Johnson v. Securitas Sec. Servs. United States, Inc.

Decision Date07 October 2014
Docket NumberNo. 12–2129.,12–2129.
Citation769 F.3d 605
PartiesCarlyn M. JOHNSON, Plaintiff–Appellant v. SECURITAS SECURITY SERVICES USA, INC., Defendant–Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

OPINION TEXT STARTS HERE

Lawrence P. Kaplan, argued, Saint Louis, MO (Joshua M. Avigad, on the brief), for appellant.

Burton D. Garland, Jr., argued, Saint Louis, MO (Heidi Kuns Durr, on the brief), for appellee.

Before RILEY, Chief Judge, WOLLMAN, LOKEN, MURPHY, BYE, MELLOY, SMITH, COLLOTON, GRUENDER, BENTON, SHEPHERD, and KELLY, Circuit Judges, En Banc.

BYE, Circuit Judge, with whom RILEY, Chief Judge, WOLLMAN, LOKEN, MURPHY, COLLOTON, GRUENDER, BENTON, and SHEPHERD, Circuit Judges, join, concurring.

After being fired from his position with Securitas Security Services USA, Inc. (Securitas) at the age of seventy-six, Carlyn Johnson filed this age discrimination claim under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621–634. The district court 1 granted summary judgment in favor of Securitas, concluding Johnson had not submitted sufficient evidence to raise questions of material fact regarding a necessary element of a prima facie case of age discrimination. Johnson now appeals. We affirm.

I

Johnson has worked as a security guard since the late 1990s. In 2003, when the security firm then employing Johnson was bought out by Securitas, Johnson applied to and was hired by Securitas. Johnson was seventy at the time. At Securitas, Johnson worked as a utility security officer. In this role, he did not have a regular schedule, post, or manager but was instead offered shifts by various Securitas managers when they needed someone to fill in for security guards at the sites for which each was responsible.

Johnson's work history with Securitas was generally positive. He had a reputation for being dependable and never refusing an offered shift, even when accepting required Johnson to work multiple consecutive shifts. Robert Hesse, one of Securitas's field service managers, took to referring to Johnson by the nickname “Superman” at least in part to reflect Johnson's dependability.

Hesse, however, had concerns about Johnson's ability to work long hours and multiple consecutive shifts. Hesse talked to other Securitas field service managers on multiple occasions, recommending against scheduling Johnson for shifts which would cause him to work more than forty hours in a given week. On several occasions, Hesse compared Johnson to Hesse's retired father who, Hesse claimed, tried to take on work beyond his capabilities. On other occasions, Hesse also commented to both Johnson and Johnson's wife that Johnson was “too old” to be working and it was “time to hang up [Johnson's] Superman cape and retire.”

One of Securitas's clients in 2009 was Rail Logistics. Rail Logistics contracted with Securitas for a security guard to patrol its site during two regular weekend shifts, from 4:00 p.m. Saturdays to 8:00 a.m. Sundays, and from 4:00 p.m. Sundays to 6:00 a.m. Mondays. In the weeks leading up to the incident for which he was fired, Johnson worked several shifts at Rail Logistics, some ending at 8:00 a.m. and some ending at 6:00 a.m. The week before the shift for which he was fired, Johnson worked the Saturday night to Sunday morning shift at Rail Logistics, which ended at 8:00 a.m.

Shortly after 5:30 a.m. on the morning of Sunday, January 25, 2009, while Johnson was working a shift at the Rail Logistics site, the Securitas vehicle in which Johnson was patrolling collided with a stationary semi-trailer. The collision damaged the Securitas vehicle. Securitas has a policy which requires its employees to report vehicle accidents as soon as possible. Securitas guards did not, however, have access to a phone at the Rail Logistics site and Securitas had not provided Johnson with a cell phone or radio. As a result, Johnson attempted to use his own cell phone to report the collision to Securitas. Despite several tries, however, Johnson's cell phone was unable to get a strong enough signal to connect to the Securitas office.

Johnson remained on the site until approximately 7:00 a.m., whereupon he left it to drive the damaged vehicle back to the Securitas office. Along the way, he stopped to use his cell phone in another attempt to report the collision. At 7:02 a.m., Johnson reached Charlie Bunch, the Securitas field service manager on duty. Johnson reported the collision and told Bunch the Rail Logistics shift was over and he was on his way back to the Securitas office. Bunch, who was new to the shift and unfamiliar with the time at which the Rail Logistics shift ended, told Johnson to drop off the Securitas vehicle and go home, indicating to Johnson he would call Johnson back to the office if needed. Johnson did so.

Bunch went to the Securitas parking lot to assess the damage to the vehicle Johnson had been driving. Bunch then began preparing an accident report, initially indicating Johnson's shift had ended at 7:00 a.m. Shortly after 8:00 a.m., Bunch called Hesse, the manager responsible for the Rail Logistics account, to inform him of the accident. Hesse informed Bunch the Rail Logistics shift had been supposed to end at 8:00 a.m. instead of 7:00 a.m. Bunch changed the notation in his accident report accordingly. After the call to Hesse, Bunch called Johnson back to the office to take a blood test pursuant to Securitas policy.2 Johnson complied. Bunch then called Sherri Parker, Securitas's human resources manager for the region, to inform her of the accident and Johnson's possible early unauthorized departure from the Rail Logistics site. The Securitas Security Officer Handbook lists unauthorized departure from a job site as an offense for which Securitas may immediately terminate an employee. The following morning, as part of the human resources investigation, Parker conversed with both Hesse and Bunch about the incident. Parker originally made notes of these conversations as a matter of personal habit, but destroyed the notes sometime after Johnson was fired.

On Wednesday, January 28, 2009, Hesse called Johnson and told him to expect a call from Parker. During this call, Hesse again commented to Johnson it was “time to hang up [his] Superman cape and retire.” Shortly thereafter, Parker called Johnson. During the call, she asked Johnson if he had been born in 1932. Parker then informed Johnson his employment with Securitas had been terminated and asked him to come to the Securitas office to answer questions about the accident. Johnson responded, saying he would not return to the office as he had been fired. Parker then obtained Johnson's answers to her questions over the phone. Securitas did not hire anyone to replace Johnson.

In the months which followed, Johnson filed several complaints with Securitas's in-house hotline, claiming his firing had been the result of mistake and age discrimination. Johnson ultimately filed this suit. After discovery, Securitas moved for summary judgment. The district court granted the motion, concluding Johnson had failed to raise genuine questions of material fact regarding a necessary element of a prima facie case of age discrimination. The district court also held, in the alternative, Johnson had failed to submit sufficient evidence to raise a genuine question of material fact regarding whether Securitas's stated reasons for terminating Johnson had been pretext for age discrimination.

Johnson appealed, arguing the district court erred by granting Securitas summary judgment. A divided panel of this court reversed. The full court subsequently granted Securitas's petition for rehearing en banc.

II

On appeal, Johnson contends the district court erred in granting Securitas summary judgment, offering a number of arguments he has submitted sufficient evidence to raise genuine questions of material fact regarding each of the elements of his age discrimination claim.3 We review a grant of summary judgment de novo and may affirm the judgment of the district court on any basis supported by the record. Hohn v. BNSF Ry. Co., 707 F.3d 995, 1000 (8th Cir.2013) (citing St. Martin v. City of St. Paul, 680 F.3d 1027, 1032 (8th Cir.2012)). Like the district court, we give the nonmoving party the benefit of all reasonable inferences which may be drawn without resorting to speculation. Chappell v. Bilco Co., 675 F.3d 1110, 1114 (8th Cir.2012) (citations omitted).

Employment discrimination claims in cases where, as here, there is no direct evidence of discrimination, are considered under the burden shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Gibson v. Am. Greetings Corp., 670 F.3d 844, 855 (8th Cir.), cert. denied, ––– U.S. ––––, 133 S.Ct. 313, 184 L.Ed.2d 154 (2012). Under this framework, a plaintiff must first establish a prima facie case of age discrimination, which, if sufficiently alleged, creates a presumption the employer engaged in unlawful discrimination. Ridout v. JBS USA, LLC, 716 F.3d 1079, 1083 (8th Cir.2013) (citations omitted). Establishing a prima facie case also shifts the burden to the employer to articulate a legitimate, nondiscriminatory reason for its actions. Id. If the employer carries its burden, the presumption is eliminated and the burden shifts back to the employee, who must then prove the employer's asserted reason was merely pretext for discrimination. Id. To survive summary judgment, an employee must both discredit the employer's articulated reason and demonstrate the “circumstances permit a reasonable inference of discriminatory animus.” Gibson, 670 F.3d at 856 (quoting Haigh v. Gelita USA, Inc., 632 F.3d 464, 470 (8th Cir.2011)). An employee's attempt to prove pretext requires more substantial evidence of discrimination than required to make a prima facie case because we view this evidence in light of the reasons articulated by the employer. Jones v. United Parcel Serv., Inc., 461 F.3d 982, 992 (...

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