Kennedy v. Interfor U.S. Inc.

Motion for Summary Judgment .

D. Or.November 1, 2017

Page 1 - DEFENDANT INTERFOR U.S. INC.’S MOTION FOR SUMMARY JUDGMENT 94341576.2 0054215-00079 James M. Shore, OSB No. 941425 jim.shore@stoel.com STOEL RIVES LLP 600 University Street, Suite 3600 Seattle, WA 98101-4109 Telephone: (206) 624-0900 Facsimile: (206) 386-7500 Caroline J. Livett, OSB No. 151871 caroline.livett@stoel.com STOEL RIVES LLP 760 SW Ninth Avenue, Suite 3000 Portland, OR 97205 Telephone: (503) 224-3380 Facsimile: (503) 220-2480 Attorneys for Defendant UNITED STATES DISTRICT COURT DISTRICT OF OREGON MEDFORD DIVISION RANDY KENNEDY, Plaintiff, v. INTERFOR U.S. INC. dba INTERFOR PACIFIC INC., Defendant. Case No.: 1:16-cv-01959-CL DEFENDANT INTERFOR U.S. INC.’S MOTION FOR SUMMARY JUDGMENT LOCAL RULE 7-1(a) COMPLIANCE Counsel for Defendant Interfor U.S. Inc. (“Interfor”) conferred with plaintiff’s counsel regarding this motion, and the parties were unable to agree. Case 1:16-cv-01959-CL Document 24 Filed 11/01/17 Page 1 of 24 Page 2 - DEFENDANT INTERFOR U.S. INC.’S MOTION FOR SUMMARY JUDGMENT 94341576.2 0054215-00079 MOTION Pursuant to Fed. R. Civ. P. 56, Interfor moves for summary judgment on all claims asserted by plaintiff Randy Kennedy (“plaintiff” or “Kennedy”). There is no genuine issue as to any material fact, and Interfor is entitled to judgment as a matter of law. This motion is supported by the Declaration of Greg Duncan (“Duncan Decl.”), the Declaration of Scott Paulson (“Paulson Decl.”), and the Declaration of Caroline Livett (“Livett Decl.”), which includes deposition transcript excerpts from the depositions of plaintiff, Greg Duncan, and Ron Clark. MEMORANDUM I. INTRODUCTION Interfor hired plaintiff to work at its Gilchrist, Oregon, sawmill (the “Mill”) in 2011 when he was 57 years old. He was laid off a few years later as part of a facility-wide reduction in force (“RIF”), which was part of a larger 2015-16 timeframe in which Interfor’s other North American mills and administrative operations were also downsized.1 Approximately four months after the Mill layoff, the industry and the Mill both began to rebound and Interfor offered to recall Kennedy and other laid off employees. Plaintiff never responded to Interfor’s recall offer, which was for a higher wage rate than he had received when he was laid off.2 As explained in detail below, there is no material dispute that Interfor selected plaintiff for layoff due to his comparatively limited cross-training and abilities, which made him less versatile than others who remained at the Mill to operate it during what turned out to be a 1 Layoffs and work stoppages are common in the lumber industry. However, they are typically temporary and employees are frequently recalled back from layoff. 2 Nor could plaintiff have returned to work from his layoff. He was receiving Social Security Disability on account of his Chronic Obstructive Pulmonary Disease (“COPD”), which makes him unable to work. (Pl. dep. 35:10-36:8; Livett Decl. ¶ 2, Ex. 1.) Case 1:16-cv-01959-CL Document 24 Filed 11/01/17 Page 2 of 24 Page 3 - DEFENDANT INTERFOR U.S. INC.’S MOTION FOR SUMMARY JUDGMENT 94341576.2 0054215-00079 relatively short layoff period. The layoff decision had absolutely nothing to do with plaintiff’s age. It is also undisputed that no one was hired to replace plaintiff, and that the employee who assumed plaintiff’s job duties during the relatively short layoff period was 51 years old and able to operate machines that plaintiff could not operate. There is no evidence of age discrimination, much less evidence that Interfor intentionally ended plaintiff’s employment “because of his age.” The Court should grant Interfor’s motion for summary judgment and dismiss plaintiff’s claims. Moreover, to the extent any of plaintiff’s claims survive summary judgment, he has no claim to economic damages, as he rejected Interfor’s recall offer and indicated on his Social Security Disability application that he has been unable to work since January 13, 2016, the date that he was laid off. II. FACTUAL BACKGROUND A. About Interfor Interfor and its Canadian parent corporation comprise one of the world’s largest lumber providers. Interfor employs approximately 2,000 workers nationwide, including approximately 150 employees at the Mill. (Duncan Decl. ¶ 2.) Interfor is committed to maintaining a workplace that is free from discrimination, and maintains a policy in its employee handbook that states: Interfor prohibits harassment or offensive conduct in any form, including but not limited to harassment or offensive conduct directed toward a person’s race, color, creed, religion, national origin, sex (gender), age, disability, veteran status, genetic information, family medical history, sexual orientation or other status protected by law. (Pl. dep., Ex. 9.) Employees who believe they have been subject to discrimination or harassment are expected to report it immediately. (Id.) Interfor strictly prohibits retaliation against an employee who raises a discrimination or harassment complaint. (Id.) Case 1:16-cv-01959-CL Document 24 Filed 11/01/17 Page 3 of 24 Page 4 - DEFENDANT INTERFOR U.S. INC.’S MOTION FOR SUMMARY JUDGMENT 94341576.2 0054215-00079 Plaintiff received a copy of Interfor’s employee handbook, which includes this policy, and was required to familiarize himself with it. (Pl. dep., Ex. 8.) B. Plaintiff’s Employment at Interfor Interfor hired plaintiff in 2011, when plaintiff was 57 years old. (Pl. dep. 56:6-8.) Plaintiff worked in the Mill’s sawmill department. (Paulson Decl. ¶ 2.) With the exception of the first few months of his employment and about one month when plaintiff operated the debarker machine, plaintiff operated the Mill’s chipper machine for his entire employment at Interfor. (Pl. dep. 57:7-16, 62:14-63:25.) While many of Interfor’s employees can (and will) operate a variety of different machines at the Mill, plaintiff was not one of those employees. (Paulson Decl. ¶ 2.) He did not know how to operate very many machines at the Mill and was reluctant to operate anything other than the chipper, which he considered to be “his job.” (Id.; Pl. dep. 63:24-67:12.) Plaintiff was by no means a model employee and had to be coached throughout his employment at Interfor. In January 2012, he was suspended for two days for not wearing his fall restraint. (Pl. dep. 67:15-68:22, Ex. 11.) In February 2012, he received documented coaching for another safety incident. (Pl. dep. 68:23-69:19, Ex. 12.) Plaintiff’s annual performance reviews included the following comments: • “[Plaintiff] has struggled in some areas of the Mill.” • “[Plaintiff] has been suspended for safety violations and his level of accepted risk is too high.” • “[Plaintiff] has had some issues with the understanding of policy and procedure.” • “I would like to see [plaintiff] train in other parts of the mill.” (Pl. dep., Ex. 13.) Case 1:16-cv-01959-CL Document 24 Filed 11/01/17 Page 4 of 24 Page 5 - DEFENDANT INTERFOR U.S. INC.’S MOTION FOR SUMMARY JUDGMENT 94341576.2 0054215-00079 Moreover, while Interfor only needs one employee to operate the chipper at any given time (Pl. dep. 57:21-22), there were three other employees other than plaintiff who were able to operate this machine (Pl. dep. 57:23-58:13). These employees were also able to operate machines other than the chipper that plaintiff could not operate. In other words, they were more versatile. Plaintiff admitted this in his deposition: Q: Is there just one chipper at Interfor? A: Yes. Q: How many other people worked the chipper? A: While I was there? Q: Yes. A: Probably three. Q: And who were those people? A: Howard, I can’t remember their last names. There’s Howard and Mike, the one I was training. And another guy named Larry. …. Q: To your knowledge, did Mike work other positions besides the chipper? A: Yes. Q: And what were those? A: He worked at the trimmer. Q: Okay. What else? A: What the heck was the name of it? Salem. Q: The Salem? A: Yeah, that’s what it’s called. …. Case 1:16-cv-01959-CL Document 24 Filed 11/01/17 Page 5 of 24 Page 6 - DEFENDANT INTERFOR U.S. INC.’S MOTION FOR SUMMARY JUDGMENT 94341576.2 0054215-00079 Q: Were you able to operate the trimmer? A: No. Q: Were you able to operate the Salem? A: No. Q: What about Larry Maxwell, what other positions did he work? A: I think he worked them all. He was like a floater. He worked everything. Q: Okay. What about Howard, what other positions did he perform? A: He had the chipper and he worked the Salem. And also he—what they call the 50—what’s it called? The big machine, runs big logs. What was it called? I’m drawing a blank. I can’t think of what it’s called. (Pl. dep. 57:21-58:7, 59:5-60:8.) While Interfor tried plaintiff out on other positions, he did not do well on anything besides the chipper. (Paulson Decl. ¶ 2.) As one of plaintiff’s supervisors, Clark, explained in his deposition: Q: Did you supervise Mr. Kennedy? A: Yes, I did. Q: And what was your opinion of him as an employee? A: He was a—he was an okay employee. Q: Okay. A: He didn’t know a lot of jobs, but he had a good attitude. Q: Okay. Do you know how many jobs he was trained on? A: He was mainly the chipper operator. I know he was—he was—he was—we tried him out on the bin tender. He didn’t do well on that position. (Clark dep. 8:6-18.) Case 1:16-cv-01959-CL Document 24 Filed 11/01/17 Page 6 of 24 Page 7 - DEFENDANT INTERFOR U.S. INC.’S MOTION FOR SUMMARY JUDGMENT 94341576.2 0054215-00079 Plaintiff’s inability to operate machines other than the chipper limited Interfor’s ability to assign plaintiff to other machines in response to production demands or scheduling needs. (Paulson Decl. ¶ 3.) In other words, plaintiff was less versatile than other Mill employees. (Id.) In short, plaintiff was an employee who was not very versatile, openly only wanted to operate the chipper, and failed to follow safety procedures. C. The Mill Downsizes as Part of a Company-Wide RIF Layoffs and work stoppages are common in the lumber industry. (Duncan Decl. ¶ 2.) They are typically temporary and employees are generally subject to recall. (Id.) In January 2016, the Mill went through a facility-wide RIF, just as other Interfor mills and administrative offices in North America did in 2015. (Id.) Four hourly employees from the sawmill department where plaintiff worked were laid off as part of the RIF. (Duncan Decl. ¶ 3.) In addition to plaintiff, these employees included Anthony Baker, Jeremy Solito, and Benjamin Mendes. (Id.) Baker’s date of birth is February 20, 1958. (Id.) Solito’s date of birth is April 24, 1984. (Id.) Mendes’ date of birth is June 5, 1972. (Id.) In addition to these individuals, several hourly employees from other departments and several salaried employees were also laid off. (Id.) Decisions regarding the RIF were primarily made by Mill Manager Rick Robertson and Sawmill Superintendent Greg Duncan, with input from individual supervisors, including plaintiff’s supervisor at the time, Scott Paulson. (Id.) When selecting employees for the RIF, Robertson and Duncan looked at job performance and work ethic, how many different positions an employee had worked at the Mill, attendance record, and disciplinary history. (Id.) Plaintiff was selected for layoff because of his history of safety violations (including a suspension) and his limited versatility (he was not any good at operating machines other than the Case 1:16-cv-01959-CL Document 24 Filed 11/01/17 Page 7 of 24 Page 8 - DEFENDANT INTERFOR U.S. INC.’S MOTION FOR SUMMARY JUDGMENT 94341576.2 0054215-00079 chipper, which he considered to be “his job”). (Duncan Decl. ¶ 4.) Age played absolutely no role in Interfor’s layoff decisions, and younger employees were also laid off as part of the RIF. (Id.) Plaintiff testified to this in his deposition: Q: I want to talk to you a little bit about what was going on at the mill before you were laid off. Okay? A: Okay. Q: Was production slow before you were laid off? A: They were—it was up and down. Q: And what do you mean by that? A: Some days we’d do real well and other days—other days there would be something break down that would stop the mill from producing. Q: Were you told that the mill’s performance was poor? A: They—they mentioned it in a meeting. Not just straight to me, to everybody. Q: And when was that meeting? A: I don’t remember the date. We had quite a few meetings towards the end of when I worked. Q: And what do you remember from those meetings? A: Just them giving us performance, saying how well we were doing or how bad we were doing. Q: And what did they say? A: That was—just that everyone has to step up and do better. Q: Were you told that the mill would be downsizing? A: Yes. When I got laid off I was. Q: Okay. Were you told that there would be layoffs? A: Not when I—not till I got laid off. Case 1:16-cv-01959-CL Document 24 Filed 11/01/17 Page 8 of 24 Page 9 - DEFENDANT INTERFOR U.S. INC.’S MOTION FOR SUMMARY JUDGMENT 94341576.2 0054215-00079 Q: Okay. When were you told that you’d be laid off? A: On the 13th of January. Q: And who told you that? A: Scott Paulson. Q: Anyone else? A: Greg Duncan. Q: Anyone else? A: No, that was it. Q: Were you told why that you were—were you told why you were laid off? A: They said they were downsizing. Q: Did anyone mention your age? A: No. Q: And you weren’t the only person laid off, correct? A: Yes, I wasn’t. Q: Do you know who else was laid off? A: As of right now, I can’t remember the names of the people. There were a few of them. Q: Do you remember the ages of any of the people who were laid off? A: There was—one of them was in his mid to upper 50s, I believe. Q: What about the others? A: No, they were younger. (Pl. dep. 75:16-77:20 (emphases added).) Case 1:16-cv-01959-CL Document 24 Filed 11/01/17 Page 9 of 24 Page 10 - DEFENDANT INTERFOR U.S. INC.’S MOTION FOR SUMMARY JUDGMENT 94341576.2 0054215-00079 No one was hired to replace plaintiff, and Interfor used the staff it already had to cover production needs during the relatively short layoff period. (Duncan dep. 65:13-15.) D. Plaintiff Rejects Interfor’s Recall Offer Mill layoffs are historically cyclical in nature, and employees are frequently recalled back from layoff. (Duncan Decl. ¶ 2.) Because plaintiff had not engaged in misconduct, he was eligible for recall from the layoff. (Duncan Decl. ¶ 5.) In May 2016, Interfor unconditionally offered a recall to plaintiff at a higher pay rate than plaintiff had previously earned at Interfor. (Pl. dep. 37:9-19, Ex. 4; Duncan Decl. ¶ 5.) Plaintiff did not respond to Interfor’s recall offer, nor did he ever contact Interfor to ask any questions about the terms of his unconditional recall. (Duncan Decl. ¶ 5.) III. ARGUMENT There is no material dispute that plaintiff was included in the January 2016 RIF because of his limited cross-training and versatility and history of safety violations. There is no evidence to support his age discrimination claims, and Interfor is entitled to judgment as a matter of law. A. Legal Standard for Summary Judgment Summary judgment must be granted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). An issue is “genuine” only if there is a sufficient evidentiary basis on which a reasonable factfinder could find for the non-moving party, and a dispute is “material” only if it could affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Although the Court views plaintiff’s evidence in his favor, id. at 255, conclusory, speculative testimony is insufficient to raise a genuine issue of fact and defeat summary judgment. Thornhill Publ’g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 738 (9th Cir. 1979). Case 1:16-cv-01959-CL Document 24 Filed 11/01/17 Page 10 of 24 Page 11 - DEFENDANT INTERFOR U.S. INC.’S MOTION FOR SUMMARY JUDGMENT 94341576.2 0054215-00079 Plaintiff must show that he has sufficient admissible evidence to be entitled to a jury trial, and may not rely on mere allegations, conclusory assertions, or subjective personal beliefs. See id. Moreover, to the extent plaintiff tries to rely on circumstantial evidence, he “must put forward specific and substantial evidence challenging the credibility of [Interfor’s] motives.” Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003) (emphasis added). Plaintiff cannot meet his burden to survive summary judgment, and his claims fail as a matter of law. B. Plaintiff’s Age Discrimination Claims Fail as a Matter of Law To survive summary judgment on his age discrimination claims, it is plaintiff’s burden to present evidence sufficient for the trier of fact to find that Interfor intentionally ended his employment because of his age. Age discrimination claims under state and federal law are evaluated under a “but-for” standard, and plaintiff must prove that “‘age was the reason’” for the adverse employment action. Comm. v. Or. State Univ., No. 3:13-CV-01341-ST, 2015 WL 2170122, at *5 (D. Or. May 8, 2015) (emphasis added) (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009)); see also Rogers v. Or. Trail Elec. Consumers Coop., Inc., No. 3:10-CV-1337-AC, 2012 WL 1635127, at *11 (D. Or. May 8, 2012) (“but-for” test applies to age discrimination claims under ORS 659A.030; rejecting plaintiff’s argument that he only needed to prove that age was a “substantial factor” in the adverse employment decision). To meet his burden, plaintiff must produce either direct or circumstantial evidence of age discrimination. Rogers, 2012 WL 1635127, at *12. If he establishes a prima facie case, the burden of production shifts to Interfor to show a legitimate non-discriminatory reason for its actions. If Interfor does so, plaintiff must demonstrate pretext. Id. at *16. Case 1:16-cv-01959-CL Document 24 Filed 11/01/17 Page 11 of 24 Page 12 - DEFENDANT INTERFOR U.S. INC.’S MOTION FOR SUMMARY JUDGMENT 94341576.2 0054215-00079 Plaintiff’s age discrimination claims fail because (1) he cannot establish a prima facie case based on either direct or circumstantial evidence, and (2) Interfor acted for legitimate, non- discriminatory reasons and there is no evidence of pretext. 1. Plaintiff cannot establish a prima facie case of age discrimination a. There is no direct evidence of age discrimination “‘Direct evidence is evidence “which, if believed, proves the fact [of discriminatory animus] without inference or presumption,”’” and “‘typically consists of clearly sexist, racist, or similarly discriminatory statements or actions by the employer.’” Id. at *12 (brackets in original) (quoting Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095 (9th Cir. 2005)). “Direct evidence is rare, and usually arises only when the employer admits to having a discriminatory motive.” Id. Plaintiff has no direct evidence of age discrimination. He admitted in his deposition that he had no evidence to support his claim that he was terminated because of his age: Q: What information do you have to support your claim that Interfor terminated your employment because of your age? A: I don’t have any evidence other than my own feeling. (Pl. dep. 105:2-6.) Plaintiff was also hired when he was 57 years old, which negates any inference of age discrimination. Plaintiff further testified in his deposition that all of his supervisors at Interfor treated him fairly: Q: Who were your supervisors at Interfor? A: When—when I left or total? Q: Let’s start with when you first started. A: Ron Clark. Q: Did you enjoy working for Ron Clark? Case 1:16-cv-01959-CL Document 24 Filed 11/01/17 Page 12 of 24 Page 13 - DEFENDANT INTERFOR U.S. INC.’S MOTION FOR SUMMARY JUDGMENT 94341576.2 0054215-00079 A: Yes. Q: Did you feel that he treated you fairly? A: Yes. Q: And who was your supervisor after him? A: Gene Smith. Q: Did you enjoy working for Mr. Smith? A: Yes, I did. Q: Did you feel that he treated you fairly? A: Yes. Q: Who was your supervisor after that? A: Scott Paulson. No, no, no, I’m sorry. It was Tom—I can’t think of what his last name was. I’m sorry, I can’t remember his last name. Q: Did you enjoy working for him? A: Yes, I did. Q: Did you feel that he treated you fairly? A: Yes. Q: And who was your supervisor after him? A: Scott Paulson. Q: Did you enjoy working for Scott Paulson? A: Yes. Q: Did you feel that he treated you fairly? A: Yes. (Pl. dep. 74:2-75:4.) Case 1:16-cv-01959-CL Document 24 Filed 11/01/17 Page 13 of 24 Page 14 - DEFENDANT INTERFOR U.S. INC.’S MOTION FOR SUMMARY JUDGMENT 94341576.2 0054215-00079 Plaintiff not only admits that all of his supervisors treated him fairly, he also cannot identify any discriminatory motive on behalf of the managers who made decisions regarding the January 2016 RIF. As explained above, layoff decisions were made by Duncan and Robertson, with input from individual supervisors, including plaintiff’s supervisor at the time of the layoff, Paulson. In his deposition, plaintiff speculated that Duncan and Robertson might have included him in the RIF because of his age, but could not point to anything to support that conclusion: Q: Do you think Scott Paulson had a motive to get rid of you because of your age? A: No. Q: Do you think that Greg Duncan had a motive to get rid of you because of your age? A: Maybe. Q: And what makes you think that? A: He was good to me and everything, but I don’t know, just a feeling that I had. Q: Do you have any facts to support your feeling? A: No, I don’t. …. Q: Do you think anyone at Inte[r]for had a motive to get rid of you because of your age? A: I think maybe Greg Duncan and maybe the new supervisor, the main guy in the office that took Tony’s job. Q: And who was that? A: I can’t remember what his name was. He wasn’t there for very long before I left. Q: And what—what makes— Case 1:16-cv-01959-CL Document 24 Filed 11/01/17 Page 14 of 24 Page 15 - DEFENDANT INTERFOR U.S. INC.’S MOTION FOR SUMMARY JUDGMENT 94341576.2 0054215-00079 A: I— Q: What makes you think that he had a motive to get rid of you? A: He was just looking at everybody and trying to—he’s the one that was trying to downsize and— Q: Was that Rick Robertson? A: It could be. I didn’t really know him other than in passing. Q: Did he ever make any comments about your age? A: No. Q: Do you know how old he is? A: No, I don’t. Q: Did Greg Duncan ever make any comments about your age? A: No. Q: And other than your feeling, do you have any reason to think that he wanted to get rid of you because of your age? A: I honestly don’t know. Q: Okay. And is there anything other than you being laid off that makes you feel that way? A: Just the fact that I lost my job to it, yeah. Q: Okay. A: That’s it. (Pl. dep. 105:2-107:12.) In short, plaintiff cannot identify even a single stray remark about his age or anyone who was motivated to end his employment because of his age. This is fatal to his case. See Rogers, 2012 WL 1635127, at *11 (“The actual motivation of the employer, not the subjective belief of the employee, is all that is relevant in an employment discrimination case . . . .”); Carmen v. S.F. Case 1:16-cv-01959-CL Document 24 Filed 11/01/17 Page 15 of 24 Page 16 - DEFENDANT INTERFOR U.S. INC.’S MOTION FOR SUMMARY JUDGMENT 94341576.2 0054215-00079 Unified Sch. Dist., 237 F.3d 1026, 1028 (9th Cir. 2001) (affirming grant of summary judgment for employer on age discrimination claim and explaining “[a] plaintiff’s belief that [his or her employer] acted from an unlawful motive, without evidence supporting that belief, is no more than speculation”). b. Plaintiff cannot establish a prima facie case based on circumstantial evidence Plaintiff’s circumstantial evidence is also insufficient. To establish a prima facie case using circumstantial evidence, plaintiff must show that he (1) is a member of a protected class (over age 40); (2) was performing his job satisfactorily; (3) was subjected to an adverse employment action; and (4) was replaced by a substantially younger employee with equal or inferior qualifications. Nidds v. Schindler Elevator Corp., 113 F.3d 912, 917 (9th Cir. 1996). Plaintiff cannot establish the fourth element of his claim. As explained above, Interfor did not hire anyone to replace plaintiff as chipper operator after the layoff and instead utilized the staff it already had. Plaintiff admitted in his deposition that the employee who operated the chipper after he was laid off was a current employee who had already been working for Interfor for a year. Plaintiff testified: Q: And what did Scott Paulson say with regard to you being replaced? A: He didn’t, other than him telling me that they were going to have Mike do my job. Q: And what did he tell you? A: That—all he said was he was going to have Mike do my job and they were going to lay me off. Q: And Mike was—was Mike a current employee at Interfor? A: Yes. I was training him. Q: And did Mike also work the chipper? Case 1:16-cv-01959-CL Document 24 Filed 11/01/17 Page 16 of 24 Page 17 - DEFENDANT INTERFOR U.S. INC.’S MOTION FOR SUMMARY JUDGMENT 94341576.2 0054215-00079 A: Yes. Q: And how old is Mike? A: 52, I think. Q: Okay. How long had he been at Interfor? A: Probably a year. I’m not positive, but I think somewhere around there. (Pl. dep. 22:15-23:6.) When no replacement is hired and work is just transferred to existing employees, no discriminatory inference is raised. Neukom v. Columbia Steel Casting Co., No. 05-924-JE, 2006 WL 1005067, at *7 (D. Or. Apr. 17, 2006) (“Plaintiff was not replaced by a transferred or new employee, and an employee is not considered to be replaced during a reduction in force if another employee is assigned to perform his duties as well as other duties, or when the work he did is distributed among other employees who are already performing related work.” (citing Barnes v. GenCorp, Inc., 896 F.2d 1457, 1466 (6th Cir. 1990))); Roper v. Exxon Corp., 27 F. Supp. 2d 679, 682 (E.D. La. 1998) (“[T]he transfer of work to other employees or outside contractors upon termination does not constitute ‘replacement’ for purposes of the ADEA.”); accord Meinecke v. H & R Block of Houston, 66 F.3d 77, 83-84 (5th Cir. 1995). Not only was plaintiff not replaced, but Mike Lucero, the employee who was assigned to the chipper after plaintiff was laid off, was also not substantially younger than plaintiff. At the time his employment ended in January 2016, plaintiff was 61 years old. (Pl. dep. 11:20-21.) At the time, Lucero was 51 years old, which is not “substantially younger.” See Bush v. Dictaphone Corp., 161 F.3d 363, 368 (6th Cir. 1998) (holding that the plaintiff’s replacement, who was five years younger, was not “substantially younger”); see also Cambra v. Chevron Int’l Exploration & Prod., 318 F. App’x 488, 491 (9th Cir. 2008) (where positions at issue “were filled by persons Case 1:16-cv-01959-CL Document 24 Filed 11/01/17 Page 17 of 24 Page 18 - DEFENDANT INTERFOR U.S. INC.’S MOTION FOR SUMMARY JUDGMENT 94341576.2 0054215-00079 who were not substantially younger than [the plaintiff], their selection over [the plaintiff] did not give rise to the inference of age discrimination necessary to establish a prima facie case”). Because he was not replaced by a substantially younger employee with equal or inferior qualifications, plaintiff cannot establish a prima facie case of age discrimination based on indirect evidence. His age discrimination claim fails as a matter of law. 2. Interfor included plaintiff in the January 2016 RIF for legitimate, non- discriminatory reasons, and plaintiff has no evidence of pretext Even if plaintiff could establish a prima facie case of age discrimination (which he cannot), he cannot survive summary judgment because Interfor had legitimate, non- discriminatory reasons for laying off plaintiff, and plaintiff has no evidence that those were not the real reasons for his layoff. As explained above, plaintiff was included in a facility-wide RIF, which was part of a larger 2015-16 timeframe in which Interfor’s other North American mills and administrative operations were also downsized. Plaintiff was selected for layoff over other employees because of his reluctance to operate machines other than the chipper, his limited cross-training and versatility, and his history of safety violations. (Duncan Decl. ¶ 4.) And that makes sense. Plaintiff’s lack of versatility made him less valuable to the downsizing company than employees who could operate a variety of different machines. (Id.) Age played absolutely no role in Interfor’s layoff decisions. (Id.) Indeed, plaintiff was hired at age 57 and several other individuals who were selected for layoff were much younger than plaintiff. (Duncan Decl. ¶¶ 3, 4.) These individuals, like plaintiff, were selected for layoff for legitimate business reasons, including performance issues, inability or unwillingness to operate a variety of machines, and history of discipline. (Id.) Case 1:16-cv-01959-CL Document 24 Filed 11/01/17 Page 18 of 24 Page 19 - DEFENDANT INTERFOR U.S. INC.’S MOTION FOR SUMMARY JUDGMENT 94341576.2 0054215-00079 It is well-settled that it is improper for factfinders to question the wisdom of business decisions—like Interfor’s decision to layoff plaintiff—in hindsight. As the Ninth Circuit has held, “[t]hat [the employer] made unwise business judgments or that it used a faulty evaluation system does not support the inference that [the employer] discriminated.” Coleman v. Quaker Oats Co., 232 F.3d 1271, 1285 (9th Cir. 2000). Nor can factfinders decide a case as a matter of fairness or sympathy. See Nelson v. Fiskars Brands, Inc., No. 03:14-CV-00685-SB, 2015 WL 5566454, at *13 (D. Or. Sept. 13, 2015) (“‘[F]ederal courts do not sit as a super-personnel department that reexamines an entity’s business decision[.]’” (citation omitted; first brackets in original)). In other words, even if the Court were questioning Interfor’s decision to layoff plaintiff, those curiosities could not form a basis for the Court to infer discriminatory motive. Put differently, the Court “‘must not substitute its own judgment about whether the employment decisions were wise, or even fair, for that of the employer.’” Whitley v. City of Portland, 654 F. Supp. 2d 1194, 1217 (D. Or. 2009) (quoting Odima v. Westin Tucson Hotel Co., 991 F.2d 595, 602 (9th Cir. 1993)). Moreover, plaintiff has no “specific and substantial” evidence to suggest that Interfor’s stated reasons for his layoff (his limited versatility, reluctance to operate machines other than the chipper, and history of safety violations) were a pretext for discrimination. Vasquez, 349 F.3d at 642 (to survive summary judgment, plaintiff “must put forward specific and substantial evidence challenging the credibility of the employer’s motives”); Dunlap v. Liberty Nat. Prods., Inc., No. 3:12-cv-01635-SI, 2013 WL 6177855, at *10-11 (D. Or. Nov. 25, 2013) (dismissing retaliation claims where no evidence of pretext); see also Nidds, 113 F.3d at 918 (to survive summary judgment, employee “must produce enough evidence to allow a reasonable factfinder Case 1:16-cv-01959-CL Document 24 Filed 11/01/17 Page 19 of 24 Page 20 - DEFENDANT INTERFOR U.S. INC.’S MOTION FOR SUMMARY JUDGMENT 94341576.2 0054215-00079 to conclude either: (a) that the alleged reason for [employee’s] discharge was false, or (b) that the true reason for [employee’s] discharge was a discriminatory one”). In sum, plaintiff was laid off because of his limited versatility and safety violations. Being laid off almost always feels unfair to the affected employee. But plaintiff’s subjective and unsubstantiated feelings that he should not have been laid off are entirely insufficient to support his age discrimination claims. See Carmen, 237 F.3d at 1028 (employee’s “belief that [his or her employer] acted from an unlawful motive, without evidence supporting that belief, is no more than speculation”). Plaintiff falls woefully short of meeting his burden to survive summary judgment, and his age discrimination claims should be dismissed with prejudice. C. Plaintiff Has No Right to Economic Damages Even if plaintiff were able to survive summary judgment on his age discrimination claims, Interfor would be entitled to summary judgment on the issue of economic damages. First, plaintiff has no claim to economic damages because he has been on Social Security Disability and unable to work since he was laid off from Interfor. Lubbes v. RSG Forest Prods., Inc., No. CV 05-880-MO, 2007 WL 539499, at *1 (D. Or. Feb. 14, 2007) (“I now find that plaintiff is not entitled to recover lost wages, because he would have been unable to work even if he had not been fired, and because he failed to mitigate his damages.”); Blackburn v. Sturgeon Servs. Int’l, Inc., No. 1:13-CV-00054-JLT, 2014 WL 1275919, at *12 (E.D. Cal. Mar. 27, 2014) (finding that “during the period of disability, Plaintiff was/is unavailable to work and cannot recover lost wages for this time for the federal claims”). As plaintiff testified in his deposition, he suffers from COPD and is unable to work. (Pl. dep. 18:9-24.) In fact, plaintiff testified that his COPD would prevent him from performing any position at Interfor (Id.) Plaintiff further testified that he has had COPD since before he was laid Case 1:16-cv-01959-CL Document 24 Filed 11/01/17 Page 20 of 24 Page 21 - DEFENDANT INTERFOR U.S. INC.’S MOTION FOR SUMMARY JUDGMENT 94341576.2 0054215-00079 off (Pl. dep. 18:25-19:5), and that since he was laid off it has prevented him from performing any position at all (not just at Interfor). When questioned about mitigation of damages in his deposition, plaintiff testified: Q: Did you apply for any positions where there were job postings? A: No. Q: Did you apply for any positions where you had reason to believe that there was a job opening? A: No. Q: Okay. And did you actually submit any applications anywhere? A: No. Q: And could you have performed any positions given your COPD? A: Not after it got ahold of me real good. Q: And when did it get ahold of you real good? A: That was probably right after I got laid off. (Pl. dep. 30:24-31:12.) Moreover, plaintiff has been receiving Social Security Disability since July 2016 because he is unable to work. (Pl. dep. 23:13-21.) On his Social Security application, plaintiff indicated that he has been unable to work since January 13, 2016, the date that he was laid off from Interfor. (Livett Decl. ¶ 2, Ex. 1.) Second, plaintiff has no claim to economic damages because he rejected a recall offer just a few months after he was laid off. (Pl. dep., Ex. 4.) Ford Motor Co. v. EEOC, 458 U.S. 219, 231-32 (1982) (“Although the unemployed or underemployed claimant need not go into another line of work, accept a demotion, or take a demeaning position, he forfeits his right to backpay if he refuses a job substantially equivalent to the one he was denied. Consequently, an employer Case 1:16-cv-01959-CL Document 24 Filed 11/01/17 Page 21 of 24 Page 22 - DEFENDANT INTERFOR U.S. INC.’S MOTION FOR SUMMARY JUDGMENT 94341576.2 0054215-00079 charged with unlawful discrimination often can toll the accrual of backpay liability by unconditionally offering the claimant the job he sought, and thereby providing him with an opportunity to minimize damages.” (footnotes omitted)). It is undisputed that in May 2016, just a few months after the facility-wide RIF, Interfor offered to recall several employees, including plaintiff. It is undisputed that plaintiff was offered more money on recall than he had earned before he left. (Pl. dep. 37:9-19.) It is also undisputed that plaintiff did not respond to Interfor’s recall offer. Plaintiff admitted this in his deposition: Q: Did you respond to this recall offer? A: No, I didn’t. Q: And why not? A: Because—how do I want to word it? They offered me the job of debarker, at that time I know I couldn’t do it. I could sit in the chair and do it, but I couldn’t move the logs around and stuff like they—you have to do when you do that job. I just know I couldn’t do it. Q: Had you ever performed the debarker position at Interfor? A: Yes. Q: And when was that? A: When I was training on it, oh, probably six months of when I got laid off. Q: Did you call anyone at Interfor to tell them that you couldn’t perform the debarker position? A: No, I didn’t. Q: And why not? A: Because I was already on Social Security disability and— / / / / / / / / / / Case 1:16-cv-01959-CL Document 24 Filed 11/01/17 Page 22 of 24 Page 23 - DEFENDANT INTERFOR U.S. INC.’S MOTION FOR SUMMARY JUDGMENT 94341576.2 0054215-00079 Q: So you weren’t interested in going back to work? A: No. At the time, no. (Pl. dep. 35:10-36:8.) Plaintiff further testified that he could not perform any position at Interfor at the time he was offered recall: Q: At the time that you received the recall letter in May 2016, were you able to work the chipper? A: No, I don’t think so. I had gained so much weight, and the COPD had got me so bad, I didn’t think I could—I don’t think I could do it. Q: Was there any position that you thought you could perform at Interfor? A: No. (Pl. dep. 38:4-11.) In sum, even if any of plaintiff’s claims could survive summary judgment, he would not be entitled to any economic damages because he rejected Interfor’s recall offer and has been unable to work since the day he was laid off. IV. CONCLUSION Plaintiff lacks any evidence to support his age discrimination claim, let alone admissible evidence from which the trier of fact reasonably could infer that Interfor intentionally discriminated against him because of his age. Nor does plaintiff have any claim to economic / / / / / / / / / / / / / / / / / / / / / / / / / Case 1:16-cv-01959-CL Document 24 Filed 11/01/17 Page 23 of 24 Page 24 - DEFENDANT INTERFOR U.S. INC.’S MOTION FOR SUMMARY JUDGMENT 94341576.2 0054215-00079 damages. For the reasons stated above, Interfor respectfully requests that the Court grant summary judgment in its favor and dismiss plaintiff’s claims with prejudice. DATED: November 1, 2017. STOEL RIVES LLP s/ Caroline J. Livett JAMES SHORE, OSB No. 941425 jim.shore@stoel.com Telephone: (206) 624-0900 CAROLINE J. LIVETT, OSB No. 151871 caroline.livett@stoel.com Telephone: (503) 224-3380 Attorneys for Defendant Case 1:16-cv-01959-CL Document 24 Filed 11/01/17 Page 24 of 24