Donald D. Ostertag v. Historic Theater

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-2737
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Donald E. Ostertag, *
*
Plaintiff-Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
The Historic Theater Group, Ltd., *
* [UNPUBLISHED]
Defendant-Appellee. *
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Submitted: May 12, 2000
Filed: June 7, 2000
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Before McMILLIAN, BRIGHT, and WOOD,1 Circuit Judges.
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PER CURIAM.
After he was passed-over in favor of younger job candidates, Donald E. Ostertag
("Ostertag") sued The Historic Theater Group, Ltd. ("HTG") and alleged a violation of
the Age Discrimination and Employment Act of 1967, 29 U.S.C. § 621 et seq.
("ADEA"). On summary judgment, the district court dismissed Ostertag's complaint
because HTG offered nondiscriminatory reasons for discharging Ostertag, and he, in
turn, failed to show that those reasons were pretextual. Ostertag appeals. We affirm.
1
The Honorable Harlington Wood, Jr., United States Circuit Judge for the
Seventh Circuit, sitting by designation.
Ostertag is a sixty-one-year-old man. Since 1966, as a member of the
International Alliance of Theatrical Stage Employees (the "Union")2, he has worked in
numerous theatrical productions as a stagehand and department head—supervising
carpenters, electricians, and props. HTG manages the Historic State and Orpheum
Theaters ("Theaters") in Minneapolis, Minnesota.
Ostertag applied for positions as an operations assistant for various shows to be
produced at the Theaters. Although HTG selected six applicants, it rejected Ostertag.
Of the six individuals hired by HTG to fill the operations assistant positions, only one
was over forty years of age at the time of hiring. In addition, Ostertag had more stage
and theatrical work experience than any of the individuals hired by HTG. Thus,
Ostertag brought suit contending HTG discriminated against him because of his age,
in violation of the provisions of the ADEA.
In granting summary judgment for HTG, however, the district court, among other
evidence, quoted, and credited, the affidavit testimony of HTG's president, Herbert
Frederick Krohn, Jr. as follows:
Based on these incidents and complaints, as well as my own
observations that Mr. Ostertag was often argumentative, temperamental
and disruptive, and had problems working with his fellow stagehands and
clients, I decided that Mr. Ostertag did not fulfill the criteria for the
Operations Assistant positions. In particular, I did not believe that Mr.
Ostertag had the ability to interface with theater clients in a professional
and problem-solving way, nor work with the current operations managers
2
Previously, the Union had provided stagehands and department heads for
theatrical productions. Ostertag, as a senior union member, filled many of the positions
as operations assistant on assignment from the Union. A new union contract in late
1994 permitted HTG to hire full-time positions as operations assistants. The
controversy with Ostertag arose in the filling of these positions.
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and operations assistants as a member of an effective and cohesive team.
Dist. Ct. Op. at 7. On this affidavit and other corroborating evidence, the district court
concluded HTG had articulated a legitimate, nondiscriminatory reason for selecting
others instead of Ostertag.
Further, the district court determined that Ostertag provided no evidence to
establish pretext in the employer's decision. The district court observed:
Plaintiff does not present evidence sufficient to challenge directly the
basis for or the validity of Defendant's proffered reason for the adverse
employment action. To the contrary, Plaintiff does not deny engaging in
the "argumentative, temperamental and disruptive" behavior upon which
Defendant bases its conclusion that he lacks "ability to interface with
theatre clients in a professional and problem-solving way" and the ability
to work "as a member of an effective and cohesive team." Rather than
presenting evidence to refute the foundation for HTG's proffered reason
for failing to hire Plaintiff, Plaintiff attempts to minimize the altercations
and "inappropriate" behavior that comprise such foundation.
Dist. Ct. Op. at 14.
Ostertag asserts that, as a member of the Union, he has rendered excellent
services for theatrical productions and that his occasional temperamental episodes
should not disqualify him from serving as the operations assistant for HTG. Ostertag's
assertion relates to a business judgment—which is the prerogative of the employer to
make—and is not a matter for the courts to overturn. See Slathar v. Sather Trucking
Corp., 78 F.3d 415 (8th Cir. 1996); Walker v. AT & T Techs., 995 F.2d 846 (8th Cir.
1993).
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Our review reveals no error of fact or law. Accordingly, we affirm for the
reasons set forth by United States District Judge Michael J. Davis in his well-reasoned
and well-documented opinion.
Affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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