Opinion
No. C97-188 MJM
August 23, 1999
ORDER Introduction
This matter involves a claim of age discrimination under the Age Discrimination and Employment Act of 1967, 29 U.S.C. § 621-34 ("ADEA"), and the Iowa Civil Rights Act of 1965, Iowa Code chapter 216 ("ICRA"). The plaintiff, Jack Dingle, was hired as a machine operator for the defendant, Bennett Machine Fabrication, Inc. ("Bennett"), on October 4, 1996, when he was 54 years old. Less than three months later, on December 28, 1996, Bennett terminated Dingle. Bennett now moves for summary judgment on the basis that it terminated Dingle during his probationary period because he failed to read a "bore gauge" properly. (Doc. #19.) Dingle responds that he was able to read the bore gauge, that the bore gauge explanation for his termination is a pretext for age discrimination, and that the record contains direct evidence of age animus by the Bennett's personnel manager, Dale Wiese. (Doc. #28.) Because the matter is fully briefed, and no cause has been shown, see Local Rule 7.1(c), Dingle's request for oral argument on the motion for summary judgment is denied.
A bore gauge is "one of the hand measuring tools designed to gauge the size of a bore in a casting finished by Bennett." (Wiese Aff. ¶ 4.)
Bennett moves to strike two statements on which Dingle relies which, Bennett argues, are inadmissible hearsay. (Doc. #35.) This motion is addressed after the factual background below.
Summary Judgment Standard
Summary judgment is only appropriate when the record, viewed in the light most favorable to the non-moving party, shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Doerhoff v. McDonnell Douglas Corp., 171 F.3d 1177, 1179 (8th Cir. 1999); Montgomery v. John Deere Co., 169 F.3d 556, 559 (8th Cir. 1999). Accordingly, this court will review the record in the light most favorable to Dingle to determine whether there is any genuine dispute of material fact and whether Bennett is entitled to judgment as a matter of law.
Factual Background
Bennett is a family-owned business in Anamosa, Iowa, which finishes farm implement castings. The personnel manager is Dale Wiese. Bennett's hourly employees are subject to a collective bargaining agreement with Chauffeurs Teamsters and Helpers Local No. 238. The labor agreement provides that one of the primary requirements of a machine operator is the ability to "check parts with hand measuring tools." (Def. Ex. C.) The labor agreement provides for a 90-day probationary period for all newly-hired employees.
Dingle, then 54, submitted a job application to Bennett in September, 1996. (Dingle Dep. 31.) Dingle's son-in-law, Roger Poole, who also worked for Bennett, arranged for Dingle to interview with Wiese the day he applied. (Poole Dep. 31.) At his interview with Wiese, Dingle told Wiese he had no experience on the type of machines used by Bennett, but he was "willing to learn." (Dingle Dep. 29.) Wiese admits that he asked Dingle about his age, even though he does not usually ask applicants about their ages. (Wiese Dep. 55, 60.) Wiese also claims he told Dingle that reading a bore gauge was an essential part of the job, but Dingle claims the bore gauge was never mentioned during the interview. (Wiese Dep. 80; Dingle Dep. 29.) After the interview, Dingle told Poole the interview went fine. (Poole Dep. 31.)
While Dingle was waiting to hear from Wiese, Poole asked Wiese about his interview with Poole. (Poole Dep. 33.) Wiese told Poole the interview "went very good sic." ( Id.) Poole asked Wiese if he was planning to hire him. ( Id.) Wiese responded that "it will be a couple weeks because before they can hire any more people, they need to get their ducks in line." ( Id. at 33-34.) About two weeks later, Poole asked Wiese if there was "a problem" with hiring Dingle. ( Id. at 34.) Wiese said "he was concerned about Jack's age." ( Id.)
Notwithstanding this "concern" which Wiese allegedly had about Dingle's age, Bennett hired him on October 4. Dingle was assigned to the second shift under the supervision of Dave Urmie. Dingle concedes that he initially had difficulty reading the bore gauge. Dingle testified that Urmie showed him how to read the bore gauge "periodically" about ten times, but that Urmie "was short in explaining things." (Dingle Dep. 100-01.) Dingle asked a co-worker, LaMoyne Burmeister, and a quality control supervisor, J.R. Krepfle, to show him how they read the bore gauge. (Dingle Dep. 48, 100.) By the end of the first two weeks, Dingle claims he knew how to read the bore gauge. (Dingle Dep. 51.) Dingle further testified that he asked Krepfle to show him how to use the bore gauge because he considered himself a "perfectionist" and was looking for "different ways that might be easier for me to be able to do it." (Dingle Dep. 102.)
Dingle contends that he was performing his job in a satisfactory manner. Dingle testified, "What surprised me at getting fired was how many times Dave Urmie told me what an excellent job I was doing on the machines." (Dingle Dep. 64.) Chad Anderson, a co-worker who worked near Dingle in the machine room, testified that Urmie told him once or twice that "Jack's doing a good job on this and he needs to do a little bit better job on this and doing a good job on that." (Anderson Dep. 18, 25.) Poole testified that in his opinion, his father-in-law was a good employee based on his level of production, his attendance, and his "willingness to do the best job he can." (Poole Dep. 75-76.)
Anderson testified he had the "impression" that Dingle was performing better than other new employees. (Anderson Dep. 19.) Anderson testified that "every time I saw him he looked like he knew how to use that bore gauge." (Anderson Dep. 27.) Similarly, LaMoyne Burmeister, another co-worker, testified that "it seemed like [Dingle] was doing a good job" and "he got out as much or more than anyone else." (Burmeister Dep. 11-12.) Both Anderson and Burmeister acknowledge, however, that they did not have first-hand knowledge about how much Dingle produced. (Anderson Dep. 19; Burmeister Dep. 12.)
Steve Helmold, another co-worker, testified that Dingle had trouble reading decimals and negative numbers on the bore gauge, but that Dingle was "about average" for employees at Bennett. (Helmold Dep. 17, 22.)
Anderson and Poole both point to the fact that Dingle did not produce many scrap parts as evidence that he knew how to read the bore gauge. Poole testified that, based on his experience, it is not possible to run the machine which Dingle operated for more than a few hours without creating scrap parts unless the operator was using the bore gauge correctly. (Poole Dep. 102.) Anderson testified that "obviously" Dingle did not have any production problems "because parts didn't come back" from Bennett's customers. (Anderson Dep. 27.) In addition, Dingle offers expert testimony from Dale Hirsch, a former John Deere quality supervisor, that Dingle is able to correctly read a bore gauge. (Plf.'s Supp. Ans. to Interrog. No. 4.)
According to Urmie, however, Dingle "just couldn't pick up the bore gauge." (Urmie Dep. 69.) Urmie testified that Dingle used the bore gauge in a manner to get a reading showing the product was the correct size even if the product was not the correct size. (Urmie Dep. 15.) When Urmie reported this to Wiese, Wiese asked him to keep trying to help Dingle. (Urmie Dep. 68.)
On December 27, 1996, the day before Dingle was terminated, he worked a full shift. (Dingle Dep. 38.) Dingle recalls Urmie telling him that he "did an excellent job on the machine." ( Id.) Urmie testified that he met with Wiese that day for about ten minutes to discuss Dingle's performance. (Urmie Dep. 78.) Urmie explained that "I felt that 90 days was long enough to try to learn [how to use the gauge] and that he wasn't picking it up and that I didn't think he would get it." ( Id.) Based on this input, and the fact that Dingle's probationary period was about to end, Wiese decided to terminate Dingle. (Wiese Dep. 77.)
When Dingle reported to work on December 28, Urmie asked him to go to a meeting in the front office. ( Id. at 40.) Urmie and Dingle walked together to the office to see Wiese. ( Id. at 40-41.) Dingle thought he was going to be given his tool box to mark the end of his probation. ( Id. at 41.) Instead, Wiese told him, "[W]ell, I have some bad news, you're not going to make your probation [because] we feel that your production and proactivity [are not] up to our standards." ( Id.) Dingle said he was in "total shock." ( Id.)
Wiese concedes that Dingle was never warned he could be fired because of his inability to read the bore gauge. (Wiese Dep. 80.)
In his civil rights complaint, Dingle said, "I was told I was having trouble reading the bore gauge." (Plf. Ex. C.) In his deposition, he testified that he "put down bore gauge [in his civil rights complaint] because that's the first thing that came to my head. Once my head cleared, I realized what was actually said at that meeting, [a]nd like I said, . . . they fired me because of my production." (Dingle Dep. 134.)
Dingle told Wiese and Urmie that he then raised the issue of the bore gauge by stating that he "knew that in the earlier part of my employment that I had trouble reading the bore gauge, [but] that I had solved all my problems reading the bore gauge." (Dingle Dep. 41.) Dingle also asked for a 45-day extension and the opportunity to improve his performance by wearing glasses. ( Id. at 42.) However, Urmie and Wiese told Dingle that he "had problems" with the bore gauge, that the 45-day extension was not allowed under the labor agreement, and that "they didn't need another employee to baby-sit." ( Id. at 42-43.) According to Urmie, he "argued" with Dingle at the meeting about his ability to read the bore gauge. (Urmie Dep. 82.) In a termination report, Wiese indicated that Dingle had good attendance, was cooperative, and performed "fair" quality of work, but lacked initiative and did not have good job knowledge. (Wiese Dep. 89-90.) Wiese explained that Dingle lacked initiative "to learn some of the equipment he had to run or use." (Wiese Dep. 89.)
Dingle claims that Urmie made several age-related comments while he was working at Dingle. Dingle testified that "Urmie said that he was surprised that I could put out the work that I was putting out more so than the other two shifts being they was a lot younger than I was." (Dingle Dep. 62.) Dingle further testified that when he asked Urmie if he would be allowed to operate the "arms" machine, Urmie replied that "they had plenty of younger people that they could put on that machine." ( Id. at 63.) Dingle further claims that some of his co-workers called him "old man." (Dingle Dep. 63.)
Shortly after Dingle was terminated, Poole spoke to Urmie about the termination. Poole testified that he told Urmie the reason given for Dingle's termination "was bullshit." (Poole Dep. 49.) According to Poole, Urmie "nodded his head up and down as he was agreeing with me," then stated, "I agree with you." ( Id. at 50.) Poole then stated "you know why he was fired, he was fired because of his age." ( Id.) Urmie allegedly said, "[T]hat's what Dale [Wiese] told me. He told me that Jack was getting up in age." ( Id.) When Poole asked Urmie why he did not object to the termination, Urmie said "why should he risk his job for a stranger." ( Id.) Anderson, Dingle's co-worker, also claims he heard Urmie say that Dingle was "getting up there in age and it wouldn't be very long before he was to retirement age." (Anderson Dep. 38-39.) However, Anderson testified he does not know whether Urmie was telling him about a rumor about Dingle's termination or whether Urmie actually knew that age was the reason for his termination. ( Id. at 29, 39.) Urmie "absolutely" denies that Wiese ever said anything to him about Dingle's age. (Urmie Dep. 28-29.)
Dingle has presented evidence which, he claims, shows that other workers were treated favorably compared to him. Poole testified that Shiloh Reiter admitted that he "misread the bore gauge," but was not discharged. (Poole Dep. 108.) Urmie explains that Reiter's situation was different because (1) he knew how to check parts, but simply failed to do so on certain occasions, and (2) he was a non-probationary employee who received a written warning pursuant to the labor agreement. (Urmie Dep. 95-99.) Poole further testified that Kenny Wernimont, who had worked at Bennett for more than two years, did not understand how to read a micrometer and required Poole's assistance on one occasion. (Poole Dep. 109-10.) Poole believes that Wernimont eventually learned how to read a micrometer. ( Id. at 111.) There is no evidence about whether Bennett was aware of Wernimont's inability to read the micrometer or whether Bennett took any disciplinary action against him.
Finally, Dingle has presented evidence that Bennett had only two employees older than Dingle during the time that Dingle worked for Bennett, both of whom were custodial workers, and that Bennett's work force averaged less than forty years of age from 1990 to 1997. Wiese testified that he believes Bennett attracts younger workers because of the high physical demands of the job and the low starting wage rate. (Wiese Dep. 116-17.)
Motion to Strike
As a preliminary matter, the court must determine whether the statements which Poole and Anderson claim that Urmie made to them about Dingle's age being a factor in his termination are admissible for purposes of ruling on the motion for summary judgment. Bennett argues that the statements which Poole and Anderson attribute to Urmie are inadmissible hearsay. Dingle argues that the statements are admissible because they are admissions by a party-opponent under Fed.R.Evid. 801(d)(2)(D). Bennett replies that Urmie was not the decision-maker responsible for Dingle's termination, and therefore, the alleged statements were not made within the scope of his employment, as required by Rule 801(d)(2)(D).
The court concludes, on the basis of the current record, that there is sufficient evidence that Urmie was involved in the decision-making process about Dingle's termination so that the party-admission exception applies. As the Sixth Circuit held in Hill v. Spiegel, Inc., 708 F.2d 233 (6th Cir. 1983), "it is not necessary to show that the [out-of-court] declarant had authority to make the statement[,] [b]ut it is necessary . . . to show . . . that the content of the declarant's statement concerned a matter within the scope of his agency." Id. at 237. In this case, Wiese testified that his decision was based at least in part on Urmie's input. (Wiese Dep. 77.) Urmie met with Wiese for ten minutes on the day before Dingle was terminated. (Urmie Dep. 78.) Urmie was present at the meeting at which Wiese terminated Dingle, and Urmie testified he "argued" with Dingle about whether he knew how to use the bore gauge. (Urmie Dep. 82.) Under these circumstances, Urmie was not the type of uninterested manager whose statements are not party-admissions under Hill v. Spiegel. Accordingly, the court holds that the statements made by Urmie about Wiese's decision-making process are admissible for purposes of ruling on summary judgment.
Bennett, however, makes a further objection to Anderson's testimony about Urmie's alleged statements. Bennett argues that Anderson testified he was uncertain whether Urmie was simply repeating a rumor or stating affirmatively that the reason for Dingle's termination was age. (Anderson Dep. 29, 39.) If Urmie was repeating a rumor, the statement is not only inadmissible hearsay, see Cedeck v. Hamiltonian Fed. Sav. Loan Ass'n, 551 F.2d 1136, 1138 (8th Cir. 1977), but also lacks any probative value. Accordingly, the court will grant Bennett's motion to strike the statements which Urmie allegedly made to Anderson about the reason for Dingle's termination.
Analysis
Bennett concedes for purposes of summary judgment that Dingle could present a prima facie case of age discrimination. Bennett argues, however, that it is entitled to summary judgment because it had a legitimate non-discriminatory reason for terminating Dingle (i.e., his failure to read the bore gauge properly) and because Dingle cannot offer sufficient evidence of intentional age discrimination. Dingle argues he has sufficient direct evidence of age discrimination and sufficient evidence of pretext to withstand summary judgment.
Having carefully reviewed the record, the court concludes there is a genuine issue of fact about whether Bennett terminated Dingle because of his age. The central fact which weighs in favor of this conclusion is that Urmie told Poole only a few days after Dingle was terminated that Wiese said Dingle was fired because "Jack was getting up in age." (Poole Dep. 50.) This is direct evidence of a discriminatory attitude on the part of a decision-maker which is related to the decision-making process. See Walton v. McDonnell Douglas Corp., 167 F.3d 423, 426 (8th Cir. 1999) ("Direct evidence is `evidence of conduct or statements by persons involved in the decision-making process that may be viewed as directly reflecting the alleged discriminatory attitude . . . sufficient to permit the fact finder to infer that that attitude was more likely than not a motivating factor in the employer's decision.'") (quoting Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444, 449 (8th Cir. 1993)). Although the jury is free to discredit Poole's testimony about what Urmie said that Wiese said, it nonetheless creates a genuine fact issue about why Bennett terminated Dingle. As the Eighth Circuit recently reiterated, "a defendant is liable for discrimination upon proof by direct evidence that [the defendant] acted on the basis of a discriminatory motive," even if the defendant had other justifiable reasons to terminate the plaintiff. Breeding v. Arthur J. Gallagher Co., 164 F.3d 1151, 1156 (8th Cir. 1999) (citing Fast v. Southern Union Co., 149 F.3d 885, 889 (8th Cir. 1998)).
As Bennett points out, there are reasons to discredit Poole's testimony, i.e., his lack of a complaint under the labor agreement and his familial relationship with Dingle, but those issues are for the jury, not the court.
Bennett argues, however, that the direct evidence of discrimination is insufficient to overcome the strong presumption that Wiese, the decision-maker who hired Dingle in October, 1996, did not suddenly develop an age-based animus by December, 1996, when Dingle was terminated. See, e.g., Herr v. Airborne Freight Corp., 130 F.3d 359, 362-63 (8th Cir. 1997) ("There is a strong inference that discrimination was not a motivating factor if the same person hired and fired the plaintiff within a relatively short period of time."); Hennesey v. Good Earth Tools, Inc., 126 F.3d 1107, 1109 (8th Cir. 1997) (hiring at age 55 suggests that termination at age 59 was not the product of age discrimination). Although this presumption is strong, as Bennett argues, the court finds that Dingle has sufficiently rebutted the presumption to withstand Bennett's motion for summary judgment. First, he has offered direct evidence that Wiese fired Dingle because of his age. Second, Poole testified that Wiese had pre-hiring "concerns" about Dingle's age. (Poole Dep. 34.) A jury could reasonably infer, based on this testimony, that Wiese had pre-hiring concerns about Dingle's age which he acted on in terminating Dingle before Dingle completed his probationary period. Again, the jury may decide to discredit this testimony, but at this stage of the proceedings, the court is compelled to find a genuine fact issue about the reason for Dingle's termination.
Based on this conclusion, it is not necessary for the court to review Dingle's other arguments against summary judgment. Although the court believes that some of Dingle's evidence does not support his age discrimination claim, the court believes that analysis is better left for pre-trial motions in limine.
ORDER
For the foregoing reasons, the motion for summary judgment by the defendant, Bennett Machine and Fabricating, Inc., (Doc. #19) is DENIED.