Lead Opinion
with whom RILEY, Chief Judge, WOLLMAN, LOKEN, MURPHY, COLLOTON, GRUENDER, BENTON, and SHEPHERD, Circuit Judges, join, concurring.
After being fired from his position with Securitas Security Services USA, Inc. (Securitas) at the age of seventy-six, Car-lyn Johnson filed this age discrimination claim under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634. The district court
I
Johnson has worked as a security guard since the late 1990s. In 2003, when the
Johnson’s work history with Securitas was generally positive. He had a reputation for being dependable and never refusing an offered shift, even when accepting required Johnson to work multiple consecutive shifts. Robert Hesse, one of Securitas’s field service managers, took to referring to Johnson by the nickname “Superman” at least in part to reflect Johnson’s dependability.
Hesse, however, had concerns about Johnson’s ability to work long hours and multiple consecutive shifts. Hesse talked to other Securitas field service managers on multiple occasions, ' recommending against scheduling Johnson for shifts which would cause him to work more than forty hours in a given week. On several occasions, Hesse compared Johnson to Hesse’s retired father who, Hesse claimed, tried to take on work beyond his capabilities. On other occasions, Hesse also commented to both Johnson and Johnson’s wife that Johnson was “too old” to be working and it was “time to hang up [Johnson’s] Superman cape and retire.”
One of Securitas’s clients in 2009 was Rail Logistics. Rail Logistics contracted with Securitas for a security guard to patrol its site during two regular weekend shifts, from 4:00 p.m. Saturdays to 8:00 a.m. Sundays, and from 4:00 p.m. Sundays to 6:00 a.m. Mondays. In the weeks leading up to the incident for which he was fired, Johnson worked several shifts at Rail Logistics, some ending at 8:00 a.m. and some ending at 6:00 .a.m. The week before the shift for which he was fired, Johnson worked the Saturday night to Sunday morning shift at Rail Logistics, which ended at 8:00 a.m.
Shortly after 5:30 a.m. on the morning of Sunday, January 25, 2009, while Johnson was working a shift at the Rail Logistics site, the Securitas vehicle in which Johnson was patrolling collided with a stationary semi-trailer. The collision damaged the Securitas vehicle. Securitas has a policy which requires its employees to report vehicle accidents as soon as possible. Sec-uritas guards did not, however, have access to a phone at the Rail Logistics site and Securitas had not provided Johnson with a cell phone or radio. As a result, Johnson attempted to use his own cell phone to report the collision to Securitas. Despite several tries, however, Johnson’s cell phone was unable to get a strong enough signal to connect to the Securitas office.
Johnson remained on the site until approximately 7:00 a.m., whereupon he left it to drive the damaged vehicle back to the Securitas office. Along the way, he stopped to use his cell phone in another attempt to report the collision. At 7:02 a.m., Johnson reached Charlie Bunch, the Securitas field service manager on duty. Johnson reported the collision and told Bunch the Rail Logistics shift was over and he was on his way back to the Securi-tas office. Bunch, who was new to the shift and unfamiliar with the time at which the Rail Logistics shift ended, told Johnson to drop off the Securitas vehicle and go home, indicating to Johnson he would call Johnson back to the office if needed. Johnson did so.
Bunch went to the Securitas parking lot to assess the damage to the vehicle Johnson had been driving. Bunch then began
On Wednesday, January 28, 2009, Hesse called Johnson and told him to expect a call from Parker. During this call, Hesse again commented to Johnson it was “time to hang up [his] Superman cape and retire.” Shortly thereafter, Parker called Johnson. During the call, she asked Johnson if he had been born in 1932. Parker then informed Johnson his employment with Securitas had been terminated and asked him to come to the Securitas office to answer questions about the accident. Johnson responded, saying he would not return to the office as he had been fired. Parker then obtained Johnson’s answers to her questions over the phone. Securitas did not hire anyone to replace Johnson.
In the months which followed, Johnson filed several complaints with Securitas’s in-house hotline, claiming his firing had been the result of mistake and age discrimination. Johnson ultimately filed this suit. After discovery, Securitas moved for summary judgment. The district court granted the motion, concluding Johnson had failed to raise genuine questions of material fact regarding a necessary element of a prima facie case of age discrimination. The district court also held, in the alternative, Johnson had failed to submit sufficient evidence to raise a genuine question of material fact regarding whether Securi-tas’s stated reasons for terminating Johnson had been pretext for age discrimination.
Johnson appealed, arguing the district court erred by granting Securitas summary judgment. A divided panel of this court reversed. The full court subsequently granted Securitas’s petition for rehearing en banc.
II
On appeal, Johnson contends the district court erred in granting Securitas summary judgment, offering a number of arguments he has submitted sufficient evidence to raise genuine questions of material fact regarding each of the elements of his age discrimination claim.
Employment discrimination claims in cases where, as here, there is no direct evidence of discrimination, are considered under the burden shifting analysis set forth in McDonnell Douglas Corp. v. Green,
Assuming for the sake of argument Johnson has sufficiently alleged a prima facie case of age discrimination, we conclude he has failed to introduce sufficient evidence to raise a genuine question of material fact regarding the third phase of the McDonnell Douglas analysis. In this case, Securitas has articulated legitimate, nondiscriminatory reasons for terminating Johnson’s employment, namely Johnson’s early unauthorized departure from the Rail Logistics site and delay in reporting his accident there. Accordingly, to survive summary judgment, Johnson must have submitted sufficient evidence to raise genuine questions of material fact whether Securitas’s articulated reasons were merely pretext for age discrimination.
Johnson offers a number of arguments to support his position the evidence he submitted is sufficient to survive Securi-tas’s summary judgment motion. Johnson points to (1) his assertion he did not leave the site early; (2) Hesse’s age-related comments; (3) Parker’s knowledge of Johnson’s age; (4) Securitas’s disparate treatment of Johnson; (5) Securitas’s shifting explanations for terminating Johnson’s employment; (6) Parker’s spoliation of evidence; and (7) the record as a whole.
Hesse’s comments. The sole evidence of age animus in the record consists of Hesse’s age-related comments. Johnson links those comments to his termination on the basis of Securitas’s answer to an interrogatory indicating Hesse was one of three people who together made the decision to terminate his employment. In essence, Johnson asks the court to infer Hesse prevailed on Bunch and Parker to take advantage of Johnson’s early unauthorized departure from the Rail Logistics site and delay in reporting the accident to fire Johnson because of his age. Because Hesse had previously discussed Johnson’s age with other Securitas managers, it would be reasonable to infer Hesse spoke to Bunch and Parker about Johnson’s age. Under the relatively minimal threshold required to establish a prima facie case, this could raise a question whether age was a factor in Johnson’s termination.
At the pretext stage, however, we must view the evidence of pretext in light of the legitimate, nondiscriminatory reasons articulated by Securitas. Jones,
Parker. Johnson also points to Parker being aware of his age when she informed him his employment had been terminated. Similar to Hesse’s history of making age-related comments, Parker’s awareness of Johnson’s age would merit a reasonable inference Hesse had discussed Johnson’s age with her after the incident. As we have noted, under the relatively minimal threshold necessary to establish a prima facie case this could be sufficient to raise a question of fact whether age was a factor in Johnson’s determination. Viewing the evidence in light of Securitas’s
Disparate treatment. The record indicates Securitas has not fired any other employee for the reasons it fired Johnson. Johnson argues this merits an inference he was, therefore, treated differently from other similarly situated employees. On this record, however, the inference is unreasonable. At the pretext stage, the test for whether someone is sufficiently similarly situated, as to be of use for comparison, is rigorous. See Bone v. G4S Youth Servs., LLC,
Changing rationales. Johnson next contends he has raised a genuine question of material fact whether Securitas’s articulated reasons were pretext, arguing Securitas has repeatedly changed the reasons it has given for his termination. “A change in an employer’s legitimate, nondiscriminatory reason for firing an employee is probative of pretext only if the discrepancy is ‘substantial.’ ” Id. at 957 (citing Twiggs v. Selig,
Spoliation. Johnson next contends he was entitled to an inference that Parker’s destroyed personal notés contained information favorable to his position, arguing the district court should have considered the contents of the notes suffi
Record as a whole. At the last, Johnson contends the record as a whole contains questions of material fact sufficient for him to survive Securitas’s summary judgment motion. We disagree. For the reasons we have already discussed, the separate aspects of the record Johnson focuses on in his specific arguments do not raise genuine questions of material fact regarding whether Securitas’s asserted reasons for terminating him were pretext or whether age was the “but-for” reason for his termination. Johnson’s argument regarding the record as a whole is merely an amalgamation of the arguments we have already found unavailing.
For the foregoing reasons, the district court did not err in granting Securitas summary judgment.
Ill
The judgment of the district court is affirmed.
Notes
. The Honorable Rodney W. Sippel, United States District Judge for the Eastern District of Missouri.
. Securitas also requires employees who have been in an accident to participate in its resulting investigation, which Securitas requires commence within four hours of the accident in order to capture evanescent evidence such as blood-alcohol content.
. Johnson also argues the district court failed to view the evidence in the light most favorable to him as the non-moving party. We agree there are some instances in which the district court viewed conflicting evidence in a light more favorable to Securitas. The facts
Concurrence Opinion
with whom MELLOY and KELLY, Circuit Judges, join, concurring in part and dissenting in part.
I concur in the majority’s reasoning to the extent that it concludes that Carlyn Johnson submitted sufficient evidence to raise genuine issues of material fact about each element of a prima facie case of age discrimination. I also agree that Securitas articulated legitimate, nondiscriminatory reasons for terminating Johnson’s employment. But, unlike the majority, I find that Johnson has “adduce[d] enough admissible evidence to raise genuine doubt as to the legitimacy of [Securitas’s] motive, even if that evidence did not directly contradict or disprove [Securitas’s] articulated reasons for its actions.” Davenport v. Riverview Gardens Sch. Dist.,
“ ‘Summary judgment is proper if, after viewing the evidence and drawing all reasonable inferences in the light most favorable to the nonmovant, no genuine issues of material fact exist and the movant is entitled to judgment as a matter of law.’ ” Johnson v. Carroll,
Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury*615 functions, not those of a judge, whether he is ruling on a motion for summary judgment or for .a directed verdict. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.
Anderson,
Because Securitas put forth a legitimate, nondiscriminatory reason for terminating Johnson’s employment, Johnson must demonstrate “ ‘that [Securitas’s] proffered explanation is pretextual or his claims will fail.’ ” Anderson v. Durham D & M, L.L.C.,
Construing the facts in the light most favorable to Johnson — as we must — shows that Johnson has “adduce[d] enough admissible evidence to raise genuine doubt as to the legitimacy of [Securitas’s] motive, even if that evidence did not directly contradict or disprove [Securitas’s] articulated reasons for its actions.” Davenport,
Hesse, Johnson’s supervisor, told Johnson on several occasions over a three-year period that Johnson “needed to hang up his Superman cape.” Johnson understood Hesse’s comment to mean that Johnson “was worn out and ... shouldn’t be working.” Hesse “also said [that Johnson] was too old to be working.” On one occasion, when Johnson’s wife called Hesse to advise him that her husband was in the hospital, Hesse commented that Johnson “should retire,” “was ‘too old’ to continue working,” and “ ‘needed to hang up his Superman cape and retire.’ ”
Hesse also compared Johnson to Hesse’s retired father, who was in his 80’s at the time of Johnson’s termination. Hesse told Johnson that Hesse’s father “tried to work, do more than [he] could do.” Hesse testified that he made the comparison to his father in response to Johnson’s acceptance of more work as a utility officer with Securitas. Johnson testified that Hesse “always referenced to his own father who was 86 [and] had to quit [work], and now Bob [Hesse] had to take care of him. He said, ‘You ought to do the same thing. Just drop everything.’ ”
Hesse admitted to telling field service managers, including Bunch, that Johnson “needed to hang up his cape” and that Johnson was “working past his limitations.” Hesse also suggested to other managers that they “prevent [Johnson] from working 50, 60 hours a week.” Johnson brought Hesse’s comments to his supervisors’ attention, including Hesse himself and Bunch.
Prior to Johnson’s termination, Hesse called Johnson and told him that Hesse had talked with Parker. Hesse told Johnson “that [Hesse] thought [Johnson] should hang up [his] cape and retire or go home.” Hesse provided Johnson with Parker’s telephone number, told Johnson that he had talked with Parker, and advised Johnson that Parker was going to call Johnson.
In a subsequent phone call with Parker, Johnson was terminated. In response to an interrogatory, Securitas stated that Parker, Bunch, and Hesse participated in
In sum, construing the facts in the light most favorable to Johnson, the record shows that Hesse, Parker, and Bunch collectively decided to terminate Johnson’s employment. Decisionmaker Hesse repeatedly made disparaging, age-related comments about Johnson, including telling Johnson just prior to his termination that he should “hang up [his] cape and retire or go home.” A factfinder could reasonably conclude that decisionmaker Hesse sought to terminate Johnson because of his age.
As the majority admits, “Because Hesse had previously discussed Johnson’s age with other Securitas managers, it would be reasonable to infer Hesse spoke to Bunch and Parker about Johnson’s age.” See Part II, supra. But the majority’s analysis stops short. The ultimate question is not whether Hesse spoke to Bunch and Parker about Johnson’s age but what effect Hesse’s repeated, derogatory comments about Johnson’s age had on his fellow decisionmakers. Hesse made the disparaging, age-related comments to Johnson and other managers, including decisionmaker Bunch. Additionally, Hesse informed Johnson that he should retire shortly after speaking with decisionmaker Parker. Did Parker really not know Johnson’s age at the time of his termination? How much did Hesse influence Bunch’s and Parker’s decision to terminate Johnson? On this record, these questions are for a jury to decide, not this court. See Anderson,
Accordingly, I respectfully dissent from the majority’s conclusion that genuine issues of material fact concerning pretext do not exist and would reverse the district court’s grant of summary judgment in Sec-uritas’s favor.