United States District Court, D. Colorado
December 29, 2016
PETE GARCIA, Plaintiff,
ENSIGN UNITED STATES DRILLING INC., Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY
CHRISTINE M. ARGUELLO United States District Judge
matter is before the Court on Defendant Ensign United States
Drilling, Inc.'s (Ensign) Motion for Summary Judgment
pursuant to Fed.R.Civ.P. 56, in which Ensign contends that
Plaintiff Pete Garcia presents no genuine dispute as to any
material fact related to his age discrimination claim under
the Age Discrimination in Employment Act (ADEA). (Doc. # 31.)
For the following reasons, the Court denies the motion.
following facts are undisputed.
Garcia began working for Ensign in 2000 and spent most of his
tenure there working as a derrickhand on Ensign drilling
rigs. (Doc. # 31 at ¶¶ 1-2.) In June 2012, Mr.
Garcia requested a transfer from Ensign Rig No. 161 in North
Dakota to Ensign Rig No. 17 in Limon, Colorado. (Id.
at ¶¶ 6-7.) At the time, the only position open on
Rig No 17 was an entry-level floorhand position.
(Id. at ¶ 10.) The “Driller” on Rig
No. 17 was Jeff Harrington, and the Senior Rig Manager (Mr.
Harrington's direct supervisor) was Ron Gentry.
(Id. at ¶¶ 8, 12, 14.) Mr. Harrington
interviewed Mr. Garcia for the open floorhand position, and
with Mr. Gentry's approval and recommendation, Mr.
Harrington hired Mr. Garcia at the time of the interview.
(Id. at ¶¶ 17, 19, 20.)
October 2012, after about four months working as a floorhand,
Ensign terminated Mr. Garcia from his position. (Doc. #31,
Appx. at 12.) Mr. Garcia was fifty-seven years old at the
time. (Doc. # 32 at ¶ 5.) On October 26, 2015, Mr.
Garcia initiated this suit against Ensign, alleging that his
termination violated the ADEA. (Doc. # 1.)
September 1, 2016, Ensign filed the instant motion for
summary judgment (Doc. # 31), contending that Mr. Garcia
cannot demonstrate genuinely disputed issues of material fact
with regard to the legality of his termination. Ensign
specifically argues that, even if age played a factor in Mr.
Garcia's termination, it was not the “but-for
cause” and Mr. Garcia cannot present undisputed
evidence suggesting otherwise. In his response (Doc. # 32),
Mr. Garcia argues the contrary position-that summary judgment
is unwarranted because direct and circumstantial evidence
sufficiently demonstrate a genuine dispute over issues of
material fact regarding whether age was the determinative
factor in his termination.
STANDARD OF REVIEW
judgment is appropriate if the moving party demonstrates that
there is no genuine dispute as to any material fact and that
it is entitled to a judgment as a matter of law. Fed.R.Civ.P.
56(a). In applying this standard, the Court views the
evidence and all reasonable inferences therefrom in the light
most favorable to the nonmoving party. Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)). A fact is material if,
under the applicable substantive law, it is essential to the
proper disposition of the claim. Id. (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). A dispute of fact is genuine if there is sufficient
evidence on each side so that a rational trier of fact could
resolve the issue either way. Id. (citing
Anderson, 477 U.S. at 248).
moving party bears the initial burden of demonstrating an
absence of a genuine issue of material fact and entitlement
to judgment as a matter of law. Id. at 670-71. Once
the movant has met this initial burden, the burden shifts to
the nonmoving party to set forth specific facts showing that
there is a genuine issue for trial. Anderson, 477
U.S. at 256. The nonmoving party may not simply rest upon its
pleadings to satisfy its burden. Id. Rather, the
nonmoving party must set forth specific facts that would be
admissible in evidence in the event of trial from which a
rational trier of fact could find for the nonmoving.
Adler, 144 F.3d at 671. To accomplish this, the
facts must be identified by reference to affidavits,
deposition transcripts, or specific exhibits incorporated
LAW GOVERNING ADEA CLAIMS ON SUMMARY
mentioned, Mr. Garcia brings one claim for
relief-discrimination under the ADEA, which prohibits an
employer from terminating an employee “because of such
individual's age.” See 29 U.S.C. § 623(a)(1).
The ADEA enables employers to exercise “sound business
judgment in personnel matters[; they] may discipline and
terminate at will employees for any reason, so long as such
termination is not unlawful.” Kosak v. Catholic
Health Initiatives of Colo., No. 08-cv-01505, 2009 WL
3497782, at *4 (D. Colo. Oct. 28, 2009) (unpublished).
prevail on a claim under the ADEA, a plaintiff must prove by
a preponderance of the evidence (which may be direct or
circumstantial) that age was the “‘but-for'
cause of the employer's adverse decision.”
Gross v. FBL Fin. Servs. Inc., 557 U.S. 167, 176- 78
(2009); Riggs v. AirTran Airways, Inc., 497 F.3d
1108, 1114 (10th Cir. 2007). The “but for” causal
standard does “not require[ ] [plaintiffs] to show that
age was the sole motivating factor in the employment
decision.” Jones v. Oklahoma City Pub. Sch.,
617 F.3d 1273, 1277-78 (10th Cir. 2010) (quoting
Wilkerson v. Shinseki, 606 F.3d 1256, 1266 (10th
Cir. 2010)). Instead, an employer may be held liable under
the ADEA if other factors contributed to its taking an
adverse action, as long as “age was the factor that
made a difference.” Id. (quoting
Wilkerson, 606 F.3d at 1266); accord Hazen Paper
Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123
L.Ed.2d 338 (1993) (requiring an ADEA plaintiff to show that
age had a “determinative influence on the
outcome” of her employer's decision-making
cases of circumstantial evidence, “plaintiffs may use
the McDonnell Douglas . . . analysis to prove age
discrimination under the ADEA.” Jones, 617
F.3d at 1278; see McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Under that analysis, a plaintiff bears
the initial burden of setting forth a prima facie case that:
“1) [he] is a member of the class protected by the
[ADEA]; 2) [he] suffered an adverse employment action; 3)
[he] was qualified for the position at issue; and 4) [h]e was
treated less favorably than others not in the protected
class.” Sanchez v. Denver Pub. Schs., 164 F.3d
527, 531 (10th Cir. 1998). Throughout the analysis,
“[t]he plaintiff ... carries the full burden of
persuasion to show that the defendant discriminated on [an]
illegal basis.” Id. (quoting Bryant v.
Farmers Ins. Exch., 432 F.3d 1114, 1125 (10th Cir.
plaintiff establishes a prima facie case, the burden shifts
to the defendant to articulate a legitimate,
nondiscriminatory reason for taking the adverse employment
action. Jones, 617 F.3d at 1278; Pippin v.
Burlington Resources Oil & Gas Co., 440 F.3d 1186,
1193 (10th Cir. 2006). If the defendant offers a legitimate,
nondiscriminatory reason for its actions, summary judgment
against plaintiff is warranted unless he shows that here is a
genuine issue of fact as to whether defendant's reason is
pretextual. Pippin, 440 F.3d at 1193.
“Once a plaintiff presents evidence sufficient to
create a genuine factual dispute regarding the veracity of a
defendant's nondiscriminatory reason, [the Court]
presume[s] the jury could infer that the employer acted for a
discriminatory reason and must deny summary judgment.”
Bryant, 432 F.3d at 1126; Sanderson Plumbing
Products, Inc., 530 U.S. 133, 148 (2000)) (“[A]
plaintiff's prima facie case [of age discrimination]
combined with sufficient evidence to find that the
employer's asserted justification is false” will
defeat summary judgment.”).
plaintiff produces sufficient evidence of pretext when she
shows “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.”
Jaramillo v. Colo. Judicial Dep't, 427 F.3d
1303, 1308 (10th Cir. 2005).
instant case, the parties' dispute lies in the third step
of the McDonnell Douglas analysis-whether Mr. Garcia
was qualified for the position at issue.
argues that Mr. Garcia was not so qualified and that his
unsatisfactory work performance, i.e. Mr. Garcia's
failure to meet the “high expectations” of the
job resulting in safety issues (Doc. # 31 at 9-12), was the
“but-for” cause of his termination, not his age.
In support, Ensign highlights evidence of Mr.
Harrington's and Mr. Gentry's personal observations
of Mr. Garcia's work, including their deposition
testimony that he “had difficulty” performing the
job tasks, needed “significant assistance, ” did
not have the “physical strength” required for the
job, and was “disoriented” and “not
focused” at work. (Id. at 10-11; Doc. # 31-1
at 23, 26-27, 38-39.) Mr. Harrington also stated in
deposition that he received complaints that Mr. Garcia was
not effective at operating the “slips”-a piece of
equipment used in the drilling process. (Id. at
¶¶ 36-37; Doc. # 31-1. at 78.) Mr. Harrington and
Mr. Gentry added that they observed Mr. Garcia having
difficulty running the “Hawkjaw”-“a major
component of a floorhand's job.” (Id. at
¶¶ 31-35; Doc. # 31-1 at 21-22, 38-39.)
Garcia, however, presents contrary evidence, which
demonstrates, he contends, that he was qualified for the job
and performed it adequately but was fired for his age.
See E.E.O.C. v. Horizon/CMS Healthcare Corp., 220
F.3d 1184, 1193 (10th Cir. 2000) (“At the prima facie
stage of the McDonnell Douglas analysis, a plaintiff
is only required to raise an inference of discrimination, not
dispel the non-discriminatory reasons subsequently proffered
by the defendant.). Mr. Garcia also contends that this
evidence sufficiently demonstrates pretext. For example, Mr.
Garcia highlights the following evidence raising an inference
of discrimination and showing “weaknesses,
implausibilities, inconsistencies, incoherencies, or
contradictions, ” Jaramillo, 427 F.3d at 1308,
in Ensign's proffered legitimate reasons for its action:
• Mr. Garcia's deposition testimony that when Mr.
Harrington fired him, Mr. Harrington told him that he thought
he was younger and stated, “I'm letting you go
because you don't meet my high expectations and
because of your age.” (Doc. # 32-1 at 20-21.)
• An affidavit of Oscar Portales, Mr. Garcia's
coworker, stating, among other things, that Mr. Garcia
“was a good hand”; he had “no
recollection” of Mr. Garcia being unable to complete
his assigned tasks; he “never saw anyone” step in
and help Mr. Garcia; Mr. Garcia did not do “anything
too slowly or slow anyone down”; and Mr. Harrington
“saw [Mr. Garcia] getting his work done.”
(Id. at 54.)
• Mr. Portales statement in his affidavit that, when Mr.
Gentry hired him, he mentioned that Mr. Portales was
replacing an individual that was too old and too weak.
• Mr. Gentry's deposition testimony that he had no
concerns about Mr. Garcia's physical aptitude or ability
to physically perform his job and that no one had expressed
any concerns to him, other than Mr. Harrington, about Mr.
Garcia's work performance. (Id. at 31.)
• Mr. Gentry's deposition testimony where he quoted
various portions of the floorhand job description that he
believed Mr. Garcia could perform well, including:
“Works in a safe, healthy, and environmentally
protective manner.”; “Works as a team member with
the rest of the rig crew, at a high level of efficiency
during trips & other team efforts.”;
“Demonstrates responsibility to avoid adversely
affecting the health and safety of others through any act or
omission.”; “Avoids injury resulting from manual
handling tasks, by use of risk assessment, correct mechanical
handling equipment and correct manual handling
techniques.”; “Works in a manner that ensures
personal safety and the safety of fellow crew
members.”; etc. (Id. at 34.)
• Deposition testimony by Ensign human resources
personnel that Mr. Garcia's entire personnel file, which
includes “all performance records, ” is devoid of
any performance or safety issues on Rig No. 17, other than in
the final termination paperwork. (Id. at 14.)
Further testimony that Ensign requires the reporting of all
“incidents that occur on the rig to minimize potential
future incidents” and that supervisors, such as Mr.
Harrington, are required to report any “at-risk
behaviors.” (Id. at 5, 12, 57.)
Court finds that this evidence is sufficient to raise an
inference of discrimination and create a genuine factual
dispute regarding the veracity of Ensign's
nondiscriminatory reason for terminating Mr. Garcia. See
Bryant, 432 F.3d at 1125. In other words, viewed in the
light most favorable to Mr. Garcia, the evidence supports
that a reasonable jury might find that Ensign acted with
discrimination, particularly considering that some of Mr.
Garcia's evidence is direct evidence. See Power v.
Koss Const. Co., 499 F.Supp.2d 1194, 1201 (D. Kan. 2007)
(“Plaintiff may demonstrate defendant's
discriminatory motive, and therefore defeat summary judgment,
by presenting direct evidence of defendant's
discriminatory intent.”); see also Kendrick v.
Penske Transp. Servs., Inc., 220 F.3d 1220, 1225 (10th
Cir. 2000) (direct evidence can be “oral or written
statements on the part of a defendant showing a
discriminatory motivation.”). To conclude otherwise
would require the Court to weigh the credibility of the
parties' witnesses, and the Court cannot, at the summary
judgment stage, engage in such an analysis, except, of
course, to the extent that the Court favorably views Mr.
Garcia's contentions. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986) (credibility
determinations must be left for the jury); Fogarty v.
Gallegos, 523 F.3d 1147, 1165-66 (10th Cir. 2008)
(same); Seamons v. Snow, 206 F.3d 1021, 1026 (10th
Cir. 2000) (same).
that the jury might find against Mr. Garcia does not warrant
granting summary judgment. The threshold inquiry is whether
“there are any genuine factual issues that properly can
be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party.”
Anderson, 477 U.S. at 250 (emphasis added). In other
words, the Court need only find the existence of a genuine
dispute as to material facts, i.e. genuine issues for trial.
Id. Because the Court has so found, the Court must
deny summary judgment.
concluding, the Court reject Ensign's arguments that (1)
if undisputed facts show that Ensign had two motives for
termination, Garcia cannot prevail on his age discrimination
claim and summary judgment must enter; and (2) the same actor
inference applies here to require judgment in Ensign's
favor as a matter of law.
Tenth Circuit precedent makes clear that a plaintiff need not
demonstrate that age was the “sole” cause of the
adverse employment action. Jones, 617 F.3d at
1277-78 (quoting Wilkerson v. Shinseki, 606 F.3d
1256, 1266 (10th Cir. 2010)). In cases where the employer has
mixed motives for termination, the plaintiff need only show
that age was the factor that “made a difference,
” id., not that the other, nondiscriminatory
factor played no role at all.
Court acknowledges that there may “be instances where,
although the plaintiff has established a prima facie case and
set forth sufficient evidence to reject the defendant's
explanation, no rational factfinder could conclude that the
action was discriminatory.” Reeves, 530 U.S.
at 148. For example, an employer would be entitled to summary
judgment “if the record conclusively revealed some
other, nondiscriminatory reason for the employer's
decision or if the plaintiff created only a weak issue of
fact as to whether the employer's reason was untrue
and there was abundant and uncontroverted independent
evidence that no discrimination had occurred.”
Id. (emphasis added). This is not such a case. The
evidence presented here does not conclusively reveal that
Ensign's nondiscriminatory reason indisputably prevailed
over the discriminatory one, nor does there exist
“abundant and uncontroverted independent evidence that
no discrimination occurred.” Id. Indeed, Mr.
Garcia has submitted sufficient evidence to the
contrary-evidence that could permit a rational trier of fact
to resolve the case in his favor.
the same actor inference is insufficient, standing alone, to
warrant summary judgment in this case. That doctrine provides
that, when “the employee was hired and fired by the
same person within a relatively short time span, ”
there is “a strong inference that the employer's
stated reason for acting against the employee is not
pretextual.” Antonio v. Sygma Network, Inc.,
458 F.3d 1177, 1183 (10th Cir. 2006). Defendants argue that
the same actor inference applies here because Mr. Harrington
and Mr. Gentry hired Mr. Garcia and then jointly terminated
his employment approximately four months later. (Doc. # 31 at
9-10.) Ensign argues that this evidence “negates an
inference of age discrimination” all together.
that the same actor inference applies in this case, same
actor evidence does not, as Ensign suggests, negate an
inference of age discrimination, and it is not determinative
on a summary judgment motion. Although same actor evidence
can create an inference that no discriminatory animus
motivated the employer's actions, that is not the same as
creating a presumption. Antonio, 458 F.3d at 1183
(emphasis added). “The plaintiff still has the
opportunity to present countervailing evidence of
pretext.” Id. As the Court has already
concluded, Mr. Garcia has presented sufficient countervailing
evidence of discrimination to defeat summary judgment.
Viewing that evidence in the light most favorable to him,
Ensign's presentation of same actor evidence does not
persuade the Court otherwise.
because genuine disputes exist as to material facts in this
case, the case is better left for the jury to decide and
Ensign is not entitled to a judgment as a matter of law.
Court therefore ORDERS that Defendant's Motion for
Summary Judgment (Doc. # 31) is DENIED.