James Darnell v. Tyson Foods, Inc. , 536 F. App'x 366 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1011
JAMES M. DARNELL,
Plaintiff - Appellant,
v.
TYSON FOODS, INC.,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:11-cv-00473-RJC-DCK)
Submitted: July 15, 2013 Decided: July 31, 2013
Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Kirk J. Angel, THE ANGEL LAW FIRM, PLLC, Concord, North
Carolina, for Appellant. Kevin J. Dalton, Matthew R. Korn,
FISHER & PHILLIPS LLP, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Darnell (Darnell) appeals the district court’s
decision to grant summary judgment to his former employer, Tyson
Foods, Incorporated (Tyson). Darnell alleged that Tyson
intentionally discriminated against him on the basis of his age
in violation of the Age Discrimination in Employment Act (ADEA),
29 U.S.C. § 621 et seq. This case centers on the proposed
reassignment of Darnell from a supervisory position on the first
shift to a supervisory position on the third shift. We agree
with the district court that Darnell is unable to establish a
prima facie case of discrimination because the proposed
reassignment does not satisfy the threshold ADEA requirement of
an adverse employment action. Accordingly, we affirm.
I
Darnell became an employee of Tyson in 1989 when Tyson
purchased a poultry processing facility owned by Holly Farms,
Inc. in Wilkesboro, North Carolina. In June 1992, Darnell
voluntarily transferred to a maintenance technician position at
Tyson’s Monroe, North Carolina processing plant (Monroe Plant).
In December 1996, Darnell was promoted to the position of
maintenance supervisor in the labeling department, a position he
held at the Monroe Plant until his resignation in May 2010.
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Darnell typically arrived at the Monroe Plant around 6:00 a.m.
and ended his shift around 5:00 p.m.
The Monroe Plant had five departmental equipment lines at
the time of Darnell’s resignation and a maintenance supervisor
assigned to each line: evisceration; debone; cut-up; net-weight;
and labeling. Only the labeling line regularly operated during
the third shift. During the third shift, the machines at the
Monroe Plant were cleaned and preventive maintenance was
performed by a crew of maintenance technicians so the equipment
was ready to run at the start of the first shift.
On December 1, 2009, the positions of thirty-six year old
Assistant Maintenance Manager Glenn Rossi (Darnell’s superior)
and fifty-six year old third shift Maintenance Supervisor Jimmy
Vo (Vo) were eliminated through a reduction in force to reduce
costs. At the time of his termination, Vo’s regularly scheduled
hours were from 11:00 p.m. until approximately 9:00 a.m. Vo was
the only maintenance supervisor and member of management on the
third shift and his termination left the third shift with no
management supervision.
By the end of December 2009, there was an increase in the
frequency of machines breaking down that resulted in a marked
decrease in production at the Monroe Plant. On March 4, 2010,
Plant Manager Jonathan Edwards (Edwards) provided written
disciplinary counseling to former Maintenance Manager David
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McHugh (McHugh) regarding the need to correct the increased
equipment breakdowns and rectify the preventive maintenance
deficiencies. There were no significant improvements during
March 2010, and, on April 2, 2010, Edwards notified McHugh that
he was being removed from the maintenance manager position,
effective April 19, 2010.
In March 2010, Tyson sent Dennis Joy (Joy) from its
corporate office in Springdale, Arkansas to the Monroe Plant to
analyze the processes, costs, and performance of the maintenance
departments at the plant. In performing this analysis, Joy was
concerned about the lack of maintenance supervision on the third
shift and that preventive maintenance was not being performed,
resulting in significant and increasing equipment failures.
Because an additional maintenance supervisor position could not
be added due to the costs involved, Joy concluded that one of
the five maintenance supervisors at the Monroe Plant needed to
have his schedule adjusted to cover the third shift, provide
management presence, and ensure preventative maintenance was
being properly performed.
Joy recommended to Edwards that Darnell’s schedule be
adjusted based on Darnell’s training and experience in the
labeling department and relative lack of experience in the other
departments. In reaching his recommendation, Joy analyzed the
qualifications of all of the maintenance supervisors and whether
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any of the other supervisors would be a better fit for the shift
adjustment, but Darnell’s experience in labeling, and his
inexperience in the other departments, made him the only
feasible choice.
Darnell was initially informed of the reassignment decision
during a meeting on April 23, 2010. Darnell agreed a
maintenance supervisor was needed on the third shift, but said
he was not interested. After the meeting, Joy and Complex Human
Resources Manager Leonard Parks (Parks) discussed whether the
third shift 11:00 p.m. to 9:00 a.m. schedule could be modified
in an effort to find an alternative that Darnell might accept
that would also comply with business needs. They came up with
two potential options. One option was a 3:00 a.m. to 1:00 p.m.
shift for Darnell that would also entail adjusting the schedule
of a second shift maintenance supervisor to stay later until
Darnell arrived. Another alternative was to permit Darnell, if
he preferred, to take a non-management maintenance technician
position on the first shift and Tyson would hire a maintenance
supervisor for the third shift. Edwards was advised of and
approved the potential alternatives to be offered.
On April 24, 2010, a second meeting was held, with Edwards,
Joy, Parks, and Darnell present. Darnell was provided with the
other two options as alternatives to the 11:00 p.m. start time.
Darnell was advised to let them know his decision on Monday,
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April 26, 2010. Darnell said “There ain’t no way in hell I’m
going to do that” and walked out of Edwards’ office and slammed
the door behind him. (J.A. 121). After leaving the meeting,
Darnell told several hourly maintenance employees: “These damn
fools think I’m going to go third shift.” (J.A. 128). This was
the last shift Darnell worked at the Monroe Plant.
On April 26, 2010, rather than advising Tyson of his
decision, Darnell informed Joy: “I got five weeks’ vacation. I
want two of them right now.” (J.A. 124-25). Regarding
Darnell’s decision to continue employment, Darnell told Joy:
“I’ll let you know what I think about it when I come back.”
(J.A. 126). Darnell was granted the two-week vacation request
until May 10, 2010.
On May 10, 2010, Darnell met with Parks and informed him
that he was not going to adjust his schedule. Darnell resigned
and left the Monroe Plant. At the time of his resignation,
Darnell was sixty-three years old. After Darnell’s resignation,
Tyson temporarily adjusted the schedules of its four other
maintenance supervisors by extending their working hours to
twelve-hour shifts for over seven months while a search for a
replacement was performed. Kevin Shaw was hired to become the
third shift maintenance supervisor in December 2010. Shaw was
fifty-seven years old at the time he was hired.
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On September 22, 2011, Darnell sought relief under the ADEA
by filing a complaint in the United States District Court for
the Western District of North Carolina. Following the close of
discovery, Tyson filed a motion for summary judgment, which the
district court granted on December 7, 2012. The district court
concluded that Darnell could not establish a prima facie case of
age discrimination because he failed to offer sufficient
evidence to demonstrate that: (1) the proposed reassignment
constituted an adverse employment action; (2) he was
constructively discharged; and (3) he was replaced by a
substantially younger individual.
This timely appeal followed.
II
A
We review the district court’s grant of summary judgment de
novo. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d
277, 283 (4th Cir. 2004). “[S]ummary judgment is proper ‘if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.’”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.
R. Civ. P. 56(c)). Rule 56 mandates the entry of summary
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judgment if the nonmoving party, after a reasonable time of
discovery, “fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Id.
at 322. “[A] complete failure of proof concerning an essential
element of the nonmoving party’s case necessarily renders all
other facts immaterial [and] [t]he moving party is entitled to a
judgment as a matter of law.” Id. at 323 (internal quotation
marks omitted).
B
The ADEA forbids “an employer . . . to discharge any
individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s age.” 29 U.S.C.
§ 623(a). Absent direct evidence of intentional discrimination,
we analyze ADEA claims under the burden-shifting framework
established for Title VII claims in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Warch v. Ohio Cas. Ins. Co., 435
F.3d 510, 513–14 (4th Cir. 2006). Under this framework, Darnell
must first establish a prima facie case of age discrimination by
a preponderance of the evidence. Id. at 513. To establish a
prima facie case of age discrimination, Darnell must demonstrate
that: (1) he is a member of a protected class; (2) he suffered
an adverse employment action; (3) he was performing his job
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duties at a level that met his employer’s legitimate
expectations at the time of the adverse employment action; and
(4) the position remained open or was filled by a similarly
qualified applicant outside the protected class. Hill, 354
F.3d at 285.
If a prima facie case is established, the burden shifts to
Tyson to demonstrate “a legitimate, nondiscriminatory reason”
for the adverse employment action. Warch, 435 F.3d at 513–14.
If Tyson meets this burden, “the presumption of discrimination
created by the prima facie case disappears from the case and the
plaintiff must prove that the proffered justification is
pretextual.” Id. at 514 (internal quotation marks omitted).
We agree with the district court that Darnell failed to
establish a prima facie case of age discrimination because there
was no adverse employment action. In James v. Booz-Allen &
Hamilton, Inc., 368 F.3d 371 (4th Cir. 2004), we stated that
“absent any decrease in compensation, job title, level of
responsibility, or opportunity for promotion, reassignment to a
new position commensurate with one’s salary level does not
constitute an adverse employment action even if the new job does
cause some modest stress not present in the old position.” Id.
at 376 (citation, alterations, and internal quotation marks
omitted).
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It is undisputed that Darnell’s salary, benefits, job
title, and promotion opportunities were not threatened by the
proposed reassignment. He testified at his deposition that his
job duties “would be basically the same,” but that he would be
working at “a different time.” (J.A. 136). Moreover, the
duration of the new shift was not longer than the duration of
his first-shift schedule. In short, the change in time, without
any change to Darnell’s terms and conditions of employment, does
not constitute an adverse employment action. Id. Because
Darnell cannot demonstrate that the proposed reassignment was an
adverse employment action under the ADEA, the district court
correctly granted Tyson’s motion for summary judgment. *
III
For the reasons stated herein, the judgment of the district
court is affirmed. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
*
Because Darnell cannot demonstrate that the proposed
reassignment was an adverse employment action, we need not
decide the issues of whether Darnell was constructively
discharged or whether he was replaced by a substantially younger
individual.
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