Gonnerman v. McHan Const., Inc.

• Decision Date: 26 October 2007
• Docket Number: No. 06-4064-MWB.,06-4064-MWB.
• Citation: 520 F.Supp.2d 1095
• Parties: Charles GONNERMAN, Plaintiff, v. McHAN CONSTRUCTION, INC., Chris Hansen Construction Company, and Michael McCline, Defendants.
• Court: U.S. District Court — Northern District of Iowa

Page 1095

520 F.Supp.2d 1095

Charles GONNERMAN, Plaintiff, v. McHAN CONSTRUCTION, INC., Chris Hansen Construction Company, and Michael McCline, Defendants.

No. 06-4064-MWB.

United States District Court, N.D. Iowa, Western Division.

October 26, 2007.

Brooke Catherine Timmer, Paige Ellen Fiedler, Fiedler Newkirk, PLC, Urbandale, IA, for Plaintiff.

Michael W. Ellwanger, Rebecca A. Nelson, Rawlings, Nieland, Probasco, Killinger, Ellwanger, Jacobs & Mohrhauser, Sioux City, IA, for Defendants.

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

MARK W. BENNETT, District Judge.

In this age discrimination action, pursuant to state and federal law, the defendants seek summary judgment on the ground that there are no genuine issues of material fact that the plaintiff was laid off from his job as a construction worker because of a reduction in force (RIF) caused by lack of work. The plaintiff, however, contends that there are genuine issues of material fact as to whether or not he was laid off because of his age, in light of "direct" evidence that the vice president of the company told the plaintiff's supervisor that he was laying off the plaintiff because he was "too old to do cement work and complained too much." In the alternative, the plaintiff contends that summary judgment in the defendants' favor would violate his Seventh Amendment right to trial by jury.

I. INTRODUCTION

A. Factual Background

The court will not attempt here an exhaustive dissertation on the undisputed and disputed facts in this case. Rather, the court will set forth sufficient of the facts, both undisputed and disputed, to put in context the parties' arguments concerning the defendants' motion for summary judgment.¹

The parties agree that plaintiff Charles Gonnerman, who was in his late sixties in 2005 at the time of the events giving rise to the present lawsuit, had been employed since 1988 by defendants Chris Hansen Construction Company (Hansen), a general construction firm, and Hansen's subsidiary, McHan Construction, Inc. (McHan)" Defendant Michael McCline is either the president of McHan, as the defendants allege, or the vice president of McHan, as Gonnerman alleges, and an officer and director of Hansen. Gonnerman specialized in finish carpentry and sometimes worked as a supervisor. Gonnerman also sometimes did general labor jobs, including cement or concrete work, but preferred doing finish carpentry. Indeed, Gonnerman admits that he complained about doing cement or concrete work and that he said on more than one occasion on the job at Hansen/McHan that he was too old to do cement or concrete work. Gonnerman maintains, however, that he did not complain more than anyone else about doing cement or concrete work and that he was fully qualified for and capable of doing such work.

In September 2005, Gonnerman was working with others pouring concrete on the Dickinson County Courthouse project. The defendants contend that Gonnerman was not working as a supervisor at the time, but Gonnerman contends that he was. The defendants also maintain that there was a shortage of finish carpentry work on the project at the time and, in fact, that most of the work on the project at the time was concrete work. Gonnerman denies that there was any shortage of work that he could have done, because there was a fair amount of finish work that had not yet been completed on the project and he was also qualified for and capable of doing cement or concrete work.

In any event, Gonnerman's supervisor, Robert McKeever, notified Gonnerman that he was being laid off. The defendants assert that McKeever had had a conversation with Michael McCline about anticipated layoffs owing to shortage of work, including discussions about which employees to lay off. McKeever knew that Gonnerman did not like concrete work, but that concrete work was all that the company had at the time. Therefore, McKeever apparently recommended, and McCline apparently decided, that Gonnerman should be laid off until the company got into the finish carpentry work on the project. The defendants maintain that McKeever had only advisory input in the decision to lay off Gonnerman and others, but that McKeever had no authority either to lay off or hire back any employees; only McCline had that authority. Gonnerman disputes that McKeever's authority as a supervisor or superintendent was limited in the manner the defendants assert. The defendants also assert that layoff determinations about individual employees were made on the basis of the following purportedly "objective" factors: the need for employee's skills and abilities at a particular stage in the project; the employee's attitude; the employee's attendance record; and the employee's ability to function as part of a team. They contend that Gonnerman had a reputation as a complainer and that there had been complaints about his supervisory abilities, in addition to the lack of finish carpentry work for Gonnerman to do.

Gonnerman's version of the reason for his layoff, however, is quite different. Specifically, Gonnerman asserts that he was never told that he was being laid off because of a shortage of work. Rather, he contends that McKeever told him that the reason he was being laid off was that McCline felt that he was "too old to do cement work and complained too much." McCline denies ever telling McKeever any such thing. McKeever also denies ever telling Gonnerman that Gonnerman was being laid off because he was too old to do cement work, that McCline had told McKeever that Gonnerman was being laid off because Gonnerman was too old to do cement work and complained too much, or even that he made any reference to Gonnerman's age at the time that he told Gonnerman he was laid off. The parties agree that Gonnerman never asked McCline the reason that he had been laid off. Gonnerman asserts, however, that the so-called "objective" factors that the defendants contend that they used to decide which employees to lay off plainly included "subjective" criteria.

The defendants maintain that, between June 2005 and February 2006, Hansen/McHan experienced a firm-wide shortage of work that required the companies to lay off approximately fifty percent of their workforce. The defendants assert that this period was the lowest point for available work in at least the last twenty-six years, perhaps in the companies' history. The defendants contend that the reduction in force (RIF) affected numerous employees in the same or similar capacity as Gonnerman and that almost half of those employees (18 out of 40) were under forty years of age and all but one were younger than Gonnerman. More specifically, of the fifteen employees working on the Dickinson County Courthouse project who were laid off, seven were under the age of forty. Gonnerman, however, maintains that, despite any RIF, there was work available that he was qualified to do and that, in the eighteen years he had worked for Hansen/McHan, he had seldom been laid off. Gonnerman also contends that one of the reasons that he was laid off was his age because he was the second oldest worker at Hansen/McHan. Although McCline had anticipated that Gonnerman's layoff would be temporary, and several workers have been called back to work for Hansen/McHan since February 2006, Gonnerman has not been called back. The defendants point out, however, that Gonnerman has not asked to be called back.

Gonnerman has since found other employment in which he works primarily as a finish carpenter.

Among the allegations in Gonnerman's unanswered statement of additional facts in dispute, is Gonnerman's assertion that, when he returned to clean out his belongings and collect his tools after his layoff in September 2005, he told McKeever that it sounded like he had a basis for a lawsuit and that McKeever agreed that he had grounds for a lawsuit against the defendants. Gonnerman also alleges, again in his unanswered statement of additional facts, that, after his layoff and since other employees have been called back, his work has been performed by younger employees who had worked for the defendants for less time than he had.

Notwithstanding their failure to respond to Gonnerman's statement of additional facts in dispute, the defendants assert in their reply brief that, of the four superintendents laid off during June 2005 to February 2006, only one, Robert McKeever, has been re-employed, and that McKeever is actually one year older than Gonnerman. In a surreply allowed by the court, Gonnerman takes issue with this factual allegation as misleading, because he maintains that two of the four supervisors could not be re-employed by Hansen/McHan, because the companies no longer had a contract with Carpenters Local 948 to which those former superintendents belonged. Gonnerman also contends that the defendants cannot re-employ ten other persons, because the defendants' companies no longer have a contract with the union representing those former employees. Thus, Gonnerman contends that lack of work was not the reason that these employees could not return to work for Hansen/McHan, as the defendants appear to suggest. Gonnerman also asserts that one employee was not brought back because of his bad attitude, one employee left the area, and two other employees simply quit working for McHan. Thus, Gonnerman contends that the defendants have had ample opportunity to rehire him or call him back to work for them.

B. Procedural Background

Gonnerman filed suit on August 2, 2006, against defendants McHan Construction, Inc., Chris Hansen Construction Company, and Michael McCline, alleging age discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and the Iowa Civil Rights Act (ICRA), IOWA CODE CH. 216. See Complaint (docket no. 3), Counts 1 and 2, respectively. The defendants filed a joint Answer (docket no. 7) on August 24, 2006, denying Gonnerman's claims and...