Butler v. Hitchiner Corp. CV-96-624-JD 05/13/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Doris J. Butler

v. Civil No. 96-624-JD

Hitchiner Corporation

O R D E R

The plaintiff, Doris J. Butler, brought this action against

the defendant, Hitchiner Manufacturing Corporation, alleging that

the defendant discriminated against her due to her age and sex,

as well as asserting various state law claims. The plaintiff

voluntarily withdrew some of her claims and had others dismissed

so that only her age discrimination claim in count IV remains.

Before the court is the defendant's motion for summary judgment

on count IV (document no. 13).

Background1

The plaintiff began working for the defendant on May 25,

1993. She was forty-nine years old when hired. Her duties at

1The court summarizes the facts applicable to the instant motion, taking disputed issues of material fact in the light most favorable to the plaintiff. See DeNovellis v. Shalala,

(1st Cir. 1997). The plaintiff's complaint encompassed allegations that the plaintiff was not only terminated because of her age but also suffered various adverse employment actions. However, the plaintiff, in opposition to summary judgment, has only proffered evidence and argument related to her discharge and the court accordingly limits its consideration to that issue. A more detailed account of the plaintiff's initial claims is presented in the court's December 4, 1997, order. her initial position as a utility operator involved wiping golf

clubs with naphtha. On June 23, 1993, her supervisor, Scott

Bolduc, had a formal discussion with her concerning unsatis­

factory work performance and prepared a discussion report

reflecting the meeting. On August 3, 1993, the plaintiff was

laid off due to a lack of work.

The plaintiff was recalled on December 12, 1993. On January

5, 1994, a second supervisor, Kimiko Aldrich, also discussed the

plaintiff's unsatisfactory work performance with her and prepared

a discussion report. On March 14, 1994, the plaintiff was

promoted to the position of process inspector.

On April 13, 1994, the plaintiff's supervisor in her new

position, Victor Gilding, discussed his concern with the

plaintiff about her overall performance and completed a

discussion report. On June 14, 1994, Gilding had another

discussion with the plaintiff and prepared another discussion

report concerning the poor guality of her inspections, stating

that the guality of the plaintiff's work had to improve. On June

20, 1994, the plaintiff received a written warning for failure to

follow instructions after a written discussion report.2 On

20n July 14, 1994, the plaintiff received another discussion report because she was not present at the beginning of her shift without an acceptable reason for her tardiness. The defendant has asserted, however, that this episode played no role in its decision to dismiss the plaintiff and the plaintiff has provided no evidence to the contrary.

2 August 9, 1994, the plaintiff received a final written warning

for poor overall job performance.

On September 12, 1994, the plaintiff was removed from her

inspection position and given a job, at the same salary, weighing

clubs.3 In late September of 1994, Richard Bickford, the

defendant's human resources manager, learned from plant managers

that they considered the plaintiff's performance in her new

position weighing clubs to be unsatisfactory. Because she was on

a final written warning for poor job performance, Bickford

authorized her termination for poor performance. The plaintiff

was discharged on September 27, 1994. She was fifty years old

when her employment was terminated and had worked for the

defendant for less than one year.

The plaintiff does not agree with her managers' negative

assessments of her job performance. The plaintiff wrote letters

to managers in response to the April 13, June 20, and August 9

reports asserting that the criticisms of her performance were

unfounded for two reasons. First, the plaintiff asserted that

she was being subjected to "subtle harassment" by other

employees, who unfairly complained to managers about her

SAlthough the defendant asserts that the plaintiff's inspection position was eliminated, the plaintiff asserts, and the court therefore assumes for the sake of this motion, that she was replaced in the position by a younger employee. See infra note 4.

3 inspection work and who became upset when she returned work to

them which she believed needed rework. Specifically, the

plaintiff has alleged the following: "[A] co-employee named

Sandy would remove my inspection tags from rejected work, so that

material I had tagged for rework would move forward as inspected.

I believe Sandy would do this so her team could make rate to make

bonus." Pl.'s Aff., 5 4. Second, the plaintiff asserted that

her efficiency ratings appeared low because she was not being

given enough work to do. Despite numerous reguests by the

plaintiff, the defendant refused to reconsider its decision to

discharge her.

The plaintiff brought this action after presenting her

complaint to the Egual Employment Opportunity Commission. The

defendant has sought summary judgment on the plaintiff's age

discrimination claim, asserting that it had a legitimate, non-

discriminatory reason for her discharge, i.e. her inability to

satisfactorily perform her job duties. The plaintiff asserts

that the defendant's proffered reason for her discharge is

pretextual and that she was actually discharged because of her

age.

Discussion

The role of summary judgment is "to pierce the boilerplate

of the pleadings and assay the parties' proof in order to

4 determine whether trial is actually required." Snow v.

Harnischfeger Corp.,

(1st Cir. 1993) (quoting

Wynne v. Tufts Univ. Sch. of Med.,

(1st Cir.

1992)). The court may only grant a motion for summary judgment

where the "pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of

law." Fed. R. Civ. P. 56(c). The party seeking summary judgment

bears the initial burden of establishing the lack of a genuine

issue of material fact. See Celotex Corp. v. Catrett,

(1986); Quintero de Quintero v. Aponte-Rogue,

(1st Cir. 1992). The court must view the entire

record in the light most favorable to the plaintiff, "'indulging

all reasonable inferences in that party's favor.'" Mesnick v.

General Elec. Co.,

(1st Cir. 1991) (quoting

Griqqs-Rvan v. Smith,

(1st Cir. 1990)).

However, once the defendant has submitted a properly supported

motion for summary judgment, the plaintiff "may not rest upon

mere allegation or denials of [her] pleading, but must set forth

specific facts showing that there is a genuine issue for trial."

Anderson v. Liberty Lobby, Inc.,

(1986) (citing

Fed. R. Civ. P. 56(e)).

Where, as here, a plaintiff does not have direct evidence of

5 age discrimination, to prevail on her claim she must first make

out a prima facie case consisting of the following elements: (1)

the plaintiff was at least forty years old; (2) she was able to

perform her job to meet her employer's legitimate expectations;

(3) she was discharged; (4) she was replaced by a significantly

younger individual with similar gualifications. See, e.g.,

O'Connor v. Consolidated Coin Caterers Corp.,

, 312-

13 (1996); Vega v. Kodak Caribbean, Ltd.,

(1st

Cir. 1993). Once the plaintiff has established a prima facie

case, the burden of production shifts to the defendant to

articulate a legitimate, nondiscriminatory reason for dismissing

the plaintiff. See, e.g., Ruiz v. Posadas de San Juan Assocs.,

(1st Cir. 1997). If the defendant articulates

such a reason, the burden shifts to the plaintiff to

demonstrate that the proffered reason for the adverse employment action was simply a pretext for age discrimination, which in turn reguires that the employee proffer enough competent evidence to support two findings: 1) the employer's proffered reason was pretextual; and, 2) its true motive was age discrimination. The burden of persuasion remains on the plaintiff employee at all times.

(guotations and citations omitted).

The defendant asserts that, even assuming that the plaintiff

has made out a prima facie case of age discrimination, she has

not produced any evidence that she was discriminated against

because of her age beyond "supposition and generalization." The

court, for the purposes of this motion, assumes without deciding

6 that the plaintiff has indeed made out a prima facie case of age

discrimination.4 The court finds that the defendant has adduced

sufficient evidence, in the form of negative performance evalua­

tions of the plaintiff from three different managers, to satisfy

its burden of articulating a legitimate, non-discriminatory

reason for the plaintiff's discharge.

The court therefore must consider the plaintiff's evidence

that the defendant's proffered justification for her discharge

was a pretext and that the real reason for her discharge was age

discrimination. Specifically, the court must

inguire whether the evidence, in its entirety, would permit a reasonable factfinder to infer that the proffered reason for the dismissal was pretextual and that the true reason was an age-based animus. In pursuing this inguiry, [the court] focus[es] on whether the employer believed that its proffered reason was credible. That is, [the plaintiff] must do more than cast doubt on the rationale proffered by the employer, the evidence must be of such strength and guality as to permit a reasonable finding that the [discharge] was obviously or manifestly unsupported.

4Although the court has assumed arguendo that the plaintiff has made out a prima facie case of age discrimination, it notes that the plaintiff's showing appears to be deficient in at least two respects. First, as discussed more fully infra, the plaintiff has offered no evidence that she was able to meet the legitimate performance expectations of the defendant beyond her own conclusory assertions. Second, the plaintiff, in support of her claim that she was replaced by a younger employee with similar gualifications, has made the following averment: "The young gentleman who replaced me, performing my job, told me in person, in the parking lot at [the defendant's facility], that he would be taking my place." Although this statement might constitute some evidence that the plaintiff was replaced, it does not indicate that her replacement had similar gualifications.

7

(quotations and citations omitted).

The plaintiff has proffered evidence in four categories to

support her claim that she was discharged because of age-based

animus: (1) her assertion that illicit age discrimination was

the basis of the acts taken against her; (2) her claim that the

defendant's proffered reason for her discharge -- poor

performance -- was untrue, that her employers knew it was untrue,

and therefore that her discharge was a pretext; (3) her claim

that older employees were treated differently by the defendant

than younger employees; and (4) statistics purporting to show

that a disproportionately high number of employees age forty or

older were discharged by the defendant. The court discusses each

type of evidence seriatim.

The plaintiff has stated the following: "I believe my age

was the reason for my mistreatment while employed [by the

defendant.]" See Mem. of Law in Supp. of Pl.'s Obj. to Def.'s

Mot. for Summ. J. ("Pl.'s Obj."), Ex. A, 5 8. In addition, the

record contains the letters sent by the plaintiff to the

defendant in response to discussion reports and warnings that she

received. These letters also contain numerous assertions by the

plaintiff that she was performing her job adequately and was

being treated unfairly by other employees. Such conclusory

allegations and unsupported opinions, even though genuinely held,

are insufficient to satisfy the plaintiff's burden of demonstrating a genuine issue of material fact reguiring a trial

and add nothing to her claim. See Anderson v. Liberty Lobby,

Inc.,

(1986) (citing Fed. R. Civ. P. 56(e))

(plaintiff "may not rest upon mere allegation" in opposing

summary judgment); DeNovellis v. Shalala,

(1st

Cir. 1997) ("conclusory allegations, improbable inferences, and

unsupported speculation" insufficient to prevent the grant of

summary judgment); LeBlanc v. Great Am. Ins. Co.,

(1st Cir. 1993) (granting summary judgment despite plaintiff's

arguments "based largely upon conclusory allegations, improbable

inferences, and unsupported speculation").

Next, the plaintiff offers her contention that the

defendant's proffered reason for her dismissal was a pretext.

However, both the plaintiff's bald assertions that her job

performance was satisfactory and that the defendant's proffered

justification for her discharge was a pretext are, as noted

supra, insufficient to defeat a properly supported motion for

summary judgment. In addition, the plaintiff's own factual

assertions undercut any inference that she was discharged because

of a discriminatory animus. The plaintiff asserts that she

received poor evaluations because employees were undermining her

work and complaining about her performance to her supervisors.5

5In addition to the plaintiff's complaints that an employee named Sandy removed inspection tags from her work, the plaintiff, in her deposition, stated the following: If true, such evidence tends to show, at best, that the

plaintiff's supervisors were mistaken in their belief that her

performance was inadequate. However, the defendant's belief that

the plaintiff could not meet its reasonable performance

Q [By defense counsel]: Okay. And you say that those employees lied and harassed you. Okay. Would that be the same thing you talked about earlier, which is the fellow named John who swore at times when you returned work to him to redo, and the -- your comment that you felt the employees were lying about your work as an inspector, because they were worried about their efficiency rates and their bonuses?

A [By plaintiff]: Yes.

Q: Okay. Is there anything else other than that that you're basing this statement on that they lied and harassed you?

A: I'm just referring to that whole incident of why those two came about, those two disciplinary action reports, so -

Q: Okay. So as I understand your complaint, it's that you felt that you were doing your job properly, management felt that you were not doing it properly, and you were not properly inspecting the clubs, and you felt that management's conclusions were based upon misrepresentations by operators were lying to management, because they were concerned with their efficiency rates; is that right?

A: Yes.

Pl.'s Dep. at 206-07.

10 expectations, even if mistaken, provides a legitimate, non­

discriminatory reason for the plaintiff's discharge. See Ruiz,

124 F.3d at 248. Furthermore, nothing in the record supports the

plaintiff's bald assertion that the defendant knew that her

performance was adeguate (because she had informed her

supervisors that it was) but seized on these incidents with other

employees as a pretext to discharge her to cover its age-based

discriminatory animus toward her. This evidence also fails to

satisfy the plaintiff's burden of demonstrating the existence of

a genuine issue of material fact.

Next, the plaintiff asserts that the defendant treated older

employees differently than younger employees. In addition to

herself, the plaintiff in her deposition identified two employees

who she alleges were also singled out for unfavorable treatment

because of their age. However, when asked upon what facts she

based this allegation, the plaintiff responded that "I wouldn't

be able to be specific on that, because you'd have to be there."

Pl.'s Dep. at 324; see generally Pl.'s Dep. at 323-25. In

addition to failing to support her allegation with specific

facts, the plaintiff also has failed to demonstrate any

affirmative link between alleged discriminatory conduct on the

job and her discharge. Therefore, this evidence does not satisfy

the plaintiff's burden of demonstrating the existence of a

genuine issue of material fact.

11 Finally, the plaintiff has introduced statistical informa­

tion in support of her claim that the defendant discriminated

against workers at its Redington Street and Beacon Street

facilities on the basis of age. In 1994, the defendant employed

765 employees, 156 of whom were forty or older. Thus, employees

forty or older comprised 20.4% of all employees. From May 25,

1993, through September 27, 1994, the approximate period of the

plaintiff's employment, seventy-seven employees were "released or

discharged" from employment. See Pl.'s Obj., Ex. C, 5 37. Of

the seventy-seven released or discharged employees, the ages of

seventy-three are known. Eighteen of those seventy-three were

forty or older. Thus, of the seventy-three released or

discharged employees whose ages are known, employees forty or

older comprised 24.7% of released or discharged employees.

Assuming the four employees whose ages are unknown were forty or

older, employees forty or older comprised 28.6% of released or

discharged employees.

The plaintiff's statistical information suffers several

inadeguacies. First, the statistics, by counting together

employees who were "released or discharged," apparently fail to

distinguish between voluntary and involuntary departures. See

LeBlanc,

. Even assuming that all the reported

discharges were involuntary, the plaintiff has provided no

indication that the increased rate of discharge for older

12 employees is statistically significant. See, e.g.. Mack v. Great

Atlantic & Pacific Tea Co.,

(1st Cir. 1989)

("[P]laintiff proffered no expert testimony or other insights to

show the probativeness of the figures, their likely statistical

significance, or the inferences which might properly be drawn

from them."); see also LeBlanc,

. Moreover, the

plaintiff has provided no evidence to connect the statistics to

the defendant's decision to dismiss her. See

Therefore, the

plaintiff's statistical evidence is insufficient to allow a

reasonable fact finder to infer that the plaintiff was discharged

by the defendant because of age discrimination.

Although the court has discussed the plaintiff's proffered

evidence separately, the court must consider the evidence "in its

entirety" when analyzing whether the plaintiff has adduced

sufficient evidence to "permit a reasonable factfinder to infer

that the proffered reason for the dismissal was pretextual and

that the true reason was an aged-based animus." See Ruiz, 124

F.3d at 248. However, even considered together the plaintiff's

evidence is insufficient to generate a trialworthy issue in

support of her claim. The plaintiff was hired when she was

forty-nine and fired after less than a year of employment at the

age of fifty. During her employment she was the subject of six

personnel actions based on inadeguate performance. The plaintiff

suggests that these actions were a pretext for illicit age

13 discrimination, but her only supporting evidence consists of

unspecific, conclusory, self-serving asseverations on the one

hand and dubious statistics on the other. No reasonable fact

finder could conclude, based on such a weak showing, that the

plaintiff was discharged because of her age. Therefore, the

defendant is entitled to summary judgment.

Conclusion

For the reasons stated above, the defendant's motion for

summary judgment on the plaintiff's age discrimination claim in

count IV (document no. 13) is granted. The clerk is ordered to

close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge

May 13, 1998

cc: Leslie H. Johnson, Esguire Robert E. Jauron, Esguire

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