Burns v. Transdigm Group, Inc.
Filing
69
MEMORANDUM AND ORDER denying 57 Defendants Motion for Summary Judgment. Signed by District Judge Richard D. Rogers on 5/1/15. (meh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
EDWARD BURNS,
Plaintiff,
v.
Case No. 13-1371-RDR
TRANSDIGM GROUP, INC.
d/b/a ELECTRMECH TECHNOLOGIES,
and
WESTERN SKY INDUSTRIES, LLC
d/b/a ELECTROMECH TECHNOLOGIES,
Defendants.
MEMORANDUM AND ORDER
In this action, plaintiff contends that he was terminated from his
employment with Electromech Technologies on January 2, 2013 because of his
age.
Plaintiff asserts a claim under the Age Discrimination in Employment
Act (ADEA), 29 U.S.C. ' 621 et seq.
This matter is presently before the
court upon defendants= motion for summary judgment.
I.
Plaintiff was born on August 16, 1948.
old.
He is currently 66 years
Plaintiff was hired on March 19, 2005 by Electromech Technologies as
its Director of Supply Chain.
In 2007, he was moved to the position of
Director of Costing and Contracting.
On February 11, 2011, plaintiff was
promoted to the position of Director of Finance.
Harms, President of Electromech.
He reported to Doris
As Director of Finance, plaintiff was
responsible for the financial well-being of Electromech, protecting its
assets, reporting information on a timely basis to finance and ensuring
the financial stability of the company.
1
Plaintiff was also responsible
for the work of nine people who reported directly to him.
On January 2,
2013, plaintiff was terminated from his position as Director of Finance.
Plaintiff was replaced by Jeffrey Keller, who is in his thirties.
In their motion for summary judgment, the defendants raise three
arguments: (1) plaintiff=s claim against TransDigm Group, Inc. (TDG) d/b/a
Electromech Technologies must fail because it was not plaintiff=s employer
and it was not an employer under the ADEA; (2) plaintiff=s claim against
Western Sky Industries, LLC d/b/a Electromech Technologies is time-barred;
and (3) plaintiff has failed to establish that he was terminated from his
employment because of his age.
II.
Summary judgment is appropriate if the moving party demonstrates
Athat there is no genuine dispute as to any material fact@ and that it is
Aentitled to 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. City of
Herriman v. Bell, 590 F.3d 1176, 1181 (10th Cir. 2010). AThere is no
genuine issue of material fact unless the evidence, construed in the light
most favorable to the non-moving party, is such that a reasonable jury
could return a verdict for the non-moving party.@
Bones v. Honeywell
Int=l, Inc., 366 F.3d 869, 875 (10th Cir. 2004)(citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 255 (1986)). A fact is Amaterial@ if, under
the applicable substantive law, it is Aessential to the proper disposition
of the claim.@
Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc.,
259 F.3d 1226, 1231B32 (10th Cir. 2001)(citing Adler v. WalBMart Stores,
Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
2
An issue of fact is Agenuine@
if Athere is sufficient evidence on each side so that a rational trier of
fact could resolve the issue either way.@ Adler, 144 F.3d at 670 (citing
Anderson, 477 U.S. at 248).
The moving party initially must show the absence of a genuine issue
of
material
fact
and
entitlement
to
judgment
as
a
matter
of
law.
Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir. 2002),
cert. denied, 537 U.S. 816 (2002)(citing Celotex Corp. v. Catrett, 477
U.S. 317, 322B23 (1986)). In attempting to meet this standard, a movant
that does not bear the ultimate burden of persuasion at trial need not
negate the non-movant=s claim; rather, the movant need simply point out to
the court a lack of evidence for the nonmovant on an essential element of
the nonmovant=s claim.
Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d
1242, 1246 (10th Cir. 2000)(citing Adler, 144 F.3d at 671); see also
Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010).
Once the movant has met the initial burden of showing the absence of
a genuine issue of material fact, the burden shifts to the nonmoving party
to Aset forth specific facts showing that there is a genuine issue for
trial.@
Anderson, 477 U.S. at 256; Celotex, 477 U.S. at 324; Spaulding,
279 F.3d at 904 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986)). The nonmoving party may not simply rest upon
its pleadings to satisfy its burden. Anderson, 477 U.S. at 256; accord Eck
v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir. 2001).
Rather, the
nonmoving party must Aset 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 nonmovant.@ Mitchell v. City of Moore, Okla., 218 F.3d 1190,
1197B98 (10th Cir. 2000)(quoting Adler, 144 F.3d at 670B71); see Kannady,
3
590 F.3d at 1169.
A defendant has the burden of proof on an affirmative defense, and
thus in moving for summary judgment on the affirmative defense, A[t]he
defendant
...
must
demonstrate
that
no
disputed
material
fact
exists
regarding the affirmative defense asserted.@ Hutchinson v. Pfeil, 105 F.3d
562,
(10th
564
Athe
showing,
Cir.
1997).
plaintiff
must
Once
then
the
defendant
demonstrate
existence of a disputed material fact.@
makes
with
this
initial
specificity
the
Id. If after the evidence is
viewed in the light most favorable to the plaintiff, the plaintiff cannot
meet
this
burden,
Athe
affirmative
defense
bars
his
claim,
and
defendant is then entitled to summary judgment as a matter of law.@
the
Id.
Finally, summary judgment is not a Adisfavored procedural shortcut@;
on the contrary, it is an important procedure Adesigned to secure the
just, speedy and inexpensive determination of every action.@
Celotex, 477
U.S. at 327 (quoting Fed.R.Civ.P. 1). In responding to a motion for
summary
judgment,
Aa
party
cannot
rest
on
ignorance
of
facts,
on
speculation, or on suspicion and may not escape summary judgment in the
mere hope that something will turn up at trial.@
Conaway v. Smith, 853
F.2d 789, 794 (10th Cir. 1988). When examining the underlying facts of the
case,
the
court
is
cognizant
that
it
may
not
make
credibility
determinations or weigh the evidence. Matsushita, 475 U.S. at 587.
III.
The court begins with the very puzzling issue of who employed the
plaintiff and whether plaintiff has sued the correct defendant.
The
defendants initially contend that plaintiff=s claim against TDG must fail
because it is not plaintiff=s employer and it is not an employer under the
4
ADEA.
The defendants suggest that TDG employs no employees since it is a
holding company and Electromech=s indirect parent.
The defendants point
out that plaintiff was hired by Electromech, paid by Electromech, reported
to Electromech=s President, and was eventually terminated by Electromech=s
President.
Finally, the defendants argue that TDG is not liable for acts
of its subsidiary under the Aintegrated enterprise test@ established by the
Tenth Circuit.
The defendants next contend that plaintiff=s claim against Western
Sky Industries is barred because plaintiff did not timely assert his claim
against it.
save
The defendants also argue that equitable tolling does not
plaintiff=s
claim
against
Western
Sky
Industries.
Finally,
the
defendants suggest that the plaintiff=s addition of Western Sky Industries
in an amended complaint does not relate back to the time of plaintiff=s
initial complaint.
The facts as provided by the parties on these issues are as follows:
In December 2010, TDG=s subsidiary, TransDigm, Inc., acquired McKechnie
Aerospace Holdings, Inc.
One of McKechnie=s indirect subsidiaries was
Western Sky Industries, LLC, which had several operating units including
Electromech
complaint
of
Technologies.
discrimination
On
February
with
the
Technologies.
He
6,
Kansas
Human
plaintiff
Rights
received
a
filed
a
Commission
against
Electromech
letter.
He filed his complaint against TDG d/b/a Electromech Technologies
in this court on October 1, 2013.
later
2013,
right-to-sue
In his complaint, he asserted the
following:
The defendant Transdigm Group, Inc is a corporation, duly
authorized and existing under the laws of the state of
Delaware. It is doing business in Kansas through a wholly
owned subsidiary, Electromech Technologies.
5
In its answer, TDG claimed that it was not plaintiff=s employer.
further
alleged
that
Western
Electromech Technologies.
Western
Sky
Industries,
Sky
Industries
was
doing
business
TDG
as
It admitted that plaintiff=s employment with
LLC
d/b/a
Electromech
Technologies
ended
on
January 2, 2013.
Based upon the responses of TDG, plaintiff sought to amend his
complaint to add Western Sky Industries d/b/a Electromech Technologies as
a defendant.
TDG argued in response that the motion should be denied
because it was futile.
TDG contended plaintiff=s claim was time-barred
because he had failed to sue Western Sky Industries within ninety days of
receiving his right-to-sue letter.
Magistrate Sebelius granted the motion
to amend, finding that TDG had failed Ato come forward with any evidence
regarding the nature and extent of Western Sky Industries= knowledge or
lack of knowledge regarding this action.@
A.
The court begins with TDG=s contention that it is neither plaintiff=s
employer nor an employee under the ADEA.
argument,
TDG
suggests
that
plaintiff
was
hired
Electromech,
by
it
was
not
paid
In roughly three pages of
plaintiff=s
by
employer
Electromech,
because
reported
to
Electromech=s President, and was terminated by Electromech=s President.
TDG then suggests that it cannot be held liable under the Aintegrated
enterprise test@ because (1) the mere fact that Electromech=s President
reported to Pete Palmer, TDG=s Executive Vice-President, is insufficient
to show an interrelation of operation; (2) plaintiff cannot demonstrate
any centralized control of labor relations between TDG and Electromech;
(3) TDG and Electromech share no common directors or operational managers;
6
and (4) the mere existence of a parent-subsidiary relationship is not
enough to impose liability on it.
The ADEA makes it unlawful for an employer to discharge or otherwise
discriminate because of age against an individual at least forty years of
age with respect to compensation, terms, conditions, or privileges of
employment.
See 29 U.S.C. '' 623(a)(1), 631(a).
is limited to Aemployers.@
Liability under the ADEA
See Garcia v. Copenhaver, Bell & Associates,
M.D.=s, P.A., 104 F.3d 1256, 1263 (11th Cir. 1997).
A defendant must have
A20 or more employees@ to qualify as an Aemployer@ covered by the ADEA.
U.S.C.
'
630(b).
The
employee
numerosity
threshold
for
29
establishing
Aemployer@ status under the ADEA is not jurisdictional; rather, it is
merely an element of a claim for relief.
See Hackworth v. Progressive
Cas. Ins. Co., 468 F.3d 722, 726 n. 4 (10th Cir. 2006)
The Tenth Circuit has referred to two tests that are applicable when
determining which of two entities is a plaintiff=s employer: the jointemployer test and the single-employer test.
Bristol v. Bd. of County
Com=rs of County of Clear Creek, 312 F.3d 1213, 1218 (10th Cir. 2002)
Under the single-employer doctrine, a plaintiff who is the employee of one
entity may seek to hold another entity liable by arguing that the two
entities effectively constitute a single employer.
Id.
single-employer test, a court weighs four factors:
operation;
(2)
common
relations;
and
(4)
management;
common
1220(quotation omitted).
(3)
ownership
centralized
and
financial
In applying the
interrelations of
control
control.
of
labor
Id.
at
The third factorB-centralized control of labor
relationsB-is the most important.
Id.
Under the joint-employer test, a
plaintiff who is the employee of one entity may seek to hold another
7
entity liable by claiming that the two entities are joint employers.
In
applying
this
test,
courts
examine
if
the
entities
Ashare
Id.
or
co-
determine those matters governing the essential terms and conditions of
employment.@
whether
Id.(quotation
both
employees.=@
entities
>exercise
Id.(quotation
AIn
omitted).
other
significant
omitted).
As
a
words,
control
general
courts
over
rule,
look
the
to
same
determining
whether an entity qualifies as an employer is a fact issue for the jury.
Id. at 1221.
TDG focused on the single-employer theory of liability, arguing that
TDG and Electromech are not a single employer.
that
plaintiff
has
not
demonstrated
any
relations between the two entities.
TDG relies upon evidence
centralized
control
of
labor
TDG further argues that TDG and
Electromech share no common directors or operational managers.
Finally,
TDG contends that even though Electromech is Aan indirect, wholly-owned
subsidiary
of
[TDG],@
this
factor
alone
does
not
establish
parent
liability.
Plaintiff, on the other hand, has suggested that either theory of
liabilityB-the single-employer or the joint employer-Bcould apply here.
Nevertheless, plaintiff has limited its argument to the single-employer
test.
both
Plaintiff points out there is evidence that TDG was involved in
the
decision
to
promote
determination to terminate him.
him
to
Director
of
Finance
and
the
Plaintiff suggests this evidence shows a
centralized control of labor relations.
The issues raised by the parties are troubling because there are
many unanswered questions.
The complexity of the relationship between TDG
and other entities including Electromech is shown by the following answer
8
of Mr. Palmer, the Executive Vice-President at TDG, in his deposition when
he was asked about the relationship of the companies:
I -- I wouldn=t claim to know.
It's complicated. They have
charts that show a very complicated corporate structure.
Due
to the nature of the acquisitions, that's a legal and a tax
decision. That=s not something I would be able to speak to with
any clarity.
The
court
has
thoroughly
examined
relationship between TDG and Electromech.
the
record
concerning
the
The court is not persuaded that
TDG is entitled to summary judgment on the issue of whether it was an
employer of plaintiff.
jury
could
conclude
There is evidence before the court upon which a
that
TDG
exercised
plaintiff to be deemed his employer.
TDG
approved
the
decision
to
sufficient
control
over
the
Plaintiff has produced evidence that
terminate
him.
Plaintiff
has
further
produced evidence that TDG was involved in the decision to hire plaintiff
at Electromech.
The evidence on some of the other factors weighs in favor
of TDG, but a plaintiff is not required to establish every factor in order
for a court to find two entities constitute a single employer. See Esmark,
Inc. v. N.L.R.B., 887 F.2d 739, 753 (7th Cir. 1989).
The evidence before
the court provides some indication that TDG exercised common control of
labor relations, the most important factor in the single employer theory.
Given this evidence and the many issues that remain undeveloped, the court
believes that this issue must be decided at trial.
B.
The court next considers the defendants= argument that plaintiff=s
amended complaint which added Western Sky Industries as a defendant does
not relate back to the time of the filing of his initial complaint.
As a
result, the defendants contend that plaintiff=s ADEA claim against Western
9
Sky Industries is barred by plaintiff=s failure to file suit within ninety
days of the receipt of his right-to-sue letter.
A plaintiff must file an ADEA claim within ninety days of receiving
an EEOC right-to-sue notice.
29 U.S.C. ' 623.
There is nothing in the
record indicating when plaintiff received his right-to-sue letter, but
there is evidence that the EEOC charge was mailed on August 2, 2013.
Plaintiff filed his complaint here on October 1, 2013.
Defendants have
suggested that he must have received it prior to that time, and plaintiff
has not suggested otherwise.
TDG
d/b/a
Electromech
as
In the original complaint, plaintiff named
the
defendant.
In
his
subsequent
amended
complaint, which was filed on February 26, 2014, he named Western Sky
Industries
d/b/a
Electromech
Technologies
as
an
additional
defendant.
Western Sky Industries was not named as a defendant until well after the
ninety-day
period
had
expired.
The
ADEA
claim
against
Western
Sky
Industries is thus timely only if the amended complaint adding it as a
defendant relates back to the original filing date.
Rule 15(c)(1) provides that amended pleadings may Arelate back@ to
the date the original pleading was filed where:
(C) the amendment changes the party or the naming of the
party against whom a claim is asserted, if Rule 15(c)(1)(B) is
satisfied and if, within the period provided by Rule 4(m) for
serving the summons and complaint, the party to be brought in
by amendment:
(i) received such notice of the action that it will
not be prejudiced in defending on the merits; and
(ii) knew or should have known that the action
would have been brought against it, but for a
mistake concerning the proper party's identity.
Fed.R.Civ.P. 15(c)(1)(C).
The Supreme Court recently explained that Arelation back under Rule
15(c)(1)(C) depends on what the [new] party knew or should have known, not
10
on the amending party=s knowledge or its timeliness in seeking to amend
the pleading.@ Krupski v. Costa Crociere S. p. A., 560 U.S. 538 (2010).
In light of Krupski, the only two inquiries that the district court is now
permitted to make in deciding whether an amended complaint relates back to
the date of the original complaint are: first, whether the defendant who
is sought to be added by the amendment knew or should have known that the
plaintiff, had it not been for a mistake, would have sued him instead of
or in addition to suing the named defendant; and second, whether, even if
so, the delay in the plaintiff=s discovering his mistake impaired the new
defendant=s ability to defend himself.
The defendants have acknowledged that Western Sky Industries d/b/a
Electromech had notice of this lawsuit.
However, they contend that they
have now demonstrated that plaintiff=s amended complaint should not relate
back to the original complaint.
In support of this argument, they point
to
Zielinski,
the
affidavit
Industries.
of
Jeffrey
President
of
Western
Sky
He suggests he had no information that plaintiff=s choice of
TDG was unintentional or a mistake.
In what can only be described as an artfully drafted affidavit, Mr.
Zielinski has stated that he Apossessed no information to suggest that
Plaintiff=s choice of TransDigm Group as a defendant was unintentional or
a mistake.@
The court fails to see how Mr. Zielinski can contend that he
was not aware or should not have been aware that plaintiff=s choice of TDG
as the defendant was not based on a mistake concerning the proper party=s
identity. Mr. Zielinski was aware that the lawsuit had been filed.
He was
further aware that plaintiff worked for his company and was terminated by
his
company.
He
further
knew
that
11
plaintiff
was
asserting
he
was
terminated
because
of
his
age
in
violation
of
the
ADEA
terminated from his position of Director of Finance.
when
he
was
There is little
question here that Mr. Zielinski Ashould have known@ that Electromech or
Western Sky Industries was the proper party but for a mistake concerning
the proper party=s identity.
The court further notes that Western Sky
Industries has failed to show how it was prejudiced by its omission from
the original complaint.
Since the requirements of Rule 15(c)(1)(C) are
met, plaintiff=s amended complaint relates back and Western Sky Industries
was timely sued.
IV.
Under the ADEA, an employer may not Adischarge any individual ...
because
requires
of
such
individual’s
Abut-for@
causation;
age.@
29
U.S.C.
therefore,
a
'
623(a)(1).
plaintiff
The
ADEA
claiming
age
discrimination must establish by a preponderance of the evidence that his
employer would not have taken the challenged employment action but for the
plaintiff=s age.
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177B78
(2009); see also Jones v. Okla. City Pub. Schs., 617 F.3d 1273, 1278 (10th
Cir. 2010)(AGross does not disturb longstanding Tenth Circuit precedent by
placing a heightened evidentiary requirement on ADEA plaintiffs to prove
that age was the sole cause of the adverse employment action.@).
A plaintiff may prove a violation of the ADEA either by direct
evidence of discrimination, or by following the burden-shifting framework
of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Khalik v.
United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012).
direct
evidence
of
discrimination,
the
court
Without proof of
must
consider
the
burden-shifting framework announced in McDonnell Douglas. Twigg v. Hawker
12
Beechcraft
Corp.,
framework,
a
659
plaintiff
F.3d
987,
998
must
first
(10th
establish
Cir.
a
2011).
prima
Under
facie
this
case
of
discrimination by showing (1) membership in a protected class and (2) an
adverse employment action (3) that took place under circumstances giving
rise to an inference of discrimination. E.E.O.C. v. PVNF, L.L.C., 487 F.3d
790, 800 (10th
case,
the
Cir. 2007). If a plaintiff can establish a prima facie
burden
shifts
to
the
employer
to
assert
a
legitimate
nondiscriminatory reason for its actions. If it can do so, the burden
shifts
back
to
the
plaintiff
to
introduce
evidence
that
the
stated
nondiscriminatory reason is merely a pretext for discriminatory intent.
Simmons v. Sykes Enters., 647 F.3d 943, 947 (10th Cir. 2011).
A.
The court shall engage in a brief discussion concerning whether
plaintiff
has
produced
any
direct
evidence
of
discrimination.
This
examination shall be limited because neither side has offered argument
about this issue.
Both sides proceeded directly to application of the
McDonnell Douglas test.
in
an
affidavit
discrimination.
repeated
that
Nevertheless, plaintiff did offer some evidence
could
conceivably
be
construed
as
direct
In his affidavit, plaintiff stated: ADoris Harms made
comments
about
employees=
ages.
.
.
.Harms
made
repeated
disparaging comments about old workers.@
In Tabor v. Hilti, Inc., 703 F.3d 1206, 1216 (10th Cir. 2013), the
Tenth Circuit explained when comments in the workplace constituted direct
evidence of discrimination:
Comments in the workplace that reflect personal bias do
not qualify as direct evidence of discrimination unless the
plaintiff shows the speaker had decisionmaking authority and
acted on his or her discriminatory beliefs. Ramsey [v. City &
13
Cnty. Of Denver], 907 F.2d [1004] at 1008 [(10th Cir. 1990)].
We also have explained that discriminatory statements do not
qualify as direct evidence if the context or timing of the
statements is not closely linked to the adverse decision.
Riggs v. AirTran Airways, Inc., 497 F.3d 1108, 1118 (10th
Cir.2007). Furthermore, if the content and context of a
statement allow it to be plausibly interpreted in two
different waysCone discriminatory and the other benignCthe
statement does not qualify as direct evidence. Id.
Plaintiff has failed to produce any evidence concerning the context
or timing of these statements.
Without such evidence, the court cannot
consider them as direct evidence.
We can, however, consider them as
circumstantial evidence.
B.
With this decision, the court turns its attention to the McDonnell
Douglas steps.
In order to make out a prima facie case of wrongful
discharge under the ADEA, a plaintiff must show: (1) he is within the
protected age group; (2) was doing satisfactory work; (3) was discharged;
and (4) was replaced by someone younger. See Rivera v. City & County of
Denver, 365 F.3d 912, 920 (10th
A>not onerous.=@
Cir. 2004). The burden at this stage is
Orr v. City of Albuquerque, 417 F.3d 1144, 1149 (10th Cir.
2005)(quoting Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253
(1981)).
The defendants do not challenge that plaintiff has satisfied three
of the requirements for a prima facie case but they do contend he has not
shown that he was performing satisfactory work.
plaintiff
need
only
Aintroduc[e]
some
evidence
To meet his burden,
of
good
performance.@
Denison v. Swaco Geolograph Co., 941 F.2d 1416, 1420 (10th Cir. 1991);
accord Paup v. Gear Products, Inc., 327 Fed App'x 100, 109 (10th
Cir.
2009)(A[A]t the prima facie stage Ms. Shuffitt need only produce >some
14
evidence of good performance= to carry her burden.@).
Plaintiff is not
required to show that his performance was flawless. See Denison, 941 F.2d
at 1421.
The court is persuaded that plaintiff has produced sufficient
evidence to meet his prima facie burden on the performance of satisfactory
work.
C.
The
court
legitimate,
next
considers
non-discriminatory
whether
reason
defendant
for
has
termination.
articulated
The
a
defendants
contend that plaintiff was fired due to poor performance. The defendants
assert
that:
(1)
plaintiff=s
department
submitted
incorrect
booking
reports; (2) one of plaintiff=s employees failed to copy Electromech=s
President on e-mails sent to TDG; (3) plaintiff=s department was involved
with funding issues that arose concerning financial transactions involving
one of Electromech=s operating units in Mexico; and (4) problems were
encountered with 401k loans for which plaintiff took responsibility.
There
is
little
dispute
that
poor
performance
is
a
legitimate,
non-discriminatory reason for termination. See Bertsch v. Overstock.com,
684 F.3d 1023, 1029 (10th Cir. 2012)(APoor performance, to be sure, it the
quintessential
Given
legitimate,
defendants=
response,
nondiscriminatory
the
court
must
reason
for
proceed
to
termination.@).
determine
if
plaintiff can establish pretext.
D.
A plaintiff can withstand summary judgment if he presents evidence
sufficient to raise a genuine dispute of material fact regarding whether
the defendant=s articulated reason for the adverse employment action is
pretextual. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
15
147B49
(2000).
APretext
exists
when
an
employer
represent its reasons for terminating an employee.@
Group LLC, 396 F.3d 1105, 1111 (10th Cir. 2005).
such
weaknesses,
contradictions
implausibilities,
in
the
employer=s
does
honestly
Miller v. Eby Realty
APretext can be shown by
inconsistencies,
proffered
not
legitimate
incoherencies,
reasons
for
or
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.@ Rivera, 365 F.3d at 925(internal quotation
APretext may also be shown by providing
marks and brackets omitted).
direct evidence discrediting the proffered rationale, or by showing that
the plaintiff was treated differently from others similarly situated.@
Jaramillo v. Adams Cnty. Sch. Dist. 14, 680 F.3d 1267, 1269 (10th Cir.
2012).
Mere
conjecture
that
the
employer=s
explanation
is
pretext
is
insufficient to defeat summary judgment. Satterlee v. Allen Press, Inc.,
443 F.Supp.2d 1236, 1245 (D.Kan.2006). In examining whether defendant=s
proffered reason is pretextual, the court must Alook at the facts as they
appear
to
the
person
making
the
decision
to
terminate
plaintiff.@
Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1231 (10th Cir.
2000). The court=s role is not to second guess an employer=s business
judgment.
Stover v. Martinez, 382 F.3d 1064, 1076 (10th Cir. 2004).
The defendants contend that after plaintiff was promoted to the
Director or Finance, Electromech executives, including President Harms,
began
noticing
employees.@
a
They
Alack
point
of
follow
out
that
through
in
and
early
an
2012
inability
there
were
to
manage
incorrect
booking errors and plaintiff acknowledged that the errors were his fault.
They also note that in February 2012 one of plaintiff=s employees had
16
failed to copy Ms. Harms on an e-mail after Ms. Harms had given direct
instructions to do so.
They next indicate that in May to June 2012 a
funding issue arose with some financial transactions involving one of
Electromech=s operating units in Mexico and a hedging endeavor involving
pesos.
They note that plaintiff took responsibility for these problems.
Finally, they point out that problems began to occur with the company=s
401k program in October 2012, and plaintiff again took responsibility for
these errors. They contend that plaintiff was terminated on January 2,
2013 because of these problems, not plaintiff=s age.
In further support
of their position that age was not a factor in the termination, the
defendants point out that plaintiff was terminated by the same individual
who promoted him only two years earlier.
Plaintiff counters that the defendants= alleged reasons for firing
him are riddled with Aweaknesses, implausibilities, inconsistencies, and
contradictions.@
Plaintiff notes that Ms. Harms said the following when
she terminated him: AYou have done everything I have asked of you.@
He
further states that his evaluations show that he had been a good employee.
He also suggests that he has presented evidence that he was a hard-working
employee who sometimes took the blame when other departments or employees
made mistakes.
He notes that several employees who made some of the
mistakes noted by the defendants continue to be employed at Electromech.
He points out that the matter involving the Apesos@ was a trivial matter
that has been Ablown up by the defendants@ as a pretext to fire him.
He
also notes that the evidence shows that the 401k problems were caused by
the Human Relations Department.
He indicates that he sought to have Ms.
Harms transfer the 401k responsibilities to the Finance Department so that
17
they could be fixed.
He indicates that he offered his resignation for
this problem because he thought he was Abetter situated than any of his
employees in his department to be out of work.@
He suggests that the
supervisor of the Human Relations Department was responsible for this
problem but he was not terminated.
The court needs to consider the following matters in determining
whether plaintiff has offered sufficient evidence of pretext to avoid
summary judgment: (1) the age-related comments of Ms. Harms; (2) the
disparate treatment contentions raised by plaintiff; (3) the alleged false
reasons offered by the defendants for plaintiff=s termination; (4) the
statistical
evidence
offered
by
plaintiff;
(5)
evidence
that
other
employees were terminated because of their age; and (6) the fact that the
same person who allegedly terminated plaintiff for age discrimination also
promoted him just two years prior to the termination.
Some of these
matters tilt in favor of the defendants while others provide some support
for plaintiff=s claim of age discrimination.
1. Age-Related Comments
In
his
affidavit,
plaintiff
has
indicated
that
Ms.
Harms,
the
individual that the defendants claim made the termination decision, made
repeated comments about employees= ages.
He further states that she made
Arepeated disparaging comments about old workers.@
There
is
little
question that discriminatory remarks may serve as evidence of pretext
because they indicate the presence of animus toward a protected group.
Nevertheless,
isolated
or
support such an inference.
ambiguous
comments
may
be
too
abstract
to
Stone v. Autoliv ASP, Inc., 210 F.3d 1132,
1140 (10th Cir. 2000).
18
Given the lack of specificity concerning these statements, the court
has some reservations in finding them sufficient to support a finding of
pretext.
The court notes that plaintiff has failed to indicate the exact
nature of the comments and the timing of those comments.
court
some
concern
discrimination.
about
whether
they
support
This causes the
an
inference
of
But, plaintiff has stated that they were made by the
individual who allegedly terminated him, Ms. Harms.
Accordingly, the
court does believe that these allegations provide some circumstantial
evidence of pretext.
2. False Reasons
Evidence that a defendant=s stated reason is false can support a
finding of pretext.
Kendrick, 220 F.3d at 1230. In determining whether
the proffered reason for a decision was false, this court Aexamine[s] the
facts as they appear to the person making the decision.@ Zamora v. Elite
Logistics,
Inc.,
478
F.3d
1160,
(10th
1166
Cir.
2007)(quotation
and
emphasis omitted). AThe relevant inquiry is not whether [the employer=s]
proffered reasons were wise, fair, or correct, but whether [it] honestly
believed
those
reasons
and
acted
in
good
faith
upon
those
beliefs.@
Rivera, 365 F.3d at 924-25(quotation omitted).
Plaintiff
has
provided
evidence
that
Ms.
Harms,
the
alleged
decision-maker here, told him the following when he was terminated: AYou
have done everything I have asked of you.@
did not make the decision to terminate him.
came from Acorporate.@
She further told him that she
She said that the decision
Plaintiff suggests that this evidence shows that
Ms. Harms gave false reasons for his termination.
this
evidence
shows
she
was
not
the
19
He also contends that
decision-maker.
The
defendants
correctly point out that Ms. Harms has denied making these statements in
his
deposition.
They
further
argue,
without
analysis,
that
these
statements do not demonstrate that the reasons that Ms. Harms provided for
termination were pretext and are not evidence that she did not make the
decision to terminate plaintiff.
The court believes that these statements do provide some evidence of
pretext.
believe
The first statement appears to indicate that Ms. Harms did not
that
plaintiff
had
engaged
in
poor
performance.
Thus,
the
statement suggests that the reasons she later offered in support of the
termination were not honestly held.
The court recognizes that Ms. Harms
has denied making this statement, but at this stage, the court must view
the evidence in the light most favorable to the plaintiff.
judgment
stage,
determinations.
it
is
not
the
court=s
province
and
make
credibility
Utah Lighthouse Ministry v. Found. for Apologetic Info. &
Rsch., 527 F.3d 1045, 1050 (10th Cir. 2008).
plaintiff
to
At the summary
Ms.
Harms
introduces
a
The conflicting testimony of
determination
of
credibility,
precluding entry of summary judgment, and also creates an inference that
defendants= proffered reason for terminating plaintiff's employment was
not based in fact and instead was merely pretextual.
The court also believes that the evidence shows that Ms. Harms was
not the decisionmaker.
Again, this view is based upon an examination of
the statement in the light most favorable to the plaintiff.
3. Disparate Treatment
A plaintiff may show pretext Aby providing evidence that he was
treated differently from other similarly-situated, non-protected employees
who violated work rules of comparable seriousness.@
20
Kendrick, 220 F.3d
at
1232.
pretext.
Trivial
See
differential
differences
id.
In
treatment
in
treatment
addition,
is
also
a
are
plaintiff=s
insufficient;
insufficient
mere
rather
to
speculation
a
plaintiff
show
of
must
produce Aspecific facts showing that there remains a genuine issue for
trial
and
evidence
significantly
claimed to be disputed.@
772 (10th
probative
as
to
any
[material]
fact
Branson v. Price River Coal Co., 853 F.2d 768,
Cir. 1988)(holding mere conjecture insufficient to support an
allegation of pretext); see also Doan v. Seagate Tech., Inc., 82 F.3d 974,
977
(10th
Cir.
1996)(holding
plaintiff=s
A[s]peculation
...
will
not
Plaintiff has offered several examples of disparate treatment.
He
suffice for evidence@).
has
noted
that
supervisors
Dave
Yannarella
and
Chad
departments that made mistakes but were not terminated.
Ohl
supervised
The court is not
persuaded that either of these examples provide sufficient evidence of
disparate treatment.
Chad Ohl supervised the HR Department that was accused of making
mistakes concerning the 401k program.
One of his employees was in fact
terminated for problems with this program.
Plaintiff was also allegedly
terminated for the problems with this program.
The fact that Chad Ohl was
not terminated might provide evidence of disparate treatment except that
plaintiff has indicated that Ohl=s age is Aearly to mid 40s.@
a
member
of
the
protected
class,
he
cannot
be
used
to
Since Ohl is
demonstrate
disparate treatment.
Plaintiff has failed to offer any additional evidence concerning
Dave Yannarella.
Plaintiff has failed to set forth Mr. Yannarella=s age
or that the offense that was committed by his Department was of comparable
21
seriousness to that involving the 401k problem.
Without that evidence,
the court cannot find that plaintiff has provided evidence that he was
treated differently from other similarly situated, non-protected employees
who violated work rules of comparable seriousness.
4. Statistical Evidence
Plaintiff has offered some statistical evidence that he believes
shows that the defendants discriminated against him based upon age.
He
states in his affidavit: “In the period after TDG assumed control of
Electromech, 77% of the employees who were terminated were over the age of
40 and only 23% were below the protected age.”
For statistical evidence to be relevant to the issue of pretext, the
evidence must show a significant disparity and eliminate nondiscriminatory
reasons for such disparity.
See Fallis v. Kerr-McGee Corp., 944 F.2d 743,
746 (10th Cir. 1991); Furr v. Seagate Technology, 82 F.3d 980, 986-87 (10th
Cir.
1996).
Plaintiff=s
statistical
nondiscriminatory reasons for disparity.
evidence
fails
to
control
for
While statistical evidence is an
acceptable means of proving discrimination, such A[s]tatistical evidence
which fails to properly take into account nondiscriminatory explanations
does not permit an inference of pretext.@ Doan, 82 F.3d at 979. Plaintiff=s
statistical evidence does not permit an inference of pretext because it
fails to eliminate nondiscriminatory explanations for disparate treatment.
Rea v. Martin Marietta Corp., 29 F.3d 1450, 1456 (10th Cir. 1994).
5. Evidence that Others were Terminated because of their Age
Plaintiff has also suggested that he is aware of Aat least three
employees in their mid 60s who were forced out because of their age and
who cannot comment on it because they signed severance agreements that did
22
not allow them to discuss the circumstances of their termination.@
defendants
contend
that
the
court
should
not
consider
this
The
evidence
because it constitutes hearsay.
The court must agree.
reliability.
Affidavits must contain certain indicia of
AUnsubstantiated allegations carry no probative weight in
summary judgment proceedings[; they] must be based on more than mere
speculation, conjecture, or surmise.@ Bones v. Honeywell Int=l, Inc., 366
F.3d 869, 875 (10th Cir. 2004)(citation omitted). Information presented in
the nonmovant=s affidavit must be Abased on personal knowledge and [must
set]
forth
facts
HewlettBPackard
that
Co.,
would
305
be
F.3d
admissible
1210,
1213
in
evidence.@
(10th
Cir.
Garrett
v.
2002)(citation
omitted)(quoting Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir.
1995)) (internal quotation marks omitted).
Plaintiff
employees
who
states
were
in
a
forced
conclusory
out
by
the
fashion
that
defendants
he
due
is
to
Aaware@
their
of
age.
However, he has not provided specific names of these employees and he has
not provided any information on how he became Aaware@ of this information.
As a result, these matters must be considered hearsay, Fed.R.Evid. 801(c),
and therefore not admissible evidence.
Fed.R.Cvi.P. 56(c)(1)(B).
6.
Same Individual Promoted and Fired Plaintiff within Short Period of
Time
The defendants have also suggested that the court should not infer
that
age
discrimination
was
a
factor
in
the
decision
to
terminate
plaintiff because the same individual, Ms. Harms, promoted plaintiff only
two years prior to the termination.
See Grady v. Affiliated Central,
Inc., 130 F.3d 553, 560 (2nd Cir. 1997)(where hirer and firer are same
individual and termination occurs in short time span, a strong inference
23
exists that discrimination was not determining factor in termination).
However, as noted previously, there is conflicting evidence concerning who
actually fired plaintiff.
Thus, the court cannot make the inference
suggested by the defendants.
V.
As discussed in this opinion, plaintiff has provided some evidence
that creates an inference of age discrimination and some evidence that
does
not.
After
a
thorough
review
of
the
entirety
of
the
evidence
presented, the court finds that plaintiff has presented evidence that is
sufficient
to
create
a
triable
issue
as
to
whether
the
defendants=
proffered reason for terminating him was a pretext for age discrimination.
Accordingly, defendants= motion for summary judgment shall be denied.
IT IS THEREFORE ORDERED that defendants= motion for summary judgment
(Doc. # 57) be hereby denied.
IT IS SO ORDERED.
Dated this_1ST day of May, 2015, at Topeka, Kansas.
S/RICHARD D. ROGERS
Richard D. Rogers
United States District Judge
24
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?