Lewis v. Aerospace Community Credit Union

934 F. Supp. 314

Paul E. LEWIS, Plaintiff, v. AEROSPACE COMMUNITY CREDIT UNION, Defendant.

No. 4:95CV633 FRB.

United States District Court, E.D. Missouri, Eastern Division.

May 22, 1996.

COPYRIGHT MATERIAL OMITTED

Norvel E. Brown, Centralia, IL, for plaintiff.

James N. Foster, Jr., John F. Kuenstler, McMahon and Berger, St. Louis, MO, for defendant.

MEMORANDUM AND ORDER

BUCKLES, United States Magistrate Judge.

Presently pending before the Court is defendant's Motion for Summary Judgment (filed November 24, 1995/Docket No. 22). All matters are pending before the undersigned United States Magistrate Judge, with consent of the parties, pursuant to 28 U.S.C. § 636(c).

In this action, plaintiff claims that his employer, defendant Aerospace Community Credit Union (Aerospace), unlawfully terminated plaintiff from employment on account of his age and thus violated the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621, et seq. Plaintiff complains that his termination was discriminatory both in that he was accorded disparate treatment and that the termination resulted in disparate impact.

In December 1991, defendant Aerospace hired plaintiff as Vice President of Management Information Systems (Vice President-MIS). (Pltf.'s Compl. at para. 8.) This was a newly created position which no one held prior to plaintiff's employment at Aerospace. (Deft.'s Exh. A, Pltf.'s Depo. at 17, 48.) Plaintiff was forty-seven years old. (Pltf.'s Exh. H.) Plaintiff was hired because Aerospace was in the process of converting another credit union to their computer system and needed someone with "heavy duty data processing experience" for the project. (Deft.'s Exh. A, Pltf.'s Depo. at 21-22; Pilger Depo. at 47.) Plaintiff was hired by and worked directly for Nina Pilger, President of Aerospace. Prior to the creation of the position of Vice President-MIS in 1991, the position of Data Processing Manager was the highest level position in the information systems and was held by Tammy Belding. (Deft.'s Exh. A, Pltf.'s Depo. at 17, 49; Pilger Depo. at 47.)

In addition to Ms. Pilger, plaintiff was supervised by and reported to Todd Keller. (Deft.'s Exh. A, Pltf.'s Depo. at 23.) As a result of a reduction in force (RIF), Mr. Keller's employment was terminated approximately fourteen months prior to plaintiff's termination. (Deft.'s Exh. A, Pltf.'s Depo. at 24.) Plaintiff believed Mr. Keller to be fifty or fifty-one years of age at the time of his termination. (Deft.'s Exh. A, Pltf.'s Depo. at 24.)

Reports issued between 1991 and 1993 relating to the operation and status of Aerospace, made by the examiners of the Missouri Division of Credit Unions and National Credit Union Administration, were critical of Aerospace's performance. (Pltf.'s Exh. B, Pltf.'s Depo. at 32-36; Deft.'s Exhs. D, E.) The financial status of Aerospace worsened between 1991 and 1993. (Deft.'s Exh. A, Pltf.'s Depo. at 35; Exh. D.) A Letter of Understanding issued to Aerospace by the Missouri Division of Credit Unions and National Credit Union Administration recommended that Aerospace develop a systematic plan by June 30, 1993, to reduce operating expenses within three years. (Deft.'s Exh. E.) Operating expenses include the cost of personnel and administration within the credit union. (Deft.'s Exh. A, Pltf.'s Depo. at 37.) Aerospace was to consider each service of the credit union and determine whether the service needed to be maintained, changed or deleted. (Deft.'s Exh. E.) In December 1993, the examiners cautioned Aerospace that further erosion of capital adequacy should not occur. (Deft.'s Exh. D.)

Ms. Pilger drafted a cost reduction plan. (Deft.'s Exh. B, Pilger Depo. at 21.) In addition to reducing travel conferences, compensation and training, Aerospace eliminated four positions and discharged four employees as part of its plan to reduce operating costs. (Deft.'s Exh. B, Pilger Depo. at 19-20, 21, 28.) These positions were eliminated in August 1993 and October 1994. (Deft.'s Exh. C, Pilger Affid.) In determining which positions to eliminate, Ms. Pilger determined whether such elimination would impact Aerospace's services to its members. (Deft.'s Exh. B, Pilger Depo. at 28.) Duties previously assigned to these positions were reassigned to various other positions within the credit union. (Deft.'s Exh. B, Pilger Depo. at 23, 33-39, 70.)

In October 1994, plaintiff was aware that Aerospace was forced to reduce its operating costs and thus was required to invoke staff reductions and reorganize operations. (Deft.'s Exh. A, Pltf.'s Depo. at 47-48.) Plaintiff's position was eliminated and plaintiff was discharged on October 31, 1994. (Deft.'s Exh. A, Pltf.'s Depo. at 48-49; Pltf.'s Exh. A, Pilger Depo. at 52; Pltf.'s Exh. G.) Plaintiff was fifty years of age at the time of his discharge. (Pltf.'s Exhs. F, H.) The decision to eliminate plaintiff's position and discharge plaintiff was made by Ms. Pilger. (Pltf.'s Exh. A, Pilger Depo. at 15-16, 44.) No aspect of plaintiff's performance was taken into account in the selection of plaintiff's position for elimination. (Deft.'s Exh. B, Pilger Depo. at 70.) The only aspect of plaintiff or his job which Ms. Pilger considered was plaintiff's compensation and the necessity of the functions he performed. (Pltf.'s Exh. A, Pilger Depo. at 67-69.) Ms. Pilger believed a supervisory position over data processing at the vice president level was unnecessary inasmuch as data processing was self-supporting. (Deft.'s Exh. B, Pilger Depo. at 28, 44.) No person replaced plaintiff in his position after he was discharged; rather, plaintiff's duties were reassigned to various other positions within the credit union. (Deft.'s Exh. A, Pltf.'s Depo. at 56; Exh. B, Pilger Depo. at 23, 33-39, 70.) Ms. Pilger did not consider plaintiff for any other position available in the credit union at the time of his discharge inasmuch as she believed plaintiff to lack the requisite skills for such positions. (Pltf.'s Exh. A, Pilger Depo. at 60, 72.) Since October 31, 1994, Aerospace has hired no new employees in managerial positions. (Deft.'s Exh. B, Pilger Depo. at 137.) In January 1995, managerial positions received an across-the-board five percent salary increase after a two-year wage freeze. (Pltf.s' Exh. A, Pilger Depo. at 131-33.)

At no time did anyone from the credit union refer to plaintiff's age or make agerelated comments in the presence of plaintiff. (Deft.'s Exh. A, Pltf.'s Depo. at 47.) Upon the termination of plaintiff's position, Ms. Belding returned to the position of Data Processing Manager. (Deft.'s Exh. A, Pltf.'s Depo. at 50; Pltf.'s Exh. G.)

Plaintiff claims that his discharge was on account of age discrimination on the part of defendant Aerospace in violation of the Age Discrimination in Employment Act (ADEA). Defendant now moves for summary judgment arguing that there are no issues of material fact and that defendant is entitled to judgment as a matter of law. Specifically, defendant claims that plaintiff has failed to establish a prima facie case of age discrimination. Defendant further claims that its employment decision was based on a legitimate, non-discriminatory reason and that plaintiff has offered no evidence to rebut its legitimate reason. Finally, defendant contends that plaintiff's claim of disparate impact is non-cognizable in ADEA proceedings. Plaintiff has responded to defendant's motion, to which defendant has replied.

Pursuant to Rule 56(c), Federal Rules of Civil Procedure, a court may grant summary judgment if the information before the court shows that there are no material issues of fact in dispute and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). The burden of proof is on the moving party to set forth the basis of its motion, Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986), and the court must view all facts and inferences in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Once the moving party shows there are no material issues of fact in dispute, the burden shifts to the adverse party to set forth facts showing there is a genuine issue for trial. Id. The non-moving party may not rest upon its pleadings, but must come forward with affidavits or other admissible evidence to rebut the motion. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.

Summary judgment is a harsh remedy and should not be granted unless the movant "has established his right to judgment with such clarity as to leave no room for controversy." New England Mutual Life Ins. Co. v. Null, 554 F.2d 896, 901 (8th Cir.1977). The Eighth Circuit has noted, however, that "summary judgment can be a tool of great utility in removing factually insubstantial cases from crowded dockets, freeing courts' trial time for those that really do raise genuine issues of material fact." City of Mt. Pleasant, Iowa v. Associated Elec. Coop., Inc., 838 F.2d 268, 273 (8th Cir.1988).

I. Disparate Treatment

A plaintiff alleging age discrimination may rely on direct or circumstantial evidence to prove that he was unlawfully discriminated against on account of age. Nitschke v. McDonnell Douglas Corp., 68 F.3d 249, 251 (8th Cir.1995). Plaintiff has not provided direct evidence of such discrimination, so the Court must determine whether plaintiff has provided sufficient circumstantial evidence to survive defendant's motion for summary judgment. Id.

Plaintiff must first establish a prima facie case of age discrimination. McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Bashara v. Black Hills Corp., 26 F.3d 820, 823 (8th Cir.1994). To establish a prima facie case of age discrimination, a plaintiff discharged pursuant to an RIF must show that: 1) he was at...