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Caracofe v. Drake Kryterion, Inc.

United States District Court, D. Arizona

January 9, 2020

Gary Caracofe, Plaintiff,
v.
Drake Kryterion, Incorporated, Defendant.

          ORDER

          Honorable Steven P. Logan United States District Judge.

         Before the Court are Defendant's Motion for Summary Judgment (Doc. 54) and Motion to Preclude Use of Information Conveyed During Settlement Negotiations (Doc. 35).[1]

         I. Background[2]

         Gary Caracofe (“Plaintiff”) is currently a sixty-year-old employee of Drake Kryterion, Inc., d/b/a/ Kryterion Global Testing Solutions (“Kryterion” or “Defendant”). (Doc. 58 at 2) Defendant hired Plaintiff as a Program Manager in October of 2011. (Doc. 58 at 2) Plaintiff remained in that role for almost seven years and received one raise. (Doc. 58 at 2) In January of 2018, William Wilkins interviewed Plaintiff for a Client Services Manager position. (Doc. 59 at 4-5) Plaintiff and five other candidates were interviewed, but Plaintiff did not make it past the first interview. (Doc. 59 at 4-5) Mr. Wilkins ultimately chose to promote Alison Swauger, who was forty-four years old at the time. (Doc. 59 at 5) Around the same time, Defendant created a new position, Business Analyst, and promoted an employee who was twenty-seven years old. (Doc. 54 at 4)

         On January 22, 2018, Plaintiff sent an email to Mr. Wilkins expressing concerns about his lack of promotion and pay increase. (Doc. 55-2 at 26-30) Mr. Wilkins responded to the email, explaining that promotions at Kryterion are dependent on several factors and that he could not simply give Plaintiff a promotion. (Doc. 55-2 at 26-30) Mr. Wilkins also forwarded the message to Plaintiff's new supervisor-Ms. Swauger. (Docs. 55-2 at 26-30; 59 at 13) After sending the email, Plaintiff began to perceive a change in the attitude of Mr. Wilkins and Ms. Swauger. (Doc. 58 at 6)

         A few months later, on June 1, 2018, Plaintiff and Ms. Swauger were scheduled to conduct a client call (the “June 1 call”). (Doc. 58 at 7) At the last minute, Ms. Swauger informed Plaintiff that she would not participate in the call. (Doc. 58 at 7) The call went poorly, and Ms. Swauger issued a disciplinary citation to Plaintiff on June 13, 2018. (Doc. 58 at 7; 55-3 at 18) As part of the citation, Defendant created a performance improvement plan (“PIP”), which required Plaintiff to attend weekly one-on-one meetings, create meeting agendas for his client meetings, and have Ms. Swauger as an optional attendee on all his client meetings. (Doc. 55-3 at 18)

         On June 14, 2018, Plaintiff submitted an age discrimination complaint to the human resources manager, Janet Manley. (Doc. 59 at 8) Ms. Manley conducted an internal investigation of Plaintiff's allegations but concluded that no discrimination had occurred. (Doc. 59 at 8) After the investigation, Ms. Manley sent Plaintiff an email outlining four employment options, including eight “action steps” Plaintiff needed to meet in order to stay in his current position or achieve a promotion and pay raise (the “July action plan”). (Doc. 55-7 at 2-7) Alternatively, Plaintiff had the option of moving to a different department outside of Ms. Swauger's supervision. (Doc. 55-7 at 2-7) Finding that he could not realistically meet the eight actions steps, Plaintiff chose to move positions-even though he considered the new position to be a demotion. (Docs. 55-7 at 2-7; 58 at 8)

         On July 16, 2018, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). (Doc. 59 at 10) The EEOC sent Plaintiff a right to sue letter on August 6, 2018. (Doc. 55-7 at 21) On August 16, 2018, Plaintiff filed the Complaint in this case, alleging three causes of action under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.: age discrimination (Count I); retaliation (Count II); and hostile work environment (Count III). (Doc. 1) On September 21, 2018, Defendant answered the Complaint. (Doc. 12)

         On February 26, 2019, the parties engaged in a settlement conference. (Doc. 31) In addition to the parties and their counsel, Regina Caracofe-Plaintiff's spouse and another Kryterion employee-attended the settlement conference. (Doc. 35 at 3) The parties failed to reach a settlement agreement. (Doc. 31) Subsequently, Plaintiff's wife filed a charge of discrimination with the EEOC. (Doc. 37 at 7) On May 9, 2019, Defendant filed the Motion to Preclude Use of Information Conveyed During Settlement Negotiations, requesting that the Court bar Mrs. Caracofe from using confidential information stated at Plaintiff's settlement conference in her separate EEOC charge of discrimination. (Doc. 35) Plaintiff responded on May 23, 2019. (Doc. 39)

         Defendant then filed the Motion for Summary Judgment on August 9, 2019. (Doc. 54) Plaintiff filed a response on September 9, 2019, and Defendant replied on September 24, 2019. (Docs. 58, 66) Both motions are addressed below.

         II. Discussion

         A. Summary Judgment

         A court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the non-moving party, “show[] that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A fact is “material” when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute of material fact arises “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. “If the evidence is merely colorable, . . . or is not significantly probative, . . . summary judgment may be granted.” Id. at 249-50 (citations omitted).

         The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ” which it believes demonstrate the absence of any genuine issue of material fact. Celotex, 477 U.S. at 323 (citations omitted). The moving party need not disprove matters on which the opponent has the burden of proof at trial. Id. Summary judgment is, therefore, proper if the nonmoving party fails to make a showing sufficient to establish the existence of an essential element of his case on which he will bear the burden of proof at trial. Id.

         The ADEA makes it unlawful for an employer to discriminate because of an individual's age. 29 U.S.C. § 623(a)(1). Generally, the framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), [3] applies to a plaintiff who alleges retaliatory conduct by his or her employer. See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142 (2000). The framework is also appropriate when a plaintiff attempts to establish a claim of discrimination by using only circumstantial evidence. Id. at 141. The Court finds that, in addition to the retaliation claim, Plaintiff asserts circumstantial evidence to support his other claims of discrimination. Therefore, the Court will apply McDonnell Douglas to analyze whether summary judgment is appropriate for each of Plaintiff's discrimination claims. Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207-08 (9th Cir. 2008) (evaluating an ADEA claim based on circumstantial evidence of discrimination under McDonnell Douglas).

         1. Age Discrimination

         In a failure-to-promote case, a plaintiff may establish a prima facie case by showing he was: (1) at least forty years old, (2) qualified for the promotion, (3) denied the promotion, and (4) the promotion was given to a substantially younger person. Shelley v. Geren, 666 F.3d 599, 608 (9th Cir. 2012). Plaintiff asserts that he was overlooked for two promotions-Client Services Manager and Business Analyst.[4] (Doc. 58 at 4)

         Regarding the Client Services Manager position, the Court finds that Plaintiff has established a prima facie claim. Even so, the Court finds that Plaintiff fails to offer sufficient evidence rebutting Defendant's legitimate, non-discriminatory reason for hiring Ms. Swauger over Plaintiff. Defendant asserts that Plaintiff interviewed poorly and Ms. Swauger possessed better qualifications than Plaintiff. (Docs. 54 at 4-5; 59-1 at 28-29) In response, Plaintiff asserts that Mr. Wilkins only used subjective hiring criteria when making the selection. (Doc. 59 at 5) However, such an argument on its own is insufficient to survive summary judgment under the McDonnell Douglas framework. See Lieberman v. Gant, 630 F.2d 60, 67 (2d Cir. 1980) (explaining that when an employer offers a specific explanation for an employment decision that “is reasonably attributable to an honest even though partially subjective evaluation of [an employee's] qualifications, no inference of discrimination can be drawn”). The record confirms that Defendant required at least some objective qualifications for the Client Services Manager position. (Doc. 55 at 2; 55-7 at 28) Deciding not to further consider Plaintiff because he interviewed poorly was within Defendant's discretion, and ...


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