The opinion of the court was delivered by: J. Leon Holmes United States District Judge
Pending before the Court is a motion for summary judgment filed by Defendant USFilter Recovery Services (Mid-Atlantic), Inc. ("USFilter") (Docket #20). William Singley brought suit against USFilter claiming that he was terminated at age 60 in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and in violation of Arkansas public policy. USFilter argues that there are no genuine issues of material fact and that it is entitled to summary judgment on both claims. For the reasons contained in this opinion, the Court DENIES summary judgment on the ADEA claim and GRANTS summary judgment on the claim of wrongful discharge in violation of public policy.
Summary judgment is appropriate when "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." Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In deciding a motion for summary judgment, the Court views the facts in the light most favorable to non-moving party and draws all inferences in his favor, keeping in mind that "summary judgment seldom should be granted in discrimination cases where inferences are often the basis of the claim."
Duncan v. Delta Consol. Indus., Inc., 371 F.3d 1020, 1024 (8th Cir. 2004) (citing Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1156 (8th Cir. 1999)). See also Bassett v. City of Minneapolis, 211 F.3d 1097, 1099 (8th Cir. 2000). If the evidence would allow a reasonable jury to return a verdict for the non-moving party, summary judgment should be denied. Derickson v. Fidelity Life Assoc., 77 F.3d 263, 264 (8th Cir. 1996).
USFilter specializes in the collection, transportation, storage, and recycling of non-hazardous used oils and oily waters, primarily through the use of vacuum trucks. In 1997, USFilter purchased an oil recovery services business from Mobley Corporation. Through that purchase, it acquired a transportation and storage facility in Little Rock that became part of USFilter's South-Central Division. Singley had been the sole salesman at that facility and he remained in that position after the purchase. Under both Mobley and USFilter, Singley's essential function was to sell oil recovery services to new and existing customers. Historically, USFilter and its predecessor offered its oil recovery services primarily to industrial and manufacturing customers. Indeed, Singley was termed an "industrial salesman," meaning that he sold principally, if not exclusively, to these customers. Singley enjoyed great success in his early career. He was praised by his supervisors for generating and maintaining large industrial accounts and for his general expertise in the area of sales.
Around 2000, industrial opportunities began to decline due to increased competition, the introduction of on-site treatment of oil products, and decreased production or closings of certain customers. Singley's total sales volume declined from 1999 - 2003 as a result. As a result, USFilter began expanding its offerings to commercial customers, including car dealerships, oil change shops, and automotive repair shops. In October 2002, Stan Thompson, Branch Manager for the Little Rock facility, hired Doug Redmann, who is approximately twelve years younger than Singley, to focus on these commercial customers and to sell and service "parts cleaners."*fn1 Redmann joined Singley as the second salesman in the Little Rock office but functioned primarily, if not exclusively, as a "commercial salesman." After Redmann was hired, USFilter's commercial business grew rapidly. In the spring of 2003, the South Central Division abandoned the distinction between "industrial" and "commercial" salespersons and encouraged Redmann and Singley to generate new business in either market. Singley testified that, despite this flexibility, he lacked opportunities to generate new business in the commercial market and continued to gravitate towards the industrial market. Singley cites a number of factors impeding his ability or drive to generate commercial sales, including that it took as many as 20 commercial accounts to make up the sales revenue of one industrial account and that Thompson gave commercial sales lead sheets only to Redmann. Despite the fact that he remained focused on the industrial market, Singley's sales volume and revenue exceeded that of Redmann's even at the time of Singley's termination.
During his employment, Singley voiced several complaints relating to environmental conditions at the Little Rock facility. In September 2000, Singley approached Art Radcliffe, USFilter's Environmental Health and Safety ("EH&S") Manager, at a company meeting in Texas and, in a brief one- or two- minute confidential conversation with him, "expressed concern about the condition of the new tank farm in Little Rock." According to an e-mail documenting the matter, Radcliffe stated that the complaints "dealt with general housekeeping and operation practices." Singley testified that the "housekeeping and operational practices" mentioned to Radcliffe related to making sure that company procedures were followed during loading and unloading, i.e., making sure that hose connections were tight when oil transfers were made and that employees were present during this process. Singley testified that he approached Radcliffe because he was "concerned that the environmental situation in Little Rock was such that if we were audited by our customers, the customers would not be pleased. They wouldn't do business with us. If they didn't do business with us, that impacted my income." Radcliffe documented this matter by e-mail to Larry Bennett in Human Resources, emphasizing that Singley's comments be kept confidential out of fear of retaliation and not shared with the branch or operational managers and that a copy of the email be placed in Singley's personnel file.
On October 13, 2000, Singley called Radcliffe and expressed concern that a spill had occurred in Little Rock a week before and that no report had been made to EH&S. Singley's complaint was largely substantiated (an unreported spill had occurred) and Radcliffe noted that he shared Singley's concern that company policy had not been followed. Again, a record was made by e-mail, forwarded to Bennett, and posted in Singley's personnel file.
After Radcliffe left the company, Singley spoke with Clifton Ferrell, an environmental manager in Kilgore, Texas, "less than a dozen times," informing him that spills were still occurring from time to time at the facility. According to Singley, these calls took place between 2001 and 2003. Singley never made any complaint or report to any private organization outside USFilter nor to any state or federal governmental agency regarding USFilter's actions, although Singley testified that he thought Thompson and Kenneth Cherry, South Central's Business Unit Manager, suspected he had.*fn2
In June 2003, Kevin Trant, Senior Vice President and General Manager of Hydrocarbon Services Division, determined that USFilter was falling significantly behind its budget for the calendar year 2003. On June 16, he sent e-mails to Cherry and the other business unit managers, directing them to develop cost-reduction plans for their units. In one e-mail, Trant set an annualized cost savings target of $250,000 for the South Central Division. Cherry, in turn, directed Thompson to propose budget cuts for the Little Rock facility. Thompson initially proposed minimal cuts on the belief that the facility ran a "pretty lean operation." Thompson testified that Cherry responded that this would not be sufficient and advised him to look at whether two sales positions were costjustified. Cherry, Thompson, and Bronson all state that they agreed that they would eliminate one sales position. The three state that due to the combination of a growing commercial market, a stagnant industrial market, Redmann's success in generating new business among commercial customers, Singley's seeming complacency in new business generation, and Thompson and McWilliams's ability to maintain existing industrial accounts, Singley was their choice for elimination. According to an exhibit attached to Cherry's affidavit, Cherry implemented annualized savings of $337,600 for the South Central Division. The elimination of Singley's sales position cut annual costs in the South Central Division by $85,000. In July 2003, Brooke Goode, Human Resources, and Bronson notified Singley that he was being terminated "for economic reasons."
After Singley's termination, Redmann worked as the sole salesperson in the Little Rock office. Singley's duties were assumed by Redmann, Thompson, and McWilliams. After some time, Redmann was promoted and Awon Perry ...