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Johnson v. Securitas Security Services USA, Inc.

United States Court of Appeals, Eighth Circuit

August 26, 2013

Carlyn M. Johnson Plaintiff- Appellant
Securitas Security Services USA, Inc. Defendant-Appellee

Submitted: January 16, 2013

Appeal from United States District Court for the Eastern District of Missouri - St. Louis

Before BYE, MELLOY, and SMITH, Circuit Judges.

SMITH, Circuit Judge.

Carlyn Johnson, aged 76, was fired from his position as a security guard for Securitas Security Services USA, Inc. ("Securitas") after he was involved in a car accident while on-duty and allegedly left his post early. Johnson filed an age discrimination claim under the Age Discrimination in Employment Act (ADEA) and the Missouri Human Rights Act (MHRA), asserting that Securitas had fired him because he was an older worker. Johnson cited evidence that prior to his termination Securitas supervisors showed age animus through negative comments regarding Johnson's age. The district court granted summary judgment in favor of Securitas, concluding that Johnson did not present a prima facie case of age discrimination. We reverse.

I. Background

Johnson, who was born in 1932, initially worked as a Utility Officer for Pinkerton, a unit of Securitas. When Securitas changed Pinkerton's name to Securitas, Johnson applied for employment with Securitas and was hired at age 70. As a Utility Officer, Johnson was charged with providing on-site security guard services at various locations. Charlie Bunch, one of Johnson's supervisors, testified that between 2004 and 2009, he had never disciplined or written up Johnson for any performance issues and had never received any performance complaints. Bunch did testify that he gave Johnson one verbal warning for sleeping on the job.

Johnson testified that his supervisor, Robert Hesse, would comment that Johnson, "needed to hang up his Superman cape, " was "too old to be working, " and needed to retire. Hesse also compared Johnson to Hesse's 86 year old father, who Hesse stated had left employment. Hesse also testified that he suggested to other Securitas managers that they "prevent [Johnson] from working 50, 60 hours a week." Johnson also stated that he brought Hesse's comments to his supervisors' attention, including Hesse himself, Tony Simmons, and Charlie Bunch.

At approximately 5:30 a.m. on January 25, 2009, while on duty in a Securitas vehicle, Johnson collided with an unoccupied, parked truck. Johnson had worked approximately 20 consecutive hours. Johnson testified that he was told his shift was scheduled to end at 7:00 a.m. However, Securitas claims his shift did not end until 8:00 a.m. Following the accident, at approximately 7:00 a.m., Johnson telephoned Bunch, the on-call supervisor. Johnson testified that he had attempted to contact the supervisor at approximately 5:45 a.m. but was unable to reach him due to bad cell phone reception. During this conversation, Johnson suggested that his shift ended at 7:00 a.m., and Bunch concurred, telling Johnson to go home and that Bunch would call him later. Bunch later testified that during this conversation, Bunch did not know when Johnson's shift ended and it was not until the next day that he was informed by Hesse that Johnson's shift actually ended at 8:00 a.m. Bunch completed an incident report. Initially, Bunch wrote that Johnson knew his shift ended at 7:00 a.m., but he later changed it to read that Johnson knew his shift ended at 8:00 a.m. During the investigation of the accident, Johnson took a blood test, wrote a statement regarding the incident, and spoke with Securitas's Human Resources Director, Sherry Parker, on the telephone.

On January 28, 2009, Parker, who had been with Securitas approximately a month, terminated Johnson. In response to an interrogatory, Securitas stated that Parker, Bunch, and Hesse participated in the decision to terminate Johnson. Parker testified that she did not know how old Johnson was at the time of his termination. Johnson testified, however, that Parker was aware of his age and confirmed Johnson's birth year when she terminated Johnson. Johnson's Personnel Action Form stated the reason for termination as "Violation of company code (page 87, #18)" and also stated Johnson "was in an accident and left post before end of shift @ 7 am[.] He called field service and stated he was in an accident and was on his way home."[1] Parker testified that the concurrent notes she took regarding Johnson's termination have since been destroyed.

Securitas responded to an interrogatory regarding whether Johnson's job performance met Securitas's standard for the position. Securitas responded that "[a]t various times during his employment, Johnson's job performance was unsatisfactory inasmuch as he failed to perform the functions of the position in a manner that met Securitas' legitimate expectations." Parker asserted that Securitas had other grounds for terminating Johnson, including his failure to immediately report the accident to his supervisor and his failure to speak with Parker in person regarding the accident. Hesse testified that to his knowledge, since 2002, Johnson had not left his assignment early prior to the January 25, 2009 accident. On February 6, 2009, after Johnson contacted Securitas regarding his termination, Securitas responded through Vice President of Human Resources North Central Region, Laura Rysavy, stating,

Your employment was terminated for violating company policy. The accident you claimed happen[ed] at 5:39 and yet you stated that you called a little after 7:00am and stated you were on your way home. The post shift did not end until 8:00am[.] The post was left early therefore violating company policy (page 87, #18 & #26). There are protocols to follow when employees have an accident and you did not follow through with proper procedure. We regret that your employment has to end in this way but the facts are clear that the employment termination was based on legitimate, non-discriminatory, credible business factors.

Securitas's company policy page 87, reason #26 is designated "Significant violation of a client's Post Orders."

After Johnson requested another review of his termination, Securitas replied in a February 27, 2009 letter from Rysavy. Rysavy indicated that Johnson was terminated because: (a) he was "involved in an at fault accident with the company vehicle while on duty"; and (b) "[f]ollowing the accident you did not follow proper procedure and, in fact, left the worksite prior to the end of your shift, " thus violating company policy ...

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