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James T. Carden, Jr., Robert v. Chenega Security & Protection Services

May 9, 2011

JAMES T. CARDEN, JR., ROBERT
L. FOX, LEON W. HEDRICK, ROBERT B. KLEE, GEORGE M. LEMBO, LOREN E. LOVELAND, RE: TERRY D. MYERS, CHARLES R. SAMUELSON, MICHAEL B. SCHAEFER, ARTHUR J. SCHUBERT, THURLOW E. WILLIAMS, MICHELLE W. WOODS, RAYMOND E. YOUNG, WILLIAM H. ZIEGLER, PLAINTIFFS,
v.
CHENEGA SECURITY & PROTECTION SERVICES, LLC, DEFENDANT.



MEMORANDUM AND ORDER MOTION FOR SUMMARY JUDGMENT

Plaintiffs James T. Carden, Jr., Robert L. Fox, Leon W. Hedrick, Robert B. Klee, George M. Lembo, Loren E. Loveland, Terry D. Myers, Charles R. Samuelson, Michael B. Schaefer, Arthur J. Schubert, Thurlow E. Williams, Michelle W. Woods, Raymond E. Young, and William H. Ziegler brought this action, alleging that defendant Chenega Security and Protection Services, LLC ("Chenega"), discriminated against plaintiffs based on their ages by failing to hire them for security guard positions. All plaintiffs except George M. Lembo have since dismissed their claims. Chenega now moves for summary judgment on all claims pursuant to Federal Rule of Civil Procedure 56.

I. Standard

Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable jury to enter a verdict in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact and can satisfy this burden by presenting evidence that negates an essential element of the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Alternatively, the moving party can demonstrate that the non-moving party cannot produce evidence to support an essential element upon which it will bear the burden of proof at trial. Id.

Once the moving party meets its initial burden, the burden shifts to the non-moving party to "designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting then-Fed. R. Civ. P. 56(e)). To carry this burden, the non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252.

In deciding a summary judgment motion, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment . . . ." Id.

II. Relevant Facts

Lembo began working for Pinkerton, a security company, in 1994. (Deschler Decl. in Supp. of Def.'s Mot. for Summ. J. ("Deschler Decl.") (Docket Nos. 43-49) Ex. 1.D ("Def.'s Lembo Dep.") at 21:5-13.) In 2004, Lembo was transferred to Shasta Dam, where he worked as an armed guard for Pinkerton. (Id. at 27:11-28:12.) In mid-2007, Lembo learned that his employment with Pinkerton would be ending because Chenega had been awarded the contract to supply security services at Shasta Dam. (Id. at 46:23-47:11.) Although the parties dispute some of the details of the hiring process conducted by Chenega, it is undisputed that Chenega advertised for security guard positions, accepting applications from both Pinkerton employees and outsiders. (Barry Decl. in Supp. of Def.'s Mot. for Summ. J. ("Barry Decl.") (Docket No. 53) ¶ 5; Deschler Decl. Ex. 1.M ("Gutierrez Dep.") at 27:16-28:16.) Dan Barry, Chenega's Director of Operations, held "town hall meetings" with Pinkerton employees and other applicants to introduce Chenega and its hiring process and philosophy, as well as to informally interview candidates. (Id.)

Barry and James Gutierrez, a project manager for Chenega, recall that several individuals were rude or disrespectful at the town hall meetings. (Deschler Decl. Ex. 1.J ("Def.'s Barry Dep.") at 92:1-97:8, 98:7-99:7, 103:10-108:4, 116:1-16, 123:4-8; Gutierrez Dep. at 20:1-13, 42:23-44:19, 48:4-23.) Barry believed that Lembo publicly challenged Barry regarding a physical agility test required for employment with Chenega and stated that he received health benefits as a member of the military and thus wanted a "health and welfare cash out" instead of benefits from Chenega. (Def.'s Barry Dep. at 92:1-97:8, 98:7-99:7, 103:10-108:4, 116:1-16, 123:4-8.) Barry claims that he made the decision not to hire Lembo based on Lembo's actions during the town hall meeting. (Id.) Lembo does not believe that he was rude or disrespectful during the town hall meeting. (Def.'s Lembo Dep. at 76:12-80:1.) Lembo points out that Barry has described the rude or disrespectful person as tall and slender, when Lembo is in fact short and "a little bit overweight." (Cogan Decl. in Supp. of Opp'n to Mot. for Summ. J. ("Cogan Decl.") (Docket No. 63) Ex. 1.B ("Pl.'s Barry Dep.") at 112:15-18, 113:12-114:22; Lembo Decl. in Opp'n to Mot. for Summ.

J. ("Lembo Decl.") (Docket No. 60-3) ¶ 8.) Furthermore, Lembo was never in the military. (Lembo Decl. ¶ 8.) Lembo was never formally interviewed, and was not offered a position with Chenega, which ultimately hired thirty-two security guards.

(Johns Decl. in Supp. of Def.'s Mot. for Summ. J. ("Johns Decl.") (Docket No. 53) ¶¶ 10, 13; Lembo Decl. ¶¶ 6, 9.)

Lembo was 58 years old in September of 2007. (Pl.'s Lembo Dep. at 6:10-14, 57:5-9.) He notes that, only considering former Pinkerton employees, the median age of those hired was 44 and the median age of those not hired was 61; the mean age of those hired was 43, and the mean age of those not hired was 57.3. (McFadden Decl. in Opp'n to Mot. for Summ. J. ("McFadden Decl.") (Docket No. 60-5) Ex. A at 1.) The court also notes that the mean age of all guards hired, as opposed to only former Pinkerton guards, was 42.875; the median was 44. (Baker Decl. in Supp. of Def.'s Mot. for Summ. J. ("Baker Decl.") (Docket No. 51) Ex. A App. B.) Four of the hired guards were in their twenties; six were in their thirties; fifteen were in their forties; four were in their fifties; three were in their sixties. (Id.)

The ages of all non-hired applicants, whether or not former Pinkerton employees, have not been provided to the court. The parties dispute the facts regarding the number of applicants for the security guard positions and the number who survived the first round of cuts, and Chenega itself is inconsistent in its figures.*fn1 Neither party has provided a comprehensible list of the ages of the people they believe applied or survived the first round of cuts or even attempted to explain the disputes regarding who such a list would include.

Chenega emphasizes data showing that the percentage of guards hired who were age forty or above is higher than the percentage who applied. "Because the ADEA prohibits discrimination on the basis of age and not class membership, the fact that a replacement is substantially younger than the plaintiff is a far more reliable indicator of age discrimination than is the fact that the plaintiff was replaced by someone outside the protected class." O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313 (1996). That is, an employer could discriminate on the basis of age by hiring someone younger than the plaintiff but still age forty or above. The court will not focus on class membership but will instead consider the figures showing the average age of applicants hired and not hired.

On June 30, 2009, Lembo and thirteen other former Pinkerton employees filed this action against Chenega, alleging age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. ยงยง 621-634, and the Fair Employment and ...


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