Clark v. Native American Air Ambulance, Inc., et al., No. 3:2006cv02920 - Document 45 (D. Ariz. 2009)
Court Description: ORDER granting 33 Native Air's Motion for Summary Judgment in favor of Native Air and against Clark. Clerk of Court shall close this case accordingly. Signed by Judge Paul G Rosenblatt on 3/24/09.(DMT, )
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Clark v. Native American Air Ambulance, Inc., et al. 1 Doc. 45 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 Larry Clark, 11 Plaintiff, 12 vs. 13 Native American Air Ambulance Inc., Defendants. 14 ) ) ) ) ) ) ) ) ) ) No. 06-CV-2920-PHX-PGR ORDER 15 16 Pending before the Court is the Motion for Summary Judgment (Doc. 33) filed by 17 Defendants1 Native American Air Ambulance Inc., Native American Air Ambulance of 18 Delaware, LLC, d.b.a. Native American Air Ambulance, and Omniflight Helicopters, Inc. 19 (collectively “Defendants” or “Native Air”). The Defendants move this Court for summary 20 judgment in their favor on all of Plaintiff’s claims on the grounds that Plaintiff Larry Clark 21 (hereinafter “Plaintiff” or “Clark”) has failed to establish a prima facie case of age 22 discrimination under the Age Discrimination in Employment Act (hereinafter referred to as 23 the “ADEA”). 24 25 26 Defendants’ counsel is advised to review the Local Rules pertaining to page limitations and font size (which includes footnotes). Any further noncompliance before this Court may result in the striking of documents. 1 27 28 Dockets.Justia.com 1 I. BACKGROUND 2 Native Air provides 24-hour life support air ambulance services and transport. It hired 3 Plaintiff at age 58 as a Helicopter Pilot on October 14, 2003. Plaintiff was also 58 years old 4 when his employment with Native Air was terminated less than a year later on June 26, 2004. 5 Plaintiff was assigned to Native Air’s base in Show Low, Arizona. During Plaintiff’s 6 relevant period of employment, Native Air investigated him for at least three safety-related 7 policy violations, as a result of information from other employees and/or documents and logs 8 maintained in the normal course of business: (1) flying into a snow-shower on March 2, 9 2004; (2) “overflying” a scheduled maintenance inspection on May 16, 2004 (i.e., flying 10 longer than allowed between mandatory safety inspections); and (3) “hard landing” a 11 helicopter on June 26, 2004 and failing to write an occurrence report regarding the landing 12 or documenting the incident in the log book. Two of the incidents were serious to the extent 13 that Native Air believed it was required to report the incidents to the Federal Aviation 14 Administration (“FAA”). 15 Each Native Air aircraft is equipped with a lifeport system, and each aircraft flies with 16 a crew consisting of a pilot, a registered nurse, and a certified emergency paramedic to 17 provide optimum patient care. As an air carrier, Native Air is heavily regulated by federal 18 laws and regulations, and it maintains a strict commitment to safety as its foremost priority. 19 Clark alleges that Defendants terminated his employment as a direct result of his age. 20 He contends that he was routinely the subject of ageist remarks from members of the flight 21 crews.2 One of the medical flight crew members, Dave Goedecke, advised him that, “All 22 I’ve ever had was trouble with all of the old pilots this company has ever had.” “We’ve run 23 them off before, we’ll run you off, too.” On two separate occasions, the Plaintiff sent his 24 supervisor and Native Air chief pilot, Fritz Holly, notices in compliance with the Native Air 25 Anti-Harassment Policy advising of these comments. Mr. Holly did not forward them to 26 27 28 2 He did not allege that his supervisors made such remarks. - 2 - 1 Human Resources for investigation. He also sent an e-mail to the base advising them not to 2 “make waves”. According to her testimony, former Human Resources Director for Native 3 Air, Melissa Beckstead, characterized Mr. Holly’s instruction not to “make waves” as an 4 inappropriate response to the comments. 5 Native Air contends that as a result of its investigation of Plaintiff for three separate 6 safety-related policy violations in a three-month period, culminating in the July 4, 2004 7 discovery of the hard-landing incident on June 26, 2004, Native Air terminated Plaintiff’s 8 employment effective July 26, 2004. 9 According to Clark, the three purported incidents referenced in the Motion for 10 Summary Judgment were no more than pretext for discrimination on the part of employees 11 at Native Air, insufficient to justify his termination. In response to the first incident, flying 12 into a snow storm (the complaint initiated by flight crew member Goedecke identified 13 above), Plaintiff alleges that Fritz Holly eventually advised all the employees that the 14 Plaintiff acted properly. However, this is supported only by Plaintiff’s own self-serving 15 deposition testimony, it is not supported by testimony of Holly-despite being deposed, nor 16 has Plaintiff cited any other supporting evidence. In the second incident, “overflying” a 17 scheduled maintenance inspection, FAA provisions provide that any appropriately trained 18 pilot or mechanic may conduct these mandatory safety inspections. The Plaintiff is a 19 licensed mechanic and claims to have performed these inspections. The third incident, the 20 alleged “hard-landing,” Clark contends was never established by the employer. Plaintiff 21 hired his own expert witness to prepare a report which he submitted to Native Air 22 documenting that the damage found on the helicopter was not caused by a hard-landing. 23 Another pilot, 39 years of age, who was hired on the exact same day as the Plaintiff, 24 demolished his helicopter in a serious accident at Falcon Field on his first day of 25 employment. Plaintiff claims that the pilot, Simon Ayling, was not disciplined for this 26 occurrence, but he has no firsthand knowledge thereof. Native Air promoted Ayling to Base 27 Manager prior to the time he was terminated for a second violation. 28 - 3 - 1 Plaintiff contends he was replaced by a younger employee. Native Air, however, 2 explains that they were filling a pre-existing opening when they hired his replacement. The 3 fact remains that the pre-existing vacancy existed for five (5) months and was not filled until 4 the Plaintiff was terminated. 5 II. LEGAL STANDARD 6 The standard for summary judgment is set forth in Rule 56(c) of the Federal Rules of 7 Civil Procedure. Summary judgment is properly granted when, after viewing the evidence 8 in the light most favorable to the non-moving party, no genuine issues of material fact remain 9 for trial. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); 10 Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987). 11 The moving party bears the burden of demonstrating that it is entitled to summary 12 judgment. Mur-ray Mgmt. Corp. v. Founders Title Co., 819 P.2d 1003, 1005 (Ariz. Ct. App. 13 If the moving party makes a prima facie case showing that no genuine issue of material fact 14 exists, the burden shifts to the opposing party to produce sufficient competent evidence to 15 show that a triable issue of fact does remain. Ancell v. United Station Assocs., Inc., 803 P.2d 16 450, 452 (Ariz. Ct. App. 1990). The Court must regard as true the non-moving party's 17 evidence, if it is supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 18 324. However, the non-moving party may not merely rest on its pleadings, it must produce 19 some significant probative evidence tending to contradict the moving party's allegations, 20 thereby creating a material question of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 21 256-57(1986)(holding that the plaintiff must present affirmative evidence in order to defeat 22 a properly supported motion for summary judgment); First Nat'l Bank of Ariz. v. Cities Serv. 23 Co., 391 U.S. 253, 289 (1968). 24 The ADEA makes it unlawful “to discharge any individual . . . because of such 25 individual’s age.” 29 U.S.C. § 623(a)(1). It is well established in the Ninth Circuit that 26 ADEA claims that are based on circumstantial evidence of discrimination are evaluated using 27 the three-stage burden-shifting framework articulated by the Supreme Court in McDonnell 28 - 4 - 1 Douglas Corp. v. Green, 411 U.S. 792 (1973); Enlow v. Salem-Keizer Yellow Cab Co., 389 2 F.3d 802, 812 (9th Cir. 2004); Diaz v. Eagle Produce Ltd., 521 F.3d 1201 (9th Cir. 2008). 3 Pursuant to this framework, the employee must first establish a prima facie case of age 4 discrimination, thereby creating a presumption of discrimination. Coleman v. Quaker Oats 5 Co., 232 F.3d 1271, 1281 (9th Cir.2000). If the employee has justified a presumption of 6 discrimination, the burden shifts to the employer to articulate a legitimate, 7 non-discriminatory reason for its adverse employment action. Id. If the employer satisfies 8 its burden, the burden shifts back to the employee to prove that the reason proffered by the 9 employer constitutes pretext for unlawful discrimination. Id. A plaintiff may succeed in this 10 “either directly by persuading the court that a discriminatory reason more likely motivated 11 the employer or indirectly by showing that the employer's proffered explanation is unworthy 12 of credence.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (U.S. 13 1981)(citing McDonnell Douglas, 411 U.S. at 804-805). “As a general matter, the plaintiff 14 in an employment discrimination action need produce very little evidence in order to 15 overcome an employer's motion for summary judgment.” Chuang v. Univ. of Cal. Davis, Bd. 16 of Trs., 225 F.3d 1115, 1124 (9th Cir.2000). However, critical to the analysis is the rule that 17 “‘the mere existence of a prima facie case, based on the minimum evidence necessary to raise 18 a McDonnell Douglas presumption, does not preclude summary judgment.’” Warren v. City 19 of Carlsbad, 58 F.3d 439, 443 (9th Cir. 1995), cert. denied, 516 U.S. 1171 (1996) (quoting 20 Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994) ). Summary judgment is still 21 appropriate if the employer can rebut the prima facie case with a non-discriminatory reason. 22 Lucero v. Hart, 915 F.2d 1367, 1371 (9th Cir. 1990) (citing Reynolds v. Brock, 815 F.2d 571, 23 575 (9th Cir. 1987)). The party opposing summary judgment "may not rest upon the mere 24 allegations or denials of [the party's] pleadings, but . . . must set forth specific facts showing 25 that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); see also Matsushita, 475 U.S. at 26 585-88; Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). 27 28 Conclusory allegations already contained in the pleadings, which are unsupported by - 5 - 1 factual evidence, are insufficient to defeat a motion for summary judgment. Lucas 2 Automotive Engineering, Inc. v. Bridgestone/Firestone, Inc., 140 F.3d 1228, 1237 (9th Cir. 3 1998). Similarly, an affidavit which merely recites conclusory allegations will not defeat 4 summary judgment. See Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89 (1990); 5 see also Warren 58 F.3d at 443 (while plaintiff’s burden at the summary judgment stage is 6 not overly burdensome, plaintiff cannot merely rely on generalizations). 7 In order to survive summary judgment, a plaintiff must produce some evidence to 8 show that defendant intentionally discriminated against him on the bases alleged. Plaintiff 9 may do so by producing either direct evidence or circumstantial evidence of discrimination 10 under the now-familiar formula articulated in McDonnell Douglas and its progeny. 11 Furthermore, the evidence must be sufficient to show that plaintiff’s allegations of 12 discrimination are more likely than not to be true. St. Mary’s Honor Center v. Hicks, 509 13 U.S. 502, 506 (1993). 14 To establish a prima facie case of age discrimination, a plaintiff must establish that 15 he was (1) at least 40 years old; (2) performing his job satisfactorily; (3) discharged; and (4) 16 either replaced by a substantially younger employee with equal or inferior qualifications or 17 discharged under circumstances “otherwise giving rise to an inference of age discrimination.” 18 Coleman, 232 F.3d at 1281. An inference of discrimination can be established by “showing 19 that Defendants had a continuing need for the employees’ skills and services in that their 20 various duties were still being performed...or by showing that others not in their protected 21 class were treated more favorably.” Id. (quotation marks and citation omitted). 22 It is undisputed that Plaintiff is at least 40 years old and that he was discharged by 23 Defendants, thus he has satisfied two of the four elements of the prima facie case of 24 discrimination under the ADEA. Whether Plaintiff has satisfied the remaining two elements, 25 however, remains to be determined. 26 Defendants argue that Plaintiff has failed to establish a prima facie case of age 27 discrimination under the ADEA on the grounds that (1) he cannot show that he was 28 - 6 - 1 performing his job satisfactorily; and (2) he cannot show that he was replaced by a 2 substantially-younger employee with equal or inferior qualifications or that he was 3 discharged under circumstances otherwise giving rise to an inference of age discrimination; 4 and (3) even assuming that Plaintiff can establish a prima facie case of age discrimination, 5 Defendants had legitimate, nondiscriminatory reasons for Plaintiff's termination that are not 6 a pretext for discrimination. Furthermore, Defendants contend that Plaintiff did not make 7 reasonable efforts to obtain subsequent employment following his termination by 8 Defendants. 9 A. Job Performance 10 Defendants contend that during Plaintiff’s nine-month period of employment with 11 Native Air, he was the subject of three separate and distinct safety-related policy violation 12 investigations thereby establishing that he was unable to perform his job satisfactorily and 13 which therefore resulted in his termination. 14 First Violation 15 The first investigation occurred in March 2004 after a fellow crew member, Dave 16 Goedecke (hereinafter “Goedecke”) submitted an occurrence report to Native Air regarding 17 an incident on March 2, 2004, in which he reported that Plaintiff flew an aircraft through 18 snow and rain showers, contrary to the safety policies of Native Air. Goedecke stated in his 19 report that he advised Plaintiff at least three times of Goedecke’s concern regarding reduced 20 visibility. The following day Goedecke reported his safety concerns about the flight to the 21 Base Manager. Plaintiff does not dispute that Goedecke raised safety concerns regarding 22 Plaintiff’s flight into inclement weather conditions. Both Plaintiff and Native Air testified 23 that safety is paramount when flying. 24 incident. The fact that Plaintiff does not believe that Goedecke had reason to be concerned 25 for his safety is immaterial. It is only material that Native Air believed, given the 26 circumstances, that Goedecke’s safety concerns were reasonable and it took appropriate 27 disciplinary action to ensure the safety of all its employees. Villiarimo v. Aloha Air, Inc., 28 - 7 - Plaintiff was verbally counseled regarding the 1 281 F.3d 1054, 1063 (9th Cir. 2002). It is significant to note that this was Plaintiff’s first 2 disciplinary action, and his employment was not terminated solely for this conduct.3 3 Second Violation 4 The second incident of record occurred approximately two months later, on May 16, 5 2004, when Native Air’s flight log reflected that Plaintiff had “overflown” a scheduled 6 maintenance inspection by 1.3 hours. 7 2001-26-55 requires tail rotor blades to be inspected every ten hours of flight time, and 8 pursuant to FAA regulations and Native Air policies, aircraft cannot be flown past such 9 mandatory inspection intervals. Furthermore, Plaintiff acknowledged that flying an aircraft 10 beyond its mandatory inspection interval constitutes gross negligence. Plaintiff contend, 11 however, that he performed the necessary inspection and as a licensed pilot, he was 12 permitted by FAA regulations to perform the inspection. Notwithstanding, his conduct was 13 in clear contravention to Native Air policy which requires all airworthiness inspections to 14 be performed by an “appropriately certified technician, who is trained, qualified and 15 authorized by Native American Air Ambulance.” 16 that the Native Air certified technician sign the log to certify that the inspection was 17 performed. Plaintiff further acknowledges that the log book was not signed to reflect that any 18 inspection was performed.4 Plaintiff conceded that Airworthiness Directive Moreover, Native Air policies require 19 Even assuming FAA regulations permitted Plaintiff to conduct the maintenance 20 inspection, that fact is irrelevant to the outcome of this matter. Native Air, Plaintiff’s 21 employer, requires a Native Air certified technician to perform the inspection and sign the 22 log book, both of which Plaintiff concedes did not occur. The log book entry indicates that 23 a required safety-inspection was not performed and the aircraft was overflown by 1.3 hours. 24 See infra, Section ‘B’ entitled, “Replaced by Substantially Younger Worker/Inference of Age Discrimination.” 3 25 26 27 Plaintiff acknowledged receiving a copy of Native Air’s employee handbook at the time he was hired. 28 - 8 - 4 1 Native Air cannot rely on the verbal statements of its employees that FAA-required safety 2 inspections of its aircraft which are used to transport patients in critical and emergent 3 situations, have been performed. Despite the fact that Plaintiff asserts that he performed an 4 inspection of the aircraft, it is undisputed that the log book entry reflects that Plaintiff flew 5 the aircraft longer than permitted between required inspections. The Court agrees with 6 Defendant that Native Air is entitled to require appropriate documentation of a required 7 maintenance inspection of its aircraft, otherwise it cannot ensure that the inspection was 8 performed by a qualified individual. 9 Moreover, Plaintiff’s disagreement with Native Air’s policy is irrelevant to the matter 10 at hand. It is undisputed that by virtue of the services it provides, Native Air is compelled to 11 establish and maintain safety policies, and Plaintiff undisputedly violated those policies. 12 Thus, Plaintiff’s assertion that “[t]here was never a safety issue,” does not change the fact 13 that a violation occurred and that Native Air was required to disclose the overflown 14 inspection to the FAA. 15 As a result of Plaintiff’s violation of company policy, Native Air contends that it 16 issued written discipline to Plaintiff regarding the incident. Plaintiff contends that he did not 17 receive the written reprimand until the lawsuit commenced. The Court recognizes that 18 particularly in light of the critical services it provides in potentially dangerous and hazardous 19 situations, Native Air is compelled to enforce its policies, specifically those related to safety. 20 The Court acknowledges that this second safety violation did not alone result in the 21 termination of Plaintiff’s employment. 22 Third Violation 23 Less than six weeks following his second violation, on July 4, 2004, Native Air 24 discovered and investigated5 damage to the aircraft flown by Plaintiff. According to Native 25 26 27 The investigation involved numerous pilots, medical staff, and mechanics, as well as multiple inspections of the aircraft. 28 - 9 - 5 1 Air, the outcome of the investigation was that Plaintiff landed the aircraft “hard” on June 26, 2 2004, and failed to submit an occurrence report regarding the incident; he also failed to 3 document the incident in the log book. 4 Plaintiff disputes that there was a hard-landing and further asserts that his 5 post-incident inspection of the aircraft did not reveal any damage. As a result of the damage, 6 Native Air and the National Transportation Safety Board (hereinafter “NTSB”) conducted 7 extensive investigations into the incident, as required by the FAA. John Welker, the flight 8 nurse present on board with Plaintiff on June 26, 2004, confirmed that there was in fact a 9 hard-landing. An inspection of the aircraft by Chad Barta, Native Air’s Director of 10 Maintenance, concluded that Plaintiff had made a hard-landing that resulted in damage to the 11 aircraft. An inspection of the aircraft by Bill Biddlecome of American Eurocopter 12 Corporation concluded that the damage to the aircraft was consistent with that of a hard- 13 landing. Furthermore, the NTSB’s investigation into the incident concluded that Plaintiff had 14 made a hard landing. Native Air conducted a thorough investigation of its flight logs and 15 conducted extensive interviews of its flight crews and could not find any evidence of any 16 incident – other than the hard landing on June 26, 2004 – that could have caused the damage 17 to the aircraft.6 18 Plaintiff contends that he reported the June 26, 2004 incident to his Base Manager 19 upon completion of the flight and that their post-incident inspection – which Plaintiff did not 20 document – revealed no damage to the aircraft. 21 investigation into the incident reached a different conclusion. Plaintiff’s disagreement with 22 the conclusion reached by Native Air following its investigation is in fact immaterial to the 23 analysis, as Native Air was entitled to rely on the overwhelming evidence that led to its 24 conclusion that Plaintiff’s hard-landing was the only incident that could have caused the However, Native Air’s extensive 25 27 Another individual speculated that the damage could have been caused by vandalism, however, such is mere speculation. Notwithstanding, Native Air depended on the investigative reports to come to its own conclusion. 28 - 10 - 6 26 1 damage to the aircraft. Villiarimo v. Aloha Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002)(It 2 is not critical whether the employer is objectively false. Rather, courts “only require that an 3 employer honestly believed its reasons for its actions, even if it s reason is foolish or trivial 4 or even baseless.”)(quoting Johnson v. Nordstrom, Inc., 260 F.3d 727,733 (7th Cir. 2001)). 5 Nevertheless, Plaintiff failed to submit an occurrence report regarding the incident that did 6 occur that day, nor did he document the incident in the log book, themselves violations of 7 safety policies. 8 Multiple employees were disciplined as a result of the incident and the failure to 9 discover the damage through routine inspections,7 and Plaintiff, as pilot of the aircraft, was 10 terminated. 11 Based on Plaintiff’s multiple safety-related incidents which occurred in a very short 12 time span, Native Air terminated Plaintiff’s employment. According to the evidence, there 13 is no dispute that in a few short months, Plaintiff was reported for flying in unsafe conditions, 14 Plaintiff overflew the plane and improperly performed an inspection thereon, he failed to sign 15 the log certifying that an inspection was performed, and he was reported to have made a hard 16 landing which allegedly resulted in damage to the aircraft. Consequently, Plaintiff cannot 17 establish that he was performing his job satisfactorily at the time of his termination, which 18 is a required element of a prima facie case of age discrimination. Defendants are therefore 19 entitled to summary judgment. Coleman, 232 F.3d at 1281. 20 B. Replaced by Substantially Younger Worker 21 Plaintiff contends that he was replaced by a substantially younger employee with 22 equal or inferior qualifications. However, the record is completely void of any such 23 24 25 27 Defendants assert that had Plaintiff reported the incident in accordance with company policy, the maintenance crews that inspected the aircraft prior to the discovery of the damage would have had a better chance at discovering the damage earlier, and they would have likely been more diligent in their inspections. 28 - 11 - 26 7 1 evidence. Plaintiff contends that he was replaced by Randy Higley8 (hereinafter “Higley”), 2 who he suggests is substantially-younger and less qualified than Plaintiff. Higley applied for 3 employment as a pilot for a position at Show Low which Native Air had been seeking to fill 4 since May 2004 prior to Plaintiff’s July 2004 termination. Defendants contend that Higley 5 was hired in September 2004 to fill the vacancy that existed at the time he had applied. No 6 other helicopter pilots were hired for Show Low until July 2006. Because Plaintiff cannot 7 establish that he was replaced by a substantially-younger employee with equal or inferior 8 qualifications, his prima facie case of age discrimination fails, and Defendants are entitled 9 to summary judgment. Coleman, 232 F.3d at 1281. 10 C. Inference of Age Discrimination 11 Although Plaintiff argues otherwise, the Court has not found direct evidence 12 establishing that Plaintiff was terminated based on his age. Plaintiff was hired and 13 terminated at 58 years old. According to Native Air, in 2005, when it first learned of 14 Plaintiff’s allegation of age discrimination, every pilot employed by Native Air was over the 15 age of 40. Of the six pilots employed at Show Low between 2002 and 2005, four of those 16 pilots, including Plaintiff, were over the age of 50. Of the pilots employed by Native Air 17 company-wide between January 2002 and February 2005 – a total of 96 pilots – nearly half 18 were over the age of 40, 19 were over the age of 50, and 8 were over the age of 60.9 19 Significantly, of the 60 pilot whose employment ended with Native Air during that time 20 21 22 23 24 25 Although younger than Plaintiff by 13 years, Rigley is also in the protected age group under McDonnell Douglas. 8 27 The number of Native Air pilots over the age of 60 was the same as the number of Native Air pilots between the age of 20 and 30. Notably, the number of separations for pilots between the age of 20 and 30 was the same as for pilots over the age of 60. 28 - 12 - 9 26 1 frame – both voluntary and involuntary – only 13 of those of the pilots were over the age of 2 50, and only 5 over the age of 60. 10 3 Defendant is correct in arguing that the fact that Plaintiff was terminated nine months 4 after he was hired undermines any inference of age discrimination. It is well established in 5 the Ninth Circuit that the short time between Plaintiff’s hiring and firing creates a strong 6 inference that there was no discriminatory motive. See Bradley v. Harcourt, Brace, & Co., 7 104 F.3d 267, 270-71 (9th Cir. 1996)( “[W]here...both actions11 occur within a short period 8 of time, a strong inference arises that there was no discriminatory motive.”). Furthermore, 9 in accordance with Ninth Circuit precedent, if Native Air were biased against older workers, 10 it would be unreasonable to believe that it would have initially hired Plaintiff. See Diaz, 521 11 F.3d at 1209 (2008). Significantly, the Bradley court explained: 12 13 14 15 16 17 18 19 20 21 22 23 The temporal proximity between each Plaintiff's hiring and layoff also makes it unlikely that age later developed as the reason for the discharges. The difference in physical and mental capacity between an average 65 year-old and an average 66 year-old, or between a 58 year-old and a 63 year-old, is not significant enough to warrant an inference of anything but the most arbitrary bias. See Bradley, 104 F.3d at 270-71 (9th Cir.1996); See also Diaz, 521 F.3d at 1209, (9th Cir.2008). The Native Air employees involved in hiring Plaintiff were also those involved in the decision to terminate his employment, weighing against an inference of age discrimination. The Ninth Circuit further stated in Bradley that, “[o]ne is quickly drawn to the realization that claims that employer animus exists in termination but not in hiring seem irrational. From the standpoint of the putative discriminator, it hardly makes sense to hire workers from a group one dislikes (thereby incurring the psychological costs of associating with them), only to fire them once they are on the job.” Bradley, 104 F.3d at 270 -271 (9th Cir.1996)(citing Proud v. Stone, 945 F.2d 796, 797 (4th Cir.1991) (internal quotations 24 25 26 27 28 Defendant presently employs 40 pilots who are the same age or older than Plaintiff out of a total of approximately 300 pilots. 10 11 By “actions,” the court is referring to the hiring and firing of an employee. - 13 - 1 omitted). The Bradley court therefore held that “where the same actor is responsible for both 2 the hiring and the firing of a discrimination plaintiff...a strong inference arises that there was 3 no discriminatory motive.” Id. at 271. Melissa Beckstead, Director of Human Resources, 4 was involved in both the decision to hire and fire Plaintiff. The other individual responsible 5 for Plaintiff’s hiring, Chief Pilot Fritz Holly, also concurred in the termination decision.12 6 Consequently, in the present matter, authority is clear that because the same individuals were 7 involved in the hiring and firing of Plaintiff, a strong inference that there was no 8 discriminatory motive involved exists. 9 Plaintiff further alleges that another Native Air employee who is substantially-younger 10 than Plaintiff was not discharged for a helicopter accident on his first day of employment, 11 thereby creating an inference of discrimination. However, according to the record, the cause 12 of that crash was initially determined by the FAA and NTSB to be the result of mechanical 13 failure of the aircraft. In the event that the circumstances of the crash changed through 14 further investigation, Native Air was nevertheless entitled to rely on its opinion regarding the 15 cause of Mr. Ayling’s accident in determining whether termination was appropriate under 16 the circumstances. Additionally, the Court notes that Plaintiff was not terminated after his 17 first violation nor after his second, thus these facts are distinguishable from the facts in the 18 present matter and fail to support Plaintiff’s argument.13 The Court finds that Plaintiff cannot 19 establish that he was terminated under circumstances giving rise to an inference of age 20 discrimination, and Defendants are therefore entitled to summary judgment. Coleman, 232 21 22 23 24 25 The Court finds that the ages of the Native Air superiors further undermines any inference of age discrimination. Mr. Holly was over the age of 50 at the time, and the person most responsible for the decision to terminate Plaintiff and Les Permenter, Director of Operations, is three years older than Plaintiff. 12 27 Mr. Ayling was later terminated in May 2005, at age 40, for failing to adequately perform pre-flight safety procedures on an aircraft. Native Air’s termination of Mr. Ayling establishes that Native Air enforces its safety rules in its flight operations and terminates pilots for safety infractions. 28 - 14 - 26 13 1 F.3d at 1281. 2 D. Legitimate Non-Discriminatory Explanation 3 Assuming Plaintiff was able to establish a prima facie case of age discrimination, the 4 burden would then shift to Defendants to provide a legitimate, non-discriminatory 5 explanation for his termination. McDonnell Douglas, 411 U.S. 792 (1973); Diaz, 521 F.3d 6 1201 (9th Cir. 2008). Native Air has successfully satisfied its burden of setting forth 7 legitimate nondiscriminatory reasons for terminating Plaintiff’s employment by citing the 8 details of Plaintiff’s three safety violations as the reason therefor. 29 U.S.C.A. § 621. 9 Accordingly, the burden switches to Plaintiff to establish that the reasons set forth by Native 10 Air were simply pretext. McDonnell Douglas, 411 U.S. 792 (1973); Diaz, 521 F.3d 1201 11 (9th Cir. 2008). 12 Pretext 13 Again, assuming Plaintiff had established a prima facie case of age discrimination, 14 and Native Air has now satisfied its subsequent burden, the final stage of the McDonnell 15 Douglas analysis requires Plaintiff to raise a genuine issue of material fact concerning 16 whether the reasons for discharge proffered by the employer are pretextual. Pretext can be 17 illustrated in ADEA cases either by directly persuading the court that a discriminatory reason 18 likely motivated the employer or indirectly by showing that the employers’ proffered 19 explanation is unworthy of credence. Diaz, 521 F.3d at 1213 (2008). In the pending matter, 20 there is no dispute that any of the aforementioned incidents occurred. 21 In Diaz, the court held that a plaintiff could not avoid summary judgment on pretext 22 because evidence proffered by the employer that employee caused significant damage to 23 company property was undisputed. Diaz, 521 F.3d 1201. 24 undisputed that Plaintiff was the subject of three separate investigations into safety-related 25 policy violations during his nine month employment with Native Air. Furthermore, it is 26 immaterial whether the violations actually occurred; the material issue is whether the 27 employer, Native Air, believed the reasons for its actions, even if those actions were 28 - 15 - In the case sub judice, it is 1 mistaken. Villiarimo, 281 F.3d at1063 (9th Cir. 2002)(It is not critical whether the employer 2 is objectively false. Rather, courts “only require that an employer honestly believed its 3 reasons for its actions, even if it s reason is foolish or trivial or even baseless.”)(Quoting 4 Johnson v. Nordstrom, Inc., 260 F.3d 727,733 (7th Cir. 2001)). Plaintiff contends that despite 5 the violations, age-based comments made by crew members and the company’s investigation 6 thereof nevertheless constitute evidence of age discrimination and establish that the 7 violations, Native Air’s proffered reasons, are unworthy of credence and are pretext for age 8 discrimination. However, as accurately pointed out by Defendants, Plaintiff has not brought 9 a claim for offensive work environment. The company’s investigation of and response to 10 such comments is relevant as part of the Faragher/Ellerth affirmative defense to offensive 11 work environment discrimination. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998); 12 Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).14 13 handling of the crew members’ comments nor the comments themselves are probative as to 14 whether the aforementioned safety violations-the reasons cited for the Plaintiff’s termination- 15 were pretextual. Neither the company’s 16 Plaintiff contends that “the most damning evidence, however, is an e-mail presented 17 to Permenter [supervisor] during his deposition in which Fritz Holly confirmed to Larry 18 Clark that an independent expert had been retained and indicated that it was possible that 19 damage was not caused by a hard landing. Mr. Permenter confirmed that, if he had been 20 presented with this information, it is very possible his decision concerning the termination 21 of Larry Clark would have been different.” In examining the exact deposition testimony, 22 Mr. Permenter did not in fact state that it is very possible his decision to terminate Clark’s 23 employment would have been different. Rather, in response to a deposition question 24 regarding whether a particular email pertaining to the independent investigator may have 25 26 27 According to the record, none of the alleged ageist remarks reported by Clark were made by anyone in supervisory or managerial positions. 28 - 16 - 14 1 changed his decision to recommend termination, he simply stated, “Possibly. However, Fritz 2 was part of this discussion. Fritz generated this. He should have brought me into this and 3 said, ‘Listen, there is some doubt to this.’” [Doc. 41-5.] The Court finds that although 4 interesting, this information does not establish pretext for age discrimination. At most it 5 indicates poor communication within management at Native Air. Consequently, Plaintiff has 6 failed to raise a genuine issue of material fact as to whether the reasons for discharge 7 proffered by Native Air for terminating Plaintiff’s employment were pretext for 8 discrimination.15 9 III. CONCLUSION 10 The Court finds that Plaintiff is unable to establish a prima facie case of age 11 discrimination. Furthermore, Plaintiff is unable to establish that Native Air’s proffered 12 reasons for his termination were anything but legitimate and nondiscriminatory. Therefore, 13 the Court need not address the issue of whether Plaintiff mitigated his damages. 14 Accordingly, 15 IT IS HEREBY ORDERED GRANTING Native Air’s Motion for Summary 16 Judgment (Doc. 33) in favor of Native Air and against Clark. 17 IT IS FURTHER ORDERED that the Clerk of Court shall close this case accordingly. 18 DATED this 24th day of March, 2009. 19 20 21 22 23 24 25 26 27 The Court notes that Native Air provided three separate and distinct violations for which it based Clark’s termination of employment. 28 - 17 - 15
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