Roger Ritchie vs Industrial Steel, Inc.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10945 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 19, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 6:08-cv-01201-ACC-KRS
ROGER RITCHIE,
lllllllllllllllllllll Plaintiff-Appellant,
versus
INDUSTRIAL STEEL, INC.,
a Florida Profit Corporation,
lllllllllllllllllllll Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 19, 2011)
Before EDMONDSON, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Roger Ritchie appeals the district court’s grant of summary judgment in
favor of his former employer, Industrial Steel, in his employment discrimination
action brought pursuant to the Age Discrimination in Employment Act (“ADEA”),
29 U.S.C. § 623(a)(1), and the Florida Civil Rights Act, Fla.Stat. § 760.10. On
appeal, Ritchie contends that the district court erred in concluding that he had not
presented direct evidence of age discrimination. Alternatively, even if his case is
viewed as one involving circumstantial evidence, he argues that summary
judgment was inappropriate because he showed that Industrial Steel’s reasons for
terminating him were pretexts for age discrimination. For the reasons stated
below, we affirm.
I.
In 2008, Ritchie filed an amended complaint against Industrial Steel raising
claims under the ADEA, the Florida Civil Rights Act, and the Employee
Retirement Income Security Act (“ERISA”). Ritchie explained that he was
discriminated against and harassed on account of his age while working as a truck
driver for Industrial Steel, and ultimately was fired and replaced by a younger
worker. Industrial Steel moved for summary judgment on all of Ritchie’s claims.
Industrial Steel is a structural and miscellaneous steel fabricator and erector.
The company constructs individual steel components from architectural designs,
2
delivers the components to the construction site, and erects the components
according to the design plans. Industrial Steel’s daily operations are overseen by
its general manager, Jeff Weaver, and its vice president, Fred Wilson.
Ritchie worked as a truck driver for Industrial Steel. At the time of his
hiring, Ritchie was 64 years old. His immediate supervisors were Robert
MacCalla, the plant manager, and Jocelyn Shinabarger, the Production Control
Clerk/Dispatcher. The shop foreman, Randall Chaney, also had the authority to
give instructions to Ritchie. Shinaberger, Chaney, Wilson, and Weaver all could
impose discipline on truck drivers, but only Weaver and Wilson had the authority
to fire drivers.
Industrial Steel’s plant rules set forth a progressive discipline policy that
divided violations into two categories. Offenses in Category I included theft,
insubordination, possession of alcohol or drugs, violations of safety rules, and
disorderly conduct of any kind, “such as fighting, roughhousing, or any other
activity dangerous to life, limb, or property, or disruptive in nature.” An employee
was subject to immediate discharge for committing a Category I violation.
Offenses in Category II included tardiness, unexcused absences, stopping work
before break time or quitting time, leaving or entering a work area without
permission, failure to clean-up the work area, and unauthorized operation of
3
machinery. An employee would receive a written warning for a first Category II
offense, and would be subject to a pay cut, time off without pay, or immediate
discharge for a second offense. Weaver explained that the company did not follow
its progressive discipline policy in every case.
Ritchie stated that other employees and supervisors frequently called him
derogatory names on account of his age. Weaver referred to Ritchie as an “old
man” every time their paths crossed. On one or two occasions, Wilson made
remarks about Ritchie’s age, but Ritchie understood that Wilson was joking.
Other employees and supervisors called Ritchie names such as “snow-cropper,”
“old school,” “old mother fucker,” “old bastard,” “old son of a bitch,” but those
individuals were not involved in the decision to terminate Ritchie. As further
evidence of age discrimination, Ritchie explained that a younger driver was given
better routes and assignments.
Ritchie’s supervisors indicated that there were various shortcomings with
his job performance. Among other things, Ritchie frequently disrupted his
co-workers with “excessive chatter.” He needed more time to perform tasks than
other drivers who worked for the company. Wilson received several complaints
from customers that Ritchie was unable to back his trailer into the desired
location. Customers also stated that Ritchie was distracting their employees by
4
engaging them in conversation. Chaney stated that he observed Ritchie sleeping
in his truck on at least three occasions. Once, Ritchie received a written reprimand
for failing to tie down a load of steel after Chaney had instructed him to do so.
MacCalla, Chaney, and Shinabarger all stated that they verbally reprimanded
Ritchie concerning his work performance and his excessive talking, but Ritchie
could not recall anyone from management speaking to him about his job
performance. On one occasion, someone asked Ritchie if he had been sleeping in
his truck, and he responded that he had been on his lunch break.
One morning, Chaney instructed Ritchie to transport a 70-foot steel beam
from the front of the shop to the back of the shop. When Ritchie was in position
to back up the trailer, he asked one of the loaders, Curtis, to stand behind his truck
and spot him so that he would not hit a concrete wall at the rear of the facility.
Ritchie backed up the truck and stopped when Curtis instructed him to do so. He
exited the truck and observed that the beam was 15 feet away from the wall.
Ritchie asked Curtis if he should leave the truck hooked up to the trailer. Curtis
was not sure, so he went to ask Ritchie’s question to a supervisor. At that point,
Ritchie left the scene in order to do something else. When he returned two or
three hours later, he discovered that the truck had “skidded back” and that “the
wall was down.” Chaney assumed that Ritchie had hit the wall, but there were no
5
witnesses who saw him do so.
The wall incident occurred on a Tuesday. Ritchie was absent from work on
Wednesday and Thursday in order to undergo a nuclear stress test. When he
returned to the office on Friday, MacCalla told him that he had to choose between
resigning or being fired. When Ritchie asked why, MacCalla responded, “hello;
the wall.” Ritchie refused to resign, so MacCalla completed a termination notice
that stated that Ritchie was being fired for hitting the wall. MacCalla then told
Ritchie to give the notice to Wilson. After Wilson read the termination notice, he
stated, “this doesn’t really make sense to me,” and he stated that he would
investigate the wall incident. Wilson instructed Ritchie to return to his office on
Monday morning.
When Ritchie returned on Monday, Wilson told him, “you’re a good
employee and you’re an excellent driver but I have to go with the decision of
corporate and that is to let you go.” Wilson completed a second termination notice
that stated that Ritchie was being terminated “due to non-performance and
disruption of other employees.” Wilson explained that he decided to fire Ritchie
based on his lack of performance and his “constant chatting throughout the entire
company.” He reached his decision after consulting with his lower-level
supervisors, Shinaberger, Chaney, and MacCalla, who told him that Ritchie’s
6
performance was lacking. Wilson initially testified that Ritchie was terminated
both for the wall incident and for his performance problems, but he later clarified
that the wall incident factored into Ritchie’s termination from MacCalla’s
perspective but not from his own perspective.
Ritchie believed that he was terminated because the company was
concerned about his age and health condition. He noted that he had been fired
immediately after taking two days off of work in order to get a nuclear stress test.
Ritchie believed that Weaver, who frequently referred to him as an old man, was
instrumental in the decision to terminate him. Industrial Steel hired a younger
individual to replace Ritchie.
The district court granted Industrial Steel’s motion for summary judgment.
First, the court concluded that Ritchie had not presented direct evidence of age
discrimination because the various derogatory remarks that he identified were not
related to the decision to terminate his employment. For example, there was no
evidence that a decision maker stated that Ritchie was too old to work at the
company. In addition, the court concluded that the comments did not reflect a
blatant discriminatory animus against Ritchie on account of his age.
The district court also concluded that Ritchie had not presented
circumstantial evidence of discrimination. The court determined that Ritchie had
7
established a prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S.
792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The court also concluded that
Industrial Steel had offered a legitimate, non-discriminatory reason for terminating
Ritchie—namely, that his work performance was deficient.
With regard to the third step of McDonnell Douglas, the district court
determined that Ritchie had failed to demonstrate that Industrial Steel’s reason for
terminating him was a pretext for age discrimination. The court stated that
Industrial Steel had followed its progressive discipline policy in Ritchie’s case
because Ritchie already had received one performance citation, and, under the
policy, the company could fire him immediately once he committed a second
violation. Therefore, the court reasoned, if Industrial Steel believed, even
erroneously, that Ritchie had knocked down the wall, that would have been a
sufficient reason to fire him. The court noted that Ritchie had not disputed that he
talked a lot, disrupted other employees, and slept on the job.
The district court also explained that Industrial Steel had not offered
inconsistent reasons for Ritchie’s termination. The court explained that the two
termination notices reflected “the stages of the decision-making process and two
levels of decision-makers.” The court observed that it was reasonable to expect
that Wilson, a vice president, would have provided a more complete reason for
8
Ritchie’s termination after considering the input of a lower-level supervisor.
Finally, the court denied Ritchie’s ERISA claim because he had not presented any
evidence that Industrial Steel terminated him in order to interfere with his benefits
under an ERISA plan.
II.
We review a district court’s grant of a motion for summary judgment de
novo. Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002). We
view the evidence in the light most favorable to the non-moving party, and draw
all reasonable inferences in favor of that party. Id. Summary judgment is
appropriate “if the pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any material fact and that
the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2).
The ADEA prohibits an employer from discriminating against an employee
who is at least 40 years old on the basis of age. 29 U.S.C. §§ 623(a)(1), 631(a).
The Florida Civil Rights Act similarly prohibits discrimination on the basis of age.
Fla. Stat. § 760.10. Claims under the Florida Civil Rights Act are analyzed under
the same analytical framework as claims brought under the ADEA. Zaben v. Air
Products & Chemicals, Inc., 129 F.3d 1453, 1455 n. 2 (11th Cir. 1997).
9
“A plaintiff may establish a claim of illegal age discrimination through
either direct evidence or circumstantial evidence.” Van Voorhis v. Hillsborough
County Bd. of County Comm’rs, 512 F.3d 1296, 1300 (11th Cir. 2008). Direct
evidence is “evidence that reflects ‘a discriminatory or retaliatory attitude
correlating to the discrimination or retaliation complained of by the employee.’”
Id. (quoting Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004)).
“[O]nly the most blatant remarks, whose intent could be nothing other than to
discriminate on the basis of age . . . constitute direct evidence of age
discrimination.” Id. (quoting Carter v. City of Miami, 870 F.2d 578, 582 (11th
Cir. 1989)) (alteration in original). Discriminatory remarks do not constitute
direct evidence if they were not related to the challenged employment action or
were not made by the decision maker. Standard v. A.B.E.L. Services, Inc., 161
F.3d 1318, 1330 (11th Cir. 1998).
Here, Ritchie failed to present direct evidence of age discrimination.
Ritchie identified two decision makers: Wilson and Weaver. Weaver frequently
referred to Ritchie as an “old man,” and Wilson also referenced Ritchie’s age on
one or two occasions. Nevertheless, Ritchie did not demonstrate that those
remarks were related to the decision to terminate his employment. For example,
he did not show that Wilson or Weaver had stated, “fire Ritchie because he is too
10
old,” or “Ritchie is too old to work as a truck driver.” See Van Voorhis, 512 F.3d
at 1300 (holding that decision maker’s statements that he “didn’t want to hire any
old pilots” was direct evidence of age discrimination). Because Wilson’s and
Weaver’s comments were not connected to the decision to terminate Ritchie, those
comments are not direct evidence of age discrimination. See Van Voorhis, 512
F.3d at 1300. The other discriminatory remarks identified by Ritchie do not
constitute direct evidence because they were not made by the decision makers.
See Standard, 161 F.3d at 1330. Thus, the district court correctly concluded that
Ritchie had not presented direct evidence of age discrimination.
III.
As noted above, we review a district court’s grant of summary judgment de
novo, viewing the evidence in the light most favorable to the non-moving party.
See Weeks, 291 F.3d at 1311. We use the McDonnell Douglas burden-shifting
framework to evaluate ADEA claims that are based upon circumstantial evidence.
Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc). The
plaintiff must first establish a prima facie case of age discrimination. Id. The
burden of production then shifts to the employer to offer a legitimate,
nondiscriminatory reason for the challenged employment action. Id. The plaintiff
must then show that the proffered nondiscriminatory reason merely is a pretext for
11
unlawful age discrimination. Id.The plaintiff may demonstrate that an employer’s reason is pretextual by
identifying “such weaknesses, implausibilities, inconsistencies, incoherencies or
contradictions in the employer’s proffered legitimate reasons for its actions that a
reasonable factfinder could find them unworthy of credence.” Combs v.
Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997) (quotation omitted).
Rather than “simply quarreling with the wisdom of [the employer’s] reason,” the
plaintiff “must meet that reason had on and rebut it.” Chapman, 229 F.3d at 1030.
“The inquiry into pretext centers on the employer’s beliefs, not the employee’s
beliefs.” Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1266 (11th
Cir. 2010). When an employer asserts that it fired the plaintiff for poor
performance, it is not enough for the plaintiff to show that his performance was
satisfactory. Id. Rather, he must demonstrate that the employer did not believe
that his performance was lacking, and merely used that claim “as cover for
discriminating against [him] on account of [his age].” Id.A plaintiff may establish pretext by demonstrating that the employer has
offered inconsistent reasons for the challenged employment action. Tidwell v.
Carter Products, 135 F.3d 1422, 1428 (11th Cir. 1998). Nevertheless, the fact that
the employer offers an additional reason for the employment decision does not
12
suggest pretext if both of the employer’s reasons are consistent. Id.A plaintiff also can demonstrate pretext by showing that the decision maker
made discriminatory remarks. See Damon v. Fleming Supermarkets of Florida,
Inc., 196 F.3d 1354, 1362 (11th Cir. 1999) (holding that supervisor’s statement
that he wanted “aggressive, young men” like himself to be promoted was “highly
suggestive circumstantial evidence” of age discrimination). Such remarks are
evidence of pretext because they shed light on the decision maker’s state of mind
at the time that he made the challenged employment decision. Id. On the other
hand, stray remarks that are “isolated and unrelated to the challenged employment
decision” are insufficient to establish pretext. See Rojas v. Florida, 285 F.3d
1339, 1342-43 (11th Cir. 2002) (supervisor’s statement that another employee did
not deserve her job because she was a woman was not sufficient to show pretext).
A plaintiff can also show pretext by demonstrating that the employer did not
follow its normal procedures in terminating his employment. See Morrison v.
Booth, 763 F.2d 1366, 1374 (11th Cir. 1985) (“Departures from normal procedures
may be suggestive of discrimination.”). Other circuits have explained that, when
an employer has established a progressive discipline policy, a plaintiff may
establish pretext by showing that the policy was not followed in his case. See
Morris v. City of Chillicothe, 512 F.3d 1013, 1020 (8th Cir. 2008) (“Deviance
13
from a progressive discipline policy can be evidence of pretext”). Nevertheless, if
management has discretion as to whether to follow the discipline policy, then a
failure to follow the policy does not show pretext. See id. (holding that
employer’s failure to follow its discipline policy did not support a finding of
pretext because the employer specifically reserved the right to fire at-will
employees without a prior written warning); Fane v. Locke Reynolds, LLP, 480
F.3d 534, 541 (7th Cir. 2007) (holding that plaintiff could not establish pretext
based on employer’s failure to follow its discipline policy because the plaintiff did
not offer any evidence that the policy was “rigorously enforced,” and because the
policy contemplated immediate termination for certain offenses).
In this case, Ritchie failed to establish pretext. First, Industrial Steel did not
give inconsistent or shifting reasons for Ritchie’s termination. On the Friday after
the wall incident, MacCalla completed a termination notice indicating that Ritchie
was being fired for hitting the wall. After a further investigation, Wilson issued a
second notice indicating that Ritchie was being terminated for performance issues.
As the district court observed, the two termination notices simply reflect different
stages of the decision-making process. The fact that Wilson changed the reason
for terminating Ritchie after further investigation does not show pretext.
Ritchie contends that his alleged performance issues could not have been
14
the cause of his termination because the only person that Wilson spoke to before
completing the second termination notice was MacCalla, who considered Ritchie
to be a good employee. Wilson testified, however, that he also spoke with
Shinabarger and Chaney, and that they informed him that Ritchie’s performance
was substandard. Thus, Wilson was aware that Ritchie’s supervisors had issues
with his performance before he made the decision to terminate Ritchie.
Although Ritchie asserted that management never spoke with him regarding
his job performance, he did not directly dispute Industrial Steel’s assertions that he
distracted other employees through “excessive chatter” or took too long to perform
tasks. Industrial Steel also presented evidence that some customers complained
about Ritchie’s performance. Although Ritchie explained that the complaints
were meritless, he did not dispute the fact that they were received. If Industrial
Steel believed, even erroneously, that Ritchie’s work performance was lacking,
then the company had a non-discriminatory reason to terminate Ritchie’s
employment. See Alvarez, 610 F.3d at 1266.
In addition, Ritchie cannot show pretext based on the various derogatory
comments about his age. Most of the remarks that Ritchie cited were made by
employees or supervisors who did not play a role in the decision to terminate him.
With respect to statements made by the decision makers, Ritchie testified that
15
Weaver frequently referred to him as “old man,” and that Wilson made comments
about his age on one or two occasions. As noted above, Ritchie did not link those
statements to the decision to terminate his employment. There was no evidence
that Weaver or Wilson expressed a preference for younger employees or believed
that Ritchie could not perform the job because of his age. See Damon, 196 F.3d at
1362 (concluding that employer’s comment about wanting “aggressive, young
men” to be promoted was circumstantial evidence of age discrimination).
Weaver’s and Wilson’s general references to Ritchie’s age do not create a genuine
issue of fact as to whether age was the real reason for his termination.
Finally, even assuming that the company did not comply with its
progressive discipline policy in terminating Ritchie, Weaver testified that the
policy was not followed in every case. Therefore, the company’s failure to
conform to the policy in Ritchie’s case does not establish pretext. See Morris, 512
F.3d at 1020; Fane, 480 F.3d at 541. Because Ritchie did not establish that
Industrial Steel’s concerns about his job performance were pretextual, the district
court properly granted summary judgment in favor of Industrial Steel on his age
discrimination claims under the ADEA and the Florida Civil Rights Act.1
1
On appeal, Ritchie does not challenge the denial of his ERISA claim or the denial of his
motion for reconsideration. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330
(11th Cir. 2004) (noting that issues not raised on appeal are deemed abandoned).
16
Accordingly, we affirm.
AFFIRMED.
17