Opinion
No. C98-78-MJM
June 29, 2000
OPINION AND ORDER
I. INTRODUCTION
Before the Court is a motion by the Defendant, Danka Office Imaging Company ("Danka") to reconsider this Court's Order of March 6, 2000. In its earlier Order the Court denied in part and granted in part Danka's motion for summary judgment on the Plaintiff, James E. Maggard's ("Maggard") age discrimination claims brought pursuant to the Age Discrimination in Employment Act ("ADEA") 29 U.S.C. § 623(a)(1) and the Iowa Civil Rights Act ("IRCA") Iowa Code ch. 216.6.
In support of its motion for reconsideration, Danka maintains that the Court relied on incorrect facts when it denied summary judgment on Maggard's age discrimination claims. Danka maintains that upon proper understanding of the facts, summary judgment is warranted.
It is apparent that the Court did rely on misstated facts in its previous Order. Accordingly, the Court will first address the factual misunderstandings of the previous Order. It will then reexamine the entire record, in its new light, to determine if summary judgment should be granted.
II. DISCUSSION A. Factual Errors 1. Shiley Affidavit
The first factual misstatement concerns the affidavit of Brian Shiley ("Shiley"). Shiley's affidavit details accounts of discriminatory attitudes toward Maggard exhibited by Danka employees and supervisors, which Shiley believes underpinned the reasoning behind Maggard's termination. (Shiley Aff. ¶ 5). The Court operated under the assumption that Shiley was Maggard's direct supervisor, who trained Maggard, and thus placed great weight on his testimony. This is incorrect. Although Shiley held the title of service supervisor, he neither oversaw Maggard nor trained him. Instead Shiley "led a team of seven technicians and oversaw repair of machines and customer relations by the technicians." (Shiley Aff. ¶ 2). Because Shiley was not Maggard's direct supervisor, Danka heavily disputes the probative value of his testimony. In fact, Danka avers Shiley's lack of personal knowledge about the decision process in terminating Maggard precludes the admission of his testimony altogether.
The Court concedes Shiley's testimony becomes less probative with the understanding that he did not directly supervise Maggard; and, as stated in the original opinion, the discriminatory comments described in Shiley's affidavit are not direct evidence of discrimination. This is true because "stray remarks" made distinct from the decision making process are not considered direct evidence of discrimination. See Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1315-16 (8th Cir. 1996). However, the Court is not convinced that Shiley's affidavit somehow becomes obsolete because he was not party to the decision making process. If there is evidence that Maggard was habitually called "the old blind guy" and considered old and partially blind by co-employees and supervisors alike, regardless of whether those statements are directly related to the decision making process, those statements are relevant in an inquiry into alleged age animus when operating under the McDonnell Douglas burden shifting paradigm. See Madel v. FCI Marketing, 116 F.3d at 1253 (finding "where statements made outside decision[-]makers' presence do not alone raise an inference of discrimination, they are not necessarily irrelevant."); Hardin v. Hussmann Corp., 45 F.3d 262, 266 (8th Cir. 1995) (finding discriminatory statements, unrelated to decisionmaking process, along with other evidence of pretext, combine to meet the "additional showing" of discrimination required in a Reduction in Force ("RIF") case). As here, the Hardin court found non-contemporaneous statements of other employees, even if those employees were not those who ultimately made the decision to terminate the plaintiff, are not irrelevant to the `additional showing' inquiry merely because the plaintiff has failed to demonstrate a direct causal relationship between the statements and the decision to terminate his employment. See id.; see also Emmel v. Coca-Cola Bottling Co., 95 F.3d 627, 632 (7th Cir. 1996) (finding discriminatory marks by nondecision-makers "are evidence, which together with the other evidence in this case could lead a jury to conclude, by a preponderance of the evidence, that the company engaged in unlawful discrimination.")
Under the assumption that Shiley was indeed Maggard's direct supervisor, the Court stated Maggard could have relied on Shiley's testimony alone to survive summary judgment. However, the Court clearly did not rely on Shiley's affidavit alone and instead explained that the "discriminatory remarks, coupled with other evidence of pretext, are probative of discriminatory animus. . ." (Doc. 41 at 9 n. 4). The Court explained that the discriminatory remarks need not be considered direct evidence of discrimination in order to be considered by the Court. Instead, when a court is analyzing a claim under the familiar McDonnell Douglas burden shifting framework, as here, such comments can be considered along with other circumstantial evidence of discrimination. See generally, Madel v. FCI Marketing, Inc., 116 F.3d 1247, 1251 (8th Cir. 1997).
Danka attempts to distinguish Madel from the present case by pointing out that some of the discriminatory comments in that case were made by a decision-maker. See Madel, 116 F.3d at 1252. However, the Madel court cites authority for the proposition that "[e]vidence of a corporate atmosphere hostile to older employees `can, if sufficient together with other evidence of pretext, support a reasonable inference of age discrimination.'" Id., citing Ryther v. KARE 11 108 F.3d 832, 842 (8th Cir) (en banc), cert den., 521 U.S. 1119 (1997). While this Court recognizes the facts of Madel are distinct from the present case, the Court believes its reasoning is equally applicable to the present set of facts; that is, although there is not evidence that a decision-maker made the discriminatory comments, the Madel court's reasoning does not preclude the inclusion of evidence of a hostile work environment where allegedly pervasive discriminatory comments were made by co-employees and supervisors alike. Such comments should not go completely unnoticed in a court's inquiry into alleged age discrimination.
Likewise, the Eighth Circuit in Ryther v. KARE II, 180 F.3d at 842, affirmed a district court's holding that "evidence of a corporate atmosphere unfavorable toward older employees could reasonably support the jury's inference that [the plaintiff] was the subject of age discrimination." The defendant in Ryther raised the same objection to the admission of discriminatory remarks arguing "that statements made by employees not involved in [the plaintiff's] non-renewal and stray remarks in the workplace do not give rise to a reasonable inference of discrimination." Id. The Ryther court rejected this argument explaining:
[n]ot only is [the defendant's] reduction of this evidence to a few `stray remarks' factually incorrect, but, more importantly, such evidence can, if sufficient together with other evidence of pretext, support a reasonable inference of age discrimination.
This Court finds Shiley's affidavit, along with other evidence of pretext, probative of discriminatory animus.
Additionally, Danka argues that Shiley's affidavit should be stricken from the record in its entirety for its failure to comply with Federal Rule of Civil Procedure 56. Fed.R.Civ.P. 56(e) requires that affidavits supporting or opposing summary judgment "shall be made with personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." In paragraphs one and two of Shiley's affidavit, Shiley lays the background for his personal knowledge of Maggard's employment at Danka. Specifically, Shiley testifies that he worked at Danka with Maggard more than two years, and as both field technicians, Maggard trained him on certain machines. With this background in place Shiley gives his account of the chain of events regarding Maggard's bout with diabetes and resulting vision problem, Maggard's move from field technician to shop technician and his opinion of the quality of Maggard's work. (Shiley Aff. ¶ 3 4). Shiley then testifies about the discriminatory work environment Maggard endured, stating there was a "perception among other employees, including various supervisors, that Jim Maggard was an old person. . ." (Shiley Aff. ¶ 5). Shiley based his testimony on age based statements made about Maggard which he heard from co-employees and supervisors, including the manager of customer service. (Shiley Aff. ¶ 5). Paragraphs one through six of the affidavit are based on Shiley's personal knowledge and will not be stricken from the record. See Kehoe v. Anheuser-Busch, Inc., 995 F.2d 117, 119 (8th Cir. 1993) (admitting affidavit statement by employees that employer treated claimant with "disdain" because it represented affiant's summary of impressions, gained through personal knowledge); see also Ryther, 108 F.3d at 843 (admitting personal opinions from three former employees that defendant was systematically ridding itself of older employees).
Paragraph seven of Shiley's affidavit is more troubling however, because Shiley speculates as to the thought processes of the decision-makers who terminated Maggard's employment. Shiley has not established that he has any personal knowledge of the decision to terminate Maggard. While paragraph seven prefaces itself with "[i]t is my personal opinion," Shiley has not established any facts on which he can base this opinion. He has not even stated that he knows the decision-makers, much less stipulated that the decision-makers had discriminatory attitudes, were privy to discriminatory conduct by other employees or in any way indicated their decision to terminate Maggard was tainted by age animus. For this reason, the Court strikes paragraph seven of Shiley's affidavit from the record and will not consider it in reexamining Danka's motion for summary judgment.
2. "Put Out to Pasture" Comment
Maggard alleges that upon being moved from field technician to shop technician his supervisor told him that he was being "put out to pasture." (Maggard Dep. at 14). The Court, however, stated the comment was made when Maggard was moved from shop technician to the supply line. Because the statement was made some two years prior to Maggard's actual dismissal, it has less probative value than the Court originally surmised. The statement, however, was made by a supervisor and suggests Maggard's age and/or poor vision led to his transfer to another position. For the reasons explained supra, the Court finds this statement is relevant when considered with other circumstantial evidence of discriminatory animus. See Hardin, 45 F.3d at 266; Ryther, 108 F.3d at 842.
3. Plaintiff's Transfer from Shop Technician to Supply Line Technician
In its earlier Order, the Court observed "while Maggard was a trained service technician for 19 years, he had no training in the supply line. (Maggard Dep. at 151-52)." Danka takes issue with this characterization stating Maggard's job requirements remained the same after he was transferred to the supply line, and the Court's supposition that additional training was required is incorrect.
Danka's argument misses the point of the Court's earlier discussion. The fact that the job requirements remained the same does not dissipate suspicion around the company's decision to move Maggard to a line which would be eliminated in a matter of days. Danka attempts to dispel the Court's suspicion about this sudden move by introducing additional affidavits which state Danka was unable to inform Maggard about the change earlier because he was on vacation. (Sliger Aff. ¶ 10). As an initial matter, this does little more than generate a triable issue of fact that cannot be resolved by the Court. More importantly however, it does not explain why Maggard was moved to a line which the company intended to terminate. Danka characterizes the decision to eliminate the shop position irrespective of its placement on the supply line. However, the people terminated at the Cedar Rapids facility were told they were being terminated because the supply line was being eliminated. (McMurrin Aff. ¶ 6; Maggard Dep. at 138-39). Indeed, from Danka's statement of undisputed facts, it is not clear whether the shop technician positions were the intended target of the reduction in force, or were a bi-product of reducing the supply line. (Doc. 31, stating "the Division's Supply Chain organization which included shop technicians and warehouse personnel was reduced from 100 employees to about 50 employees.") From the record in its present state, there is a question of fact as to whether Maggard would have been terminated but for his move to the supply line. If the elimination of the supply line rather than the position of the shop technician was the company's primary objective, Maggard's placement on a line immediately prior to its discontinuance becomes evidence of pretext.
B. Maggard's Claim of Age Discrimination
"[S]ummary judgment should be used sparingly in employment discrimination cases." Chock v. Northwest Airlines, Inc., 113 F.3d 861, 862 (8th Cir. 1997). Indeed, because "discrimination cases often depend on inferences rather than on direct evidence, summary judgment should not be granted unless the evidence could not support any reasonable inference for the nonmovant." Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994).
With these admonitions in mind, the Court again views the evidence in the light most favorable to Maggard, the nonmoving party, to determine if there is a genuine issue of fact for trial. See Fed.R.Civ.P. 56; See also, Breeding v. Arthur J. Gallagher Co., 164 F.3d 1151, 1156 (8th Cir. 1999).
As explained in the previous order, Maggard must first establish, by a preponderance of the evidence, a prima facie case of age discrimination, which he can do by showing: 1) he was in the protected age group, i.e., older than forty; 2) he was qualified; and 3) despite his qualifications, he was discharged. See Kehoe v. Anheuser-Busch, Inc., 995 F.2d at 119. When the plaintiff is terminated during a RIF, which is considered a legitimate reason for termination, the plaintiff must come forward with an "additional showing" that age was a factor in his/her termination. See Bashara v. Black Hills Corporation, 26 F.3d 820, 823 (8th Cir. 1994).
In the instance of a RIF, the plaintiff need not show he was replaced by a younger employee or that his position remained open to make a prima facie showing of discrimination. See Bashara, 26 F.3d at 823.
For purposes of this motion, Danka only challenges the final factor of Maggard's prima facie case — the "additional showing" that age was a factor in his termination. As stated earlier, Danka contends an accurate understanding of the undisputed facts reveals there is no evidence of age animus towards Maggard. At bottom, Danka contends that Maggard has produced no evidence which links those who decided to terminate his position to any of the alleged discriminatory conduct which occurred at Danka.
Maggard puts forth evidence that he endured an environment of age bias created by co-employees and supervisors alike. (Shiley Aff. ¶¶ 1-6). He also proffered evidence that he was the oldest technician terminated. (Shiley Aff. ¶ 6; Maggard Dep. at 160, 188). Finally, there is the evidence that Maggard was moved to the supply line only days before the line was eliminated, begging the question — was the move motivated by a desire to terminated Maggard or was Maggard's position of shop technician eliminated in the course of a legitimate RIF? In a recent Supreme Court opinion, the Court clarified its earlier ruling in St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), holding "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Reeves v. Sanderson Plumbing Products, Inc., 2000 WL 743663 *9 (June 12, 2000). While Danka put forth additional evidence in its motion for reconsideration to support its position that the shop technician needed to be eliminated regardless of its placement on the supply line, there are conflicting pieces of evidence in the record which generate a disputed issue of fact about its proffered business reason — a legitimate RIF — for terminating Maggard. Maggard's ability to make out a prima facie case, together with "sufficient evidence to reject [Danka's] explanation may permit a finding of liability." Id. at *10.
III. CONCLUSION
In reconsidering Maggard's claim, in light of the corrected facts, and viewing those facts in the light most favorable to Maggard, the Court is still persuaded that genuine issues of material fact remain regarding whether the plaintiff was indeed terminated for reasons of age animus, or pursuant to a legitimate RIF. These resolutions are best left for the jury.
ORDER
For the reasons mentioned herein, Danka Office Imaging Inc.'s motion for reconsideration of the denial of summary judgment, is DENIED.
Summary judgment as to the age discrimination claims pursuant to the ADEA and Chapter 216 of the Iowa Code in Count's I and III is DENIED.
Done and so ordered this 29th day of June, 2000.