Newkirk v. Miller International, Inc.

          ORDER GRANTING DEFENDANT MILLER INTERNATIONAL INC.’S MOTION FOR SUMMARY JUDGMENT

          ROBERT E. BLACKBURN UNITED STATES DISTRICT JUDGE.

         The matter before me is Defendant Miller International, Inc.’s Motion for Summary Judgment [#35], ^[1] filed August 2, 2019. I grant the motion and dismiss the claims of the plaintiff with prejudice.

         I. JURISDICTION

         I have jurisdiction over this matter pursuant to 28 U.S.C. § 1331 (federal question).

         II. STANDARD OF REVIEW

         Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is “genuine” if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10^th Cir. 1994). A fact is “material” if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Farthing, 39 F.3d at 1134.

         A party who does not have the burden of proof at trial must show the absence of a genuine fact issue. Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10^th Cir. 1994), cert. denied, 115 S.Ct. 1315 (1995). Once the motion has been properly supported, the burden shifts to the nonmovant to show, by tendering depositions, affidavits, and other competent evidence, that summary judgment is not proper. Concrete Works, 36 F.3d at 1518. All the evidence must be viewed in the light most favorable to the party opposing the motion. Simms v. Oklahoma ex rel Department of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1326 (10^th Cir.), cert. denied, 120 S.Ct. 53 (1999). However, conclusory statements and testimony based merely on conjecture or subjective belief are not competent summary judgment evidence. Rice v. United States, 166 F.3d 1088, 1092 (10^th Cir.), cert. denied, 120 S.Ct. 334 (1999).

         III. ANALYSIS

         Plaintiff, Brenda Van Newkirk, worked as a sales representative for defendant, Miller International, Inc. (“Miller”), for 30 years.^[2] It is undisputed that plaintiff was a good and loyal employee. However, beginning in 2015, Miller’s sales began to decline steadily, and the company began to look for ways to restructure various departments to save costs.

         As part of this effort, in mid-2017, the company restructured its sales territories. Of the eleven sales positions then existing, Miller made the decision to eliminate three, including the position held by Ms. Van Newkirk. Miller asserts that Ms. Van Newkirk’s territory was selected for restructuring because it was the smallest of the company’s sales territories and thus the easiest to redistribute to other sales representatives in geographically adjacent areas without greatly impacting their travel requirements. Ms. Van Newkirk was notified of this decision on July 10, 2017, and terminated the following day. Her territory was redistributed to three other sales representatives, two of whom were under 40 years old. At the time of her termination, Ms. Van Newkirk was 69 years old.

         In this lawsuit, Ms. Van Newkirk brings claims of discrimination and retaliation under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq. Construing all the facts in the light most favorable to her, however, Ms. Van Newkirk has not presented a genuine dispute of material fact suitable for determination by a jury as to either of these claims. Thus, Miller’s motion for summary judgment must be granted.

         With respect to Ms. Van Newkirk’s discrimination claim, I will assume arguendo she can establish a prima facie case of age discrimination.^[3] See Jones v. Oklahoma City Public Schools, 617 F.3d 1273, 1278 (10^th Cir. 2010) (“This circuit has long held that plaintiffs may use the McDonnell Douglas [Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)] three-step analysis to prove age discrimination under the ADEA.”).^[4] Nevertheless, Miller has articulated a legitimate, nondiscriminatory reason for its employment decision: that Ms. Van Newkirk’s position was eliminated as part of a restructuring of the sales force in an effort to save costs in an environment of steadily declining revenues. See, e.g., DeMarco v. CooperVision, Inc., 369 Fed.Appx. 254, 255=56 (2^nd Cir. March 12, 2010); Thompson v. Genentech, Inc., 280 Fed.Appx. 613, 163 (9^th Cir. May 28, 2008); Rogers v. Board of County Commissioners of Leavenworth County, Kansas, 2015 WL 7295448 at 5 (D. Kan. Nov. 18, 2015). The burden of proof thus shifts back to Ms. Van Newkirk to demonstrate this explanation is pretextual. Tabor v. Hilti, Inc., 703 F.3d 1206, 1208 (10^th Cir. 2013).

         This she fails to do.

Generally, [a] plaintiff demonstrates pretext by producing evidence of 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.

Sanders v. Southwestern Bell Telephone, L.P., 544 F.3d 1101, 1106 (10^th Cir. 2008), cert. denied, 130 S.Ct. 69 (2009). Ms. Van Newkirk presents no such evidence here. Indeed, she does not dispute that the company’s revenues were in decline and acknowledges her own sales also had dropped in the years prior to her termination.

         Instead, Ms. Van Newkirk relies on certain alleged age-related comments she claims were made to her by Miller’s Chief Executive Officer, Patty Sorg.^[5] Specifically, Ms. Van Newkirk alleges that during half a dozen team meetings from January 2013 to January 2017, ^[6] Ms. Sorg mentioned that the company’s Cruel brand jeans were “not geared towards your age” and that “the older gals” did not need to wear them because they “might not look good in them.”^[7] Such ambiguous and isolated comments are nothing more than stray remarks, ” which are simply insufficient to substantiate a finding of pretext. See Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1140 (10^th Cir.), cert. denied, 121 S.Ct. 182 (2000); Cone v. Longmont United Hospital Association, 14 F.3d 526, 531 (10^th Cir. 1994); Kirkpatrick v. Pfizer, Inc., 391 Fed.Appx. 712, 720 (10^thCir. Aug. 12, 2010).^[8]

         Nor were any of these comments in any way linked to Miller’s restructuring decisions. To make out a case of age discrimination, a plaintiff must adduce evidence from which a reasonable jury could find “that age was a determining factor in the employer's challenged decision, ” that is, “that age made the difference in the employer's decision.” Greene v. Safeway Stores, Inc., 98 F.3d 554, 557 (10^th Cir. 1996) (citations and internal quotation marks omitted). Stated differently, Ms. Van Newkirk “must demonstrate a nexus exists between these allegedly discriminatory statements and [Miller’s] decision to terminate her.” Cone, 14 F.3d at 531. These alleged comments do not meet that standard. Instead, they are simply “[i]solated comments, unrelated to the challenged action, ” and thus “are insufficient to show discriminatory animus” on Miller’s part. Id.

         Ms. Van Newkirk also alleges Ms. Sorg repeatedly questioned her about her plans to retire. The only concrete example she provides, however, occurred at the time of a co-worker’s retirement, when Ms. Van Newkirk testified Ms. Sorg “wanted to know what my plans were” and “didn’t want me to spring a surprise on her that I was going to retire.” (Def. Motion App., Exh. B at 92.) Despite Ms. Van Newkirk’s claim that this comment was “proximate” to her termination, it actually occurred a year prior, and therefore is insufficient as a matter of law to establish pretext. Wagoner, 391 Fed.Appx. at 708 (passage of nine months between comments and employment decision too “temporally remote” to support finding of pretext); Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1184 (10^th Cir.2006) (same). Although Ms. Van Newkirk claims similar comments were made to her “shortly before” her termination, without specifics, and in light of Ms. Van Newkirk’s generous interpretation of “proximate” conduct, this evidence is insufficient to overcome summary judgment.

         Yet even if these comments were in fact proximate to Ms. Van Newkirk’s termination, they do not evidence pretext. “[A] company has a legitimate interest in learning its employees' plans for the future, and it would be absurd to deter such inquiries by treating them as evidence of unlawful conduct.” Wagoner, 391 Fed.Appx. at 708 (quoting Colosi v. Electri-Flex Co., 965 F.2d 500, 502 (7^th Cir. 1992)). See also Kirkpatrick, 391 Fed.Appx. at 719-20. Indeed, Ms. Van Newkirk’s deposition testimony confirms that Ms. Sorg’s intent in inquiring as to whether Ms. Van Newkirk planned to retire was precisely this: to avoid a surprise announcement. In the context of ...