Nance v. Cotton Electric Cooperative
Filing
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ORDER granting in part and denying in part 15 defendant's motion for summary judgment. Specifically, the Court finds that: (1) defendant is not entitled to summary judgment as to plaintiff's ADEA claim; and (2) plaintiff is denied compensatory damages to the extent that plaintiff seeks recovery for pain and suffering or emotional distress (as more fully set out in order). Signed by Honorable Vicki Miles-LaGrange on 3/26/2012. (ks)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
BOBBY LLOYD NANCE,
Plaintiff,
v.
COTTON ELECTRIC COOPERATIVE,
Defendant.
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Case No. CIV-11-763-M
ORDER
This case is scheduled for trial on the Court’s April 2012 trial docket.
Before the Court is defendant’s Motion for Summary Judgment, filed January 31, 2012. On
March 2, 2012, plaintiff filed his response, and on March 7, 2012, defendant filed its reply. Based
upon the parties’ submissions, the Court makes its determination.
I.
Introduction1
Defendant is a cooperative that provides electric service to over 21,000 meters in eight
counties of Southwest Oklahoma. Since December 1, 2004, Warren Langford (“Langford”) has been
the CEO for defendant. Defendant’s line operation is divided into two areas: Western Area and
Eastern Area. The Western Area constitutes approximately two-thirds of defendant’s line operation.
Langford estimates that 95% of defendant’s construction activities originate in the Western Area.
Defendant’s Operations Superintendent, Ed Kelley (“Kelley”), oversaw construction and
maintenance of both the Western Area and the Eastern Area. According to plaintiff, at some point
in time, defendant added two to three more operations superintendents. From approximately 2001
until July 15, 2010, the Western Area had two operations superintendents – one who oversaw line
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The facts in this introduction are set forth in the light most favorable to plaintiff.
construction and one who oversaw line maintenance. Currently, the Eastern Area has one operations
superintendent.
Plaintiff began working for defendant in 1976. Plaintiff alleges that he received favorable
evaluations during his tenure with defendant and never had a blemish on his record. Except for
approximately 1 ½ to three years in the 1990s, plaintiff was assigned to the Maintenance division
for his entire career with defendant. Plaintiff alleges that his duties in Maintenance included duties
and responsibilities of the Construction division. On November 1, 2001, plaintiff became the
Western Area Operations Superintendent over Line Maintenance.
Brian Jones (“Jones”), defendant’s employee who is 13 years younger than plaintiff, spent
his entire career with defendant. In 1981, Jones was hired as an Apprentice Powerline Tech in
Construction. Jones received two promotions while remaining in the Construction division. In
1995, Jones was promoted to Construction Foreman, and in 1998, he was moved to Construction
Crew Chief. On March 1, 2002, Jones became the Western Area Operations Superintendent over
Line Construction.
Historically, linemen were trained and segregated to be either construction linemen or
maintenance linemen. However, over approximately the last five years, defendant has emphasized
cross-training in its apprentice lineman program. Graduates of the program were trained in both
construction and maintenance work. There is no longer a distinction in the training of new
journeyman linemen; they are now proficient in both line construction and maintenance.
According to plaintiff, line maintenance is more technical than line construction.
Purportedly, line maintenance requires knowledge and skill of both maintenance and construction,
whereas construction does not necessarily require the combination of both skills. Plaintiff disputes
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that one operations superintendent could easily do the work of both superintendents; plaintiff asserts
that a superintendent would need a wide background of line operations in order to adequately
supervise both Eastern and Western areas.
In 2010, plaintiff and Jones were operations superintendents in the Western Area. Langford
decided to reassign plaintiff and that Jones would remain as the Operations Superintendent; plaintiff
was demoted to the position of Engineer Service Rep. Langford asserts that he chose the person who
possessed the broader range of construction skills. When Langford advised plaintiff that he was
being reassigned, Langford told plaintiff that defendant was “restructuring” and that it was “oversupervised.” Plaintiff alleges that Langford told him the decision had nothing to do with defendant
saving money.
In late 2010, defendant’s Vice President of Operations, Steve Lyons, retired. Mike Ottinger,
a person in his mid-30s who purportedly lacked experience for the position, filled the position of
Vice President of Operations. Defendant did not post the position. Plaintiff alleges he would have
applied had the position been posted.
Plaintiff testified that he believes defendant demoted two other employees, Kelley and Larry
Max Phillips (“Phillips”), due to age. Kelley’s reassignment occurred between 1994 and 2000, when
John Sheppard was defendant’s CEO. Langford played no role in Kelley’s reassignment; however,
Langford reassigned Phillips.
Plaintiff asserts that he was more qualified for the position than Jones because plaintiff has
experience in both maintenance and construction, plaintiff has more education, and plaintiff received
Employee of the Year while he was Superintendent of Line Maintenance. Plaintiff now brings this
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action for age discrimination in violation of the Age Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. §§ 621, et seq.
II.
Standard
“Summary judgment is appropriate if the record shows that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter of law. The moving
party is entitled to summary judgment where the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party. When applying this standard, [the Court] examines
the record and reasonable inferences drawn therefrom in the light most favorable to the non-moving
party.” 19 Solid Waste Dep’t Mechs. v. City of Albuquerque, 156 F.3d 1068, 1071-72 (10th Cir.
1998) (internal citations and quotations omitted).
“Only disputes over facts that might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment. Furthermore, the non-movant has a burden
of doing more than simply showing there is some metaphysical doubt as to the material facts.
Rather, the relevant inquiry is whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Neustrom v. Union Pac. R.R. Co., 156 F.3d 1057, 1066 (10th Cir. 1998) (internal citations and
quotations omitted).
III.
Discussion
Pursuant to the ADEA, it is unlawful for an employer to discriminate against “any individual
with respect to his compensation, terms, conditions, or privileges of employment, because of such
individual’s age.” 29 U.S.C. § 623(a)(1). The United States Supreme Court held:
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a plaintiff bringing a disparate-treatment claim pursuant to the ADEA
must prove, by a preponderance of the evidence, that age was the
“but-for” cause of the challenged adverse employment action. The
burden of persuasion does not shift to the employer to show that it
would have taken the action regardless of age, even when a plaintiff
has produced some evidence that age was one motivating factor in
that decision.
Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2352 (2009).
When assessing the burden of proof in ADEA claims, the Tenth Circuit has consistently
applied the McDonnell Douglas2 burden-shifting analysis applicable to Title VII claims. See, e.g.,
Riggs v. AirTran Airways, Inc., 497 F.3d 1108, 1114-15 (10th Cir. 2007).3 According to that
analysis, plaintiff has the burden of establishing a prima facie case of employment discrimination
based on his age; if he does so, the defendant must articulate a legitimate, non-discriminatory reason
for its actions, and, if it does so, plaintiff then has the burden of proving that such reason was a mere
pretext for discrimination. McDonnell Douglas, 411 U.S. at 802-04. Once a non-discriminatory
reason has been advanced, to avoid summary judgment at this stage, plaintiff must offer evidence
sufficient to create a genuine issue of material fact with regard to whether the articulated reason for
the adverse employment decision is pretextual; unsupported conclusory allegations are insufficient,
as the facts must be supported by affidavits, deposition transcripts, or specific exhibits incorporated
therein. Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526, 530 (10th Cir. 1994).
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McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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In Gross, the Supreme Court did not discuss the effect of its holding on the McDonnell
Douglas burden-shifting analysis in an ADEA case, but observed in a footnote that it “has not
definitely decided whether the evidentiary framework of McDonnell Douglas . . . utilized in Title
VII cases is appropriate in the ADEA context.” 129 S. Ct. at 2349 n.2. However, since Gross,
the Tenth Circuit has continued to apply the McDonnell Douglas analysis. See Phillips v. The
Pepsi Bottling Grp., 373 F. App’x. 896, 899 (10th Cir. 2010); Reeder v. Wasatch Co. Sch. Dist.,
359 F. App’x. 920, 923 (10th Cir. 2009).
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A.
Prima Facie Case
Defendant contends that plaintiff fails to establish a prima facie case under the ADEA
because plaintiff’s replacement was also over the age of 40. Plaintiff asserts that his replacement
does not need to be under the age of 40 to constitute an ADEA claim.
The fact that one person in the protected class has lost out to another
person in the protected class is thus irrelevant, so long as he has lost
out because of his age. Or to put the point more concretely, there can
be no greater inference of age discrimination (as opposed to “40 or
over” discrimination) when a 40-year-old is replaced by a 39-year-old
than when a 56-year-old is replaced by a 40-year-old. Because it
lacks probative value, the fact that an ADEA plaintiff was replaced
by someone outside the protected class is not a proper element of the
McDonnell Douglas prima facie case.
O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312 (1996). “Because the ADEA prohibits
discrimination on the basis of age and not class membership, the fact that a replacement is
substantially younger than the plaintiff is a far more reliable indicator of age discrimination than is
the fact that the plaintiff was replaced by someone outside the protected class.” Id. at 313.
Thus, to establish a prima facie case for age discrimination, plaintiff must show that he was
(1) within the protected age group – i.e. age 40 or older; (2) doing satisfactory work qualified for the
position; (3) discharged or adversely affected by defendant’s employment decision; and (4) replaced
by a substantially younger person. See Jones v. Unisys Corp., 54 F.3d 624, 630 (10th Cir. 1995); see
also O’Connor, 517 U.S. 308, 312-13.
In the case at bar, defendant only contends that plaintiff has not established the fourth
element of a prima facie age discrimination claim; defendant concedes for purposes of summary
judgment that plaintiff satisfies the first three elements. Having carefully reviewed the parties’
submissions, and viewing the evidence in the light most favorable to plaintiff and viewing all
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reasonable inferences in plaintiff’s favor, the Court finds that there is a genuine issue of material fact
as to whether plaintiff was replaced by a substantially younger person. Specifically, a rational jury
could find that plaintiff was replaced by a substantially younger person because Jones is 13 years
younger than plaintiff.
Accordingly, the Court finds that, for purposes of summary judgment, plaintiff has
established a prima facie case for age discrimination.
B.
Legitimate, Non-Discriminatory Reason
As stated above, once the plaintiff establishes a prima facie case for age discrimination, the
burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for its action.
McDonnell Douglas, 411 U.S. at 802-03; Simmons v. Skyes Enter., Inc., 647 F.3d 943, 947 (10th Cir.
2011). “This burden is one of production, not persuasion; it ‘can involve no credibility assessment.’”
Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142 (quoting St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 509 (1993)). Therefore, a defendant satisfies this burden by offering admissible
evidence sufficient for the trier of fact to conclude defendant made the adverse employment decision
for a legitimate, non-discriminatory reason. See id. at 142-43.
Here, the Court finds that defendant has provided legitimate, non-discriminatory reasons for
consolidating the operations superintendent positions and for selecting Jones, rather than plaintiff,
for the position. Defendant asserts that its legitimate, non-discriminatory reasons to consolidate the
operations superintendent positions were that: it implemented cross training programs for
construction and maintenance and one superintendent could handle the workload due to the crosstrained lineman and reduced amount of supervisory work. Further, defendant asserts that its
legitimate, non-discriminatory reasons for selecting Jones was that: a person versed in only line
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maintenance will not possess the necessary construction skills for the position; approximately 95%
of defendant’s construction activities originate in the Western Area; and Jones has significantly more
line construction experience than plaintiff.
Accordingly, the Court finds that defendant has satisfied its burden to produce a legitimate,
non-discriminatory reason for consolidating the operations superintendent positions and for selecting
Jones for the position.
C.
Pretext
Pretext “requires a showing that the tendered reason for the employment decision was not
the genuine motivating reason, but rather was a disingenuous or sham reason.” McKnight v.
Kimberly Clark Corp., 149 F.3d 1125, 1129 (10th Cir. 1998) (citing Reynolds v. School Dist. No.
1 Denver, 69 F.3d 1523, 1535 (10th Cir. 1995)). The “relevant inquiry is not whether [the
employer’s] proffered reasons were wise, fair or correct, but whether [the employer] honestly
believed those reasons and acted in good faith upon those beliefs.” Stover v. Martinez, 382 F.3d
1064, 1076 (10th Cir. 2004). To that end, the Tenth Circuit has stated that:
[a] plaintiff produces sufficient evidence of pretext when [he or] she
shows such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered
legitimate reasons for 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.
When evaluating the sufficiency [of] this evidence, we look to several
factors, including the strength of the employee’s prima facie case, the
probative value of the proof that the employer’s explanation is false,
and any other evidence that supports the employer’s case and that
properly may be considered on a motion for summary judgment.
Jones v. Okla. City Pub. Sch., 617 F.3d 1273, 1281 (10th Cir. 2010) (internal citations and quotations
omitted).
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Having carefully reviewed the parties’ submissions, and viewing the evidence in the light
most favorable to plaintiff and viewing all reasonable inferences in plaintiff’s favor, the Court finds
that plaintiff has submitted sufficient evidence to create a genuine issue as to whether defendant’s
proffered reasons were pretextual. Based upon admissible evidence regarding Phillip’s reassignment
and the substantially younger employee who replaced him, a rational jury could infer that age is the
motivating factor in defendant’s decisions to reassign its employees. Furthermore, a rational jury
could find that plaintiff’s prima facie case is strong as: (1) plaintiff is over the age of 40; (2) both
parties agree that plaintiff was qualified for the position; (3) defendant did not retain plaintiff for the
superintendent position; and (4) as discussed in Part III.A, plaintiff was replaced by a substantially
younger employee. Thus, plaintiff has produced sufficient evidence that shows weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the defendant’s proffered
legitimate reasons to reassign plaintiff and retain Jones as the Operations Superintendent.
Accordingly, the Court finds that plaintiff has submitted sufficient evidence for a rational jury
to infer that defendant’s proffered legitimate reasons were pretextual.
D,
Compensatory Damages
Defendant contends that plaintiff’s compensatory damages are not recoverable under the
ADEA. The ADEA provides, in pertinent part:
Amounts owing to a person as a result of a violation of this chapter
shall be deemed to be unpaid minimum wages or unpaid overtime
compensation for purposes of [the Fair Labor Standards Act]:
Provided, That liquidated damages shall be payable only in cases of
willful violations of this Act. In any action brought to enforce this
chapter the court shall have jurisdiction to grant such legal or
equitable relief as may be appropriate to effectuate the purposes of
this chapter, including without limitation judgments compelling
employment, reinstatement or promotion, or enforcing the liability for
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amounts deemed to be unpaid minimum wages or unpaid overtime
compensation under this section.
29 U.S.C. § 626(b) (emphasis in original). However, “the ADEA does not permit separate recovery
of compensatory damages for pain and suffering or emotional distress,” C.I.R. v. Schleier, 515 U.S.
323, 326 (1995).
Here, plaintiff’s request for compensatory damages does not explicitly seek recovery for pain
and suffering or emotional distress. Rather, plaintiff seeks “compensatory damages pursuant to
ADEA 29 U.S.C. §§ 621 et seq. In an amount to be determined by the jury at the time of trial.”
Plaintiff’s Complaint [docket no. 1] at 5.
Accordingly, the Court finds that defendant is entitled to summary judgment only to the
extent that plaintiff’s request for compensatory damages seeks recovery for pain and suffering or
emotional distress.
IV.
Conclusion
For the reasons set forth above, the Court GRANTS IN PART and DENIES IN PART
defendant’s Motion for Summary Judgment [docket no. 15]. Specifically, the Court finds that: (1)
defendant is not entitled to summary judgment as to plaintiff’s ADEA claim; and (2) plaintiff is
denied compensatory damages to the extent that plaintiff seeks recovery for pain and suffering or
emotional distress.
IT IS SO ORDERED this 26th day of March, 2012.
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