Where the record showed the man’s position was eliminated because of a need to downsize and because he scored the lowest of the three sales managers on a decision matrix, the employer prevailed on his age discrimination and retaliation claims.
William Farley sued CMFG Life Insurance Company, or CUNA, for wrongful termination, retaliation and failure to hire under the Age Discrimination in Employment, or ADEA. CUNA moved for summary judgment on all counts.
Motion to strike
Farley moved to strike CUNA’s motion for summary judgment and all declarations claiming that CUNA submitted amended initial disclosures two weeks before the discovery cutoff which included newly identified potential witnesses with information relevant to Farley’s failure to hire claim.
The Federal Rules do not provide for striking a motion for summary judgment. Further, CUNA produced documents during discovery sufficient to identify the new names on the amended initial disclosures and the new emails came from an account associated with Farley. Certainly, Farley had access to this information well in advance of discovery deadlines. Additionally, Farley took no action before discovery ended to cure any perceived prejudice. Farley’s motion to strike is denied.
In a force reduction case, a plaintiff must prove that (1) he was 40 years of age or older at the time of the termination; (2) he was qualified for the job and performing in accordance with his employer’s legitimate expectations; (3) his employer nonetheless discharged him; and (4) his “job duties were absorbed by employees not in the protected class or … [the employer] did not treat [the plaintiff’s] protected characteristics neutrally when deciding to terminate [him].”
Here, Farley has not shown that CUNA disbursed his job duties to other employees not in the protected class, and must establish a material issue of fact exists of whether CUNA treated Farley’s age neutrally in the decision to terminate him. Farley has provided no evidence to support his assertion that age constituted the but-for reason for his termination or that his age was the reason for the elimination of his position.
Even if Farley had established a prima facie case of discrimination, Farley does not cite to any evidence in the record to challenge CUNA’s stated reason for terminating his employment: that the select segment needed to downsize and he scored the lowest of the three sales managers on the decision matrix. The suggestion that Thomas Munley (VP) held personal animus against Farley is not sufficient to demonstrate that CUNA’s real reason for termination was Farley’s age even if Farley has shown that the company’s basis was “false.”
To establish a prima facie case of retaliation, Farley must demonstrate that (1) he engaged in protected activity; (2) his employer took adverse action against him and (3) a causal connection existed between the protected activity and the adverse action. Assuming Farley’s two emails constituted protected activity under the ADEA, the evidence does not raise a genuine dispute over whether Farley’s protected activities caused his termination.
Failure to hire
Farley alleged in Count Three that both during and after termination of his employment, CUNA failed to hire him for other positions because of his age. However, Farley does not address this claim in his brief in opposition to summary judgment. Farley’s abandonment of his failure to hire claim constitutes a concession that summary judgment is appropriate on the claim.
Plaintiff’s motion to strike denied. Defendant’s motion for summary judgment granted.
Farley v. CMFG Life Insurance Company, Case No. 6:22-cv-24, May 24, 2023. WDVA at Lynchburg (Ballou). VLW 023-3-276. 18 pp.