Lorenz v. Tyson Foods, Inc
Filing
31
MEMORANDUM OPINION and ORDER: Denying 22 Motion for Summary Judgment: See text of Order for further information. Signed by Magistrate Judge Leonard T Strand on 12/03/15. (kfs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
CAROL LORENZ,
Plaintiff,
No. C14-4057-LTS
vs.
TYSON FOODS, INC., et al.,
Defendants.
MEMORANDUM OPINION AND
ORDER ON DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT
____________________
I.
INTRODUCTION
This case is before me on defendants’ motion (Doc. No. 22) for summary
judgment. Plaintiff has filed a resistance (Doc. No. 23) and defendants have filed a
reply (Doc. No. 27). No party requested oral argument. The motion is fully submitted
and ready for decision.
II.
PROCEDURAL HISTORY
Plaintiff Carol Lorenz (Lorenz) filed this action in the Iowa District Court for
Cherokee County on June 3, 2014, and filed a first amended petition (Doc. No. 2) on
June 19, 2014. The named defendants are Tyson Foods, Inc., d/b/a Tyson Deli, Inc.,
and Tyson Deli, Inc. (collectively “Tyson”). Lorenz alleges that she was employed by
Tyson at its plant in Cherokee, Iowa, until being discharged. She further alleges that
the discharge was based on her age in violation of the Age Discrimination in Employment
Act (ADEA) and the Iowa Civil Rights Act (ICRA).
On July 10, 2014, Tyson filed a notice (Doc. No. 1) of removal to this court.
Tyson then filed a motion (Doc. No. 4) to dismiss for failure to state a claim, while
Lorenz filed a motion (Doc. No. 5) to remand the action to state court. On September
9, 2014, United States District Judge Mark W. Bennett filed an order (Doc. No. 8)
denying the motion to remand and granting the motion to dismiss. However, Judge
Bennett gave Lorenz leave to file an amended complaint to plead her claims adequately.
Doc. No. 8 at 11-12.
Lorenz filed her amended complaint (Doc. No. 9) on October 9, 2014. Tyson
then filed an answer (Doc. No. 14) denying Lorenz’s claims. This case was referred to
me (Doc. No. 12) on October 22, 2014, after the parties unanimously consented to trial,
disposition and judgment by a United States Magistrate Judge pursuant to 28 U.S.C. §
636(c). Discovery closed September 1, 2015, and trial is scheduled to begin January 4,
2016. See Doc. Nos. 18, 19.
III.
RELEVANT FACTS
Except as otherwise noted, the following facts are not in dispute:1
Lorenz was employed at Tyson’s plant in Cherokee, Iowa, from October 1985
until December 6, 2012, when her employment was terminated. She was 62 years old
1
Some facts are deemed true because Tyson did not properly deny them in its response to
Lorenz’s statement of additional material facts. Local Rule 56(d) states, in relevant part:
A reply to an individual statement of additional material fact that is not expressly
admitted must be supported by references to those specific pages, paragraphs, or
parts of the pleadings, depositions, answers to interrogatories, admissions,
exhibits, and affidavits that support the moving party’s refusal to admit the
statement, with citations to the appendix containing that part of the record. The
failure to reply, with appropriate citations to the appendix, to an individual
statement of material fact constitutes an admission of that fact.
N.D. Ia. L.R. 56(d). Many of Tyson’s responses state “Qualify” or “Deny,” followed by an
explanation as to why Tyson contends that the asserted fact is not accurate. However, Tyson
regularly failed to cite to any part of the record to support its explanation. See Doc. No. 27-1
at 1, 3, 8, 11, 12, 14, 19, 22, 23, 26, 30, 35, 37, 38 and 41. Pursuant to Local Rule 56(d),
Tyson is deemed to have admitted each such fact for purposes of its motion.
2
at the time of her discharge. During the relevant period of time, she worked in the
Quality Assurance/Hazard Analysis Critical Control Point (QA/HACCP) department,
primarily as a technician in the department’s HACCP division. While Lorenz’s position
was once considered to be an exempt management position, it ultimately became a
“management support” position. This was a non-exempt, overtime-eligible position that
required Lorenz to record her time worked.
Tyson acknowledges that Lorenz performed her job duties competently but notes
that her record included some behavioral and attendance issues. For example, in 2008
her then-supervisor, Jerry Davis, determined that Lorenz repeatedly arrived late but
concealed her tardiness by falsely recording that she arrived on time.
Lorenz
acknowledged that she documented incorrect times. A letter of counseling was issued
in response to the situation and Lorenz was warned that the next violation of Tyson’s
time card policy would result in discharge.
Lorenz does not claim that Davis
investigated her actions because of any age bias.
In 2011, while supervised by Ashley Palmer, Lorenz had additional tardiness
issues.
On October 24, 2011, she signed a Management Support Attendance
Notification that addressed two attendance-related concepts.
First, the document
indicated that an unexcused tardy is counted as one-half of an unexcused absence, and
that two unexcused absences in a 12-month period would result in termination. Second,
she was advised that she had been charged with four “attendance instances” and that
incurring eight attendance instances during a 12-month period would result in
termination.2 These issues occurred at a time when the Cherokee plant was struggling
2
Tyson points out that because the notification reflected six unexcused tardies, Lorenz could
have been charged with three unexcused absences, as each unexcused tardy counted as one-half
of an unexcused absence. Thus, according to Tyson, Lorenz’s employment could have been
terminated at that time pursuant to the attendance policy.
3
and Tyson was seeking more accountability from its employees. Lorenz testified that
she understood that Tyson was requesting more accountability at this time.
Tyson ultimately installed a time clock system that automatically reported instances
of tardiness.
On October 18, 2012, Lorenz signed another Management Support
Attendance Notification that itemized three alleged instances of tardiness during 2012,
with the most-recent being October 8, 2012. The document indicated that Lorenz was
just one attendance notification short of being discharged.
On December 5, 2012, Lorenz was late again, this time by less than two minutes.
She contends that she stubbed her toe that morning with enough force to make her believe
she may have broken it. It is undisputed that she did not call Tyson to report that she
would be late.
The following day, Kendra Saunders, who was Tyson’s Human
Resources Manager at the Cherokee plant, advised Lorenz that she was being discharged
because she had exceeded the maximum allowed tardiness. Lorenz told Saunders about
the stubbed toe situation but that explanation did not affect the decision. Lorenz had
worked for Tyson for 27 years at the time her employment was terminated.
The record is not entirely clear as to who made the decision to terminate Lorenz’s
employment. In its statement of undisputed facts, Tyson employs the passive voice:
“Ms. Lorenz was terminated due to attendance points in 2012.” Doc. No. 22-2 at ¶ 30.
This statement avoids the issue of which individual (or individuals) at Tyson actually
made the discharge decision.
In her statement of additional material facts, Lorenz
alleges that she “was terminated by the then QA Manager, Ashley Palmer.” Doc. No.
23-3 at ¶ 38. Tyson admitted this statement by failing to cite any portion of the record
supporting its denial. Doc. No. 27-1 at ¶ 38.
Tyson also confirmed that the discharge
“was approved by Kendra Saunders a/k/a Schmidt, the on-site Human Resources
manager, and Mr. John Cebuhar, Tyson Corporate District Human Resources manager.”
Id. at ¶ 39. In viewing the record most favorably to Lorenz for purposes of Tyson’s
4
motion for summary judgment, I must conclude that Palmer made the decision to
terminate Lorenz’s employment, that the decision was approved by Saunders and
Cebuhar, and that Saunders communicated the decision to Lorenz.
Additional facts will be discussed as necessary in analyzing the parties’ arguments.
IV.
SUMMARY JUDGMENT STANDARDS
Any party may move for summary judgment regarding all or any part of the claims
asserted in a case. Fed. R. Civ. P. 56(a). Summary judgment is appropriate when
“the pleadings, depositions, answers to interrogatories, and admissions on file, together
with affidavits, if any, show that there is no genuine issue of material fact and that the
moving party is entitled to a judgment as a matter of law.”
Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).
A material fact is one that “‘might affect the outcome of the suit under the
governing law.’” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus,
“the substantive law will identify which facts are material.”
Id.
Facts that are
“critical” under the substantive law are material, while facts that are “irrelevant or
unnecessary” are not.
Id.
An issue of material fact is genuine if it has a real basis in the record, Hartnagel
v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citing Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), or when “‘a reasonable jury could
return a verdict for the nonmoving party’ on the question,” Woods v. DaimlerChrysler
Corp., 409 F.3d 984, 990 (8th Cir. 2005) (quoting Anderson, 477 U.S. at 248).
Evidence that only provides “some metaphysical doubt as to the material facts,”
Matsushita, 475 U.S. at 586, or evidence that is “merely colorable” or “not significantly
probative,” Anderson, 477 U.S. at 249-50, does not make an issue of material fact
genuine.
5
As such, a genuine issue of material fact requires “sufficient evidence supporting
the claimed factual dispute” so as to “require a jury or judge to resolve the parties'
differing versions of the truth at trial.” Anderson, 477 U.S. at 248-49.
The party
moving for entry of summary judgment bears “the initial responsibility of informing the
court of the basis for its motion and identifying those portions of the record which show
a lack of a genuine issue.” Hartnagel, 953 F.2d at 395 (citing Celotex, 477 U.S. at
323). Once the moving party has met this burden, the nonmoving party must go beyond
the pleadings and by depositions, affidavits, or otherwise, designate specific facts
showing that there is a genuine issue for trial.
Mosley v. City of Northwoods, 415 F.3d
910 (8th Cir. 2005). The nonmovant must show an alleged issue of fact is genuine and
material as it relates to the substantive law.
If a party fails to make a sufficient showing
of an essential element of a claim or defense with respect to which that party has the
burden of proof, then the opposing party is entitled to judgment as a matter of law.
Celotex, 477 U.S. at 322.
In determining if a genuine issue of material fact is present, I must view the
evidence in the light most favorable to the nonmoving party.
587-88.
Matsushita, 475 U.S. at
Further, I must give the nonmoving party the benefit of all reasonable
inferences that can be drawn from the facts.
Id. However, “because we view the facts
in the light most favorable to the nonmoving party, we do not weigh the evidence or
attempt to determine the credibility of the witnesses.” Kammueller v. Loomis, Fargo &
Co., 383 F.3d 779, 784 (8th Cir. 2004). Instead, “the court's function is to determine
whether a dispute about a material fact is genuine.”
Quick v. Donaldson Co., Inc., 90
F.3d 1372, 1376-77 (8th Cir. 1996).
No unique summary judgment standards apply to employment discrimination
cases. Torgerson v. City of Rochester, 643 F.3d 1031, 1042-43 (8th Cir. 2011) (en
banc) (rejecting prior decisions that applied a “discrimination case exception” to the
6
analysis of summary judgment motions).
However, as Judge Bennett has aptly
explained, applying summary judgment standards to the motivation-intensive elements
present in most employment discrimination cases is not a simple task:
Employment discrimination and retaliation, except in the rarest cases, are
difficult to prove. They are perhaps more difficult to prove today—fifty
years after the passage of the EPA, more than forty years after the passage
of Title VII and the ADEA, more than twenty years after the passage of the
ADA, and nearly two decades after the passage of the FMLA—than during
the earlier evolution of these anti-discrimination and anti-retaliation
statutes.
Today's employers, even those with only a scintilla of
sophistication, will neither admit discriminatory or retaliatory intent, nor
leave a well-developed trail demonstrating it. See, e.g., Riordan v.
Kempiners, 831 F.2d 690, 697–98 (7th Cir. 1987). Indeed, the Fifth
Circuit Court of Appeals recognized more than thirty-five years ago, that
“[a]s patently discriminatory practices become outlawed, those employers
bent on pursuing a general policy declared illegal by Congressional mandate
will undoubtedly devise more sophisticated methods to perpetuate
discrimination among employees.” Rogers v. EEOC, 454 F.2d 234, 239
(5th Cir. 1971) (later relied on by the Supreme Court in Meritor Sav. Bank,
FSB v. Vinson, 477 U.S. 57, 65–67 (1986), as one of the principal
authorities supporting recognition of a cause of action for hostile
environment sexual harassment under Title VII).
My experience suggests the truth of that observation. Because adverse
employment actions almost always involve a high degree of discretion, and
most plaintiffs in employment discrimination and retaliation cases are at
will, it is a simple task for employers to concoct plausible reasons for
virtually any adverse employment action ranging from failure to hire to
discharge. This is especially true, because the very best workers are
seldom employment discrimination and retaliation plaintiffs due to sheer
economics:
Because the economic costs to the employer for
discrimination or retaliation are proportional to the caliber of the employee,
discrimination or retaliation against the best employees is the least cost
effective. See, e.g., id. Rather, discrimination and retaliation plaintiffs
tend to be those average or below-average workers—equally protected by
Title VII, the ADA, the ADEA, the EPA, or the FMLA—for whom
plausible rationales for adverse employment actions are readily fabricated
7
by employers with even a meager imagination. See, e.g., id. On the
other hand, it is also relatively easy for disgruntled former employees to
claim a protected basis under federal and state anti-discrimination laws as a
reason for their discharge when in fact they played no part. This is true
even when the former employee and/or their counsel believe they did. This
is what makes deciding these issues on a paper record daunting.
Pick v. City of Remsen, No. C13-4041, 2014 WL 4258738, at *12 (N.D. Iowa Aug. 27,
2014). While the task can indeed be daunting in an employment discrimination case,
“the focus of inquiry at the summary judgment stage ‘always remains on the ultimate
question of law: whether the evidence is sufficient to create a genuine issue of fact as to
whether the employer intentionally discriminated against the plaintiff because of [the
protected characteristic].’” Strate v. Midwest Bankcentre, Inc., 398 F.3d 1011, 1018
(8th Cir. 2005) (quoting Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1336-37
(8th Cir. 1996)).
V.
A.
ANALYSIS
Applicable Standards
The ADEA and the ICRA prohibit discrimination against employees because of
age.
29 U.S.C. § 623(a); Iowa Code § 216.6.
Absent direct evidence of
discrimination, age discrimination claims are analyzed under the McDonnell-Douglas3
burden-shifting framework.
Holmes v. Trinity Health, 729 F.3d 817, 821 (8th Cir.
2013); Hulme v. Barrett, 449 N.W.2d 629, 631-32 (Iowa 1989). The Eighth Circuit
Court of Appeals describes the McDonnell-Douglas framework, as applied to ADEA and
ICRA claims, as follows:
At the first step of the analysis, the plaintiff has the burden of
establishing a prima facie case of age discrimination. . . . A
3
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
8
successful showing creates a presumption that the employer
unlawfully discriminated against the plaintiff and shifts the
burden to the burden to the employer to articulate a legitimate
nondiscriminatory reason for its actions. . . . If the
employer meets this burden, the presumption of
discrimination dissolves and the burden returns to the plaintiff
to demonstrate that the proffered reason is a mere pretext for
age discrimination.
Ridout v. JBS USA, LLC, 716 F.3d 1079, 1083 (8th Cir. 2013) [citations omitted]. The
elements of a prima facie age discrimination claim vary depending on the nature of the
claim. When the plaintiff contends that a hiring or promotion decision was based on
age, the prima facie elements are: (1) plaintiff was at least 40 year old at the time of the
challenged decision, (2) plaintiff was not hired (or was not promoted) and (3) plaintiff
was qualified for the job. Hilde v. City of Eveleth, 777 F.3d 998, 1004 (8th Cir. 2015).
As the Hilde panel noted, the Eighth Circuit sometimes includes a fourth factor as being
that the employer hired a younger person to fill the position.
Id. (citing Tusing v. Des
Moines Indep. Comm. School Dist., 639 F.3d 507, 515 (8th Cir. 2011)).
When the plaintiff alleges a discharge based on age, the prima facie elements are
(1) plaintiff was at least 40 year old, (2) plaintiff suffered an adverse employment action,
(3) plaintiff was meeting the employer's legitimate expectations at the time of the adverse
employment action, and (4) plaintiff was replaced by someone substantially younger.
Holmes v. Trinity Health, 729 F.3d 817, 822 (8th Cir. 2013) (citing Gibson v. Am.
Greetings Corp., 670 F.3d 844, 856 (8th Cir.), cert. denied, 133 S. Ct. 313 (2012)).
If a prima facie case is established, the burden shifts to the employer to articulate
a legitimate, nondiscriminatory explanation for the decision.
Ridout, 716 F.3d at 1083;
see also Hilde, 777 F.3d at 1004. Once such an explanation is offered, the burden shifts
back to the plaintiff to provide evidence that the explanation is pretextual.
F.3d at 1004.
Hilde, 777
At the summary judgment stage, a plaintiff must point to “enough
9
admissible evidence to raise a genuine doubt as to the legitimacy of the defendant’s
motive, even if that evidence [does] not directly contradict or disprove [the] defendant’s
articulated reasons for its actions.”
Wierman v. Casey’s General Stores, 638 F.3d 984,
995 (8th Cir. 2011) (pregnancy discrimination claim) (quoting Strate v. Midwest
Bankcentre, Inc., 398 F.3d 1011, 1021 (8th Cir. 2005) (internal quotation omitted)).
“Proof of pretext, coupled with a strong prima facie case, may suffice to create a triable
question of fact as to whether the termination was motivated by intentional
discrimination.” Burton v. Arkansas Sec. of State, 737 F.3d 1219, 1230 (8th Cir. 2013)
(race discrimination claim) (quoting Bone v. G4S Youth Services, L.L.C., 686 F.3d 948,
955 (8th Cir. 2012) (internal quotation omitted)).
Pretext can be established by (1) “persuading the court that a discriminatory reason
more likely motivated the employer”, Jones v. Nat’l Am. Univ., 608 F.3d 1039, 1046
(8th Cir. 2010), (2) “showing that the employer’s proffered reason is unworthy of
credence,” id., (3) showing that it was unlikely an employer would have acted on the
basis of the proffered reason,” Ridout, 716 F.3d at 1084, (4) showing the proffered
reason was not the employer’s policy or practice to respond to such problems in the way
it responded in the plaintiff’s case, id., or (5) presenting evidence that the employer’s
proffered reason has changed substantially over time. Jones, 608 F.3d at 1046.
A plaintiff may also show pretext through “comparator evidence,” which involves
showing that a younger employee, similarly situated to plaintiff, was treated more
leniently when he or she committed an infraction of comparable seriousness.
Ridout,
716 F.3d at 1084-85. The comparator employee need not have engaged in the exact
same offense, only one of “comparable seriousness.”
Id.
Where evidence
demonstrates that the comparator employee was disciplined differently, a factfinder may
decide whether the different treatment is attributable to discrimination or some other
cause. Id. Regardless of how the plaintiff shows pretext, the showing requires more
10
than merely discrediting an employer’s asserted reasoning for terminating an employee.
Haigh v. Gelita USA, Inc., 632 F.3d 464, 470 (8th Cir. 2011). A plaintiff must also
demonstrate that the circumstances permit a reasonable inference of discriminatory
animus. Id.
Under the ADEA, a plaintiff must show that age was a “but-for” cause of the
adverse employment action.
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78
(2009). Under the ICRA, a plaintiff must only show that age “played a part” in the
adverse employment decision and need not prove age was the only reason.
Newberry
v. Burlington Basket Co., 622 F.3d 979, 982 (8th Cir. 2010) (citing DeBoom v. Raining
Rose Inc., 772 N.W.2d 1, 13 (Iowa 2009)).
B.
Discussion
Lorenz acknowledges that she has no direct evidence of age discrimination. Doc.
No. 23-1 at 15.
As such, her claim must be evaluated pursuant to the McDonnell
Douglas framework.
1.
Prima Facie Case
Tyson contends Lorenz has failed to establish a prima facie case of discrimination
because she cannot show she was meeting Tyson’s legitimate expectations.
Specifically, Tyson points to Lorenz’s record of tardiness and argues that a plaintiff who
is habitually tardy is not meeting his or her employer’s legitimate expectations. Doc.
No. 22-1 at 8. As Lorenz notes, however, Tyson agrees that her actual job performance
was acceptable.
See, e.g., Doc. No. 22-1 at 2 (acknowledging that Lorenz “was a
technically competent employee”). Moreover, the burden of establishing a prima facie
case is not onerous, as the purpose of the prima facie showing is to eliminate the most
common nondiscriminatory reasons for the employer’s decision.
11
Texas Dep't of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253-54 (1981); see also Wimbley v. Cashion, 588 F.3d
959, 962 (8th Cir. 2009). A plaintiff must meet a higher standard at the pretext stage
of the analysis. Fiero v. CSG Sys., Inc., 759 F.3d 874, 878 (8th Cir. 2014).
Reasonable jurors could conclude that Lorenz’s recurring tardiness issues
constituted a failure to meet Tyson’s legitimate expectations.
At the pretext stage,
however, I find that Tyson is not entitled to such a finding as a matter of law. Given
Lorenz’s otherwise adequate job performance and the apparently-short duration of
Lorenz’s tardies (the last one was two minutes), reasonable jurors could similarly find
that she was meeting Tyson’s legitimate expectations. As such, Tyson is not entitled to
a finding that Lorenz has failed, as a matter of law, to establish a prima facie case of age
discrimination.4
2.
Has Lorenz Presented Evidence Discrediting Tyson’s Explanation?
Lorenz does not dispute that Tyson has offered a legitimate, nondiscriminatory
reason for discharging Lorenz – her violations of Tyson’s attendance policy. Doc. No.
23-1 at 17.
However, Lorenz contends that this reason is pretextual.
Id.
She
contends that a younger employee, Derrick Hughes, engaged in similar conduct but was
treated more favorably. She also argues that Tyson failed to comply with its own policy
concerning counseling and documentation with regard to various alleged instances of
tardiness during 2012. I will address both issues before moving on to the question of
whether the record supports a finding of discriminatory animus.
4
Neither side devotes much attention to the final element of Lorenz’s prima facie claim: whether
Tyson replaced Lorenz with a “substantially younger” worker. Holmes, 729 F.3d at 822. It
appears to be undisputed that Tyson assigned most of Lorenz’s former job duties to Constance
Ploeger, who was 49 year old (13 years younger than Lorenz) at the time. Doc. No. 22-11 at
¶ 9; Doc. No. 23-20 at 2; Doc. No. 27-1 at ¶ 42. Tyson does not appear to argue that this 13year age difference fails, as a matter of law, to meet the “substantially younger” standard.
12
a.
Comparator Evidence
Lorenz argues that Hughes, who performed the same job as Lorenz but on a
different shift, was allowed to be late for work on several occasions with no adverse
consequences. Hughes signed a declaration that includes the following statements:
9.
While I worked under Ashley [Palmer] there were times I was late
and Ashley would not discipline me for it. Typically when I was late
Ashley would do nothing. This was true whether I called ahead or
not.
10.
Ashley would tell me "if you are a couple of minutes late don't worry
about it, people have things to do".
11.
Ashley wasn't the only one watching Carol. There were other
management watching her, Shane Greybill and Jerry Davis for
example. In other words it seemed like management was just waiting
to find some way to terminate her or intimidate her enough to make
her retire.
12.
Ashley watched Carol's attendance, when she came in and when she
left, on a regular basis.
Doc. No. 23-12 at 2. While the second sentence of paragraph 11 is speculation, the
remaining portions of this excerpt appear to be based on Hughes’ personal knowledge.
For purposes of Tyson’s motion, I must accept Hughes’ testimony as true.
In response, Tyson argues that Hughes is not a valid comparator because he was
not similarly situated to Lorenz. “At the pretext stage, the test for determining whether
employees are similarly situated to a plaintiff is a rigorous one.”
Burton v. Ark. Sec'y
of State, 737 F.3d 1219, 1230 (8th Cir. 2013) (internal quotation marks omitted).
However, the plaintiff “must prove only that the other employees were similarly situated
in all relevant respects.” Ridout, 716 F.3d at 1085 (internal quotation marks omitted).
“To demonstrate that they are similarly situated, [the employee] need only establish that
13
he or she was treated differently than other employees whose violations were of
comparable seriousness.”
Id. (internal quotation marks omitted).
That is, “the
individuals used for comparison must have dealt with the same supervisor, have been
subject to the same standards, and engaged in the same conduct without any mitigating
or distinguishing circumstances.” Wierman, 638 F.3d at 994 (internal quotation marks
omitted). “Where evidence demonstrates that a comparator engaged in acts of
‘comparable seriousness' but was disciplined differently, a factfinder may decide whether
the differential treatment is attributable to discrimination or some other cause.”
Ridout,
716 F.3d at 1085.
In contending that Hughes was not similarly situated, Tyson relies on Lorenz’s
own statements and impressions about certain events.
For example, Tyson cites
Lorenz’s deposition testimony about (1) an incident in which Hughes was late with notice
and (2) a situation in which Hughes received advance permission to be late. Doc. No.
27 at 9. Tyson notes that these events are distinct from Lorenz’s conduct of arriving
late without calling and without receiving advance permission. While this may be true,
Tyson’s analysis ignores Hughes’ sworn testimony. As noted above, Hughes states that
while Palmer was his supervisor, “there were times I was late and Ashley would not
discipline me for it.” Doc. No. 23-12 at 2.
Hughes also states that “[t]ypically when
I was late Ashley would do nothing. This was true whether I called ahead or not.”
Id.
Finally, Hughes asserts that Palmer all but gave him standing permission to be late,
stating “if you are a couple of minutes late don't worry about it, people have things to
do.” Id.
Accepting Hughes’ sworn statements as true – which I must do at this point –
compels a finding that Tyson treated Hughes more favorably than Lorenz with regard to
tardiness.
Tyson also argues, however, that such disparate treatment is irrelevant
because of the time periods at issue.
Tyson notes that Hughes separated from
14
employment in August 2011, more than a year before Lorenz was discharged and shortly
before Tyson tightened its attendance expectations due to the Cherokee plant’s ongoing
struggles. Moreover, Tyson points out that it was not until 2012 that it utilized an
automated timeclock system that generated automatic notices of tardy arrivals.
According to Tyson, Palmer’s treatment of Hughes during and before 2011 has no
bearing on how Lorenz’s tardiness was handled in 2012.
While reasonable jurors may find Tyson’s arguments persuasive, Tyson is not
entitled to a finding – as a matter of law – that the passage of time fully explains Hughes’
more-favorable treatment. Hughes performed the same job as Lorenz, for the same
supervisor, during an overlapping period of time.
While Hughes left Tyson before
Tyson “cracked down” (Tyson’s term) on its employees, his sworn testimony includes
his observation that Palmer “watched [Lorenz’s] attendance, when she came in and when
she left, on a regular basis” during Hughes’ employment at Tyson. Doc. No. 23-12 at
2. Thus, accepting Hughes’ testimony as true means Palmer was watching Lorenz’s
attendance closely at the same time he was assuring Hughes that being a couple of minutes
late was not a concern.
But for Hughes’ declaration, Tyson would have a strong argument that Hughes is
not a valid comparator.
I agree with Tyson that Lorenz’s testimony about Hughes’
attendance incidents is not persuasive, as the incidents she describes are not analogous to
Lorenz’s conduct of being late without calling ahead. Hughes’ testimony, however,
permits a finding that Palmer treated Hughes less harshly for the same conduct that
allegedly led to Lorenz’s discharge. Lorenz has raised a genuine issue of material fact
as to whether Hughes is a valid comparator and, if so, whether Palmer favored Hughes
over her.
15
b.
Company Policy
Lorenz also seeks to establish pretext by arguing that Tyson violated its own
policies when disciplining her for attendance issues during 2012. According to Lorenz,
an attendance notification she received on October 18, 2012, was the first notice Tyson
provided as to any instances of tardiness during 2012. That notification indicated that
Lorenz was tardy on March 16, September 26 and October 8 of 2012. Palmer testified
that Tyson has no record of Lorenz receiving any notice of or counseling about the March
16 or September 26 incidents. Doc. No. 23-16 at 23. Lorenz notes that under Tyson’s
Rules of Conduct (ROC) Policy, disciplinary violations were to be addressed with the
employee and documented in a timely fashion. Doc. No. 23-6 at 2-3. Lorenz argues
that the fact Palmer did not bring those incidents to her attention suggests that they were
excused at the time but were later used against her to make a case for her discharge.
This, she suggests, shows pretext.
In response, Tyson asserts that the ROC Policy is irrelevant because Lorenz was
not discharged under that policy. Instead, according to Tyson, she “was terminated for
violating the Management Support Attendance (MSA) Policy.”
Doc. No. 27 at 18.
Tyson has not come close to establishing the truth of this statement as a matter of law.
Tyson cites pages 1 and 31-33 of its summary judgment appendix in support of the
statement. Id. Page 1 is a document entitled “Disciplinary Action Notification” that
states Lorenz was discharged for having four unexcused tardies in a 12-month period.
Doc. No. 22-4 at 2. That document makes no reference to the MSA Policy. Instead,
Lorenz’s alleged misconduct is described under a heading that reads: “Rules of Conduct
Violation (who, what, where, when).”
Id. This document does not establish, as a
matter of law, that the ROC Policy is irrelevant. If anything, by expressly referencing
a “Rules of Conduct Violation,” the document adds support to Lorenz’s argument that
she was discharged pursuant to the ROC Policy.
16
Pages 31-33 of Tyson’s summary judgment appendix is simply the MSA Policy.
Doc. No. 22-12 at 2-4. The fact that such a policy existed during the relevant period of
time does not, standing alone, render the ROC Policy irrelevant. The MSA Policy does
not state that it applies in lieu of the ROC Policy.
Id. Nor, for that matter, does the
ROC Policy state that it excludes conduct that is covered by the MSA Policy. Instead,
the ROC Policy states: “When unacceptable behavior warrants disciplinary action, a
Disciplinary Action Notification will be used.” Doc. No. 23-6 at 2. As noted above,
the Tyson form that was used to document the alleged violations that led to Lorenz’s
discharge was entitled “Disciplinary Action Notification.” Doc. No. 22-4 at 2.
I also note that many of Tyson’s denials as to the applicability of the ROC Policy
are supported by no citations to the record.
In responding to certain paragraphs of
Lorenz’s statement of additional material facts, Tyson asserted that the ROC Policy was
not the policy under which Lorenz was terminated but did not direct my attention to any
evidence supporting that proposition.
See Doc. No. 27-1 at ¶¶ 30-32.
earlier, this is contrary to Local Rule 56(d).
As I noted
Tyson’s failure to cite to supporting
evidence, in combination with the express language of the policies and documents
discussed above, leads me to conclude that Tyson has failed to meet its burden of
establishing as a matter of law that the ROC Policy did not apply to Lorenz’s alleged
attendance issues.
If the ROC Policy requirements did apply, then there is at least a genuine issue of
material fact as to whether Tyson complied with those requirements in addressing
Lorenz’s alleged tardies on March 16, 2012, and September 26, 2012.
See, e.g., Doc.
No. 27-1 at ¶¶ 28-32, 35-37. As noted above, Palmer testified that no documentation
exists of any counseling or notification with regard to those incidents. The ROC Policy,
however, calls for “a documented counseling” as the first level of disciplinary action for
any “unacceptable conduct.” Doc. No. 23-6 at 3. Two additional levels of discipline
17
(written warning and written warning with suspension) follow before discharge.
Id.
Here, the record suggests that Tyson took no action with regard to the first two tardies
during 2012, instead waiting until a third alleged tardy in October before providing
Lorenz with any documentation of unacceptable conduct. Doc. No. 27-1 at ¶¶ 34-35.
Lorenz was then discharged after arriving at work less than two minutes late on December
5, 2012. Id. at ¶ 40.
The jury might very well agree with Tyson that the ROC Policy is irrelevant and
that Tyson fully complied with the MSA Policy in terminating Lorenz’s employment.
At this stage of the case, however, Tyson has failed to establish the inapplicability of the
ROC Policy as a matter of law. Instead, Lorenz has raised a genuine issue of material
fact as to whether Tyson complied with its own policies in connection with her discharge.
Thus, with regard to both comparator evidence and possible noncompliance with
company policy, the record allows the finder of fact to discredit Tyson’s stated reason
for discharge. This does not end the inquiry. The Eighth Circuit has stated:
The showing of pretext necessary to survive summary judgment “requires
more than merely discrediting [defendant’s] proffered reason for the
adverse employment decision. [Plaintiff] must also prove that the proffered
reason was a pretext for age discrimination.”
Kohrt v. MidAmerican Energy Co., 364 F.3d 894, 898 (8th Cir. 2004) (quoting Spencer
v. Stuart Hall Co., 173 F.3d 1124, 1128 (8th Cir. 1999)); see also Kiel v. Select
Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir. 1999) (to create a genuine issue of
material fact on pretext “the ultimate question is whether the plaintiff presents evidence
of ‘conduct or statements by persons involved in [the employer's] decision-making
process reflective of a discriminatory attitude sufficient to allow a reasonable jury to infer
that that attitude was a motivating factor in [the employer's] decision ....’ ”) (quoting
Feltmann v. Sieban, 108 F.3d 970, 975 (8th Cir. 1997)). I will address that issue next.
18
3.
Has Lorenz Presented Evidence of Discriminatory Animus?
Lorenz points to evidence of several events that, in her view, suggest a
discriminatory animus on Palmer’s part.
Among other things, she alleges that when
Palmer took over as her supervisor, he reorganized the department in such a way as to
replace older workers with younger ones. For example, she contends that he placed two
older workers – Stan Nading and Hal Maddox – on performance improvement plans that
ultimately caused both to resign. Lorenz also contends that as older workers left the
department, Palmer replaced them with workers who were 35 or younger. She states
that within a short period of time, Palmer’s department transitioned from having only one
younger worker to having only one older worker – Lorenz.
Lorenz also finds significance in the fact that she was not chosen to replace any of
the older workers who left the department during Palmer’s tenure. She states that she
applied for various openings and was interviewed for one of them, but was told that her
past attendance issues were a barrier. She argues that age was the real reason and that
Palmer was intent on staffing his department with younger workers.
Tyson denies any concerted effort to eliminate older employees and notes that
percentage of employees over the age of 40 at the Cherokee plant actually increased each
year between 2011 and 2015.
Tyson also argues that a disproportionate share of
employees discharged for attendance-related issues were under the age of 40 during those
years, meaning Tyson was not using attendance violations as an excuse to weed out older
workers. As for its failure to promote Lorenz to other positions, Tyson argues that this
is hardly surprising in light of her disciplinary record.
Tyson’s plant-level statistical data does not establish a lack of discriminatory
animus as a matter of law. Lorenz does not allege that Tyson’s management made a
decision to rid the entire Cherokee plant of older workers. Her theory is that Palmer –
the supervisor of her department – favored younger workers and managed, in short order,
19
to convert the department from one that consisted primarily of older workers to one in
which Lorenz was the last remaining older worker. Evidence of age animus is relevant
only to the extent that it relates to the decision-maker or to someone who influenced the
decision-making process. McMannes v. United Rentals, Inc., 371 F. Supp. 2d 1019,
1031-32 (N.D. Iowa 2005) (citing Kiel, 169 F.3d at 1135). Because Lorenz does not
contend that the entire Cherokee plant was under orders to purge older workers, Tyson’s
plant-level data do not advance Tyson’s summary judgment arguments.
When the analysis is (properly) focused on Palmer’s department, I find that Lorenz
has established facts sufficient to raise a genuine issue as to whether Palmer was motived
by age animus.
Tyson acknowledges that soon after Palmer was hired in 2011, he
brought about the retirement of two older QA managers.
Doc. No. 27-1 at ¶ 14
(qualified admission with no citation to the record). Palmer replaced those employees
with younger individuals. Id. at ¶¶ 16-17. Palmer selected a 35-year-old who had less
training than Lorenz and a 26-year-old who had previously been terminated by Tyson
due to absenteeism. Id. at ¶¶ 18-19 (qualified admissions with no citation to the record).
Lorenz was not given the chance to interview for either position.
Id. at ¶ 20.
Palmer also added a new management position, which he filled with a worker
under the age of 40. Id. at ¶15. After these various personnel changes, Lorenz was
the only employee left in the department who was over the age of 40. Id. at ¶ 23.
While Tyson has explanations for all of Palmer’s hiring decisions, I cannot simply accept
each explanation at face value. Instead, I must give Lorenz the benefit of all reasonable
inferences that can be drawn from the facts.
Matsushita, 475 U.S. at 587-88. Lorenz
has presented evidence suggesting (a) that she was treated more harshly than a comparable
employee (Hughes), (b) that Tyson may have violated its own policy with regard to her
alleged attendance issues and (c) that the decision-maker (Palmer) had a practice of
20
removing older employee from his department.5 None of this means Lorenz will prevail
at trial, or even that she has a strong case. It does mean, however, that Tyson has failed
to meet its burden of showing that Lorenz’s claims fail as a matter of law.
VI.
CONCLUSION
For the reasons set forth herein, defendants’ motion (Doc. No. 22) for summary
judgment is denied. This case will proceed to trial as scheduled beginning January 4,
2016.
IT IS SO ORDERED.
DATED this 3rd day of December, 2015.
________________________________
LEONARD T. STRAND
UNITED STATES MAGISTRATE JUDGE
5
Tyson also argues that Lorenz’s deposition testimony, in which she states a belief that Palmer
disliked her because she questioned him, precludes her from proving that Palmer was motivated
by age animus. Doc. No. 27 at 19 (citing Doc. No. 22-8 at 10). I disagree. While this may
be a solid jury argument, Lorenz’s belief that Palmer had other reasons for disliking her does
not mean the decision to terminate her employment could not have been based on Lorenz’s age.
Lorenz must show that her age was a “but-for” cause of her discharge (ADEA) or that her age
“played a part” in the decision (ICRA). Gross, 557 U.S. at 177-78; Newberry, 622 F.3d at
982. Even if Palmer disliked Lorenz for many non-discriminatory reasons, the record contains
sufficient evidence to raise an issue of fact as to whether Lorenz’s age was the ultimate cause of
Palmer’s decision to terminate her employment.
21
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