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Brown v. Techlaw, Inc.

United States District Court, D. Montana, Missoula Division

November 1, 2019

ANTHONY E. BROWN, Plaintiff,
v.
TECHLAW, INC., Defendant.

          FINDINGS & RECOMMENDATION

          Kathleen L. DeSoto, United States Magistrate Judge.

         This 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 properly granted.

         I. Background

         Techlaw 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).

         The 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).

         On 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).

         After 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.

         On 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).

         II. Motion for Summary Judgment

         A. Legal Standard

         Under 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 Cir. 2000).

         Once 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.

         In 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).

         In 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 ...


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