Garcia v. Ensign United States Drilling Inc.

Filing 41

ORDER Denying Defendant's 31 Motion for Summary Judgment. By Judge Christine M. Arguello on 12/29/2016. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 15-cv-02372-CMA-KMT
PETE GARCIA,
Plaintiff,
v.
ENSIGN UNITED STATES DRILLING INC.,
Defendant.

ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendant Ensign United States Drilling, Inc.’s
(Ensign) Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56, in which Ensign
contends that Plaintiff Pete Garcia presents no genuine dispute as to any material fact
related to his age discrimination claim under the Age Discrimination in Employment Act
(ADEA). (Doc. # 31.)

For the following reasons, the Court denies the motion.
I.

BACKGROUND

The following facts are undisputed.
Mr. Garcia began working for Ensign in 2000 and spent most of his tenure there
working as a derrickhand on Ensign drilling rigs. (Doc. # 31 at ¶¶ 1–2.) In June 2012,
Mr. Garcia requested a transfer from Ensign Rig No. 161 in North Dakota to Ensign Rig
No. 17 in Limon, Colorado. (Id. at ¶¶ 6–7.) At the time, the only position open on Rig
No 17 was an entry-level floorhand position. (Id. at ¶ 10.) The “Driller” on Rig No. 17
was Jeff Harrington, and the Senior Rig Manager (Mr. Harrington’s direct supervisor)
1

was Ron Gentry. (Id. at ¶¶ 8, 12, 14.) Mr. Harrington interviewed Mr. Garcia for the
open floorhand position, and with Mr. Gentry’s approval and recommendation, Mr.
Harrington hired Mr. Garcia at the time of the interview. (Id. at ¶¶ 17, 19, 20.)
In October 2012, after about four months working as a floorhand, Ensign
terminated Mr. Garcia from his position. (Doc. #31, Appx. at 12.) Mr. Garcia was fiftyseven years old at the time. (Doc. # 32 at ¶ 5.) On October 26, 2015, Mr. Garcia
initiated this suit against Ensign, alleging that his termination violated the ADEA. (Doc.
# 1.)
On September 1, 2016, Ensign filed the instant motion for summary judgment
(Doc. # 31), contending that Mr. Garcia cannot demonstrate genuinely disputed issues
of material fact with regard to the legality of his termination. Ensign specifically argues
that, even if age played a factor in Mr. Garcia’s termination, it was not the “but-for
cause” and Mr. Garcia cannot present undisputed evidence suggesting otherwise. In
his response (Doc. # 32), Mr. Garcia argues the contrary position—that summary
judgment is unwarranted because direct and circumstantial evidence sufficiently
demonstrate a genuine dispute over issues of material fact regarding whether age was
the determinative factor in his termination.
II.

STANDARD OF REVIEW

Summary judgment is appropriate if the moving party demonstrates that there is
no genuine dispute as to any material fact and that it is entitled to a judgment as a
matter of law. Fed. R. Civ. P. 56(a). In applying this standard, the Court views the
evidence and all reasonable inferences therefrom in the light most favorable to the
nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)

2

(citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986)). A fact is material if, under the applicable substantive law, it is essential to the
proper disposition of the claim. Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)). A dispute of fact is genuine if there is sufficient evidence on each side so
that a rational trier of fact could resolve the issue either way. Id. (citing Anderson, 477
U.S. at 248).
The moving party bears the initial burden of demonstrating an absence of a
genuine issue of material fact and entitlement to judgment as a matter of law. Id. at
670-71. Once the movant has met this initial burden, the burden shifts to the
nonmoving party to set forth specific facts showing that there is a genuine issue for trial.
Anderson, 477 U.S. at 256. The nonmoving party may not simply rest upon its
pleadings to satisfy its burden. Id. Rather, the nonmoving party must set forth specific
facts that would be admissible in evidence in the event of trial from which a rational trier
of fact could find for the nonmoving. Adler, 144 F.3d at 671. To accomplish this, the
facts must be identified by reference to affidavits, deposition transcripts, or specific
exhibits incorporated therein. Id.
III.

LAW GOVERNING ADEA CLAIMS ON SUMMARY JUDGMENT

As mentioned, Mr. Garcia brings one claim for relief—discrimination under the
ADEA, which prohibits an employer from terminating an employee “because of such
individual’s age.” See 29 U.S.C. § 623(a)(1). The ADEA enables employers to exercise
“sound business judgment in personnel matters[; they] may discipline and terminate at
will employees for any reason, so long as such termination is not unlawful.” Kosak v.

3

Catholic Health Initiatives of Colo., No. 08-cv-01505, 2009 WL 3497782, at *4 (D. Colo.
Oct. 28, 2009) (unpublished).
To prevail on a claim under the ADEA, 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 employer’s adverse decision.” Gross v. FBL Fin. Servs. Inc., 557 U.S. 167, 176–
78 (2009); Riggs v. AirTran Airways, Inc., 497 F.3d 1108, 1114 (10th Cir. 2007). The
“but for” causal standard does “not require[ ] [plaintiffs] to show that age was the sole
motivating factor in the employment decision.” Jones v. Oklahoma City Pub. Sch., 617
F.3d 1273, 1277–78 (10th Cir. 2010) (quoting Wilkerson v. Shinseki, 606 F.3d 1256,
1266 (10th Cir. 2010)). Instead, an employer may be held liable under the ADEA if
other factors contributed to its taking an adverse action, as long as “age was the factor
that made a difference.” Id. (quoting Wilkerson, 606 F.3d at 1266); accord Hazen Paper
Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993) (requiring an
ADEA plaintiff to show that age had a “determinative influence on the outcome” of her
employer’s decision-making process).
In cases of circumstantial evidence, “plaintiffs may use the McDonnell Douglas . .
. analysis to prove age discrimination under the ADEA.” Jones, 617 F.3d at 1278; see
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that analysis, a
plaintiff bears the initial burden of setting forth a prima facie case that: “1) [he] is a
member of the class protected by the [ADEA]; 2) [he] suffered an adverse employment
action; 3) [he] was qualified for the position at issue; and 4) [h]e was treated less
favorably than others not in the protected class.” Sanchez v. Denver Pub. Schs., 164
F.3d 527, 531 (10th Cir. 1998). Throughout the analysis, “[t]he plaintiff ... carries the full

4

burden of persuasion to show that the defendant discriminated on [an] illegal basis.” Id.
(quoting Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1125 (10th Cir. 2005)).
If plaintiff establishes a prima facie case, the burden shifts to the defendant to
articulate a legitimate, nondiscriminatory reason for taking the adverse employment
action. Jones, 617 F.3d at 1278; Pippin v. Burlington Resources Oil & Gas Co., 440
F.3d 1186, 1193 (10th Cir. 2006). If the defendant offers a legitimate, nondiscriminatory
reason for its actions, summary judgment against plaintiff is warranted unless he shows
that here is a genuine issue of fact as to whether defendant’s reason is pretextual.
Pippin, 440 F.3d at 1193. “Once a plaintiff presents evidence sufficient to create a
genuine factual dispute regarding the veracity of a defendant’s nondiscriminatory
reason, [the Court] presume[s] the jury could infer that the employer acted for a
discriminatory reason and must deny summary judgment.” Bryant, 432 F.3d at 1126;
Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000)) (“[A] plaintiff’s prima
facie case [of age discrimination] combined with sufficient evidence to find that the
employer’s asserted justification is false” will defeat summary judgment.”).
A plaintiff produces sufficient evidence of pretext when she shows “such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable factfinder could
rationally find them unworthy of credence and hence infer that the employer did not act
for the asserted non-discriminatory reasons.” Jaramillo v. Colo. Judicial Dep’t, 427 F.3d
1303, 1308 (10th Cir. 2005).
IV.

ANALYSIS

5

In the instant case, the parties’ dispute lies in the third step of the McDonnell
Douglas analysis—whether Mr. Garcia was qualified for the position at issue.
Ensign argues that Mr. Garcia was not so qualified and that his unsatisfactory
work performance, i.e. Mr. Garcia’s failure to meet the “high expectations” of the job
resulting in safety issues (Doc. # 31 at 9–12), was the “but-for” cause of his termination,
not his age. In support, Ensign highlights evidence of Mr. Harrington’s and Mr. Gentry’s
personal observations of Mr. Garcia’s work, including their deposition testimony that he
“had difficulty” performing the job tasks, needed “significant assistance,” did not have
the “physical strength” required for the job, and was “disoriented” and “not focused” at
work. (Id. at 10–11; Doc. # 31-1 at 23, 26–27, 38–39.) Mr. Harrington also stated in
deposition that he received complaints that Mr. Garcia was not effective at operating the
“slips”—a piece of equipment used in the drilling process. (Id. at ¶¶ 36–37; Doc. # 31-1.
at 78.) Mr. Harrington and Mr. Gentry added that they observed Mr. Garcia having
difficulty running the “Hawkjaw”—“a major component of a floorhand’s job.” (Id. at ¶¶
31–35; Doc. # 31-1 at 21–22, 38–39.)
Mr. Garcia, however, presents contrary evidence, which demonstrates, he
contends, that he was qualified for the job and performed it adequately but was fired for
his age. See E.E.O.C. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1193 (10th
Cir. 2000) (“At the prima facie stage of the McDonnell Douglas analysis, a plaintiff is
only required to raise an inference of discrimination, not dispel the non-discriminatory
reasons subsequently proffered by the defendant.). Mr. Garcia also contends that this
evidence sufficiently demonstrates pretext. For example, Mr. Garcia highlights the
following evidence raising an inference of discrimination and showing “weaknesses,

6

implausibilities, inconsistencies, incoherencies, or contradictions,” Jaramillo, 427 F.3d at
1308, in Ensign’s proffered legitimate reasons for its action:
•

Mr. Garcia’s deposition testimony that when Mr. Harrington fired him, Mr.
Harrington told him that he thought he was younger and stated, “I’m letting
you go because you don’t meet my high expectations and because of your
age.” (Doc. # 32-1 at 20–21.)

•

An affidavit of Oscar Portales, Mr. Garcia’s coworker, stating, among other
things, that Mr. Garcia “was a good hand”; he had “no recollection” of Mr.
Garcia being unable to complete his assigned tasks; he “never saw anyone”
step in and help Mr. Garcia; Mr. Garcia did not do “anything too slowly or slow
anyone down”; and Mr. Harrington “saw [Mr. Garcia] getting his work done.”
(Id. at 54.)

•

Mr. Portales statement in his affidavit that, when Mr. Gentry hired him, he
mentioned that Mr. Portales was replacing an individual that was too old and
too weak. (Id.)

•

Mr. Gentry’s deposition testimony that he had no concerns about Mr. Garcia’s
physical aptitude or ability to physically perform his job and that no one had
expressed any concerns to him, other than Mr. Harrington, about Mr. Garcia’s
work performance. (Id. at 31.)

•

Mr. Gentry’s deposition testimony where he quoted various portions of the
floorhand job description that he believed Mr. Garcia could perform well,
including: “Works in a safe, healthy, and environmentally protective manner.”;
“Works as a team member with the rest of the rig crew, at a high level of

7

efficiency during trips & other team efforts.”; “Demonstrates responsibility to
avoid adversely affecting the health and safety of others through any act or
omission.”; “Avoids injury resulting from manual handling tasks, by use of risk
assessment, correct mechanical handling equipment and correct manual
handling techniques.”; “Works in a manner that ensures personal safety and
the safety of fellow crew members.”; etc. (Id. at 34.)
•

Deposition testimony by Ensign human resources personnel that Mr. Garcia’s
entire personnel file, which includes “all performance records,” is devoid of
any performance or safety issues on Rig No. 17, other than in the final
termination paperwork. (Id. at 14.) Further testimony that Ensign requires the
reporting of all “incidents that occur on the rig to minimize potential future
incidents” and that supervisors, such as Mr. Harrington, are required to report
any “at-risk behaviors.” (Id. at 5, 12, 57.)

The Court finds that this evidence is sufficient to raise an inference of
discrimination and create a genuine factual dispute regarding the veracity of Ensign’s
nondiscriminatory reason for terminating Mr. Garcia. See Bryant, 432 F. 3d at 1125. In
other words, viewed in the light most favorable to Mr. Garcia, the evidence supports that
a reasonable jury might find that Ensign acted with discrimination, particularly
considering that some of Mr. Garcia’s evidence is direct evidence. See Power v. Koss
Const. Co., 499 F. Supp. 2d 1194, 1201 (D. Kan. 2007) (“Plaintiff may demonstrate
defendant’s discriminatory motive, and therefore defeat summary judgment, by
presenting direct evidence of defendant’s discriminatory intent.”); see also Kendrick v.
Penske Transp. Servs., Inc., 220 F.3d 1220, 1225 (10th Cir. 2000) (direct evidence can

8

be “oral or written statements on the part of a defendant showing a discriminatory
motivation.”). To conclude otherwise would require the Court to weigh the credibility of
the parties’ witnesses, and the Court cannot, at the summary judgment stage, engage in
such an analysis, except, of course, to the extent that the Court favorably views Mr.
Garcia’s contentions. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)
(credibility determinations must be left for the jury); Fogarty v. Gallegos, 523 F.3d 1147,
1165–66 (10th Cir. 2008) (same); Seamons v. Snow, 206 F.3d 1021, 1026 (10th Cir.
2000) (same).
Moreover, that the jury might find against Mr. Garcia does not warrant granting
summary judgment. The threshold inquiry is whether “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.” Anderson, 477 U.S. at 250 (emphasis
added). In other words, the Court need only find the existence of a genuine dispute as
to material facts, i.e. genuine issues for trial. Id. Because the Court has so found, the
Court must deny summary judgment.
In so concluding, the Court reject Ensign’s arguments that (1) if undisputed facts
show that Ensign had two motives for termination, Garcia cannot prevail on his age
discrimination claim and summary judgment must enter; and (2) the same actor
inference applies here to require judgment in Ensign’s favor as a matter of law.
First, Tenth Circuit precedent makes clear that a plaintiff need not demonstrate
that age was the “sole” cause of the adverse employment action. Jones, 617 F.3d at
1277–78 (quoting Wilkerson v. Shinseki, 606 F.3d 1256, 1266 (10th Cir. 2010)). In
cases where the employer has mixed motives for termination, the plaintiff need only

9

show that age was the factor that “made a difference,” id., not that the other,
nondiscriminatory factor played no role at all.
The Court acknowledges that there may “be instances where, although the
plaintiff has established a prima facie case and set forth sufficient evidence to reject the
defendant’s explanation, no rational factfinder could conclude that the action was
discriminatory.” Reeves, 530 U.S. at 148. For example, an employer would be entitled
to summary judgment “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.” Id.
(emphasis added). This is not such a case. The evidence presented here does not
conclusively reveal that Ensign’s nondiscriminatory reason indisputably prevailed over
the discriminatory one, nor does there exist “abundant and uncontroverted independent
evidence that no discrimination occurred.” Id. Indeed, Mr. Garcia has submitted
sufficient evidence to the contrary—evidence that could permit a rational trier of fact to
resolve the case in his favor.
Second, the same actor inference is insufficient, standing alone, to warrant
summary judgment in this case. That doctrine provides that, when “the employee was
hired and fired by the same person within a relatively short time span,” there is “a strong
inference that the employer’s stated reason for acting against the employee is not
pretextual.” Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1183 (10th Cir. 2006).
Defendants argue that the same actor inference applies here because Mr. Harrington
and Mr. Gentry hired Mr. Garcia and then jointly terminated his employment

10

approximately four months later. (Doc. # 31 at 9–10.) Ensign argues that this evidence
“negates an inference of age discrimination” all together. (Id.)
Assuming that the same actor inference applies in this case, same actor
evidence does not, as Ensign suggests, negate an inference of age discrimination, and
it is not determinative on a summary judgment motion. Although same actor evidence
can create an inference that no discriminatory animus motivated the employer’s actions,
that is not the same as creating a presumption. Antonio, 458 F.3d at 1183 (emphasis
added). “The plaintiff still has the opportunity to present countervailing evidence of
pretext.” Id. As the Court has already concluded, Mr. Garcia has presented sufficient
countervailing evidence of discrimination to defeat summary judgment. Viewing that
evidence in the light most favorable to him, Ensign’s presentation of same actor
evidence does not persuade the Court otherwise.
Accordingly, because genuine disputes exist as to material facts in this case, the
case is better left for the jury to decide and Ensign is not entitled to a judgment as a
matter of law.
V.

CONCLUSION

The Court therefore ORDERS that Defendant’s Motion for Summary Judgment
(Doc. # 31) is DENIED.
DATED: December 29, 2016

BY THE COURT:

CHRISTINE M. ARGUELLO
United States District Judge

11