Robert Johnson v. Franklin Farmers Cooperative ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0306n.06
No. 09-5483
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
May 19, 2010
LEONARD GREEN, Clerk
ROBERT D. JOHNSON, )
)
Plaintiff-Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF TENNESSEE
FRANKLIN FARMERS )
COOPERATIVE, )
OPINION
)
Defendant-Appellee. )
______________________________ )
Before: GIBBONS, SUTTON, and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Plaintiff Robert Johnson appeals the district court’s
order granting summary judgment to defendant Franklin Farmers Cooperative (FFC) in this case
brought under the Age Discrimination in Employment Act (ADEA). We AFFIRM.
I
Neither party disputes the district court’s factual summary:
Plaintiff, a male resident of Franklin County, Tennessee, was born on June 7,
1942. He was 64 years old at the time of the alleged discrimination. Defendant is a
Tennessee corporation, an independent cooperative business controlled by its
members. The members, each of whom own one share of voting stock, are
responsible for electing a board of directors. The board of directors, in turn, establish
the policies and employs a general manager. The daily operation of Defendant’s
business is under the direction and supervision of this general manager, who reports
to the board of directors. At all times relevant to the instant case, Doug Swann served
as Defendant’s general manager.
No. 09-5483
Johnson v. Franklin Farmers Coop.
While acting as Defendant’s general manager, Swann identified three positions
that he believed could be eliminated as a result of the discontinuance of the member
marketing allowance. Swann eliminated William Clark’s position as the assistant
manager of Defendant’s store in [Decherd, Tennessee1]. Clark, age 62, had already
decided to retire at the end of 2006. Swann also eliminated a service technician
position from the Car Care Center, which was held by a [24] year old named Charles
Smith. The third position that was eliminated was the outside salesman position,
which was held by Plaintiff. Swann believed each of these three positions could be
performed by other existing employees. After these positions were eliminated,
Defendant had thirty-four active employees. Twenty-three of those employees were
in a protected age group and six were sixty years of age or older. Additionally,
Defendant would hire its retired employees on a part-time basis during busy seasons.
On September [5], 2006, Plaintiff alleges that he was informed that his
position as outside salesman was being eliminated. Immediately after receiving notice
that his position would be eliminated, Plaintiff filed for and received short-term and
long-term disability benefits through Defendant’s insurance company. Consistent
with his application for disability benefits, Plaintiff ceased working on September
[18], 2006.
In support [of] his application for disability benefits, Plaintiff obtained letters
from three physicians attesting to his inability to work. Seth Cooper, M.D. wrote that
Plaintiff had a history of follicular lymphoma and a destructive lesion with a
pathologic compression causing spinal instability and also stated that Plaintiff suffered
from organic heart disease with chronic atrial fibrillation. He stated that Plaintiff “is
disabled to work because of [the] destructive lesion of his spine and his underlying
malignancy.” Everette I. Howell, M.D. wrote that Plaintiff’s spinal difficulties made
it so that he was “clearly [] unable to work as a result of his persistent pain.” Ephraim
B. Gammada, M.D.[,] wrote that Plaintiff’s spinal difficulties made it so that he is
“unable to work” and “should be considered for [permanent] disability.”
Plaintiff applied for and received long-term disability payments under
Defendant’s company plan on December 17, 2006. In October 2006, Plaintiff also
applied for social security benefits. Plaintiff’s application for social security benefits
was approved in April of 2007. Plaintiff contends that “he was capable of performing
his Outside Salesman position and remains capable of performing that position today”
and that Defendant’s decision to eliminate his position was an adverse employment
action. Plaintiff also contends that he was replaced by a 25-year-old man and that his
1
FFC’s region includes Decherd and Huntland, Tennessee. R. 19-1, p. 9.
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age was the ultimate issue and determining factor in Defendant’s decision to terminate
Plaintiff’s position. [R. 36, 3-5.]
II
This court reviews the district court’s grant of summary judgment de novo. Geiger v. Tower
Auto., 579 F.3d 614, 620 (6th Cir. 2009). Summary judgment is proper where no genuine issue of
material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). The district court must draw all reasonable inferences in the non-moving party’s favor. Allen
v. Highlands Hosp. Corp., 545 F.3d 387, 393 (6th Cir. 2008).
The ADEA prohibits an employer from discriminating against any individual with respect to
compensation, terms, conditions, or privileges of employment, because of such individual’s age. 29
U.S.C. § 623(a)(1). An ADEA plaintiff must prove by a preponderance of the evidence, either direct
or circumstantial, that age was the but-for cause of the challenged employer decision. Gross v. FBL
Fin. Services, Inc., – U.S. –, 129 S. Ct. 2343, 2351 n.4 (2009). There is no dispute in this case that
there is no direct evidence of discrimination.
In analyzing circumstantial evidence in ADEA cases, this circuit applies the McDonnell
Douglas2 framework. Geiger, 579 F.3d at 622. A plaintiff sets forth a prima facie case of age
discrimination through circumstantial evidence by establishing: 1) that he was a member of a
protected class; 2) that he suffered an adverse employment action; 3) that he was qualified for the
position held; and 4) that he was replaced by someone outside of the protected class, id. at 622, or that
he was treated differently than similarly situated employees outside the protected class, see Martin
2
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973).
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v. Toledo Cardiology Consultants, Inc., 548 F.3d 405, 410 (6th Cir. 2008). If a plaintiff is terminated
as part of a work force reduction, “this court has modified the fourth element to require the plaintiff
to provide ‘additional direct, circumstantial, or statistical evidence tending to indicate that the
employer singled out the plaintiff for discharge for impermissible reasons.’” Geiger, 579 F.3d at 623
(citing Barnes v. GenCorp., 896 F.2d 1457, 1465 (6th Cir. 1990)).
A
The last three prima facie elements are disputed. As to the first disputed element, FFC
maintains that Johnson did not suffer an adverse employment action because he voluntarily left his
position because of an alleged disability before it was eliminated. FFC cites no pertinent authority.
“An adverse employment action ‘constitutes a significant change in employment status, such
as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits.’” Thompson v. Henderson, 226 F. App’x 466, 472
(6th Cir. 2007) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). “[D]e minimis
employment actions are not materially adverse and, thus, not actionable.” Mitchell v. Vanderbilt
Univ., 389 F.3d 177, 182 (6th Cir. 2004) (quoting Bowman v. Shawnee State Univ., 220 F.3d 456, 462
(6th Cir. 2000)). “A ‘mere inconvenience or an alteration of job responsibilities’ or a ‘bruised ego’
is not enough to constitute an adverse employment action.” White v. Burlington N. & Santa Fe Ry.
Co., 364 F.3d 789, 797 (6th Cir. 2004) (en banc) (quoting Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d
876, 886 (6th Cir. 1996)).
The record is clear that on September 5, 2006, Swann informed Johnson that Johnson’s
position was being eliminated effective September 30, 2006. During the same conversation, Johnson
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asked Swann to allow him to work for 19 more months, i.e., until he would be eligible for full
retirement, but Swann declined. Johnson applied for short-term disability benefits and ceased
working on September 15, 2006. He began receiving short-term disability benefits on September 18,
2006. Johnson testified that had Swann not eliminated his position, he would have continued
working.
FFC’s contention that Johnson voluntarily ceased working is thus belied by the record.
Viewed in a light most favorable to Johnson, the evidence supports Johnson’s assertion that he
involuntarily ceased working two weeks before FFC would eliminate his job, and that FFC brought
about a significant change in his employment status. The prima facie showing is not intended to be
onerous. Jackson v. FedEx Corporate Services, Inc., 518 F.3d 388, 396 (6th Cir. 2008) (noting in this
Title VII case, “the district court impermissibly placed a burden of producing a significant amount
of evidence in order to establish a prima facie case. That burden is not appropriate at the prima facie
state [sic stage], but rather is better suited for the pretext stage that occurs later.”) Under these
circumstances, we agree with the district court that Johnson established that he suffered an adverse
employment action.
B
FFC also maintains that “Johnson’s disability means that he was not otherwise qualified for”
the position in outside sales and could thus not establish the third prima facie element. FFC
acknowledges that Johnson’s assertion of total disability does not act as a legal bar to his claim, but
maintains (without citing authority) that Johnson “must explain the apparent inconsistency between
his admission of total disability . . . and his physician’s letters attesting to that disability, on the one
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hand, and the necessary elements of his prima facie claim of age discrimination on the other hand.”3
Assuming that Johnson must provide such an explanation, he has done so. The record evidence,
including deposition testimony of Johnson, Swann, and Hankins, and the affidavits of former
customers of Johnson’s, supports the position that Johnson could and did perform his job well. We
thus agree with the district court that Johnson established that he was qualified for the position he
held–the third prima facie element.
C
FFC also maintains that Johnson did not establish the final element of a prima facie claim.
The district court concluded otherwise:
With respect to the last prong of the prima facie ADEA claim, Plaintiff argues
that he was replaced by younger workers. After Plaintiff’s position was eliminated,
his duties were handled by two of Defendant’s employees. John Hankins, a 30-year-
old fertilizer salesman, handled product sales for the Defendant. Additionally, Cory
Dziadkowiec, a 25-year-old livestock specialist, also handled product sales. Neither
took on the title of outside sales person. Plaintiff argues that Hankins is his de facto
replacement and that Defendant is merely waiting until the instant action is over to
officially appoint him to this position. This conclusion is supported by Swann’s
deposition testimony, wherein he stated that “if I hired an outside salesman that it
would look like that . . . I needed an outside salesman . . . and may have an adverse
effect on this decision.” This testimony could lead a reasonable juror to conclude that
this younger employee was Plaintiff’s de facto replacement. Accordingly, the Court
finds that Plaintiff has met his burden in establishing a prima facie ADEA
discrimination claim. [R. 36, 9.]
The district court’s analysis did not include the heightened prima facie requirement in
reduction in force (RIF) cases. “Where . . . there is a reduction in force, a plaintiff must either show
that age was a factor in eliminating his position, or, where some employees are shifted to other
3
Def.’s Br. at 14-15.
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positions, that he was qualified for another position, he was not given a new position, and that the
decision not to place him in a new position was motivated by plaintiff’s age.” Scott v. Goodyear Tire
& Rubber Co., 160 F.3d 1121, 1126 (6th Cir. 1998) (quoting Hawley v. Dresser Indus., Inc., 958 F.2d
720, 723 (6th Cir. 1992)). “The purpose of the additional evidence requirement is to ensure, in
reduction of force cases, that the plaintiff has presented evidence to show that there is a chance the
reduction in force is not the reason for the termination.” Asmo v. Keane, Inc., 471 F.3d 588, 593 (6th
Cir. 2006).
On the question whether there was a bona fide RIF, Swann testified that it was necessary that
he eliminate the three positions because of a $112,714.00 budgetary shortfall in fiscal year 2007.
Johnson concedes that there was such a budgetary shortfall, but asserts that there was no real RIF;4
he maintains that his position was the only one eliminated and he was de facto replaced by the
younger Hankins. Johnson presented evidence that Jon Hankins and Cory Dziadkowiec (both of
4
Johnson concedes that FFC’s parent organization, the Tennessee Farmers Cooperative
(TFC), did eliminate the member marketing allowance of $112,714.00 in fiscal year 2007, but
maintains that the TFC “restructured the way in which it distributed funds to its member
cooperatives . . . and each cooperative received an increase in the amount of patronage funds it
received.” Johnson’s support for this assertion is an FFC Audit Report for the year ending
September 30, 2007 (i.e., one year after Swann eliminated Johnson’s position), which shows that the
Patronage Refund category increased by approximately $50,000, and that FFC’s equity in the TFC
increased from $1,217,639.00 to $1,268,308.00.
Johnson presented no evidence supporting that Swann, or anyone else at FFC, knew in
September 2006 that in fiscal year 2007, FFC would receive TFC monies that would compensate for
the $112,000 shortfall. The audit report dated September 30, 2007 was not available to Swann in
September 2006, when he decided to eliminate three positions at FFC. Johnson presented no
evidence to controvert that before September 5, 2006, Swann learned that TFC would not be paying
FFC approximately $112,000 in fiscal year 2007 and that there was, indeed, a $112,000 shortfall in
fiscal year 2007.
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No. 09-5483
Johnson v. Franklin Farmers Coop.
whom began employment with FFC in 2005) made outside sales calls after Johnson ceased
employment at FCC. However, there is no evidence that Hankins and/or Dziadkowiec replaced
Johnson–rather, they each performed their own positions’ duties (Hankins was fertilizer and crop
department manager; Dziadkowiec was livestock specialist) and, in addition, made occasional sales
calls. An employee is not replaced for purposes of the fourth element of a prima facie case of
discrimination when another employee is assigned to perform the plaintiff’s duties in addition to other
duties, or when the work is redistributed among other existing employees already performing related
work. See Geiger, 579 F.3d at 623; Godfredson v. Hess & Clark, Inc., 173 F.3d 365, 372-73 (6th Cir.
1999).
Johnson’s contention that his was the only position Swann eliminated is not supported by the
record. Although Clark was permitted to work until he retired on December 30, 2006, Swann testified
that Clark was not thereafter replaced. Although Smith was rehired in November 2006, Swann
testified that the reason was that another Car Care Center employee was moved to counter sales, so
an opening came about in the Car Care Center. FFC Employee lists confirm that the number of
employees in the Car Care Center declined from 9 to 8, in keeping with Swann’s testimony that a
position there was eliminated, and that Clark’s Assistant Manager/counter sales position at the
Decherd office was eliminated. Johnson’s argument that FFC did not institute a real RIF because his
position was the only one eliminated thus fails.
D
Given our conclusion that Johnson was terminated as part of a work force reduction, Johnson
must provide “additional direct, circumstantial, or statistical evidence tending to indicate that the
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employer singled [him] out [] for discharge for impermissible reasons.” Geiger, 579 F.3d at 623
(citing Barnes, 896 F.2d at 1465).
Johnson concedes that he presented no direct or statistical evidence of age discrimination
[Pl.’s Br. 9], and we conclude that the circumstantial evidence he presented does not show that age
was a factor in eliminating his position. Swann was deposed two years after the RIF. Although
Swann’s deposition testimony that Johnson’s lawsuit may have had an effect on his decision not to
join with the other counties in hiring Hankins as an outside salesman5 could be interpreted to mean
that Swann intended to eventually replace Johnson, it is insufficient to demonstrate that Swann’s
choosing to eliminate Johnson’s position was linked to age. That Swann decided to retain the two
younger, less-experienced Hankins and Dziadkowiec, also does not satisfy the additional evidence
requirement. See Schoonmaker v. Spartan Graphics Leasing, LLC, 595 F.3d 261, 266-67 (6th Cir.
2010) (the additional evidence criterion is not satisfied by showing that younger persons were retained
in a position that plaintiff is capable of performing).
5
At Swann’s deposition in November 2008, plaintiff’s counsel asked him whether he had
talked to Hankins about the possibility of coming back to FFC as an outside salesman at some point
in the future. Swann responded that Hankins [who had left FFC’s employ in September 2008] was
employed by three counties, each of whom paid a portion of his salary. Swann testified that “At one
point, I was asked if I wanted to join in with those other counties, and I said, no, not now. And I
don’t know if I would in the future.” R. 19 at 36. Plaintiff’s counsel later asked Swann, “Did this
lawsuit have any bearing on your decision not to join?” and Swann responded “Possibly.” When
asked “In what way?” Swann responded, “Well, I mean, if I – I guess in my mind, thinking if I hired
an outside salesman, that it would look like that, you know, I needed an outside salesman, you know,
and may have an adverse effect on this decision. I don’t know exactly how to answer that, you
know.” R. 19 at 38.
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We AFFIRM the district court’s grant of summary judgment to FFC, but for the reason that
Johnson failed to establish a prima facie case of age discrimination under the heightened standard
required in RIF cases. Given our disposition, we need not address the issue of pretext.
10