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William A. Vertrees v. American Vulkan Corp

January 12, 2012



This cause comes before the Court on Defendant's Motion for Summary Judgment. (Doc. No. 30). Plaintiff opposes the motion. (Doc. No. 48). As explained below, the motion is granted.*fn1

I. Standard of Review

Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The Court must draw all inferences from the evidence in the light most favorable to the non-movant and resolve all reasonable doubts in that party's favor. See Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir. 2006)(citation omitted). The moving party bears the initial burden of showing the Court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial. See id. (citation omitted). When a moving party has discharged its burden, the non-moving party must then go beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is a genuine issue for trial. See id. (citation omitted).

II. Background

Plaintiff William Vertrees worked for Defendant American Vulkan Corp. ("AVC") from 2001 until he was terminated on April 16, 2009. Plaintiff was purportedly terminated for violating Defendant's no reading at work rule; however, he contends that he was really terminated because (1) Defendant was targeting older employees for layoffs, and (2) he was retaliated against for reporting Defendant's age discrimination. Plaintiff was 64 years old at the time of his termination.

The Machine Shop

Defendant manufactures and sells parts for machinery. (Lehner decl. ¶ 2). Plaintiff worked in Defendant's Machine Shop as a machinist. There were six other machinists in the Machine Shop-Jerry Jones, Robert Allen, Bill Bova, Tony Horwath, Bud Hildebrand, and Al Pecina. (Pla. depo. p. 186). The machinists reported to Thomas Lehner, Defendant's Vice President of Operations.

The No Reading at Work Rule

Defendant had a cleaning company that cleaned its facilities, including the Machine Shop. (Lehner decl. ¶ 19). In 2008, the cleaning company complained about the state of the Machine Shop's bathroom, as it had newspapers and magazines strewn around. (Lehner decl. p. 19). Thereafter, Lehner posted a sign on the bathroom door for one day that stated "no reading" or "no reading in the bathroom." (Pla. depo. p. 104, 105, 203-04; Lehner decl. ¶ 21). Later, either at the end of 2008 or in early 2009, Lehner had a meeting with the Machine Shop employees in which he told them they could not read at work, except on breaks. (Pla. depo. p. 99-100, 105; Lehner decl. ¶ 20). Plaintiff was given three breaks during the day-a ten-minute morning break at 9:00 a.m., a one-hour lunch break at 11:00 a.m., and a ten-minute break at 2:00 p.m.*fn2 (Pla. depo. p. 69-70). In February of 2009, Lehner was told that some people had been reading at work, and Lehner warned Plaintiff not to let him catch Plaintiff reading. (Pla. depo. p. 99-100, 107, 202-03, 212).

The Decision to Lay Off Employees

Sometime at the end of 2008, Plaintiff approached Lehner and Thomas Falz, the President of the company, to discuss with them his plan that within a year or so, he wanted to semi-retire and begin working part-time. (Pla. depo, p. 49-50, 53). Both Lehner and Falz were amenable to Plaintiff's plan, and they asked that he continue working full-time for a while, because the company was busy. (Pla. depo. p. 49). Plaintiff agreed and made it clear that he planned to work until he turned 66-the age at which he would receive full social security benefits. (Pla. depo. p. 49-50).

By March of 2009, Plaintiff recognized that business was slowing down for Defendant. (Pla. depo, p. 45). On March 17, 2009, Lehner and Falz began meeting with employees to discover whether any of the employees planned to leave the company; this was done in an attempt to avoid having to lay off employees. (Doc. No. 48, p. 5). On that day, Lehner met with the following six Machine Shop employees: Jerry Jones (who was approximately 67 years old at the time), Al Pecina (who was approximately 41 years old at the time), Tony Horwath (who was approximately 47 years old at the time), Bud Hildebrand (who was approximately 50 years old at the time), Robert Allen (who was approximately 54 years old at the time), and Plaintiff (who was 64 years old at the time). (Lehner decl. ¶ 7-12; Falz decl. ¶ 8-10).

When Lehner approached Plaintiff on March 17, 2009 and asked to speak with him in Lehner's office, Lehner stated that, "we're talking to the elderly first." (Pla. depo, p. 45, 48). When Plaintiff and Lehner arrived at Lehner's office, Falz was there waiting for them. (Pla. depo. 49). During their meeting, they discussed that business was slowing down, so the company was trying to find out what Plaintiff's intentions were on retirement. (Pla. depo. p. 57). Plaintiff responded that he wanted to stay working until at least June of 2010 (when he would turn 66). (Pla. depo. p. 57). At some point during this meeting, Falz commented that the mandatory retirement age in Germany is 65.*fn3 (Pla. depo. p. 62).

Based on his discussion with Lehner and Falz, Plaintiff had the impression that employees would be laid off. (Pla. depo. p. 59). While Plaintiff concedes that no one stated to him that older employees would be selected first for any layoffs, Plaintiff still believed that Lehner and Falz were targeting the older people for the layoffs based on Lehner's statement that they were talking to the elderly first.*fn4 (Pla. depo. 59, 71, 246).

At the end of the day on March 17, 2009, Lehner got the Machine Shop employees together and announced that there would be some layoffs coming. (Pla. depo. p. 93-94). Lehner asked employees to inform management if they had any intentions of leaving the company in the near future or had any desire to work part-time. (Pla. depo. p. 95, 190).

About two weeks after the March 17, 2009 meeting, Plaintiff saw Barbara Green, Defendant's Director of Human Resources, and he told her about his meeting with Lehner and Falz. (Pla. depo. p. 72-73). Plaintiff reported to her the comments Lehner and Falz made that he felt were inappropriate (i.e., that they were talking to the elderly first, and that the mandatory retirement age in Germany is 65).*fn5

Thereafter, Green informed Falz and Lehner that Plaintiff had reported to her that he believed that their comments were inappropriate. (Green decl. ¶ 8, 9). On April 16, 2009, approximately two weeks after Plaintiff's discussion with Green, Plaintiff was terminated. (Pla. depo. p. 90, 97).

Plaintiff's Termination

On April 16, 2009, Plaintiff left his workstation around 9:45 a.m. to go to the bathroom, and he took with him a newspaper tucked in his back pocket under his shirt. (Pla. depo. p. 97, 99, 102, 195, 215). About six to seven minutes later, Lehner entered the bathroom, flipped off the light switch, asked Plaintiff if he needed the light on to read, and then asked Plaintiff to come to his office when he was finished. (Pla. depo. p. 112, 195, 201). When Plaintiff went to Lehner's office, Lehner asked if he had been reading in the bathroom, and eventually Plaintiff admitted to it. (Pla. depo. p. 114-15, 117). In response, Lehner told Plaintiff that he would have to speak with management about the situation.*fn6 (Pla. depo. p. 115, 122).

About 45 minutes later, Lehner spoke to Plaintiff again. (Pla. depo. p. 122). Lehner told Plaintiff that he had spoken with management about the situation and that it was decided that Plaintiff would be terminated. (Pla. depo. p. 123). Plaintiff asked Lehner to go back to management and to please reconsider, and Lehner responded "No. That's my decision." (Pla. depo. p. 123-24).

When Plaintiff went back to his workstation to collect his belongings, he had a few Mechanics Illustrated magazines there, as well as approximately thirty-six Playboy magazines. (Pla. depo. p. 66, 276-77).

Other Machine Shop Employees

After Plaintiff was terminated, and in response to the slow down in business, Defendant moved two machinists, Bill Bova and Bud Hildebrand, from the Machine Shop to Outside Maintenance. (Pla. depo. p. 182). The move from the Machine Shop to Outside Maintenance is not considered an advancement or a positive move. (Pla. depo. p. 183). Bova was fifteen years younger than Plaintiff, and Bova also had his pay cut by $3 per hour at the time of the move. (Pla. depo. p. 181-83). Hildebrand was about ten years ...

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