Stone v. Autoliv ASP Inc., No. 98-4074

• Citation: 210 F.3d 1132
• Decision Date: 11 April 2000
• Docket Number: No. 98-4074
• Parties: (10th Cir. 2000) JAMES STONE, Plaintiff - Appellant, v. AUTOLIV ASP, INC., formerly known as Morton International, Inc., Defendant - Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1132

210 F.3d 1132 (10th Cir. 2000)

JAMES STONE, Plaintiff - Appellant, v. AUTOLIV ASP, INC., formerly known as Morton International, Inc., Defendant - Appellee.

No. 98-4074

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

April 11, 2000

Appeal from the United States District Court for the District of Utah (D.C. No. 96-CV-6-S) [Copyrighted Material Omitted] Brad C. Smith, Stevenson & Smith, P.C., Ogden, Utah, for the appellant.

Michele Mitchell (Scott M. Petersen and Warren Patten with her on the briefs), Fabian & Clendenin, P.C., Salt Lake City, Utah, for the appellee.

Before BRORBY and LUCERO, Circuit Judges, and WEST^*, District Judge.

LUCERO, Circuit Judge.

This case arises from a reduction in force ("RIF") instituted in 1995 by defendant Autoliv ASP, Inc., a manufacturer of airbags. As a result of the RIF, James M. Stone was terminated after eighteen years of working for Autoliv. Stone sued Autoliv for discrimination in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. 621-634. The district court granted Autoliv summary judgment, from which Stone appeals.

Our determination on review turns on (1) whether Stone has established a prima facie case of age discrimination by demonstrating that there were positions at Autoliv similar to his in which younger workers were placed; and (2) whether the evidence Stone presented--primarily a comment made by his supervisor, Charles H. Seebock, who allegedly stated that "at [Stone's] age, it would be difficult to train for another position" or "difficult to find a new job," (II J.A. at 24, 48)--is sufficient to show directly or circumstantially that age was a determining factor in the decision to terminate him. Exercising jurisdiction pursuant to 28 U.S.C. 1291, we affirm. Although we disagree with the district court's finding that Stone has not established a prima facie case of age discrimination because he has pointed to a younger employee placed in a similar position, we nevertheless affirm the district court's grant of summary judgment for Autoliv because Seebock's single comment is neither direct evidence of discrimination, nor sufficient to establish that the RIF was proffered as a pretext for discrimination.¹

I

From March 1977, until his termination on June 5, 1995, Stone worked for Autoliv or its predecessor companies, most recently as Manager of Advanced Strategic Planning. Immediately prior to holding that position, Stone was the Manager of European Programs. During the course of his employment, he consistently received above-average performance evaluations.

Rumors speculating that "[t]here would be some type of reorganization" within the company began to circulate in early 1995, when Frank Musone became Autoliv's new company president. (II J.A. at 19-21.) As part of the reorganization process, Seebock prepared a "tentative list" on May 15, 1995, of approximately twenty-five employees "without a slot," including Stone. (Id. at 340). Seebock's list noted that it was "subject to change based on plant changes." (Id.) At a staff meeting Stone attended the next day, Seebock reminded his managers that lists of positions were due. Surmising that these lists were related to the reorganization, Stone met with Seebock to inquire about his future with the company. At this meeting, Seebock stated he did not know about the future of Stone's position with the company because he had not discussed it with Musone yet, but that "at [Stone's] age, it would be difficult to train for another position" or "difficult to find a new job." (Id. at 24, 48). This comment constitutes the primary evidence Stone presents to support his allegation of age discrimination. Prior to this conversation, Seebock had never mentioned Stone's age in the eight years they had worked together. Although Stone is not sure if Seebock knew his age at the time of the ageist comment, he asserts that no reasonable person could mistake him for being younger than forty.

On June 2 or 3, 1995, Stone learned that his position would be eliminated effective June 5, 1995, due to company-wide restructuring. Prior to Stone's termination, Seebock attempted to locate another position for him, calling Stone's former supervisor and the vice presidents of human resources and engineering; none of the three could place Stone. Stone does not dispute this fact, but asserts that Seebock's actions were taken too late to allow him to be considered for other available positions. Stone, uncertain whether his position would be eliminated by the anticipated RIF, made no efforts to investigate other available positions with Autoliv, but did send a resume to Autoliv in July 1995, expressing interest in returning to work. According to Stone, Seebock alone made the termination decision, but the record belies that assertion. Overall, as a result of the reorganization, 324 Autoliv employees were terminated. At the time of the termination, Stone was almost fifty-three years old.

Stone contends there were other positions in which Autoliv could have placed him following the elimination of his strategic planning position. Employees, at least one of whom was younger than Stone, were selected for new "plant manager" positions. In addition, the position of program manager for General Motors, one allegedly analogous to Stone's position in European Programs held prior to his strategic planning job, became available during the restructuring, but was given to another, younger employee. Stone also alleges that a younger worker was appointed to the newly created position of "Manager, Process Redefinition." (I J.A. at 76).

II

Summary judgment should be granted 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." Fed. R. Civ. P. 56(c). In reviewing the district court's decision to grant summary judgment, we view the evidence "in the light most favorable to the party opposing summary judgment." Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996) (quoting Wolf v. Prudential Ins. Co., 150 F.3d 793, 796 (10th Cir. 1995)). The substantive law at issue determines which facts are material in a given case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id.

A

The ADEA states that it is unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. 623(a)(1). "A plaintiff who seeks to prove that an employer discriminated against him or her can use either direct or circumstantial evidence." Ingels v. Thiokol Corp., 42 F.3d 616, 620 (10th Cir. 1994); see also Jones v. Unisys Corp., 54 F.3d 624, 630 (10th Cir. 1995) (noting that "we have adapted for ADEA cases" the indirect methods of proof of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973)). A plaintiff proves discrimination through direct evidence by establishing proof of "an existing policy which itself constitutes discrimination." Ramsey v. City & County of Denver, 907 F.2d 1004, 1008 (10th Cir. 1990) (citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985)).

"Statements which on their face are expressions of personal opinion, however, can only support an inference of discrimination if the trier of fact finds the inference reasonable, and so constitute only circumstantial or indirect evidence of discrimination against the plaintiff." Tomsic v. State Farm Mut. Auto. Ins. Co., 85 F.3d 1472, 1477 (10th Cir. 1996) (citing Ramsey, 907 F.2d at 1008). Stone argues that Seebock's comment cannot be "ignored as merely 'personal opinion' but take[s] on the character of a statement of policy, particularly given Seebock's high position within Defendant's structure." (Appellant's Br. at 28.) However inappropriate this statement may be, it is "not direct evidence of causation on the employment decision." Ramsey, 907 F.2d at 1008 (holding that a division director's "feelings about women being better suited to some jobs than others" were circumstantial or indirect and not direct evidence of discrimination); see, e.g., Perry v. Woodward, 199 F.3d 1126, 1134-35 (10th Cir. 1999) (concluding that racist statements regarding hiring barriers were not direct evidence of discriminatory motivation for termination); Tomsic, 85 F.3d at 1477, 1478 (characterizing as indirect evidence a supervisor's comments that a plaintiff could be expected to lack motivation because of her husband's income and another plaintiff would have marital problems because her husband would be uncomfortable earning less than her); EEOC v. Wiltel, Inc., 81 F.3d 1508, 1513-14 (10th Cir. 1996) (characterizing as indirect evidence a comment that an interviewer did not "like" the plaintiff because she was "into" her religion); Heim v. Utah, 8 F.3d 1541, 1546-47 (10th Cir. 1993) (holding that one supervisor's single statement that he hated having women in the office, unconnected to the personnel action at issue, was not direct evidence of a discriminatory policy); Furr v. AT & T Techs., Inc., 824 F.2d 1537, 1547, 1549 (10th Cir. 1987) (holding repeated statements by managers that plaintiffs were "too damned old," were too old to learn new technologies or to be in management positions, and did not have a future with the company because of age were not direct evidence of a causal relationship between discrimination and failure to promote). But see Greene v. Safeway Stores, Inc., 98 F.3d 554, 560 (10th Cir. 1996) (noting that a plaintiff may prove a direct evidence case "by presenting direct or circumstantial evidence that age was a determining factor in his discharge") (quoting Lucas v. Dover, 857 F.2d 1397, 1400 (10th Cir. 1988)). At most, such statements provide...