Hartig v. Safelite Glass Corp., 91-1358-PFK.

• Citation: 819 F. Supp. 1523
• Decision Date: 27 April 1993
• Docket Number: No. 91-1358-PFK.,91-1358-PFK.
• Court: U.S. District Court — District of Kansas
• Parties: Donald E. HARTIG, Plaintiff, v. SAFELITE GLASS CORP., Defendant.

819 F. Supp. 1523

Donald E. HARTIG, Plaintiff, v. SAFELITE GLASS CORP., Defendant.

No. 91-1358-PFK.

United States District Court, D. Kansas.

April 27, 1993.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Darrell L. Warta, J. Steven Massoni, Mary Kathleen Babcock and Jay M. Rector of Foulston & Siefkin, Wichita, KS, for plaintiff.

W. James Foland and Karen R. Glickstein of Shughart, Thomson & Kilroy, P.C., Kansas City, MO and Terry L. Mann of Martin, Pringle, Oliver, Wallace & Swartz, Wichita, KS, for defendant.

MEMORANDUM AND ORDER

PATRICK F. KELLY, Chief Judge.

Plaintiff brought claims charging violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34 (ADEA), breach of an implied contract of employment, misrepresentation, breach of a stock option agreement, and breach of the covenant of good faith and fair dealing implied in the stock option agreement. Defendant moved for summary judgment with respect to all claims.

Plaintiff Donald Hartig was employed by defendant Safelite Glass Corporation in December of 1978. There was never an express contract governing his employment.

In 1987, Safelite offered certain employees the opportunity to participate in a stock option plan. Plaintiff entered into a written agreement with defendant to participate in the plan.

In March of 1989, Robert Morosky became defendant's CEO. In April of 1989, plaintiff's job description changed from vice president-finance to vice president-controller, and Stephen Pohlit became Safelite's chief financial officer.

On August 1, 1989, plaintiff was informed of problems in his job performance. There is some dispute whether or not he was actually terminated on this date. In either case, plaintiff continued to work until September 28, 1989. Plaintiff was 47 years of age when he was terminated. Plaintiff was replaced by David Karnofel, age 34.

Plaintiff filed this suit on August 21, 1991.

Age Discrimination Claim

Plaintiff brought a claim under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34 (ADEA). Either on August 1, 1989 or on September 28, 1989, Mr. Hartig was informed of his termination. He filed his suit on August 21, 1991.

To establish age discrimination, the plaintiff must prove that age was a determining factor in defendant's treatment of him. Perrell v. FinanceAmerica Corp., 726 F.2d 654, 656 (10th Cir.1984). Plaintiff need not prove that age was the sole reason for the employer's acts, but he must prove that age was the determinative factor in the employer's decision. Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544, 1547 (10th Cir.1988); E.E.O.C. v. Prudential Fed. Sav. & Loan Ass'n, 763 F.2d 1166, 1170 (10th Cir.), cert. denied, 474 U.S. 946, 106 S.Ct. 312, 88 L.Ed.2d 289 (1985); Whitten v. Farmland Indus., Inc., 759 F.Supp. 1522, 1531 (D.Kan. 1991).

In the absence of direct evidence of age discrimination produced by plaintiff, the court must analyze the claim under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-26, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, the plaintiff bears the burden of establishing a prima facie case of discrimination. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). By establishing this prima facie case, the plaintiff creates a presumption of unlawful discrimination that requires the defendant to produce evidence of a nondiscriminatory reason for its actions. Id. at 254-55, 101 S.Ct. at 1094-95. The plaintiff then has the burden of showing that the defendant's proffered reasons are merely pretextual. Id. at 255-56, 101 S.Ct. at 1094-95.

To establish the prima facie case, plaintiff must show that: (1) he was within the protected class; (2) he was performing his work satisfactorily and was qualified for the position; (3) he was adversely affected by the defendant's employment decision; and (4) his position was filled by a person outside the protected group.¹ MacDonald v. Eastern Wyoming Mental Health Center, 941 F.2d 1115, 1119 (10th Cir.1991); Branson v. Price River Coal Co., 853 F.2d 768, 770 (10th Cir.1988); Cooper, 836 F.2d at 1547 (10th Cir.1988). The Tenth Circuit has incorporated a showing of satisfactory work performance into the prima facie case requirements. Under the Tenth Circuit's reasoning, the plaintiff may establish this element by producing credible evidence that he continued to possess the objective qualifications he held when he was hired, or by his own testimony that his work was satisfactory even if disputed, or by evidence that he held his position for a significant period of time. MacDonald, 941 F.2d at 1121. Plaintiff need only demonstrate that his performance was of sufficient quality to merit continued employment. Denison v. Swaco Geolograph Co., 941 F.2d 1416, 1421 (10th Cir.1991). The defendant's reasons for discharge are to be discussed at the pretext stage of the analysis.

Defendant has not argued about the sufficiency of plaintiff's prima facie showing of age discrimination. Instead, defendant moved for summary judgment arguing that the applicable statute of limitations had run.

Because defendants have moved for summary judgment, the court must be mindful of the standard for granting or denying the motion. A motion for summary judgment is proper where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The evidence in the record must be viewed in the light most favorable to the nonmoving party. Maughan v. SW Servicing, Inc., 758 F.2d 1381, 1387 (10th Cir.1985). Summary judgment shall be denied if the moving party fails to demonstrate its entitlement beyond a reasonable doubt. Norton v. Liddel, 620 F.2d 1375, 1381 (10th Cir.1980).

The party moving for summary judgment is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing of an essential element of the case with respect to which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986), cert. denied, 484 U.S. 1066, 108 S.Ct. 1028, 98 L.Ed.2d 992 (1988). In resisting a motion for summary judgment, the nonmoving party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the party must come forward with specific facts showing the presence of a genuine issue for trial. Abercrombie v. City of Catoosa, Okla., 896 F.2d 1228, 1230 (10th Cir.1990). In conducting its analysis, the court will read the record "in the light most amiable to the nonmovant and indulge all reasonable inferences" favorable to the non-moving party. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). One of the principal purposes of summary judgment is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way consistent with this purpose. Celotex, 477 U.S. at 323-24, 106 S.Ct. at 2552-53.

The ADEA forbids an employer to "discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1).

The Portal-to-Portal Pay Act, 29 U.S.C. § 255, supplies the limitations period for actions brought under the ADEA. 29 U.S.C. § 626(e). The Portal-to-Portal Pay Act establishes two different limitations periods. Generally, the suit must be commenced within two years after the cause of action accrued. 29 U.S.C. § 255(a). If the cause of action arose from a "willful violation," however, the cause of action may be commenced within three years after the cause of action accrued. Id.

The Civil Rights Act of 1991 amended the applicable statute of limitations under the Portal-to-Portal Pay Act, 29 U.S.C. § 626(e), and there is some question as to whether or not this amended provision now provides the only appropriate statute of limitations. Under this new provision, the ADEA plaintiff must bring suit within 90 days of receiving notice of dismissal of the administrative charge or of termination of administrative proceedings before the EEOC.

This court has held that the Civil Rights Act of 1991 does not apply retroactively. White v. Union Pacific R.R., 805 F.Supp. 883, 889 (D.Kan.1992). The ruling in that case was, however, specifically concerned with § 101 of the Civil Rights Act of 1991 and its ability to modify 42 U.S.C. § 1983. The question before this court is whether to apply other sections of the Civil Rights Act of 1991 retroactively.

The Supreme Court stated that "retroactivity is not favored in the law. Thus, congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 208, 109 S.Ct. 468, 471, 102 L.Ed.2d 493 (1988). The circuits tackling this issue have, therefore, tried to imagine the possible congressional intent when no intent was expressly stated. Banas v. American Airlines, 969 F.2d 477 (7th Cir.1992); Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir.1992); Vogel v. Cincinnati, 959 F.2d 594 (6th Cir.); cert. denied, ___ U.S. ___, 113 S.Ct. 86, 121 L.Ed.2d 49 (1992).

One court has held that 29 U.S.C. § 626(e), as amended by the Civil Rights Act of 1991, applies to claims accruing prior to the effective date of the 1991 Civil Rights Act. In McConnell v. Thomson Newspapers, Inc., 802 F.Supp. 1484, 1494-95 (E.D.Tex.1992), the court reasoned that a statute of limitations was a procedural, not substantive, issue, and as such should be applied retroactively.

One circuit dealt generally with the retroactivity of procedural provisions of the Civil Rights Act of 1991. Mozee v....