Mousaw v. Teton Outfitters, LLC et al

Filing 36

MEMORANDUM DECISION AND ORDER granting 17 Motion for Summary Judgment. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dmc)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ROBERT D. MOUSAW,
Case No. 4:14-CV-00508-EJL-REB
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
TETON OUTFITTERS, LLC, an Idaho
limited liability company; and TETON
OUTFITTERS, LLC, d/b/a/ KLIM; and
KLIM AGGRESSIVE SLED WEAR, an
assumed business name of Teton
Outfitters, LLC, and POLARIS
INDUSTRIES, INC., a Minnesota
corporation,
Defendants.

Pending before the Court in the above entitled matter is Defendants’ Motion for
Summary Judgment (Dkt. 17). Having fully reviewed the record, the Court finds that the
facts and legal arguments are adequately presented in the briefs and record.1

1

The Court notes that Plaintiff’s briefing was difficult to follow when it cited to
headnotes instead of pages of an opinion. As a practice point, headnotes for a Lexis
citation are not the same as the headnotes for a Westlaw citation. This Court relies on
Westlaw for its legal research so the Lexis headnote numbers made it difficult for the
Court to find the quotation from the case. The proper format for citing to a quotation from
a case is by the page number (not headnote) and this practice should be followed in future
pleadings. Additionally, the Plaintiff cited in his brief to a case Overview. Overviews
(used by Lexis) or case Synopsis (used by Westlaw) are also not the same for each service
and like headnotes authored by each publishing service they are not law of the case and
should not be cited, as they have no precedential or persuasive value.
MEMORANDUM DECISION AND ORDER- 1

Accordingly, in the interest of avoiding further delay, and because the Court conclusively
finds that the decisional process would not be significantly aided by oral argument, this
matter shall be decided on the record before this Court without oral argument.

BACKGROUND
Plaintiff Robert D. Mousaw starting working for Defendant Klim2 as a Regional
Sales Representative in 2009. Klim is owned by Defendant Teton Outfitters, LLC and is
in the business of developing, manufacturing and selling motor sports gear and
equipment. In December of 2012, Polaris Industries, Inc. purchased Teton Outfitters. All
of Mousaw’s payroll checks were from Klim. Plaintiff has never received a paycheck
from Polaris nor been identified as a Polaris employee.
Mousaw was hired by Klim’s President, Justin Summers, and was 61 years old at
the time of his hiring. Mousaw signed an acknowledgment of his receipt of Klim’s
employee handbook. (Dkt. 17-2, p. 26). The Employee Handbook sets forth
unambiguously that employment at Klim is employment at will. (Dkt. 17-4, p. 31).
In June of 2010, Summers asked Mousaw if he would be interested in switching
his focus to selling Klim’s motorcycle brand. Mousaw agreed and served as Southeast
Regional Manager until December 2010.

2

Klim is not a legal entity registered in Idaho. Klim Aggressive Sled Wear is an
assumed business name for Teton Outfitters, LLC. When the Court refers to “Klim” in
this Order, it is referring collectively to Defendants Klim, Klim Aggressive Sled Wear
and Teton Outfitters, LLC.
MEMORANDUM DECISION AND ORDER- 2

On December 1, 2010, Summers hired Mousaw as Klim’s first full-time Outside
Sales Representative. It is undisputed that Summers and the Director of Sales, Randy
George, were a bit apprehensive about how long Mousaw intended to work before
retiring, but Summers hired Mousaw for the position at an age of nearly 63 after Mousaw
indicated to George he intended to work for approximately five more years. Mousaw’s
territory included Southeast Idaho, Utah and Western Wyoming and he was responsible
for approximately 30 customer accounts.
Summers maintains that Klim wanted a sales representative supporting this
territory to live in Utah as it was the location of most of the important customers in the
defined territory. Management was aware Mousaw lived in Ammon, Idaho, but
commuted to Utah where he rented an apartment in order to better serve Utah customers.
Plaintiff admits he sought reimbursement for his Utah accommodations, but Klim did not
reimburse him for this expense, but did agree to reimburse him for the cost of his internet
service in Utah.
In February 2013, Klim hired Brett Nicholas as its Vice President of Sales and
Marketing to create a more global and streamlined sales force as well as to add more
outside salespeople as the business grew. The use of technology was important in order
for Klim to track its sales activities. Salespeople were expected to use the company
technologies such as the Business to Business (B2B) program and NetSuite.

MEMORANDUM DECISION AND ORDER- 3

In April of 2013, Plaintiff received a performance review from his sales manager,
Will Bozung. Bozung noted Plaintiff’s strength in customer relations but also noted an
issue regarding a lack of courtesy by Mousaw with his co-workers and asked Plaintiff to
be more tactful (less aggressive) in his conversations with Klim employees. Bozung also
wanted Mousaw to be more positive towards Klim. Finally, the review noted the need for
Mousaw to utilize the NetSuite software required of the position.
In August or September 2013, there was a sales meeting to discuss the global
strategy and systems. At this meeting Mousaw indicated he was not going to use the
company’s technology or use his computer when meeting with clients. Mousaw
complained that the B2B system was not used by his clients for ordering as it was not an
efficient way to order, pay for and track goods. Nicholas found Mousaw’s statements and
attitude at the meeting to be negative and bordering on insubordination. Nicholas
discussed the events at the meeting with Summers who was also concerned with
Mousaw’s behavior. Mousaw claims he was just responding to questions for feedback on
the systems and he gave honest answers about why clients did not use B2B. Plaintiff does
not deny he didn’t encourage customers to use B2B and he that he did not use the
software provided to track orders and allow Klim to track orders. (Mousaw Depo., 73:219, Dkt. 17-4, p.11.)
In November 2013, Mousaw had a performance review from his sales manager
Dustin Pancheri. Pancheri noted Mousaw’s positive drive and relationships with clients.
The review also noted that Mousaw can be abrasive while interacting with Klim
MEMORANDUM DECISION AND ORDER- 4

personnel and that Mousaw had said some things that were not reflective of the Klim
message. Mousaw was instructed that accurate communications were important and
misleading or inaccurate information cannot happen. This review also indicated Mousaw
was behind on some goals. Mousaw responded that this was due to a lack of product. The
review also notes Mousaw was resisting change and not willing to adapt to certain
technology requirements. Pancheri felt Mousaw’s reaction to the areas he wanted
Mousaw to work on was not positive.
It is undisputed that Mousaw grew the territory sales, was familiar with the
industry and was very well liked by his customers. It is also undisputed that his
territory’s gross sales increased from approximately $500,000 when first employed to
over $1.6 million at time of his termination.
In 2013, Nicholas was realigning its sales structure to support its global strategy
and gain market share. The realignment led to certain layoffs, the hiring of new
salespeople, and moving other employees into newly restructured territories. This
included two new salespersons (both age 64) being hired to manage a newly created
territory for Tennessee, Georgia, North Carolina and Kentucky and another new territory
for Colorado and New Mexico.
Plaintiff’s former territory was dissolved. Instead, the company had a Utah
territory and planned to have the Sales Manager Pancheri service the Idaho and Wyoming
clients that Mousaw had been servicing. It was determined by Nicholas and Summers that
Mousaw did not fit the company’s plans to reorganize and use more technology to build a
MEMORANDUM DECISION AND ORDER- 5

North America sales structure. Summers states in his affidavit that he had lost confidence
in Plaintiff’s ability to represent Klim within the new structure and decided to terminate
his employment. Justin Summers Aff., Dkt. 17-7, ¶ 14. Mousaw’s territory was dissolved
with Pancheri agreeing to service Mousaw’s customers.
On December 19, 2013, Klim’s Human Resource Director Sandi Landon along
with Pancheri and Klim’s National Sales Manager Paul Hepworth met with Mousaw and
advised him that he was being terminated due to the restructuring. It is disputed by the
parties who decided the separation should be described as a “retirement” to other
employees and customers. There is no evidence Plaintiff objected to Klim describing
Mousaw’s leaving as a retirement. Plaintiff claims (and it is not disputed by Klim) that he
did not want to retire and intended to continue working. Plaintiff was 66 when he was
terminated.
Plaintiff acknowledges that no discriminatory or inappropriate comments were
ever made towards him or about him by managers or other workers at Klim. Plaintiff also
acknowledges he was not advised at the meeting on December 19, 2013, that his
termination was due to or because of his age.
In January of 2014, it was determined Pancheri did not have sufficient time to
serve all customers in Mousaw’s former territory. Klim decided to create a new Utah
territory and hired a new sales representative who lived in Utah for the Utah territory,
Brandon Archibald. Archibald was 24 years old when he was hired. Archibald has a

MEMORANDUM DECISION AND ORDER- 6

degree in Business Management but did not possess prior marketing in outdoor clothing
unlike Mousaw who had many years of marketing in the motorcycle and snowmobile
industry.
Plaintiff has presented evidence that Archibald did handle some sales in Idaho and
Wyoming in early 2014. Klim does not dispute that Archibald had some accounts in
Idaho based upon their physical proximity to his Utah clients and that he may have
processed some Wyoming sales orders as well. It is also undisputed that Archibald took
over a majority of Mousaw’s Utah clients, but he also generated new Utah customers who
were not previously customers of Klim.
On November 25, 2014, Plaintiff filed his Complaint alleging he was wrongfully
terminated due to his age in violation of the Age Discrimination in Employment Act of
1967 (ADEA), 29 U.S.C. § 621 et. seq. Plaintiff also states Defendants deprived Plaintiff
of both substantive and procedural due process in violation of the Fifth and Fourteenth
Amendment to the U.S. Constitution as enforced by 42 U.S.C. § 1983. Defendants deny
Plaintiff was terminated due to his age. Defendants filed a motion for summary judgment
on October 29, 2015.

STANDARD OF REVIEW
Summary judgment is appropriate where a party can show that, as to any claim or
defense, “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of the
MEMORANDUM DECISION AND ORDER- 7

summary judgment “is to isolate and dispose of factually unsupported claims . . . .”
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is “not a disfavored procedural
shortcut,” but is instead the “principal tool[ ] by which factually insufficient claims or
defenses [can] be isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private resources.” Id. at 327.
“[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). Material facts are those that may affect the outcome of the case. See
id. at 248. A material fact is “genuine” if it “must be established by ‘sufficient evidence
supporting the claimed factual dispute . . . to require a jury or judge to resolve the parties’
differing versions of the truth at trial.’” EEOC v. Kimball Int’l, Inc., No. CIV 05-371-NEJL, 2007 WL 398468, at *1 (D. Id. Feb. 1 2007).
The moving party is entitled to summary judgment if that party shows that each
issue of material fact is not or cannot be disputed. To show the material facts are not in
dispute, a party may cite to particular parts of materials in the record, or show that the
materials cited do not establish the presence of a genuine dispute, or that the adverse party
is unable to produce admissible evidence to support the fact. Fed. R. Civ. P.
56(c)(1)(A)&(B); see T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d

MEMORANDUM DECISION AND ORDER- 8

626, 630 (9th Cir. 1987) (citing Celotex, 477 U.S. at 322). The Court must consider “the
cited materials,” but it may also consider “other materials in the record.” Fed. R. Civ. P.
56(c)(3).
Material used to support or dispute a fact must be “presented in a form that would
be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Affidavits or declarations submitted
in support of or opposition to a motion “must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).
The Court does not determine the credibility of affiants or weigh the evidence set
forth by the non-moving party. All inferences which can be drawn from the evidence
must be drawn in a light most favorable to the nonmoving party. T.W. Elec. Serv., 809
F.2d at 630-31 (internal citation omitted).
Rule 56(e)(3) authorizes the Court to grant summary judgment for the moving
party “if the motion and supporting materials–including the facts considered
undisputed–show that the movant is entitled to it.” The existence of a scintilla of evidence
in support of the non-moving party’s position is insufficient. Rather, “there must be
evidence on which the jury could reasonably find for the [non-moving party].” Anderson
v. Liberty Lobby, 477 U.S. at 252.

MEMORANDUM DECISION AND ORDER- 9

ANALYSIS
1. ADEA Claim
A. At Will Employees and Public Policy Exceptions
Defendants argue that Plaintiff was an “at will” employee and could be fired with
or without cause. The Court agrees the Employee Handbook is clear regarding Mousaw’s
employment status. Mousaw was an “at will” employee who could be terminated at any
time by Klim. He had a compensation contract, but he did not have a contract setting forth
the term or length of his employment. Klim did not need to have cause to terminate an “at
will” employee. Whether or not Mousaw understood what “at will” employment meant
when he received and acknowledge receiving the Employee Handbook is not
determinative of his employment status.
There are, of course, public policy concerns that create exceptions to the general
rule that an “at will” employee can be terminated at any time. One such exception is
terminating an employee because of his or her age. The ADEA prohibits employers from
“discharg[ing] any individual or otherwise discriminat[ing] against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of
such individual’s age.” 29 U.S.C. § 623(a)(1). “The words ‘because of’ mean ‘by reason
of: on account of.’” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009). Age
discrimination claims under the Idaho Commission on Human Rights (IHRA) are
governed by the same standards as ADEA claims. See Stevenson v. Potlatch Corp., 674 F.
Supp 1410, 1413 (D. Idaho 1987). Age discrimination can be established through either
MEMORANDUM DECISION AND ORDER- 10

direct or indirect evidence. Coghlan v. Am. Seafoods Co., LLC, 413 F.3d 1090, 1095 (9th
Cir. 2005). Indirect evidence is evidence which “requires an additional inferential step to
demonstrate discrimination.” Id.
A burden shifting approach known as the McDonnell Douglas3 test is used in cases
of age discrimination involving indirect evidence. Wallis v. J.R. Simplot Co., 26 F.3d 885,
889 (9th Cir. 1994). First, the plaintiff must establish a prima facie case of discrimination
by proving he: (1) is a member of a protected class [age 40 to 70]; (2) was performing his
job in a satisfactory manner; (3) was discharged; and (4) was replaced by a substantially
younger employee with equal or inferior qualifications. Id. at 891. Once a prima facie
case is established, then the burden shifts to the defendant to offer a legitimate,
nondiscriminatory reason for its actions. Id. at 889. After the defendant offers this reason,
“the McDonnell Douglas presumption of unlawful discrimination ‘simply drops out of the
picture.” Id. The burden then shifts back to the plaintiff to prove that the defendant’s
proffered reason is actually pretext for age discrimination through “specific, substantial
evidence.” Id. at 890.
Age discrimination cases require a heightened burden of proof in disparate
treatment claims as compared to mixed motive claims under Title VII. See Hatheway v.
Bd. of Regents of Univ. of Idaho, 310 P.3d 315, 322-23 (Id. 2013). Simply proving age
“played a role” in the decision to discharge an employee is not enough. Rather, “a
plaintiff must prove that age was the ‘but-for’ cause of the employer’s adverse action.”
3

411 U.S. 792 (1973).

MEMORANDUM DECISION AND ORDER- 11

Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009) (holding that mixed-motive
theory applicable to Title VII claims is not available in ADEA claims).
Plaintiff cites the Court to the following statement in Gross at 177-78 for support
there is no heightened standard:
Hence, the burden of persuasion necessary to establish employer liability is
the same in alleged mixed-motive cases as in any other ADEA disparatetreatment action. 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 challenged employer decision. (Citations omitted.)
The Court finds Plaintiff is misapplying this statement to refute the statement
ADEA cases have a heightened standard of proof. Regardless of whether you have an age
discrimination case where the plaintiff is asserting age was one of the factors or the only
factor for the discharge, the standard of persuasion is the same: but-for the employee’s
age they would not have been discharged. This standard is the same for all ADEA
disparate treatment claims, but this is also a “heightened standard” from the standard
applied in mixed-motive Title VII discrimination cases where a plaintiff must prove the
alleged discrimination was a “motivating factor” for the employment action. The “butfor” test is a higher bar of persuasion than the “motivating factor” test.

B. Prima Facie Case Determination
Defendant argues Plaintiff cannot make a prima facie case of discrimination. The
Court respectfully disagrees. “The requisite degree of proof necessary to establish a prima
facie case for Title VII and ADEA claims on summary judgment is minimal and does not
MEMORANDUM DECISION AND ORDER- 12

even need to rise to the level of a preponderance of the evidence.” Wallis at 889 (citing
Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir. 1987). In viewing the facts in a light
most favorable to Plaintiff, the Court finds Mousaw was a member of a protected class at
age 66, he was performing his job in a satisfactory manner (even though there were areas
his managers wanted him to work on), he was terminated and he was replaced by a
substantially younger employee with equal or arguably inferior qualifications.
The Court acknowledges Klim maintains that Mousaw was not doing his job well
enough to rule out the possibility he would be fired for inadequate job performance. See
Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000). However at this stage
in the litigation, there are sufficient facts to support Plaintiff’s position that he was
performing his job satisfactorily. Mousaw achieved annual growth in his sales, he got
along great with customers, he commuted to Utah to meet the company’s needs, and his
reviews were generally positive.
As to the fourth element, Plaintiff has established that Archibald was substantially
younger than Mousaw, Archibald’s experience in marketing in this industry was none
prior to being hired, and Archibald took over substantially all of Mousaw’s customers
including many in Idaho and Wyoming which was not included in the alleged new Utah
territory but were included in Mousaw’s former territory.

MEMORANDUM DECISION AND ORDER- 13

C. Employer’s Reason for Terminating Employee
However, a plaintiff may not defeat summary judgment merely by establishing a
prima facie case. Lindahl v. Air France, 930 F.2d 1434, 1437 (9th Cir. 1991). Having
found Plaintiff has carried his burden on the prima facie case, the burden now shifts to
Klim to offer a legitimate, nondiscriminatory reason for Mousaw’s termination. Klim
offers such a reason. Klim has presented evidence to support that the termination of
Mousaw was not because of his age but was based on a restructuring of the business as
well as Summers’ determination that Mousaw was no longer a good fit based on his
attitude and unwillingness to use the company technology for sales.
Mousaw’s two performance reviews in 2013, while containing positive comments
about performance on many fronts, also corroborate concerns about Mousaw’s courtesy
towards Klim employees and resistance to using company technology. Klim also
produced evidence of changes to Plaintiff’s sales territory as part of the restructuring that
resulted in the dissolution of Mousaw’s existing territory. Klim also offers that it wanted
its sales rep to live in Utah.

D. Plaintiff’s Burden to Establish Employer’s Reasons are Pretextual
The burden now shifts back to Plaintiff to establish that the legitimate business
reasons offered were pretext for the employer’s termination based on age discrimination.
“Once the Defendant fulfills this burden of production by offering a legitimate,
nondiscriminatory reason for its employment decision, the McDonnell Douglas
MEMORANDUM DECISION AND ORDER- 14

presumption of unlawful discrimination ‘simply drops out of the picture.’” Wallis, 26
F.3d 885, 889 (citations omitted). Plaintiff must show age was the “but-for” cause of his
termination.
Plaintiff agrees he cannot restate his prima facie case to establish pretext.
However, Plaintiff argues that Wallis held “when a plaintiff has established a prima facie
inference of disparate treatment through direct or circumstantial evidence of
discriminatory intent, he will necessarily have raised a genuine issue of material fact with
respect to the legitimacy or bona fides of the employer’s articulated reason for its
employment decision.” Id. citing Sischo -Nownegajd v. Merced Community College Dist.,
934 F.2d 1104, 1111 (9th Cir. 1991). The Court finds Plaintiff is applying this sentence
overbroadly and out of context. After citing Sischo-Nownejah, the Wallis court clarified
that in response to the defendant’s offer of nondiscriminatory reasons, the plaintiff must
produce “specific, substantial evidence of pretext.” Wallis at 890 (citations omitted). “In
other words, the plaintiff ‘must tender a genuine issue of material fact as to pretext in
order to avoid summary judgment.” Id.
Plaintiff offers the following evidence in support of his pretext allegations. First,
Plaintiff argues that the reason for his termination has changed from what he was told at
the meeting in which he was terminated to what was included with the responses to the
Idaho Human Rights Commission to what Klim is now saying is the reason for the
termination. Plaintiff argues this puts at issue what the real reason was for terminating

MEMORANDUM DECISION AND ORDER- 15

Mousaw. The Court finds the inconsistencies alleged are not material and do not support
a finding that Mousaw was terminated because of his age.
The Court agrees with Defendants that an employer has no legal obligation to
inform an “at will” employee of any, or all of, the reasons for termination. The fact that
additional reasons were given for the termination when the company responded to the
complaint filed with the Idaho Human Rights Commission, than during the meeting in
which Mousaw was terminated, is not evidence of pretext.
The Human Resources Director, Landon, did not make the decision to terminate
Mousaw. Summers made the decision to terminate Mousaw and Landon was informed by
management to tell Mousaw he was being terminated as part of the restructuring and his
sales territory was being dissolved. When Mousaw asked why he was being terminated,
Landon told him the company was restructuring the sales team. Landon declined to give
any further information to Mousaw about the reasons for his termination when Mousaw
pressed for a more detailed explanation. This is not evidence of pretext, but of normal
human resource practices for advising employees they have been terminated.
Moreover, the undisputed facts establish that dissolving the territory and
restructuring were the reasons also given to the Idaho Human Rights Commission
investigation. So there is no inconsistency with the reasons given at the time Mousaw was
terminated. Klim, in response to the Idaho Human Rights Commission investigation, also
said it wanted to realign sales territories to have the sales representatives live in the
territories they represented. Appendix E to Robert C. Huntley Affidavit, Dkt. 22-1, pp.
MEMORANDUM DECISION AND ORDER- 16

62-70. Klim provided specific information on other sales employee lay offs and
realignments of territories in the response to the investigation by the Idaho Human Rights
Commission. Id.
Second, Mousaw argues his termination was pretextal as he had no disciplinary
write ups, was well-liked by his customers and most of his fellow employees. These facts
are undisputed, but they do not establish pretext for age discrimination when multiple
layoffs and hirings were being made to realign the sales force. At least two sales persons
in their sixties were hired for new territories. Further, the records supports, and Mousaw
does not dispute, that management also had concerns about his attitude and willingness to
use the company’s computer software. While Mousaw may personally disagree that
computer ordering is the best model for sales, he was advised that his failure to use the
company’s technology was a problem as was his attitude in two performance reviews.
Mousaw does not dispute these grounds for his termination were brought to his attention
during performance reviews. Therefore, this is not evidence of pretext.
As Defendants point out, the fact that Summers both hired Mousaw for his outside
sales job and made the decision to terminate his employment is additional evidence the
termination was not pretext for age discrimination. The “same-actor inference” was
discussed in Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270-71 (9th Cir. 1996)
when the court held “where the same actor is responsible for both the hiring and the firing
of a discrimination plaintiff, and both actions occur withing a short period of time, a
strong inference arises there was no discriminatory action.” In fact, in such a case, “only
MEMORANDUM DECISION AND ORDER- 17

if a plaintiff can muster the extraordinarily strong showing of discrimination” should a
case go to a jury. See Coghlan v. American Seafoods Company LLC, 413 F.3d 1090 (9th
Cir. 2005) (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148
(2000). In this case, Summers initially hired Mousaw and then hired or promoted him to
two other positions with the company. All of these hirings were when Mousaw was over
sixty. His most recent hiring was in December 2012 and Summers terminated Mousaw in
December of 2013. The only conclusion to be drawn from these facts along with the
“same-actor inference” is that age was not a consideration in the hiring or firing of
Mousaw and cannot be used to prove pretext for discrimination.
Next, Plaintiff argues the “new” territory alleged by Klim was not a “new”
territory as it remained predominately the same with Archibald servicing not only Utah
clients but also clients in Montana and Wyoming after he was hired. This argument does
not rebut Summers’ affidavit that after determining Mousaw’s territory could not be
absorbed by his sales manager, Pancheri, a new Utah territory was formed in January
2014, and this is the position that was filled by a salesperson who resided in Utah.
Just because a younger employee is hired does not mean age discrimination
occurred if the employer offers legitimate business reasons for the termination which
includes realigning sales territories which the employer did in fact do. While there may
have been some overlap between the clients of Mousaw and the new hire, that is to be
expected. Whoever took the sales position which included Utah sales territory would also
continue to service Klim’s existing Utah customers. The record is undisputed that
MEMORANDUM DECISION AND ORDER- 18

Archibald also added new Utah customers that were not on Mousaw’s customer list.
While there is some evidence that Archibald serviced a few Idaho and Montana
customers in early 2014, it is undisputed that Pancheri (not Archibald) took over the bulk
of the Wyoming and most of the Idaho customers (Archibald only continued to service a
few Idaho customers located near the Utah border.). Plaintiff offers no “specific”
evidence of pretext for age discrimination when his former territory was dissolved and,
shortly after that being too much work for Pancheri, a new Utah sales territory was
established.
Finally, Plaintiff claims the requirement of a salesperson living in Utah was
pretextual since he was commuting to Utah to service Utah customers and management
had not complained of his commuting arrangement. Management’s desire to hire a
salesperson who would live in Utah does not support an inference of pretext as the
existing and potential new customers for the new territory would all be in Utah.

E. Conclusion
In viewing the facts in a light most favorable to Plaintiff, the Court finds Plaintiff
has failed to establish genuine issues of material fact that the offered business reasons for
termination are pretext for age discrimination. Simply put, the Court finds Plaintiff has
failed to carry his burden of providing “specific, substantial evidence of pretext.” Wallis
at 890. Discharging an “at will” employee is not evidence of age discrimination. Plaintiff
has not rebutted the same-actor inference of no age discrimination and the Court finds no
MEMORANDUM DECISION AND ORDER- 19

reasonable jury could find based on the record before this Court that “but for” Mousaw’s
age he would not have been terminated. For this reason, there are no genuine issues of
material fact that would prevent summary judgment from being granted in Defendants’
favor.

2. 42 U.S.C. § 1983 Claim
Defendants moved to dismiss the civil rights claims pursuant to 42 U.S.C. § 1983
arguing the ADEA is the exclusive remedy for age discrimination claims, even claims
with their source in the Constitution. Ahlmeyer v. Nev. Sys. Of Higher Ed., 555 F.3d 1051,
1060-61 (9th Cir. 2009). Plaintiff did not respond to this argument in his briefing. The
Court agrees that the law is well-settled and Plaintiff cannot proceed with an age
discrimination claim pursuant to 42 U.S.C. § 1983. This claim is dismissed.

3. Defendant Polaris
It is undisputed that Polaris owns Teton Outfitters, LLC. It is also undisputed that
Plaintiff was never an employee of Polaris. He was solely an employee of Klim.
Therefore, as a matter of law, Defendant Polaris argues it should be dismissed from the
case. Again, Plaintiff failed to respond to this argument in his pleading. The Court finds
the summary judgment should be granted dismissing Polaris as a party as Polaris was not
the employer of Mousaw and did not terminate his employment.

MEMORANDUM DECISION AND ORDER- 20

ORDER
IT IS ORDERED:
Defendants’ Motion for Summary Judgment (Dkt. 17) is GRANTED and this case
is dismissed.

DATED: September 30, 2016

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM DECISION AND ORDER- 21