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Behr v. AADG, Inc.

United States District Court, N.D. Iowa, Central Division

August 30, 2017

DENNIS BEHR, and GLENN WILLIER, and Employees Similarly Situated to Them, Plaintiffs and Counter Defendants,
v.
AADG, INC., d/b/a Curries, Defendant and Counter Claimant.

          ORDER

          C.J. WILLIAMS CHIEF UNITED STATES MAGISTRATE JUDGE.

         TABLE OF CONTENTS

         I. INTRODUCTION .......................................................................... 2

         II. PROCEDURAL HISTORY ............................................................... 2

         III. UNDISPUTED FACTS .................................................................... 3

         A. Filing with Agency .................................................................. 3

         B Reduction in Force ................................................................... 4

         C. Employees fired due to their intent to retire in 2014 ............................ 6

         D. Employees fired due to combination of objective and subjective factors ................................................................ 10

         IV. SUMMARY JUDGMENT STANDARDS ............................................. 12

         V. LEGAL STANDARDS .................................................................... 14

         VI. DISCUSSION .............................................................................. 17

         A. Disparate impact .................................................................... 17

         B. Disparate treatment ................................................................... 22

         VII. CONCLUSION ............................................................................. 29

         I. INTRODUCTION

         Before the Court is defendant's Motion for Summary Judgment (Doc. 105) and plaintiffs' Second Motion for Partial Summary Judgment (Doc. 106). The Court heard oral argument on both motions on June 27, 2017. For the reasons that follow, the Court grants in part and denies in part defendant's motion for summary judgment, and denies plaintiffs' motion for summary judgment.

         II. PROCEDURAL HISTORY

         In November 2014, plaintiff Dennis Behr filed a complaint in this Court against defendant alleging discriminatory discharge due to Behr's age. (Doc. 2). Defendant filed an answer and asserted the counterclaim of breach of contract. (Doc. 5). On August 18, 2015, plaintiffs filed an Amended Complaint (Doc. 25) to add a second named plaintiff, Glenn Willier. The First Amended Complaint alleged: Count One-Age Discrimination in violation of 29 U.S.C. §§ 621 et seq. (ADEA) on behalf of plaintiff Dennis Behr and added Count Two-Age Discrimination in violation of 29 U.S.C. §§ 621 et seq. (ADEA) on behalf of plaintiff Glenn Willier. The Court granted conditional class certification on October 6, 2015. (Doc. 28). In February 2016, plaintiffs filed a Second Amended Complaint. (Doc. 61). The Second Amended Complaint added the allegation that “AADG's ‘Reduction in Force' program had a disproportionate adverse effect on older employees.” (Id., at 4 ¶ 28 and 6 ¶ 43).

         On November 20, 2015, plaintiffs filed their first motion for partial summary judgment. (Doc. 31). On December 21, 2015, defendant filed a cross-motion for summary judgment. (Doc. 40). On April 6, 2016, the Court heard oral arguments from the parties on these motions. (Doc. 71). On July 29, 2016, after post-hearing briefings were submitted by the parties (Docs. 73 & 74), the Court granted plaintiffs' first motion for partial summary judgment and denied defendant's cross-motion for summary judgment. (Doc. 82). The Court found that the “Separation Agreement, General Release and Covenant Not to Sue” (Separation Agreement), signed by all 14 employees terminated under defendant's Reduction in Force (RIF) program, contained an invalid and unenforceable ADEA (Age Discrimination in Employment Act) waiver.

         On October 5, 2016, the Court granted defendant's motion for Certificate of Appealability on its Order Granting Partial Summary Judgment to Plaintiffs (Doc. 84) and stayed the proceedings. (Doc. 91). The Eighth Circuit Court of Appeals denied the petition for permission to file interlocutory appeal on December 22, 2016. (Doc. 93). In January 2017, the Court issued a Second Revised Scheduling Order and a Second Revised Trial Management Order. (Docs. 100 & 101). In April 2017, the Court issued a Third Revised Trial Management Order. (Doc. 103). Discovery closed May 10, 2017. All dispositive motions were due on May 22, 2017. A jury trial is scheduled in this matter on November 1, 2017.

         III. UNDISPUTED FACTS

         Based on the parties' respective filings, the Court finds that the relevant facts set forth below, unless otherwise noted, are undisputed for purposes of the motions for summary judgment.

         A. Filing with agency

         It is undisputed that plaintiffs Dennis Behr and Glenn Willier each timely filed a complaint with the Iowa Civil Rights Commission (ICRC).[1] On May 12, 2014, plaintiff Dennis Behr filed his original Complaint Form with the Iowa Civil Rights Commission (ICRC). Plaintiff Behr wrote: “I had worked at [defendant] for almost thirty-one years when I was terminated on February 17, 2014. . . . I believe I was selected to be included in the reduction in force because of my age. I was sixty years old at the time of my termination.” (Doc. 105-2, at 061-062). Plaintiff Glenn Willier filed his original complaint on September 25, 2014, alleging that “I am 65 years old and my employer terminated me. They told me I was terminated as part of a reduction in force. I believe 1 was chosen for termination because of my age.” (Id., at 044). ICRC received plaintiff Glenn Willier's Questionnaire on November 4, 2014, wherein he stated: “[Defendant] retained numerous younger employees with less experience or seniority while terminating me and other older workers.” (Doc. 105-3, at 048). Plaintiff Dennis Behr then filed an amended complaint with the ICRC to add the following statement, “I believe the company also discriminated against others who were similarly situated to me on the basis of age.” (Id., at 054).

         B. Reduction in Force

         On February 5 and 6, 2014, Curries' President and Chief Executive Officer (CEO), Jerry Currie, and its Director and Manager of Operations, Ross Buchele, attended an AADG business meeting in Easton, Pennsylvania. On February 6, they were informed that they needed to cut $1.4 million in indirect personnel costs. (Doc. 130-2, at 1). Kent Winters, Vice President/General Manager of hollow metal operations, was also present at the meeting. They classified 175 employees as indirect labor employees eligible for the RIF. Vicki Gordon, Human Resources Director of the ASSA ABLOY Door Group, sent Kent Winters a list containing indirect labor employees' names, ages, and job titles.[2]Currie and Buchele drafted a list of employees to be terminated as part of the RIF. Mark Evers, Human Resources Director at Curries, was not consulted until after the termination list was completed.

         Defendant had written policies setting forth factors to be considered in selecting “salaried” and “hourly” employees for termination in the RIF. Among other things, those policies called for job performance to be a factor in determining RIF eligibility. Currie and Buchele did not review any job performance documents nor consult with any supervisors or managers when they decided on February 6 which employees would be terminated.[3]

         Later in February, defendant terminated 14 employees[4] pursuant to a RIF. Only indirect labor employees were eligible under the RIF program; direct production employees were ineligible.

         The 14 terminated employees included:

Name

Age

Job Title

Dennis P. Behr

59

Maintenance Electrician X Lead

Glenn Willier

64

General Maintenance

Mark F. Evers

65

Director-Human Resources

Michael D. Eppens

46

Door Foreman

Larry Gustafson

65

Draft Tech

Thomas E. Dempsey

64

Maintenance-Electrical-X

Dale E. Glenn

51

Manufacturing Engineer

Robert R. Lauen

64

Pricing DBC

Curtis B. Darnell

53

Project Manager

Thomas M. Lewis

62

Customer Service Assistant

Judy A. Griswold

33

Order Processing-C1

Douglas Schroeder

59

Shared Services Manager

Ronald A. White

67

Shipping Supervisor

Michael S. Ballard

63

Cost Accountant

(Doc. 117, at 113-18 (list of the decisional unit dated 2/13/14 sent by Human Resources Director Vicki Gordon to Mark Evers and Karen Ries) (emphasis for plaintiffs added)).

         The six terminated plaintiffs will be discussed at length below (Dennis Behr and Glenn Willier, and conditionally certified opt-in plaintiffs Robert Lauen, Dale Glenn, Curtis Darnell, and Michael Eppens). The other eight terminated employees did not opt-in to the class. According to defendant, Judy Griswold (age 33[5]) was terminated because she had not completed job training and her duties were absorbed by others. (Doc. 105-3, at 022 (defendant's amended answers to interrogatories)). According to defendant, Tom Lewis was terminated as he was the only part-time employee. (Id.). Plaintiffs dispute this reasoning and allege that “Lewis, age 62, was the oldest of 14 employees in the customer service department.” (Doc. 115, at 8). Ron White, according to defendant, was terminated because there was redundancy in the management layer of the shipping department. (Id., at 12). Doug Schroeder's position was eliminated. (Id.). Mark Evers, Thomas Dempsey, and Larry Gustafson were selected due to previous indications of intention to retire in 2014. (Id., at 8).

         C. Employees fired due to their intent to retire in 2014

         Defendant included plaintiffs Robert Lauen and Glenn Willier in the RIF because it believed these employees[6] had “previously indicated a plan to retire during 2014.” (Doc. 117, at 11). Plaintiffs wish to qualify this fact with the phrasing that these employees had “expressed plans of possibly retiring later in 2014 or had otherwise talked about retirement.” (Doc. 115, at 8 ¶ 22). In her deposition, Vicki Gordon, Director of Human Resources for ASSA ABLOY Door Group, explained the thought-process regarding the RIF. Defendant was required to cut costs, yet it did not want to “take out people.” (Doc. 105-2, at 107, 127:15-20). Ms. Gordon testified that in order to “salvage” other employees who, regardless of age, intended to stay with defendant for a longer term, defendant included in the RIF employees who intended to leave the company. This included employees planning to retire soon due to their financial independence.[7] She stated that hypothetically any employees desiring to leave (e.g., move to Oregon) would have been included in the RIF for the same reasoning.[8]

         1. Glenn Willier

         Plaintiffs propounded interrogatories on defendant asking defendant to provide a detailed explanation of the basis for defendant's belief that these employees intended to leave the company. Defendant answered Interrogatory No. 15 as follows:

Glenn Willier
a. [Defendant] is uncertain of the exact date he first informed [defendant] of retirement plans, but he had discussed it prior to February 5, 2014.
b. Initially planned to retire in March 2014, then discussed the possibility of working 3 days a week until retirement in ...

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