The opinion of the court was delivered by: Lawrence J. O‟Neill United States District Judge
SMS ORDER ON MOTION FOR SUMMARY JUDGMENT (DOC 66)
Defendants Sears Logistics Services, Inc. ("Sears" and/or "Defendant"), Sears Roebuck & Co. and Sears Holdings Corporation move for summary judgment against Plaintiff Randolph Evans ("Evans"). Evans, a Sears employee, asserts three claims against Defendants for age and disability discrimination, as well as a request for punitive damages. Defendants contend that the uncontroverted evidence establishes that Evans does not meet his burden of proof to show he was terminated for a discriminatory reason; Evans‟ termination was legitimate and based on a non- discriminatory reason; and Evans is unable to pursue punitive damages. Evans opposes the motion on all claims and his request for punitive damages. The Court GRANTS in part and DENIES in part Defendants' summary judgment motion.*fn1
Sears Holdings Corporation is a holding company formed after the 2005 merger between Sears and K-Mart, and is the parent company of Sears, Roebuck and Co. The key employer in this matter, however, is Defendant Sears Logistics Services, Inc., which is a wholly-owned subsidiary of Sears, Roebuck and Co. Decl. of Cathy Miller ¶ 4. Sears employed Plaintiff in one of its seven retail replenishment centers.
Plaintiff is a sixty-five year old, African-American male. Pl. Dep., 25:19-20. Plaintiff first began working for Sears Roebuck and Co. in 1970 and has continuously worked at different Sears locations and in various positions throughout his career. Id. at 40:8-41:7. Evans‟ human resource career advanced in 1997 when he became the Southeast Region Human Resource Manager ("HRM"). Id. In 1999, he became the Region HRM for the South and held this position until fall 2004. Id. In these positions, Evans oversaw the human resource functions for multiple distribution centers. Id. at 42:23-44:11. While HRM for the South, Evans was supervised by Vicki Purvis. Id.
at 42:17-18. In late 2004 Evans accepted the HRM position at the Delano, California retail replenishment center ("RRC") and worked in this position until his termination in September 2007. Id. at 41:5-7.
During the relevant time period, while employed as the Delano HRM, Plaintiff reported to the Area Human Resources Manager ("AHRM"). Id. at 141:10-17.When Plaintiff was initially placed in the Delano HRM role, his direct supervisor was John Hargrove. Id. at 124:6-10. Some time prior to July 2006, Hargrove was replaced by Don MacArthur. Id. at 173:20-23.
As an HRM, Plaintiff was expected to institute and provide strategic guidance on company-wide human resource policies in the Delano facility. Id. at 141:10-17; 143:6-7. His responsibilities included effectively training HR associates, providing consultative assistance to managers, ensuring the execution of corporate HR initiatives, and ensuring compliance with company polices. Id.
Plaintiff asserts that from 1970 to 2005, his performance record was never below expectations and he was frequently lauded by his supervisors, particularly Vicki Purvis and John Hargrove. However, in July 2006, Plaintiff contends, things "suddenly changed" when Beth Taska, age 42, became HR Director for Sears and Tania Williams, age 32, was promoted to AHRM and began directly supervising Plaintiff. Dep. of Tania Williams, 16:8-12; 25: 17-26:1.
A. Plaintiff‟s Evidence of Discrimination.
1. Age-Related Statements.
Plaintiff asserts that Williams and Taska showed their discriminatory animus by making certain statements regarding Sears‟ older employees. In the middle of June 2006, in a meeting at the Sears corporate headquarters, Taska announced that long-service employees were "retired on the job." Decl. of Glen Shepherd ¶ 5. Kimberly Wade, a newly employed HRM, testified that in February 2007, Williams told her that Sears needed "newer, younger" HRMs. Dep. of Kimberly Wade, 63:3. Also, that Evans would not be around much longer "because he was of retirement age and [Sears] needed, quote, fresh blood, end quote in the company." Id. at 61:22-25. During spring 2007conference calls, Williams repeated her statement that Sears needed "young" human resources personnel. Id. at 69:22-70:9. Additionally, on one of these conference calls, when Evans was not on the line, Williams said, "I guess the young people can remember the right time for the call." Id. at 94:25-95:8. Alex Gutierrez, Evans‟ assistant HRM, also testified that Williams told him Evans was not going to be an HRM much longer because Sears needed "fresh blood" which Gutierrez believed meant "an external candidate" and/or a "younger person." Dep. of AleX Gutierrez, 123:20-22.
2. Disability-Related Statements.
In December 2006 Plaintiff informed Williams that he had been diagnosed with prostate cancer and that he would be receiving daily radiation treatments. Pl. Dep., 259:4-10. He further informed her that he would not be able to make the spring HR meeting because of his treatments,
but that Gutierrez would attend the meeting in his place. Williams Dep., 177:4-14. Williams testified that she "understood and accepted" that Evans could not come to the meeting because of his treatment and that it would be a good opportunity for Gutierrez to gain HR experience. Id. However, Wade and Gutierrez both testified that at this meeting Williams criticized Evans for not attending. When Williams thanked the HRMs for attending, she said, "of course we have one person who didn‟t show up." Gutierrez Dep., 114:14-11; 117:4-118:14. She also stated: "one of us isn‟t here because he says he‟s sick." Wade Dep., 80:16-19; 81:1-4. And finally, Gutierrez testified that Williams stated to him: "We need somebody who is going to bring new ideas to the team. Randy can‟t even make it to these meetings." Gutierrez Dep., 118:3-14.
In October 2006, Williams informed Evans that Sears was creating a new human resources generalist ("HRG") position, which reported to the HRM. Pl. Dep., 157:12-19; 160:23- 161:9. Plaintiff asserts that he immediately utilized several recruitment networks and identified several candidates early in the process, but soon after he told Williams about his cancer diagnoses, without providing any explanation, Williams informed him that she would take the lead in finding an HRG. Id. at 157:13-159:8; 178:1-7; 179:9-16. Plaintiff asserts this is because Williams was interested in finding Evans‟ younger replacement. Williams hired Kimberly Handford, who is 17 years younger than Plaintiff. Dep. of Kimberly Handford, 8:17-18. Handford immediately replaced Evans upon his termination. Id. at 75:9-76:7.
4. Termination of Other Employees Over 40.
Plaintiff asserts that after Taska and Williams took control of the Sears Logistics HR department, they "immediately revealed their prejudice" against older employees by "getting rid" of three of the older HRMs within fifteen months. Plaintiff (age 61), Gwendolyn Chandler (age 60), and Glen Shepherd (age 58) were either terminated or "resigned under pressure." Shepherd Decl. ¶¶ 2, 3, 10; Decl. of Gwendolyn Chandler ¶¶ 2, 3, 6. All three were replaced by significantly younger employees, from 17 to 21 years younger than their predecessors. Siegel Decl., Ex. 21.
B. Legitimate Business Reason.
Defendants argue that Evans was terminated for a non-discriminatory purpose. Defendants assert that after several performance issues, corrective actions and placement into a Performance Improvement Plan, Evans was terminated based on his continued failure to improve his performance.
1. Evans‟ Pre-2006 Performance Issues.
Defendants assert that Plaintiff‟s performance issues predate his supervision by Williams.
For example, in 2005, Plaintiff received a disciplinary counseling memo for not following protocol regarding the termination of an employee who refused to take a drug test after a suspicious incident took place. Pl. Dep. 173:24-174:7, Ex. 28. Pursuant to Sears‟ Drug and
Alcohol Abuse Policy, an employee must resign if he/she refuses to take a drug test and must be designated "not re-hireable." Handford. Decl. ¶ 7. However, in this instance after the employee refused a drug test and resigned, Plaintiff did not follow protocol regarding the employee‟s designation, and the employee was re-hired against Sears‟ policy. Pl. Dep. 173:24-174:7, Ex. 28.
Also in Plaintiff‟s 2005 Performance Review one of Plaintiff‟s supervisors, Don MacArthur, commented that Evans needed to be more assertive with the General Manager ("GM"), Mike Velten, regarding his HR concerns and needed to continue to "drive accountability" in order for his team to achieve the best results. Id. at 169:4-8, Ex. 27. Similar comments were echoed in Williams‟ 2006 reviews of Plaintiff. Williams Dep., 199:24-200:4, Ex. 14. Defendants assert that this demonstrates Plaintiff‟s performance issues were on-going and not a function of Williams‟ alleged discriminatory animus.
Sears‟ compliance audits were implemented by Taska as a means of creating quantifiable compliance measures in the RRC HR departments. Dep. of Beth Taska, 17:21-18:9; 20:17-18;
21:1-13. Each HR manager received an audit checklist in advance so that ...