DANIEL SPEER, Plaintiff, vs. UNITED BLOOD SERVICES, a division of Blood Systems, Inc., Defendant.
Case No. CV-11-54-BLG-RFC
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BILLINGS DIVISION
December 21, 2012
Plaintiff Daniel Speer was formerly employed in Billings as a Lab Training Coordinator by Defendant United Blood Services (“UBS“). UBS is a division of Blood Systems, Inc. (“BSI“). UBS terminated Plaintiff‘s employment as of December 31, 2009. Plaintiff alleges claims under Montana‘s Wrongful Discharge from Employment Act and Montana‘s Human Rights Act based on alleged violations of age and disability discrimination
Defendant UBS moves for Summary Judgment on all of Plaintiff‘s claims.
Plaintiff began his employ with UBS in August 1988 as a Lab Technician. In the fall of 2008, Plaintiff was promoted to a temporary lab trainer to train new employees as lab technicians at its Billings location. On November 18, 2008, Plaintiff signed UBS’ job description form for a Lab Training Coordinator. In light of this new position, Plaintiff received a raise as well as bonuses. In December 2009, Plaintiff received a letter from Executive Director of UBS Rocky Mountain Region William Henry informing him that his position had been eliminated due to a reduction in force (RIF). On December 31, 2009, Plaintiff‘s position was terminated. At the time Plaintiff‘s position was terminated, he was in his mid-fifties and had been with UBS for over twenty years.
Until 2009, Plaintiff had continually received better than average job evaluations and salary increases. On May 21, 2009, Plaintiff received a Letter of Formal Reprimand and Documentation of Written Warning from his supervisor Marni Wild. That letter informed Plaintiff of three instances where he failed to follow UBS Standard Operating Procedures in spite of a verbal warning.1 UBS considered these instances to be a “major violation.”
Beginning in 2009, UBS designated its Billings, Montana location as a “Center Needing Improvement.”2 On September 18, 2009, Plaintiff was informed by UBS’ Human Resources Director, Corinna Damm about UBS’ corporate decision regarding reduction in force. The decision regarding which employee would be affected by the reduction in workforce was made by UBS’ Executive Director William Henry.3 In determining which positions to eliminate, Henry states that he did not utilize any employee‘s personal information, such as age, or disability.4 Further, no lower managers or supervisors made RIF decisions.5
Based on these criteria, one of the positions that Henry identified for reduction was Plaintiff‘s position as Lab Training Coordinator. Henry avers that this position was the only position of its kind in the entire UBS Rocky Mountain Region and he determined that it should not be a full time position.7 Further, Henry felt that the workload and duties of a Lab Training Coordinator could be effectively performed by other staff and managers and that no additional positions would be needed to cover the workload.8
STANDARD OF REVIEW
Summary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.
A party moving for summary judgment who does not have the burden of persuasion at trial, must produce evidence which either: (1) negates an essential element of the non-moving party‘s claim, or (2) shows that the non-moving party does not have enough evidence of an essential element to ultimately carry his burden at trial. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1000, 1102 (9th Cir. 2000). Once the moving party has satisfied its burden, the non-moving party must identify evidence establishing that a dispute as to a particular material fact is genuine. Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opponent “must do more than simply show that there is some metaphysical doubt as to the material facts.” Id. And the opponent “may not rest upon the mere allegations or denials of his pleading, but must set forth facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986).
An issue of fact is “genuine” if there is sufficient evidence for a reasonable factfinder to find for the non-moving party. Anderson, 477 U.S. at 248-49. A fact is “material” if it may affect the outcome of the case. Id. at 248. “In considering a motion for summary judgment the court may not weigh the evidence or make
DISCUSSION
UBS seeks summary judgment on Plaintiff‘s human rights and wrongful discharge claims.
Human Rights Claims
Plaintiff alleges that UBS discriminated against him because he was over fifty and had a disability. Under the Montana Human Rights Act, as codified in part at
In considering employment discrimination cases, courts are to first evaluate whether a plaintiff‘s complaint alleges a prima facie case of discrimination. If the plaintiff alleges a prima facie case, the employer must present a legitimate nondiscriminatory reason for its alleged action. Heiat v. Eastern Montana College, 912 P.2d 787, 793 (1996). Once the employer presents a legitimate non-
Plaintiff‘s allegation is that UBS committed employment discrimination when it replaced him with a younger person and/or due to his mental health disability issues. In order to establish an employment discrimination claim based on age or a disability, a plaintiff must establish the following prima facie elements: (1) the claimant belonged to a protected class, (2) the claimant was otherwise qualified for continued employment, and (3) the claimant was denied employment under circumstances that raise a reasonable inference that he was treated differently because of this membership in the protected class. Vortex Fishing Systems, Inc. v. Foss, 38 P.3d 836, 839 (2001).
It is undisputed by the parties that the Plaintiff meets the first two prongs of a discrimination claim. Rather, both parties focus their arguments on the remaining prong. Plaintiff contends that, at the time he was terminated, other laboratory technicians who were younger than him, had no disability issues, and had less seniority were unaffected by the RIF and retained by UBS.
In response, UBS asks this Court to focus on the fact that at the time of Plaintiff‘s termination, his job classification was not that of a Laboratory
UBS changed Plaintiff‘s position, as of early 2009, to Lab Training Coordinator. This placed Plaintiff in a completely different job classification. As such, under UBS’ RIF policy, UBS could eliminate employees from one classification without considering the seniority of employees in another classification.11
It is undisputed that the Lab Training Coordinator position is the only one of its kind within UBS’ Rocky Mountain region. Further, it is undisputed that when the position was created, it was not advertised to the public or to other UBS employees to apply. In fact, UBS did not even require Plaintiff to apply for the job. Beginning in August 2008 and through February of 2009, in addition to his lab technician duties, Plaintiff began training new hires.12 Regardless of the change in job classification, the majority of Plaintiff‘s job duties encompassed lab technician responsibilities. In addition, when he was offered and accepted the Lab
Beginning in 2009, UBS determined that the Billings location was a “Center Needing Improvement.” Based on this determination, UBS instituted the RIF that resulted in Plaintiff‘s termination at the end of 2009. Moreover, in August 2009, while Plaintiff was on medical leave, UBS hired another lab technician with less experience and at less pay than Plaintiff. The training of this new hire was completed by two other lab technicians that Plaintiff had previously trained.15 Shortly after Plaintiff had been terminated, UBS advertised for a lab technician position at its Billings location.
These undisputed facts, when taken individually, appear innocuous. However, when taken together, they create genuine issues of material fact that raise a reasonable inference that Plaintiff was treated differently because of his age and disability.
In support of a legitimate business reason, UBS proffers the RIF decision made by UBS Executive Director William Henry. UBS notes that at the beginning of 2009, UBS’ Billings location had been designated as a “Center Needing Improvement.” As part of an effort to cure this issue, Henry implemented the RIF. In his RIF review, Plaintiff‘s position was one of the positions that was identified. In deciding to terminate Plaintiff‘s position, Henry avers that his analysis concluded that (1) Plaintiff‘s position was the only one of its kind in the Rocky Mountain Region; (2) Plaintiff‘s position could be effectively performed by existing staff and managers; and (3) the UBS Billings location was fully staffed
In support of his claim of pretext, Plaintiff allege that in the early fall of 2009, he met with his supervisor Corrinna Damm. She informed him that his position would be written off the books and that he could go back to his old lab technician position.18 He was even told what his reduced pay would be. Id. In addition, Speer has alleged that in the fall of 2009, while he was performing his regular lab duties because there were no new hires needing to be trained, he would discover that there were in-service meetings relevant to his work that he was not informed of. Id. Further, Plaintiff makes reference to other employees who were of a similar age class as himself and were terminated after taking medical leave.19 Moreover, as noted above, UBS advertised for a new lab technician within months after terminating Plaintiff.
Wrongful Discharge Claim
In addition, Plaintiff has also brought a claim under the Montana Wrongful Discharge Act (WDEA),
UBS has moved for summary judgment on two grounds: (1) it had a legitimate business reason for discharging Plaintiff; and (2) the Montana Human Rights Act is the exclusive vehicle by which a Plaintiff may bring an employment discrimination claim.
This Court concludes that Defendant UBS’ exclusive remedy argument is without merit. In Tonack v. Montana Bank of Billings, 854 P.2d 326, 331 (1993), the plaintiff brought an employment discrimination claim as well as a wrongful
Plaintiff alleges that he was not a probationary employee and had been with UBS for over twenty years with an excellent work history.20 He further alleges that in May 2009, in order to place a bad mark on his record, he was unfairly disciplined and his resulting termination was without good cause.21 Plaintiff further alleges that in terminating him, UBS violated its own RIF policy.22
Because there has been no affirmative determination on Plaintiff‘s employment discrimination and the allegations that Plaintiff relies on in support of his wrongful discharge claim are distinct from his employment discrimination
In the alternative, UBS contends that Plaintiff has failed to raise a genuine issue of fact that UBS’ reason for terminating him was legitimate and non-discriminatory.
Wrongful discharge can be proven in several ways, one of which is by demonstrating that the employer lacked good cause for the discharge. “Good cause for discharge” is defined as reasonable job-related grounds for dismissal based on (1) a failure to satisfactorily perform job duties; (2) disruption of the employer‘s operation; or (3) other legitimate business reason.
In order for an employee to create an issue of fact on the issue of good cause in regards to a pretext, the employee must “prove that the given reason for the discharge ... is a pretext and not the honest reason for the discharge.” Arnold v. Yellowstone Mountain Club, LLC, 100 P.3d 137, 142 (Mont. 2004).
As reflected above, in the over 20 years that Plaintiff had been employed, he had only been written up once and that was in May 2009. Further, UBS hired an additional lab technician while Plaintiff was on medical leave in August 2009, instead of returning Plaintiff to his original lab technician position. Prior to terminating Plaintiff, UBS designated him as a Lab Training Coordinator, but did not have any employees for Plaintiff to train. This Lab Training Coordinator position was not advertised as required by UBS company policy. Shortly after Plaintiff had just been terminated, UBS advertised for a new lab technician, the same position that Plaintiff had previously occupied.23
UBS again argues that Plaintiff‘s classification as a Lab Training Coordinator is distinct from that of a lab technician regardless of whether those job duties overlapped. However, it appears that when not performing his training duties, Plaintiff was performing lab technician duties. Because UBS placed him in the Lab Training Coordinator classification without opening the position to other applicants, there are genuine issues of material fact as to whether Plaintiff‘s classification as a Lab Training Coordinator was pretextual in order to later terminate him. For purposes of Plaintiff‘s wrongful discharge claim, this Court
CONCLUSION
For the foregoing reasons, IT IS ORDERED that Defendant UBS’ Motion for Summary Judgment (Doc. # 13) is DENIED. The Clerk of Court shall notify the Parties of the making of this Order.
DATED this 21st day of December, 2012.
/s/ Richard F. Cebull
RICHARD F. CEBULL
U. S. DISTRICT COURT JUDGE