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T-140 P.004/00e F-990

A. LUIS LUCERO, JR., REGIONAL ATIORNEY

KATHRYN OLSON, SUPERVISORY TRIAL ATIORNEY

TERI HEALY, SENIOR TRIAL ATIORNEY

TERI.HEALY@EEOC.GOV

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

909 FIRST AVENUE, SUITE 400

SEATTLE, WASHINGTON 98104

TELEPHONE:

(206) 220-6916

FACSIMILE:

(206) 220-6911

'u1 ..S... rv·r_!.~l~Rtl TS 10ns SEP I 4 PII 4: ! 3

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

vs.

)

)

KIMBALL INTERNATIONAL, INC., dba

)

FLEXCEL,

)

)

Defendant.

)

-----------------------------)

ue CaseelWi!o.0_5 -_3_71 - S-
COMPLAINT JURY DEMAND

NATURE OF THE ACTION

This is an action under the Age Discrimination in Employment Act of 1967, as

amended, 29 U.S.C. section 621 et seq. ("ADEA"), to correct unlawful employment

practices on the basis of age and to provide appropriate relief to Robert Zychek. The

Equal Employment Opportunity Commission ("EEOC') alleges that Kimball International,

COMPLAINT-I'ngelorS

EQUAL EMPLOYMENT OPPORTUNITY COMMiSSION 9U9 }1RST i\VENUE, SUITE 4UU
SEATfLE, WASHll'iG"l'ON 981114-1061
Telephone (206) 220-<>883
fnx (206) 220.0911
TDD (206) ll().<;88:'

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206 220 6911

T-140 P.005/00B F-990

Inc., doing business as Flexcel ("defendant"), discriminated against Mr. Zychek because of his age, including terminating him in April 2003.
JURISDICTION AND VENUE 1. Jurisdiction ofthis Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuantto Section 7(b) of the ADEA, 29 U.S.C. § 626(b), which incorporates by reference Sections 16(c) and 17 ofthe Fair Labor Standards Act of 1938 (the "FLSA"), as amended, 29 U.S.C. §§ 216(c) and 217. 2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the District of Idaho.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of the ADEA and is expressly authorized to bring this action by Section 7(b) of the ADEA, 29 U.S.C. § 626(b), as amended by Section 2 of Reorganization Plan No.1 of 1978, 92 Stat. 3781, and by Public Law 98532 (1984), 98 Stat. 2705. 4. At all relevant times, defendant (or the "employer") has continuously been a corporation doing bUSiness in the State of Idaho and has continuously had at least 20 employees. 5. At all relevant times, defendant has continuously been an employer

COMl'LAINT- rag. 2 or 5

EQUAL EMPLOYM£NT OPPO~TUNITY COMMISSION 909 FIRST AVENUE, !jIlITE 400
SEATILE, WASHINGTON '8104-1061 Telephone (206) 220.('883 Fax (206) 220·6911 TDil (206)220-6882

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engaged in an industry affecting commerce within the meaning of Sections 11 (b), (g)
and (h) of the ADEA, 29 U.S.C. §§ 630(b), (g) and (h). 6. Prior to institution of this lawsuit, the Commission's representatives
attempted to eliminate the unlawful employment practices alleged below and to effect
voluntary compliance with the ADEA through informal methods of conciliation, conference and persuasion within the meaning of Section 7(b) of the ADEA, 29 U.S.C. §
626(b). STATEMENT OF CLAIMS
7. The defendant engaged in unlawful employment practices at its Post Falls,
Idaho facility, in violation of Section 4(a)(1) of the ADEA, 29 U.S.C. § 623(a)(1),
including tenninating Mr. Zychek on or about April 25, 2003, because of his age, then 59.
8. The effect of the practices complained of in paragraph 7 above has been to deprive Mr. Zychek of equal employment opportunities and otherwise adversely affect his status as an employee because of his age.
9. The unlawful employment practices complained of in paragraphs 7 and 8
above were willful within the meaning of Section 7(b) of the ADEA, 29 U.S.C. § 626(b).
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining defendant, its officers, successors, assigns and all persons in active concert or participation with it, from terminating

COMPLAINC - Pnge 3 or5

EQUAL EMPL01lMENT OPPORTUNITY COMMISSION 909 FIRST AVENUE. SUITIi: 400
SEA~-rLE. WASHINGTON 98104-1061
Telephono (20G) 220-6883 Fa. (206) 220.6911
TDn (206) 220-6882

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T-140 P.007/00B F-990

individuals because of their age, and from committing any other employment practice which discriminates on the basis of age against individuals 40 years of age and older.
B. Order defendant to institute and carry out policies, practices and programs which provide equal employment opportunities for individuals 40 years of age and older, and which eradicate the effects of its past and present unlawful employment practices.
C. Grant a judgment requiring defendant to pay appropriate back wages in an
amount to be determined at trial, and an equal sum as liquidated damages, and
prejudgment interest to Mr. Zychek, whose wages are being unlawfully withheld as a result of the acts complained of above.
D. Order defendant to make whole Mr. Zychek, who is adversely affected by the unlawful practices described above, by providing the affirmative relief necessary to eradicate the effects of its unlawful practices, including but not limited to front pay.
E. Grant such further relief as the Court deems necessary and proper in the public interest.
F. Award the Commission its costs of this action.
II! III III III III

COMPLAINT - Pnge 4 of 5

EQUAL EMPLOYMENf OPPORTUNITY COMMISSION 909 FIRST AVENUE, S\J1TE 400
SEATTLE, WASJ{lNCTON 98104-1061
Teleph••• (206) 220·6883 Fa. (206) 220-6~11
TDD (206) 220-68aZ

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T-140 P.OOB/OOB F-990

JURY TRIAL DEMAND

The Commission requests a jury trial on all questions offact raised by its

complaint.

DATED this 14th day of September, 2005

A. LUIS LUCERO, JR. Regional Attorney KATHRYN OLSON Supervisory Trial Attorney TERI HEALY Senior Trial Attorney

JAMES L. LEE
Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel

EBQYU: 7A~L=7.~P~LO~Y~~N~T~~~~
OPPO TUNlTY COMMISSION Seattle District Office 909 First Avenue, Suite 400 Seattle, WA 98104 (206) 220-6916

Office of the General Counsel 1801 "L" Street NW Washington, D.C, 20507

Attorneys for Plaintiff

COMPlAlNT - Page 5 of 5

EQUAL EMPLOYMENT OPPORT\JNITlI COMMISSION 909 FIRST AVENUE, SlJITE 400
SEATTLE, \vASF/INGTON 98104-1061 TeI.pbone (206) 220-6883 Fa. (206) 220-6911
TDD (:>06) 120-<;882

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION,

)

)

Plaintiff, )

vs.

)

KIMBALL INTERNATIONAL, INC., dba FLEXCEL,
Defendant.

) ) ) )

Case No. CIV 05-371-N-EJL MEMORANDUM ORDER

Pending before the C ourt in the above-en titled matter are the D efendant’s motion for

summary judgment and Defendant’s motion to strike. The parties have filed responsive briefing

and the matters are now ripe for the Court’s revi ew. Having fully reviewed the record her ein,

the Court finds that the facts and legal argum ents are adequately presented in the brief s and

record. Accordingly, in the interest of

avoiding further delay, and because the Cour t

conclusively finds that the decisional process w ould not be significantly aided by oral argument,

these motions shall be decided on the record be fore this Court without oral argum ent. L ocal

Rule 7.1.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, Equal Employment Opportunity Commission (“EEOC”), has filed a complaint

in this matter alleging the Def endant, Kimball International, Inc. (“Kimball”) doing business as

“Flexcel,” violated Title VII of t he Civil Rights Act of 1964, the Age Discrim ination in

Employment Act of 1967, as am ended, 29 U.S.C. § 621 et seq. (“ADEA”). Specifically, the

complaint alleges Kimball engaged in unlawful age discrim ination when it fired Robert Zychek,

age 59 at the tim e of termination, under the guise of a reduction in force program. Kimball has

MEMORANDUM ORDER

1

filed the instant motion for sum mary judgment arguing the term ination of Mr. Zychek was a legitimate reduction in force (“RIF”) event.
SUMMARY JUDGMENT STANDARD Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure, which provides, in pertinent part, th at judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and adm issions on file, together with the affidavits, if any, show that there is no genuine issue as to any m aterial fact and that the m oving party is entitled to a judgm ent as a m atter of law.” Fed. R. Civ. P. 56(c) . Under Rule 56 summary judgment is m andated if the non-m oving party fails to m ake a showing sufficient to establish the existence of an element which is essential to the non-moving party’s case and upon which the non-moving party will bear the burden of proof at tri al. See Celotex Corp v. Catrett , 477 U.S. 317, 322 (1986). If the non-m oving party fails to m ake such a showing on a ny essential element, “there can be no ‘genuine issue of m aterial fact,’ since a com plete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. at 323.1 Moreover, under Rule 56, it is clear that an i ssue, in order to preclude entry of sum mary judgment, must be both “m aterial” and “genuine.” An i ssue is “m aterial” if it affects the outcome of the litigation. An issue, be fore it may be considered “genuine,” must be established by “sufficient evidence supporting the claim ed factual dispute . . . t o require a jury or judge to

1 See also, Rule 56(e) which provides, in part:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

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resolve the parties’ differing versions of the truth at trial.” Hahn v. Sargent , 523 F.2d 461, 464 (1st Cir. 1975) (quoting First Nat'l Bank v. Cities Serv. Co. Inc., 391 U.S. 253, 289 (1968)). The Ninth Circuit cases are in accord. See, e.g. , British Motor Car Distrib. v. San Francisco Automotive Indus. Welfare Fund, 882 F.2d 371 (9th Cir. 1989). W hen applying this standard, the court m ust view all of the evidence in a light m ost favorable to the non-m oving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Hughes v. United States , 953 F.2d 531, 541 (9th Cir. 1992).
Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. Abordo v. Potter , 2006 WL 2434197 *8 (N.D. Cal. 2006) (citing Thornhill Publishing Co, Inc v. GTE Corp , 594 F.2d 730, 738 (9th Cir. 1979). Hearsay statem ents in affidavits are inadm issible. Id. (citing Japan Telecom , Inc v. Japan Telecom America Inc., 287 F3d 866, 875 n. 1 (9th Cir. 2004).
DISCUSSION The ADEA directs that em ployers may not “ fail or refuse to hire or...discharge any individual [who is at least forty years old] or otherwise discriminate against any individual with respect to hi s compensation, terms, conditions, or privileges of em ployment, because of such individual's age.” 29 U.S.C. § 623(a)(1). There are “two theories of employment discrimination: disparate treatment and disparate im pact.” Enlow v. Salem -Keiser Yellow Cab, Inc. , 389 F.3d 802, 812 (9th Cir. 2004), cert. denied 544 U.S. 974 (2005) (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993). The EEOC’ s claim here is one f or disparate treatment. “Disparate treatment is dem onstrated when [t]he em ployer simply treats some people less favorably than others because of their race, color, religion [or other protected charact eristics].” Id. (internal quotations and cit ations omitted). The Suprem e Court has instructed that “liability [in a

MEMORANDUM ORDER

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disparate treatment claim] depends on whethe r the protected trait (under the ADEA, age) actually motivated the employer's decision.” Id. (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)). Thus, “the plainti ff's age must have actually played a role in [the employer's decision-making] process and had a dete rminative influence on the outcom e.” Id. (citation omitted).
Plaintiff can prove its prim a facie case by eith er direct evidence of discriminatory intent or based on a presumption arising from the factors set forth in the McDonnell Douglas burden shifting analysis utilizing circumstantial evidence. See Wallis v. J.R. Simplot, 26 F.3d 885, 889 (9th Cir. 1994). Here, the EEOC has alleged both.2 1) Direct Evidence:
Where discrimination is proven by direct evid ence it negates the need to engage in the McDonnell Douglas burden shifting analysis. See Enlow, 389 F.3d at 812 (citation om itted). “Direct evidence, i n the context of an ADEA claim, is defined as evidence of conduct or statements by pe rsons involved in the decision-m aking process that m ay be viewed as directly reflecting the alleged discriminatory attitude...sufficient to permit the fact finder to infer that the attitude was more likely than not a m otivating factor in the employer’s decision.” Id. (emphasis in original) (citation omitted).
The EEOC argues Kimball fired Mr. Zychek in April of 2003 because of his age, not the RIF. In support of this claim , the EEOC maintains it has direct evidence of the age discrimination based on two incidents. The first incident occurring when “Cell Manager Cathy

2 Kimball has filed a motion to strike the EEOC’s statement of facts arguing the manner in which it was filed violates the applicable rules and without it the EEOC has failed to demonstrate the existence of a genuine issue of material fact. The Court has reviewed the motion and finds the EEOC’s filing of its statement of facts in support of its motion for summary judgment is not technically consistent with Local Civil Rule 7.1(c)(2). This submission, however, has not impacted the Court’s decision on summary judgment and, therefore, the motion to strike is deemed moot.

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Fleetwood told Phil Stucke, lead, and Russ St. Ge rmain, backup Lead, approximately less than a

year before the April, 2003 RIF that Flexcel needed to fire Zychek and hi re someone ‘younger’

who could work at 100% ef ficiency.” (Dkt. N o. 28, p. 4). The second in cident alleged by the

EEOC is that “During the sam e time period, Stucke m ade repeated derogatory comments about

Zychek’s age and his ability to work.” (Dkt. No. 28, p. 4). These statem ents, EEOC argues, are

direct proof of discrim inatory animus because they were m ade by Ms. Fleetwood, who was the

“key decisionmaker” in selecting Mr. Zychek for termination and by Mr. Stucke who “mirrored”

Ms. Fleetwood’s age bias. (Dkt. No. 28, p. 4). Ki mball contends that these “incidents” were

merely stray rem arks and insufficient to establish a violation of the ADEA be

cause the

comments were made almost a year before the RI F and were not made in connection to the RIF,

thus, they do not qualify as direct evidence. The Court agrees.

The incidents cited by the EEOC here do not, as a m

atter of law, di rectly prove

discrimination by Kim ball so as to defeat Kimball’s motion for sum mary judgment. Even

assuming the facts are as the EEOC alleges, the comments lack a tem poral and contextual

connection to Mr. Zychek’s termination such that the fact finder could infer that a discriminatory

attitude was more likely than not a m otivating factor in Kim ball’s decision to term inate Mr.

Zychek. Therefore, the Court must employ the McDonnell Douglas burden shifting analysis.

2) McDonnell Douglas Burden Shifting Analysis:

“To establish a prim a facie ADEA case using circum stantial evidence, employees must

demonstrate that they were: (1) m embers of the protected class, that is, at least age 40; (2)

performing their jobs satisfactorily; (3) disc harged; and (4) replaced by substantially younger

employees with equal or inferior qualifications.” Col eman v. The Quaker Oats Co. , 232 F.3d

1271, 1281 (9th Cir. 2000). “W here, as here, the discharge in question results f rom a general

MEMORANDUM ORDER

5

reduction in workforce, [plaintiffs] need not show that they were replaced; rather they need show through circumstantial, statistical, or direct evidence that the discharge occurred under circumstances giving rise to a n inference of age discrim ination. This inference can be established by showing the employer had a continuing need for [their] skills and services in that [their] various duties were still being perf ormed’ or by showing that others not in [ their] protected class we re treated more favorably.” Colem an, 232 F.3d at 1281 (citations and quotations omitted).
“[I]f an em ployee presents pr ima facie circum stantial evidence of discrim ination, the burden shifts to the em ployer to produc[e] evidence that the plaintiff was rejected, or som eone else was preferred, for a legitim ate, nondiscriminatory reason.” Enlow , 389 F.3d at 813. The burden then reverts back to the plaintif f to establish that the def endant’s legitimate nondiscriminatory reason for term ination was m erely pretext that discrim ination more likely motivated its decision to terminate. See Pottenger v. Potlatch Corp., 329 F.3d 740, 747 (9th Cir. 2003).
a) Prima Facia Case: For purposes of t his motion, the parties appear to agree on each of the elem ents of the prima facia case with the exception of the second, that Mr. Zychek wa s performing his job satisfactorily. Kimball points to several work evaluations for Mr. Zychek reflecting that he was slow and failed to m eet work productivity expectations. Kim ball notes it was forced to assign Mr. Zychek to a particular machine, the Feldm an machine, because he was too slow on other equipment and m achines in the departm ent and t hat other em ployees frequently com plained about his slowness. The EEOC m aintains that Mr. Zychek’s poor work perform ance evaluations were not objective, reli able, or accurate; asserting the productivity m easure set by

MEMORANDUM ORDER

6

Kimball was flawed because: 1) it was based on em ployees’ daily reports which were routinely falsified by em ployees and whi ch Kimball never checked to ensure accuracy and 2) the productivity reports failed to account for unexpec ted delays in set up or breakdowns of the machines. Kimball counters noting that the EEO C does not dispute that Mr. Zychek was slow and contends that any flaws in the productivity and efficiency m easures were not targeted at disadvantaging older employees but that any flaws impacted all employees equally.
In viewing the e vidence in the light m ost favorable to the non-m oving party, the Court concludes that the EEOC has failed to dem onstrate an element of the prima facie case; that Mr. Zychek was perform ing his job satisfactorily. Kimball has brought forth evidence that Mr. Zychek was slow in his job re sulting in com plaints from co-workers and poor perform ance evaluations. Under Celotex the burden on sum mary judgment then shifts to the non-m oving party to make a showing a s to an essential element upon which it bears the burden of proof at trial. See Celotex, 477 U.S. at 322. The EEOC does not dispute that Mr. Zychek was slow in his work but instead has contested the manner in which Kimball evaluated job performance and set performance goals. As Kimball points out, even if the evaluations were flawed as the EEOC has argued, they were flawed as to all em ployees regardless of their ag e. The EEOC does not contend that the faulty evaluations were not faulty because of age discrim ination but due to poor management and oversite. The Court concludes the evidence would not support a jury’s finding that Mr. Zychek was perf orming his job satisfact orily. As such, the Court will grant Kim ball’s motion for sum mary judgment. Alternatively, we re the Court to conclude that the EEOC has met the requirem ents for a prim a facie case, thereby shif ting the burden to Kim ball to demonstrate a legitim ate nondiscriminatory reason f or its term ination of Mr. Zychek, the decision on the motion would remain the same.

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b) Legitimate Reason: Kimball argues Mr. Zychek was fired as a result of a reduc tion in force and not based on any discriminatory motive. “A reduction-in-force is itself a legitimate nondiscriminatory reason for laying off an em ployee.” Coleman, 232 F.3d at 1282. Thus , the burden shifts back to the EEOC to show pretext. c) Pretext: The issue now turns to whether the EEOC ha s produced sufficient evidence to raise a triable issue of fact as to whether the reasons proffered by Kimball for terminating Mr. Zychek’s employment were a pretext for discrimination. “A plaintiff ‘may prove pretext either directly by persuading the court that a di scriminatory reason m ore likely m otivated the em ployer or indirectly by showing that the em ployer’s proffered explanation is unworthy of c redence.’” Bodett v. Coxcom, Ind., 366 F.3d 736, 743 (9th Cir. 2004) (citing Raad v. Fairbanks North Star Borough School Dist., 323 F.3d 1185, 1196 (9th Cir. 2003) (citation om itted)). The evidence proffered can be circumstantial or direct. Id. (citing Godwin v. Hunt W esson, Inc., 150 F.3d 1217, 1221-22 (9th Cir. 1998)). “W hen the plaintif f offers direct evidence of discriminatory motive, a triable issue as to the actual m otivation of the employer is created even if the evidence is not substantial.... Direct evidence is ev idence, which, if believed, proves the fact of discriminatory animus without inference or presum ption.” Id. at 744 (citation om itted). “[W]here direct evidence is unavailable, how ever, the plaintiff m ay come forward with circumstantial evidence ... to show that the em ployer’s proffered m otives were not the actual motives because they are inconsistent or otherwise not believable. Suc h evidence ... m ust be ‘specific’ and ‘substantial’ in order to create a triable issue with respect to whether the em ployer intended to discriminate on the basis of [a prohibited ground].” Id. (citation omitted).

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Though a plaintiff m ay rely upon the sam e evidence used to establish t he prima facie case, they must do more than simply deny the defendant’s stated justification for the termination and they must offer “specific substa ntial evidence of pretext.” Colem an, 232 F.3d at 1282 (quoting Wallis, 26 F.3d at 890). To satisfy its burden, a plaintiff m ust “produce enough evidence to allow a reasonable factfinder to concl ude either: (a) that t he alleged reason for [the] discharge was false, or (b) that the true reason for his discharge was a discrim inatory one.” Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918 (9th Cir. 1996).
Here, the EEOC points again t o its “direct evidence” of discrim ination in addition to other allegations that the RIF was not the m otive for Mr. Zychek’s term ination. In challengi ng the genuineness of the RIF, the EEOC points to Ki mball’s shifting explanations for the RIF and argues Kimball failed to establish cost savings goals or targets to be achieved in the RIF, f ailed to evaluate any data before stating the num ber of em ployees to be term inated, and failed to properly evaluate the three criteria used for selecting employees for the RIF – essentially leaving the selection deci sions to Ms. Fleetwood and Arturo Cam pos. In evaluating Mr. Zychek, the EEOC argues Ms. Fleetwood and Mr. Campos improperly applied the skill sets evaluation by not crediting him for skills he possessed and failing to review his personnel file. I n addition, the EEOC notes that Kim ball retained a younger em ployee, Eric Pederson, regardless of his poor past conduct and attendance problems and that Kimball began rehiring workers only about six to eight weeks after the RIF – hiring m uch younger temporary workers which dem onstrates there was a continuing need f or Mr. Zychek’s skills. The EEOC also of fers the affidavit of a former employee, Russell St. Germ ain, who stated that he believed that Mr. Zychek was denied other jobs at Kim ball because of his age. M r. Zychek notes that he applied for more than twenty positions but was denied each of those positions due, he believes, to his age. Kim ball maintains

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9

that its discharge of Mr. Zychek was based on the RIF skill sets analysis and the f act that he was the slowest employee in his department, not any discriminatory animus.
The evidence of pretext offered by the EEOC fails to dem onstrate that Kimball’s reasons for Mr. Zychek’s termination were pretextual. As the Court determ ined above, the statements of Ms. Fleetwood and Mr. Stucke are not direc t evidence of discrim ination. These alleged discriminatory statements were not linked t o the RIF or Mr. Zychek’s term ination either in time or context. Further, the EEOC has failed to present other “specific and substantial evidence” creating a triable issue with respect to whe ther the employer intended to discrim inate on the basis of age. Coleman, 232 F.3d at 1282. The EEOC’s case is based upon: 1) statem ents made nearly a year before the RIF, 2) the flawed perform ance evaluations, 3) observations of a form er employee, 4) the application of the RIF skill se ts analysis, 5) the retention and rehiring of younger workers, and 6) the denial of other pos itions to Mr. Zychek. The proffered evidence does not satisfy the EEOC’s burden. Stated again, to satisfy its burden, a plaintiff must “produce enough evidence to allow a reasonable factfinder to conclude either: (a) that the alleged reason for [the] discharge was false, or (b) that the true reason for his discharge was a discrim inatory one.” Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918 (9th Cir. 1996).
Kimball’s stated reason for term inating Mr. Zychek was the RIF which empl oyed three criteria for determining which employees to lay o ff: skill sets, perf ormance, and service. (Dkt. No. 30, Ex. 33). As to Mr. Zychek in pa rticular Kimball maintains that he was selected for termination in the RIF based on his lack of skill sets and his slow perform ance, productivity and efficiency. (Dkt. No. 30, Ex. 33). Each of th e management individuals deposed consistently testified that the goal of the RIF was to retain those employees with valuable skill sets who were productive so as to be able to m eet the reduced volume demands with fewer employees. (Dkt.

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No. 20, Depositions of Kenneth Freem an, Debra Williams, and Cathy Fleetwood). The EEOC argues that Kimball improperly applied the skill sets determ ination for the RIF to Mr. Zychek and had he been given credit for his actual skills, his seniority in the company would have meant he would be retained over younger employees. The evidence pointed to by the EEOC, however, does not create a t riable issue with respect to whether the em ployer’s true m otivation was discrimination.
At best, the EEOC’s criticism of Kimball’s management and em ployment of the RIF challenge the m anagement decisions made by Kim ball but do not allege discrim ination. The EEOC’s arguments made regarding the flaws in performance evaluations reflect only that while they may be flawed, they are flawed across the board as to all em ployees regardless of age. The same is true of the application of the skill sets analysis f or the RIF. The EEOC points to the retention of a particular younger em ployee, Eric Pederson, who had various disciplinary reports and also to the fact that “within weeks after the RIF” Kim ball began hiring younger em ployees. Even taking the se facts as true, they do not pres ent substantial evidence of pretext. Kim ball management stated in their de positions that the application of the skill set f or RIF was based primarily upon retaining those skills which Kim ball would need in order to m eet the volum e demands with f ewer employees and that Mr. Pederson had particular skills necessary to accomplish that objective. The EEOC does not dispute Mr. Pederson had valuable skills but, instead, argues Kimball should have considered Mr. Pederson’s past disciplinary reports. This is not an aged based argum ent but, instead, a cha llenge to Kim ball’s process of analysis for determining who would be subject to the RIF and an argum ent that Mr. Zychek was a be tter employee than Mr. Pederson. Sim ilarly, the fact that approxim ately six weeks after the RIF, Kimball began rehiring “much younger” employees does not raise an inference of discrimination

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11

or demonstrate pretext for the firing of Mr. Zyche k.3 The depositions of Kimball’s management

reflects that the rehiring occurred as a result of an increase in volum e. In addition, as Kim ball

points out and the EEOC does not dispute, 55% of the workers rem aining after the RIF were at

least forty years old and of the eleven workers re hired after the RIF, five of them , or 45%, were

at lease forty year s old.4 (Dkt. No. 35, p. 6). Based on the foregoing, the Court concludes that

the EEOC has failed to provide sufficient e vidence of pretext or an inference of discrim ination

and the motion for summary judgment should be granted.

ORDER

THEREFORE IT IS HEREBY ORDERED that Defendant’s Motion for Sum

mary

Judgment (Dkt. No. 17) is GRANTED. The Defe ndant’s motion to strike (Dkt. No. 34) is

MOOT.

DATED: February 1, 2007

Honorable Edward J. Lodge U. S. District Judge

3 While true the fact that the company began rehiring employees after the RIF for the same positions Mr. Zychek was performing indicate that the company had a continuing need for his skills and services, this question goes to meeting the fourth element of the prima facie case not pretext.
4 The EEOC does argue that although three of the employees retained in the RIF were over forty years old, they were all substantially younger than Mr. Zychek and age discrimination still exists even where one person has lost out to another person in the protected class. While this is true, it is still necessary for the asserting party to show that the person lost out of the job because of their age. See O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996). The EEOC has not demonstrated that there is evidence upon which a jury could infer that Mr. Zychek was terminated because of his age. Even taking the three people over forty who were retained but substantially younger than Mr. Zychek, the fact remains that nearly half of the workers retained by the RIF were over forty years old.

MEMORANDUM ORDER

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 District of Idaho Live CM/ECF - Docket Report

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APPEAL, NDPLMB
U.S. District Court District of Idaho (LIVE Database)Version 3.0.4 (CDA) CIVIL DOCKET FOR CASE #: 2:05-cv-00371-EJL-LMB

Equal Employment Opportunity Commission v. Kimball International, Inc. Assigned to: Honorable Edward J. Lodge Referred to: Honorable Larry M. Boyle Case in other court: 9th circuit, 07-35403 Cause: 29:621 Job Discrimination (Age)

Date Filed: 09/14/2005 Date Terminated: 02/01/2007 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by A Luis Lucero, Jr EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 909 First Ave #400 Seattle, WA 98104-1061 (206) 220-6915 Fax: (206) 220-6915 Email: luis.lucero@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Freeman Stanley US EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 909 First Ave #400 Seattle, WA 98104-1061 (206) 220-6883 Fax: 1-206-220-6911 Email: john.stanley@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathryn Olson EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 909 First Ave #400 Seattle, WA 98104-1061 (206) 220-6895 Fax: (206) 220-6911 Email: kathryn.olson@eeoc.gov TERMINATED: 11/03/2005 LEAD ATTORNEY

Teri L Healy

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V.
Defendant
Kimball International, Inc. doing business as Flexcel

Equal Employment Opportunity Commission 909 1st Avenue Ste 400 Seattle, WA 98104 (206) 220-6916 Fax: (206) 220-6911 Email: teri.healy@eeoc.gov TERMINATED: 11/03/2005 LEAD ATTORNEY
Wesley Katahira US EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Seattle District Office 909 First Ave #400 Seattle, WA 98104-1061 (206) 220-6883 Fax: 1-206-220-6911 Email: wesley.katahira@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mischelle R Fulgham LUKINS & ANNIS 250 Northwest Blvd #102 Coeur d'Alene, ID 83814 (208) 667-0517 Fax: (208) 667-0517 Email: mfulgham@lukins.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy P Reilly Taft Stettinius & Hollister 425 Walnut St #1800 Cincinnati, OH 45202-3957 (513) 381-2838 Email: reilly@taftlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/14/2005

#

Docket Text

1 COMPLAINT against Kimball International, Inc. Summons Issued, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Civil Cover

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09/16/2005 09/16/2005
09/21/2005
10/13/2005 10/17/2005
10/18/2005
11/03/2005 12/15/2005 12/16/2005
12/16/2005 12/29/2005 12/30/2005 01/11/2006 01/11/2006 01/12/2006

Sheet)(jlg, ) (Entered: 09/16/2005)
2 NOTICE of Case Number Change re 1 Complaint. Old case number CV 05-371-S-LMB, new case number CV 05-371-N-LMB. (jlg, )
3 NOTICE of Assignment to Magistrate Judge and Requirement for Consent sent to counsel for Equal Employment Opportunity Commission re 1 Complaint (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, )
4 ORDER - Parties to discuss Litigation Plan within 60 days. Litigation Plan and consent forms to be filed within 90 days of this order or Plaintiff shall submit a written report advising of the status of this case. Plaintiff shall serve this order on parties not represented on the Court's Certificate of Mailing. Signed by Judge Larry M. Boyle. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, )
5 ANSWER to Complaint by Kimball International, Inc..(Fulgham, Mischelle)
6 NOTICE of Assignment to Magistrate Judge and Requirement for Consent sent to counsel for Kimball International, Inc. re 5 Answer to Complaint (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by wm, )
7 APPLICATION AND APPROVAL FOR ADMISSION PRO HAC VICE, Attorney Timothy P Reilly for Kimball International, Inc. added. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by wm, )
8 NOTICE of Substitution - Attorney Terryl T Healy and Kathryn Olson terminated. (Katahira, Wesley)
9 STIPULATION LITIGATION PLAN by Equal Employment Opportunity Commission. (Katahira, Wesley)
CORRECTIVE ENTRY - The entry docket number 9 Stipulation filed by Equal Employment Opportunity Commission, was filed using the incorrect event. The filing party shall re-submit their correct filing using the event "Scheduling Conf Form/Litigation Plan". (jlg, )
10 SCHEDULING CONFERENCE FORM - LITIGATION PLAN by Equal Employment Opportunity Commission. (Katahira, Wesley)
11 DOCKET TEXT NOTICE: Parties shall file their Consent Elections(Refer to Doc. 2 and Doc. 6) Prior to a Telephone Scheduling being set. (lc, )
12 CONSENT filed. (jlg, ) (Entered: 01/04/2006)
13 AN OBJECTION TO A US MAGISTRATE JUDGE HAS BEEN FILED IN THIS CASE. (jlg, )
14 NOTICE of Case Number Change re [13] Objection to Consent to Proceed before a US Magistrate Judge. New case number is CV 05-371-N-EJL. (jlg, )
15 SCHEDULING ORDER Amended Pleadings due by 2/28/2006. Final Discovery due by 5/31/2006. Joinder of Parties due by 2/28/2006. Mediation to take place

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05/10/2006
06/29/2006 06/29/2006 06/29/2006 06/29/2006 06/29/2006 06/29/2006 06/29/2006 06/29/2006 06/29/2006 06/29/2006 06/29/2006 07/24/2006
07/24/2006 07/24/2006

by 6/1/2006. Pre-Trial Motions due by 6/30/2006. Jury Trial set for 12/12/2006 09:30 AM in Coeur d Alene, ID before Honorable Edward J. Lodge. All non-dispositive pretrial matters are referred to US Magistrate Judge Larry M. Boyle. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, )
16 DOCKET ENTRY ORDER: Per the oral request of counsel, the deadline to participate in mediation shall be extend to September 15, 2006. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dmc, )
17 MOTION for Summary Judgment by Kimball International, Inc.. Responses due by 7/24/2006 (Fulgham, Mischelle)
18 MEMORANDUM in Support re 17 MOTION for Summary Judgment filed by Kimball International, Inc.. (Fulgham, Mischelle)
19 Statement of Material Facts re 17 MOTION for Summary Judgment filed by Kimball International, Inc.. (Fulgham, Mischelle)
20 DECLARATION of Mischelle R. Fulgham re 17 MOTION for Summary Judgment filed by Kimball International, Inc.. (Fulgham, Mischelle)
21 DECLARATION of Timothy Mongan re 17 MOTION for Summary Judgment filed by Kimball International, Inc.. (Fulgham, Mischelle)
22 DECLARATION of Philip Stucke re 17 MOTION for Summary Judgment filed by Kimball International, Inc.. (Fulgham, Mischelle)
23 DECLARATION of Cindy Avery re 17 MOTION for Summary Judgment filed by Kimball International, Inc.. (Fulgham, Mischelle)
24 DECLARATION of Shari Sinsley re 17 MOTION for Summary Judgment filed by Kimball International, Inc.. (Fulgham, Mischelle)
25 DECLARATION of Melissa Davaz re 17 MOTION for Summary Judgment filed by Kimball International, Inc.. (Fulgham, Mischelle)
26 DECLARATION of Cathy Fleetwood re 17 MOTION for Summary Judgment filed by Kimball International, Inc.. (Fulgham, Mischelle)
27 DECLARATION of Kenneth Freeman re 17 MOTION for Summary Judgment filed by Kimball International, Inc.. (Fulgham, Mischelle)
28 RESPONSE to Motion re 17 MOTION for Summary Judgment Filed June 29, 2006 filed by Equal Employment Opportunity Commission. Replies due by 8/7/2006. (Katahira, Wesley)
29 Statement OF FACTS re 17 MOTION for Summary Judgment FILED JUNE 29, 2006 filed by Equal Employment Opportunity Commission. (Katahira, Wesley)
30 DECLARATION of Wesley Katahira re 28 Response to Motion filed by Equal Employment Opportunity Commission In Support of EEOC's Response to the Motion for Summary Judgment filed 6/29, 2006. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8

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07/24/2006 07/24/2006 07/24/2006 08/07/2006 08/07/2006 08/16/2006
08/25/2006
08/25/2006 08/30/2006 10/23/2006 02/01/2007
02/01/2007

Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13# 14 Exhibit 14# 15 Exhibit 15# 16 Exhibit 16# 17 Exhibit 17# 18 Exhibit 18# 19 Exhibit 19# 20 Exhibit 20# 21 Exhibit 21# 22 Exhibit 22# 23 Exhibit 23# 24 Exhibit 24# 25 Exhibit 25# 26 Exhibit 26# 27 Exhibit # 28 Exhibit 28# 29 Exhibit 29# 30 Exhibit 30# 31 Exhibit 31# 32 Exhibit 32# 33 Exhibit 33# 34 Exhibit 34# 35 Exhibit 35)(Katahira, Wesley)
31 DECLARATION of Robert Zychek re 28 Response to Motion filed by Equal Employment Opportunity Commission Filed June 29, 2006. (Katahira, Wesley)
32 DECLARATION of Russell St. Germain re 28 Response to Motion filed by Equal Employment Opportunity Commission Filed June 29, 2006. (Katahira, Wesley)
33 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission re 28 Response to Motion Filed June 29, 2006 (Katahira, Wesley)
34 MOTION to Strike 29 Statement by Kimball International, Inc.. Responses due by 8/31/2006 (Attachments: # (1)Memorandum in Support)(Fulgham, Mischelle) . Modified on 8/7/2006 (wm, ).
35 REPLY to Response to Motion re 17 MOTION for Summary Judgment filed by Kimball International, Inc.. (Attachments: # 1 Declaration of Debra Williams)(Fulgham, Mischelle)
36 RESPONSE to Motion re 34 MOTION to Strike 29 Statement of Material Facts in Support of EEOC's Response to the Motion for Summary Judgment Filed on August 7, 2006 filed by Equal Employment Opportunity Commission. Replies due by 8/30/2006. (Katahira, Wesley)
37 REPLY to Response to Motion re 34 MOTION to Strike 29 Statement of Material Facts in Support of the EEOC's Response to the Motion for Summary Judgment Filed on August 7, 2006 filed by Kimball International, Inc.. (Fulgham, Mischelle)
38 MOTION to Continue Extend Deadline for Mediation by Kimball International, Inc.. Responses due by 9/18/2006 (Attachments: # 1 Declaration of Mischelle R. Fulgham in Support of Motion)(Fulgham, Mischelle)
39 ORDER granting 38 Motion to extend deadline for mediation. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks, )
40 Docket Entry NOTICE PLEASE TAKE NOTICE that the Jury Trial set for Tuesday, December 12, 2006, IS HEREBY VACATED pending the outcome of the Summary Judgment Motion. (cv, )
41 MEMORANDUM ORDER denying as moot 34 Motion to Strike ; Granting 17 Motion for Summary Judgment. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jg, )
42 JUDGMENT that Plaintiff take nothing from Defendant and this case is DISMISSED IN ITS ENTIRETY.. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of

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03/30/2007
05/15/2007 05/15/2007 05/15/2007 05/23/2007 05/23/2007

Electronic Filing (NEF) by jg, )
43 NOTICE OF APPEAL as to 42 Judgment, 41 Order on Motion to Strike, Order on Motion for Summary Judgment,, by Equal Employment Opportunity Commission. (Notice sent by e-mail to Court Reporter) (Attachments: # 1 Civil Appeals Docketing Statement# 2 Representation Statement# 3 Judgment# 4 Memorandum Order# 5 Certificate of Service)(Lee, Damien)
44 NOTICE OF APPEAL NOTIFICATION FORM re 43 Notice of Appeal, (jg, )
45 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 43 Notice of Appeal, (jg, )
46 CERTIFICATE of Record on Appeal re 43 Notice of Appeal, No Transcripts Necessary. (jg, )
47 USCA Case Number 07-35403 for 43 Notice of Appeal, filed by Equal Employment Opportunity Commission. (jg, ) (Entered: 05/24/2007)
48 USCA Scheduling Order as to 43 Notice of Appeal, filed by Equal Employment Opportunity Commission. (Notice sent by e-mail to Court Reporter) (jg, ) (Entered: 05/24/2007)

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 USCA9 Docket Sheet for 07-35403

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General Docket
US Court of Appeals for the Ninth Circuit

Court of Appeals Docket #: 07-35403 Nsuit: 1442 Jobs (USpl) EEOC v. Kimball Intl Appeal from: District of Idaho (Boise)

Filed: 5/18/07

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Case type information:
1) civil 2) US 3) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Lower court information:

District: 0976-1 : CV-05-00371-EJJ presiding judge: Edward J. Lodge, District Judge Date Filed: 9/14/05 Date order/judgment: 2/1/07 Date NOA filed: 3/30/07 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Fee status: USA: no fee required

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Prior cases:
None Current cases:
None

Docket as of May 18, 2007 11:21 pm

Page 1

07-35403 EEOC v. Kimball Intl EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Plaintiff - Appellant
v. KIMBALL INTERNATIONAL, INC., dba Flexcel
Defendant - Appellee

Paul D. Ramshaw, Esq. FAX 989-4726 202/663-4726 Room 7010 [COR LD NTC gov] U.S. Equal Employment Opportunity Commission 1801 "L" Street, N.W. Washington, DC 20507
John F. Stanley, Esq. 206/220-6883 Suite 400 [COR LD NTC gov] EEOC Seattle Disrict Office 909 First Ave. Seattle, WA 98104-1061
Mischelle R. Fulgham, Esq. FAX 509/363-2478 509/455-9555 [COR LD NTC ret] LUKINS & ANNIS, PS Washington Trust Financial Center

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717 W. Sprague Ave. Spokane, WA 99201-3922

Timothy P. Reilly, Esq. FAX 513/381-0205 513/381-2838 #1800 [COR LD NTC ret] TAFT, STETTINIUS & HOLLISTER LLP 425 Walnut Sreeet Cincinnati, OH 45202-3957

Docket as of May 18, 2007 11:21 pm

Page 2

07-35403 EEOC v. Kimball Intl EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Plaintiff - Appellant v. KIMBALL INTERNATIONAL, INC., dba Flexcel
Defendant - Appellee Docket as of May 18, 2007 11:21 pm

Page 3

07-35403 EEOC v. Kimball Intl

5/18/07

DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. CADS SENT (Y/N): n. setting schedule as follows: appellant's opening brief is due 6/27/07; appellees' brief is due 7/27/07; appellants' reply brief is due 8/10/07; [07-35403] (gar)

5/18/07

Filed certificate of record on appeal RT filed in DC tr n.s. [07-35403] (gar)

5/18/07

filed notice of amended representation of Paul D. Ramshaw as counsel for aplt [07-35403] (gar)

5/18/07

Filed Paul D. Ramshaw Civil Appeals Docketing Statement served on 4/4/07 (to CONFATT) [07-35403] [07-35403] (gar)

Docket as of May 18, 2007 11:21 pm

Page 4

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