Koettnerv.Northrop Grumman Commercial Info. Serv., Inc.

United States District Court, N.D. Texas, Dallas DivisionApr 6, 2005
Civil Action No. 3:03-CV-2208-M (N.D. Tex. Apr. 6, 2005)

Civil Action No. 3:03-CV-2208-M.

April 6, 2005


BARBARA LYNN, District Judge

Before the Court is Defendant's Motion for Summary Judgment, filed on October 4, 2004. For the following reasons, the Court is of the opinion that Defendant's Motion should be GRANTED in part and DENIED in part, as further detailed below.


Plaintiff John Koettner ("Koettner") was hired by Vought Industries in 1968 as a Lead Master Technical Operator. Defendant Northrop Grumman Commercial Information Services, Inc. ("Northrop Grumman"), then known as Northrop Corporation, acquired a 49% interest in Vought industries in 1992, and it acquired the remaining 51% in 1994. Koettner worked for Northrop Grumman in various capacities between the time of its acquisition of Vought Industries and his termination in June of 2003. During that eleven year period, Koettner was involved in four disciplinary actions and received evaluations ranging from "competent" to "commendable". He never received the highest rating of "outstanding". After his termination, Koettner brought this action against Northrop Grumman, asserting claims of age discrimination and retaliation.

The events at issue in this case took place after Northrop Grumman reorganized the management structure of Vought Industries, as a result of which Koettner was supervised by Kathy Sill ("Sill"). The parties agree that Koettner and Sill had a contentious relationship. Around the time that Koettner was placed under Sill's supervision, he made a report of sexual harassment by Sill to Northrop Grumman's Human Resources ("HR") Department. Koettner claimed that Sill had asked a co-worker whether Koettner had "any special endowments which enabled him to date nice-looking women." Koettner also claims that on the day Sill became his supervisor, she threatened his job. After an investigation of the alleged sexual harassment, Koettner was transferred to another supervisor.

In March of 2000, Koettner made another complaint to the HR Department. He alleged that his supervisor, Greg McBride, was treating him "unfairly", that his peers were inappropriately discussing his personal life, and that his compensation was not keeping pace with that of his peers. Soon thereafter, Koettner orally complained to a representative of the HR Department, in which he claims he suggested he had been treated unfairly because of his age. Koettner was told to file a separate complaint addressing the alleged age discrimination, but he did not do so.

In April of 2001, Sill was promoted, and became the manager of the area in which Koettner was then working. Koettner made two more complaints against Sill before his termination, an oral complaint to an HR representative in June of 2002, and a written complaint in July of 2002. In the oral complaint, Koettner claims he said he was being given undesirable assignments by Sill, and that he was being denied training because of his age. His written complaint reiterated his objection to his work assignments, but made no reference to age discrimination.

Koettner was terminated from his position at Northrop Grumman on June 16, 2003. According to Defendant, Koettner was terminated due to a budget-driven reduction in force. Defendant claims that the decision to terminate Koettner was made pursuant to standard procedures. Defendant contends it considered five candidates for termination, and that Koettner was selected for termination because he placed the lowest in its "Rank Order Analysis", which involved a ranking of the five candidates according to their past performance, conduct, training, experience and education.

In his Response, Koettner raises a litany of objections to Defendant's summary judgment evidence. The Court overrules Koettner's objection that Defendant's "Rank Order Analysis" documents are incompetent summary judgment evidence. The documents are admissible business records, which demonstrate the factors Defendant considered when it ranked the candidates for termination. However, the Court sustains Koettner's objections to the portions of Defendant's Motion that: (1) characterize the relative importance of each factor in the Rank Order Analysis, and characterize Defendant's reasons for conducting the Rank Order Analysis, without citing evidence supporting Defendant's assertions; (2) reference an altercation between Koettner and Sill, without citing supporting evidence; and (3) otherwise characterize Koettner's conduct and Defendant's conduct, without citing supporting evidence.

Plaintiff claims he was terminated because of his age, and in retaliation for his complaints against Sill and McBride. He has asserted claims of age discrimination and retaliation under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.


Under Fed.R.Civ.P. 56(c), summary judgment is appropriate when the pleadings and record evidence show that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Little v. Liquid Air. Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). The burden is on the moving party to prove that no genuine issue of material fact exists. Latimer v. Smithkline French Labs., 919 F.2d 301, 302 (5th Cir. 1990). The record is considered in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Harrison v. Byrd, 765 F.2d 501, 504 (5th Cir. 1985). However, bare allegations in briefs and pleadings are insufficient to withstand summary judgment. Alizadeh v. Safety Stores, Inc., 802 F.2d 111, 113 (5th Cir. 1986).

If the moving party meets its initial burden, then the burden shifts to the non-moving party, who must produce evidence establishing a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 321-22 (1986). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to his case, and on which he bears the burden of proof at trial, summary judgment is mandatory. Id. at 322-24.

I. Age Discrimination

Koettner attempts to assert two distinct age discrimination claims. He asserts a claim based on Northrop Grumman's allegedly unlawful termination of him, and a claim based on discriminatory treatment during his employment. The Court denies Defendant's Motion for Summary Judgment with respect to the unlawful termination claim and grants Defendant's Motion with respect to the discriminatory treatment claim.

In his Response, Koettner attempts to assert a third ADEA claim. Koettner alleges that when Defendant learned Koettner had initiated this lawsuit, it stopped processing Koettner's internal grievance against Defendant. Koettner claims Defendant's conduct was a per se violation of the ADEA. However, this claim is not in Plaintiff's Complaint and the Court will not allow Koettner to assert it, in the first instance, at summary judgment.

A. Unlawful Termination

Koettner's age discrimination claims are based on circumstantial, rather than direct, evidence of discrimination. Accordingly, the Court must analyze his claims under the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Koettner must establish a prima facie case of discrimination by showing: (1) he was discharged; (2) he was qualified for the position; (3) he was within the protected class; and (4) he was replaced by someone outside the protected class, replaced by someone younger, or otherwise discharged because of his age. Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004); Palasota v. Haggar Clothing Co., 342 F.3d 569, 576 (5th Cir. 2003). When a plaintiff's termination is part of a reduction in force, so that the plaintiff is not replaced by another employee, McDonnell Douglas requires him to produce some evidence, circumstantial or direct, from which a fact-finder might reasonably conclude the employer intended to discriminate against him when it selected him for termination. Id.

If Koettner succeeds in presenting a prima facie case, Defendant must respond with a legitimate, nondiscriminatory explanation for the adverse employment action. See Rachid, 376 F.3d at 312. If Defendant presents such an explanation, the inference of discrimination disappears. Koettner must then offer evidence that Defendant's stated reason is a pretext for discrimination, or that Defendant's reason, while true, was only one of the reasons for its conduct, and another "motivating factor" was Koettner's age. Id. These burdens are of production, not persuasion, and they therefore involve no credibility assessment. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000). The burden of persuasion always rests with Defendant. See Id.

It is undisputed that at the time of Koettner's termination he was qualified for his position, and was within the class protected by the ADEA. See 29 U.S.C. § 631(a) (2004). As proof he was discharged because of his age, Koettner offers evidence that he was the only employee terminated in the reduction in force, and that three younger employees, who Defendant contends were considered as candidates for the reduction in force, were retained. Koettner also notes that he had more experience than each of the employees who were retained. These allegations are sufficient to satisfy Koettner's burden of production of intent to discriminate. See Amburgey v. Corhart Refractories Corp., Inc., 936 F.2d 805, 812 (5th Cir. 1991) (the plaintiff made out a prima facie case of discrimination by producing evidence that at the time of his dismissal, "younger, allegedly less qualified persons were retained"); Nichols v. Loral Vought Systems Corp., 81 F.3d 38, 41 (5th Cir. 1996) (a "very minimal" amount of circumstantial evidence is sufficient to make out a prima facie case of discrimination).

Defendant has not responded with a sufficient legitimate, non-discriminatory explanation for Koettner's termination, so as to justify summary judgment on the issue. Defendant contends that its Rank Order Analysis documents are evidence it followed age-neutral procedures in selecting Koettner for termination. The Rank Order Analysis documents purport to analyze the candidates for termination in light of five "ranking criteria": ability; performance; conduct; education or training; and experience. The documents indicate that Koettner is distinguishable from the other termination candidates in several respects: (1) two of Koettner's three most recent performance evaluations rated him as "competent", while the other candidates were rated "commendable" or "outstanding"; (2) Koettner had two notations under the "conduct" section of the documents, while the other candidates had none; (3) Koettner had thirty four years of experience, which exceeded the tenure of every other candidate for termination; and (4) Koettner had PeopleSoft and other software-related training, but not a college degree.

The Rank Order Analysis documentation is insufficient, standing alone, to constitute a legitimate, non-discriminatory explanation for Koettner's termination. Defendant has not introduced evidence that Koettner was selected for termination for any specific reason, such as his disciplinary record or the fact he lacked a college degree. Instead, Defendant asserts that it reviewed the Rank Order Analysis and found other employees to be "more qualified than the Plaintiff." Its evidence does not explain how that conclusion was reached. The Fifth Circuit has held that when an employer offers subjective reasons to justify its termination of an employee, such as its finding that the terminated employee is less qualified than his colleagues, the employer must "articulate in some detail a more specific reason than its own vague and conclusional feeling about the employee." Patrick v. Ridge, 394 F.3d 311, 317 (5th Cir. 2004). The Court finds Defendant has not met this burden. It did not introduce evidence that Koettner's standing in the Rank Order Analysis was determined by age-neutral characteristics, and the Court thus does not have a basis for concluding Defendant's termination of Koettner was legitimate. See id. at 318 ("a hiring official's subjective belief than an individual would not `fit in' or was `not sufficiently suited' for a job is at least as consistent with discriminatory intent as it is with nondiscriminatory intent . . ."). Whatever the ultimate strength of Plaintiff's case, the Court's inquiry under McDonnell Douglas is pretermitted by Defendant's failure to adduce a legitimate, non-discriminatory explanation for Koettner's termination. Therefore, Defendant's Motion for Summary Judgment is DENIED with respect to Koettner's ADEA termination claim.

B. Discriminatory Treatment Predating Koettner's Termination

Koettner claims Northrop Grumman violated the ADEA by subjecting him to discriminatory treatment, because of his age, between 1992 and his termination in 2003. He alleges he was denied training that was provided to other employees, that some of his work was given to coworkers, that he was given too little work at times, and that at other times he was given more difficult work than his coworkers. To evaluate his discriminatory treatment claim, the court returns to the McDonnell Douglas analysis. Here, Koettner's prima facie case requires him to prove: (1) he was within the protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) he was treated less favorably than similarly situated younger employees. Smith v. City of Jackson, Miss., 351 F.3d 183, 196 (5th Cir. 2003).

Koettner has not satisfied his burden of making out a prima facie case that he was discriminated against in the years predating his termination, because he has not produced evidence of an adverse employment action during that time. Northrop Grumman argues "adverse employment actions" are limited to hiring, granting leave, discharging, promoting and compensating. In response, Koettner notes that the Fifth Circuit has suggested that the term "adverse employment action" could be interpreted more broadly to include reassignment with significantly different responsibilities, and significant changes in benefits. See, e.g., Pegram v. Honeywell, Inc., 361 F.3d 272, 282 n. 8 (5th Cir. 2004) ("We recognize Pegram's and the EEOC's contention that in the aftermath of the Supreme Court's decisions in [ Faragher and Ellerth], it is an open question in this court whether, and to what extent, those decisions, `lower the bar' for what comprises an `ultimate employment decision'").

In this context, the Fifth Circuit uses the terms "adverse employment action" and "ultimate employment decision" interchangeably. See Pegram, 361 F.3d at 282.

The Court will assume, for purposes of Defendant's Motion, that the Supreme Court's Faragher and Ellerth decisions broaden the scope of the term "adverse employment action". However, Koettner has not produced evidence he suffered a significant reassignment, was denied benefits, or suffered any similar action in the time leading up to his termination. Northrop Grumman's alleged manipulation of Koettner's workload is not sufficiently severe, as a matter of law, to satisfy the Ellerth/Faragher formulation of "adverse employment action". See Watts v. Kroger Co., 170 F.3d 505, 511 n. 5 (5th Cir. 1999) ("even if Burlington [ Ellerth] lowers the bar as to what qualifies as an adverse employment action, [a change in work schedule and increased workload] cannot satisfy the definition"). Neither is Northrop Grumman's alleged decision to deny Koettner training. See Roberson v. Alltel Information Services, 373 F.3d 647, 655 (5th Cir. 2004). Therefore, the alleged pre-termination conduct does not provide Koettner an independent claim for relief under the ADEA. See id. Evidence of the alleged conduct is probative, if at all, with respect to Koettner's termination claim, and his burden of showing Northrop Grumman's termination of him was pretextual. See id. Accordingly, Defendant's Motion to Dismiss is GRANTED with respect to Koettner's discriminatory treatment claim.

See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

II. Retaliation

Koettner alleges he was terminated in retaliation for reporting his managers' alleged age discrimination in 2000 and 2002. Once again, the McDonnell Douglas analysis applies to Koettner's claims. Koettner must establish a prima facie case of retaliation by showing: (1) he engaged in activity protected by the ADEA; (2) an adverse employment action occurred; and (3) there was a causal connection between his participation in the protected activity and the adverse employment action. Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992).

The Court finds that Koettner has made out a prima facie case that he was terminated in retaliation for reporting Defendant's alleged discriminatory conduct. Viewing the evidence in the light most favorable to Koettner, the oral complaints of age discrimination that Koettner lodged with the HR Department in 2000 and 2002 constitute protected activity under the ADEA. See Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 267 (5th Cir. 1994). Furthermore, Koettner has adduced sufficient proof of causation, with evidence that: (1) the HR Representative communicated his June, 2002 complaints to Sill, despite his request that she not do so; (2) Sill was listed on Defendant's Rank Order Analysis documents as one of two managers responsible for ranking the termination candidates; and (3) his termination occurred one year after his report of discrimination. See Fierros v. Texas Dept. of Health, 274 F.3d 187, 191 (5th Cir. 2001) (circumstantial evidence is sufficient to satisfy the low threshold of proof required in a plaintiff's prima facie case of retaliation); Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir. 1993) (a ten month period between protected activity and the alleged retaliation was assumed to be sufficient, without more, to make out a prima facie case of retaliation).

Koettner has not made out a prima facie case of retaliation with respect to Defendant's conduct before his termination, because the alleged manipulation of his assignments and denial of training opportunities are not adverse employment actions. See Roberson, 373 F.3d at 655.

The report of sexual harassment in 1992 is not protected activity under the ADEA. Although it would be protected activity under Title VII, Koettner has not asserted a Title VII retaliation claim. Accordingly, the Court limits its inquiry to Koettner's complaints of age discrimination.

In response, Defendant reiterates its assertion that Koettner was terminated for legitimate, non-retaliatory reasons. However, Defendant again relies exclusively its Rank Order Analysis documents, and does not produce any evidence regarding the weight it assigned to the "ranking criteria", or its reasons for ranking Koettner below the four other candidates for termination. For the reasons described above, Defendant's explanation for its termination of Koettner is insufficient to satisfy its burden under McDonnell Douglas. See Patrick, 394 F.3d at 316. Thus, Defendant's Motion for Summary Judgment is DENIED with respect to Koettner's retaliation claim.


For the aforementioned reasons, the Court GRANTS Defendant's Motion for Summary Judgment with respect to Plaintiff's discriminatory treatment claim, and DENIES Defendant's Motion for Summary Judgment with respect to Plaintiff's unlawful termination and retaliation claims.