ANNA BROWN, District Judge
This matter comes before the Court on Defendant's Motion for Summary Judgment (#23) and Motion to Strike (#52). For the reasons that follow, the Court GRANTS in part and DENIES in part Defendant's Motion for Summary Judgment and DENIES Defendant's Motion to Strike.
BACKGROUND
Plaintiff James A. DeAngelo brought this action under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621-634, and Title VII of the Civil Rights Act, 42 U.S.C. § 2000e. Plaintiff alleges Defendant discriminated against him because of his age when Defendant did not promote him to the position of Claims Director in November 2000 or to the position of Associate Claims Director in February 2001. Plaintiff further alleges Defendant did not give Plaintiff a pay raise in March 2002 because of his age. At the time Plaintiff's claims arose, Plaintiff was 57 years old and was employed by Defendant as an insurance claims manager.
Plaintiff seeks back pay and front pay; compensatory damages, including damages for mental and emotional distress; and punitive damages.
The following facts are undisputed or, if disputed, are viewed in the light most favorable to Plaintiff.
Plaintiff supports his Concise Statement of Material Facts by specific reference to his Affidavit made on personal knowledge and by specific reference to exhibits attached to his Concise Statement or submitted by Defendant in support of its Motion for Summary Judgment.
Defendant denies generally many of the facts set forth in Plaintiff's Concise Statement but Defendant fails to reference any evidence to support those denials in violation of Local Rule (LR) 1(c)(1). For purposes of this Motion, therefore, the Court deems those particular facts to be true.
Plaintiff began his employment in 1969 as a Casualty Claims Adjuster for Defendant in Ohio. Shortly thereafter, he was promoted to Field Claims Adjuster. In 1974, Plaintiff was promoted to Office Manager and then to District Claims Manager. Plaintiff transferred to Defendant's Portland, Oregon, Regional Office in 1978 and was promoted to Claims Coordinator. Plaintiff was promoted to District Claims Manager of field staff in Oregon during 1980. Thereafter, Plaintiff served as Defendant's District Claims Manager for seven western states.
In 1999, Defendant purchased Allied Insurance. In May 2000, an announcement was made at an employee meeting that Defendant's western Claims Department was to be integrated with Allied's Claims Department. Allied assumed control of claims functions for both Allied and Defendant.
Tom Walsh, Senior Claims Director and the supervisor who was responsible for filling the position of Claims Director, advised employees in the newly integrated Claims Department that a limited number of positions existed in the Allied Claims model and employees in that department should not be discouraged from leaving the company. Walsh told employees that Allied was referred to a "young company."
After the integration of the Claims Departments, Plaintiff became Claims Manager for new auto material damage in Oregon.
During the 31 years Plaintiff worked for Defendant, he consistently received "exceeds" performance evaluations. Plaintiff began receiving "meets" performance evaluations only after the integration of the Claims Departments.
In May or June 2000, Plaintiff applied to Home Office Claims for a position as National Catastrophe Team Coordinator. The application contained a question that asked for the year applicants graduated from college. Plaintiff was not contacted for an interview.
In October 2000, Defendant created a new Associate Claims Director position. Defendant did not post the position. Defendant had a policy in effect at the time that required vicepresidential approval for a position to be filled without posting. Defendant hired Kenneth Hills, age 38, for the position without interviewing any other candidates or advising other candidates that the position was available.
In November 2000, Defendant posted an opening for the position of Claims Director. Plaintiff was one of 12 applicants for the position. Three of the applicants were in their thirties, four were in their forties, and four were in their fifties. Plaintiff was the oldest applicant. Tom Walsh was responsible for interviewing and recommending to management a candidate for the position. Walsh interviewed seven of the applicants, but he did not interview Plaintiff. Walsh later told Plaintiff that he did not interview him for the Claims Director position because "I worked with you a long time and know you . . . didn't have to interview you." Walsh recommended and Defendant hired Kenneth Hills for the Claims Director position.
In February 2001, Plaintiff applied for the Associate Claims Director position that became vacant when Hills was promoted to Claims Director. Plaintiff was one of ten applicants for the position. Hills interviewed nine of the applicants, including Plaintiff. Of those applicants, two were in their thirties; six were in their forties; and Plaintiff, at age 57, was the oldest. Hills selected Michelle Butsch, age 35, to fill the position.
In March 2001, Plaintiff did not receive a merit pay increase. Hills told Plaintiff that his salary was too high for his position. Younger employees, however, received merit pay increases for the same work.
Plaintiff had extensive supervisory experience in training plan development and in training claims personnel during the more than 30 years he was employed by Defendant.
DEFENDANT'S MOTION TO STRIKE
Defendant moves to strike alleged statements of fact from Plaintiff's Affidavit submitted in response to Defendant's Motion for Summary Judgment on the grounds that the statements of fact contradict Plaintiff's prior deposition testimony.
A party cannot create an issue of fact in opposition to a motion for summary judgment by submitting an affidavit that contradicts prior deposition testimony. Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). "If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact." Id. (citations omitted). In Kennedy, the court established the rule that "the district court must make a factual determination that the contradiction was actually a `sham'" before disregarding allegedly contradictory evidence. Id. at 267.
Defendant asserts Plaintiff's following statements are contradicted by Plaintiff's prior deposition testimony:
Because of the continuing uncertainty surrounding the integration of Nationwide and Allied Claims Departments, I submitted my application to Home Office Claims for a
National Catastrophe Team Coordinator position sometime between may and June 2000. One of the questions on the form asked for the year I graduated from college.
Following submission of my application, I was not contacted by the hiring manager nor Human Resources for an interview.
Pl.'s Resp., DeAngelo Aff. ¶¶ 9, 10.
A new Associate Claims Director position was created. In contradiction to company policy, this position was not posted or announced. The position was given to Ken Hills.
Upon information and belief, by not following company policy, Allied was appointing people they wanted for director positions without giving each employee the same opportunity to apply for the positions.
Defendant asserts ¶ 11 of Plaintiff's Affidavit also should be stricken. The Court notes, however, Defendant admits the facts in ¶ 11 of Plaintiff's Affidavit, and those facts are not inconsistent with any other position taken by Plaintiff. The Court, therefore, need not address Defendant's Motion to Strike ¶ 11 of Plaintiff's Affidavit.
Pl.'s Resp., DeAngelo Aff. ¶¶ 13, 14.
Below is Plaintiff's alleged contradictory deposition testimony and the questions of Defendant's counsel that elicited Plaintiff's testimony:
Q. Looking at your Complaint in this case and looking at the Interrogatory answers, my understanding is that you're contending that you were discriminated against by Nationwide on the basis of age and three particulars.
One, that you didn't receive the claims director position. Two, that you did not receive the associate claims director position that Michelle Butsch received, and then three, there was a period of time, either one or two years, where you did not receive an annual raise. I think I've got that summarized correctly.
What I'm asking you is: Do I?
A. Yes.
Q. Ok. Are you aware of any other instance that you're going to claim in this lawsuit that you were discriminated against by Nationwide in our (
sic) employment on the basis of age other than those three items?
A. No.
Defendant notes the "new testimony" was the subject of allegations that Plaintiff made in his complaint to the Oregon Bureau of Labor and Industries (BOLI) as a prerequisite to filing this action. In addition, Defendant asserts the "new testimony" contained in Plaintiff's Affidavit is sham because it contradicts Plaintiff's answers to the above questions. Defendant, however, has not pointed to any testimony by Plaintiff that contradicts specific statements in Plaintiff's Affidavit nor cited any rule of evidence to support the proposition that any statements contained in Plaintiff's Affidavit are inadmissible. Defendant appears to attack those parts of Plaintiff's Affidavit that Defendant characterizes as the improper addition of claims; i.e., Defendant contends Plaintiff either did not plead these claims in his Complaint or abandoned them if they ever were pleaded under notice pleading rules. The facts in Plaintiff's Affidavit relating to Plaintiff's application for the National Catastrophe Team Coordinator position and to Defendant's appointment of Kenneth Hills as Associate Claims Director without posting the position, however, are not contradicted by Plaintiff's prior deposition testimony. Moreover, Defendant has not asserted those facts are irrelevant to the issues that are before the Court on summary judgment.
Based on this record, the Court concludes Defendant's Motion to Strike is improper in its present form. Accordingly, the Court denies Defendant's Motion to Strike.
The Court's ruling applies only to the admissibility of Plaintiff's evidence that was the subject of Defendant's Motion to Strike to the extent such evidence has relevance to the claims in Plaintiff's Complaint. The Court's ruling does not address Defendant's concern that Plaintiff is attempting to add claims improperly because, as the Court noted, Defendant did not make any motion to strike under Fed.R.Civ.P. 12(f).
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Standards
1. Summary Judgment.
Fed.R.Civ.P. 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show the absence of an issue of material fact. Leisek v. Brightwood Corp., 278 F.3d 895, 898 (9th Cir. 2002). In response to a properly supported motion for summary judgment, the nonmoving party must go beyond the pleadings and show there is a genuine issue of material fact for trial. Id.
An issue of fact is genuine "`if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Villiarmo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The Court must draw all reasonable inferences in favor of the nonmoving party. Id. A mere disagreement about a material issue of fact, however, does not preclude summary judgment. Jackson v. Bank of Haw., 902 F.2d 1385, 1389 (9th Cir. 1990). When the nonmoving party's claims are factually implausible, that party must come forward with more persuasive evidence than otherwise would be required. Blue Ridge Ins. Co. v. Stanewich, 142 F.3d 1145, 1147 (9th Cir. 1998) (citation omitted).
The substantive law governing a claim or a defense determines whether a fact is material. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). If the resolution of a factual dispute would not affect the outcome of the claim, the court may grant summary judgment. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001).
2. ADEA — Disparate Treatment.
ADEA makes it "unlawful for an employer . . . to discharge any individual [who is at least forty years of age] . . . because of such individual's age." 29 U.S.C. § 623(a), 631(a). There are two theories of recovery under ADEA: disparate treatment and disparate impact. Rose v. Wells Fargo Co., 902 F.2d 1417, 1421 (9th Cir. 1990). A disparate treatment claim under ADEA focuses on the employer's motive underlying the employment decision. Id. at 1421. The plaintiff must show the employer treated the plaintiff differently than others similarly situated because of age. Id.
The Ninth Circuit analyzes a motion for summary judgment in ADEA disparate treatment cases under the McDonnell Douglas framework used in Title VII cases. Nidds v. Schindler Elevator Corp., 113 F.3d 912, 917 (9th Cir. 1996), cert. denied, 522 U.S. 950 (1997). See also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) (delineates cases from other circuits that have applied the Title VII framework to the ADEA). Accordingly, the plaintiff must first establish a prima facie case of discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), involved a discrimination claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.
If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate a legitimate nondiscriminatory reason for its employment decision. If the defendant meets that burden, the plaintiff must present specific and substantial evidence that the defendant's alleged reason for the adverse employment decision is a pretext for a discriminatory motive. Lowe v. City of Monrovia, 775 F.2d 998, 1009 (9th Cir. 1985), amended by 784 F.2d 1407 (1986).
Plaintiff argues the Ninth Circuit erroneously requires plaintiffs to present specific, substantial evidence rather than requiring plaintiffs to produce "significantly probative" evidence to establish that a defendant's alleged legitimate, nondiscriminatory reason for an adverse employment decision is pretextual. See Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983). See also Villarimo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir. 2002). This Court, however, is bound to follow the Ninth Circuit.
A plaintiff may establish a prima facie case of disparate treatment in one of two ways. Wallis v. J.R. Simplot, 26 F.3d 885, 889 (9th Cir. 1994). The plaintiff may offer direct evidence of the employer's discriminatory intent. Id. Alternatively, the plaintiff may establish a prima facie case through a presumption arising from proof of four factors: The plaintiff was a member of a protected class ( i.e., age forty to seventy); the plaintiff was performing his job in a satisfactory manner; the plaintiff was not promoted or was otherwise subjected to an adverse employment decision; and the plaintiff was replaced by a substantially younger employee with equal or inferior qualifications. Rose, 902 F.2d at 1421.
The plaintiff must produce "very little" evidence to establish a prima facie case of disparate treatment. Sischo-Nonwnejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1111 (9th Cir. 1991). Plaintiff only has to offer proof sufficient to create an inference of unlawful discrimination. Lowe, 775 F.2d at 1005.
3. Title VII.
Title VII bars unlawful employment discrimination based on race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2.
Discussion
1. ADEA.
In his ADEA claim, Plaintiff alleges Defendant subjected him to disparate treatment because of his age.
a. Failure to Promote.
The Court concludes, and Defendant does not dispute, Plaintiff established a prima facie case of age discrimination by alleging he was 57 years old and was performing his job in a satisfactory manner when Defendant denied him promotions to the positions of Claims Director and Associate Claims Director and filled those positions with employees 20 years younger than Plaintiff.
The issue, therefore, is whether Defendant has proffered legitimate non-discriminatory reasons for failing to promote Plaintiff to the positions of Claims Director and Associate Claims Director and, if so, whether Plaintiff has presented substantial and specific evidence that Defendant's reasons are pretextual.
(1) Claims Director Position.
To establish a legitimate nondiscriminatory reason for not promoting Plaintiff to the position of Claims Director, Defendant relies on the testimony of Tom Walsh, a Senior Claims Director who was part of the hiring process. In an Affidavit dated September 29, 2003, Walsh stated: "I believe that, taking all circumstances into account, Kenneth Hills was the best qualified for the position because he possessed both strong technical skills in Auto Physical Damage and strong training plan development and implementation skills, both from a management and auditing/training functional background." Def.'s Mem., Walsh Aff. ¶ 7. In a deposition taken on January 21, 2004, however, Walsh testified Hills was better qualified than Plaintiff because Plaintiff "lacked . . . knowledge of certain claims performance strategies." Def.s' Mem., Black Aff., Ex. A at 4.
Plaintiff countered Defendant's evidence regarding Hill's superior qualifications with the following assertions:
(1) Walsh told employees that Allied was referred to as a "young company"; (2) until the integration of Allied's Claims Department with Defendant's Claims Department, Plaintiff always received "exceeds" performance ratings; (3) Plaintiff held managerial and supervisory positions in Defendant's various claims departments for more than 30 years; and (4) Plaintiff has extensive supervisory experience in training plan development and in training claims personnel during the more than 30 years he was employed by Defendant.
Based on this record, the Court concludes a genuine issue of material fact exists as to whether Defendant's proffered, nondiscriminatory reason for not promoting Plaintiff to the position of Claims Director was pretextual. Accordingly, the Court denies Defendant's Motion for Summary Judgment as to Defendant's failure to promote Plaintiff to the position of Claims Director.
(2) Associate Claims Director Position.
Defendant relies on the testimony of Kenneth Hills, the Claims Director who was part of the hiring process, to support Defendant's assertion that Michelle Butsch, the candidate whom Defendant selected to fill the position of Associate Claims Director, was more qualified than Plaintiff. Hills testified "Butsch was best qualified for the Associate Claims Director position because she was a Claims Manager in the Property Claims unit while plaintiff supervised an Auto Claims unit. Butsch also had been recognized by the management group as a high performer as a Claims Manager, and had a strong management and training background that would enable her to develop and implement new training plans for staff." Def.'s Mem., Hills Aff. ¶ 6.
Plaintiff countered with the same evidence he relied on to support his assertion that he was the most qualified person for the Claims Director position.
The Court again concludes a genuine issue of material fact exists as to whether Defendant's nondiscriminatory reason for not promoting Plaintiff to the position of Associate Claims Director was pretextual. Accordingly, the Court denies Defendant's Motion for Summary Judgment as to Defendant's failure to promote Plaintiff to the position of Associate Claims Director.
b. Failure to Give Pay Raise.
In March 2001, Defendant asserts it did not give Plaintiff a merit pay raise because Plaintiff was already earning $77,600.74, which was 116.2% of the "Market Reference Value" (MRV) for the position that Plaintiff held. Defendant maintains, therefore, Plaintiff was only entitled to a merit pay raise in the range of 0-2% because his performance rating was "achieves" for the year. Def.'s Mem., Dailey Aff. ¶ 7, Ex. 110; Hills Aff. ¶ 8.
According to Defendant, the MRV is a compensation range ordinarily paid in the marketplace and provides a reference point for a manager to determine competitive pay for a job.
To support its alleged nondiscriminatory reason for not giving Plaintiff a pay raise, Defendant presented evidence that two other Claims Managers who had MRV's at least comparable to Plaintiff's MRV and who received "achieves" ratings were not given salary increases. The Court notes, however, the two managers were both in their forties. The evidence reflects nine other employees, who had "exceeds" or "achieves" performance ratings and whose MRVs ranged from 100.8% to 112.6% received salary increases ranging from .98% to 4.06%. In addition, every employee who received an "exceeds" rating, regardless of his or her MRV, received a salary increase. The Court also notes the Plaintiff presented evidence that he consistently received "exceeds" ratings during his 30 years of employment with Defendant until Defendant's integration with Allied, which was referred to as a "young company."
On this record, the Court concludes a genuine issue of material fact exists as to whether age was a factor in causing Plaintiff's previous consistent performance evaluations to be lowered from "exceeds" to "achieves" and, if so, whether Plaintiff would have received a salary increase "but for" the reduction in his performance evaluation from "exceeds" to "achieves."
Accordingly, the Court denies Defendant's Motion for Summary Judgment on Plaintiff's claim that Defendant failed to give Plaintiff a pay raise because of his age.
c. Emotional Distress and Punitive Damages.
ADEA does not authorize separate damage awards for emotional distress or punitive damages. Cancellier v. Federated Dep't. Stores, 672 F.2d 1312 (9th Cir. 1982), cert. denied, 459 U.S. 859 (1983). Accordingly, the Court grants Defendant's Motion for Summary Judgment on Plaintiff's claim that he is entitled to damages for emotional distress or punitive damages.
2. Title VII.
The Supreme Court recently confirmed Title VII does not bar employment discrimination based on age. "Congress chose not to include age within discrimination forbidden by [Title VII] being aware that there were legitimate reasons as well as invidious ones for making employment decisions based on age." General Dynamics Land Sys., Inc. v. Cline, 124 S.Ct. 1236, 1240 (2004). The Court, therefore, grants Defendant's Motion for Summary Judgment against Plaintiff's claim based on Title VII.
CONCLUSION
For these reasons, the Court GRANTS in part and DENIES in part Defendant's Motion for Summary Judgment (#23) and DENIES Defendant's Motion to Strike (#52).
IT IS SO ORDERED.