October 7, 2014
Link to Eighth Circuit Court of Appeals Opinion
Johnson, a security guard, filed an age discrimination claim
against employer, Securitas Security Services (Securitas), after he was fired
for leaving a shift early after he collided with a parked semi-trailer while
driving a Securitas vehicle. Previously,
a Securitas manager had made age-related comments to and about Johnson,
recommending retirement or a lessened workload.
The district court granted summary judgment for Securitas, concluding
Johnson failed to submit sufficient evidence to raise questions of material
fact on a necessary element of the prima facie case of age discrimination, and,
alternatively, that there was failure to raise a genuine question of material
fact regarding Securitas's reasons being merely pretext for age
discrimination. On appeal, the Court of
Appeals for the Eighth Circuit held there was sufficient evidence to raise a
genuine question of material fact regarding the initial prima facie necessary
element of the claim, but that there was not sufficient evidence submitted to
raise a genuine question of material fact regarding Securitas's stated reasons
for dismissal of Johnson being a pretext for age discrimination, thus affirming
the district court's holding for summary judgment.
I. Facts and Holding
Carlyn Johnson was a security guard for Securitas Security
Services, Inc. (Securitas) since 2003.[1] Johnson had generally been a good worker for
Securitas, having a reputation for being dependable, working multiple
consecutive shifts, and earning the nickname "Superman" from
Securitas manager, Robert Hesse.[2] Despite Hesse's admiration of Johnson's work
ethic, Hesse had concerns about Johnson's ability to work long hours and
consecutive shifts, enough so that he recommended to other Securitas managers
that Johnson not be scheduled for shifts which would push Johnson over forty
hours a week.[3] Hesse also compared Johnson to Hesse's
retired father, who Hesse thought had tried to take on more work than he was
capable of, and commented to Johnson that he "hang up [the] Superman cape
and retire."[4]
On Sunday, January 25, 2009, Johnson was working at one of
Securitas's clients, Rail Logistics.[5] The vehicle in which Johnson was patrolling
collided with a stationary semi-trailer and damaged the Securitas vehicle.[6] Securitas's policy required its employees to
report vehicle accidents as soon as possible, and Johnson attempted to use his
own cell phone to report the collision to Securitas but was unable to get a
strong enough cell signal to connect to the Securitas office.[7] Johnson stayed at Rail Logistics until about
7:00 a.m., when he left and drove the damaged vehicle back to the Securitas
office where he was able to successfully use his cell phone at 7:02 a.m. to
report the collision to Charlie Bunch, the Securitas manager on duty that day.[8] Bunch called Hesse, the manager responsible
for the Rail Logistics account, who corrected the accident report to indicate
the shift ended at 8:00 a.m. and not 7:00 a.m., as Bunch had originally
recorded.[9]
Bunch then called Sherri Parker, Securitas's human resources
manager, informed her of the accident, and of Johnson's possible early
unauthorized departure from the work site.[10]
Parker spoke with both Bunch and Hesse as part of the human
resources investigation and took handwritten notes which she later discarded.[11] On January 28, 2009 Parker called Johnson,
asked if he had been born in 1932, and then terminated Johnson's employment at
Securitas.[12] Securitas did not replace Johnson. After unsuccessfully filing complaints with
Securitas's in-house hotline, Johnson filed suit claiming age discrimination in
his termination under the Age Discrimination in Employment Act (ADEA).[13] Following discovery, Securitas successfully
moved for summary judgment with the district court concluding that Johnson had
failed to submit evidence to raise a genuine question of material fact about a
necessary element to establish a prima facie case, and, alternatively, that
even if a prima facie case was established, Johnson had failed to submit
sufficient evidence to raise a genuine question of material fact regarding
Securitas's stated reasons for terminating Johnson being a pretext for age
discrimination.[14]
The court analyzed each of Johnson's seven arguments
individually.[15] First,
the court stated the question raised of whether Johnson actually left the site
early was not a material issue of fact; the law requires only that the employer
has a good faith belief that the employee was guilty of the conduct to justify
discharge.[16] Since Hesse, the manager over Rail Logistics,
knew the shift that ends on Sunday ends at 8:00 a.m. and Johnson left around
7:00 a.m., then there was a good faith belief Johnson left the site early, a
terminable act according to Securitas Security Officer Handbook.[17] Second, Hesse's comments to Johnson, Bunch,
and Parker all amounted to being enough to establish a prima facie case, but
once the burden shifted back to the plaintiff to show pretext, these comments
fell short of raising a genuine question of material fact.[18] Third, the fact that Parker asked about
Johnson's birth year supported a prima facie case, but like Hesse's comments,
they fall short when the presumptions shift along with the burden to show a
"butfor" reason for Johnson's termination.[19]
Fourth, that no other Securitas employee had been fired for
the reasons it fired Johnson was not enough to raise a genuine question of
material fact regarding disparate treatment.
The court noted that once at the pretext stage, the "test for
whether someone is sufficiently similarly situated, as to be of use for
comparison, is rigorous."[20] Without any evidence of a similarly situated
employee, an inference cannot be made with regard to disparate treatment.[21] Fifth, the court held that the defendant and
its managers never really changed the main rationale for firing Johnson: he
left the site early, a terminable offense.[22] Sixth, Johnson failed to show that the spoliation
of the notes Parker took during her meeting with Hesse and Bunch was
intentional with the desire to suppress the truth.[23] Finally, the court rejected the argument that
the record as a whole presents questions of material fact sufficient to survive
summary judgment, as none of the individual arguments could do so.[24]
The United States Court of Appeals for the Eighth Circuit
ultimately affirmed the decision of the district court. It held the district
court erred in its first reason for granting summary judgment, that Johnson had
indeed submitted enough evidence to raise a genuine question of material fact
about the prima facie evidence. But,
Johnson nonetheless failed to submit sufficient evidence to raise a genuine
question of material fact regarding the stated reasons of termination proffered
by Securitas being a pretext for age discrimination.
The dissent in this case differed from the majority in
determining whether there was a genuine question of material fact raised by the
plaintiff. The dissent agreed with
Johnson on his seventh argument, that the record as a whole was enough to raise
a genuine question of material fact regarding the pretext.[25] For the dissent, Johnson had in fact
submitted enough admissible evidence to at least raise doubt about the
legitimacy of Securitas's motive in dismissing him, even though the evidence
might not directly contradict or disprove Securitas's stated reasons.[26]
II. Legal Background
The ADEA prohibits employers from discharging employees aged
40 and over on the basis of age.[27] As in this case, where there is no direct
evidence of discrimination, employment discrimination claims are analyzed under
the standard set by Mc.Donnell Douglas Corp. v. Green.[28] Accordingly, a plaintiff initially must first
establish a prima facie case of age discrimination by showing "(1) he was
at least 40 years old; (2) he was terminated; (3) he was meeting his employer's
reasonable expectations at the time he was terminated; and (4) he was replaced
by an individual who was substantially younger."[29] Additionally, when the employee is not
replace by a specific person, a plaintiff must show that age was a factor in
the employer's decision to terminate.[30]
Once the prima facie case of age discrimination has been
shown, it creates a presumption of unlawful discrimination and "shifts the
burden to the employer to articulate a legitimate, nondiscriminatory reason for
its actions."[31] If the employer can so articulate a
legitimate reason, it then the burden of proof shifts back to the plaintiff,
and the plaintiff must then prove that this legitimate reason proffered by the
employer is merely a pretext for age discrimination.[32] In essence, an employee "must both
discredit the employer's articulated reason and demonstrate the 'circumstances
permit a reasonable inference of discriminatory animus.'"[33] This boils down to the plaintiff having to
show that age was the "butfor" causation for the termination.
Thus, there are three phases to a federal age discrimination
case where there is no direct evidence of discrimination. First, the plaintiff must submit enough
evidence to establish a prima facie evidence.
Second, the defendant must rebut this with a legitimate stated reason
for discharge. Third, the plaintiff must
then show that the employer's stated reason is but mere pretext for the
discrimination.[34] Along
with these shifts in burdens of evidence, so too the court's view of the
evidence must shift. Thus, when the
employer has sufficiently stated a legitimate discharge reason the court must
then view evidence of the third pretext state "in light of the legitimate,
nondiscriminatory reasons articulated by [the employer]."[35] While a motion for summary judgment is viewed
in the light most favorable to the nonmovant, in cases of age discrimination, a
court may conclude in light of an employer's non-discriminatory rationale for
discharge, that the evidence submitted by a plaintiff can be enough to
establish a prima facie case but fall short of permitting a reasonable
inference of discrimination.[36]
III. Comment
This case presents an unusual situation where there is
enough evidence for a prima facie case of age discrimination but not enough to
establish enough of a genuine issue of material fact for pretext. After reviewing the legal background more carefully,
one cannot be surprised by the majority's decision and reasoning. The dissent disagreed with the majority where
the line is to be drawn between the plaintiff having enough evidence to
establish a prima facie case yet falling short of establishing enough doubt
about the stated employer's reason being pretext. Because the evidentiary burden of the
respective parties during phases one and two is low, an employer may, by
providing a legitimate reason for dismissal, increase the evidentiary burden on
employees to survive a summary judgment in age discrimination cases.
- Justin Moody
[1] Johnson
v. Securitas Security Services USA, Inc., 769 F.3d 605, 609 (8th Cir. 2014).
[2] Id.
[3] Id.
[4] Id..
[5] Rail
Logistics generally had two regular weekend shifts: 4:00 p.m. Saturday to 8:00
a.m. Sunday, and 4:00 p.m. Sunday to 6:00 a.m. Monday. Since Johnson was working on Sunday in the
morning, the regular shift ends at 8:00 a.m. Id.
[6] Id. It is unclear from the both the district
opinion and the Eighth Circuit's opinion what caused or led to the collision of
the vehicle in which Johnson was patrolling and the stationary
semi-trailer.
[7]
Additionally, Securitas guards were not given access to Rail Logistics site
phone nor was Johnson provided a cell phone or radio. Id.
[8] Id.
[9] Id. at
610.
[10] Id.
[11] Id.
[12] Id.
[13] Id. at
609.
[14] Id. at
610.
[15] Johnson
offered seven arguments in support of his position: "(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." Id. at
611.
[16] Id. at
612.
[17] Id. at
610.
[18] Id. at
612.
[19] Id. at
612-13.
[20] Id. at
613.
[21] Id.
[22] Id.
[23] Id. at
614.
[24] Id.
[25] Id. at
615, Smith, concurring in part and dissenting in part.
[26] Id.
[27]
Specifically, it states, "It shall be unlawful for an employer . . . to
discharge any individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment,
because of such individual's age;" 29 U.S.C. § 623(a)(1) (2008).
[28] 411
U.S. 792 (1973).
[29] Johnson
v. Securitas Sec. Services USA, Inc., 2012 WL 1247281, at *4 (E.D. Mo. Apr. 13,
2012), aff'd 769 F.3d 605 (8th Cir. 2014).
[30] Id.
(citing Hitt v. Harsco Corp., 356 F.3d 920, 924 (8th Cir. 2004)).
[31]
Johnson, 769 F.3d 605, at 611 (citing Ridout v. JBS USA, LLC, 716 F.3d 1079,
1083 (8th Cir. 2013)).
[32] Id.
[33] Id.
(quoting Haigh v. Gelita USA, Inc., 632 F.3d464, 470 (8th Cir. 2011)).
[34] Id.
[35] Id. at
612 (citing Jones v. United Parcel Serv., Inc., 461 F.3d 982, 992 (8th Cir.
2006)).
[36]
Sprenger v. Federal Home Loan Bank of Des Moines, 253 F.3d 1106, 1111 (2001).
