D. BROCK HORNBY, District Judge.
The United States Magistrate Judge filed with the court on July 31, 2010, with copies to counsel, his Recommended Decision on Defendant's Motion for Summary Judgment. Objections to the Recommended
It is therefore
JOHN H. RICH III, United States Magistrate Judge.
Defendants Clair Car Connection, Inc., Clair Saco Volkswagen, Inc. ("Clair VW"), and Clair Ford, Lincoln Mercury, Inc. ("Clair Ford") seek summary judgment as to all claims against them on the ground that the plaintiff has failed to generate a triable issue as to whether he was discriminated against on the basis of age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the Maine Human Rights Act ("MHRA"), 5 M.R.S.A. § 4551 et seq. See Defendants' Motion for Summary Judgment ("Motion") (Docket No. 37) at 11-18.
Summary judgment is appropriate only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Santoni v. Potter, 369 F.3d 594, 598 (1st Cir.2004). "A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party." Rodriguez-Rivera v. Federico Trilla Reg'l Hosp. of Carolina, 532 F.3d 28, 30 (1st Cir.2008) (quoting Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir.2008)). "A fact is material if it has the potential of determining the outcome of the litigation." Id. (quoting Maymi v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir.2008)).
The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether this burden is met, the court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Santoni, 369 F.3d at 598. Once the moving party has made a preliminary showing that no genuine issue of material fact exists, the nonmovant must "produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue." Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1,
The evidence that the court may consider in deciding whether genuine issues of material fact exist for purposes of summary judgment is circumscribed by the local rules of this district. See Loc. R. 56. The moving party must first file a statement of material facts that it claims are not in dispute. See Loc. R. 56(b). Each fact must be set forth in a numbered paragraph and supported by a specific record citation. See id. The nonmoving party must then submit a responsive "separate, short, and concise" statement of material facts in which it must "admit, deny or qualify the facts by reference to each numbered paragraph of the moving party's statement of material facts[.]" Loc. R. 56(c). The nonmovant likewise must support each denial or qualification with an appropriate record citation. See id. The nonmoving party may also submit its own additional statement of material facts that it contends are not in dispute, each supported by a specific record citation. See id. The movant then must respond to the nonmoving party's statement of additional facts, if any, by way of a reply statement of material facts in which it must "admit, deny or qualify such additional facts by reference to the numbered paragraphs" of the nonmovant's statement. See Loc. R. 56(d). Again, each denial or qualification must be supported by an appropriate record citation. See id.
Failure to comply with Local Rule 56 can result in serious consequences. "Facts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted." Loc. R. 56(f). In addition, "[t]he court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment" and has "no independent duty to search or consider any part of the record not specifically referenced in the parties' separate statement of fact." Id.; see also, e.g., Sánchez-Figueroa v. Banco Popular de P.R., 527 F.3d 209, 213-14 (1st Cir.2008).
The parties' statements of material facts, credited to the extent either admitted or supported by record citations in accordance with Local Rule 56, with disputes in cognizable facts resolved in favor of the plaintiff as nonmovant, reveal the following relevant facts.
The plaintiff is 74 years old. Plaintiffs Statement of Additional Material Facts ("Plaintiff's Additional SMF"), commencing on page 20 of Plaintiff's Statement of Material Facts in Opposition to Defendants' Motion for Summary Judgment ("Plaintiffs Opposing SMF") (Docket No. 46), ¶ 78; Defendants' Response to Plaintiff's Statement of Additional Facts ("Defendants' Reply SMF") (Docket No. 56) ¶ 78. He began working at Clair Saco Honda in 1996. Id. ¶ 79.
Prior to November 2007, Clair Saco Honda was a dealership located in Saco, Maine. Defendants' Statement of Material Facts in Support of Motion for Summary Judgment ("Defendants' SMF") (Docket No. 38) ¶ 2; Plaintiffs Opposing SMF ¶ 2. From 2004 to November 2007, Michael Clair was the dealer for the Clair Saco Honda dealership. Id. ¶ 3. During that time, Clair was also the dealer for several other dealerships in Saco, including Clair Ford, Clair VW, and Clair Saco Mazda. Id. ¶ 4. Clair Saco Honda, along with the other Clair dealerships in Saco, was sold to Prime Auto Group effective in November 2007. Id. ¶ 5. The plaintiff never performed work for any Clair dealership other than Clair Saco Honda. Id. ¶ 6.
When the plaintiff started working at Clair Saco Honda, Paul Fisher was its general manager. Plaintiff's Additional SMF ¶ 80; Defendants' Reply SMF ¶ 80. Fisher promoted the plaintiff to parts manager and served as his immediate supervisor after that promotion. Id. Fisher continued to serve as the plaintiff's immediate supervisor until Fisher's separation from Clair Saco Honda in October 2005. Id. Fisher testified that the plaintiff did a good job as parts manager. Id. ¶ 81.
In the spring of 2005, Fisher hired Kevin Lavallee to work in the parts department with the plaintiff. Id. ¶ 86. Lavallee transferred from the Ford/Mazda store. Id. As of April 26, 2010, Lavallee was 35 years old. Id. ¶ 85. He is now 36. Id.
Clair informed Lavallee that he was being transferred to Clair Saco Honda. Id. ¶ 90. He told Lavallee that they decided to transfer him to that store because the plaintiff was going to retire. Plaintiff's Additional SMF ¶ 90; Deposition of Kevin Lavallee ("Lavallee Dep.") (Docket No. 38-4), attached to Defendants' SMF, at 20. Clair denies that he said this to Lavallee or ever spoke to anyone about when or if the plaintiff would retire. Plaintiff's Additional SMF ¶ 91; Defendants' Reply SMF ¶ 91.
When Lavallee transferred to Clair Saco Honda in 2005, he had worked as the Mazda parts manager since 2000 but had never worked at Clair Saco Honda. Id. ¶ 87. When Lavallee started working at Clair Saco Honda, the plaintiff served as his immediate supervisor. Id. ¶ 88. The plaintiff continued to serve as Lavallee's immediate supervisor until Lavallee was transferred to a newly opened Clair Kia store in early 2007. Id.
At about the time that Fisher made the decision to hire Lavallee to work at Clair Saco Honda, he asked the plaintiff when he planned to retire. Plaintiff's Additional SMF ¶ 89; Plaintiff's Answers to Defendants' First Set of Interrogatories ("Plaintiff's Interrog. Ans.") (Docket No. 46-9), attached to Plaintiff's Opposing SMF, ¶ 6. The plaintiff told Fisher that he had no plans to retire. Id. He told Fisher that, when he decided to retire, he would let Fisher know and give him plenty of notice so that they could find someone to replace him. Id. This was not the only time that Fisher asked the plaintiff about his retirement plans. Id.
During the period of time that Lavallee worked at Clair Saco Honda under the plaintiff's supervision, the plaintiff brought problems with Lavallee's performance to Fisher's attention. Plaintiff's Additional SMF ¶ 94; Defendants' Reply SMF ¶ 94. Lavallee was playing on the computer when he should have been working. Plaintiff's Additional SMF ¶ 94; Fisher Dep. at 19. He was also taking long lunch breaks. Plaintiff's Additional SMF ¶ 94; Fisher Dep. at 19-20.
Lavallee testified that Clair disciplined him while he worked at Clair Saco Honda. Id. ¶ 97. Lavallee's ex-girlfriend worked at a store in Saco that was part of the Clair Auto Group. Id. She obtained a protection order against Lavallee. Plaintiffs Additional SMF ¶ 97; Lavallee Dep. at 16-17.
In October 2005, Fisher separated from his employment with the Clair Auto Group. Id. ¶ 100. After Fisher departed, Tim Perkins became the plaintiff's direct supervisor. Id.
After Fisher's separation from the Clair Auto Group in 2005, Perkins brought Brian Jeffers over to Clair Saco Honda from the Clair VW store and placed him in the position of service manager. Id. ¶ 101. Jeffers continued to work as service manager
In 2006, as part of his ongoing assessment of the various dealerships and their profitability, Clair determined that payroll needed to be reduced. Defendants' SMF ¶ 8; Plaintiff's Opposing SMF ¶ 8. He discussed the matter with Perkins, who at the time was the executive manager for all of the Clair auto dealerships in Saco. Id. ¶ 9. Clair indicated to Perkins that he wanted him to reduce payroll. Id. ¶ 10. Clair asked Perkins to look at every department in every dealership to see where payroll could be cut. Id. ¶ 12. Perkins was solely responsible for selecting individuals to be laid off. Id. ¶ 13. He reviewed the various departments at the dealerships to see where staff could be reduced. Id. ¶ 14. He looked at the employees' current pay and duties and whether their duties could be eliminated. Id. ¶ 15. By December 2006, he had selected about 16 people to be laid off. Id. ¶¶ 16-17.
Beginning in early 2007, Clair attempted to sell Kia cars at a dealership in Saco. Id. ¶ 18. The managers of the Kia Saco dealership were Perkins (sales), Mac MacKensie (service), and Lavallee (parts). Id. ¶ 19. Lavallee was moved from the parts department at the Clair Saco Honda to work at the Kia dealership. Id. ¶ 20. Prior to working at Clair Saco Honda, Lavallee had worked as parts manager at Clair Buick Cadillac in Saco and at Clair Mazda in Saco. Id. ¶ 21. When he was hired to work at the Kia dealership, Lavallee had more than one and a half years' experience working in the parts department of Clair Saco Honda. Id. ¶ 22.
The Kia dealership lasted less than three full months. Id. ¶ 23. After the Kia products were returned to the manufacturer, Lavallee was moved back to the parts department at Clair Saco Honda. Id. ¶ 24. The defendants found positions within the other stores in Saco for all of the employees who worked at the Kia dealership. Plaintiff's Additional SMF ¶ 107; Lavallee Dep. at 36.
At the time the Kia dealership was closed, Perkins was both executive manager of the Clair dealerships in Saco and the general manager of Clair Saco Honda. Defendants' SMF ¶ 25; Plaintiff's Opposing SMF ¶ 25. Perkins had refrained from making a layoff in the parts department
On May 10, 2007, Perkins informed the plaintiff that he had decided to lay him off. Plaintiff's Additional SMF ¶ 108; Defendants' Reply SMF ¶ 108. He did not explain to the plaintiff why he chose him, as opposed to someone else, for layoff even after the plaintiff requested the reasons for his termination in writing. Id.
Perkins had heard from the Clair Saco Honda service manager, Brian Jeffers, regarding several issues that he had with the plaintiff. Defendants' SMF ¶ 35; Plaintiff's Opposing SMF ¶ 35. For example, Jeffers discussed with Perkins (i) the service technicians having to line up at the parts department, (ii) pricing conflicts that he had with the plaintiff, and (iii) the plaintiff's reluctance to work together with the service department. Id. ¶ 36. Perkins recalled quite a few times when Jeffers came to him with complaints about pricing of parts. Id. ¶ 37. With regard to cooperative efforts between the parts and service departments, Jeffers mentioned to Perkins an instance in which the plaintiff did not want to adjust his parts pricing to assist
Jeffers recalls disagreements with the plaintiff about what parts to keep in stock. Id. ¶ 41.
Jeffers recalls one disagreement in particular involving brake cleaner that cost the parts department about $1.60 or $1.70 per can for which the parts department charged almost $4 per can. Id. ¶ 45. This disagreement as to pricing of brake cleaner was presented by the managers to Perkins, who brokered a compromise between them as to what the service department would be charged. Id. ¶ 46.
Jeffers also had complaints about how the plaintiff interacted with persons in the service department, including Jeffers himself and one service technician in particular, Tom Janelle. Id. ¶ 47. Jeffers discussed with Perkins how even casual conversations between Janelle and the plaintiff would turn into an argument. Id. ¶ 48. Jeffers also expressed to Perkins his own frustration working with the plaintiff:
Id. ¶ 49. Jeffers actually requested a leave of absence of two weeks because of his frustration over working with the plaintiff,
The plaintiff admitted that there was an ongoing issue with service technicians disagreeing with him as to what parts to keep in stock. Defendants' SMF ¶ 53; Donahue Dep. at 34.
The plaintiff also described an ongoing conflict with Janelle, a shop foreman at Clair Saco Honda who assisted the service technicians. Id. ¶ 58.
Perkins claims that he did not consider laying off Nielsen and replacing him with Lavallee because Lavallee had more Honda experience than anything else. Plaintiff's Additional SMF ¶ 112; Defendants' Reply SMF ¶ 112. However, Lavallee worked as Mazda parts manager for five years and only worked at Clair Saco Honda for less than two years before the plaintiff's termination. Id.
The plaintiff filed a Charge of Discrimination with the Maine Human Rights Commission ("MHRC") on June 25, 2007. Plaintiff's Additional SMF ¶ 114; Defendants' Reply SMF ¶ 114. The defendants submitted their position to the MHRC in response to that charge. Id. ¶ 115. During the MHRC investigation, they obtained information from Perkins about the reasons for the plaintiff's termination. Id.
Id. ¶ 116.
The defendants represented to the MHRC that seniority was a factor that they considered when they decided to terminate the plaintiff and replace him with Lavallee. Id. ¶ 118.
Perkins claimed at his deposition that he thought about terminating the plaintiff for alleged performance issues even before the Kia store closed. Id. ¶ 122. Perkins claimed at his deposition that he gave the plaintiff multiple verbal warnings about his performance. Id. ¶ 123; see also Defendants' SMF ¶ 39. According to the plaintiff, Perkins never disciplined him, reprimanded him, or gave him any sort of verbal or written warning. Plaintiff's Additional SMF ¶ 124; Donahue Decl. ¶ 13.
According to the defendants' policies, managers were supposed to document verbal warnings. Plaintiff's Additional SMF ¶ 125; Defendants' Reply SMF ¶ 125.
Perkins claims that he spoke to the plaintiff multiple times about (i) the plaintiff's alleged failure to assist service technicians at the parts counter, (ii) his alleged inappropriate markup of the prices of parts, and (iii) his unwillingness to work cooperatively with the service department. Id. ¶ 126; see also Defendants' SMF ¶¶ 33-34. Perkins claims that Jeffers expressed concerns with the plaintiff in these three areas as well. Plaintiff's Additional SMF ¶ 127; Defendants' Reply SMF ¶ 127.
Perkins claims that he spoke to the plaintiff multiple times about Perkins' alleged belief that the plaintiff did not adequately attend to service technicians waiting at the parts counter. Id. ¶ 128. He claims that the plaintiff would sometimes remain in his office and let service technicians wait at the parts counter. Id. He claims that this was an ongoing problem that he first noticed in the first quarter of 2006, which continued until he terminated the plaintiff. Id.
The plaintiff denies that Perkins ever told him that he (Perkins) thought the plaintiff allowed service technicians to wait too long at the parts counter. Plaintiff's Additional SMF ¶ 129; Donahue Dep. at 49-50; Donahue Decl. ¶ 2. Perkins never told the plaintiff that he thought the plaintiff was in his office when he should be assisting service technicians at the parts counter. Id.
According to Perkins, Jeffers told him that the plaintiff would talk on the phone in his office while service technicians waited for assistance at the parts counter.
The plaintiff denies that he ever stayed in his office and let service technicians wait at the parts counter if he was not on the phone. Plaintiff's Additional SMF ¶ 134; Donahue Decl. ¶ 2. The only time he let a service technician wait at the counter was when he had to assist a customer on the phone. Id. Service technicians infrequently had to wait at the counter while he was on the phone with a customer. Id.
Perkins also claims that the phone rang in the parts department without anyone answering it. Plaintiff's Additional SMF ¶ 135; Defendants' Reply SMF ¶ 135. He claims that he spoke to the plaintiff about this issue. Id. He claims that this was an ongoing problem that he first noticed in the first quarter of 2006 and that it continued until he terminated the plaintiff's employment. Id. The plaintiff denies that Perkins ever spoke to him about the phone ringing without anyone answering it. Plaintiff's Additional SMF ¶ 136; Donahue Decl. ¶ 5.
Perkins also claims that he spoke to the plaintiff multiple times about his alleged inappropriate markup of different parts. Plaintiff's Additional SMF ¶ 137; Defendants' Reply SMF ¶ 137. He claims that Jeffers complained to him on multiple occasions about the plaintiff's alleged inappropriate markup of parts. Id. The plaintiff denies that Perkins spoke to him multiple times about inappropriate markup of different parts. Plaintiff's Additional SMF ¶ 138; Donahue Dep. at 40-41, 48-49. The plaintiff and Jeffers met with Perkins regarding the markup of one part, brake cleaner. Plaintiff's Additional SMF ¶ 138; Defendants' Reply SMF ¶ 138. Perkins did not indicate that the plaintiff had done anything inappropriate in marking up the price for brake cleaner. Id.
Perkins claims that the plaintiff was unwilling to work cooperatively with the service department. Id. ¶ 139. He testified that Jeffers brought this issue to his attention. Id.
The plaintiff was willing to work with the service department in connection with advertising and marketing. Plaintiff's Additional SMF ¶ 140; Donahue Decl. ¶ 6. The only time that Perkins spoke to the plaintiff about a problem concerning marketing and advertising activities was in connection with a concern the plaintiff had with the way advertising fliers were created and paid for. Id. The parts department was expected to pay for part of the cost of the advertising fliers, but the plaintiff did not get to offer any input on what he thought should go into them. Id. At a meeting with Perkins and Jeffers, he told Perkins that he wanted to have input into what went into the fliers. Id. Perkins agreed, and afterward the plaintiff was permitted to have such input. Id. Neither during that meeting nor at any other time did Perkins tell the plaintiff that he thought he was being uncooperative with the service department in connection with advertising and marketing activities. Id.
Perkins claims that Jeffers told him that the plaintiff refused to lower prices on some parts so that the service department could run a promotion. Plaintiff's Additional SMF ¶ 141; Defendants' Reply SMF ¶ 141. Perkins claims that he had to tell the plaintiff to lower the prices for the promotional sale and, when he did, the plaintiff angrily swore at him under his breath. Id. The plaintiff denies ever swearing at Perkins, under his breath or otherwise. Plaintiff's Additional SMF ¶ 142; Donahue Decl. ¶ 4. Furthermore, the plaintiff never refused to lower the prices of parts for a promotional sale, and Perkins never had to tell him to do so. Id. Perkins also never told the plaintiff that anyone had accused him of refusing to lower the prices of parts for a promotional sale. Id.
Jeffers reported to Perkins that he believed that the plaintiff purposely tried to rile him up and did the same to other employees in the service department. Plaintiff's Additional SMF ¶ 143; Defendants' Reply SMF ¶ 143. No one ever told the plaintiff that Jeffers thought that he was trying to rile him up or rile anyone else up. Plaintiff's Additional SMF ¶ 144; Donahue Decl. ¶ 14.
Following the termination of his employment, the plaintiff asked for a written explanation of the reasons for it. Plaintiff's Additional SMF ¶ 146; Defendants' Reply SMF ¶ 146. Perkins provided him with a letter that did not identify any of the alleged performance problems that Perkins claims motivated his decision to choose Lavallee over the plaintiff for the parts manager position at Clair Saco Honda. Id. Perkins claims that he did not identify any of the alleged performance issues when he wrote the letter because he decided to classify the termination as a "layoff." Id.
The manager of the Clair collision center, Alan Hebb, thought that the plaintiff ran the parts department at Clair Saco Honda well. Id. ¶ 147. Hebb was the manager of the collision center during the entire time that Perkins served as the plaintiff's immediate supervisor. Id. Hebb and the plaintiff had to work together on projects when the collision center needed parts to repair a Honda. Id. They worked together frequently, on at least a weekly basis. Id.
The sales manager at Clair Saco Honda, Mark Andrews, thought the plaintiff ran the parts department there well. Id. ¶ 148. He thought the plaintiff had a "work ethic second to none" and "performed his duties with the utmost professionalism." Id. He was the sales manager at Clair Saco Honda from 2004 to 2007. Id. He and the plaintiff worked together frequently, on at least a weekly basis. Id.
The used car manager for Clair, Tim Hooper, thought the plaintiff was a "very capable parts manager." Id. ¶ 149. He and the plaintiff worked together frequently, on at least a weekly basis. Id.
The plaintiff alleges that about a month before he was laid off, Perkins asked him when he planned to retire. Defendants' SMF ¶ 60; Plaintiff's Opposing SMF ¶ 60. Perkins denies ever discussing retirement with the plaintiff. Id. ¶ 61. The plaintiff alleges only one conversation in which the issue of retirement was discussed with Perkins. Id. ¶ 62.
The plaintiff also alleges that he discussed the issue of his retirement with his former boss, Paul Fisher. Id. ¶ 65. He suggests that, on a couple of occasions in 2006, Fisher asked him about his retirement plans. Id. ¶ 66. Fisher ended his employment at Clair Saco Honda in October 2005. Id. ¶ 67. The plaintiff also alleges that Jeffers and service technicians referred to him as an "old geezer." Id. ¶ 70. Perkins was not aware of anyone calling the plaintiff an "old geezer." Id. ¶ 71. The plaintiff does not allege that Perkins ever called him an "old geezer" or that Perkins was present when this phrase was spoken. Id. ¶ 72. The plaintiff did not report this alleged conduct to Perkins or to any other supervisor. Id. ¶ 73. The plaintiff never asked Perkins or any supervisor to intercede on his behalf to end this alleged conduct. Id. ¶ 74.
The plaintiff acknowledges that no one at Clair Saco Honda has stated that he was laid off because of his age. Id. ¶ 75. The plaintiff further acknowledges that no one at Clair Saco Honda told him that he was laid off because he was too old to do the job. Id. ¶ 76. The plaintiff admits that he is not aware of anything in writing indicating that the defendants laid him off because of his age. Id. ¶ 77.
Clair, along with his brothers, owned all three of the defendants from 2004 to November 2007, when the dealerships were sold to Prime Auto Group. Plaintiff's Additional SMF ¶ 150; Defendants' Reply SMF ¶ 150. Clair Saco Honda, Clair Ford, and Clair VW were all part of the "Clair Automotive Group." Id. ¶ 151.
The plaintiff alleges that the defendants terminated his employment because of his age, in violation of both the ADEA and the MHRA. See Complaint ¶¶ 12-21. The defendants seek summary judgment with respect to Clair VW and Clair Ford on the ground that neither entity ever employed the plaintiff and, hence, neither is appropriately named a defendant. See Motion at 10-11. The plaintiff counters that, while he performed no work for Clair VW or Clair Ford, they formed part of an "integrated enterprise" and can be held liable on that account. See Plaintiff's Response to Defendants' Motion for Summary Judgment ("Response") (Docket No. 45) at 15-17. The defendants deny that the "integrated enterprise" theory of liability applies or that, if it does, there is a basis for liability as to Clair VW or Clair Ford. See Defendants' Reply Memorandum of Law in Support of Motion for Summary Judgment ("Reply") (Docket 55) at 1-3.
The defendants also seek summary judgment on the merits as to all claims against them on grounds that:
1. The plaintiff offers no direct evidence of age discrimination and, accordingly, must make his case pursuant to the burden-shifting paradigm laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Motion at 13.
2. Assuming arguendo that the plaintiff makes out a prima facie case of age discrimination, the defendants handily meet their burden of proving legitimate, nondiscriminatory reasons for his layoff, namely the business decision to cut costs, coupled with the business judgment that Lavallee, rather than the plaintiff, was the better person to move the parts department forward. See id. at 15-16.
The plaintiff does not dispute that the McDonnell Douglas burden-shifting paradigm applies or that the defendants meet their burden of articulating legitimate, non-discriminatory reasons for his employment termination. See Response at 3-4. However, he argues that he makes a strong showing that these reasons were pretextual and raises a triable issue that he was terminated on account of his age. See id. at 4-5.
The plaintiff seeks to hold Clair VW and Clair Ford liable for age discrimination pursuant to the "integrated enterprise" theory of liability set forth in Romano v. U-Haul Int'l, 233 F.3d 655 (1st Cir.2000), which he notes has been applied to claims brought pursuant to the MHRA as well as the ADEA. See id. at 15-17. "Under the `single employer' or `integrated enterprise' doctrine, two companies may be considered so interrelated that they constitute a single employer subject to liability under the ADEA[.]" Torres-Negrón v. Merck & Co., 488 F.3d 34, 43 (1st Cir. 2007) (citation and internal quotation marks omitted).
Application of the integrated enterprise theory entails consideration of four factors bearing on the relationship between a plaintiff's titular employer and the nominally separate company sought to be held liable: interrelation of operations, common management, centralized control of labor relations, and common ownership. See Romano, 233 F.3d at 666. Of these factors, "control of employment decisions is a primary consideration in evaluating employer status." Id. Nonetheless, focus on employment decisions is appropriate "only to the extent that the parent exerts an amount of participation that is sufficient and necessary to the total employment process, even absent total control or ultimate authority over hiring decisions." Id. (citation and internal punctuation omitted). "As for sales, marketing and advertising, these factors may be considered under the interrelation of operations prong, but only insofar as the parent is involved directly in the subsidiary's daily decisions." Id. at 667 (citation and internal punctuation marks omitted).
The plaintiff posits that he meets all four integrated enterprise factors, showing (i) common ownership, all three defendants having been owned by Clair and his brothers, (ii) common management, Clair and Perkins having managed all three dealerships, (iii) centralized control of labor relations, Perkins having made personnel decisions for all of the defendants and having looked at all of the defendants in making layoff decisions in December 2006, and the defendants having had a central office that performed such functions as payroll and human resources for all three, and (iv) interrelation of operations, the defendants having transferred employees from one defendant to another, and managers of all three defendants having met to discuss business. See Response at 16-17.
The defendants counter that, despite the plaintiff's evidence of centralized management and control of the three entities, he falls short of demonstrating that either Clair VW or Clair Ford itself played any active role in his employment or termination of employment or was in any way involved in the alleged discriminatory actions. See Reply at 1-2. They reason
The defendants' argument is persuasive. The First Circuit contemplates active participation in the employment process by an entity sought to be held liable under an integrated enterprise theory. Romano, 233 F.3d at 666; see also, e.g., Phair v. New Page Corp., 708 F.Supp.2d 57, 68-69 (D.Me.2010) (jury question existed as to whether parent company was an integrated employer with subsidiary when, inter alia, parent employed salespeople on subsidiary's behalf, parent told subsidiary which products to make, and, as to labor relations, (i) the majority of the subsidiary's personnel policies were provided by the parent, (ii) the subsidiary's human resources director regularly consulted with the parent's corporate human resources department, and (iii) personnel commonly transferred between the parent and the subsidiary).
While it is true that the entities sought to be held liable in Romano and Phair were parent corporations, I perceive no reason why a company's status as a sister corporation should relieve a plaintiff of the need to demonstrate that it played this sort of role. There is no evidence that either Clair VW or Clair Ford played any role in labor relations decisions at Clair Saco Honda or that Clair or Perkins acted on behalf of Clair VW or Clair Ford in making decisions affecting Clair Saco Honda.
Clair VW and Clair Ford accordingly are entitled to summary judgment as to all counts against them.
"The ADEA makes it illegal for an employer `to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.'" Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 53 (1st Cir.2000) (quoting 29 U.S.C. § 623(a)(1)). In similar fashion, the MHRA makes it illegal, in relevant part, for any employer to discharge an employee "because of age. 5 M.R.S.A. § 4572(1)(A).
The defendants suggest, and the plaintiff agrees, that ADEA analysis is dispositive of his MHRA age discrimination claim. See Motion at 11-12; Response at 3; see also, e.g., Phair, 708 F.Supp.2d at 63 n. 4 ("Maine courts apply the MHRA in accordance with federal antidiscrimination law, including the ADEA. Thus, the Court's analysis pertains to both the federal and state claims.") (citations omitted).
To prove an ADEA violation, "[a] plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the `but-for' cause of the challenged employer decision." Gross v. FBL Fin. Servs., Inc., ___ U.S. ____, 129 S.Ct. 2343, 2351, 174 L.Ed.2d 119 (2009). "Unlike Title VII, the ADEA's text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor." Id. at 2349.
"Direct evidence . . . consists of statements by a decisionmaker that directly reflect the alleged animus and bear squarely on the contested employment decision[.]" Patten v. Wal-Mart Stores East, Inc., 300 F.3d 21, 25 (1st Cir.2002) (citation and internal quotation marks omitted). "The high threshold for this type of evidence requires that mere background
"Where, as here, an employee lacks direct evidence that the employer's actions were motivated by age animus, the McDonnell Douglas burden-shifting framework dictates the progression of proof." Suarez, 229 F.3d at 53.
"The first step in this progression involves the employee's prima facie case." Id. "To climb this step, an employee suing under the ADEA for termination of employment must adduce evidence which, if believed, suffices to prove four facts: (1) that he was at least forty years old when he and his employer parted company; (2) that his job performance met the employer's legitimate expectations; (3) that he lost his position through an adverse employment action attributable to the employer (typically, a firing); and (4) that the employer had a continuing need for the services that he had been rendering." Id.
Once a plaintiff establishes a prima facie case, the McDonnell Douglas rubric shifts the burden to the defendant to "produc[e] evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (citation and internal quotation marks omitted). "This burden is one of production, not persuasion; it can involve no credibility assessment." Id. (citation and internal quotation marks omitted).
Once the defendant meets this burden, "the McDonnell Douglas framework—with its presumptions and burdens—disappear[s], and the sole remaining issue [is] discrimination vel non." Id. at 142-43, 120 S.Ct. 2097 (citations and internal quotation marks omitted). "Although intermediate evidentiary burdens shift back and forth under this framework, [t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Id. at 143, 120 S.Ct. 2097 (citation and internal quotation marks omitted). In attempting to satisfy this burden, a plaintiff "must be afforded the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Id. (citations and internal quotation marks omitted).
"[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." Id. at 148, 120 S.Ct. 2097. See also, e.g., Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 430-31 (1st Cir.2000) (once plaintiff makes out prima facie case and defendant meets its burden of production, "the focus [at summary judgment] should be on the ultimate issue: whether, viewing the aggregate package of proof offered by the plaintiff and taking all inferences in the plaintiff's favor, the plaintiff has raised a genuine issue of fact as to whether the termination of the plaintiff's employment was motivated by age discrimination.") (citations and quotation marks omitted).
The defendants do not contend that the plaintiff has failed to make out a prima facie case of age discrimination, see Motion
The defendants articulate the following reasons for the plaintiff's layoff: that it was undertaken as a cost-saving measure, and that the primary criterion for the choice between the plaintiff and Lavallee was who would work best with the service department going forward. See Motion at 10. They deny that age played any role whatsoever in the decision, let alone a "but-for" role. See id. They emphasize that "pursuant to the `business judgment' rule an employer is free to terminate an employee for any nondiscriminatory reason, even if its business judgment seems objectively unwise" and that courts "may not sit as super personnel departments assessing the merits—or even the rationality—of employers' nondiscriminatory business decisions." Id. at 16 (quoting Webber v. International Paper Co., 417 F.3d 229, 238 (1st Cir.2005); Fennell v. First Step Designs, Ltd., 83 F.3d 526, 537 (1st Cir. 1996)).
The defendants are correct that the plaintiff falls short of showing that their cost-cutting rationale was pretextual. It is undisputed that in 2006, Clair, the dealer for all of the Clair Saco dealerships, directed Perkins to reduce staff as a cost-cutting measure, and that by December 2006 Perkins had identified 16 people for layoff. See Defendants' SMF ¶¶ 3-4, 8-17; Plaintiff's Opposing SMF ¶¶ 3-4, 8-17. Perkins did not seek to lay off either the plaintiff or Lavallee at that time because Lavallee had been moved to the new Kia dealership. See id. ¶ 27. When that dealership folded, Perkins saw a further opportunity to reduce staffing. See id. ¶ 28.
Nonetheless, the plaintiff adduces sufficient evidence to raise a triable issue as to whether the stated reason for the choice to target himself rather than Lavallee for layoff—that Lavallee would work better with the parts department moving forward—was pretextual.
The plaintiff adduces evidence that the defendants represented to the MHRC that the plaintiff was generally a good worker and a capable parts department manager, that Lavallee also had those qualities, that the defendants were in the unenviable position of having to choose between two qualified workers for one available position, and that Clair Saco Honda, through Perkins, attempted to make a decision based on the relative comments of persons who worked closely with the parts department. See Plaintiffs Additional SMF ¶ 116; Defendants' Reply SMF ¶ 116.
Yet, this explanation begs the question of why Clair Saco Honda, through Perkins, judged Lavallee the better person to move the parts department forward. The plaintiff adduces evidence that Perkins, in tension with the representation made to the MHRC, testified at his deposition that he was either personally aware, or learned from Jeffers or Janelle, of a number of alleged performance problems on the plaintiff's part and that he did not consider the plaintiff a generally good worker. See, e.g., id. ¶ 117. As the plaintiff argues, see Response at 7, this shift in explanation for the preference for Lavallee in itself constitutes evidence of pretext, see, e.g., Velez v. Thermo King de P.R., Inc., 585 F.3d 441,
Beyond this, the plaintiff adduces evidence calling into doubt the veracity of Perkins' claims of serious performance issues. Perkins claimed at his deposition that he thought about terminating the plaintiff for alleged performance issues even before the Kia store closed and that he gave him multiple verbal warnings about his performance. See Plaintiff's Additional SMF ¶¶ 122-23; Defendants' Reply SMF ¶¶ 122-23. However, according to the plaintiff, Perkins never disciplined him, reprimanded him, or gave him any sort of verbal or written warning. See Plaintiff's Additional SMF ¶ 124; Donahue Decl. ¶ 13.
While it is undisputed that, prior to choosing the plaintiff for layoff, Perkins received negative reports regarding his performance from Jeffers and Janelle, the plaintiff adduces evidence that these reports were either false or exaggerated, for example, (i) Jeffers' report that the plaintiff refused to lower prices on parts for a promotional sale, see Plaintiff's Additional SMF ¶ 141; Defendants' Reply SMF ¶ 141; Plaintiffs Additional SMF ¶ 142; Donahue Decl. ¶ 4, (ii) Jeffers' and Janelle's reports that the plaintiff would sit in his office, sometimes on the phone and sometimes not on the phone, while service technicians waited at the parts counter, see Plaintiffs Additional SMF ¶ 133; Defendants' Reply SMF ¶ 133; Plaintiffs Additional SMF ¶ 134; Donahue Decl. ¶ 2, and (iii) Jeffers' report that the plaintiff purposely tried to rile him up as well as other employees in the service department, see Plaintiffs Additional SMF ¶ 143; Defendants' Reply SMF ¶ 143; Plaintiff's Additional SMF ¶ 144; Donahue Decl. ¶ 14.
There is no evidence that, prior to laying the plaintiff off, Perkins offered him an opportunity to address the allegations of Janelle and Jeffers or sought input from others who had worked regularly with him, such as Hebb, Andrews, and Hooper, all of whom aver that the plaintiff ran the parts department well and/or was a very capable parts manager. See Plaintiffs Additional SMF ¶¶ 147-49; Defendants' Reply SMF
"As the First Circuit has noted, the `sudden emergence' of performance issues could lead a trier of fact to conclude that the stated reason for termination was pretext." Phair, 708 F.Supp.2d at 67. The plaintiff carries his burden of showing that the defendants' articulated reason for his layoff is pretextual insofar as it concerns the preference of Lavallee over himself. "The jury can conclude that an employer who fabricates a false explanation has something to hide; that `something' may well be discriminatory intent." Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1293 (D.C.Cir.1998).
I turn to the ultimate question: whether the plaintiff has made a sufficient showing of age-based employment termination to survive the defendants' motion for summary judgment. See Phair, 708 F.Supp.2d at 67 ("It is not enough . . . for a plaintiff to prove that the employer's proffered basis for termination is false. Ultimately, the plaintiff[']s burden is to prove that age was the `but-for' cause of the employer's adverse action.") (citation and internal quotation marks omitted). "Evidence establishing a prima facie case, in combination with evidence of pretext, can be sufficient to defeat summary judgment if a rational factfinder could conclude that unlawful age discrimination was the actual, but-for cause of the discrimination." Velez, 585 F.3d at 452. I conclude that the plaintiff makes a sufficient showing to avert summary judgment.
The defendants state that Perkins, the sole decision-maker with respect to the question of whether to lay off Lavallee or the plaintiff, simply made a business judgment to retain Lavallee because he believed that Lavallee would work best with the service department moving forward. See, e.g., Reply at 3-4.
The defendants argue that the "old geezer" references are irrelevant "stray remarks," made by nondecisionmakers and never communicated to Perkins, the actual decisionmaker. See Motion at 18; see also, e.g., Gonzalez v. El Dia, Inc., 304 F.3d 63, 69 (1st Cir.2002) ("[S]tatements made either by nondecisionmakers[,] or by decisionmakers not involved in the decisional process, normally are insufficient, standing alone, to establish either pretext or the requisite discriminatory animus.").
Nonetheless, as the plaintiff points out, see Response at 11-15, "an employer may be held liable if the decisionmaker who discharged the plaintiff merely acted as a rubber stamp, or the `cat's paw,' for a subordinate employee's prejudice, even if the decisionmaker lacked discriminatory intent[,]" Harlow v. Potter, 353 F.Supp.2d 109, 117 (D.Me.2005). "It is appropriate to tag the employer with an employee's age-based animus if the evidence indicates that the worker possessed leverage, or exerted influence over, the titular decisionmaker." Id. (citation and internal punctuation omitted). "To invoke the cat's paw analysis, [a plaintiff] must submit evidence sufficient to establish two conditions: (1) that [the nondecisionmaker] exhibited discriminatory animus; and, (2). . . the final decisionmaker[] acted as the conduit of [the nondecisionmaker's] prejudice." Id. at 115.
The plaintiff adduces evidence that, if credited, would suffice to show that Jeffers and Janelle harbored age animus against him: that they referred to him as an "old geezer" and that they made false or exaggerated reports to Perkins, the decisionmaker, concerning his job performance. See, e.g., Normand v. Research Inst. of Am., Inc., 927 F.2d 857, 863, 864 n. 4 (5th Cir.1991) (term "old geezer" found to evidence discriminatory animus same); Gallo v. Second Taxing Dist., 507 F.Supp.2d 164, 175 (D.Conn.2007) (same).
In addition, there is evidence of record that Jeffers' and/or Janelle's reports influenced Perkins' decision to lay off the plaintiff rather than Lavallee. The defendants told the MHRC that Perkins attempted to make a choice between the plaintiff and Lavallee "based upon the relative comments of persons who worked closely with the parts department." Plaintiff's Additional SMF ¶ 116; Defendants' Reply SMF ¶ 116. They also represented to the MHRC that Perkins based his decision to terminate the plaintiff on input that he received from Jeffers. Id. ¶ 120. Perkins testified at his deposition that he factored Jeffers' and Janelle's input into his decision to terminate the plaintiff. Id. During one of his meetings with Perkins, Jeffers went so far as to suggest that Perkins should replace the plaintiff with Lavallee, saying that, in his opinion, Lavallee would better manage the parts department. Id. ¶ 121.
While the question is closer, the plaintiff also makes out a case sufficient case to avert summary judgment that Perkins, the decision-maker, himself harbored discriminatory animus. This is so in view of:
1. Perkins' raising, in the context of this litigation, of alleged performance issues as the rationale for the preference to keep Lavallee over the plaintiff, despite the defendants' representation to the MHRC that the layoff was not predicated on such issues.
2. The plaintiff's showing that Perkins' claimed discipline of him for performance issues never occurred and that, in others' view, consistent with the representation made to the MHRC, he was a capable parts manager.
3. The plaintiff's showing that, one month before his layoff, Perkins asked him when he planned to retire, coupled with Perkins' denial that he ever asked such a question.
4. The nearly 40-year age difference between Lavallee and the plaintiff.
As the defendants point out, see Reply at 12-13, neither Perkins' single question regarding retirement nor the age difference between Lavallee and the plaintiff, standing alone, necessarily would be probative of age discrimination, see, e.g., Banks v. Travelers Cos., 180 F.3d 358, 367 (2d Cir.1999) ("We recognize that a disparity in the ages of an ADEA plaintiff and her replacement or successor will not, by itself, always suffice to demonstrate invidious discrimination."); Greenberg v. Union Camp Corp., 48 F.3d 22, 28-29 (1st Cir. 1995) ("A single inquiry by an employer as to an employee's plans for retirement . . . does not necessarily show animosity towards age. An employer may legitimately inquire about an employee's plans so that it can prepare to meet its hiring needs.") (citation omitted).
However, given the plaintiff's evidence that the alleged performance issues were pretextual, the temporal proximity of the alleged retirement inquiry to the layoff and the significant age disparity between the plaintiff and his replacement lend weight to his case that age was the but-for cause of his layoff. See, e.g., Banks, 180 F.3d at 367 (22-year disparity in age between the plaintiff and his replacement probative of age discrimination in circumstances in which jury could have believed that the plaintiff was the better-qualified candidate).
For these reasons, summary judgment on the plaintiff's ADEA and MHRA age discrimination claims should be denied.
For the foregoing reasons, I recommend that the court
