Fast v. Southern Union Co., Inc.

• Decision Date: 23 July 1998
• Docket Number: No. 97-3802,97-3802
• Citation: 149 F.3d 885
• Parties: 77 Fair Empl.Prac.Cas. (BNA) 643, 74 Empl. Prac. Dec. P 45,517 Jerry L. FAST, Appellant, v. SOUTHERN UNION COMPANY, INC., a Delaware corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 885

149 F.3d 885

77 Fair Empl.Prac.Cas. (BNA) 643,

74 Empl. Prac. Dec. P 45,517

Jerry L. FAST, Appellant, v. SOUTHERN UNION COMPANY, INC., a Delaware corporation, Appellee.

No. 97-3802.

United States Court of Appeals Eighth Circuit.

Submitted May 11, 1998.

Decided July 23, 1998.

Michael S. Ketchmark, Kansas City, MO, argued (Brett A. Davis, on the brief), for Appellant.

Curtis E. Woods, Kansas City, MO, argued (Tamara Seyler-James, on the brief), for Appellee.

Before BOWMAN, Chief Judge, HEANEY, and HANSEN, Circuit Judges.

HEANEY, Circuit Judge.

Jerry Fast appeals the district court's order granting summary judgment in favor of Southern Union Company, the appellee, and from the district court's denial of his motion to amend his witness list. Fast, a former Southern Union manager, alleges that Southern Union terminated him 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. §§ 213.010-213.137. We reverse and remand for trial on Fast's age discrimination claim and leave it to the district court's discretion on remand whether to permit Fast to amend his witness list.

I.

Because we are reviewing a summary judgment motion, we view the facts in the light most favorable to Fast, the non-moving party. See Kraft v. Ingersoll-Rand Co., 136 F.3d 584, 586 (8th Cir.1998). Fast began working for Gas Service Company (GSC) in 1967. Ownership of GSC changed several times during Fast's employment, with Southern Union acquiring the gas company in 1994. Following Southern Union's purchase, Missouri Gas Energy (MGE), a subsidiary of Southern Union, began operating the company.

Shortly after acquiring the gas company, Peter Kelley, CEO and president of MGE, ¹ held a number of meetings with key personnel to explain his corporate philosophy. According to the record, Kelley indicated that dramatic changes were on the way. Kelley allegedly stated that: "Young blood" was needed at MGE and it would benefit from a "fresh new look"; he preferred a younger work force because older workers tend to "stagnate"; the "older work force was pulling the company down"; "younger workers" were the future of the company; "MGE was a good place to work for six or seven years, not over ten"; and he preferred a younger work force because they are "more inquisitive" and have "more energy."

As an MGE manager, Fast had the opportunity to attend one of Kelley's meetings with key personnel. After the meeting, Fast noticed significant changes at MGE. For example, MGE fired two of Fast's supervisors, both in their fifties. In their place, MGE hired Carlon Nelson, who was thirty-four years old when she was hired. Nelson, who eventually became vice-president of operations for MGE, and Fast's supervisor, claimed that "Missouri Gas Energy was not efficiently operated, costs were uncontrolled, and significant operational and management changes were needed in many areas to enable the company to be competitive in the new entrepreneurial and deregulated environment." (Appellee's App. at 1.)

In the middle of 1995, Nelson attended several of Kelley's meetings. Nelson acknowledged that the meetings provided her with insight into Kelley's expectations for MGE's supervisors. Fast alleges that in a December 1995 meeting with Nelson, and at other times, Nelson stated that MGE was looking to put a fresh, new look on the company, that MGE needed to weed out stagnation in the management ranks and "bring in new, younger people with fresh ideas." According to Fast, Nelson warned him that Southern Union should not be viewed as a "place for ultimate retirement," and MGE was making room for a "new generation of leadership who had the energy and motivation to get the job done." Also, Nelson allegedly referred to Fast as "overhead."

Soon after the December meeting, Nelson terminated Fast. Nelson claims that, as part of MGE's effort to improve its efficiency and bottom line, MGE reduced its workforce and consolidated specific supervisory positions. For example, Nelson claims that MGE terminated certain managers, including Fast, and hired fewer "directors" with greater job responsibility. ² Fast was fifty-one years old when Nelson fired him. The record indicates that, both within and outside Fast's department, all terminated managers were over age forty and/or had significant tenure at the company. ³

After MGE terminated Fast from his position as field operations manager for MGE's eastern division, MGE hired Jeannie Miller, who was thirty-three years old at the time, as the director of the eastern region. Although the record indicates that Miller ultimately had broader job responsibilities than Fast, there was significant overlap. Despite these similarities, Nelson stated that Miller's job responsibilities were sufficiently distinct from Fast's job responsibilities. For example Nelson stated in her affidavit that while Fast had no engineering responsibilities, Miller had significant engineering responsibilities. When asked in her deposition whether she had "any idea ... what Mr. Fast's background was in dealing with the engineers when it was part of a centralized function," Nelson answered no. (Appellant's App. at 607.) According to his former supervisors, Fast was responsible for various engineering functions.

Nelson stated in her deposition that she terminated Fast without reviewing his performance evaluations or his personnel file. Nelson also stated that she ultimately fired Fast because he was unable to handle basic tasks effectively and because of his lack of education. Nelson noted that Miller earned an MBA while Fast only completed high school. Additionally, Nelson testified that Fast lacked new ideas or recommendations to make MGE more efficient. ⁴

The district court granted Southern Union's summary judgment motion, determining that Fast's age discrimination case should be analyzed under the more exacting reduction-in-force (RIF) standard. Under the RIF standard, the court found that Fast was unable to make the required showing that age was a factor in his termination. The district court also denied Fast's motion to amend his witness list because of Fast's "lack of diligence in searching for witnesses" and because the witnesses would provide evidence "collateral to the main issue." Fast v. Southern Union Co., No. 96-0731-CV-W-2, slip op. at 15 n. 3 (W.D.Mo. Sep. 15, 1997). Fast appeals.

II.

We review a district court's grant of summary judgment de novo. United States ex. rel. Glass v. Medtronic, Inc., 957 F.2d 605, 607 (8th Cir.1992). In considering whether to grant summary judgment, a court examines all the "pleadings, depositions, answers to interrogatories ... admissions on file ... [and] affidavits." Fed.R.Civ.P. 56(c). Summary judgment is appropriate only where there is "no genuine issue of material fact and ... the moving party is entitled to judgment as a matter of law." Langley v. Allstate Ins. Co., 995 F.2d 841, 844 (8th Cir.1993) (citations omitted).

Fast argues that MGE discriminated against him because of his age in violation of both federal and Missouri law. We analyze Fast's federal age discrimination claim and his MHRA claim under the same standard. See Finley v. Empiregas, Inc., 975 F.2d 467, 473 (8th Cir.1992) (decisions under federal employment discrimination statutes are authoritative and applicable under the MHRA as well as federal law) (citations omitted). It is unlawful under the ADEA for an employer to discharge an employee because of his or her age. See 29 U.S.C. § 623(a)(1). The protected age group consists of those age forty or older. Id. § 631(a).

Under the ADEA, a plaintiff may demonstrate age discrimination by either direct or indirect evidence. See Beshears v. Asbill, 930 F.2d 1348, 1353 (8th Cir.1991) (citation omitted). When a plaintiff puts forth direct evidence that an illegal criterion, such as age, was used in the employer's decision to terminate the plaintiff, the burden-shifting standards applied in Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), as modified by § 107 of the Civil Rights Act of 1991, 42 U.S.C. §§ 2000e-2(m), are applied. See Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 634 (8th Cir.1998). When a plaintiff has met her burden by providing direct evidence that an employer acted in a discriminatory manner, " 'proof that an employer would have made the same employment decision in the absence of discriminatory reasons is relevant to determine not the liability for discriminatory employment practices, but only the appropriate remedy.' " See Wolff v. Brown, 128 F.3d 682, 684 (8th Cir.1997) (quoting H.R.Rep. No. 102-40(I), at 48 (1991), reprinted in 1991 U.S.S.C.A.N. 549, 586).

When a plaintiff is unable to put forth direct evidence of age discrimination, the Title VII burden-shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), is applicable when analyzing ADEA claims. See Holley v. Sanyo Mfg., Inc., 771 F.2d 1161, 1164 (8th Cir.1985). Under the first prong of the McDonnell Douglas burden-shifting framework, the plaintiff must establish a prima facie case of discrimination. See Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 776 (8th Cir.1995) (citations omitted). Once a plaintiff has established a prima facie case, the burden of production shifts to the defendant to demonstrate a legitimate, nondiscriminatory reason for taking adverse action against the plaintiff. See id. at 776-77 (citations omitted). Thereafter, the burden shifts back to the plaintiff to show that the employer's explanation is actually a pretext for discrimination. See id. at 777 (citation omitted). The burden of persuasion remains with the plaintiff at all times. Id.

In differentiating between direct and indirect evidence of age discrimination, we must, in part,...