Opinion
Case No. 99-4086-DES
May 2, 2001
MEMORANDUM AND ORDER
This matter is before the court on defendant's Motion for Summary Judgment (Doc. 48). Plaintiff has filed a Response (Doc. 56), and defendant has filed a Reply (Doc. 60). Plaintiff is asserting claims pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. and the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. The court is now prepared to rule on defendant's motion.
I. FACTUAL BACKGROUND
Defendant operates a molded plastic manufacturing plant in Lawrence, Kansas. In 1984, at the age of fifty-two, plaintiff was hired as a maintenance employee at the plant by a predecessor of defendant. Plaintiff's original position of "maintenance helper" involved performing maintenance and repairs on molding and printing machines, elevators, conveyors, and the plant air conditioners, and installing machines. Plaintiff was eventually promoted to "lead" and oversaw one or two maintenance helpers. In 1988, plaintiff was promoted out of the maintenance department to the group leader position to supervise the second shift of the molding operation.
In January of 1996, Ken Meissbach ("Meissbach") was hired by defendant as the molding department supervisor. As one of the three molding shift supervisors, plaintiff directly reported to Meissbach. Meissbach's working hours allowed some interaction with all three shift supervisors.
The plant was purchased by Berry Plastics ("Berry") in January 1997. Operation under the new management was revamped: the old paper record keeping system for production and materials was changed to a computer system; Berry invested in modernizing the plant and equipment; procedures were altered to conform with other Berry plants; and Berry downsized staff and consolidated certain positions. Besides physical changes at the facility, the new management adopted a different style of corporate management. Several employees testified that this new style of management focused on empowering employees by giving each employee more authority for making their own decisions. (Farris Dep. at 25-27, 58-60; Eoannou Dep. at 23-27). The new management philosophy necessarily called for a slightly different approach to be taken by the supervisors in relation to their subordinate employees. It is controverted whether plaintiff was able to successfully meet the demands of this new style of management. The issue of plaintiff's work performance will be discussed in detail when the court considers the merits of defendant's substantive arguments.
In March 1998, plaintiff was officially demoted to the maintenance department. The decision to demote plaintiff rested primarily with Meissbach, yet Kevin Woods, human resources manager, did contribute and concur with Meissbach's decision. Defendant asserts plaintiff was demoted due to his poor work performance. Plaintiff alleges his demotion was the result of age discrimination. Plaintiff, who at the time was sixty-five years of age, was replaced by Alan Sutton ("Sutton"). Sutton was approximately forty years of age. During the March 1998 meeting in which plaintiff was informed of his demotion, plaintiff raised concerns regarding his physical ability to perform the maintenance duties.
It appears that some mention was made of making plaintiff a lead maintenance person, as compared to the lower maintenance technician position. In any event, plaintiff was placed into the maintenance technician position. Plaintiff's expertise to perform the work was not an issue.
The "maintenance technician" position appears to be substantially equivalent to plaintiff's original "maintenance helper" position.
Immediately following plaintiff's demotion, plaintiff requested an absence from work to care for his ailing wife. Plaintiff was granted the time off in accordance with defendant's policy regarding the FMLA, however, it appears plaintiff's employment record erroneously failed to reflect the absence as FMLA related. Therefore, plaintiff was "written up" for excessive absences. Although the record is unclear as to specifics, plaintiff was apparently erroneously charged for FMLA absences once before. Defendant concedes mistakes were made, but defendant asserts the errors were corrected and no disciplinary action was ever taken.
Plaintiff continued to work as maintenance technician until he tendered his resignation on July 8, 1999.
II. PLAINTIFF'S CLAIMS
Plaintiff asserts that his demotion constitutes age discrimination pursuant to the ADEA. Plaintiff also asserts defendant took adverse employment action against him in response to him exercising his rights under the FMLA. Defendant moves for summary judgment as to both claims.
Plaintiff's Complaint (Doc. 1) also contains a "whistleblower" claim, yet plaintiff has voluntarily admitted such claim is unsupported by the facts as revealed through discovery and has abandoned the claim. See (Pl. Mem. at 40). Summary judgment is granted as to this claim.
III. STANDARD OF REVIEW
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The rule provides that "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The substantive law identifies which facts are material. Id. at 248. A dispute over a material fact is genuine when the evidence is such that a reasonable jury could find for the nonmovant. Id. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id.The movant has the initial burden of showing the absence of a genuine issue of material fact. Shapolia v. Los Alamos Nat'l Lab., 992 F.2d 1033, 1036 (10th Cir. 1993). The movant may discharge its burden "by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The movant need not negate the nonmovant's claim. Id. at 323. Once the movant makes a properly supported motion, the nonmovant must do more than merely show there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmovant must go beyond the pleadings and, by affidavits or depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is a genuine issue for trial. Celotex, 477 U.S. at 324 (interpreting Fed.R.Civ.P. 56(e)). Rule 56(c) requires the court to enter summary judgment against a nonmovant who fails to make a showing sufficient to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof. Id. at 322. Such a complete failure of proof on an essential element of the nonmovant's case renders all other facts immaterial. Id. at 323.
A court must view the facts in the light most favorable to the nonmovant and allow the nonmovant the benefit of all reasonable inferences to be drawn from the evidence. See, e.g., United States v. O'Block, 788 F.2d 1433, 1435 (10th Cir. 1986) ("The court must consider factual inferences tending to show triable issues in the light most favorable to the existence of those issues."). The court's function is not to weigh the evidence, but merely to determine whether there is sufficient evidence favoring the nonmovant for a finder of fact to return a verdict in that party's favor. Anderson, 477 U.S. at 249. Essentially, the court performs the threshold inquiry of determining whether a trial is necessary. Id. at 250.
IV. DISCUSSION A. Age Discrimination
The ADEA prohibits an employer from "discharg[ing] any individual or otherwise discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age . . . ." 29 U.S.C. § 623 (a)(1). To prevail, an ADEA plaintiff must prove "that age was a `determining factor' in the employer's challenged decision." Greene v. Safeway Stores, Inc., 98 F.3d 554, 557 (10th Cir. 1996) (internal citations omitted). The court considers plaintiff's ADEA claim under the now familiar burden shifting paradigm established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998) (noting the Tenth Circuit's use of McDonnell Douglas in the ADEA context). Under McDonnell Douglas, the plaintiff must first present a prima facie case of discrimination. Then, the burden of production shifts on the defendant to produce a legitimate, non-discriminatory justification for taking the action in question. Finally, the burden is redirected at the plaintiff, who always retained the burden of persuasion, to show the defendant's reason for its actions was merely a pretext for discrimination. See McDonnell Douglas, 411 U.S. at 802-05.
The McDonnell Douglas analysis is generally employed when no direct evidence of discrimination is presented. Because both parties urge the court to consider the claim under McDonnell Douglas, the court adopts the analysis without deciding the circumstantial versus direct nature of plaintiff's proffered evidence.
1. Prima Facie Case
To establish a prima facie case of discrimination in this context, plaintiff must show: (1) he is within the protected age group, that is, at least forty years of age; (2) he was doing satisfactory work; (3) he was discharged or demoted; and (4) his position was filled by a younger person. See McKnight, 149 F.3d at 1128 (citing Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 528-30 (10th Cir. 1994)). See also O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312-13 (1996) (holding an ADEA plaintiff need not show that the replacement worker was outside the protected class). In the present case, defendant concedes plaintiff is within the protected class and that he was demoted and replaced by a younger worker. Defendant argues, however, plaintiff can not demonstrate that his work was satisfactory.
The facts of this case create the situation wherein the defendant's attack on plaintiff's prima facie case under the first stage of the McDonnell Douglas analysis directly corresponds to the defendant's proffered nondiscriminatory justification considered under the second and third stage. In other words, because defendant claims it demoted plaintiff because of poor work performance, plaintiff in essence must defeat defendant's justification within his prima facie presentation. The court is cognizant, however, of its duty not to allow such cross-over argumentation to short-circuit the McDonnell Douglas analysis. See MacDonald v. Eastern Wyoming Mental Health Ctr., 941 F.2d 1115, 1119 (10th Cir. 1991) ("Short-circuiting the analysis at the prima facie stage frustrates a plaintiff's ability to establish that the defendant's proffered reasons were pretextual . . . ."). In response to this situation, the MacDonald court held that an ADEA plaintiff may satisfy the "satisfactory work" prong of the prima facie case "by credible evidence that she continued to possess the objective qualifications she held when she was hired, or by her own testimony that her work was satisfactory, even when disputed by her employer, or by evidence that she had held her position for a significant period of time." Id. at 1121 (internal citations omitted). In the very least, considering plaintiff held the position of shift supervisor for approximately ten years, the court finds plaintiff has satisfied the "satisfactory work" prong of his prima facie case. The court now turns to the second phase of the McDonnell Douglas analysis.
2. Defendant's Justification
As discussed above, defendant submits it demoted plaintiff in response to plaintiff's poor work performance. Defendant offers several reasons why plaintiff's performance was considered poor. At the forefront lies Mr. Meissbach's belief that plaintiff poorly communicated with his subordinates, co-supervisors, and superiors in management. (Meissbach Dep. at 177). Plaintiff's communication deficiencies also appear in the testimony of his co-supervisors. (Farris Dep. at 11-16, 17, 27-30, 28-34, 36-45; Eoannou Dep. at 32-33). Defendant argues that this lack of communication was primarily a result of the allegedly higher standard Meissbach and Berry Plastics placed on its supervisors. In addition, defendant alleges plaintiff was slow or unable to conform appropriately to Berry Plastics' new management philosophy. (Eoannou Dep. at 23-27; Woods Dep. at 33-35; Farris Dep. at 25-27, 58-60). Finally, defendant notes that these alleged deficiencies led to plaintiff receiving two written reprimands and one oral warning regarding his work performance. (Meissbach Dep. at 179-80, 182-83; Saladin Dep. Ex. 6; Saladin Dep. Ex. 5). In light of defendant's proffered evidence, the court finds defendant has met its burden of production, so the burden is now shifted back to the plaintiff in accordance with McDonnell Douglas.
Defendant presents the following list of justifications for plaintiff's demotion:
plaintiff approved the transfers of personnel with attendance problems; plaintiff failed to take action on the ongoing personnel issues with Yvonne Dillahunty; plaintiff failed to get involved with new personnel; plaintiff did not take action to develop backup personnel for support positions such as box maker, floater or material handlers; plaintiff did not develop qualified trainers for new inspectors or packers; plaintiff declined help with attendance tracking and then failed to do this tracking personally; plaintiff did not satisfy Mr. Meissbach's expectations by merely paying lip service to new ideas and by failing to communicate clearly; plaintiff had to be told repeatedly to stop moving his car to the visitors' parking spaces; plaintiff had to be forced to eliminate a special break room for himself and his molders, even after he was advised that this area violated policy; plaintiff failed to enforce policies on his shift, including personal violations; and plaintiff allowed an employee to continue working after verification that the employee had been drinking in the parking lot.
(Def. Mem. at 23-24).
Plaintiff argues that the recent Supreme Court case of Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000), should alter the court's analysis. After reviewing the holding in Reeves, the court disagrees. While the case is of greater significance for some circuits, Reeves does not mandate a departure from established Tenth Circuit precedent. The rule remains unchanged, if a plaintiff can establish a prima facie case and present evidence that the defendant's proffered reason is pretextual, then the plaintiff may survive summary judgment. See, e.g., Adams v. Goodyear Tire Rubber Co., No. 96-4228, 2000 WL 1859000, at *1 (D.Kan. Nov. 9, 2000) (holding Reeves does not alter traditional Tenth Circuit precedent). Contrary to plaintiff's assertion, Reeves does not hold that merely "making a prima facie showing may be sufficient to allow the case to go to the jury." (Pl. Mem. at 37). Such an interpretation would require a radical departure from the McDonnell Douglas analysis.
3. Pretext
To establish pretext, plaintiff must show either that "`a discriminatory reason more likely motivated the employer or . . . that the employer's proffered explanation is unworthy of credence.'" Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1317 (10th Cir. 1999) (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)) (alteration in original). Plaintiff may accomplish this by demonstrating "`such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence . . . .'" Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (quoting Olson v. General Elec. Astrospace, 101 F.3d 947, 951-52 (3d Cir. 1996)) (further internal citation omitted).Plaintiff's singular argument in regards to pretext states, "the articulated reason for the adverse employment action becomes transparently pretextual in light of the evidence that Mr. Saladin was a great employee for 15 years and the lack of any written adverse action by a sophisticated employer with a progressive disciplinary system." (Pl. Mem. at 39). In essence, plaintiff attacks the poor work performance justification by attempting to demonstrate his status as a "great employee." Plaintiff's proffered evidence includes: (1) plaintiff was not disciplined in the six months preceding his demotion; (2) plaintiff's last employee evaluation, which evaluated plaintiff's performance in 1996, rated plaintiff as satisfactory; (3) several witnesses testified that plaintiff was a "great supervisor" and did a "great job;" (4) Mr. Woods, the human resource manager, was unaware of any chronic work performance problems with plaintiff; and (5) plaintiff received only two written warnings in fifteen years of employment. (Pl. Mem. at 37-39).
The court finds that none of plaintiff's evidence directly contradicts or calls into immediate question defendant's articulated justifications. Specifically, plaintiff makes no effort to demonstrate any inconsistency or falsehood regarding the issue of defendant's inability to properly communicate with Mr. Meissbach or any of defendant's other employees. Merely presenting evidence that may lend support to the notion that in general plaintiff performed satisfactorily over his fifteen year tenure does not sufficiently demonstrate that defendant's justifications are false or unworthy of credence. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) ("Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.") (emphasis added).
This failure on the part of plaintiff is dramatically revealed when, citing to Mr. Woods' deposition, plaintiff states Mr. Woods knows of no chronic employment problems associated with plaintiff. The actual deposition testimony is as follows:
Question: All right. As you sit here today do you know of any chronic problems related to performance that Charles Saladin ever had?
Answer: I don't know that I could call them chronic. I could call the most voiced that I was made aware of were probably the communication issues or lack of communication back to the supervisor and the, the fact that second shift did not come in line with the way the other two shifts were operating. Those were the two most consistent complaints that I heard.
(Woods Dep. at 57-58). While plaintiff may attempt to conjure this testimony into an approval of plaintiff's general performance, it highlights defendant's most significant proffered justification for demoting plaintiff, i.e., plaintiff had poor communication skills. As for the witness testimony that plaintiff was a "great supervisor," the court notes that most of this testimony comes from Mr. Steve Davids. Mr. Davids originally hired plaintiff and was his supervisor prior to plaintiff's promotion into the mold shift supervisor position. Mr. Davids testified to having no knowledge of plaintiff's performance as a supervisor under Mr. Meissbach. (Davids Dep. at 7-8). Such general, let alone remote, evidence of plaintiff's performance is insufficient to create a triable issue as to whether defendant's specific proffered justifications are false.
Finally, even if Mr. Meissbach misjudged plaintiff's ability or work performance, such a mistaken belief, if honestly relied upon, does not necessarily establish pretext. See Equal Employment Opportunity Comm'n v. Flasher Co., 986 F.2d 1312, 1322 n. 12 (10th Cir. 1992).
The court also finds plaintiff offers no argumentation alleging Mr. Meissbach's decision to demote plaintiff was motivated by a discriminatory intent. In its original memorandum in support of its motion for summary judgment, defendant explained some comments, remarks, or innuendoes, which defendant reasonably believed plaintiff was relying upon to demonstrate a discriminatory motive. In his response, plaintiff makes no effort to address these arguments, nor does plaintiff attempt in any manner to demonstrate that Mr. Meissbach acted with any discriminatory animus. The court will not sift through the record in an attempt to locate or articulate arguments for plaintiff's counsel. Considering plaintiff has failed to produce sufficient evidence calling into doubt defendant's proffered justification or demonstrated that defendant acted with a discriminatory reason, the court finds plaintiff has failed to meet its burden under the final stage of the McDonnell Douglas analysis. Therefore, the court finds summary judgment appropriate as to this claim.
Family Medical Leave Act
"Congress enacted the FMLA in 1993 in response to demographic changes in the workforce that had negatively impacted the family's ability to care for children and ill family members." Gudenkauf v. Stauffer Communications, Inc., 922 F. Supp. 465, 474 (D.Kan. 1996) (citing 29 U.S.C. § 2601(a)). "Balancing the family's need against the demands of the workplace, the Congress designed the FMLA to provide a security net for families by setting minimum employment standard for unpaid leave that is required on the basis of medical necessity." Id. (internal citation and quotation marks omitted).
Under the FMLA, an eligible employee is entitled to twelve workweeks of leave over a twelve month period under the following circumstances: "In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition." 29 U.S.C. § 2612 (a)(1). The FMLA prohibits a covered entity from interfering with, restraining, or denying "the exercise of or the attempt to exercise, any right provided under this subchapter." 29 U.S.C. § 2615 (a).
Plaintiff's claim is not clearly defined. Apparently, plaintiff alleges defendant interfered with his rights by disciplining him for taking FMLA related leave.
Plaintiff was absent from work caring for his wife from March 16, 1998 to March 22, 1998. It is conceded by defendant that this time was covered by the FMLA. The record reveals plaintiff was originally disciplined for these absences, i.e., the FMLA leave was counted against his attendance record. Plaintiff, however, admits he was never refused time off, that the attendance mistake was eventually corrected, that the disciplinary write-up was voided, and that ultimately no FMLA related absences were counted against his attendance record. (Saladin Dep. at 225-28). At most, plaintiff was required to resubmit some paperwork documenting his wife's various doctor visits. (Saladin Dep. at 227-28). While plaintiff argues he underwent a "great ordeal to appeal and prove that his absences were because of [the] FMLA," the court has not found, nor has plaintiff provided, any authority demonstrating how such inconveniences amount to an actionable interference on the part of defendant. (Pl. Mem. at 40). Therefore, because plaintiff fails to sufficiently demonstrate any interference or denial of his FMLA rights, the court finds summary judgment appropriate.
V. CONCLUSION
Having found both of plaintiff's claims lacking in triable issues, the court will grant defendant's request for summary judgment.
IT IS THEREFORE BY THIS COURT ORDERED that defendant's Motion for Summary Judgment (Doc. 48) is granted.