Carlyn Johnson v. Securitas Security Services

United States Court of Appeals
For the Eighth Circuit
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No. 12-2129
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Carlyn M. Johnson
lllllllllllllllllllll Plaintiff - Appellant
v.
Securitas Security Services USA, Inc.
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: January 15, 2014
Filed: October 7, 2014
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Before RILEY, Chief Judge, WOLLMAN, LOKEN, MURPHY, BYE, MELLOY,
SMITH, COLLOTON, GRUENDER, BENTON, SHEPHERD, and KELLY,
Circuit Judges, En Banc.
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BYE, Circuit Judge, with whom RILEY, Chief Judge, WOLLMAN, LOKEN,
MURPHY, COLLOTON, GRUENDER, BENTON, and SHEPHERD, Circuit Judges,
join, concurring.
After being fired from his position with Securitas Security Services USA, Inc.
(Securitas) at the age of seventy-six, Carlyn Johnson filed this age discrimination
claim under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-
634. The district court1 granted summary judgment in favor of Securitas, concluding
Johnson had not submitted sufficient evidence to raise questions of material fact
regarding a necessary element of a prima facie case of age discrimination. Johnson
now appeals. We affirm.
I
Johnson has worked as a security guard since the late 1990s. In 2003, when
the security firm then employing Johnson was bought out by Securitas, Johnson
applied to and was hired by Securitas. Johnson was seventy at the time. At Securitas,
Johnson worked as a utility security officer. In this role, he did not have a regular
schedule, post, or manager but was instead offered shifts by various Securitas
managers when they needed someone to fill in for security guards at the sites for
which each was responsible.
Johnson’s work history with Securitas was generally positive. He had a
reputation for being dependable and never refusing an offered shift, even when
accepting required Johnson to work multiple consecutive shifts. Robert Hesse, one
of Securitas’s field service managers, took to referring to Johnson by the nickname
“Superman” at least in part to reflect Johnson’s dependability.
Hesse, however, had concerns about Johnson’s ability to work long hours and
multiple consecutive shifts. Hesse talked to other Securitas field service managers on
multiple occasions, recommending against scheduling Johnson for shifts which would
cause him to work more than forty hours in a given week. On several occasions,
Hesse compared Johnson to Hesse’s retired father who, Hesse claimed, tried to take
1
The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
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on work beyond his capabilities. On other occasions, Hesse also commented to both
Johnson and Johnson’s wife that Johnson was “too old” to be working and it was
“time to hang up [Johnson’s] Superman cape and retire.”
One of Securitas’s clients in 2009 was Rail Logistics. Rail Logistics contracted
with Securitas for a security guard to patrol its site during two regular weekend shifts,
from 4:00 p.m. Saturdays to 8:00 a.m. Sundays, and from 4:00 p.m. Sundays to 6:00
a.m. Mondays. In the weeks leading up to the incident for which he was fired,
Johnson worked several shifts at Rail Logistics, some ending at 8:00 a.m. and some
ending at 6:00 a.m. The week before the shift for which he was fired, Johnson worked
the Saturday night to Sunday morning shift at Rail Logistics, which ended at 8:00 a.m.
Shortly after 5:30 a.m. on the morning of Sunday, January 25, 2009, while
Johnson was working a shift at the Rail Logistics site, the Securitas vehicle in which
Johnson was patrolling collided with a stationary semi-trailer. The collision damaged
the Securitas vehicle. Securitas has a policy which requires its employees to report
vehicle accidents as soon as possible. Securitas guards did not, however, have access
to a phone at the Rail Logistics site and Securitas had not provided Johnson with a cell
phone or radio. As a result, Johnson attempted to use his own cell phone to report the
collision to Securitas. Despite several tries, however, Johnson’s cell phone was
unable to get a strong enough signal to connect to the Securitas office.
Johnson remained on the site until approximately 7:00 a.m., whereupon he left
it to drive the damaged vehicle back to the Securitas office. Along the way, he
stopped to use his cell phone in another attempt to report the collision. At 7:02 a.m.,
Johnson reached Charlie Bunch, the Securitas field service manager on duty. Johnson
reported the collision and told Bunch the Rail Logistics shift was over and he was on
his way back to the Securitas office. Bunch, who was new to the shift and unfamiliar
with the time at which the Rail Logistics shift ended, told Johnson to drop off the
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Securitas vehicle and go home, indicating to Johnson he would call Johnson back to
the office if needed. Johnson did so.
Bunch went to the Securitas parking lot to assess the damage to the vehicle
Johnson had been driving. Bunch then began preparing an accident report, initially
indicating Johnson’s shift had ended at 7:00 a.m. Shortly after 8:00 a.m., Bunch
called Hesse, the manager responsible for the Rail Logistics account, to inform him
of the accident. Hesse informed Bunch the Rail Logistics shift had been supposed to
end at 8:00 a.m. instead of 7:00 a.m. Bunch changed the notation in his accident
report accordingly. After the call to Hesse, Bunch called Johnson back to the office
to take a blood test pursuant to Securitas policy.2 Johnson complied. Bunch then
called Sherri Parker, Securitas’s human resources manager for the region, to inform
her of the accident and Johnson’s possible early unauthorized departure from the Rail
Logistics site. The Securitas Security Officer Handbook lists unauthorized departure
from a job site as an offense for which Securitas may immediately terminate an
employee. The following morning, as part of the human resources investigation,
Parker conversed with both Hesse and Bunch about the incident. Parker originally
made notes of these conversations as a matter of personal habit, but destroyed the
notes sometime after Johnson was fired.
On Wednesday, January 28, 2009, Hesse called Johnson and told him to expect
a call from Parker. During this call, Hesse again commented to Johnson it was “time
to hang up [his] Superman cape and retire.” Shortly thereafter, Parker called Johnson.
During the call, she asked Johnson if he had been born in 1932. Parker then informed
Johnson his employment with Securitas had been terminated and asked him to come
to the Securitas office to answer questions about the accident. Johnson responded,
saying he would not return to the office as he had been fired. Parker then obtained
2
Securitas also requires employees who have been in an accident to participate
in its resulting investigation, which Securitas requires commence within four hours
of the accident in order to capture evanescent evidence such as blood-alcohol content.
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Johnson’s answers to her questions over the phone. Securitas did not hire anyone to
replace Johnson.
In the months which followed, Johnson filed several complaints with
Securitas’s in-house hotline, claiming his firing had been the result of mistake and age
discrimination. Johnson ultimately filed this suit. After discovery, Securitas moved
for summary judgment. The district court granted the motion, concluding Johnson
had failed to raise genuine questions of material fact regarding a necessary element
of a prima facie case of age discrimination. The district court also held, in the
alternative, Johnson had failed to submit sufficient evidence to raise a genuine
question of material fact regarding whether Securitas’s stated reasons for terminating
Johnson had been pretext for age discrimination.
Johnson appealed, arguing the district court erred by granting Securitas
summary judgment. A divided panel of this court reversed. The full court
subsequently granted Securitas’s petition for rehearing en banc.
II
On appeal, Johnson contends the district court erred in granting Securitas
summary judgment, offering a number of arguments he has submitted sufficient
evidence to raise genuine questions of material fact regarding each of the elements of
his age discrimination claim.3 We review a grant of summary judgment de novo and
may affirm the judgment of the district court on any basis supported by the record.
Hohn v. BNSF Ry. Co., 707 F.3d 995, 1000 (8th Cir. 2013) (citing St. Martin v. City
of St. Paul, 680 F.3d 1027, 1032 (8th Cir. 2012)). Like the district court, we give the
3
Johnson also argues the district court failed to view the evidence in the light
most favorable to him as the non-moving party. We agree there are some instances
in which the district court viewed conflicting evidence in a light more favorable to
Securitas. The facts viewed in the light most favorable to Johnson are listed above.
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nonmoving party the benefit of all reasonable inferences which may be drawn without
resorting to speculation. Chappell v. Bilco Co., 675 F.3d 1110, 1114 (8th Cir. 2012)
(citations omitted).
Employment discrimination claims in cases where, as here, there is no direct
evidence of discrimination, are considered under the burden shifting analysis set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Gibson v. Am.
Greetings Corp., 670 F.3d 844, 855 (8th Cir.), cert. denied, 133 S. Ct. 313 (2012).
Under this framework, a plaintiff must first establish a prima facie case of age
discrimination, which, if sufficiently alleged, creates a presumption the employer
engaged in unlawful discrimination. Ridout v. JBS USA, LLC, 716 F.3d 1079, 1083
(8th Cir. 2013) (citations omitted). Establishing a prima facie case also shifts the
burden to the employer to articulate a legitimate, nondiscriminatory reason for its
actions. Id. If the employer carries its burden, the presumption is eliminated and the
burden shifts back to the employee, who must then prove the employer’s asserted
reason was merely pretext for discrimination. Id. To survive summary judgment, an
employee must both discredit the employer’s articulated reason and demonstrate the
“circumstances permit a reasonable inference of discriminatory animus.” Gibson, 670
F.3d at 856 (quoting Haigh v. Gelita USA, Inc., 632 F.3d 464, 470 (8th Cir. 2011)).
An employee’s attempt to prove pretext requires more substantial evidence of
discrimination than required to make a prima facie case because we view this evidence
in light of the reasons articulated by the employer. Jones v. United Parcel Serv., Inc.,
461 F.3d 982, 992 (8th Cir. 2006) (citing Sprenger v. Fed. Home Loan Bank of Des
Moines, 253 F.3d 1106, 1111 (8th Cir. 2001)). Ultimately, the employee must show
that age was the “but-for” cause of the adverse employment action. Haigh, 632 F.3d
at 468.
Assuming for the sake of argument Johnson has sufficiently alleged a prima
facie case of age discrimination, we conclude he has failed to introduce sufficient
evidence to raise a genuine question of material fact regarding the third phase of the
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McDonnell Douglas analysis. In this case, Securitas has articulated legitimate,
nondiscriminatory reasons for terminating Johnson’s employment, namely Johnson’s
early unauthorized departure from the Rail Logistics site and delay in reporting his
accident there. Accordingly, to survive summary judgment, Johnson must have
submitted sufficient evidence to raise genuine questions of material fact whether
Securitas’s articulated reasons were merely pretext for age discrimination.
Johnson offers a number of arguments to support his position the evidence he
submitted is sufficient to survive Securitas’s summary judgment motion. Johnson
points to (1) his assertion he did not leave the site early; (2) Hesse’s age-related
comments; (3) Parker’s knowledge of Johnson’s age; (4) Securitas’s disparate
treatment of Johnson; (5) Securitas’s shifting explanations for terminating Johnson’s
employment; (6) Parker’s spoliation of evidence; and (7) the record as a whole.
Early departure. Johnson first contends there is a question of fact whether he
actually left the Rail Logistics site early. In support, Johnson points to evidence
indicating he may not have left the Rail Logistics site until after 7:00 a.m. and that
Bunch initially acknowledged the shift ended at 7:00. Although the exact time
Johnson left the site is relevant, the question it raises here is not material. “Our
precedent establishes that the ‘critical inquiry in discrimination cases like this one is
not whether the employee actually engaged in the conduct for which he was
terminated, but whether the employer in good faith believed that the employee was
guilty of the conduct justifying discharge.’” Pulczinski v. Trinity Structural Towers,
Inc., 691 F.3d 996, 1002 (8th Cir. 2012) (quoting McCullough v. Univ. of Ark. for
Med. Scis., 559 F.3d 855, 861-62 (8th Cir. 2009)). The record indicates Securitas
relied on internal documents, including the time sheets of officers who had worked the
pertinent Rail Logistics shift and its contract with Rail Logistics, when determining
whether Johnson left the Rail Logistics site early. Those documents indicate the end
time for the pertinent shift was 8:00 a.m. Nothing in the record creates a question
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whether the decision makers had a good faith belief Johnson had left his post early by
leaving the site before 8:00 a.m.
Hesse’s comments. The sole evidence of age animus in the record consists of
Hesse’s age-related comments. Johnson links those comments to his termination on
the basis of Securitas’s answer to an interrogatory indicating Hesse was one of three
people who together made the decision to terminate his employment. In essence,
Johnson asks the court to infer Hesse prevailed on Bunch and Parker to take advantage
of Johnson’s early unauthorized departure from the Rail Logistics site and delay in
reporting the accident to fire Johnson because of his age. Because Hesse had
previously discussed Johnson’s age with other Securitas managers, it would be
reasonable to infer Hesse spoke to Bunch and Parker about Johnson’s age. Under the
relatively minimal threshold required to establish a prima facie case, this could raise
a question whether age was a factor in Johnson’s termination.
At the pretext stage, however, we must view the evidence of pretext in light of
the legitimate, nondiscriminatory reasons articulated by Securitas. Jones, 461 F.3d
at 992. In this light, Hesse was but one of three people making the decision to
terminate Johnson’s employment, each of whom believed Johnson had engaged in at
least one terminable offense by leaving the Rail Logistics site early without
authorization to do so. Even viewing the evidence in the light most favorable to
Johnson, the court would be required to speculate to assume Hesse prevailed on
Parker and Bunch to take advantage of the terminable offense to fire Johnson because
of his age. Accordingly, the evidence of Hesse’s comments is not sufficient to raise
genuine questions of material fact regarding whether Securitas’s stated reasons were
pretext or whether age was the “but-for” reason for Johnson’s termination.
Parker. Johnson also points to Parker being aware of his age when she
informed him his employment had been terminated. Similar to Hesse’s history of
making age-related comments, Parker’s awareness of Johnson’s age would merit a
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reasonable inference Hesse had discussed Johnson’s age with her after the incident.
As we have noted, under the relatively minimal threshold necessary to establish a
prima facie case this could be sufficient to raise a question of fact whether age was a
factor in Johnson’s determination. Viewing the evidence in light of Securitas’s
articulated reasons for terminating Johnson’s employment, however, Parker’s mere
awareness of Johnson’s age is not sufficient to raise genuine questions of material fact
with regards to whether Securitas’s reasons were pretext or whether age was the “but-
for” reason for Johnson’s termination.
Disparate treatment. The record indicates Securitas has not fired any other
employee for the reasons it fired Johnson. Johnson argues this merits an inference he
was, therefore, treated differently from other similarly situated employees. On this
record, however, the inference is unreasonable. At the pretext stage, the test for
whether someone is sufficiently similarly situated, as to be of use for comparison, is
rigorous. See Bone v. G4S Youth Servs., LLC, 686 F.3d 948, 956 (8th Cir. 2012),
cert. denied, 133 S. Ct. 1252 (2013). “[Johnson] must show that [he] and the
employees outside of [his] protected group were ‘similarly situated in all relevant
respects.’” Id. (quoting Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 853 (8th Cir.
2005)). “[I]ndividuals used for comparison must have dealt with the same supervisor,
have been subject to the same standards, and engaged in the same conduct without any
mitigating or distinguishing circumstances.” Id. (quoting Clark v. Runyon, 218 F.3d
915, 918 (8th Cir. 2000)). To make the inference Johnson asserts reasonable, Johnson
would need evidence of a younger Securitas employee who engaged in the same
conduct as Johnson, i.e., an unauthorized departure from a job site coinciding with a
failure to report a vehicle accident in a timely manner, but who received more lenient
discipline. Johnson points to no such evidence. Accordingly, the mere fact Securitas
has not fired any other employee for the reasons it fired Johnson does not on this
record raise a genuine question of material fact regarding whether Johnson was treated
differently than other employees.
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Changing rationales. Johnson next contends he has raised a genuine question
of material fact whether Securitas’s articulated reasons were pretext, arguing Securitas
has repeatedly changed the reasons it has given for his termination. “A change in an
employer’s legitimate, nondiscriminatory reason for firing an employee is probative
of pretext only if the discrepancy is ‘substantial.’” Id. at 957 (citing Twiggs v. Selig,
679 F.3d 990, 994 (8th Cir. 2012)). The changes in the rationales asserted by
Securitas are, however, not substantial. Throughout the course of Johnson’s pursuit
of his claim, Securitas has maintained the primary reason it terminated Johnson was
his early unauthorized departure from the job site, with the secondary reason being
Johnson’s delay in reporting the accident. As Johnson has pursued his claim, various
Securitas employees have occasionally articulated additional reasons for Johnson’s
termination. When doing so, however, the employees did not deviate from the reasons
originally articulated by Securitas. Further, the additional asserted reasons have
generally been alternate ways of stating the original reasons offered by Securitas. See
Elam v. Regions Fin. Corp., 601 F.3d 873, 881 (8th Cir. 2010) (noting an employer
may elaborate on its proffered explanation for an adverse employment action). The
changes pointed to by Johnson are not substantial enough to be probative of whether
Securitas’s articulated reasons for terminating his employment are pretext.
Spoliation. Johnson next contends he was entitled to an inference that Parker’s
destroyed personal notes contained information favorable to his position, arguing the
district court should have considered the contents of the notes sufficient evidence to
survive summary judgment. “We review for abuse of discretion the district court’s
decision whether to draw an adverse inference based on destruction of evidence.”
Johnson v. Ready Mixed Concrete Co., 424 F.3d 806, 811 (8th Cir. 2005) (citing
Stevenson v. Union Pac. R.R. Co., 354 F.3d 739, 745 (8th Cir. 2004)). An adverse
inference from the destruction of evidence arises only when the destruction is
intentional and indicates a desire to suppress the truth. Stevenson, 354 F.3d at 746
(citations omitted). Johnson presented no evidence that Parker engaged in intentional
destruction with a desire to suppress the truth. His argument, accordingly, fails.
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Record as a whole. At the last, Johnson contends the record as a whole contains
questions of material fact sufficient for him to survive Securitas’s summary judgment
motion. We disagree. For the reasons we have already discussed, the separate aspects
of the record Johnson focuses on in his specific arguments do not raise genuine
questions of material fact regarding whether Securitas’s asserted reasons for
terminating him were pretext or whether age was the “but-for” reason for his
termination. Johnson’s argument regarding the record as a whole is merely an
amalgamation of the arguments we have already found unavailing.
For the foregoing reasons, the district court did not err in granting Securitas
summary judgment.
III
The judgment of the district court is affirmed.
SMITH, Circuit Judge, with whom MELLOY and KELLY, Circuit Judges, join,
concurring in part and dissenting in part.
I concur in the majority's reasoning to the extent that it concludes that Carlyn
Johnson submitted sufficient evidence to raise genuine issues of material fact about
each element of a prima facie case of age discrimination. I also agree that Securitas
articulated legitimate, nondiscriminatory reasons for terminating Johnson's
employment. But, unlike the majority, I find that Johnson has "adduce[d] enough
admissible evidence to raise genuine doubt as to the legitimacy of [Securitas's] motive,
even if that evidence did not directly contradict or disprove [Securitas's] articulated
reasons for its actions." Davenport v. Riverview Gardens Sch. Dist., 30 F.3d 940, 945
n.8 (8th Cir. 1994) (citation omitted). Because "genuine issue[s] of material fact
concerning pretext" exist, summary judgment is an inappropriate disposition. Hase v.
Mo. Div. of Emp't Sec., 972 F.2d 893, 896 (8th Cir. 1992). Accordingly, I respectfully
dissent from the majority's decision to affirm the decision of the district court.
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"'Summary judgment is proper if, after viewing the evidence and drawing all
reasonable inferences in the light most favorable to the nonmovant, no genuine issues
of material fact exist and the movant is entitled to judgment as a matter of law.'"
Johnson v. Carroll, 658 F.3d 819, 825 (8th Cir. 2011) (quoting Hayek v. City of St.
Paul, 488 F.3d 1049, 1054 (8th Cir. 2007)). "A dispute about a material fact is genuine
if the evidence is such that a reasonable trier of fact could return a decision in favor
of the party opposing summary judgment." Commercial Union Ins. Co. v. Schmidt,
967 F.2d 270, 272 (8th Cir. 1992) (citing Anderson v. Liberty Lobby, 477 U.S. 242,
248 (1986)).We review a district court's grant of summary judgment de novo. Carroll,
658 F.3d at 825.
Credibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not
those of a judge, whether he is ruling on a motion for summary judgment
or for a directed verdict. The evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.
Anderson, 477 U.S. at 255 (citation omitted).
Because Securitas put forth a legitimate, nondiscriminatory reason for
terminating Johnson's employment, Johnson must demonstrate "'that [Securitas's]
proffered explanation is pretextual or his claims will fail.'" Anderson v. Durham
D&M, L.L.C., 606 F.3d 513, 521 (8th Cir. 2010) (quoting Humphries v. Pulaski Cnty.
Special Sch. Dist., 580 F.3d 688, 692 (8th Cir. 2009)). Johnson satisfies this burden
by producing "'enough admissible evidence to raise genuine doubt as to the legitimacy
of [Securitas's] motive.'" Id. (quoting Sprenger, 253 F.3d at 1110). The majority
compartmentalizes each of Johnson's arguments and then summarily dismisses
Johnson's contention that the record as a whole contains questions of material fact
sufficient for him to survive Securitas's summary judgment motion. In doing so, the
majority has missed the proverbial forest for the trees.
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Construing the facts in the light most favorable to Johnson—as we
must—shows that Johnson has "adduce[d] enough admissible evidence to raise
genuine doubt as to the legitimacy of [Securitas's] motive, even if that evidence did
not directly contradict or disprove [Securitas's] articulated reasons for its actions."
Davenport, 30 F.3d at 945 n.8 (citation omitted).
Hesse, Johnson's supervisor, told Johnson on several occasions over a three-
year period that Johnson "needed to hang up his Superman cape." Johnson understood
Hesse's comment to mean that Johnson "was worn out and . . . shouldn't be working."
Hesse "also said [that Johnson] was too old to be working." On one occasion, when
Johnson's wife called Hesse to advise him that her husband was in the hospital, Hesse
commented that Johnson "should retire," "was 'too old' to continue working," and
"'needed to hang up his Superman cape and retire.'"
Hesse also compared Johnson to Hesse's retired father, who was in his 80's at
the time of Johnson's termination. Hesse told Johnson that Hesse's father "tried to
work, do more than [he] could do." Hesse testified that he made the comparison to his
father in response to Johnson's acceptance of more work as a utility officer with
Securitas. Johnson testified that Hesse "always referenced to his own father who was
86 [and] had to quit [work], and now Bob [Hesse] had to take care of him. He said,
'You ought to do the same thing. Just drop everything.'"
Hesse admitted to telling field service managers, including Bunch, that Johnson
"needed to hang up his cape" and that Johnson was "working past his limitations."
Hesse also suggested to other managers that they "prevent [Johnson] from working
50, 60 hours a week." Johnson brought Hesse's comments to his supervisors' attention,
including Hesse himself and Bunch.
Prior to Johnson's termination, Hesse called Johnson and told him that Hesse
had talked with Parker. Hesse told Johnson "that [Hesse] thought [Johnson] should
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hang up [his] cape and retire or go home." Hesse provided Johnson with Parker's
telephone number, told Johnson that he had talked with Parker, and advised Johnson
that Parker was going to call Johnson.
In a subsequent phone call with Parker, Johnson was terminated. In response
to an interrogatory, Securitas stated that Parker, Bunch, and Hesse participated in the
decision to terminate Johnson. Parker testified that she did not know how old Johnson
was at the time of his termination. Johnson testified, however, that Parker was aware
of his age and confirmed Johnson's birth year during the phone call when she
terminated Johnson. Whether Parker knew Johnson's age at the time of his termination
goes to Parker's credibility—a determination that a jury—not judge—must make. See
Anderson, 477 U.S. at 255. If Parker's statement that she did not know Johnson's age
at the time of termination is demonstrably false, then a reasonable factfinder could
conclude that Johnson was not credible and draw a reasonable inference that Parker's
motivation in agreeing to Johnson's termination was age related. See Hitt v. Harsco
Corp., 356 F.3d 920, 923-24 (8th Cir. 2004) ("Like the district court, we give the
non-moving party the benefit of reasonable inferences that may be drawn without
resorting to speculation.").
In sum, construing the facts in the light most favorable to Johnson, the record
shows that Hesse, Parker, and Bunch collectively decided to terminate Johnson's
employment. Decisionmaker Hesse repeatedly made disparaging, age-related
comments about Johnson, including telling Johnson just prior to his termination that
he should "hang up [his] cape and retire or go home." A factfinder could reasonably
conclude that decisionmaker Hesse sought to terminate Johnson because of his age.
As the majority admits, "Because Hesse had previously discussed Johnson's age
with other Securitas managers, it would be reasonable to infer Hesse spoke to Bunch
and Parker about Johnson's age." See Part II, supra. But the majority's analysis stops
short. The ultimate question is not whether Hesse spoke to Bunch and Parker about
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Johnson's age but what effect Hesse's repeated, derogatory comments about Johnson's
age had on his fellow decisionmakers. Hesse made the disparaging, age-related
comments to Johnson and other managers, including decisionmaker Bunch.
Additionally, Hesse informed Johnson that he should retire shortly after speaking with
decisionmaker Parker. Did Parker really not know Johnson's age at the time of his
termination? How much did Hesse influence Bunch's and Parker's decision to
terminate Johnson? On this record, these questions are for a jury to decide, not this
court. See Anderson, 477 U.S. at 255.
Accordingly, I respectfully dissent from the majority's conclusion that genuine
issues of material fact concerning pretext do not exist and would reverse the district
court's grant of summary judgment in Securitas's favor.
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