Ballas et al v. Chickashaw Nation Industries Inc et al
Filing
105
ORDER granting 70 Motion for Summary Judgment; granting 71 Motion for Summary Judgment. Signed by Honorable Timothy D. DeGiusti on 6/23/2016. (mb)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
TOM G. BALLAS and
RON C. PERKINS,
Plaintiffs,
vs.
CHICKASAW NATION
INDUSTRIES, INC., et al.,
Defendants.
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Case No. CIV-13-1094-D
ORDER
Plaintiffs Tom Ballas (Ballas) and Ron Perkins (Perkins) bring claims under
the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq.,
alleging they were wrongfully terminated because of their age as part of a reduction
in force (RIF). Before the Court are Defendants’ Motions for Summary Judgment
[Doc. Nos. 70, 71], to which Plaintiffs have responded [Doc. Nos. 86, 90]. The matter
is fully briefed and at issue.
BACKGROUND
CNI Aviation, LLC is a subsidiary of Chickasaw Nation Industries, Inc. In
2013, it contracted with the Federal Aviation Administration to support activities at
the Mike Monroney Aeronautical Center located in Oklahoma City, Oklahoma. CNI
Aviation subcontracted with Enterprise Engineering Services, whereby Enterprise
would provide additional employees to assist the FAA. Ballas was hired by CNI
Aviation to the position of “Electrical Engineer Level 6.” Perkins was hired by
Enterprise to the position of “Engineering Technician Level 6.” Plaintiffs worked in
the Power Services Branch where they reported to Ray Meier, the branch’s Technical
Manager. During the period of time Ballas and Perkins were supervised by Meier,
they did not see or hear Meier do anything that suggested he discriminated against
older people.
Based in part on Meier’s conversations with Mark Michaud, the FAA Branch
Manager who oversaw the Power Services Branch, and other FAA personnel, a RIF
was implemented, in which Ballas and Perkins were considered for non-retention.
Meier compared Plaintiffs’ qualifications to that of other workers and determined that
Plaintiffs would be selected for non-retention. Two employees who were retained and
were Engineering Technicians Level 6 were older than Perkins at the time of the RIF.
As part of the RIF, Meier also had to disband one of the four-person “traveling
teams” that almost exclusively performed work at FAA sites outside of Oklahoma
City. Meier chose two employees from one of the teams to be terminated; both
employees were younger than Plaintiffs. At the time of their respective terminations,
Ballas was 71 years old and Perkins was 67.
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Ballas alleges Michaud was biased against older people and he was chosen for
termination because of his age. In support of this contention, Ballas makes the
following allegations:
•
In the earlier part of Ballas’ service as Technical Manager,
Michaud once asked how a 53 year old potential hire would fit in;
•
Michaud allegedly made comments twice during meetings that
Ballas felt were “negative” about age, although Ballas cannot
remember what Michaud said either time;
•
When Ballas was a Technical Manager, Michaud gave Ballas a
list of employees to consider hiring at entry level positions who
were younger;
•
Once at a meeting, Michaud said older employees were making
too much money and, while singling out Ballas, stated Ballas
would have to take a pay cut if he wanted to continue working;
•
Upon hearing that Dale Reynolds, the Contract Manager, was not
“on top of things,” Michaud replied, “Well what do you expect?
He’s 80 years old?”;
•
Michaud sent an email entitled “HRM Generational Challenges,”
which Ballas felt portrayed older people in a negative light;
•
Michaud remarked that Ballas and another employee “worked
long enough ... they have retirements, they probably have social
security”;
•
All younger engineers were less qualified and less experienced
than Ballas, and Ballas knew more about the Power Services
Branch than anyone else;
•
Ballas was the oldest contractor Engineer working in the office;
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•
Ballas was qualified to perform the job of Electrical Engineer
Level 6;
•
Ballas performed his work satisfactorily; and
•
Ballas was not given an explanation as to why or how he had been
selected for non-retention.
In addition to the foregoing, Perkins believes he was fired because of his age
based on the following allegations:
•
At the time of his release, Perkins was 67 years old;
•
Perkins had been employed as an Engineering Technician for
seventeen years and was qualified to perform all job duties set
forth in the job description for Engineering Technician Level 6;
•
Perkins satisfactorily performed his job;
•
Perkins was the only Engineering Technician Level 6 terminated
from employment due to the reduction in force, while nine
younger individuals in the same position were retained;
•
Defendants gave inconsistent reasons as to why Perkins was
selected for non-retention;
•
Meier did not evaluate job performance or have any documents
indicating how other retained employees had superior
performance to that of Perkins; and
•
Those selected for non-retention were older individuals with the
highest salaries.
Chickasaw Nation Industries, CNI Aviation and Enterprise (the Corporate
Defendants) and the Secretary of the U.S. Department of Transportation have filed
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separate motions for summary judgment. Liability under the ADEA is limited to
“employers.” Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 511 (4th Cir.1994)
(“[T]he ADEA limits civil liability to the employer.”). In this regard, Plaintiffs allege
the Department of Transportation may be considered a “joint employer” for purposes
of the ADEA.
The “joint employer test” applies where an employee of one entity seeks to
hold another entity liable as an employer. Bristol v. Board of County Comm’rs of
County of Clear Creek, 312 F.3d 1213, 1218 (10th Cir. 2002). Under this test, “two
entities are considered joint employers if they ‘share or co-determine those matters
governing the essential terms and conditions of employment.’” Knitter v. Corvias
Military Living, LLC, 758 F.3d 1214, 1226 (10th Cir. 2014) (quoting Bristol, 312
F.3d at 1218). Both entities are considered to be employers if they exercise significant
control over the same employees. Id. The Corporate Defendants’ motion centers on
the issue of age discrimination, whereas the Secretary of Transportation’s brief
focuses on whether it may be considered Plaintiffs’ joint employer. Since the
dispositive issue in this case is whether Plaintiffs have presented sufficient
evidencing supporting their claim of age discrimination, the Court addresses the
Corporate Defendants’ motion [Doc. No. 70] first.
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STANDARD OF DECISION
“Summary judgment is proper if, viewing the evidence in the light most
favorable to the non-moving party, there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Bonidy v. U.S. Postal
Service, 790 F.3d 1121, 1124 (10th Cir. 2015) (citation omitted). In attempting to
meet that standard, a movant that does not bear the ultimate burden of persuasion at
trial need not negate the other party’s claim; rather, the movant need simply point out
to the court a lack of evidence for the other party on an essential element of that
party’s claim. Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003).
A movant may establish that a fact cannot be genuinely disputed by citing to
particular parts of depositions, documents, electronically stored information,
affidavits, declarations, stipulations, discovery responses, or other materials. Fed. R.
Civ. P. 56(c)(1)(A).
Once the moving party has met its burden, the burden shifts to the nonmoving
party to present sufficient evidence in specific, factual form to establish a genuine
factual dispute. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998).
The nonmoving party may not rest upon the mere allegations or denials of its
pleadings. Rather, it must go beyond the pleadings and establish, through admissible
evidence, that there is a genuine issue of material fact that must be resolved by the
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trier of fact. Id. Unsupported conclusory allegations do not create an issue of fact.
Finstuen v. Crutcher, 496 F.3d 1139, 1144 (10th Cir. 2007).
The Court does not weigh the evidence and make findings of fact on a motion
for summary judgment. The Court only determines whether there is a genuine dispute
concerning a material fact. Jones v. Barnhart, 349 F.3d 1260, 1265 (10th Cir. 2003).
An issue is “genuine” if there 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. An issue of
fact is “material” if under the substantive law it is essential to the proper disposition
of the claim. Id.
DISCUSSION
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). The ADEA requires “but-for” causation; therefore, a
plaintiff 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, 177-78
(2009); Jones v. Okla. City Public Schools, 617 F.3d 1273, 1278 (10th Cir. 2010).
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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). Khalik v. United Air Lines, 671 F.3d 1188, 1192
(10th Cir. 2012). “Direct evidence has been defined as ‘[e]vidence that directly
proves a fact, without an inference or presumption, and which in itself, if true,
conclusively establishes that fact.’” Bedell v. American Yearbook Co., Inc., 17 F.
Supp. 2d 1227, 1230-31 (D. Kan. 1998) (quoting Black’s Law Dictionary 460 (6th
ed.1990)). Without proof of direct evidence of discrimination, the Court must
consider the burden-shifting framework announced in McDonnell Douglas. Twigg v.
Hawker Beechcraft Corp., 659 F.3d 987, 998 (10th Cir. 2011); see also Bertsch v.
Overstock.com, 684 F.3d 1023, 1028 (10th Cir. 2012) (“Rarely will a plaintiff have
direct evidence of a retaliatory motive; most plaintiffs attempt an ‘indirect,’
burden-shifting case.”).
Under this framework, to establish a prima facie case of age discrimination
pursuant to a reduction in force, a plaintiff must show (1) the plaintiff is within the
protected age group; (2) he was doing satisfactory work; (3) the plaintiff was
discharged despite the adequacy of his work; and (4) there is some evidence the
employer intended to discriminate against the plaintiff in reaching its RIF decision.
Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1137 (10th Cir. 2000). “A minimal
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evidentiary showing will satisfy this burden of production.” Pope v. ESA Servs., Inc.,
406 F.3d 1001, 1007 (8th Cir. 2005). If a plaintiff can establish a prima facie case, the
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 plaintiff bears the
“ultimate burden of proving [his] employer intentionally discriminated against [him].”
Riser v. QEP Energy, 776 F.3d 1191, 1199 (10th Cir. 2015).
There is no genuine dispute over whether Plaintiffs have satisfied the first three
elements of their prima facie case. As to the fourth factor, whether Plaintiffs have
presented some evidence that Defendants intended to discriminate against Plaintiffs
in implementing the RIF, the Court finds no evidence of direct discrimination. Much
of Plaintiffs’ evidence centers around actions and comments made about Ballas and
other employees. In Tabor v. Hilti, Inc., 703 F.3d 1206 (10th Cir. 2013), the Tenth
Circuit explained when comments in the workplace constitute 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. ... We also have explained that discriminatory statements do not
qualify as direct evidence if the context or timing of the statements is not
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closely linked to the adverse decision. ... Furthermore, if the content and
context of a statement allow it to be plausibly interpreted in two
different ways-one discriminatory and the other benign-the statement
does not qualify as direct evidence.
Id. at 1216 (citations omitted); see also Hall v. U.S. Dept. of Labor, Admin. Review
Bd., 476 F.3d 847, 855 (10th Cir. 2007) (“Statements of personal opinion, even when
reflecting personal bias or prejudice, do not constitute direct evidence of
discrimination, but at most, are only circumstantial evidence of discrimination
because the trier of fact must infer discriminatory intent from such statements.”)
(citing Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1207 (10th Cir.1999)).
Plaintiffs do not produce any significant evidence concerning the context of the
conduct in question; nevertheless, in the Court’s view, when analyzing the proffered
actions and comments in relation to the timing of their discharge and viewed in the
light most favorable to Plaintiffs, none of the evidence can be characterized as direct
evidence of discrimination. See Tran v. Sonic Indus. Servs., Inc., 490 F. App’x 115,
121 (10th Cir. 2012) (unpublished) (“ ‘Without more’ we have noted, ‘an employee’s
subjective belief in a comment’s invidious nature . . . does not support an inference
of discriminatory intent.”) (quoting Adamson v. Multi Cmty. Diversified Servs., Inc.,
514 F.3d 1136, 1151 (10th Cir. 2008)). However inappropriate the statements at issue
may have been, they are too attenuated from the RIF to constitute a basis for
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Plaintiff’s discharge, and, at best, constitute “stray remarks” that, in and of
themselves, do not establish direct evidence of causation regarding the employment
decision. See Furr v. AT&T Techs., Inc., 824 F.2d 1537, 1547, 1549 (10th Cir.1987)
(holding repeated statements by managers that plaintiffs were “too damned old,” were
too old to learn new technologies or to be in management positions, and did not have
a future with the company because of age were not direct evidence of a causal
relationship between discrimination and failure to promote); Stone v. Autoliv ASP,
Inc., 210 F.3d 1132, 1140 (10th Cir. 2000) (holding supervisor’s comments that “at
[employee’s] age, it would be difficult to train for another position” or “difficult to
find a new job” were too abstract to support an inference of age discrimination); see
also Ziegler v. Beverly Enters.-Minn., Inc., 133 F.3d 671, 676 n. 3 (8th Cir.1998)
(holding an employer’s questions about an employee’s age and retirement plans
insufficient to demonstrate age discrimination).
At best, Plaintiffs have made a minimal, circumstantial showing of age
discrimination. With this conclusion, the Court turns its focus to the next step in the
McDonnell Douglas analysis and examines whether Defendants have articulated a
legitimate nondiscriminatory reason for the adverse employment decisions.
Defendants state the reason any employees were terminated was the result of
a change in work the contractors were to perform and the amount of funding available
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for the contract had diminished. Specifically, as to Ballas, Defendants state Ballas’
performance was not as good as those employees he was compared against, Ballas
had expressed a desire to travel less (willingness to travel was an important function
of the job), Ballas’ experience did not make him invaluable to the branch, and Ballas’
salary was higher. As to Perkins, Defendants state Perkins was compared to other
employees, two of whom were older than him and retained, Perkins was less versatile
than the other employees, and Perkins did not make himself available for training
courses that would have improved his skills in other areas.
The Court finds these proffered reasons to be legitimate and nondiscriminatory.
Accordingly, Plaintiffs have the burden of showing such reasons are pretextual.
“Under Tenth Circuit precedent, pretext may be shown by 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.” Bryant v. Farmers Ins. Exch., 432 F.3d 1114,
1125 (10th Cir.2005). Thus, “[a] plaintiff can make a showing of pretext with
evidence that the defendant’s stated reason for [taking an employment action] was
false.” Id. (quotation omitted). In analyzing the issue of pretext, however, the Court
must “look at the facts as they appear to the person making the decision to [take the
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employment action].” Kendrick v. Penske Transp. Services, Inc., 220 F.3d 1220, 1231
(10th Cir. 2000). In addition, the Tenth Circuit has recognized that “a mistaken belief
can be a legitimate reason for an employment decision and is not necessarily
pretextual.” Id. (quotation omitted). As the circuit has explained, “[t]he reason for this
rule is plain: [the court’s] role is to prevent intentional discriminatory . . . practices,
not to act as a ‘super personnel department,’ second guessing employers’ honestly
held (even if erroneous) business judgments.” Young v. Dillon Companies, Inc., 468
F.3d 1243, 1250 (10th Cir. 2006).
Although Plaintiffs call into question the viability of Defendants’ reasons and
dispute their methods of evaluating them for non-retention, in order to rebut a
defendant’s showing of legitimate, nondiscriminatory reasons for its actions, “[i]t is
not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff’s
explanation of intentional discrimination.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 519 (1993) (emphasis added). To this end, Plaintiffs’ case ultimately rests on
their belief that they were qualified and should not have been selected for nonretention, in other words, the RIF should have claimed other employees – but such
beliefs are simply insufficient to establish an ADEA claim. Aramburu v. The Boeing
Co., 112 F.3d 1398, 1408 n. 7 (10th Cir. 1997) (an employee’s “subjective belief of
discrimination is not sufficient to preclude summary judgment.”); Chiaramonte v.
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Fashion Bed Grp., Inc., 129 F.3d 391, 401 (7th Cir.1997) (“If the subjective beliefs
of plaintiffs in employment discrimination cases could, by themselves, create genuine
issues of material fact, then virtually all defense motions for summary judgment in
such cases would be doomed.”) (internal alteration and citation omitted). Ascribing
discriminatory intent to the RIF decisions here, especially in light of the comparable
age of many of the other employees, strains the underlying facts. For instance,
Perkins, who was 67 years old at the time of termination, asserts that nine younger
employees in his job category were retained; however, seven out of nine of those
younger employees were in the protected class and ranged in age from 49 to 63.
Moreover, virtually all of the conduct Plaintiffs can point to in support of a pretext
argument is attributed to an FAA employee (Michaud) who was not the decisionmaker regarding specific termination decisions.1
After carefully reviewing the evidence in the record, the Court finds that, under
the controlling law, a rational juror could not conclude that Plaintiffs’ termination
1
The only evidence of any potential substance that the decision-maker, Meier,
received guidance regarding the RIF from Michaud, the person to whom most of the
complained-of conduct is attributed, concerns discussions in which Michaud
identified skill-based classifications of employees that could be eliminated via the
RIF. There is no indication that specific, named employees were targeted for the RIF
by Michaud. See, e.g., Pls. Resp. in Opp. to Mot. for Summary Judgment at 26 [Doc.
No. 86] and evidentiary materials cited therein.
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was motivated by discriminatory intent and Defendants are entitled to summary
judgment on the ADEA claim.
Based on the foregoing conclusion, the Court declines to address whether the
FAA can be considered Plaintiffs’ “joint employer” for ADEA purposes.
CONCLUSION
Defendants’ Motions for Summary Judgment [Doc. Nos. 70, 71] are
GRANTED as set forth herein.2 A judgment shall be entered accordingly.
IT IS SO ORDERED this 23rd day of June, 2016.
2
Because the Secretary of Transportation also asserts in his motion that
Plaintiffs lack evidence of age discrimination, the Court’s conclusion that the
Corporate Defendants are entitled to summary judgment necessitates judgment for the
Secretary on the same basis. See Secretary’s Motion for Summary Judgment at 13-14,
27 [Doc. No. 71].
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