William L. MONTGOMERY, Appellant, v. JOHN DEERE & COMPANY, Appellee.
No. 98-1628.
United States Court of Appeals, Eighth Circuit.
Submitted Nov. 17, 1998. Decided Feb. 26, 1999.
169 F.3d 556
The two cases relied on by the majority are not to the contrary. These cases, won by the FCC, merely hold that the district court is the exclusive forum for a forfeiture. The cases say nothing as to where the regulations of the FCC may be challenged. See Dougan v. FCC, 21 F.3d 1488 (9th Cir.1994); Pleasant Broadcasting Co. v. FCC, 564 F.2d 496 (D.C.Cir.1977). As the court notes, its interpretation of the Ninth Circuit case of Dougan is directly contrary to Moser v. FCC, 46 F.3d 970, 973 (9th Cir.), cert. denied, 515 U.S. 1161, 115 S.Ct. 2615, 132 L.Ed.2d 857 (1995).
The statutory scheme makes sense (1) to ensure review based on an administrative record made before the agency charged with implementation of the statute; (2) to ensure uniformity of decisionmaking because of uniform factfinding made by the agency; (3) to bring to bear the agency‘s expertise in engineering and other technical questions. If Fried had no way of obtaining judicial review of the regulations his case might be different. See Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 212-13, 114 S.Ct. 771, 127 L.Ed.2d 29 (1994). But he could have obtained review by apрlying for a license and asking for a waiver of the regulations; rejection of his request would be permitted appeal to the circuit. Rather than follow the procedures established by law, he has attempted an end run.
I would affirm the district court.
Gary J. Shea, Cedar Rapids, IA, argued (Michael E. Sheehy, on the brief), for Appellant.
Thomas W. Foley, Des Moines, IA, argued (Frank Harty, on the brief), for Appellee.
Before BEAM and LAY, Circuit Judges, and SIPPEL,1 District Judge.
BEAM, Circuit Judge.
William L. Montgomery appeals from the magistrate judgе‘s grant of summary judgment2 in favor of his former employer,
I. BACKGROUND
Montgomery, who is part Cherokee Indian, began to work for Deere in June of 1966. During Montgomery‘s employment with Deere, he held various titles and performed numerous job functions. In 1973, he was transferred to Deere‘s foundry in Waterloo, Iowa. In approximately 1980, Montgomery was diagnosed as suffering from narcolepsy.4 In 1989, Montgomery was assigned to work in the foundry‘s safety department under the direct supervision of Ronald Parr. In the safety department, Montgomery was responsible for administering the company‘s Right to Know program, its Confined Spaces program, and other tasks associated with industrial hygiene and safety.
In 1992, Montgomery was reassigned to the environmental compliance area under the supervision of Randy McDougall. Prior to that time, Montgomery had never had any involvement in environmental compliance activities or projects. His chief duties in his new position were preparation of monthly discharge monitoring reports for submission to the Iоwa Department of Natural Resources (IDNR reports) and the City of Wa
In essence, Deere claims that Montgomery was discharged because of his persistent poor work performance, beginning at least in 1993 until his eventual discharge in August of 1994. Montgomery contends that these allegations are false and that instead, his discharge was mоtivated by discrimination.
II. DISCUSSION
We review the grant of summary judgment de novo, applying the same standards as the district court. See Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1331 (8th Cir.1996). Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. See
A. Age Discrimination
It is unlawful under the ADEA for an employer to discharge an employee because of his or her age. See
We are skeptical that Montgomery has, in fact, established a prima facie case of age discrimination in terms of showing that he was adequately performing the duties of his job. Even assuming that Montgomery did establish a prima facie case, we find that he did not present evidence sufficient to support a finding that Deere‘s declared reason for firing him was a pretext for age discrimination.
Mоntgomery argues that Deere embarked upon a plan or scheme to terminate him because of his age by setting him up to fail. In support of this theory, he points to the following facts: (1) he was transferred from a job in the safety division for which he was highly qualified to a job in the environmental compliance area, for which he had little experience; (2) he was repeatedly asked when he was going to retire or if he would retirе if a special early retirement program was offered to him; (3) after he refused an offer of early retirement in June of 1993, his job assignments and responsibilities dramatically increased to the point of inevitable failure; (4) during his twenty-eight year employment with Deere, he had never received an unsatisfactory review; and (5) he was continually
First, the record does not support Montgomery‘s allegation that Deere transferred him to the environmental compliance area in order to make him fail. The record shows that Montgomery was transferred to the environmental compliance area because that area was short-staffed and management felt that hе was qualified for the new post. Montgomery was trained regarding his new work assignments and was told to seek assistance if he was having any difficulties or confusion regarding his tasks. Deere gave him over a year and a half to learn the duties of his new position before discharging him for unsatisfactory performance in August of 1994.
Second, the fact that Montgomery was regularly offered early retirement does not by itself violate the ADEA. We have stated before that an employer may make reasonable inquiries into the retirement plans of its employees and that a plaintiff should not be able to rely on those inquiries to prove intentional discrimination. See Cox v. Dubuque Bank & Trust Co., 163 F.3d 492, 497 (8th Cir.1998). However, retirement inquiries can sometimes be so unnecessary and excessive as to constitute evidence of discriminatory harassment. See id. Montgomery has not presented evidence that such was thе case here.
Third, the record does not support Montgomery‘s claim that Deere dramatically increased his job duties following his refusal to accept an early retirement offer in June 1993. McDougall did send Montgomery a letter in August 1993, informing him that he must temporarily assume some additional tasks. However, the record reveals that this increase stemmed from the reassignment of duties that belonged to a departing employ
Fourth, Montgomery claims that throughout his employment with Deere he never received an unsatisfactory review. However, the record shows that a May 1993 evaluation of Montgomery‘s work ranked him between low and medium in the categories of “responsiveness to job demands,” “personal efficiency,” and “personal communication skills.” The report further noted that Montgomery was not completing tasks on time; frequently talked to others about non-work related activities; was easily distracted; did not make up missed work time; and was wordy and disjointed in his verbal and written communications. Furthermore, a review of Montgomery‘s annual evaluations from 1991 to 1993 reveals a progressive decline in his work performance.
Finally, Montgomery asks us to draw an inference of age discrimination from the fact that he was frequently referred to as the “old fart” by McDougall and others. We held in Ryther v. KARE 11, 108 F.3d 832, 842-44 (8th Cir.1997), cert. denied, 521 U.S. 1119, 117 S.Ct. 2510, 138 L.Ed.2d 1013 (1997), a pretext case, that co-employees’ statements that the plaintiff was an “old fart,” “old man,” and “too оld to be on the air,” along with other evidence, raised a reasonable inference of age discrimination. However, as noted, Montgomery‘s prima facie case is, at best, weak, and he has produced no other evidence of pretext. Cf. id. at 844 (stating that “plaintiff produced overwhelming evidence as to the elements of a prima facie case, and strong evidence of pretext“). Thus, we find that in this instance,
In sum, we think the record is devoid of any evidence that Montgomery‘s discharge was motivated by age-based animus.
B. ERISA
Montgomery also claims that Deere discharged him in violation of the Employee Retirement Income Security Act (ERISA) because he refused to elect early retirement. His evidence boils down to the following fаcts: (1) in June of 1993, he declined Deere‘s offer of early retirement; (2) after that, Deere substantially increased his duties in an effort to set him up to fail; and (3) approximately a year later, in August 1994, Deere terminated Montgomery‘s employment, causing his retirement benefits to be substantially reduced from what they would have been if he had been allowed to continue his employment until age sixty-five.
The same burden-shifting framework that applied to Montgomery‘s ADEA claim also applies to his ERISA claim. See Rath v. Selection Research, Inc., 978 F.2d 1087, 1089 (8th Cir.1992). If Montgomery makes out a prima facie case of retaliation, Deere must articulate a legitimate, nondiscriminatory reason for its actions. See id. If Deere meets that burden, Montgomery must prove that the proffered reason is pretextual. See id. at 1089-90. To make out a prima facie case of ERISA retaliation, Montgomery must prove that: (1) he partiсipated in a statutorily protected activity; (2) that an adverse employment action was taken against him; and (3) that a causal connection existed between the two. See id. at 1090.
Montgomery has not presented evidence sufficient to establish a prima facie case. His evidence of causal connection is that following his refusal of early retirement, Deere increased his duties to the point of inevitablе failure. As we noted earlier in discussing the ADEA claim, the record does not support such a finding. Furthermore, we note that Montgomery‘s discharge in August 1994 occurred over a year after his refusal to accept early retirement in June 1993. Cf. id. (stating that it was doubtful that plaintiff had established a prima facie case when only evidence of causal connection was that his termination came about six months after employer reprimаnded him for questioning proposed changes in employee stock ownership plans). Even assuming that Montgomery established a prima facie case, we find that he has failed to show that Deere‘s justification for his termination was pretextual. Montgomery argues his evidence of pretext is bolstered by the same facts alleged in his other discrimination claims. Because we find no merit in any of his other claims, we reject this argument.
C. Wrongful Discharge
Finаlly, Montgomery contends that Deere wrongfully discharged him in violation of Iowa public policy in retaliation for whistle-blowing. Specifically, Montgomery claims that Deere discharged him because of his knowledge of certain allegedly improper, possibly illegal, environmental practices taking place at the foundry.
This claim is without merit. Other than his conclusory allegation, Montgomery provides no other facts showing that Dеere‘s actions were in retaliation for any whistle-blowing activity. Indeed, Montgomery‘s only evidence in support of his claim is that he has intimate knowledge of certain improper activities at the foundry. He never asserts that he reported his concerns to his supervisors or that he ever went outside or threatened to go outside the company with this information.
D. Other Claims
We have considered Montgomery‘s other arguments and have carefully reviewed the record. Accordingly, we affirm the district court‘s grant of summary judgment to Deere on the ADA and Title VII claims and the corresponding state law claims.
III. CONCLUSION
We thus conclude that the district court correctly granted Deere summary judgment on all of Montgomery‘s claims, and we affirm.
I concur in the majority opinion but for different reasons.
Preliminarily, I think it important to point out my basic disagreement with the application of the McDonnell Douglas burden-shifting analysis to the ADA claim. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Both parties in this case used the McDonnell Douglas analysis to argue for and against the plaintiff‘s discrimination clаim under the ADA. This was not the proper analysis, however, because the claim the plaintiff asserts is not a disparate treatment claim.6
The ADA prohibits discrimination “against a qualified individual with a disability because of the disability ...”
(5)(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrаte that the accommodation would impose an undue hardship on the operation of the business of [the employer]; or
(B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of [the employer] to make reasonable accommodation to the physical or mental impairments of the employee or applicant.
Under the appropriate reasonable accommodation analysis, the plaintiff‘s ADA claim must fail. The plaintiff does not demonstrate that his work inadequacies (which he denies in setting forth the prima facie case for age discrimination) are related to his narcolepsy оr that the defendant failed to reasonably accommodate him. In fact, the record shows that John Deere did accommodate the plaintiff. For example, they allowed the plaintiff to take naps during the day and made other adjustments in his work schedule. The plaintiff even testified that John Deere willingly provided him with any assis
With respect to his age discriminatiоn claim, I feel the plaintiff created a factual dispute as to his prima facie case. The plaintiff is, after all, entitled to all favorable inferences as the nonmoving party. The plaintiff, however, did not prove pretext. As this court points out in Ryther v. KARE 11, 108 F.3d 832 (8th Cir.1997), cert. denied, 521 U.S. 1119, 117 S.Ct. 2510, 138 L.Ed.2d 1013 (1997), a plaintiff must show pretext by evidence, viewed in conjunction with the elements of the prima facie case, which permits an inference of discrimination. I agree with the majority thаt there was no evidence to permit such an inference in this case and so his age discrimination claim must fail.
Evidence of pretext may not include a reason for termination which is inconsistent with such inference. See Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1337 (8th Cir.1996) (affirming summary judgment in an age discrimination case where there was evidence that the plaintiff was fired for confronting his employers about SEC violations). Although a plaintiff may plead alternative and even incоnsistent claims, he may not assert a reason for his discharge which may well prove pretext, but is nonetheless inconsistent with the inference of discrimination. Here, in an attempt to verify his retaliatory discharge claim, the plaintiff asserts that his knowledge of the company‘s misconduct made him a potential “whistle blower” and, therefore, the company‘s reason for discharge was pretextual. If we accept the plаintiff‘s assertions as true, his evidence of pretext defeats his claim of age discrimination because it negates intent, showing that the plaintiff thought he was fired for a reason other than age. Furthermore, the plaintiff‘s assertion that he had knowledge of misconduct does not salvage his retaliation claim under the facts of this case. There is no proof to establish a reasonable inference that the employer knew that the plaintiff had evidence of misconduct and discharged him because he might reveal this evidence to the authorities.
I can fully understand plaintiff‘s frustration. He was a loyal employee who performed his job for over twenty-eight years. Why was he suddenly discharged as he neared retirement age? Unsure of the reason, his lawyer obviously “shot-gunned” his claims—not knowing which one would work. In other words, the plaintiff “protests too much.” The plaintiff‘s multiрlicity of claims against the defendant backfired, not only weakening but defeating some of his legitimate claims. Although the timing of the discharge seems questionable, there is not enough evidence to support any of the plaintiff‘s claims. The result here leaves the plaintiff feeling an injustice has been done and, although I lack a legal basis for saying so, I‘am not so sure that I disagree.