Amburgey v. Corhart Refractories Corp., Inc.

Citation936 F.2d 805
Decision Date26 July 1991
Docket NumberNo. 90-1551,90-1551
Parties56 Fair Empl.Prac.Cas. 809, 56 Empl. Prac. Dec. P 40,885 Hiram AMBURGEY, Plaintiff-Appellant, v. CORHART REFRACTORIES CORPORATION, INC., Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Karl R. Steinberger, Bryant, Colingo, Williams & Clark, Pascagoula, Miss., for plaintiff-appellant.

William T. Reed, Pascagoula, Miss., Mary Ann Main, Jon L. Fleischaker, Wyatt, Tarrant & Combs, Louisville, Ky., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before BROWN, SMITH and WIENER, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

The appellant, Hiram Amburgey, appeals from summary judgment for his former employer, Corhart Refractories, in this action under the Age Discrimination in Employment Act. 1 Because there is no evidence giving rise to any genuine issue of material fact such that a factfinder could reasonably find that the company discriminated against Amburgey on the basis of his age in failing to transfer him when it closed its factory, we affirm the district court's summary judgment.

The Story

Viewed in the light most favorable to Amburgey, the evidence reveals the following. On January 4 or 5, 1987, Corhart announced that it would close its Pascagoula, Mississippi plant on July 1, 1987. The plant's work force included 34 salaried and 90 hourly employees. Between December of 1986 and August of 1987, the company transferred five salaried employees to Louisville, Kentucky and Buckhannon, West Virginia. The company terminated 119 other employees at varying times between the January announcement and the July 1 closing. Shortly before the July 1 plant closing, one more position in Buckhannon was filled, initially by a young ("thirty-something") transferee from Pascagoula. That person changed his mind after a few days in Buckhannon, and the position was filled by promoting a Buckhannon employee, also "thirty-something," effective July 1.

Amburgey, a 49-year-old finishing foreman, was among those terminated. His termination was effective April 15, 1987, after 28 continuous years with the company. Amburgey's affidavit showed that he was qualified for three of the six jobs initially filled by Pascagoula transferees--supervisory positions in the finishing and maintenance departments. Three other affiants, including two of the transferred employees and the company's general manager, swore that Amburgey, having served the company as a maintenance supervisor for four years and a finishing supervisor for approximately ten years, was qualified for the positions of finishing shift supervisor or maintenance supervisor. The company disputes that Amburgey was qualified for the maintenance positions. Looking at the evidence in the light most favorable to Amburgey for summary judgment purposes, we assume that he was qualified for the maintenance positions as well as the finishing position.

The three positions Amburgey contends he was qualified for were filled by Pascagoula transferees Floyd "Doc" Gillespie, finishing shift supervisor, Louisville; Daniel Raisor, maintenance supervisor, Louisville; and Garland Weaver, maintenance supervisor, Buckhannon. Amburgey offered evidence that all of these persons had less tenure with the company than he.

Two of the three positions for which Amburgey asserts he was qualified were filled by persons in the protected age group; 2 Gillespie was 49, Raisor 45, and Weaver 35. Furthermore, four of the six transferees were in the protected age group: Gillespie-49, Raisor-45, Hacy Green-45, and Gordon Stanley-48. Brenda Shelton, age 37, was made customer service supervisor in Louisville, a position for which Amburgey admittedly has no qualifying background, and Weaver was 35. The transfers were effective as follows. Gillespie was transferred December 1, 1986, before the impending plant closing was generally announced. Stanley was transferred April 28, 1987; Shelton, May 25, 1987; Raisor, June 1, 1987, and Green, August 1, 1987. Weaver was transferred from Pascagoula on a date unspecified in the record, during the summer of 1987, before the July 1 plant closing, to the position of maintenance supervisor of the Buckhannon facility. Amburgey was also considered for the Buckhannon maintenance supervisor position during that summer, well after his last day of employment with the company, April 15. Weaver was a shift foreman in the Pascagoula maintenance department--a position higher in the hierarchy than Amburgey's. Weaver quit in three or four days and returned to Pascagoula. The company reconsidered Amburgey in the summer of 1987, well after his last day of work in April, but filled the position by promoting a 36-year-old Buckhannon-based training supervisor, Tim Brannon, effective July 1.

The undisputed fact that Amburgey was considered to fill the position filled first in the summer by Weaver and then July 1 by Brannon supports Amburgey's assertion in his affidavit that he was advised on or near April 15 when he left the company to "keep in touch" for the purpose of checking on possible transfers for which the company promised he would be considered. The company, he said,

"implied even though the plant in Pascagoula had been scheduled for shutdown, they were continuing to work for openings in other plants in which I might be placed. As a matter of fact, Mr. [Robert] Ayotte told me to keep in touch with him which I did, and after the date of my termination on April 15, 1987."

Ayotte, Corhart's president and CEO, acknowledged that he told Amburgey to "stay in touch," and that Amburgey called in the fall of 1987, asked about jobs, and was told that there were none. Amburgey's affidavit went on to say that pursuant to the instruction to stay in touch, "I contacted Mr. Ayotte in November of 1987 when he informed me that Corhart just did not have anything for me."

The undisputed evidence that the company continued to consider Amburgey for transfer after April 15, including consideration for the position filled by Tim Brannon on July 1, viewed in the light most favorable to Amburgey constitutes summary judgment evidence supporting i) his understanding of the instruction to stay in touch; ii) the company's acceptance of his claim that he was eligible to be considered as possible transfers opened up; and iii) his contention that the time of the November conversation was when he first had notice that he had no chance for a transfer position.

The company contends that Amburgey was not qualified, or was less qualified than those selected for the three positions, partly because of poor interpersonal skills exemplified in part by an incident where he allegedly offered to settle a dispute with a subordinate by fighting it out on the back dock. Amburgey and the other employee both stated there was no such incident. Both did acknowledge, however, that the two had some sort of interpersonal difficulty, that Amburgey asked to discuss the matter with the employee outside the work environment, and that the employee complained to a superior about the problem.

Amburgey also stated that he was told that his long seniority and consequent high level of benefits affected the company's decision to terminate him in April of 1987 rather than letting him stay until the facility closed in July. The company denies this assertion.

Amburgey filed his charge of discrimination with the EEOC on March 8, 1988, nearly eleven months after his last day of work, April 15, 1987, and 14 months after the January, 1987 announcement that the plant would close, but less than 180 days after the November, 1987 notice from Ayotte that there was no chance he would be transferred. By letter dated April 28, 1988, the EEOC notified Amburgey of its finding that the evidence did not establish age discrimination. He filed suit in federal court on April 12, 1989, more than two years after the January, 1987 notice of the plant closing, but less than two years after his last day of work on April 15, 1987, and less than two years after the November, 1987 statement notifying him that he would not be transferred.

Below

The district court granted summary judgment for Corhart, holding that although Amburgey was in the protected age group and was terminated, he had raised no genuine issues of material fact; he had not established a prima facie case for a reduction-in-force age discrimination claim; and he had failed to timely file his claim with the EEOC or file suit in federal court. The court, on uncontroverted evidence specifically determined that others within the protected age group were retained and transferred, and that there was no issue of fact that as to those not within the protected group, the employer was entitled to determine that they were better qualified than Amburgey.

Standard of Review for Summary Judgment

Summary judgment is reviewed de novo, under the same standards the district court applies to determine whether summary judgment is appropriate. 3 Summary judgment of course is proper when viewing all the evidence in the light most favorable to the non-movant, 4 "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." 5

On a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." 6 To defeat a defendant's motion for summary judgment, "there must be evidence on which the jury could reasonably find for the plaintiff. The judge's inquiry therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict." 7

Limitations

Because we affirm on the merits, we need spend little time on Amburgey's contention that the ADEA's statute of limitations, 8 ] should have been equitably tolled. The ADEA requires a plaintiff to file a charge ...

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