Oglesby v. Hy-Vee, Inc.

Decision Date01 December 2005
Docket NumberNo. CIV.A. 04-2440-KHV.,CIV.A. 04-2440-KHV.
Citation402 F.Supp.2d 1296
CourtU.S. District Court — District of Kansas
PartiesMichael A. OGLESBY, Plaintiff, v. HY-VEE, INC., Defendant.

Mark A. Buchanan, Sanders, Simpson & Fletcher, L.C., Kansas City, MO, for Plaintiff.

Jeannie M. Deveney, Spencer Fane Britt & Browne, Overland Park, KS, Katherine A. Hansen, Spencer Fane Britt & Browne, Kansas City, MO, for Defendant.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Michael A. Oglesby brings suit against Hy-Vee, Inc., alleging employment discrimination, harassment and retaliation in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. This matter comes before the Court on Defendant's Motion For Summary Judgment (Doc. # 50) filed June 17, 2005. For reasons stated below, the Court sustains the motion.

I. Legal Standards

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. 2505.

The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.

"[W]e must view the record in a light most favorable to the parties opposing the motion for summary judgment." Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.

"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed.R.Civ.P 56(e). Rule 56(e) also requires that "copies of all papers or parts thereof referred to in an affidavit be attached thereto or served therewith." To enforce this rule, the Court ordinarily does not strike affidavits but simply disregards those portions which are not shown to be based upon personal knowledge or otherwise do not comply with Rule 56(e). Maverick Paper Co. v. Omaha Paper Co., Inc., 18 F.Supp.2d 1232, 1234-35 (D.Kan.1998).

II. Facts

The following facts are either uncontroverted or, where controverted, construed in the light most favorable to plaintiff:1

A. Plaintiff's Job At Hy-Vee

In 1990, plaintiff began working for Hy-Vee. He was 39 years old.2 From 1990 to 1997, plaintiff worked at a Hy-Vee grocery store at 95th and Quivira Street as cashier, sacker, mid-afternoon stocker, supervisor and Ticketmaster salesperson. Plaintiff also worked in the scanning department. In August of 1997, when plaintiff was about 46 years old, he transferred to a Hy-Vee store at 91st and Metcalf and worked as scanning coordinator. As scanning coordinator, plaintiff's duties included entering products into the scanning system, and making sure that ads hung correctly and prices rang up correctly. Plaintiff typically worked on Tuesdays and Thursdays from 10:00 p.m. to 8:00 a.m. and on Saturdays and Sundays from 4:00 a.m. to 2:00 p.m.3 On some nights, plaintiff spent four to six hours working on a computer. On Tuesday nights, he did not spend much time at the computer because he was busy hanging ads in the frozen foods, dairy, nonfoods and health and beauty areas.

The scanning office was located in back of the store and had a window and door which locked. It was a small office with three chairs and three computers. A person could reach the door and light switch while sitting on the chair closest to the door. On weekends, plaintiff shared the office with Dave Herrick, inventory manager. Plaintiff considered Herrick a friend.

On Tuesday and Thursday nights, plaintiff typically worked with Jose Estrada, night stock manager.4 As night stock manager, Estrada took care of the store during overnight hours and supervised ten or eleven crew members. Although Estrada was the most senior person at the store during overnight hours, he never directly supervised plaintiff, i.e. he never told plaintiff what to do. Plaintiff and Estrada considered each other friends, and Estrada never had any problems with plaintiff. Estrada typically communicated with the store director through Dave Herrick, inventory manager.

On Tuesday and Thursday nights, Estrada regularly observed plaintiff working on the computer in the scanning office. Estrada saw that plaintiff almost always left the office door open and the light on. The only time that he observed the door closed and locked was when no one was in the scanning office.

B. Plaintiff's Relationship With Brett Bremser

In September of 2002, Brett Bremser, store director, talked to plaintiff about the "old-school Hy-Vee" where you "take the person to the product rather than just saying what aisle it's in." The next week, in front of other managers, Bremser told plaintiff that he had been watching plaintiff for half an hour and that during that time, plaintiff had done nothing but "provide a friendly smile in every aisle." Plaintiff could not believe that Bremser had just "jumped" him in front of other managers after they had just discussed "old-school Hy-Vee" where you take the customer to the product.5 The relationship between plaintiff and Bremser started to sour after that incident. Plaintiff thought that Bremser tried to change everything when he became store director. Bremser "rode" plaintiff and Denise Staffa, another scanning coordinator, about price changes and the way they put up signs. Plaintiff did not have any other complaints about Bremser. They saw each other only on Saturdays and occasionally on Sundays.

C. Comments About Plaintiff's Age

1. John Martindale

In 2002, John Martindale, an employee in the seafood department, asked whether plaintiff's son called him dad or grandad. This was the first comment that anyone at Hy-Vee made about plaintiff's age. After the comment, plaintiff had a long conversation with Martindale and Martindale did not make such a comment again.6

2. Dave Herrick

Beginning in 2002, Herrick made comments about plaintiff's gray hair every time they worked together. Plaintiff responded that at least he had a full head of hair (referring to Herrick losing his hair) and showed Herrick the store policy on age discrimination and harassment. More than once but less than 50 times, Herrick called plaintiff the "old man" of the store. Plaintiff responded that if Herrick kept it up, Herrick would never be the old man of the store. Once or twice, Herrick asked plaintiff about Moses parting the Red Sea. Plaintiff told Herrick to read the Bible. Several times, Herrick asked plaintiff how many bottles of Viagra he used a night. Plaintiff responded that he did not need it.

3. Kevin Gorman

Plaintiff worked with Kevin Gorman two or three days a week, when their schedules overlapped for two to five hours. In 1998, when plaintiff first began working at the Metcalf store, Gorman worked as a courtesy clerk. In 2000, Hy-Vee promoted Gorman to manager. Before Gorman became manager, he and plaintiff were friends. After Gorman became a manager, plaintiff still considered Gorman a friend but believed that Gorman's attitude toward him had changed. Sometimes plaintiff and Gorman talked about sports.

From 2002 to 2004, between one and 20 times, Gorman commented about plaintiff's gray hair. Gorman also asked plaintiff if he knew where the Grecian Formula was. Plaintiff responded by asking if Gorman knew where the Rogaine was. Several times, Gorman asked plaintiff how many bottles of Viagra he used a night. Plaintiff does not remember when Gorman made the comments. Three or four times, plaintiff called Gorman a "little pup." Gorman is 30 years younger than plaintiff.

4. Mike Langley

Plaintiff worked with Mike Langley three or four days a week, when their schedules overlapped a couple of hours.7 Langley commented several times that plaintiff's teeth "look just about like these corn nuts do." Plaintiff responded, "You have a lot of room to talk. At least I have all my teeth."

Every time they worked together, Langley commented about plaintiff's gray...

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