Opinion
Civil Action No: 99-1361.
December 18, 2000
MEMORANDUM AND ORDER
Background
Plaintiff, Earnest Loftice, was employed by Mobil for twenty-seven years when he, together with approximately 300 other employees, was terminated in a reduction in force in January, 1999. At the time of his termination he was fifty-three years old. Plaintiff contends that his age was a motivating factor in his discharge, in violation of the Age Discrimination in Employment Act ("ADEA") 29 U.S.C. § 621, et seq. Mobil claims that plaintiff's inclusion in the workforce reduction was based on objective job performance criteria, not age discrimination.
Plaintiff also alleged in his complaint that he was discharged in retaliation for testifying on behalf of a co-employee in a National Labor Relations Board (NLRB) hearing. I dismissed the state and federal claims based on these allegations by minute entry entered September 22, 1999.
Almost all of the facts, even many immaterial to a resolution of the legal issues, are in sharp dispute, as evidenced by plaintiff's extensive response to the defendant's statement of contested facts. However, plaintiff's assertions must be taken as true for the limited purpose of this motion for summary judgment. See Thornbrough v. Columbus and Greenville Railroad Company, 760 F.2d 633 (5th Cir. 1985). Accordingly, the following background summary is drawn from the facts acknowledged by both parties or attested to by the plaintiff.
Affidavit of Earnest Loftice dated May 14, 2000, attached as Exhibit 6 to his opposition to defendant's motion for summary judgment; Plaintiffs Statement of Contested Facts in Opposition to Motion for Summary Judgment filed in opposition to Defendant's Statement of Uncontested Facts in Support of Motion for Summary Judgment.
Loftice held various positions with Mobil during the twenty-seven years of his employment. During at least the latter part of the 1970s, he worked as an Automated Systems Technician ("AST"). Immediately prior to his promotion to Foreman in approximately 1980, plaintiff held the position of AST IV, the highest rank an AST could acquire at that time. He was eventually promoted from Foreman to Sr. Production Supervisor/Foreman, with a salary grade of 15, which was the highest position and highest salary grade he held at Mobil.
In 1993, after thirteen years as a foreman, plaintiff claims that he volunteered for a job as AST III, At a salary grade of 13. His January 1, 1994 Annual Performance and Development Summary reflects that he left his position of Senior Production Foreman to take the AST position "to relearn and increase process technical knowledge and skills." His performance as a Senior Production Foreman was assessed as "Fully Productive" in that appraisal.
Plaintiff's Exhibit 40.
From November, 1993, until his termination in January, 1999, plaintiff worked as an AST III on offshore platforms in the state and federal waters of Mobil's Mobile Bay business unit. This business unit included both the Mobile Bay and Gulf of Mexico operating regions. Mobil operated a plant in Coden, Alabama that removed sulphur from hydrogen sulfide gas that was produced in the Mobile Bay operating region and transported by pipeline from the platforms.
Plaintiff has not provided the court with a description of his duties as AST III in Mobile Bay. According to the affidavit of Leaman Romig, who was plaintiff's supervisor during the last several months of his employment with Mobil and is currently employed by Mobil as a Project Supervisor, the duties of an AST working offshore in Mobile Bay include, among other things, computer and technical work, testing and inspection of equipment, audits of inspection files, and monitoring of the platform. Plaintiff, who worked as "Project AST" for the MO 823 platform during part of 1997 through 1998, had additional duties. Leaman Romig provides the following description of a Project AST:
Defendant's Exhibit "A."
Id. at paragraph 7.
. . . the interface between the project team and the operations personnel on the platform to assure miscommunications and late design changes do not occur; relays operations expertise to the project team so that operational efficiencies are implemented in the final design; meets regularly and frequently with operations personnel on the production platform to relay Process Flow Diagrams, piping and Instrumentation Drawings, and facility layouts; trains offshore personnel prior to the start-up of the new equipment, responsible for assuring that 100% of the loop tests are performed, and takes the lead role in directing actual start-up activities on the platform.
Id. at paragraph 8.
Plaintiff has not suggested to the court that he disagrees with Leaman Romig's description of the job duties of an AST and Project AST.
One of the special projects on platform 823 during late 1997 and 1998 was the installation of a new well, Well A5, and a new Solar compressor. Well A5 was "started up" in May, 1998, while plaintiff was Project AST. The quality of his performance as Project AST in connection with the start-up of Well A5 is a disputed issue in this case.
In the summer of 1998, Mobil entered into a contract with Baker Oil Company, pursuant to which Mobil out-sourced to Baker the operation of certain production platforms in the Gulf of Mexico in the area known as Main Pass. Then, in a transaction effective in August, 1998, Mobil exchanged many of its offshore platforms in the Gulf of Mexico for platforms in California owned by ARCO/Vastar ("Vastar"). Plaintiff contends that neither of these transactions resulted in a "loss of assets" to Mobil, and Mobil never offered to the Gulf of Mexico employees jobs on the California platforms acquired in the exchange. Nevertheless, the effect of these transactions was a significant reduction in the size of the workforce needed to service Mobil's remaining platforms in the Gulf of Mexico.
Plaintiff contends that Mobil used the 1998 transactions with Baker Oil and Vastar as an opportunity "to eliminate large numbers of older, high seniority employees with no loss of assets while retaining younger less qualified employees." He claims that a higher percentage of employees within the protected age class were adversely affected by the reduction in workforce than were employees outside of the class. He admits, however, that no one ever told him he was too old for the job, made derogatory comments about age, or joked about age in connection with job performance at Mobil. Discussion
Plaintiffs Statement of Contested Facts, paragraph 16.
Id. at paragraph 70.
1. The ADEA and Evidentiary Burden
The Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621, et seq, was enacted in response to Congress' concern that "older workers were being deprived of employment on the basis of inaccurate and stigmatizing stereotypes." Hazen Paper Company, et al, v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 1706, 123 L.Ed.2d 338 (1993). The ADEA prohibits an employer from discharging an older worker because the employer believes that productivity and competence decline with old age. It is the very essence of age discrimination when an employer relies on age "as a proxy for an employee's remaining characteristics, such as productivity. . . ." Id. at 507 U.S. 611, 113 S.Ct. 1706. The employer must instead focus directly on the employee's specific characteristics. Id.
In age discrimination cases, as in any disparate treatment case, the inquiry must be whether the employer intentionally discriminated against the plaintiff. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983);Thornbrough v. Columbus and Greenville Railroad, 760 F.2d 633 (5th Cir. 1985). Special rules of proof have evolved in employment discrimination cases in order to ". . .sharpen the inquiry into the elusive factual question of intentional discrimination." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255 n. 8, 101 S.Ct. 1089, 1094 n. 8, 67 L.Ed.2d 207 (1981). The plaintiff must first establish a prima facie case of intentional discrimination, which creates a rebuttable presumption. This requires only a minimal showing. In a typical case an employee can meet this initial burden by showing he was within the protected class, that he was qualified for the job in question, and that someone outside of the protected class was treated more favorably, such as by being hired for a job from which the plaintiff was discharged, or being promoted to a position for which the plaintiff had applied. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
However, in age discrimination cases, unlike cases involving race or gender, it is not necessary that the person treated more favorably be outside the protected class; it is only necessary that he be younger. See Uffelman v. Lone Star Steel Co., 863 F.2d 404 (5th Cir. 1989); McCorstin v. United States Steel Corp., 621 F.2d 749 (5th Cir. 1980).
However, the elements of a prima facie case may vary depending upon the facts of a particular case. The Fifth Circuit has modified the McDonnell Douglas test in cases arising out of general reductions in an employer's workforce. In a reduction-in-force case, the plaintiff, in order to establish a prima facie case and create a presumption of intentional discrimination, must (1) show that he is a member of the protected class and that he has been discharged, demoted, or otherwise adversely affected by the employer's decision; (2) show that he was qualified to assume another position at the time of the adverse employment action; and (3) produce "evidence, circumstantial or direct, from which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue." Williams v. General Motors Corp., 656 F.2d 120, 129 (5th Cir. 1981), cert. den'd, 455 U.S. 943, 102 S.Ct. 1439, 71 L.Ed.2d 655 (1982).
Once the employee has established his prima facie case, the defendant can rebut the presumption of intentional discrimination by offering "some legitimate, nondiscriminatory reason" for his action. Texas Department of Community Affairs v. Burdine, supra, 450 U.S. at 253-54, 101 S.Ct. at 1093-94. The defendant's burden at this stage has been called a "burden of production," not a "burden of persuasion." Id. at U.S. 253-56, S.Ct. 1093-95. The employer is only required to articulate a legitimate, nondiscriminatory decision in order to rebut the initial presumption created by the plaintiff's prima facie case.
If the employer is successful in articulating a legitimate reason for the employment action at issue, the burden shifts back to the plaintiff to prove, at "a new level of specificity," that the employer's articulated reasons are only pretexts. Burdine, 450 U.S. at 255, 101 S.Ct. at 1095.
In Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), the Supreme Court granted certiorari in a Fifth Circuit age discrimination case to:
. . . resolve a conflict among the Courts of Appeal as to whether a plaintiff's prima facie case of discrimination (as defined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)), combined with sufficient evidence for a reasonable factfinder to reject the employer's nondiscriminatory explanation for its decision, is adequate to sustain a finding of liability for intentional discrimination. Id. at 2104.
The Supreme Court reviewed its earlier cases applying the McDonnell Douglas framework with its various presumptions and burdens, and found that once the employer has met his initial burden of production, the plaintiff must submit evidence to attempt to establish intentional discrimination "by showing that the employer's proffered explanation is unworthy of credence." Id., at 2105, citing Burdine, supra, at 256, 101 S.Ct. 1089. The court noted that proof that an employer's explanation is not credible is a form of circumstantial evidence that may or may not be determinative of intentional discrimination. Nevertheless, the Supreme Court held that although the factfinder's rejection of the employer's reason for its action does not compel judgment for the plaintiff, "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." Reeves, at 2108. Because the court interpreted the Fifth Circuit ruling to proceed "from the premise that a plaintiff must always introduce additional, independent evidence of discrimination," Id. at 2109, the Supreme Court reversed the Fifth Circuit decision that the evidence was insufficient to sustain the jury's verdict in favor of the plaintiff.
In summary, then, the applicable evidentiary standard in this reduction-in-force case requires 1) that plaintiff establish the elements of a prima facie case under Williams 2) that defendant be provided with the opportunity to rebut the presumption of intentional discrimination arising from the plaintiff's prima facie case by articulating a nondiscriminatory reason for its decision; and 3) that plaintiff be offered the opportunity to establish by the preponderance of the evidence that the defendant's articulated reason is a pretext. Under Reeves, the plaintiff's prima facie case and evidence of pretext may be adequate, without more, for the trier of fact to conclude that the employer intended to discriminate against the plaintiff on the basis of his age.
2. Summary Judgment
Before me is Mobil's motion for summary judgment. Under Fed.R.Civ.P. 56(c), summary judgment may be granted only if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law."
The Fifth Circuit has found that summary judgment is generally "an inappropriate tool for resolving claims of employment discrimination, which involve nebulous questions of motivation and intent." Thornbrough, supra, at 640. There is rarely direct evidence of motivation and intent:
. . . [D]eterminations regarding motivation and intent depend on complicated inferences from the evidence and are therefore peculiarly within the province of the factfinder. In reviewing a case on appeal, it is difficult to determine what evidence might legitimately sway the factfinder and hence be material. Thus, if any facts are in dispute, summary judgment is generally inappropriate. Id.
The Fifth Circuit has, on occasion, upheld summary judgment in ADEA cases. See, e.g., Amburgey v. Corhart Refractories Corp., 936 F.2d 805 (5th Cir. 1991); Simmons v. McGuffey Nursing Home, Inc., 619 F.2d 369 (5th Cir. 1980).
Of course, it is not any disputed fact which will preclude summary judgment. A conflict must exist in "substantial evidence":
Substantial evidence is defined as "evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions." [quoting Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969).] Consequently, "[a] mere scintilla of evidence is insufficient to present a question for the jury." Id. Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (5th Cir. 1996).
The challenge, as described by the Fifth Circuit in Thornbrough, is that there is no bright line demarcating where a "genuine issue of fact" degenerates into an "attenuated possibility" that a reasonable jury might infer discrimination. Id. at 645 n. 19.
3. Analysis
Plaintiff has established his prima facie case. The ADEA defines the protected class to include individuals between the ages of forty and seventy. Plaintiff was 53 years old at the time of his discharge. There does not appear to be any dispute that he was qualified to perform the duties of an AST. Younger employees, specifically named by plaintiff and alleged by him to be less qualified than he, were retained in the reduction-in-force. The Fifth Circuit has held this circumstance to be adequate to support a prima facie case in Thornbrough, supra. Retaining younger, allegedly less qualified ASTs "exude that faint aroma of impropriety" adequate to require Mobil to offer reasons for its decision.
Thornbrough, at 760.
In a reduction-in-force case, the question is why the employer chooses to discharge an older rather than a younger employee. Thornbrough, at 644. Defendant claims that all similarly situated employees in the Mobile Bay business unit were assessed and ranked using objective job criteria, and that no one ranked lower than plaintiff was retained. This is adequate to rebut the initial presumption of intentional discrimination arising out of plaintiff's prima facie case. Thus, in order to prevail on his claim of intentional discrimination, the burden shifts back to plaintiff, who must now prove by a preponderance of the evidence that the defendant's reason are pretext.
I find that there exist genuine issues of material fact concerning the reasons given by defendant for plaintiff's low assessment and ranking in the July evaluation that led to plaintiff's inclusion in the reduction-in-force. In doing so, I am mindful that even an incorrect belief that an employee's performance is less adequate than that of other employees can, in some circumstances, constitute a legitimate, non-discriminatory reason. It is not the province of the courts to determine the validity of an employer's good-faith belief concerning the quality of an employee's performance. Little v. Republic Refining Co., Ltd., 924 F.2d 93 (5th Cir. 1991). The ADEA was never meant to be "a vehicle for judicial second-guessing of employment decisions, nor was it intended to transform the courts into personnel managers." Bienkowski v. American Airlines, Inc., 851 F.2d 1503, 1507 (5th Cir. 1988). Nevertheless, without evaluating credibility, which I cannot do on a motion for summary judgment, the affidavits, depositions and documents in the record reflect genuine issues of fact as to whether plaintiff's assessment and ranking reflect a good faith evaluation of his performance and abilities, or a pretext for age discrimination.
As an initial observation, I note that the outsourcing and exchange of platforms affected only the Gulf of Mexico operating area, and not Mobile Bay. Nevertheless, Mobil chose to assess and rank the skills of all the employees of the Mobile Bay business unit, which consisted of both the Gulf of Mexico and Mobile Bay. According to Mobil, its goal was to retain "the highest-skilled employees with the greatest potential," and "the right person for the right job, regardless of whether he or she currently worked in Mobile Bay or the Gulf of Mexico." Plaintiff denies that this was Mobil's goal, and claims that two of the higher rated employees in the Gulf of Mexico, Tipton and Alvarez, were terminated. Although plaintiff attaches a document produced to it by Mobil that does, indeed, reflect that these men received high assessments and were classifed as "surplus," this, without more, is inadequate to allow me to even evaluate whether the document creates a material issue of fact. It is a circumstance, however, and one of many in this case, which arouses the desire for an explanation.
Mobil's Memorandum, page 5.
Mobil Document MOB 00080, attached to plaintiffs opposition as Exhibit 45.
Mobil claims that the ASTs in Mobile Bay and the Gulf of Mexico were evaluated in two main categories: 1) skills/knowledge, and 2) competencies. A copy of the purported form used for the purpose of these evaluations was attached to the depositions of several Mobil managers who participated in the evaluations, but the specific evaluations themselves with calculations, notations, etc. have not been provided by Mobil. Plaintiff disputes Mobil's claims concerning the content and process of the evaluation.
According to the ranking documents produced by Mobil, plaintiff was one of the lowest-ranked of the technicians in both the Gulf of Mexico and Mobile Bay areas. He ranked next-to-last in the Mobile Bay ranking and 33 out of 54 in the combined ranking with the Gulf of Mexico. Mobil claims that the low ranking was the result of 1) his failure to improve his technical skills; and 2) his poor job performance in May, 1998, as Project AST, in connection with the installation of the Well A5 on Platform 823. Mobil further claims that the July assessment and ranking was consistent with plaintiff's February, 1998 assessment, six months earlier.
In February, 1998, Mobil contends it initiated a program to evaluate the ASTs to determine if any of the salary grades should be changed to reflect level of skills and competencies. Mobil alleges that using specific criteria, it assessed each technician at Mobile Bay and then ranked him with his peers. According to Mobil, plaintiff ranked 14 out of 17 of the ASTs evaluated. Accordingly, it was recommended that his salary grade be reduced from level 13 to level 12, although the dollar amount of his salary did not change. Mobil further contends that the February ranking was consistent with plaintiff's own self-evaluation as reflected in his Summary of Annual Results ("SOAR") and Individual Development Plan ("IDP") in which he identified "PLC operations," "PLC programming," and "control system knowledge" as "areas for further development." Charles Bennett, plaintiff's supervisor, testified in his deposition that he had a meeting with plaintiff in April, 1998, at which time he discussed plaintiff's salary grade reduction change, told him it had been reduced because his technical skills were deficient and needed to be improved, and counseled him to improve his technical skills.
Plaintiff vehemently denies that he was ever informed of the reduction in his salary grade, or that he was counseled by Bennett or anyone else that he should improve his technical skills. He further argues that employees are encouraged to state in their self-evaluations the areas they desire to improve and develop, and that Mobil should not be permitted to use his self-evaluation against him as evidence of "weakness." Finally, plaintiff argues that the "alleged" February appraisal reflects a much lower technical score than the score he received in the July, 1998 evaluation, and accordingly Mobil is wrong that his technical skills had not improved by July, 1998. The fact that he apparently volunteered for Project AST, and was allowed to assume that position, also raises questions concerning Mobil's claim concerning plaintiff's alleged technical deficiencies. Mobil's claim might be valid; it might reflect a good-faith error; or it might be a pretext for age discrimination. There is no way to make this determination without evaluating and weighing the credibility of the affidavit and deposition testimony, which I cannot do on a motion for summary judgment.
The second basis given by Mobil to support plaintiff's low appraisal and ranking in July, 1998, has to do with his performance as Project AST in connection with the start-up. of Well AS in May, 1998. Leaman Romig, then Technical Supervisor for Mobile Bay, supervised plaintiff from, at the earliest, late May, 1998, until his termination. In his affidavit, he states that Gene Williford and Tommy Tran, two senior technicians on the well, complained that plaintiff had not completed the required loop tests, and that he was not available on the platform at critical times, causing extra work for others. Romig alleges he discussed these complaints with Bennett and Herring, who said they had also received similar complaints. Despite these complaints, it was decided that plaintiff would be kept on the project. Romig claims that he requested that Steve Morse counsel plaintiff. These factors were allegedly serious factors in the July, 1998 assessment performed by Romig as plaintiff's supervisor. William Bennett and Gene Herring confirmed in affidavits their receipt of similar complaints from Gene Williford and Tommy Tran.
Plaintiff, however, claims that complaints from Tommy Tran are unreliable because he was a frequent complainer, and management knew this. Tommy Tran himself did not submit an affidavit. However, plaintiff has submitted an affidavit from Gene Williford, now retired from Mobil. Mr. Williford states in his affidavit that he had worked on projects with Tommy Tran, who "can be abrasive and at times, ill-tempered. Working with him can be difficult." Finally, although Mr. Williford does not specifically deny making complaints concerning plaintiff, he attests to plaintiff's competency and commitment, states that telephone numbers were available at all times on the platform to reach plaintiff if necessary, and suggested any "confusions" or problems that arose may have been the result of management's failure to give him "clear and concise" expectations. Resolving the apparent discrepancy between Mr. Williford's affidavit and other Mobil employees' affidavits, once again, would require me to impermissibly engage in assessing credibility.
Plaintiff's Exhibit 7.
Affidavit of James E. Williford, paragraph 11.
I further note that although Mr. Romig states in his affidavit that he requested that Steve Morse counsel plaintiff concerning the start-up of the well, Steve Morse was arguably not a supervisor of plaintiff, and the only "counseling" that occurred was apparently an e-mail sent to the plaintiff. The substance and the tone of the e-mail do not necessarily, suggest concerns of the magnitude expressed by Leaman Romig in his affidavit, and once again I find myself in the position of being asked to weigh credibility without the benefit of live testimony.
Although I find that there exist genuine issues of material fact which preclude summary judgment, the likelihood of plaintiff's ultimate success on a trial on the merits appears to hang by a slender reed. I note that plaintiff himself appears unconvinced that age was a factor in his discharge. When asked in his deposition whether he believed that the approval of his layoff by Timothy Cutt, then Regional Manager in Mobile Bay, and by John Sandlin, then Regional Manager in the Gulf of Mexico, was motivated by his age, he said, "I'm not sure." In contrast, he testified that he believed that both Cutt and Sandlin approved his layoff because he had testified on behalf of a co-employee, Paul Cailleteau, in an NLRB hearing in 1995 or 1996. Nevertheless, plaintiff's subjective belief concerning the motivation of his employer's decision has little value. See e.g., Little v. Republic Refining Co., 924 F.2d at 96.
Deposition of Earnest Loftice, p. 117-119.
Id.
I also acknowledge that, as in Thornbrough, a reduction-in-force case in which the Fifth Circuit reversed the district court's granting of summary judgment in favor of the employer, plaintiff admits that his employer never made any comments or jokes concerning age, nor indicated that age was a factor in his discharge.
Finally, I do not consider at this time the relevance or admissibility of plaintiff's offering of purported statistical evidence, apparently calculated without the assistance of an expert. In Thornbrough, the statistical evidence offered indicated that the reduction-in-force actually resulted in a small increase in the age of its employees. The statistical evidence did not prevent the reversal of the district court's summary judgment. There, as here, summary judgment was inappropriate because evaluating the employer's reason for its decision required an assessment of credibility. The court reasoned:
[I]f the factfinder determines that Thornbrough was clearly better qualified than the employees who were retained, it is entitled to conclude that the [employer's] . . . articulated reasons are pretexts. Everyone can make a mistake — but if the mistake is large enough, we may begin to wonder whether it was a mistake at all. Id., at 647.
I agree.
Accordingly,
IT IS ORDERED, that the defendant's motion for summary judgment is DENIED.