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Mills v. Hastings Utilities

United States District Court, D. Nebraska

January 2, 2020

EDWARD K. MILLS, Plaintiff,
v.
HASTINGS UTILITIES, Defendant.

          MEMORANDUM AND ORDER

          Brian C. Buescher United States District Judge

         I. INTRODUCTION

         This 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.

         II. BACKGROUND

         Plaintiff 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.

         Less 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.

         III. STANDARD OF REVIEW

         “Summary 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).

         In 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. 1989)).

         IV. DISCUSSION

         Mills's 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.

         The 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).

         In this 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.

         An 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 ...


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