Opinion
8:01CV626
November 26, 2002
MEMORANDUM AND ORDER
Introduction
This matter is before the Court on defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56(c), Filing No. 25, and plaintiff's opposition to the same. Plaintiff Sally Withers (Withers) was a longtime employee of defendant Mutual Protective Insurance Company (Mutual), and following the death of her boss, she was terminated. She alleges the termination was based on age in violation of the Age Discrimination in Employment Act (ADEA) of 1967, 29 U.S.C. § 621 et seq., and Neb. Rev. Stat. § 48-1001 et seq. Defendant denies these allegations and contends that the discharge was due to legitimate business reasons. I have carefully reviewed the record, the evidence in support of and in opposition to the motion for summary judgment, the briefs of the parties, and the relevant case law. I conclude that the motion for summary judgment should be denied.
Standard for Summary Judgment
On a motion for summary judgment, the question before the court is whether the record, when viewed in the light most favorable to the nonmoving party, 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); Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1326 (8th Cir. 1995). Where unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate. Id.
The burden of establishing the nonexistence of any genuine issue of material fact is on the moving party. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). Therefore, if the defendant does not meet its initial burden with respect to an issue, summary judgment must be denied notwithstanding the absence of opposing affidavits or other evidence. Adickes, 398 U.S. at 159-60; Cambee's Furniture, Inc. v. Doughboy Recreational Inc., 825 F.2d 167, 173 (8th Cir. 1987).
Once the defendant meets its initial burden of showing there is no genuine issue of material fact, the plaintiff may not rest upon the allegations of his or her pleadings but rather must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. See Fed.R.Civ.P. 56(e); Chism v. W.R. Grace Co., 158 F.3d 988, 990 (8th Cir. 1998). The party opposing the motion must do more than simply show that there is some metaphysical doubt as to the material facts; he or she must show "there is sufficient evidence to support a jury verdict" in his or her favor. Id. Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In cases alleging employment discrimination, however, summary judgment is often an inappropriate remedy since discrimination is difficult to prove by direct evidence. "Summary judgment should be sparingly used and then only in those rare instances where there is no dispute of fact and where there exists only one conclusion. All evidence must point one way and be susceptible of no reasonable inferences sustaining the position of the non-moving party." Johnson v. Minnesota Historical Soc'y, 931 F.2d 1239, 1244 (8th Cir. 1991).
Facts Defendant's version of the facts
Withers had worked for Mutual as an administrative assistant to William Busch, a top executive at Mutual. During the last few years of Mr. Busch's employment, he was ill. The last two years he worked on a very limited basis. Consequently, an executive committee was formed to perform Mr. Busch's duties during those years. Mr. Hall, a member of this executive committee and vice president of the company at the time, testified that Ms. Withers spent about twenty to 25 percent of her time paying claims, 10 percent of her time handling complaints, and 65 percent of her time as personal assistant to Mr. Busch. (Depo. of Hall 13:6-25, 14:1-21.) Mr. Busch died on January 11, 2001. Ms. Withers was terminated on February 26, 2001. Mr. Hall made the decision to terminate her because most of her work was personal in nature. According to Mr. Hall, Mr. Busch was not going to be replaced and the claims and complaint work could be easily handled by others. Further, Ms. Withers was not considered for a transfer because she was too highly paid to go to another position. (Depo. of Hall, 41:17-25.) Also, there were some personality conflicts. (Depo. of Murname 17:2-19, 19:8-16.) Mutual argues that the discharge was one dictated by a reduction in force.
Plaintiff's version of the facts
Plaintiff argues that an advertisement was placed by Mutual on February 11, 2001, for an Executive Administrative Assistant. Ms. Withers contends that she was qualified for the position, but it was offered to a Julie Heeb who was 33 years of age. At that time, Ms. Withers was 61 years of age. Ms. Withers also argues there was no actual reduction in force, as such a claim is pretextual in nature. Ms. Withers contends that she spent approximately 85 percent of her time on claims, about 10 percent of her time on complaints, and about 5 percent of her time assisting Mr. Busch. She continued to do all of the work after Mr. Busch died, except as personal assistant to Mr. Busch. There is testimony that she did an excellent job on her claims work.
Discussion
A plaintiff in an ADEA case must employ the burden-shifting analysis announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-08 (1973), and refined in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254-56 (1981); Krenik v. County of LeSueur, 47 F.3d 953, 957 (8th Cir. 1995). Nebraska has adopted the same burden-shifting scheme for cases arising under the Nebraska Fair Employment Practice Act and the Nebraska Age Discrimination Act. Allen v. ATT Technologies, Inc., 423 N.W.2d 424, 427-28 (Neb. 1988).
To establish a prima facie case for age discrimination, a plaintiff must show that 1) she was in the protected age group; 2) she applied and was qualified for a job for which the employer was seeking applicants; 3) she was rejected or suffered adverse employment action; and 4) the employer hired a younger person. Rinehart v. City of Independence, 35 F.3d 1263, 1265 (8th Cir. 1994). If the plaintiff establishes this prima facie case, the burden then shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for the termination. Texas Dep't of Community Affairs v. Burdine, 450 U.S. at 254-55. If the defendant is successful, the burden then shifts back to the plaintiff to prove that the defendant's reason was a pretext for age discrimination. Krenik v. County of LeSueur, 47 F.3d at 958.
Through all this shifting of burdens, the plaintiff retains the ultimate burden of persuasion. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993).
In the case at hand, Ms. Withers has met her prima facie case as she is within the protected age group, was qualified for at least one if not more available positions, was terminated and not considered for job openings, and was replaced in at least one instance by a person under forty years of age and in all cases by persons younger than Withers. Mutual argues that there was a reduction in force, that Ms. Withers had personality conflicts with the executive officer who hired for the comparable position, and that she required salaries in excess of those that could be paid for any open positions. Ms. Withers argues that the reasons set forth by defendant are pretextual. The alleged reduction in force involves only one person — her; no one asked her to work for less money; and she was fully qualified for the other positions.
With regard to the alleged reduction in force, I agree with Ms. Withers. No documentary evidence has been offered to support such an argument. The evidence at this point in the proceedings is scant at best, and does not meet the level required to grant a summary judgment. See Hillebrand v. M-Tron Industries, 827 F.2d 363 (8th Cir. 1987); Bashara v. Black Hills Corp., 26 F.3d 820, 824 (8th Cir. 1994). Further, the evidence submitted by Ms. Withers as to her firing and the hiring of other younger employees for positions for which she was qualified convinces me that Ms. Withers has made a showing that the reasons set forth by Mutual are pretextual in nature, at least for purposes of this summary judgment motion. I find that there are numerous issues of material fact so as to deny the motion for summary judgment. The plaintiff has met her burdens in this regard. My findings herein, however, are for the purposes of summary judgment only, and they have no impact on the evidence and findings at trial in this matter.
THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that defendant's motion for summary judgment, Filing No. 25, should be and hereby is denied.