Simonsen v. Werner Enterprises, Inc.

Full title: KATHERINE SIMONSEN, f/k/a KATHERINE BLACK, Plaintiff, vs. WERNER…

Court: United States District Court, D. Nebraska

Date published: May 14, 2004

8:02CV421 (D. Neb. May. 14, 2004)

Opinion

8:02CV421

May 14, 2004

MEMORANDUM AND ORDER

JOSEPH BATAILLON, District Judge

Introduction

This matter is before the court on defendant's motion for summary judgment. Filing No. 42. The plaintiff contends that she was terminated from her position with the defendant because of her age. The Age Discrimination in Employment Act, 29 U.S.C. § 621-34 (hereinafter "ADEA") prohibits an employer from discriminating on the basis of a person's age if the individual is over 40 years old. See 29 U.S.C. § 631 (a). The defendant denies such claims and alleges that the plaintiff was discharged as a result of a legitimate reduction in work force. I have carefully reviewed the record, evidence, briefs in support of and in opposition to the motion for summary judgment, and the relevant case law. I conclude that the motion for summary judgment should be granted.

Facts

The defendant hired the plaintiff in 1985 and terminated her in August 2000 from a position in customer service. On August 25, 2000, she was called to the human resources office and told by Brian Neesen, regional manager, that she was being terminated. At that time the plaintiff was 41 years of age. Mike Quick, a management trainee already employed by the defendant as a floater, stepped into the plaintiff's position. The plaintiff was told that there was a reduction in workforce. The company attempted to reduce the number of employees to the number that they had in June of 1999, resulting in the discharge of approximately 70 people. The plaintiff was told that she could apply for other positions within the company. Douglas Pedersen testified that managers were told to cut staff based on performance factors and contributions to the company, and that gender and age were not to be considered. Dep. of Douglas Pedersen, 16:18-20. Mike Neesen, supervisor to the plaintiff, testified that he terminated the plaintiff because of her weak performance. Dep. of Mike Neesen, 17:16-22. In particular, Neesen felt the plaintiff should be more aggressive, willing to change, be able to solicit freight, handle customers and manage the inbound phone volume. Id. at 10:2-10. The performance evaluations reflected such concerns, and there were complaints from customers about the plaintiff. Neesen further testified that at the time of the termination he had no idea that the plaintiff was under or over 40 years of age. Id. at 32:8-10. Additionally, the defendant eliminated other customer service employees located in Denver, Colorado, and in Phoenix, Arizona. Id. at 19:11-20. It appears that at least six of the seventeen customer service positions were eliminated. Id. at 24:15-19.

Standard of Review

Pursuant to the Federal Rules of Civil Procedure, summary judgment is appropriate when, viewing the facts and inferences in the light most favorable to the nonmoving party, "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." See Fed.R.Civ.P. 56(c); McAllister v. Transamerica Occidental Life Ins. Co., 325 F.3d 997, 999 (8th Cir. 2003). When making this determination, the court's function is not to make credibility determinations and weigh evidence, or to attempt to determine the truth of the matter; instead, the court must "determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 255 (1986); See also Johnson v. Crooks, 326 F.3d 995 1007-08 (8th Cir. 2003).

The court must "look to the substantive law to determine whether an element is essential to a case, and `[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.'" Dulany v. Carhahan, 132 F.3d 1234, 1237 (8th Cir. 1998) (quoting Anderson, 477 U.S. at 248). Summary judgment is proper when the plaintiff fails to demonstrate the existence of a factual dispute with regard to each essential element of her claim. Bialas v. Greyhound Lines, Inc., 59 F.3d 759, 762 (8th Cir. 1995). "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and [the rule] should be interpreted in a way that allows it to accomplish this purpose." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

Additionally, Rule 56(e) provides that:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

See Fed.R.Civ.P. 56(e). A party seeking summary judgment bears the responsibility of informing the court "of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Tenbarge v. Ames Taping Tool Sys., Inc., 128 F.3d 656, 657 (8th Cir. 1997) (quoting Celotex, 477 U.S. at 325 (noting that the movant must show "there is an absence of evidence to support the nonmoving party's case.")). In the face of a properly supported motion, "[t]he burden then shifts to the nonmoving party to `set forth specific facts showing that there is a genuine issue for trial.'" Prudential Ins. Co. v.Hinkel, 121 F.3d 364, 366 (8th Cir. 1997) (quoting Fed.R.Civ.P. 56(e)). A nonmoving party may not rest upon the mere allegations or denials of its pleadings but, rather, must show specific facts, supported by affidavits or other proper evidence, showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); Liberty Mut. Ins. Co. v. FAG Bearings Corp., 153 F.3d 919, 922 (8th Cir. 1998). Accordingly, the nonmoving party must "set forth in its opposing brief a separate statement of each material fact as to which it is contended there exists a genuine issue to be tried and as to each shall identify the specific document or discovery response or deposition testimony (by page and line) which it is claimed establishes the issue." See NELR 56.1(b).

Summary judgment motions must be carefully used in an employment discrimination case, and the court should not make credibility determinations or weigh the evidence. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000); Smith v. St. Louis Univ., 109 F.3d 1261, 1264 (8th Cir. 1997). However, summary judgment is appropriate when there is no factual dispute on an essential element of a claim. Id. at 1267-68.

Discussion

Plaintiff alleges violation of the ADEA. The ADEA prohibits discrimination on account of age against anyone in the protected age group. 29 U.S.C. § 623(a)(1), 631(a). The ADEA states in part that "[I]t shall be an unlawful employment practice for an employer [to] discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a). To establish a claim under the ADEA, the plaintiff must show the defendant intentionally discriminated against her because of her age. Ziegler v. Beverly Enterprises-Minnesota, Inc., 133 F.3d 671, 675 (8th Cir. 1998).

The plaintiffs claim relies on indirect or circumstantial evidence. Without direct evidence, ADEA claims are analyzed under the burden-shifting framework of McDonnell Douglas v. Green, 411 U.S. 792 (1973). See Trammel v. Simmons First Bank of Searcy, 2003 WL 22175963, 2 (8th Cir. 2003) ( citing Mayer v. Nextel West Corp., 318 F.3d 803, 806-07 (8th Cir. 2003); Dammen v. UniMed Medical Center, 236 F.3d 978, 980 (8th Cir. 2001) (citations omitted). Under this framework, the plaintiff must first proffer a prima facie case of age discrimination, then the burden shifts to the defendant to offer a legitimate nondiscriminatory reason for the adverse employment action, and the burden then shifts back to the plaintiff to show that the defendant's proffered reasons are pretextual. Id. See also Alien v. City of Pocahontas, Ark., 340 F.3d 551, 557 (8th Cir. 2003). The burden of persuasion remains with the plaintiff throughout. Yates v. Rexton, Inc., 267 F.3d 793, 799 (8th Cir. 2001).

A. Prima Facie Case

To withstand a motion for summary judgment, the plaintiff must first establish a prima facie case. Girten v. McRentals, Inc., 337 F.3d 979, 981 (8th Cir. 2003). Since plaintiff's termination was the result of a reduction in force, the requirements of the prima facie case are somewhat different than in McDonnell Douglas. Yates, 267 F.3d at 799. To establish a prima facie case, the plaintiff must show: (1) she is age forty or older; (2) she met the applicable job qualifications; (3) she was discharged; and (4) age was the factor in the defendant's decision to terminate her. Id. See also Taylor v. QHG of Springdale, Inc., 218 F.3d 898, 899-900 (8th Cir. 2000). The first and third elements are clearly met. The plaintiff contends that she met the applicable job qualifications. Ordinarily, replacement by a younger worker is sufficient to establish the fourth element. Yates, 267 F.3d at 799. The defendant did in fact replace the plaintiff with another employee who was younger than 40. However, in an action involving a reduction in force, the claimant must provide additional evidence that age played a role in her termination. Id.

Typically, the additional evidence requirement is not a significant hurdle for an employment discrimination plaintiff. Yates, 267 F.3d at 799. The plaintiff has offered no additional evidence to establish discrimination. The court is unable to draw an inference from the evidence that the plaintiffs age was a factor in the decision. The circumstances must be such that a fact-finder may reasonably infer intentional discrimination. Huston v. McDonnell Douglas Corp., 63 F.3d 771, 779 (8th Cir. 1995). Without anything more to substantiate the plaintiffs assertion, the court is unable to make this inference. Accordingly, the court finds that the plaintiff has failed to establish a prima facie case.

B. Pretext

Even if the court assumes, for the sake of this motion, that the plaintiff has established a prima facie case, she has failed to establish the pretextual nature of the defendant's offered reasons. Assuming the prima facie case is established, the burden shifts to the defendant to provide legitimate nondiscriminatory reasons for its employment decision. Yates, 267 F.3d at 799; Dammen, 236 F.3d at 980.

The defendant claims the plaintiff was terminated due to a national reduction in force stemming from the company's economic problems. However, even within the context of a legitimate reduction in force, the defendant is still required to show age was not a factor in its determination. Yates, 267 F.3d at 799. The defendant claims it terminated the plaintiff because of the reduction in force and because she was a weak performer. The court finds this to be a legitimate reason. The record establishes that the defendant was experiencing economic problems and was involved in a legitimate reduction in force to address these problems. If a company is forced to lay off workers and eliminate positions, it is free to eliminate those workers who are weaker performers. The defendant has carried its burden to articulate a legitimate, nondiscriminatory reason for the plaintiffs discharge. Dammen, 236 F.3d at 980.

Once the defendant has met its burden of production, the plaintiff is required to offer proof that the proffered reason is not the true reason for her termination. Yates, 267 F.3d at 799; Evers v. Alliant Techsystems, Inc., 241 F.3d 948, 955 (8th Cir. 2001). The plaintiff has offered absolutely no evidence in this regard. I have thoroughly reviewed the record, and I conclude that the plaintiff has failed to meet her burden of showing pretext.

C. Conclusion

Whether summary judgment is appropriate will depend on a number of factors. Girten v. McRentals, Inc., 337 F.3d 979, 982 (8th Cir. 2003). These factors include "the strength the plaintiff's prima facie case, the probative value of the proof the employer's explanation is false, and any other evidence that supports the employer's case." Id. Dammen, 236 F.3d at 981. The plaintiff's prima facie case is built on pure speculation and peripheral facts which do not support an inference of discrimination. The court finds that the plaintiff has not established a prima facie case, and she has failed to address or demonstrate the pretextual nature of the defendant's rationale for her termination. The court concludes that a rational fact-finder could not find that the plaintiff's termination was discriminatory. Accordingly, the court finds that summary judgment is appropriate, and the defendant's motion for summary judgment is granted.

IT IS THEREFORE ORDERED:

1. The defendant's motion for summary judgment, Filing No. 42, is granted.

2. A separate judgment shall be entered in this case.