Hitt v. Harsco Corporation, 356 F.3d 920 (Fed. 8th Cir. 1/30/2004)

• Decision Date: 30 January 2004
• Docket Number: No. 03-2332.,03-2332.
• Citation: 356 F.3d 920
• Parties: William HITT, Appellant v. HARSCO CORPORATION, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

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356 F.3d 920

William HITT, Appellant v. HARSCO CORPORATION, Appellee.

No. 03-2332.

United States Court of Appeals, Eighth Circuit.

Submitted: November 21, 2003.

Filed: January 30, 2004.

Petition for rehearing is denied March 3, 2004.

The petition for rehearing by the panel filed by Appellant Hitt is denied,

Keith Blackman, argued, Jonesboro, AR, for appellant.

Charles W. Reynolds, argued, Little Rock, AR (Monte D. Estes, on the brief), for appellee.

Before MELLOY, RICHARD S. ARNOLD, and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

William Hitt appeals the district court's¹ grant of summary judgment for defendant Harsco Corporation ("Harsco") dismissing Hitt's claim under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621-34. Reviewing the district court's decision de novo, we affirm.

I.

This dispute arises from Harsco's termination of Hitt's employment based on what Harsco asserts was a violation of company rules. Harsco says Hitt was fired for violating a rule against "aggressing or becoming involved in fighting." Hitt alleges that he was really fired because of his age, and that the company's explanation is a mere pretext.

Between 1992 and 2000, Hitt was employed by Harsco at its industrial support plant in Armorel, Arkansas. Hitt's responsibilities included operating a road grader, backhoe, pot carrier and bulldozer. When he was terminated in August 2000, Hitt was 65 years of age.

Hitt's son-in-law, Mark Odom, age 34, also worked at the Harsco plant. As of August 2000, tension had arisen between Hitt and Odom. Hitt believed that his grandson — Odom's son — had an injury to his hand as a result of abuse by a third party. Hitt had been trying to get custody of the child, and Odom refused even to allow contact between Hitt and his grandson.

On the morning of August 23, 2000, there was an altercation between Hitt and Odom at the Harsco plant. Hitt sought out Odom in the employee break room. With a raised voice, Hitt asked Odom what was wrong with the child's hand Odom replied that he did not know. Hitt then said "yeah, you do know. You know what the problem is with his hand" Witnesses reported that Hitt told Odom that he would "kick his ass" because of the dispute over Hitt's grandson. As the discussion became heated, Odom said, "that's something we need to talk about outside."

Hitt followed Odom outside, while a group of employees gathered. According to Hitt, they "probably" thought they were going to see a fight. Witnesses later reported to Harsco supervisors that Hitt cursed and attempted to punch Odom, and that Odom retaliated by kicking Hitt.

Odom left the plant immediately after the incident. Hitt went to a plant foreman, Paul Smith, to tell him what happened. According to Hitt, Smith replied by saying, "Old man, you are too old to be fighting." Hitt claimed that he wasn't fighting, but that he was only asking about his grandchild, and that Odom kicked him.

At the end of the day, Harsco suspended both Hitt and Odom. Hitt's supervisor, Rodney Barnes, and John Schmalzried, the regional business director, conducted an investigation of the incident by interviewing eyewitnesses.

Schmalzried reported the results of the investigation to Robert Imhof, Harsco's Director of Industrial Relations. Imhof, whose office was in Pennsylvania, had the ultimate authority to hire and discharge Harsco employees. Schmalzried told Imhof that two employees were involved in a "heated discussion" in the breakroom that had then moved outside. He reported that eyewitnesses said one employee had thrown punches and the other employee had kicked back in defense or retaliation. Schmalzreid did not inform Imhof of the identities of the employees, or of their ages, when he made this report.

Imhof decided that both men should be terminated pursuant to Harsco's General Conduct rule 6: "An employee guilty of horseplay, agitating, aggressing or becoming involved in fighting will be subject to disciplinary action, including discharge." No one was hired to replace Hitt. After his termination, Hitt's responsibilities were redistributed among Harsco's remaining employees.

Approximately 30 days after Hitt's termination, Harsco underwent a reduction-in-force. Hitt alleges that all members of his former crew over age 50 were laid-off during the downsizing. Layoffs were decided by plant supervisors in a series of meetings that occurred over a number of days leading up to the workforce reduction.

At some point following Hitt's termination, Hitt's wife, Brenda, contacted Imhof's office to complain about Hitt's termination. In response to these calls, Imhof visited the Hitts at their home. Hitt alleges when he related his version of the altercation with Odom, Imhof replied by saying he had been "misinformed" when he decided to terminate Hitt.

Hitt filed a charge of age discrimination with the Equal Employment Opportunity Commission ("EEOC"). The EEOC concluded that Hitt was terminated because of his involvement in a fight. After being issued a right to sue letter from the EEOC, Hitt filed the instant action alleging that Harsco fired him in violation of the ADEA. The district court granted summary judgment on the ground that Hitt failed to present evidence sufficient to create a reasonable inference that Harsco unlawfully discriminated on the basis of age.

II.

The district court should enter summary judgment when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.Proc. 56(c). The non-moving party may not rest upon mere allegations or denials of the moving party's pleading, but must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.Proc. 56(e). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Like the district court, we give the non-moving party the benefit of reasonable inferences that may be drawn without resorting to speculation.

The ADEA makes it unlawful for an employer to discriminate against an employee on the basis of the employee's age if the employee is 40 years of age or older. Given the evidence in this case, the parties agree that Hitt's claims are properly analyzed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Under that analysis, the plaintiff must first establish a prima facie case that the defendant violated the statute. To make such a case under the ADEA, the plaintiff must ordinarily show that: (1) he is a member of a protected age group; (2) he was performing his job at a level that met his employer's legitimate expectations; (3) he was discharged; and (4) he was replaced by a younger worker. E.g., Ziegler v. Beverly Enterprises-Minnesota, Inc., 133 F.3d 671, 675 (8th Cir. 1998). Where, as here, the plaintiff's responsibilities were not reassigned to a specific individual, we have said the plaintiff must satisfy the fourth element of the prima facie case by showing "age was a factor in the employer's decision to terminate." Yates v. Rexton, Inc., 267 F.3d 793, 799 (8th Cir. 2001); see also Reynolds v. Land O'Lakes, Inc., 112 F.3d 358, 361 (8th Cir. 1997).

If an age discrimination plaintiff has established a prima facie case, the burden shifts to the defendant to "`produc[e] evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason.'" Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142 (2000) (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)). If the employer meets its burden to produce such evidence, then the plaintiff must "`prove by a preponderance of the...