McCurren v. Dr Pepper/Seven Up, Inc. et al
Filing
69
ORDER granting 61 motion for summary judgment. Signed on 8/20/18 by District Judge M. Douglas Harpool. (View, Pat)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
ROBERT H. MCCURREN,
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
DR. PEPPER/SEVEN UP, INC., et al.,
Defendants.
Case No. 2:17-CV-04020-MDH
ORDER
Before the Court is Defendants’ Motion for Summary Judgment (Doc. 61). The Court has
carefully considered the motion and related legal suggestions. As set forth herein, Defendants’
Motion for Summary Judgment is granted.
BACKGROUND
Plaintiff Robert H. McCurren, III was born on September 12, 1950. He began working for
Dr. Pepper in 1974. In 1980, Plaintiff began working with defendant Matson, and they worked
closely together from 1980 until 2010. Beginning in 2010, through 2015, Matson was employed
as Plaintiff’s indirect supervisor. Plaintiff was the oldest person in the Jefferson City branch of
Dr. Pepper at the time of his termination.
The structure and names of Dr. Pepper entities underwent changes during Plaintiff’s career.
Defendants state ABC was the entity that employed Plaintiff and Matson at the time of his
termination. Plaintiff claims he was terminated on Dr. Pepper letterhead and at the direction of
Dr. Pepper employees. Plaintiff further argues the zero tolerance policy for which he was allegedly
terminated was from the Dr. Pepper handbook.
1
Plaintiff’s final title at ABC was Branch Manager. In that position, Plaintiff oversaw and
managed eleven different branches. As Branch Manager, Plaintiff reported directly to Dan
Schmidt (“Schmidt”) and indirectly to Matson, who was Schmidt’s direct supervisor. At the time
of Plaintiff’s termination, Matson was 63 years old and was the Regional Vice President for the
Mid-South Region of ABC. Matson remains in that position. Plaintiff’s annual performance
evaluations were conducted by Schmidt and there were no concerns about the annual performance
evaluations for the last two years Plaintiff was evaluated.
As Branch Manager, Plaintiff’s direct reports included: Janet Chinn (admin), Jim
Robertson (vendor tech), Rick Ryals (vendor tech), Ron Endecott (district manager), Paul Annable
(district manager), Mike Armstrong (district manager), Justin Hutto, and Chris Hilke (district
manager). Plaintiff conducted performance reviews of his direct reports. He was also responsible
for disciplining or coaching his direct reports if they needed disciplining or coaching.
From time to time, ABC held sales meetings in its Jefferson City, Missouri office.
Distributors and other ABC employees, including Plaintiff and Matson, were invited to those
meetings. The purpose of the meetings was to identify the state of business and any plans to
improve or change the business. After the meetings concluded and work was finished for the day,
the attendees occasionally had dinner in the warehouse attached to the back of the Jefferson City
office. Some distributors brought beer to the post-meeting dinners, and the beer was available for
anyone to drink (so long as they did not drink and drive). ABC also provides alcohol at events
such as the employee Christmas party. ABC allows its employees to purchase alcohol on a
company credit card when employees are traveling on business, and after business has ended for
the day. It also allows its employees to consume alcohol when entertaining customers.
2
Plaintiff understood that he was responsible for reviewing and understanding the
company’s policies. He was also responsible for making sure his direct reports reviewed and
acknowledged those policies. The Dr. Pepper Snapple Group Code of Conduct was one of the
policies Plaintiff was responsible for reviewing and understanding. The Code of Conduct states:
Compliance starts with you, and you are responsible for:
•
•
Understanding and complying with our Code and related policies.
Familiarizing yourself with and following the laws and regulations that apply
to our business and your job.
• Acting with the highest standards of ethics and integrity.
• Reporting violations and misconduct.
The Code of Conduct further states the company is “committed to creating a positive and diverse
workplace that is free from discrimination and harassment.” Plaintiff understood that was the
policy of the company. Plaintiff understood failure to comply with the Code of Conduct may lead
to disciplinary action, including termination for cause.
To assist the company in enforcing the Code of Conduct and investigating any violations
of the Code (or of related policies), the company provides an “anonymous Speaking Up! hotline,”
which employees can call “any time 24 hours a day, 365 days a year.” Employees may also submit
anonymously to the Speaking Up! website. The Dr. Pepper Snapple Group Employee Handbook
contained additional applicable policies, which Plaintiff acknowledged receiving and reviewing.
From the Employee Handbook, Plaintiff understood the company’s policy was to ensure equal
employment opportunities were given to people without regard to age, among other protected
categories.
The Employee Handbook also contained the company’s policy on a Drug-Free Workplace,
which states that “alcohol misuse by employees subject[s] the Company to unacceptable risks of
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workplace accidents or other failures that would undermine the Company’s ability to operate safely
and efficiently.” The Drug-Free Workplace policy further states:
The Company strictly prohibits the use, sale, possession, distribution, dispensation,
manufacture, or transfer of illegal drugs or alcohol on the Company property or
other worksites where employees may be assigned or elsewhere during work hours.
. . . Additionally, no agent, employee or contractor shall report to work while under
the influence of illegal drugs or alcohol. Persons violating this policy will be subject
to disciplinary action, including termination for a first offense.
The zero-tolerance alcohol policy, as written, applied to all employees.
Plaintiff also received a copy of the Health, Safety and Work Rules for Hazelwood and
Jefferson City Locations (“Safety Rules”). Under the Safety Rules, “[p]ossession of alcohol or
non-prescribed controlled substances during work time” and “[r]eporting to work under the
influence of intoxicants, narcotics, and/or drugs not medically required” may subject an employee
to “immediate suspension, without compensation, pending investigation for termination.”
In August 2015, a Dr. Pepper distributor that covered territory in northwest Arkansas
suddenly went out of business. Because Matson’s region was the closest to Arkansas, Matson was
asked to put together a plan to service the customers of that area, preferably before the upcoming
Labor Day shopping period, which was key for the company. Matson asked Plaintiff to go down
to that region and help cover the territory until a more permanent solution could be implemented.
Plaintiff and a rotating team of other ABC employees worked out of a warehouse in Poplar Bluff,
Missouri, which allowed them to reach the Arkansas territory previously covered by the thendefunct distributor. Plaintiff and his team handled product sales, loading product onto trucks, and
delivering product from the Poplar Bluff warehouse to customers in the Arkansas territory. The
warehouse where the Poplar Bluff team worked was owned by Kohlfeld Distributing, a beer and
beverage distributor.
4
The names and ages of employees who worked at Poplar Bluff include the following (ages
listed as of November 1, 2015):
Employee Name
Age of employee
Annable, Paul E
Robertson, James D
Hutto, Justin H
Armstrong, Michael J
Hilke, Christopher S
Endecott, Ronald R
McCurren, Robert H
Cross, Loy W
Ryals, Richard L
Gandlmayr, Matt
Robinson, Brad
Cunningham, Ed
Fox, David
Nickles, Lee
57
52
48
59
44
63
65
64
56
25
40
49
46
49
Matson was in Poplar Bluff for about the first week and a half of operations and then left
near the end of the week after Labor Day 2015. Matson traveled back to Poplar Bluff an additional
two or three times.
Between August and November 2015, Plaintiff spent about seventy-five percent of his
work time in Poplar Bluff. Although Plaintiff claims he was not in charge of the operation, and
that Matson was in charge of the project, many of the other employees who helped on this project
were Plaintiff’s direct reports. In Poplar Bluff, Plaintiff and the other employees typically started
at the warehouse at about 4:30 a.m. and ran routes to get Dr. Pepper product to customers. They
typically returned to the warehouse around 3:30 or 4:00 in the afternoon.
Toward the end of the day, Plaintiff and the other employees would build pallets (i.e., load
product onto pallets for delivery the next day). Plaintiff admits building pallets is work, but states
that it is not part of his job and he was not required to do so. Plaintiff stated he decided when his
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day was done and when he built pallets it was only to help the others because it was hard work,
but he was not required to do so. While building pallets toward the end of the day in the Poplar
Bluff warehouse, Plaintiff sometimes drank beer. Plaintiff states the end of his work day was not
the same as others. At least two employees, who reported directly to Plaintiff, have stated they
witnessed having to move Plaintiff’s beer in order to load a pallet. One of Plaintiff’s direct reports
observed Plaintiff visibly impaired at the warehouse on more than one occasion, and witnessed
Plaintiff spill beer on the warehouse floor. Plaintiff denies this happened. One of Plaintiff’s direct
reports, Robertson, stated that Plaintiff’s workplace drinking was frustrating and that he expected
a management level employee like Plaintiff to be the leader in the warehouse. However, Robertson
never complained to Plaintiff and failed to complain to Plaintiff’s supervisor. Plaintiff admits he
also brought a bottle of Crown Royal to the warehouse, but argues he brought it to warehouse
manager Steve Faulkner at his request.
Plaintiff claims other employees also drank beer. Plaintiff admits Schmidt did not consume
alcohol in Poplar Bluff. However, Plaintiff argues Matson knew the distributor was giving beer
to his employees working in the Poplar Bluff area and that Matson observed employees drinking
in an office in Poplar Bluff. There is no evidence Matson consumed alcohol in Poplar Bluff.
Plaintiff’s testimony states, “I don’t know if Bob drank….” Plaintiff does not allege Matson was
drinking while working in Poplar Bluff. However, Plaintiff states other employees drank alcohol
in Poplar Bluff and were not terminated.
On October 19, 2015, an anonymous caller placed a call to Dr. Pepper’s Speaking Up
line. The caller reported that Plaintiff “has been working under the influence of alcohol.” The caller
reported observing the conduct in issue, that the conduct was an ongoing issue, and had most
recently occurred on October 6, 2015. The details of the call were recorded in a Global Compliance
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Alertline System Report (the “Speaking Up Complaint”), which Jennifer Maupin (then-HR
Manager for Dr. Pepper Snapple Group) received in mid-October 2015. After receiving the
Speaking Up Complaint, Maupin spoke with Plaintiff’s immediate supervisor, Dan Schmidt.
Schmidt set up a phone call between Plaintiff, Maupin, and Schmidt. During that call, Maupin
informed Plaintiff that the company had received a Speaking Up complaint alleging Plaintiff had
been drinking alcohol during working hours. Maupin also informed Plaintiff that she and Schmidt
would be speaking to people about the alcohol allegations, and asked Plaintiff to please let them
do their job. Plaintiff responded “go ahead, talk to whoever you want to. I wouldn’t do that.”1
Following the call with Plaintiff, Schmidt gave Maupin names of individuals who would
have worked in Poplar Bluff with Plaintiff. Maupin, Schmidt, and/or Ryan Smith (Maupin’s
supervisor) ultimately interviewed nine individuals about the Speaking Up Complaint. They are,
in chronological order of interview: Chris Hilke (interviewed 10/28/2015), Paul Annable
(interviewed 10/28/2015), Mike Armstrong (interviewed 10/28/2015), Matt Gandlmayr
(interviewed 10/29/2015), Wayne Cross (interviewed 10/29/2015), Brad Robinson (interviewed
10/29/2015), Lee Nichols (interviewed 10/29/2015), Justin Hutto (interviewed 10/29/2015), and
Rick Ryals (interviewed 10/29/2015). Matson did not participate in those interviews or the
subsequent investigation. Four of the nine interviewed employees—Armstrong, Gandlmayr,
Hutto, and Ryals—reported observing Plaintiff drink alcohol at the Poplar Bluff warehouse during
work hours. In his interview, Mike Armstrong reported Plaintiff would start drinking beer when
there was about a half hour of pallet building left. Armstrong also identified a perception that
Plaintiff felt “untouchable.” In his interview, Matt Gandlmayr reported observing Plaintiff
drinking alcohol at the Poplar Bluff warehouse on at least three occasions. Gandlmayr further
1
Plaintiff states it is “controverted” as to what he meant by “I wouldn’t do that.”
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indicated that Plaintiff offered Gandlmayr a beer once, but Gandlmayr thought it was a “test” and
turned it down. In his interview, Justin Hutto reported that Plaintiff’s drinking had gotten
progressively worse over the last year and a half. Hutto also reported Plaintiff almost “clipped”
someone on a sidewalk while driving under the influence, and had to pull over to have someone
else take over driving. In his interview, Rick Ryals reported that Plaintiff’s drinking had increased
over the past couple of years, and that he saw Plaintiff drink during the work day at least eight
times in the Poplar Bluff warehouse. Ryals was concerned that Plaintiff’s drinking had “crossed
the line.”
After interviewing the nine employee witnesses, Maupin held a formal interview with
Plaintiff on November 2, 2015. Maupin and HR Manager Wendy Tullis both took notes during
that interview, which Maupin later turned into a summary. During the interview, Plaintiff
answered “yes” when asked if he drank alcohol in the Poplar Bluff warehouse. Specifically,
Plaintiff admitted to drinking in the Poplar Bluff warehouse “When we were loading trucks.”
Defendants argue Plaintiff had previously denied drinking in the warehouse when stating “I
wouldn’t do that.” Plaintiff disputes what was meant by “I wouldn’t do that.” Plaintiff argues he
meant he wouldn’t interfere with the investigation. Regardless, Plaintiff admits to drinking both
beer and Crown Royal in the warehouse.
During the interview process, Plaintiff claimed that other ABC employees consumed
alcohol in the warehouse. Specifically, he stated that “[t]he District Managers were there, some
were drinking.” When asked to identify which District Managers were drinking, Plaintiff named
Chris Hilke and Steve Faulkner (who was not an ABC employee), then said “I didn’t take notes.”
District Managers manage a territory, but do not manage any people. Through the course
of the investigation, the Company had difficulty determining which District Managers consumed
8
alcohol, but ultimately determined not to discipline those people because their manager, and the
highest ranking employee at the site on many occasions (Plaintiff) was openly condoning and
participating in it, and even offering it to other employees. The Company felt it would be difficult
to discharge those employees given the example their manager had set. The Company opted,
instead, to hold a meeting after Plaintiff’s termination to reinforce the policy so it was clear to the
employees, going forward, that violation of the policy would not be tolerated.
In early November 2015, Maupin met with her direct supervisor, Ryan Smith (HR Director
at Dr Pepper Snapple Group), and Smith’s supervisor, Michael Studdard (VP of HR), to discuss
the results of the investigation into Plaintiff’s drinking on the job. During that conversation,
Maupin, Smith, and Studdard jointly decided to recommend terminating Plaintiff’s employment.
Plaintiff also claims that this group also met with an attorney named Elizabeth. There was no
particular leader in that decision-making process; rather, it was something the three of them arrived
at collaboratively. Maupin, Smith, and Studdard felt termination was warranted because, as a
branch manager who was responsible for all the operations and employees for his area, Plaintiff
should have had a higher standard and should have been upholding policy and enforcing it among
his subordinates rather than violating it. These decision makers felt that Plaintiff, as a supervisor
and manager at this location, should be held to a higher standard.
Once Maupin, Smith, and Studdard decided to recommend terminating Plaintiff’s
employment, someone called Matson to deliver the recommendation. The group believed the
recommendation was just that—a recommendation, with which the business side of the company
“can either agree or disagree” and reach its own conclusion. Matson, however, did not view the
call as a recommendation. In his mind, the “decision had been made” by the “corporate HR” group
to proceed with terminating Plaintiff’s employment. Matson did not believe he had the ability to
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change that decision. Believing the termination decision was final, Matson felt it was his
professional responsibility as the Regional Vice President to deliver the termination decision to
Plaintiff. Matson also felt a personal obligation to communicate the termination decision to
Plaintiff because he valued his longstanding personal relationship with Plaintiff, which dated back
to at least 1980, and felt that “if that message had to be communicated . . . it was on me to do that.”
Matson also thought challenging the termination may possibly have a negative impact on himself.
Maupin then drafted a termination letter for Matson’s signature. On November 12, 2015,
Maupin and Matson met with Plaintiff to inform Plaintiff his employment was being terminated.
For Matson, because of his longstanding relationship with Plaintiff, that day was “probably one of
the most difficult, painful days of my career.” ABC asked Paul Annable, then a District Manager
and one of Plaintiff’s (former) direct reports, to fill Plaintiff’s position on an interim basis. At the
time he took over as interim Branch Manager in November 2015, Annable was 57 years old.
Annable had been with the company since 1980. Annable was later hired as the permanent Branch
Manager. After Plaintiff’s termination, Dan Schmidt and Kay Slover, a Human Resources
Manager located in St. Louis, met with Plaintiff’s direct reports to review the policy prohibiting
drinking on the job (among other things), to ensure they all understood that conduct was prohibited
and would likely result in termination. Plaintiff was the only employee terminated for violation
of the zero-tolerance alcohol policy because he was upper level management. Plaintiff was the
senior manager on site.
In this lawsuit, Plaintiff claims his employment was terminated because of his age. Plaintiff
does not have any complaints about the way he was treated at ABC prior to the termination of his
employment. During the approximately 41.5 years Plaintiff worked for Dr. Pepper, or for ABC,
he does not recall witnessing any specific act of age discrimination against anyone other than
10
himself. When asked at his deposition to identify the reasons he believed his termination was
related to age, Plaintiff identified only two: (1) other people also drank at the warehouse and those
individuals were not fired; and (2) “Maybe because of my pay grade.” Plaintiff was not sure about
the second reason, qualifying it with “I don’t – I don’t know that, but maybe.” Plaintiff has not
identified any other reasons why he believes his termination was related to age.
Plaintiff states he had reached his maximum in pay that would be allowed and Defendants
could not give him salary increases, but only annual one-time merit bonuses. Plaintiff states he
discussed his retirement specifically with Matson, and with “Dr. Pepper,” on many occasions and
was preparing to retire at age 70. Plaintiff also makes the general allegations that employees of
Dr. Pepper made fun of older employees, but does not allege it was any of his supervisors or the
decision makers involved in his termination. From the record, it appears the “jokes” made about
older employees were made by warehouse employees, employees that Plaintiff supervised.
Finally, Plaintiff states alcohol consumption was allowed at social events, and even paid
for, by Dr. Pepper for customers and suppliers. Plaintiff states employees drank at sales meetings
and used those opportunities to build relationships with and between distributors and employees
of Dr. Pepper.
STANDARD OF REVIEW
Summary judgment is proper if, viewing the record in the light most favorable to the nonmoving party, there is no genuine dispute as to any material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp., v. Catrett, 477 U.S. 317, 32223, 106 S. Ct. 2548 (1986). The moving party is entitled to summary judgment as a matter of law
if they can establish there is “no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247, 106 S. Ct. 2505, 2510, (1986). Once the moving party has established a
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properly supported motion for summary judgment, the non-moving party cannot rest on allegations
or denials but must set forth specific facts showing that there is a genuine issue for trial. Id. at 248.
A question of material fact is not required to be resolved conclusively in favor of the party
asserting its existence. Rather, all that is required is sufficient evidence supporting the factual
dispute that would require a jury to resolve the differing versions of truth at trial. Id. at 248-249.
In addition, “while employment discrimination cases are often fact intensive and dependent on
nuance in the workplace, they are not immune from summary judgment.” Shirrell v. Saint Francis
Med. Ctr., 24 F. Supp. 3d 851, 855-56 (E.D. Mo. 2014); citing Fercello v. County of Ramsey, 612
F.3d 1069, 1077 (8th Cir. 2010); citing Berg v. Norand Corp., 169 F.3d 1140, 1144 (8th Cir. 1999).
In fact, there is no separate summary judgment standard for employment discrimination cases, and
“it remains a useful pretrial tool to determine whether or not any case, including one alleging
discrimination, merits a trial.” Id.
DISCUSSION
The parties appear to agree on the standard to apply to Plaintiff’s claims under the MHRA.
Here, “plaintiff can prove discrimination by showing [that] age or any protected characteristic[ ]
was a contributing factor for the employment action regardless if other factors also exist.” Reed
v. Kansas City Missouri Sch. Dist., 504 S.W.3d 235, 240 (Mo. Ct. App. 2016). Plaintiff must
show: 1) he was terminated; 2) that his age was a contributing factor in the termination; and 3) that
he sustained damage as a result. See Daugherty v. City of Maryland Heights, 231 S.W.3d 814,
818–19 (Mo. 2007), overturned due to legislative action.2
2
“The MHRA amendments have only been in effect for months, but a division of this Court and
most of the Missouri circuit courts have determined the amendments cannot be applied
retrospectively.” Hurley v. Vendtech-SGI, LLC, No. 16-01222-CV-W-ODS, 2018 WL 736057, at
*4 (W.D. Mo. Feb. 6, 2018). “The MHRA was amended, effective August 28, 2017. There are
two amendments to the MHRA…(1) the modification of the causation standard, and (2) the
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Defendants argue that they are entitled to summary judgment because Plaintiff cannot
provide evidence that age was a contributing factor in the decision to terminate his employment.
Defendants state it is undisputed that Plaintiff was the senior most employee and supervisor of the
Poplar Bluff warehouse. Further, Plaintiff was subject to a policy against drinking alcohol while
working, and violated that policy by drinking beer while, at a minimum, other employees were
building pallets in the warehouse. In addition, other employees drank at the warehouse, and
Plaintiff, as their supervisor, was aware of the onsite drinking. An anonymous caller reported
Plaintiff’s policy violation to a tip line and the complaint was investigated. Plaintiff admitted
drinking at the warehouse during working hours, but claims others were also found to be drinking.
Dr. Pepper terminated Plaintiff, as the supervisor of the warehouse, for this violation. Other
employees who were found to have violated the policy were not terminated. Dr. Pepper felt
Plaintiff, as the manager, had openly condoned and participated in drinking, and had offered
alcohol to employees during the workday. As a result, based on the actions of Plaintiff, as the
manager, they determined not to terminate the other employees for this conduct. Instead, after
Plaintiff’s termination, a meeting was held with all employees reinforcing the company’s policies
and that future violations would not be tolerated.
For the most part, the facts are undisputed in this case. Plaintiff admits during his 41.5
years he worked for Dr. Pepper, or for ABC, he did not recall any acts of age discrimination against
himself or others. He further admits that he was the senior manager located at the warehouse and
that he himself violated the alcohol policy. An anonymous complaint was made to the company’s
hotline, and as a result an investigation occurred in which Plaintiff and nine of his co-workers were
legislature's instruction to courts to apply a burden-shifting framework when analyzing a summary
judgment motion.” Id. at *3. Plaintiff filed his lawsuit on December 26, 2016 in Cole County,
Missouri.
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interviewed. Numerous employees who were interviewed reported seeing Plaintiff drink regularly
during work hours. Plaintiff does not dispute that the complaint was made and an investigation
was conducted.
Plaintiff bases his claim that age contributed to his termination on the undisputed fact that
other employees also drank at the warehouse and were not fired. However, Plaintiff provides no
evidence that the other employees were similarly situated to Plaintiff. For example it is undisputed
that Plaintiff was the most senior employee at the warehouse. Plaintiff was a supervisor, and as a
result, responsible for other warehouse employees’ conduct. Plaintiff’s violation of the policy, at
a minimum, set an example for the other employees working at the warehouse or, arguably,
condoned the drinking at the warehouse under his supervision.
Plaintiff also argues that he was fired “maybe because of his pay grade.” (emphasis added).
However, again, Plaintiff has provided no evidence to support this allegation. Defendants have
provided undisputed evidence that Plaintiff was the supervisor responsible for overseeing the
warehouse and that he violated the alcohol policy while working in that position. While other
employees were found to have violated the policy, no other employees were supervisors at the
warehouse. Plaintiff argues he was “held to a different standard.” However, Plaintiff’s role as a
supervisor is different than the roles held by other employees. Furthermore, the fact Plaintiff was
held to a different standard is not evidence of age discrimination. Plaintiff argues he was held to
a different standard, but has offered no evidence to support a claim that his age contributed to his
termination, let alone the “different standard” he felt was applied to him.
Plaintiff also claims that defendant Bob Matson questioned Plaintiff about his retirement
and that this is evidence of discrimination.
However, the Court finds that taking these
conversations in the context of the undisputed facts they do not support Plaintiff’s claims. It is
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undisputed that Matson and Plaintiff were friends and had worked together at Dr. Pepper since
1980. They worked closely together for approximately 30 years, from 1980 until 2010. From
2010 to 2015, Matson was Plaintiff’s indirect supervisor. At the time of Plaintiff’s termination,
his direct supervisor was Dan Schmidt, not Matson. Matson was 63 years old at the time of
Plaintiff’s termination. Plaintiff claims Matson’s conversations with him regarding retirement
were discriminatory. However, Plaintiff alleges nothing more than the fact that he had discussed
retiring at age 70 with Matson, and that they had retirement discussions. Plaintiff does not make
any claims that Matson said anything derogatory regarding Plaintiff or his age based on their
retirement conversations. The Court finds the mere fact that Matson discussed retirement with
Plaintiff, after both employees had worked together for 30 years, admittedly were friends, and both
were in their 60s does not on its face, without more evidence, represent any discriminatory animus
upon which Plaintiff could support his claim based on age discrimination.
Finally, Plaintiff’s Petition and deposition testimony indirectly cite to the fact that Paul
Annable replaced him as further evidence to support his claim. Plaintiff does not provide argument
to support this claim in the summary judgment briefing. However, Annable had also been with
the company since 1980 at the time he was promoted, he was 57 years old, and was a District
Manager that had reported directly to Plaintiff. After Plaintiff’s termination, Annable was asked
to fill Plaintiff’s position on a temporary basis, and then was later hired as the permanent branch
manager. Again, this alone is not sufficient evidence to survive summary judgment.
For the reasons set forth herein, the Court finds Plaintiff has failed to establish that age was
a contributing factor to his termination, and finds summary judgment in favor of Defendants is
justified.
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CONCLUSION
For the reasons set forth herein, the Court hereby GRANTS Defendants’ Motion for
Summary Judgment. (Doc. 61).
IT IS SO ORDERED.
DATED:
August 20, 2018
/s/ Douglas Harpool______________
DOUGLAS HARPOOL
UNITED STATES DISTRICT JUDGE
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