Opinion
No. C02-1002.
June 11, 2003.
ORDER
This matter comes before the court pursuant to the defendant's May 2, 2003 motion for summary judgment (docket number 13). The parties have consented to the exercise of jurisdiction by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the motion for summary judgment is denied.
In this case, the plaintiff, Sue A. Felderman, alleges that her employer, defendant Sunrise Enterprises, Inc., d/b/a Sedona Staffing Services, discharged her in August of 2001 in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 626(c)(1), and the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b). The defendant moves for summary judgment, arguing: (1) the plaintiff has failed to demonstrate age discrimination by direct evidence; (2) the plaintiff cannot prove her prima facie case; (3) the defendant had a legitimate, non-discriminatory reason for terminating the plaintiff's employment; and (4) the plaintiff cannot show pretext.
Summary Judgment: The Standard
A motion for summary judgment may be granted only if, after examining all of the evidence in the light most favorable to the nonmoving party, the court finds that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. Kegel v. Runnels, 793 F.2d 924, 926 (8th Cir. 1986). Once the movant has properly supported its motion, the nonmovant "may not rest upon the mere allegations or denials of [its] pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial."Fed.R.Civ.P. 56(e). "To preclude the entry of summary judgment, the nonmovant must show that, on an element essential to [its] case and on which it will bear the burden of proof at trial, there are genuine issues of material fact." Noll v. Petrovsky, 828 F.2d 461, 462 (8th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). Although "direct proof is not required to create a jury question, . . . to avoid summary judgment, `the facts and circumstances relied upon must attain the dignity of substantial evidence and must not be such as merely to create a suspicion.'" Metge v. Baehler, 762 F.2d 621, 625 (8th Cir. 1985) (quoting Impro Prod., Inc. v. Herrick, 715 F.2d 1267, 1272 (8th Cir. 1983)).
The nonmoving party is entitled to all reasonable inferences that can be drawn from the evidence without resort to speculation. Sprenger v. Fed. Home Loan Bank of Des Moines, 253 F.3d 1106, 1110 (8th Cir. 2001). The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. Id. Although we have stated that summary judgment should seldom be granted in employment discrimination cases, summary judgment is proper when a plaintiff fails to establish a factual dispute on an essential element of her case. Helfter v. UPS, Inc., 115 F.3d 613, 615-16 (8th Cir. 1997). The standard for the plaintiff to survive summary judgment requires only that the plaintiff adduce enough admissible evidence to raise genuine doubt as to the legitimacy of the defendant's motive, even if that evidence did not directly contradict or disprove defendant's articulated reasons for its actions. O'Bryan v. KTIV Television, 64 F.3d 1188, 1192 (8th Cir. 1995). To avoid summary judgment, the plaintiff's evidence must show that the stated reasons were not the real reasons for the plaintiff's discharge and that sex or other prohibited discrimination was the real reason for the plaintiff's discharge. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000) (quoting the district court's jury instructions).
Statement of Material Facts Taken in a Light Most Favorable to the Plaintiff
Plaintiff Sue Felderman began working for the defendant Sunrise Enterprises on July 31, 2000 in the defendant's Maquoketa office. The defendant is a staffing business whose clients are other businesses seeking employees. The defendant seeks out potential employees and fills job openings as needed by its clients. Initially, the plaintiff went to the defendant as a prospective employee looking for employment through the defendant's agency, but she was offered employment to work for the defendant directly. Her rate of pay as a full-time employee was the equivalent of $8.75 per hour. Her title was Account Manager. The plaintiff was 53 years old when she was hired.
Judy Steiner was a District Manager having responsibility for the defendant's Maquoketa office. She is 41 years old. Kirsten McLaughlin was a Branch Manager, having responsibility for the defendant's Maquoketa office and reported directly to Judy Steiner. She is 34 years old. Ms. McLaughlin interviewed the plaintiff and was the plaintiff's immediate supervisor. Ms. McLaughlin and Ms. Steiner made the decision to hire the plaintiff.
The plaintiff's job mainly consisted of placing candidates in job positions for the defendant's clients. The plaintiff's duties involved tasks from the Account Manager and Administrative Assistant positions. One of the duties required of the plaintiff was to record a thorough written log of office activities to communicate to Ms. McLaughlin the daily activities taking place in the office and who was calling looking for work. Sometime during the course of her employment, the plaintiff was informed by Ms. Steiner that her daily logs were deficient because they were incomplete.
On or about May 15, 2001, the plaintiff's work hours were reduced from full-time to part-time. The plaintiff was told that the reason for the reduction in hours was due to financial difficulties affecting the Maquoketa office. The defendant continued to pay out bonuses and sponsored a major golf outing and there was no change in the defendant's day-to-day operations during this time. The plaintiff's title and job duties remained the same.
Sometime after the plaintiff was reduced to part-time status, the defendant acquired a new client named Generac. The plaintiff attended the groundbreaking ceremony and spoke with Generac officials about doing business with the defendant. However, the plaintiff was excluded from information regarding candidates being considered for employment at Generac.
While the plaintiff was employed with the defendant, Ms. McLaughlin referred to her as "mom" on several different occasions. Ms. McLaughlin made such references approximately eight to ten times throughout the plaintiff's employment.
It was not the defendant's practice to provide written documentation to employees regarding their employment performance. The plaintiff never received any kind of performance review or warnings while she was employed. She received three raises and monthly bonuses throughout her employment with the defendant. The plaintiff has stated that her relationships with Ms. McLaughlin and with Ms. Steiner were good. After the plaintiff was terminated and at her request, Ms. Steiner wrote the plaintiff a letter of recommendation dated August 1, 2001. There were some negative remarks regarding the plaintiff's work contained in Ms. Steiner's calendar and log. These remarks began in May of 2001 after the plaintiff's employment status was reduced to part-time.
In June of 2001, Ms. Steiner contemplated the possibility of hiring someone for a newly created position of a "floating" Administrative Assistant to be shared jointly between the defendant's Maquoketa and Clinton offices. Amy Wisco was eventually hired. Ms. Wisco worked in the Maquoketa office on July 24, 2001 as a temporary employee when Ms. Steiner approached her about the possibility of working the floating Administrative Assistant position and Ms. Wisco stated she was interested. Ms. Wisco was 21 years old at the time she was hired.
On or about July 26, 2001, after consulting with the defendant's Vice President James Townsend, Ms. Steiner made the decision to terminate the plaintiff's employment. On that day, the plaintiff was at the office and at Generac's open house. The next day, July 27, 2001, the plaintiff interviewed some prospective employees and entered data into the computer. Without any notice, the plaintiff was later notified that she was terminated. The plaintiff was told that the defendant's Maquoketa office had been sustaining financial losses. The plaintiff was also told by Ms. Steiner that she was not a "good fit" with the defendant.
Ms. Wisco began working as an Administrative Assistant on July 31, 2001 at a starting rate of pay of $7.75 per hour. She was trained in the defendant's Maquoketa office. In October of 2001, Ms. Wisco was promoted to the position of Account Manager and splits her time between the defendant's Clinton and Maquoketa offices. Ms. Wisco has satisfactorily performed the duties of Account Manager in both the Maquoketa and Clinton offices.
Following her termination, the plaintiff wrote a letter to Jim and Carol Townsend, the owners of the company, to inform them of the circumstances of her termination. Ms. Townsend called the plaintiff to discuss the letter and she told the plaintiff that her termination was "not handled properly." Ms. Townsend also told the plaintiff she needed to make some other phone calls to talk to Ms. Steiner and Ms. McLaughlin and she would then call the plaintiff again. When Ms. Townsend called back, she told the plaintiff that a fair settlement would be $1,000 and that to receive the money, the plaintiff would have to sign a release. The plaintiff never did. As of April 30, 2003, approximately 46% of the defendant's workforce was over the age of 39.
Conclusions of Law
The ADEA makes it unlawful for employers to discriminate on the basis of an individual's age if the individual is over 40 years old. 29 U.S.C. § 623(a)(1), 631(a). A plaintiff may demonstrate age discrimination by either direct or indirect evidence. Montgomery v. John Deere Co., 169 F.3d 556, 559 (8th Cir. 1999) (citing Beshears v. Asbill, 930 F.2d 1348, 1353 (8th Cir. 1991)). Because "`[t]here will seldom be `eyewitness' testimony as to the employer's mental processes," the plaintiff need not produce direct evidence of discrimination and may rely on circumstantial evidence of discrimination and prove her case through the burden-shifting framework ofMcDonnell Douglas. Gaworski v. ITT Commercial Fin. Corp., 17 F.3d 1104, 1108 (8th Cir. 1994) (citing United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983)). The plaintiff's case would most appropriately be analyzed under this burden-shifting analysis. The Supreme Court has developed the burden-shifting framework as an appropriate analysis for ADEA cases. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
The Eighth Circuit has also described this burden-shifting analysis in the context of age discrimination cases. See Berg v. Bruce, 112 F.3d 322, 327 (8th Cir. 1997). "Under this analysis the plaintiff has the initial burden of establishing a prima facie case of discrimination, which `creates a presumption that the employer unlawfully discriminated against the employee.'" Id. (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 254). The burden of production then shifts to the employer to rebut the presumption by producing evidence demonstrating a legitimate non-discriminatory reason for its action. Id. (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 253). If the employer carries this burden, the burden shifts back to the plaintiff to show that the employer's proffered reason is merely a pretext for discrimination. Id. (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 253). The plaintiff retains the burden of persuasion at all times and accordingly the plaintiff must present sufficient evidence to persuade the trier of fact that the adverse employment action was motivated by intentional discrimination."Id. (citing Texas Department of Community Affairs v. Burdine, 450 U.S. at 253).
To establish a prima facie case of age discrimination underMcDonnell Douglas, a plaintiff must prove that: (1) she was in the age group protected by the ADEA; (2) at the time of her discharge she was performing her job at a level that met her employer's legitimate expectations; (3) she was discharged; and (4) following her discharge, the plaintiff was replaced by someone with comparable qualifications. See Hutson v. McDonnell Douglas, 63 F.3d 771, 776 (8th Cir. 1995) (citing Bashara v. Black Hills Corp., 26 F.3d 820, 823 (8th Cir. 1994)).
The plaintiff was 54 years old when she was terminated, and arguably was performing her job at a level that met her employer's expectations. She was discharged from her job, and allegedly replaced with a younger person with comparable qualifications. Thus, taking the evidence in the light most favorable to the plaintiff, the court finds that she has established a prima facie case of age discrimination. Having done so, the burden shifts to the defendant to proffer a legitimate, non-discriminatory reason for terminating the plaintiff's employment. The defendant has done this, proffering that the plaintiff was terminated due to her inadequate job performance, her increasingly poor work attitude, and also due to the defendant's financial difficulties.
The burden then shifts back to the plaintiff to show the defendant's assertion was a pretext to cover age discrimination. To satisfy her burden, the plaintiff must present affirmative evidence that age discrimination was the real reason for her termination. See Bauer v. Metz Baking Co., 59 F. Supp.2d 896, 909 (N.D. Iowa 1999). "To defeat the motion for summary judgment, [the plaintiff is] required to `set forth specific facts showing that there is a genuine material issue [regarding age discrimination] that requires a trial.'" Berg v. Bruce, 112 F.3d at 327 (quoting Roxas v. Presentation College, 90 F.3d 310, 315 (8th Cir. 1996)). The plaintiff has offered evidence to satisfy this burden. First, the plaintiff points to the fact that Ms. McLaughlin repeatedly referred to the plaintiff as "mom" throughout her employment. Although the comments made by Ms. McLaughlin, alone, may not be sufficient for the plaintiff's age claim to survive the motion for summary judgment, taken with the other evidence presented by the plaintiff, it is sufficient. See Ryther v. KARE 11, 108 F.3d 832, 842-44 (8th Cir. 1997) (stating that co-employees' statements that the plaintiff was an "old man" and an "old fart," along with other evidence of pretext, support a reasonable inference of age discrimination).
The plaintiff also contends that she was replaced by a 21-year old employee. Specifically, the plaintiff points to the fact that she was terminated on a Friday and Ms. Wisco began work the following Monday, performing several of the plaintiff's job duties. The plaintiff also offers evidence that Ms. Townsend admitted that the plaintiff's termination was not handled properly and she therefore offered the plaintiff $1000. The defendant contends that the court should not consider this evidence because it is inadmissible as a settlement offer. However, the court finds this was not an offer of compromise because no claim had yet been made by the plaintiff. The plaintiff contacted Ms. Townsend to inform her about the circumstances surrounding her termination, not to threaten a lawsuit. Finally, the plaintiff asserts that the fact that Ms. Steiner wrote the plaintiff a letter of recommendation subsequent to her termination demonstrates that she was a good employee and was terminated solely on the basis of her age. The defendant argues that the letter supports its assertion that it had no ill will toward the plaintiff and she was terminated due to financial difficulties. The motivation for writing this letter presents a factual dispute and is not an issue for the court to decide on a motion for summary judgment. Although not a strong case, the evidence presented by the plaintiff, taken together with the elements of the prima facie case, support a reasonable inference of age discrimination.
The plaintiff also attempts to support her age discrimination claim with an affidavit from a former employee of the defendant, Carol Spahn. In 1997, Ms. Spahn was told she was being terminated because of financial difficulties, however, she now claims the real reason she was terminated was her age. Ms. Spahn has never claimed age discrimination was the real reason for her termination until she submitted an affidavit in the present case. In her affidavit, Ms. Spahn makes generalized statements regarding "management's" negative feelings towards older employees and the desire to maintain a youthful image. These types of generalized statements by a lay witness purporting to opine the collective will of "management" would not be admissible at trial and therefore, will not be considered by the court at this time.
The defendant asserts that because the same people were involved with hiring and firing the plaintiff, the reasons for terminating the plaintiff could not have been motivated by age discrimination because those same people could not have suddenly developed an aversion to older employees within the short time span the plaintiff was employed. See Lowe v. J.B. Hunt Transp., Inc., 963 F.2d 173, 175 (8th Cir. 1992) (holding that age discrimination was not shown where the plaintiff was hired by the same person who shortly thereafter terminated him and where the plaintiff was in the protected age group at the time he was hired). However, the holding of Lowe is limited to cases where no evidence of overt discrimination has been presented. Madel v. FCI Mktg., Inc., 116 F.3d 1247, 1253 (8th Cir. 1997). Here, the statements made by Ms. McLaughlin and other circumstances are inferential proof of age discrimination, which, coupled with the suspicious timing of Ms. Wisco's hire, support the plaintiff's claim of illegal discrimination. The court therefore finds that the narrow holding of Lowe does not apply to the present case, and the ultimate issue of intentional discrimination remains in genuine controversy. See O'Bryan v. KTIV Television, 64 F.3d 1188, 1192 (8th Cir. 1995).
This court finds the record as a whole contains sufficient evidence to support a prima facie inference of illegal age discrimination. It will be up to the fact finder to weigh the credibility of the witnesses and evidence in deciding whether the plaintiff's proof supports a verdict in her favor. The defendant's motion for summary judgment is denied.
Upon the foregoing,
IT IS ORDERED that the defendant's motion for summary judgment (docket number 13) is denied.