Ingels v. Thiokol Corp., 92-4117

• Decision Date: 12 December 1994
• Docket Number: No. 92-4117,92-4117
• Citation: 42 F.3d 616
• Parties: 67 Fair Empl.Prac.Cas. (BNA) 1058, 65 Empl. Prac. Dec. P 43,419, 129 Lab.Cas. P 57,860 Roland T. INGELS, Plaintiff-Appellant, v. THIOKOL CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 616

42 F.3d 616

67 Fair Empl.Prac.Cas. (BNA) 1058,

65 Empl. Prac. Dec. P 43,419,

129 Lab.Cas. P 57,860

Roland T. INGELS, Plaintiff-Appellant, v. THIOKOL CORPORATION, Defendant-Appellee.

No. 92-4117.

United States Court of Appeals Tenth Circuit.

Dec. 12, 1994.

David H. Schwobe of Perkins, Schwobe & McLachlan, Salt Lake City, UT (Mark C. McLachlan of Perkins, Schwobe & McLachlan, with him on the brief), for plaintiff-appellant.

Janet Hugie Smith of Ray, Quinney & Nebeker, Salt Lake City, UT (Michael E. Blue of Ray, Quinney & Nebeker, with her on the brief), for defendant-appellee.

Before BRORBY, McWILLIAMS, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Plaintiff-Appellant Roland T. Ingels ("Ingels") appeals the district court's grant of summary judgment to his former employer, Thiokol Corporation, on three claims stemming from Ingels' release from Thiokol in a reduction in force ("RIF"). Ingels claims that Thiokol: 1) discriminated against him based on age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Sec. 623(a); 2) breached an implied-in-fact employment contract under state law; and 3) did not rehire him in retaliation for his administrative action against Thiokol, in violation of 29 U.S.C. Sec. 623(d). On appeal, Ingels claims that genuine issues of material fact preclude summary judgment on the age discrimination and state contract claims. In addition, he argues that the district court erred in dismissing his retaliatory non-rehire claim for failure to exhaust administrative remedies. For the reasons stated, we affirm in part, reverse in part, and remand for further proceedings.

FACTS

Roland Ingels was 64 when Thiokol Corporation dismissed him along with 161 other employees of Thiokol's Strategic Operations Division in July 1989. Ingels had been employed by Thiokol for eleven years at the time of his dismissal. He was employed as an engineer in the Logistics Department, within the Strategic Operations Division, which merged with the Systems Requirement Department to become the Systems Requirements and Logistics Department. Ingels primarily performed logistical support tasks for government missile and rocket programs, and received consistently good reviews during his career at Thiokol.

Nineteen-Eighty-Nine was a turbulent year for Ingels and the Logistics Department at Thiokol. In the spring, Thiokol merged the Logistics Department with the Systems Requirements Department in order to save the cost of having two department heads. Roger Kelly was named the supervisor of the new combined department. Kelly was formerly supervisor of the Systems Requirements Department. At the time that he became Ingels' supervisor, Kelly had little detailed knowledge of the work that the former Logistics Department performed or the backgrounds of its employees.

In June 1989, Thiokol management decided to institute a RIF in the Strategic Operations Division. Thiokol claims that this RIF was necessitated by the partial termination of a contract to build a small I.C.B.M. for the United States Air Force and the general economic downturn in the defense contracting industry at the time.

There is some confusion in the record as to exactly how Ingels was chosen to be one of Kelly recalled the process somewhat differently. He does not recall actually making a "totem-pole," a term with which he was unfamiliar. Kelly explained that Scivally requested that he identify two individuals for the RIF. He supplied the names of Ingels and Bennett, with Ingels on the line below Bennett. He explained that he did not distinguish between them in terms of priority or value to his department. Kelly indicated that he picked Ingels because Ingels was only performing a task called "standardization" that could easily be completed by other workers. ¹ Kelly further described his criteria for picking Ingels and Bennett:

                the employees for the RIF in June and July of 1991.  As discussed, Roger Kelly was the supervisor of the Systems Requirements and Logistics Department and Ingels' immediate boss.  Kelly reported to Jesse Scivally, manager of the Design Support Department, who, in turn, reported to D.J. Hammon, Vice President of the Strategic Engineering Division.  In his deposition, Scivally testified that Hammon directed him to "totem-pole" the employees in his department--that is, to rank them from most to least expendable in terms of the department's needs.  In turn, Scivally claims that he requested Kelly and three other supervisors in his department to "totem-pole" their employees in a similar fashion and report back to him.  Upon receiving the "totem-poles" from the four supervisors, Scivally integrated them into an overall "totem-pole" for his Design Support Department.  He was told to choose one person from his department for dismissal.  Ingels' name was at the bottom of the Kelly and Scivally "totem-poles."   Wayne Bennett, a 29 year old engineer for the systems requirements side of the Systems Requirements and Logistics Department, was the next person up from Ingels on the list.  When asked what distinguished Ingels from Bennett, Scivally described Bennett as demonstrating more "versatility."   Scivally presented Ingels' name to Hammon for the RIF
                

I went back and thought about the individuals that worked for me and what they did, how important they--the functions they were performing were, whether I could do without that particular function, could it be--is it required by contract; if it was, can it be done by someone else that has--that's doing a function that I also need.

Aplt.App. at 208. Kelly believed that both employees would be dismissed as part of the RIF.

At about the same time that this process was occurring, Hammon's secretary asked Kelly to find out about Ingels' retirement plans. Kelly claims in an affidavit that Hammon's secretary did not identify the purpose of the inquiry, but noted that it was a common inquiry and did not surprise him. Kelly asked one of Ingels' coworkers about Ingels' retirement plans but learned nothing. He did not pursue the topic further. Kelly recalls that he made this inquiry during the first week of July, and that he knew nothing of the RIF until the week afterward.

Ingels, as noted above, was dismissed on July 31, and was the only person let go from the Systems Requirements and Logistics Section. Unlike employees in earlier RIFs, Ingels was not transferred to another part of the Thiokol operation, which Ingels claims was contrary to Thiokol's RIF policy that it had made available to all employees. The RIF policy document stated that Thiokol would retain the employees with the greatest continuous service when all other factors were equal, grant employees prior notice of the RIF, consider terminated employees for transfer, give a preference to terminated employees over new hires, and ensure that an individual termination is appropriate when a terminated employee has greater seniority than a retained employee within the same classification. Ingels also claims that no consideration was taken of his veteran status, as required by Thiokol's affirmative action policy. However, Ingels does not point to any evidence to suggest that he was treated differently than the other 161 employees terminated in this RIF.

After exhausting his administrative remedies by filing a charge with the Utah Anti- Thiokol moved for summary judgment pursuant to Fed.R.Civ.P. 56. The district court assumed for the purposes of the summary judgment motion that Ingels had shown a prima facie case of discrimination. The court then found that Thiokol had met its burden of presenting a legitimate, nondiscriminatory reason for its decision to terminate Ingels. However, the district court found that Ingels had not presented enough evidence to suggest that Thiokol's proffered explanations were pretextual:

Discrimination Division and the EEOC, Ingels filed a complaint in the United States District Court for the District of Utah, claiming that Thiokol had discriminated against him on the basis of his age in violation of the ADEA, 29 U.S.C. Sec. 623(a), and had violated an implied contract under Utah law that was formed by the Thiokol RIF policy and the affirmative action policy. During discovery, Ingels learned that Thiokol had hired additional employees into the Logistics Department four months after he had been released. He thus amended his complaint to include a retaliatory non-rehire claim under 29 U.S.C. Sec. 623(d) of the ADEA. Ingels did not pursue any administrative action on the retaliatory non-rehire claim.

Plaintiff points to several contested issues, and to several perceived inconsistencies in the testimony of Thiokol's managers to support his argument of pretext. However, none of these "facts" suggests that age discrimination was in any way a motivation for the termination. Plaintiff offers mere conjecture.

District Court Order of June 30, 1992 at 2.

The district court granted summary judgment on the breach of implied contract claim because it found no genuine issue of fact as to whether the implied-in-fact contract had been created. The district court pointed to the existence of explicit language in the employee handbook which disclaimed the creation of contractual obligations.

Finally, the district court construed the summary judgment motion as a motion to dismiss the retaliatory non-rehire claim and dismissed that claim without prejudice. The district court found that Ingels had failed to file an administrative charge on this claim, and held that administrative filing is required in cases of failure to rehire because the original discharge and the retaliation are completely separate.

On appeal, Ingels claims that a genuine issue of material fact exists regarding his age discrimination and contract claims, and that administrative filing of a retaliatory non-rehire claim was unnecessary when he had already filed an administrative claim alleging wrongful discharge on the...