United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM OPINION AND ORDER
STARRETT, UNITED STATES DISTRICT JUDGE
cause comes before the Court on Defendants' Motion for
Summary Judgment . Plaintiff has filed his response and
memorandum in opposition [59, 60], and Defendants have filed
a reply . Having reviewed the pleadings, the parties'
submissions, the record in this matter, and the applicable
law, and otherwise being fully advised in the premises, the
Court concludes that the motion is well taken and will be
SUMMARY OF THE CASE
discharged Robert McMichael (“McMichael”) on
April 25, 2015. McMichael was 59 years old at the time of
his termination and had been employed with Transocean for
just over fourteen (14) years on deep water rigs, most
recently as a toolpusher. In his Second Amended Complaint
McMichael alleges that the Defendants
(“Transocean”) discharged him because of his age
in violation of the Age Discrimination in Employment Act of
1967 (“ADEA”), 29 U.S.C. § 621 et seq.
McMichael was terminated and his toolpusher position on the
Discoverer Clear Leader was filled by Jody Eckert, an
individual who was 49 years old.
contend that McMichael was one of approximately 7, 320
Transocean employees who have been laid off in the past four
years as a result of one of the largest economic downturns in
the history of the oil and gas industry. Transocean brings
this summary judgment motion on the grounds that McMichael
can produce no evidence in this case showing that he was laid
off because of his age.
hired McMichael in 2001 as a Driller I and assigned him to an
offshore drilling rig. [56-3]. He was 46 years old at the
time he was hired. [56-4] at 13:10-12. McMichael received
numerous promotions and pay raises throughout his employment
with Transocean. Id. at 45:12-47:2; [56-3]. In
February 2009, after working as a driller and toolpusher on a
number of rigs, McMichael went to work as a toolpusher on a
drillship called the Discoverer Clear Leader
(“DCL”). [56-4] at 47:3-48:5. Gordon Kennedy was
the Rig Manager of the DCL from August 1, 2013 until April
17, 2016. [56-5] at ¶ 3; [56-4] 69:7-13, 69:25-70:3.
Gary Mosley was a senior toolpusher on the DCL and one of
McMichael's supervisors. [56-4] at 26:27-27:1. Robert
Blansett was an offshore installation manager (OIM) on the
DCL. [56-4] at 36:25-37:6. Robert Owen was also an OIM who
supervised McMichael when he was a toolpusher on the DCL.
[56-4] 64:8-11. McMichael worked on the DCL for over five
years until his layoff in April 2015. [56-4] at 47:6-13;
48:6-8. He got along well with all of his supervisors and
never had any issues. [56-4] at 65:4-69:6.
an economic downturn in the oil and gas industry, Transocean
has reduced its offshore fleet by 44 rigs over the past four
years, which has resulted in 7, 320 Transocean employees
being laid off between the first quarter of 2014 and July of
2018. [56-2] at ¶¶ 4, 6. Transocean's HR
department was tasked with managing these large reductions in
force. [56-2] at ¶ 4. Transocean devised and utilized a
system known as the “high-grading process” to
select employees for inclusion in these reductions in force.
Id. This process results in layoffs of lower graded
employees, which is then followed by reorganization of the
remaining offshore workforce. Id. at ¶ 5. The
goal of the high grading process is to reduce the overall
size of the workforce while identifying and retaining the
best offshore rotational employees. Id. at ¶ 4.
early 2015, Transocean
“cold-stacked” six drilling rigs, which reduced the
overall headcount on those rigs from 989 employees to zero.
[56-2] at ¶ 7. Consequently, Transocean engaged in the
high grading process to determine how to reorganize its
workforce to ensure that it retained its top talent.
Id. at ¶ 4: [56-1] 8:8-17.
high grading process has three basic components-(1)
performance; (2) ranking; and (3) potential. [56-1] at
8:8-23; [56-2] at ¶ 9. The performance score is based on
the employees' most recent performance appraisal and is
comprised of two components that are averaged together to
arrive at the overall performance score. [56-2] at ¶ 10.
The Rig Manager determines both ranking and potential. [56-2]
¶¶ 11-12. These three ratings are converted into a
percentage and averaged together to determine an
employee's “Total Score.” [56-2] at ¶ 9.
The Total Score is used as a data point to facilitate
conversations between the Rig Managers and HR, but it is the
Rig Managers who are ultimately responsible for the lay-off
decisions. [56-1] at 14:3-15:10; 21:25-22:13; [56-2] at
¶ 21; [56-6] at 15:9-21:15. During these conversations,
the Rig Managers and HR discuss the employee ratings,
validate the ratings, fill in information missing from the
ratings, assess employees' overall performance, and make
decisions pertaining to the reorganization of
Transocean's workforce, including who to lay off, who to
retain, and who to transfer. See id. Because layoffs
were frequent during the time of McMichael's layoff, it
was not uncommon for Rig Managers to rank employees and
evaluate their potential after the meeting with HR had taken
place. [56-2] at ¶ 14.
2014 Performance Appraisal, completed by Gary Mosley and
Robert Blansett, McMichael received a rating of #3
“Fully Successful.” [58-8]. Based on the outcome
of the high grading process and discussions with HR, Gordon
Kennedy, who was 51 years old at the time, made the decision
to lay off McMichael as part of a large reduction in force,
which termination occurred on April 25, 2015. [56-5] at
¶¶ 2, 4, 10-12; [56-4] at 48:6-8; [56-1] 62:11-15,
65:9-11. Of the twenty-five toolpushers who were ultimately
laid off (including McMichael), nine were working on rigs
that were not cold stacked. [56-2] at ¶ 20. In 2015,
almost all of the toolpushers who were laid off worked on
rigs that were not cold stacked at the time. Id.
McMichael's layoff, Kennedy then had three weeks to
backfill his position with a higher graded employee. [56-5]
at ¶ 12. He requested a list of toolpusher replacements
from HR along with past appraisals and work history and spoke
to the previous supervisors and Rig Managers of the higher
graded toolpushers to get their feedback before making the
backfill selection. Id. After reviewing Jody
Eckert's most recent performance appraisal in which he
received a rating of #4 “Superior, ” reviewing
documentation on Eckert related to the high grading process,
and speaking to personnel with whom he worked, Kennedy
selected Jody Eckert, who was 49 years old at the time, to
fill the tool pusher position and replace McMichael on the
DCL.Id.; [56-2] at ¶ 22; [56-9].
Kennedy had never worked with or met Mr. Eckert when he
selected Eckert for the DCL and was also not aware of Mr.
Eckert's age at the time he was selected. Id.
McMichael also does not know Mr. Eckert and has never worked
with him. [56-4] at 28:23-25.
2015, McMichael received an email from Allan Windham, a
mechanical supervisor on the DCL, who attached a list called
a “strength report” that showed the birth dates
of toolpushers on the DCL and told McMichael to take note of
Eckert's age; it was then that McMichael learned for the
first time that someone younger than he replaced him. [56-4]
p.102-104; [56-7]. McMichael never complained about age
discrimination while employed there. [56-4] 123:7-10. He does
not know who made the decision to lay him off, and he does
not know who discriminated against him because of his age.
[56-4] 113:4-11; 123:11-16. McMichael knew Gordon Kennedy
personally and got along well with him, with no professional
problems working with Mr. Kennedy. [56-4] 68:17-69:3. In his
declaration in opposition to summary judgment, McMichael
recalls that Robert Owen, an OIM on the DCL, told McMichael
at least twice in July 2014 that because that McMichael was
over 59½ years old, he had nothing to worry about
because he could receive his pension without the IRS imposing
a penalty. [59-2] at ¶ 13. McMichael felt this was a
coded reference to his age. Id.
Summary Judgment Standard
judgment “should be rendered if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to a judgment
as a matter of law.” Am. Gen. Life Ins. Co. v.
Hannah, No. 1:12-cv-00087, 2014 WL 1413540 at *9 (N.D.
Miss. Apr. 11, 2014) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)); Fed.R.Civ.P. 56(c).
The moving party bears the initial burden of showing there is
no genuine issue for trial, and it may do so by pointing out
“‘the absence of evidence supporting the
nonmoving party's case.'” Skotak v. Tenneco
Resins, Inc., 953 F.2d 909, 913 (5th Cir.), cert.
denied, 506 U.S. 832 (1992) (quoting Latimer v.
Smithkline & French Labs., 919 F.2d 301, 301 (5th
moving party meets this burden, the nonmoving party who will
have the burden of proof at trial must come forward with
summary judgment evidence establishing the existence of a
genuine issue; that evidence must be such that if introduced
at trial it would suffice to prevent a directed verdict
against the nonmovant. Celotex, 477 U.S. at 321. A
dispute is “genuine” if “the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); see also Sierra
Club, Inc. v. Sandy Creek Energy Assocs., L.P., 527 F.3d
134, 138 (5th Cir. 2010) (“An issue is material if its
resolution could affect the outcome of the action.”).
“Summary judgment is mandatory against a party who
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.” Fife v. Vicksburg Healthcare, LLC, 945
F.Supp.2d 721, 729 (S.D.Miss. 2013) (internal quotations
omitted) (quoting Brown v. Offshore Specialty
Fabricators, Inc., 663 F.3d 759, 766 (5th Cir. 2011)).
Analysis of Evidence Under ADEA Analytical Framework
ADEA makes it unlawful for 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).
When there is no direct evidence of age discrimination, as is
the case here, it is well established that the plaintiff must
follow the three-step burden-shifting framework established
in McDonnell Douglas Corp. v. Green,411 U.S. 792
(1973).See Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 142 (2000) (assuming without
deciding, that the McDonnell Douglas burden-shifting
framework applies to ADEA claims); Novak v. Chicago Title
of Tex., L.L.C., No. 18-50040, 2018 WL ...