Free Response to Motion - District Court of Colorado - Colorado

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-0208-PSF-CBS GEORGE WHITE, Plaintiff, v. WATERPIK TECHNOLOGIES, Defendant. ______________________________________________________________________________ RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Plaintiff George White, through his attorneys David A. Lane and Marcel Krzystek of KILLMER, LANE & NEWMAN, LLP, hereby submits his Response to Defendant's Motion for Summary Judgment, and in support thereof states as follows: I. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. RESPONSE TO STATEMENT OF UNDISPUTED FACTS Admitted. Admitted. Admitted. Admitted. Admitted. Admitted. Admitted. Admitted. Admitted. Admitted.

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11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24.

Admitted. Admitted. Admitted. Admitted. Admitted. Admitted. Admitted. Admitted. Admitted that Mr. Hutchins so testified. Admitted. Admitted. Admitted. Admitted. Admitted that Hutchins testified that the individuals who were retained and given

White's job responsibilities possessed skill sets that Mr. White did not have. 25. 26. Admitted. Denied. This statement is a legal conclusion and not an appropriate statement of

fact. Furthermore, there exists a disputed issue of material fact with respect to the interpretation of the statistical report prepared by Stephanie Smet which is briefed more fully in Part 4(A)(2)(b).

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II. 1.

STATEMENT OF ADDITIONAL DISPUTED FACTS

Mr. White's major job responsibilities at Waterpik included supervising

employees and handling service, warranty, and legal issues. Exhibit 1,1 White Depo., 24:16 ­ 25:19; 32:18 ­ 23. 2. Curt Hutchins, Mr. White's supervisor, would refer to Mr. White as "the dad" and

as a "father figure." Exhibit 1, White Depo., 51:8 ­ 12. 3. Hutchins instructed Mr. White to treat the engineers as if they were his "children"

and he were their "father" or "dad." Exhibit 1, White Depo., 52:6 ­ 53:24; 61:15 ­ 62:13. 4. On numerous occasions Hutchins commented that employees were doing things

"the old way." Exhibit 1, White Depo., 64:24 ­ 65:23. 5. Hutchins accused Mr. White of doing things "the old way" in numerous emails.

Exhibit 1, White Depo., 115:19 ­ 116:5. 6. Employees over 40 years of age were looked at because they were perceived to be

doing things "the old way." Exhibit 1, White Depo., 66:1 ­ 9. 7. Employees that had been with the company more than five years were perceived

by the new CEO, Mike Hoopus, to be part of the problem. Exhibit 1, White Depo., 119:1 ­ 17. 8. Mr. White commented to Human Resources and Tim Mulcahy that he was

becoming too old to work at Waterpik. Exhibit 1, White Depo., 64:24 ­ 67:2. 9. The Human Resources representative advised Mr. White to "keep your head

down" because the representative was aware of the "old" moniker. Exhibit 1, White Depo., 65:18 ­ 23.

1

Note that the first page of Exhibit 1, the cover page of Plaintiff George White's deposition transcript, incorrectly identifies the date of such deposition as December 16, 2005. The deposition took place on December 16, 2004. The error is corrected on subsequent transcript pages.

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10.

One of the professional employees laid off in the November 2001 reduction in

force was under 40, while the rest were over 40. Exhibit 1, White Depo., 90:20 ­ 23; Exhibit 4, Smet Depo., 21:13 ­ 22:4. 11. Some employees, including 46 year old materials manager Tim Simpson, were

not terminated despite volunteering for layoff. Exhibit 2, Hutchins Depo., 22:2 ­ 22; Exhibit 1, White Depo., 91:6 ­ 92:3; Defendant's Exhibit C, page 2. 12. Mr. White's department was never split up, and his responsibilities were divided

between two younger employees, Tim Simpson and Ed DeSilva. Exhibit 1, White Depo., 98:13 ­ 100:3. 13. After his termination, Mr. White participated in a re-employment seminar hosted

by Waterpik; with one exception, all of the recently laid-off employees at that seminar were over 40. Exhibit 1, White Depo., 112:19 ­ 113:6. 14. When Tim Simpson left the company only a couple of months after the November

2001 reduction in force, his position was filled by Shane Klumb, who was 28 years old at the time. Exhibit 1, White Depo., 91:10 ­ 92:3; Defendant's Statement of Undisputed Material Fact #23; Defendant's Exhibit C, page 2. 15. Shane Klumb replaced Mr. White notwithstanding the fact that Klumb was the

manager responsible for losing approximately $430,000 in inventory. Exhibit 1, White Depo., 93:1 ­ 14; 95:19 ­ 96:14. 16. James Sanchez was the Vice President of Human Resources at Waterpik. Exhibit

3, Sanchez Depo., 7:9 ­ 14. 17. Mr. Sanchez had previously owned a company that developed affirmative action

plans and investigated allegations of discrimination. Exhibit 3, Sanchez Depo., 8:6 ­ 23.

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18.

Mr. Sanchez ordered an adverse impact analysis of the November 2001 layoff.

Exhibit 3, Sanchez Depo., 24:23 ­ 25:9; 34:24 ­ 36:16. 19. Stephanie Smet performed the adverse impact analysis of the November 2001

layoff as ordered by Mr. Sanchez. Exhibit 4, Smet Depo., 7:9 ­ 8:25. 20. 21. Ms. Smet is not a statistician. Exhibit 4, Smet Depo., 11:9 ­ 14. Although Ms. Smet's conclusion was that there was no adverse impact from the

November 2001 reduction in force, she had no explanation as to why the layoff rate was 20% higher for employees over 40 years of age. Exhibit 4, Smet Depo., 29:17 ­ 19; 32:24 ­ 33:1; 15:11 ­ 16:5. 22. Ms. Smet acknowledged that the rate of layoffs for employees over 40 years old

was statistically higher than expected. Exhibit 4, Smet Depo., 31:3 ­ 32:19. 23. Ms. Smet also acknowledged that two of three criteria for determining adverse

impact had been met, and agreed that the November 2001 layoff was "flirting with the margins of being adversely impactful." Exhibit 4, Smet Depo., 36:9 ­ 37:4. 24. When presented with a statistical hypothetical representing the November 2001

reduction in force, Mr. Sanchez acknowledged that the percentage of employees over 40 that were laid off in November 2001 was "disproportionate." Exhibit 3, Sanchez Depo., 38:10 ­ 25. 25. Ms. Smet did not know whether the laid off employees had been replaced or the

ages or demographics of the replacement workers. Exhibit 4, Smet Depo., 38:8 ­ 12. 26. Defendant now employs more employees than it did at the time Mr. White was

terminated. Exhibit 1, White Depo., 123:16 ­ 124:9. 27. Mr. White's performance was satisfactory and he had good performance reviews.

Exhibit 1, White Depo., 124:20 ­ 125:6.

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28. 55:19 ­ 23. 29.

Mr. White was not terminated for performance issues. Exhibit 2, Hutchins Depo.,

Mr. White was employed by Defendant for over six (6) years. Exhibit 5, page 2. III. SUMMARY JUDGMENT STANDARD

As the Tenth Circuit Court of Appeals has recently emphasized, the burden upon a plaintiff in an employment discrimination case is not nearly as stringent as some defendants would hope: Of course [plaintiff] need not "show" or "prove" or "establish" anything to defeat [defendant's] summary judgment motion. Instead she must merely demonstrate the existence of a genuine issue of material (that is, outcome-determinative) fact. Although this opinion will nonetheless often employ one of the quoted terms because that terminology is often used by the cited cases, we have consistently imposed that lesser burden on [plaintiff] in testing her position. Goodwin v. General Motors, 275 F.3d 1005 (10th Cir. 2002), cert. den. 123 S. Ct. 340, 154 L. Ed. 2d 248 (2002). "The rule in this Circuit, however, is that an employment discrimination suit will always go to the jury so long as the evidence is sufficient to allow the jury to disbelieve the employer's proffered reason for the employer's action." Beard, et al. v. Seagate Technology, Inc., 145 F.3d 1159, 1177, (10th Cir. 1998) cert. den. 525 U.S. 1054, 119 S. Ct. 617, 142 L. Ed. 2d 556 (Tacha, J., concurring and dissenting), citing Randle v. City of Aurora, 69 F.3d 441, 451 at n.15. "The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) (quoting

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St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)). Hampton v. Dillard Dep't Stores, 247 F.3d 1091 (10th Cir. 2001). It is not the purpose of a motion for summary judgment to force the judge to conduct a "mini trial" to determine the defendant's true state of mind. So long as the plaintiff has presented evidence of pretext (by demonstrating that the defendant's proffered nondiscriminatory reason is unworthy of belief) upon which a jury could infer discriminatory motive, the case should go to trial. Judgments about intent are best left for trial and are within the province of the jury. Randle v. City of Aurora, 69 F.3d 441, 453 (10th Cir. 1995). Summary judgment is appropriate only if the admissible evidence shows 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). This Court must also correctly apply the substantive law. See Applied Genetics Int'l, Inc. v. First Affiliated Sec. Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). In both reviewing the evidence for disputed issues of material facts and applying applicable law, this Court must view the record and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. Thomas v. International Business Machines, 48 F.3d 478, 484 (10th Cir. 1995). A fact is "material" if, under the governing law, it could have an effect on the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute over a material fact is "genuine" if a rational jury could find in favor of the nonmoving party on the evidence presented. EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1189 (10th Cir. 2000). "The burden of showing that no genuine issue of material facts exists is borne by the moving party." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). "This court

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draws all reasonable inferences in favor of the nonmoving party." EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d at 1189. "The nonmovant is given `wide berth to prove a factual controversy exists.'" Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 966 (10th Cir. 2002), citing Jeffries v. Kansas, Dep't. of Soc. & Rehab. Servs., 147 F.3d 1220, 1228 (10th Cir. 1998). Only when the moving party meets its initial burden does the burden of producing evidence of a disputed issue of material fact shift to the non-moving party. Id. The court is not permitted to weigh the evidence, but instead determines "whether the evidence presents sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Bingaman v. Kansas City Power & Light Co., 1 F. 3d 976, 980 (10th Cir. 1993); Jeffries v. State of Kansas, Dept. of Social and Rehab. Services, 147 F. 3d at 1228. IV. ARGUMENT

Because Mr. White has set forth a prima facie case of age discrimination, and because the Defendant's motivation for terminating Mr. White is directly at issue, summary judgment is inappropriate. District courts should exercise "caution in dismissing [employment discrimination] claims at the summary judgment stage. Rosen v. Thornburgh, 928 F.2d 528, 533 (2nd Cir. 1991); accord Amin v. Quad/Graphics, Inc. 929 F. Supp. 73, 77-78 (N.D.N.Y. 1996). This is so because actual employment discrimination is often conducted discretely, requiring the crucible of trial to sear through layers of falsehood and superficially plausible excuses." Negussey v. Syracuse University, 1997 WL 141679 (N.D.N.Y., 1997). In its Brief in Support of Motion for Summary Judgment, Defendant argues that Mr. White has failed to establish a prima facie case and offers a superficially plausible reason for its

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decision to terminate Mr. White. However, as is briefed below, Mr. White easily satisfies his burden of coming forward with sufficient evidence to establish a prima facie case. Furthermore, when examined more closely, the falsehood of Defendant's proffered reason for Mr. White's termination becomes more apparent and the likelihood that it is simply a pretext for the true reason for Mr. White's termination becomes readily apparent. Because the motivation behind the Defendant's adverse employment action against Mr. White is a genuine issue of material fact, summary judgment is inappropriate and the case must proceed to the trier of fact. A. MR. WHITE HAS MET HIS BURDEN OF ESTABLISHING THAT A DISPUTED ISSUE OF
MATERIAL FACT EXISTS WITH RESPECT TO WHETHER OR NOT HIS TERMINATION WAS THE RESULT OF AGE DISCRIMINATION.

As the courts have recognized, a plaintiff in an age or other discrimination case will rarely be able to present direct evidence of such discrimination. See, e.g., Geraci v. MoodyTottrup, Int'l, Inc., 82 F.3d 578, 581 (3rd Cir. 1996) ("[O]nly rarely will a plaintiff have direct evidence of discrimination. Gone are the days (if, indeed, they ever existed) when an employer would admit to firing an employee because she is a woman, over forty years of age, disabled or a member of a certain race or religion.") "We begin by observing that the ADEA is remedial and humanitarian legislation and should be liberally interpreted to effectuate the congressional purpose of ending age discrimination in employment." MacDonald v. Eastern Wyoming Mental Health Ctr., 941 F.2d 1115, 1118 (10th Cir. 1991). Age discrimination may be subtle and even unconscious. Even an employer who knowingly discriminates on the basis of age may leave no written records revealing the forbidden motive and may communicate it orally to no one. When evidence is in existence, it is likely to be under the control of the employer, and the plaintiff may not succeed in turning it up. Id., citing LaMontagne v. American Convenience Prods., Inc., 750 F.2d 1405, 1410 (7th Cir. 1984).

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As a result, plaintiffs must, as Mr. White does in this case, rely upon indirect and circumstantial evidence in order to prove their discrimination claims. When a plaintiff relies on indirect, i.e., circumstantial evidence, to prove employment discrimination, the Court applies the three-step burden-shifting framework set forth in McDonnell Douglas and its progeny. Plotke v. White, ___ F.3d ___, 2005 U.S. App. LEXIS 7344 (10th Cir. 2005); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-07, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). McDonnell Douglas first requires the aggrieved employee to establish a prima facie case of prohibited employment action. See id. at 802. The "burden of establishing a prima facie case . . . by a preponderance of the evidence" is "not onerous." McCowan v. All Star Maint., Inc., 273 F.3d 917, 922 (10th Cir. 2001); see also Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). Furthermore, "this burden is one of production, not persuasion; it can involve no credibility assessment." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142, 147 L. Ed. 2d 105, 120 S. Ct. 2097 (2000) (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993)). If the employee makes a prima facie showing, the burden shifts to the defendant employer to state a legitimate, "nondiscriminatory reason" for its "adverse employment action." Wells v. Colo. Dep't of Transp., 325 F.3d 1205, 1212 (10th Cir. 2003). If the employer meets this burden, then summary judgment is warranted unless the employee can show there is a genuine issue of material fact as to whether the proffered reasons are pretextual. Jones v. Denver Post Corp., 203 F.3d 748, 756 (10th Cir. 2000). 1. Mr. White has set forth a prima facie case of age discrimination.

In general, to establish a prima facie case of age discrimination, a plaintiff must show that "(1) he is within the protected age group; (2) he was doing satisfactory work; (3) he was

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discharged; and (4) his position was filled by a younger person." McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998). It is undisputed that Mr. White was within the protected age group (he was 51 years old at the time of his termination). Mr. White has met his burden of producing evidence that he was doing satisfactory work. Mr. White was discharged in November of 2001, and his position was filled by individuals substantially younger than Mr. White. Although Defendant concedes that Mr. White was within the protected age group and that he was terminated, it nevertheless argues that Mr. White has failed to establish a prima facie case because, it claims, he has provided no evidence of discriminatory intent and because his position was not filled by one younger replacement. "The impetus behind White's lawsuit is his apparent mistaken belief that his position was not eliminated but instead he was merely replaced by a younger employee." Waterpik's Brief in Support of its Motion for Summary Judgment at 9. However, as is briefed below, Mr. White has set forth sufficient evidence of discriminatory intent. Mr. White has also shown through credible evidence, including his own testimony, that he was qualified for the position he held, and his burden is simply one of production; no credibility assessments are permitted at this stage. See Reeves, 530 U.S. 133, 142. See also MacDonald v. Eastern Wyoming Mental Health Ctr., 941 F.2d 1115, 1120 (10th Cir. 1991) ("[A] plaintiff may make out a prima facie case of discrimination in a discharge case by credible evidence that she continued to possess the objective qualifications she held when she was hired . . . by her own testimony that her work was satisfactory, even when disputed by her employer . . . or by evidence that she had held her position for a significant period of time.") Here, Mr. White has presented credible evidence through his testimony that he was performing satisfactorily, and, notwithstanding the reference regarding Mr. White's placement on a "performance improvement

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plan," Defendant has stipulated that Mr. White was not terminated for performance reasons. Exhibit 2, Hutchins Depo., 55:19 ­ 23. Furthermore, in MacDonald, the court recognized that significant length of service constitutes evidence of satisfactory work, thereby enabling a plaintiff to establish a prima facie case. There, the plaintiffs had been employed by their former employer for four years. See id. at 1121. In this case, Mr. White had been employed with the Defendant for over six years, significantly longer than plaintiffs in MacDonald. Exhibit 5, Page 2. Second, Defendant's argument suggesting that Mr. White must prove that his position was not eliminated or that it was filled by one individual simply misconstrues clearly established law regarding a plaintiff's burden of proof in reduction in force cases. Because Mr. White was terminated as part of a reduction in force, he is essentially per se unable to establish that he was in fact replaced by one younger employee. "In reduction-in-force cases, plaintiffs are simply laid off and thus incapable of proving actual replacement by a younger employee. Consequently, courts have modified the fourth prima facie element by requiring the plaintiff to `produc[e] evidence, circumstantial or direct, from which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue.'" Branson v. Price River Coal Co., 853 F.2d 768, 771 (10th Cir. 1988). The Branson court went on to hold that "[t]his element may be established through circumstantial evidence that the plaintiff was treated less favorably than younger employees during the reduction-in-force." Id., citing Thornbrough v. Columbus & Greenville R.R. Co., 760 F.2d 633, 643-45 (5th Cir. 1985). Two subsequent cases in this Circuit have confirmed that a plaintiff in a reduction in force case need not prove that he or she was replaced by a younger employee: To establish a prima facie case of age discrimination in the RIF context, a claimant affected by a RIF must prove: (1) the claimant

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is within the protected age group; (2) he or she was doing satisfactory work; (3) the claimant was discharged despite the adequacy of his or her work; and (4) there is some evidence the employer intended to discriminate against the claimant in reaching its RIF decision . . . The fourth element may be established "through circumstantial evidence that the plaintiff was treated less favorably that younger employees during the [RIF]." Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1137 (10th Cir. 2000), cert. denied, 531 U.S. 876, 121 S.Ct. 182, 148 L.Ed.2d 125 (2000), citing Lucas v. Dover, 857 F.2d 1397, 1400 (10th Cir. 1988). Or perhaps "ordinarily" has been used simply to connote the fact that the flexible McDonnell Douglas approach is meant to be adapted to the particular type of adverse employment decision in question. For example, where a plaintiff is discharged as a result of a so-called ""reduction in force," he or she is not replaced by someone so that the fourth factor can be analytically applied. In this instance, the prima facie test is modified to fit the particular situation by allowing the plaintiff to show that older employees were fired while younger ones in similar positions were retained. Greene v. Safeway Stores, Inc., 98 F.3d 554, 560 (10th Cir. 1996), citing Ingels v. Thiokol Corp., 42 F.3d 616, 621 (10th Cir. 1994); Jones v. Jones Brothers Constr. Corp., 879 F.2d 295, 299 (7th Cir. 1989). Mr. White has set forth such circumstantial evidence, as is detailed in Part 2 below. Specifically, Mr. White has shown that older employees were included in the November 2001 reduction in force while younger employees were retained. Consequently, Mr. White has established a prima facie case of age discrimination, and any question with respect to the reason for his termination must be addressed at the pretext stage of the McDonnell Douglas analysis. 2. Defendant's proffered reason for Mr. White's termination is a pretext for age discrimination.

Mr. White has established his prima facie case of age discrimination, and Defendant has articulated its proffered reason for its termination of Mr. White's employment and denies that Mr. White's age played any role in the decision to include him in the November 2001 reduction

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in force. The burden, therefore, is now upon Mr. White to put forth sufficient evidence which would allow a jury to find that the Defendant's proffered reason is pretextual. Pretext may be demonstrated by showing "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons." Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997). In addition, Mr. White need not disprove every reason articulated by Defendant in order to establish pretext. "[W]hen the plaintiff casts substantial doubt on many of the employer's multiple reasons, the jury could reasonably find the employer lacks credibility." Tyler v. Re/Max Mtn. States, Inc., 232 F.3d 808 (10th Cir. 2000). The rule in this Circuit is that "an employment discrimination suit will always go to the jury so long as the evidence is sufficient to allow the jury to disbelieve the employer's proffered reason for the employer's action." Beaird, et al. v. Seagate Technology, Inc., 145 F.3d 1159, 1177 (10th Cir. 1998) cert. den. 525 U.S. 1054, 119 S. Ct. 617, 142 L. Ed. 2d 556 (Tacha, J., concurring and dissenting), citing Randle v. City of Aurora, 69 F.3d at 441, 451 n.15 (10th Cir. 1995). Furthermore, the mere existence of a non-retaliatory motive that would justify an adverse employment action does not absolve an employer of liability for a retaliatory employment decision; rather, the employer must actually rely on that non-retaliatory reason as the sufficient, motivating reason for the employment decision. As the Supreme Court recently stated, "proving that the same decision would have been justified . . . is not the same as proving that the same decision would have been made." McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 360, 115 S.Ct. 879, 885 130 L.Ed.2d 852, 862 (1995); McKenzie v. Renberg's, Inc., 94 F.3d 1478, 1484 (10th Cir. 1996). In other words, an employer may not prevail "by offering a legitimate

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and sufficient reason for its decision if that reason did not motivate it at the time of the decision." Price Waterhouse v. Hopkins, 490 US 228, 252, 109 S.Ct. 1775, 1791, 104 L.Ed.2d 268 (1989) (plurality opinion); McKenzie v. Renberg's, Inc., 94 F.3d 1478, 1484 (10th Cir. 1996). Finally, "[a]n employee alleging intentional discrimination under the ADEA must prove that age was a `determinative factor' in the defendant employer's action toward him. . . . Age need not be the sole reason for the employer's acts, but plaintiff must show that age `made a difference' in the employer's decision." Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544, 1547 (10th Cir. 1988) (internal citation omitted) (emphasis in original). The deposition testimony and exhibits are clearly sufficient to permit a reasonable jury to conclude that the reason proffered for Mr. White's termination was a pretext for age discrimination. Although Defendant's proffered and documented reason for Mr. White's inclusion in the November 2001 reduction in force was difficult business conditions, a review of the record in this case demonstrates the weakness, implausibility, and inconsistency of that proffered reason for the termination and would permit a reasonable jury to conclude that the true reason for Mr. White's termination was age discrimination. a. Each individual that replaced Mr. White was younger.

Mr. White has presented evidence of Defendant's campaign of replacing older employees with substantially younger replacements, including those that assumed his duties and job functions. In fact, Defendant does not dispute that each employee that took over Mr. White's job was younger. See Water Pik's Brief in Support of its Motion for Summary Judgment at 9; Defendant's Exhibit C, page 2. As a defense, Defendant argues that its decision to include Mr. White in its November 2001 reduction in force was a "legitimate business decision." See Water Pik's Brief in Support of its Motion for Summary Judgment at 12. However, that explanation

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(which is also referred to as the "business judgment" principle) does not shield Defendant of liability because that principle does not immunize all potential "business judgments" from judicial review for illegal discrimination. See Sanchez v. Philip Morris, Inc., 992 F.2d 244, 247 (10th Cir. 1993) (when employer invokes business judgment rule in discrimination context, "[t]he reality of the entire situation must be examined"). "Such a doctrine would defeat the entire purpose of the ADEA. . . . There may be circumstances in which a claimed business judgment is so idiosyncratic or questionable that a factfinder could reasonably find that it is a pretext for illegal discrimination." Beaird, 145 F.3d at 1169 (internal citations omitted); see also McCowan v. All Star Maintenance, Inc., 273 F.3d 917, 926 (10th Cir. 2001) ("Thus, All Star's `business judgment' with the jargon of economics, efficiency, bottom lines and profit is not impervious to alternative proof. The court's inquiry is not whether the employer made the best choice, but whether it was the real choice for terminating Plaintiffs. With no evidence of the criteria used to evaluate the basis for the decision to retain one painting crew over the other in the face of the inconsistencies and contradictions in the record, the court improperly resolved questions of fact reserved for the jury.") (emphasis in original) Similarly, even if Defendant's reduction in force was bona fide, that fact alone does not preclude Mr. White's age discrimination claim. See, e.g., Kinsella v. Rumsfeld, 320 F.3d 309 (2nd Cir. 2003). In Kinsella, the court reversed the grant of summary judgment to a Rehabilitation Act defendant on plaintiff's termination claim, holding that plaintiff had shown enough for a reasonable jury to find that, although the reduction in force was bona fide, it was used as an opportunity to remove the plaintiff because of his disability. In either event, even the question of whether or not this reduction in force was bona fide has been called into question, as Defendant now employs more employees than it did at the time Mr. White was terminated. Exhibit 1, White Depo., 123:16 ­ 124:9.

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Although many of the younger replacements identified above are themselves at least 40 year old, that in no way detracts from the probative value of such evidence or otherwise affects Mr. White's age discrimination claim; what is relevant is that each replacement is younger than his predecessor. As the Supreme Court has stated, [t]he discrimination prohibited by the ADEA is discrimination "because of [an] individual's age," 29 U.S.C. § 623(a)(1), though the prohibition is "limited to individuals who are at least 40 years of age," § 631(a). This language does not ban discrimination against employees because they are aged 40 or older; it bans discrimination against employees because of their age, but limits the protected class to those who are 40 or older. The fact that one person in the protected class has lost out to another person in the protected class is thus irrelevant, so long as he has lost out because of his age. Or to put the point more concretely, there can be no greater inference of age discrimination (as opposed to "40 or over" discrimination) when a 40-year-old is replaced by a 39-year-old than when a 56-year-old is replaced by a 40-year-old. O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312, 134 L. Ed. 2d 433, 116 S. Ct. 1307 (1996) (emphasis in original). Defendant argues that Mr. White is relying upon "mistakes" and "speculative and conclusory assumptions" when testifying about the age-related personnel decisions outlined above, and that he cannot use such testimony to make a showing of pretext. This argument, however, is improper in that it asks the Court to make a credibility determination at the summary judgment stage of litigation. Furthermore, Mr. White is not providing mere speculation or assumption; to the contrary, Mr. White is setting forth the specific facts, which are based upon his competent observation, that would enable a reasonable jury to find that Defendant's proffered reason for his termination was a pretext.

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b.

Statistical evidence suggests that age played a significant role in Mr. White's termination.

In addition to the anecdotal evidence regarding the ages of Mr. White's replacements, Mr. White and Defendant's own "expert" witness2 has presented statistical evidence in support of Mr. White's claim that the November 2001 reduction in force was carried out in a discriminatory manner. Because the statistics themselves raise a genuine issue of material fact, Defendant's Motion for Summary Judgment must be denied. "[B]oth sides have, in disputing each other's claims, raised a justiciable issue of material fact. Neither the District Court nor this Court are empowered to resolve issues thus joined at the summary judgment stage of a proceeding. Such matters must necessarily proceed to trial." Hebert v. Mohawk Rubber Co., 872 F.2d 1104, 1114, n.13 (1st Cir. 1989). Similarly, in Morgan v. Arkansas Gazette, 897 F.2d 945 (8th Cir. 1990), the court concluded that there was evidence of a pattern of employees over the age of 40 leaving the circulation department and being replaced by younger employees. The Eighth Circuit referred to this showing as one thread of evidence that led to upholding an age discrimination award: "This fact is certainly not conclusive of age discrimination in itself, but it is surely the kind of fact which would cause a reasonable trier of fact to raise an eyebrow, and proceed to assess the employer's explanation for this outcome." Id. at 951. James Sanchez was the Vice President of Human Resources for Defendant and had experience investigating allegations of discrimination. Exhibit 3, Sanchez Depo., 7:9 ­ 14; 8:6 ­ 23. Mr. Sanchez ordered an adverse impact analysis of the November 2001 layoff, which was performed by Stephanie Smet. Exhibit 3, Sanchez Depo., 24:23 ­ 25:9; 34:24 ­ 36:16; Exhibit 4, Smet Depo., 7:9 ­ 8:25. Although Ms. Smet is not a statistician, she concluded that there was no
2

Defendant has endorsed Stephanie Smet as an expert in this case to testify that the November 2001 reduction in force did not adversely impact employees over 40 years old. Ms. Smet has a degree in business administration and

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adverse impact from the November 2001 reduction in force. Exhibit 4, Smet Depo., 11:9 ­ 14; 29:17 ­ 19. She did not, however, have any explanation as to why the layoff rate was 20% higher for employees over 40 years of age than for younger employees. Exhibit 4, Smet Depo., 32:24 ­ 33:1; 15:11 ­ 16:5. Ms. Smet acknowledged that the rate of layoffs for employees over 40 years old was statistically higher than expected, that two of three criteria for determining adverse impact had been met, and that the November 2001 layoff was "flirting with the margins of being adversely impactful." Exhibit 4, Smet Depo., 31:3 ­ 32:19; 36:9 ­ 37:4. Mr. Sanchez, like Ms. Smet, acknowledged that the percentages of employees over 40 that were laid off in November 2001 were "disproportionate" when presented with a statistical hypothetical which mirrored the November 2001 reduction in force. Exhibit 3, Sanchez Depo., 38:10 ­ 25. Ms. Smet did not know whether the laid off employees had been replaced or the ages or demographics of the replacement workers. Exhibit 4, Smet Depo., 38:8 ­ 12. Such statistics support Mr. White's personal observations. Only one of the professional employees laid off in the reduction in force was under 40, while the rest were over 40. Exhibit 1, White Depo., 90:20 ­ 23; Exhibit 4, Smet Depo., 21:13 ­ 22:4. Some employees, including Tim Simpson, were not terminated despite volunteering for layoff. Exhibit 2, Hutchins Depo., 22:2 ­ 22; Exhibit 1, White Depo., 91:6 ­ 92:3. Mr. White's department was never split up, and his responsibilities were divided between two younger employees, Tim Simpson and Ed DeSilva. Exhibit 1, White Depo., 98:13 ­ 100:3. After his termination, Mr. White participated in a reemployment seminar hosted by Waterpik; with one exception, all of the recently laid-off employees at that seminar were over 40. Exhibit 1, White Depo., 112:19 ­ 113:6. When Tim Simpson left the company only a couple of months after the November 2001 reduction in force,

"a certification from the Society of Human Resources Management Institute," but she is not a statistician. Exhibit 4, Smet Depo., 6:18 ­ 7:3; 11:9 ­ 14.

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his position was filled by Shane Klumb, who was 28 years old at the time. Exhibit 1, White Depo., 91:10 ­ 92:3; Water Pik's Brief in Support of Its Motion for Summary Judgment, undisputed material fact #23. Mr. Klumb replaced Mr. White notwithstanding the fact that Klumb was the manager responsible for losing approximately $430,000 in inventory. Exhibit 1, White Depo., 93:1 ­ 14; 95:19 ­ 96:14. Finally, evidence suggests that Defendant's campaign of replacing older employees with younger replacements was known to and actually encouraged by Defendant's most senior executive, CEO Mike Hoopus. In a meeting with Mr. White, Hoopus inquired about how long Mr. White had been with the company. Exhibit 1, White Depo., Exhibit 1, 119:1 ­ 17. When Mr. White answered that he had been employed with Defendant for five years, Hoopus told Mr. White: "Well, maybe you are not part of the problem." Id. The clear implication, which a reasonable jury could certainly infer, is that employees that had been employed with Defendant longer than five years (and are therefore likely to be older in general) were considered by the Defendant to be a "problem." In sum, Mr. White can establish that the proffered reasons for his termination were a pretext for age discrimination. Because a reasonable factfinder could rationally find that Defendant's proffered reasons are unworthy of credence and hence infer that the Defendant did not act for the asserted legitimate non-discriminatory reasons, Defendant's Motion for Summary Judgment must be denied. c. Curt Hutchins' ageist comments.

In addition to the anecdotal and statistical evidence of Defendant's discriminatory personnel decisions detailed above, further evidence of Defendant's discriminatory intent is found in the numerous derogatory age related comments of Curt Hutchins, Defendant's Director of Operations.

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In Danville v. Regional Lab Corp., 292 F.3d 1246 (10th Cir. 2002), the Tenth Circuit reversed a grant of summary judgment in favor of the employer, finding that a comment that a 64 year old plaintiff interviewing for a job "might not be around very long," though arguably isolated and ambiguous, was not a "stray" remark because it was made during the meeting at which candidates for the job were selected. See id. at 1251. The court, therefore, considered the remark as part of the evidence as a whole of pretext. [Defendant] characterizes this comment as an isolated, stray, ambiguous remark that is insufficient to show pretext. While the remark may be "ambiguous" in the sense of being susceptible to more than one interpretation, and "isolated" in the sense that it was only made once, this is not a "stray" remark in the sense that it lacks a nexus to the employment decision. The remark referred directly to the plaintiff and was made during the committee meeting at which interview candidates were selected. There was evidence from which a jury could conclude that the remark was intended to explain why plaintiff was not being interviewed. Plaintiff has shown an adequate nexus to the employment decision to treat the remark as evidence of pretext. Danville v. Regional Lab Corp., 292 F.3d at 1251. Mr. Hutchins made the decision to include Mr. White in the November 2001 reduction in force. See Water Pik's Brief in Support of Its Motion for Summary Judgment, undisputed material fact #18. In fact, it was Mr. Hutchins' mission to comb through Defendant's personnel and "eliminate waste" by making terminations and increasing profitability. See id. undisputed fact ##6, 8. Prior to his decision to terminate Mr. White, Mr. Hutchins, while serving as Mr. White's supervisor, would refer to Mr. White as "the dad" and as a "father figure." Exhibit 1, White Depo., 51:8 ­ 12. Mr. Hutchins instructed Mr. White to treat the engineers at the company as if they were his "children" and he were their "father" or "dad." Exhibit 1, White Depo., 52:6 ­ 53:24; 61:15 ­ 62:13. On numerous occasions Hutchins commented that employees were doing things "the old way," and he accused Mr. White of doing things "the old way" in numerous

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emails. Exhibit 1, White Depo., 64:24 ­ 65:23; 115:19 ­ 116:5. Employees at Defendant over 40 years of age were looked at because they were perceived to be doing things "the old way," and Mr. White commented to Human Resources and Tim Mulcahy that, due to the discriminatory environment, he was becoming too old to work at Waterpik. Exhibit 1, White Depo., 66:1 ­ 9; 64:24 ­ 67:2. Mr. White was not the only one aware of the problem, as the Human Resources representative advised Mr. White to "keep your head down" because the representative was aware of the "old" moniker as well. Exhibit 1, White Depo., 65:18 ­ 23. In light of Danville, Defendant cannot flippantly dismiss such ageist comments as "benign statements." As a preliminary matter, Mr. Hutchins' comments were neither isolated nor ambiguous. References to "father," "dad," and "the old way" were numerous and their meaning is facially clear. Furthermore, under Danville, the comments are not "stray" because there exists a direct nexus between the decision maker's discriminatory comments and the employment decision. Again, it is undisputed that Mr. Hutchins was directly charged with the task and authority to eliminate employees from Defendant's payroll. Mr. Hutchins made the comments during the commission of that task. Consequently, such statements are not stray remarks at all and can serve to explain to the jury why Mr. White was selected by Mr. Hutchins to be included in the reduction in force. B. PATTERN AND PRACTICE

Defendant argues that Mr. White cannot maintain and individual, non-class pattern and practice claim and seeks summary judgment on such claim on that basis. However, Mr. White's Complaint in this case seeks only one claim for relief: a violation of the Age Discrimination in

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Employment Act, 29 U.S.C. § 621 et seq. 3 In that claim for relief, Mr. White does allege that Defendant engaged in a "pattern and practice of discriminating against employees on the basis of age." Such language does not constitute a separate claim, but instead references the fact that Plaintiff intends to introduce evidence of Defendant's discriminatory treatment of other older employees in support of his individual ADEA claim. Evidence that an employer has engaged in a pattern of replacing older employees with younger employees is expressly permitted in this Circuit. It is true that of the eight men, three "retired" and two others "resigned." However, only Mr. Rosner appears to have been at retirement age, and more importantly, their departures occurred virtually en masse. Combined with Greene's testimony that Burd was willing to "do [him] the favor of letting [him] resign," . . . the proof as a whole was sufficient for a jury to infer that with Burd's ascendancy, there was a high-level effort that caused these retirements or resignations and that age was "a" determining factor. . . We have recognized the relevance and force of such evidence of a pattern of dismissals in Bingman v. Natkin & Co., 937 F.2d 553, 556-57 (10th Cir. 1991). There we upheld a judgment for the plaintiff on his ADEA claim, rejecting the employer's argument that the trial court erred in admitting evidence that two 60-year-old employees were laid off about a year after the 60-year-old plaintiff was dismissed. We stated that: evidence concerning the make-up of the employment force and events which occurred after plaintiff's termination were entirely relevant to the question of whether or not age was one of the determinative reasons for plaintiff's termination; and, as the trial court found, evidence not too remote in time that defendant terminated others in the 60-year-old age group would be entirely relevant to the question of defendant's policies and practices. . . .

Mr. White has also filed a motion seeking to amend the Complaint in this case by adding a claim for disparate impact in light of Smith v. City of Jackson, 2005 U.S. LEXIS 2931. Smith held that the theory of disparate impact does indeed apply in the age discrimination context and overrules the Tenth Circuit's holding in Ellis v. United Airlines, 73 F.3d 999 (10th Cir. 1996) which concluded that disparate impact claims were not cognizable under the ADEA in this circuit.

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Here the statistical data, while of course not conclusive, raised a justiciable issue of material fact which must proceed to trial. Greene v. Safeway Stores, Inc., 98 F.3d 554, 560-61 (10th Cir. 1996) (internal citations and references to the record omitted). Defendant's Motion for Summary Judgment, to the extent that it seeks summary dismissal of Mr. White's "pattern and practice" claim, must be denied in that no such separate claim for relief exists. To the extent that Defendant's Motion for Summary Judgment can be read as requesting this Court to exclude evidence of Defendant's pattern and practice (which would clearly be more appropriate in the form of a motion in limine and cannot be made in a motion for summary judgment), such request must be denied in light of Greene and its predecessor Bingman. Defendant's pattern and practice of treating older employees less favorably than younger employees, specifically by including older employees in the November 2001 reduction in force based upon age, and the demographic composition of Defendant's workforce after the reduction in force, is "entirely relevant to the question of whether or not age was one of the determinative reasons" for Mr. White's termination. Consequently, Defendant's motion for summary judgment must be denied. V. CONCLUSION

Because Mr. White has set forth a prima facie case of age discrimination, and because he has met his burden of producing sufficient evidence to establish that Defendant's proffered reason for his inclusion in the November 2001 reduction in force was a pretext for age discrimination, Defendant's Motion for Summary Judgment must be DENIED. Respectfully submitted this 27th day of June, 2005.

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KILLMER, LANE & NEWMAN, LLP /s/ Marcel Krzystek ______________________________ David A. Lane Marcel Krzystek 1543 Champa Street, Suite 400 Denver, CO 80202 (303) 571-1000 Attorneys for Plaintiff George White CERTIFICATE OF SERVICE I hereby certify that on June 27, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses:
· ·

John M. Husband [email protected] Alan David Schuchman [email protected]; [email protected] KILLMER, LANE & NEWMAN LLP /s/ Marcel Krzystek Marcel Krzystek Attorney for Plaintiff 1543 Champa St., Suite 400 Denver, Colorado 80202 (303) 571-1000 (303) 571-1001 ­ FAX [email protected]

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