Opinion
NO. CIV 07-1072 RB/WDS.
March 5, 2009
MEMORANDUM OPINION AND ORDER
THIS MATTER came before the Court on Defendant's Motion for Summary Judgment, filed January 30, 2009. Jurisdiction is founded upon 28 U.S.C. § 1331. Having considered the submissions of the parties, relevant law, and being otherwise fully advised, Defendant's Motion for Summary Judgment is GRANTED.
I. Background.
Plaintiff Frank Ortiz III is a Hispanic Senior Special Agent of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (hereinafter "ATF"). He was born in 1955. Mr. Ortiz alleges that he was discriminated against, on the basis of his national origin, ethnicity, race, color, and age, when he was suspended for two days in 2004 for misusing his position as a Special Agent. The suspension was proposed by his first-level supervisor, Resident Agent in Charge Wayne Dixie, and imposed by his second-level supervisor, Assistant Special Agent in Charge Joe Gordon.
The following factual narrative sets forth the events that led to Mr. Ortiz's two-day suspension. Mr. Dixie was the Resident Agent in Charge of the Albuquerque Field Office of the ATF from December 2001 to June 2006. In mid-2003, an individual came to Albuquerque to work with the ATF as a confidential informant (hereinafter "CI"). Mr. Dixie had approved the use of the CI. The CI had no ties to New Mexico at the time he came to Albuquerque to work with the ATF. As a result, the CI was taken to a Super 8 motel by Mr. Ortiz. Because the CI did not have any identification or a credit card, Mr. Ortiz used his personal check guarantee card to check the CI into the motel. Mr. Ortiz stipulated to the Super 8 employee that the CI would be responsible for paying for his own lodgings.
The CI failed to fully pay for his lodging expenses. The manager at Super 8 called Mr. Ortiz and requested payment of the CI's lodging expenses. Mr. Ortiz told the Super 8 manager that the bill would be taken care of. In September 2004, Mr. Dixie received a call from the manager at Super 8, requesting payment of the CI's lodging expenses. Mr. Dixie went to the Super 8 and interviewed the manager and another employee. After his investigation, Mr. Dixie drafted a proposal to suspend Mr. Ortiz for three days. Mr. Dixie specifically accused Mr. Ortiz of misusing his position by displaying his badge and ATF business card to Super 8 employees, when discussing the CI's delinquent bill for lodgings, and representing that ATF would pay the delinquent bill. Mr. Dixie also accused Mr. Ortiz of providing incorrect information regarding the CI. The proposal was sent to Mr. Ortiz's second-level supervisor, Mr. Gordon, for review. Mr. Ortiz was given an opportunity to respond to the charges.
Mr. Gordon reviewed the submissions and issued a final decision on Mr. Dixie's proposal, sustaining the misuse of position charge and dismissing the charge of providing incorrect information. Mr. Gordon mitigated Mr. Dixie's proposed sanction to a two-day suspension. Mr. Gordon listed the following factors as important in his decision to suspend Mr. Ortiz: the seriousness and nature of the offense, Mr. Ortiz's position as a Special Agent, his prior disciplinary record (a one day suspension in 2003 for "Use of Poor Judgment in Allowing a Prohibited Person Access to Firearm"), and his length of service. Mr. Gordon acknowledged, in his deposition, that there was a factual dispute regarding whether Mr. Ortiz had displayed his badge and credentials to Super 8 employees. Mr. Gordon, however, explained that he made a factual finding that Mr. Ortiz had displayed his badge and credentials based on the fact that the Super 8 employee's account of events was corroborated by the CI's account of events.
On September 14, 2004, Mr. Ortiz filed a Complaint of Discrimination with the Equal Employment Opportunity Commission, alleging discrimination based on age and national origin. On October 25, 2007, Mr. Ortiz initiated this lawsuit, alleging violations of Title VII of the Civil Rights Act of 1964 (hereinafter "Title VII") and the Age Discrimination in Employment Act of 1967 (hereinafter "ADEA").
II. Summary Judgment Standard.
A motion for summary judgment may be granted only when "there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "Summary judgment is appropriate `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.'" Munoz v. St. Mary Kirwan Hosp., 221 F.3d 1160, 1164 (10th Cir. 2000). When applying this standard, the court examines the record and makes all reasonable inferences in the light most favorable to the non-moving party. Id.
The movant bears the initial burden of establishing that no genuine issue exists as to any material fact. See Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289 (1968)). The movant's initial burden may be discharged by showing there is an absence of evidence to support the non-moving party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by identifying a lack of evidence for the non-moving party on an essential element of that party's claim. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998). Once the movant meets its burden, the burden shifts to the non-moving party to demonstrate a genuine issue for trial on a material matter. See McGarry v. Pitkin Co., 175 F.3d 1193, 1201 (10th Cir. 1999).
If the moving party satisfies its initial burden, the party opposing the motion for summary judgment may not rest upon mere allegations or denials in the pleadings, but must set forth specific facts showing there is a genuine issue for trial as to a dispositive matter for which it carries the burden of proof. See Munoz, 221 F.3d at 1164. It is not sufficient "to simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at 586. An issue of material fact is genuine if a reasonable jury could return a verdict for the party opposing the motion. See Harvey Barnett, Inc. v. Shidler, 338 F.3d 1125, 1129 (10th Cir. 2003). The substantive law at issue determines which facts are material in a given case. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." See Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986).
III. Discussion.
Plaintiff's Second Amended Complaint sets forth three causes of action: Count I alleges that Defendant discriminated against Mr. Ortiz on the basis of his national origin, ethnicity, race, and color, in violation of Title VII; Count II alleges that Defendant discriminated against Mr. Ortiz because of his age, in violation of the ADEA; Count III alleges that Defendant retaliated against Mr. Ortiz because he filed a civil rights complaint and this lawsuit, in violation of Title VII. The Court dismissed Count III in its Memorandum Opinion and Order of July 2, 2008 (Doc. 32). Plaintiff conceded to the dismissal of Count I on February 20, 2009 (Doc. 50). The Court, therefore, need only address Plaintiff's claim for age discrimination.
Pursuant to the ADEA, it is unlawful for an employer to "deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age." 29 U.S.C. § 623(a)(2). The ADEA does not, however, authorize the courts to sit as "super personnel departments" reviewing the wisdom or fairness of employment actions, except to the extent that those actions involve intentional age discrimination. See Simms v. Oklahoma ex rel. Dept. of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1330 (10th Cir. 1999). A plaintiff alleging discrimination has the burden of proving his case by direct or circumstantial evidence. See Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000). In this case, Mr. Ortiz lacks direct evidence of discrimination and has attempted to support his claim through circumstantial evidence. The Court, therefore, must evaluate Mr. Ortiz's claims using the McDonnell Douglas burden-shifting analysis. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973); Adamson v. Multi Community Diversified Servs., Inc., 514 F.3d 1136, 1145-46 (10th Cir. 2008) (applying McDonnell Douglas to discrimination claims brought under the ADEA).
Under the McDonnell Douglas analysis, a plaintiff bears the initial burden of establishing a prima facie case of discrimination. Sanchez v. Denver Public Schools, 164 F.3d 527, 531 (10th Cir. 1998). To make out a prima facie case of age discrimination, a plaintiff must demonstrate three elements: (1) that he is within the protected class of "relatively old worker," generally understood as workers over 40 years of age, (2) that he suffered an adverse employment action, and (3) that the adverse employment gives rise to an inference that it was motivated by the plaintiff's age. See General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 590-91 (2004); Adamson v. Multi Cmty. Diversified Services, Inc., 514 F.3d 1136, 1146 (10th Cir. 2008). If the plaintiff makes a prima facie case, the burden shifts to the employer to give a legitimate, nondiscriminatory reason for its employment decision. Sanders v. Southwestern Bell Telephone, L.P., 544 F.3d 1101, 1105 (10th Cir. 2008). If the employer puts forth a nondiscriminatory reason for its actions, the burden then reverts to the plaintiff to show that there is a genuine question as to whether the employer's stated reason for its action is worthy of belief. Adamson, 514 F.3d at 1146. "A plaintiff who demonstrates pretext gets over the hurdle of summary judgment." Sanders, 544 F.3d at 1105 (internal quotations omitted).
In this case, Plaintiff has failed to make out a prima facie case of age discrimination. Mr. Ortiz is within the protected class of relatively old workers, and his two-day suspension constitutes an adverse employment action. However, Mr. Ortiz has failed to demonstrate that his two-day suspension for misuse of position was motivated, in any way, by his age. See General Dynamics Land Systems, Inc., 540 U.S. at 590-91; Adamson, 514 F.3d at 1146. Indeed, the ADEA expressly stipulates that it is not unlawful for an employer to "discipline an individual for good cause." 29 U.S.C. § 623(f)(3).
It is significant that the disciplinary procedures employed in sanctioning Mr. Ortiz consisted of a two-level review process. Mr. Dixie conducted an investigation, proposed a sanction, and issued a written opinion. Mr. Gordon then reviewed the file-including Mr. Dixie's proposal for suspension, evidentiary materials, and submissions by Mr. Ortiz — and issued his own written opinion. Because the disciplinary procedures consisted of a two-level review process, Mr. Ortiz must demonstrate that both Mr. Dixie and Mr. Gordon's actions were motivated by age discrimination. Mr. Ortiz's only relevant evidence of age discrimination is that Mr. Dixie referred to relatively new employees as the "new guys" and more seasoned employees as the "old guys." The Court finds this evidence insufficient to raise an inference of age discrimination against Mr. Dixie. See Martinez v. U.S. Dept. of Energy, 170 Fed.Appx. 517, 524 fn. 10 (10th Cir. 2006) (unpublished). Furthermore, there is no indication whatsoever, in the record, that Mr. Gordon's actions were discriminatory in any way.
Plaintiff's attempt to demonstrate disparate treatment in the discipline of younger employees from older employees also fails. Having reviewed the record, the Court finds no evidence that Mr. Ortiz received disparate discipline based on his age. The ADEA expressly provides that it is not unlawful for an employer to take an action "where the differentiation is based on reasonable factors other than age." 29 U.S.C. § 623(f)(1). Mr. Dixie and Mr. Gordon consistently listed prior discipline as one consideration in their decision-making process for disciplinary actions. The fact that the newer employees received letters of reprimand rather than suspensions is reasonably explained by the absence of any prior disciplinary actions against them. See Id. Significantly, each of the younger workers were advised: "You are hereby warned that any further instances of misconduct may result in more severe disciplinary action" (Docs. 46-17, 46-17, 46-18). The fact that Mr. Ortiz received a two-day suspension is reasonably explained by the fact that he had previously been suspended for another workplace violation. See Id. Thus, Mr. Ortiz has failed to make out a prima facie case of age discrimination.
Defendant also has set forth a legitimate, nondiscriminatory reason for disciplining Mr. Ortiz, i.e., misuse of position, a violation of workplace policy. See Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1175 (10th Cir. 2007) (finding that a jury could not reasonably divine discrimination from a decision to discipline an employee based on a violation of a workplace policy). Furthermore, Mr. Ortiz has failed to show that there is a genuine question as to whether the Defendant's stated reason for its action is worthy of belief. Adamson, 514 F.3d at 1146. Indeed, Mr. Ortiz failed to show any genuine "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions" in the Defendant's claimed legitimate, non-discriminatory reason for disciplining him. Morgan v. Hilti Inc., 108 F.3d 1319, 1323 (10th Cir. 1997). Finally, the Court finds that there is a sufficient factual basis in the record to support Mr. Ortiz's two-day suspension for misuse of position.
IV. Conclusion.
Mr. Ortiz has failed to make out a prima facie case of age discrimination. In addition, Defendant has set forth a legitimate, nondiscriminatory reason for disciplining Mr. Ortiz, which Plaintiff failed to show was merely pretextual.
WHEREFORE,
IT IS ORDERED that Defendant's Motion for Summary Judgment is GRANTED.