Dudley v. Lake Ozark Fire Protection District et al

Filing 49

ORDER granting 39 motion for summary judgment Signed on 5/17/10 by District Judge Nanette K. Laughrey. (James, Carrie)

IN THE UNITED STATES DISTRICT COURT FOR THE W E S T E R N DISTRICT OF MISSOURI C E N T R A L DIVISION T O N Y D. DUDLEY, P l a in tif f , v. L A K E OZARK FIRE PROTECTION DISTRICT, et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) ) )

C as e No. 09-4086-CV-C-NKL

ORDER P lain tiff Tony D. Dudley ("Dudley") alleges that Defendants Lake Ozark Fire P ro tec tio n District, Everett Jarrett, Charlie Kempf, Ed Dobson, Matthew Birdsley, and Jim E lk in discriminated against Dudley because of his age. Dudley alleges violations of the Age D is c rim in a tio n in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., and the Missouri H u m a n Rights Act ("MHRA"), Mo. Rev. Stat. §§ 213.010 et seq. He claims that he was d e m o te d because of his age, subjected to retaliation, and subjected to a hostile work e n v iro n m e n t; he also alleges a conspiracy to violate civil rights under 42 U.S.C. § 1983. B e f o re the Court is Defendants' Motion for Summary Judgment [Doc. # 39]. For the f o llo w in g reasons, the motion is granted.

I.

F a c tu a l Background 1 D e f en d a n t Lake Ozark Fire Protection District ("District") operates an ambulance

s e rv i c e . The service is licensed by the Missouri Department of Health and Senior Services, B u re a u of Emergency Medical Services. The District is governed by a three-member Board of Directors whose members are e le c te d by the public. The Board can only conduct business by a quorum of at least two m e m b e r s . No employee can be employed or discharged by less than two Board members. D e f e n d a n t Everett Jarrett ("Jarrett") is eighty-three years old and has served on the Board s in c e January 2004. Defendant Charlie Kempf II ("Kempf") has served on the Board since A p ril 2008. Defendant Ed Dobson ("Dobson") has served on the Board since approximately Ja n u a ry 2009. Defendant Jim Elkin ("Elkin") served on the Board from 2001 until April 2 0 0 8 . Jacque Jeffords ("Jeffords"), 80 years old, served on the Board from 1990 until 2006. D e f en d a n t Matthew Birdsley ("Birdsley") was employed by the District from 1998 to 2005. He was elected to the Board and served on it from April 2006 to September 2008, a t which point he resigned. Birdsley was hired as the District's Assistant Fire Chief in O c to b e r 2008.

The following facts are drawn from the supported statements of undisputed facts set forth in the parties' briefs. All facts are considered in the light most favorable to Dudley, the nonmovant. 2

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F r o m approximately June 2003 to March 2008, Gary Woodson ("Woodson") was the F ire Chief for the District. After that, Mark Amsinger ("Amsinger") was promoted to Fire C h ie f . The District hired Dudley in May 2001 to be its Emergency Medical Services (" E M S " ) Supervisor. Woodson was Dudley's supervisor. Though his job title changed at v a rio u s times during his employment, his duties remained the same. He was responsible for e s t a b l is h in g the District's ambulance service, and had complete oversight for anything re latin g to that service once it became operational. These duties included assisting in d ra f tin g the protocols, policies and procedures for the service. Certain medications administered to patients of the District's ambulance service are deemed "controlled substances" under state and federal law. Missouri's controlled substance la w s are administered by the Missouri Department of Health and Senior Services, Bureau of N a rc o ti c s and Dangerous Drugs ("BNDD"). In order to stock and administer controlled s u b s ta n c e s , the District was required to obtain a controlled substance registration with BNDD a n d the federal Drug Enforcement Agency. The District's registration became effective in J u ly 2001. Without the registration, the ambulance service could not properly care for p a tie n ts , as it would be unable to administer certain medications as necessary. The Board d e le g a te d to Dudley responsibility for ensuring compliance with controlled substance r e q u ir e m e n t s, including inventory, records, and security requirements.

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E n tities which are registered to handle controlled substances are required to comply w ith certain laws, specifically Chapter 195 of the Missouri Revised Statutes and its ac co m p an yin g regulations. One such requirement was to conduct both an initial inventory a n d annual inventories of controlled substances. Another is to keep a permanent written, typ e w r itte n , or printed copy of such inventories. A registrant's failure to comply with these re q u ire m e n ts may result in warnings or censure in lieu of other disciplinary action. B N D D may inspect the premises of a controlled substance registrant to determine c o m p lia n c e with controlled substance requirements. In April 2003, BNDD inspected the D is tric t and found violations. The violations included failure to conduct an initial inventory, w h ich Dudley admits he did not perform as required. Other violations included failure to m a in ta in the requisite annual inventories. Dudley testified that he had not performed the re q u isite annual inventories between 2001 and the 2003 inspection because he was not able to locate the appropriate forms. Dudley also testified that he was and is not familiar with the BNDD regulations. He h a d not read them at the time of the 2003 inspection. He has never read BNDD regulations c o n c e rn in g annual inventory requirements. The BNDD inspector explained the requirements to Dudley during the 2003 inspection, providing forms for completing the inventory. In a May 2003 letter in response to the BNDD inspection report, Dudley advised that " th e violations . . . were . . . back in correct form." On August 7, 2003, BNDD issued a " L e t te r of Censure" to the District as a result of the inspection violations. The Letter of

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C e n su re informed the District that future violations could result in further disciplinary action. T h e Letter of Censure required the District to respond within fifteen days of receipt of the L e tte r, including a "copy of the District's inventory of controlled substances on-hand." D u d le y responded on August 23, 2003, stating that the District would "maintain quarterly and a n n u a l inventory report," attaching three pages purporting to be the District's inventory for M a y through July 2003. Dudley testified that he did not think the Letter of Censure was a " b ig deal;" he did not know what it meant to receive a Letter of Censure, and did not in v e s tig a te any impact it could have on the District's registration. Dudley informed Chief Woodson of the 2003 inspection and that he "had been cited" b y the BNDD for records violations. Dudley told Chief Woodson that Dudley was going to f o llo w the recommendations of the BNDD, and that he was going to keep all records on his c o m p u te r. Dudley did not inform the Board of the 2003 inspection or Letter of Censure. In September 2004, BNDD conducted a second inspection of the District's c o m p lian c e with controlled substance requirements. That inspection found a failure to m a in t a in the requisite annual inventory, though Dudley had been doing monthly inventories. H e completed the annual inventory with the inspector, who explained the requirements to D u d le y for a second time. BNDD issued a second Letter of Censure on January 18, 2005. D u d le y did not think the second letter was a "big deal," and took no steps to determine what im p a c t it might have on the District's registration. Dudley does not recall informing the B o a rd about the 2004 inspection and violation or the 2005 Letter of Censure.

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In 2008, BNDD again inspected the District, finding four violations, including the f a il u re to maintain an annual inventory. Dudley testified that he maintained an annual in v e n to ry for 2005 through 2008 on his office computer, which had "crashed" in the summer o f 2007, losing the inventory information. The District did not keep the hard drive from the c o m p u te r and there is no evidence that Dudley had hard copies. Though Dudley later found a backup of inventory information that he maintained between 2003 and 2005, according to th e BNDD inspection report, Dudley admitted to the BNDD inspector that he had never c o n d u c te d an annual inventory, and Dudley could not produce annual inventories at the time o f the inspection. Other violations included failure to maintain complete controlled

s u b s ta n c e records and inadequate security to detect and prevent drug diversion. In a report, written on February 7, 2008, Dudley informed the Board that the District " p a ss e d " the BNDD inspection "with no problem." This statement was based on the in s p e c to r telling Dudley that the inspector did not believe the violations would be much of a problem, though Dudley had seen the violations listed on the report. On March 31, 2008, B N D D sent a letter to Dr. Richard Kimball, the medical director for the District's ambulance s e rv ic e , describing the history of the District's violations through the 2008 inspection. The le tte r requested an informal conference to discuss the findings and to give the District an o p p o rtu n ity to present information for consideration in the discipline process. At an April 3, 2008, Board meeting, Dudley reported that the Department of Health a n d Senior Services had sent a letter regarding the 2008 inspection. At that meeting, Dudley

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d id not inform the Board that the District's controlled substance registration was at risk of d is c ip lin e or share the contents of the March 31 letter. On April 16, 2008, Dudley informed th e Board that BNDD had found a few violations. Dudley did not share the March 31 letter w ith the Board until Birdsley requested it. D u d ley first shared with the Board specific details regarding the District's n o n c o m p lia n c e with controlled substance requirements at a May 7, 2008, meeting. Dudley d id not tell the Board that the inspection findings were in error ­ for example, because he had d o n e the inventories but they were lost on his computer. O n May 15, 2008, the Board voted unanimously to terminate Dudley from his position a s EMS supervisor. At that time, Jarrett, Kempf and Birdsley were the Board members; they a ll believed the District's BNDD registration was in jeopardy. Kempf submitted an affidavit s a yin g that he did not think of or consider Dudley's age, has never made comments regarding h is age, and has never received a complaint from Dudley concerning discrimination. B ird s le y says in an affidavit that he never heard of Dudley complaining about discrimination. T h e minutes of the Board meeting state that Dudley was terminated for failing to notify the B o a rd of the series of BNDD violations and the resulting risk to the District's controlled s u b s ta n c e registration. At the same meeting, the Board offered Dudley a position as a firefighter/paramedic, w h ich he accepted. Vince Loyd was named interim EMS supervisor after Dudley's

te rm in a tio n from the position; while Loyd is younger than Dudley, the evidence submitted

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d o e s not indicate how much younger. After Dudley's demotion, additional BNDD violations b y Dudley ­ including leaving controlled substances in his unlocked, unsecured office ­ were d isco v ere d by Loyd; Dudley does not contest Defendant's supported assertion that the Board w o u ld have demoted Dudley as EMS supervisor if they had known of such violations. C h ie f Woodson was aware that Dudley was maintaining an annual inventory "on the d e p a rtm e n t computer from 2003, 2005-2008." Chief Woodson was aware of the "basic a d e q u ac y" of the inventory Dudley kept on his computer. During the 2008 inspection, Chief W o o d s o n was aware that Dudley's computer had lost all of his annual inventory reports. The B o a rd never asked Chief Woodson about whether Dudley had been keeping an annual i n v e n t o r y on his computer. Chief Woodson was not the fire chief at the time of Dudley's d e m o t io n . In June 2008, Dr. Kimball, Chief Amsinger, and Birdsley met with BNDD re p re se n ta tiv e s to discuss the violations. In October 2008, the District entered into a S e ttle m e n t Agreement with BNDD, under which the District's controlled substance r e g is tr a tio n was placed on probation for three years. T h e re is evidence that Birdsley made comments during Dudley's employment c o n c ern in g replacing "old" employees. Chief Woodson states that Birdsley had stated " n u m e r o u s times" ­ before and after being elected to the Board by the public in 2006 ­ that B ird sley intended to replace all "old farts." Dudley testified that Birdsley stated, in Dudley's p re s e n c e , that Birdsley was "going to go get rid of all of [the] old people, old farts, and ...

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re p la c e them with his cronies." Dudley testified that he was told by Birdsley that he intended to get rid of the "old chiefs" so that the District's pension fund could grow more quickly. J e f fo rd s submitted an affidavit stating that Birdsley "worked with younger members of the U n io n to replace older Board Members and subsequently Chief Woodson and ... Dudley s o le ly because of age;" Jeffords comments that "this effort resulted in my replacement and th a t of Jim Elkin to control the Board of Directors." Jeffords heard Birdsley comment on re p la c in g older people in the District with younger members of the Union. Chief Woodson states that, in January and February 2008, he experienced a hostile w o r k environment at the hands of Birdsley. Chief Woodson says that he was "terminated d e f ac to " by the Board and replaced with Chief Amsinger, who is much younger than Chief W o o d s o n . Chief Woodson states that he complained "many times of the age discrimination tre a tm e n t of ... Birdsley to ... Jeffords ... and ... Elkin," telling them "that the Union was g o in g to replace older members of the Fire Department." The Board that replaced Chief W o o d s o n was different ­ with the exception of Birdsley ­ from the Board that demoted D u d l e y. T h e re is evidence that union issues played a role in Board decisions. In addition to th e union comments stated above, Chief Woodson opines that, after Kempf was elected by th e public to the Board in April 2008, "the Board was controlled by the majority of younger u n io n members." After Kempf joined the Board, eighty-year-old Jarrett was also on the th re e -m e m b e r elected Board. Though Dudley states that he reported discrimination to Chief

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W o o d s o n when he was the chief, Dudley did not report any alleged discrimination or agere late d comments to the Board, because he thought "they were all union people" and would n o t have paid attention to it. Though Jeffords stated that Birdsley wanted younger union m e m b e r s to be in charge, he explained, "the primary cause was to increase wages of the f ire m e n of ... the District and less emphasis on equipment purchase." Dudley testified that B ird sle y told Dudley that, because he was one of the "longest employees" with the District, h i s retirement benefits would cost the District more money than "new" employees. D u d le y states several claims for relief in his Complaint. Count I alleges age

d isc rim in a tio n under the ADEA and the MHRA. Count II alleges conspiracy to violate civil rig h ts of older employees under 42 U.S.C. § 1983. Count III alleges hostile work

en v iro n m e n t relating to age under the ADEA and MHRA. Count IV alleges retaliatory d is c h a rg e under the ADEA and MHRA. II. D is c u s s io n S um m ary judgment is proper "if the pleadings, depositions, answers to interrogatories, a n d admissions on file, together with the affidavits, if any, show that there is no genuine is s u e as to any material fact and that the moving party is entitled to a judgment as a matter o f law." Fed. R. Civ. P. 56(c). The moving party bears the burden of demonstrating there is n o genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U .S. 242, 256 (1 9 8 6 ). If the moving party satisfies its burden, Rule 56(e) requires the nonmoving party to resp o n d by submitting evidentiary materials that designate "specific facts showing that there

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is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 5 7 4 , 587 (1986). When considering a motion for summary judgment, the Court must s c ru tin iz e the evidence in the light most favorable to the nonmoving party and the nonmoving p a rty "must be given the benefit of all reasonable inferences." Mirax Chem. Prods. Corp. v. F ir s t Interstate Commercial Corp., 950 F.2d 566, 569 (8th Cir. 1991). Summary judgment is not proper if the evidence is such that a reasonable jury could return a verdict for the n o n m o v in g party. Liberty Lobby, Inc., 477 U.S. at 248. A. A g e Discrimination To prevail on his age

B o th the ADEA and MHRA prohibit age discrimination.

d is c rim in a tio n claim under the ADEA, Dudley must show by a preponderance of the e v id e n c e that he would not have been demoted "but-for" Defendants' discriminatory motive. G r o s s v. FBL Fin. Servs., 129 S. Ct. 2343, 2351 (2009) (addressing ADEA claim). The M H R A is "less demanding," requiring plaintiffs to show that age was a "contributing factor" in an employer's adverse employment action. See Daugherty v. City of Maryland Heights, 2 3 1 S.W.3d 814, 820 (Mo. 2007); Hill v. Ford Motor Co., 277 S.W.3d 659 (Mo. 2009). C o u rts considering summary judgment on MHRA claims "must determine whether the record s h o w s two plausible, but contradictory, accounts of the essential facts and the `genuine issue' in the case is real, not merely argumentative, imaginary, or frivolous." Daugherty v. City of M a ry la n d Heights, 231 S.W.3d 814, 820 (Mo. 2007) (citation omitted). Under both the A D E A and MHRA, plaintiffs must establish their claims by a preponderance of the evidence.

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R ile y v. Lance, Inc., 518 F.3d 996, 1000 (8th Cir. 2008). Dudley cannot meet his burden u n d e r either statute. D u d le y has presented evidence that he and Woodson were terminated or demoted, and re p la c e d with "younger" employees. He has also shown that Birdsley expressed a strong d e sire and intent to remove older workers from the District. This, however, is insufficient u n d e r the ADEA to show that he would not have been terminated but for discrimination. W ith o u t evidence that the employee who replaced Dudley was significantly younger, or that th e employee was less qualified than Dudley, the fact that he was replaced with a younger w o rk e r gives rise to only a limited inference of discrimination. See Ramlet v. E.F. Johnson C o ., 507 F.3d 1149, 1153-54 (8th Cir. 2007) (finding that a one- and five- year age difference b e tw e en the plaintiff and his replacements were insufficient to establish a prima facie ADEA c a se ). Further, there is no evidence that Birdsley's comments influenced the decisions of the o th e r two Board members who voted to demote Dudley. The Board that voted unanimously to demote Dudley included not just Birdsley, but a ls o Jarrett and Kempf. Dudley has not submitted evidence that Jarrett or Kempf acted in a d is c rim in a to ry manner or were nothing more than Birdsley's puppets. There is no evidence th a t either of them expressed any age related comments or took any age related actions. W h ile Dudley, Woodson and Jeffords claim Birdsley controlled the Board, they point to no f a cts supporting this conclusion. The Board was elected by the public and there is no e v id e n c e that Birdsley controlled that process. On this record, it would be speculative to find

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th a t either Jarrett or Kempf were not independent decisionmakers. See Elnashar v. Speedway S u p e r A m e r ic a , LLC, 484 F.3d 1046, 1057 (8th Cir. 2007) (finding that discriminatory s ta te m e n ts by one of multiple decisionmakers did not show that a proffered reason for an a d v e rs e employment decision was pretext for discrimination where the comments were not c o n n e c ted to decision-making process). Thus, even without Birdsley's vote, Dudley would s till have been terminated. In addition, there is substantial evidence that Dudley, over the course of several years a n d with repeated warnings and guidance from BNDD, failed to meet his responsibilities w ith regard to controlled substance regulations.2 Dudley was the EMS supervisor who was c o m p lete ly responsible for all aspects of ambulance service and BNDD compliance. He did n o t read BNDD regulations or call the Letters of Censure to the Board's attention; he did not ta k e steps to assure that appropriate forms were completed prior to the April 2003 inspection ­ which occurred approximately twenty months after ambulance service commenced. D u d le y does not dispute that he did not prepare a 2004 annual inventory as required. Even if the computer lost copies of other inventories, he failed to keep printed copies as required. D u d le y did not take steps to determine the impact of the first two Letters of Censure, thinking th e y were not a big deal. After the third inspection, despite having been informed of four v io la tio n s , he told the Board that the District had passed the inspection with no problem. He
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It is not clear whether the burden shifting analysis of McDonnell Douglas is applicable to ADEA cases. See, Baker v. Silver Oak Senior Living Management Co., 581 F.3d 684, 688 (8th Cir. 2009). Nonetheless, the Court has addressed the District's stated reason for the termination because it is relevant under both analytical frameworks. 13

did not inform the Board immediately that the BNDD was considering discipline in April 2 0 0 8 . He did not inform the Board that the inspection findings were in error ­ for example, b e c a u se he had done inventories but they were lost on his computer. Because of certain v io latio n s of BNDD requirements, BNDD censured and disciplined the District ­ its c o n tro lle d substance registration was placed on probation for three years. Even if Dudley b e lie v e d that BNDD was wrong, the Board members ­ the decisionmakers ­ believed that th e District's controlled substance regulation could be disciplined or possibly revoked. See B e ttn e r v. Administrative Review Board, 539 F.3d 613, 622 (7th Cir. 2008) ("Our inquiry . . . is limited to the belief of the decisionmakers, whether or not that belief is reasonable."). T h e ample evidence that Dudley was not adequately performing his job substantially u n d e rm in e s any inference that he was terminated because of his age. See, e.g., Erenberg v. M e th o d is t Hosp., 357 F.3d 787, 793 (8th Cir. 2004) (affirming summary judgment where an e m p lo ye e failed to prove a prima facie case of age discrimination in that she failed to show th a t she was qualified for a position where deficiencies in her work had been identified on a regular basis). Thus, Dudley cannot demonstrate that Defendants' stated reason for d e m o tin g him was pretext for discrimination, such that a trier of fact could infer from the f a ls ity of the explanation that Defendants are trying to hide discrimination. See Reeves v. S a n d e rs o n Plumbing Products Inc., 120 S. Ct. 2097, 2108 (2000); St. Mary's Honor Ctr. v. H ic k s, 509 U.S. 502, 511 (1993) ("rejection of the defendant's proffered reasons will permit th e trier of fact to infer the ultimate fact of intentional discrimination").

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It is true that the MHRA has a lower evidentiary burden than the ADEA. To succeed o n an MHRA claim, Dudley need only show that age was a contributing factor in the Board's d e c is io n to terminate him. However, even that standard requires a causal link between an ad v erse action and discrimination. Given the fact that two members of a three person board v o te d to terminate Dudley and there is no evidence that they were influenced in any way by D u d ley's age, he cannot avoid summary judgment even on the more generous evidentiary s ta n d a rd of the MHRA. B. R e ta lia tio n

N o r can Dudley establish a case of retaliation under the ADEA or MHRA. Plaintiffs a lle g in g retaliation under the ADEA must show that they engaged in protected activity (such a s complaining of discrimination), that their employers took adverse employment action, and th a t there was a causal connection between the activity and the adverse action. Betz v. C h e rto ff, 578 F.3d 929, 937 (8th Cir. 2009). Similarly, retaliation claims under the MHRA r e q u i re a showing that plaintiffs complained of discrimination, that their employers took a d v e rs e action, and there was a causal relationship between the complaint and action. C o o p e r v. Albacore Holdings, Inc., 204 S.W.3d 238, 245 (Mo. App. Ct. 2006). Dudley points to no evidence linking protected conduct by him with the Board's d e c is io n . Chief Woodson did say that Chief Woodson complained to Birdsley, Jeffords, and E lk in of age discrimination and that Chief Woodson was later terminated. But that does not a m o u n t to Dudley's engaging in protected activity. There is no evidence that Dudley

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c o m p la in e d to Birdsley, or that Birdsley knew of any complaints. Moreover, there is no e v id e n c e that other Board members ­ Board members who were not on the Board when C h ie f Woodson was terminated ­ knew of any protected activity by Dudley. See Chukwurah v . Stop & Shop Supermarket Co. LLC, 354 Fed. Appx. 492, 495-96 (2d Cir. 2009) (finding th a t an employee failed to make out a prima facie case of retaliation where he did not show th a t the decisionmaker was aware of the protected activity); Dickerson v. Walgreen Co., 345 F e d . Appx. 178, 180 (7th Cir. 2009) (indicating that employees cannot make out cases of re ta lia tio n by referring to the treatment of other employees who were not subject to decisions b y the same decisionmakers). Dudley cannot show that he engaged in protected activity, m u c h less a link between such activity and adverse employment action. Even if he could s h o w such a link, as with his discrimination claim, he has not presented evidence indicating th a t the legitimate non-discriminatory reason cited by the Board for his demotion was p re te x tu a l. As such, Dudley cannot establish a retaliation claim. C. H o stile Work Environment

D u d le y also cannot show that he was subject to an actionable hostile work e n v iro n m e n t. To establish hostile work environment ADEA claims, plaintiffs must show that they were subjected to unwelcome harassment based on their ages which affected a term o r condition of employment, and that their employers should have known of the harassment a n d failed to take proper action. Peterson v. Scott County, 406 F.3d 515, 523-24 (8th Cir. 2 0 0 5 ). Like the ADEA, hostile work environment claims under the MHRA require a

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s h o w in g that a protected employee was subject to unwelcome harassment in which protected s ta tu s was a contributing factor and which affected a term or condition of employment. Hill v . Ford Motor Co., 277 S.W.3d 659, 666 (Mo. 2009) (discussing sexual harassment). In considering hostile work environment claims, courts look to whether a reasonable p e rso n would find the environment hostile and abusive, including whether conduct "is p h ysic a lly threatening or humiliating, or a mere offensive utterance, and whether it u n re a so n a b ly interferes with an employee's work performance. Peterson v. Scott County, 4 0 6 F.3d 515, 524 (8th Cir. 2005) (citation omitted); see also Hill, 277 S.W.3d at 666 (d is c u s s in g sexual harassment). Simple teasing, offhand comments, and sporadic use of a b u siv e language do not amount to discriminatory changes in employment terms and c o n d itio n s amounting to actionable harassment. Peterson, 406 F.3d at 524. The harassment m u s t have caused (ADEA) or contributed to (MHRA) the change in terms and conditions of e m p lo ym e n t. See Peterson, 406 F.3d at 524; Gilliland v. Missouri Athletic Club, 273 S.W.3d 5 1 6 , 521 (Mo. 2009) (en banc). D u d le y does not present evidence of severe or pervasive harassment which had an im p a c t on a term or condition of his employment. There is evidence that Birdsley made c o m m e n t s relating to age. There is evidence that Woodson believes he was discriminated a g a in s t. Dudley does not offer evidence showing that the environment was physically th re a te n in g or humiliating, or unreasonably interfered with his work performance. See P e te rs o n , 406 F.3d at 524 (finding that repeated references to "old ladies," a comment that

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it was hard to train old ladies, and comments that women were incapable of performing job d u ties, while offensive, did not reach the level of harassment); Elnashar, 484 F.3d at 1057 (f in d in g that stray comments and an incident of unwanted touching did not amount to a s u f f ic ie n tly severe or pervasive condition which would support a hostile work environment c la im ). His hostile work environment claims must be denied. D. S e c tio n 1983

D u d le y alleges that Defendants' conduct violated § 1983 in that they conspired to v io late his civil rights by discriminating against him on the basis of his age. Courts c o n sid e rin g § 1983 claims based on conduct constituting an alleged ADEA violation have f o u n d the claims preempted by the comprehensive statutory scheme for addressing alleged ag e discrimination provided by the ADEA. Ahlmeyer v. Nevada Sys. of Higher Ed., 555 F .3 d 1051, 1056 (9th Cir. 2009) ("No circuit to consider the issue of whether the ADEA p re c lu d e s § 1983 claims has . . . allowed a § 1983 claim based on the same conduct to go f o rw a rd ." (discussing cases)). While the Eighth Circuit has not yet addressed the issue, even if Dudley's § 1983 c la im is not preempted, it does not survive summary judgment. To prevail under § 1983 b a s e d on discriminatory conduct, Dudley must show intentional discrimination. King v. H a r d e s ty , 517 F.3d 1049, 1057 (8th Cir. 2008). As discussed above, Dudley has not p re se n ted evidence from which a reasonable juror could conclude that Defendants in te n tio n a lly discriminated against him.

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III.

C o n c lu s io n A cco rd in g ly, it is hereby ORDERED that Defendants' Motion for Summary Judgment

[ D o c . # 39] is GRANTED.

s / Nanette K. Laughrey NANETTE K. LAUGHREY U n ite d States District Judge D a te d : May 17, 2010 Jef fe rson City, Missouri

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