Webb v. Level 3 Communications, LLC

167 F. App'x 725
CourtCourt of Appeals for the Tenth Circuit
DecidedJanuary 25, 2006
Docket05-1051
StatusUnpublished
Cited by14 cases

This text of 167 F. App'x 725 (Webb v. Level 3 Communications, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Webb v. Level 3 Communications, LLC, 167 F. App'x 725 (10th Cir. 2006).

Opinion

ORDER AND JUDGMENT *

MARY BECK BRISCOE, Circuit Judge.

Plaintiff George Webb appeals the district court’s order granting summary judgment for defendant, Level 3 Communications, LLC (Level 3), on his claims of age discrimination and retaliation in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I.

In 1997, at the age of fifty-five, Webb began working for a predecessor of Level 3 as a Senior Network Developer. Though he experienced some performance problems in 1998, overall Webb’s performance met or exceeded expectations.

In 1999, Webb’s supervisor inquired as to his willingness to relocate to Colorado. From the conversation, Webb inferred that moving to Colorado would help him advance within the company. Webb asked about a relocation package and believed that relocation expenses would be offered. During that conversation, however, his su *727 pervisor did not promise reimbursement and warned: “Don’t do anything you can’t get out of.” App. at 176. Despite the warning, Webb and his wife put a deposit down on a home in Colorado. Early in 2000, Level 3 informed Webb that there was no money in the budget for relocation costs. Webb opted to proceed with the move, and in August 2000, he and his wife moved to Colorado.

In June 2001, Level 3 informed Webb that his position was being eliminated in a reduction in force (RIF) and that he would be terminated effective September 9, 2001. Webb began to think that Level 3 was treating him less favorably because of his age. Webb was saved from termination by Tim Leddy, Vice President of Customer Operations, who hired Webb as a Program Manager in the Customer Operations Department. Webb considered this to be a lateral move. After the move, Level 3 did not provide Webb with plans for his future development, something, he contends, the company routinely provided to younger employees. Webb grew concerned that he “was being set up for the next RIF when it came.” App. at 188.

On December 31, 2001, Webb’s job title changed to Program Manager II. Between June 2001 and January 2003, Level 3 had several additional RIFs, but Webb survived them.

On November 14, 2002, Webb met with Blake Isom, a Level 3 Human Resources Department representative, for assistance in “finding opportunities that could better utilize [his] experience and expertise ...” within the company. App. at 166. During their meeting, Isom asked Webb, “Have you ever been discriminated against?” Id. at 167. Webb responded, “[A] case could probably be made for it.” Id. at 167, 188. Webb did not file a complaint under Level 3’s anti-discrimination policy, and he did not request an investigation into his allegation of discrimination. Isom did not investigate Webb’s statement.

In January 2003, Level 3 instituted another RIF for economic reasons. Leddy needed to reduce the number of employees within his division and selected Webb for termination based on customers, work, sales, and input received from his supervisor regarding his performance and ability to contribute to the organization. During the RIF, Level 3 eliminated forty-nine employees: twenty-five were under the age of forty; and twenty-four were forty years old and over.

On January 16, 2003, Level 3 informed Webb that his position was being eliminated and that he was being terminated. Level 3 gave Webb the option of a severance package, which was offered to all impacted employees, or a modified retirement package. Level 3 gave Webb forty-five days to consider the two options. Webb applied for retirement benefits on April 8, 2003, but Level 3 denied his request because he did not apply for benefits within the forty-five day period.

After his termination, Webb applied for other positions with Level 3, for which he contends he was fully qualified. Webb never received an interview. On April 8, 2003, Webb filed a charge of discrimination with the EEOC. A few months later, Webb filed this action alleging discrimination and retaliation in violation of the ADEA. Level 3 filed a motion for summary judgment on both claims, which the district court granted. The district court found that the RIF was a legitimate nondiscriminatory reason for Webb’s termination, and that Webb had failed to show that this reason was pretextual. As to Webb’s retaliation claim, the district court held that Webb offered no evidence of a causal connection between the protected activity, Webb’s conversation with Isom, and the adverse action, i.e., his termination.

*728 II.

Webb argues that the district court erred in finding that Webb failed to present sufficient evidence of pretext to preclude summary judgment on his discrimination claim. He also contends the district court erred in finding that Webb did not produce sufficient evidence of a causal connection between the protected activity and his termination to set forth a prima facie case of retaliation.

Standard of review

This court reviews de novo a district court’s grant or denial of summary judgment, applying the same standard as the district court. Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir.2004) (citation omitted). 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 a judgment as a matter of law.” Fed.R.Civ.P. 56(c). ‘We view the evidence, and draw reasonable inferences therefrom, in the light most favorable to the nonmoving party.” Combs v. Price-Waterhouse Coopers LLP, 382 F.3d 1196, 1199 (10th Cir.2004) (citation omitted).

Discrimination claim

In this case, Webb presented no direct evidence of age discrimination and instead, relied on circumstantial evidence. When a plaintiff relies on circumstantial evidence to demonstrate employment discrimination, we apply the burden-shifting framework set forth in McDonnell Douglas and its progeny. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-07, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir.2002) (McDonnell Douglas applies to ADEA and Title VII claims).

Under the McDonnell Douglas framework, a plaintiff establishes a prima facie case of age discrimination by showing that he or she was: 1) within a protected age group; 2) doing satisfactory work or qualified for the position; 3) discharged; and 4) replaced by a person outside the protected age group. Branson v. Price River Coal Co., 853 F.2d 768, 770 (10th Cir.1988); EEOC v. Sperry Corp.,

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167 F. App'x 725, Counsel Stack Legal Research, https://law.counselstack.com/opinion/webb-v-level-3-communications-llc-ca10-2006.