WILLIAM D. QUARLES, JR., District Judge.
Charles Pilger sued D.M. Bowman, Inc. ("Bowman") for violations of the Age Discrimination in Employment Act ("ADEA"),
Bowman is a trucking company headquartered in Williamsport, Maryland. Charles Pilger Dep. 29:6-8, July 29, 2010. Id. It has nine repair facilities, including one in Williamsport, and others in Frederick, Maryland, Somerset, Pennsylvania, and Huntersville, North Carolina. Vincent Boarman Dep. 13:10-12; 16:11-18:3, August 12, 2010. Although some maintenance of Bowman trucks is performed at the repair facilities, much of the maintenance is performed by outside vendors who are coordinated through Bowman's Williamsport maintenance division. Boarman Dep. 59:20-60:14; Pilger Dep. 58:16-59:6.
In 1980, Pilger began working as a shop manager in Bowman's maintenance division, and in June 1995, he became a maintenance team administrator. Def.'s Mot. Summ. J., Ex. A at ¶¶ 13 & 16. In 2006, Vincent Boarman became Bowman's director of maintenance. Boarman Dep.
As the breakdown coordinator, Pilger was responsible for communicating with drivers about maintenance issues on the road, and contacting vendors to make repairs. Boarman Dep. 10:20-11:2. Pilger had authority to approve repairs up to $1,000; more expensive repairs required Dunn's approval. Id. 11:2-6. Pilger was also responsible for reviewing and entering invoices for repairs he approved. Id. 11:19-13:2; 26:14-27:3.
On May 23, 2008, Dunn completed Pilger's annual performance review, which stated that Pilger was "[v]ery knowledgeable" about equipment and good at completing repairs, worked well with vendors and others, and tried to get his job done in a timely manner. Pl.'s Opp'n, Appx. 46-53. Dunn rated all categories of Pilger's performance as "meets expectations" or "exceeds expectations." Id. That same month, Pilger was temporarily assigned to perform manager duties at Bowman's Huntersville facility. Boarman Dep. 27:4-7. Following the Huntersville assignment, Dunn and Boarman noticed that Pilger had not entered all the facility's invoices on a timely basis. Dunn Dep. 56:7-14; Def.'s Mot. Summ. J., Ex. E. Pilger was about three months behind which, Dunn states, was worse than any other employee he supervised. Dunn Dep. 54:8-15.
On June 18, 2008, Don Meckley, Bowman's director of operations, emailed Pilger, Dunn, and Boarman about "the `process' for getting [Bowman] trucks serviced" in Augusta, Georgia. Pl.'s Opp'n, Ex. L. Pilger responded that trucks were "parked in a drop lot ... a few miles from our vendor C & A Repair," and that C & A charged Bowman "$30 for [pick-up] and $30 for delivery. A safety inspection is done at that time & the trucks get an exterior wash." Id. Dunn's response to Pilger's email was "Thanks"; Boarman did not respond. Id.
Later that summer, Pilger was assigned to temporary manager duties at Bowman's Frederick facility. Def.'s Mot. Summ. J., Ex. F. He was to stay at Frederick until a new manager was hired and trained. Id. Without permission, Pilger returned to Williamsport on August 4, 2008. Id. On August 5, 2008, Dunn emailed Pilger that:
Def.'s Mot. Summ. J., Ex G.
Later that day, Pilger and Boarman met in Pilger's Williamsport office. Pilger told Boarman that he had returned to Williamsport because of a doctor's appointment and because he thought the new manager in Frederick was adequately trained. Pilger Dep. 28:21-29:5; 29:16-21. When Boarman instructed him to return to Frederick the next day, Pilger stated that
Boarman wrote a disciplinary action notice, which stated that he had "instructed [Pilger] to go back to his assigned work place" and "stay [there] until informed different[ly]." Def.'s Mot. Summ. J., Ex. F. Boarman said he told Pilger that "he had no vacation approved and needed to be where he was instructed to be," and that "just submitting vacation is not an automatic approval." Id. Boarman gave Pilger the notice when he returned from suspension on August 18, 2008.
On that day, Dunn gave Pilger a disciplinary action notice titled "final written warning." Def.'s Mot. Summ. J., Ex. E.
On January 26, 2009, Dunn and Boarman asked to see Pilger in Dunn's office. Pilger Dep. 61:11-14. Pilger was given a termination notice written by Boarman, which stated that Pilger had received previous disciplinary notifications, and explained:
Def.'s Mot. Summ. J., Ex. H; Pilger Dep. 61:19-20. When he was terminated, Pilger was 61, Boarman was 53, and Dunn was 43. Pilger Aff. 13; Boarman Dep. 6:4-6.
On March 17, 2009, Boarman and Dunn hired 26 year old Nathan Reid as the new breakdown coordinator. Thomas Gill Aff. ¶ 1. On March 4, 2010, after four warnings, and one "final written warning," Reid was terminated for poor performance. Id. ¶¶ 2-7. On March 7, 2010, Boarman replaced Reid with 55 year old Glenn Smith. Def.'s Mot. Summ. J., Exs. M & N.
On March 9, 2010, Pilger sued Bowman for age discrimination in violation of the ADEA and Maryland law, and retaliation in violation of the FMLA. ECF No. 1. Bowman moved for summary judgment on December 17, 2010. ECF No. 32.
Under Rule 56(a), summary judgment "shall [be] grant[ed] ... if 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). In considering the motion, "the judge's function is not ... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. 2505.
The Court must "view the evidence in the light most favorable to ... the nonmovant, and draw all reasonable inferences in h[is] favor," Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir.2002), but it also must abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial," Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir.2003) (citation and internal quotation marks omitted).
The ADEA makes it "unlawful for an employer ... to discharge any individual... because of such individual's age." 29 U.S.C. § 623. To succeed on an ADEA claim, the plaintiff "must prove, by a preponderance
There are two methods by which the plaintiff may prove his employer's discrimination: (1) "through direct or indirect evidence of intentional discrimination", or (2) "through circumstantial evidence under the [burden-shifting framework of] McDonnell Douglas Corp. v. Green, 411 U.S. 792[, 93 S.Ct. 1817, 36 L.Ed.2d 668] (1973)." Fairclough v. Bd. of Cnty. Commissioners, 244 F.Supp.2d 581, 587 (D.Md. 2003).
Bowman argues that it is entitled to summary judgment on Pilger's ADEA claim because he has failed to show a prima facie discrimination case under the McDonnell Douglas framework. Def.'s Mot. Summ. J. 11. Pilger contends that he has direct evidence of age discrimination, and does not need to proceed under McDonnell Douglas. Pl.'s Opp'n 18.
An employee may "us[e] any direct or indirect evidence relevant to and sufficiently probative of [discrimination]" to prove his case. Brinkley v. Harbour Recreation Club, 180 F.3d 598, 606-07 (4th Cir.1999). To survive summary judgment, Pilger must show "direct evidence of a stated purpose to discriminate and/or [indirect] evidence of sufficient probative force to reflect a genuine issue of material fact." Id. (quoting Goldberg v. B. Green & Co., 836 F.2d 845, 848 (4th Cir.1988)) (alterations in original). The evidence must "clearly indicate[] a discriminatory attitude at the workplace and must illustrate a nexus between the negative attitude and the employment action." Hill v. Lockheed Martin Logistics Mgmt., Inc., 314 F.3d 657, 665 (4th Cir.2003).
Pilger argues that the January 26, 2009 termination notice is direct evidence of discrimination because it states that acceptance of the 48 "washing, pickup, delivery, and ... routine inspection" invoices was "totally unacceptable [for] someone with over twenty eight years of experience." Pl.'s Opp'n 18-20. Pilger contends that the reference to his years of service is actually a reference to his age. Id.
"On average, an older employee has had more years in the work force than a younger employee, and thus may well have accumulated more years of service with a particular employer. Yet an employee's age is analytically distinct from his years of service." Hazen Paper Co. v. Biggins, 507 U.S. 604, 611, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993). Thus, "it is incorrect to say that a decision based on years of service is necessarily `age based.'" Id. The letter is neither direct proof of discrimination nor sufficiently probative indirect proof; alone, it would not bar summary judgment. See id.
"To prevail under the burden-shifting framework, [Pilger] must show: (1) he is 40 years of age or older; (2) he suffered an adverse employment action; (3) he was performing [his] job duties at a level that met [his] employer's legitimate expectations at the time of the adverse employment
If Pilger shows a prima facie case, the burden of production shifts to Bowman to present a legitimate, non-discriminatory reason for the termination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Pilger must then "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. (quoting Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)).
Bowman argues that Pilger has not shown a prima facie case because he has not demonstrated that he was meeting its legitimate expectations when he was terminated. Def.'s Mot. Summ. J. 14. Pilger contends that his May 23, 2008 annual performance review satisfies the prima facie case, and there is a genuine dispute about whether Bowman actually expected him to enter all invoices, and avoid charges for "washing, pickup, delivery, and routine inspection" from C & A Repair. Pl.'s Opp'n 20-21.
A satisfactory performance review may be used to show that an employee was meeting expectations. See Reed v. Airtran Airways, 531 F.Supp.2d 660, 667 (D.Md.2008). But, Pilger must also show that he was meeting expectations "at the time of the adverse employment action." Bodkin, 386 Fed.Appx. at 413-14. Here, eight months passed between the May 2008 performance review and Pilger's January 2009 termination. The May 2008 performance review is not sufficient to show a prima facie case.
However, Pilger has also presented the June 18, 2008 email, in which he alerted Dunn and Boarman to the "washing, pickup, delivery and routine inspection" charges — which they did not object to at that time. Viewed in the light most favorable to Pilger, the email could support a conclusion that Pilger was not expected to avoid such charges. Thus, there is a genuine dispute about whether Pilger failed to meet Bowman's expectations by accepting the 48 invoices referenced by Boarman in the termination letter.
Pilger has also presented evidence that between "January 1 and May 31, 2008" — i.e., the period during which Dunn rated his performance "meets expectations" — he entered an average of 293 invoices per month. Pl.'s Opp'n, Ex. J. Between May and August 2008 — the period during which Dunn states Pilger was worse than any other employee at inputting invoices — he had entered an average of 337 invoices per month, which was more than any other employee. Id.
After the employee presents a prima facie case, the burden shifts to the employer "to articulate some legitimate, nondiscriminatory reason" for the adverse employment action, which, "if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action." Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir.1995). Because the burden is one of production and not persuasion, the court's analysis "can involve no credibility assessment." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Here, Bowman has met its burden of production by offering the termination notice stating that Pilger accepted invoices charging for tasks Bowman could have done on its own, which "cost the company over $12,000.00." Def.'s Mot., Ex. J.
Because Bowman has met its burden, "the presumption of unlawful discrimination created by the prima facie case `drops out of the picture' and the burden shifts back to the [Pilger] to show that the given reason was just a pretext for discrimination." Evans v. Technologies Applications & Service Co., 80 F.3d 954, 959 (4th Cir. 1996) (quoting St. Mary's, 509 U.S. at 511, 113 S.Ct. 2742). "The plaintiff always bears the ultimate burden of proving that the employer intentionally discriminated against h[im]," id., which may require "more than simply show[ing] the [employer's] articulated reason is false," Laber v. Harvey, 438 F.3d 404, 430-31 (4th Cir. 2006).
As discussed above, a material question of facts exists about whether Pilger was expected to avoid incurring charges for washing, pickup, delivery, and routine inspections. A reasonable factfinder could conclude that this was not expected, and that the proffered legitimate reason for Pilger's termination is false. But, the ultimate question remains whether a reasonable factfinder could conclude that the termination was discriminatory. Rowe v. Marley Co., 233 F.3d 825, 830 (4th Cir.2000). "It is not enough to disbelieve the employer; the fact-finder must believe the plaintiff's explanation of intentional discrimination." Jeffers v. Thompson, 264 F.Supp.2d 314, 327 (D.Md.2003) (quoting Reeves, 530 U.S. at 147, 120 S.Ct. 2097).
Pilger argues that a reasonable factfinder could conclude that his termination was discriminatory because Bowman's stated reasons are false, and Nathan Reid, his 26 year-old replacement was treated more leniently. Pl.'s Opp'n 16-24. "[T]he greater the age disparity between a replacement and a terminated employee, the stronger the inference of discrimination." DeBord v. Washington Cnty. Sch.
But, such evidence does not preclude summary judgment when the younger employee is not comparable to the plaintiff. Id. A younger employee may not be comparable when he is subject to different performance standards or has significantly less experience than the plaintiff. See Senske v. Sybase, Inc., 588 F.3d 501, 510 (7th Cir.2009); Forrest v. Transit Mgmt., Inc., 245 Fed.Appx. 255, 257 (4th Cir.2007).
Pilger argues that Reid was treated more favorably because he was terminated after five warnings, whereas Pilger was terminated after "a single final written warning." Pl.'s Opp'n 2-4. However, Pilger does not dispute that Bowman's policy is "to fully document in writing all performance counseling and discipline of new employees" who, like Reid, are in "their initial probationary period." Boarman Aff. ¶ 8. Taken alone, Reid's treatment would be insufficient to show pretext. However, considered with the substantial age difference between the men, and Pilger's evidence that the proffered reason for his termination is false, a reasonable jury could conclude that his termination was discriminatory.
That Dunn and Boarman — like Pilger — were members of the ADEA's protected class may weaken an inference of discrimination; it does not require summary judgment. Dunn and Boarman were 18 and eight years younger than Pilger, respectively. They could be considered "substantially younger" than Pilger,
The FMLA makes it unlawful for an employer to interfere with, or retaliate against, an employee's exercise of rights protected under the Act. Stroder v. UPS, Inc., 750 F.Supp.2d 582, 588-94 (M.D.N.C. 2010). To state a prima facie case for retaliation under the FMLA, Pilger must show that: (1) he engaged in activity protected by the Act, (2) his employer took adverse action against him, and (3) the adverse action was causally connected to the protected activity. Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998).
Bowman argues that it is entitled to summary judgment because Pilger's request to travel with his wife — who has arthritis — so that she could take her mother to the doctor is not protected activity under the FMLA. Bowman contends that because the trip was not for Mrs. Pilger's medical care, and care for his mother-in-law is not protected under the FMLA, it is entitled to summary judgment. Def.'s Mot. Summ. J. 16-17. Pilger argues that
The FMLA was enacted "to allow workers flexibility in scheduling time off to deal with family and medical problems and alleviate some of the tension created by the competing demands of work and family." Scamihorn v. Gen. Truck Drivers, 282 F.3d 1078 (9th Cir.2002) (citing S.Rep. No. 103-3, at 4 (1993)). Section 2612(a)(1)(C) grants eligible employees leave "to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition." An employee may take this leave "intermittently or on a reduced leave schedule when medically necessary." 29 U.S.C. § 2612(b)(1). Because the applicable regulations exclude care for parents-in-law,
The applicable regulations state:
29 C.F.R. § 825.124 (2009).
"As the language of the statute and regulation make clear, the FMLA does not provide qualified leave to cover every family emergency." Fioto v. Manhattan Woods Enters., LLC, 270 F.Supp.2d 401, 403 (S.D.N.Y.2003), aff'd, 123 Fed.Appx. 26 (2d Cir.2005). Although the phrase "to care for" is broadly read to cover physical and psychological care, "it cannot be read so broadly that the concept of providing care is read out of the statute." Id. at 406. To be within the FMLA's protection, Pilger must present evidence that his leave was needed to care for his wife's "basic medical, hygienic, or nutritional needs or safety" because she was unable to care for those needs herself. See 29 C.F.R. § 825.124.
Pilger has not shown that he took leave to provide qualifying care to his wife. Pilger contends that he needed leave because his wife's "arthritis prevented her from driving long distances or helping her mother in and out of the car and up and down steps," and he "feared that if he did not take the time off his wife might ... have an auto accident or fall trying to help her mother." Pl.'s Opp'n 25. However, Pilger must have been providing on-going care for his wife to qualify for FMLA leave. Fioto, 270 F.Supp.2d at 404. Pilger was not absent from work to care for his wife. He was absent from work to drive his wife to her mother's home — a trip unrelated to Mrs. Pilger's medical condition or basic needs. This care is not contemplated by the FMLA.
For the reasons stated above, Bowman's motion for summary judgment will be granted in part, and denied in part.
