NOELLE C. COLLINS, Magistrate Judge.
Before the court is Defendant MERS Goodwill's Motion for Summary Judgment. (Doc. 46). Plaintiff has filed Responses. (Docs. 50, 54). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c). (Doc. 13).
The court may grant a motion for summary judgment Aif the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.@ Fed. R. Civ. P. 56(a).
A moving party always bears the burden of informing the court of the basis of its motion.
Where the non-moving party "fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion . . . [or] grant summary judgment if the motion and supporting materials — including the facts considered undisputed — show that the movant is entitled to it." Fed. R. Civ. P. 56(e).
In ruling on a motion for summary judgment, the court must view the facts in the light most favorable to the nonmoving party, and all justifiable inferences are to be drawn in its favor.
Plaintiff's date of birth is October 6, 1967. (Doc. 47-1 (Pl. Dep.) at 7). On Thursday, January 9, 2014, Plaintiff, who was employed by Defendant, was involved in a loud, verbal altercation, at work, with co-worker Michael Pearson. At the time of the altercation, Pearson was twenty-one years old. Plaintiff and Pearson were instructed by their Lead Supervisor, Jonathan Davis, to go to his office to receive written discipline because they were being suspended and sent home. In response to Supervisor Davis' instructions to go to his office, Plaintiff told him to "[f]uck him with his gay ass." Plaintiff was immediately sent home by Supervisor Davis due to his insubordinate behavior towards Supervisor Davis. Mr. Pearson complied with Supervisor Davis' instruction without further incident or comment, and signed his written discipline. Supervisor Davis prepared a corrective action form for Mr. Pearson but did not prepare one for Plaintiff because Plaintiff was sent home. (Doc. 47
Defendant's Employee Handbook has a Harassment Policy which provides that Defendant will not permit harassment of its employees by anyone, and that harassment includes verbal conduct and is not limited to, among other things, "offensive language, comments, slurs, epithets, jokes, negative stereotyping," and "threatening, intimidating, or hostile acts." (Doc. 47-7 at 29). Also, Defendant's Employee Handbook states, in a section titled "Cause for Discipline," that "[u]se of profanity while on agency premises" and "[i]nsubordination, including improper conduct toward a supervisor," may lead to an employee's immediate suspension or termination. (Doc. 47-7 at 45-46). The Employee Handbook is given to every employee upon the commencement of employment and was in effect while Plaintiff was employed by Defendant. (Doc. 47-4 (White Aff.), ¶ 8). Plaintiff signed an acknowledgment that he received a copy of the Employee Handbook upon his being hired by Defendant. (Doc. 47-6 (Employee Acknowledgement Form)).
On January 9, 2014, Supervisor Davis called John Mertz, Defendant's Recycling Manager, who is Supervisor Davis' immediate supervisor, and informed him that Plaintiff and Mr. Pearson had been in an argument and that Supervisor Davis had sent both men home. (Doc. 47-5 (Mertz Aff.), ¶ 8). On January 10, 2014, Philesa White, Defendant's Vice President of Human Resources, spoke with Kevin Shaw, Defendant's Vice President of Retail for Defendant's Outlet and Transportation, Ron Scanlon, Defendant's Director of Loss Prevention, Recycling Manager Mertz, and Supervisor Davis, who reported to her that Plaintiff and Mr. Pearson had been involved in the January 9, 2014 verbal altercation. On Monday, January 13, 2014, Vice President White, based on information provided to her, concluded that Plaintiff had violated company policies prohibiting insubordination and the use of profanity, specifically, the policy against the use of profanity towards a supervisor, and she recommended that Plaintiff's employment with Defendant be terminated. (Doc. 47-4 (White Aff.), ¶ 15). Also, on January 13, 2014, the decision to terminate Plaintiff for his violation of Defendant's policies was discussed and made amongst David Kutchback, Chief of Staff/Assistant Chief Executive Officer, Vice President Shaw, and Vice President White, all of whom are over forty years of age. Plaintiff's employment with Defendant was terminated on January 13, 2014. The decision to terminate Plaintiff was based solely on his actions, on Defendant's property, on January 9, 2014, as described above. (White Aff., ¶¶ 14-17).
Plaintiff never complained to Defendant's representatives that he believed he was discriminated against based on his age, and did not call Defendant's hotline to report that he believed he was discriminated against based on his age. Plaintiff was Case: 4:14-cv-01324-NCC Doc. #: 55 Filed: 01/13/16 Page: 7 of 16 PageID #: 229 not replaced with any specific employee. Rather, his job duties were spread out among existing staff at Defendant's Outlet Center. (D.S.U.M.F., ¶¶ 11-12 (citing Pl. Dep. at 44; White Aff., ¶¶ 9-13; Davis Aff., ¶ 21; Mertz Aff., ¶ 11).
Plaintiff filed a Charge of Discrimination with the United States Equal Employment Opportunity Commission (EEOC), on April 29, 2014, in which he alleged that Defendant terminated him due to his age. (Doc. 1-1). Specifically, Plaintiff alleged, in his EEOC Charge of Discrimination, that he was older than forty and that:
(Doc. 1-1 at 2).
On April 30, 2014, the EEOC issued a Right to Sue letter, in which Plaintiff was informed that he had ninety days to file a lawsuit against Defendant. (Doc. 1-1 at 1).
In his Complaint, filed with this court on July 29, 2014, Plaintiff alleges that, on January 9, 2014, "Mike Wilson" threatened him with bodily harm while they both were on the job; that both Plaintiff and Mr. "Wilson" were sent home by their supervisor; that Mr. "Wilson" followed him home and "started to attack [him]"; that Plaintiff called the police; and that, when the police came to Plaintiff's home, he told them that Mr. "Wilson" had said that they "could have a fist fight and threatened [Plaintiff] to have a gun." (Doc. 1 at 6-7). Plaintiff has provided handwritten statements from two individuals in which the individuals state that, "on January 10, 2013 [sic.]," a policeman came to a location where Plaintiff was; that the policeman handcuffed Plaintiff; that Plaintiff spoke with the policeman; and then the policeman uncuffed Plaintiff. (Doc. 50 at 1-2).
Also, in his Complaint, Plaintiff alleges that Defendant discriminated against him based on his age because his employment was terminated after a verbal altercation with a younger co-worker; that he was terminated but the younger co-worker was not; that the terms and conditions of his employment differed from those of similarly situated employees; that Defendant terminated him based on his age; and that his termination by Defendant violated the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621,
Under the ADEA, an employer is prohibited from discriminating against an employee because of his or her age. 29 U.S.C. § 623(a). "A plaintiff may establish [his] claim of intentional age discrimination through either direct evidence or indirect evidence."
Also, when considering an ADEA case, a court applies the
Specifically, where a plaintiff alleges disparate treatment in the course of age discrimination, "`[w]hatever the employer's decision making process, a disparate treatment claim cannot succeed unless the employee's protected trait actually played a role in that process and had a determinative influence on the outcome.'"
Clearly, Plaintiff has not presented direct evidence that he was terminated based on his age. Moreover, he has not presented any evidence that age played any role in Defendant's decision to terminate him, other than that he was in the protected age group.
As for the whether Plaintiff met the first element of
As for the second element of
Defendant has presented a legitimate, non-discriminatory reason for terminating Plaintiff, in that Plaintiff violated company policies prohibiting insubordination against a supervisor and the use of profanity and that he violated Defendant's Code of Ethics and Harassment Policies, as stated in its Employee Handbook. To the extent Plaintiff has suggested, in his Complaint, that the fact that the younger co-worker, with whom he had the loud, verbal altercation, was not terminated, it is undisputed that Supervisor Davis imposed the same discipline on the younger worker and Plaintiff as a result of the verbal altercation; that they both were sent to his office where they were to receive suspensions; that the younger worker complied with Supervisor Davis' instructions, while Plaintiff engaged in the violations of company policy which were the basis for his discharge; and that Plaintiff was not terminated for his participation in the verbal altercation, but that he was terminated for his conduct, directed toward his supervisor, after the altercation. Notably, up until the point when Plaintiff directed profanity at his supervisor, he was treated exactly the same as his younger co-worker as they both were to receive a suspension. Although the younger co-worker complied with the supervisor's instructions, without using profanity, Plaintiff failed to do so. Thus, to the extent Plaintiff has suggested disparate treatment as evidence of a discriminatory motive on the part of Defendant, Plaintiff's argument fails.
Finally, Plaintiff has not put forth any evidence that Defendant's proffered reason for his discharge is a pretext. Moreover, the undisputed facts establish that, during the time period of December 1, 2013, through December 31, 2014, Defendant terminated 40 employees for reasons similar to the reasons that Plaintiff was terminated, and that 29 of those 40 employees were under the age of 40. (White Aff., ¶¶ 20-21; Doc. 47-9). Additionally, all of the persons who made the decision to terminate Plaintiff were over the age of forty (White Aff., ¶ 16); the individual who hired Plaintiff was in the protected class at the time of Plaintiff's hire (Mertz Aff., ¶¶ 5-6); and, during January 2014, Defendant employed 130 persons at its Outlet Center, of whom at least 40 were 40 years old or older (Doc. 47-10). As such, the court finds that Plaintiff has not met his burden, pursuant to the
For the foregoing reasons, the court finds that there are no genuine issues of material fact; that Defendant is entitled judgment as a matter of law; and that summary judgment should be granted in favor of Defendant. Fed. R. Civ. P. 56(a);
Accordingly,
Moreover, in support of its Statement of Uncontroverted Material Facts, for each fact stated, Defendant has cited sworn deposition testimony and properly sworn and notarized affidavits.
