Equal Employment Opportunity Commission v. Lehi Roller Mills
Filing
146
WRITTEN MEMORANDUM DECISION AND ORDER Following 127 Minute Entry/Order on Motion for Summary Judgment, Motion to Dismiss, Motion for Partial Summary Judgment(oral order of 8/21/12). Signed by Judge David Nuffer on 5/1/14 (alt)
Stephanie Struble CO #34598 (Pro Hac Vice) (email: Stephanie.Struble@eeoc.gov
William Moench MO # 34420 (Pro Hac Vice) (email: William.Moench@eeoc.gov)
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Denver Field Office
303 E. 17th Avenue, Suite 410
Denver, Colorado 80203
Telephone: (303) 866-1381
Attorneys for Plaintiff EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
Civil Action No. 2:08-cv-00591 DN
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
MEMORANDUM DECISION
AND ORDER DENYING
SUMMARY JUDGMENT
Plaintiff,
v.
DAVID NUFFER
UNITED STATES DISTRICT
JUDGE
LEHI ROLLER MILLS CO., INC.,
Defendant.
Defendant Lehi Roller Mills Co., Inc’s Motion for Summary Judgment 1 and
Defendant’s Motion to Dismiss the Second Claim of Plaintiff-in-Intervention James Alan
Breece’s Complaint in Intervention, or In the Alternative, for Partial Summary Judgment
on that Claim 2 are resolved in this order. Oral argument was held August 21, 2012, and
an oral ruling denied both motions.
1
2
Docket no. 74, filed June 3, 2011.
Docket no. 110, filed March 2, 2012.
1
Plaintiff EEOC and Plaintiff-in-Intervention Breece allege that Defendant violated
the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 623 et. seq. (“ADEA”)
and Title I of the Americans with Disabilities Act (“ADA”) when Defendant suspended
Breece and then terminated his employment. Plaintiffs also allege that Defendant
violated the ADA when the President of Lehi Roller Mills, R. Sherman Robinson,
improperly inquired about Mr. Breece’s diabetes during his employment.
Defendant moved for summary judgment on each of these claims. Specifically,
Defendant argued that the EEOC failed to establish a prima facie case of age
discrimination or disability discrimination because Mr. Breece was ultimately replaced
by an individual who was undisputedly older than Mr. Breece and who also had
diabetes. Defendant moved for summary judgment with respect to Plaintiffs’ improper
medical inquiry claim on the basis that Mr. Breece voluntarily disclosed his diabetes to
Lehi Roller Mills and because Mr. Breece allegedly suffered no adverse employment
action based on any inquiry. Defendant also moved to dismiss the medical inquiry claim
contending that Plaintiff-in-Intervention Breece failed to exhaust his administrative
remedies with respect to that claim. Viewed in the light most favorable to Plaintiffs, as is
required when a court rules on summary judgment, there are material issues of fact
barring summary judgment on each claim.
AGE DISCRIMINATION CLAIM
With respect to Plaintiffs’ claims that Mr. Breece’s suspension and termination
were because of his age, there is direct evidence of discriminatory motive that is
sufficient alone to raise a fact issue for trial as to whether age was a determinative
2
factor in the employment decisions in this case. During the meeting placing Mr. Breece
on leave, Plaintiffs allege that Mr. Robinson told Mr. Breece that he was “getting old,”
and that the company wanted to implement new ideas from younger employees.
Further, Plaintiffs allege that after this meeting, Mr. Robinson told Mr. Breece’s daughter
that Mr. Breece had been placed on leave, explaining that Mr. Breece was “not as
young as he used to be” and urging Ms. Smith (who was 27 years old at the time) to
stay to be “part of the younger generation” that they now had at the facility. Finally,
Plaintiffs provided evidence that Brock Knight, the Chief Operations Officer at Lehi
Roller Mills, when discussing the termination of Mr. Breece with Mr. Tucker, stated that
Lehi Roller Mills wanted to bring in a new, younger management team.
Defendant contends that these statements cannot constitute direct evidence
because no one ever said “we are firing you because of your age.” There are no magic
words, however, required for establishing direct evidence of discriminatory motive. A
decision-maker does not have to use the language “because of” to communicate his or
her discriminatory motive. Rather, the question is whether the statements lead to the
conclusion that the adverse action was taken because of the person’s protected status
without inference or presumption. Here, if proven at trial, the statements Plaintiffs
allege were made constitute direct evidence of discriminatory motive under the ADEA
because they were made in temporal proximity to his termination and were made by a
decision-maker to Mr. Breece or his family member.
Defendant argues that Plaintiffs’ age discrimination claim cannot proceed
because Mr. Breece was ultimately replaced by Mr. Brown who is undisputedly older
3
than Mr. Breece. Defendant contends that to state a prima facie case, the EEOC must
establish a fourth element, which requires replacement by someone younger than the
plaintiff. First, there is Tenth Circuit authority that this fourth element of a prima facie
case is flexible and that replacement by someone younger is not a required element.
Greene v. Safeway Stores, Inc. 3 stands for the proposition that where there is direct
evidence, the prima facie case, which allows for an inference of discrimination, is not
required. 4
Because Plaintiffs have presented direct evidence of discriminatory motive,
summary judgment must be denied on the age discrimination claim.
ADA CLAIMS
Disability Discrimination
Regarding Plaintiffs’ disability claim, there are substantial material facts in
dispute regarding the rationale for Mr. Breece’s termination. Defendant contends that
Plaintiffs’ ADA claim cannot succeed because Mr. Breece was ultimately replaced by
another individual who also has diabetes.
First, a prima facie case of disability discrimination does not require that Plaintiffs
prove that Mr. Breece was replaced by an individual without a disability. Second, taken
in the light most favorable to Plaintiffs, the Plaintiffs have presented evidence that Mr.
Breece’s replacement was Mr. Tucker, who does not have diabetes. A temporary
replacement is sufficient to satisfy the prima facie case where that replacement is later
replaced by a “permanent” replacement. An employer cannot immunize itself from
3
th
, 98 F.3d 554, 562 (10 Cir. 1996)
See e.g., Plotke v. White, 405 F.3d 1092, 1099-1100 (10th Cir.2005) (fourth element of the prima facie
case “is a flexible one that can be satisfied differently in varying scenarios”).
4
4
liability for employment discrimination by later hiring a replacement in the same
protected category as the Plaintiff. 5 To rule otherwise would allow the employer to
control the plaintiff’s claim by later action. Third, taken in the light most favorable to
Plaintiffs as required on summary judgment, the EEOC has submitted evidence that the
“permanent” replacement’s diabetes is not a disability under the ADA.
Defendant also argues that because Defendant was aware that Mr. Breece had
diabetes for years prior to his termination, Plaintiffs have not established causation.
There are numerous ways to prove causation, however. Here, Plaintiffs have presented
evidence sufficient to raise a factual dispute regarding Defendant’s motive by presenting
evidence of statements made during the meeting when Mr. Breece was suspended.
Further, Plaintiffs have presented material issues of fact regarding whether Defendant’s
reasons for terminating Mr. Breece were pretextual. Accordingly, genuine disputes of
material fact exist precluding summary judgment on Plaintiffs’ claim that Mr. Breece
was suspended and then terminated because of his disability.
Medical Inquiry Claim
Plaintiffs’ medical inquiry claims under the ADA also survive Defendant’s motions.
First, disclosure of a condition is not a license for inquiry. There is no waiver of the
medical inquiry provision of the ADA by disclosure. Specifically, the fact that Mr. Breece
voluntarily disclosed his diabetes does not excuse Defendant’s improper medical
inquiries.
5
th
Pitre v. Western Elec. Co., Inc., 843 F.2d 1262, 1272 (10 Cir. 1988).
5
Further, Breece did exhaust his administrative remedies with respect to the
medical inquiry claim. The purpose of exhaustion is to provide notice of the alleged
violation and give the EEOC an opportunity to conciliate the claim. Here, the EEOC
investigated the improper medical inquiry claim and issued a finding that this section of
the ADA was violated. The EEOC then offered Defendant an opportunity to conciliate
the claim. This is sufficient to meet the requirements for exhaustion under the ADA and
Defendant’s motion to dismiss, or alternatively, for summary judgment for failing to
exhaust administrative remedies, is denied.
Finally, Defendant argues that Breece cannot prove that any improper medical
inquiry proximately caused his injury. It points out that Breece disclosed his diabetes
years before any adverse employment action. The EEOC argues, however, that Mr.
Breece’s termination is temporally connected to the illegal inquiries because within
weeks after Mr. Robinson began inquiring about Mr. Breece’s health, Mr. Breece was
placed on administrative leave. 6 At oral argument, Defendant argued that Plaintiffs
have never contended that the termination was an adverse action stemming from the
improper medical inquires and that the EEOC did not plead its medical inquiry claim to
allege termination. Both of Defendant’s contentions are incorrect. The Prayer for Relief
contained in the EEOC’s Second Amended Complaint requests economic damages
stemming from Mr. Breece’s termination. 7
The prayer for relief is applicable to all of
the EEOC’s claims, including the EEOC’s improper medical inquiry claim.
6
7
Docket no. 78, at 17.
Docket no. 52, filed November 9, 2009.
6
ORDER
IT IS HEREBY ORDERED that Defendant Lehi Roller Mills Co., Inc’s Motion for
Summary Judgment 8 is DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss the Second
Claim of Plaintiff-in-Intervention James Alan Breece’s Complaint in Intervention, or In
the Alternative, for Partial Summary Judgment on that Claim 9 is DENIED.
May 1, 2014
BY THE COURT:
_____________________
David Nuffer
United States District Judge
8
9
Docket no. 74, filed June 3, 2011.
Docket no. 110, filed March 2, 2012.
7
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