Rudy v. Ecology & Environment, Inc.

          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 ...