United States District Court, District of Colorado
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
WILLIAM J. MARTÍNEZ UNITED STATES DISTRICT JUDGE
Plaintiff Keith Hoyt (“Plaintiff”) brings this action against his former employer, U.S. Bank N.A. (“Defendant”), for discriminatory termination and retaliation in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621, et seq. (“ADEA”). (ECF No. 1.) Before the Court is Defendant’s Motion for Summary Judgment (“Motion”). (ECF No. 29.) For the reasons set forth below, the Motion is denied.
I. STANDARD OF REVIEW
Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or conversely, is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000); Carey v. U.S. Postal Serv., 812 F.2d 621, 623 (10th Cir. 1987).
A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248. The Court must resolve factual ambiguities against the moving party, thus favoring the right to a trial. Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).
II. FACTUAL BACKGROUND
The following relevant facts are viewed in the light most favorable to the Plaintiff, and are undisputed except where noted.
Defendant is a nationally chartered bank operating a Small Business Administration division pursuant to the federal government’s Small Business Administration loan program. (Deposition of Maureen McGovern (“McGovern Dep.”) (ECF Nos. 29-2 & 46-2) pp. 23-24.) In March 2005, Plaintiff was hired at age 59 as a regional sales manager for Defendant’s Small Business Administration division by either Vicki Bunting or Dave Bartram. (McGovern Dep. p. 21-23; Deposition of Keith Hoyt (“Hoyt Dep.”) (ECF No. 35-2) pp. 5, 28.) As a regional sales manager, Plaintiff covered a specific geographical region, managed a team of business development officers (“BDOs”) in that region, and collaborated with bankers in other departments. (McGovern Dep. pp. 23-24; Hoyt Dep. pp. 45-46, 51-52.)
In the fall of 2009, Erik Daniels became the national sales manager for the Small Business Administration division with direct supervisory authority over Plaintiff. (Deposition of Erik Daniels (“Daniels Dep.”) (ECF Nos. 29-4, 35-1) p. 24.) Within a few months of Daniels’s hire, Steve Mattern, who was then a regional sales manager, told Plaintiff that Daniels had made a comment that there were two managers who were too old for the job and ought to have enough sense to retire, one of whom was impliedly Plaintiff. (Hoyt Dep. pp. 199-200.)
In early 2010, Plaintiff was issued his 2009 Performance Review, which gave him an overall rating of 3, meaning “solid performance” on a scale of 1 (“exceptional”) to 5 (“not effective”). (ECF No. 29-11 at 1, 3.) The 2009 Performance Review included a suggestion to “develop in the area of credit analysis” and a goal of “aggressive management of sales performance”. (Id. at 4.)
Plaintiff testified at his deposition that in the fall of 2010, after he returned from a week off of work due to illness, Daniels told Plaintiff that he thought it was a mistake for Plaintiff to come back to work because the job is too stressful for him and he “just can’t handle it anymore.” (Hoyt Dep. p. 208.)
In February 2011, Plaintiff called Human Resources to complain that he was disproportionately impacted by a recent company decision to reorganize the geographical regions assigned to each regional sales manager, and suggested that Daniels could be discriminating against him. (Hoyt Dep. pp. 186-88.) In the course of that conversation, Plaintiff reported an allegedly sexually harassing comment Daniels made regarding a female employee at a dinner attended by Plaintiff and three male BDOs approximately three years earlier. (Id. pp. 186-92.) Daniels was informed of Plaintiff’s sexual harassment complaint on February 18, 2011. (ECF No. 35-4.) Defendant investigated Plaintiff’s allegations of sexual harassment and issued a written warning to Daniels. (McGovern Dep. pp. 84-85, 105.)
In Plaintiff’s 2010 Performance Review, issued in April 2011, he received an overall rating of 4, meaning “needs improvement”. (ECF No. 29-12.) An overall rating of 4 makes the recipient ineligible for a long-term incentive bonus payment. (Daniels Dep. p. 80.) An overall rating of 4 also generally leads to an action plan or development plan, which identifies specific areas of unsatisfactory performance and requires improvement in those areas within a specified time frame. (McGovern Dep. p. 65.) Plaintiff received a Development Plan as part of his 2010 Performance Review, which specified a need to improve his knowledge of credit transactions, build collaborative relationships, be proactive as a leader of his BDO team, and hold his BDOs accountable. (ECF No. 29-12.)
On June 29, 2011, Plaintiff was placed on a 60-day Action Plan, which stated that “we have not seen the improvement necessary to satisfy the Development Plan” and identified several areas of failures to meet expectations, including failure to hire any new BDOs, failure to manage poorly performing BDOs, failure to communicate and follow through on credit training, failure to successfully follow through in meetings and communications with supervisors, and low production numbers. (ECF No. 29-13.) The Action Plan indicated that failure to improve in the identified areas “may result in further disciplinary action, up to and including termination”, and that the Action Plan disqualified Plaintiff from receiving any incentive bonuses during the quarter in which it was issued. (Id.)
Two other regional sales managers in the Small Business Administration division, Han Kim and Mark Gibson, were also given Development Plans in 2011 based on a failure to meet production goals in their 2010 Performance Reviews. (McGovern Dep. p. 66.) However, neither Kim nor Gibson were placed on subsequent performance improvement plans in 2011. (Daniels Dep. p. 96.)
After completion of the 60-day Action Plan period, Daniels recommended to his supervisor, Julie Huston, that Plaintiff be terminated. (Daniels Dep. pp. 23, 191.) Plaintiff was terminated on September 7, 2011, at the age of 66. (McGovern Dep. pp. 118-19; Hoyt Dep. p. 5.)
Plaintiff filed this action on April 18, 2013. (ECF No. 1.) Defendant’s Motion was filed on March 25, 2014. (ECF No. 29.) Plaintiff filed a Response (ECF No. ...