Opinion
No. 4-319 / 03-1245
May 26, 2004.
Appeal from the Iowa District Court for Sioux County, Gary E. Wenell, Judge.
Plaintiff appeals from the district grant of summary judgment on his age discrimination claim in favor of his former employer. AFFIRMED.
David Scott of Cornwall, Avery, Bjornstad Scott, Spencer, for appellant.
Cheryle Gering of Davenport, Evans, Hurwitz Smith, L.L.P., Sioux Falls, for appellees.
Considered by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
Martin Ewing appeals from the district court order granting summary judgment in favor of his former employer, Dethmers Manufacturing Company (Demco), on his claims of disability discrimination, age discrimination, and breach of contract. He contends sufficient evidence exists to show age was a factor in his termination. We review his claim for errors at law. Allied Mut. Ins. Co. v. Heiken, 675 N.W.2d 820, 824 (Iowa 2004).
Ewing does not raise any issues regarding the dismissal of his disability discrimination and breach of contract claims. Accordingly, he has waived these claims. See Iowa R. App. P. 6.14(1)(c).
Ewing was employed by Demco from October 1994 until June 1996, and from May 1997 until December 2000. Ewing worked in the production department where he operated a machine called a rounder. Ewing was laid off on December 1, 2000, as part of a company-wide reduction in Demco's work force. He was fifty-two years old at the time.
In order to prove age discrimination, Ewing must first establish a prima facie case of discrimination — that he was a member of a protected class (over forty years of age), performing his work satisfactorily, and had adverse action taken against him. See Vaughn v. Must, Inc., 542 N.W.2d 533, 538 (Iowa 1996). Because Ewing's responsibilities were not reassigned to a specific individual, he must also show age was a factor in Demco's decision to terminate. See Hitt v. Harsco Corp., 356 F.3d 920, 924 (8th Cir. 2004). Demco must then articulate a legitimate nondiscriminatory reason for the action. See Vaughn, 542 N.W.2d at 538. Although the defendant need not establish this by a preponderance of the evidence, it must clearly set forth some legitimate nondiscriminatory basis for its action. Id. If Demco satisfies its burden of asserting a legitimate explanation, the burden then shifts to Ewing to prove the asserted reason is merely pretext and that the discriminatory motive played a substantial part in the actions taken. See id.
The district court found Ewing did not satisfy his prima facie burden because he did not show age was a motivating factor in Demco's decision to lay him off. We find no error. Ewing was one of twenty-six employees laid off from Demco. Three other production workers were also laid off. Their ages were twenty, thirty-three, and thirty-four years of age. Of the twenty-six employees laid off, ten were over the age of forty, two were seventy or older, and the remaining fourteen workers were under forty years of age. Following the reduction in force, the average age of Demco employees in the production department and the overall work force actually increased.
Ewing testified at his deposition that various employees of Demco did not like him because he cost the company money when his thumb was amputated in 1998, he was not Dutch, he did not attend church, and he did not enjoy car racing. He offered no proof to show age was a factor in Demco's decision to lay him off. Accordingly, we affirm the district court's order granting Demco's motion for summary judgment.