Burgess v. A.M. Multigraphics a Div. A.M. Intern.
| Decision Date | 13 February 1997 |
| Docket Number | No. 4:95CV2106 TCM.,4:95CV2106 TCM. |
| Citation | 989 F.Supp. 1012 |
| Parties | Philip J. BURGESS, Plaintiff, v. A.M. MULTIGRAPHICS, A DIVISION, OF A.M. INTERNATIONAL, INC., a Delaware corporation, Defendant. |
| Court | U.S. District Court — Eastern District of Missouri |
David M. Heimos, St. Louis, MO, for Plaintiff.
Robert J. Isaacson, Bearden and Breckenridge, St. Louis, MO and Susan M. Benton-Powers, Sonnenschein and Nath, Chicago, IL, for Defendant.
This action is before the Court1 on the motion of A.M. Multigraphics ("Defendant") for summary judgment in the two-count complaint filed by Philip J. Burgess ("Plaintiff") alleging that he was terminated from his job and not offered an alternative position because of his age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, and the Missouri Human Rights Act ("MHRA"), Mo. Rev.Stat. §§ 213.010-.137. [Doc. 23]
The following facts are undisputed.
Defendant manufactures and distributes high speed offset duplicators and offset presses. (Pl.'s Ex. 29.) Plaintiff was hired as a branch sales manager for Defendant in 1985 by Andrew R. LePeilbet, who was then Defendant's district manager for Southern California. (Pl.'s Depo. at 51-57.) Plaintiff resigned in September 1988. He was hired again in May 1989, at the age of fifty-one years, as Defendant's regional manager for its Midwest region, an area including St. Louis and Kansas City, Missouri; Springfield, Illinois; and Omaha, Nebraska. (Id. at 59-72.)
Plaintiff became a district manager in 1991, with reduced responsibilities and with no responsibility for service. (Id. at 77-79.) He reported to Kent Bacon, the Central Regional Manager, who, in turn, reported directly to LePeilbet. (LePeilbet Depo. at 101-103; LePeilbet Aff. at ¶¶ 3 and 8.) The next year, Plaintiff's responsibilities were once again reduced. He lost responsibility for the Omaha and Kansas City areas. (Pl.'s Depo. at 100-101.) Richard Byerly, a sales representative, reported to Plaintiff, as did one other equipment sales representative, three sales representatives, and a supply sales representative, John Barton. (LePeilbet Aff. at ¶ 13.)
In 1994, Defendant reorganized. Positions were restructured, retitled, or eliminated. (LePeilbet Aff. at ¶ 4.) On July 8, Bacon recommended to LePeilbet that Larry Baughman, then forty-three years' old, be promoted to the newly-created position of field sales manager for the St. Louis area. (Pl.'s Ex. 17; Def.'s Ex. 6; LePeilbet Aff. at ¶ 11.) Plaintiff was terminated on July 29, as was Byerly. (Pl.'s Depo. at 184-185, 195-197; LePeilbet Aff. at ¶ 17.) Plaintiff was the only district manager terminated during the 1994 restructuring. (LePeilbet Aff. at ¶ 6.) LePeilbet was then Vice-President in charge of United States operations, and was responsible for making the 1994 restructuring decisions. (Id. at ¶¶ 3 and 5.)
On August 7, 1994, an advertisement appeared in the St. Louis Post Dispatch for a sales representative opening in Defendant. Barton, then fifty-two years' old, assumed the responsibilities of Byerly's former sales position, and was ultimately promoted to a field sales manager after Plaintiff's dismissal. (Pl.'s Exs. 16 and 19; Pl.'s Depo. at 378-383.)
Many of the allegations relevant to a resolution of the pending motion are in dispute.
Defendant contends that the advertisement in the St. Louis Post-Dispatch for a sales position was placed in error. Plaintiff, on the other hand, has submitted the affidavits of two former employees of Defendant, each averring that the advertised sales position had the same job description as the sales position involuntarily vacated by Byerly. (Barton Aff. at ¶ 7; Warren Dalphus Aff. at ¶ 6.) Additionally, Plaintiff testified in his deposition that he was told by John Urban, another employee of Defendant, that Urban was not receiving a positive response to the August 7 advertisement and that only "rocket scientists" were applying for the job. (Pl.'s Depo. at 396-397.)
Plaintiff alleges that he requested a transfer to a sales position during his July 1994 meeting with LePeilbet, and that LePeilbet informed Plaintiff that such a move generally did not work out. (Pl.'s Depo. at 193-197, 385.) Plaintiff testified that he had three or four conversations with Bacon about transferring to a sales position, (id. at 387), and that LePeilbet told him that a regional sales manager had expressed an interest in Plaintiff, (id. at 193-194).
Plaintiff also alleges that both Bacon and LePeilbet made several statements reflecting an animus toward older employees. Specifically, LePeilbet allegedly stated during a February 1994 meeting on the reorganization that Defendant should protect the younger employees whose jobs have been eliminated. (Pl.'s Depo. at 444-457.) Plaintiff further testified that LePeilbet emphasized employees' youth and not their seniority with Defendant. (Id. at 452-456.) Barton and Plaintiff each have testified that Bacon regularly stated during the 1994 reorganization process that Defendant needed a younger and more aggressive sales force. (Pl.'s Depo. at 427-441; Barton Aff. at ¶ 9; Barton Depo. at 43-46.) Plaintiff also testified that Bacon made that statement at least "a thousand" times during Plaintiff's employment with Defendant. (Pl.'s Depo. at 457.)
Defendant contends that Plaintiff's sales performance in the St. Louis area was below expectations. (LePeilbet Aff. at ¶¶ 9 and 16.) Plaintiff counters that he was performing his job satisfactorily, noting the various rankings of his region in terms of profit and the awards he received for his performance.
A. Standard for Review. Rule 56(c) of the Federal Rules of Civil Procedure mandates the entry of summary judgment if all of the information before the court shows "there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). An issue of material fact is genuine if it has a real basis in the record; and, a genuine issue of fact is material if it "might affect the outcome of the suit under the governing law." Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir.1992) (citations omitted). This Court determines whether there is a genuine issue of material fact based upon the pleadings, depositions, answers to interrogatories, and admissions of file, together with any affidavits. Fed. R.Civ.P. 56(c). See also Munz v. Michael, 28 F.3d 795, 798 (8th Cir.1994) (quoting Cole v. Bone, 993 F.2d 1328, 1331 (8th Cir.1993)).
The initial burden is on the moving party to clearly establish the non-existence of any genuine issue of fact that is material to a judgment in its favor. City of Mt. Pleasant, Iowa v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir.1988). 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. Indus. 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). All disputed facts are to be resolved, and all inferences are to be drawn, in favor of the nonmoving party. Kopp v. Samaritan Health System, Inc., 13 F.3d 264, 269 (8th Cir.1993). Neither the weighing of evidence nor the assessment of credibility is appropriate at the summary judgment stage. Grossman v. Dillard Dep't Stores, Inc., 47 F.3d 969, 971 (8th Cir.1995).
Summary judgment should seldom be used, however, in cases alleging employment discrimination. Hardin v. Hussmann Corp., 45 F.3d 262, 264 (8th Cir.1995); Crawford v. Runyon, 37 F.3d 1338,1341 (8th Cir.1994); Johnson v. Minnesota Historical Society, 931 F.2d 1239, 1244 (8th Cir.1991). Summary judgment is appropriate in employment discrimination cases only in those rare instances where there is no dispute of fact and where there exists only one conclusion. Crawford, 37 F.3d at 1341; Johnson, 931 F.2d at 1244; Hillebrand v. M-Tron Indus., Inc., 827 F.2d 363, 364 (8th Cir.1987), cert. denied, 488 U.S. 1004, 109 S.Ct. 782, 102 L.Ed.2d 774 (1989). Summary judgment is not appropriate unless all the evidence points one way and is susceptible of no reasonable inferences sustaining the position of the nonmoving party. Hardin, 45 F.3d at 262; Crawford, 37 F.3d at 1341; Johnson, 931 F.2d at 1241 (citing Holley v. Sanyo Mfg. Inc., 771 F.2d 1161, 1164 (8th Cir.1985)).
B. The ADEA. The ADEA forbids an employer from taking an adverse action against an employee within the protected age group of 40 years old and over because of the employee's age. Bashara v. Black Hills Corp., 26 F.3d 820, 823 (8th Cir.1994) (citing 29 U.S.C. §§ 623(a)(1), 631(a)); Kehoe v. Anheuser-Busch, Inc., 995 F.2d 117, 118 (8th Cir.1993) (Kehoe I); Bethea v. Levi Strauss & Co., 827 F.2d 355, 357 (8th Cir.1987). The ADEA does not, however, "protect against the imposition of any employment hardship on those over the age of 40." Bradford v. Norfolk Southern Corp., 54 F.3d 1412, 1421 (8th Cir.1995).
Age discrimination may by proved by direct evidence. Bashara, 26 F.3d at 823; Aucutt v. Six Flags Over Mid-America, Inc., 869 F.Supp. 736, 739 (E.D.Mo.1994), aff'd, 85 F.3d 1311 (8th Cir.1996). It is difficult, however, to prove discrimination by direct evidence. Haglof v. Northwest Rehabilitation, Inc., 910 F.2d 492, 493 (8th Cir.1990) (citing United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983)). The plaintiff therefore is allowed to benefit from an inference of discrimination by establishing a prima facie case. Id.
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