Duerr v. Inframark LLC

Filing 47

ORDER Granting 29 Motion for Summary Judgment. Because this Order fully resolves this matter, a separate judgment shall be entered. Signed by Judge Bernard M. Jones on 11/14/2023. (naa)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
TOMMY DUERR,
Plaintiff,
v.
INFRAMARK, LLC,
Defendant.

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Case No. CIV-22-550-J

ORDER
Before the Court is Defendant’s Motion for Summary Judgment (Motion) [Doc. No. 29],
to which Plaintiff responded (Resp.) [Doc. No. 44] and Defendant replied [Doc. No. 46]. 1 Upon
review of the parties’ submissions, the Court grants Defendant’s Motion for Summary Judgment.
I.

Factual Background
Defendant operates water and wastewater treatment facilities throughout Oklahoma. In

2017, Defendant took over operations of a treatment facility in Clinton, Oklahoma (the Clinton
Plant), at which Plaintiff had worked since 1985. At all relevant times, Plaintiff was employed by
Defendant in an hourly position as the Lead Operator of Water at the Clinton Plant.
Beyond Plaintiff’s 40-hour work week he was, at times, required to be on call and work
weekends. Defendant’s digital timekeeping system automatically tracked Plaintiff’s hours and
overtime pay, and Plaintiff regularly received overtime pay for hours worked in excess of 40 hours
per week. If he noticed an error in his recorded hours or overtime pay, he could—and did—request
a correction.

1

All page citations refer to the Court’s CM/ECF pagination.

Defendant historically employed two lead operators at the Clinton Plant—one Lead
Operator of Water and one Lead Operator of Wastewater. However, in 2020, citing efficiency
concerns, Defendant created an Operations Supervisor position and eliminated both Plaintiff’s
position and that of the Lead Operator of Wastewater.2 Though Plaintiff was unqualified for the
newly-created supervisory position,3 he was offered a different position at the Clinton Plant at the
same rate of pay as his prior position. Plaintiff declined, and his final day of employment was
June 26, 2020.
Roughly seven months later, Defendant’s (1) incumbent Operations Supervisor was
promoted, leaving the position vacant; and (2) contract with the city of Clinton was revised to
require that Defendant employ an individual with knowledge and experience in reverse osmosis.
Citing these developments, Defendant decided to return to its traditional organizational structure
with two lead operators. It began its search for candidates in March 2021.
Plaintiff initiated this employment action against Defendant on April 7, 2022.4 (Pet.) [Doc.
No. 1–1].

He asserts claims for (1) age discrimination under the Age Discrimination in

Employment Act (ADEA) and the Oklahoma Anti-Discrimination Act (OADA); (2) unpaid wages
and overtime under the Fair Labor Standards Act (FLSA); and (3) retaliatory discharge under the
Oklahoma Supreme Court’s decision in Burk v. K-Mart Corp., 1989 OK 22, 770 P.2d 24.
Defendant now moves for summary judgment on these claims.

2

At the time, the Lead Operator of Wastewater position was vacant.

3

The Operations Supervisor position required experience and licensure in both water and
wastewater. Plaintiff had experience and licensure in water only.
Plaintiff initiated this action in the District Court of Oklahoma County, State of Oklahoma. The
action was removed to federal court on June 29, 2022.
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II.

Summary Judgment Standard
Summary judgment is warranted “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A dispute is genuine when “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
fact is material when it “might affect the outcome of the suit under the governing law.” Id.
“The movant bears the initial burden of making a prima facie demonstration of the absence
of a genuine issue of material fact and entitlement to judgment as a matter of law.” Thom v. BristolMyers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003). Where, as here, the moving party does not
bear the ultimate burden of persuasion at trial, it may satisfy this burden by demonstrating “a lack
of evidence for the nonmovant on an essential element of the nonmovant’s claim.” Adler v. WalMart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998).
Once the moving party has met its burden, the burden shifts to the nonmoving party to
show that there is a genuine issue of material fact. Bacchus Indus., Inc. v. Arvin Indus., Inc., 939
F.2d 887, 891 (10th Cir. 1991). The nonmoving party “may not rest upon the mere allegations of
his pleadings, but must respond with specific facts showing the existence of a genuine issue for
trial.” Stevens v. Barnard, 512 F.2d 876, 878 (10th Cir. 1975); see also Self v. Crum, 439 F.3d
1227, 1230 (10th Cir. 2006) (“Unsubstantiated allegations carry no probative weight in summary
judgment proceedings.” (internal quotation marks omitted)); Finstuen v. Crutcher, 496 F.3d 1139,
1144 (10th Cir. 2007) (“Unsupported conclusory allegations . . . do not create an issue of fact.”
(internal quotation marks omitted)). At the summary judgment stage, the Court views the record
and reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. 19
Solid Waste Dep’t Mechs. v. City of Albuquerque, 156 F.3d 1068, 1071 (10th Cir. 1998).

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With these standards in mind, the Court notes Plaintiff’s glaring failure to provide factual
evidence in opposition to Defendant’s summary judgment motion. See Resp. at 9–11. In
responding to Defendant’s properly supported facts, Plaintiff repeatedly notes his disputation yet
fails to cite any evidence in support.5 See id. Plaintiff’s response, in total, contains only a single
citation to evidence in the record, which occurs in support of an additional fact he believes
precludes summary judgment.6 See id. at 11. All other factual contentions are devoid of
evidentiary support. This approach runs afoul of basic summary judgment procedure.
III.

Analysis
A.

Age Discrimination Under the ADEA and OADA

The Court notes at the outset that Plaintiff’s claims of age discrimination under the ADEA
and OADA are analyzed similarly. See Andrews v. Okla. Workers’ Comp. Comm’n, No. CIV-21609-R, 2021 WL 4699075, at *7 (W.D. Okla. Oct. 7, 2021); Taber v. City of Sand Springs, No.
12–CV–0666–CVE–TLW, 2014 WL 241697, at *7 (N.D. Okla. Jan. 22, 2014).
The ADEA provides a remedy for discrimination in employment on the basis of age. See
29 U.S.C. § 623(a)(1). A plaintiff can prove age discrimination with direct or circumstantial
evidence. Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000). Direct evidence
demonstrates on its face that the employment action was discriminatory. Ramsey v. City & Cnty.
of Denver, 907 F.2d 1004, 1008 (10th Cir. 1990). Circumstantial evidence permits the fact finder

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When a nonmoving party is unable to present facts essential to justify its opposition to a summary
judgment motion, it may request additional time to respond in an effective manner. See Fed. R.
Civ. P. 56(d). Plaintiff made no such request.
Specifically, Plaintiff cites to an e-mail sent by a member of Defendant’s upper management to
human resources, see [Doc. No. 44–1], contending that the member “questioned how long a
position must be ‘eliminated’ before the position could be reinstated,” Resp. at 11. The Court
disagrees with Plaintiff’s characterization of this e-mail.
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to draw a reasonable inference from facts indirectly related to discrimination that discrimination,
in fact, occurred. Stone, 210 F.3d at 1136. “Plaintiff has the ultimate burden of proving, either
directly or indirectly, that [D]efendant intentionally discriminated against him.” Adamson v. Multi
Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008).
Here, it is clear Plaintiff seeks to establish discrimination through circumstantial evidence.
In cases brought under the ADEA where circumstantial evidence is the basis for the claim,
summary judgment analysis is governed by the three-step burden-shifting framework articulated
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Adamson, 514 F.3d at 1145.
First, the plaintiff must prove a prima facie case of discrimination. Garrett v. Hewlett-Packard
Co., 305 F.3d 1210, 1216 (10th Cir. 2002). If successful, the defendant then bears the burden of
producing a legitimate, nondiscriminatory reason for its challenged employment action. Id. If the
defendant meets this burden, the plaintiff must then show the defendant’s justification is pretextual.
Id.
A prima facie case of age discrimination ordinarily requires the plaintiff to show that he
was: “(1) within the protected class of individuals 40 or older; (2) performing satisfactory work;
(3) terminated from employment; and (4) replaced by a younger person, although not necessarily
one less than 40 years of age.” Adamson, 514 F.3d at 1146. Defendant seemingly concedes that
Plaintiff could demonstrate a prima facie case, see Motion at 17, and the Court thus moves to the
second step of the McDonnell Douglas framework.
Again, at the second step, Defendant must articulate a legitimate, nondiscriminatory reason
for its challenged employment action. The Court concludes Defendant has satisfied this
“exceedingly light” burden here. DePaula v. Easter Seals El Mirador, 859 F.3d 957, 970 (10th
Cir. 2017) (internal quotation marks omitted).

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In short, Defendant has produced evidence

explaining how its elimination of Plaintiff’s position in 2020 was a strategic business decision
aimed at increasing efficiency. See id. (“[T]he defendant’s burden is one of production, not
persuasion; it can involve no credibility assessment.” (internal quotation marks omitted)).
The Court’s analysis thus turns chiefly on the third step of the McDonnell Douglas
analysis—that is, whether Plaintiff has presented sufficient evidence to permit a reasonable juror
to conclude that Defendant’s proffered reason was a mere pretext for age discrimination. The
Court finds Plaintiff has failed to do so.
To survive a motion for summary judgment at the pretext step, Plaintiff must present
evidence to establish there is a genuine issue of material fact as to whether Defendant’s articulated
reason for the adverse employment action was pretextual. Tabor v. Hilti, Inc., 703 F.3d 1206,
1218 (10th Cir. 2013); Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1225 (10th Cir.
2000). Plaintiff may show pretext by demonstrating the “proffered reason is factually false” or
that “discrimination was a primary factor in the employer’s decision.” Tabor, 703 F.3d at 1218.
This is often accomplished “by revealing weaknesses, implausibilities, inconsistencies,
incoherences, or contradictions in the employer’s proffered reason, such that a reasonable fact
finder could deem the employer’s reason unworthy of credence.” DePaula, 859 F.3d at 970
(internal quotation marks omitted). In attempting to show pretext here, Plaintiff points exclusively
to Defendant’s elimination—and subsequent restoration—of his lead operator position. See Resp.
at 25.
But Defendant has produced evidence demonstrating that its decision to bring back the
position resulted from a change in its contractual obligations to the city of Clinton. Moreover, and
more importantly, it is simply unreasonable to infer that Defendant sought to push Plaintiff out of
the workforce because of his age while simultaneously seeking to retain his services at the Clinton

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Plant at the same rate of pay.7 The Court finds this evidence—all of which is uncontradicted—
undercuts any reasonable inference of pretext.
Thus, upon review, the Court grants Defendant’s Motion for Summary Judgment to the
extent it seeks dismissal of Plaintiff’s age discrimination claims under the ADEA and OADA.
B.

Unpaid Wages and Overtime Under the FLSA

The FLSA requires that covered employers pay their employees at least the federal
minimum wage and compensate employees time-and-a-half for all overtime hours. See 29 U.S.C.
§§ 206, 207. To prevail on his FLSA claims here, Plaintiff “need only prove ‘that he has in fact
performed work for which he was improperly compensated’ and produce ‘sufficient evidence to
show the amount and extent of that work as a matter of just and reasonable inference.’” Courtright
v. Bd. of Cnty. Comm’rs of Payne Cnty., No. CIV–08–230–D, 2011 WL 2181954, at *10 (W.D.
Okla. June 3, 2011) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946)).
The burden then “shifts to the employer to produce evidence of the precise amount of work
performed or to negate the reasonableness of the inference drawn from the employee’s evidence.”
Donovan v. Simmons Petroleum Corp., 725 F.2d 83, 85 (10th Cir. 1983).
Here, in short, Plaintiff has failed to produce any evidence demonstrating the amount and
extent of uncompensated work performed as a matter of just and reasonable inference.8 Defendant,
conversely, has produced uncontradicted evidence showing (1) the hours Plaintiff worked; (2) the

Plaintiff asserts, without evidentiary support, that he “was offered a position that he could not
legally perform because he did not possess a wastewater license.” Resp. at 10. This assertion is
contradicted by the record. See [Doc. No. 29–5] at 3 (offering Plaintiff an Operator III position at
the Clinton Plant which was “commensurate with [his] . . . licensing level”).
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The portion of Plaintiff’s response dedicated to his FLSA claims consists solely of legal standards
without any explanation or citations to the record. See Resp. at 27–30.
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compensation, including overtime pay, that Plaintiff received for hours worked; and (3) the
requests made by Plaintiff to correct errors in his recorded hours and overtime pay.
Accordingly, upon review, the Court grants Defendant’s Motion for Summary Judgment
to the extent it seeks dismissal of Plaintiff’s claims for unpaid wages and overtime under the FLSA.
C.

Retaliatory Discharge Under Burk

Though Oklahoma generally follows the employment-at-will doctrine for employment of
indefinite duration, the Oklahoma Supreme Court’s decision in Burk “created a narrow exception
to the employment-at-will doctrine—the public policy exception.” Barker v. State Ins. Fund, 2001
OK 94, ¶ 14, 40 P.3d 463, 468, as corrected (Nov. 7, 2001). The exception, frequently referred to
as a “Burk tort,” allows “an employee who is discharged for refusing to act in violation of an
established and well-defined public policy or for performing an act consistent with a clear and
compelling public policy [to] bring a tort claim for wrongful discharge.” Id.
A viable Burk tort claim must show “(1) an actual or constructive discharge (2) of an atwill employee (3) in significant part for a reason that violates an Oklahoma public policy goal (4)
that is found in Oklahoma’s constitutional, statutory, or decisional law or in a federal constitutional
provision that prescribes a norm of conduct for Oklahoma and (5) no statutory remedy exists that
is adequate to protect the Oklahoma policy goal.” Moore v. Warr Acres Nursing Ctr., LLC, 2016
OK 28, ¶ 19, 376 P.3d 894, 899–900 (internal quotation marks omitted).
In Plaintiff’s petition, he asserts that his lead operator position was eliminated in retaliation
“for [his] reports of unsafe working conditions both to management and the public,” in violation
of “Plaintiff’s free speech rights set forth in Oklahoma and Federal Constitutions and Oklahoma’s
public policy.” Pet. at 8. Plaintiff’s response, however, neither discusses Burk nor cites to any
record evidence in support of his claim.

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Even assuming, generously, that Plaintiff reported unsafe working conditions at the Clinton
Plant, he has not adduced any evidence remotely suggesting the reports were a “significant factor”
in the elimination of his position. Vasek v. Bd. of Cnty. Comm’rs of Noble Cnty., 2008 OK 35, ¶
32, 186 P.3d 928, 934. Defendant, on the other hand, has submitted ample evidence demonstrating
that its decision to eliminate Plaintiff’s position amounted to a business judgment—untainted by
discriminatory or retaliatory motives. Therefore, upon review, the Court grants Defendant’s
Motion for Summary Judgment to the extent it seeks dismissal of Plaintiff’s Burk claim.
IV.

Conclusion
For the reasons set forth herein, Defendant’s Motion for Summary Judgment [Doc. No. 29]

is GRANTED. Because this Order fully resolves this matter, a separate judgment shall be entered.
IT IS SO ORDERED this 14th day of November, 2023.

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