Hatfield v. Columbia Federal Sav. Bank

• Decision Date: 17 May 1990
• Docket Number: No. 9751-0-III,9751-0-III
• Citation: 57 Wn.App. 876,790 P.2d 1258
• Parties: , 57 Fair Empl.Prac.Cas. (BNA) 1052, 125 Lab.Cas. P 57,382, 7 IER Cases 1732 John Burke HATFIELD, Appellant, v. COLUMBIA FEDERAL SAVINGS BANK, a Savings and Loan Bank, Respondent.
• Court: Washington Court of Appeals

Page 876

57 Wn.App. 876

790 P.2d 1258, 57 Fair Empl.Prac.Cas. (BNA) 1052,

125 Lab.Cas. P 57,382, 7 IER Cases 1732

John Burke HATFIELD, Appellant, v. COLUMBIA FEDERAL SAVINGS BANK, a Savings and Loan Bank, Respondent.

No. 9751-0-III.

Court of Appeals of Washington,

Division 3, Panel Four.

May 17, 1990.

Harry E. Ries, Larson, Tracy & Ries, Moses Lake, for appellant.

Thomas Lemly, Davis, Wright, Tremaine, Seattle, for respondent.

THOMPSON, Judge.

John Burke Hatfield appeals the summary dismissal of his causes of action against Columbia Federal Savings and Loan Association for age discrimination, breach of contract, and promissory estoppel. Because we find a genuine issue of material fact exists as to Mr. Hatfield's claim of age discrimination, we reverse that portion of the summary judgment.

Columbia Federal hired Mr. Hatfield, age 43, in 1973. In 1981, he was promoted to vice president of the loan servicing department. In 1985, Thomas Guderian, senior vice president and loan division manager, talked to Mr. Hatfield about assuming the position of conversion coordinator responsible for Columbia Federal's conversion to a new data processing system. Mr. Hatfield had served on the data processing committee and knew that the conversion itself would take only 8 months. He expressed concern to Mr. Guderian that the position would then terminate. He recalls Mr. Guderian making the following statement:

While we can't tell exactly what's going to happen to any of us in the future, I perceive this job as being ongoing for the next three to five years; that after the conversion is over there is the position of loan department liaison ... [P]lus there will be the coordinating of the conversion of some of our branches and some of our subsidiaries ... I can see this ongoing for a period of three to five years.... And the way we have seen the industry grow and knowing that as soon as we install a system it's antiquated, ... we'll start the same process over again at the end of three to five years.

Mr. Hatfield accepted the new position, and Larry Hough, who was 37, replaced him as vice president of the loan servicing department.

The conversion process was completed in February 1986. In March 1986, Mr. Hatfield was absent from work approximately 1 month due to surgery. On his second or third day back, Mr. Guderian called him into his office and told him Columbia Federal was eliminating his position. At the time, Mr. Hatfield was 56 years old. Mr. Guderian testified he and the other senior vice presidents looked for another position for Mr. Hatfield, but found none.

Mr. Guderian also testified that Mr. Hatfield's responsibility for coordinating data processing needs was distributed among the department heads, including Larry Hough. In a letter to Mr. Hough's personnel file dated July 1986 Mr. Guderian wrote that Mr. Hough: "[a]ssumed responsibilities of D.P. coordinator for the loan division. This also allowed company to eliminate a full-time permanent staff position." In Mr. Hough's opinion,

the way it was intended, ... each department manager would be responsible for their area. As it turned out, I think I took on somewhat some of that responsibility [of Mr. Hatfield's].

Mr. Guderian admits that Mr. Hatfield had concerns about the job's longevity and that they discussed the possibility that the position could grow. However, he says he had no idea how long the position would last when he suggested the transfer. According to Mr. Guderian, the primary reason he recommended elimination of Mr. Hatfield's position in the spring of 1986 was feedback he received from department heads that Mr. Hatfield was not performing his job of facilitating their contact with data processing. He stated that the various department heads told him that they preferred to work directly with the data processors.

When pressed for specifics, Mr. Guderian said that Esther Kontos, the operations manager, had complained to Larry Hough. Mr. Guderian admitted that he never relayed these complaints to Mr. Hatfield or attempted to work with him to improve his performance. The depositions of the department heads and some managers are included in the record. They all deny complaining about Mr. Hatfield's performance. Mr. Hough stated he believed Mr. Hatfield was doing a fine job. Prior to his termination, all of Mr. Hatfield's performance reviews were satisfactory or better.

In this action, Mr. Hatfield alleges that Columbia Federal discriminated against him on the basis of age when it transferred him to conversion coordinator and then terminated him. He also asserts that Columbia Federal violated its own written and unwritten policies, first when it failed to work with him to attempt to improve his allegedly deficient performance, and then when it did not place him in another job. Finally, Mr. Hatfield maintains Columbia Federal negligently misrepresented the conversion coordinator position. ¹ The Superior Court granted Columbia Federal's motion for summary judgment.

First, Mr. Hatfield contends that issues of material fact exist as to whether Columbia Federal eliminated his position for age related reasons.

Washington cases have relied upon federal decisions under the Age Discrimination Employment Act in setting forth the burden of proof in actions brought under RCW 49.60.180, ² which prohibits age discrimination in employment. In Roberts v. ARCO, 88 Wash.2d 887, 892, 568 P.2d 764 (1977), the court held that a plaintiff-employee has the initial burden of presenting a prima facie case of age discrimination. The plaintiff establishes a prima facie case of age discrimination when he shows that he was within the protected class, was discharged, was doing apparently satisfactory work, and was replaced by a younger person. ³ The burden of production then shifts to the defendant employer to show that the employee was discharged for reasons other than his age. Roberts. See also Brady v. Daily World, 105 Wash.2d 770, 777, 718 P.2d 785 (1986). In summary judgment cases, a plaintiff must respond sufficiently to create a genuine issue of material fact on the question of whether the defendant's reasons are a mere pretext. Pace v. Southern Ry. Sys., 701 F.2d 1383, 1391 (11th Cir.), cert. denied, 464 U.S. 1018 104 S.Ct. 549, 78 L.Ed.2d 724, (1983); McDaniel v. Mead Corp., 622 F.Supp. 351, 353 (W.D.Va.1985), aff'd, 818 F.2d 861 (4th Cir.1987).

Here, Mr. Hatfield produced proof sufficient to satisfy the first three elements of a prima facie case of age discrimination. He was within the protected class, he was discharged, and apparently was doing satisfactory work. Mr. Hatfield argues that he also produced proof of the fourth element, i.e., that he was replaced by a younger person. He relies upon Mr. Hough's testimony that after Mr. Hatfield was terminated, he assumed the responsibilities of the data processing coordinator for the loan division.

Columbia Federal counters that Mr. Hough took over only some of Mr. Hatfield's responsibilities. A showing that part of the discharged employee's duties subsequently were performed by other employees is not sufficient by itself to give rise to an inference of age discrimination. Husbands v. Econo Therm Energy Sys. Corp., 650 F.Supp. 294, 297 (D.Minn.1986). See also Raschick v. Prudent Supply, Inc., 830 F.2d 1497, 1500 (8th Cir.1987), cert. denied, 485 U.S. 935, 108 S.Ct. 1111, 99 L.Ed.2d 272 (1988). Here, the record reflects a dispute as to what Mr. Hatfield's responsibilities would have entailed, after the conversion to the new data processing system was completed. Mr. Hatfield testified that Mr. Guderian described the ongoing position as that of "loan department liaison". If this is accurate, then Mr. Hough replaced Mr. Hatfield in the sense he took over the responsibilities of data processing coordinator for the loan division. On the other hand, Mr. Guderian and John Cleve Borth, Columbia Federal's chief executive, testified that the new position would have served as a liaison between data processing and all of the departments and divisions.

In any event, it is not necessary to decide whether Mr. Hatfield raised an issue concerning his replacement by Mr. Hough. ⁴ The Supreme Court has indicated it does not intend the four elements of a prima facie case set out in Roberts to be either "rigid, mechanized, or ritualistic," or the exclusive method of proving a claim. Grimwood v. University of Puget Sound, Inc., 110 Wash.2d 355, 363, 753 P.2d 517 (1988) (quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1016-17 (1st Cir.1979)). In B. Schlei & P. Grossman, Employment Discrimination Law (2d ed.1983), the authors state at pages 498-99:

Courts have been flexible in adapting the McDonnell Douglas [Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ] test to age cases. The fourth part of the McDonnell Douglas test, that the job remained open, has been dispensed with in reduction-in-force cases and in cases where the plaintiff has introduced direct or circumstantial evidence of discriminatory intent or statistical evidence of discriminatory conduct.

(Footnotes omitted. Italics ours.) See, e.g., EEOC v. Western Elec. Co., 713 F.2d 1011, 1014-15 (4th Cir.1983); and McDaniel v. Mead Corp., supra at 357. "The ultimate issue is whether age was a factor in a decision of an employer to terminate [a] ... claimant and whether the age of claimant made a difference in determining whether he was to be retained or discharged." Ackerman v. Diamond Shamrock Corp., 670 F.2d 66, 70 (6th Cir.1982).

Has Mr. Hatfield come forward with evidence sufficient to create an inference that Columbia Federal was motivated by discriminatory intent when it terminated him? The evidence is that at the time Mr. Guderian asked Mr. Hatfield to transfer, Mr. Guderian told him the coordinator position "could grow". He later testified that one of Mr. Hatfield's jobs was to work with department heads and "make them dependent upon him getting...