Tagliabue v. Orkin LLC

Filing 37

MEMORANDUM granting 34 Orkin's MOTION for Summary Judgment. (Signed by Judge Kenneth M Hoyt) Parties notified.(chorace)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
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Plaintiff,
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VS.
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ORKIN LLC d/b/a ORKIN PEST CONTROL, §
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Defendant.
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June 20, 2018
David J. Bradley, Clerk

PAUL A. TAGLIABUE JR.,

CIVIL ACTION NO. 6:17-CV-0013

MEMORANDUM
I.
Before the Court is the defendant’s, Orkin LLC, d/b/a Orkin Pest Control (“Orkin”),
motion for summary judgment [DE 34], the plaintiff’s response [DE 35] and Orkin’s reply [DE
36]. After a careful review of the motion, the attachments and exhibits, the response, reply and
the arguments of counsel, the Court determines that Orkin’s motion for summary judgment
should be granted.
II.
The plaintiff, along with his family, owned a pest control business that was purchased by
Orkin around 1993. After the purchase, the plaintiff continued his employment with Orkin until
January 30, 2015, when he retired. During the years between the two dates, the plaintiff held the
position of branch manager and had as part of his duties dissemination of the company handbook
and policies to new employees. He participated in the hiring and paperwork of new employees
and secured signatures on critical documents. The plaintiff had charge of all postings concerning
state and federal law such as postings included postings from OSHA, workers compensation and
the EEOC, all designed to explain to employees their rights under the laws. In addition, the

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plaintiff was responsible for receiving employee complaints concerning conditions of
employment, including claims for discrimination or harassment. During his employment, no
employee ever made a complaint to the plaintiff concerning his/her employment and neither did
the plaintiff.
In 2009, the plaintiff spoke to his supervisor about retiring in December 2013, at a time
when his retirement benefits vested. The discussion was raised by the plaintiff and was freely
discussed between the plaintiff and his supervisor. As 2013 approached, discussions between the
plaintiff and his supervisor began focusing on a specific retirement date and the plaintiff
participated in the selection and training of his replacement.
The plaintiff’s replacement began the management training process in 2013. However,
when the plaintiff’s retirement date came, he chose not to retire at that time and, according to the
plaintiff’s supervisor moved the date ahead about a year.

During that year, the plaintiff

announced to other branch employees that he would soon be retiring and introduced his
replacement to them. In September 2014, a date the plaintiff disputes, the plaintiff and his
supervisor discussed an end-of-year or January 30, 2015, final work day. The plaintiff was told
in December that January 30, 2015, would be his last day, and his supervisor pushed to get the
plaintiff’s vacation pay earlier than usual and paid in advance. The plaintiff never “pushed back”
on any of the retirement activities. Therefore, on January 30, when the plaintiff received a call
from his supervisor and was informed that everything was in order, that he could leave early, he
was not surprised.
III.
The plaintiff contends that he was forced out of his employment because of his age, a
violation of the Age Discrimination in Employment Act of 1967 (“ADEA”) 29 U.S.C. §§ 621 et.

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seq. As well, he contends his termination violated the Older Workers Benefit Protection Act of
1990,1 again because of his age. As a result, the plaintiff filed this complaint asserting age
discrimination.
To prevail on this claim, or at the least, overcome Orkin’s motion for summary judgment,
the plaintiff must establish a prima facie case of discrimination and overcome any legitimate
non-discriminatory basis for the plaintiff’s separation from employment. See Gross v. FBL Fin.
Servs., Inc., 557 U.S. 167, 176 -78 (2009); Berquist v. Washington Mutual Bank, 500 F.3d 344,
349 (5th Cir. 2007); see also Haskett v. T. S. Dudley Land Co., 2017 WL 4155413 at 4 (S.D.
Tex., Sept. 18, 2017)(internal citations omitted) (“Pretext cannot be established by mere
conclusory statements of a plaintiff who feels [he] has been discriminated against”).
A prima face case of age discrimination requires a plaintiff to establish that:

(a) he was

discharged; (b) he was qualified for the position; (c) he was within the protected class at the time
of discharge; and (d) he was either, replaced by someone outside the protected class, replaced by
someone younger or discharged because of his age. McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973).
IV.
The evidence fails to establish a prima facie case of age discrimination because the
plaintiff cannot establish that he was discharged from his employment. A triggering mechanism
for an age discrimination claim is evidence that the plaintiff suffered an adverse employment
action. The evidence is undisputed that the plaintiff was not terminated but separated due to his
retirement. He admits that he discussed retirement as early as September 2009. Moreover, those
discussions continued as the plaintiff’s projected retirement date approached culminating in a

1

The plaintiff does not have standing to sue under the OWBPA because he did not waived his rights under the
ADEA. See Williams v. Cigna Finance Advisors, Inc., 56 F.3d 656, 660 (5th Cir. 1995).

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retirement that included advanced vacation and sick day payments. The evidence shows that,
although the plaintiff was fully aware of his rights under federal and state law, he never
complained to HR or upper management. In fact, he cooperated to complete the retirement
process.
An employer’s decision, coupled with that of the employee to end an employment by
retirement does not constitute an adverse employment action. See Texas State Office of Admin.
Hearings v. Birch, No. 04-12-00681-CV-2013; WL 3874473 at 12 (Tex. App. July 24, 2013). At
the time that the plaintiff’s retirement date was established, the plaintiff selected his replacement,
participated in training her, announced his retirement to fellow employees, introduced his
replacement to coworkers, and worked with his supervisor and HR to complete his retirement
package. It is undisputed that the plaintiff intended to retire. He now simply disputes the date
chosen.
In asserting that age was the basis for his termination, the plaintiff also points to “stray
remarks” by his supervisor regarding his age. The evidence shows, however, that the stray
remarks that the plaintiff complains about took place within the context of retirement discussions
and during company meetings where management questioned whether the aging of the company
employees was a factor in the company’s revenue decline. The evidence shows that the remarks
were scattered across the group and, on occasion, were spoken by the plaintiff, himself. No
reasonable jury would conclude that the remarks were other than shop talk since the plaintiff’s
decision to retire was known by the plaintiff’s manager and other employees at the time. See
EEOC v. Texas Instruments, Inc., 100 F.3d 1173, 1181 (5th Cir. 1996).

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V.
Summary judgment, pursuant to Fed. R. Civ. P., 56 is appropriate when no genuine issue
of material fact exists that bars judgment in behalf of the movant as a matter of law. Little v.
Liquid Air. Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). In this case, the plaintiff has failed to
establish that he suffered an adverse employment action. The direct and undisputed evidence
shows that the plaintiff’s decision to retire was, at best, advanced to a date that the plaintiff did
not choose. Therefore, Orkin’s motion for summary judgment should be and it is Hereby
Granted.
It is so Ordered.
SIGNED on this 20th day of June, 2018.
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Kenneth M. Hoyt
United States District Judge

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