Opinion
8:98CV304
March 2000.
MEMORANDUM OOINION AND ORDER
This matter is before the Court on Defendant's motion for summary judgment and motion to dismiss Plaintiff's state law claims. Upon consideration of the pleadings, briefs, and case law, the Court finds that the motion for summary judgment should be granted and the motion to dismiss should be denied.
BACKGROUND
Mr. Hall filed this lawsuit alleging age and disability discrimination by Hormel Foods Corporation because the company did not hire him. Hormel has now moved for summary judgment on the grounds that Mr. Hall is unable to establish a prima facie case of either age or disability discrimination. The company also requests dismissal of Mr. Hall's causes of action under Nebraska anti-discrimination statutes on the grounds of lack of jurisdiction.
Mr. Hall lives in Fremont, Nebraska. Most of his work experience has been in the food service and construction industries, primarily in California, New Mexico, and east-central Nebraska. He returned to college in the early 1990s and earned an associate's degree in a legal assistant/paralegal program and a bachelor of general studies degree majoring in business administration and political science. During this time he was living on Social Security disability benefits because he suffers from pulmonary dysfunction (asthma and sleep apnea). Since obtaining his degrees, he has done some paralegal work for his attorney and has continued to work, on a short-term basis, in various food service operations in the area. He was born in 1952, and was 44 years of age when he applied for work at Hormel.
In early 1997, Mr. Hall sought employment under Social Security's trial work program, which permits recipients of disability benefits to work for up to ten months without jeopardizing their benefits, simply to see if they have recovered sufficiently to return to gainful employment. Mr. Hall turned to a state vocational rehabilitation agency for help, where Rehabilitation Specialist Jo Lynn Isaacs helped him revise his résumé and cover letter. Mr. Hall was interested in exploring management positions with Hormel, so he asked Ms. Isaacs for advice. Ms. Isaacs contacted Tim Fritz, the personnel manager at Hormel's Fremont plant, and faxed Mr. Hall's résumé to Mr. Fritz on or about February 15, 1997. The parties take conflicting positions as to whether Mr. Fritz simply agreed to review the résumé as a favor or whether he told Ms. Isaacs the company was indeed looking for an entry-level production manager at the time and Mr. Hall's qualifications sounded promising.
In any event, Mr. Fritz sent a letter dated March 3, 1997, to Mr. Hall notifying him that the company would not be offering him a position at that time. Mr. Hall subsequently filed discrimination complaints with the state and federal equal employment opportunity agencies. The federal commission issued a right-to-sue letter in March 1998, and Mr. Hall filed the present lawsuit in June 1998. The Nebraska commission subsequently notified Mr. Hall that it found insufficient evidence to support his charge of age discrimination.
The age discrimination claim arises because Mr. Hall included in his résumé the year of his graduation from high school, which he believes put Hormel on notice that he was more than 40 years of age. The disability discrimination claim comes about because Mr. Hall believes Hormel knew he was, or at least regarded him as, disabled because his résumé was submitted via a vocational rehabilitation center. In his amended complaint, Mr. Hall enumerates violations of the Age Discrimination in Employment Act, 29 U.S.C. § 621-634 ("ADEA");the Act Prohibiting Unjust Discrimination in Employment Because of Age, Neb. Rev. Stat. §§ 48-1001 to -1010; the Americans with Disabilities Act, 42 U.S.C. § 12101,et seq. ("ADA"); and the Nebraska Fair Employment Practice Act, Neb. Rev. Stat. §§ 48-1101 to -1126 ("NFEPA").
STANDARD OF REVIEW Motion for summary judgment
On a motion for summary judgment, the question before the district court is whether the record, when viewed in the light most favorable to the non-moving party, shows 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. Fed.R.Civ.P. 56(c);see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986);Morgan v. Rabun, 128 F.3d 694, 696 (8th Cir. 1997), cert. denied, 523 U.S. 1124 (1998); Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992); St. Paul Fire Marine Ins. Co. v. FDIC, 968 F.2d 695, 699 (8th Cir. 1992).
Summary judgment is an extreme and treacherous device, which should not be granted unless the moving party has established a right to a judgment with such clarity as to leave no room for controversy, and unless the other party is not entitled to recover under any discernible circumstances. Vette Co. v. Aetna Cas. Sur. Co., 612 F.2d 1076, 1077 (8th Cir. 1980). In ruling on a motion for summary judgment, the district court must view the facts in the light most favorable to the party opposing the motion and give that party the benefit of all reasonable inferences to be drawn from the record. Id.; Widoe v. District No. 111 Otoe County Sch., 147 F.3d 726, 728 (8th Cir. 1998); Ghane v. West, 148 F.3d 979, 981 (8th Cir. 1998). Even if the district court is convinced that the moving party is entitled to judgment, the exercise of sound judicial discretion may dictate that the motion should be denied, so the case may be fully developed at trial. McLain v. Meier, 612 F.2d 349, 356 (8th Cir. 1979); Franklin v. Lockhart, 769 F.2d 509, 510 (8th Cir. 1985).
Essentially, the test is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. at 251-52. Moreover, although under Federal Rule of Civil Procedure 56 due deference must be given to the rights of litigants to have their claims adjudicated by the appropriate finder of fact, equal deference must be given under Rule 56 to the rights of those defending against such claims to have a just, speedy and inexpensive determination of the action where the claims have no factual basis. Celotex Corp. v. Catrett, 477 U.S. at 327.
The court's role is simply to determine whether the evidence in the case presents a sufficient dispute to place before the jury.
At the summary judgment stage, the court should not weigh the evidence, make credibility determinations, or attempt to determine the truth of the matter. Rather, the court's function is to determine whether a dispute about a material fact is genuine. . . . If reasonable minds could differ as to the import of the evidence, summary judgment is inappropriate.Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376-77 (8th Cir. 1996) (internal citations omitted). See also Bell v. Conopco, Inc., 186 F.3d 1099, 1101 (8th Cir. 1999) (court's function is not to weigh the evidence to determine truth of any factual issue).
A genuine issue of material fact exists if: (1) there is a dispute of fact; (2) the disputed fact is material to the outcome of the case; and (3) the dispute is genuine, meaning a reasonable jury could return a verdict for either party. RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995).
The Eighth Circuit Court of Appeals has repeatedly cautioned that summary judgment should seldom be granted in the context of employment actions, as such actions are inherently fact-based.Chock v. Northwest Airlines, Inc., 113 F.3d 861, 862 (8th Cir. 1997); Hardin v. Hussmann Corp., 45 F.3d 262, 264 (8th Cir. 1995). "Summary judgments should be sparingly used and then only in those rare instances where there is no dispute of fact and where there exists only one conclusion." Johnson v. Minnesota Historical Soc'y, 931 F.2d 1239, 1244 (8th Cir. 1991) (citing Hillebrand v. M-Tron Indus., Inc., 827 F.2d 363, 364 (8th Cir. 1987), cert.denied, 488 U.S. 1004 (1989)). "Because discrimination cases often turn on inferences rather than on direct evidence, [the court must be] particularly deferential to the nonmovant." Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1205 (8th Cir. 1997) (citingCrawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994)). Such deference, however, will not preclude the entry of summary judgment when the facts of the case warrant it.
Rule 12(b)(1) motion to dismiss
Federal courts are courts of limited jurisdiction. See 28 U.S.C. § 1331 1332. "The requirement that jurisdiction be established as a threshold matter 'spring[s] from the nature and limits of the judicial power of the United States' and is 'inflexible and without exception.'" Godfrey v. Pulitzer Publ'g Co., 161 F.3d 1137, 1141 (8th Cir. 1998) (quoting Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998)), cert. denied, ___ U.S. ___, 119 S.Ct. 1575 (1999).
There are two ways to challenge the Court's subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1): the complaint may be attacked either on its face or on the factual truthfulness of its averments. Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (citing Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir. 1990)).
Once subject matter jurisdiction is challenged, the plaintiff has the burden of establishing that jurisdiction exists. The plaintiff must validate the jurisdictional facts by competent proof or risk dismissal. Zunamon v. Brown, 418 F.2d 883, 886 (8th Cir. 1969). It is within the discretion of the court to determine how to proceed on jurisdictional questions, and the court "may consider materials outside the pleadings such as depositions or affidavits in determining whether the record demonstrates lack of subject matter jurisdiction." Satz v. ITT Financial Corp., 619 F.2d 738, 742 (8th Cir. 1980).
Western Neb. Resources Council v. Wyoming Fuel Co., 641 F. Supp. 128, 139 (D.Neb. 1986).
In a facial challenge to the Court's jurisdiction, the Court simply reviews the pleadings. All of the complaint's factual allegations concerning jurisdiction are presumed to be true and the motion will be successful if the plaintiff fails to allege an element necessary for subject-matter jurisdiction. Titus, 4 F.3d at 593. The complaint need only contain "a short and plain statement of the grounds upon which the court's jurisdiction depends." Id.; Fed.R.Civ.P. 8(a)(1).
In a factual attack, the Court may consider matters outside the pleadings.
Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction — its very power to hear the case — there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to the plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist.Osborn, 918 F.2d at 730 (quoting Mortensen v. First Fed. Sav. Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)).
DISCUSSION Motion to Dismiss
In the present case, Mr. Hall has offered no evidence regarding subject-matter jurisdiction. Instead, he has chosen to rest on the pleadings. A review of his amended complaint (filing 16) indicates that he invokes jurisdiction pursuant to 29 U.S.C. § 626(b) (age discrimination); 28 U.S.C. § 1331 (federal question); 28 U.S.C. § 1337 (commerce and antitrust); and 28 U.S.C. § 1367 (supplemental jurisdiction). Hormel's motion to dismiss the state law causes of action is based on Plaintiff's failure to follow the appropriate procedure under state law for appeals from administrative decisions such as those of the Nebraska Equal Opportunity Commission ("NEOC"). Specifically, Hormel cites statutory and case law setting forth the administrative process to be followed when NEOC decisions are appealed. Essentially, under the NFEPA and the Nebraska Administrative Procedures Act, that administrative process is confined to the state courts. Because the NFEPA does not authorize filing an action in federal court,see Lampman v. McCook Public Schools, 54 F. Supp.2d 945, 946 (D.Neb. 1999), Hormel takes the position that this Court is deprived of subject-matter jurisdiction over Mr. Hall's NFEPA claims.
There is a Nebraska statute, Neb. Rev. Stat. § 20-148Neb. Rev. Stat. Ann. § 20-148 (Michie 1999)., which has been interpreted to permit a plaintiff to bring a cause of action either in state court or in federal court as a pendent claim in order to enforce the rights secured by the NFEPA, without having to exhaust one's administrative remedies first. Goolsby v. Anderson, 549 N.W.2d 153, 157-58 (Neb. 1996); Lampman, 54 F. Supp.2d at 946-47. It is a procedural statute designed to allow plaintiffs seeking to vindicate already-existing constitutional or statutory rights to avoid agency review procedures. Therefore, a method of bringing such claims before the Court prior to exhaustion of one's administrative remedies does exist.
The question for the Court then becomes whether Mr. Hall's failure to specifically plead § 20-148 in his complaint requires dismissal of his state-law claims. The Court finds that it does not. A similar question arose in Andersen v. American Red Cross-Midwest Region Blood Servs., No. A-96-588, 1997 WL 627610 (Neb.Ct.App. Oct. 10, 1997). Mr. Andersen worked as a medical technologist for the Red Cross, and notified the U.S. Food and Drug Administration of improper blood platelet storage by the Red Cross. A subsequent investigation bore out his allegations. Mr. Andersen's employment was terminated a few months thereafter. Mr. Andersen filed a lawsuit alleging wrongful termination, retaliation, violation of public policy, and breach of an implied covenant of good faith and fair dealing in employment contracts. He did not, however, specifically allege a violation of his right to be free from retaliatory discharge under § 20-148. The Red Cross argued that certain of Mr. Andersen's claims came from the NFEPA, but as Mr. Andersen had not complied with the administrative process under NFEPA, the court had no jurisdiction.
In reversing the district court's grant of summary judgment based in part on Mr. Andersen's failure to exhaust his administrative remedies, the appellate court noted that Goolsby had been decided in the interim, which would permit Mr. Andersen to state a claim. The court of appeals therefore allowed Mr. Andersen to amend his complaint to cure the defect. Noting that "[p]roper pleading nonetheless requires a petition to state in logical and legal form the facts which constitute the cause of action, define the issues to which the defendant must respond . . ., and inform the court of the real matter in dispute," Andersen at *3, the court found that while Mr. Andersen's petition did not adequately state a cause of action under any theory recognized in Nebraska, "the defects in the pleading as to the retaliatory discharge only appear to be amenable to proper pleading." Id. at *4.
Here, Mr. Hall did not specifically plead § 20-148, but he did state that his rights under state and federal age and disability discrimination statutes had been violated by Hormel. He also invoked the Court's supplemental jurisdiction "over all other claims that are so related to claims in the action [within the Court's original jurisdiction] that they form part of the same case or controversy". 28 U.S.C. § 1367(a). Thus, the amended complaint, as pled, is sufficient to put Hormel on notice that Mr. Hall intended to pursue pendent state law violations as well as federal violations. For that reason, Hormel's motion to dismiss will be denied.
Age Discrimination ADEA standard
The ADEA was enacted to protect "older workers" in employment situations, promote employment based on ability rather than age, and prohibit age discrimination. 29 U.S.C. § 621(b). The Act provides that "[i]t shall be unlawful for an employer — (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age[.]" 29 U.S.C. § 623(a). The Act covers "individuals who are at least 40 years of age." 29 U.S.C. § 631(a).
Under the applicable case law, if the plaintiff presents no direct evidence of age discrimination, the burden-shifting analysis used in Title VII cases and set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), is followed. Pursuant to McDonnell Douglas, the plaintiff carries the initial burden of establishing a prima facie case. Once he or she does that, thus raising an inference of discrimination, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the employment decision. If the defendant meets this burden, the plaintiff must show that the defendant's reason is merely a pretext for discrimination.
Prima facie case
For the plaintiff to establish a prima facie case on a failure-to-hire claim, he must demonstrate the following: (1) membership in the protected class; (2) appropriate qualifications for the position for which he applied; (3) an adverse decision by the employer despite Plaintiff's qualifications; and (4) a person sufficiently younger to permit an inference of age discrimination was subsequently hired to fill the position. Schiltz v. Burlington N. R.R., 115 F.3d 1407, 1412 (8th Cir. 1997). Here, Mr. Hall was more than 40 years of age, and therefore a member of the protected class, when he applied for the Hormel job. The plant's personnel manager, Mr. Fritz, denies having been aware of Mr. Hall's age at the time, but the year Mr. Hall graduated from high school was on the résumé sent to Mr. Fritz, so Hormel is deemed to have known that Mr. Hall was a member of the protected class at the time he applied.
Second, the only evidence before the Court on the qualifications necessary for a production supervisor at Hormel is found in a paragraph of Mr. Fritz's declaration:
4. Production supervisors at Hormel's Fremont facility essentially manage a production line. Their duties include scheduling production needs for their shifts, ensuring that appropriate employees are in place to efficiently operate the production line, coordinating delivery of packing supplies and raw materials for their department and, among other things, completing productivity and yield reports at the end of each shift.
Def.'s Evid. in Supp. of Mot. for Summ. J., Ex. 2, Decl. of Timothy Fritz ¶ 4 (filing 37).
Mr. Fritz simply states in his declaration that Mr. Hall lacked the necessary qualifications to be considered for a job. Fritz Decl. ¶¶ 3, 8, 10. Mr. Hall, on the other hand, maintains that when Ms. Isaacs telephoned Mr. Fritz to inquire about management applications, Mr. Fritz told her that, based on Ms. Isaacs' description of his history and experience, Mr. Hall appeared to be qualified for a position. Def.'s Evid. in Supp. of Mot. for Summ. J., Ex. 1, Dep. of Patrick Hall, 96:21-97:7 (filing 37). While Mr. Hall had little recent work experience of any kind, there is evidence that Mr. Hall worked for approximately three-and-one-half years in a food manufacturing facility in the mid-1980s, mixing and packaging spices and keeping a production line going. Hall Dep. 27:4-24. Although it is difficult for the Court to determine, on the evidence presented, whether or not Mr. Hall was qualified to be a production supervisor at Hormel, for purposes of this analysis I will treat this element as having been established.
Third, Mr. Hall suffered an adverse decision by the employer, as Hormel refused to hire him. I will assume for purposes of this opinion that Mr. Hall was qualified for a management position, so he has met the third element of the prima facie case.
Finally, the parties also dispute whether the fourth element, position filled by a younger person, has been established. Because some courts had adopted a requirement that a plaintiff demonstrate the employer hired someone from outside of the protected class, the United States Supreme Court took up the issue in O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996). The Court explained that each element of the prima facie case must have a logical connection to the illegal discrimination which a plaintiff is attempting to establish. Because the ADEA bans discrimination "because of [an] individual's age," and not because an employee is 40 or older, "[t]he fact that one person in the protected class has lost out to another person in the protected class is thus irrelevant, so long as he has lost out because of his age."O'Connor, 517 U.S. at 312 (emphasis in original). To clarify this fourth element of the prima facie case, the Supreme Court formulated the "substantially younger" test: "Because the ADEA prohibits discrimination on the basis of age and not class membership, the fact that a replacement is substantially younger than the plaintiff is a far more reliable indicator of age discrimination than is the fact that the plaintiff was replaced by someone outside the protected class." Id. at 313.
To date, the Seventh Circuit appears to be the only court to have developed anything close to a "bright line" test, holding that "[w]hile we suspect that the answer depends to some extent on the circumstances in a case, we consider a ten-year difference in ages (between the plaintiff and her replacement) to be presumptively 'substantial' under O'Connor." Hartley v. Wisconsin Bell, Inc., 124 F.3d 887, 893 (7th Cir. 1997) (noting, however, that "the line we draw is not so bright as to exclude cases where the gap is smaller but evidence nevertheless reveals the employer's decision to be motivated by the plaintiff's age"). The six- and seven-year difference in ages between Ms. Hartley and her two replacements "is a presumptively insubstantial gap." Id.
Other circuits address the issue on a case-by-case basis. Three to have discussed the issue at all, including the Eighth, have said that a five-year age difference is not substantial enough. See Schiltz v. Burlington N. R.R., 115 F.3d at 1413 (of six positions for which plaintiff was not hired, two were filled by persons older than or same age as plaintiff, and remaining four were filled by persons no more than five years younger than plaintiff, which is not substantially younger enough to raise inference of discrimination); Bush v. Dictaphone Corp., 161 F.3d 363, 368 (6th Cir. 1998) (absent other evidence, replacement by person less than five years younger does not meet "substantially younger" standard); and Cramer v. Intelidata Tech. Corp., 1998 WL 911735 at *3 (4th Cir. Dec. 31, 1998) (absent additional evidence, person who assumed plaintiff's duties, at five years younger than plaintiff, was not "substantially younger").
Here, the parties disagree as to the status of the job opening. Hormel asserts there was no particular job opening at the time Mr. Hall applied, and Mr. Fritz accepted the application simply anticipating future openings at the plant. Fritz Decl. ¶¶ 3 6. Mr. Hall, however, alleges that Ms. Isaacs was told the company was actively recruiting and wanted to see Mr. Hall's résumé right away. Hall Dep. 94:8-13.
The question of whether "the" position was filled is important because a plaintiff cannot make a case for a position that was never filled. Schiltz, 115 F.3d at 1413. Mr. Hall has submitted an exhibit which appears to be Hormel's response to Interrogatory No. 10. It is a list of twenty individuals who were hired as production managers at the Fremont plant between late 1996 and spring 1998. Ex. 2 to Pl.'s Br. in Opp. to Mot. for Summ. J. According to that exhibit, Hormel did not extend any job offers during February 1997. However, for purposes of this analysis, I believe it is reasonable to construe this element to mean the next available job opening. According to the list of new hires, the job offer extended in March 1997 was accepted by a 21-year-old. Id. This is "sufficiently younger" to permit an inference of discrimination.
Having found that Plaintiff has established a prima facie case of age discrimination, I will address the employer's reasons for not hiring him.
Legitimate, non-discriminatory reason for discharge
The normal statement of the prima facie case is generally sufficient to raise an inference of discrimination only because the court presumes the employer's decision, if otherwise unexplained, is more likely than not based on the consideration of impermissible factors. Rinehart v. City of Independence, Mo., 35 F.3d 1263, 1268 (8th Cir. 1994) (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)), cert. denied, 514 U.S. 1096 (1995). This presumption is valid because the court knows from experience that more often than not people do not act in a totally arbitrary manner, without any underlying reasons, especially in a business setting. Id. For this reason, the employer assumes the burden of production to articulate a legitimate, non-discriminatory reason for its employment decision. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
In the present case, Hormel says it did not select Mr. Hall for an entry-level production supervisor position because (1) the Fremont plant was not recruiting production supervisors at that time; (2) he was not qualified to be a production supervisor; (3) his résumé contained grammatical errors; (4) he had no recent work experience; and (5) he failed to show initiative by following up with Mr. Fritz. Fritz Decl. ¶ 10.
Federal courts are not vested with authority to sit as "super-personnel departments reviewing the wisdom or fairness of the business judgments made by employers, except to the extent that those judgments involve intentional discrimination." Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 781 (8th Cir. 1995);Walker v. ATT Tech., 995 F.2d 846 (8th Cir. 1993) (Employer entitled to jury instruction that employer may exercise business judgment in making personnel decisions, so long as such decisions are made in nondiscriminatory manner); Slathar v. Sather Trucking Corp., 78 F.3d 415, 418 (8th Cir.), cert. denied, 519 U.S. 867 (1996) (same); Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1317 (8th Cir. 1996) (Court may not second-guess employer's personnel decisions unless such decisions are based on unlawful discrimination).
However, the Court's role is to enforce the statute invoked by Plaintiff. It does this by conducting the McDonnell Douglas analysis to determine whether any factual issues exist for the trier of fact. In St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), the Supreme Court explained the "issues of fact" inquiry:
At the close of the defendant's case, the court is asked to decide whether an issue of fact remains for the trier of fact to determine. None does if, on the evidence presented, (1) any rational person would have to find the existence of facts constituting a prima facie case, and (2) the defendant has failed to meet its burden of production — i.e., has failed to introduce evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action. In that event, the court must award judgment to the plaintiff as a matter of law. . . . If the defendant has failed to sustain its burden but reasonable minds could differ as to whether a preponderance of the evidence establishes the facts of a prima facie case, then a question of fact does remain, which the trier of fact will be called upon to answer.
If, on the other hand, the defendant has succeeded in carrying its burden of production, the McDonnell Douglas framework — with its presumptions and burdens — is no longer relevant. . . . The presumption, having fulfilled its role of forcing the defendant to come forward with some response, simply drops out of the picture. . . . The defendant's "production" (whatever its persuasive effect) having been made, the trier of fact proceeds to decide the ultimate question: whether plaintiff has proved "that the defendant intentionally discriminated against [him]. . . ."509 U.S. at 509-11 (emphasis in original) (citations and footnote omitted).
For purposes of this inquiry, I will assume that Hormel's reasons for not hiring Mr. Hall are legitimate, that is, that taken as true, Hormel's evidence could permit the conclusion that Mr. Hall was not offered a job for valid, nondiscriminatory reasons. This leads to the third step of the analysis.
Pretext
If the employer meets its burden, then the burden shifts back to the plaintiff to demonstrate that the employer's proffered reason is merely pretext for discrimination. Burdine, 450 U.S. at 253. However, the plaintiff's obligation becomes hazy at this point. "Once the plaintiff has put forward evidence from which a reasonable fact-finder could conclude that the employer's stated reason [for] taking the complained-of action was not the real reason, it is unclear what more a plaintiff must do in order to survive a motion for summary judgment." Brannock v. Trans World Airlines, Inc., 1999 WL 671915 at *3 (W.D.Mo. Aug. 27, 1999).
The Brannock court noted divergent views of what the plaintiff is required to demonstrate in order to carry his burden:
Under one view, a plaintiff need only cast sufficient doubt upon the employer's proffered reason. See St. Mary's Honor Society [sic] v. Hicks, 509 U.S. 502, 511 (1993):
The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination, and the Court of Appeals was correct when it noted that, upon such rejection, no additional proof of discrimination is required.
(footnotes and quotation omitted). . . .
Under an alternative view, a defendant is entitled to summary judgment unless the plaintiff shows both that the "proffered nondiscriminatory reasons are either untrue or were not the real reasons for the action, and that intentional discrimination was the real reason." McCullough [v. Real Foods, Inc.], 140 F.3d [1123] at 1127. . . . The Eighth Circuit has provided equivocal, possibly conflicting, guidance as to which view is the law. See, e.g., Stanback v. Best Diversified Prods., Inc., 180 F.3d 903, 912 (8th Cir. 1999) (Richard S. Arnold, J., concurring) (interpreting Ryther [v. KARE 11, 108 F.3d 832 (8th Cir. 1997) (en banc)] as endorsing first view); cf. id. at 912-13 (Hansen, J., concurring) (interpreting Ryther as endorsing second view.)[5]
[5] The court does not now intend to resolve the conflict between Judge Arnold's and Judge Hansen's views of the law, but it notes an uneasiness with the proposition that summary judgment must generally be granted if the plaintiff does no more than produce evidence tending to disprove the employer's stated reason for taking the challenged action. Such a view, it seems, is in severe tension with the McDonnell Douglas framework, whose very purpose is to permit plaintiffs to base employment discrimination cases upon circumstantial evidence. "There will seldom be 'eyewitness' testimony as to the employer's mental processes," United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1994). Requiring a plaintiff to show both (i) that the employer's reason is pretextual and (ii) that, based upon additional evidence, discrimination was the real reason, seems close to requiring direct evidence of the employer's discriminatory motives. Yet, a separate framework already analyzes cases that are predicated upon such direct evidence. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).Brannock, 1999 WL 671915 at *3.
The court then attempted to define the parameters faced by Mr. Brannock, finding that:
[a]t the very least, [he] must cast enough doubt upon TWA's stated reasons that a reasonable jury could reject them. . . . At the very most, Brannock must so debunk the stated reasons that his evidence permits an inference that age discrimination was a motivating factor in TWA's promotion decisions, . . . or he must both call the stated reasons into doubt and produce some additional evidence suggesting that TWA acted with a discriminatory motive.Id. at *4.
The court found that a reasonable jury could reject TWA's non-discriminatory explanations for its failure to promote Mr. Brannock, in light of "the doubt that Brannock has cast upon them." Id. "If this is all that 'pretext' requires, then Brannock has established a submissible case of age discrimination." Id. However, the court believed the more prudent course of action required denial of the motion for summary judgment, leaving the jury to determine whether or not TWA's explanations were credible, and suggesting that further briefing on the scope of "pretext" would be necessary if the issue arose again on a motion for judgment as a matter of law. Id.
Assuming for purposes of this motion that Mr. Hall must do more than merely cast doubt on the reasonableness of Hormel's explanations for its decision, I find that he has not met his burden. As explained in more detail below, he has failed to offer evidence which, considered in its entirety, (1) creates a fact issue as to whether the employer's proffered reasons are pretextual and (2) creates a reasonable inference that age was a determinative factor in the adverse employment decision. Rothmeier v. Inv. Advisers, Inc., 85 F.3d 1328, 1336-37 (8th Cir. 1996). Regardless of how it is demonstrated, "[t]he focus, however, always remains on the ultimate question of law: whether the evidence is sufficient to create a genuine issue of fact as to whether the employer intentionally discriminated against the plaintiff because of the plaintiff's age." Id. at 1337.
In reaching this conclusion, I have relied on Plaintiff's Exhibit 2 (the list of Hormel's production supervisors at the Fremont plant hired from November 1996 through April 1998), and the conflicting testimony of Mr. Hall and Mr. Fritz. As a preliminary matter, I note that what was presented to the Court as Plaintiff's Exhibit 2 may not be the complete exhibit. The one-page chart attached to Plaintiff's brief contains 20 names, with the earliest job offer date November 6, 1996, and the latest job offer date April 7, 1998. Mr. Fritz, in his declaration, refers to 26 production supervisors hired for the Fremont facility from late 1996 through mid-1999. Fritz Decl. ¶ 13.
The particular relevance of Exhibit 2 lies in the fact that not one of the 20 persons on the list was age 40 or older. At the time each was offered a production management position by Hormel, their ages ranged from 21 to 39, with 11 of the hirees younger than 25. Even if the additional six individuals referred to by Mr. Fritz were older than 40 when they received job offers from Hormel, the production management roster would nonetheless be heavily weighted (77 percent) in favor of persons younger than 40. Presumably, however, these are entry-level positions and personnel are promoted to other positions as they obtain experience and seniority. While this evidence is certainly relevant to Plaintiff's claim, in and of itself it is insufficient to establish intentional discrimination on account of age.
As noted above, Mr. Hall alleges that Mr. Fritz told Ms. Isaacs that he was indeed accepting applications for production supervisors and that Mr. Hall sounded qualified. Mr. Fritz denies this, asserting instead that he told Ms. Isaacs that he had no entry-level management positions available in Fremont and that even if he did, he doubted whether Mr. Hall was suitable for one. Mr. Hall's testimony on this issue is hearsay. The most relevant evidence on this point would be testimony from Ms. Isaacs, but there is none before the Court. As a result, the only competent evidence in the record on this issue is the declaration of Mr. Fritz indicating that no position was available at the time and Mr. Hall was not qualified for one in any event.
When all of the evidence is considered, it raises no question of pretext and creates no reasonable inference that age discrimination was the reason for the employer's decision. The evidence indicates Hormel's reasons for its decision on Mr. Hall's application were in fact legitimate and non-discriminatory. Therefore, summary judgment must be granted on this cause of action.
Americans with Disabilities Act Prima facie case
The ADA provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). "The term 'qualified individual with a disability' means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). "The term 'disability' means, with respect to an individual — (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2).
To establish a prima facie case under the ADA, a plaintiff must show that (1) he is a disabled person within the meaning of the ADA; (2) he is qualified to perform the essential functions of the job either with or without reasonable accommodation; and (3) he has suffered an adverse employment action under circumstances from which an inference of unlawful discrimination arises. Belk v. Southwestern Bell Tel. Co., 194 F.3d 946, 949-50 (8th Cir. 1999);Buckles v. First Data Resources, Inc., 176 F.3d 1098, 1100 (8th Cir. 1999); Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1318 (8th Cir. 1996); Robinson v. Neodata Servs., Inc., 94 F.3d 499, 501 (8th Cir. 1996).
The first step for the Court, then, is to determine whether Plaintiff is disabled within the meaning of the ADA. If Plaintiff fails to meet the ADA's definition of a disabled individual, then the Court's inquiry need go no further. To determine whether Plaintiff has a disability, I first must determine whether Plaintiff has a physical impairment, defined as "[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine", 29 C.F.R. § 1630.2(h)(1), or a mental impairment, defined as "[a]ny mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities." 29 C.F.R. § 1630.2(h)(2).
Here, Mr. Hall alleges he is disabled due to his sleep apnea. Hall Dep. 78:21-79:13; Order on Final Pretrial Conference ¶ (B)(vi) at 2 (filing 65). Neither party seriously disputes that Plaintiff's sleep apnea is a physical impairment. The parties do, however, disagree on whether it is a disability under the ADA. The question of what constitutes a disability within the meaning of the ADA was recently taken up by the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139 (1999) andMurphy v. United Parcel Service, Inc., 527 U.S. 516, 119 S.Ct. 2133 (1999). In Sutton, the Supreme Court explained:
The ADA prohibits discrimination by covered entities . . . against qualified individuals with a disability. . . . A "qualified individual with a disability" is identified as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." § 12111(8). In turn, a "disability" is defined as:
"(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
"(B) a record of such an impairment; or
"(C) being regarded as having such an impairment." § 12102(2).
Accordingly, to fall within this definition one must have an actual disability (subsection (A)), have a record of a disability (subsection (B)), or be regarded as having one (subsection (C)).119 S.Ct. at 2144.
In his amended complaint, Mr. Hall alleged both that he has a disability and that he was perceived by Hormel as having a disability. The "perceived as" prong of the claim appears to have fallen out of the case, because the controverted issues regarding disability discrimination, as preserved in the Order on Final Pretrial Conference, are only the following:
(i) Whether Plaintiff can make out a prima facie case of disability discrimination under the America[n]s with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), by establishing that: he is a disabled person within the meaning of the ADA; he is otherwise qualified to perform the essential functions of the job, with or without accommodation; and he has suffered an otherwise adverse employment action, namely, the failure to be hired to a vacant position, as a result of discrimination.
(ii) Whether Plaintiff can make out a claim of discrimination under the ADA by proving that Hormel had the requisite knowledge that he was disabled and of his specific alleged disability.
Order on Final Pretrial Conference, ¶ (C) at 3.
As formulated, subparagraph (i) characterizes the controverted issue as one involving only the actual disability of the plaintiff. Therefore, the Court's analysis of the prima facie case need address only the "actually disabled" prong of the claim.
To establish a disability as contemplated by the ADA, the plaintiff must show that his condition "substantially limits one or more of his major life activities." The ADA itself does not define "major life activity," but the United States Supreme Court has interpreted the term to include functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. Bragdon v. Abbott, 524 U.S. 624, 638-39 (1998).
"Substantially limits" is defined as:
(i) [u]nable to perform a major life activity that the average person in the general population can perform; or
(ii) [s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.29 C.F.R. § 1630.2(j)(1).
The applicable regulations set forth three factors the Court is to consider when determining whether a plaintiff is substantially limited in a major life activity: "(i) [t]he nature and severity of the impairment; (ii) [t]he duration or expected duration of the impairment; and (iii) [t]he permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." 29 C.F.R. § 1630.2(j)(2). In this context, "duration" is the length of time an impairment persists, while "impact" refers to the residual effects of an impairment.
To the extent Mr. Hall claims his disability affects the major life activity of working, additional factors are to be considered. The Supreme Court also notes "some conceptual difficulty" in defining work as a major life activity because it results in a circular argument. Sutton, 119 S.Ct. at 2151. 29 C.F.R. § 1630.2(j)(3)(i) provides:
[With respect to 'working'], [t]he term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.
The regulations also set forth additional factors that "may" be considered in determining whether the ability to work is substantially limited: (1) the geographical area to which the plaintiff has reasonable access; (2) the job from which the plaintiff was disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the plaintiff is also disqualified because of the impairment (in other words, the class of jobs the plaintiff is precluded from performing); and/or (3) the job from which the plaintiff was disqualified because of the impairment, and the number and types of other jobs not utilizing similar training, knowledge, etc., within that geographical area, from which the plaintiff is also disqualified because of the impairment (in other words, the broad range of jobs in various classes which the plaintiff is precluded from performing). 29 C.F.R. § 1630.2(j)(3)(ii).
To demonstrate that he was substantially limited in the major life activity of working, the plaintiff must show that his condition significantly restricted his ability to perform a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable skills and training. Perkins v. St. Louis County Water Co., 160 F.3d 446, 448 (8th Cir. 1998) (citing 29 C.F.R. § 1630.2(j)(3)(i) and Olson v. Dubuque Community Sch. Dist., 137 F.3d 609, 611-12 (8th Cir. 1998)).
The Murphy and Sutton cases demonstrate that an ADA plaintiff must do more than allege he or she has a disability which inhibits his or her ability to work at a particular job.
To be substantially limited in the major life activity of working, then, one must be precluded from more than one type of job, a specialized job, or a particular job of choice. If jobs utilizing an individual's skills (but perhaps not his or her unique talents) are available, one is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs.Sutton, 119 S.Ct. at 2151.
The Court must consider the intent of the ADA when evaluating a person's ability to work.
In Webb v. Garelick Manufacturing Co., 94 F.3d 484, 488 (8th Cir. 1996), this court stated, "the ADA is concerned with preventing substantial personal hardship in the form of significant reduction in a person's real work opportunities. A court must ask 'whether the particular impairment constitutes for the particular person a significant barrier to employment,'" and the person's expertise, background, and job expectations are relevant in defining the class of jobs used to determine whether the person is disabled. Id. at 488 (citations omitted). Finding that an individual is substantially limited in his or her ability to work requires a showing that his or her overall employment opportunities are limited. Miller v. City of Springfield, 146 F.3d 612, 614 (8th Cir. 1998).Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 949 (8th Cir. 1999).
In this case, Mr. Hall alleges that his pulmonary disability affects his ability to breathe while sleeping, which in turn affects his ability to work night shifts because his sleep pattern is disrupted. Hall Dep. 73:2-8. Mr. Hall testified in his deposition that he uses a nasal CPAP (Constant Positive Air Pressure) machine to assist his breathing while he sleeps. He has used it since 1987, Id. 74:1, and uses it about ninety to ninety-five percent of the time when he sleeps. Id. 78:14-16. If he does not use it, the sleep apnea causes his oxygen levels to drop because he is not breathing normally, which results in him waking up repeatedly during the night gasping for air. Id. 76:6-18. In those instances, he awakes without realizing it, but his body shows signs of being deprived of rest. Id. 77:7-10. Sleeping with the assistance of the CPAP machine generally stabilizes his oxygen level and keeps him from waking up so often.Id. 77:21-23.
Other than his testimony about having difficulty working late hours, Mr. Hall does not indicate that his disability prevents him from undertaking the daily activities of life or precludes him from working at any particular job or type of job. Nor does he provide any medical evidence in support of his disability claim. When a disability impacts the plaintiff's life only slightly, it is not substantially limiting. Land v. Baptist Med. Ctr., 164 F.3d 423, 425 (8th Cir. 1999) (child's allergy to peanuts and their derivatives does not restrict her physical ability to eat or preclude her from eating other types of foods).
The Land court also noted that the child's ability to breathe was generally unrestricted except for the limitations experienced during her allergic reactions. Id. (citing Zirpel v. Toshiba Am. Info. Sys., Inc., 111 F.3d 80, 81 (8th Cir. 1997) (although speaking and breathing were hampered during actual panic attack, disorder did not substantially limit plaintiff's major life activities where attacks were infrequent and very manageable);Robinson v. Global Marine Drilling Co., 101 F.3d 35, 37 (5th Cir. 1996), cert. denied, 520 U.S. 1228 (1997) (several instances of asbestosis-related shortness of breath did not substantially limit major life activity of breathing.)) See also Muller v. Costello, 187 F.3d 298, 314 (2d Cir. 1999) ("Simply put, there is not enough evidence of off-the-job breathing problems to find a substantial limitation of that life activity.") (cited in Leonard v. Rolette County, No. 99-2130, 1999 WL 1028535 (8th Cir. Nov. 12, 1999));Minnix v. City of Chillicothe, No. 98-4285, 2000 WL 191828 (6th Cir. Feb. 10, 2000) (record devoid of any medical evidence indicating plaintiff's breathing difficulties to be severe, long-term, or permanent, while other evidence indicated that plaintiff could engage in many activities, including work under certain conditions).
Because Mr. Hall has not demonstrated that he has an impairment which substantially limits any of his major life activities, he therefore cannot be a "qualified individual with a disability" under the terms of the ADA. As he is unable to establish this first element of a prima facie case, I need not address the remaining elements.
Applicability
Under the circumstances of the present case, it is clear that Mr. Hall has failed to establish that a genuine factual issue exists with regard to his alleged disability, in that he has not demonstrated that he is substantially limited in any major life activity or that his impairment creates a significant barrier to employment, and he therefore is not disabled for purposes of the ADA. Even if the Court assumes for purposes of this motion that Mr. Hall's sleep apnea limits somewhat the activities he can undertake, such as working late shifts, that impairment does not rise to the level of a disability. See Weber v. Strippit, Inc., 186 F.3d 907, 914 (8th Cir. 1999) (Moderate limitations on major life activities do not constitute ADA disability), cert. denied, ___ U.S. ___, 120 S.Ct. 794 (2000).
Plaintiff also believes the "regarded as" prong of the ADA test applies. An individual is "regarded as having" an impairment that substantially limits his major life activities when other people treat him as having a substantially limiting impairment. 29 C.F.R. § 1630.2( l); Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir. 1995). "The focus is on the impairment's effect upon the attitudes of others." Wooten at 385. A defendant cannot be liable for discharging an employee unless it regarded the plaintiff as having a disability. Roberts v. Unidynamics Corp., 126 F.3d 1088, 1092 (8th Cir. 1997), cert. denied, 523 U.S. 1106 (1998). The plaintiff therefore must show not only that the employer perceived him as impaired, but also that the perceived impairment substantially limited a major life activity. Marschand v. Norfolk W. Ry. Co., 876 F. Supp. 1528, 1540 (N.D.Ind. 1995), aff'd, 81 F.3d 714 (7th Cir. 1996). An employer does not regard an employee as disabled simply by finding the employee incapable of satisfying the singular demands of a particular job. Mastio v. Wausau Serv. Corp., 948 F. Supp. 1396, 1415 (E.D.Mo. 1996). A plaintiff must demonstrate that he or she is regarded as precluded from a broad class of jobs. Shipley v. City of University City, 195 F.3d 1020, 1023 (8th Cir. 1999) (citing Sutton and Murphy). The proper test is whether the impairment, as perceived, would affect the individual's ability to find work across the spectrum of same or similar jobs. Marschand, 876 F. Supp. at 1541.
Therefore, for the plaintiff to prevail on a perceived disability claim, he must show (1) that the defendant treated him as having an impairment which substantially limited one or more of his major life activities and (2) that either (a) while he had a physical or mental impairment, it was not substantially limiting, or (b) that he did not suffer at all from a statutorily prescribed physical or mental impairment. Mastio, 948 F. Supp. at 1415 (citing Cook v. Rhode Island Dept. of Mental Health, Retardation, Hospitals, 10 F.3d 17, 23 (1st Cir. 1993) and 29 C.F.R. App. to Part 1630). Thus, "'if an individual can show that an employer . . . made an employment decision because of a perception of disability based on "myth, fear or stereotype," the individual will satisfy the "regarded as" part of the definition of disability.'" Mastio at 1415 (quoting Cook, supra, at 23).
The evidence in the present case establishes no such basis for Hormel's decision. Mr. Hall has provided no evidence that Hormel was told of his pulmonary problems when his résumé was submitted, and in fact, Mr. Fritz denies having been made aware of any disability. Fritz Decl. ¶ 11. At most, Mr. Hall alleges that because his résumé was sent to Hormel by a vocational rehabilitation counselor, Hormel was put on notice that he was disabled. Without more, this allegation cannot support a "regarded as" claim, and the motion for summary judgment shall be granted.
CONCLUSION
Hormel's motion to dismiss the state law claims will be denied. Hormel's motion for summary judgment on the disability discrimination causes of action will be granted because Plaintiff was unable to establish a prima facie case. Hormel's motion for summary judgment on the age discrimination causes of action will be granted because Plaintiff was unable to demonstrate that Hormel's decision not to hire him was discriminatory.
IT IS ORDERED:
Defendant's motion to dismiss (filing 34) is denied;
Defendant's motion for summary judgment (filing 34) is granted in its entirety; and
Separate judgment will be entered.