United States District Court, D. Nebraska
EDWARD K. MILLS, Plaintiff,
HASTINGS UTILITIES, Defendant.
MEMORANDUM AND ORDER
C. Buescher United States District Judge
matter comes before the Court on Defendant's Motion for
Summary Judgment as to Plaintiff's single remaining claim
for age discrimination under the federal Age Discrimination
in Employment Act (“ADEA”). 29 U.S.C. § 621
et seq. Filing 29. Defendant, Hastings Utilities,
directs and supervises the City of Hastings's water and
sewer departments, electrical generation and distribution
system, and natural gas distribution system. Filing 31-8
at 1. Plaintiff, Edward Mills (“Mills”), was
an employee of Hastings Utilities from August 3, 2009, to
March 6, 2017. Filing 31-8 at 2-5. Plaintiff filed a
complaint in the District Court of Adams County, Nebraska, on
October 2, 2018. Filing 1-1 at 1. In his Complaint,
Plaintiff brought four causes of action. Filing 1-1 at
4-6. Defendant removed the case to this Court on
November 1, 2018. Filing 1. Thereafter, Defendant
filed two motions to dismiss, which affected three of
Plaintiff's causes of action. Filing 4.
Filing 13. Chief Judge Gerrard granted those
motions, leaving Plaintiff with one remaining cause of action
under the ADEA. Filing 16. In this remaining count,
Plaintiff alleges discrimination based on his age because he
was not hired for one of two shift supervisor positions at
Hastings Utilities. Filing 31-7 at 8-9.
began working for Hastings Utilities on August 3, 2009.
Filing 31-8 at 2. During his time employed by
Hastings Utilities, Plaintiff held three different positions
ending with control room operator. Filing 31-3 at 1.
In June of 2015, Plaintiff told his shift supervisor that he
was “incompetent” and “that he didn't
know what he was doing.” Filing 33-2 at 11.
According to Plaintiff, this display happened in a
“very public manner.” Filing 33-2 at 11.
Plaintiff also said that if someone makes a mistake the same
shift supervisor throws them under the bus and blames them
instead of standing up for them. Filing 33-2 at 11.
Defendant counseled Plaintiff for this incident. Filing
33-2 at 11. Defendant also required Plaintiff to sign a
performance review that was mostly positive but indicated
that “[Mills] needs to cooperate with the shift
foreman. Be more professional in handling personal
conflicts.” Filing 31-4 at 1. In addition,
Defendant counseled Plaintiff for playing games on his
cellphone. Filing 33-2 at 11.
than a year after the mostly positive performance review,
Defendant posted two open shift foreman positions within
Hastings Utilities on June 16, 2016. Filing 31-8 at
2. Plaintiff applied for one of the two shift foreman
positions on June 28. Filing 31-8 at 2. At the time
of his application, Plaintiff was forty-nine years old.
Filing 31-8 at 4. A total of eight internal
candidates were interviewed for the two open positions.
Filing 31-8 at 3. Of the eight candidates, three
were called back for a second interview. Filing 31-8 at
3. Plaintiff was not interviewed a second time and
ultimately not hired for either of the two open shift foreman
positions. Filing 31-8 at 3-4. The two individuals
who were hired for the shift foreman positions were younger
than Plaintiff. Nathan Cummins (“Cummins”) and
Shane Stone (“Stone”) were forty-three and
thirty-two years old, respectively, when they were selected
for the positions. Filing 31-8 at 3-4. On March 6,
2017, Defendant ended Plaintiff's employment with
Hastings Utilities. Filing 31-8 at 4.
STANDARD OF REVIEW
judgment is appropriate when the evidence, viewed in the
light most favorable to the nonmoving party, presents no
genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.” Garrison
v. ConAgra Foods Packaged Foods, LLC, 833 F.3d 881, 884
(8th Cir. 2016) (citing Fed.R.Civ.P. 56(c)). “[S]ummary
judgment is not disfavored and is designed for every
action.” Briscoe v. Cty. of St. Louis, 690
F.3d 1004, 1011 n.2 (8th Cir. 2012) (internal quotation marks
omitted) (quoting Torgerson v. City of Rochester,
643 F.3d 1031, 1043 (8th Cir. 2011) (en banc)). In reviewing
a motion for summary judgment, the Court will view “the
record in the light most favorable to the nonmoving party . .
. drawing all reasonable inferences in that party's
favor.” Whitney v. Guys, Inc., 826 F.3d 1074,
1076 (8th Cir. 2016) (citing Hitt v. Harsco Corp.,
356 F.3d 920, 923-24 (8th Cir. 2004)). Where the nonmoving
party will bear the burden of proof at trial on a dispositive
issue, Fed.R.Civ.P. “56(e) permits a proper summary
judgment motion to be opposed by any of the kinds of
evidentiary materials listed in Rule 56(c), except
the mere pleadings themselves.” Se. Mo.
Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 618 (8th Cir.
2011) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986)). The moving party need not produce evidence
showing “an absence of a genuine issue of material
fact.” Johnson v. Wheeling Mach. Prods., 779
F.3d 514, 517 (8th Cir. 2015) (quoting Celotex, 477
U.S. at 325). Instead, “the burden on the moving party
may be discharged by ‘showing' . . . that there is
an absence of evidence to support the nonmoving party's
case.” St. Jude Med., Inc. v. Lifecare Int'l,
Inc., 250 F.3d 587, 596 (8th Cir. 2001) (quoting
Celotex, 477 U.S. at 325).
response to the moving party's showing, the nonmoving
party's burden is to produce “specific facts
sufficient to raise a genuine issue for trial.”
Haggenmiller v. ABM Parking Servs., Inc., 837 F.3d
879, 884 (8th Cir. 2016) (quoting Gibson v. Am. Greetings
Corp., 670 F.3d 844, 853 (8th Cir. 2012)). The nonmoving
party “must do more than simply show that there is some
metaphysical doubt as to the material facts, and must come
forward with specific facts showing that there is a genuine
issue for trial.” Wagner v. Gallup, Inc., 788
F.3d 877, 882 (8th Cir. 2015) (quoting Torgerson,
643 F.3d at 1042). “[T]here must be more than
‘the mere existence of some alleged factual
dispute'” between the parties in order to overcome
summary judgment. Dick v. Dickinson State Univ., 826
F.3d 1054, 1061 (8th Cir. 2016) (quoting Vacca v. Viacom
Broad. of Mo., Inc., 875 F.2d 1337, 1339 (8th Cir.
single remaining cause of action alleges a “failure to
promote” charge in violation of the ADEA. After
examining the record, the parties' briefs, and relevant
case law, the Court finds Defendant is entitled to judgment
as a matter of law on Mills's claim as discussed below.
ADEA restricts employers that are engaged in an industry
affecting commerce, and that employ twenty or more employees,
from discriminating against employees who are forty years of
age or older with respect to their “compensation,
terms, conditions, or privileges of employment, because of
such individual's age.” 29 U.S.C. § 623(a)(1).
A plaintiff may establish intentional age discrimination
under the ADEA by presenting either direct evidence of
discrimination or circumstantial evidence which triggers the
McDonnell Douglas burden-shifting analysis.
Aulick v. Skybridge Americas,
Inc., 860 F.3d 613, 620 (8th Cir. 2017). “[D]irect
evidence is evidence showing a specific link between the
alleged discriminatory animus and the challenged decision,
sufficient to support a finding by a reasonable fact finder
that an illegitimate criterion actually motivated the adverse
employment action.” Id. (citing Carraher
v. Target Corp., 503 F.3d 714, 716 (8th Cir. 2007).
Under McDonnell Douglas, the plaintiff must
establish a prima facie case of discrimination which requires
the plaintiff to show he (1) was at least forty years old;
(2) was qualified for the position in question; (3) suffered
an adverse employment action; and (4) was rejected for or
treated less favorably than someone sufficiently younger to
permit the inference of age discrimination. Id. at
620-21; Onyiah v. St. Cloud State Univ., 684 F.3d
711, 719 (8th Cir. 2012). If the plaintiff succeeds, the
“employer must articulate a legitimate,
nondiscriminatory reason for the adverse employment
action.” Aulick, 860 F.3d at 621. “If
the employer meets this burden, then the plaintiff must prove
by a preponderance of the evidence that the legitimate
reasons offered by the defendant were not its true reasons,
but were a pretext for discrimination.” Id. at
620. Ultimately, age must have been the but-for cause of
the employment decision for an ADEA claim. Hilde v. City
of Eveleth, 777 F.3d 998, 1003 (8th Cir. 2015).
case, there is no evidence of direct discrimination so the
Court must focus on the McDonnell Douglas analysis.
The Court need not engage in a detailed analysis to determine
Plaintiff could make a prima facie case under the
McDonnell Douglas analysis. Assuming without
deciding that Mills can establish a prima facie case,
Defendant has articulated legitimate, nondiscriminatory
reasons for not promoting Mills. Specifically, Mills had
issues with his supervisor and received a lower score in his
interview. There is no evidence that Cummins and Stone had
any similar issues and they received higher scores than Mills
in their interviews for the position.
employer is properly entitled to judgment as a matter of law
“if the record conclusively reveal[s] some other,
nondiscriminatory reason for the employer's
decision.” Cha v. Henderson,258 F.3d 802, 805
n.3 (8th Cir. 2001) (quoting Reeves v. Sanderson Plumbing
Prods., Inc.,530 U.S. 133, 148, 120 S.Ct. 2097, 147
L.Ed.2d 105 (2000)). In this case, it appears Plaintiff was
not wholly disqualified from the shift foreman position. He
appeared to have sufficient education and experience to
adequately fill the position. See generallyFiling 31-3. However, second-guessing an
employer's management decisions is outside the purview of
this Court. We have oft repeated the maxim that the
“federal courts do not sit as super-personnel
departments” assessing the business judgments made by
employers. See, e.g., Wilking v. Cty. of
Ramsey,153 F.3d 869, 873 (8th Cir. 1998).
Instead, the courts address “[t]he ultimate question in
every employment discrimination case involving a ...