Opinion
CIVIL ACTION No. 98-1408-MLB
September 20, 2000
MEMORANDUM AND ORDER
I. Introduction
Plaintiff Marion Mandeville has brought suit against his former employer, Quinstar Corporation (Quinstar), and its sole shareholder, Ronald Filbrun (hereinafter referred to as defendant or defendants). Plaintiff alleges he was discriminated against because he lacked similar religious convictions held by Filbrun and that he was unlawfully retaliated against for questioning whether policies applicable to employees other than himself were discriminatory. In addition, plaintiff alleges defendants' failure to comply with a Salary Continuation Agreement (agreement) violated ERISA or, in the alternative, breached a contractual agreement entered into by the parties.
The case is presently before the court on defendants' motion for summary judgment. Doc. 33. Filbrun seeks summary judgment as to all claims against him, arguing he incurs no personal liability through his capacity as sole shareholder. Quinstar seeks summary judgment because plaintiff was neither discriminated nor retaliated against and that the agreement between the parties is not covered by ERISA. Quinstar does not seek dismissal of Mandeville's breach of contract claim.
A. Facts
All facts set forth are either uncontroverted, or, if controverted, taken in the light most favorable, along with all favorable inferences, to the non-moving party. See Hall v. United Parcel Serv., No. Civ. A. 992467-CM, 2000 WL 1114841, at *5 (D.Kan. July 31, 2000) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
Quinstar is a Kansas corporation with its principal place of business in Quinter, Kansas. Quinstar is primarily engaged in the business of manufacturing and designing various tillage tools and mowers. Filbrun is the chairman and sole shareholder of Quinstar. On June 1, 1992, Quinstar hired plaintiff to serve as its President/General Manager/CEO. Plaintiff served in this or a similar capacity until his termination in February, 1997. Doc. 34, pp. 2 and 4; Doc. 40, p. 12.
Prior to plaintiff's arrival, Quinstar had been owned and operated by Jim Boone, Filbrun's brother-in-law. During Boone's tenure and continuing through the eventual sale to Filbrun, Quinstar had been experiencing financial difficulties, including one bankruptcy. It was after this sale that plaintiff was hired. In order to rectify the problems, Filbrun, in a letter dated May 27, 1992, notified plaintiff of specific goals and priorities he wished plaintiff to achieve. The directives included maximizing the capabilities of Boone, who continued to be an employee of Quinstar as a production manager, bringing new products to market in a timely manner, and controlling the costs of sales for the turf and agriculture divisions of Quinstar. In short, Filbrun sought to make Quinstar profitable. Doc. 34, ¶ 4.
Filbrun did not want to achieve profit at any price. He, along with Boone, held firm beliefs that their business could uphold high moral standards and still be profitable. To this end, Filbrun relied upon his religious beliefs. Filbrun and Boone are followers of the Old German Baptist Brethren. Plaintiff, however, is not. Some of the Old German Baptist beliefs evidently require women to wear either long skirts or dresses and preclude the use of radios or televisions. According to these beliefs and taking the evidence in the light most favorable to plaintiff, Quinstar required female employees to wear only dresses or skirts. Professionally-appropriate pants were not permitted. Additionally, Quinstar did not allow radios to be used in company vehicles. Based upon the evidence before the court there is little dispute that plaintiff did not agree with applying these religious principles in the business setting. Doc. 34, ¶¶ 8 and 9; Doc. 40, ¶¶ 22-24.
It appears that plaintiff's performance for Quinstar was more than satisfactory. The company became profitable and plaintiff was awarded several bonuses based upon the company's performance. On June 14, 1994, plaintiff and Quinstar executed the agreement, which provided a sum-certain amount of money to plaintiff in the event he retired, was terminated, or suffered death or disability. Doc. 40, Exhibit 12. The agreement was "an inducement to [plaintiff] to remain in [Quinstar's] employ." Doc. 41, Exhibit 12, p. 1.
In mid-1994, Filbrun arranged for and agreed to sell Quinstar to William Stoecker. Upon the sale to Stoecker the female dress code and no radio policies were terminated. By 1995, the sale was rescinded and Quinstar successfully sued Stoecker for "various unlawful activities, including RICO violations." Despite this successful suit, Stoecker took approximately $300,000 from Quinstar, and the funds were never recovered. Doc. 40, ¶¶ 20, 22 and 24.
At some point after the Stoecker matter was resolved, plaintiff brought up the issue of the dress policy with Filbrun. Plaintiff suggested that Quinstar might want to rethink its adherence to this rule as it might be contrary to both federal and state law. This suggestion was not well-received. On another instance plaintiff questioned Filbrun with regard to the prohibition of car radios in company vehicles. Plaintiff was concerned that this could deprive his employees of life-saving severe storm information and a means with which to stay awake while driving on long road trips. To that end, plaintiff suggested using a system where the radios could only be operated on those occasions. Filbrun did not agree with this suggestion and thought that plaintiff disregarded his instruction regarding radios. It further appears that Filbrun was not alone in his concern with the use of radios in Quinstar vehicles. Apparently an elder from Filbrun's church instructed Filbrun to ensure compliance with the German Baptist Brethren beliefs. Doc. 40, ¶¶ 22 and 24.
In short, plaintiff's Title VII claims are the result of this power struggle. To the extent further facts become relevant to the court's analysis, they will be supplied as necessary
B. Summary Judgment Standards
The usual and primary purpose "of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Federal Rule of Civil Procedure 56(c) directs the entry of summary judgment in favor of a party who "show[s] 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." An issue is "genuine" if sufficient evidence exists on each side "so that a rational trier of fact could resolve the issue either way" and "[a]n issue is `material' if under the substantive law it is essential to the proper disposition of the claim." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citations omitted).
A defendant initially must show both an absence of a genuine issue of material fact, as well as entitlement to judgment as a matter of law.Id. at 670. The nature of the showing depends upon whether the movant bears the burden of proof at trial with the particular claim or defense at issue in the motion. Because a plaintiff bears the burden of proof, a defendant need not "support [its] motion with affidavits or other similar materials negating the opponent's" claims or defenses. Celotex, 477 U.S. at 323 (emphasis in original). Rather, a defendant can satisfy its obligation simply by pointing out the absence of evidence on an essential element of the plaintiff's claim. Adler, 144 F.3d at 671 (citingCelotex, 477 U.S. at 325).
If a defendant properly supports its motion, the burden then shifts to the plaintiff, "who may not rest upon the mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Muck v. United States, 3 F.3d 1378, 1380 (10th Cir. 1993). In setting forward these specific facts, the plaintiff must identify the facts "by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Adler, 144 F.3d at 671. If the evidence offered in opposition to summary judgment is merely colorable or is not significantly probative, summary judgment may be granted. Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 533 (10th Cir. 1994). A party opposing summary judgment "cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 793 (10th Cir. 1988). Put simply, a plaintiff must "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87(1986).
Certain local rules govern the presentation of facts and evidence. Local Rule 56.1 requires the movant to set forth a concise statement of material facts. D. Kan. Rule 56.1 (1998). Each fact must appear in a separately numbered paragraph and each paragraph must refer with particularity to the portion of the record upon which the defendants rely. Id. The opposing memorandum must contain a similar statement of facts. The plaintiff must number each fact in dispute, refer with particularity to those portions of the record upon which he relies and, if applicable, state the number of the defendant's fact that he disputes. The court may, but is not obligated to, search for and consider evidence in the record that would rebut the defendant's evidence, but that the plaintiff has failed to cite. Adler, 144 F.3d at 672. "All material facts set forth in the statement of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party." Id. (emphasis added); Gullickson v. Southwest Airlines Pilots' Ass'n, 87 F.3d 1176, 1183 (10th Cir. 1996) (applying local rules of District of Utah). A standing order of this court also precludes drawing inferences or making arguments within the statement of facts.
The parties need not present evidence in a form that would be admissible at trial, but the content or substance of the evidence must be admissible. Thomas v. Int'l Bus. Machines, 48 F.3d 478, 485 (10th Cir. 1995) (internal quotations and citations omitted). For example, hearsay testimony that would be inadmissible at trial may not be included. Similarly, the court will disregard conclusory statements and statements not based on personal knowledge. Cole v. Ruidoso Mun. Schs., 43 F.3d 1373, 1382 (10th Cir. 1994) (regarding conclusory statements); Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1541 (10th Cir. 1995) (requiring personal knowledge). Finally, the court may disregard facts supported only by references to documents unless the parties have stipulated to the admissibility of the documents or the documents have been authenticated by and attached to an affidavit meeting the requirements of Rule 56(e). Fed.R.Civ.P. 56(e); D. Kan. Rule 56.1; 10A Charles Alan Wright, et al., Federal Practice and Procedure § 2722 (2d ed. 1983) (footnotes omitted).
In the end, when confronted with a fully briefed motion for summary judgment, the court must determine "whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). If sufficient evidence exists on which a trier of fact could reasonably find for the plaintiff, summary judgment is inappropriate. Prenalta Corp. v. Colorado Interstate Gas Co., 944 F.2d 677, 684 (10th Cir. 1991).
II. Analysis A. Personal Liability of Filbrun
Plaintiff states he "has asserted claims against Ron Filbrun personally for breach of contract." Doc. 40, p. 14. Filbrun is liable, according to plaintiff, because he is truly the "alter ego" of Quinstar. Defendants, in their original motion for summary judgment and again in their reply, point out that plaintiff has failed to include within the complaint a claim to pierce the corporate veil and impose personal liability upon Filbrun for the obligations of the agreement. Doc. 34, pp. 8-10; Doc. 46, p. 5.
Plaintiff's failure to argue Filbrun is liable on the Title VII claims is construed by this court as an admission that no Title VII claims against Filbrun exists. Haynes v. Williams, 88 F.3d 898, 901 (10th Cir. 1996) (stating that Title VII liability is "appropriately borne by employers, not individual supervisors"). Accordingly, Filbrun's personal liability, if any, will be limited to plaintiff's breach of contract claim.
Whether the complaint actually contained this allegation is immaterial to the motion before the court, as the pretrial order now controls over the complaint. Fed.R.Civ.P. 16(e). Upon a careful review of the pretrial order, the court has no trouble agreeing with defendants' position. Nowhere in the pretrial order is there any allegation that Filbrun was the alter ego of Quinstar or that Filbrun had incorporated in order to commit a fraud or injustice. Additionally, the court does not find evidence of manifest injustice that would excuse failure to include this claim within the pretrial order.
Federal Rule of Civil Procedure 16(e) states that:
[a]fter any conference held pursuant to this rule, an order shall be entered reciting the action taken. This order shall control the subsequent course of the action unless modified by a subsequent order. The order following a final pretrial conference shall be modified only to prevent manifest injustice.
As the Tenth Circuit has clearly stated, "[a]n order entered pursuant to Rule 16(e) supersedes the pleadings and controls the subsequent course of litigation." E.g., Tyler v. City of Manhattan, 118 F.3d 1400, 1403 (10th Cir. 1997) (citing Hullman v. Board of Trustees, 950 F.2d 665, 668 (10th Cir. 1991)). The purpose of the pretrial conference order "is to narrow the issues and streamline litigation." Barvick v. Cisneros, 953 F. Supp. 341, 344 (D.Kan. 1997). In other words, "[t]he pretrial order is a procedural tool designed to insure the economical and efficient trial of every case on its merits without chance or surprise." Id. (quoting Hull v. Chevron U.S.A., Inc., 812 F.2d 584, 588 (10th Cir. 1987)) (internal quotations omitted). To get to this purpose, "counsel define the issues of fact and law to be decided at trial," in a process that results in the pretrial order. Id. (quoting Madrigal v. IBP, Inc., 21 F.3d 1121, 1994 WL 144282, at *1 (10th Cir. Apr. 22, 1994)) (internal quotations omitted). The parties then are bound to those definitions and the content of the order and may not contradict its terms. Id. (citing Perry v. Winspur, 782 F.2d 893, 894 (10th Cir. 1986)).
Whether or not a trial court excludes matters not included in the pretrial order rests within the discretion of the court. Id. (citing Hullman, 950 F.2d at 668). If an issue has not been included in a pretrial order, a party faces a stiff burden to get the issue considered: As stated in the express language of Rule 16(e), "[t]he order entered following a pretrial conference shall be modified only to prevent manifest injustice." Id. (quoting United States v. Pottorf, 881 F. Supp. 482, 485 (D.Kan. 1995) (quoting Moss v. Feldmeyer, 979 F.2d 1454 (10th Cir. 1992)) (internal quotations omitted). A court properly excludes "any issue not contained in the pretrial order, whether it be a defense or a theory of recovery advanced by [plaintiff], absent the requisite showing." Id. (quoting id.).
The pretrial order refers to Filbrun and Quinstar in a collective manner, asserts Filbrun is the sole shareholder of Quinstar, and, as such, signed the agreement on behalf of Quinstar. This alone does not sufficiently place Filbrun's individual liability, as sole shareholder, into issue. The Kansas Court of Appeals, in Kvassay v. Murray, stated that alter ego liability "arises from fraud or injustice perpetrated not on the corporation but on third persons dealing with the corporation." 15 Kan. App.2d 426, 808 P.2d 896, 904 (Kan.Ct.App. 1991) (quoting Sampson v. Hunt, 233 Kan. 572, 665 P.2d 743, 751 (Kan. 1983)). Not only has plaintiff failed to allege Filbrun is perpetuating fraud and injustice, even a liberal reading of the pretrial order fails to set forth a claim supporting an inference of fraud or injustice.
Accordingly, Filbrun's motion for summary judgment as to his personal liability is granted.
B. Title VII Claims 1. Reverse Discrimination
Title VII provides that an employer commits an unlawful employment practice if it discharges any individual based upon that individual's religion. 42 U.S.C. § 2000e-2(a)(1). This provision prevents employers not only from precluding meaningful religious devotion but also from imposing a religious practice upon its employees. Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1486 (10th Cir. 1989), cert. denied, 495 U.S. 948 (1990) (discussing an employer's ability to control whether its employee used peyote for religious purposes); Shapolia v. Los Alamos Nat'l Lab., 992 F.2d 1033, 1036 (10th Cir. 1993) (recognizing Title VII protects against requirements of religious conformity).
The parties have stipulated that Quinstar is an "employer" as defined by Title VII. Doc. 47, p. 2.
While clear Title VII reaches reverse discrimination claims, it has been less clear what method and degree of proof is sufficient to sufficiently state a claim. In Shapolia, the Tenth Circuit held that a prima facie case for reverse discrimination is made when the plaintiff shows (1) that he was subjected to some adverse employment action; (2) that, at the time the employment action was taken, the employee's job performance was satisfactory; and (3) some additional evidence to support the inference that the employment action was taken because of a discriminatory motive based upon the employee's failure to follow or hold his employer's religious beliefs. 992 F.2d at 1038. The requisite level of proof is light, but required nonetheless.
Should the plaintiff establish the prima facie case, he then will be able to utilize the presumptions and burden-shifting scheme as first set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).Shapolia, 992 F.2d at 1038. Assuming the plaintiff is able to establish a prima facie case, the defendant must then set forth a legitimate, non-discriminatory reason for the action. After this showing, the presumption disappears and the burden returns to the plaintiff to come forward with evidence indicating the defendant's proffered reasons were a pretext for unlawful religious discrimination. Id. at 1039.
a. Prima Facie Case
Analyzing plaintiff's claim of religious discrimination, it is readily apparent that he has met the first prong of the Shapolia test. In February of 1997, plaintiff was terminated by Quinstar. Doc. 40, ¶ 6. Without question, termination from employment constitutes an "adverse employment action." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998) (stating conduct is an adverse employment action if it constitutes a significant change in employment status such as firing); Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir. 1999) ("We conclude that Plaintiff suffered adverse employment action when Defendant terminated her.").
The second prong of Shapolia requires proof that plaintiff, at the time he was terminated, was performing his job in a satisfactory manner. 992 F.2d at 1038. While the parties are in considerable dispute regarding this factor, plaintiff contends that at the time he was terminated his job performance was, at a minimum, satisfactory. Plaintiff points to evidence that Filbrun was pleased with his work, he had regularly received substantial bonuses, and the company was becoming profitable. Doc. 40, ¶¶ 18, 19, 26. This prong is supported by the evidence and is sufficient to meet plaintiff's burden.
The third, and perhaps most important, prong of Shapolia requires evidence to support the inference that "the employment actions were taken because of a discriminatory motive based upon the employee's failure to hold or follow his or her employer's religious beliefs." Shapolia, 992 F.2d at 1038. This evidence should create the impression that, but for plaintiff's failure to share the religious beliefs and values of Filbrun, plaintiff would not have been terminated. Id. (analogizing this type of claim to claims alleging an adverse employment action was taken because of sex or race).
In order to meet this prong of Shapolia plaintiff points to the episodes involving Filbrun's dress code and disdain for car radios. Doc. 40, p. 18. Upon bringing up his concern that imposing this belief system upon those who did not follow Filbrun's religion, plaintiff claims to have been unjustly criticized and terminated. Defendant responds that plaintiff's evidence is insufficient to establish the necessary inference of discrimination. Doc. 46, p. 3-4. The evidence is thin but in the interest of caution, the court finds plaintiff's allegation of satisfactory performance closely followed by termination after questioning the dress code and no radio policy is sufficient to show some additional evidence supporting an inference the termination was the result of unlawful religious discrimination.
Plaintiff should bear in mind that mere allegations are insufficient for summary judgment purposes. Fed.R.Civ.P 56(e). All allegations of fact must be supported by the evidence and cited according. Id.; Gullickson v. Southwest Airlines Pilots' Ass'n, 87 F.3d 1176, 1183 (10th Cir. 1996) This error is not, however, fatal as some support for these statements may be found in Plaintiff's Additional Statement of Uncontroverted Facts. Doc. 40, ¶¶ 22-25.
b. Legitimate, Non-discriminatory Motive
Having met his prima facie burden, plaintiff has shifted the burden to defendant to advance a legitimate, non-discriminatory motive for its actions. Shapolia, 992 F.2d at 1039. In support of its position, defendant points out that plaintiff engaged in an oppressive style of management, conducted an excessive amount of lengthy meetings, and mishandled certain product lines. Doc. 34, p. 5, 13-14. This evidence sufficiently discharges defendant's obligation. See Kendrick v. Penske Transp. Servs., Inc., No. 99-3160, 2000 WL 1114262, at *8 (10th Cir. Aug. 8, 2000) (finding reliance upon gross insubordination satisfies defendant's burden); Munoz v. St. Mary-Corwin Hosp., Nos. 99-1377 and 99-1391, 2000 WL 1113902, at *5 (10th Cir. Aug. 7, 2000) (returning the burden to plaintiff upon an allegation that plaintiff's conduct indicated poor judgment). As such, the burden again shifts to plaintiff to show that defendant's proffered reasons were a pretext for illegal religious discrimination. c. Inference of Pretext
A plaintiff can withstand defendant's summary judgment motion by presenting evidence sufficient to raise a genuine dispute of material fact as to whether the defendant's articulated reasons for the termination are pretextual. EEOC v. Horizon/CMS Healthcare Corp., No. 98-2328, 2000 WL 1051839, at *9 (10th Cir. July 31, 2000). "Pretext" is generally defined as being unworthy of belief. Kendrick, 2000 WL 1114262, at *8. For example, a plaintiff may establish pretext by showing that the defendant's stated reasons for the adverse employment action were false. Establishing pretext is not, however, limited to showing falsity.Patterson v. McLean Credit Union, 491 U.S. 164, 187 (1989) (stating a plaintiff may not be forced to pursue any particular means of demonstrating pretext). Rather, a plaintiff can also establish pretext by revealing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons that a reasonable fact finder could rationally find them unworthy of belief. Horizon/CMS Healthcare Corp., 2000 WL 1051839, at *10.
As noted, defendant claims plaintiff was terminated because "Filbrun became increasingly dissatisfied with Mandeville'[sic] job performance." Doc. 34, p. 5 (citing Filbrun's deposition). This dissatisfaction stemmed from "reports from key employees that Mandeville engaged in an oppressive style of management and the fact that Mandeville seemed to ignore express orders with respect to certain product lines." Id.
Plaintiff counters defendant's reasons in two ways. First, plaintiff points to evidence that Filbrun's dissatisfaction at deficient performance is contradicted by the record. Specifically, plaintiff alleges that Filbrun, upon hiring him, "instructed plaintiff that restoring [Quinstar] to profitability was a priority." Prior to his arrival at Quinstar the company had been suffering from financial difficulty and had even sought bankruptcy protection. In addition, due to alleged mismanagement by Filbrun during a proposed sale to Stoecker in 1994, Quinstar suffered substantial losses. Despite this financial hardship, however, plaintiff has set forth evidence that Quinstar had the most profitable month in company history less than two months before his termination. Doc. 40, ¶ 26. As further evidence of falsity, plaintiff points to the substantial bonuses paid to him by Quinstar for his job performance. From 1992 through 1994, plaintiff received $33,000 in incentive-plan bonuses. Doc 40, ¶ 19. While plaintiff did not receive a bonus after the failed sale and resulting losses, "that was due to the company's financial hardship," allegedly caused by the loss of $300,000 during the attempted sale, "and not an indication of any dissatisfaction with plaintiff's performance." Id. at ¶ 20.
Filbrun does not dispute the amount, only the month that $900,000 in sales occurred. Doc. 46, at ¶ 26. Because of the procedural position of the case, the court assumes the validity of plaintiff's assertions of fact.
In conjunction with these factual contradictions, plaintiff further points to the suspicious nature in which Filbrun's dissatisfaction has been expressed. During the majority of the period in which plaintiff was employed, Filbrun required female employees to wear long skirts or dresses. After learning that this rule originated in part from Filbrun's German Baptist Brethren faith, plaintiff informed Filbrun that this requirement may "be a violation of state or federal law." In addition, plaintiff states that Filbrun's religious beliefs prevented followers from using either radios or televisions. Because of these beliefs, Filbrun did not allow Quinstar company vehicles to have radios. This belief was so strong that Filbrun even promised an elder in his church that he would have any radios reportedly in Quinstar vehicles removed. When Filbrun confronted plaintiff with this allegation, plaintiff sought less restrictive policies and proposed that the safety of Quinstar employees, during storms and late-night trips, should overcome Filbrun's religion-driven policy. Filbrun thought that plaintiff disregarded his instruction regarding the radios.
The court's duty at this point is to determine whether plaintiff's allegations, supported by affidavits, depositions, and other factual evidence create a genuine issue of material fact as to whether defendant's proffered reasons for plaintiff's termination are mere pretext. Based on the foregoing evidence, the court finds that a reasonable jury could conclude defendant intentionally discriminated against plaintiff due to his failure to hold and practice the religion of Filbrun.
2. Retaliation
Plaintiff next alleges Quinstar discriminated against him in violation of Title VII's retaliation provision. Under Title VII it is an unlawful employment practice for "an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." 42 U.S.C. § 2000e-3(a). This protects two types of activity: participation and opposition. Here, plaintiff alleges Quinstar terminated his employment because he "opposed" the potentially discriminatory nature of Filbrun's dresses-only policy for female employees of Quinstar.
A Title VII plaintiff alleging retaliatory discharge must make a prima facie case by showing that (1) he engaged in protected opposition to discrimination or participated in a proceeding arising out of discrimination, (2) adverse action was taken by the employer subsequent to the protected activity, and (3) a causal connection exists between the protected activity and the adverse employment action. See Pastran v. K-Mart Corp., 210 F.3d 1201, 1205 (10th Cir. 2000); Robbins v. Jefferson County Sch. Dist. R-1, 186 F.3d 1253, 1258 (10th Cir. 1999). If the plaintiff establishes a prima facie case, the defendant must offer a legitimate, nondiscriminatory rationale for the adverse employment action. Robbins, 186 F.3d at 1259. Should the defendant meet this burden, the plaintiff then bears the ultimate burden of demonstrating the defendant's proffered reasons are pretextual. Pastran, 201 F.3d at 1206.
a. Prima Facie Case
In support of his prima facie case, plaintiff has set forth essentially undisputed facts which the court finds sufficient to discharge his burden. First, plaintiff alleges he was terminated by Quinstar, which is sufficient to satisfy the first prong. Turning to the second prong, plaintiff alleges that he told Filbrun that he [plaintiff] believed the `dresses only' rule for female employees might violate state or federal law. Doc. 40, p. 21. This action is "protected opposition" because Title VII protects those who informally voice complaints to their superiors regarding potential discrimination. Robbins, 186 F.3d at 1258. As to the third prong, plaintiff alleges that shortly after informing Filbrun the dresses-only policy may violate state or federal law, Filbrun made the decision to terminate plaintiff. Doc. 40, p. 21-22. This allegation, while lacking date specificity, sufficiently establishes a causal connection between the protected activity and the adverse action. See Pastran, 210 F.3d at 1205 (affirming the District Court's finding of a causal connection based upon allegation "that he was terminated shortly thereafter").
b. Legitimate, Nondiscriminatory Reason
Defendant must now come forward with a legitimate, nondiscriminatory reason for the termination of plaintiff. Defendant relies again upon the plaintiff's oppressive style of management, use of an excessive amount of lengthy meetings, and mishandling of certain product lines. See Doc. 34, p. 5, 13-14. The court concludes this sufficiently discharges defendant's burden.
c. Implication of Pretext
Plaintiff now bears the burden of demonstrating that a reasonable jury could conclude that defendant's proffered reasons for terminating him were pretext. The pertinent question in determining pretext is not whether the employer was right to terminate plaintiff for the stated reasons but whether those reasons are in fact genuine or pretextual.Pastran, 210 F.3d at 1206. One factor in the pretext analysis is the close temporal proximity between the protected activity and the adverse consequence of that activity. As noted above, plaintiff alleges without contradiction that his termination occurred "shortly thereafter," in reference to the statement regarding the potential for violations of federal and state law. The closer in time the protected activity is to an adverse employment action, the inference of animus, and thus pretext, becomes stronger. Here, plaintiff has failed to pin down a concrete date upon which the protected activity occurred. Therefore, the weight given this general allegation is minimized and the court must look to other evidence for indicia of pretext.
Fortunately for plaintiff, other evidence does exist. In plaintiff's brief, he notes that Filbrun's proffered reasons for terminating plaintiff have "evolved" throughout this litigation. Doc. 40, p. 22. For example, Filbrun, in his letter of dismissal dated February 19, 1997, explained his reasons for terminating plaintiff were because he was dissatisfied with the time it took plaintiff to design a piece of tillage equipment, plaintiff's failure to abandon production of a product line, and that the price on selling a product exceeded original estimates. Doc. 40, ¶ 36. Subsequently, however, Filbrun's story has changed. In Filbrun's deposition he testified that "fifty percent of his justification for terminating plaintiff was that he had received complaints" from co-workers and the "other fifty percent of the justification was that he was not satisfied with plaintiff's `particular style of management' and the `way things were progressing or not progressing.'" Doc. 40, ¶ 27. Plaintiff's "particular style of management" was especially troubling to Filbrun because he felt plaintiff had too many meetings that took too much time. Filbrun, however, is unaware of how many meetings were conducted or how often various groups met. Id. at ¶ 29. The frequency and duration of plaintiff's meetings were not called into question in Filbrun's original letter. While not conclusive as to the issue of pretext, the court is satisfied that these inconsistencies may lead a reasonable jury to conclude that Filbrun's ever-changing rationale may be but a disguise for unlawful animus.
Moreover, the court is keenly aware of suspicious statements made by Filbrun in a letter from Filbrun to plaintiff. Doc. 41, Exhibit 8. In this letter, Filbrun set forth "a couple of issues" he wanted to bring to the attention of plaintiff. One issue reminded plaintiff of the importance the German Baptist Brethren values to Filbrun and his family, apparently Boone, and how Quinstar should be managed accordingly. Filbrun admonished plaintiff that those principles and values "are very important to us," and that Quinstar was "founded on these principles." In addition to reminding plaintiff of these values, Filbrun described, at least twice, a desire to return Quinstar to a "`happy family' work place environment again." In summary, the evidence has shown Filbrun and his family have firmly held religious beliefs, a desire to maintain the "family business," and Filbrun's dissatisfaction with plaintiff's failure to ascribe to or at least implement these beliefs.
The court is satisfied some evidence of retaliation may exist. Based upon the temporal proximity between the protected activity and termination, Filbrun's variable reasons for the termination, and the desire to run a "family" business, the court concludes a jury may find defendant's proffered reasons were mere pretext.
C. ERISA
Plaintiff further alleges that he is entitled to recovery based upon the Employee Retirement Income Security Act of 1974 (ERISA) 29 U.S.C. § 1001 et. seq. Specifically, plaintiff claims that Quinstar, in contravention of 29 U.S.C. § 1132, wrongfully denied plaintiff benefits agreed to in the parties agreement. Defendant responds that the agreement is not governed by ERISA and therefore the ERISA claim should be dismissed.
Plaintiff has alternatively pled a breach of contract claim. Defendants concede this claim will survive should their motion for summary judgment as to the ERISA claim succeed. Should the court deny defendants' motion in this regard, however, the breach of contract claim is preempted by ERISA. 29 U.S.C. § 1144.
The agreement, drafted by plaintiff, required Quinstar to continue compensating plaintiff in the event of retirement, termination for any reason, death, or disability. See Doc. 41, Exhibit 12. The amount of compensation, dates of disbursement, and manner in which the agreement was to be triggered are clearly defined in the three-page agreement. There is no reference to outside administrative steps nor any funds from which the money is to be obtained.
Determining whether the agreement is governed by ERISA is "a mixed question of fact and law." Herring v. Oak Park Bank, 963 F. Supp. 1558, 1563 (D.Kan. 1997). Due to the procedural status of this case, however, the court is required to construe all facts in favor of plaintiff. As such, the conclusion necessarily becomes "primarily a legal question."Peckham v. Gem State Mut., 964 F.2d 1043, 1047 n. 5 (10th Cir. 1992).
ERISA governs "employee benefit plans." 29 U.S.C. § 1003(a);Peckham v. Gem State Mut., 964 F.2d 1043, 1047 (10th Cir. 1992). The definition of employee benefit plans includes both "employee welfare benefit plan[s]" and "employee pension benefit plan[s]." In his original Complaint, plaintiff claimed benefits under section 10002(1) were denied him. In the Pretrial Order, however, plaintiff does not differentiate as to whether he has been denied benefits under a welfare or pension plan. This ambiguity has not been lost upon defendant. Doc. 34, p. 16. Because the court's analysis will not depend upon the subtle definitional difference between the two types of plans, a more definite statement is irrelevant. For purposes of this motion, the court will treat the agreement as an employee welfare benefit plan.
An employee welfare benefit plan is defined as:
any plan, fund, or program which . . . is . . . established or maintained by an employer . . . to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise . . . medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment . . .29 U.S.C. § 1002(1). This definition has five essential elements: (1) a plan, fund, or program; (2) established or maintained; (3) by an employer (4) for the purpose of providing health care or disability benefits (5) to participants or their beneficiaries. Brooks v. Guardian Life Ins. Co., 995 F. Supp. 1171, 1172 (D.Kan. 1998) (relying upon Gaylor v. John Hancock Mut. Life Ins. Co., 112 F.3d 460 (10th Cir. 1997) and Peckham v. Gem State Mut., 964 F.2d 1043 (10th Cir. 1992)). Neither plaintiff nor defendant denies the agreement satisfies elements (3), (4) and (5). Even the second factor does not appear to be of material concern. The true debate is whether the agreement is a "plan, fund, or program."
To note the subtle differences, compare the statutory definition of an employee welfare benefit plan with the statutory definition of an employee pension benefit plan. An employee pension benefit plan is defined as:
any plan, fund, or program which . . . is . . . established or maintained by an employer . . ., to the extent that by its express terms or as a result of surrounding circumstances such plan, fund, or program —
(i) provides retirement income to employees, or
(ii) results in a deferral of income by employees for periods extending to the termination of covered employment or beyond,
regardless of the method of calculating the contributions made to the plan, the method of calculating the benefits under the plan or the method of distributing benefits from the plan.29 U.S.C. § 1002(2)(A).
A "plan, fund, or program" (plan) falls withing ERISA's ambit if, from the surrounding circumstances, a reasonable person can ascertain the intended benefits, beneficiaries, source of financing, and procedures for receiving benefits. Gaylor v. John Hancock Mut. Life Ins. Co., 112 F.3d 460, 464 (10th Cir. 1997) (relying upon Donovan v. Dillingham, 688 F.2d 1367, 1373 (11th Cir. 1982) for what has become known as the Donovan test). Moreover, and most relevant to the inquiry here, the Supreme Court has held that a plan must implicate benefits that require an ongoing administrative program to meet the employer's obligation. Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 11 (1987). (stating Congress pre-empted state laws relating to "plans," not merely "benefits," in order to afford employers the advantages of a uniform set of administrative procedures governed by a single set of regulations). Accordingly, in order to be considered a "plan," the agreement must satisfy both the Fort Halifax and Donovan tests.
Whether plaintiff claims the agreement is an "employee welfare benefit plan" or an "employee pension benefit plan" is of no significance in regard to the Fort Halifax and Donovan tests. Compare Fort Halifax Packing Co., 482 U.S. 1, 11 (1987) (applying the requirement for an administrative scheme to a state law that purported to provide benefits similar to a welfare benefit plan); with Siemon v. ATT Corp., 117 F.3d 1173, 1178 (10th Cir. 1997) (applying Ft. Halifax and Donovan to a welfare benefit plan); and Herring v. Oak Park Bank, 963 F. Supp. 1558, 1563-64 (D.Kan. 1997) (applying Ft. Halifax to a pension benefit plan).
Two recent cases, one from the Tenth Circuit and one from the District of Kansas, explain these separate aspects of whether the agreement is to be considered a plan covered by ERISA.
In Herring v. Oak Park Bank, Judge Lungstrum analyzed whether a "Deferred Compensation Plan and Agreement" was covered by ERISA. 963 F. Supp. 1558, 1563 (D.Kan. 1997). The program provided incentives for the plaintiff to maintain his employ with the bank by using "phantom stock" plans that allowed the plaintiff to receive incentive-based compensation credited to his personal account. The amounts, timing, and triggering events, considering the complexity of the program, were clearly spelled out in the program agreement. In determining whether the program fell under ERISA, the court focused upon whether the program required "an ongoing administrative scheme." Because the program did not require the defendant to exercise discretion, the program was only for the benefit of the plaintiff, and simple, mechanical calculations were all the program required, the court held the program did not require such a scheme and was therefore exempt from ERISA coverage.
In Siemon v. ATT Corporation, the Tenth Circuit analyzed whether a discretionary "Other Benefit" program, available as a supplement to existing benefit programs but not mentioned in any ERISA plan documents, was covered by ERISA. 117 F.3d 1173, 1174 (10th Cir. 1997). The "Other Benefits" were available to ATT employees "who demonstate[d] `severe financial need and hardship.'" A benefit and claim committee was given discretion when to authorize payments, but in no event could the payments or loans exceed $1000. In determining whether the "Other Benefits" was a plan, and therefore within the coverage of ERISA, the court cited both theDonovan and Fort Halifax test. The Fort Halifax test was met due to the committee's continuing obligation to consider applications, their discretionary authority, and finally the "administrative regime" used to process requests. Even though the program satisfied the mandate of Fort Halifax, the court held it was not covered by ERISA because "the potential benefits are too ephemeral and contingent . . . to ascertain what, if anything, ATT intends an employee to receive." Id. (relying upon the Donovan prong).
Unlike Siemon, the agreement's benefits are not "too ephemeral and contingent," but are spelled out with clarity. Doc. 41, Exhibit 12. For example, the agreement is sure to vest in the event of plaintiff's death, disability, termination, or otherwise leaving the employ of Quinstar. In addition, it is clear that plaintiff is to receive these benefits and the manner in which the benefits are to be dispersed are clearly set forth. As such, the Donovan test has been met.
The next step is to determine whether the agreement "implicate[s] benefits `whose provision by nature requires an ongoing administrative program to meet [Quinstar's] obligation.'" Siemon v. ATT Corp., 117 F.3d 1173, 1178 (10th Cir. 1997) (quoting Fort Halifax Packing Co., 482 U.S. 1, 11 (1987)). The court first observes that the agreement is between Quinstar and plaintiff only. While there is some evidence that a similar agreement may have been contemplated for another Quinstar employee, it is clear the agreement at issue here was to benefit only plaintiff. Though not dispositive, the fact that plaintiff was the only beneficiary of the agreement "does suggest that an actual administrative program was not required for the agreement's administration." Herring, 963 F. Supp. at 1568 n. 3.
The agreement required Quinstar to pay to plaintiff a definite sum of money depending upon a definite "triggering event." If plaintiff retired, for example, Quinstar was required to pay, on the "first day of the month following the date" of retirement, "the after tax sum of $12,000 per year for thirteen years, then $11,279 for one year, then $8,400 for two years." Doc. 41, Exhibit 12, p. 1. Lest there be any doubt as to the manner of distribution, "[p]ayments of the sum specified shall be made in twelve (12) equal monthly payments per year." Id. Moreover, should plaintiff's employment with Quinstar be terminated for any reason other than retirement, which has been covered already, or death or disability, covered later in the agreement, Quinstar "agree[d] to pay [plaintiff] the after tax sum of $11,844 per year until age sixty-five (65)." Id. at p. 2.
Interestingly, plaintiff makes little, if any, argument in support of the ERISA claim. Of the twenty-five page response to defendant's motion for summary judgment, plaintiff allotted less than two full pages of text to the ERISA argument. Doc. 40. The court is under no duty to manufacture a plaintiff's argument. See SIL-FLO, Inc. v. SFHC, Inc., 917 F.2d 1507, 1513-14 (10th Cir. 1990). Out of an abundance of caution, however, the court will construe plaintiff's unsupported assertion that "[t]he agreement meets all of the requirements of an ERISA plan," to set forth available arguments. Doc. 40, p. 25.
First, plaintiff might have argued that the requirement of monthly payments, as opposed to in one lump sum, due over a period of time establishes the need for an administrative regime. An ERISA plan is not, however, created simply because the payment to the employee of a determined amount may be paid in several installments. Herring, 963 F. Supp. 1566 (citing cases from the Second, Fifth, and Ninth circuits). The fact that Quinstar was required to write and send out several checks over a period of time instead of making one lump sum payment "does not create an ongoing administrative scheme under Fort Halifax." Herring, 963 F. Supp. 1566.
In addition, plaintiff could have asserted that the agreement provided for a discretionary function, i.e., determining whether plaintiff has become disabled, was fired, or simply retired. This too has been foreclosed by Herring. 963 F. Supp. at 1566. Quinstar was not required to exercise discretion to determine whether plaintiff was eligible to receive payments. Rather, the only thing Quinstar had to do was observe what "triggering event" occurred and follow the explicit directions created by the agreement. See id. (distinguishing Simas v. Quaker Fabric Corp., 6 F.3d 849 (1st Cir. 1993), Bogue v. Ampex Corp., 976 F.2d 1319 (9th Cir. 1992), cert. denied, 507 U.S. 1031 (1993) and Williams v. Wright, 927 F.2d 1540 (11th Cir. 1990)). Plaintiff cites the Seventh Circuit opinion of Cvelbar v. CBI Illinois Incorporated, 106 F.3d 1368 (7th Cir.), cert. denied, 522 U.S. 812 (1997). possibly in support of the proposition that Quinstar, under the terms of the agreement, did have a discretionary function because a determination as to why plaintiff was no longer employed must be made before the correct amount of payment could be determined. See Doc. 40, p. 24. Unlike the plan in Cvelbar, however, Quinstar did not have to monitor any events that may alter the payment schedule, be they legal determinations or factual findings, upon the happening of a triggering event. Compare Cvelbar, 106 F.3d at 1377-79; with Doc. 41, Exhibit 12.
Cvelbar has been subsequently abrogated on other grounds byInternational Union of Operating Eng'rs., Local 150 v, Rabine, 161 F.3d 427, 431 (7th Cir. 1998).
Finally, plaintiff could have alleged the agreement required administration because it called for payments to be made in the sum of after-tax dollars. While the tax code is sometime complex and daunting, Quinstar was required only to perform simple calculations to determine how much it would be required to pay plaintiff in order to attain the specified after-tax amount. Simple mathematical applications such as this do not rise to the level of establishing an ongoing administrative regime. See Kulinski v. Medtronic Bio-Medicus, Inc., 21 F.3d 254, 257 (8th Cir. 1994); Herring, 963 F. Supp. at 1565 ("Plaintiff has not provided evidence showing that the agreement required substantial discretion or anything more than a simple, mechanical calculation to determine the specific sum to be paid to plaintiff upon the occurrence of one of a number of triggering events."); Bryan v. Methodist Healthcare-Jackson Hosp., No. 1:98CV125-D-D, 1998 WL 930701, at *3 (N.D.Miss. Sept. 10, 1998).
At this summary judgment stage, plaintiff is required to support his allegations with evidence from which a reasonable fact finder could conclude that the agreement was a "plan" under ERISA. Plaintiff has failed to provide any evidence beyond the agreement itself that would establish the need for an ongoing administrative scheme as necessitated by the Supreme Court in Fort Halifax Packing Co, Inc. v. Coyne, 482 U.S. 1 (1987). The cases cited by plaintiff are inapposite and do not alter the court's decision. As such, the court concludes as a matter of law, based on uncontroverted facts in the record, that the agreement's provisions do not establish a "plan, fund, or program" subject to ERISA.
Plaintiff cites "U.S. v. C o sumano," a " Tenth Circuit Court of Appeals" decision, found at "943 F. 3d at 309." Doc. 40, p. 24 (emphasis added). It appears plaintiff was attempting to point the court's attention in the direction of United States v. Cusumano, 943 F.2d 305 (3d Cir. 1991), cert. denied, 502 U.S. 1036 (1992). If so, this reference correctly stated the language of 29 U.S.C. § 1002(1).
Specifically plaintiff cites Deboard v. Sunshine Mining and Ref. Co., 208 F.3d 1228 (10th Cir. 2000) (en banc) for the proposition that a single letter sent "`for informational purposes only,' offering certain benefits, including life insurance to those who would accept early retirement . . . constitute[s] an ERISA-qualified plan." Doc. 40, p. 24. Plaintiff's reliance upon Deboard is misplaced. Neither plaintiff's argument nor Deboard's holding affect the court's analysis of whether an administrative scheme is required by the agreement.
III. Conclusion
For the foregoing reasons, Filbrun's motion for summary judgment as to his personal liability is GRANTED in all respects. In addition, Quinstar's remaining motion for summary judgment as to the ERISA claim is GRANTED. As to the remaining claims against Quinstar, Title VII discrimination and Title VII retaliation, summary judgment is DENIED.
IT IS SO ORDERED.