ORDER
INTRODUCTION
Plaintiffs Dennis Hothem and Kendell Stevens filed a complaint alleging the defendants, Dave Schneider, individually and as Mayor, and the City of Belle Fourche (the “City”) engaged in age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., (“ADEA”) (alleging both disparate treatment and disparate- impact); violated plaintiffs’ First Amendment constitutional rights in violation of 42 U.S.C. § 1983; and wrongfully discharged plaintiffs in violation of South Dakota public policy. (Docket 1). Plaintiffs seek punitive damages against defendant Schneider, individually. Id. Both defendants filed answers denying plaintiffs’ claims. (Dockets 16 & 17). Defendants filed separate motions for summary judgment on all claims. (Dockets 47 & 57). The court referred the motions to Magistrate Judge Veronica L. Duffy for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). (Docket 82).
On January 20, 2012, Magistrate Judge Duffy filed a report and recommendation. (Docket 103). The magistrate judge recommended the court (1) deny the City’s motion for summary judgment on plaintiffs’ ADEA-disparate treatment claims; (2) grant the City’s motion for summary judgment on plaintiffs’ ADEA-disparate impact claims; (3) grant defendants’ motions for summary judgment on plaintiffs’ civil rights claims; (4) grant the City’s motions for summary judgment on plaintiffs’ state law public policy claims; (5) grant defendant Schneider’s motion for summary judgment on plaintiffs’ official capacity claims; (6) grant defendant Schneider’s motion for summary judgment as to plaintiffs’ ADEA claims; and (7) grant defendant Schneider’s motion for summary judgment on plaintiffs’ state law public policy claims. Id. at pp. 53, 54, 63, 65, 67 & 70. Plaintiffs and the City filed objections. (Dockets 104 & 106). All parties filed responses and replies to the op
The court reviews de novo those portions of the report and recommendation which are the subject of objections. Thompson v. Nix,
DISCUSSION
A. MAGISTRATE JUDGE’S FINDINGS OF FACT
Plaintiffs’ objections to the magistrate judge’s findings of fact are summarized as:
1. Whether the South Dakota Department of Environment and Natural Resources (“DENR”)2 issued a written reprimand to the City regarding asbestos removal;
2. Whether DENR instructed the City to perform air monitoring during asbestos removal;
3. Whether on the cost of insurance table Kellie Pummel highlighted the group for individuals in the 55-64 age brackets;
4. When did a series of e-mail communications occur regarding the termination of Mr. Hothem and Mr. Stevens;
5. Whether an unemployment expense figure attributable to plaintiffs as of July 20, 2010, was accurate;
6. Whether assisting with asbestos removal was reasonably contained in plaintiffs’ job descriptions;
7. Whether Mr. Hothem’s speech regarding asbestos removal was part of his job duties;
8. Whether the lack of an expressed antagonism by Mayor Schneider or Mr. Pummel defeats any claim of retaliation against plaintiffs for exercising their rights of free speech;
9. Whether there was any temporal proximity between plaintiffs’ asbestos complaints and their terminations;
10. Whether there was any contact with DENR regarding asbestos removal violations; and
11. Whether plaintiffs’ terminations were the result of the issues surrounding asbestos removal.
(Docket 106) (passim).
Defendant City’s objections (“defendant’s objection(s)” or “City’s objection(s)”) to the magistrate judge’s findings of fact are summarized as:
*966 1. Whether Mr. Hothem’s date of return to employment with the City was in January of 2006;
2. Whether the “purpose of the custodial-maintenance department” as expressed in the City’s statement of undisputed material facts (“SUMF”) No. 5 is factually relevant;
3. Whether the “different job descriptions within the custodial-maintenance department before ... restructuring]” as expressed in the City’s SUMF No. 9 is factually relevant;
4. Whether “[t]he work performed by the custodial-maintenance technicians before restructuring of the ... department” as expressed in the City’s SUMF No. 10 is factually relevant;
5. Whether Ms. Landphere’s calculations at page 15 fn. 11 of the report and recommendation should have been based on the City’s SUMF No. 37;
6. Whether Ms. Landphere’s calculations in the City’s SUMF Nos. 38, 39, 40, 41, and 42 are factually relevant;
7. Whether the City’s SUMF No. 54 is factually relevant;
8. Whether the statement Mr. Smoot received a $3 per hour raise is in error;
9. Whether Mr. Hauf was interviewed by Mr. Hothem when Ms. Penny Herman’s position became available;
10. Whether the statements about Mr. Hoffman’s salary increases and cost of living increase are in error;
11. Whether Mr. Bennett’s statement about the position of the city council regarding the custodial-maintenance department is relevant;
12. Whether the City’s disciplinary and grievance procedures are relevant to the termination of plaintiffs; and
13. Whether the statement “Mr. Hothem and Mr. Stevens were not provided any explanation or prior notice about their termination, nor were they given the opportunity to provide reasons why the action should not be taken, which Mr. Hothem and Mr. Stevens assert was in violation of the city’s own policies” is relevant.
(Docket 104 at pp. 2-5). Each of the parties’ objections will be addressed separately.
PLAINTIFFS’ OBJECTIONS
1. WHETHER DENR ISSUED A WRITTEN REPRIMAND TO THE CITY REGARDING ASBESTOS REMOVAL
Magistrate Judge Duffy set out the background facts regarding the issue of asbestos tile removal at the City’s police department. (Docket 103, pp. 6-10). Those facts need not be restated here.
Plaintiffs’ objection focuses on whether the DENR issued a “written reprimand” to the City regarding asbestos removal. (Docket 106 at p. 1). Plaintiffs’ statement of material facts does not refer to any type of reprimand or warning from the DENR, let alone a written reprimand. (Docket 68) (sealed) (passim).
Erin Schmidt, a DENR employee, described DENR’s contact with the City and its employees relating to the asbestos removal issue. (Docket 60). Her affidavit states “[t]o my knowledge, no notice of violation, written reprimand or any other type of disciplinary action or sanction whatsoever was issued against the City of Belle Fourche, its officials or employees, as a result of the [asbestos] incident.” Id.
Plaintiffs have not produced a “warning letter” or “reprimand letter” from DENR. Sufficient time to complete discovery was allowed to locate such a letter if it existed. There are no other citations to the record which support plaintiffs’ objection.
Plaintiffs’ objection is overruled.
2. WHETHER DENR INSTRUCTED THE CITY TO PERFORM AIR MONITORING DURING ASBESTOS REMOVAL
Plaintiffs’ objections to defendant Schneider’s SUMF ¶ 14 claims “SDDENR specifically instructed the City of Belle Fourche to perform air monitoring....” (Docket 95 at ¶ 14). On September 27, 2009, Mayor Schneider issued directives that all renovations and demolitions be coordinated with Building Inspector Wierzbicki and that employees follow state law. (Docket 94 at ¶¶ 164-65). One of those directives certainly would include complying with the DENR fax regarding proper asbestos removal. (Docket 60-1). The instructions for asbestos removal were faxed by DENR to Mr. Hothem on January 7, 2008. Id. Among other requirements for removing asbestos, the instructions contain the following provisions:
OSHA does not require monitoring for asbestos levels for most flooring removal jobs. Monitoring is only required if compliant work practices are not followed, if the material is not removed intact, or if the employees are not properly trained....
However, removal of non-intact floor tiles must be conducted in a negative pressure enclosure, and additional protective work practices, personal protective equipment, monitoring, and training must be provided....
OSHA generally requires respirators be worn when Class II work, including removal of resilient floor coverings, is not performed using compliant work practices ....
(Docket 60-1). This instruction sheet is the only evidence presented by either party addressing air monitoring. Plaintiffs have not produced any evidence DENR required air monitoring by the City.
Plaintiffs’ objection is overruled.
3. WHETHER ON THE COST OF INSURANCE TABLE KELLIE PUMMEL HIGHLIGHTED THE GROUP FOR INDIVIDUALS IN THE 55-64 AGE BRACKETS
Ms. Pummel, the City’s insurance agent and wife of City Councilman David Pummel, provided health insurance quotes to the City for all of its employees as part of the 2010 budget process. (Docket 87 at ¶¶ 47 & 48). City employees were separated into age brackets for premium analysis. (Docket 78-2). On the health premium analysis table there are four sections highlighted: “Quoted Coverage Ultra $1000 80/20 4100”; “Four Tier Rate Table”; in the age brackets 55-59 “Family $1,512.07”; and in the age bracket 60-64 “Family $1,980.70.” Id. at p. 16. Plaintiffs argue Ms. Pummel highlighted the costs of insurance for individuals falling in the 55-64 age brackets. (Docket 106 at p. 2). Plaintiffs’ citation to the deposition of Mr. Hothem is not helpful to resolve the
Gloria Landphere, the City’s finance officer, e-mailed Councilman Pummel saying “by the way I did those insurance numbers person by person.... ” (Docket 77-4 at p. 25). But there is no testimony Ms. Pummel, or the City’s agents, Councilman Pummel or Finance Officer Landphere, highlighted the insurance premium table.
Plaintiffs’ argument, without more, does not create either an undisputed material fact or allow the court to consider plaintiffs’ assertion as a fact for summary judgment purposes.
Plaintiffs’ objection is overruled.
4. WHEN DID A SERIES OF EMAIL COMMUNICATIONS OCCUR REGARDING THE TERMINATION OF MR. HOTHEM AND MR. STEVENS
Plaintiffs’ objection asserts a series of email communications occurred in “late August of 2009.” (Dockets 106 at p. 2; 71 at ¶¶ 52-53 & 55; 77-4 at pp. 8-9 & 32-33). Plaintiffs claim these discussions were pri- or to an e-mail of September 6, 2009, in which Councilman Pummel suggested the city council “eliminate [the] assistant superintendent [and] put (Hothem) on probation with bi-weekly reviews and monthly reviews.” (Docket 71 at ¶ 55).
Each of the e-mails which are the subject of plaintiffs’ objection are properly referenced and considered in the report and recommendation. (Docket 103 at p. 16 n. 12).
Plaintiffs’ objection is overruled.
5. WHETHER AN UNEMPLOYMENT EXPENSE FIGURE ATTRIBUTABLE TO PLAINTIFFS AS OF JULY 20, 2010, WAS ACCURATE
The report and recommendation stated “[t]he unemployment figure attributable to Mr. Hothem and Mr. Stevens as of July 20, 2010, was $5,567.” (Docket 103 at p. 19). Plaintiffs object to the use of this expense figure, as the City’s 2010 total unemployment expense for Mr. Hothem and Mr. Stevens was $11,000. (Docket 106 at p. 2). The City acknowledges the minutes for the December 10, 2010, city council meeting reflect the total unemployment for the calendar year for the custodial-maintenance department was $11,000. (Docket 107 at p. 7). This amount was an additional appropriation request by the City Finance Officer for the 2010 year. Id. The report and recommendation is modified consistent with this order.
Plaintiffs’ objection is granted.
6. WHETHER ASSISTING WITH ASBESTOS REMOVAL WAS REASONABLY CONTAINED IN PLAINTIFFS’ JOB DESCRIPTIONS
Plaintiffs’ objection asserts “assisting with asbestos removal” was not part of plaintiffs’ job descriptions, but rather
[Pjerform activities in the maintaining, repairing, and cleaning of physical structures ....
Other duties [as] may be assigned.... Performs activities of workers supervised ....
Oversee, coordinate, and supervise workers engaged in performing structural repairs to masonry, woodwork, and furnishings if [sic] buildings....
Perform other duties as deemed appropriate and necessary____(Docket 74^ at pp. 1-3). Based on this job description, the court finds assisting with the removal of carpet and asbestos tiles was within Mr. Hothem’s and Mr. Stevens’ job duties. The report and recommendation at pages 57-58 is modified consistent with this analysis.
Plaintiffs’ objection is overruled.
7. WHETHER MR. HOTHEM’S SPEECH REGARDING ASBESTOS REMOVAL WAS PART OF HIS JOB DUTIES
Based on the court’s finding in plaintiffs’ objection number 6, the court finds Mr. Hothem’s speech regarding asbestos removal was part of his job duties. The report and recommendation at page 58 is modified consistent with this analysis.
Plaintiffs’ objection is overruled.
8. WHETHER THE LACK OF AN EXPRESSED ANTAGONISM BY MAYOR SCHNEIDER OR MR. PUMMEL DEFEATS ANY CLAIM OF RETALIATION AGAINST PLAINTIFFS FOR EXERCISING THEIR RIGHTS OF FREE SPEECH
Plaintiffs argue “some individuals are better about hiding their feelings than others.” (Docket 106 at p. 4). Neither plaintiffs’ objection nor their justification for the objection direct the court to evidence which would support plaintiffs’ position. Argument, without supporting evidence, does not create a genuine issue of material fact. Thomas v. Corwin,
Plaintiffs’ objection is overruled.
9. WHETHER THERE WAS ANY TEMPORAL PROXIMITY BETWEEN PLAINTIFFS’ ASBESTOS COMPLAINTS AND THEIR TERMINATIONS
. The report and recommendation indicates the first asbestos issue arose “[i]n the fall of 2008.... ” (Docket 103 at p. 5). Mr. Hothem called DENR on January 7, 2008, to inquire about the proper methods for asbestos removal. (Docket 60-2). In response to his inquiry, DENR faxed its instructions for asbestos removal to Mr. Hothem on January 7, 2008. (Docket 60-1). On January 31, 2008, DENR received a third-person complaint about asbestos tiles being improperly removed from the City’s police department. (Docket 60-2). Mr. Baldwin from DENR completed an investigation of the removal then in progress. Id. The undisputed evidence clearly discloses asbestos removal first came up in January of 2008, which prompted Mr. Hothem’s communications with DENR.
Plaintiffs submit there is a temporal proximity between the asbestos complaints and the terminations of plaintiffs because “[o]ne of the complaints about asbestos was made August 24, 2009.” (Dockets 71 at ¶ 139 & 75-2 at p. 23). Ms. Schmidt’s email of April 1, 2011, reflects the content of the August 24, 2009, complaint. (Docket 60-3). This complaint was from Nicole Shifar, a former police department secretary. Id. On August 25, 2009, Mr. Hothem explained the process of tile removal to Ms. Schmidt at DENR and encouraged her to come look to make sure the work was done correctly. Id. More important to the asbestos complaint issue, Chief of Police Maunders told Ms. Schmidt the next day that the complaining witness was “a disgruntled employee.” Id.
Mr. Hothem claims he was terminated because he spoke out and challenged May- or Schneider over the initial decision to complete the asbestos tile removal by using City employees. (Docket 1 at ¶ 44). That “speech” occurred in the spring of 2008
Plaintiffs’ objection presents no evidence which was not already considered and rejected by the magistrate judge. The court concludes there was.no temporal proximity between the asbestos removal issue and Mr. Hothem’s termination.
Plaintiffs’ objection is overruled.
10. WHETHER THERE WAS ANY CONTACT WITH DENR REGARDING ASBESTOS REMOVAL VIOLATIONS
The report and recommendation, as modified by this order, accurately sets out the nature of the contact between the City and DENR. Plaintiffs’ objection presents no evidence which was not already considered and rejected by the magistrate judge.
Plaintiffs’ objection is overruled.
11. WHETHER PLAINTIFFS’ TERMINATIONS WERE THE RESULT OF THE ISSUES SURROUNDING ASBESTOS REMOVAL
The report and recommendation, as modified by this order, accurately concludes there was no relationship between the asbestos removal issues and plaintiffs’ terminations. Plaintiffs’ objection presents no evidence which was not already
Plaintiffs’ objection is overruled.
DEFENDANT CITY’S OBJECTIONS
1. WHETHER MR. HOTHEM’S DATE OF RETURN TO EMPLOYMENT WITH THE CITY WAS IN JANUARY OF 2006
The report and recommendation found Mr. Hothem returned to employment with the City in January 2006. (Docket 103 at p. 3). Defendant’s objection asserts the parties agreed his date of return to City employment occurred in January 2007. (Docket 104 at p. 2 ¶ 1).
Mr. Hothem testified he was offered a job and came back to work for the City in January 2006. (Docket 53-12 at p. 22:19-21). Mr. Hothem admitted his resume was wrong about his re-hire date with the City. (Id. at p. 33:1-13). Plaintiffs’ statement of facts, admitted by the City, states “[a]t the request of Mayor Schneider, Councilmember [sic] Tim Bennett approached Hothem in January of 2006 and requested that Hothem leave his job ... and return to the City of Belle Fourche to serve as working supervisor to head up the Custodial and Maintenance Department.” (Dockets 68 at ¶ 2; 87 at ¶ 2). The City’s statement of undisputed facts, admitted by plaintiffs, states “Dennis Hothem returned to employment with the City in January of 2007 as the supervisor of a newly-formed department known as the custodial/maintenance department.” (Dockets 52 at ¶ 2; 69 at ¶ 2). The City’s Legal and Finance Committee voted on January 5, 2007, to hire Mr. Hothem as “Maintenance & Custodial Department Working Supervisor .... ” (Docket 53-1).
The court finds Mr. Hothem was hired in January 2007. (Docket 86-1 at ¶ 6) (sealed) He was then 59 years of age. Id. The report and recommendation is modified consistent with this order.
Defendant’s objection is granted.
2. WHETHER THE “PURPOSE OF THE CUSTODIAL-MAINTENANCE DEPARTMENT” AS EXPRESSED IN THE CITY’S SUMF NO. 5 IS FACTUALLY RELEVANT
The purpose of a custodial-maintenance department is traditionally “to do custodial and maintenance work ... at buildings owned or occupied by the City.” (Docket 52 at ¶ 5). Whether the work of the custodial-maintenance department was “formerly performed by the ... City Recreation Center” is not a fact material to the summary judgment motion. Id. Defendant does not indicate the significance of its proposed undisputed fact or its materiality.
Defendant’s objection is overruled.
3. WHETHER THE “DIFFERENT JOB DESCRIPTIONS WITHIN THE CUSTODIAL-MAINTENANCE DEPARTMENT BEFORE RESTRUCTURING” AS EXPRESSED IN THE CÍTY’S SUMF NO. 9 IS FACTUALLY RELEVANT
Defendant asserts the job descriptions of the custodial-maintenance department before restructuring are material to the “replacement issue” raised later in defendant’s objections. (Docket 104 at ¶3). Those job descriptions are: “eustodial/maintenance supervisor (Dennis Hothem), custodial/maintenance assistant supervisor (Kendall Stevens) and all other employees were custodial maintenance technicians.” (Docket 52 at ¶ 9).
The court finds the City’s “job descriptions” are not job descriptions, in fact, but rather job titles. Whether a person
Defendant’s objection is overruled.
4. WHETHER “THE WORK PERFORMED BY THE CUSTODIAL-MAINTENANCE TECHNICIANS BEFORE RESTRUCTURING OF THE DEPARTMENT” AS EXPRESSED IN THE CITY’S SUMF NO. 10 IS FACTUALLY RELEVANT
Defendant’s SUMF No. 10 does not describe “work performed by custodial-maintenance technicians” but provides a summary of some of the work performed by these employees. Regardless, defendant acknowledges “it is not a material issue of fact that will affect the outcome of the case if Pearson, Hothem, and Stevens handled most or all of the heavy work.” (Docket 86 at ¶ 10) (emphasis in original).
Defendant’s objection is overruled.
5. WHETHER MS. LANDPHERE’S CALCULATIONS AT PAGE 15 FN. 11 OF THE REPORT AND RECOMMENDATION SHOULD HAVE BEEN BASED ON THE CITY’S SUMF NO. 37
The City objects to the magistrate judge’s reference to plaintiffs’ responses to the City’s SUMF No. 37. (Docket 104 at pp. 2-3). The City would prefer there be no discussion of plaintiffs’ generalized objection. In reviewing the City’s SUMF No. 37, plaintiffs’ objection (Docket 86 at ¶ 37), and the footnote at page 15 of the report and recommendation, the court finds the footnote to be a fair comment on the state of the evidence. The City’s claim of saving approximately $37,754.54 is accepted for what it was intended to be a-budget estimated savings for 2010.
Defendant’s objection is overruled.
6. WHETHER MS. LANDPHERE’S CALCULATIONS IN THE CITY’S SUMF NOS. 38, 39, 40, 41, AND 42 ARE FACTUALLY RELEVANT
The City’s SUMF No. 38 is, in part, a restatement of SUMF No. 37, discussed above. The hourly wage increases for Mr. Smoot and Mr. Hoffman are addressed in the report and recommendation. (Docket 103 at pp. 21-22). SUMF No. 39 focuses on the City’s budget work relating to the library-resulting in a $21,696 savings, and the receptionist-secretary position in the City Engineer’s Office being reduced to part-time with a savings of $13,023. These positions are mentioned at pages 16, 17, and 18 of the report and recommendation. (Docket 103 at pp. 16-18). SUMF No. 40 discussed dispatch savings and health insurance premium reductions city-wide. Reduction of dispatch costs and employee health insurance premiums are generally mentioned at page 46 of the report and recommendation. Id. at p. 46. SUMF No. 41 discusses reducing full-time positions to part-time positions to save wages and benefits. These types of budget saving activities are mentioned at pages 15, 16, 18, 22, 41, 42, and 45 of the report and recommendation. Id. at pp. 15, 16, 18, 22, 41, 42 & 45. While the costs of the activities mentioned in SUMF No. 42 may not be separately identified, the report and recommendation acknowledges “[u]nder the comprehensive budgetary plan voted on by the council, the council eliminated positions in the library and in custodial/maintenance; reduced hours of employees in the finance office and the engineer
Defendant’s objection is overruled.
7. WHETHER THE CITY’S SUMF NO. 54 IS FACTUALLY RELEVANT
The report and recommendation specifically mentions Mr. Smoot was promoted “to the position of custodial/ maintenance technician IV/foreman____” Id. at p. 21. The elimination of the custodial-maintenance department and transfer of duties to the public works department would necessarily require a new position in the public works department. The creation of the new position in the public works department is implied in the general discussion of the report and recommendation.
Defendant’s objection is overruled.
8. WHETHER THE STATEMENT MR. SMOOT RECEIVED A $3 PER HOUR RAISE IS IN ERROR
Mr. Smoot was given a $2.06 per hour raise, from $12.46 to $14.52 per hour, at the time of his promotion on December 7, 2009. (Docket 103 at pp. 21, n. 18 & 22). He was then given a 3% cost of living increase on January 1, 2010, bringing his hourly wage rate to $14.96. Id. at p. 21, n. 18. This is a $3 per hour raise in 24 days. Each of the elements of this raise calculation is adequately explained in the report and recommendation.
Defendant’s objection is overruled.
9. WHETHER MR. HAUF WAS INTERVIEWED BY MR. HOTHEM WHEN MS. PENNY HERMAN’S POSITION BECAME AVAILABLE
The record discloses when Penny Herman resigned in August 2009, Mr. Hothem interviewed Jeff Hauf on September 3, 2009, to fill her position as a custodial maintenance technician in the custodial-maintenance department. (Docket 86 at ¶¶ 61 & 62). The report and recommendation specifically noted “[o]n or about September 3, 2009, Mr. Hothem interviewed Jeff Hauf for this position and recommended to the council that Mr. Hauf be hired.” (Docket 103 at p. 42 n. 25).
Defendant’s objection is overruled.
10. WHETHER THE STATEMENTS REGARDING MR. HOFFMAN’S SALARY INCREASES AND COST OF LIVING INCREASE ARE IN ERROR
Mr. Hoffman received a salary increase from $23.96 per hour to $27.51 per hour effective December 7, 2009. (Docket 86 at ¶ 66). He then received a 3% cost of living increase on January 1, 2010, which brought his total hourly rate to $28.34 per hour. The report and recommendation is modified accordingly.
Defendant’s objection is sustained.
11. WHETHER MR. BENNETT’S STATEMENT ABOUT THE POSITION OF THE CITY COUNCIL REGARDING THE CUSTODIAL-MAINTENANCE DEPARTMENT IS RELEVANT
Defendant objects to the magistrate judge including a statement from Mr.
Defendant’s objection is overruled.
12. WHETHER THE CITY’S DISCIPLINARY AND GRIEVANCE PROCEDURES ARE RELEVANT TO THE TERMINATION OF PLAINTIFFS
The magistrate judge simply referred to the City’s disciplinary and grievance procedures as plaintiffs claim they were terminated in violation of the City’s own policies. (Docket 103 at p. 20). The report and recommendation does not make the City’s disciplinary and grievance procedures a part of the ultimate conclusion in the ease.
Defendant’s objection is overruled.
13. WHETHER THE STATEMENT “MR. HOTHEM AND MR. STEVENS WERE NOT PROVIDED ANY EXPLANATION OR PRIOR NOTICE ABOUT THEIR TERMINATION, NOR WERE THEY GIVEN THE OPPORTUNITY TO PROVIDE REASONS WHY THE ACTION SHOULD NOT BE TAKEN, WHICH MR. HOTHEM AND MR. STEVENS ASSERT WAS IN VIOLATION OF THE CITY’S OWN POLICIES” IS RELEVANT
Plaintiffs’ statement of material facts states “[o]n November 16, 2009, Hothem and Stevens were told to bring their keys and then were terminated during an Open [sic] session of the City Council at the end of the meeting without explanation, notice or the opportunity to give reasons why the action should not be taken.” (Docket 87 at ¶ 86). The City admits this statement is true. Id. The magistrate judge simply referred to this statement as plaintiffs’ claim they were terminated in violation of the City’s own policies. (Docket 103 at p. 20). The report and recommendation does not make the City’s disciplinary and grievance procedures a part of the ultimate conclusion in the case. Nor does the report and recommendation condemn the City’s action even though its action was taken “without explanation, notice or the opportunity to give reasons why the action should not be taken.” (Docket 87 at ¶ 86). This is a fair statement of the undisputed facts, even without reference to the City’s own policies and procedures.
Defendant’s objection is overruled.
B. MAGISTRATE JUDGE’S CONCLUSIONS OF LAW
Plaintiffs filed no objections to the magistrate judge’s conclusions of law and recommendations. Defendant City’s objections to the magistrate judge’s conclusions of law and recommendations are summarized as:
There is an insufficient factual basis to support a claim that indirect evidence exists which would support a jury finding that the elimination of the positions of Mr. Hothem and Mr. Stevens constituted disparate-treatment, that is, plaintiffs cannot make a prima facie case of unlawful age discrimination because:
A. At step three of the analysis, Mr. Hothem and Mr. Stevens were not meeting their employer’s reasonable*975 expectations at the time of the adverse action;
B. At step four of the analysis, plaintiffs cannot prove:
1. They were individually “replaced” by another City employee; and
2. If plaintiffs were “replaced,” the replacing employees were not “substantially younger” than plaintiffs;
C. Plaintiffs cannot satisfy their burden of proof that the City’s reasons were pretextual.
(Docket 104 at pp. 6-49). Each of the City’s objections to the conclusions of law in the report and recommendation will be addressed separately.
1. AT STEP THREE OF THE ANALYSIS, MR. HOTHEM AND MR. STEVENS WERE NOT MEETING THEIR EMPLOYER’S REASONABLE EXPECTATIONS AT THE TIME OF THE ADVERSE ACTION
The City argues the magistrate judge used the wrong standard in evaluating step three of the McDonnell Douglas
Jelsma was a case evaluating summary judgment under both the Americans with Disabilities Act (“ADA”) and the ADEA. Jelsma,
In Riley v. Lance, Inc.,
The court accepts the magistrate court’s analysis and use of the standard “plaintiff must show only that he possesses the basic skills necessary for performance on the job, not that he was doing it satisfactorily.” (Docket 103 at p. 32) (citing Haigh v. Gelita USA, Inc.,
The logic of McGinnis and Haigh has been accepted in other employment discrimination settings since Haigh. In Lake v. Yellow Transportation, Inc.,
Defendant’s objection to the step three analysis is denied.
2. AT STEP FOUR OF THE ANALYSIS, PLAINTIFFS CANNOT PROVE THEY WERE INDIVIDUALLY “REPLACED” BY ANOTHER CITY EMPLOYEE
The parties acknowledge the process the City used in terminating plaintiffs’ positions was a work force reduction or reduction in force (collectively “RIF”). (Dockets 54 at p. 18; 67 at p. 6; 68 at ¶ 56). The magistrate judge concluded genuine issues of material fact exist as to whether Mr. Hothem and Mr. Stevens were replaced by Mr. Smoot and Mr. Hauf, respectively. (Docket 103 at pp. 40 & 42 n. 25). Defendant objects to these
In their analysis, plaintiffs focused the court on the elements of an ADEA claim set out in Roeben v. BG Excelsior Ltd. Partnership,
Defendant City urges the court to accept the rationale and rules of the United States Court of Appeals for the Sixth Circuit in Barnes v. GenCorp Inc.,
A work force reduction situation occurs when business considerations cause an employer to eliminate one or more positions within the company. An employee is not eliminated as part of a work force reduction when he or she is replaced after his or her discharge. However, a person is not replaced when another employee is assigned to perform the plaintiffs duties in addition to other duties, or when the work is redistributed among other existing employees already performing related work. A person is replaced only when another employee is hired or reassigned to perform the plaintiffs duties.
Barnes,
The magistrate judge initially cited two cases which were not RIF based ADEA cases: Richmond v. Bd. of Regents of University of Minnesota,
[T]he employee (1) was at least 40 years old; (2) suffered adverse employment actions; (3) was qualified for his job or that he was meeting the employer’s reasonable expectations at the time of the adverse actions; and (4) was replaced by someone substantially younger.
(Docket 103 at pp. 30-31) (citing Lewis,
The magistrate judge focused her analysis on Cova v. Coca-Cola Bottling Co. of St. Louis, Inc.,
[A] plaintiff may establish a prima facie case that his or her discharge violated the Age Discrimination in Employment*978 Act by showing (1) that he or she is within a protected age group, (2) that he or she met applicable job qualifications, (3) that despite these qualifications, he or she was discharged, and (4) that, after the discharge the position remained open and the employer continued to seek applications from persons with similar qualifications.9
Id. at 959.
■ Notwithstanding the analysis required in an ADEA case based on a RIF, the magistrate judge changed focus to a non-RIF ADA-ADEA case, Christensen v. Titan Distribution, Inc.,
The question remaining in the analysis of this case is whether plaintiffs were “qualified for any position existing after the RIF....” Rahlf,
[Ajlthough the city asserts there was a reduction-in-force, the record indicates that the positions were hot in fact eliminated or consolidated.... Rather, Mr. Smoot’s and Mr. Haufs new positions were very similar to Mr. Hothem’s and Mr. Stevens’ positions____ [T]he City never offered Mr. Hothem and Mr. Stevens the opportunity to apply for these ‘new’ positions, for which they were obviously qualified since the duties under the ‘new' positions were the same duties previously performed by Mr. Hothem and Mr. Stevens. No offer was made to Mr. Hothem to continue performing as the supervisor for the custodial/maintenance department minus some administrative duties. Additionally, no offer was made to Mr. Stevens to continue as a custodial/maintenance technician with reduced hours and benefits. Rather, it appears that the city terminated Mr. Hothem and Mr. Stevens and then promoted and hired new individuals to fill very similar roles at equivalent or nearly equivalent salaries.
Id. at pp. 44-45. “Mr. Hothem and Mr. Stevens point out that the only individuals whose positions were terminated or had their hours reduced were all older than 55.” Id. at p. 45. “Though not determinative of age discrimination, this fact is sufficient to make a prima facie case.” Rahlf,
Applying the proper analysis standard required by Cova, Ward, and Rahlf, defendant’s objection is overruled. The report and recommendation is modified to reflect this analysis. That part of the report and recommendation in conflict with this analysis is rejected.
3. IF PLAINTIFFS WERE “REPLACED,” THE REPLACING EMPLOYEES WERE NOT “SUBSTANTIALLY YOUNGER” THAN PLAINTIFFS
Defendant’s objection focuses on the age comparison between Mr. Hothem and Mr. Smoot.
The nine-year age difference between Mr. Girten and his replacement may not be sufficient to infer age discrimination. Cf. Schiltz v. Burlington N. R.R.,115 F.3d 1407 , 1412-13 (8th Cir.1997) (holding that a five-year age disparity is insufficient to infer discrimination) with Keathley v. Ameritech Corp.,187 F.3d 915 (8th Cir.1999) (holding that a fourteen-year age difference is sufficient to infer age discrimination).
Girten,
In Chambers v. Travelers Companies, Inc.,
Girten v. McRentals,337 F.3d 979 , 981 (8th Cir.2003) (stating that replacement of 63-year old by 54-year old may be insufficient); Radue v. Kimberly-Clark Corp.,219 F.3d 612 , 619 (7th Cir.2000) (termination of 53-year old while retaining 46-year old and 44-year old, without more, insufficient); ... Dunaway v. Int’l Bhd. of Teamsters,310 F.3d 758 , 767 (D.C.Cir.2002) (replacement of employee by other 7 years younger insufficient without more); ... Wassell v. Mutual Life Ins. Co.,164 F.3d 633 ,1998 WL 700537 , at *1 (9th Cir.1998) (table) (replacement by person 6 years younger insufficient); ... Cramer v. Intelidata Techs. Corp.,168 F.3d 481 ,1998 WL 911735 , at *3 (4th Cir.1998) (table) (replacement of employee with person 5 years younger insufficient); Wellman v. Wheeling & Lake Erie Ry. Co.,134 F.3d 373 ,1998 WL 25005 , at *4 (6th Cir.1998) (table) (replacement of 46-year old with 41-year old insufficient); ... Schiltz v. Burlington N. R.R.,115 F.3d 1407 , 1412 & n. 6 (8th Cir.1997) (where six positions that 48-year old plaintiff applied for were filled by persons aged 43, 46, 51, 55, 48, and 47 no prima facie age discrimination case exists)....
Id. at 338-339. ‘Without more” the nine-year difference between Mr. Hothem and Mr. Smoot may not satisfy the “substantially younger” criteria of Chambers.
Defendant’s objection is overruled.
4. PLAINTIFFS CANNOT SATISFY THEIR BURDEN OF PROOF THAT THE CITY’S REASONS WERE PRETEXTUAL
The magistrate judge concluded “The city’s proffered reasons for the elimination of Mr. Hothem’s and Mr. Stevens’ positions are legitimate and nondiscriminatory.” (Docket 103 at p. 46). At the next step of the McDonnell Douglas burden-shifting analysis, plaintiffs are required to show the City’s reasons for termination of plaintiffs’ positions were pretextual. Id.
In Gross v. FBL Financial Services, Inc.,
We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.13
Id. at 2352. The Eighth Circuit incorporated the “but-for” requirement into its burden-shifting analysis. Haigh,
“In determining whether a plaintiff has met its burden with respect to pretext in a summary judgment motion, a district court is prohibited from making a credibility judgment or a factual finding from conflicting evidence.” Yates v. Rex-ton, Inc.,
The magistrate judge accepted six reasons given by plaintiffs that the City’s termination decision was pretextual. Those reasons, together with the analysis of each, are:
(1) There was no reduction-in-force
Plaintiffs acknowledge the City was properly concerned about an anticipated short-fall for the 2010 budget year but do not believe a RIF was necessary or, in fact, occurred. The magistrate judge properly noted the City was entitled to the business judgment rule. (Docket 103 at p. 47). The court is not authorized to “judge the wisdom of [the City’s] business decision to reduce its workforce in response to economic pressures.” Yates,
(2) Health care premium costs evaluation focused on the older employees age brackets (55-64)
The undisputed evidence disclosed only three employees were terminated in the RIF — plaintiffs, plus the assistant librarian who was over 55 years of age. (Docket 103 at p. 51 n. 27). The magistrate judge concluded this “smacks of age discrimination.” (Docket 103 at p. 52). “Employment decisions motivated by characteristics other than age (such as salary and pension benefits), even when such characteristics correlate with age, do not constitute age discrimination.” Hanebrink v. Brown Shoe Co.,
Defendant’s objection is sustained and the report and recommendation is modified to reflect this conclusion.
(3) The City had a changing number of reasons for its termination decisions
The City initially concluded termination of the plaintiffs’ positions was necessary as part of a RIF based on “economic realities facing the City and the desire for more efficient and cost effective services.... ” (Dockets 86 at ¶ 52 & 87 at ¶ 42). The magistrate judge thought this changed to include performance-related issues with the testimony of Councilman Pummel. (Docket 103 at p. 50) (citing Docket 53-14 at pp. 35-36). Mr. Pummel testified he was concerned because:
[t]he custodial-maintenance department ' was contracting out a'lot of stuff that we thought should have been done in-house and there was [sic] a lot of things that they just wouldn’t do ... we started just turning to the Public Works Department because they had a guy there that was pretty handy and they started doing a lot of those duties anyway. And so it was a pretty easy decision.
It didn’t really seem like those guys were really towing their weight ... so when I was looking, as legal finance chairman, for places to cut because it became real apparent that we had to cut positions, I was looking at the places that causes the least pain and this was one [cutting the custodial-maintenance department].
(Docket 53-14 at p. 36:2-16). Finally, the magistrate judge concluded the argument the City got “more bang for its buck with Kim Smoot than it got with Mr. Hothem” was a “varying explanation ]” for the City’s elimination of the custodial-maintenance department. (Docket 103 at p. 51).
City counsel’s argument that it got “more bang for its buck” is just that, an argument and not a change in the City’s position. The court finds the decision of the City to eliminate the custodial-maintenance department was never a “performance” issue against either plaintiff, but rather an efficiency comparison between
Defendant’s objection is sustained and the report and recommendation is modified to reflect this conclusion.
(4) Plaintiffs were not offered the opportunity to fill the “newly created” positions
The City argues under the business judgment rule it did not have to offer Mr. Hothem the opportunity to fill the position taken by Mr. Smoot. (Docket 104 at p. 39). “[T]he City would get more bang for its buck by transferring some of the administrative duties of Hothem to Hoffman, having Smoot perform some of the duties of Hothem, and have Smoot perform additional duties that Hothem was never able to perform.” Id.
Without the administrative duties which were being transferred to the public works director, comparing Mr. Hothem’s position to the position which Mr. Smoot assumed before the end of December 2009 shows those job descriptions are nearly identical. Compare Dockets 74-4 at pp. 1-4 and 90-18 at pp. 1-3.
In a summary judgment analysis, plaintiffs are entitled to all reasonable inferences. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
In similar fashion, Mr. Stevens’ pre-termination job description and the job description for the position Mr. Hauf filled are nearly identical. Compare Dockets 74-4 at pp. 5-7 and 90-30 at pp. 1-3.
The business judgment rule does not allow the City to discriminate based on age. Plaintiffs have presented sufficient evidence that “but-for” their age, plaintiffs were qualified for and should have been offered these newly created positions as part of the RIF process. Rahlf,
Defendant’s objection is overruled and the report and recommendation is amended to reflect this analysis.
(5) Mr. Hauf was almost immediately promoted to full time
Coupled with plaintiffs’ claim Mr. Stevens should have been offered the position filled by Mr. Hauf, the fact Mr. Hauf was rapidly increased from 19 3/4 hours to 35 hours per week creates a strong inference that a “but-for” pretext exists for the decision to terminate Mr. Stevens based on his age.
Defendant’s objection is overruled.
(6) Salaries given to Mr. Smoot and Mr. Hauf were nearly the same as those of Mr. Hothem and Mr. Stevens
Mr. Hothem was making $14.52 per hour and when Mr. Smoot was transferred into the “new” position he was making $14.52 per hour. (Docket 103 at p. 21 n. 18). This was after the City transferred Mr. Hothem’s administrative duties to Public Works Director Hoffman and gave him a $3.55 per hour raise. Id. at p. 22. Mr. Stevens was making $11.07 per hour and Mr. Hauf began his work as a custodi
Defendant’s objection is overruled.
ORDER
Based on the above analysis, it is hereby
ORDERED that plaintiffs’ objections (Docket 106) are granted in part and denied in part.
IT IS FURTHER ORDERED that defendant City of Belle Fourche’s objections (Docket 104) are granted in part and denied in part.
IT IS FURTHER ORDERED that the report and recommendation (Docket 103) is adopted in part, modified in part and rejected in part consistent with this order.
IT IS FURTHER ORDERED that defendant City of Belle Fourche’s motion for summary judgment (Docket 47) is granted in part and denied in part.
IT IS FURTHER ORDERED that defendant Schneider’s motion for summary judgment (Docket 57) is granted.
IT IS FURTHER ORDERED that defendant City of Belle Fourche’s motion for summary judgment as to plaintiffs’ purposeful age discrimination claim under the Age Discrimination in Employment Act is denied.
IT IS FURTHER ORDERED that plaintiffs’ disparate impact age discrimination claims under the Age Discrimination in Employment Act are dismissed with prejudice.
IT IS FURTHER ORDERED that plaintiffs’ First Amendment claims under 42 U.S.C. § 1983 are dismissed with prejudice.
IT IS FURTHER ORDERED that plaintiffs’ wrongful discharge in violation of South Dakota public policy claims are dismissed with prejudice.
Notes
. Fed.R.Civ.P. 72(b)(2) allows a party to respond to an opposing party’s objections. There is no provision in Rule 72(b)(2) or 28 U.S.C. § 636(b)(1) allowing a party to file a reply to a response to an opposing party’s objections. The end result of these multiple filings is the objections, responses and replies are longer than the report and recommendation (81 pages combined compared to 71 pages).
. In the report and recommendation, the magistrate judge mistakenly called DENR the Department of Energy and Natural Resources. (Docket 103 at p. 6). The report and recommendation is modified to correctly identify the Department of Environment and Natural Resources. See SDCL § 1-32-2(6).
. All citations to depositions will be to the particular page and lines of the transcript and not to the page of the docket entry.
. The court is required to "consider the actual testimony” on the subject of a parties' objection. Branch v. Martin,
. Mr. Hothem testified there was no friction between he and Mayor Schneider or Councilman Pummel over the asbestos bids Mr. Hothem obtained. (Docket 53-12 at p. 124:15-23).
. "[A] party cannot avoid summary judgment by contradicting his own earlier testimony.” Prosser v. Ross,
. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
. To satisfy the second element of the burden-shifting analysis under ADA a plaintiff “must first show that he 'meets the necessary prerequisites for the job, such as education, experience, and training,’ and second, that he 'can perform the essential job functions, with or without reasonable accommodation.’ ” Jelsma,
. Subsequent Eighth Circuit cases convert the fourth step to “(4) there is some additional evidence that age was a factor in the employer's action.” See Ward v. International Paper Co.,
. The facts of Cova judged against these elements were as follows. Coca-Cola's plant manager notified four plaintiffs, ages 53, 55, 59 and 62, "that there was no place for them in the reorganized sales department and that they were discharged.” Cova,
. Defendant does not object to the magistrate judge's finding Mr. Hauf was substantially younger than Mr. Stevens because of the thirteen-year difference in their ages. (Dockets 103 atpp. 42-43).
. "That a younger employee assumed some of plaintiff's duties does not establish a prima facie case because often [iri a RIF] at least one younger worker receives some of plaintiff's duties.” Ward,
. "Congress amended Title VII to allow for employer liability when discrimination ‘was a motivating factor for any employment practice, even though other factors also motivated the practice,’ 42 U.S.C. § 2000e-2(m) (emphasis added), but did not similarly amend the ADEA.... We must give effect to Congress’ choice.” Gross,
. In the report and recommendation the magistrate judge mistakenly identified Mr. Stevens as working 19 3/4 hours and then increased to 35 hours per week. (Docket 103 at p. 49). This was clearly a typographical error as it was Mr. Hauf the analysis was referencing. The report and recommendation is amended to reflect this clarification.