not get one, she might go elsewhere. Burback knew that reference was to Tiffany

2

Fred Ivan retired in July 2010. According to Ivan’s affidavit, he retired because he believed Stewart and the new
management were going to terminate him.

Rosenbach, a 25-year-old woman who had worked at CEVA for slightly over three years, with little
operations experience.
During that same conversation, Burback also expressed concern to Stewart that taking the
Operations Supervisor position would negatively affect his salary. In response, Stewart said he
would see what he could do.
On August 1, 2010, Plaintiff Burback applied for the Operations Supervisor position in CEVA’s
online system. Burback chose not to apply for the Operations Manager position because he felt
Stewart did not want him to, based on Stewart’s comments to LaChapelle, Stewart’s demeanor, his
“roll the dice” comment, and his stated interest in hiring Rosenbach.
On August 23, 2010, Shawn Stewart hired Burback as the Operations Supervisor for the Denver
Station. Taking that new position resulted in a $7,000 annualized pay cut. Burback considered it
a demotion.
Shawn Stewart hired Chris Perkins, then 41 years old, to be Denver’s new Station Manager in
the summer of 2010. As Denver Station Manager, Perkins reported directly to Stewart and was in
regular contact with him.
On September 12, 2010, after reviewing seven applications for the new Operations Manager
position, Chris Perkins hired Tiffany Rosenbach. It is assumed that Stewart was an invisible hand
guiding the Operations Manager selection process.
As Operations Supervisor, Burback was responsible for keeping track of where trailers and other
equipment were located and ensuring trailers were stored in a secure location. In September 2010,
the tires and wheels were stolen off of a CEVA trailer that was parked in an unsecured yard, costing
CEVA approximately $2,120. As a result of the theft, Burback was tasked with relocating CEVA’s
trailers to a secure lot. One month later, another set of tires and wheels were stolen off of the same

trailer when it was left in an unsecured lot, again costing CEVA about $2,120. Burback was on
vacation at the time of the second theft.
Under CEVA’s written policy, before a new driver is allowed to haul freight on its behalf, the
driver must complete all necessary paperwork, clear a background check, and be approved by CEVA
officials. The policy provides that “[a]nyone who does not adhere to the Activation Policy is subject
to review and/or termination of contract of employment, whichever applies.” Henry Burback was
aware of this policy, but routinely used unauthorized drivers. Chris Perkins claims that he first
became aware that Burback was using unauthorized drivers after a customer complained to Perkins
that a CEVA driver damaged the customer’s security gates. When Perkins looked on that day’s
delivery manifest, he did not recognize the name of the individual who made the delivery. Perkins
then reviewed other driver records and noticed a few other names he did not recognize. It is unclear
when Perkins discovered this information and whether he spoke to Burback about it, reported it to
CEVA management, or did anything at all.
CEVA drivers are independent contractors who are paid for routes based on tariff rates that are
established by contract with CEVA’s customers. Internal CEVA approvals and formal contract
addendums are required for a driver to be paid more than the tariff rate to ensure that CEVA can
recover the additional amounts from its customers. Burback acknowledged that it was his
responsibility to ensure that CEVA’s over-tariff payment policies were followed, but he routinely
paid drivers over-tariff rates without executing a contract addendum. Chris Perkins first became
aware of Burback’s practices when a driver asked Perkins to approve an invoice that was for a
higher amount than the going tariff rate. Perkins testified that he is not aware of anyone else at
CEVA ever making over-tariff payments to a driver without first executing an addendum. Again,
it is unclear when Perkins first learned of this information and what, if anything, he did about it.

Burback’s conduct became the subject of a CEVA Investigative Report dated October 19, 2010.
Apparently the Report was prompted when Tiffany Rosenbach was reviewing CEVA Administrative
and Operation Files, and observed “several inconsistencies” in paperwork prepared or approved by
Burback. The author of the Report, Francis Seib, was a CEVA security manager. Seib spoke by
telephone with Rosenbach, Chris Perkins, and Vera Williams, CEVA’s Director of Human
Resources for Colorado. Following those conversations, Seib decided to travel to Denver for further
inquiry.
While in Denver, investigator Seib spoke in person with Perkins and Rosenbach about the
allegations, and interviewed four lower-level employees, who said that Burback routinely overpaid
drivers. Seib also interviewed Burback, who acknowledged routinely overpaying drivers and using
unauthorized drivers, and also recognized that those practices were against CEVA policy.
Regarding the trailer theft, Burback stated that, after the first incident, Stewart instructed him to
acquire a secure yard for trailer storage, which he did, but that he was never told to relocate specific,
at-risk trailers. Investigator Seib then contacted Shawn Stewart by phone, and Stewart said that he
did in fact instruct Burback to relocate specific trailers; Stewart also emphasized that, given the first
theft, Burback, as the supervisor responsible for conducting weekly yard checks and inventories,
should have recognized the urgency of relocating at-risk trailers to a secure yard.
According to Defendants, CEVA Human Resources decided to fire Plaintiff Burback based on
the results of Seib’s investigation. It is unclear who made the decision, but Vera Williams, Chris
Perkins, and Shawn Stewart were involved.
On November 2, 2010, Chris Perkins sent Henry Burback a letter terminating his employment
because: (1) he failed to secure CEVA’s trailers, resulting in theft; (2) he allowed unauthorized

drivers to haul freight; and (3) he made over-tariff payments without executing contract addendums.
Perkins was 41 years old and Burback was 61 years old at the time.
Burback was aware of CEVA’s policies and procedures prohibiting discrimination, including
age discrimination. CEVA’s Human Resources department conducted training sessions at least once
per year to ensure that employees understood the Company’s policies. According to CEVA’s
Employee Handbook, an employee who feels he/she or another employee is being discriminated
against must report the discrimination to his or her manager. Burback never reported anything to
CEVA management or to Human Resources.
After his dismissal, Burback submitted a complaint to the U.S. Equal Employment Opportunity
Commission. This lawsuit followed.
To establish his claim for discrimination under the ADEA, Burback must prove, by a
preponderance of the evidence, that age was the “but for” cause of CEVA’s decision to demote and
fire him; this does not require him to show that his age was the sole motivating factor, but he must
show that age was the factor that made the difference. See Jones v. Okla. City Pub. Schs., 617 F.3d
1273, 1277 (10th Cir. 2010).
Here, assuming Burback has established a prima facie case, CEVA has articulated a number of
legitimate, nondiscriminatory reasons for its actions. With regard to Burback’s “demotion,” CEVA
required him to apply for the Operations Manager position because it was a new position with a
broader portfolio of responsibilities. It is undisputed that Burback did not apply to be Operations
Manager, but rather applied to be and was hired as Operations Supervisor. CEVA’s decision to
“demote” Burback to Operations Supervisor, instead of making him Operations Manager, is readily
explained by the fact that Burback applied to be the former but not the latter. As for Burback’s

firing , CEVA identified, then and now, the trailer thefts and Burback’s recurrent violations of
CEVA policy as the basis for its decision.
The burden accordingly shifts back to Burback to show “weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions” in CEVA’s reasons for its actions. See Jaramillo
v. Colo. Judicial Dep’t, 427 F.3d 1303, 1308 (10th Cir. 2005). Burback argues that Shawn Stewart’s
comments regarding Burback’s age and plans for retirement, as well as Stewart’s “roll the dice”
remark, establish that Stewart had a discriminatory animus towards Burback. However, these
comments are insufficient to establish pretext for two reasons.
First, “stray remarks,” and “isolated or ambiguous comments are too abstract . . . to support a
finding of age discrimination.” Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526, 531 (10th Cir.
1994) (quotations and alteration omitted); see also Kirkpatrick v. Pfizer, Inc., 391 Fed. App’x 712,
719-20 (10th Cir. 2010) (no pretext where supervisor told plaintiff he did not realize how old she
was, asked about her retirement plans, and said that her suggestions were “old school”). Stewart’s
“old school” comment about Burback and Fred Ivan is too ambiguous to support Burback’s claim.
See Kirkpatrick, 391 Fed. App’x at 720. Stewart’s comments about Burback’s age and retirement
plans also do not support an inference of age discrimination, particularly since CEVA’s Denver
Station was going through substantial organizational change when they were made. Stewart had a
legitimate interest in knowing Burback’s future plans, “and it would be absurd to deter such
inquiries by treating them as evidence of unlawful conduct.” Colosi v. Electri-Flex Co., 965 F.2d
500, 502 (7th Cir. 1992); see also Kirkpatrick, 391 Fed. App’x at 720. And Stewart’s “roll the dice”
comment had nothing to do with Burback’s age; rather, it was a matter-of-fact statement that
Burback, like any other candidate, was not guaranteed the Operations Manager position if he
applied.

Second, even if Stewart’s comments could be characterized as discriminatory, Burback has
failed to demonstrate a nexus between those comments and CEVA’s adverse actions. See Cone, 14
F.3d at 531. There is nothing in the record connecting Stewart’s comments to his decision to
consolidate the Operations Manager positions and champion Tiffany Rosenbach over Burback, or
to his involvement in the decision to fire Burback.
Burback also claims the reasons given for his firing were pretextual because, regardless of
CEVA’s written policy, it was common practice, known to previous station managers, to use
unauthorized drivers and pay drivers over-tariff rates without executing a contract addendum when
necessary to serve customer needs. However, it is undisputed that CEVA had explicit policies
prohibiting those practices, and that Chris Perkins, the incumbent Station Manager in Denver, was
not aware of and did not approve of them.
Henry Burback has failed to show sufficient evidence that would permit a jury to reject the
legitimate, non-discriminatory reasons CEVA offered for his demotion and firing and conclude that
age was the factor that made the difference in those decisions. Accordingly, it is,
ORDERED that Defendants’ Motion for Summary Judgment is granted.
Dated: May 20, 2013.
BY THE COURT:
s/Richard P. Matsch
______________________
Richard P. Matsch
Senior District Judge