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OWENS v. TOP TRANSP. SERVICES

April 18, 2001

LOUIS P. OWENS, PLAINTIFF,
V.
TOP TRANSPORTATION SERVICES, INC. AND SUNDSTRAND CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Reinhard, District Judge.

MEMORANDUM OPINION AND ORDER

Introduction

On June 9, 1999, plaintiff Louis Owens filed a one-count complaint against Top Transportation Services, Inc. ("Top"), and Sundstrand Corporation ("Sundstrand"), alleging defendants violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., when they discharged him in 1997. Currently pending are both defendants' motions for summary judgment, filed pursuant to Fed.R.Civ.P. 56. Jurisdiction is proper under 28 U.S.C. § 1331. Venue is proper as a substantial part of the events giving rise to the claim occurred in this district and division. See id. § 1391(b)(2).

Facts

Sundstrand's aerospace and aircraft products are transported to various destinations by a contracted carrier service. (LR56.1(a) ¶ 2)*fn1 Over the years it has used various contracted carrier services, the last one being Top. Pursuant to its agreement with Top, Sundstrand accepted responsibility for making sure Top drivers complied with the U.S. Department of Transportation Motor Carrier Safety regulations ("DOT regulations") and other applicable federal and state laws and regulations. (Id ¶ 19)

During the twelve years he was assigned to drive trucks for Sundstrand, Owens was assigned to the "Milwaukee-Auburn run," which included two trips to Auburn, Alabama, and was paid for the number of miles assigned to this route. (Id. ¶¶ 20-21, 34-35) At the end of each week, Owens completed a weekly pay sheet that logged the daily miles, which he submitted to Ziegert (and then to Wilson, after Ziegert retired) after completing his weekly route. (Id. ¶ 26)

It is undisputed that during the twelve years he was assigned to this route, Owens falsified his daily driver log by recording less than the number of miles he had actually driven. (Id. ¶ 49) He did this so as to appear to be in compliance with the DOT regulations. Ziegert knew of the falsification and condoned it. In fact, Ziegert had been responsible for mapping but the Milwaukee-Auburn run. It was not possible for a single driver to drive this route, get to the first location by the required time as scheduled by Sundstrand, and comply with the DOT regulations. (LR56.1(b)(3)(B) ¶¶ 10-11)*fn2 It is also undisputed Owens submitted a Fuel Tax and Mileage Report, in which he accurately recorded the number of miles he had driven. Sundstrand used this report to calculate the amount it owed the company from which Sundstrand leased the trucks.

When Wilson became the dispatcher, he told Westervelt he believed one of the drivers was falsifying his daily log. (LR56.1(a) ¶ 60) Westervelt ordered an audit of all the daily logs from November and December of 1996. (Id. ¶ 63) Wilson also recommended that Owens' route be converted to a team assignment, meaning two drivers would be used to complete the run. (Id. ¶ 61) Westervelt approved Wilson's recommendation. The audit results revealed Owens' falsification, and the results were published in a report entitled, "Corporate Transportation Services Audit Report." (Id. ¶ 65; Sundstrand Exh. F) Westervelt received a preliminary copy of this report in February 1997. (LR56.1(a) ¶ 67) The report concluded that Owens was violating DOT regulations. (Id.) On February 20, 1997, Westervelt met with Ernest Reichert, Top's Vice President, to discuss the results of the preliminary audit. (Id. ¶ 68) During the meeting, Westervelt stated Sundstrand would no longer accept Owens' services, and Reichert concurred. (Id. ¶ 69) Owens was thereafter discharged from Top. (Id. ¶ 74-75)

Analysis

Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 669 (7th Cir. 2000), cert. denied, ___ U.S. ___, 121 S.Ct. 1603, 149 L.Ed.2d 469 (2001). A genuine issue of fact exists only when a reasonable jury could find for the nonmoving party based on the record as a whole. Bekker, 229 F.3d at 669. The court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2110, 147 L.Ed.2d 105 (2000); EEOC v. Sears, Roebuck & Co., 233 F.3d 432, 436 (7th Cir. 2000). Because the primary purpose of summary judgment is to isolate and dispose of factually unsupported claims, the nonmovant may not rest on the pleadings but must respond, with affidavits or otherwise, pointing to specific facts showing there is a genuine issue for trial. Oest v. Illinois Dep't of Corr., 240 F.3d 605, 610 (7th Cir. 2001). A complete failure of proof concerning an essential element of a case necessarily renders all other facts immaterial. Id.

Here, Owens concedes he has no direct evidence of age discrimination. (Resp., p. 1) Thus, the court will analyze his ADEA claim under the McDonnell Douglas burden-shifting approach. Accordingly, Owens must first establish a prima facie case of age discrimination by demonstrating: (1) he is over the age of 40; (2) he performed his job according to his employer's legitimate expectations; (3) he suffered an adverse employment action; and (4) similarly situated, non-protected employees were treated more favorably. Reeves, 120 S.Ct. at 2106; Gordon v. United Airlines, Inc., 246 F.3d 878, 886 (7th Cir. 2001). The first and third elements of the McDonnell Douglas analysis are not at issue here.

Defendants argue Owens has not established the second and fourth elements of a prima facie case. The issue of whether Owens' job performance was satisfactory focuses on some of the same circumstances as must be scrutinized with respect to the issue of pretext. See Gordon, at 886. Thus, the court will comprehensively discuss his performance in the context of pretext. As for the fourth element, Sundstrand states the truck driver who replaced Owens was nine years, eleven months younger than Owens. (Memo., p. 9) Because the age difference is less than ten years, Sundstrand argues the replacement was not substantially younger than Owens so as to satisfy the fourth element. See Fisher v. Wayne Dalton Corp., 139 F.3d 1137, 1141 (7th Cir. 1998) ("substantially younger" means at least a 10-year age difference). The court rejects this argument. The McDonnell Douglas analysis is not rigid, mechanized, or ritualistic. Robin v. Espo Eng'g Corp., 200 F.3d 1081, 1090 (7th Cir. 2000). The replacement's age is close enough to Owens' that the court considers him to have established the fourth element.

However, Owens falters at the pretext stage. A plaintiff can prove pretext by presenting evidence from which a reasonable factfinder could conclude the employer's proffered reason is unworthy of credence, raising the inference that the real reason is discriminatory. Essex v. United Parcel Serv., Inc., 111 F.3d 1304, 1310 (7th Cir. 1997). The question is whether the employer honestly believed its proffered reason for discharge. Id. That the ...


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