JOSEPH F. BATAILLON, United States District Judge.
Before the court are 1) defendant AmeriCold Logistics' (AmeriCold) motion for summary judgment, Filing No. 46; 2) defendant Freezer Services' motion for summary judgment, Filing No. 48; 3) plaintiff Howard Sumrell's motion to strike, Filing No. 60; 4) Freezer Services' motion to strike, Filing No. 69; and 5) Freezer Services' second motion to strike, Filing No. 77. Both AmeriCold and Freezer Services submitted briefs in support of the summary judgment motions and filed indexes of evidence, Filing Nos. 47 and 49. Sumrell submitted a brief in opposition and filed an index of evidence, Filing No. 61. Both defendants submitted reply briefs; Freezer Services also filed an additional index of evidence, Filing No. 68.
As a preliminary matter, the court denies Sumrell's motion to strike certain testimony of Dennis Wiederholt on hearsay grounds. Likewise, the court also denies both of Freezer Services' motions to strike. In the context of the instant motions the court will only consider evidence that conforms with Fed.R.Civ.P. 56(e).
BACKGROUND
On October 31, 1994, the then-president of Freezer Services, Barry Smith, hired Sumrell as Corporate Director of Human Resources. Freezer Services terminated Sumrell's employment two years later. Filing No. 49, Ex. C, Smola Aff., ¶ 13 (hereafter, Smola Aff.). Sumrell now sues Freezer Services for employment discrimination, alleging that his discharge violated the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and the analogous provisions of the Nebraska Fair Employment Practices Act. The EEOC issued its right to sue letter on December 13, 1999. Filing No. 1, Complaint, ¶ 7.
Sumrell was supervised by three individuals while employed at Freezer Services: Glen Baldwin, Smith, and Robert Smola. Smola began direct supervision of Sumrell on June 14, 1996, the day after Barry Smith resigned, and it was he who eventually fired Sumrell. Id., Ex. B, Sumrell Dep., 191:21-24, 200:9-12, 268:10-19 (hereafter, Sumrell Dep.). Smola's conduct toward Sumrell is at the heart of Sumrell's complaint.
Baldwin left his employment with Freezer Services in November 1995. Filing No. 61A, Ex.1, Baldwin Aff., ¶ 2.
Sumrell suffered from a kidney disorder long before he became a Freezer Services employee. As early as 1985, Sumrell was diagnosed with interstitial nephritis. Id., 48:8-12. Sumrell stated that by 1994 the condition had worsened to the point of chronic renal failure. Id., 63:16-19. Sumrell testified that the only Freezer Services management employee who knew of his kidney disorder was his then-supervisor, Baldwin, to whom Sumrell revealed the condition during a business trip in August 1995. Id., 63:16-64:3. Sumrell further testified that Baldwin told him he had not revealed Sumrell's health problems to anyone at Freezer Services. Id., 198:1-5, 279:4-10. Sumrell specifically testified that he never discussed his medical condition with Smola before Smola fired him. Id., 378:20-23. Sumrell testified that his activities of daily living were never so restricted that he needed Freezer Services to change his job in any way. Further, Sumrell never requested any accommodations from Freezer Services for his medical condition. Sumrell Dep., 65:13-25, 365:7-11.
In February 1996, Sumrell provided Carrie Maloney, a Freezer Services employee responsible for administratively processing employees' medical claims, with a letter from his doctor, Dr. James T. Frock. Frock wrote the letter to help Sumrell get insurance coverage for prescriptions not covered under Freezer Services' Blue Cross Blue Shield medical plan. Filing No. 61A, Ex. 3, Frock Aff., ¶ 4. The letter stated that Sumrell suffered from chronic renal failure secondary to interstitial nephritis and explained that Sumrell needed injectable medication to treat the resulting anemia. Id. Maloney gave the letter to her supervisor, Dennis Wiederholt, Freezer Services' former chief financial officer. Wiederholt then signed a letter addressed to Blue Cross Blue Shield, asking the insurance company to amend retroactively to January 1996 Freezer Services' prescription plan, to include under the plan the injectable drugs Sumrell needed, and to reprocess certain claims of Sumrell that Blue Cross Blue Shield had previously denied. Id., Ex. 4, Williams Aff. at 5. Wiederholt testified that Freezer Services' insurance broker prepared the letter to Blue Cross Blue Shield and that he merely put it on Freezer Services' stationery and signed it. Filing No. 49, Ex. F, Wiederholt Dep., 25:2-26:4.
On July 5, 1996, shortly after Smola assumed supervisory duties over Sumrell, Smola informed Sumrell of the following inadequacies in his performance:
a. Failure to secure applicants for the position of vice-president of sales and operations;
b. Failure to secure MIS applicants;
c. Manner of presenting only brief hiring and promotional information;
d. Inability to forge relationships with Freezer Services management employees Vern Rose and Dennis Wiederholt, who lacked confidence in Sumrell because he failed to perform his duties and lacked leadership and decision-making skills;
e. Failure to state his opinions definitively;
f. Lack of enthusiasm for his duties; and
g. Failure to maintain a professional appearance, based on a complaint about Sumrell scratching himself in front of a female Freezer Services employee.
Smola Aff., ¶ 7. Smola did not document this conversation or the list of deficiencies, but Sumrell admits to the conversation and Smola's mention of certain problems areas. Sumrell Dep., 217:2-219:4. Smola stated that Sumrell's performance did not improve to his satisfaction following the conversation, so he decided to terminate Sumrell. Filing No. 61A, Ex. 5A, Smola Dep., 45:18-23; Smola Aff., ¶¶ 9, 10, 14. Smola fired Sumrell in October 1996. Smola Aff., ¶¶ 11.
Sumrell was 54 when Smith hired him and 56 when Smola fired him. Sumrell's replacement was a 44-year-old male. Id., ¶ 13. In his age discrimination claim, Sumrell alleges that upper management at Freezer Services revealed its age bias in remarks such as the four Sumrell identified:
1) In 1995, Vern Rose asked Wiederholt, "How old are you?" Wiederholt answered, "Early 40's." Rose responded, "Me too. And Barry Smith is only in his mid 40's. We have a great young corporate staff here." Sumrell states the two then "looked at" him.
2) While talking to some other employees in January 1996, Wiederholt said, "Now, you take Howard [Sumrell] here, he is as old as dirt." Sumrell states, "Everyone he was talking to laughed."
3) While discussing with Smola a replacement for a plant manager, Vern Rose described the replacement as "an old guy, in his 50s," but that he had "a young wife." Smola allegedly answered, "There's nothing wrong with a young wife," and both he and Rose laughed.
4) Smola insisted that Sumrell interview "that young lady in the lobby" for a secretarial job, even though Sumrell was about to offer the job to "a gray-haired lady, appearing to be in her 50's."
Filing No. 49, Ex. D, Plaintiff's Interrog. No. 21 at 18-20. Smola attests, however, that Sumrell's age was not a factor in his decision to terminate Sumrell. Smola Aff., ¶ 14. Each of Sumrell's supervisors during the two years he worked at Freezer Services — Baldwin, Smith, and Smola — was over 40. In fact, Sumrell himself testified that no one "in control" at Freezer Services was younger than 30. Sumrell Dep., 81:16-20.
On March 25, 1998, a year and a half after Sumrell's termination, Freezer Services and the defendant AmeriCold entered into an agreement that AmeriCold would purchase most of Freezer Services' assets. Filing No. 47, Ex. 2, Haley Aff., ¶ 3. AmeriCold contends that it had no knowledge of Sumrell's claim against Freezer Services before executing the purchase agreement. Id., ¶ 5. Sumrell alleges that because Freezer Services may no longer exist as entity able to provide him with relief, AmeriCold is liable for Freezer Services' acts as a successor corporation. Filing No. 1, Complaint, ¶ 3.
STANDARD OF REVIEW
Pursuant to Fed.R.Civ.P. 56, summary judgment is appropriate when, viewing the facts and inferences in the light most favorable to the nonmoving party, "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Harder v. Acands, 179 F.3d 609, 612 (8th Cir. 1999). "In making this determination, the function of the court is not to weigh evidence and make credibility determinations, or to attempt to determine the truth of the matter, but is, rather, solely, to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see Hedges v. Poletis, 177 F.3d 1071, 1074 (8th Cir. 1999). The court must "look to the substantive law to determine whether an element is essential to a case, and `[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.'" Dulany v. Carhahan, 132 F.3d 1234, 1237 (8th Cir. 1998) (quoting Anderson, 477 U.S. at 248). In determining "whether summary judgment is proper, [the court] is obligated to view the evidence in the light most favorable to the nonmoving party and give that party the benefit of all inferences which may be drawn." Wallace v Dorsey Trailers Southeast, Inc., 849 F.2d 341, 342 (8th Cir. 1988).
A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. Tenbarge v. Ames Taping Tool Systems, Inc., 128 F.3d 656, 657 (8th Cir. 1997); see Celotex, 477 U.S. at 325 (the movant must show "that there is an absence of evidence to support the nonmoving party's case").
In the face of a properly supported motion, "[t]he burden then shifts to the nonmoving party to set forth specific facts showing that there is a genuine issue for trial." Prudential Ins. Co. v. Hinkel, 121 F.3d 364, 366 (8th Cir. 1997) (quoting Fed.R.Civ.P. 56(e)). A nonmoving party may not rest upon the mere allegations or denials of its pleadings, but, rather, must set forth specific facts, supported by affidavits or other proper evidence, showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); Liberty Mut. Ins. Co. v. FAG Bearings Corp., 153 F.3d 919, 922 (8th Cir. 1998). Thus, "the mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Sprenger v. Federal Home Loan Bank, 253 F.3d 1106, 1109 (8th Cir. 2001).
DISCUSSION
Age Discrimination in Employment Act (ADEA)
Freezer Services contends that it did not discharge Sumrell because of his age. The ADEA protects persons age forty and older and prohibits an employer from discharging "any individual or otherwise discriminat[ing] against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 631(a); Denesha v. Farmers Ins. Exchange, 161 F.3d 491, 497 (8th Cir. 1998). A plaintiff may prove age discrimination by either direct or indirect evidence. Beshears v. Asbill, 930 F.2d 1348, 1353 (8th Cir. 1991) (quoting Blake v. J.C. Penney Co., 894 F.2d 274, 278 (8th Cir. 1990)). Since Sumrell has only indirect evidence of discrimination, he must use the familiar three-stage order of proof and presumptions. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141-48 (2000).
In its motion for summary judgment, Filing No. 46, AmeriCold incorporated the arguments of Freezer Services as to the ADA and ADEA claim. Because Sumrell was employed by Freezer Services when he was fired, only Freezer Services will be named in the ADA and ADEA discussion in this memorandum and order.
The plaintiff must first establish a prima facie case of age discrimination by showing that 1) he was at least 40 at the time of his termination; 2) he satisfied the applicable job qualifications; 3) he was demoted or discharged despite his qualifications; and 4) the employer did not take such action against nonmembers of the protected class. Kneibert v. Thomson Newspapers, Mich. Inc., 129 F.3d 444, 451 n. 4 (8th Cir. 1997) (citing Williams v. Valentec Kisco Inc., 964 F.2d 723, 726 n. 2 (8th Cir. 1992)). Assuming Sumrell can meet the prima facie case, a legal presumption then arises that Freezer Services unlawfully discriminated against him. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981).
At the second stage, the burden shifts to Freezer Services to "[p]roduce evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason." Reeves, 530 U.S. at 142. See also Kneibert, 129 F.3d at 452; Nitschke v. McDonnell Douglas Corp., 68 F.3d 249, 251 (8th Cir. 1995). Freezer Services contends that Sumrell's poor performance justified his termination, so the burden shifts for a third time, requiring Sumrell to show that Freezer Services' proffered reason is "merely a pretext for discrimination." Kneibert, 129 F.3d at 452. Throughout the shifting of burdens, however, Sumrell retains "the ultimate burden" of persuading the trier of fact that Freezer Services intentionally discriminated against him. Reeves, 530 U.S. at 142.
Freezer Services asserts that even assuming Sumrell can establish a prima facie case, Freezer Services' proffered nondiscriminatory reason for termination is that Sumrell`s performance as the human resources director was unsatisfactory. Smola, Sumrell's supervisor at the time of the firing, alleges that on July 5, 1996, he told Sumrell to improve his leadership and communication skills, his job performance, his personal appearance, and his relationships with corporate officers. Although Sumrell seems to deny in his brief that this conversation occurred, he acknowledged during his deposition that he had a July 5, 1996, conversation with Smola about his deficiencies.
Sumrell stated that shortly after the meeting, he listed on paper the areas in which Smola requested improvement. He testified that the list included the executive staff's lack of confidence in him, his questionable personal habits (scratching), and his deficient decision-making, leadership, and communication skills. Sumrell Dep., 217:2-219:12.
Smola's specific complaints about Sumrell's performance included Sumrell's failure to complete important tasks such as finding candidates to fill upper management positions in a reasonable amount of time. Sumrell counters that the delays were a result of Smola's hiring procedures. As for Sumrell's relationships with upper management, Sumrell argues that he received no complaints until Smola supervised his performance. However, Sumrell acknowledged that one of the officers, Rose, expressed disappointment in his ability to make quick, decisive decisions. Sumrell Dep., 225:3-231:5. Sumrell also admitted that a plant manager in Mississippi told Rose and Smola that he never wanted Sumrell in his plant again. Id., 218:3-5, 219:5-221:5.
Smola believed that Sumrell made some effort to improve "in the way he attempted to interact at staff meetings and work with people." Filing No. 61A, Ex. 5A, Smola Dep., 46:4-13. Sumrell admitted, however, that he never followed up with Smola or any other management executive after the July 5 meeting to discuss what he should do to improve his performance or even whether his performance had improved to their satisfaction. Sumrell Dep., 253:3-22, 266:7-24.
Sumrell's evidence that these reasons for discharge are pretextual is not persuasive. The record simply does not support a finding that Freezer Services had a discriminatory motive or that a causal relationship existed between an improper motive and Sumrell's termination. Nitschke, 68 F.3d at 252 ("plaintiff who is trying to prove pretext must show that there is a causal relationship between evidence of an employer's discriminatory attitude and the plaintiff's termination"). Nor is the court persuaded by evidence from Sumrell's former supervisors, Baldwin and Smith, that Sumrell's work was satisfactory. See Filing No. 61A, Ex. 1, Baldwin Aff., and Ex. 2, Smith Aff. These affidavits establish nothing more than that Sumrell's previous performance was satisfactory. They are irrelevant to the issues existing around the time Smola fired Sumrell: the quality of Sumrell's performance and the reasonableness of Smola's expectations. See Erickson v. Farmland Industries, Inc., 271 F.3d 718, ___ (8th Cir. 2001) (employer may rely on recent performance more heavily than past performance); Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 780 (8th Cir. 1995) (in an ADEA RIF context, "[t]here is nothing inherently discriminatory in an employer choosing to rely on recent performance more heavily than past performance in deciding which employees to terminate.")
Finally, the court finds that the remarks about age which Sumrell recites do not create an inference of age-related animus that establishes pretext. Since neither Rose nor Wiederholt held any supervisory authority over Sumrell and could not make the decision to fire him, no nexus existed between their remarks and "the decisional process." Kunzman v. Enron Corp., 902 F. Supp. 882, 899 (N.D.Iowa 1995). Neither of the two comments Sumrell attributes to Smola had anything to do with "the actual employment decision at issue such as [Sumrell's] hiring, promotion or termination," id., nor were they made in immediate temporal proximity to Sumrell's termination. See Hutson v. McDonnell Douglas Corp., 63 F.3d at 779 (statements with "an insufficient causal relationship to the actual decision to terminate" cannot support a finding of intentional discrimination); Frieze v. Boatmen's Bank, 950 F.2d 538, 541 (8th Cir. 1995). Further, all of the remarks about age were made by management employees who were themselves over the age of 40. The court concludes that even if the comments about age Sumrell identified suggested a company-wide discriminatory animus, Sumrell has failed to establish any causal link between this animus and Freezer Services' decision to terminate him. Since Sumrell offers no further evidence that age played any part in Smola's decision to fire him apart from these four stray remarks, his ADEA claim must fall. Accordingly, Freezer Services and AmeriCold's motions for summary judgment are granted as to Sumrell's ADEA claim.
Americans with Disabilities Act (ADA)
The ADA prohibits an employer from discriminating "against a qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112(a). A "qualified individual" is one who, "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). Freezer Services argues that it is entitled to summary judgment because 1) Freezer Services had no knowledge of Sumrell's alleged disability, and 2) Sumrell was not a disabled or a qualified individual under the ADA.
If, as here, a plaintiff has no direct evidence of discrimination, his claim is analyzed under the familiar burden-shifting analysis in McDonnell Douglas. Pickens v. Soo Line R.R. Co., 264 F.3d 773, 777 (8th Cir. 2001). Thus, should Sumrell establish a prima facie discrimination case, Freezer Services must offer a legitimate, nondiscriminatory explanation for his discharge; the burden then returns to Sumrell to show that Freezer Services' explanation is merely a pretext for discriminatory animus. Id.
To establish a prima facie case of discrimination on an ADA claim, Sumrell must establish that 1) he is disabled within the meaning of the ADA; 2) he is qualified to perform the essential functions of his job with or without reasonable accommodation; and 3) he was terminated because of his disability. Greer v. Emerson Elec. Co., 185 F.3d 917, 921 (8th Cir. 1999); Snow v. Ridgeview Medical Center, 128 F.3d 1201,1206 (8th Cir. 1997). The ADA defines a disability as a physical or mental impairment that substantially limits one or more of a plaintiff's major life activities. 42 U.S.C. § 12102(2)(A)-(C). The plaintiff may prove disability by showing that he 1) has a disability as defined under the ADA; 2) suffers from a history of such a disability; or 3) is perceived by his employer as having such a disability. Id.
A major life activity is substantially limited when a disability
render[s] an individual unable to perform a basic function that the average person in the general population can perform, or . . . significantly restrict[s] the condition, manner, or duration under which an individual can perform a particular major life activity as compared to an average person in the general population. 29 C.F.R. Pt. 1630, App. § 1630.2(j). `The inability to perform a single particular job does not constitute a substantial limitation in the major life activity of working.
Id. § 1630.2(i). Rather, the impairment must prevent the [individual] from performing an entire class or broad range of jobs as compared to the average person possessing comparable training, skills, and abilities.
Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1319 (8th Cir. 1996). . . . Finally, the following factors are considered in determining whether a person is substantially limited in a major life activity: (1) the nature and severity of the impairment, (2) its duration or anticipated duration, and (3) its long-term impact.
Id.
Snow v. Ridgeview Medical Center, 128 F.3d 1201, 1206-1207 (8th Cir. 1997).
Sumrell cannot prove the third element of his prima facie case, i.e., that he was terminated because of his disability. Based on Sumrell's own testimony, the court finds it unlikely that Freezer Services had any knowledge of the specific medical condition from which Sumrell suffers. Sumrell testified that the only Freezer Services employee he told about his condition, Glen Baldwin, never revealed the problem to anyone else at Freezer Services. Sumrell specifically testified that he never told Smola about his condition. The only other management employee at Freezer Services who might have known about his condition was Dennis Wiederholt. Wiederholt testified that he did not recall having seen the February letter from Dr. Frock describing Sumrell's condition. Rather, he only recalled that under the company's new insurance policy that went into effect in January 1996, Sumrell had a problem getting insurance coverage for certain prescriptions he needed. Wiederholt testified that he signed a letter authorizing coverage for Sumrell's prescriptions. That letter says nothing about Sumrell's specific medical condition.
Both Smola and Wiederholt admitted that they noticed that Sumrell occasionally walked with difficulty. Wiederholt stated that when he asked Sumrell about his limping, Sumrell said that he had pain in his feet and he was seeking medical attention for it. Filing No. 61A, Ex. 5C, Wiederholt Dep., 19:11-15. Likewise, Smola testified that Sumrell told him that he was seeing a doctor at Offutt Air Base for trouble with his feet but that "it was no big deal." Id., Ex. 5A, Smola Dep., 49:1-13.
Noticing a fellow employee's limp, however, is a far cry from knowing that the employee is disabled, i.e., suffers from an "impairment that substantially limits one or more of a plaintiff's major life activities." Sumrell did not testify that anyone at Freezer Services treated him as disabled because of his occasional limp. See Webb v. Mercy Hospital, 102 F.3d 958, 960 (8th Cir. 1996) (employer's knowledge that an employee "exhibits symptoms which may be associated with an impairment does not necessarily show the employer regarded the employee as disabled"). Further, neither the limp nor any other symptom prevented Sumrell from performing his job. Sumrell himself testified that his condition never interfered with the performance of his job duties or required him to ask Freezer Services for accommodations. Freezer Services never denied Sumrell time off for doctor appointments or treatments. Without evidence establishing Freezer Services' knowledge of Sumrell's disability, either through Sumrell's request for accommodations or through Freezer Services' actual knowledge of Sumrell's medical condition, Sumrell cannot establish a nexus between his disability and the discharge.
Even assuming for purposes of this motion that Sumrell could establish a prima facie case, the court finds that Freezer Services had a legitimate, nondiscriminatory reason for terminating Sumrell: his poor performance as Human Resources Director. As the ADEA discussion above indicates, Sumrell has failed to convince the court that Freezer Services' reasons for discharging Sumrell were pretextual.
No genuine issues of material fact exist about whether Freezer Services discharged Sumrell because of his disability. Accordingly, Freezer Services and AmeriCold's motions for summary judgment as to the ADA claim are granted.
Successor Liability
Finally, given the court's decision in this memorandum and order on Sumrell's ADEA and ADA claims, the issue of AmeriCold's successor liability is moot. Accordingly,
IT IS ORDERED:
1. Americold Logistics' motion for summary judgment, Filing No. 46, is granted;
2. Freezer Services' motion for summary judgment, Filing No. 48, is granted;
3. Howard Sumrell's motion to strike, Filing No. 60, is denied; and
4. Freezer Services' motions to strike, Filing Nos. 69 and 77, are denied.
5. Judgment is hereby entered against the plaintiff and in favor of the defendants.