Opinion
No. 3:01-CV-1125-H
September 13, 2002
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant's Motion for Summary Judgment, filed July 8, 2002; Plaintiffs Response thereto, filed July 29, 2002; and Defendant's Reply, filed August 13, 2002. Also before the Court are Defendant's Objections to Plaintiffs Summary Judgment Evidence and Motion to Strike, filed August 13, 2002; and Plaintiffs Response, filed August 19, 2002. Upon review of the pleadings, briefs, and relevant authorities, the Court is of the opinion, for the reasons stated below, that Defendant's Motion for Summary Judgment should be GRANTED. Defendant's Objections to Plaintiffs Summary Judgment Evidence and Motion to Strike are DENIED as moot as the Court did not rely on the evidence to which there was objection.
I. BACKGROUND
This is an age discrimination case. Plaintiff was employed by the Defendant Atrium Companies, Inc. ("Atrium"). Atrium produces aluminum and vinyl windows and patio doors for the construction and remodeling markets. (Mot. at 3). Plaintiff worked for Atrium from April 1989 until August 1989 and again from June 1990 until he was terminated on August 10, 1999. (Mot. at 3). At the time of his termination he was age 59, and his position was maintenance supervisor for the Vinyl Division. (Response at 1).
Plaintiff and a fellow supervisor, Guy Hodges, developed a troubled relationship during the time they worked together beginning in the spring of 1998. (Compl. at 2). Plaintiff alleges that Hodges harassed him because of his age during this time. (Compl. at 2). Plaintiff further alleges that he reported this harassment to "management" at Atrium, and that Atrium did nothing to address the situation. (Compl. at 2).
On August 4, 1999 Plaintiff and Hodges were involved in a physical altercation involving a "belly bump and swing" in a shared work area. (Mot. at 5-6). Hodges reported the incident to Human Resources, claiming that Plaintiff had hit him in the face. (Mot. at 2). Both the Plaintiff and Hodges were suspended that day. (Mot. at 7). On August 10, 1999 both the Plaintiff and Hodges were terminated. (Mot. at 8). At the time of the termination Hodges was age 44. (Mot. at 3). Plaintiff contends that Atrium replaced him with a male "of about forty (40) years of age." (Resp. at 7).
Plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on March 13, 2000 charging Atrium with discrimination based on age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. (Compl. at 1). The EEOC issued Plaintiff a Notice of Right to Sue on March 21, 2001. Plaintiff filed his complaint in this Court on June 13, 2001.
Plaintiff asserts that Defendant violated the ADEA by unlawfully terminating him because of his age. (Compl. at 1). He further claims that he was unlawfully subject to a hostile work environment because of Hodges' harassment of him based on his age, and that the harassment was not remediated by Atrium. (Compl. at 2). In addition, he alleges that Atrium willfully and intentionally violated the ADEA. (Comp. at 2). Elements of a disparate treatment claim are mentioned in Plaintiffs Response, but this claim is not part of the original complaint, so will not be addressed. (Pl. Response at 7).
Defendant denies all claims against it. First, Defendant denies that Plaintiff was terminated due to his age. Defendant claims that both Plaintiff and Hodges were terminated because of their August 4, 1999 violations of Atrium's General Work Rule No. 33 which prohibits fighting (Mot. at 8, Def. Exh. B). The penalty for violating this rule is discharge. (Mot. at 7). Second, Defendant denies that Plaintiff was subjected to a hostile work environment based on his age while he was employed at Atrium. Defendant says that Hodges directly insulted Plaintiff only twice. (Mot. at 5, 7-8). Finally, Defendant denies that it willfully and intentionally violated the ADEA. (Reply at 13).
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where the facts and law as represented in the pleadings, affidavits and other summary judgment evidence show that no reasonable trier of fact could find for the nonmoving party as to any material fact. FED.R.CIV.P. 56; Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Innovative Database Systs. v. Morales, 990 F.2d 217 (5th Cir. 1993). "The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party's case." Lynch Properties, Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir. 1998) (citing Celotex, 477 U.S. at 322-25). If the movant fails to meet its initial burden, the motion must be denied, regardless of the nonmovant's response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
If the movant does meet its burden, the nonmovant must go beyond the pleadings and designate specific facts showing that a genuine issue of material fact exists for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998). A party opposing summary judgment may not rest on mere conclusory allegations or denials in its pleadings unsupported by specific facts presented in affidavits opposing the motion for summary judgment. FED. R. CIV. P. 56(e); Lujan, 497 U.S. at 888; Hightower v. Texas Hosp. Ass'n., 65 F.3d 443, 447 (5th Cir. 1995).
In determining whether genuine issues of fact exist, "[f]actual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that a controversy exists." Lynch, 140 F.3d at 625; see also Eastman Kodak v. Image Technical Services, 504 U.S. 451 (1992). However, in the absence of any proof, the Court will not assume that the nonmoving party could or would prove the necessary facts. Lynch, 140 F.3d at 625. A party must do more than simply show some "metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir. 1991).
III. ANALYSIS
A. Burden of Proof
Plaintiff sues for wrongful termination and hostile environment in violation of the ADEA. He also brings a claim of willful violation of the ADEA. The ADEA makes it unlawful for an employer to discharge, or otherwise to discriminate against an individual with respect to that person's compensation, terms, conditions, or privileges of employment, or to otherwise adversely affect the person's status as an employee, because of that person's age. 29 U.S.C. § 623 (a). See Evans v. City of Houston, 246 F.3d 344, 349 (5th Cir. 2001). The Supreme Court has established the McDonnell-Douglas burden shifting framework for Title VII cases of discrimination which can be proved only by circumstantial evidence. McDonnell-Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). This analysis has also been applied to ADEA cases. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120, S.Ct. 2097, 2106, 147 L.Ed.2d 105 (2000); see also Meinecke v. H R Block, 66 F.3d 77 (5th Cir. 1995).
Under the McDonnell-Douglas framework applied to the ADEA, in order to establish a prima facie case of employment discrimination a plaintiff must show that he: 1) was a member of the protected class (over age 40); 2) was qualified for his position; 3) was discharged or subject to an adverse employment action; and 4) was replaced by someone outside the protected class or someone substantially younger, or was otherwise discharged because of his age. See Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir. 1996); see also Bienkowski v. American Airlines, Inc., 851 F.2d 1503, 1505 (5th Cir. 1988); Skinner, 951 F. Supp. at 1314; O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996).
If the plaintiff establishes a prima facie case, an inference of discrimination is raised, and the burden then shifts to the defendant to articulate a legitimate non-discriminatory reason for its treatment of the plaintiff. See Bienkowski, 851 F.2d at 1505. See also P.V. Patel, M.D. v. Midland Mem'l. Hosp. and Med. Ctr., 298 F.3d 333, 342 (5th Cir. 2002). If the defendant does so, then the plaintiff must prove that the defendant's stated reasons are a pretext for discrimination by either showing that "a discriminatory reason more likely motivated the employer or . . . by showing that the employer's proffered reason is unworthy of credence." Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Reeves, 530 U.S. at 147-48 (clarifying that "it is permissible . . . to infer the ultimate fact of discrimination from the falsity of the employer's explanation.") (emphasis in original). Plaintiff retains the ultimate burden of persuasion. See Burdine, 450 U.S. at 256. It is under this scheme that the Court will analyze Defendant's assertions regarding Plaintiffs claims of employment discrimination.
B. Wrongful Termination
1. Prima Facie Case
Defendant argues that Plaintiff cannot establish a prima facie case of wrongful termination based on age discrimination. Both parties agree that Plaintiff, age 59 at the time of his termination, was a member of the class protected by the ADEA. (Def. Brief at 4; Compl. at 2). Defendant does not contend that Plaintiff was not qualified for his position. Both parties agree that Plaintiff was terminated. (Compl. at 2; Def. Brief at 4). In order to establish the fourth prong of its prima facie case on this issue, Plaintiff is required to provide summary judgment evidence that he was replaced by someone outside the protected class or a substantially younger person, or that he was otherwise discharged because of his age. Defendant contends that Plaintiff can prove neither of these.
Plaintiffs Original Complaint states that he was replaced by "a male of about forty (40) years of age." (Compl. at 2). It provides no further clarification of the identity or age of his replacement. Plaintiffs Response ("Brief in Opposition") asserts that he was replaced by "David Kelly, a younger male about 40 years of age." (Resp. at. 7). Nowhere in any of his filings does Plaintiff provide competent summary judgment evidence that he was replaced by David Kelly. In addition plaintiff presents no evidence that Kelly was substantially younger than Plaintiff.
Plaintiff point to three affidavits as proof that he was replaced by Kelly. The Price Affidavit does not mention Kelly. (Pl. App. at 65). Both the Lakey and Uptmor Affidavits mention Kelly, but neither offers proof that Kelly replaced Plaintiff. (Pl. App. at 67, 69). The Plaintiffs Discharge Questionnaire from the Texas Commission on Human Rights and the EEOC asserts that Kelly replaced Plaintiff but provides no proof. (Def. App. at 92).
The three affidavits to which Plaintiff points do not refer to Kelly's age. (Pl. App. at 65, 67, 69). Neither does Atrium's Payroll Change Notice Form for Clyde Lockhart (who Defendants assert replaced both Plaintiff and Hodges after their terminations) (Pl. App. at 76, Mot. at 4). Plaintiffs Discharge Questionnaire only estimates Kelly's age: "Age estimated at late 30s or early 40s." (Def. App. at 92).
According to the summary judgment standard described above, a plaintiff may not rely on "mere conclusory allegations . . . unsupported by specific facts" to establish his case. FED. R. CIV. P. 56(e); Lujan, 497 U.S. at 888; Hightower, 65 F.3d at 447. Plaintiff at all times bears the ultimate burden of persuasion. By these standards, Plaintiff has not met the first part of the prima facie burden on the fourth prong. Plaintiff has not shown either that he was replaced by a person who is not a member of the protected class or a substantially younger person.
Plaintiff may also prove the fourth prong by showing that he was "otherwise discharged because of his age." See Brown, 82 F.3d at 655. In his Complaint, Plaintiff asserts that he was terminated because of his age, but provides no summary judgment evidence. (Comp. at 2). In his Response, he again asserts that he was terminated because of age, but again he provides no summary judgment evidence. Plaintiff seems to argue that the Defendant somehow caused the altercation between Plaintiff and Hodges, by allegedly not responding to his complaints about Hodges. This, he argues, is proof that the Defendant terminated him because of his age. Plaintiffs argument confuses a claim for discriminatory termination with a claim for hostile environment. Nevertheless, Plaintiff cannot prevail on a claim for wrongful termination under the fourth prong given the lack of any competent summary judgment proof. Because Plaintiff has not provided competent summary judgment evidence for any aspect of the fourth prong of the prima facie case for the ADEA (e.g., no evidence that he was replaced by a nonmember of the protected class; no evidence that he was replaced by a substantially younger person; and, no evidence that he was terminated because of his age) the Court finds that Plaintiff has not established his prima facie case for discriminatory termination by the Defendant.
For evidence Plaintiff points to his own deposition and his own affidavit (both of which merely allege age harassment by Hodges), and the Affidavit of John Uptmor which does not discuss the reason for Plaintiffs termination. (Resp. at 9).
"The incident of August 4, 1999 would not have happened and Steele would not have been terminated but for the failure of Defendant's management to conduct a prompt and thorough investigation and implement remedial and disciplinary measures based thereon. Defendant is vicariously liable for its failure to act on this prohibited form of age discrimination (workplace harassment)." (Resp. at 2).
In addition, the Court finds that even if Plaintiff had established his prima facie case, he could not have prevailed under the burden of proof analysis used for ADEA discrimination cases. Under the McDonnell-Douglas framework if the Plaintiff establishes his prima facie case, the burden shifts to the Defendant to provide a legitimate nondiscriminatory reason for its actions. The Defendant must offer admissible evidence sufficient for the trier of fact to conclude that the plaintiff was fired for the reason stated. See Reeves, 530 U.S. at 143. In this case the Defendant claims it terminated Steele because of his violation of its Work Rule No. 33 against fighting, the punishment for which is termination. Defendant provides proof of the altercation including signed statements by Hodges and two witnesses. It also provides statements by Plaintiff that he knew that fighting was against Atrium's Work Rules and that he had violated these rules. (D. App. 4-5, 7-9, 75, 83). This evidence suffices to meet the Defendant's burden in the second stage of the McDonnell-Douglas analysis.
If the Defendant meets its burden, the burden shifts back to the Plaintiff to "prove by a preponderance of the evidence that the legitimate reason offered by the defendant [was] not its true reasons, but [was] a pretext for discrimination." Reeves, 530 U.S. at 143. In order to survive a motion for summary judgment a plaintiff must "proffer sufficient evidence of pretext to create a question of fact for the jury" that age discrimination was the real reason for his termination. Patel, 298 F.3d at 342. This issue has been addressed above in the Court's analysis of the fourth prong of the Plaintiffs prima facie case; the Plaintiff has provided no competent summary judgment evidence that the Defendant's reason for termination is pretextual, or that he was terminated because of his age.
Therefore, because the Plaintiff did not meet its burden to prevail on his prima facie case, and because even if he had, he could not sustain his burden in the third stage of the McDonnell-Douglas analysis to raise a question of fact that age discrimination was the real reason for his termination, Defendant's Motion for Summary Judgment is granted on this ground.
C. Hostile Work Environment
Claims for employment discrimination based in hostile work environments arose out of the context of racial and sexual harassment claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The Fifth Circuit has not addressed whether a claim of hostile work environment is available under the ADEA, but several courts in the Northern District have found it to be so. See Lacher v. West, 147 F. Supp.2d 538, 542-43 (N.D. Tex. 2001); see also Scally v. Burlington Northern and Santa Fe Railway Co., WL 1577626 (N.D. Tex. 2001). The Second and Sixth Circuits have also found that hostile work environment claims are available under the ADEA. See Brennan v. Metropolitan Opera Ass'n, 192 F.3d 310, 318 (2d Cir. 1999); Crawford v. Medina Gen. Hosp., 96 F.3d 830, 834 (6th Cir. 1996).
To defeat a summary judgment motion for hostile environment based on harassment due to age a plaintiff must create a fact issue on each of the elements of a hostile work environment claim. These elements include: 1) he belongs to a protected group; 2) he was subject to unwelcome harassment; 3) the harassment complained of was based on [membership in the protected group]; 4) the harassment complained of affected a term, condition, or privilege of employment; and 5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action. Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002) (stating elements for hostile environment claims based on race); see also Lacher, 147 F. Supp.2d at 543 (applying these elements to hostile environment claims based on age).
Plaintiffs claims of a hostile work environment consist of his allegations that "a younger male employee . . . continuously harassed him because of his age" from 1998 until 1999 (Comp. at 2) and that he "took his complaints to his management and nothing was done to stop the discriminatory treatment." (Comp. at 2). In his deposition testimony and affidavit Plaintiff states that Hodges called him "old" along with other derogatory epithets "several times" and that Plaintiff had reported Hodges' harassment to human resources. (Pl. App. 21-33, 59, 61, and 62). As further evidence for these claims Plaintiff points to two affidavit statements. The first is from John Uptmor (a former Atrium employee) regarding Uptmor's reports to supervisors at Atrium of "Guy Hodge's harassment of W.D. Steele, Jr." The second is from Philip J. Rhodes (a supervisor at Atrium) regarding "accusations of misconduct" Plaintiff and Hodges made against each other to Rhodes. Neither of these affidavits, however, point to age as a factor in the "harassment" or "accusations." (Pl. App. at 70; Def. App. at 3). Although Plaintiffs evidence for his claims is weak, the Court will give him the benefit of the doubt, and analyze their sufficiency to survive a summary judgment motion.
The Supreme Court has held that for harassment to be actionable it must be sufficiently severe or pervasive "to alter the conditions of [the victim's] employment and create an abusive working environment." See Mentor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986) (a case on sexual harassment). In determining whether a hostile work environment exists, courts must consider "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Ramsey, 286 F.3d 264, 268 (5th Cir. 2002) (a hostile environment case based on race) quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 367, 125 L.Ed.2d 295 (1993) (a case based on sexual harassment). In Shepherd v. Comptroller of Pub. Accounts of the State of Tex., 168 F.3d 871, 874 (1999), a case on sexual harassment, the Fifth Circuit reiterates that "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the `terms and conditions of employment.'" quoting Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2283, 141 L.Ed.2d 662 (1998).
Plaintiffs claim rests on "several" comments that were offensive to him made by Hodges over a period of two years. (Pl. App. at 23). The fact that these comments were offensive is not enough to substantiate Plaintiffs claim of a hostile work environment. Ramsey, 286 F.3d at 268. The "mere utterance of an . . . epithet which engenders offensive feelings in an employee does not sufficiently affect the conditions of employment." Harris, 510 U.S. at 21. In addition, the offensive comments must have occurred more than several times. In Shepherd, 168 F.3d at 874, the Fifth Circuit found no hostile work environment for a female employee based on a male co-worker's infrequent offensive sexual comments made over a period of several years.
A hostile environment is one which "unreasonably interferes with an employee's work performance." Ramsey, 286 F.3d 264, 268 (5th Cir. 2002). Plaintiff does not point to any evidence that his work performance was affected by Hodges' comments to him. In fact, he testified that he felt he was doing a good job, that his department was running smoothly and, that he intended to remain at Atrium until he retired. (Def. App. 62-63 and Def. Supp. App. 4-5). Thus, even if Plaintiffs claims of harassment by Hodges were found to be true by the evidence he presented, they could not be found to be severe or frequent enough to have created a hostile work environment for Steele.
The Court does not rule on whether a claim of hostile work environment is proper under an ADEA claim, but finds that the Plaintiff could not support this claim if it was. The Court finds that Plaintiff has not sustained the prima facie case for a hostile work environment under the Title VII standards which have been applied to the ADEA. Defendant's Motion for Summary Judgment is granted on this ground.
D. Willful Violation of the ADEA
Plaintiff claims that Atrium willfully violated the ADEA. (Comp. at 2). Under the ADEA a violation is willful if "the employer knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA." Tyler v. Union Oil Co. of California, 2002 WL 1969678 (5th Cir. 2002) quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S.Ct. 1701, 1708, 123 L.Ed.2d 338 (1993). In this case, Plaintiff has sustained neither its claim that Atrium violated the ADEA by unlawfully terminating him, nor his case that he was subjected to a hostile work environment based on his age, therefore, he has not sustained his claim of willful violation. Defendant's Motion for Summary Judgment is granted on this ground.
IV. OBJECTIONS AND MOTION TO STRIKE
Defendant's Motion to Strike is denied as moot as the Court did not rely on the materials objected to as Summary Judgment evidence.
V. CONCLUSION
For the reasons stated above, Defendant's Motion for Summary Judgment is GRANTED and Defendant's Motion to Strike is DENIED.
SO ORDERED.