Love v. Hajoca Corporation et al
Filing
86
MEMORANDUM AND ORDER. The Defendants 46 MOTION for Summary Judgment is Granted. The Defendants #48 Motion for Summary Judgment in consolidated case 4:12-cv-1193 as to Plaintiff John Stewart is Granted. The Plaintiff John Stewart's #53 Opposed MOTION to Strike 48 MOTION for Summary Judgment in consolidated case 4:12-cv-1193 is Denied as Moot. (Signed by Judge Nancy F. Atlas) Parties notified.(gkelner, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DAN LOVE and JOHN STEWART,
Plaintiffs,
v.
HAJOCA CORPORATION, et al.,
Defendants.
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§
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CIVIL ACTION NO. 4:11-1192
MEMORANDUM AND ORDER
This age discrimination case is before the Court on Defendants Hajoca
Corporation, LCR-M General LLC, LCR-M LP, and Moore Supply Company’s
(collectively, “Defendants”) Motion for Summary Judgment as to Plaintiffs Dan Love
[Doc. # 46] (“Love Motion”) and John Stewart [Stewart Doc. # 48] (“Stewart
Motion”).1 The Motions are fully briefed and ripe for consideration.2 After carefully
considering the record, the arguments of both parties, and the applicable law, the
1
Unless otherwise stated, all citations in this Memorandum and Order are to documents
and docket numbers in Love v. Hajoca Corporation, Civil Action No. 4:11-1192.
Citations to documents in Stewart v. Hajoca Corporation, Civil Action No. 4:111193, appears as “Stewart Doc. # .”
2
Defendants filed a Memorandum in support of the Love Motion [Doc. # 46-1] (“Love
Memorandum”) and a Memorandum in support of the Stewart Motion [Stewart Doc.
# 48-1] (“Stewart Memorandum”). Plaintiff Dan Love filed a Response to
Defendants’ Motion for Summary Judgment [Doc. # 59] (“Love’s Response”), and
Plaintiff John Stewart filed a Response to Defendants’ Motion for Summary Judgment
[Doc. # 58] (“Stewart’s Response”). Defendants filed a Reply Brief in Support of
Motion for Summary Judgment [Doc. # 77] (“Defendant’s Reply”).
Court concludes that Defendants’ Motions for Summary Judgment should be granted.
I.
BACKGROUND
Defendants LCR-M General LLC, LCR-M LP and Hajoca Corporation
(“Defendants”) are affiliated companies.3 Defendants each distribute plumbing
supplies and fixtures from locations in Texas, Mississippi, Arkansas, and Louisiana.4
Defendants operate stores under the name Moore Supply Company.5 The Moore
Supply Company stores are assigned to regions.6 Each region has a manager as does
each store.7
Plaintiff Dan Love (“Love”) began working for Moore Supply Company in
1985 as an inside salesperson at a store in Huntsville, Texas.8 Love transferred to the
3
Sworn Declaration of Lee Cormier [Exh. B to Doc. # 46-2], at 19, ¶ 2.
4
Id.
5
Hajoca Corporation Assumed Name Certificate [Exh. 79 to Doc. # 68-4], at 2.
6
See Sworn Declaration of Colin Boyd [Exh. A to Doc. # 46-2] (“Boyd Decl.”), at 2,
¶ 3.
7
See id.
8
Deposition of Dan Love (“Love Depo.”) [Exh. 7 to Docs. # 61-2, # 62, # 62-1, and
# 62-2], at 28, 40, 41.
2
Conroe, Texas, store in 1990.9 Plaintiff John Stewart (“Stewart”) began working for
Moore Supply Company in December 1967.10 While working for Moore Supply
Company, Stewart held various positions in multiple locations including Baytown,
Conroe, Humble, and Tomball.11 Eventually, he transferred to the Conroe store in
March 1998 and was assigned to counter sales, helping walk-in customers rather than
entering bids from pre-existing accounts.12
During the events surrounding this case, Love and Stewart worked in the South
Texas region at the Conroe store.13 Mark Hanley managed the South Texas region,
which encompassed approximately twenty-two stores.14 Colin Boyd managed the
Conroe store, at which between nine and thirteen workers were employed.15
In the fourth quarter of 2008, the revenue in Defendants’ South Texas region
9
Id. at 41.
10
February 10, 2012 Deposition of John Stewart [Exh. 5 to Stewart Docs. # 57, # 57-1,
# 58, # 58-1, # 59, # 59-1, and # 60] (“Stewart Depo.”), at 13.
11
Id. at 13-17; February 9, 2011 Deposition of John Stewart [Doc. # 61-1] (“Febraury
9 Stewart Depo.”), at 37.
12
February 9 Stewart Depo., at 66.
13
Love Depo., at 41.
14
Deposition of Mark Hanley [Exh. E to Doc. # 46-7] (“Hanley Depo.”), at 10.
15
Boyd Decl., at 2, ¶ 3.
3
dropped as a result of the economic recession.16 In late 2008 through 2009, Hanley
counseled Boyd on ways to improve performance at the Conroe store.17 Hanley
instructed Boyd to cut overtime and reduce the net salary ratio.18 Boyd began by
reducing overtime. In May 2009, he informed all employees that overtime was no
longer permitted.19 Hanley also instructed Boyd to evaluate each employee in the
Conroe store and grade them on a scale from “A” to “F.”20 Boyd gave Love and
Stewart the lowest grades among the salespeople at the Conroe store.21 He gave Love
a C+ and described him as “extremely SLOW” with low profit margins and lacking
knowledge of the company’s computer system.22 Boyd gave Stewart a D-, described
his attitude as “sub-par,” and stated that Stewart struggled in dealing with customers
16
Love’s Response, at 10 (citing Hanley Depo., at 23-24).
17
December 22, 2008 Email from Hanley to Boyd [Exh. D-1 to Doc. # 46-6], at 22;
March 28, 2009 Email from Hanley [Exh. D-2 to Doc. # 46-6], at 23.
18
Deposition of Colin Boyd (“Boyd Depo.”) [Exh. 9 to Doc. # 63], at 80; December 22,
2008 Email from Hanley to Boyd, at 22.
19
Love’s Response, at 8; Love Depo., at 54-55, 80-81; Boyd Decl., at 2, ¶ 4; May 29,
2009 Email from Boyd to Stewart [Exh. C-7 to Doc # 46-5], at 4.
20
Love’s Response, at 12 (citing Employee Ratings [Exh. C-8 to Doc. # 46-5], at 5-6).
21
Employee Ratings, at 6.
22
Id.
4
and left “everyday at 4:30 pm even if he [was] in the middle of helping a customer.”23
On July 30, 2009, Hanley met with Boyd again to discuss sales and employee
performance.24 Hanley recommended that Boyd reduce his net salary ratio by
reducing the Conroe store staff from thirteen to twelve employees.25 Hanley and Boyd
identified Love and Stewart as the least effective employees, and Hanley suggested
that Boyd consider replacing both of them with one stronger sales person.26 Hanley
further instructed Boyd to document areas where Love and Stewart were
underperforming, inform them of his expectations for their performance, and explain
why their performance was no longer acceptable in light of the economic recession.27
Hanley also instructed Boyd that while he should be helping Love and Stewart
improve, he should also be looking for a stronger replacement.28
Shortly thereafter, on August 11, 2009, Boyd prepared a formal performance
23
Id.
24
Love’s Response, at 13 (citing July 30, 2009 Email from Hanley [Exh. C-10 to Doc.
# 46-5], at 11-12).
25
Id.
26
Id. In Hanley’s deposition, he denied that he wanted to replace Love or Stewart.
Hanley Depo. [Exh. 11 to Stewart Doc. # 64], at 57-58.
27
Id.
28
Id.
5
review for Love.29 Boyd told Love that he needed to increase his profit margins and
should work more quickly, especially when preparing bids on the computer.30
Similarly, on August 19, 2009, Boyd prepared a performance review for Stewart.31
A month later, on September 15, 2009, Defendants laid off Love, who was 54
years old at the time.32 On January 21, 2010, Defendants laid off Stewart, who was
63 years old at the time.33 Betty Siler (“Siler”), Defendants’ administrative assistant
in Conroe, also was discharged on January 21, 2010.34 She was 60 years old at the
time.35 Love, Stewart, and Siler were the oldest employees at the Conroe Store.36
Another employee, Will Thompson, quit reporting to work shortly after Love, his
29
August 21, 2009 Love Employee Performance Review (“Love Performance Review”)
[Exh. C-11 to Doc. # 46], at 13-16.
30
Love Depo., at 103-06.
31
August 19, 2009 Stewart Employee Performance Review (“Stewart Performance
Review”) [Exh. 15 to Stewart Doc # 48-5], at 91-94; Stewart Depo., at 75-76.
32
Love Depo., at 8, 16.
33
Stewart Depo., at 94-95.
34
Boyd Decl., at 4-5, ¶ 10-11.
35
Id.
36
See Conroe PC702 Total Employees (“PC702 Employee List”) [Exh. 110 to Doc.
# 71-2], at 2. The nine other employees who worked at the Conroe store during the
relevant period were Matthew Brewington (25 years old); Colin Boyd (29 years old);
Brian Bogan (33 years old); Thomas Taft (34 years old); Lindsey Edmiston (34 years
old), Garland Lawson (38 years old); Jose Rivera (43 years old); Donald Ballard
(49 years old); and Jeff Brewer (52 years old). Id.
6
uncle, was laid off in September.37 Boyd did not replace any of the four employees
and continued operating the Conroe store for the next two and a half years with nine
employees instead of thirteen.38
On January 28, 2010, Love filed a charge with the Equal Employment
Opportunity Commission (“EEOC”) alleging that Defendants discriminated against
him because of his age. On February 12, 2011, Stewart filed an EEOC charge alleging
that he, too, was discriminated against because of his age. Plaintiffs filed their
lawsuits on April 3, 2011, asserting age discrimination claims, and the cases
eventually were consolidated for all purposes.39
II.
LEGAL STANDARD
A.
Summary Judgment
Summary judgment is proper only if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with any affidavits filed in support
of the motion, show that there is no genuine issue as to any material fact, and that the
37
Boyd Decl., at 5, ¶ 12.
38
Id. at 6, ¶ 13.
39
See December 19, 2012 Order to Consolidate Cases [Doc. # 56]; Dec. 19, 2012 Order
to Consolidate Cases [Stewart Doc. # 73]. Initially, each case was assigned to a
different judge. Love’s case was assigned to the undersigned. Stewart’s case was
assigned to the Honorable Keith P Ellison. See Stewart v. Hajoca Corporation, Civil
Action No. 4:11-1193.
7
moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); see
also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Weaver v. CCA Indus., Inc.,
529 F.3d 335, 339 (5th Cir. 2008).
The moving party bears the burden of
demonstrating that there is no evidence to support the nonmoving party’s case.
Celotex Corp., 477 U.S. at 325; Nat’l Union Fire Ins. Co. v. Puget Plastics Corp., 532
F.3d 398, 401 (5th Cir. 2008). If the moving party meets its initial burden, the nonmovant must go beyond the pleadings and designate specific facts showing that there
is a genuine issue of material fact for trial. Littlefield v. Forney Indep. Sch. Dist., 268
F.3d 275, 282 (5th Cir. 2001) (internal citation omitted). “An issue is material if its
resolution could affect the outcome of the action. A dispute as to a material fact is
genuine if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” DIRECT TV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2006)
(internal citations omitted). The Court construes all facts and considers all evidence
in the light most favorable to the nonmoving party. Nat’l Union, 532 F.3d at 401.
The Court is not required to accept the non-movant’s conclusory allegations,
speculation, and unsubstantiated assertions which are either entirely unsupported, or
supported by a mere scintilla of evidence. Chaney v. Dreyfus Serv. Corp., 595 F.3d
219, 229 (5th Cir. 2010) (citing Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable
Co., 336 F.3d 410, 413 (5th Cir. 2003)); see also Delta & Pine Land Co. v.
8
Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir. 2008) (stating that
“conclusory allegations” or “unsubstantiated assertions” do not meet the nonmovant’s burden); In re Hinsley, 201 F.3d 638, 643 (5th Cir. 2000) (explaining that
“a party’s self-serving and unsupported claim” in an affidavit will not defeat summary
judgment where the evidence in the record is to the contrary). The nonmoving party
must present specific facts which show “the existence of a genuine issue concerning
every essential component of its case.” Am. Eagle Airlines, Inc. v. Air Line Pilots
Ass’n, Int’l, 343 F.3d 401, 405 (5th Cir. 2003) (internal quotation marks and citation
omitted). In the absence of any proof, the Court will not assume that the non-movant
could or would prove the necessary facts. Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994) (en banc) (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,
888 (1990)). Although the Court may consider other materials in the record, the Court
only needs to consider cited materials. FED. R. CIV. P. 56(c)(3).
B.
ADEA Discrimination Claims
Love and Stewart each contends that he was laid off by Defendants because of
his age. The Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C.
§§ 621-634, inter alia, prohibits an employer from failing to hire, refusing to hire,
discharging, or otherwise discriminating against “any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
9
individual’s age.” 29 U.S.C. § 623(a)(1). “Under the ADEA, the plaintiff has the
burden of persuasion to show ‘that age was the “but-for” cause of [his] employer’s
adverse action.” Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 377 (5th
Cir. 2010) (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009)). In Gross,
the Supreme Court rejected arguments that plaintiffs need only show that age was a
“motivating factor” in the employer’s decision or action. See, e.g., id. at 174-180 (“To
establish a disparate-treatment claim under the plain language of the ADEA, therefore,
a plaintiff must prove that age was the ‘but-for’ cause of the employer’s adverse
decision.” (citations omitted)). An age discrimination claim “‘cannot succeed unless
the employee’s protected trait actually played a role in [the employer’s decisionmaking] process and had a determinative influence on the outcome.’” Id. at 176
(quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)).
A plaintiff may meet this burden with either direct evidence or circumstantial
evidence. Kilgore v. Brookeland Indep. Sch. Dist., No. 13-40005, 2013 WL 4031038,
at *2 (5th Cir. Aug. 8, 2013) (unpublished) (citing Reed v. Neopost USA, Inc., 701
F.3d 434, 441 (5th Cir. 2012)). If the plaintiff, as here,40 does not have direct evidence
40
Plaintiffs have offered no direct evidence of age discrimination. Indeed, Plaintiffs
each testified that there were no documents or emails that reflect age discrimination
and that Boyd and Hanley did not make any comments that reflected age
discrimination. See Love Depo., at 12-14; Stewart Depo., at 10-11.
10
of age discrimination, the Court applies the burden shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).41 Id. Under the McDonnell
Douglas framework, a plaintiff must first establish a prima facie case of age
discrimination. Miller v. Raytheon Co., 716 F.3d 138, 144 (5th Cir. 2013) (citing
Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005)).
In a case that does not involve a reduction in force (“RIF”), the plaintiff must
show that “‘(1) he was discharged; (2) he was qualified for the position; (3) he was
within the protected class at the time of discharge; and (4) he was either i) replaced
by someone outside the protected class, ii) replaced by someone younger, or iii)
otherwise discharged because of his age.’” Kilgore, 2013 WL 4031038, at *3
(quoting Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993)); Jackson,
602 F.3d at 378 (quoting Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir.
2007)). If a RIF is involved, as here, the plaintiff must demonstrate that:
(1) the plaintiff is within the protected age group under the ADEA;
(2) he or she was adversely affected by the employer’s decision; (3) he
or she was qualified to assume another position at the time of the
discharge or demotion; and (4) evidence, either circumstantial or direct,
from which a factfinder might reasonably conclude that the employer
intended to discriminate in reaching its decision.
41
Although the United States Supreme Court did not address in Gross, see id., 557 U.S.
at 175 n.2,whether the McDonnell Douglas framework applies in ADEA cases, this
Court is bound by Fifth Circuit precedent applying the framework in ADEA cases.
See, e.g., Jackson, 602 F.3d at 378 & n.15.
11
Woodhouse v. Magnolia Hosp., 92 F.3d 248, 252 (5th Cir. 1996) (citing Nichols v.
Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996); Molnar v. Ebasco
Constructors, Inc., 986 F.2d 115, 118 (5th Cir. 1993); Thornbrough v. Columbus &
Greenville R.R. Co., 760 F.2d 633, 642 (5th Cir. 1985)), overruled on other grounds
by St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); see also Tyler v. La-Z-Boy
Corp., 506 F. App’x 265, 269 (5th Cir. 2013) (unpublished) (quoting Nichols, 81 F.3d
at 41). “In the context of a reduction in force, . . . , the fact that an employee is
qualified for his job is less relevant—some employees may have to be let go despite
competent performance.” Tex. Instruments Inc., 100 F.3d at 1181 (citation omitted);
see also Barber v. Shaw Group, Inc., 243 F. App’x 810, 811 (5th Cir. 2007)
(unpublished) (quoting Tex. Instruments Inc., 100 F.3d at 1181).
If the plaintiff establishes a prima facie case of age discrimination, “the burden
shifts to the employer to provide a legitimate, nondiscriminatory reason for
terminating employment.” Miller, 716 F.3d at 144 (Machinchick, 398 F.3d at 350).
A RIF is a legitimate, nondiscriminatory reason for discharging an employee.
E.E.O.C. v. Tex. Instruments Inc., 100 F.3d 1173, 1181 (5th Cir. 1996). “Performance
deficiencies are also a legitimate reason for discharge.” Kilgore, 2013 WL 4031038,
at *3 (citing Davis v. W. Cmty. Hosp., 786 F.2d 677, 683 (5th Cir. 1986)); see also
Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 326 (5th Cir. 2002) (citing
12
Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 408 (5th Cir. 1999)).
If the employer meets its burden, “the burden shifts back to the employee to
prove either that the employer’s proffered reason was not true—but was instead a
pretext for age discrimination—or that, even if the employer’s reason is true, he was
terminated because of his age.” Miller, 716 F.3d at 144 (citing Gross, 557 U.S. at
180). “To make a showing of pretext sufficient to submit her case to a jury, [the
plaintiff] ‘must put forward evidence rebutting each of the nondiscriminatory reasons
the employer articulates.’” Ramirez v. Landry’s Seafood Inn & Oyster Bar, 280 F.3d
576, 577 (5th Cir. 2002) (quoting Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220
(5th Cir. 2001)).
III.
ANALYSIS
A.
Stewart: Prima Facie Case
The Court assumes for the purpose of this opinion that Love can satisfy his
burden on all four prima facie elements of his reduction-in-force (“RIF’) ADEA
discrimination claim.
Stewart, on the other hand, has not met his burden to show that he can establish
a prima facie case of age discrimination under the circumstances presented. Although
Stewart demonstrated that he was within the age group protected under the ADEA
when discharged and was adversely affected by his discharge, he has failed to
13
demonstrate that he was qualified to assume another position at the time of the
discharge.42 Stewart worked in counter sales for the twelve and a half years preceding
his discharge.43 It was the only job he ever held at the Conroe store.44 Although the
job of a counter salesperson appears very similar to that of an inside salesperson,45
Stewart did not do—and had never done—bids,46 a fundamental job duty of an inside
salesperson.47 Furthermore, when doing formal bids, employees were usually required
to use a computer,48 a skill Stewart admitted he lacked.49 He acknowledged that he
could not type.50 He also has offered no evidence that he was qualified to work in any
other position at the Conroe location, including working in outside sales, the
warehouse, or the showroom. It is undisputed that prior managers had asked Stewart
to take on additional tasks associated with an outside salesperson position, i.e.,
42
See, e.g., Woodhouse, 92 F.3d at 252 (citations omitted); Nichols, 81 F.3d at 41.
43
Stewart Depo., at 18, 40.
44
Id.
45
See, e.g., Love Depo., at 20-21; Declaration of Jeff Brewer [Exh. G to 46-7] (“Brewer
Decl.”), at 34 ¶ 2.
46
Stewart Depo., at 18-19, 49.
47
See, e.g., Love Depo., at 23-24.
48
Id. at 23-24.
49
Id.
50
Id. at 18-19, 40-41; Love Depo., at 23-24.
14
seeking new sales, but he did not do so.51 Stewart also admits that he had not spent
more than minimal time working in the showroom and had not worked in the
warehouse with any regularity.52 Stewart has not shown that he was qualified to
assume a different position at the Conroe store at the time of the RIF. He accordingly
has failed to establish a prima facie case of age discrimination.
B.
Pretext
Assuming that Plaintiffs both have demonstrated a prima facie case of age
discrimination, neither Plaintiff has demonstrated that Defendants’ proffered reasons
for discharging him were pretextual. Defendants have articulated several legitimate,
nondiscriminatory reasons for terminating Plaintiffs’ employment—a RIF due to the
poor economy and associated weak sales, as well as Plaintiffs’ respective performance
issues. Plaintiffs do not argue that the RIF was pretextual.53 Instead, Plaintiffs dispute
Boyd and Hanley’s decision, as part of the RIF, to discharge them rather than
51
See id. at 29-30 (former manager Jim Brewington asked Stewart to make outside sales
to builders but Stewart did not attempt to do so), 35-36 (former manager Robert
Meadows asked Stewart to make outside sales to plumbers but Stewart did not attempt
this either).
52
Stewart Depo., at 48-50.
53
Both Love and Stewart testified that Defendants were facing financial issues. See,
e.g., Love Depo., at 46, 77-78; Stewart Depo., at 58-59, 61-64. Defendants offered
undisputed evidence that they were impacted by the economic downturn in 2009.
Sales in 2009 were $1.3 million lower than in 2008, and profits dropped by 50%
during that time period. Boyd Decl., at 4, ¶ 9.
15
discharge other employees at the Conroe store.
1.
Love’s Failure to Show Pretext
Defendants argue that Love was chosen as the first employee to be laid off
because he “was the least productive employee in terms of gross margins, was slow
in his work, and lacked typing and computer skills, which often required him to ask
others for help in performing sales tasks such as preparing bids for customers.”54 The
time spent helping Love took the other employees away from their own job duties and
likely lowered their productivity.
Love does not offer evidence to refute Defendants’ proffered reasons for his
discharge. First, Love admits that he lacked computer and typing skills, that it took
him a long time to enter bids into the computer, and that he required assistance to
input bids if the bids needed to be done in a timely manner.55 Stewart confirmed that
Love was slow,56 and one of Love’s former managers, Jim Brewington, also criticized
54
Love Motion, at 2. Love testified that his typing skills deserve a grade lower than “a
C plus,” the grade given him by Boyd. Love Depo., at 93.
55
Love Depo., at 23-24, 70, 132. Furthermore, Defendants offered evidence that Love
made a mistake on a quote to Rock of Ages, his largest customer, that cost the
Defendants to lose approximately $1,200 on a single order. Love Performance
Review, at 15. Love does not explicitly dispute that the incident occurred and could
not recall exactly what happened. See Love Depo., at 108-09.
56
Stewart Depo., at 70. Love also admitted that he was “meticulous” in his work,
resulting in him taking “a few more minutes to check orders.” See, e.g., id.
16
him for being slow.57
Second, Love has not offered competent summary judgment evidence that he
did not have the lowest gross margins.58 Love testified that he did not dispute the
sales numbers presented by Defendants.59 Rather, Love argues that his lower gross
margins are misleading or incorrect because the other inside sales employees, Donald
Ballard and Matthew Brewington, received credit for sales made by their store
manager, Boyd. Love has presented no evidence of account and sales transfers other
than their conclusory deposition testimony. Love merely speculates that sales were
transferred; he offers no non-speculative evidence of transfers of any particular
accounts, of the value of the allegedly transferred sales or accounts, or whether the
alleged transfers were included in or impacted gross margins for which Love was held
accountable.60 If the transfers alleged by Love occurred, there is no evidence that the
57
Love Depo., at 61-62. Love’s positive performance review from Kennie Bates in
2006 is too remote in time to create a genuine issue of material fact.
58
See Dan Love Sales Figures [Exh. 47 to Doc. # 66-1], at 2; Matthew Brewington
Sales Figures [Exh. 48 to Doc. # 66-2], at 2; Rock of Ages Customer Sales Detail
[Exh. 49 to Doc. # 66-3], at 2; Sales and Margins Report [Exh. 109 to Doc. # 71-1],
at 3; Sales by Salesperson [Exh. 112 to Doc. # 71-4], at 2-3.
59
Love Depo., at 115-18.
60
See Love Depo., at 16, 127-28, 131. Although Love named three accounts that he
believed were transferred, see id. at 124-26, 143-44, he could not identify, and offered
no documentary or other proof concerning, how many sales were transferred, the
value of the sales, or how the sales in question impacted gross margins. Indeed, Love
(continued...)
17
transfers caused Love’s gross margins to appear meaningfully lower than the younger
employees. The Court finds Love has failed to raise a genuine question of material
fact that Defendants’ reasons for Love’s selection for lay off were false or otherwise
pretextual. The Court therefore grants Defendants’ Motion for Summary Judgment
as to Love.
2.
Stewart’s Failure to Show Pretext
Stewart also has failed to demonstrate that Defendants’ proffered reasons for
discharging him were pretextual. Defendants assert that Stewart was chosen for lay
off because “his attitude and work performance were considered lower than the
employees retained,” customers had complained about him, he showed no
improvement during the four month period after his August meeting with Boyd, and
he was unable to “do bid work” because he could not use the computer proficiently.61
Stewart admitted that customers filed complaints against him and that he was “written
60
(...continued)
could not identify a single sale “in the range of $100,000” that was transferred. Id.
at 146. Further, in one of the three examples (Mr. Wheatley’s account), Jeff Brewer,
who had no role in the RIF decisions, was the person who chose Matthew Brewington
to write up the bids. Brewer Decl., at 35. Plaintiffs have offered no evidence to the
contrary and have not alleged that Brewer was a decision-maker or discriminated
against them.
61
Stewart Motion, at 2; Stewart Memorandum, at 9-10.
18
up” because of a customer complaint before he was laid off.62 Boyd testified that
before or at the time of Stewart’s discharge, customers had not filed complaints
against any other salespeople.63 Plaintiff has offered no evidence to the contrary or
that other Conroe store employees were treated more favorably after similar
complaints. Further, Stewart testified that he could not do bid work,64 a regular part
of the inside salesperson position,65 and that he had a positive relationship with Boyd
until it deteriorated a few weeks before he was laid off when Stewart was asked to
sign an employee disciplinary report.66 Stewart offered no evidence of pretext and has
not discredited the reasons proffered by Defendants.67 Stewart accordingly has failed
62
Stewart Depo., at 77, 82, 88, 92-94.
63
Boyd Depo., at 154-55.
64
Stewart Depo., at 40-41.
65
See, e.g., Love Depo., at 23-24.
66
Stewart Depo., at 24-28; January 11, 2010 Employee Disciplinary Report [Exh. 25 to
Stewart Doc. # 48-5], at 101.
67
Defendants do not argue that Stewart’s low gross-margins were a basis for his
discharge. Stewart nevertheless appears to argue that his layoff was pretextual due
to the alleged transfer of sales and accounts by Boyd to people other than Stewart.
See Stewart’s Response, at 26-27, 29. There is no evidence that Stewart’s gross
margins were considered by Boyd and Hanley as a reason for his layoff. However,
to the extent this argument is relevant to Stewart’s argument of pretext, he has not
presented sufficient evidence of account and sales transfers. Stewart did not know,
and has presented no evidence regarding, how many sales or accounts were
transferred. See Stewart Depo., at 91. Indeed, he was not even sure if sales or
accounts could be transferred. See id. at 127. Although he alleged that Boyd
(continued...)
19
to raise a genuine question of material fact on pretext, and Defendants’ Motion for
Summary Judgment as to Stewart is granted.68
3.
Other Candidates for the RIF
Plaintiffs appear to generally argue that other employees should have been
chosen as part of the RIF. If a plaintiff is attempting to show age discrimination based
on the retention of a younger employee or the hiring of a younger replacement, the
(...continued)
transferred sales of multiple customers to younger employees, Stewart only testified
to the transfer of sales from one account, Bic’s Plumbing, to one younger employee,
Matthew Brewington. Even with regard to that transfer, Stewart was not aware of the
amount of sales that were transferred. See id. Additionally, even if sales or accounts
were transferred to Brewington, in 2009, Brewington’s sales were over one million
dollars higher than Stewart’s sales (and Love’s sales) and his gross margin was almost
double that of Stewart’s (and over double that of Love’s). See Sales and Margins
Report, at 3.
68
Plaintiffs argue that the reasons for their discharge are pretextual because the reasons
Stewart was chosen for discharge are not the same reasons that Love was chosen. See
Love’s Response, at 28-29; Stewart’s Response, at 28-29. This argument patently
lacks merit. There is no requirement that in a RIF, an employer must lay off all
employees with the same performance-related issues, or that an employer can only use
a single criterion to evaluate employees.
Additionally, Plaintiffs contend that Boyd’s evaluation of them creates a genuine
issue of fact because it is based on solely subjective criteria. Love’s Response, at 27;
Stewart’s Response, at 27-28. The Court disagrees. Boyd and Hanley’s layoff
decisions were not solely based on Boyd’s graded ranking of the Conroe employees.
Love’s discharge was based, in part, on his low gross margins, his lack of computer
skills, and the slow speed of his work. Gross margins are objective criteria. Indeed,
Love testified that he thought layoffs should be based on employee’s sales. Love
Depo., at 49. Further, Love admits to his lack of computer and typing skills, and the
evidence reveals that Love was slow with this work. In Stewart’s case, objective
criteria—that customers had complained about Stewart and he could not do bid
work—were significant grounds used to determine whether he should be discharged.
20
plaintiff must demonstrate that the younger employee was “clearly less qualified.”
See Tex. Instruments Inc., 100 F.3d at 1181 (citation omitted) (emphasis added); see
also Daniel v. Universal ENSCO, Inc., 507 F. App’x 434, 439 (5th Cir. 2013)
(unpublished) (citing Moss v. BMC Software, Inc., 610 F.3d 917, 923 (5th Cir. 2010);
Nichols, 81 F.3d at 42); Tyler, 506 F. App’x at 270; Ratcliff v. ExxonMobil Corp., 57
F. App’x 210, 210 (5th Cir. 2002) (unpublished)); Nichols, 81 F.3d at 41-42.
Significantly, the Court must focus on “why the plaintiff rather than another employee
was discharged” rather than “on why employees, in general, were discharged.”
Woodhouse, 92 F.3d at 253 (quoting Thornbrough, 760 F.2d 642). Plaintiffs have
failed to meet this burden. They have offered no evidence that they were clearly more
qualified than the other Conroe store employees who were not laid off.
Plaintiffs contend that they were replaced by Brewer, who was moved from
outside sales to inside sales in October or November 2009, close in time to Plaintiffs’
discharges.69 This argument lacks merit. First, Boyd’s transfer of Brewer to an inside
sales position does not constitute the replacement of either Love or Stewart. “[A]
terminated employee has not been ‘replaced’ when his position is eliminated and his
former duties are distributed among other co-workers.” Rexes v. The Goodyear Tire
& Rubber Co., 401 F. App’x 866, 868 (5th Cir. 2000) (unpublished) (citing Dulin v.
69
See Love’s Response, at 36; Stewart’s Response, at 32.
21
Dover Elevator Co., 139 F.3d 898, at *3 (5th Cir.1998) (unpublished)). Because
Brewer was already employed by Defendants, he did not “replace” Love or Stewart
when he allegedly assumed Love’s, and later Stewart’s, duties. Second, for the
reasons articulated above, Plaintiffs have offered no evidence that either Stewart or
Love was clearly more qualified for the inside sales position than Brewer. Indeed, the
evidence is to the contrary. Third, Brewer was only two years younger than Love at
the time of Plaintiffs’ discharges.
Such an small age gap is too minimal to
demonstrate pretext as to Love.70
4.
Other Arguments
Isolated Evaluations.— Plaintiffs contend they were targeted for evaluation
resulting in their discharge because no other employees were evaluated or presented
with reviews and expectations in August and September 2009.71 In fact, Plaintiffs
were given formal performance reviews only after Boyd evaluated all of the
employees at the Conroe store and Plaintiffs received the lowest two scores.72
70
See Jackson, 602 F.3d at 378 n.18 (citing O’Connor v. Consolidated Coin Caterers
Corp., 517 U.S. 308, 312-13 (1996), for the proposition that “replacement by
someone ‘substantially younger’ can be an indicator of age discrimination”); Williams
v. Harris Cnty. Hosp. Dist., 54 F. App’x 412, 412 (5th Cir. 2002) (unpublished)
(same).
71
See Love’s Response, at 35-36, 38; Stewart’s Response, at 31-34.
72
Employee Ratings, at 5-7. Further, Stewart admitted that he was not asked to spy on Love;
(continued...)
22
Additionally, Defendants have offered uncontradicted evidence that Boyd evaluated
and took disciplinary action against younger employees. Boyd terminated Lisa
Grubbs, a showroom salesperson in her 30’s, for performance deficiencies.73 Bo
Scholze, a driver in his 20’s, was warned that he would be terminated if he did not fix
his performance deficiencies, and he ultimately voluntarily resigned.74 Plaintiffs’
arguments that they were singled out for evaluation are belied by the record.
Statistical Evidence.— Next, Plaintiffs argue that there is statistical evidence
of age discrimination.75 Although “generalized statistical evidence will rarely rebut
a particularized nondiscriminatory rationale, statistical evidence may be probative of
pretext in limited circumstances, however.” Tex. Instruments Inc., 100 F.3d at 1185
(citing Deloach v. Delchamps, Inc., 897 F.2d 815, 820 (5th Cir. 1990)); see also
Bauer v. Albemarle Corp., 169 F.3d 962, 968 (5th Cir. 1999). As explained in
Walther v. Lone Star Gas Co., 952 F.2d 119 (5th Cir.), on rehearing, 977 F.2d 161
(5th Cir. 1992):
72
(...continued)
rather, he was asked only whether Love was “staying busy” and “what was going on with
him.” Stewart Depo., at 112.
73
Boyd Decl., at 6 ¶ 15; Texas Employees 2007 [Exh. 117 to Doc. # 72], at 19.
74
Boyd Decl., at 6 ¶ 15; Texas Employees 2007, at 19; Texas Employees 2008
[Exh. 118 to Doc. # 72-1], at 8.
75
See Love’s Response, at 37-38; Stewart’s Response, at 32-33.
23
[G]ross statistical disparities resulting from a reduction in force or
similar evidence may be probative of discriminatory intent, motive or
purpose. Such statistics might in an unusual case provide adequate
circumstantial evidence that an individual employee was discharged as
part of a larger pattern of layoffs targeting older employees. This is not
to say that such statistics are enough to rebut a valid,
nondiscriminatory reason for discharging a particular employee.
Generally, they are not . . . . [P]roof of pretext, hence of discriminatory
intent, by statistics alone would be a challenging endeavor.
Id. at 162 (citations omitted) (bolded, italicized emphasis added; italicized emphasis
in original). “‘[P]articularly in age discrimination cases where innumerable groupings
of employees are possible according to ages and divisions within the corporate
structure, statistics are easily manipulated and may be deceptive.” Tex. Instruments
Inc., 100 F.3d at 1185 (citing Walther, 952 F.2d at 124). “[A] statistical analysis that
did not purport to analyze the facts surrounding the circumstances of the individual
at issue was ‘impotent’ to establish whether an employer’s stated reasons were
pretextual.” Joseph v. City of Dallas, 277 F. App’x 436, 442 (5th Cir. 2008)
(unpublished) (citing Tex. Instruments Inc., 100 F.3d at 1185). Accordingly, courts
consider statistical evidence probative as to pretext when “the plaintiff ha[s] offered
particularized evidence directly challenging the defendant’s announced rationale.”
Tex. Instruments Inc., 100 F.3d at 1185 (collecting cases).
Here, Plaintiffs’ data lacks probative value. Plaintiffs’ raw numerical data has
24
not been shown to have any statistical significance.76 See Hughes v. Brinker Int’l,
Inc., No. 07-11104, 2008 WL 2325645, at *1 (5th Cir. 2008) (“[The plaintiff]
provides no analysis of this evidence beyond the raw number and offers no
explanation of its context. Without more, the statistical information fails to show
pretext.” (citing Cheatham v. Allstate Ins. Co., 465 F.3d 578, 583 (5th Cir. 2006)));
Cheatham, 465 F.3d at 583 (“These statistics are not probative of discriminatory intent
because they are devoid of context.” (citing Tex. Instruments Inc., 100 F.3d at 1185));
Odom v. Frank, 3 F.3d 839, 849 (5th Cir. 1993) (explaining that the raw data
presented to the district court “without more, is not competent to prove anything”),
abrogated on other grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006);
Gonzalez v. Conoco, Inc., No. H-98-3109, 2000 WL 251744, at *11 (S.D. Tex. Feb.
1, 2000) (same). Additionally, Plaintiffs’ data is incomplete. Plaintiffs did not
provide data regarding employees who were not considered for layoffs or who were
retained.
Discriminatory Comments.— Finally, despite Plaintiffs’ deposition testimony
76
The data provided includes employees who worked at locations where Boyd and
Hanley, the decision-makers regarding Plaintiffs, had no decision-making authority
(outside the Conroe location and outside the South Texas region, respectively).
Plaintiffs do not allege that anyone else employed by Defendants discriminated
against them based on their age. See, e.g., Love Depo., at 14-15; Stewart Depo., at
10-11.
25
that Boyd and Hanley did not make any comments that reflected age discrimination,77
Plaintiffs now argue that Boyd and Hanley made age-related comments that
demonstrate their discriminatory intent.78 “Remarks may serve as sufficient evidence
of age discrimination if they are: 1) age related, 2) proximate in time to the
employment decision, 3) made by an individual with authority over the employment
decision at issue, and 4) related to the employment decision at issue.” Medina v.
Ramsey Steel Co., Inc., 238 F.3d 674, 683 (5th Cir. 2001) (citing Brown v. CSC Logic,
Inc., 82 F.3d 651, 655-56 (5th Cir. 1996)). Plaintiffs argue that Boyd made comments
concerning Love’s lack of computer skills; that Hanley suggested that a strong
salesperson would have knowledge of Defendants’ computer system; and that Boyd
suggested to Love that he could try to find employment at the data-based computer
entry business opening next to the Conroe store.79 These comments are insufficient
to establish discriminatory bias based on Plaintiffs’ ages. None invoked Plaintiffs’
77
See Love Depo., at 12-14; Stewart Depo., at 10-11.
78
See Love’s Response, at 34-35; Stewart’s Response, at 29-31.
79
To the extent Love asserts that a reference to him in a 2005 newsletter as a “young
man” is evidence of discrimination, see The Connection [Exh. 45], dated June 8, 2005
(provided to the Court in paper copy only), the comment is too remote in time to be
competent evidence of discrimination. Additionally, this reference is not relevant to
Love’s claim because was made by Kennie Bates, who did not work for Defendants
at the time of Love’s discharge and had no role in Boyd and Hanley’s decision to
discharge Love.
26
ages expressly. Moreover, as explained previously,80 Boyd’s critiques of Love’s
computer skills and work speed were accurate descriptions of Love’s abilities.
Further, the Fifth Circuit has affirmed summary judgment in cases where employees
were fired due to their lack of computer or technological skills. See, e.g., Ratcliff, 57
F. App’x at 210; Tex. Instruments Inc., 100 F.3d at 1176-78, 1183-84.81 The fact that
an employee is criticized for the speed of his work or productivity, without more, is
not a reference to the employee’s age. These comments by themselves do not
establish pretext. See Woodhouse, 92 F.3d at 254 n.4.
IV.
CONCLUSION
Stewart has failed to establish a prima facie case of age discrimination.
Plaintiffs both have failed to show that Defendants’ legitimate, nondiscriminatory
reasons for discharging them were pretextual. Accordingly, it is hereby
ORDERED that Defendants Hajoca Corporation, LCR-M General LLC, LCRM LP, and Moore Supply Company’s Motion for Summary Judgment as to Plaintiff
Dan Love [Doc. # 46] is GRANTED. It is further
ORDERED Defendants Hajoca Corporation, LCR-M General LLC, LCR-M
80
See Section III.B.1.
81
As to Plaintiffs’ remaining arguments, Plaintiffs’ fail to demonstrate how Defendants’
Corporate Office’s failure to review the layoff decisions or failure to show employees
their job descriptions demonstrates pretext. See Love’s Response, at 38; Stewart’s
Response, at 33-34.
27
LP, and Moore Supply Company’s Motion for Summary Judgment as to Plaintiff John
Stewart [Stewart Doc. # 48] is GRANTED. It is further
ORDERED that Plaintiff John Stewart’s Motion to Strike [Stewart Doc. # 53]
is DENIED as moot. The Court did not rely on any of the evidence to which Stewart
objected in reaching its conclusions. The Court evaluated the full record and did not
rely on the statements in Defendants’ Statement of Facts to which Stewart objected.
A final judgment will be filed separately.
SIGNED at Houston, Texas, this 11th day of September, 2013.
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