Cone v. Rainbow Play Sys. Inc

• Decision Date: 13 May 2010
• Docket Number: No. CIV. 06-4128.,CIV. 06-4128.
• Citation: 713 F.Supp.2d 860
• Parties: Fred Cornell CONE, Plaintiff,v.RAINBOW PLAY SYSTEMS, INC., Defendant.
• Court: U.S. District Court — District of South Dakota

713 F.Supp.2d 860

Fred Cornell CONE, Plaintiff,v.RAINBOW PLAY SYSTEMS, INC., Defendant.

No. CIV. 06-4128.

United States District Court,

D. South Dakota,

Southern Division.

May 13, 2010.

COPYRIGHT MATERIAL OMITTED

Fred Cornell Cone, Brookings, SD, pro se.

Sandra K. Hoglund-Hanson, Davenport, Evans, Hurwitz & Smith, Sioux Falls, SD, for Defendant.

MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

LAWRENCE L. PIERSOL, District Judge.

DefendantRainbow Play Systems, Inc.(“Rainbow”) has moved for summary judgment on PlaintiffFred Cornell Cone's age discrimination claim.Rainbow briefed the issues, Cone responded to Rainbow's Statement of Material Facts, and the Court has received and reviewed the supplemental argument and materials submitted by Cone in response to this Court's December 16, 2009, Memorandum Opinion and Order.For the reasons stated below, the motion for summary judgment will be granted.

BACKGROUND

Plaintiff alleges he was wrongfully discharged from his employment with Rainbow because of his age.Rainbow claims Plaintiff's employment was terminated after Plaintiff was involved in various incidents with co-workers, culminating in a physical altercation at the workplace.Viewing the facts in a light most favorable to Plaintiff, the record establishes the following.

Rainbow hired Plaintiff when Plaintiff was just a few days short of his 61st birthday.In August 2004, Plaintiff and a co-worker, Joe Paulsen(“Paulsen”), were involved in a disagreement regarding a fan.Plaintiff and Paulsen worked at adjacent machines.Paulsen had a fan.When Paulsen left the work area, Plaintiff turned Paulsen's fan toward himself.When Paulsen returned to the work area he yelled obscenities at Plaintiff for touching the fan.Plaintiff went to their supervisor and reported Paulsen's behavior as “postal.”Plaintiff's supervisor, John Stirling, investigated this disagreement but no disciplinary action was taken.

On November 17, 2004, Plaintiff and another employee, Billy, were pulling pranks on each other.Plaintiff's supervisor verbally warned both employees that the horseplay needed to stop.Then, in early February 2005, Plaintiff and Billy were involved in further horseplay.Plaintiff claims that Billy threw Plaintiff's coffee out the side door, so Plaintiff placed his push broom on top of the stack of wood Billy was working on.Billy then threw a piece of lath at Plaintiff.Billy claimed he threw the lath because Plaintiff threw a broom head at him.Another co-worker also told the supervisor that Plaintiff threw a broom head at Billy.After this incident, Plaintiff's supervisor again spoke with Plaintiff and Billy, indicating that if he saw anything else being thrown the employee would be written up.On February 3, 2005, the saw room manager, Brad Lhotak, also verbally warned Plaintiff and Billy that if they threw anything else they would be written up.

Plaintiff testified in his deposition about an incident that occurred later in February of 2005 when he and Paulsen had the work-related disagreement which led to Plaintiff's termination.Plaintiff and three other Rainbow employees were working in a separate building called the “saw room.”Plaintiff was stacking something on a pallet in the saw room.From approximately sixty to seventy feet away, Paulsen yelled at Plaintiff to hurry and bring over some blocks of wood.Plaintiff hollered back that he would and started stacking the wood on a pallet.Paulsen then told Plaintiff to just bring him an armful of the blocks, and Plaintiff responded that he would just drop half of them if he did it that way.Plaintiff said he would do it the most efficient way.Plaintiff testified that while he was stacking blocks on the pallet, Paulsen came behind Plaintiff, grasped him by the neck and lifted him up.Plaintiff claims he said words to the effect of “get your f* * *ing hands off me.”Another co-worker intervened and separated the men.The incident was reported to have occurred at 9:15 a.m., and immediately after the report the saw room manager arrived and took a written statement from Paulsen, which provides:

Fred was asked to bring in finger joint blocks to use as spacers on pallet he was told by all 3 of us to do this & he wasn't doing it and he was told again & he keep fooling around & I went to tell him again & he started yelling at me we then got into an argument at that point things got kind of messy I know I grabbed him at some point & at about that same time Jared came in & broke us apart.

Paulsen's employment was terminated immediately due to his behavior which violated Rainbow's policy against workplace violence.At the time of his termination, Paulsen was 33 years old.

After the incident, Plaintiff met with the saw room manager.Plaintiff told the manager that Plaintiff had no intention of reporting the incident to the police, and that he did not feel it was necessary to terminate Paulsen's employment.Plaintiff also signed a performance agreement on that date.The performance agreement, states, in pertinent part:

This will be considered a written notice that your performance does not meet the requirements of your assigned position.Your current behavior and performance has created a hostile work environment.Engaging in behavior that would interfere with another employee or engaging in behavior that would create a lack of harmony among employees is unacceptable and works against company goals and initiatives.This includes not following directives.

I understand that if I am not in compliance with this agreement, that I will voluntarily resign my position.

This Performance Agreement will be in place indefinitely.

Plaintiff did not agree with being placed on a performance agreement, but his supervisor and manager told him it was necessary.Plaintiff thought he would be on the performance plan for thirty (30) days,¹ but Plaintiff's supervisor and manager did not make any promises that he would remain employed from the date of the performance agreement on.

Rainbow continued investigating the incident.Hand-written statements pertaining to this investigation were obtained from the manager, Brad Lhotak, and the other two Rainbow employees who were present at the time of the altercation, Randy Sween, and Jared Bertelson.The manager's statement indicates:

... Fred was told to go get pallet blocks.

Then Jared heard “Fred don't ever put your f* * *ing hands on me again.”Jared turned around and Joe had his hands around Freds throat!

Fred said that Joe told him to get the blocks and he told him he was not his boss, Jared was his boss and he didn't have to listen to him.

I talked to Joe Paulson and he said it was his fault I snapped.I asked him why?He said that Fred was being Fred.Very annoying.He kept pushing my buttons.I snapped I'm sorry!

Jared Bertelson's statement says:

I was working in the adjacent room when I told Fred to get some blocks for the bundles.I started bonding a bundle.I then heard yelling “I heard Joe yell Fred Don't put your f* * *ing hands on me.”I went around the corner into the next room and saw Joe and Fred with Joes hands around Freds neck.I imeediately [sic] separated them.And called Brad.Brad came over we set Fred down and his side of the story then got Joes then called Pam.

In his statement, Randy Sween said, “This is what I heard: Don't you ever touch me again Fred.”Although Plaintiff questions the ability of Bertelson and Sween to have heard anything, they both said in their hand-written statements that they heard Paulsen yelling at Plaintiff to not touch Paulsen again, or words to that effect.

Plaintiff admitted in his deposition that he had received and reviewed a copy of Rainbow's Employee Manual when he was working for Rainbow.He signed a receipt and acknowledgment of the manual which was kept in his personnel file.Rainbow's Employee Manual sets Standards of Conduct, including the following:

Whenever people gather together to achieve goals, some rules of conduct are needed to help everyone work together effectively and harmoniously.By accepting employment with us, you have a responsibility to Rainbow Play Systems and to your fellow employees to adhere to certain rules of behavior and conduct.

We expect each person to act maturely and responsibly at all times.Some of the more obviously unacceptable activities are noted below, although this list is not exhaustive.

...

• Careless action, which could endanger the life or safety of another person.

...

• Criminal conduct, threats of violence toward anyone at the Company, on Company premises or when representing Rainbow Play Systems.This includes the threat, intimidation or coercion of other employees or individuals you are relating with because of Company business, which occurs off premises.

...

• Engaging in behavior that would interfere with another employee or his or her work, willfully restricting work output or encouraging the others to do so.

• Horseplay.

• Unsatisfactory or careless work.

After Rainbow's investigation of the incident between Plaintiff and Paulsen, with the inconsistent statements about Plaintiff's behavior, Rainbow decided that Plaintiff should also be released from employment because it appeared he may have had physical involvement in the altercation.The following day, Rainbow terminated Plaintiff's employment.Plaintiff was asked to go to Rainbow's human resources department.Rainbow's human resources officer explained to Plaintiff why he was there and that there were concerns.Plaintiff's manager offered him an opportunity to resign.When Plaintiff declined to resign, they advised him that he was terminated.He was 62 years old at the time of his termination.The person who hired Plaintiff, Kandy Barthel, also was involved in the decision to terminate his employment.

Plaintiff testified in his deposition that he did not believe anyone was hired to replace him.In response to Defendant's Statement of Material Facts, however, Plaintiff claimed that a younger,...