Opinion
Civ. No. 03-1127 (JNE/JSM).
July 7, 2004
Steve Heikens, Esq., Heikens Law Office, appeared for Plaintiffs Carole Pelletier and Bernard Wicklund.
Frank Kollman, Esq., Kollman Saucier, P.A., Baltimore, Maryland, appeared for Defendant ThyssenKrupp Elevator Corporation.
ORDER
Carole Pelletier and Bernard Wicklund (collectively, Plaintiffs) brought independent actions against their former employer, ThyssenKrupp Elevator Corporation (TKE), alleging that TKE discriminated against them based on age in violation of federal and state laws. The cases were consolidated and are before the Court on TKE's motions for summary judgment. For the reasons set forth below, the Court grants the motions.
This case is captioned with Plaintiff's last name spelled "Wiklund." In his deposition, Plaintiff spelled his last name as "Wicklund." The Court therefore employs the "Wicklund" spelling.
Also before the Court is Plaintiffs' motion to strike three affidavits submitted in support of TKE's motions. The Court denies the motion.
I. BACKGROUND
TKE is a nationwide company that sells and services elevators. Prior to 2000, TKE's Minnesota branch used a different accounting system from the system used by other branches. To create uniformity among the branches, TKE began a conversion of the Minnesota branch's accounting system in 2001. TKE completed the conversion in 2002. As a result of the conversion and an economic downturn in the construction business, the Minnesota branch reduced its workforce in March 2002.
TKE and its antecessors employed Wicklund for 43 years. Wicklund began his employment as a draftsman and then was promoted to engineer. In the mid-1990s, Wicklund's services as an engineer were no longer needed, and he was transferred to a position as a purchasing manager and permit administrator. During the March reduction in force, TKE eliminated Wicklund's job and terminated him on March 8, 2002. At the time, Wicklund was 63. Dick Kern, age 60, and Ed Lehtinen, age 55, absorbed Wicklund's duties.
In response to the accounting conversion, Colleen Stack, supervisor for the Accounting department, eliminated two positions. Accordingly, Stack decided what job duties could be consolidated and what positions should be terminated within her group of employees. On March 8, 2002, as a result of Stack's decision, TKE terminated Pelletier, age 60. Pelletier had been with TKE for nine years as a receptionist in the accounting department. TKE consolidated Pelletier's position with that of Crystal Keaton, an accounting/payroll employee, and retained Keaton. Stack also eliminated an accounting position held by Sue Tronnes, age 38. Tronnes was also terminated on March 8, 2002.
II. DISCUSSION
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party "bears the initial responsibility of informing the district court of the basis for its motion," and must identify "those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party satisfies its burden, Rule 56(e) requires the nonmoving party to respond by submitting evidentiary materials that designate "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In determining whether summary judgment is appropriate, a court must look at the record and any inferences to be drawn from it in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
A. Bernard Wicklund
Wicklund asserts claims of age discrimination in termination and failure to hire in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a)(1) (2000). TKE contends that Wicklund's claims are barred under the doctrine of res judicata because Wicklund has already litigated these discrimination claims in state court. On February 23, 2004, the Honorable Pamela G. Alexander, Judge of Hennepin County District Court, granted summary judgment in favor of TKE as to Wicklund's claims of age discrimination in termination and failure to hire under the Minnesota Human Rights Act (MHRA), Minn. Stat. § 363A.08 (Supp. 2003). Wiklund v. ThyssenKrupp Corp., File No. EM 03-002814 (Minn. Dist. Ct. Feb. 23, 2004).
"Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action." Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5 (1979). Res judicata is designed to prevent the relitigation of causes of action already determined in a prior action and "reflects courts' disfavor with multiple lawsuits for the same cause of action and wasteful litigation." Wilson v. Comm'r of Revenue, 619 N.W.2d 194, 198 (Minn. 2000). The application of res judicata is an issue of law. State v. Joseph, 636 N.W.2d 322, 327 (Minn. 2001). Res judicata bars a subsequent claim when: "(1) the earlier claim involved the same claim for relief; (2) the earlier claim involved the same parties or their privies; (3) there was a final judgment on the merits; and (4) the estopped party had a full and fair opportunity to litigate the matter." Id. (footnote omitted).
In state court Wicklund asserted claims of age discrimination and failure to hire under the MHRA, as well as other state law claims. Here, Wicklund asserts age discrimination and failure to hire under the ADEA. These claims are based on the same facts, same parties, and same legal issues as the state claims. Furthermore, the state court entered final judgment on the merits, and Wicklund had a full and fair opportunity to litigate the matter. Wicklund's failure to join his ADEA claims to his state court MHRA does not defeat the preclusive effect of res judicata. See Wilson, 619 N.W.2d at 198 ("[R]es judicata bars not only claims as to matters actually litigated, but also as to every matter that might have been litigated in the prior proceeding."). The Court therefore concludes that Wicklund's ADEA claims are barred on the basis of res judicata. Accordingly, the Court grants TKE's motion for summary judgment as to Wicklund's claims.
B. Carole Pelletier
Pelletier asserts claims of age discrimination in termination under the ADEA and the MHRA and age discrimination in failure to hire under the ADEA. Both statutes make it unlawful for an employer to discharge or otherwise discriminate against an individual with regard to compensation and other terms and conditions of employment on the basis of age. See 29 U.S.C. § 623(a)(1); Minn. Stat. § 363A.08. A plaintiff may demonstrate age discrimination by either direct or indirect evidence. Fast v. S. Union Co., 149 F.3d 885, 890 (8th Cir. 1998). When a plaintiff puts forth direct evidence that age was used in the employer's decision to terminate the plaintiff, the burden-shifting standards of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), apply to an ADEA claim. Fast, 149 F.3d at 890. When a plaintiff is unable to put forth direct evidence of age discrimination, the burden-shifting standards set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), apply to a claim under the ADEA or MHRA. Fast, 149 F.3d at 890.
1. Price Waterhouse analysis
In this case, Pelletier asserts that she is entitled to a Price Waterhouse analysis because she has direct evidence of TKE's discrimination. 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" so that a reasonable fact-finder could infer that "the attitude was more likely than not a motivating factor in the employer's decision." Gagnon v. Sprint Corp., 284 F.3d 839, 848 (8th Cir. 2002). Stray remarks in the workplace, statements by non-decisionmakers, or statements by decisionmakers unrelated to the decisional process itself are not direct evidence. Id.
Pelletier asserts that Colleen Stack, Pelletier's friend and supervisor, asked when or whether Pelletier planned to retire, and that these comments are direct evidence of TKE's discriminatory attitude. Although Stack denies making the statements, the Court assumes that the statements were made for the purposes of this motion. See Fed.R.Civ.P. 56. According to Pelletier, these questions came around the time of a co-worker's retirement party. Pelletier contends that Stack asked her again during a lunchroom conversation, but Pelletier is unsure of when that discussion occurred. Pelletier acknowledges that these statements are not "automatically direct evidence." Nevertheless, she asserts that it is a "close call." Given the timing and vague nature of the statements, the Court concludes that the alleged statement are more accurately described as stray statements. Moreover, they do not "directly reflect" any alleged discriminatory attitude attributable to Stack. Instead, in order for such statements to show discriminatory intent, a series of inferences would need to be drawn before a discriminatory intent could be inferred. See Cronquist v. City of Minneapolis, 237 F.3d 920, 925-26 (8th Cir. 2001) (noting that "simply because a discriminatory reason might be inferred . . . does not mean that a mixed motive case exists"). Because Pelletier has failed to present any direct evidence of TKE's discrimination on the basis of age, the Court will analyze her ADEA and MHRA claims under McDonnell Douglas. Chambers v. Metro. Prop. Cas. Ins. Co., 351 F.3d 848, 855 (8th Cir. 2003); see Erickson v. Farmland Indus., Inc., 271 F.3d 718, 724 n. 2 (8th Cir. 2001) (noting that the Minnesota Supreme Court has rejected the application of a mixed-motive analysis to MHRA claims); Anderson v. Hunter, Keither, Marshall Co., 417 N.W.2d 619, 626-27 (Minn. 1988).
2. McDonnell Douglas analysis
Under McDonnell Douglas, Pelletier must establish a prima facie case of discrimination, at which point TKE must come forward with a legitimate nondiscriminatory reason for its conduct. Chambers, 351 F.3d at 855. In response, Pelletier must then demonstrate that the nondiscriminatory reason offered by TKE was really a pretext for discrimination. Id. Pelletier asserts two age-discrimination claims: first, age bias in termination in violation of the ADEA and the MHRA; and second, failure to hire in violation of the ADEA.
a. Age bias in termination
Pelletier alleges that TKE discriminated against her on the basis of age when it terminated her. Because Pelletier's termination resulted from a consolidation of jobs, the Court analyzes her claim as a reduction-in-force (RIF) case. See Fast, 149 F.3d at 890. To establish a prima facie case of age discrimination resulting from a RIF, Pelletier must show that: (1) she is 40 years or older; (2) she was qualified for the job; (3) she was discharged; and (4) age was a factor in TKE's decision to terminate her. Id. The parties disagree over whether Pelletier has established the second and fourth elements.
Looking to the second element, TKE asserts that Pelletier was not qualified for the newly created position because she lacked necessary computer skills. In support, TKE puts forth evidence that Pelletier, even with additional training and monthly help, never achieved a working ability with computer spreadsheet programs and that the consolidated position required someone with advanced computer skills. However, this element of the prima facie case addresses whether Pelletier was qualified for the position she held at termination, not the job resulting from the RIF. Dietrich v. Canadian Pac. Ltd., 536 N.W.2d 319, 325 (Minn. 1995) (describing the second element as whether plaintiff "was qualified for the position later abolished"). Stack testified that Pelletier was well suited to many of her receptionist duties — namely answering the phone and light typing. Accordingly, a reasonable fact-finder could conclude that Pelletier was qualified for the position of receptionist at the time of her termination.
With regard to the fourth element of the prima facie case, the Eighth Circuit recently explained:
Replacement by a younger person is ordinarily sufficient circumstantial evidence to demonstrate that age was a factor in the termination decision, but not in a reduction in workforce case where those duties either have been eliminated or must be redistributed within the employer's remaining work force. Instead, to meet the prima facie burden in the reduction in force context, the plaintiff must come forward with some additional evidence that age played a role in his termination. A plaintiff may meet the last requirement by presenting either statistical evidence (such as a pattern of forced early retirement or failure to promote older employees) or circumstantial evidence (such as comments and practices that suggest a preference for younger employees).Chambers, 351 F.3d. at 855-56 (citations omitted). To establish the fourth element, Pelletier relies on the percentage of older employees terminated, the combination of Stack's comments to Pelletier and similar comments made to Wicklund by Peter Nelson, and the fact a younger employee assumed Pelletier's job duties.
Turning first to Pelletier's statistical evidence, she asserts that 2 out of 3 employees over the age of 59 were terminated as part of the overall RIF as compared to only 1 employee under the age of 40. These statistics fail to account for protected employees between the ages of 40 and 59. Within the accounting department, Stack needed to reduce her group by two positions, and she chose Pelletier, age 60, and Tronnes, age 38. The employees remaining under Stack's supervision were Jim Barango, age 56, Michael Posch, age 46, Desirae Bellawood, age 41, Crystal Keaton, age 31, and Kathleen Murphy (part-time), age 21. Before Pelletier's and Tronnes' terminations, 4 out of 7 employees in the accounting department were over 40 years old. After the terminations, 3 out of 5 employees exceeded 40 years old. On this record, no inference of age discrimination exists. See Holley v. Sanyo Mfg., Inc., 771 F.2d 1161, 1167 (8th Cir. 1985).
Next, Pelletier asserts that Stack's comments, coupled with similar comments made by Nelson to Wicklund, demonstrate that age was a factor in her termination. According to Wicklund, Nelson made three or four inquiries regarding his potential for retirement. Wicklund testified that one of these instances was in response to a rumor that Wicklund was going to leave the company and two comments may have occurred during performance reviews. Like Pelletier, Wicklund is unable to identify a timeframe for the comments, other than that they occurred within the past few years. The Eighth Circuit has held that mere inquiries into employees' retirement plans do not, by themselves, give rise to an inference of discrimination. Montgomery v. John Deere Co., 169 F.3d 556, 560 (8th Cir. 1999).
Finally, Pelletier claims that the fact that a younger employee replaced her is evidence of discrimination. The age differential between Pelletier and Keaton is insufficient additional evidence to establish a prima facie case where, as is the case here, jobs are consolidated pursuant to a RIF. See Holley, 771 F.2d at 1167. In short, Pelletier has not established that age was a factor in TKE's decision to terminate her. Viewing the evidence in the light most favorable to Pelletier, the Court concludes that there is no genuine issue of material fact that Pelletier's evidence does not satisfy the fourth element of her prima facie case.
Even if Pelletier had successfully met her prima facie case, TKE presents legitimate, nondiscriminatory reasons for selecting Pelletier for termination — namely that Pelletier was unfamiliar with the accounting program and that her computer skills did not meet the needs of the combined position. Moreover, Pelletier cannot show that TKE's nondiscriminatory reason for terminating Pelletier was pretextual. To demonstrate pretext, Pelletier relies on Stack's comments. Again, Stack's comments were legitimate inquiries on behalf of TKE, see Montgomery, 169 F.3d at 560, and were too remote in time and context to be evidence of pretext. See EEOC v. McDonnell Douglas Corp., 191 F.3d 948, 953 (8th Cir. 1999) (holding that a remark by a decisionmaker made two years before termination was too remote in time to support a finding of pretext). Accordingly, Pelletier cannot show that TKE's proffered reasons were pretextual. The Court therefore grants TKE's motion for summary judgment insofar as it relates to Pelletier's age bias in termination claims.
b. Failure to hire
To establish a prima face case for failure to hire under McDonnell Douglas, Pelletier must demonstrate: (1) that she is over 40; (2) that she applied and was qualified for the position for which TKE was seeking applicants; (3) that she was rejected; and (4) that the TKE hired a younger person. Chambers, 351 F.3d at 856; see Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 142 (2000). Here, Pelletier cannot establish a prima facie case. In particular, Pelletier testified that she never applied for any available positions at TKE after her termination. Accordingly, no reasonable fact-finder could conclude that TKE failed to hire Pelletier based on age. Therefore, the Court grants TKE's motion for summary judgment on Pelletier's failure to hire claim.
III. CONCLUSION
Based on the files, records, and proceedings herein, and for the reasons stated above, IT IS ORDERED THAT:
1. TKE's motions for summary judgment [Docket Nos. 18 and 26] are GRANTED.
2. The case is DISMISSED.
LET JUDGMENT BE ENTERED ACCORDINGLY.