Haigh v. Gelita U.S. Inc.

Decision Date28 January 2011
Docket NumberNos. 09–3479,10–1647.,s. 09–3479
Citation632 F.3d 464
PartiesJames A. HAIGH, Plaintiff–Appellant,v.GELITA USA, INC., Defendant–Appellee.
CourtU.S. Court of Appeals — Eighth Circuit


Michael Justin Carroll, argued, Des Moines, IA, for appellant.Roger James Miller, argued, Abigail M. Moland, on the brief, Omaha, NE, for appellee.Before RILEY, Chief Judge, BYE and BENTON, Circuit Judges.BYE, Circuit Judge.

James Haigh alleged claims against his former employer, Gelita USA, Inc. (Gelita), on the basis of age and disability discrimination and retaliation. The district court 1 granted summary judgment in favor of Gelita on Haigh's claims under the Age Discrimination in Employment Act (ADEA) and his retaliation claim. The remaining claims under the Americans with Disabilities Act (ADA) proceeded to trial, and the jury ruled in favor of Gelita. Subsequently, the court denied Haigh's motion for a new trial. Haigh appeals the summary judgment order as it pertains to his age discrimination claim 2 and the order denying his motion for a new trial. We affirm.


James Haigh was born on May 18, 1937, and was 60 years old when he was hired by Gelita as a senior process engineer and project manager in May 1998. Prior to his employment, Haigh was involved in a motor vehicle collision in which he broke cervical vertebrae and suffered tissue and nerve damage. As a result of the incident, Haigh suffered chronic pain and developed degenerative processes which led to the development of bone spurs in his cervical and lumbar regions. His physician noted these injuries could be exacerbated by overwork, stress, and job pressures, and he was directed to receive reasonable accommodation for his walking disability, his limited ability to sit in one position for long periods of time, and his limited ability to do repetitive motion. Haigh was placed on a regimen of medications to assist with his pain management. He also asserts he required the use of an assistant to help him with visual inspections of difficult-to-reach places at Gelita.

During his employment at Gelita, Haigh was required to undergo annual performance evaluations, which were rated on a 10–point system. The system was structured as follows: excellent (8–10 points); very good (6–8 points); good (4–6 points); improvement needed (2–4 points); and unsatisfactory (0–2 points). Haigh received a cumulative rating of 4.8 for 1998; 5.4 for 1999, 5.0 for 2000, and 5.2 for 2001, all while working under the supervision of Larry Russell. While these scores placed Haigh as a “good” employee, Gelita asserts he was the lowest-rated project engineer under Russell, which led to meetings between the two regarding Haigh's interpersonal and communication problems.

In 2002, Haigh became an environmental engineer and reported to Richard Schaefer. He was rated at 5.3 for 2002, again placing him in the “good” category. On July 7, 2002, Haigh began reporting to a new supervisor, Mark Skibinski, who was the environmental health and safety manager. Haigh was responsible for general engineering functions and special projects, including the resurfacing and building of a retention pond, and he made decisions involving purchasing, hiring vendors, managing the project, and dealing with consulting engineers.

Skibinski became unsatisfied with Haigh's work, and he met with Haigh to discuss areas of deficiency, including Haigh's failure to meet assigned deadlines, failure to improve communications within and outside of the company, inappropriate delegation of environmental responsibilities, providing vague and/or misleading information on issues, and mismanagement of the wastewater treatment facility. Meanwhile, Haigh was dissatisfied when his operating assistant, Kelly Markham, was removed and his ability to perform the job was impacted. Haigh contends Skibinski refused his accommodation for another assistant to help inspect the plant.

In October 2003, Haigh met with Jeff Tolsma, Director of Human Resources, to discuss these issues. Haigh informed Tolsma of his problems with Skibinski, including Haigh's inability to meet Skibinski's job expectations because he claimed he did not understand Skibinski's expectations. Within one week, on October 31, 2003, Haigh was terminated from his position, at the age of 66.

Haigh subsequently filed suit, alleging claims of disability discrimination under the ADA, age discrimination under the ADEA, and retaliation. The district court granted Gelita's motion for summary judgment on Haigh's claims under the ADEA and his retaliation claims. The remaining claims under the ADA proceeded to trial, and the jury returned a verdict in favor of Gelita. Later, Haigh filed a motion for a new trial, which was denied by the district court. Haigh now appeals.

A. Whether the District Court Erred in Granting Gelita's Motion for Summary Judgment on Haigh's ADEA Claims

Haigh first argues the district court should have allowed his age discrimination claim to be submitted to the jury along with his disability discrimination claim because there was sufficient evidence for a reasonable jury to conclude he was terminated due to his age.

Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). We review a district court's grant of summary judgment de novo, drawing all reasonable inferences, without resort to speculation, in favor of the nonmoving party.” Anderson v. Durham D & M, L.L.C., 606 F.3d 513, 518 (8th Cir.2010) (quoting Johnson v. Ready Mixed Concrete Co., 424 F.3d 806, 810 (8th Cir.2005)). An issue of material fact exists “if a reasonable jury could return a verdict for the party opposing the motion.” Id. (internal quotation marks and citation omitted).

The ADEA protects individuals aged 40 and over by prohibiting employers from discharging or otherwise discriminating against such individuals with respect to their compensation, terms, conditions, or privileges of employment on the basis of their age. 29 U.S.C. § 623(a). In order to prove his claim, Haigh must show, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. See Gross v. FBL Fin. Servs., Inc., ––– U.S. ––––, 129 S.Ct. 2343, 2352, 174 L.Ed.2d 119 (2009) (“The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.”); Clark v. Matthews Int'l Corp., 628 F.3d 462, 469 (8th Cir.2010) ([The plaintiff] is required to prove that his age was the ‘but-for’ cause of [the employer's] challenged decisions regardless of whether he uses direct or circumstantial evidence to prove his age-discrimination claims.”) (citing Gross, 129 S.Ct. at 2351).

Because Haigh has no direct evidence of discrimination, his claims are analyzed under the familiar burden-shifting scheme of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Clark, 628 F.3d at 469 (“The Supreme Court in Gross declined to answer whether use of this evidentiary framework is appropriate in the context of ADEA claims ... [but] [o]ther circuits ... have continued to apply it.”). First, Haigh is tasked with establishing a prima facie case of age discrimination by showing (1) he was at least 40 years old; (2) he was terminated; (3) he was meeting his employer's reasonable expectations at the time he was terminated; and (4) he was replaced by an individual who was substantially younger. Roeben v. BG Excelsior Ltd. P'ship, 545 F.3d 639, 642 (8th Cir.2008). If Haigh establishes a prima facie case, the burden shifts to Gelita to provide a legitimate, nondiscriminatory reason for the termination. Id. Finally, if Gelita provides such a reason, the burden returns to Haigh to prove Gelita's reason was mere pretext for discrimination. Id. at 642–43.

The district court concluded Haigh failed to present sufficient evidence to create a genuine issue of material fact as to his prima facie case under the ADEA. Even assuming Haigh could meet his prima facie case, the court determined he could not show Gelita's proffered reasons for termination were pretext for age discrimination. Instead, the court concluded nothing in the record showed disparate treatment or even a reference to Haigh's age. To the contrary, the court noted Gelita hired Haigh when he was 60 years old, which, although not fatal to Haigh's claim alone, went against his case because there was no evidence that Gelita developed a discriminatory attitude toward Haigh's age after he was hired when he was well above the protected age under the ADEA.

The only element at issue in the prima facie case on appeal is whether Haigh was meeting Gelita's reasonable expectations at the time of his termination. Haigh argues he was qualified for the position, which is all he needs to show in order to satisfy the element. See Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 92 (2d Cir.2001) ([T]he qualification necessary to shift the burden to defendant for an explanation of the adverse job action is minimal; plaintiff must show only that he possesses the basis skills necessary for performance of [the] job.”) (internal quotation marks and citation omitted). To establish he was qualified, Haigh asserts he was employed by Gelita as an engineer for five years, and thus his qualifications may be inferred based on his experience. Haigh challenges Gelita's assertion that he was the lowest-rated engineer under Russell, because he was rated as “good” and Russell was not his supervisor at the time he was terminated.

Gelita contends Haigh failed to demonstrate he was meeting its reasonable expectations at the time of his termination because he had serious performance and...

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