Tucker v. Kingsbury Corp.

• Decision Date: 19 June 1996
• Docket Number: Civil No. 94-341-SD.
• Parties: Byron TUCKER v. KINGSBURY CORPORATION.
• Court: U.S. District Court — District of New Hampshire

929 F. Supp. 50

Byron TUCKER v. KINGSBURY CORPORATION.

Civil No. 94-341-SD.

United States District Court, D. New Hampshire.

June 19, 1996.

COPYRIGHT MATERIAL OMITTED

Timothy A. O'Meara, Keene, NH, for Byron Tucker.

James M. Saffian, Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Portland, ME, for Kingsbury Corporation, Inc.

ORDER

DEVINE, Senior District Judge.

In this civil action, plaintiff Byron Tucker alleges that defendant Kingsbury Corporation terminated his employment in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U.S.C. § 621, et seq. (1985 & Supp. 1996).

Presently before the court is Kingsbury's motion for summary judgment, to which plaintiff objects.

Background

Plaintiff Byron Tucker began his employment with Kingsbury Corporation in October 1963 as a machine operator. Deposition of Byron Tucker at 2 (attached to Defendant's Motion for Summary Judgment as Exhibit 3). Over the ensuing nearly thirty years, the capacity in which he was employed by Kingsbury permitted several times, finally resulting in a position in the Information Services department as one of two programmer/analysts. Plaintiffs Pretrial Statement ¶¶ 2, 7, 8.

Two months prior to the June 22, 1993, reduction in force (RIF), wherein Tucker was among those cashiered, Kingsbury changed the manner in which salaried employees would be evaluated for retention. Whereas prior to April 28, 1993, layoffs were allegedly performed by seniority, id. ¶ 13,¹ a memorandum which is alleged to have been distributed to all employees on said date indicated that although the hourly work force would be reduced by seniority on a department-by-department basis, "salaried personnel reductions ... will be based on business requirements," 1993 Wage and Employment Information Memorandum from Jeffrey M. Toner, Vice President of Human Resources at Kingsbury, ¶ 4 (attached to Defendant's Motion as Exhibit 1A).

Of the seventeen employees laid off on June 22, 1993, sixteen were in the ADEA's protected class. Within plaintiff's department, Information Services, a determination had been made by Kingsbury management that one of the two programmer/analyst positions, then held by plaintiff and Faith Ball, would be eliminated as part of the June 1993 RIF. Plaintiff maintains that the decision to retain Faith Ball instead of him in the programmer/analyst position was impermissibly based upon consideration of his age (54) vis-à-vis hers (30).²

Discussion

1. Summary Judgment Standard

The entry of summary judgment is appropriate when 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." Rule 56(c), Fed.R.Civ.P. Thus, the role of summary judgment among the array of pretrial devices is to "pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required." Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir.1992), cert. denied, 507 U.S. 1030, 113 S.Ct. 1845, 123 L.Ed.2d 470 (1993).

Among the guidelines to be followed by the court in assaying the summary judgment record is "to interpret the record in the light most hospitable to the nonmoving party, reconciling all competing inferences in that party's favor." McIntosh v. Antonino, 71 F.3d 29, 33 (1st Cir.1995) (citation omitted). "Nonetheless, a party contesting summary judgment must offer the court more than posturing and conclusory rhetoric." Id. (citations omitted).

"Moreover, summary judgment may be appropriate `even in cases where elusive concepts such as motive or intent are at issue, ... if the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation.'" Woods v. Friction Materials, Inc., 30 F.3d 255, 259 (1st Cir.1994) (quoting Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990)).

2. The ADEA Claims

a. Disparate Treatment

"Absent the evidentiary equivalent of a `smoking gun,' the plaintiff must attempt to prove his discrimination case by resort to a burden-shifting framework." Smith v. F.W. Morse, Inc., 76 F.3d 413, 421 (1st Cir. 1996) (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973)). That noted,

on summary judgment, the need to order the presentation of proof is largely obviated, and a court may often dispense with strict attention to the burden-shifting framework, focusing instead on whether the evidence as a whole is sufficient to make out a jury question as to pretext and discriminatory animus.

Fennell v. First Step Designs, Ltd., 83 F.3d 526, 535, (1st Cir.1996) (citing Mesnick v. General Elec. Co., 950 F.2d 816, 827 (1st Cir.1991), cert. denied, 504 U.S. 985, 112 S.Ct. 2965, 119 L.Ed.2d 586 (1992)); see also Pages-Cahue v. Iberia Lineas Aereas de Espana, 82 F.3d 533, 536 (1st Cir.1996) ("In ADEA discrimination lawsuits, plaintiffs bear the ultimate burden of proving that their ages were the determinative factor in their discharge, `that is, that they would not have been fired but for their age.'") (quoting LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 842 (1st Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1398, 128 L.Ed.2d 72 (1994)) (alteration in Pages-Cahue) (other citation omitted); Carson v. Bethlehem Steel Corp., 82 F.3d 157, 158 (7th Cir.1996) (per curiam) ("The central question in any employment-discrimination case is whether the employer would have taken the same action had the employee been of a different age ... and everything else had remained the same." (citations omitted)).

Accordingly, for the purposes of the instant motion for summary judgment, the court assumes arguendo both that plaintiff is able to satisfy the ADEA prima facie case³ and further that defendant has stated a satisfactory, nondiscriminatory reason — declining business conditions and a position redundancy in the Information Services department — for plaintiff's discharge. With such assumptions understood, the "ultimate burden" now "falls on the plaintiff to show that the defendant's proffered legitimate reason is in fact a pretext and that the job action was the result of defendant's age discrimination animus." Fennell, supra, 83 F.3d at 535 (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993); Mesnick, supra, 950 F.2d at 827-28); Carson, supra, 82 F.3d at 159 ("the question ... is whether the plaintiff has established a logical reason to believe that the decision rests on a legally forbidden ground").

"There is little doubt that an employer, consistent with its business judgment, may eliminate positions during the course of a downsizing without violating the ADEA even though those positions are held by members of protected groups...." Smith, supra, 76 F.3d at 422 (citing cases). "An employer can hire or fire one employee instead of another for any reason, fair or unfair, provided that the employer's choice is not driven by age ..., or some other protected characteristic." Id. (citing, inter alia, Freeman v. Package Mach. Co., 865 F.2d 1331, 1334 (1st Cir.1988)) (ADEA case). Thus, "a disparate treatment claimant bears the burden of proving that he was subjected to different treatment than persons similarly situated `"in all relevant aspects."'" Byrd v. Ronayne, 61 F.3d 1026, 1032 (1st Cir.1995) (quoting Smith v. Stratus Computer, Inc., 40 F.3d 11, 15 (1st Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1958, 131 L.Ed.2d 850 (1995) (quoting Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir.1989))).

In opposition to defendant's motion, plaintiff marshals five arguments to embolden his charge.⁴ Four of the five arguments are either irrelevant to the disparate treatment discrimination alleged or fail to identify why plaintiff's termination was a consequence of impermissible age animus. See Plaintiff's Objection at 3-7, 8-9. Consequently, whether plaintiff's case can withstand defendant's summary judgment onslaught depends upon the strength of the argument, and its corresponding record factual support, that he was not treated "age-neutrally" within Information Services and that a younger employee was chosen over him to remain as Kingsbury's programmer/analyst.

Plaintiff presents four pieces of evidence which, taken together, are alleged to demonstrate Kingsbury's discriminatory animus and use of age-based considerations when it determined that plaintiff was to be discharged and Ms. Ball was to be retained. Such evidence consists of: (1) his June 21, 1993, discharge letter; (2) his expert's statistical Data Analysis of Kingsbury Employment Records; (3) the pre-April 1993 seniority policy at Kingsbury; and (4) the affidavit of Bruce Van Broklin. The court has further considered plaintiff's own deposition testimony, appended to defendant's motion, as part of the summary judgment analysis.

The June 21, 1993, discharge letter seems to be pretty standard fare, and evinces no hint of discriminatory animus on Kingsbury's part. Kingsbury's decision to bifurcate its policy on employee retention and differentiate between hourly and salaried employees is similarly without a discriminatory aura. The timing of the change, some two months prior to plaintiff's discharge, does not alter this conclusion. Changes in the company's layoff practice and the creation of an age-based early retirement program do not, in and of themselves, forebode a sinister discriminatory intent on Kingsbury's part. See Schuler v. Polaroid Corp., 848 F.2d 276, 278 (1st Cir.1988) (ADEA "does not forbid treating older persons more generously than others").

The Van Broklin affidavit is of greater potential relevance to any ADEA c...