NANCY F. ATLAS, District Judge.
This age discrimination case is before the Court on Defendants Hajoca Corporation, LCR-M General LLC, LCR-M LP, and Moore Supply Company's (collectively, "Defendants") Motion for Summary Judgment as to Plaintiffs Dan Love [Doc. # 46] ("Love Motion") and John Stewart [Stewart Doc. # 48] ("Stewart Motion").
Defendants LCR-M General LLC, LCR-M LP and Hajoca Corporation ("Defendants") are affiliated companies.
Plaintiff Dan Love ("Love") began working for Moore Supply Company in 1985 as an inside salesperson at a store in Huntsville, Texas.
During the events surrounding this case, Love and Stewart worked in the South Texas region at the Conroe store.
In the fourth quarter of 2008, the revenue in Defendants' South Texas region dropped as a result of the economic recession.
On July 30, 2009, Hanley met with Boyd again to discuss sales and employee performance.
Shortly thereafter, on August 11, 2009, Boyd prepared a formal performance review for Love.
A month later, on September 15, 2009, Defendants laid off Love, who was 54 years old at the time.
On January 28, 2010, Love filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging that Defendants discriminated against him because of his age. On February 12, 2011, Stewart filed an EEOC charge alleging that he, too, was discriminated against because of his age. Plaintiffs filed their lawsuits on April 3, 2011, asserting age discrimination claims, and the cases eventually were consolidated for all purposes.
Summary judgment is proper only if the pleadings, depositions, ans wers to interrogatories, and admissions on file, together with any affidavits filed in support of the motion, show 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(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008). The moving party bears the burden of demonstrating that there is no evidence to support the nonmoving party's case. Celotex Corp., 477 U.S. at 325; Nat'l Union Fire Ins. Co. v. Puget Plastics Corp., 532 F.3d 398, 401 (5th Cir. 2008). If the moving party meets its initial burden, the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue of material fact for trial. Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001) (internal citation omitted). "An issue is material if its resolution could affect the outco me of the action. A dispute as to a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." DIRECT TV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2006) (internal citations omitted). The Court construes all facts and considers all evidence in the light most favorable to the nonmoving party. Nat'l Union, 532 F.3d at 401.
The Court is not required to accept the non-movant's conclusory allegations, speculation, and unsubstantiated assertions which are either entirely unsupported, or supported by a mere scintilla of evidence. Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir. 2010) (citing Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 413 (5th Cir. 2003)); see also Del ta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir. 2008) (stating that "concl usory allegations" or "unsubstantiated assertions" do not meet the nonmovant's burden); In re Hinsley, 201 F.3d 638, 643 (5th Cir. 2000) (explaining that "a party's self-serving and unsupported claim" in an affidavit will not defeat summary judgment where the evidence in the record is to the contrary). The nonmoving party must present specific facts which show "the existence of a genuine issue concerning every essential component of its case." Am. Eagle Airlines, Inc. v. Air Line Pilots Ass'n, Int'l, 343 F.3d 401, 405 (5th Cir. 2003) (internal quotation marks and citation omitted). In the absence of any proof, the Court will not assume that the non-movant could or would prove the necessary facts. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)). Although the Court may consider other materials in the record, the Court only needs to consider cited materials. FED. R. CIV. P. 56(c)(3).
Love and Stewart each contends that he was laid off by Defendants because of his age. The Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621-634, inter alia, prohibits an employer from failing to hire, refusing to hire, discharging, or otherwise discriminating 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)(1). "Under the ADEA, the plaintiff has the burden of persuasion to show `that age was the "but-for" cause of [his] employer's adverse action." Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 377 (5th Cir. 2010) (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009)). In Gross, the Supreme Court rejected arguments that plaintiffs need only show that age was a "motivating factor" in the employer's decision or action. See, e.g., id. at 174-180 ("To establish a disparate-treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the `but-for' cause of the employer's adverse decision." (citations omitted)). An age discrimination claim "`cannot succeed unless the employee's protected trait actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome.'" Id. at 176 (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)).
A plaintiff may meet this burden with either direct evidence or circumstantial evidence. Kilgore v. Brookeland Indep. Sch. Dist., No. 13-40005, 2013 WL 4031038, at *2 (5th Cir. Aug. 8, 2013) (unpublished) (citing Reed v. Neopost USA, Inc., 701 F.3d 434, 441 (5th Cir. 2012)). If the plaintiff, as here,
In a case that does not involve a reduction in force ("RIF"), the plaintiff must show that "`(1) he was discharged; (2) he was qualified for the position; (3) he was within the protected class at the time of discharge; and (4) he was either i) replaced by someone outside the protected class, ii) replaced by someone younger, or iii) otherwise discharged because of his age.'" Kilgore, 2013 WL 4031038, at *3 (quoting Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993)); Jackson, 602 F.3d at 378 (quoting Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007)). If a RIF is involved, as here, the plaintiff must demonstrate that:
Woodhouse v. Magnolia Hosp., 92 F.3d 248, 252 (5th Cir. 1996) (citing Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996); Molnar v. Ebasco Constructors, Inc., 986 F.2d 115, 118 (5th Cir. 1993); Thornbrough v. Columbus & Greenville R.R. Co., 760 F.2d 633, 642 (5th Cir. 1985)), overruled on other grounds by St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); see also Tyler v. La-Z-Boy Corp., 506 F. App'x 265, 269 (5th Cir. 2013) (unpublished) (quoting Nichols, 81 F.3d at 41). "In the context of a reduction in force, . . ., the fact that an employee is qualified for his job is less relevant—some employees may have to be let go despite competent performance." Tex. Instruments Inc., 100 F.3d at 1181 (citation omitted); see also Barber v. Shaw Group, Inc., 243 F. App'x 810, 811 (5th Cir. 2007) (unpublished) (quoting Tex. Instruments Inc., 100 F.3d at 1181).
If the plaintiff establishes a prima facie case of age discrimination, "the burden shifts to the employer to provide a legitimate, nondiscriminatory reason for terminating employment." Miller, 716 F.3d at 144 (Machinchick, 398 F.3d at 350). A RIF is a legitimate, nondiscriminatory reason for discharging an employee. E.E.O.C. v. Tex. Instruments Inc., 100 F.3d 1173, 1181 (5th Cir. 1996). "Performance deficiencies are also a legitimate reason for discharge." Kilgore, 2013 WL 4031038, at *3 (citing Davis v. W. Cmty. Hosp., 786 F.2d 677, 683 (5th Cir. 1986)); see also Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 326 (5th Cir. 2002) (citing Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 408 (5th Cir. 1999)).
If the employer meets its burden, "the burden shifts back to the employee to prove either that the employer's proffered reason was not true—but was instead a pretext for age discrimination—or that, even if the employer's reason is true, he was terminated because of his age." Miller, 716 F.3d at 144 (citing Gross, 557 U.S. at 180). "To make a showing of pretext sufficient to submit her case to a jury, [the plaintiff] `must put forward evidence rebutting each of the nondiscriminatory reasons the employer articulates.'" Ramirez v. Landry's Seafood Inn & Oyster Bar, 280 F.3d 576, 577 (5th Cir. 2002) (quoting Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001)).
The Court assumes for the purpose of this opinion that Love can satisfy his burden on all four prima facie elements of his reduction-in-force ("RIF') ADEA discrimination claim.
Stewart, on the other hand, has not met his burden to show that he can establish a prima facie case of age discrimination under the circumstances presented. Although Stewart demonstrated that he was within the age group protected under the ADEA when discharged and was adversely affected by his discharge, he has failed to demonstrate that he was qualified to assume another position at the time of the discharge.
Assuming that Plaintiffs both have demonstrated a prima facie case of age discrimination, neither Plaintiff has demonstrated that Defendants' proffered reasons for discharging him were pretextual. Defendants have articulated several legitimate, nondiscriminatory reasons for terminating Plaintiffs' employment—a RIF due to the poor economy and associated weak sales, as well as Plaintiffs' respective performance issues. Plaintiffs do not argue that the RIF was pretextual.
Defendants argue that Love was chosen as the first employee to be laid off because he "was the least productive employee in terms of gross margins, was slow in his work, and lacked typing and computer skills, which often required him to ask others for help in performing sales tasks such as preparing bids for customers."
Love does not offer evidence to refute Defendants' proffered reasons for his discharge. First, Love admits that he lacked computer and typing skills, that it took him a long time to enter bids into the computer, and that he required assistance to input bids if the bids needed to be done in a timely manner.
Second, Love has not offered competent summary judgment evidence that he did not have the lowest gross margins.
Stewart also has failed to demonstrate that Defendants' proffered reasons for discharging him were pretextual. Defendants assert that Stewart was chosen for lay off because "his attitude and work performance were considered lower than the employees retained," customers had complained about him, he showed no improvement during the four month period after his August meeting with Boyd, and he was unable to "do bid work" because he could not use the computer proficiently.
Plaintiffsappear to generally argue that other employees should have been chosen as part of the RIF. If a plaintiff is attempting to show age discrimination based on the retention of a younger employee or the hiring of a younger replacement, the
See Tex. Instruments Inc., 100 F.3d at 1181 (citation omitted) (emphasis added); see also Daniel v. Universal ENSCO, Inc., 507 F. App'x 434, 439 (5th Cir. 2013) (unpublished) (citing Moss v. BMC Software, Inc., 610 F.3d 917, 923 (5th Cir. 2010); Nichols, 81 F.3d at 42); Tyler, 506 F. App'x at 270; Ratcliff v. ExxonMobil Corp., 57 F. App'x 210, 210 (5th Cir. 2002) (unpublished)); Nichols, 81 F.3d at 41-42. Significantly, the Court must focus on "why the plaintiff rather than another employee was discharged" rather than "on why employees, in general, were discharged." Woodhouse, 92 F.3d at 253 (quoting Thornbrough, 760 F.2d 642). Plaintiffs have failed to meet this burden. They have offered no evidence that they were clearly more qualified than the other Conroe store employees who were not laid off.
Plaintiffs contend that they were replaced by Brewer, who was moved from outside sales to inside sales in October or November 2009, close in time to Plaintiffs' discharges.
Id. at 162 (citations omitted) (bolded, italicized emphasis added; italicized emphasis in original). "`[P]articularly in age discrimination cases where innumerable groupings of employees are possible according to ages and divisions within the corporate structure, statistics are easily manipulated and may be deceptive." Tex. Instruments Inc., 100 F.3d at 1185 (citing Walther, 952 F.2d at 124). "[A] statistical analysis that did not purport to analyze the facts surrounding the circumstances of the individual at issue was `impotent' to establish whether an employer's stated reasons were pretextual." Joseph v. City of Dallas, 277 F. App'x 436, 442 (5th Cir. 2008) (unpublished) (citing Tex. Instruments Inc., 100 F.3d at 1185). Accordingly, courts consider statistical evidence probative as to pretext when "the plaintiff ha[s] offered particularized evidence directly challenging the defendant's announced rationale." Tex. Instruments Inc., 100 F.3d at 1185 (collecting cases).
Here, Plaintiffs' data lacks probative value. Plaintiffs' raw numerical data has not been shown to have any statistical significance.
Stewart has failed to establish a prima facie case of age discrimination. Plaintiffs both have failed to show that Defendants' legitimate, nondiscriminatory reasons for discharging them were pretextual. Accordingly, it is hereby
A final judgment will be filed separately.
Additionally, Plaintiffs contend that Boyd's evaluation of them creates a genuine issue of fact because it is based on solely subjective criteria. Love's Response, at 27; Stewart's Response, at 27-28. The Court disagrees. Boyd and Hanley's layoff decisions were not solely based on Boyd's graded ranking of the Conroe employees. Love's discharge was based, in part, on his low gross margins, his lack of computer skills, and the slow speed of his work. Gross margins are objective criteria. Indeed, Love testified that he thought layoffs should be based on employee's sales. Love Depo., at 49. Further, Love admits to his lack of computer and typing skills, and the evidence reveals that Love was slow with this work. In Stewart's case, objective criteria—that customers had complained about Stewart and he could not do bid work—were significant grounds used to determine whether he should be discharged.