United States District Court, S.D. Texas, Victoria Division
PAUL A. TAGLIABUE JR., Plaintiff,
ORKIN LLC d/b/a ORKIN PEST CONTROL, Defendant.
Kenneth M. Hoyt United States District Judge
the Court is the defendant's, Orkin LLC, d/b/a Orkin Pest
Control (“Orkin”), motion for summary judgment
[DE 34], the plaintiff's response [DE 35] and Orkin's
reply [DE 36]. After a careful review of the motion, the
attachments and exhibits, the response, reply and the
arguments of counsel, the Court determines that Orkin's
motion for summary judgment should be granted.
plaintiff, along with his family, owned a pest control
business that was purchased by Orkin around 1993. After the
purchase, the plaintiff continued his employment with Orkin
until January 30, 2015, when he retired. During the years
between the two dates, the plaintiff held the position of
branch manager and had as part of his duties dissemination of
the company handbook and policies to new employees. He
participated in the hiring and paperwork of new employees and
secured signatures on critical documents. The plaintiff had
charge of all postings concerning state and federal law such
as postings included postings from OSHA, workers compensation
and the EEOC, all designed to explain to employees their
rights under the laws. In addition, the plaintiff was
responsible for receiving employee complaints concerning
conditions of employment, including claims for discrimination
or harassment. During his employment, no employee ever made a
complaint to the plaintiff concerning his/her employment and
neither did the plaintiff.
2009, the plaintiff spoke to his supervisor about retiring in
December 2013, at a time when his retirement benefits vested.
The discussion was raised by the plaintiff and was freely
discussed between the plaintiff and his supervisor. As 2013
approached, discussions between the plaintiff and his
supervisor began focusing on a specific retirement date and
the plaintiff participated in the selection and training of
plaintiff's replacement began the management training
process in 2013. However, when the plaintiff's retirement
date came, he chose not to retire at that time and, according
to the plaintiff's supervisor moved the date ahead about
a year. During that year, the plaintiff announced to other
branch employees that he would soon be retiring and
introduced his replacement to them. In September 2014, a date
the plaintiff disputes, the plaintiff and his supervisor
discussed an end-of-year or January 30, 2015, final work day.
The plaintiff was told in December that January 30, 2015,
would be his last day, and his supervisor pushed to get the
plaintiff's vacation pay earlier than usual and paid in
advance. The plaintiff never “pushed back” on any
of the retirement activities. Therefore, on January 30, when
the plaintiff received a call from his supervisor and was
informed that everything was in order, that he could leave
early, he was not surprised.
plaintiff contends that he was forced out of his employment
because of his age, a violation of the Age Discrimination in
Employment Act of 1967 (“ADEA”) 29 U.S.C.
§§ 621 et. seq. As well, he contends his
termination violated the Older Workers Benefit Protection Act
of 1990,  again because of his age. As a result, the
plaintiff filed this complaint asserting age discrimination.
prevail on this claim, or at the least, overcome Orkin's
motion for summary judgment, the plaintiff must establish a
prima facie case of discrimination and overcome any
legitimate non-discriminatory basis for the plaintiff's
separation from employment. See Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167, 176 -78 (2009); Berquist v.
Washington Mutual Bank, 500 F.3d 344, 349 (5th Cir.
2007); see also Haskett v. T. S. Dudley Land Co.,
2017 WL 4155413 at 4 (S.D. Tex., Sept. 18, 2017)(internal
citations omitted) (“Pretext cannot be established by
mere conclusory statements of a plaintiff who feels [he] has
been discriminated against”). A prima face
case of age discrimination requires a plaintiff to establish
that: (a) he was discharged; (b) he was qualified for the
position; (c) he was within the protected class at the time
of discharge; and (d) he was either, replaced by someone
outside the protected class, replaced by someone younger or
discharged because of his age. McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973).
evidence fails to establish a prima facie case of
age discrimination because the plaintiff cannot establish
that he was discharged from his employment. A triggering
mechanism for an age discrimination claim is evidence that
the plaintiff suffered an adverse employment action. The
evidence is undisputed that the plaintiff was not terminated
but separated due to his retirement. He admits that he
discussed retirement as early as September 2009. Moreover,
those discussions continued as the plaintiff's projected
retirement date approached culminating in a retirement that
included advanced vacation and sick day payments. The
evidence shows that, although the plaintiff was fully aware
of his rights under federal and state law, he never
complained to HR or upper management. In fact, he cooperated
to complete the retirement process.
employer's decision, coupled with that of the employee to
end an employment by retirement does not constitute an
adverse employment action. See Texas State Office of
Admin. Hearings v. Birch, No. 04-12-00681-CV-2013; WL
3874473 at 12 (Tex. App. July 24, 2013). At the time that the
plaintiff's retirement date was established, the
plaintiff selected his replacement, participated in training
her, announced his retirement to fellow employees, introduced
his replacement to coworkers, and worked with his supervisor
and HR to complete his retirement package. It is undisputed
that the plaintiff intended to retire. He now simply disputes
the date chosen.
asserting that age was the basis for his termination, the
plaintiff also points to “stray remarks” by his
supervisor regarding his age. The evidence shows, however,
that the stray remarks that the plaintiff complains about
took place within the context of retirement discussions and
during company meetings where management questioned whether
the aging of the company employees was a factor in the
company's revenue decline. The evidence shows that the
remarks were scattered across the group and, on occasion,
were spoken by the plaintiff, himself. No. reasonable jury
would conclude that the remarks were other than shop talk
since the ...