Kenney v. Shaw Industries, Inc.

• Decision Date: 17 May 1991
• Docket Number: Civ. A. No. 4:89-cv-268-HLM.
• Citation: 764 F. Supp. 1504
• Parties: Warren J. KENNEY, Russell Lyons, Arthur Scher, Donald E. Stolberg, Donald R. Marshall, Willis J. Murdock, Robert F. Kardasz and Frank Key, Plaintiffs, v. SHAW INDUSTRIES, INC., Defendant.
• Court: U.S. District Court — Northern District of Georgia

764 F. Supp. 1504

Warren J. KENNEY, Russell Lyons, Arthur Scher, Donald E. Stolberg, Donald R. Marshall, Willis J. Murdock, Robert F. Kardasz and Frank Key, Plaintiffs, v. SHAW INDUSTRIES, INC., Defendant.

Civ. A. No. 4:89-cv-268-HLM.

United States District Court, N.D. Georgia, Rome Division.

May 17, 1991.

Mary Ann B. Oakley, Oakley & Bonner, Atlanta, Ga., for plaintiffs Warren J. Kenney, Russell Lyons, Arthur Scher, Frank Key, Janet R. Stolberg and Robert F. Kardasz.

Ronald P. Lilek, Office of Ronald P. Lilek, Wheaton, Ill., for plaintiff Donald R. Marshall.

Michael Stuart Pineda, Brown Dobson Burnette & Kesler, Chattanooga, Tenn., for plaintiff Willis J. Murdock.

David R. Aufdenspring, Dara L. DeHaven, James Michael Harley, Francis Anthony Landgraff, III, Powell Goldstein Frazer & Murphy, Atlanta, Ga., for defendant Shaw Industries, Inc.

ORDER

HAROLD L. MURPHY, District Judge.

This age discrimination suit filed pursuant to 29 U.S.C. §§ 621 et seq., is before the Court on Defendant's motion for summary judgment. After reading the hundreds of pages of briefs and examining the voluminous documentary evidence on file with the Court, it is clear that summary judgment is inappropriate in this case.

The Defendant, Shaw Industries, ("Shaw"), is a carpet manufacturer operating out of its headquarters in Dalton, Georgia. In 1987, Shaw acquired the carpet and rug division of West Point-Pepperell, Inc., ("WPP"). Each of the Plaintiffs¹ in this case were employed by the carpet and rug division of WPP in a sales or sales management position. The sales agreement between Shaw and WPP stated that "Shaw will offer employment to substantially all of WPP's carpet and rug division former employees ...; provided, however, that any employment by Shaw of former employees of the Division shall be in the sole discretion of Shaw, which shall have no obligation to enter into any such employment...." The Plaintiffs are among those individuals not rehired by Shaw following the acquisition of WPP. The Plaintiffs allege that Shaw's refusal to rehire them constitutes discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634.

I

The ADEA represents a comprehensive congressional scheme designed to prohibit and remedy employment discrimination based on age. The ADEA provides a cause of action for those individuals over forty years of age who suffer adverse employment decision based solely on their age. Plaintiffs who file ADEA claims are required to prove that age is a determinative factor in the employer's adverse employment decision. Young v. General Foods Corp., 840 F.2d 825, 828 (11th Cir. 1988), cert. denied, 488 U.S. 1004, 109 S.Ct. 782, 102 L.Ed.2d 774 (1989). There are at least three mechanisms by which a plaintiff can meet this burden. Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041 (11th Cir.1989), cert. dismissed sub nom, ___ U.S. ___, 110 S.Ct. 884, 107 L.Ed.2d 1012 (1990); Pace v. Southern Railway System, 701 F.2d 1383, 1388 (11th Cir.), cert. denied, 464 U.S. 1018, 104 S.Ct. 549, 78 L.Ed.2d 724 (1983). In ADEA jurisprudence this burden is referred to as the plaintiff's prima facia case. The plaintiff has the burden of proving the prima facia case by a preponderance of the evidence. Stanfield v. Answering Service, Inc., 867 F.2d 1290, 1293 (11th Cir.1989). Failure to establish a prima facia case or to rebut the defendant's asserted defense thereto entitles an employer to summary judgment. Earley v. Champion International Corp., 907 F.2d 1077, 1081 (11th Cir.1990); Young, 840 F.2d at 828.

In ADEA cases there are three methods by which a Plaintiff can carry his burden at the prima facia stage. First, a prima facia case can be proven through the use of direct evidence of the defendant-employer's discriminatory intent. In direct evidence cases, the plaintiff introduces evidence which, if believed, establishes that an employer acted with discriminatory motive in making an employment decision. Direct evidence is that quantity of evidence which tends to prove the existence of a fact without inference or presumption. Earley, 907 F.2d at 1081. "Only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of age, ... constitute direct evidence of discrimination. Ibid., quoting, Carter v. City of Miami, 870 F.2d 578, 582 (11th Cir.1989). If such evidence is produced, then the burden shifts to the employer to prove by a preponderance of the evidence that the same decision would have been reached absent any discriminatory intent. Buckley v. Hospital Corp. of America, 758 F.2d 1525, 1529-30 (11th Cir.1985).

A second method of drawing the nexus between age and adverse action by an employer is by statistical proof of a pattern or practice of discrimination. Pace, 701 F.2d at 1388. This method of establishing a prima facia case is necessary in those situations where the plaintiff is replaced by an individual who is himself or herself a member of the protected class. In this situation, "evidence of a pattern of terminating older workers ... allows the reasonable inference that age had played a role in plaintiff's discharge." Ibid., quoting, McCorstin v. U.S. Steel Corp., 621 F.2d 749 (5th Cir.1980). If a plaintiff relies solely on statistical evidence to prove discrimination, he has the burden of presenting sufficient proof which, in conjunction with other evidence, gives rise to an inference of discrimination. Pace, 701 F.2d at 1388.

Once this inference is established, the defendant-employer must rebut the inference which the statistical evidence produces by articulating a nondiscriminatory reason for the plaintiff-employee's discharge. If this is done, the plaintiff then must prove by a preponderance of the evidence that the employer's asserted reason is merely a pretext for a discriminatory dismissal. Verbraeken, 881 F.2d at 1045.

The final and most common method of proving an ADEA violation is through circumstantial evidence. In this instance, the plaintiff utilizes what is commonly referred to as the "McDonnell Douglas test." This test, adopted from the Supreme Court's decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) requires a plaintiff to establish a prima facia case by proving that he or she (1) was a member of the protected class, (2) was subject to an adverse employment action, (3) was replaced with a person outside the protected group,² and (4) was qualified to do the job. Verbraeken, 881 F.2d at 1045.

If this is a reduction-in-force case as contended by the Defendant,³ there is a variant of the McDonnell Douglas test that is applicable. In this instance, a plaintiff can establish a prima facia case by (1) demonstrating that he is a member of the protected group, (2) that he was qualified for the position held prior to the reduction-in-force decision, and (3) produce either direct or circumstantial evidence by which a fact finder can reasonably determine that the employer discriminated on the basis of age in reaching the decision at issue. See, Earley, 907 F.2d at 1082; Verbraeken, 881 F.2d at 1045-46.

If a plaintiff succeeds in establishing a prima facia case under the McDonnell Douglas approach, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory rationale for the discharge. Once the employer does so, the burden shifts back to the plaintiff to establish that the employer's asserted reasons for the adverse employment action are pretextual. If, at this stage, the plaintiff, fails to "present concrete evidence in the form of specific facts which show that the defendant's proffered reason is mere pretext the employer is entitled to summary judgment." Earley, 907 F.2d at 1081. Finally, the burden of proving discriminatory treatment remains with the plaintiff at all times. Ibid.

Having briefly set out the principal theories of liability and the corresponding standards of proof in the ADEA, the Court now considers the appropriate standard for summary judgment in age discrimination cases.

II

Federal Rule of Civil Procedure 56(c) authorizes 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." The party seeking summary judgment bears the burden of demonstrating that no dispute as to any material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Bingham, Ltd. v. United States, 724 F.2d 921, 924 (11th Cir.1984). The moving party's burden is discharged merely by "`showing' — that is, pointing out to the District Court — that there is an absence of evidence to support an essential element of the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986).

In assessing whether the movant has met this burden, the District Court must view the evidence and all factual inferences in the light most favorable to the party opposing the motion. See Bradbury v. Wainwright, 718 F.2d 1538, 1543 (11th Cir. 1983). Once the moving party has adequately supported its motion, the nonmovant then has the burden of showing that summary judgment is improper by coming forward with specific facts showing a genuine dispute that precludes the entry of summary judgment. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). Clark v. Coats & Clark Inc., 929 F.2d 604, 608, (11th Cir. 1991). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which a jury could reasonably find for the plaintiff." Earley, 907 F.2d at 1080, quoting, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986).

In deciding a motion for summary judgment, it is not part of the Court's function to decide issues of genuine...