United States District Court, D. Arizona
Honorable Steven P. Logan United States District Judge.
the Court are Defendant's Motion for Summary Judgment
(Doc. 54) and Motion to Preclude Use of Information Conveyed
During Settlement Negotiations (Doc. 35).
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)
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)
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)
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)
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.
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)
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.
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).
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.
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),
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).
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. (Doc. 58 at 4)
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