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Branson v. Valu Merchandisers Co.

United States District Court, D. Kansas

February 3, 2015

Albert E. Branson, Jr. Plaintiff,
Valu Merchandisers Company and Associated Wholesale Grocers, Inc., Defendants.


JOHN W. LUNGSTRUM, District Judge.

Plaintiff Albert E. Branson, Jr. filed this lawsuit against defendants asserting violations of the Age Discrimination in Employment Act, 29 U.S.C. ยง 621 et seq. This matter is presently before the court on defendants' motion for summary judgment on all claims (doc. 47).[1] As explained below, the motion is granted in part and denied in part.

I. Facts

The following facts are uncontroverted or related in the light most favorable to plaintiff as the nonmoving party. Defendant Valu Merchandisers Company ("VMC") is a wholly-owned subsidiary of defendant Associated Wholesale Grocers, Inc. ("AWG"). VMC supplies health and beauty care products, general merchandise and specialty food products to nearly three thousand stores worldwide. AWG is a supplier of traditional grocery products such a fresh meat and produce, dry and canned food goods, dairy products, frozen foods and bakery goods.

Since 1972, AWG has maintained its headquarters at 5000 Kansas Avenue in Kansas City, Kansas. Beginning in 1994, shortly after its incorporation, VMC maintained its headquarters on Westport Road in Kansas City, Missouri. In 2011, defendants decided to relocate VMC's headquarters to AWG's facility in Kansas City, Kansas. The Westport facility was sold and vacated in August 2011. At that time, VMC moved to temporary headquarters in the Corporate Woods office complex in Overland Park, Kansas during construction of its new space in AWG's headquarters. In November 2012, VMC moved into its present headquarters at AWG's Kansas Avenue facility.

Plaintiff Albert E. Branson, Jr. began working for AWG in 1993 as a retail clerk cashier. In 1998, plaintiff transferred to VMC to work as a clerk in the mail room. In 2002, plaintiff was promoted to the position of Facilities Coordinator. In that role, plaintiff was supervised by Alex Valverde who, in turn, reported to Kenneth Nemeth, VMC's president and CEO. As VMC's facilities coordinator, plaintiff was responsible for all repairs and maintenance issues at VMC's Westport facility. Plaintiff's duties also included mail sorting and distribution; stocking the break room; photographing new product; setting up cubicles; and assisting with trade shows. When VMC moved to its temporary headquarters in Corporate Woods, plaintiff's duties changed somewhat because Corporate Woods provided facilities management such that plaintiff, for example, was no longer required to address HVAC or plumbing issues. Nonetheless, defendants found plaintiff enough additional tasks to keep him busy for 40 hours each work week and he was retained as VMC's facilities coordinator throughout the time that VMC was headquartered in Corporate Woods.

In February 2012, Mr. Nemeth advised plaintiff that the VMC Facilities Coordinator position, in all likelihood, would be eliminated once VMC moved to AWG's headquarters because AWG already had employees working in facilities management. There is some testimonial inconsistency about who made the decision that plaintiff's position would be eliminated in VMC's move to 5000 Kansas Avenue, but it appears that Mr. Nemeth determined that there was no position available for plaintiff on the VMC side and that Jerry Garland, AWG's president and Mike Rand, AWG's Chief Operating Officer, determined that plaintiff was not needed as a Facilities Coordinator at the AWG facility. Plaintiff realized that AWG had someone else employed in the Facilities Coordinator position at the AWG facility, but he was hopeful that he would secure another job with VMC or AWG before the move to the AWG facility. In March 2012, plaintiff formally sought a Shelf Management Analyst position with AWG but he was not selected for that position. In April 2012, when plaintiff realized that his position was the only position scheduled for elimination in the move, plaintiff asked Mr. Valverde and Linda Choate, an executive secretary for VMC who also performed limited functions in human resources, whether he was being "singled out" in light of his age. According to plaintiff, he made that inquiry on other occasions to Ms. Choate and Mr. Valverde after April 2012.

In November 2012, VMC posted a job opening for the position of Merchandising Assistant. Plaintiff was interested in the position and he spoke with Jim Binning, the hiring manager for the position. Mr. Binning told plaintiff that he believed plaintiff would be well suited for the position. Consistent with the stated directive on the job posting, plaintiff contacted Ms. Choate, the only person at VMC who performed human resources functions, and told her that he "would like to apply for the job." Ms. Choate acknowledged his interest, but did not set up an interview for plaintiff with Mr. Binning and did not follow up with plaintiff regarding the position.

During this same time frame, VMC completed its move to AWG's facility and Susan Ott, AWG's Vice President of Corporate Human Resources, was putting together a severance package and separation agreement for plaintiff in light of the elimination of the facilities coordinator position. Plaintiff, in the course of a conversation with Ms. Ott about the terms of the severance package, mentioned to Ms. Ott that he was interested in the Merchandising Assistant position. According to plaintiff, Ms. Ott initially told him that she thought it was a "great" idea and would save her from having to complete the separation agreement. When plaintiff met with Ms. Ott later that same day, however, Ms. Ott told him that he was not qualified for the position and would not be considered for it. Ultimately, defendants hired a younger, external candidate for the Merchandising Assistant position. Because he had not secured another position within AWG or VMC, plaintiff's employment was terminated in late November 2012. Plaintiff was fifty-one (51) years old at the time.

Additional facts will be provided as they relate to the specific arguments raised by the parties in their submissions.

II. Summary Judgment Standard

"Summary judgment is appropriate if the pleadings, depositions, other discovery materials, and affidavits demonstrate the absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Water Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1136, 1143 (10th Cir. 2013) (quotation omitted); see Fed.R.Civ.P. 56(a). A factual issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Water Pik, Inc., 726 F.3d at 1143 (quotation omitted). "The nonmoving party is entitled to all reasonable inferences from the record; but if the nonmovant bears the burden of persuasion on a claim at trial, summary judgment may be warranted if the movant points out a lack of evidence to support an essential element of that claim and the nonmovant cannot identify specific facts that would create a genuine issue." Id. at 1143-44.

III. Whether Defendant AWG is Plaintiff's Employer

It is undisputed that plaintiff was employed by defendant VMC. The parties do dispute whether plaintiff was also employed by AWG. See Knitter v. Corvias Military Living, LLC, 758 F.3d 1214, 1225 (10th Cir. 2014) (To make out a prima facie case of discrimination, a plaintiff must first prove that the defendant was his or her employer.). According to plaintiff, AWG is a proper defendant in this lawsuit because AWG and VMC operated as an integrated enterprise (or "single employer") or, in the alternative, that AWG and VMC jointly employed him. As will be explained, plaintiff has come forward with sufficient evidence to ...

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