Opinion
Civil Action No. 3:98-CV-655H
December 9, 1999.
MEMORANDUM OPINION
Defendant, AutoZone, Inc., has moved for summary judgment arguing that Plaintiff has not established a prima facie case of age discrimination. Defendant also says that even if Plaintiff has established a prima facie case, he has not shown that the articulated reason for demotion was a mere pretext for age discrimination. After the Court reviewed the memoranda, the parties gathered in a conference to discuss the case and respond to the Court's questions. For the reasons explained in this memorandum opinion, the Court believes that Defendant is entitled to the relief requested because no reasonable jury could find age discrimination on this evidence.
Summary judgment is appropriate when there is insufficient evidence in support of one or more elements essential to the Plaintiff's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). For purposes of summary judgment, any factual dispute must be resolved in favor of Plaintiff, as the non-moving party. Most facts are not disputed. The parties argue only about their interpretation.
I.
Plaintiff began working for AutoZone as a management trainee June 24, 1984. Within a few months, he became a store manager. A few years later, in 1986, Plaintiff was promoted to area advisor. In 1990 he was demoted to store manager. Three years later, when Plaintiff was over 40 years old, Jay Campbell, a supervisor, recommended his promotion again to area advisor. After Plaintiff received this promotion, Campbell transferred to another district. Three years later, Campbell began supervising Plaintiff again as a district manager. Plaintiff was the most experienced of several area advisors reporting to Campbell.
For purposes of this lawsuit, problems began in March of 1997 when a regional vice-president visited one of Plaintiff's stores and noted some customer service problems. Campbell discussed these problems with Plaintiff. In September 1997, when Plaintiff received his annual review, Campbell rated Plaintiff as "needs improvement". This is not a satisfactory evaluation. Plaintiff testified that Campbell had treated him fairly on this evaluation, although he did not agree with Campbell's rating. After this evaluation, Campbell gave Plaintiff supervisory authority over an additional store that another area advisor was having difficulty handling. With the new store, Plaintiff had the highest volume of sales of any area advisor.
Four months later in January, 1998, another vice-president visited two of Plaintiffs stores and expressed concerns about both. Five days later, at a district meeting, Campbell referred to Plaintiff as a fossil. Plaintiff admits that this comment may have been made in regard to the length of his service for AutoZone since at such meetings everyone introduces themselves then states their length of service. This comment, made by Campbell, was the first indication of any possible age discrimination.
The vice president also criticized another area advisor's stores.
On January 30, 1998, Campbell gave Plaintiff an unacceptable job performance memorandum, citing needed improvement in lagging sales, development of store managers and area advisors, attendance and customer service. Campbell had counseled Plaintiff on these same areas in his September 1997 performance review. Campbell gave Plaintiff until March 1, 1998 to improve performance or be reclassified as a store manager. Plaintiff admits continued attendance problems after the meeting but argues that he increased his total sales and customer accounts prior to his demotion.
At another district meeting on February 19th, Campbell again referred to Plaintiff as a fossil. This time Plaintiff says that he was offended and concerned that age discrimination might be impacting his performance reviews, although Plaintiff admits that it is possible he had referred to himself as T-Rex in the past. Plaintiff did not discuss his concerns with the human resources department or use the company's toll-free hotline for discrimination complaints.
On March 10, 1998 Campbell received a report from the district maintenance manager detailing poor customer service, lack of accountability and unacceptable physical condition at one of Plaintiff's stores. Similarly, when the district human resources manager reviewed the store three days later, he found multiple deficiencies. Following these poor reports, Campbell demoted Plaintiff on March 20, 1998. Following demotion, Plaintiff took a medical leave of absence and never returned. Plaintiff now sues AutoZone for age discrimination, arguing that his age not his performance motivated his demotion.
Many of the poor performance reports on Plaintiff stem from Store 603, but Plaintiff points out that the store manager of 603 had lung cancer. Plaintiff argues that Campbell can not point to any specific steps Plaintiff should have taken, but did not take, to improve performance of 603 under the circumstances.
The parties argue about whether Defendant's actions amounted to constructive discharge. Clearly, they do not. It does not affect the analysis here, as the demotion just as clearly constitutes an adverse employment action.
II.
Kentucky courts rely upon federal law regarding Title VII to interpret the Kentucky Civil Rights Act. See Gafford v. General Electric Co., 997 F.2d 150, 166 (6th Cir.). Plaintiff does not contest the fact that Campbell's fossil reference is circumstantial evidence, not direct evidence, of discrimination. Therefore, Plaintiff must establish a prima facie case. To do so, he must prove (1) he is a member of a protected class, (2) he suffered an adverse employment action, (3) that at the time of demotion he was performing at a level that met his employer's legitimate expectation and (4) that his replacement was substantially younger. See O'Connor v. Consolidated Coin Caterers Corp., 116 S.Ct. 1307, 1309 (1996). For purposes of summary judgment, both parties agree that Plaintiff is over forty, that he was demoted and that his replacement was substantially younger. The parties do not agree, however, whether or not Plaintiff's conduct met his employer's legitimate expectations.
Plaintiff contends that whether Plaintiff was meeting his employer's legitimate expectations remains as a material disputed fact. Defendants argue that even taking the facts in the light most favorable to Plaintiff, the employer's legitimate expectations were not being met. The Court is inclined to agree with Defendants. By 1997, Plaintiff had been an area advisor for four years, not counting his prior experience. He had plenty of time to learn his job. Nevertheless, between March 1997 and March 1998, five different supervisors independently rated Plaintiff's performance as poor. In fact, over four months after Plaintiff was warned that he needed improvement in customer service, accountability, sales and attendance, three supervisors criticized Plaintiff for deficiencies in these same areas. While Plaintiff may have improved in some areas from January 30th to March 20th, the fact of the matter is that two different supervisors still found his performance unacceptable during this time. One can argue about ratings and appropriate reactions, but there seems to be no evidence that Defendant was pleased with Plaintiff's job performance. Given these facts, Plaintiff cannot prove that he was meeting his employer's legitimate expectations.
III.
Even if Plaintiff were able to establish a prima facie case, summary judgment would be appropriate because Plaintiff cannot prove that the employer's legitimate business reasons for demoting him, unsatisfactory performance, were a pretext for intentional age discrimination. No one disputes that poor job performance is a legitimate reason for demoting an employee. Therefore, in order to show pretext, Plaintiff must establish that: (1) Defendants's legitimate reason has no basis in fact, (2) based on Defendant's response to substantially identical conduct of other employees, Defendant's reason did not warrant the employment decision, or (3) the sheer weight of the circumstantial evidence makes it more likely than not that the employer's explanation is a pretext for discrimination. See Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1084-85 (6th Cir. 1994); Kline v. Tennessee Valley Authority, 128 F.3d 337, 346-47 (6th Cir. 1997).
The first two bases for showing pretext are inapplicable here. Plaintiff admits the factual basis underlying Defendant's employment decision. Plaintiff attempts to argue that he was treated differently than other employees, but no other employee under Campbell's supervision received the number of poor performance reviews and the severity of poor ratings that Plaintiff received. As a result, plaintiff can only establish pretext if he introduces enough circumstantial evidence to make it more likely than not that Campbell's decision was a pretext for discrimination.
The only evidence Plaintiff has is Campbell's two "fossil" references. These two isolated comments are simply insufficient in light of the overwhelming evidence of the legitimacy of Defendant's action. First, four supervisors other than Campbell gave Plaintiff poor performance reviews. There is no evidence that any of these supervisors suffered from age bias. Second, the Sixth Circuit recognizes the "same actor" inference, that it is very unlikely an individual who promoted a person of a protected class would later demote that person for discriminatory reasons. See Buhrmaster v. Overnite Transportation, 61 F.3d 461 (6th Cir. 1995). In this case, Campbell recommended Plaintiff for promotion when Plaintiff was 44 years old, it hardly makes sense that Plaintiff would demote him less than five years later because of his age. See Hartsel v. Keys, 87 F.3d 795, 805 n. 9 (6th Cir. 1996). Finally, under the circumstances, Campbell's fossil reference is ambiguous at best. Plaintiff admits that the comment may have referred to his length of service rather than age and that it is possible that he had referred to himself as T-Rex in the past. These two isolated references are simply insufficient to overcome the other evidence of a legitimate reason for Plaintiff's demotion. No reasonable jury would reject the employer's explanation in this case.
The Court will enter an order consistent with this Memorandum Opinion.
ORDER
Defendant has moved for summary judgment after reviewing the memoranda, talking with counsel and being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Defendant's motion for summary judgment is SUSTAINED and Plaintiff's claim is DISMISSED WITH PREJUDICE.
This is a final and appealable order.