Stults v. Conoco, Inc., 95-10167

• Decision Date: 29 February 1996
• Docket Number: No. 95-10167,95-10167
• Parties: 70 Fair Empl.Prac.Cas. (BNA) 732, 67 Empl. Prac. Dec. P 43,925 Rommie STULTS and Stephen Wallace, Plaintiffs-Appellants, v. CONOCO, INC. and Brad Burmaster, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 651

76 F.3d 651

70 Fair Empl.Prac.Cas. (BNA) 732,

67 Empl. Prac. Dec. P 43,925

Rommie STULTS and Stephen Wallace, Plaintiffs-Appellants, v. CONOCO, INC. and Brad Burmaster, Defendants-Appellees.

No. 95-10167.

United States Court of Appeals, Fifth Circuit.

Feb. 29, 1996.

David S. Jones, Stradley & Wright, Dallas, TX, Pamela M. Roach, Dallas, TX, for Rommie Stults, Stephen Wallace.

Tonya Elise Chatton, E.I. DuPont de Nemours and Company, Houston, TX, for Conoco Inc.

Kenneth Royce Barrett, Michael Brett Burns, Akin, Gump, Strauss, Hauer and Feld, Dallas, TX, for Brad Burmaster.

Appeal from the United States District Court for the Northern District of Texas.

Before DAVIS and PARKER, Circuit Judges, and BUNTON, District Judge. ^*

ROBERT M. PARKER, Circuit Judge:

Plaintiffs appeal the district court's granting of defendants' motions for summary judgment. Finding no error, we affirm.

I. FACTS

Plaintiffs Stults and Wallace were employees of Defendant Conoco, Inc. While employed by Conoco, plaintiffs each held the position of store manager. Plaintiff Stults was terminated on or around May 25, 1991 by his immediate supervisor, district manager Connie Lutton. Plaintiff Wallace resigned from his position with Conoco on or around July 14, 1992, after a meeting with his immediate supervisor, district manager Danise Chatham. At all relevant times, Lutton and Chatham were supervised by defendant Brad Burmaster, former regional retail operations manager for Conoco. Burmaster approved the decisions to terminate Stults and Wallace.

In November 1993, the plaintiffs filed this action for age discrimination and intentional infliction of emotional distress in the District Court of Tarrant County, Texas. ¹ Defendant Conoco removed the action to U.S. District Court on the basis of federal question jurisdiction. Defendant Burmaster was served and made an appearance in the action subsequently.

On November 14, 1994, Burmaster filed a motion for summary judgment, asserting that he could not be held individually liable under the Age Discrimination in Employment Act ("ADEA"), and that there was no evidence of extreme and outrageous conduct or severe distress. On January 18, 1995, the district court entered an order granting Burmaster's motion for summary judgment in its entirety.

On December 8, 1994, Conoco filed a motion for summary judgment, asserting that plaintiffs were terminated for non-discriminatory reasons and that there was no evidence of pretext, and that there was no evidence of extreme and outrageous conduct or severe distress. On January 19, 1995, the district court entered an order granting Conoco's motion for summary judgment, noting that plaintiffs failed to file a response to Conoco's motion. Plaintiffs timely filed this appeal.

II. DISCUSSION

We review a district court's grant of summary judgment de novo, applying the same standard as did the district court. Neff v. American Dairy Queen Corp., 58 F.3d 1063, 1065 (5th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 704, 133 L.Ed.2d 660 (1996). Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions of file, together with the affidavits, if any, 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). A "dispute about a material fact is 'genuine' ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). For purposes of the summary judgment determination, all fact questions are viewed in the light most favorable to the nonmovant. Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1078 (5th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 532, 133 L.Ed.2d 438 (1995). But only materials which were included in the pretrial record and that would have been admissible evidence may be considered. See Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.1987). Questions of law are always reviewed de novo. Gulf States Ins. Co. v. Alamo Carriage Serv., 22 F.3d 88, 90 (5th Cir.1994).

A. AGE DISCRIMINATION IN EMPLOYMENT

1. INDIVIDUAL LIABILITY UNDER THE ADEA

The district court granted summary judgment in favor of Burmaster on plaintiffs' age discrimination claims, holding that the ADEA provides no basis for relief against supervisory personnel in their individual capacities. The plaintiffs contend that this holding was in error. We disagree.

The ADEA makes it unlawful for an employer to discriminate against an individual on the basis of age. 29 U.S.C. § 623(a). Under the ADEA, the term "employer" means a person "engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year...." 29 U.S.C. § 630(b). "Employer" also includes "any agent of such a person...." Id. The plaintiffs argue that the inclusion of the employer's agents in the definition of "employer" indicates that Congress intended to allow claims against supervisory personnel, like Burmaster, in their individual capacities.

The Fourth Circuit and the Ninth Circuit have already considered and rejected this argument. Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510-11 (4th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 666, 130 L.Ed.2d 600 (1994); Miller v. Maxwell's International Inc., 991 F.2d 583, 587-88 (9th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1049, 127 L.Ed.2d 372 (1994). The Fourth Circuit noted that "[s]uch personal liability would place a heavy burden on those who routinely make personnel decisions for enterprises employing twenty or more persons, and we do not read the statute as imposing it. Instead, we read § 630(b) as an unremarkable expression of respondeat superior--that discriminatory personnel actions taken by an employer's agent may create liability for the employer." Birkbeck, 30 F.3d at 510. The Ninth Circuit observed that

[t]he statutory scheme itself indicates that congress did not intend to impose individual liability on employees. Title VII limits liability to employers with fifteen or more employees, and the ADEA limits liability to employers with twenty or more employees, in part because Congress did not want to burden small entities with the costs associated with litigating discrimination claims. If Congress decided to protect small entities with limited resources from liability, it is inconceivable that Congress intended to allow civil liability to run against individual employees.

Miller, 991 F.2d at 587.

Rejecting a similar argument, this court recently held that an individual supervisor who does not otherwise qualify as an employer cannot be held liable for a violation of Title VII. Grant v. Lone Star Co., 21 F.3d 649, 651-53 (5th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 574, 130 L.Ed.2d 491 (1994). In doing so, we cited for support the Ninth Circuit's reasoning in Miller. 21 F.3d at 652. The statutory scheme of Title VII at issue in Grant is virtually identical to the statutory scheme of the ADEA at issue here. Both acts limit liability to employers with more than a minimum number of employees, and both define "employer" to include agents of the employer. The plaintiffs have directed us to no salient distinction between the ADEA and its closest statutory kin, and we have found none. Therefore, we find that this Court's reasoning in Grant applies with equal force in the present context and hold that the ADEA provides no basis for individual liability for supervisory employees.

2. ADEA CLAIMS AGAINST CONOCO, INC.

The district court granted summary judgment in favor of Conoco on all of plaintiffs' claims, noting that plaintiffs had not filed a response to Conoco's Motion for Summary Judgment at the time the motion was granted. The party moving for summary judgment bears "the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir.) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)), cert. denied, 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 59 (1992). However, the movant does not need to negate the elements of claims on which the nonmoving parties would bear the burden of proof at trial. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc); Skotak, 953 F.2d at 913.

The movant's burden is "only [to] point out the absence of evidence supporting the nonmoving party's case." Skotak, 953 F.2d at 913 (quoting Latimer v. Smithkline & French Laboratories, 919 F.2d 301, 303 (5th Cir.1990)). "If the moving party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant's response. If the movant does, however, meet this burden, the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir.1995); Little, 37 F.3d at 1075. To meet this burden, the nonmovant must "identify specific evidence in the record, and articulate the 'precise manner' in which that evidence support[s] [its] claim[s]." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994). As to material facts on which the nonmovant "will bear the burden of proof at trial, the nonmovant must come forward with evidence which would be sufficient to enable it to survive a motion for directed verdict at trial." Skotak, 953 F.2d at 913. "If the nonmoving party fails to meet this burden, the motion for summary judgment must...