Opinion
Civil No. 00-1103-FR.
February 13, 2002
Richard C. Busse, Jennifer L. Lanfranco, Busse Hunt, Portland, Oregon, Attorneys for Plaintiffs.
Eric J. Neiman, Vivian Raits Solomon, Tooze Duden Creamer Frank Hutchison, Portland, Oregon, Attorneys for Defendant.
OPINION
The matter before the court is the defendant's motion for summary judgment (#32).
BACKGROUND
The plaintiffs, Dan Schofield, Bernard Jeffries, Arvid Marquardt, and Dennis Thorne, bring this action against the defendant, Marine Terminals Corporation (MTC), alleging two claims for relief under the laws of the State of Oregon as follows: 1) age discrimination; and 2) injured worker discrimination. The action was removed by the defendant to federal court because of the complete diversity of citizenship of the parties.
FACTS
Defendant MTC operates port facilities on the west coast of the United States. In October of 1995, MTC took over operation of the gear locker at Terminal 6 from the Port of Portland. The gear locker is responsible for maintaining cranes and other equipment at Terminal 6. MTC hired William Sweesy as the maintenance manager at Terminal 6. Sweesy, born on August 4, 1943, had more than 25 years of experience as a maintenance manager, most of that experience on equipment maintenance.
The plaintiffs, along with other gear locker employees, are members of the International Longshore Workers Union (ILWU), Local 8. MTC is a member of the Pacific Maritime Association (PMA), Oregon area. MTC (through PMA) and the ILWU are parties to a labor agreement which came into effect on July 2, 1988 and has been periodically renewed.
The plaintiffs and certain other gear locker workers held "steady" jobs at the MTC gear locker for some period of time prior to May of 1998. "Steady" workers are jointly selected by the employer and the union; the employer selects names from the list posted in the union hiring hall, and a union representative randomly selects the actual worker from among the names submitted by the employer.
Sweesy states in his affidavit "[a]s part of taking over Terminal 6 operations in 1995, MTC evaluated the operating efficiency of Terminal 6. Over the next 2 ½ years, I monitored the workload at the gear locker and personally evaluated each worker. It was apparent to me from the start that the gear locker was overstaffed." Affidavit of William Sweesy, p. 2, ¶ 4 (attached as Exhibit 1 to Concise Statement of Material Facts in Support of Defendant's Motion for Summary Judgment). Sweesy further states in his affidavit that "[f]rom 1995 to 1998, there was a trend of cargo volume dropping at Terminal 6. . . . The demand for gear locker labor dropped with cargo volume. By April 1998, it was necessary to lay off some of the gear locker employees." Id. at ¶ 5.
On April 20, 1998, Sweesy, on behalf of MTC, gave written notice to ILWU, Local 8, as required by the labor agreement, of the intended reduction in force. By letter dated May 4, 1998, Sweesy identified the workers to be laid off as follows:
Effective at the end of their normal shift Friday, May 15, 1998 the steady gear locker manpower will be reduced by 10 people. This includes a reduction of the night shift from 6 steady men to 2 regulars. These reductions are necessary to guarantee each of our steady employees 40 hours of work each week. As the work load warrants it, additional men will be ordered from the hall on an as needed basis to supplement our steady work force.
The names of the steady gear locker personnel to be released will be as follows.
Name Work Number
Dan Schofield 81342
Nick Zupunski 81351
Mike Meier 82030
Dennis Thorne 81554
Jim Marquart 81330
Emil Rodriquez 81764
Bernard Jeffries 81375
Joe Kuzmanich 81712
Al Renich 87491
Douglas Carey 81693
Deposition of William Glen Sweesy, Exhibit 14 (attached to Plaintiffs' Concise Statement of Material Facts in Dispute, p. 180).
Emil Rodriguez was not laid off at this time.
William Sweesy testified at his deposition, in part, as follows:
Q. Now, you made the decision to select the people for termination in May of 1998 yourself; correct?
A. Yes, I did.
Q. And you did not consult with anyone in human resources in connection with those layoffs, did you?
A. Not in connection, no.
Q. In the process, did you compare men against each other, or did you try and keep persons who had the skill qualities that you needed to retain?
A. I didn't compare anybody against anybody. All I did was keep the people that I felt were the most qualified.
Q. Is that what you were looking for, the most qualified individuals?
A. Correct.
Q. What criteria did you use in judging who was the most qualified?
A. Well, I was looking for multitalented people; I was looking for people that had good attitudes, that were cooperative; I was looking for people that came to work, you know, I would like them to work 40 hours a week.
Q. Did you have any written criteria, at the time?
A. No, I did not.
Q. Is there any document that would tell us what criteria you were looking at, at the time?
A. I don't believe there is.
Q. And, at the time, did you look at any documents to aid you in ascertaining who had what qualifications?
A. No, I did not.
Q. Did the company have a performance appraisal system so that persons who were working for MTC had notice if there were perceived deficiencies so they had an opportunity to correct those?
A. No, they did not.
Q. Had you provided individuals with any written feedback, since you came in in 1995, about your opinion of their work?
A. No, I did not.
Q. Prior to the selection that you made in 1998, were you familiar enough with the skills of the individuals in the gear locker so you could make those determinations?
A. I felt that I was. I had observed them since October of 1995.
Sweesy Deposition, pp. 8-10 (attached to Plaintiffs' Concise Statement of Material Facts in Dispute, pp. 130-32).
Plaintiff Dan Schofield testified at his deposition, in part, as follows:
Q. Did you ever hear anybody in Marine Terminals management ever say anything negative about anybody's age in the gear locker?
A. At the safety meetings Bill would kid, Well, he's old and he gets hurt a lot. I've heard this.
Q. Tell me that again.
A. Mr. Sweesy at the safety meetings, which we had every other month or whatever, had made the statement, jokingly I thought, Well, he's old, he gets hurt a lot, or like Mr. Carey . . ., when he was off, he got hurt two or three times, so he gets hurt a lot, and, according to their computers, was the highest one on the coast for injuries. Other than that —
Q. So the only person you ever heard say anything about age in MTC management was Mr. Sweesy?
A. Yes, that I can remember.
Q. And from the way he said it, you thought he was joking around?
. . . .
. . . At the time, yeah.
Q. . . . How many times did you hear Mr Sweesy say something about another worker's age?
A. I don't remember, really. A couple times, two or three times.
Q. Two or three times at the most?
A. Yeah.
Q. And was he talking, when he said something about someone's age, about Mr. Marquardt or Mr. Jeffries or Mr. Thorne?
. . . .
A. Marquardt and Jeffries.
///
Q. You heard Mr. Sweesy say something about the ages of those two gentlemen?
A. That they had got hurt because, basically because they were old. Deposition of Daniel Leroy Schofield, pp. 20-22 (attached to Plaintiffs' Concise Statement of Material Facts in Dispute, pp. 65-66a). Plaintiff Dennis Thorne testified at his deposition, in part, as follows:
Q. Did you ever hear anyone in MTC management say anything that made you believe MTC discriminated against people because of their age?
A. I worked in the parts room. I hear a lot of things. And I did hear reference to, I think, I believe Jeffries, of his age and being more prone to accidents when they get older.
Q. So you heard somebody say something about Mr. Jeffries being prone to accidents because of his age? Is that —
A. Or old people. Specifically you're talking about him, but it was broadened to people [who] get to that age, prone to accidents.
Q. Who said that?
A. I believe it was Mr. Sweesy.
Q. Did you hear him say that?
A. I believe I was there when it was said.
Q. Are you sure about that?
A. Not a hundred percent.
Deposition of Dennis Thorne, pp. 52-53 (attached to Plaintiffs' Concise Statement of Material Facts in Dispute, pp. 76-77).
The plaintiffs submit the affidavit of Al Renick, a 57-year-old MTC employee who was laid off on May 15, 1998 but is not a plaintiff in this action. Renick states, in part:
I recall one occasion, possibly a few months before the layoff, when I and a group of MTC employees were sitting around a table in the lunch room. Bill Sweezy was there, and it was a meeting type of situation. During this meeting, Mr. Sweezy said, "You're getting too old, we're going to have to lay some of you off," or words very close to that. I believe Dan Schofield and Wayne Bell were also at this meeting. I recall a couple of other times, including at a safety meeting, where Mr. Sweezy made this same type of comment about older workers and his desire to get rid of the older workers.
Affidavit of Al Renick, pp. 1-2 (attached to Plaintiffs' Concise Statement of Material Facts in Dispute, pp. 11-12).
At the time of the reduction in force, there was a total of 24 steady workers at MTC, nine of which were laid off. The average age of the 24-man work force as of May 15, 1998 was 52 years. The average age of the nine steady workers laid off as of May 15, 1998 was 54 years. The average age of the 15 steady workers retained as of May 15, 1998 was 50 years.
Plaintiff Bernard Jeffries was 70 years of age on May 15, 1998. Plaintiff Jim Marquardt was 59 years of age on May 15, 1998. Plaintiff Dan Schofield was 58 years of age on May 15, 1998. Plaintiff Dennis Thorne was 56 years of age on May 15, 1998.
Prior to being laid off, plaintiff Schofield, 58 years of age, was the night foreman. After Schofield was laid off, John Miken, 41 years of age, took over as night foreman. Deposition of John Paul Miken, p. 4 (attached to Plaintiffs' Concise Statement of Material Facts in Dispute, p. 107).
Prior to being laid off, plaintiff Jeffries, 70 years of age, was the most experienced and skilled welder in the gear locker. After Jeffries was laid off, defendant MTC continued to employ welders substantially younger than Jeffries in the gear locker.
Prior to being laid off, plaintiff Marquardt, 59 years of age, was a skilled mechanic. After Marquardt was laid off, MTC continued to employ mechanics substantially younger than Marquardt in the gear locker.
Prior to being laid off, plaintiff Thorne, 56 years of age, did tires and worked in the parts department. After Thorne was laid off, MTC continued to employ a parts man substantially younger than Thorne in the gear locker.
In 1997, MTC employed a consultant in the Pacific Northwest to reduce injuries and the costs of claims. Sweesy's team was selected as a target team because of its higher than desired accident frequency rate. Sweesy was evaluated and received some compensation for safety performance.
Plaintiffs Schofield, Jeffries and Marquardt had histories of injuries and workers' compensation claims while employed by MTC.
APPLICABLE STANDARD
Summary judgment should be granted only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Assuming there has been adequate time for discovery, summary judgment should then be entered 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). All inferences drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). When different ultimate inferences can be reached, summary judgment is not appropriate. Sankovich v. Life Ins. Co. of N. Am., 638 F.2d 136, 140 (9th Cir. 1981).
ANALYSIS
1. Age Discrimination
In the first claim for relief, the plaintiffs allege that they were terminated by defendant MTC because of their ages in violation of ORS 659.030(1), which provides, in part, as follows:
[I]t is an unlawful employment practice:
(a) For an employer, because of an individual's race, religion, color, sex, national origin, martial status or age if the individual is 18 years of age or older . . . to refuse to hire or employ or to bar or discharge from employment such individual. However, discrimination is not an unlawful employment practice if such discrimination results from a bona fide occupational requirement reasonably necessary to the normal operation of the employer's business.
Defendant MTC contends that neither age nor injury status had anything to do with the difficult business decision MTC had to make as to which workers to lay off and which workers to keep as a result of the economic downturn. MTC contends that this decision was based on a careful and non-discriminatory assessment of ability. MTC contends that there was no pattern of laying off older workers; in fact, of the nine individuals released out of a work force of 24, four were younger than the youngest plaintiff in this case. MTC contends that the layoffs in this case complied in all aspects with state laws and involved no age discrimination.
The plaintiffs contend that MTC treated younger workers more favorably than older workers. The plaintiffs contend that MTC retained younger, less qualified workers to perform the work each of the plaintiffs had performed, and that age was a substantial factor in deciding which employees to lay off and which employees to retain. The plaintiffs contend that MTC's articulated reason for terminating them, that is, because they were not as qualified as the employees retained, is pretextual. The plaintiffs rely upon evidence of age-based comments by the decision maker, evidence of preferential treatment for younger workers in the layoff process, and evidence that MTC's non-discriminatory reasons for selecting them for layoffs lack credence.
The critical factor in determining an unlawful employment practice is whether age made a difference to the employer in its employment decision. Ogden v. Bureau of Labor, 68 Or. App. 235, 245-46, 682 P.2d 802 (1984). In an unlawful discharge case, a plaintiff must establish that protected status was a substantial factor in his termination. See Seitz v. Albina Human Resources Ctr., 100 Or. App. 665, 675, 788 P.2d 1004 (1990). "The crux of the standard . . . is whether, in the absence of the discriminatory motive, the employee would have been treated differently."Hardie v. Legacy Health Sys., 167 Or. App. 425, 435, 6 P.3d 531 (2000). In a wrongful discharge case, the court explained "[w]hen the motive for a discharge is in dispute, and the evidence is subject to more than one interpretation, the resolution of the issue is properly left to the trier of fact." Hirsovescu v. Shangri-La Corp., 113 Or. App. 145, 149, 831 P.2d 73 (1992).
Oregon courts may look to federal cases for their instructive value in applying Oregon's discrimination law. Ogden, 68 Or. App. at 243. Generally, to establish a prima facie case of age discrimination under the federal law:
the plaintiff must show he was:
(1) a member of a protected class [age 40-70];
(2) performing his job in a satisfactory manner;
(3) discharged; and
(4) replaced by a substantially younger employee with equal or inferior qualifications.
Proof of the replacement element is not always required, however. Where the discharge results from a reduction in work force, the plaintiff may show "through circumstantial, statistical or direct evidence that the discharge occurred under circumstances giving rise to an inference of age discrimination." Such an inference can be established by showing the employer had a "continuing need for his skills and services in that his various duties were still being performed."Wallis v. J.R. Simplot Co., 26 F.3d 885, 891 (9th Cir. 1994) (citations omitted).
The evidence in the record before this court, viewed in the light most favorable to the plaintiffs, is sufficient for a trier of fact to find that 1) the plaintiffs were members of a protected class; 2) the plaintiffs were performing their jobs satisfactorily; 3) the plaintiffs were discharged; and 4) the plaintiffs' various duties were still being performed by substantially younger workers with equal or inferior qualities. Even where an employer has a legitimate business reason for laying off employees, the employer cannot use age as a substantial factor in deciding which employees to lay off and which employees to retain.Ogden, 68 Or. App. at 245-46; Seitz, 100 Or. App. at 675; and Hardie, 167 Or. App. at 433.
There is evidence in this record, when viewed in the light most favorable to the plaintiffs, from which to infer a discriminatory motive in their discharge. Although MTC retained some workers within the protected age group, there is evidence that MTC retained a younger, less qualified worker to perform the work that each of the plaintiffs had performed. There is evidence that Sweesy, the individual who was solely responsible for deciding which employees to lay off and which employees to retain, had made negative comments about older workers. For example, Renick states in his affidavit that he heard Sweesy say to workers a few months before the layoffs, "You're getting too old, we're going to have to lay some of you off." Renick Affidavit, p. 2; Plaintiffs' Concise Statement, p. 12. Plaintiffs Schofield and Thorne described similar remarks made by Sweesy in their depositions. These remarks are significant because Sweesy testified that he alone made the decisions as to who to retain and who to lay off with no written criteria and no written evaluations.
In addition, the plaintiffs have come forward with evidence which raises a question of material fact as to whether MTC's claims that the plaintiffs were not as qualified as those of the younger employees retained is pretextual. Sweesy described his decisions as "very subjective;" admitted that the plaintiffs were qualified gear locker people; and explained that he had no written criteria or evaluation to support his decision as to who was and who was not more qualified. Sweesy Deposition, p. 54; Plaintiffs' Concise Statement, p. 161. The resolution of whether, "in the absence of the discriminatory motive, the employee would have been treated differently" is a matter for the trier of fact. Hardie, 167 Or. App. at 435.
2. Workers' Compensation Discrimination
In the second claim for relief, plaintiffs Schofield, Jeffries and Marquardt contend that a reasonable jury could find that defendant MTC discriminated against them for invoking the workers' compensation system. The plaintiffs contend that they invoked the workers' compensation system in that all suffered on the job injuries; filed workers' compensation claims; and had taken time off work due to injuries. The plaintiffs contend that there is evidence that their filing of workers' compensation claims was a substantial factor in MTC's decision to select them for layoff.
MTC contends that the plaintiffs cannot establish a causal link between their filing of workers' compensation claims and their layoffs. MTC contends that each of the plaintiffs filed their workers' compensation claims well before being laid off, and that too long a period of time elapsed for there to be a relation between the filing of the claim and the alleged retaliatory layoff. ORS 659.410 states:
It is an unlawful employment practice for an employer to discriminate against a worker with respect to hire or tenure or any term or condition of employment because the worker has applied for benefits or invoked or utilized the procedures provided for in ORS chapter 656 or of ORS 659.400 to 659.460 or has given testimony under the provisions of such sections.
The elements of a claim under ORS 659.410 are (1) that the plaintiff invoked the workers' compensation system; (2) that the plaintiff was discriminated against in the tenure, terms or conditions of employment; and (3) that the employer discriminated against the plaintiff because he invoked the workers' compensation system. Stanich v. Precision Body and Paint, Inc., 151 Or. App. 446, 457, 950 P.2d 328 (1997).
Plaintiff Schofield filed a workers' compensation claim in mid-1997 based upon burns that he sustained in a propane fire. Schofield returned to work in August of 1997. No further claims were filed prior to his layoff. Plaintiff Schofield was being seen by a doctor for bilateral carpel tunnel syndrome, and workers' compensation insurance activity was ongoing at the time of his layoff. Attachment A to Affidavit of Richard C. Busse, p. 36 (attached to Plaintiffs' Concise Statement of Material Facts in Dispute, pp. 50, 51).
Plaintiff Jeffries suffered several on the job injuries and filed claims for these injuries from 1994 through 1997. From February through May of 1998, plaintiff Jeffries saw a doctor ten times for treatment of a work injury and suffered a back injury on April 30, 1998.
Plaintiff Marquardt injured his right shoulder in 1995. He had surgery in 1996.
The issue is whether the finder of fact could conclude that the filing of workers' compensation claims by the plaintiffs was a substantial factor in the decision of MTC to lay off plaintiffs Schofield, Jeffries and Marquardt. The evidence must show a causal connection between the plaintiffs' filing workers' compensation claims and the May, 1998 layoffs of these three plaintiffs.
There is evidence in the record that the plaintiffs invoked the workers' compensation system while employed by defendant MTC; that Sweesy was pressured to reduce the job injuries; that Sweesy believed that older workers were more prone to injuries; and that Sweesy viewed plaintiffs Jeffries and Marquardt as prone to injury because of their age. In addition, there is evidence in the record, when viewed in the light most favorable to the plaintiffs, that younger, less qualified workers who had filed no workers' compensation claims were retained to do the work that the plaintiffs had been doing, and the plaintiffs were laid off. Viewing the evidence in the light most favorable to the plaintiffs, the court finds that there is a genuine issue of fact as to whether defendant MTC would have laid off these plaintiffs but for their decisions to file workers' compensation claims. The plaintiffs' ages and the filing of workers' compensation claims are interrelated in this case because there is evidence that Sweesy, defendant MTC's sole decision maker, believed that these issues were related.
CONCLUSION
The defendant's motion for summary judgment (#32) is denied.
O R D E R
IT IS HEREBY ORDERED that the defendant's motion for summary judgment (#32) is DENIED.