West v. Conopco Corp.

• Decision Date: 16 June 1998
• Docket Number: No. WD,WD
• Parties: Bobby W. WEST, Appellant, v. CONOPCO CORPORATION, d/b/a Thomas J. Lipton Company, Respondent. 54540.
• Court: Missouri Court of Appeals

Page 554

974 S.W.2d 554

Bobby W. WEST, Appellant, v. CONOPCO CORPORATION, d/b/a Thomas J. Lipton Company, Respondent.

No. WD 54540.

Missouri Court of Appeals,

Western District.

June 16, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court July 28, 1998.

Application to Transfer Denied

Sept. 22, 1998.

George Kapke, Independence, for Appellant.

William Martucci, Kansas City, for Respondent.

HANNA, Judge.

In 1993, the plaintiff, Bobby West, was laid off from his position with the defendant, Conopco Corporation, d/b/a Thomas J. Lipton Company, after a company-wide reduction in force which included Lipton's facility in Independence. West filed a complaint with the Missouri Commission on Human Rights and subsequently obtained a "Right to Sue Letter." Pursuant to § 213.010, RSMo 1994, et seq., West brought suit against Lipton claiming that he was discriminatorily discharged on the basis of his age. After a hearing and argument, the circuit court entered findings of fact and conclusions of law and sustained Lipton's summary judgment motion. West appeals, claiming there are material facts which establish a prima facie case of age discrimination.

West had worked for Lipton since 1971 at different facilities and in numerous different positions. In 1982, he was transferred to Lipton's Independence plant as the Instant Tea Production Manager. In 1983, West became the Tea Blending Manager. In 1991, he transferred to the laboratory of the Quality Assurance Group as an analytical technician. West's supervisor, from the time he began working as an analytical technician until he was laid off, was Don Williams. Two other analytical technicians, Bob Wojton and Joe Tibbetts, also reported to Williams during this time. All of the employees in the Quality Assurance Group, including West, anticipated one of the three would probably be laid off during the company-wide reduction in force.

West was laid off, along with 10 other individuals, as part of the reduction in force over the last six months of 1993 and the first six months of 1994. In a meeting in December 1993, West was advised by Williams and the plant manager that he was going to be permanently laid off. During this meeting, West asked why he was not allowed to "bump" employees junior to him. He was told that it was not an option. As part of his severance package, West received $9600 to purchase a year's worth of health insurance, $67,000 in severance pay for 69 weeks, and his retirement pension benefits. As of the date of West's lawsuit, the position has remained eliminated.

West claims that his allegation that he was not allowed to "bump" junior employees stated a material fact. In response, Lipton contends that the reduction in force was a legitimate, nondiscriminatory reason to discharge West and there is no evidence that West's termination was age related. Lipton points to its personnel policies, which West acknowledges, that prohibit discrimination on the basis of sex, race, or age, and Williams' testimony that his decision to lay off West was because West was the least senior chemist and his position could be eliminated with the least disruption while keeping the department functional.

In ruling on a motion for summary judgment, the Missouri Rules of Civil Procedure provide that the judgment sought shall be entered "if 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 74.04(c)(3). If a party fails to make a showing sufficient to establish the existence of an element essential to that party's case, upon which they bear the burden of proof at trial, summary judgment is appropriate against them. Id. An appellate court reviews the record "in the light most favorable to the party against whom judgment was entered." ITT Commercial Fin. Corp. v. Mid-America Marine, 854 S.W.2d 371, 376 (Mo. banc 1993) (citations omitted). The non-movant is accorded the benefit of all reasonable inferences from the record. See id.; Zafft v. Eli Lilly & Co., 676 S.W.2d 241, 244 (Mo. banc 1984). With respect to an age discrimination case, the "function of the court on a summary judgment motion is to determine whether the 'proffered admissible evidence shows circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive,' " Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 204 (2nd Cir.1995)(quoting Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 38 (2nd Cir.1994)), or whether there is "evidence, either circumstantial or direct, from which a fact finder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue." Ingels v. Thiokol Corp., 42 F.3d 616, 621 (10th Cir.1994)(quoting Branson v. Price River Coal Co., 853 F.2d 768, 771 (10th Cir.1988)).

The Missouri Human Rights Act (MHRA) prohibits employers from engaging in unlawful employment practices, including terminating an employee on the basis of the employee's age. See § 213.055, RSMo 1994. "The pivotal issue in any claim of unlawful discrimination is whether the employer's conduct challenged by the plaintiff was motivated by an invidious purpose or whether it was based on a legitimate and rational consideration." Midstate Oil Co. Inc. v. Missouri Comm'n on Human Rights, 679 S.W.2d 842, 845 (Mo. banc 1984).

"[T]he same analysis applies for age discrimination claims under both the ADEA and the MHRA." Rinehart v. City of Independence, Mo., 35 F.3d 1263, 1265 n. 1 (8th Cir.1994); Midstate Oil, 679 S.W.2d at 845-46; In re Estate of Latimer, 913 S.W.2d 51, 55 (Mo.App.1995). Thus, federal decisions interpreting the federal age discrimination act are instructive when analyzing MHRA claims. ¹ See e.g. Herrero v. St. Louis University Hosp., 109 F.3d 481, 483-4 (8th Cir.1997)(interpreting the MHRA).

Age discrimination may be established by direct evidence or, as West attempts here, by inference. When the employee is attempting to establish discrimination by inference, the United States Supreme Court has fashioned a three-part burden shifting analysis. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993)(clarifying the analysis initially articulated in McDonnell Douglas ); Midstate Oil, 679 S.W.2d at 846 (adopting the methodology of McDonnell Douglas ). The initial burden lies with the plaintiff/employee who must demonstrate a prima facie case of wrongful termination by establishing: (1) that he is within the protected age group; (2) that he met applicable job qualifications; (3) that he was discharged; and, in a reduction in force case, (4) some additional showing that age was a factor in his discharge, or that the discharge occurred under circumstances giving rise to an inference of age discrimination. Holley v. Sanyo Mfg., Inc., 771 F.2d 1161, 1165-66 (8th Cir.1985)(quoting LaGrant v. Gulf and Western Mfg. Co., Inc., 748 F.2d 1087 (6th Cir.1984)); Cronin, 46 F.3d at 204. This is so because the decision as to whom may be laid off in a reduction in force may not be made on the basis of age. ADEA, 29 U.S.C.A. § 421 et seq.; Glover v. McDonnell Douglas Corp., 981 F.2d 388, 393 (8th Cir.1992), cert. granted and vacated on other grounds, 510 U.S. 802, 114 S.Ct. 42, 126 L.Ed.2d 13 (1993) (citations omitted). The "ultimate burden that plaintiff must meet is to show that age was a determining fact in the discharge." Holley, 771 F.2d at 1164 (citing Cova v. Coca-Cola Bottling Co. of St. Louis, Inc., 574 F.2d 958, 959 (8th Cir.1978)). ²

Observing that it was not uncommon for businesses to reduce their work force to meet competition and increase productivity and profitability, the Second Circuit stated:

Economic decisions of that sort are, of course, outside a court's purview. But sometimes the validity of a company's legitimate reduction masks, in an individual case, a discriminatory animus.

Gallo v. Prudential Residential Serv., L.P., 22 F.3d 1219, 1221 (2nd Cir.1994).

In reduction in force terminations, it is not sufficient that an otherwise competent employee proves that he was terminated in order to establish a prima facie case. The problem was addressed in Holley, where the court observed:

[S]ome additional showing should be necessary to make a prima facie case in a reduction in force situation.... We agree with the Sixth Circuit that "[t]he mere termination of a competent employee when an employer is making cutbacks due to economic necessity is insufficient to establish a prima facie case of age discrimination" and that the "plaintiff in such reorganization cases must come forward with additional ... evidence that age was a factor in his termination in order to establish a prima facie case."

771 F.2d at 1165-66 (quoting La Grant v. Gulf & Western Mfg. Co., Inc., 748 F.2d 1087 (6th Cir.1984)). In order to establish a prima facie case in a reduction in force termination claim, a plaintiff must "produce some additional evidence that a prohibited criterion such as age ... was a factor in [the plaintiff's] termination." Herrero, 109 F.3d at 483-84 (citations omitted). Such additional evidence requires a showing "that the discharge occurred under circumstances giving rise to an inference of age discrimination." Cronin, 46 F.3d at 204 (citations omitted). See also Gallo, 22 F.3d at 1224 (citations omitted). ³ This may be established through circumstantial evidence that the plaintiff "was treated less favorably than younger employees during the reduction in force." E.E.O.C. v. Texas Instruments Inc., 100 F.3d 1173, 1181 (5th Cir.1996)(ruling that in a reduction in force, if the employee can show that he was terminated in favor of a "younger, clearly less qualified" individual, a material fact issue exists).

Our review of the federal decisions shows a relatively consistent interpretation. "Most circuits are in accord and require that the plaintiff...