Montgomery v. John Deere & Co.

• Citation: 169 F.3d 556
• Decision Date: 26 February 1999
• Docket Number: No. 98-1628,98-1628
• Parties: 80 Fair Empl.Prac.Cas. (BNA) 99, 22 Employee Benefits Cas. 2809, Pens. Plan Guide (CCH) P 23,952 William L. MONTGOMERY, Appellant, v. JOHN DEERE & COMPANY, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 556

169 F.3d 556

80 Fair Empl.Prac.Cas. (BNA) 99,

22 Employee Benefits Cas. 2809,

Pens. Plan Guide (CCH) P 23,952

William L. MONTGOMERY, Appellant, v. JOHN DEERE & COMPANY, Appellee.

No. 98-1628.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 17, 1998.

Decided Feb. 26, 1999.

Gary J. Shea, Cedar Rapids, IA, argued (Michael E. Sheehy, on the brief), for Appellant.

Thomas W. Foley, Des Moines, IA, argued (Frank Harty, on the brief), for Appellee.

Before BEAM and LAY, Circuit Judges, and SIPPEL, ¹ District Judge.

BEAM, Circuit Judge.

William L. Montgomery appeals from the magistrate judge's grant of summary judgment ² in favor of his former employer, John Deere & Company (Deere). Montgomery alleges that Deere discharged him in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq., Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq., the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001 et seq., the disability, age, and race provisions of the Iowa Civil Rights Act (ICRA), Iowa Code §§ 216.1 et seq., ³ and Iowa public policy. The magistrate judge granted Deere's motion for summary judgment on all counts. We affirm.

I. BACKGROUND

Montgomery, who is part Cherokee Indian, began to work for Deere in June of 1966. During Montgomery's employment with Deere, he held various titles and performed numerous job functions. In 1973, he was transferred to Deere's foundry in Waterloo, Iowa. In approximately 1980, Montgomery was diagnosed as suffering from narcolepsy. ⁴ In 1989, Montgomery was assigned to work in the foundry's safety department under the direct supervision of Ronald Parr. In the safety department, Montgomery was responsible for administering the company's Right to Know program, its Confined Spaces program, and other tasks associated with industrial hygiene and safety.

In 1992, Montgomery was reassigned to the environmental compliance area under the supervision of Randy McDougall. Prior to that time, Montgomery had never had any involvement in environmental compliance activities or projects. His chief duties in his new position were preparation of monthly discharge monitoring reports for submission to the Iowa Department of Natural Resources (IDNR reports) and the City of Waterloo weekly site compliance and storm water pollution prevention inspections, and preparation of monthly reports of these inspections. Montgomery also retained some of the job responsibilities he performed in the safety division. After numerous incidents of alleged deficiencies and tardiness in preparation of the IDNR reports and other tasks, Montgomery was discharged from his employment in August 1994. At the time of his discharge, Montgomery was fifty-two years old and held the job title of senior engineer analyst.

In essence, Deere claims that Montgomery was discharged because of his persistent poor work performance, beginning at least in 1993 until his eventual discharge in August of 1994. Montgomery contends that these allegations are false and that instead, his discharge was motivated by discrimination.

II. DISCUSSION

We review the grant of summary judgment de novo, applying the same standards as the district court. See Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1331 (8th Cir.1996). Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 775 (8th Cir.1995). At oral argument, Montgomery conceded that his strongest claims were those based on age discrimination, ERISA, and wrongful discharge in violation of Iowa public policy. We agree and accordingly limit discussion to those claims.

A. Age Discrimination

It is unlawful under the ADEA for an employer to discharge an employee because of his or her age. See 29 U.S.C. § 623(a)(1). The protected age group consists of those age forty or older. See id. § 631(a). Under the ADEA, a plaintiff may demonstrate age discrimination by either direct or indirect evidence. See Beshears v. Asbill, 930 F.2d 1348, 1353 (8th Cir.1991). On appeal, both parties argue that this is an indirect evidence case, and we treat it accordingly. To avoid summary judgment in such a case, a plaintiff must establish a prima facie case of age discrimination by producing evidence 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 person. See Ziegler v. Beverly Enterprises-Minnesota, Inc., 133 F.3d 671, 675 (8th Cir.1998). If a prima facie showing is made, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the plaintiff's discharge. See Rothmeier, 85 F.3d at 1332. If the employer meets that burden, the plaintiff may avoid summary judgment only if he presents evidence that, in its entirety, "(1) creates a fact issue as to whether the employer's proffered reasons are pretextual and (2) creates a reasonable inference that age was a determinative factor in the adverse employment decision." Id. at 1336-37.

We are skeptical that Montgomery has, in fact, established a prima facie case of age discrimination in terms of showing that he was adequately performing the duties of his job. Even assuming that Montgomery did establish a prima facie case, we find that he did not present evidence sufficient to support a finding that Deere's declared reason for firing him was a pretext for age discrimination.

Montgomery argues that Deere embarked upon a plan or scheme to terminate him because of his age by setting him up to fail. In support of this theory, he points to the following facts: (1) he was transferred from a job in the safety division for which he was highly qualified to a job in the environmental compliance area, for which he had little experience; (2) he was repeatedly asked when he was going to retire or if he would retire if a special early retirement program was offered to him; (3) after he refused an offer of early retirement in June of 1993, his job assignments and responsibilities dramatically increased to the point of inevitable failure; (4) during his twenty-eight year employment with Deere, he had never received an unsatisfactory review; and (5) he was continually referred to as the "old fart" by McDougall and others. After carefully reviewing the record, we conclude that these facts alone do not support a finding of age discrimination.

First, the record does not support Montgomery's allegation that Deere transferred him to the environmental compliance area in order to make him fail. The record shows that Montgomery was transferred to the environmental compliance area because that area was short-staffed and management felt that he was qualified for the new post. Montgomery was trained regarding his new work assignments and was told to seek assistance if he was having any difficulties or confusion regarding his tasks. Deere gave him over a year and a half to learn the duties of his new position before discharging him for unsatisfactory performance in August of 1994.

Second, the fact that Montgomery was regularly offered early retirement does not by itself violate the ADEA. We have stated before that an employer may make reasonable inquiries into the retirement plans of its employees and that a plaintiff should not be able to rely on those inquiries to prove intentional discrimination. See Cox v. Dubuque Bank & Trust Co., 163 F.3d 492, 497 (8th Cir.1998). However, retirement inquiries can sometimes be so unnecessary and excessive as to constitute evidence of discriminatory harassment. See id. Montgomery has not presented evidence that such was the case here.

Third, the record does not support Montgomery's claim that Deere dramatically increased his job duties following his refusal to accept an early retirement offer in June 1993. McDougall did send Montgomery a letter in August 1993, informing him that he must temporarily assume some additional tasks. However, the record reveals that this increase stemmed from the reassignment of duties that belonged to a departing employee, and that McDougall evenly split the increased workload between himself and Montgomery. Furthermore, in July 1994, about a month prior to Montgomery's discharge, McDougall actually relieved Montgomery of many of his tasks by reassigning them to others and leaving Montgomery with only five duties including the preparation of the IDNR reports. ⁵

Fourth, Montgomery claims that throughout his employment with Deere he never received an unsatisfactory review. However, the record shows that a May 1993 evaluation of Montgomery's work ranked him between low and medium in the categories of "responsiveness to job demands," "personal efficiency," and "personal communication skills." The report further noted that Montgomery was not completing tasks on time; frequently talked to others about non-work related activities; was easily distracted; did not make up missed work time; and was wordy and disjointed in his verbal and written communications. Furthermore, a review of Montgomery's annual evaluations from 1991 to 1993 reveals a progressive decline in his work performance.

Finally, Montgomery asks us to draw an inference of age discrimination from the fact that he was frequently referred to as the "old fart" by McDougall and others. We held in Ryther v. KARE 11, 108 F.3d 832, 842-44 (8th Cir.1997), cert. denied, 521 U.S. 1119, 117 S.Ct. 2510, 138 L.Ed.2d 1013 (1997), a pretext case, that co-employees' statements that the plaintiff was an "old fart," "old man," and "too old to be on the air," along with other evidence,...