IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant,
and
ADAM BREAUX,
Intervenor Plaintiff-Appellant,
v.
PRODUCT FABRICATORS, INC., and
M&M MANUFACTURING, INC., as successor,
Defendants-Appellees.
On Appeal from the United States District Court
for the District of Minnesota
Hon. Michael J. Davis, District Judge
OPENING BRIEF OF PLAINTIFF-APPELLANT
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
P. DAVID LOPEZ CHRISTINE J. BACK
General Counsel Attorney
EQUAL EMPLOYMENT
LORRAINE C. DAVIS OPPORTUNITY COMMISSION
Acting Associate General Counsel Office of General Counsel
131 M Street, NE, Room 5NW14G
CAROLYN L. WHEELER Washington, DC 20507
Assistant General Counsel (202) 663-4734
The Equal Employment Opportunity Commission alleges in this action that Product Fabricators, Inc. (“PFI”) violated the anti-retaliation provision of the Americans with Disabilities Act when it fired Adam Breaux for participating in the Commission’s investigation of a discrimination charge against PFI. The Commission argues on appeal that the district court erred in granting summary judgment to the defendants on that claim, particularly in light of undisputed facts that a PFI manager questioned Breaux about his discussion with the Commission, and asked Breaux to sign a written acknowledgement of what he discussed in the Commission investigation, just hours before firing him.
PFI was purchased by M&M Manufacturing, Inc. (“M&M”) shortly after the Commission filed this suit. The Commission moved for summary judgment on the issue of successor liability, arguing that because the evidence shows substantial continuity between PFI and M&M, M&M is liable as PFI’s successor. The district court denied that motion as moot, because it had granted the defendants’ summary judgment motion on the Commission’s discrimination claims. The Commission argues on appeal that the record evidence establishes M&M is PFI’s successor, as a matter of law.
The Commission believes that oral argument of twenty minutes per side would assist this Court in resolving these issues.
STATEMENT OF THE ISSUES AND APPOSITE CASES
A. Nature of the Case and Course of Proceedings
i. Breaux’s employment and termination from PFI
ii. M&M and its purchase of PFI
CASES
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)............................... 25, 26
Bainbridge v. Loffredo Gardens, Inc., 378 F.3d 756 (8th Cir. 2004)............... 41
Brzozowski v. Corr. Physician Servs., Inc., 360 F.3d 173 (3d Cir. 2004)......... 44
Call Ctr. Techs., Inc. v. Grand Adventures Tour & Travel Publ’g
Corp., 635 F.3d 48 (2d. Cir. 2011)....................................................... 43, 51
Chicago Truck Drivers, Helpers & Warehouse Workers Union (Indep.) Pension Fund v. Tasemkin, Inc., 59 F.3d 48
(7th Cir. 1995)...................................................................................... 48, 54
Cossette v. Minn. Power & Light, 188 F.3d 964 (8th Cir. 1999)...................... 25
Criswell v. Delta Air Lines, Inc., 868 F.2d 1093 (9th Cir. 1989)................ 45, 47
Dominguez v. Hotel, Motel, Rest. & Misc. Bartenders Union,
Local # 64, 674 F.2d 732 (8th Cir. 1982)................................................... 46
EEOC v. G-K-G, Inc., 39 F.3d 740 (7th Cir. 1994)......................................... 52
EEOC v. Kohler Co., 335 F.3d 766 (8th Cir. 2003)........................................ 29
EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086
(6th Cir. 1974)............................................................ 2, 44-45, 47-48, 51, 53
EEOC v. Vucitech, 842 F.2d 936 (7th Cir. 1988)....................................... 52-54
Erickson v. Farmland Indus., Inc., 271 F.3d 718 (8th Cir. 2001).................... 36
Fitzgerald v. Action, Inc., 521 F.3d 867 (8th Cir. 2008).............................. 2, 37
Hall v. Norfolk S. Ry. Co., 469 F.3d 590 (7th Cir. 2006)................................ 43
Heaton v. Weitz Co., Inc., 534 F.3d 882 (8th Cir. 2008)................................. 34
Hobgood v. Ill. Gaming Bd., No. 11-1926, 2013 WL 3599498
(7th Cir. July 16, 2013)................................................................... 30, 32-33
Hudson v. Norris, 227 F.3d 1047 (8th Cir. 2000)........................................... 29
Hunt v. Neb. Pub. Power Dist., 282 F.3d 1021 (8th Cir. 2002)....................... 26
K.C. 1986 Ltd. P’ship v. Reade Mfg., 472 F.3d 1009 (8th Cir. 2007)............. 43
Musikiwamba v. Essi, Inc., 760 F.2d 740 (7th Cir. 1985).............. 44, 45, 47, 53
Myers v. Lutsen Mountains Corp., 587 F.3d 891 (8th Cir.2009)..................... 43
NLRB v. Jarm Enters., Inc., 785 F.2d 195 (7th Cir. 1986).............................. 50
Prince v. Kids Ark Learning Ctr., LLC, 622 F.3d 992 (8th Cir. 2010).. 43-46, 48
Ridout v. JBS USA, LLC, No. 12-3220, 2013 WL 2661171
(8th Cir. June 14, 2013).............................................................................. 37
Riedl v. Gen. Am. Life Ins. Co., 248 F.3d 753 (8th Cir. 2001)......................... 26
Rojas v. TK Commc’ns, Inc., 87 F.3d 745 (5th Cir. 1996)............................... 45
Sims v. Sauer-Sundstrand Co., 130 F.3d 341 (8th Cir. 1997).......................... 34
Stewart v. Indep. Sch. Dist. No. 196, 481 F.3d 1034 (8th Cir. 2007)............... 35
Thomas v. Corwin, 483 F.3d 516 (8th Cir. 2007)...................................... 25-26
Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011)................. 24, 26
Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013)..................... 25
Upholsterers’ Int’l Union Pension Fund v. Artistic Furniture of
Pontiac, 920 F.2d 1323 (7th Cir. 1990)...................................................... 49
Womack v. Munson, 619 F.2d 1292 (8th Cir. 1980).............................. 2, 27-28
Worth v. Tyer II, 276 F.3d 249 (7th Cir. 2001)................................................ 49
Young-Losee v. Graphic Packaging Int’l, Inc., 631 F.3d 909 (8th Cir. 2011).. 27
Zhuang v. Datacard Corp., 414 F.3d 849 (8th Cir. 2005).............................. 35
STATUTES
28 U.S.C. § 1291.............................................................................................. 1
28 U.S.C. § 1331.............................................................................................. 1
28 U.S.C. § 1343.............................................................................................. 1
28 U.S.C. § 1345.............................................................................................. 1
42 U.S.C. §§ 12101 et seq (Americans with Disabilities Act)........................... 1
42 U.S.C. § 12203(a)...................................................................................... 26
This enforcement action was authorized and initiated pursuant to the
Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. The district court had jurisdiction over this case pursuant to 28 U.S.C. §§ 1331, 1343, and 1345. The district court entered final judgment on March 19, 2013. Apx-88. On May 17, 2013, the Commission filed a timely notice of appeal. Apx-89. This Court has jurisdiction under 28 U.S.C. § 1291.
I. Whether there is a triable issue that PFI fired Breaux for his protected activity, where Adam Breaux participated in an EEOC investigation of a discrimination charge, the Commission then filed a lawsuit against PFI, and PFI questioned Breaux about his participation in the EEOC investigation and fired him the day after the lawsuit’s filing.
Womack v. Munson, 619 F.2d 1292 (8th Cir. 1980)
II. Whether there is sufficient evidence to create a triable issue of pretext, as PFI asserted it fired Breaux for poor performance, but the record reflects that PFI did not issue any written warnings to Breaux about deficient performance, despite issuing such warnings to other employees with performance problems before suspending or firing them.
Fitzgerald v. Action, Inc., 521 F.3d 867 (8th Cir. 2008)
III. Whether this Court should hold that M&M is PFI’s successor as a matter of law and reverse the district court’s denial of the Commission’s motion for partial summary judgment on that issue, given evidence showing substantial continuity between PFI and M&M.
EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086 (6th
Cir. 1974).
A. Nature of the Case and Course of Proceedings
On July 27, 2011, the Equal Employment Opportunity Commission (“EEOC” or “Commission”) filed this suit in district court alleging, inter alia, that PFI discriminated against charging party Adam Breaux when it fired him in retaliation for participating in a Commission investigation. Apx-1.[1]
On September 15, 2011, PFI issued a corporate disclosure statement, stating that M&M had a pecuniary interest in the outcome of the litigation. Apx-8. The Commission amended its complaint on September 29, 2011, adding M&M as a defendant and setting forth factual allegations in support of its claim that the company was PFI’s successor. Apx-11, 13-14. Defendants denied these factual allegations contained in the Commission’s amended complaint, in its October 19, 2011, answer. Apx-21.
On September 14, 2012, the Commission filed a motion for partial summary judgment on the issue of successor liability, arguing that M&M was PFI’s successor and thus liable for the alleged discrimination against Breaux. Apx-25. PFI filed a motion for summary judgment on the Commission’s discrimination claims. Apx-37. On March 18, 2013, the district court granted summary judgment to PFI on the Commission’s discrimination claims, and denied as moot the Commission’s motion for partial summary judgment on successor liability. Apx-86-87. On May 17, 2013, the Commission timely filed this appeal challenging the district court’s final judgment. Apx-89.
i. Breaux’s employment and termination from PFI
At the time of the events in this case, PFI was a sheet metal manufacturer, which also assembled parts. Apx-194-95 (Sr. 28-29). Mike Murphy Jr. and Mark Murphy were PFI’s plant co-managers. Apx-234 (Mark 24). Mike Murphy Sr., the father of Mike Murphy Jr. and Mark Murphy (Apx-235; Mark 25), was PFI’s President. Apx-54 ¶ 1. Carol Murphy, the wife of Murphy Sr. (Apx-191; Sr. 13) and mother of Murphy Jr. and Mark Murphy (Apx-126; Jr. 19) (Apx-235; Mark 25), performed human resources functions at PFI from 2007 to 2010. Apx-304 (Carol 15-16).[2]
Adam Breaux was employed at PFI from 1997 to 1999, when he resigned. Apx-320 (Breaux 38). He returned to PFI in 2005 (Apx-320; Breaux 41) in a full-time position as a machine setup operator. Apx-325 (Breaux 87-88). He later became Turrets and Tapping Lead (Apx-328; Breaux 117), and then Turret Lead (SApx[3]-20), position changes that were each accompanied by a pay increase. SApx-20. PFI promoted Breaux on September 30, 2008, to the position of South Manufacturing Supervisor because “he was doing a good job” (Apx-153; Jr. 191-92) and “was doing everything the way he should.” Apx-209 (Sr. 126). Throughout Breaux’s employment, he was supervised by Mike Murphy, Jr. Apx-325 (Breaux 88).
PFI fired Breaux on September 1, 2009. Apx-337 (Breaux 150).
On September 1, 2009, around lunch time, Mark Murphy called Breaux into a meeting to discuss Breaux’s participation in a prior investigation of an EEOC charge filed by Dennis Anderson. Apx-338-39 (Breaux 156-58).
Dennis Anderson was a former PFI employee who had filed an EEOC charge in February 2008 alleging disability-based discrimination. Apx-69. Around June 24, 2008 (Apx-259; Mark 121-22), as part of its investigation into Anderson’s charge, the Commission interviewed PFI managers Mike Murphy Jr., Mark Murphy, and Carol Murphy, and several non-managerial employees, including Breaux. Apx-259 (Mark 121-123) (stating that all the Murphys interviewed were managers, but neither Breaux nor Jeff Bergeron were managers at that time); Apx-75 (the third interviewee, Cathy Hunt, was an Assembly Lead).
The EEOC interviewed the Murphys first. Apx-258 (Mark 118-120). Mark Murphy testified that the investigator told him she “would not bring up any employees regarding this case. . . . They’re here to discuss, do we accommodate injuries in the workplace.” Apx-258 (Mark 119). Before the interviews with other employees, Mark Murphy also spoke with the EEOC investigator about the suitability of some of the potential interviewees, such as whether an employee was a temporary employee or had only been employed for a short time. Apx-258 (Mark 119-120). He testified that the Commission then selected Cathy Hunt and Jeff Bergeron, but “specifically asked for Adam Breaux. That was one they specifically asked for.” Apx-258 (Mark 120). Murphy assumed that the Commission “asked for Adam because he was [Anderson’s] direct supervisor.” Id. On the day of the interviews, Mark Murphy told Murphy Jr. that the Commission was not going to ask employees about Dennis Anderson. Apx-143 (Jr. 106).
Mark Murphy testified that after the interviews that day, he asked Hunt, Bergeron, and Breaux about whether the EEOC had asked about any employees during the interview. Apx-259-60 (Mark 124-25). According to Mark Murphy, Hunt and Bergeron answered no. Apx-260 (Mark 125). Mark Murphy testified that Breaux, however, not only answered affirmatively, but described at length that he had told the EEOC “how much of a bad worker [Anderson] is and how much he always seemed like he was always on medication and drugs.” Id.
On August 31, 2009, the Commission filed a complaint against PFI alleging a violation of the ADA and seeking relief for Anderson.[4] Apx-65 ¶ 43. On August 31, 2009, EEOC trial attorney Nick Pladson called PFI to inform the company that it had filed a lawsuit seeking relief for Anderson. Apx-66 ¶¶ 44-45. When the PFI employee who answered the phone told Pladson that Murphy Sr. was unavailable, Pladson informed the employee that he was an attorney for the EEOC, and that the EEOC had just filed a lawsuit in federal district court against PFI based on Anderson’s charge of discrimination. Id. at ¶ 45. Pladson specifically requested that this information and his phone number be relayed to Murphy Sr. Id. The PFI employee agreed to relay the information. Id. Murphy Sr. confirmed that he returned Pladson’s telephone call on September 2, 2009. Apx-224 (Sr. 190-92); Apx-66 ¶ 46. The filing of the Anderson lawsuit was reported in the Star Tribune on September 1, 2009. Apx-77. It was also reported in the Pine City Newspaper. Apx-148 (Jr. 137-38).
Murphy Sr. testified that he was “very very upset” when he learned of the lawsuit, and “[could]n’t believe it.” Apx-224-25 (Sr. 192-93). When Mark Murphy learned of the lawsuit, he was “a little concerned with the EEOC and how they did the investigation.” Apx-277 (Mark 195-96). He shared this reaction with Murphy Jr., Murphy Sr., and Carol Murphy. Apx-277 (Mark 196).
On September 1, 2009, Mark Murphy called Breaux into a meeting to discuss Breaux’s interview with the EEOC, about which Breaux testified that “[a]ll he did was ask me if I talked about Dennis Anderson and the investigation. . . . because we weren’t supposed to bring his name up or something.” Apx-338 (Breaux 157). The meeting lasted about five minutes, and no one else was present. Apx-339 (Breaux 158); Mark 206 (that September 1 meeting was “[j]ust me and Adam”). At the meeting, Mark Murphy wrote out a note (Apx-68) and Breaux signed it. Apx-339 (Breaux 158); Apx-279 (Mark 204) (testifying that he wrote the note). The note read: “Adam Breaux was selected to be interview[ed] regarding Dennis Anderson. In the meeting Dennis was the topic of conversation. Adam was asked how well he knew Dennis. He stated years. Also was asked many other questions regarding Dennis.” Apx-68. Mark Murphy testified, “I just wanted him to state that they discussed Dennis Anderson. . . . And I just wanted to talk about the whole general conversation of, it was brought up.” Apx-279 (Mark 204). Mark Murphy had wanted to meet with Breaux for the sole purpose of getting “something in writing that the EEOC was untruthful about saying that they were going to talk to these employees about Dennis Anderson.” Apx-168 (Jr. 264).
Later that day, on September 1, PFI fired Breaux. Apx-337 (Breaux 150); Apx-148 (Jr. 139). Mark Murphy called Breaux into a conference room at 5 p.m. at the end of the workday, and with Carol Murphy, told him he was being fired. Apx-337 (Breaux 150-51); Apx-280-81 (Mark 208-209) (the termination meeting occurred “right at the end of the day”). Mark Murphy told Breaux “there’s no good way of saying this, but we’re going to terminate your employment.” Apx-281 (Mark 209). Breaux testified that, “When I asked why, I got a simple it isn’t working out anymore.” Apx-337 (Breaux 151).
The timing of Breaux’s termination the day after the filing of the Anderson lawsuit was, according to Murphy Sr., “a coincidence.” Apx-225 (Sr. 194-95). Murphy Jr. testified that the only reason Breaux was fired on that specific day was that his replacement was to start on September 2, 2009. Apx-168 (Jr. 262). “It was basically Craig can start and whatever date he said, the day before I was going to let him go — Adam Breaux go.” Apx-276 (Mark 191). Carol Murphy “was only notified minutes before” the meeting in which PFI fired Breaux, that PFI was firing Breaux. Apx-310 (Carol 146). Though she does not “hire, fire or do anything in that category” herself (id.), Carol Murphy was responsible for filing termination papers, action notifications, and other employee records, in her capacity as PFI’s human resources employee. Apx-304 (Carol 15-16). Mark Murphy testified that part of the reason why PFI waited until the end of the day on September 1, 2009, to fire Breaux was because the paperwork for his termination had not yet been completed by midday. Apx-280 (Mark 207).
The plan all along, Murphy Sr. asserted, was to fire Breaux, as he had made that decision sometime in “July or earlier in the year.” Apx-225 (Sr. 195). According to Murphy Jr., around May or June 2009, he began hearing complaints about Breaux’s delay in getting work to the north plant from Josh Volk (Apx-159; Jr. 217-18), the supervisor of the north plant. Apx-153 (Jr. 192). The north plant was the next stop in the production chain after the south plant. Apx-159 (Jr. 218). The south plant, managed by Breaux, housed turrets, tapping, and machining, and also a paint line department, which was separately supervised by a paint line supervisor. Apx-129 (Jr. 54). Connected to the south plant by a causeway, the north plant housed welding, assembly, and press brakes. Apx-129 (Jr. 53-54). Volk complained to Murphy Jr. about the delay in production about once a week (Apx-160; Jr. 221, 224), but Murphy Jr. never wrote anything down about Volk’s complaints. Apx-159 (Jr. 217). From the time of his promotion in September 2008 to around May or June 2009, however, Murphy Jr. conceded that Breaux was performing “very well.” Apx-159 (Jr. 219). “Things were going good” at that time, and there had been no complaints about Breaux. Id.
As a supervisor, Breaux was responsible for machine set up, partial operations, issuing work, driving a forklift, and directing work. Apx-329 (Breaux 118). He managed a crew of four to six employees. Apx-163 (Jr. 236). There were occasions, however, when there were not enough employees to man the machinery. Apx-329 (Breaux 118-121). Breaux spoke to Murphy Jr. about this issue three or four times a week (Apx-330; Breaux 123) and in response, “they would either get a person or they wouldn’t. That would be it.” Apx-329 (Breaux 121). Beyond asking for additional personnel, Breaux “couldn’t do anything else.” Apx-329 (Breaux 120-21). At that time, only Murphy Sr. had ultimate hiring and firing authority (Apx-136; Jr. 77), while Mark Murphy and Murphy Jr. were involved in the process by making recommendations. Apx-135 (Jr. 73-75). Though “most of the time” he was able to get additional employees (Apx-330; Breaux 123), the absence of needed personnel, when PFI did not provide more employees, slowed production in the south manufacturing area. Apx-329 (Breaux 121). There were not enough employees assigned to cover the equipment that Breaux oversaw. Apx-335 (Breaux 144).
Murphy Jr. testified that it was around the time that Breaux’s south plant crew lost an experienced turret operator that he saw the beginning of a decline in Breaux’s performance. Apx-177 (Jr. 307-8). This was a reflection of Breaux’s poor performance, in Murphy Jr.’s view, because “it was [Adam’s] department to run and he needed to get employees in there to train and keep up the production.” Apx-177 (Jr. 307). PFI replaced that turret operator with other employees such as MG,[5] who PFI hired on June 15, 2009 (SApx-29), but none of them were as capable as the experienced turret operator and they could not work at the same level. Apx-178 (Jr. 309-10). Murphy Jr. also blamed Breaux for this issue because it was Breaux’s responsibility to lead and train his crew. Apx-178 (Jr. 310). Yet PFI ultimately fired MG (in 2010) because he “was too slow for the production line.” SApx-29. During the period from May 2009 through September 2009, another employee on Breaux’s work crew had attendance problems sufficiently serious that PFI fired him that summer. Apx-164 (Jr. 238-239).
Meanwhile, during the summer of 2009, when Breaux was operating with insufficient staff, Mark Murphy testified that Jeff Bergeron, a press brake lead (Apx-153; Jr. 190), complained to him “maybe a couple of times” about the slow pace of productivity in Breaux’s department. Apx-274 (Mark 181-182). Mark Murphy also testified that a PFI programmer, David Danielzuk, around May or June 2009, “was complaining a little bit” that Breaux was lazy, and told Mark Murphy weekly that PFI should fire him. Apx-273 (Mark 178-80).
PFI used a form called an “Action Notification” to document employee issues. Apx-182-83 (Jr. 359-61); SApx-32, 34. It used these forms from at least 1988 through the time of Breaux’s termination in 2009. SApx-32-34 (action notifications for employee TO in 2004, 2007); SApx-38-46 (action notifications for employee DP in 1988, 1998, 1999, 2000, 2001, 2005, 2006, 2009). When an action notification was given, it was the first step before possibly being fired. Apx-183 (Jr. 361). Murphy Jr. testified that PFI “like[d] to look at it as trying to help the individual get back on track.” Id. It was also PFI practice to document employee violations of workplace policies, such as an absence from their work station or leaving the work place without clocking out. Apx-181 (Jr. 348). PFI would also give employees a final warning before taking further steps in response to performance problems. Apx-184 (Jr. 365).
For example, PFI issued an action notification on September 27, 2007, to an employee about “quality rejects,” with a check mark in the space for “1st Written Warning,” and a check mark in the space for “Performance,” and in the comments section stated that if his performance did not improve, PFI would “proceed with further action, up to [sic] including suspension or discharge.” SApx-34. Then, on December 27, 2007, PFI issued that same employee a second action notification about the continuing problem of rejects, with a check mark in the space for “Final Warning,” and stating that PFI was suspending him for one-day in 2008. SApx-35; Apx-184 (Jr. 365-67).
PFI also issued an action notification to another PFI employee, preceding his eventual termination in 2009. SApx-46. In that instance, PFI issued an action notification on April 7, 2009, stating that the “[employee]’s attitude has been uncooperative and disruptive in the office” and that he had been “making many mistakes in his work. This need[s] to improve immediately.” Id. The notification further stated that if the behavior did not improve, PFI would “proceed with further action, up to [sic] including suspension or discharge.” Id. PFI then fired him on July 13, 2009, because he had “increased programming errors to an unacceptable level, and there was a backward (decreased) progress in the department.” SApx-28, 47.
PFI fired a supervisory employee, a paint line manager, on June 5, 2009 (SApx-28, 53), after issuing an action notification on April 8, 2009, warning him of possible suspension or discharge if he had further unexcused absences. SApx-52. That paint line manager also received other written warnings about “not disciplining his individuals below him” and failing to be cooperative with Murphy Jr. when he was asked to do things. Apx-179 (Jr. 326-28). PFI fired that employee for performance issues such as “refus[ing] to follow job instructions” and not completing his work properly. SApx-28.
Murphy Jr. did not issue any written warnings to Breaux regarding performance problems. Apx-159 (Jr. 220). Instead, Murphy testified that he had “constant conversations” with Breaux about the “need to get your department going,” because PFI could not afford to continue paying employees overtime to complete work every Friday. Apx-161 (Jr. 227-28). Murphy Jr. also testified that he verbally counseled Breaux about his moodiness and the lowering of morale within his crew. Apx-178 (Jr. 310).
Breaux stated that he “was never told by anyone at PFI that my performance was below expectations or that I was at risk of termination due to my performance.” Apx-59 ¶ 3. Murphy Jr. also testified that he never told Breaux that his deficient performance could result in being fired. Apx-161 (Jr. 227). Nor did Mark Murphy ever warn Breaux that he was having performance problems (Apx-270; Mark 166) or that he was at risk of being fired. Apx-282 (Mark 214-15). Mark Murphy confirmed that PFI did not document Breaux’s alleged performance deficiencies, stating that this was because PFI did not have a “complete human resource department to follow up on these things.” Apx-270 (Mark 166-67). Rather, he testified that it was “[j]ust common sense,” as Breaux “was being talked to a lot,” that Breaux would infer he was at risk of being fired. Apx-282 (Mark 214-15).
On July 30, 2009, PFI advertised for a “Turret Lead” position with the job description “set up and operate turret machines punching supervisor sheet metal.” Apx-44-46. On August 26, 2009, Craig Baker applied for that position. Apx-53 ¶¶ 8-9. Murphy Jr. testified that Baker replaced Breaux. Apx-167 (Jr. 253). By the time of Breaux’s termination, Murphy Jr. stated that PFI had removed responsibilities from Breaux with Breaux’s consent, which left Breaux functioning as Turret Lead, despite no change in Breaux’s job title. Apx-52 ¶¶ 5-6. Murphy Jr. stated that he had the expectation that Baker would become the South Plant Supervisor, and discussed this with Baker when he was hired, and that the two agreed that he would start as Turret Lead and “grow from that” to the South Plant supervisor. Apx-53 ¶ 9. Baker’s first day on the job was September 2, 2009. Apx-53 ¶ 8.
Breaux filed his EEOC charge on April 14, 2010, alleging, inter alia, that PFI retaliated against him in violation of the ADA for his participation in an EEOC investigation. Apx-78.
ii. M&M and its purchase of PFI
On September 28, 2010, Murphy Jr. and Mark Murphy incorporated M&M. SApx-1; 3 (M&M Articles of Incorporation listing Mark Murphy and Murphy Jr. under heading “Directors”). M&M was “created to buy the assets from Product Fabricators, Inc.” Apx-98 (Julie 58-59). By around that time, PFI was having “severe cash-flow issues.” Apx-101 (Julie 69-70). PFI was facing the possibility of foreclosure, levies from the Internal Revenue Service, and was operating from day to day. Id. PFI “was insolvent and M&M was created as a means of survival.” Id. From the time of M&M’s incorporation until its actual purchase of PFI, the only business M&M conducted was to secure financing to purchase PFI’s assets. Apx-98 (Julie 60).
By this time, both Murphy brothers were aware that Breaux had filed an EEOC charge. Apx-284 (Mark 221-23) (Mark Murphy learned about Breaux’s charge around the time it was filed); Apx-176 (Jr. 303) (Murphy Jr. learned of Breaux’s charge in the spring of 2010). A letter from PFI responding to Breaux’s charge was signed by Mark Murphy and Carol Murphy on May 18, 2010. Apx-82. When Mark Murphy learned about Breaux’s charge, his reaction to it was “Here we go again, a charge.” Apx-284 (Mark 223). The Murphy brothers discussed Breaux’s charge with each other. Id.
In October 2010, before M&M purchased PFI, the Commission interviewed Mark Murphy in its investigation of Breaux’s charge. Apx-289 (Mark 244). The Commission interviewed Murphy Jr. as part of this investigation as well. Apx-177-78 (Jr. 305-312); Apx-64 ¶ 33; Apx-79 (EEOC interview of Murphy Jr.).
On October 26, 2010, M&M purchased PFI’s assets. Apx-105 (Julie 92); Apx-201 (Sr. 56). On October 26, PFI ceased to exist and M&M began its operation. Apx-202 (Sr. 83). That same day, the Murphy brothers, as co-owners of the corporate entity M&M Ventures, Inc., bought the real estate located at 1120 Holstein Drive, from Murphy Sr. and Carol Murphy. Apx-108-109 (Julie 104-105). That property had been the site of PFI’s operations.[6] Apx-100 (Julie 68). From October 26, 2010, M&M continued operations out of the 1120 Holstein Drive location, and did not expand or buy additional property. Apx-100 (Julie 68-69).
M&M uses the trade name “Product Fabricators” and holds itself out publicly with the name “Product Fabricators.” Apx-92 (Julie 9-10) (“[T]hat’s the name we do business as, Product Fabricators.”). M&M’s website is www.productfab.com (Apx-99; Julie 61), which also identifies the company as Product Fabricators. Apx-117 (Julie 139-140). When a person calls the phone number for M&M, the person on the receiving line identifies the company as “Product Fabricators.” Apx-103 (Julie 81).
There was no cessation or interruption of the work underway at PFI when M&M bought PFI. Apx-105-106 (Julie 92-93). This was because “[t]hey ha[d] due dates and work to get out.” Id. In addition, since its “inception,” M&M’s departments have consisted of the sheet metal department, with “turrets and press brakes and assembly underneath it,” a paint line department, inspection, shipping and receiving, and a machine shop. Apx-100 (Julie 65-66). These are departments that existed at PFI. Apx-100 (Julie 66). M&M continued to use the same layout of machinery as PFI until around May 2012. Apx-129 (Jr. 56). Around that time, M&M moved “two machines and put them next together – next to the other machines” to “make room for another machine that we brought in.” Id. M&M added a Sales department around January 2011, consisting of Mark Murphy, and one other M&M employee, to work to bring in more business to M&M. Apx-233-34 (Mark 19, 21-22). At PFI, there had been no “formal” sales department. Apx-234 (Mark 22).
Each and every PFI employee became an M&M employee following M&M’s purchase of PFI. Apx-117 (Julie 139). There was no re-application process, no re-hiring, or terminations during this transition from PFI to M&M. Apx-117 (Julie 138). Neither has there been much fluctuation in the number of employees since then: at the time M&M purchased PFI, PFI had about “30, 32” employees (Apx-100; Julie 68) and currently M&M has about 28 employees (Apx-100; Julie 67).
For example, Volk is an M&M junior-level manager who oversees production throughout the facility. Apx-99 (Julie 62-63). At PFI, Volk was the manager of PFI’s north plant. Apx-153 (Jr. 192). PFI employee David Danielzuk worked in engineering and programming. Apx-233-34 (Mark 20-21). At M&M, Danielzuk continued working in that engineering and programming role for another two years. Apx-233 (Mark 20). Another PFI employee named Robin continued in her same position at M&M (handling shipping and inventory). Apx-142 (Jr. 101-102). At the time of M&M’s purchase of PFI, Jeff Bergeron held the position of press brake lead at PFI. Apx-153 (Jr. 190). At M&M, Bergeron continued to hold that position until sometime shortly after the purchase, at which point he became M&M’s sheet metal manager and eventually its floor manager. Apx-153 (Jr. 190-91).
Murphy Jr. is M&M President (Apx-233; Mark 18), Mark Murphy is its Vice President and Secretary (Apx-232; Mark 15), and its Board of Directors is comprised of Murphy Jr., Mark Murphy, and Murphy, Sr. Apx-94 (Julie 39). At M&M, Murphy Jr. “oversees the operations of the company” while Mark Murphy is “mainly in charge of sales and customer relations” and also “participates in the general management of the business operations.” SApx-16 (Julie 46-48). The Murphy brothers work together on “any major decisions that have to be done regarding the company as far as equipment, financial situations.” Apx-233 (Mark 18). Julie Murphy, the wife of Murphy Jr. (Apx-122; Julie 184), is an M&M employee whose role is divided between acting as M&M’s chief financial officer and its Human Resources employee. Apx-92 (Julie 11-12).
Murphy Jr. and Mark Murphy were PFI’s plant co-managers from 2000 (Apx-126; Jr. 20) until M&M purchased PFI (Apx-128; Jr. 25). As PFI plant co-managers, the Murphy brothers ran the plant together while Murphy Sr. “did the administration.” Apx-133 (Jr. 72). Mark Murphy handled “inside sales, purchasing, programming” and Murphy Jr. was in charge of “handling the floor.” Apx-187 (Jr. 404). By the time of PFI’s sale to M&M, Murphy Sr. had already “kind of turned it over to [Mike Jr. and Mark] to make the decisions, run it by me, if needed.” Apx-204 (Sr. 90). Before joining M&M’s Board of Directors, Murphy Sr. was PFI’s sole President for approximately 38 years. Apx-191 (Sr. 14); Apx-127 (Jr. 24).
Following the sale of PFI’s assets to M&M, PFI’s activity was limited to those necessary for its dissolution — the processing of final paperwork and the filing of its final tax returns. Apx-200 (Sr. 51-52). PFI’s dissolution was complete in all respects by around December 2011. Apx-200-201 (Sr. 52-53). PFI currently has “zero” net worth, as it no longer exists, and owns no assets. Apx-205 (Sr. 97). In 2012, M&M had approximately $4,456,700.76 in total assets, as reflected by its balance sheet from June 30th of that year. SApx-10.
Though it was not a party to the Anderson lawsuit, M&M paid out PFI’s legal obligation under the Anderson settlement, making at least the June 1, 2011, and September 1, 2011, payments set forth in the consent decree. Apx-108 (Julie 101-103). The same lawyers who represented PFI in the sale of its assets to M&M also “drew up the M&M legal documents.” Apx-123 (Julie 185). PFI Inc. and M&M are represented by the same attorney in this litigation, and the attorney’s fees are paid by M&M. Apx-108 (Julie 103).
The district court held that the Commission failed to make out a prima facie case of retaliation for Breaux’s participation in the EEOC’s Anderson investigation “because no causal connection exists.” Slip op. (Addendum) at 32. (There was no dispute that Breaux had engaged in protected activity or suffered an adverse action.) Id.
There was insufficient evidence of a causal connection, in the court’s view, because the time between the adverse action (September 1, 2009) and the protected activity (June 24, 2008) was too long a duration. Id. The district court concluded that, even assuming that PFI knew the Commission had filed the Anderson lawsuit before it fired Breaux, “no reasonable jury could find that this knowledge would have prompted PFI to suddenly retaliate against Breaux for an interview it had known about for over a year.” Id. at 34.
It was “undisputed,” the district court stated, that PFI had known since June 2008 that Breaux had specifically discussed Anderson with the Commission. Id. at 35. The district court also emphasized that “PFI had no reason to think that Breaux’s interview would not be favorable to it,” as “Breaux had recommended that PFI terminate Anderson and had frequently complained about Anderson's performance.” Id. at 34. In addition, the district court “note[d] that PFI did not terminate the other PFI employees who were interviewed during the EEOC investigation.” Id. As for PFI’s request that Breaux “execute an acknowledgment that the EEOC had questioned him about Anderson,” the district court construed this evidence as supportive of PFI’s claim that PFI “wanted to complete its records concerning Mark Murphy’s concerns about the Anderson investigation.” Id. at 35.
As to the Commission’s motion for summary judgment on the issue of successor liability, the district court concluded that the motion was moot, and denied it on that basis, as it had granted summary judgment to the defendants on the Commission’s discrimination claims. Id. at 37. The district court did not analyze any aspect of the successor liability issue. Id.
The record evidence in this case warrants submission of the Commission’s retaliation claim to a jury to determine whether PFI fired Breaux because he participated in the Commission’s investigation of Anderson’s ADA charge. The evidence reflects that the day after the Commission filed the Anderson lawsuit, PFI called Breaux into a private meeting, questioned him about whether he discussed Anderson with the EEOC investigator, had Breaux sign an acknowledgment that he discussed Anderson with the EEOC, and fired him hours later. The record evidence would allow a reasonable factfinder to conclude that PFI’s decision to fire Breaux was precipitated by the Commission’s lawsuit against PFI, and not because of any alleged and undocumented performance problems. Accordingly, this Court, reviewing the record de novo,[7] should reverse the district court’s grant of summary judgment to the defendants on this claim.
In addition, under this Court’s and other Circuit’s precedent, there is no genuine issue of material fact that M&M is liable for PFI’s discrimination against Breaux under the doctrine of successor liability. The record reflects that M&M’s owners were aware of Breaux’s EEOC charge, that PFI is now defunct and unable to provide any relief, and there is substantial continuity between the two companies. This Court should reverse the district court’s denial of the Commission’s motion for partial summary judgment on the issue of successor liability.
Under this Court’s precedent, and the retaliation standard recently articulated in University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013), there is sufficient evidence to create a triable issue that PFI would not have fired Breaux but for his participation in the Commission’s investigation of a discrimination charge against PFI.[8]
The inquiry at summary judgment is to determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Factual disputes “that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 248. Accordingly, “summary judgment is not appropriate if the facts are subject to more than one reasonable interpretation.” Riedl v. Gen. Am. Life Ins. Co., 248 F.3d 753, 759 (8th Cir. 2001) (summary judgment was improper “[b]ecause the evidence in the record would support a reasonable fact-finder’s decision for either party”). As the defendants moved for summary judgment on the Commission’s retaliation claim, the record evidence must be viewed in the light most favorable to the Commission. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011). “The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255.
The first two elements of the Commission’s retaliation claim are easily met and were not disputed below. To establish a prima facie case of retaliation, a plaintiff must demonstrate that (1) she engaged in statutorily protected activity, (2) she suffered an adverse employment action, and (3) a causal connection exists between the protected activity and the adverse employment action. Thomas v. Corwin, 483 F.3d 516, 530 (8th Cir. 2007). Breaux participated as a witness in the EEOC’s investigation of Anderson’s charge. By statutory definition, he engaged in protected activity. 42 U.S.C. § 12203(a); see also Hunt v. Nebraska Pub. Power Dist., 282 F.3d 1021, 1028 (8th Cir. 2002) (protected activity includes “either opposing an act of discrimination made unlawful by Title VII (‘the opposition clause’), or participating in an investigation under Title VII (‘the participation clause’)”). Furthermore, termination “unquestionably constitutes an adverse employment action.” Thomas, 483 F.3d at 531.
The filing of the Commission’s Anderson lawsuit, and PFI’s inquiry to Breaux about his participation in the Commission’s Anderson investigation, provide the causal link between Breaux’s protected participation and PFI’s termination of his employment. As this Court instructs, direct evidence of retaliation is that which “demonstrates a specific link between a materially adverse action and the protected conduct, sufficient to support a finding by a reasonable fact finder that the harmful adverse action was in retaliation for the protected conduct.” Young-Losee v. Graphic Packaging Int’l, Inc., 631 F.3d 909, 912 (8th Cir. 2011) (explaining that “direct” refers to the causal strength of the proof). There is precisely such evidence in this case. The Commission’s filing of a lawsuit seeking relief for Anderson against PFI on August 31, 2009, and PFI’s pointed inquiry to Breaux on September 1, 2009, about his participation in the Commission’s investigation, are “specific link[s]” between Breaux’s participation in the Anderson investigation and PFI’s retaliatory termination of Breaux’s employment on September 1, 2009.
In Womack v. Munson, 619 F.2d 1292 (8th Cir. 1980), this Court held that the plaintiff had established “a strong case” of retaliation, where, two days after the plaintiff filed a lawsuit alleging racial discrimination against his employer, his supervisor called him into a meeting upon learning of the lawsuit to “determine what sort of lawsuit this was,” and the employer suspended the plaintiff five days thereafter, and fired him approximately twenty days later. Womack, 619 F.2d at 1294-96. As in Womack, where the filing of a discrimination lawsuit prompted the employer to question the plaintiff about it and then retaliate against him, the Commission’s filing of the Anderson lawsuit on August 31, 2009, triggered PFI’s retaliatory reaction to Breaux’s participation in the June 2008 EEOC investigation.
The evidence allows the reasonable inference that on August 31, 2009, or September 1, 2009, PFI became aware that the Anderson investigation had resulted in a lawsuit. The record reflects that the Commission called PFI on August 31, 2009, and left a message with a PFI employee to relay to Murphy Sr. that the Commission had filed the Anderson lawsuit earlier that day.[9] On September 1, 2009, the Commission’s filing of the lawsuit was covered in the local media. It is undisputed that on September 1, 2009, Mark Murphy specifically asked Breaux, in a private meeting, about his communication with the EEOC concerning Anderson, and then hours later, fired him. Indeed, Murphy Jr.’s testimony that Mark Murphy’s express purpose for the meeting was to establish documentation that the EEOC discussed Anderson with PFI employees is itself evidence of PFI’s knowledge of the lawsuit. As the EEOC investigation had taken place in June 2008, and the Commission’s determination of Anderson’s charge had been issued in August 2008 (Apx-35-36), PFI would have no reason to seek such documentation well over a year after these events unless it had come to learn something new that triggered a need for it. These facts would allow a reasonable factfinder to infer that the Anderson lawsuit caused Murphy to press Breaux about his communication with the EEOC and motivated PFI to retaliate against Breaux for assisting in the Anderson investigation. See Hudson v. Norris, 227 F.3d 1047, 1051, 1053 (8th Cir. 2000) (causation satisfied in First Amendment retaliation case where, shortly after plaintiff testified at a co-worker’s trial against the same employer, defendant employer took adverse actions against him; characterizing the plaintiff’s step of testifying against his employer as “lawful, but unquestionably inflammatory”).
Evidence that Murphy Sr. was “very very upset” about the lawsuit, and that Mark Murphy became concerned about the EEOC’s investigation upon learning of the lawsuit, provides further basis for the inference that PFI retaliated against Breaux by firing him for his role in the investigation that culminated in that lawsuit. See EEOC v. Kohler Co., 335 F.3d 766, 771 n.5, 774 (8th Cir. 2003) (where defendant plant manager testified that he was “upset” at the employee’s allegation of discrimination, holding that evidence of temporal proximity, “coupled with” that testimony, formed the basis for an inference of a causal connection between the employee’s allegation and the termination of his employment).
Crediting Mark Murphy’s testimony that Breaux told him around June 2008 that Breaux had spoken unfavorably about Anderson to the EEOC, a reasonable factfinder could nonetheless conclude that the filing of the Anderson lawsuit changed the Murphys’ view about what Breaux told the Commission during its investigation. The record reflects, for example, that when Murphy Sr. learned of the Commission’s lawsuit, he was upset and in disbelief. Meanwhile, Mark Murphy testified that the filing of the lawsuit caused him concern with the Commission’s investigation of Anderson’s charge. This evidence supports the inference that PFI did not believe Breaux’s participation in the Commission’s investigation had been detrimental to it, until the filing of the lawsuit. See Hobgood v. Illinois Gaming Bd., No. 11-1926, 2013 WL 3599498, at *6 (7th Cir. July 16, 2013) (where plaintiff alleged retaliation under Title VII and the First Amendment, holding that evidence created a triable issue as to whether defendant retaliated against plaintiff for assisting his co-worker with his lawsuit, where the adverse actions against the plaintiff began only after defendants had become aware, through the co-worker’s initial disclosures in his lawsuit, that the plaintiff had assisted him).
As PFI was now subject to a lawsuit, a reasonable factfinder could also infer that PFI concluded it must have been Breaux, as opposed to the other interviewed employees, who made incriminating statements about PFI during the Commission’s Anderson investigation. Though the Commission had interviewed PFI employees Bergeron and Hunt, Breaux had been Anderson’s direct supervisor, and was therefore particularly knowledgeable about Anderson. Mark Murphy’s note, which he wrote and had Breaux sign on September 1, 2009, reflected that Breaux had known Anderson “for years” and that the Commission had selected Breaux to be interviewed about Anderson. Mark Murphy further testified that the Commission had “specifically” requested to speak with Breaux during its investigation (as opposed to Bergeron and Hunt, who had not been specifically requested). Moreover, Mark Murphy testified that Hunt and Bergeron had expressly denied speaking about any other PFI employee to the Commission when he asked them about the matter around June 2008. Though notes from the Commission’s investigation reflect that Breaux spoke critically of Anderson to the Commission (Apx-76), the record evidence would allow a reasonable inference that PFI had not received these investigative notes until after it had fired Breaux on September 1, 2009, and acted on the assumption that Breaux’s statements to the EEOC had made PFI vulnerable to litigation.[10]
Indeed, while the date when the plaintiff engaged in protected activity is highly probative evidence in a retaliation case, the focus of the causation analysis should not unduly hinge on that timing, but also consider evidence of the defendant’s knowledge and retaliatory motive at the time of the alleged retaliatory act. In its recent Hobgood decision, a case involving Title VII and First Amendment retaliation claims, the Seventh Circuit held that the district court had erred in focusing exclusively on whether the defendants were aware of the plaintiff’s protected activity at the time the activity occurred. Hobgood, 2013 WL 3599498, at *6. There, the plaintiff had assisted a co-worker in organizing and researching his co-worker’s lawsuit against the same employer prior to the filing of that lawsuit, but the defendants only became aware of that activity after the lawsuit was filed, by way of the co-worker’s discovery responses. Id. at *2. In that context, the Seventh Circuit explained that the “relevant time for knowledge [was] when the alleged retaliation took place, not the time the protected activity occurred.” Id. at *6 (alteration to original). The Seventh Circuit concluded that the plaintiff’s assistance with his co-worker’s lawsuit was protected activity, as the defendants knew of his assistance at the time of the alleged retaliatory investigation of the plaintiff.[11] Id.
The Hobgood analysis is instructive here in that the relevant knowledge in this case is PFI’s new and unwelcome awareness — the day before or the same day it fired Breaux — that it was now subject to a federal lawsuit based on Anderson’s EEOC charge. A jury could conclude that it was that new information that triggered its retaliation against Breaux for assisting in the underlying Anderson investigation. Though PFI was aware that the Commission had interviewed Breaux during its Anderson investigation in June 2008 — indeed, several of the Murphys were also interviewed — the record allows the reasonable inference that the Murphys had assumed Breaux had disclosed no incriminating facts about PFI to the Commission, but that when the lawsuit was filed, their perspective changed. The district court erred in placing undue emphasis on when the protected activity originally occurred and PFI’s generalized knowledge of Breaux’s participation, where on this record, it is PFI’s fresh knowledge of the Commission’s lawsuit and PFI’s conduct at the time it fired Breaux that supports the causation prong of the Commission’s retaliation claim.
Nor does the sole fact that over a year passed between Breaux’s protected activity in June 2008 and his termination on September 1, 2009, preclude a showing of causation. In Heaton v. Weitz Co., Inc., 534 F.3d 882 (8th Cir. 2008), for example, the defendant relied on Sims v. Sauer-Sundstrand Co., 130 F.3d 341 (8th Cir. 1997), to argue that a lengthy passage of time between the plaintiff’s discrimination complaint and adverse action alone foreclosed a showing of causation, and this Court rejected that reading of Sims. Heaton, 534 F.3d at 888. This Court explained that Sims merely reiterated the proposition that the passage of time does not, by itself, foreclose a retaliation claim, but instead allows a weaker inference than that which arises when a retaliatory act occurs shortly after a complaint. Id. The holding in Sims in favor of the defendant, the Heaton Court continued, was not based solely on the fact that over a year had passed between the protected activity and the alleged retaliation, but rather on the general absence of evidence because the plaintiff had “provided virtually no other evidence of a causal connection.” Id. (citation omitted). Here, the timing of PFI’s act of firing Breaux — the day after the Commission filed the Anderson lawsuit — along with PFI’s inquiry and request for a written acknowledgment about Breaux’s participation in the Anderson investigation just hours before it fired him, show a causal relationship between Breaux’s protected activity in that investigation and his termination.
In light of the above facts, a reasonable factfinder could conclude that the filing of the lawsuit triggered PFI’s retaliatory animus toward Breaux for his participation in the EEOC investigation, and he was fired for that reason. See Zhuang v. Datacard Corp., 414 F.3d 849, 856 (8th Cir. 2005) (“A causal connection implies not just a relationship between two events, but a certain type of relationship in which one event is generated by the other. . . . The closer in time two events are found to occur, however, the greater the odds become that one is caused by the other or that both are caused by a separate, third event.”). The district court’s error in assessing the evidence of causation should be reversed to allow a jury to make that determination.
Though strong evidence of causation “for the purposes of establishing a prima face case” may be sufficient to establish pretext (Stewart v. Indep. Sch. Dist. No. 196, 481 F.3d 1034, 1043 (8th Cir. 2007), there is additional record evidence sufficient to show pretext: the absence of any written warnings to Breaux preceding his termination in contravention of PFI’s protocol, and the circumstances surrounding PFI’s hire of Breaux’s purported replacement.
PFI claimed it fired Breaux for poor performance, citing delays in the manufacturing process allegedly attributable to Breaux and complaints from others about his performance. Defs. SJ Br. 12-13. Breaux, however, stated that he was never counseled that his performance was not meeting expectations. Additionally, the absence of any documentation regarding Breaux’s allegedly ongoing performance deficiencies is inconsistent with how PFI typically handled employees with performance issues during the time period Breaux was fired. Murphy Jr. testified that PFI’s “action notification” forms were a way that the company tried to help an employee get on track, and was the first step leading to an employee’s possible termination. There is no record evidence, however, of PFI issuing any action notifications to Breaux. Erickson v. Farmland Indus., Inc., 271 F.3d 718, 727 (8th Cir. 2001) (“Another common method of proving pretext is to show that it was not the employer’s policy or practice to respond to such problems in the way it responded in the plaintiff's case.”).
In contrast to PFI’s response to Breaux, the same year Breaux was fired, PFI issued an action notification to a PFI employee on April 7, 2009, for a poor attitude and committing “many mistakes in his work.” It then suspended the employee. PFI then fired that same employee on July 13, 2009, for an increase in errors and decreased progress in the employee’s department. SApx-28. Murphy Jr. testified that Breaux was similar to that employee in that both had been good performers but had deteriorated in their performance. Apx-180 (Jr. 329-30). Also in 2009, PFI fired a supervisor (a paint line manager) for performance issues on June 5, 2009, but only after it had issued an action notification beforehand, on April 8, 2009. That termination was based on issues such as the supervisor’s failure to complete his work properly. SApx-28. These are facts that would allow a reasonable inference that if PFI had observed problems with Breaux’s performance, particularly those severe enough to warrant termination, it would have similarly provided him with an action notification beforehand, as was its protocol. See Fitzgerald v. Action, Inc., 521 F.3d 867, 874 (8th Cir. 2008) (employer’s contravention of normal disciplinary policies constituted evidence of pretext, where protocol was to give a verbal warning before written warnings, and three written warnings before firing an employee, and supervisor gave no verbal warning before issuing a written warning and fired plaintiff after one written warning).
Additionally, based on management testimony, Breaux had been promoted to South Plant Manufacturing Supervisor in September 2008 because of his good performance and had performed satisfactorily in that role for at least seven months and well into 2009. See Ridout v. JBS USA, LLC, No. 12-3220, 2013 WL 2661171, at *4 (8th Cir. June 14, 2013) (where defendant employer claimed it fired plaintiff for declining performance, holding that plaintiff had presented evidence of pretext in that he “had never been counseled or warned about any declining performance prior to his termination,” had presented evidence of being a productive employee for years, and where defendant had provided “no specific examples and no contemporaneous evidence to provide substance” to the assertions of a decline in performance.) Murphy Jr. and Mark Murphy both admitted that they never informed Breaux — in either verbal or written form — that his purported performance problems were jeopardizing his job. The absence of any notification to Breaux that his performance was placing his job at risk, particularly given that PFI claimed it saw a decline in Breaux’s performance around May or June 2009, provides further support that his termination on September 1, 2009, would not have occurred but for his participation in the Anderson investigation, and the Commission’s filing of the Anderson lawsuit on August 31, 2009.
PFI argued that it had already decided to fire Breaux in the summer of 2009, citing an advertisement it placed on July 30, 2009 for the position of “Turret Lead.” Defs. SJ Br. 14; Apx-44-46. PFI contended that it had functionally demoted Breaux to Turret Lead before he was fired, and this listing was to seek Breaux’s replacement. Defs. SJ Br. 14-15. PFI ultimately hired Craig Baker as a “Turret Lead” (Apx-53 ¶ 9) on September 2, 2009, and he was still a turret lead when he was fired several months later. SApx-28 (listing employment dates for Baker as “9/2/09 to 11/13/09” as “Turret Lead”).
The circumstances surrounding Breaux’s termination, however, undermine PFI’s assertion that it had long planned to fire Breaux and are instead suggestive of a hastily made decision. Mark Murphy testified that he could not fire Breaux at their lunchtime meeting on September 1 because Carol Murphy had not completed the paperwork for the termination. Apx-280 (Mark 207). The “documentation wasn’t quite ready.” Id. Carol Murphy explained that she only learned of Breaux’s termination that same day. A reasonable factfinder could conclude that, had PFI planned to fire Breaux as early as July 2009, Carol Murphy — who was responsible for preparing such employee paperwork — would have been informed before the day of the termination that Breaux was being fired. Though PFI claimed that the timing of Baker’s hire on September 2, 2009, was based on Baker’s availability, significantly, PFI offered no additional facts to explain the circumstances necessitating that particular start day.[12]
Moreover, a reasonable factfinder could infer that PFI advertised a “Turret Lead” position in July 2009, not to replace Breaux, but to seek additional support for the operation of its turrets, and in response to Breaux’s weekly complaints about the lack of adequate personnel to man the south plant. Murphy Jr. testified that PFI had lost an experienced turret operator on Breaux’s crew. Though the exact timing of that employee’s departure is unclear, Murphy Jr. testified that Breaux’s performance began to decline around May or June 2009, and this purported decline corresponded to the departure of that experienced turret operator. Despite PFI’s hire of MG in June 2009 to operate the turrets, Murphy Jr. testified that this replacement was inadequate. PFI’s July 2009 advertisement for “Turret Lead” and record evidence that PFI still needed more experienced personnel to compensate for the loss of its experienced turret operator would allow a reasonable factfinder to conclude that PFI sought exactly what it had advertised for at that time — an experienced turret operator, not a new South Manufacturing Supervisor.
Finally, though PFI claimed that it had functionally demoted Breaux to the position of Turret Lead, Breaux’s position title at the time of his termination was South Manufacturing Supervisor.[13] Apx-215 (Sr. 150-51); Apx-52 ¶ 2. See Bainbridge v. Loffredo Gardens, Inc., 378 F.3d 756, 761 (8th Cir. 2004) (though defendant employer claimed it had demoted plaintiff during his employment, the record indicated no change in job title and plaintiff had consistently received raises during his employment, which was indicative of “more than satisfactory performance”; citing those facts as basis for giving the plaintiff “the benefit of the inference on this issue”). Here, documents from Breaux’s personnel file reflect that he received only pay raises and increases in responsibility over the course of his employment at PFI.[14] Additionally, at that time, due to a shoulder condition (SApx-19), Breaux was working under a medical lifting restriction issued by his physician. Apx-333-34 (Breaux 137-38). Murphy Jr. testified that Breaux’s lifting restrictions rendered him unable to do some of the lifting required of a Turret Lead, and that accordingly, he would not have allowed Breaux to work as a Turret Lead. Apx-172-73 (Jr. 284-85).[15] Mark Murphy testified that he never considered demoting Breaux from South Manufacturing Supervisor to a lower position at all, in part because “in my experience throughout my years, demoting a person from a position of a lead or a supervisor down to a general laborer is not beneficial to either party.” Apx-297 (Mark 274-75).
The foregoing evidence, in addition to the evidence of causation, creates a triable issue of pretext. PFI gave Breaux neither written nor verbal warnings that his purported performance problems were jeopardizing his employment, though its practice — including in 2009, the year Breaux was fired — was to provide such warnings to employees before taking more serious disciplinary action. A reasonable factfinder could also infer from the record that PFI’s advertisement in July 2009 for a Turret Lead was placed to hire an employee who could help fill the gap left by the departure of its experienced turret operator earlier that year, not to seek a South Plant Supervisor. The circumstances surrounding PFI’s firing of Breaux would further allow a reasonable jury to find that PFI’s decision to fire Breaux had not been long-decided, but had come immediately on the heels of PFI’s discovery that it was now being sued in relation to Anderson’s EEOC charge and the corresponding investigation in which Breaux participated.
If this Court remands the case for trial of the Commission’s retaliation claim,
this Court — under de novo review[16] — should also reverse the district court’s denial of the Commission’s motion for partial summary judgment on successor liability and direct entry of judgment for the Commission on this issue. The record evidence establishes that, as a matter of law, M&M is PFI’s successor under the “substantial continuity” theory of successor liability, and therefore liable for PFI’s discrimination of Breaux.
Under traditional common law principles, when one corporation sells all or a substantial part of its assets to another, the purchaser of those assets does not generally become liable for its predecessor’s debts and liabilities. Brzozowski v. Corr. Physician Servs., Inc., 360 F.3d 173, 177 (3d Cir. 2004). There are several exceptions to this rule, including liability of the successor in the employment discrimination context based on substantial continuity between the successor and predecessor’s operation. Id. at 177-78. See generally Musikiwamba v. Essi, Inc., 760 F.2d 740, 745-46 (7th Cir. 1985) (discussing Supreme Court precedent on the successor liability doctrine in the labor context; stating that those analyses “justifie[d] successor liability in employment discrimination cases” given the shared objectives of the National Labor Relations Act and federal antidiscrimination statutes, the weak position of victims to protect their rights against an employer’s change in business, and the successor’s ability to provide relief). As this Court has explained, the “premise of successor liability is that ‘failure to hold a successor liable for the discriminatory practices of its predecessor could emasculate the relief provisions of Title VII by leaving the discriminatee without a remedy or with an incomplete remedy.’” Prince, 622 F.3d at 995 (quoting EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086, 1091 (6th Cir. 1974)). The “primary concern” of this determination is “to provide the discriminatee with full relief.” MacMillan, 503 F.2d at 1092.
This Court considers nine factors under the “leading approach to resolving questions of successor liability” outlined in the Sixth Circuit’s MacMillan decision. Prince, 622 F.3d at 995. The nine factors are: “(1) whether the successor company had notice of the charge; (2) the ability of the predecessor to provide relief; (3) whether there has been a substantial continuation of business operations; (4) whether the new employer uses the same plant; (5) whether the new employer uses the same or substantially the same work force; (6) whether the new employer uses the same or substantially the same supervisory personnel; (7) whether the same jobs exist under substantially the same working conditions; (8) whether the new employer uses the same machinery, equipment, and methods of production; and (9) whether the new employer produces the same product.” Prince, 622 F.3d at 995. Of the nine MacMillan factors, the first two factors — notice and ability of the predecessor to provide relief — are “critical” to the inquiry. Rojas v. TK Commc’ns, Inc., 87 F.3d 745, 750 (5th Cir. 1996); Criswell v. Delta Air Lines, Inc., 868 F.2d 1093, 1094 (9th Cir. 1989) (stating that “emphasis” of successor liability analysis is on notice and ability of predecessor to provide relief); Musikiwamba v. Essi, Inc., 760 F.2d 740, 750 (7th Cir. 1985) (“The first two factors identified in MacMillan are critical to the imposition of successor liability.”).
There is no factual dispute as to either notice or the predecessor’s ability to provide relief. Notice of a discrimination charge satisfies this first factor. See Prince, 622 F.3d at 995 (citing fact that company had “notice of the discrimination charge” against predecessor company as support for the imposition of successor liability); Dominguez v. Hotel, Motel, Rest. & Misc. Bartenders Union, Local # 64, 674 F.2d 732, 733 (8th Cir. 1982) (holding that company could not be held liable as successor to plaintiff’s employer, because it was unaware of the EEOC charges filed by plaintiff at the time of its purchase of the business at a foreclosure sale; also noting that the company had neither direct nor indirect knowledge of the plaintiff’s allegations of discrimination).
Defendants concede that both M&M owners knew that Breaux had filed a charge of discrimination against PFI before its purchase of PFI. See Defs. Opp SJ Br. p. 7 (stating that “M&M owners Mark and Mike Murphy, Jr. were aware that Breaux had filed a Charge of Discrimination against PFI”). Rather, defendants argued below that despite this knowledge, neither Mark Murphy nor Murphy Jr. believed Breaux’s charge would be an “outstanding liability.” Id. The record reflects, however, that both Murphy brothers were interviewed as part of the Breaux investigation, and that Mark Murphy was interviewed just weeks before M&M’s October 26, 2010, purchase of PFI. Thus, at least one of the two M&M owners plainly knew Breaux’s charge was unresolved at that point. In fact, both Murphy brothers had been interviewed by the EEOC in its 2008 investigation of Anderson’s charge and knew in 2009 that the Anderson charge and EEOC investigation had resulted in a lawsuit. Particularly given that context, no reasonable factfinder could conclude that after having seen an EEOC charge against PFI culminate in a lawsuit, Mark and Murphy Jr. were reasonably convinced that Breaux’s charge would not materialize into a lawsuit.
As to the second factor, there is no factual dispute that PFI no longer exists and has no assets or monetary value. It is plainly unable to provide any relief on the Commission’s claim as to Breaux. See Criswell, 868 F.2d at 1095 (this factor satisfied, where predecessor defendant was “clearly incapable of providing the relief required by the injunction; it no longer exists as a corporate entity”). Defendants did not contest this fact below. See Defs. Opp SJ Br. p. 24 (“M&M acknowledges that PFI has no assets.”).
As for the remaining MacMillan factors, these “provide a foundation for analyzing the larger question of whether there is a continuity in operations and the work force of the successor and predecessor employers.” Musikiwamba, 760 F.2d at 751. The record evidence is more than sufficient to establish substantial continuity between M&M and PFI, such that no reasonable jury could conclude otherwise.
There is no factual dispute that M&M holds itself out publicly using the name Product Fabricators as its corporate identity. That fact alone — adopting the predecessor’s corporate identity — “makes a strong case for substantial continuity.” Chicago Truck Drivers, Helpers & Warehouse Workers Union (Indep.) Pension Fund v. Tasemkin, Inc., 59 F.3d 48, 49 (7th Cir. 1995) (also stating that the following facts supported both notice and continuity: the owner of successor company was the daughter-in-law of predecessor’s owner; the predecessor’s registered agent, the son of predecessor’s owner, was now president and secretary of successor company; and the successor company “operated the same business (albeit from fewer locations),” “employed largely the same staff,” and “relied primarily on the same suppliers”).
Regarding the fourth factor, M&M uses the same facility that PFI did, and neither expanded nor bought additional property. Prince, 622 F.3d at 995 (stating that the fact that defendant operated in the same location as its predecessor supported the imposition of successor liability); MacMillan, 503 F.2d at 1094 (reversing grant of summary judgment to corporate defendant; concluding that evidence created triable issue as to successor status, including fact that defendant “operated its facility at the same address” as predecessor).
Regarding the fifth, sixth, and seventh factors — retention of substantially the same workforce, use of substantially the same supervisory personnel, and whether the same jobs existed under substantially the same working conditions — the record evidence also establishes M&M’s successor status. The record reflects that every single PFI employee became an M&M employee following PFI’s sale to M&M, with no terminations, re-hiring, or re-application process. Thereafter, there was little fluctuation in staffing. See Worth v. Tyer II, 276 F.3d 249, 261 (7th Cir. 2001) (holding defendant liable as successor in Title VII case, as “every employee of [predecessor] became an employee of [defendant] and [defendant] acquired [predecessor]’s assets”) (emphasis in original). Supervisory personnel at PFI also remained in supervisory positions at M&M. The Murphy brothers, who had managed PFI plant’s operations, continued to oversee the plant at M&M and manage the company’s business operations together. Murphy Sr., formerly the President of PFI, was appointed to M&M’s Board of Directors. Mid-level managers such as Volk also remained in mid-level management positions at M&M while other employees such as Robin and Danielzuk continued at M&M, following the sale of PFI, in the same position that they had at PFI. See Upholsterers’ Int’l Union Pension Fund v. Artistic Furniture of Pontiac, 920 F.2d 1323, 1329 (7th Cir. 1990) (“Continuity of operations is easily established here. Artistic employed substantially all of Pontiac’s workforce and it appears, supervisory personnel as well.”).
Though defendants asserted that “M&M’s management model varied dramatically from PFI” (Defs. Opp SJ Br. p. 8), the record refutes this contention. By the time of PFI’s sale to M&M, for example, the Murphy brothers were in senior management roles and already exercising decision-making at PFI. Indeed, Murphy Sr. testified that by that time, he had already “kind of turned [PFI] over to [Mike Jr. and Mark] to make the decisions, run it by me, if needed.” Apx-204 (Sr. 90). Defendants’ effort to meaningfully distinguish the Murphy brothers’ management roles at PFI from their roles at M&M based on decision-making ability lacks force. See Defs. Opp SJ Br. p. 8 (“[U]nlike PFI, Mark and Mike Murphy, Jr. are the decisionmakers for M&M”); pp. 20-21.
Moreover, given M&M’s en masse hiring of all PFI employees to continue the same sheet metal operation, neither the company’s later creation of three positions (CFO, Production Manager, and Quality Assurance Manager) nor the elimination of several positions detracts from a finding of substantial continuity.[17] Rather, even assuming these factual contentions are true, these are organizational changes that amount to “only basic cosmetic modifications” to the company’s structure. See NLRB v. Jarm Enters., Inc., 785 F.2d 195, 200-01 (7th Cir. 1986) (where defendant argued it was a “radically new enterprise under its current management,” in part due to its “creation and elimination of certain supervisory positions and job classifications,” concluding that these were cosmetic changes; stating that “the overriding aspect of the acquisition by [successor] was the continuity of identity of the work force,” demonstrated by its hiring of all its predecessor’s employees at the time of the purchase).
As to the remaining MacMillan factors — consideration of machinery, equipment, and methods of production, and production of the same product — M&M continues to operate as a metal fabricator,[18] using PFI’s pre-existing machinery, equipment, and methods. Julie Murphy testified there was no interruption of production at the plant, even on the day M&M purchased PFI. See Call Ctr. Techs., Inc. v. Grand Adventures Tour & Travel Publ’g. Corp., 635 F.3d 48, 54 (2d Cir. 2011) (stating that fact that corporation “was able to continue serving [predecessor]’s customers, without significant interruption on the day following the foreclosure sale” was indicative of continuity). M&M also continues to use the same departments that had existed at PFI, and M&M used the same layout as PFI for months following its purchase of PFI until it made a modification over a year later, in 2012 — the movement of several machines to a different part of the plant to make room for its acquisition of another machine. See EEOC v. G-K-G, Inc., 39 F.3d 740, 748 (7th Cir. 1994) (affirming district court’s grant of summary judgment that corporation was successor, where corporation “retained most of [predecessor]’s personnel, including most of its management personnel” and “did not institute major changes until a year after the acquisition”; noting that “[i]f this is not a case of substantial continuity, we do not know what is”). In light of all the relevant factors, the evidence establishes substantial continuity between PFI and M&M and, therefore, M&M’s successor status.
Holding M&M as PFI’s successor to liability for PFI’s retaliatory termination of Breaux is also supported by concerns of equity. Those who were directly involved in Breaux’s termination constitute top management at M&M. Mark Murphy, M&M’s Vice President, was the PFI plant manager who both questioned Breaux about his participation in the EEOC’s Anderson investigation, and then fired Breaux on September 1, 2009. Murphy Jr., M&M’s President, was Breaux’s direct supervisor at PFI, and testified that he was involved in the decision to fire Breaux, along with Mark Murphy and Murphy Sr. Apx-166 (Jr. 251-52). These circumstances make the application of successor liability wholly appropriate and consistent with the doctrine’s purpose to properly effectuate anti-discrimination laws. Here, the principal actors involved in the adverse action at PFI are the very same employees that incorporated M&M and serve as the corporation’s senior officials. See EEOC v. Vucitech, 842 F.2d 936, 946 (7th Cir. 1988) (holding defendant liable as successor, where discrimination “was a legacy” of that company). In light of all the MacMillan factors, the record evidence leaves no genuine issue of material fact as to the substantial continuity between PFI and M&M.
Finally, PFI’s weak financial status at the time of its sale to M&M does not weigh against applying the successor liability doctrine here. Defendants had argued below that “if PFI would have continued its business, it would have gone bankrupt,” which made it “unlikely that Breaux could have recovered any funds from PFI or Mike Murphy, Sr. Thus, he should not be provided with a windfall by being allowed to recover against M&M.” Defs. Opp. SJ Br. p.24. In so arguing, defendants quoted the Seventh Circuit’s discussion in Musikiwamba that “imposing liability on a successor when the predecessor could have provided no relief whatsoever is likely to severely inhibit the reorganization or transfer of assets of a failing business.” Id. (quoting Musukiwamba, 760 F.2d at 750-51).
Since Musikiwamba, however, the Seventh Circuit has revisited its discussion in that case, clarifying that consideration of a predecessor’s ability to pay a judgment prior to succession is not “an ironclad requirement in all cases of successor liability.” Vucitech, 842 F.2d at 946 (discussing Musikiwamba). Rather, the Vucitech Court continued, “the proper approach to the issue of successor liability is not to erect a set of hoops to force plaintiffs to jump through but to ask whether such liability would strike a reasonable balance between the interest in fully sanctioning unlawful conduct and the interest in facilitating the market in corporate and other productive assets.” Id. Indeed, in Vucitech, the Seventh Circuit cited the fact of a successor’s knowledge “that the predecessor itself would not be able to pay a judgment obtained against it” as one that would support a presumption in favor of successor liability. Id. at 945 (“When the successor company knows about its predecessor’s liability, knows the precise extent of that liability, and knows that the predecessor itself would not be able to pay a judgment obtained against it, the presumption should be in favor of successor liability, even if the successor (as here) purchased the assets of its predecessor rather than merged the predecessor into it or consolidated with it.”). M&M meets these very criteria, as it knew about Breaux’s charge prior to its purchase, knew the extent of that liability — particularly as the Murphy brothers had seen the Anderson charge culminate in a lawsuit — and purchased PFI in full knowledge of PFI’s struggling financial condition.[19]
As the record evidence leaves no genuine issue of material fact as to the substantial continuity between PFI and M&M, and where this equitable doctrine would fairly serve its purpose to provide relief for Breaux, this Court should reverse the district court’s denial of summary judgment on successor liability and direct the district court to hold M&M, as PFI’s successor, liable as a matter of law.
This Court should reverse the district court’s grant of summary judgment on the Commission’s claim that PFI fired Breaux in retaliation for his participation in an EEOC investigation. There is more than sufficient evidence to create a triable issue that, but for Breaux’s protected activity, PFI would not have fired him. Though the district court did not address the substance of the Commission’s motion for partial summary judgment on the issue of successor liability, under this Court and other Circuit precedent, the record evidence establishes that M&M is PFI’s successor as a matter of law. Accordingly, this Court should hold that M&M is PFI’s successor and reverse the district court’s denial of the Commission’s summary judgment motion on that issue.
Respectfully submitted,
P. DAVID LOPEZ General Counsel
LORRAINE C. DAVIS
Acting Associate General Counsel
CAROLYN L. WHEELER
Assistant General Counsel
S/Christine J. Back______________
CHRISTINE J. BACK
Attorney
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
131 M Street, NE, Room 5SW24L
Washington, DC 20507
(202) 663-4734
This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 13,165 words, from the Statement of Jurisdiction to the Conclusion, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
The brief complies with the typeface requirements of Fed. R. App. P. 32(a)(6) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportional typeface using Microsoft Word 2007 with Times New Roman 14 font.
Pursuant to Eighth Circuit Local Rule 28A(h), the brief and addendum have been scanned for viruses and are virus-free.
S/Christine Back_____________________
CHRISTINE BACK
Attorney
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
Office of General Counsel
131 M Street, NE, Room 5NW14G
Washington, DC 20507
(202) 663-4734
Dated: August 20, 2013
I certify that on August 20, 2013, I electronically filed the foregoing brief of the Equal Employment Opportunity Commission with the Clerk of the Court of the United States Court of Appeals for the Eighth Circuit through the Court’s ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the Court’s CM/ECF system.
S/Christine Back_____________________
CHRISTINE BACK
Attorney
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
Office of General Counsel
131 M Street, NE, Room 5NW14G
Washington, DC 20507
(202) 663-4734
[1] “Apx-[#]” refers to the Commission’s paginated Appendix.
[2] Because the deponents in this case (with the exception of Breaux) are members of the Murphy family, citations to their respective deposition testimony has been shortened to the deponent’s first name or suffix.
[3] SApx-[#] refers to the Commission’s paginated Appendix of Sealed Exhibits.
[4] The Anderson lawsuit ultimately culminated in a consent decree entered by the district court on February 14, 2012. Civ. No. 09-2303, Docket Entry 71.
[5] The initials of certain PFI employees are being used in lieu of a full name, as the related exhibits have been submitted to this Court under seal.
[6] This had been PFI’s only facility at the time, as PFI moved “everything under one roof” to the Pine City location in 2001. Apx-199 (Sr. 46).
[7] Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (“This court reviews de novo a grant of summary judgment.”)
[8] In Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2533 (2013), the Supreme Court held that a Title VII plaintiff alleging retaliation must show that the protected activity was the “but for” cause of the adverse action. Id. at 2533 (“Title VII retaliation claims must be proved according to traditional principles of but-for causation . . . . This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”). Given the holding in Nassar that Title VII plaintiffs must show that the adverse action would not have occurred but for the protected activity, the Commission assumes for purposes of this litigation that this but-for standard applies to this case, as this Court analyzes Title VII and ADA retaliation claims identically. See, e.g., Thomas v. Corwin, 483 F.3d 516, 530-31 (8th Cir. 2007) (analyzing retaliation claim under Title VII and ADA concurrently and without distinction); Cossette v. Minn. Power & Light, 188 F.3d 964, 972 (8th Cir. 1999) (“Retaliation claims under the ADA are analyzed identically to those brought under Title VII.”) (citation omitted).
[9] Murphy Sr. admitted to returning the Commission’s phone call on September 2, 2009.
[10] Mark Murphy testified that on September 1, he did not yet have the notes that reflected Breaux’s interview with the Commission. Apx-280 (Mark 205-206). Rather, he testified it was likely he would have received the EEOC investigative notes sometime after PFI had retained counsel to represent it in the litigation, as he recalled that the documents were provided through PFI’s attorney. Apx-260-61 (Mark 128-29).
[11] The Hobgood Court stated that the fact that the eventual report of that investigation “contained several references to Hobgood’s help for Gnutek” easily supported the inference that the plaintiff’s assistance with his co-worker’s lawsuit “could well have been a but-for cause, in the investigation and ultimate discipline of Hobgood.” Id. at *6.
[12] Mark Murphy only testified that PFI fired Breaux on September 1 “[b]ecause his replacement was starting the next day.” Apx-276 (Mark 191). Murphy Jr. testified that the only reason PFI chose September 1 was “because his replacement was starting on Wednesday.” Apx-168 (Jr. 262). Murphy Sr. testified that PFI selected September 1 because “his replacement was coming in.” Apx-220 (Sr. 173). PFI fired Breaux on that day, rather than permitting any overlap between the two employees, because “we decided that – you know, we just didn’t like to have the two working together. It didn’t work.” Id.
[13] According to PFI’s documents describing a “lead” position and a “supervisor” position, a lead is “the lowest, or most-junior, management position,” who directs the day-to-day work of a team, and sees that team members are working productively, but cannot make decisions such as which individual will work at which station. SApx-24. A supervisor, however, is less concerned with day-to-day tasks and instead is “responsible for planning, directing, monitoring, and controlling” employees, and also for “taking corrective action” regarding employees. SApx-25. A supervisor position is also on the “management career” track. Id.
[14] When PFI promoted Breaux to Turrets and Tapping Lead in 2005, his salary increased from $11.00 per hour to $13.50 per hour. SApx-20. In 2007, PFI raised his salary to $14.50 per hour, in recognition of the fact that Breaux “was doing a good job and he was handling the additional responsibility.” Apx-152-53 (Jr. 188-89). Breaux maintained this salary when promoted to South Manufacturing Supervisor. SApx-20. His final salary, as reflected in his unemployment insurance form, was $14.50 per hour. Apx-47.
[15] Apx-173 (Jr. 285):
Q: Do you know if he came back and tried to work as a lead turret operator?
A. I wouldn’t allow it.
Q. You wouldn't allow it?
A. No.
[16] Myers v. Lutsen Mountains Corp., 587 F.3d 891, 892 (8th Cir. 2009) (stating that this Court reviews a grant of summary judgment de novo). Though this Court in Prince v. Kids Ark Learning Ctr., LLC, 622 F.3d 992, 995 (8th Cir. 2010), reviewed a district court’s determination of successor liability for an abuse of discretion, in this case, the district court forewent the determination and did not analyze any aspect of the successor liability issue. Rather, the district court denied the Commission’s motion for partial summary judgment on successor liability as moot, given that it granted summary judgment to defendants on the Commission’s discrimination claims. Other Circuits review a district court’s grant of summary judgment on the successor liability issue de novo. See, e.g., Call Ctr. Techs., Inc. v. Grand Adventures Tour & Travel Publ’g Corp., 635 F.3d 48, 51 (2d. Cir. 2011) (reviewing the “district court’s entry of summary judgment in [defendant]’s favor on the issue of successor liability” de novo); Hall v. Norfolk S. Ry. Co., 469 F.3d 590, 598 (7th Cir. 2006) (same). In addition, this Court has reviewed a district court’s summary judgment ruling de novo, in the context of successor liability determinations in other statutory contexts. See K.C. 1986 Ltd. P’ship v. Reade Mfg., 472 F.3d 1009, 1021 (8th Cir. 2007) (reviewing de novo a summary judgment ruling on the issue of successor liability arising out of an action under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)).
[17] Defendants cited these changes as further reflection of the company’s dramatically changed management model. Defs. Opp SJ Br. p. 8-9.
[18] The homepage banner of M&M’s website reads “Product Fabricators” and its homepage advertises the company as a “Metal Fabrication and Finishing manufacturer” that provides “sheet metal fabrication and powder coating services.” M&M website, http://productfab.com/ (last visited August 15, 2013).
[19] In another post-Musikiwamba decision, the Seventh Circuit held that the district court erred in concluding that bankruptcy proceedings precluded a finding of successor liability against the successor corporation, noting that “there is no reason to accord the purchasers of formally bankrupt entities some special measure of insulation from liability that is unavailable to ailing but not yet defunct entities.” Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) Pension Fund, et al. v. Tasemkin, Inc., 59 F.3d 48, 50-51 (7th Cir. 1995).