United States District Court, D. Montana, Missoula Division
ANTHONY E. BROWN, Plaintiff,
TECHLAW, INC., Defendant.
FINDINGS & RECOMMENDATION
Kathleen L. DeSoto, United States Magistrate Judge.
age discrimination in employment case comes before the Court
on Defendant Techlaw, Inc.'s Motion for Summary Judgment
(Doc. 33) and Motion to Strike the Amended Complaint. (Doc.
43). For the reasons discussed below, both motions are
provides environmental consulting services to various
commercial entities and governmental agencies. (Doc. 34,
¶ 2). Prior to his discharge in January 2017, Plaintiff
Anthony Brown worked full-time as an environmental associate
at Techlaw's facility in Troy, Montana. (Doc. 34, ¶
3). During 2016, Brown's duties included serving as the
Troy facility's on-site supervisor and health and safety
coordinator. (Doc. 34, ¶ 16).
Environmental Protection Agency (“EPA”)
contracted with Techlaw to conduct sample testing relating to
the EPA's risk assessment investigation and sampling
concerning asbestos in and around in Libby, Montana. (Doc.
34, ¶ 7). As the Libby project neared the end of the
residential cleanup phase, the workload at the Troy facility
dropped. (Doc. 34, ¶ 9). During this period, the Troy
facility had five full-time equivalent employees, including
two associates, a senior consultant, and two technicians.
(Doc. 34, ¶ 11). Techlaw met with the EPA in late
September 2016 to discuss reducing the staff at the Troy
facility and negotiated a reduction of two full-time
equivalent positions. (Doc. 34, ¶ 10).
January 13, 2017, Techlaw discharged Brown, who was 68 years
old at the time, and a 53-year-old technician. (Doc. 34,
¶¶ 12, 14). Techlaw retained the Troy
facility's senior consultant (aged 62), one of its
associates (aged 52), and a technician (aged 30). (Doc. 34,
¶ 12). According to Techlaw, Brown was selected for
termination due to a lack of funding and job performance
problems. (Doc. 34, ¶ 15, 18-22).
exhausting his administrative remedies with the Montana Human
Rights Bureau and Equal Employment Opportunity Commission
(Docs. 2, at 1; 35, at 4), Brown filed this action on May 11,
2018. (Doc. 2). Proceeding pro se, Brown alleges that Techlaw
discharged him based on his age in violation of the Age
Discrimination in Employment Act (ADEA), 29 U.S.C.
§§ 621-34. Techlaw moves for summary judgment on
the grounds that (1) Brown cannot establish a prima facie
case of age discrimination, and (2) even if he has made a out
a prima facie case, he cannot show that Techlaw's
articulated legitimate, non-discriminatory reason for his
discharge was pretextual.
August 9, 2019, approximately one month after Techlaw filed
its summary judgment motion, Brown filed an Amended Complaint
adding a claim under the Whistleblower Protection Act, 5
U.S.C. § 2302(b)(8)-(9) and a claim for libel under
Montana law. (Doc. 40). Techlaw has filed a motion to strike
the Amended Complaint as untimely and futile under Federal
Rules of Civil Procedure 15(a) and 16(b).
Motion for Summary Judgment
Federal Rule of Civil Procedure 56(a), a party is entitled to
summary judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” The party
seeking summary judgment bears the initial burden of
informing the Court of the basis for its motion, and
identifying those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, which it believes demonstrate
the absence of any genuine issue of material fact.
Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986).
A movant may satisfy this burden where the documentary
evidence produced by the parties permits only one conclusion.
Anderson v. Liberty Lobby Inc., 477 U.S. 242, 251
(1986). Where, as here, the nonmoving party bears the burden
of proof at trial, the moving party can meet its initial
burden on summary judgment by showing that there is an
absence of evidence in the record to support the nonmoving
party's claims. Celotox, 477 U.S. at 325.
See also Nissan Fire & Marine Ins. Co. Ltd. v. Fritz
Companies, Inc., 210 F.3d 1099, 1102 (9th
the moving party has satisfied its initial burden with a
properly supported motion, summary judgment is appropriate
unless the non-moving party designates by affidavits,
depositions, answers to interrogatories or admissions on file
“specific facts showing that there is a genuine issue
for trial.” Celotex, 477 U.S. 317, 324 (1986).
The party opposing a motion for summary judgment “may
not rest upon the mere allegations or denials” of the
pleadings. Anderson, 477 U.S. at 248.
considering a motion for summary judgment, the court
“may not make credibility determinations or weigh the
evidence.” Reeves v. Sanderson Plumbing
Prods., 530 U.S. 130, 150 (2000); Anderson, 477
U.S. at 249-50. The Court must view the evidence in the light
most favorable to the non-moving party and draw all
justifiable inferences in the non-moving party's favor.
Anderson, 477 U.S. at 255; Betz v. Trainer
Wortham & Co., Inc., 504 F.3d 1017, 1020-21
(9th Cir. 2007).
general, “pro se litigants in the ordinary civil case
should not be treated more favorably than parties with
attorneys of record.” Jacobsen v. Filler, 790
F.2d 1362, 1364 (9th Cir. 1986). This means that
“[p]ro se litigants must follow the same rules of
procedure that govern other litigants.” King v.
Atiyeh, 814 F.2d 565, 576 (9th Cir. 1987).
Nevertheless, in the summary judgment context, courts are to
construe pro se documents liberally and give pro ...