United States District Court, D. Colorado
ORDER DENYING SUMMARY JUDGMENT
Wlliam
J. Martínez, United States District Judge.
In this
age discrimination case, Plaintiff Richard Rudy
(“Rudy”) alleges that he was terminated from his
employment with Defendant Ecology & Environment, Inc.
(Defendant, or “E&E”), in violation of the
Age Discrimination in Employment Act, 29 U.S.C. § 621
(“ADEA” or the “Act”). Now before the
Court is E&E's Motion for Summary Judgment. (ECF No.
27.) For the reasons explained 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). 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
jury could return a verdict for either party.
Anderson, 477 U.S. at 248.
In
ruling on summary judgment, 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). “Credibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the facts are jury functions,
not those of a judge.” Anderson, 477 U.S. at
255. Where the evidence permits competing inferences, the
Court will not decide which one is more likely, and summary
judgment is not appropriate. See Flores v. Monumental
Life Ins. Co., 620 F.3d 1248, 1254 (10th Cir. 2010)
(citing Brown v. Parker-Hannifin Corp., 746 F.2d
1407, 1411 (10th Cir. 1984) (“Where different ultimate
inferences may be drawn from the evidence . . . the case is
not one for summary judgment.”)).
II.
BACKGROUND
The
following facts are undisputed unless attributed to a party
or source.
Defendant
E&E is an environmental consulting firm with offices
throughout the United States. (ECF No. 27 at 3, ¶¶
1-3.) Plaintiff Rudy began working for E&E in August 1982
as a hydrogeologist. (Id. ¶ 5; ECF No. 27-2 at
9.)[1]
In general terms, Rudy rose through the ranks over the next
32 years at E&E, working in several locations, and
joining E&E's business development team in 1999.
(See ECF No. 27 at 3-4, ¶¶ 6-13.) Rudy
became a Vice President in 2004, when he was 49 years old.
(Id. ¶ 10.) His primary duty at that time was
business development. (Id. ¶ 11.)
In late
2010, Rudy was named General Manager (“GM”) of an
E&E subsidiary, Walsh Environmental, LLC
(“Walsh”). (Id. ¶¶ 9, 12.) He
was named to the GM position as part of E&E's effort
to improve Walsh's financial performance, and Rudy's
primary responsibility was to improve Walsh's performance
and, quoting E&E's language, to “create an
integrated, sustainable marketing program which coordinated
with E&E's business development efforts.”
(Id. ¶¶ 12-13.) As GM of Walsh, Rudy also
retained the title of Vice President of business development
with E&E. (Id. ¶ 13; ECF No. 32 at 3,
¶ 1.) At that time, he was the only Vice President of
business development at E&E who was also the GM of a
subsidiary. (ECF No. 37 at 8, ¶ 1.)
Following
Rudy's appointment as GM, Walsh continued to perform
poorly, losing over $560, 000 in fiscal year 2013 and over
$680, 000 in fiscal year 2014. (ECF No. 27 at 4-5, ¶
14.) Effective March 27, 2014, Rudy was removed as GM of
Walsh to focus solely on business development. (ECF No. 27 at
5, ¶ 19.) At the time, he commented in an e-mail to
staff that “I have been doing 2 jobs for a couple of
years now; one as my BD and project work as a VP at E&E.
The second was being the GM at Walsh. . . . neither was
getting enough attention as a result of the other. In my new
role I will be focused entirely on developing more large
business . . . .” (ECF No. 27-17 at 2-3.)
The
parties dispute how successful Rudy was in his business
development efforts after being relieved of his
responsibilities as GM of Walsh. (ECF No. 27 at 6, ¶ 21;
ECF No. 32 at 2, ¶ 21; id. at 5, ¶ 25; ECF
No. 37 at 2-3, ¶ 21.)
Also
during the 2013-14 period, E&E was managing significant
financial challenges overall. (ECF NO. 27 at 6, ¶ 22.)
This led E&E's Board of Directors
(“Board”) to direct E&E's President,
Gerard A. Gallagher, III (“Gallagher”) and Chief
Operating Officer, Fred McKosky (“McCosky”) to
evaluate E&E's organizational structure and recommend
improvements. (Id. ¶ 23.) Gallagher and McCosky
recommended restructuring the roles of E&E's Vice
Presidents. (Id. at 7, ¶ 25.) Their
recommendations noted that “[n]ot all E&E VPs are
contributing or performing at a level required by the company
in order to grow and be successful.” (ECF No. 27-7 at
8.) In evaluating 10 current Vice Presidents and 7 other
“senior individuals” as potential candidates to
become Vice Presidents, Gallagher and McKosky evaluated (1)
“Does the VP [or candidate] currently sell and/or
effectively manage $5M-$10M in business annually?” and
(2) “Does the VP [or candidate] exhibit the required
leadership to sell and/or effectively manage $5M-$10M in
business annually, over the next five years?” (ECF No.
27 at 6, ¶ 22; ECF No. 27-7 at 17-18.)
As to
Rudy, Gallagher and McKosky answered both questions
“No.” (Id. at 17.) They recommended to
the Board that Rudy not be retained. (ECF No. 27-7 at 17.) At
a Board of Directors meeting on October 16, 2014, the Board
considered Gallagher and McKosky's recommendations and
voted 6-1 to remove Rudy as Vice President, and he was
terminated effective November 20, 2014. (ECF No. 27 at 3,
¶ 4; id. at 9, ¶ 37.) At the time, Rudy
was 59 years old. (Id. at 3, ¶ 4.)
The
Board also accepted Gallagher and McKosky's
recommendations to remove two other vice presidents, aged 67
and 69. (ECF No. 27 at 7-9, ¶¶ 26, 31, 40.) The
Board rejected the recommendation to remove another Vice
President, aged 61 (id. ¶¶ 26, 31, 40),
while also appointing five new Vice Presidents, ranging in
age from 45 to 57 (id. ¶¶ 27, 38). Thus,
as Rudy points out, all five employees elevated to Vice
President positions were younger than the three individuals
who were removed.[2]Following his ...