BENSINGER v. U.S. POSTAL SERVICE, (D.Neb. 2001)

JOSEPH F. BATAILLON, U.S.D.J.

This matters before the court are 1) a summary judgment motion, Filing No. 8, filed by the defendant in this case, United States Postal Service (hereafter USPS), and 2) the magistrate's report and recommendation that I grant the summary judgment, Filing No. 25. I have carefully reviewed the record and, in particular, the magistrate's report and recommendation; the defendant's index of evidence, Filing No. 9; the defendant's supplemental index of evidence, Filing No. 21; the plaintiff's index of evidence, Filing No. 16; and the briefs filed by the parties. I conclude that the report and recommendation of the magistrate should be adopted and the summary judgment granted.

The magistrate made detailed factual findings, and I will not reiterate them at length in this order. Plaintiff filed this age discrimination claim pursuant to the Age Discrimination in Employment Act (ADEA), 29 U.S.C. .§§ 621-634. The defendant has filed a summary judgment motion alleging that there is no evidence of age discrimination. Plaintiff contends that the summary judgment motion should be denied.

Briefly, the relevant facts are as follows. Plaintiff applied for a position with USPS on or about September 21, 1999. The application contained several questions regarding whether the applicant had ever been fired from a job, had ever quit a job after being notified that he would be fired, and had ever been convicted of a crime or was currently under charges for any offense against the law. Plaintiff answered "no" to each of these questions. He further signed records indicating he knew that falsification of his application could result in termination or criminal charges.

Plaintiff was then hired on a probationary basis as a Part-Time Flex Distribution clerk for the Lincoln, Nebraska, Processing and Distribution Facility. Within three weeks of hiring, plaintiff's government personnel file was received by defendant. The file contains language indicating that plaintiff resigned a previous position after he received notice that he would be removed from his job. Plaintiff was asked by his supervisor for an explanation of these charges. He remembered resigning but remembered nothing else. The file also indicated that plaintiff was guilty of willful disobedience and he was suspended. Again, plaintiff was initially unable to offer an explanation for this suspension. Plaintiff was terminated on November 25, 1999, on the basis that he falsified his pre-employment records. Plaintiff then filed this age discrimination action. He alleges that he was terminated because of his age and because he asked about retirement benefits.

Summary judgment is proper if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court must view the evidence and the inferences which may be reasonably drawn from the evidence in the light most favorable to the nonmoving party. Enterprise Bank v. Magma Bank, 92 F.3d 743, 747 (8th Cir 1996). The court's function is not to weigh the evidence, but merely to determine whether there is sufficient evidence favoring the nonmovant for a finder of fact to return a verdict in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Essentially, the court performs the threshold inquiry of determining whether a trial is necessary. Id. at 250.

Once the moving party makes a properly supported motion, the nonmoving party must do more than merely show there is some metaphysical doubt as to the material facts.

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials, but must set forth specific facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 256; Krenik v. County of LaSueur, 47 F.3d 953, 957 (8th Cir. 1995). Generally, a genuine issue of material fact exists when there is sufficient evidence favoring the party opposing the motion for a jury to return a verdict for that party. Anderson, 477 U.S. at 248.

The law of the Eighth Circuit is that summary judgment should be granted sparingly in employment discrimination cases because they frequently rise and fall on inferences to be drawn from circumstantial factors, and, accordingly, the trial court should be careful not to usurp the job of the fact-finder. Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994); Davis v. Fleming Companies, 55 F.3d 1369, 1371 (8th Cir. 1995); Hardin v. Hussmann Corp., 45 F.3d 262, 264 (8th Cir. 1995); Oldham v. West, 47 F.3d 985, 988 (8th Cir. 1995). Therefore, summary judgment should only be granted in those rare instances "where there is no dispute of fact and where there exists only one conclusion." Johnson v. Minnesota Historical Soc'y, 931 F.2d 1239, 1244 (8th Cir. 1991 ); Hillebrand v. M-Tron Industries, Inc., 827 F.2d 363, 364 (8th Cir. 1987).

The magistrate correctly applied the McDonnell burden-shifting scheme to analyze this case. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-804 (1973). under the McDonnell analysis, the plaintiff must set forth a prima facie case of age discrimination. First, plaintiff is clearly in a protected class as he is over 40. Second, he was fired. Third, neither plaintiff nor defendant can produce evidence that plaintiff was replaced by a younger individual. That information is apparently not available, as USPS hires groups of people for similar positions. I will assume for purposes of this motion that the plaintiff's replacement was under the age of forty. The fourth criteria under McDonnell is whether plaintiff was performing adequately at his job. Courts have held that falsification of employment applications is grounds for dismissal. See, e.g., Williams v. Boorstin, 663 F.2d 109, 117-118 (D.C. Cir. 1980). Plaintiff in the case at hand has failed to show that he could adequately perform the job, as he was not qualified or eligible in the first instance. He answered "no" to all questions concerning dismissal. He was given numerous warnings and signed documents acknowledging that falsification of records was grounds for dismissal. x conclude that the plaintiff has not met his burden of establishing a prima facie case of age discrimination.

However, even if I were to conclude that plaintiff had met this burden, I find that the defendant has articulated nondiscriminatory reasons for the discharge. Defendant contends that plaintiff falsified his answers on the application for employment. Plaintiff was warned in advance that falsification could result in loss of his employment. He was asked to explain the discrepancy and was unable to do so. The justification given by the defendant was sufficient to meet its burden of establishing a nondiscriminatory reason for the discharge. Further, as the magistrate found, it is clear that USPS hired plaintiff with full knowledge of his age and full knowledge of his previous government experience that would enable him to obtain additional benefits.

The burden, then, is on the plaintiff to show that age is a determinative factor in his being fired and that USPS's alleged reasons for firing him were pretextual. Rothmeier v. Investment Advisory, Inc., 85 F.3d 1328, 1333 (8th Cir. 1996). Plaintiff has the burden of demonstrating that defendant's alleged reason for the discharge is a pretext for unlawful discrimination. Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Plaintiff has offered absolutely no evidence that he was discharged on the basis of age. His allegation that he asked about his retirement and additional benefits and that these additional benefits would add stress on the budget of the department is at best speculative and conclusory. Plaintiff has offered no evidence to support these allegations. In fact his retirement benefits would have been paid by the Civil Service Retirement Fund, not by the USPS facility. Filing 9, Exhibit A. Plaintiff's mere allegations without some evidence of pretext are insufficient to defeat a claim for summary judgment.

See, e.g., In Re Citizens Loan Say. Co., 621 F.2d 911, 913 (8th Cir. 1980). Even if we assume, for the sake of argument, that the officials at the postal service misread or misconstrued the employment information regarding plaintiff's previous termination and suspension, such misreading would not rise to the level of pretext. See Gill v. Reorganized School District R-6, Festus, Mo., 32 F.3d 376, 379 (8th Cir. 1994). There must be some evidence wherein the finder of fact could infer that age discrimination has occurred. Plaintiff has failed to meet his burden in this regard.

THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED THAT:

1. Defendant's motion for summary judgment, Filing No. 8, should be and hereby is granted;

2. The report and recommendation of the magistrate, Filing No. 25, is hereby adopted;

3. This case should be and hereby is dismissed. A separate order of judgment will be entered herein; and

4. Judgment is entered in favor of the defendant and against the plaintiff.