Leflore v. Flint Industries ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 23 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JOE LEFLORE,
Plaintiff-Appellant,
v. No. 98-5024
(D.C. No. 97-CV-189-H)
FLINT INDUSTRIES, INC., (N.D. Okla.)
a Delaware Corporation,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before TACHA , BARRETT , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Following termination of his employment with defendant, Flint Industries,
Inc., plaintiff Joe LeFlore brought this action against Flint alleging age
discrimination, in violation of the Age Discrimination in Employment Act of 1967
(ADEA), 29 U.S.C. § 621-34, and the Oklahoma Anti-Discrimination Act, Okla.
Stat. tit. 25, §§ 1301, 1302, and intentional infliction of emotional distress. The
district court granted summary judgment in Flint’s favor on all counts. LeFlore
appeals only the district court’s rejection of his age discrimination claims. We
reject LeFlore’s invitation to review the district court’s grant of summary
judgment under a clearly erroneous standard, and instead, apply the usual de novo
standard, using the same legal principles the district court employed pursuant to
Fed. R. Civ. P. 56(c). See Wolf v. Prudential Ins. Co. , 50 F.3d 793, 796 (10th
Cir. 1995).
The following facts are undisputed or, because he is the party opposing
summary judgment, construed in LeFlore’s favor. Flint provides construction and
oilfield services worldwide through various subsidiaries. LeFlore began working
for Flint in its aviation department in 1970 as an aircraft mechanic and eventually
became chief of maintenance at Flint’s Tulsa location. Around 1981, he began to
act as copilot on some of Flint’s flights, and he subsequently was given the title
“Co-Pilot/Chief of Maintenance,” which he retained throughout his employment
with Flint.
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During most of the time LeFlore worked for Flint, Flint had two jets: a
Cessna Citation I and a Cessna Citation III. Early in 1995, Flint decided to sell
the Citation I, and did so on February 15, 1995, for about $1,000,000. It also
decided to reduce its pilot staff. At that time, its staff consisted of chief pilot
David Doty (who was age forty-eight) and three other pilots--Dave Masterson
(age thirty-nine), Sid Hilton (age thirty-four), and LeFlore (age sixty-one). By his
own admission, LeFlore was working only ten percent of his time as a mechanic;
the remainder was spent working as a copilot. On March 7, 1995, Flint
terminated LeFlore and Hilton. Its reasons for selecting these two individuals for
termination, as stated in defending this case, were that neither LeFlore nor Hilton
had the 5,000 hours of air time necessary under internal company policy to fly the
Citation III; that LeFlore was not certified by the FAA to fly the Citation III as
pilot-in-command, as were the other three; and that LeFlore did not have an
Airline Transport Pilot (ATP) rating from the FAA, which both Doty and
Masterson had.
LeFlore subsequently brought this action for age discrimination on two
separate bases. First, he contends that he was improperly terminated 1
in his
capacity as chief of maintenance and was “replaced” by Joel Hawksworth, a
1
LeFlore contends he was never “terminated” but only “laid off.” He fails to
explain, and we do not see, how this difference in terminology is relevant to his
claims.
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younger individual who had been hired as Flint’s full-time mechanic eight months
before LeFlore’s termination. Second, he contends he was improperly terminated
in his capacity as copilot because he was replaced by Todd Barnes, another
younger individual hired as a copilot more than two years after LeFlore was
terminated.
Because LeFlore presented no direct evidence of age discrimination, his
case must proceed in accordance with the burden-shifting rules announced in
McDonnell Douglas Corp v. Green , 411 U.S. 792, 802-04 (1973). See Ingels v.
Thiokol Corp. , 42 F.3d 616, 620-21 (10th Cir. 1994). To make his prima facie
case, LeFlore must establish that he was (1) within the protected age group;
(2) doing satisfactory work; (3) discharged despite the adequacy of his work; and
(4) replaced by a younger person. See id. at 621. In reduction in force cases,
which this case is in part, 2
the fourth element is altered to require the plaintiff to
show that he was treated less favorably in the reduction in force than younger
employees. See id. In addition, to satisfy his burden under the fourth element,
LeFlore must show that he was “similarly situated” to the younger employees
treated more favorably than he. See, e.g. , Fairchild v. Forma Scientific, Inc. , 147
2
Although LeFlore argued in the district court that Hawksworth “replaced”
him, despite Hawksworth’s having been employed by Flint for eight months
before LeFlore was terminated, the district court analyzed this part of his claim as
falling in the reduction-in-force category. On appeal, LeFlore generally presents
his arguments in that same vein.
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F.3d 567, 571-72 (7th Cir. 1998); Vega v. Kodak Caribbean, Ltd. , 3 F.3d 476, 479
(1st Cir. 1993); Branson v. Price River Coal Co. , 853 F.2d 768, 771 (10th Cir.
1988) (“Evidence that an employer fired qualified older employees but retained
younger ones in similar positions is sufficient to create a rebuttable presumption
of discriminatory intent and to require the employer to articulate reasons for its
decision.”). 3
That requires that he show he was similarly situated to the younger
employees “in all relevant respects.” Ercegovich v. Goodyear Tire & Rubber Co. ,
154 F.3d 344, 353 (6th Cir. 1998).
Once the plaintiff makes his or her prima facie showing, the burden shifts
to the defendant to a legitimate, nondiscriminatory reason for the plaintiff’s
termination. See Ingels , 42 F.3d at 621. If it does that, then the plaintiff must
produce evidence that the proferred reason is pretextual and unworthy of belief.
See Doan v. Seagate Tech., Inc. , 82 F.3d 974, 977 (10th Cir. 1996).
With respect to the claim regarding Hawksworth, the district court found
that LeFlore made his prima facie case and that Flint articulated a legitimate
3
We note that in certain employment discrimination cases applying the
McDonnell Douglas scheme, whether the employees being compared were
similarly situated is analyzed as part of a plaintiff’s showing of pretext rather than
as part of the plaintiff’s prima facie case. See, e.g. , Aramburu v. Boeing Co. , 112
F.3d 1398, 1403-05 (10th Cir. 1997) (in Title VII case, noting similarly-situated
issue as part of prima facie case, but discussing it under pretext); Morgan v. Hilti,
Inc. , 108 F.3d 1319, 1324 (10th Cir. 1997) (addressing similarly-situated issue as
part of pretext). Even if we addressed the issue as part of our analysis of pretext
in the present case, the result would be the same.
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reason for terminating him--because of its economic decision to sell one of the
jets, it needed to reduce its pilot staff and chose to terminate him for the reasons
stated earlier. The court then concluded that his attempt to show pretext--on the
basis that he was more qualified as a mechanic than Hawksworth--failed because
he did not present any evidence to support this position other than his own
conclusory statements.
With respect to the claim regarding Barnes, the court indicated it was
questionable whether LeFlore satisfied the fourth element of his prima facie case
because Barnes was not hired until over two years after LeFlore was terminated,
and Barnes’ hiring was too attenuated for him to be considered to have replaced
Leflore. The court then concluded that, assuming LeFlore made his prima facie
case, he again failed to show that Flint’s legitimate business reason for hiring
another pilot--improving business increasing its need for pilots--was pretextual.
The court rejected LeFlore’s contention that it would have made better business
sense to hire someone who was both a copilot and mechanic (Barnes was not a
mechanic) on the basis that that was purely a business decision left to Flint’s
judgment, which a court cannot second-guess. It also found that at most, LeFlore
was as qualified as a copilot as Barnes when Barnes was hired because at that
time neither was qualified to fly the Citation III, although Barnes obtained the
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necessary rating shortly after being hired. In contrast, LeFlore had declined
Flint’s offer to pay for him to obtain this rating during his employment.
On appeal, LeFlore reiterates his contentions that he was treated less
favorably than Hawksworth and replaced by Barnes. Although we approach the
issues slightly differently from the way the district court did, we nonetheless
conclude it correctly granted summary judgment to Flint. See Bolden v. PRC,
Inc. , 43 F.3d 545, 548 (10th Cir. 1994) (court of appeals may affirm grant of
summary judgment on any basis adequately supported by record). 4
Turning first to his claim as it regards Hawksworth, we conclude that
LeFlore did not make his prima facie case because he failed to establish the fourth
element--that he was treated less favorably than a younger, similarly situated
employee. Hawksworth was a full-time mechanic. LeFlore was primarily a
copilot; he spent no more than ten percent of his time as a mechanic. The two
employees were therefore not similarly situated; that is, their positions were not
4
The district court held that the legal analysis applicable to LeFlore’s claim
under the Oklahoma anti-discrimination statute was the same as that for an ADEA
claim, see Okla. Stat. tit. 25, § 1101, and granted summary judgment on the state
claim for the same reasons as for the ADEA claim. On appeal, LeFlore does not
challenge the court’s equation of the two claims. Because this ruling is
unchallenged and we agree summary judgment on the ADEA claim was
appropriate, we conclude that summary judgment on the state claim was also
appropriate. In doing so, we assume, without deciding, that a private cause of
action such as LeFlore alleged exists under Oklahoma law. Cf. List v. Anchor
Paint Mfg. Co. , 910 P.2d 1011 (Okla. 1996).
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similar “in all relevant respects.” Ercegovich , 154 F.3d at 353. Emphasizing his
longtime service to Flint, what LeFlore really appears to be arguing is that Flint
should have allowed him to “bump” Hawksworth from his mechanic’s position.
Giving LeFlore Hawksworth’s job would be according special treatment to
LeFlore. The ADEA does not require an employer to accord special treatment to
older workers and bump junior employees; it requires only that older workers be
treated fairly. See Jones v. Unisys Corp. , 54 F.3d 624, 630 n.6 (10th Cir. 1995);
EEOC v. Sperry Corp. , 852 F.2d 503, 509 (10th Cir. 1988). LeFlore’s claim
regarding his position as a mechanic thus fails.
With respect to Barnes, the foundation of LeFlore’s claim is that more than
two years after he was terminated as a copilot, Flint was under some sort of duty
to rehire him if, for whatever reason, it decided it needed an additional copilot.
He cites no authority supporting this contention, and we conclude, as the district
court suggested, that this period is too long for Barnes to be considered to have
“replaced” LeFlore. Cf. Watkins v. Sverdrup Tech., Inc. , 153 F.3d 1308, 1312-13,
1316 (11th Cir. 1998) (new employee hired in similar position ten months after
plaintiffs terminated did not replace plaintiffs); Frieze v. Boatmen’s Bank , 950
F.2d 538, 540, 541 (8th Cir. 1991) (employee hired as management trainee five
months after plaintiff’s dismissal who could not perform plaintiff’s work until
more than two years later held not to have replaced plaintiff).
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Further, even if we assume, as the district court did, LeFlore made a prima
facie case regarding Barnes, his claim still fails. His contention that it would
have been in Flint’s “best interest” to hire a copilot who was also a mechanic
does not demonstrate pretext. What is in Flint’s best interest is a business
decision, and we “will not second guess business decisions made by employers, in
the absence of some evidence of impermissible motives.” Doan , 82 F.3d at 978(quotations omitted). Finally, we also note that, again, LeFlore has not shown
that he and Barnes were similarly situated. Barnes was willing to and did obtain
the necessary rating to fly the Citation III shortly after being hired. Though given
the opportunity to while he was employed, LeFlore never did.
The judgment of the district court is AFFIRMED.
Entered for the Court
James E. Barrett
Senior Circuit Judge
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