Butler v. Hitchiner Corp. CV-96-624-JD 05/13/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Doris J. Butler
v. Civil No. 96-624-JD
Hitchiner Corporation
O R D E R
The plaintiff, Doris J. Butler, brought this action against
the defendant, Hitchiner Manufacturing Corporation, alleging that
the defendant discriminated against her due to her age and sex,
as well as asserting various state law claims. The plaintiff
voluntarily withdrew some of her claims and had others dismissed
so that only her age discrimination claim in count IV remains.
Before the court is the defendant's motion for summary judgment
on count IV (document no. 13).
Background1
The plaintiff began working for the defendant on May 25,
1993. She was forty-nine years old when hired. Her duties at
1The court summarizes the facts applicable to the instant motion, taking disputed issues of material fact in the light most favorable to the plaintiff. See DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997). The plaintiff's complaint encompassed allegations that the plaintiff was not only terminated because of her age but also suffered various adverse employment actions. However, the plaintiff, in opposition to summary judgment, has only proffered evidence and argument related to her discharge and the court accordingly limits its consideration to that issue. A more detailed account of the plaintiff's initial claims is presented in the court's December 4, 1997, order. her initial position as a utility operator involved wiping golf
clubs with naphtha. On June 23, 1993, her supervisor, Scott
Bolduc, had a formal discussion with her concerning unsatis
factory work performance and prepared a discussion report
reflecting the meeting. On August 3, 1993, the plaintiff was
laid off due to a lack of work.
The plaintiff was recalled on December 12, 1993. On January
5, 1994, a second supervisor, Kimiko Aldrich, also discussed the
plaintiff's unsatisfactory work performance with her and prepared
a discussion report. On March 14, 1994, the plaintiff was
promoted to the position of process inspector.
On April 13, 1994, the plaintiff's supervisor in her new
position, Victor Gilding, discussed his concern with the
plaintiff about her overall performance and completed a
discussion report. On June 14, 1994, Gilding had another
discussion with the plaintiff and prepared another discussion
report concerning the poor guality of her inspections, stating
that the guality of the plaintiff's work had to improve. On June
20, 1994, the plaintiff received a written warning for failure to
follow instructions after a written discussion report.2 On
20n July 14, 1994, the plaintiff received another discussion report because she was not present at the beginning of her shift without an acceptable reason for her tardiness. The defendant has asserted, however, that this episode played no role in its decision to dismiss the plaintiff and the plaintiff has provided no evidence to the contrary.
2 August 9, 1994, the plaintiff received a final written warning
for poor overall job performance.
On September 12, 1994, the plaintiff was removed from her
inspection position and given a job, at the same salary, weighing
clubs.3 In late September of 1994, Richard Bickford, the
defendant's human resources manager, learned from plant managers
that they considered the plaintiff's performance in her new
position weighing clubs to be unsatisfactory. Because she was on
a final written warning for poor job performance, Bickford
authorized her termination for poor performance. The plaintiff
was discharged on September 27, 1994. She was fifty years old
when her employment was terminated and had worked for the
defendant for less than one year.
The plaintiff does not agree with her managers' negative
assessments of her job performance. The plaintiff wrote letters
to managers in response to the April 13, June 20, and August 9
reports asserting that the criticisms of her performance were
unfounded for two reasons. First, the plaintiff asserted that
she was being subjected to "subtle harassment" by other
employees, who unfairly complained to managers about her
SAlthough the defendant asserts that the plaintiff's inspection position was eliminated, the plaintiff asserts, and the court therefore assumes for the sake of this motion, that she was replaced in the position by a younger employee. See infra note 4.
3 inspection work and who became upset when she returned work to
them which she believed needed rework. Specifically, the
plaintiff has alleged the following: "[A] co-employee named
Sandy would remove my inspection tags from rejected work, so that
material I had tagged for rework would move forward as inspected.
I believe Sandy would do this so her team could make rate to make
bonus." Pl.'s Aff., 5 4. Second, the plaintiff asserted that
her efficiency ratings appeared low because she was not being
given enough work to do. Despite numerous reguests by the
plaintiff, the defendant refused to reconsider its decision to
discharge her.
The plaintiff brought this action after presenting her
complaint to the Egual Employment Opportunity Commission. The
defendant has sought summary judgment on the plaintiff's age
discrimination claim, asserting that it had a legitimate, non-
discriminatory reason for her discharge, i.e. her inability to
satisfactorily perform her job duties. The plaintiff asserts
that the defendant's proffered reason for her discharge is
pretextual and that she was actually discharged because of her
age.
Discussion
The role of summary judgment is "to pierce the boilerplate
of the pleadings and assay the parties' proof in order to
4 determine whether trial is actually required." Snow v.
Harnischfeger Corp., 12 F.3d 1154, 1157 (1st Cir. 1993) (quoting
Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir.
1992)). The court may only grant a motion for summary judgment
where 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 a judgment as a matter of
law." Fed. R. Civ. P. 56(c). The party seeking summary judgment
bears the initial burden of establishing the lack of a genuine
issue of material fact. See Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986); Quintero de Quintero v. Aponte-Rogue, 974 F.2d
226, 227-28 (1st Cir. 1992). The court must view the entire
record in the light most favorable to the plaintiff, "'indulging
all reasonable inferences in that party's favor.'" Mesnick v.
General Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991) (quoting
Griqqs-Rvan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990)).
However, once the defendant has submitted a properly supported
motion for summary judgment, the plaintiff "may not rest upon
mere allegation or denials of [her] pleading, but must set forth
specific facts showing that there is a genuine issue for trial."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (citing
Fed. R. Civ. P. 56(e)).
Where, as here, a plaintiff does not have direct evidence of
5 age discrimination, to prevail on her claim she must first make
out a prima facie case consisting of the following elements: (1)
the plaintiff was at least forty years old; (2) she was able to
perform her job to meet her employer's legitimate expectations;
(3) she was discharged; (4) she was replaced by a significantly
younger individual with similar gualifications. See, e.g.,
O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312-
13 (1996); Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 479 (1st
Cir. 1993). Once the plaintiff has established a prima facie
case, the burden of production shifts to the defendant to
articulate a legitimate, nondiscriminatory reason for dismissing
the plaintiff. See, e.g., Ruiz v. Posadas de San Juan Assocs.,
124 F.3d 243, 248 (1st Cir. 1997). If the defendant articulates
such a reason, the burden shifts to the plaintiff to
demonstrate that the proffered reason for the adverse employment action was simply a pretext for age discrimination, which in turn reguires that the employee proffer enough competent evidence to support two findings: 1) the employer's proffered reason was pretextual; and, 2) its true motive was age discrimination. The burden of persuasion remains on the plaintiff employee at all times.
Id. (guotations and citations omitted).
The defendant asserts that, even assuming that the plaintiff
has made out a prima facie case of age discrimination, she has
not produced any evidence that she was discriminated against
because of her age beyond "supposition and generalization." The
court, for the purposes of this motion, assumes without deciding
6 that the plaintiff has indeed made out a prima facie case of age
discrimination.4 The court finds that the defendant has adduced
sufficient evidence, in the form of negative performance evalua
tions of the plaintiff from three different managers, to satisfy
its burden of articulating a legitimate, non-discriminatory
reason for the plaintiff's discharge.
The court therefore must consider the plaintiff's evidence
that the defendant's proffered justification for her discharge
was a pretext and that the real reason for her discharge was age
discrimination. Specifically, the court must
inguire whether the evidence, in its entirety, would permit a reasonable factfinder to infer that the proffered reason for the dismissal was pretextual and that the true reason was an age-based animus. In pursuing this inguiry, [the court] focus[es] on whether the employer believed that its proffered reason was credible. That is, [the plaintiff] must do more than cast doubt on the rationale proffered by the employer, the evidence must be of such strength and guality as to permit a reasonable finding that the [discharge] was obviously or manifestly unsupported.
4Although the court has assumed arguendo that the plaintiff has made out a prima facie case of age discrimination, it notes that the plaintiff's showing appears to be deficient in at least two respects. First, as discussed more fully infra, the plaintiff has offered no evidence that she was able to meet the legitimate performance expectations of the defendant beyond her own conclusory assertions. Second, the plaintiff, in support of her claim that she was replaced by a younger employee with similar gualifications, has made the following averment: "The young gentleman who replaced me, performing my job, told me in person, in the parking lot at [the defendant's facility], that he would be taking my place." Although this statement might constitute some evidence that the plaintiff was replaced, it does not indicate that her replacement had similar gualifications.
7 Id. (quotations and citations omitted).
The plaintiff has proffered evidence in four categories to
support her claim that she was discharged because of age-based
animus: (1) her assertion that illicit age discrimination was
the basis of the acts taken against her; (2) her claim that the
defendant's proffered reason for her discharge -- poor
performance -- was untrue, that her employers knew it was untrue,
and therefore that her discharge was a pretext; (3) her claim
that older employees were treated differently by the defendant
than younger employees; and (4) statistics purporting to show
that a disproportionately high number of employees age forty or
older were discharged by the defendant. The court discusses each
type of evidence seriatim.
The plaintiff has stated the following: "I believe my age
was the reason for my mistreatment while employed [by the
defendant.]" See Mem. of Law in Supp. of Pl.'s Obj. to Def.'s
Mot. for Summ. J. ("Pl.'s Obj."), Ex. A, 5 8. In addition, the
record contains the letters sent by the plaintiff to the
defendant in response to discussion reports and warnings that she
received. These letters also contain numerous assertions by the
plaintiff that she was performing her job adequately and was
being treated unfairly by other employees. Such conclusory
allegations and unsupported opinions, even though genuinely held,
are insufficient to satisfy the plaintiff's burden of demonstrating a genuine issue of material fact reguiring a trial
and add nothing to her claim. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986) (citing Fed. R. Civ. P. 56(e))
(plaintiff "may not rest upon mere allegation" in opposing
summary judgment); DeNovellis v. Shalala, 124 F.3d 298, 306 (1st
Cir. 1997) ("conclusory allegations, improbable inferences, and
unsupported speculation" insufficient to prevent the grant of
summary judgment); LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 849
(1st Cir. 1993) (granting summary judgment despite plaintiff's
arguments "based largely upon conclusory allegations, improbable
inferences, and unsupported speculation").
Next, the plaintiff offers her contention that the
defendant's proffered reason for her dismissal was a pretext.
However, both the plaintiff's bald assertions that her job
performance was satisfactory and that the defendant's proffered
justification for her discharge was a pretext are, as noted
supra, insufficient to defeat a properly supported motion for
summary judgment. In addition, the plaintiff's own factual
assertions undercut any inference that she was discharged because
of a discriminatory animus. The plaintiff asserts that she
received poor evaluations because employees were undermining her
work and complaining about her performance to her supervisors.5
5In addition to the plaintiff's complaints that an employee named Sandy removed inspection tags from her work, the plaintiff, in her deposition, stated the following: If true, such evidence tends to show, at best, that the
plaintiff's supervisors were mistaken in their belief that her
performance was inadequate. However, the defendant's belief that
the plaintiff could not meet its reasonable performance
Q [By defense counsel]: Okay. And you say that those employees lied and harassed you. Okay. Would that be the same thing you talked about earlier, which is the fellow named John who swore at times when you returned work to him to redo, and the -- your comment that you felt the employees were lying about your work as an inspector, because they were worried about their efficiency rates and their bonuses?
A [By plaintiff]: Yes.
Q: Okay. Is there anything else other than that that you're basing this statement on that they lied and harassed you?
A: I'm just referring to that whole incident of why those two came about, those two disciplinary action reports, so -
Q: Okay. So as I understand your complaint, it's that you felt that you were doing your job properly, management felt that you were not doing it properly, and you were not properly inspecting the clubs, and you felt that management's conclusions were based upon misrepresentations by operators were lying to management, because they were concerned with their efficiency rates; is that right?
A: Yes.
Pl.'s Dep. at 206-07.
10 expectations, even if mistaken, provides a legitimate, non
discriminatory reason for the plaintiff's discharge. See Ruiz,
124 F.3d at 248. Furthermore, nothing in the record supports the
plaintiff's bald assertion that the defendant knew that her
performance was adeguate (because she had informed her
supervisors that it was) but seized on these incidents with other
employees as a pretext to discharge her to cover its age-based
discriminatory animus toward her. This evidence also fails to
satisfy the plaintiff's burden of demonstrating the existence of
a genuine issue of material fact.
Next, the plaintiff asserts that the defendant treated older
employees differently than younger employees. In addition to
herself, the plaintiff in her deposition identified two employees
who she alleges were also singled out for unfavorable treatment
because of their age. However, when asked upon what facts she
based this allegation, the plaintiff responded that "I wouldn't
be able to be specific on that, because you'd have to be there."
Pl.'s Dep. at 324; see generally Pl.'s Dep. at 323-25. In
addition to failing to support her allegation with specific
facts, the plaintiff also has failed to demonstrate any
affirmative link between alleged discriminatory conduct on the
job and her discharge. Therefore, this evidence does not satisfy
the plaintiff's burden of demonstrating the existence of a
genuine issue of material fact.
11 Finally, the plaintiff has introduced statistical informa
tion in support of her claim that the defendant discriminated
against workers at its Redington Street and Beacon Street
facilities on the basis of age. In 1994, the defendant employed
765 employees, 156 of whom were forty or older. Thus, employees
forty or older comprised 20.4% of all employees. From May 25,
1993, through September 27, 1994, the approximate period of the
plaintiff's employment, seventy-seven employees were "released or
discharged" from employment. See Pl.'s Obj., Ex. C, 5 37. Of
the seventy-seven released or discharged employees, the ages of
seventy-three are known. Eighteen of those seventy-three were
forty or older. Thus, of the seventy-three released or
discharged employees whose ages are known, employees forty or
older comprised 24.7% of released or discharged employees.
Assuming the four employees whose ages are unknown were forty or
older, employees forty or older comprised 28.6% of released or
discharged employees.
The plaintiff's statistical information suffers several
inadeguacies. First, the statistics, by counting together
employees who were "released or discharged," apparently fail to
distinguish between voluntary and involuntary departures. See
LeBlanc, 6 F.3d at 848. Even assuming that all the reported
discharges were involuntary, the plaintiff has provided no
indication that the increased rate of discharge for older
12 employees is statistically significant. See, e.g.. Mack v. Great
Atlantic & Pacific Tea Co., 871 F.2d 179, 184 (1st Cir. 1989)
("[P]laintiff proffered no expert testimony or other insights to
show the probativeness of the figures, their likely statistical
significance, or the inferences which might properly be drawn
from them."); see also LeBlanc, 6 F.3d at 848. Moreover, the
plaintiff has provided no evidence to connect the statistics to
the defendant's decision to dismiss her. See id. Therefore, the
plaintiff's statistical evidence is insufficient to allow a
reasonable fact finder to infer that the plaintiff was discharged
by the defendant because of age discrimination.
Although the court has discussed the plaintiff's proffered
evidence separately, the court must consider the evidence "in its
entirety" when analyzing whether the plaintiff has adduced
sufficient evidence to "permit a reasonable factfinder to infer
that the proffered reason for the dismissal was pretextual and
that the true reason was an aged-based animus." See Ruiz, 124
F.3d at 248. However, even considered together the plaintiff's
evidence is insufficient to generate a trialworthy issue in
support of her claim. The plaintiff was hired when she was
forty-nine and fired after less than a year of employment at the
age of fifty. During her employment she was the subject of six
personnel actions based on inadeguate performance. The plaintiff
suggests that these actions were a pretext for illicit age
13 discrimination, but her only supporting evidence consists of
unspecific, conclusory, self-serving asseverations on the one
hand and dubious statistics on the other. No reasonable fact
finder could conclude, based on such a weak showing, that the
plaintiff was discharged because of her age. Therefore, the
defendant is entitled to summary judgment.
Conclusion
For the reasons stated above, the defendant's motion for
summary judgment on the plaintiff's age discrimination claim in
count IV (document no. 13) is granted. The clerk is ordered to
close the case.
SO ORDERED.
Joseph A. DiClerico, Jr. District Judge
May 13, 1998
cc: Leslie H. Johnson, Esguire Robert E. Jauron, Esguire