Miller v. Aramark Corporation

Full title: GERALD A. MILLER, Plaintiff, v. ARAMARK CORPORATION, et al., Defendants

Court: United States District Court, N.D. Georgia, Atlanta Division

Date published: Jul 14, 2004

Civil Action File No. 1:03-CV-1546-TWT (N.D. Ga. Jul. 14, 2004)

Opinion

Civil Action File No. 1:03-CV-1546-TWT.

July 14, 2004

ORDER

THOMAS THRASH, District Judge

This is an employment discrimination action brought pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. The case is before this Court on Defendant Aramark Corporation's Motion for Summary Judgment. [Doc. 25] For the reasons set forth below, the Defendant's Motion is denied.

I. BACKGROUND

Plaintiff Gerald Miller is an individual and resident of the state of Georgia. Defendant Aramark Corporation is the parent of Defendant Aramark Refreshment Services, Inc. Aramark Refreshment hired Plaintiff in September of 1990 as a salesman for the Gainesville, Georgia service area. At the time he was hired, the Plaintiff was fifty years old. (Complaint at ¶ 12; Miller Dep. at 53-54, 55.) The Plaintiff's employment with Aramark Refreshment ended when he was fired on October 11, 2002. (Miller Dep. at 192.) Although his job title changed numerous times during his employment, the Plaintiff's responsibilities stayed the same throughout his tenure with Aramark Refreshment. (Id. at 56-57.) The Plaintiff was responsible for selling vending products, office coffee products, and cafeteria services. (Id.)

In the spring of 2001, Jeff Keeling became the General Manager for Aramark Refreshment's Market Centers in both Atlanta and Gainesville, making him the Plaintiff's supervisor. (Keeling Dep. at 17-18, 28.) Prior to Keeling's arrival, the Plaintiff was not disciplined or counseled for violations of company rules or policies. (Id. at 93.) Keeling, however, reprimanded the Plaintiff on more than one occasion for violations of company policy during their working relationship. The first incident occurred in July of 2002, when the Plaintiff was involved in an automobile accident in Commerce, Georgia. (Id. at 75-76.) The Plaintiff, believing that the incident was minor, left the scene of the accident without contacting the local police department, and without filling out the Aramark incident form required when there is an automobile accident involving a company vehicle. (Miller Dep. at 103-104; Keeler Dep. at 81.) Both of those failures were violations of Aramark Refreshment's official company procedures. (Miller Dep. at 108-111.) The Banks County Sheriff's Department contacted Aramark Refreshment regarding the Plaintiff's accident. Aramark Refreshment, through Tony Smith, the Food Service Director for the Gainesville, Georgia area, instructed the Plaintiff to return to Banks County and speak with the Sheriff's Department regarding the accident. (Miller Dep. at 106-107; Smith Dep. at 9-10, 43-44.) Upon learning of the accident, Keeling held a meeting with the Plaintiff and Smith to discuss the incident, and the Plaintiff was reprimanded for failing to follow company procedures. (Miller Dep. at 107-108, 123-124.)

Keeling also reprimanded the Plaintiff for improperly seeking reimbursement for "personal" mileage to and from his home, in violation of company policy. In reviewing expense reports, Keeling noticed the Plaintiff's claims for mileage reimbursement seemed unusually high. (Keeling Dep. at 109.) Keeling held a meeting with the Plaintiff to discuss his mileage reports. During that meeting, the Plaintiff confirmed he was including mileage to and from his home in violation of company policy. (Keeling Dep. at 109, 117-118; Miller Dep. at 168-169.) Keeling instructed the Plaintiff not to include mileage to and from his home any longer, but only mileage logged to and from customers originating from Aramark Refreshment's Gainesville Market Center. (Id.) The Plaintiff indicated he would no longer seek reimbursement for miles traveled to and from his home. (Id.) The Plaintiff was unhappy with the decision, and he spoke to Pat Barger, his former supervisor, about the issue. (Miller Dep. at 169-175.) At the time, Barger was employed in a different division of Aramark Refreshment. (Keeling Dep. at 104-105). Because Keeling believed the Plaintiff had gone outside the "chain of command" with respect to this issue, he held another meeting with the Plaintiff. Keeling informed the Plaintiff in that meeting that if the Plaintiff took issue with Keeling's directives, that he should speak with Keeling directly or to Keeling's supervisor, Rick Soulas. (Id. at 94-95, 105-106, 207-208.) Because Keeling felt it was improper for the Plaintiff to seek redress from Barger, Keeling reprimanded the Plaintiff for failing to follow the chain of command (Id. at 95-96.) There is no evidence, however, of a written policy at Aramark Refreshment regarding a proper chain of command (Id. at 106.)

In September of 2002, Smith returned expense reports to the Plaintiff with instructions to correct them to reflect only reimbursement for mileage between customers and the Gainesville Market Center. The Plaintiff made the corrections. (Miller Dep. at 197-198.) At that time, Smith did not inform Keeling that the Plaintiff had to correct reimbursement forms. Then, in October 2002, Smith again believed the Plaintiff was claiming improper mileage, and reported the matter to Keeling; this was also when Smith first told Keeling about the September expense reports which the Plaintiff had to correct. (Smith Dep. at 63-64, 72; Keeling Dep. at 112.) Keeling held a meeting with the Plaintiff and Smith concerning the latest errors in the Plaintiff's expense reports. The Plaintiff told Keeling he was no longer including personal miles on his expense reports, but he also apologized and offered to repay any funds improperly received in hopes that he would not be terminated over this matter. (Miller Dep. at 187.) Keeling interpreted the Plaintiff's statements as an admission that on the reports in question, the Plaintiff claimed improper mileage. (Keeling Decl. at ¶ 9.) Keeling informed the Plaintiff at that time that he was suspended for violations of the company's policy, pending further investigation. (Keeling Dep. at 136-137; Smith Dep. at 92-93.)

Keeling contacted his supervisor, Rick Soulas, and Aramark Refreshment's regional Human Resources representative, Cheri Hager. He informed them of the situation with the Plaintiff. (Keeling Dep. at 137-138.) Keeling stated to them that he had instructed the Plaintiff not to include personal miles traveled to and from his home on expense reports, but that he believed the Plaintiff had continued to do so in violation of company policy. (Id.) In addition to his meetings with the Plaintiff, Keeling based his assessment of the situation on an evaluation of the Plaintiff's October 2002 expense report in which the mileage claimed on the report did not equate to Smith's estimates of the miles which would be required if the Plaintiff were billing from the Gainesville Market Center. (Keeling Dep., Ex. 15; Smith Dep. at 95.) Two of the entries were for a total of seventy-seven more miles than Smith estimated, and a third was for less than what Smith estimated would be the proper distance. (Smith Dep. at 72-79.) Given those discrepancies, Keeling believed the Plaintiff was still seeking reimbursement for improper mileage. Keeling made the decision, with the consent of Soulas and Hager, that the Plaintiff should be terminated. (Keeling Dep. at 139; Hager Decl. at ¶ 10; Soulas Dep. at 115.) This decision was carried out on October 11, 2002. (Miller Dep. at 192.) The Plaintiff was sixty-two years old at the time of his termination.

Aramark Refreshment did not hire a new Vending Sales Director to replace Miller. (Keeling Dep. 159.) Instead, the Plaintiff's territory was split between the two Vending Sales Directors working in the Atlanta territory, John Clifford and Leslie Favie. (Keeling Dep. at 160.) Approximately seventy-five percent of the Plaintiff's former territory went to Favie, who was twenty-eight years old at the time. (Keeling Dep. at 160; Favie Dep. at 27-28.) The rest of the Gainesville area went to Clifford, who was forty-two years old at the time. (Keeling Dep. at 160; Clifford Aff. ¶ 2.) After his termination, the Plaintiff filed a claim with the Equal Employment Opportunity Commission. (Miller Dep., Ex. 21.) Then, after receiving a right to sue letter, the Plaintiff filed this action. (Miller Dep., Ex. 32, 33.)

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate only when the pleadings, depositions, and affidavits submitted by the parties show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. An issue is genuine "if 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 if it "might affect the outcome of the suit under the governing law." Id. The court should view the evidence and any inferences that may be drawn in the light most favorable to the nonmovant. Adickes v. S.H. Kress Co., 398 U.S. 144, 158-59 (1970). The party seeking summary judgment must first identify grounds that show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The burden then shifts to the nonmovant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).

III. DISCUSSION

Aramark Corporation seeks summary judgment contending that the Plaintiff failed to satisfy his burden under the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Specifically, the Defendant contends the Plaintiff failed to establish a prima facie case of discrimination because he cannot show he was replaced by, or treated differently than, a similarly situated significantly younger employee. See Baker v. Sears, Roebuck Co., 903 F.2d 1515, 1519-20 (11^th Cir. 1990.) Further, the Defendant contends that even if the Plaintiff established a prima facie case, he cannot present evidence to overcome Aramark Refreshment's legitimate non-discriminatory reason for terminating the Plaintiff's employment. See Chapman v. AI Transport, 229 F.3d 1012, 1024-25 (11^th Cir. 2000). In addition, the Defendant contends that it is entitled to summary judgment because it was not the Plaintiff's employer. Having considered the arguments from both parties and the evidence submitted, this Court determines that the Plaintiff has made out a prima facie case of age discrimination, and that he has shown a genuine issue of fact as to whether the Defendant's legitimate non-discriminatory reason for discharge is a pretext. There is also a question of fact as to whether the Defendant was a single employer. Accordingly, the Defendant is not entitled to summary judgment.

A. Prima Facie Case of Discrimination

First, the Defendant argues that the Plaintiff cannot establish a prima facie case of age discrimination because he cannot show that he was replaced by, or that he was treated differently than, a significantly younger employee.¹ The Plaintiff contends that when his territory was divided up between Favie and Clifford, who were thirty-four and twenty years younger than him respectively, that this amounted to "replacement" by a significantly younger employee, especially since Favie assumed approximately seventy-five percent of the Plaintiff's former area. The Defendant argues that the Plaintiff was not replaced, but rather, his duties were absorbed by or redistributed to persons who were already part of Aramark Refreshment. The Defendant contends such a redistribution is not replacement, and cite several decisions suggesting that redistribution of assignments due to a reduction-in-force does not amount to replacement for purposes of establishing a prima facie case of age discrimination. See Wallis v. J.R. Simplot Co., 26 F.3d 885, 891 (9^th Cir. 1994) (employee not replaced when position was simply eliminated and others assumed his duties, similar to reduction-in-force); Barnes v. Gencorp, Inc., 896 F.2d 1457, 1465 (6^th Cir. 1990) (requiring additional direct, circumstantial or statistical evidence in work force reduction cases when work of former employee is redistributed); Bullard v. Sercon Corp., 846 F.2d 463, 466 (7^th Cir. 1988) (failure to prove replacement when crew simply shrinks in number during work force reduction).

1 There is no dispute that the Plaintiff satisfied the other elements of a prima facie case — that he was within the protected class, was qualified for the position and was subject to an adverse employment action.

The flaw in the Defendant's argument, however, is that this is not a work force reduction case. The Plaintiff was fired for claiming reimbursement for personal miles in violation of company policy and in violation of orders from his supervisor. The Eleventh Circuit recognizes the distinction between work force reduction and termination cases. In Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340 (11^th Cir. 2000), the defendant appealed from a verdict rendered in favor of the plaintiff. The facts of that case are similar to the instant dispute, in that the plaintiff was terminated for a violation of company policy, and the resort "replaced" him by having another employee assume his duties. The replacement employee was also within the ADEA's protected class, but was approximately twenty-four years younger than the plaintiff. Id. at 1344. The trial court's instructions required the plaintiff to prove: (1) that he was a member of the protected group; (2) that he was subject to adverse employment action; (3) that a substantially younger person filled his position after being discharged; and (4) that he was qualified to do the job. Id. at 1346, 1347 n. 10. The defendant contended that the trial court's instructions should have included the additional requirement of "evidence by which a fact finder might reasonably conclude that the employer intended to discriminate on the basis of age." Id. The Court of Appeals, however, noted that "case law suggests that the standard for establishing a prima facie case depends on whether the case concerns a reduction-in-force as opposed to a termination." Id. at 1347. If a Plaintiff in a reduction-in-force case only had to show was that his duties were assumed by someone younger, then "every person age 40-and-over [could] establish a prima facie case of age discrimination if he or she was discharged as part of a reduction-in-force." Barnes v. Gencorp Inc., 896 F.2d 1457, 1465 (6^th Cir. 1990). In a termination case, however, the Eleventh Circuit does not require the additional proof required for a reduction-in-force discharge. Munoz, 223 F.3d at 1347.

In this case, Aramark Refreshment did not "replace" the Plaintiff in the sense of hiring a new individual to take his place. Rather, the Plaintiff was replaced in the sense that Aramark Refreshment assigned his duties to two employees, both of whom were substantially younger than the Plaintiff. That is sufficient to establish a prima facie case of discrimination. Since the Plaintiff established his prima facie case by showing that he was replaced by a substantially younger person, there is no need to consider whether he also was treated less favorably than a similarly situated younger employee.

B. The Defendant's Legitimate Non-Discriminatory Reason for Discharge

Once the Plaintiff establishes a prima facie case of age discrimination, the burden shifts to the Defendant to articulate a legitimate, non-discriminatory reason for his termination.Holifield v. Reno, 115 F.3d 1555, 1564 (11^th Cir. 1997). This is an exceedingly light burden, and in this case, is satisfied by Aramark Refreshment's evidence that the Plaintiff was terminated because he continued to claim personal mileage reimbursement after being told not to do so by his supervisor.Id. Evidence in this case indicates that the Plaintiff claimed mileage not authorized by company policy when he sought reimbursement for miles traveled to and from his home and customers. The Plaintiff was instructed that this was a violation of company policy, and was told not to do so in the future. The evidence indicates that the Plaintiff was given a chance to correct additional reimbursement forms, but still continued to submit claims which differed significantly from the estimated milage he should have claimed given his supervisor's instructions. The evidence also shows that although the Plaintiff contended he had ceased claiming improper mileage, he apologized for doing so in a meeting with his supervisor and offered to repay any money wrongfully received so that he might remain employed. The Defendant asserts that the Plaintiff's supervisor understood this to be an admission that the Plaintiff continued to seek reimbursement for travel to and from his home. This led to his termination in October of 2002. Improperly seeking reimbursement for miles in violation of company policy, especially after being specifically instructed not to do so, is a legitimate, nondiscriminatory reason for the Plaintiff's termination.

Once the Defendant has articulated a legitimate non-discriminatory reason for termination, the Plaintiff must come forward with evidence that his employer's proffered reason is a pretext for discrimination. Hollifield, 115 F.3d at 1564. This burden merges with the Plaintiff's ultimate burden of persuasion — "once the employer succeeds in carrying its intermediate burden of production, the ultimate issue in the case becomes whether the plaintiff has proven that the employer intentionally discriminated against him because of his [age]." Id. at 1565. In this case, the Plaintiff has produced evidence from which a reasonable jury could find that the Defendant's legitimate non-discriminatory reason for firing the Plaintiff was a pretext for discrimination, making summary judgment improper.

The Plaintiff submitted an affidavit of John Clifford, a former employee of Aramark Refreshment, that Keeling made comments about the Plaintiff having a "negative appeal as an older, overweight sales person." (Clifford Aff. ¶ 8 ("I heard Mr. Keeling make negative comments about Mr. Miller's appearance as well as general references to his negative appeal as an older, overweight sales person.")) Given the length of the Plaintiff's employment without any prior serious disciplinary problems, this is enough to submit the issue of pretext to the jury. See Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1362 (11^th Cir. 1999) (remark by supervisor that he wanted "aggressive young men" to be promoted was highly suggestive circumstantial evidence considering its substance, timing, and context).

C. Single employer

In the Eleventh Circuit, the term "employer" is liberally construed in the context of employment discrimination statutes.Lyes v. City of Riviera Beach, Fla., 166 F.3d 1332, 1341 (11^th Cir. 1999). The courts may look beyond the nominal independence of an entity and ask whether two or more ostensibly separate entities should be treated as a single, integrated enterprise when determining who is a plaintiff's "employer." Id. In this case, the Plaintiff has produced sufficient evidence to create a genuine issue of fact as to whether Aramark Corporation and Aramark Refreshment should be treated as a single integrated enterprise for determination of the Plaintiff's ADEA claim.

IV. CONCLUSION

For the reasons set forth above, the Defendant's Motion for Summary Judgment [Doc. 25] is DENIED.

SO ORDERED.