Power v. Koss Const. Co., Inc.
| Decision Date | 06 August 2007 |
| Docket Number | No. 05-2546-JAR.,05-2546-JAR. |
| Parties | Thomas A. POWER, Plaintiff, v. KOSS CONSTRUCTION COMPANY, INC., Defendant. |
| Court | U.S. District Court — District of Kansas |
Ronald E. Sandhaus, Leawood, KS, for Plaintiff.
Bradley L. Hemsley, Randall J. Forbes, Frieden & Forbes, Topeka, KS, for Defendant.
MEMORANDUM AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Thomas A. Power filed suit claiming that his former employer, Koss Construction Company, Inc. ("Koss"), terminated his employment in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Pending before the Court is defendant's Motion for Summary Judgment (Doc. 34). For the reasons explained in detail below, the Court grants defendant's motion.
Koss is primarily in the business of building highways and airport runways. It has three divisions: the Asphalt Division, the Kansas (Sunflower) Division, and the Oklahoma (Sooner) division. Each Division is headed by a Project Manager. Plaintiff worked solely in Koss's Kansas Division.
Plaintiff became employed by Koss in 1998. Tim Gerhardt, who was then the Project Manager of the Kansas Division, recommended plaintiff to Don Beuerlein, who was then the company President. Plaintiff was hired into the position of Assistant Project Manager of the Kansas Division, where he was directly supervised by Gerhardt. In 1998, Gerhardt was promoted to company Engineer and moved into the home office. At the same time, plaintiff was promoted to Project Manager for the Kansas Division. Gerhardt did not directly supervise plaintiff while he was the company Engineer. In 2000, Gerhardt assumed the duties of Area Manager of Concrete Paving Operations and again directly supervised plaintiff up to the date plaintiff was terminated.
In his position as Project Manager, plaintiff oversaw the construction of many of Koss's major road construction projects. Gross revenue on these projects ranged up to 330,000,000. All of the projects managed by plaintiff between 2000 and 2004 were profitable. During his tenure with Koss, plaintiff received various employee commendations, promotions, pay raises, bonuses and stock options.
In 2001, Doyle Love, a Paving Foreman who had been employed by Koss for over 25 years, advised Gerhardt that he intended to quit his job if he had to continue working for plaantiff. Love testified he found plaintiff to be abusive to Koss employees who worked for him, constantly criticizing them, talking about them behind their backs, and showing them no respect. Rather than lose Love, Gerhardt transferred him to the Oklahoma Division. Love continued to work for Koss until he retired in 2005.
In 2002, Tom Rodgers, a Truck Foreman who had been employed by Koss for over 15 years, advised Gerhardt he intended to quit his job if he had to continue working for plaintiff. Rodgers testified that he found that plaintiff mistreated the Koss employees who worked for him, calling them derogatory names and showing them no respect. Beuerlein and Gerhardt convinced Rodgers to stay on for the rest of the year, then transferred him to the Oklahoma Division where he remains employed as a Truck Foreman.
Bill Berry, a Grading Foreman, and Don Pitts, a Maintenance Foreman, testified that they quit their jobs with Koss because they no longer wanted to work for plaintiff. Both men reapplied for employment after plaintiff was terminated and both were rehired by Koss.
As early as June 1999, Gerhardt counseled plaintiff that he had spoken directly to many of the supervisors that worked in the Kansas Division and they did not like the way they were treated by plaintiff. The supervisors felt plaintiff's treatment was degrading, causing mistrust and resentment. Gerhardt suggested plaintiff change his ways, but plaintiff gave no indication he intended to do so. Gerhardt kept notes of this conversation with plaintiff.
In December 2003, Gerhardt talked with plaintiff regarding the poor quality of work being produced by the Kansas Division that plaintiff was supervising. Gerhardt asked plaintiff if replacing the paving machine would solve issues with pavement quality; plaintiff said it could help, but was no guarantee. Gerhardt told plaintiff that he believed the poor quality of the work was a result of the supervisors and employees who worked for plaintiff feeling that he mistreated them and were thus unmotivated. Gerhardt testified that plaintiff did not appear to accept what he had told him. Gerhardt ended the meeting by telling plaintiff that he had to find a way to improve the motivation and attitude of the people working for him. Gerhardt kept notes of the conversation with plaintiff.
In May 2004, Gerhardt again talked to plaintiff regarding Gerhardt's concern that the Kansas Division had fewer supervisors than needed and that at least two supervisors were "disgruntled" because of the way plaintiff treated them and other Koss employees. After discussing several situations with plaintiff, Gerhardt concluded that plaintiff continued to use humiliation and anger to motivate the supervisors that he managed. Gerhardt advised that there were better methods to motivate and plaintiff needed "to realize that people are what get things done." Gerhardt testified that plaintiff did not seem to accept what he was saying. Gerhardt again kept notes of the conversation.
Ultimately, Gerhardt concluded that plaintiff's way of treating the people who worked with him would not change. Gerhardt also felt that the decline in quality of the work done by the Kansas Division was, in large part, the result of the loss of good employees and the demoralization of employees due to the way plaintiff treated them. In late 2004, Gerhardt recommended to Vice President David Howard that plaintiff be terminated. Gerhardt told Howard that he did not believe plaintiff could improve the quality problems in the Kansas Division because plaintiff was not willing to change the way he treated the employees who worked for him.
In late 2004, after consultation with Gerhardt, Howard decided to terminate plaintiff and advised Beuerlein that he intended to do so as soon as Howard became President of Koss on January 1, 2005. Beuerlein agreed with the decision to terminate plaintiff, and Howard terminated plaintiff on November 5, 2005. At the time of termination, Howard advised plaintiff that he had tremendous respect for plaintiff's "can do" attitude and his understanding of the impact of production on costs, but that, in his opinion, plaintiff's inability to develop and retain successful supervisors and the poor quality of some of the Kansas Division's work exceeded the value plaintiff brought to Koss. At the time of his termination, plaintiff was 46 years old; he was replaced by Robert Kennedy, age 35.1
Howard believed that plaintiff was a poor leader, that he did not have the respect of the people who worked for him, that the Kansas Division was performing poor quality work, and that plaintiff was not taking direction. In addition to discussions with Gerhardt, Howard had first hand experience with the quality problems with the Kansas Division under plaintiff s supervision. Howard had determined that the quality of the work of the Kansas Division had declined in the few years preceding plaintiff's termination to the point that it did not meet Koss's expectations. For example, in 2004, Beuerlein advised Howard that the Executive Director of the Missouri/Kansas Chapter of the ACPA (American Concrete Pavers Association) contacted Beuerlein indicating that he was concerned that the concrete paving work of the Kansas Division had deteriorated to the point that it could cause damage to the market share of the concrete pavers and that owners might choose to use materials other than concrete for paving projects. Koss also received numerous communications from project owners regarding the poor workmanship of the Kansas Division.
On December 12, 2002, Beuerlein sent plaintiff a letter thanking him for his part in helping Koss achieve record profits. The letter concluded by stating,
In 2004, Beuerlein announced his retirement as President and CEO, effective January 1, 2005, and announced that his successor would be Howard, who was age 38 at the time. Shortly before his retirement, Beuerlein published a "final message" in the company's official newsletter in which he wrote, "[my successor] will lead a hand picked, young, experienced and capable management team...." When asked why he used the adjective "young," Beuerlein testified that Beuerlein confirmed that it was one of his goals as CEO "to put those people in place," and that he felt he had accomplished that goal.
Since becoming President of Koss on January 1, 2005, Howard has hired three management level employees over the age of 40.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."2 A fact is only material under this standard if a dispute over it would affect the outcome of the suit.3 An issue is only genuine if it "is such that a reasonable jury could return a verdict for the nonmoving party.4 The inquiry essentially determines if there is a need for trial, or whether the evidence "is so one-sided that one party must prevail as a matter of law."5
The moving party bears the initial...
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