Bessler v. City of Tempe
| Decision Date | 22 July 2021 |
| Docket Number | CV-19-04610-PHX-MTL |
| Parties | Donald Bessler, Plaintiff, v. City of Tempe, et al., Defendant. |
| Court | U.S. District Court — District of Arizona |
In this case, Plaintiff Donald Bessler, the former Public Works Director of the City of Tempe (“Tempe”), claims he was let go in retaliation for filing a charge of age discrimination. Tempe, in contrast, asserts it separated Bessler because of his job performance. Before the Court are Tempe's Motion for Summary Judgment (Doc. 100), the parties' cross-motions for summary judgment on Tempe's affirmative defense of mitigation of damages (Docs. 84; 100), and Bessler's Daubert Motion to exclude or limit the testimony of Tempe's expert witness (Doc. 85). The Court rules as follows.
Bessler, 62 years old, was employed as the Director of Tempe's Public Works Department (“PWD”) from August 2, 2010 to November 2, 2018. As the Director of the PWD, Bessler oversaw four divisions: water utilities, field operations, transportation, and engineering. (Doc. 94 at 3.) Although there were some concerns regarding Bessler's leadership and management performance, Bessler never received any formal discipline during his employment with Tempe. (Docs. 100 at 3; 101 at 2.) At a certain point during his employment Bessler's relationship with Tempe's City Manager, Andrew Ching, began to deteriorate. (Doc. 101 at 3.) Bessler claims Ching regularly criticized and belittled him during staff meetings in front of other employees. (Id.) Bessler asked Ching why, in his opinion, he treated him disrespectfully at staff meetings. (Id.) According to Bessler, Ching said it was because he was the most “experienced” employee. (Doc. 100-4 at 39.) Bessler also claims he complained about Ching's conduct to the Deputy City Manager, Steven Methvin, who similarly explained Ching treated Bessler differently because of his experience. (Doc. 101 at 3.) Though Bessler admits Methvin did not use the word “age, ” Bessler claims he told Methvin that experience is acquired through age. (Id.)
On September 6, 2018, Methvin met with Bessler and expressed concerns over Bessler's job security. (Docs. 100 at 4; 101 at 4.) The parties dispute the specific interactions during this meeting. (Doc. 101 at 5.) Methvin claims Bessler said he wanted to leave his job and only needed a severance package to get to retirement. (Doc. 100 at 4.) Methvin also claims he told Bessler to consider terms for a severance package. (Id. at 5.) In contrast, Bessler claims he told Methvin he was worn down, but never stated he wanted to leave his job. (Doc. 101 at 5.) Bessler testified he told Methvin that if he were to leave, he would need to figure out a way to retire with 10 years of service for pension benefits with the Arizona State Retirement System (“ASRS”). (Id.)
On September 10, 2018, Bessler, without telling anyone at Tempe, contacted the Equal Employment Opportunity Commission (“EEOC”) to file a charge of discrimination. (Doc. 101-6 at 2.) Bessler told an EEOC investigator Ching said he treated Bessler differently because of his experience. (Id. at 4.) Bessler also told the EEOC investigator he thought experience was a proxy for his age. (Id.) The following day, Bessler sent the EEOC a letter explaining Ching had created a hostile work environment by belittling and harassing him. (Doc. 100-3 at 15.) Bessler, again, alleged that Ching treated him this way because he was the most experienced. (Id.)
Also on September 10, 2018, Ching, Methvin, and the other Deputy City Manager met amongst themselves to discuss Bessler's employment. (Doc. 100 at 5.) During this meeting, they agreed they should separate Bessler because of his expressed desire to leave and their previous concerns over his leadership and management performance. (Id.) Ching instructed Methvin to reconnect with Bessler to explore Bessler's mutually acceptable exit. (Doc. 100-2 at 59.) Methvin claims he attempted to meet with Bessler to discuss separation on multiple occasions between September 10 and September 24, 2018. (Doc. 100 at 5.) Bessler claims, however, he interacted with Methvin multiple times during this period and Methvin never discussed separation with him. (Doc. 101 at 7.)
Bessler and his wife met with Methvin and Tempe's City Attorney, Judith Baumann, on September 24, 2018. (Docs. 100 at 6; 101 at 7.) During this meeting Bessler proposed an exit plan, whereby he would announce his retirement in January 2019 with a separation date of April 2019. (Doc. 101 at 8.) In turn, Bessler requested one year's severance payment, health insurance, and credit for 14 months of service, which would allow him to reach 10 years of service for pension purposes. (Id.) During this conversation, Bessler, for the first time, informed Methvin and Baumann he had filed an EEOC charge against Tempe. (Docs. 100 at 6; 101 at 8.) According to Ms. Bessler, the atmosphere in the room completely changed and it got very quiet at that point in the conversation. (Doc. 101 at 8.) Neither Methvin nor Baumann mentioned a decision to separate Bessler during this meeting. (Id.) Instead, Methvin and Baumann told Bessler they would inform Ching of his demands. (Doc. 100 at 7.)
Although Bessler told Methvin and Baumann he had filed the EEOC charge on September 24, 2018, he actually filed it a day later, on September 25, 2018. (Doc. 100-4 at 37.) Bessler alleged age, sex, and race discrimination and retaliation. (Id.) The charge highlighted Ching's alleged explanation that he treated Bessler differently because of his experience. (Id. at 39.) Bessler also alleged that Ching's reliance on experience was a proxy for age discrimination. (Id.)
On September 26, 2018, Methvin and Baumann met with Bessler and extended a counteroffer regarding his severance package. (Docs. 100 at 8; 101 at 8.) Baumann then told Bessler his employment with Tempe would end in 2018. (Id.) Methvin and Baumann also explained they interpreted Bessler's statements during the September 6, 2018 meeting as a resignation. (Id.) Bessler disagreed and stated the September 6, 2018 meeting ended with him agreeing to work until he reached his 10-year anniversary with Tempe. (Doc. 101 at 9; 101-6 at 6.) Bessler, Methvin, and Baumann continued their negotiations of a severance package on October 11, 2018. (Doc. 100 at 8.)
On October 17, 2018, Methvin and Baumann informed Bessler his last day of physical employment with Tempe would be November 2, with an effective separation date of November 9. (Id.) Two days later, Bessler filed a second charge with the EEOC alleging Tempe retaliated against him for filing his initial charge of discrimination. (Doc. 100-5 at 4.)
Following his separation, Bessler submitted eleven job applications and participated in five interviews. (Doc. 84 at 2.) On November 27, 2018, Bessler accepted an offer of temporary employment with the City of Glendale, Arizona. (Id.) Bessler's temporary employment contract with the City of Glendale has been renewed twice. (Id. at 3.) During this time, Bessler was appointed as the Chief Capital Improvement Officer and has served as the Acting Director of Engineering, supervising the City of Glendale's Engineering Department. (Id.)
On July 2, 2019, Bessler initiated this lawsuit against Tempe alleging age discrimination and retaliation under the Age Discrimination in Employment Act (“ADEA”). (Doc. 1.) Bessler later amended his Complaint, withdrawing the age discrimination claim. (Compl.) In its Answer, Tempe asserted an affirmative defense of failure to mitigate damages. (Doc. 16 at 6.)
Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine issue of material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party, ” and material facts are those “that might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). At the summary judgment stage, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [its] favor.” Id. at 255; see also Jesinger v. Nev. Fed. Credit Union, 24 F.3d 1127, 1131 (9th Cir. 1994) (“The court must not weigh the evidence or determine the truth of the matters asserted but only determine whether there is a genuine issue for trial.”).
“[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party opposing summary judgment must “cit[e] to particular parts of materials in the record” establishing a genuine dispute or “show[] that the materials cited do not establish the absence of . . . a genuine dispute.” Fed.R.Civ.P. 56(c)(1). This Court has no independent duty “to scour the record in search of a genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (internal quotations omitted).
Where as here, “parties submit cross-motions for summary judgment, each motion must be considered on its own merits.” Fair Hous. Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001) (citations and internal quotations omitted). The summary judgment standard operates differently depending on whether the moving party has the burden of proof. See Celotex Corp., 477 U.S. at 322-23. The party with the...
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