Aucutt v. Six Flags Over Mid-America, Inc.

Decision Date06 December 1994
Docket NumberNo. 4:93CV2097SNL.,4:93CV2097SNL.
Citation869 F. Supp. 736
PartiesMichael AUCUTT, Plaintiff, v. SIX FLAGS OVER MID-AMERICA, INC., Defendant.
CourtU.S. District Court — Eastern District of Missouri

Paul E. Ground, Quinn and Ground, Manchester, MO, for plaintiff.

Peter H. Harris, Associate, Paula Luepke, and Connie J. Schroeder, Bryan Cave, St. Louis, MO, for defendant.


LIMBAUGH, District Judge.

Plaintiff has filed suit alleging that he was terminated from his employment, as the result of a reduction-in-force management decision, on the basis of age and a disability in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. and the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. Plaintiff specifically alleges that he was selected for lay-off in October 1992 because he was 44 years old and had high blood pressure and a heart condition. This matter is before the Court on the defendant's motion for summary judgment (# 11), filed October 5, 1994. Responsive pleadings have been filed. This cause of action is set for trial on the Court's trial docket of December 5, 1994.

Courts have repeatedly recognized that summary judgment is a harsh remedy that should be granted only when the moving party has established his right to judgment with such clarity as not to give rise to controversy. New England Mut. Life Ins. Co. v. Null, 554 F.2d 896, 901 (8th Cir.1977). Summary judgment motions, however, "can be a tool of great utility in removing factually insubstantial cases from crowded dockets, freeing courts' trial time for those that really do raise genuine issues of material fact." Mt. Pleasant v. Associated Elec. Coop. Inc., 838 F.2d 268, 273 (8th Cir.1988).

Pursuant to Fed.R.Civ.P. 56(c), a district court may grant a motion for summary judgment if all of the information before the court demonstrates that "there is no genuine issue as to material fact and the moving party is entitled to judgment as a matter of law." Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 488, 7 L.Ed.2d 458 (1962). The burden is on the moving party. Mt. Pleasant, 838 F.2d at 273. After the moving party discharges this burden, the nonmoving party must do more than show that there is some doubt as to the facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). Instead, the nonmoving party bears the burden of setting forth specific facts showing that there is sufficient evidence in its favor to allow a jury to return a verdict for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

In passing on a motion for summary judgment, the court must review the facts in a light most favorable to the party opposing the motion and give that party the benefit of any inferences that logically can be drawn from those facts. Buller v. Buechler, 706 F.2d 844, 846 (8th Cir.1983). The court is required to resolve all conflicts of evidence in favor of the nonmoving party. Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 210 (8th Cir.1976). With these principles in mind, the Court turns to an examination of the facts.

Plaintiff was hired by defendant Six Flags at the Six Flags theme park in Eureka, Missouri in April 1990. He was approximately 42 years old at the time he was hired. He began his employment as a seasonal officer, but quickly became a full-time uniform security officer. Prior to becoming employed at Six Flags, plaintiff had spent the majority of his adult life (from 1967 to 1990, with a six year break) in the Armed Forces. He had retired from the military as a Staff Sergeant when he began his employment with Six Flags. As a full-time uniform security officer, plaintiffs responsibilities were to enforce park rules and regulations in order to ensure the safety and security of guests, employees, and vehicles. His duties included building checks, water systems checks, patrolling the parking lots, in-park patrol, and gate duty. Inherent with his job was daily contact with employees and guests of the park.

In July 1991 plaintiff became ill while at work. After receiving medical attention at the park, plaintiff was transported to St. John's Hospital in Washington, Missouri. He was treated for high blood pressure and released several days later.1 Plaintiff returned to work two to three weeks later. He submitted a doctor's statement releasing him for work. The only limitation contained in the doctor's statement was a 25 lb. lifting restriction. Plaintiff did not inform Chilovich or other park personnel of any additional limitations or restrictions upon plaintiff's activities, especially with regard to his job. In March or April of 1992, plaintiff experienced chest pains while completing, with others from the Security Department, a "streams course" in Greensfelder Park. Although plaintiff has reservations about the course, he was told it was mandatory, and so he participated in the exercise. Plaintiff's Affidavit. Upon experiencing the chest pains, plaintiff took nitroglycerin tablets for relief and reported to First Aid. The last time plaintiff became ill at work was in the late summer of 1992. His supervisor contacted First Aid, and then plaintiff was sent home.

At the end of the 1992 season, Six Flags' General Manager2 William Haviluk reviewed the park's workforce and decided to implement an across-the-board reduction in personnel which affected several of the park's departments. He directed Mike Chilovich, Manager of Security, to restructure the Security Department with the goal of reducing manpower. Chilovich Affidavit. At this time, there were six (6) uniform security officers. After reviewing his department's workload, needs, and skill requirements, Chilovich consulted with Haviluk, and they decided that three (3) security positions (two sergeants and one uniform officer) would be eliminated as a part of the restructuring. Chilovich Affidavit.

Chilovich evaluated the persons in these job classifications according to their productiveness, attitude, and job skill. Chilovich Affidavit. In reviewing the uniform security officers, Chilivich concluded that plaintiff ranked the lowest in terms of attitude, work style, and productiveness. Chilovich Affidavit. Plaintiff's job performance evaluations consistently ranked him as performing the tasks of his position satisfactorily; however, he was repeatedly counseled regarding his "militaristic" manner in dealing with the public and his negative attitude towards management. Chilovich Affidavit; Defendant's Exhibits C and D. In February 1992, plaintiff had been suspended for refusing to attend a mandatory staff meeting. He was counseled about his refusal to attend the meeting as well as his continued negative work attitude and not being "guest-friendly". He was specifically told by Chilovich to improve his attitude, comply with company policies and philosophies, and to become a "team player" or risk losing his job. Defendant's Exhibit E.

Chilovich recommended plaintiff for lay-off in October 1992 and Haviluk concurred. At the time of his lay-off, plaintiff was approximately 45 years old and the oldest uniform security officer. Eight months after his lay-off, following the termination of another uniform security officer, a long-term employee of defendant's was transferred into the Security Department as a uniform security officer. This person was younger than 40 years old at the time of the transfer.

Plaintiff contends that he was selected for lay-off due to his age and disability. Defendant argues that plaintiff was selected for lay-off solely because he continued to demonstrate a negative attitude towards management and refused to alter his "militaristic" approach to dealing with guests of the park.


An age discrimination case may proceed to trial in one of two ways: one way involves the use of direct evidence of age discrimination; the other way utilizes indirect methods of proof of age discrimination. Williams v. Valentec Kisco, Inc., 964 F.2d 723 (8th Cir.1992); Beshears v. Asbill, 930 F.2d 1348, 1353 (8th Cir.1991); Blake v. J.C. Penney, 894 F.2d 274, 278 (8th Cir.1990). When a plaintiff produces direct evidence, such as statements by decisionmakers clearly showing that age was a motivating factor in the employment decision; or at least significant circumstantial evidence showing a specific link between the discriminatory animus and the challenged employment decision, the burden-shifting standards established by Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), come into play. Stacks v. Southwestern Bell Yellow Pages, 996 F.2d 200, 201 n. 1 (8th Cir. 1993); Beshears, at 1353. In the absence of such evidence, the guidelines set forth in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) are applicable. Johnson v. Minnesota Historical Society, 931 F.2d 1239, 1242-43 (8th Cir. 1991); Halsell v. Kimberly-Clark, 683 F.2d 285, 289 (8th Cir.1982), citing, Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981), cert. den., 459 U.S. 1205, 103 S.Ct. 1194, 75 L.Ed.2d 438 (1983).

In the instant case, the plaintiff has provided the Court with no direct evidence of age discrimination. He has offered no statements by anyone directly involved in the decision to terminate his employment which could be reasonably construed as delineating age as the motivating factor for the decision. He has presented the Court with no documentation that directly evidences age as the motivating factor behind the decision to terminate his employment. He has failed to produce any circumstantial evidence which specifically links consideration of his age to his selection for lay-off. Plaintiff's only "factual" basis...

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