Full opinion text
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT REPUBLIC SILVER STATE DISPOSAL, INC. AND REPUBLIC SERVICES, INC.’S MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION OF ISSUES; ORDER DENYING DEFENDANTS’ MOTION TO STRIKE NEW PORTIONS OF PLAINTIFFS LACY’S AND LAROCCA’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DECLARATION OF GERALD BEN-FORD DAVID ALAN EZRA, District Judge. On December 5, 2008, the Court heard Defendants’ Motion for Summary Judgment or Summary Adjudication of Issues. (Doc. # 208.) Scott B. Olifant, Esq., appeared at the hearing on behalf of Plaintiffs William Lacy and Robert LaRocea; Sue J. Noh, Senior Trial Attorney, appeared at the hearing on behalf of Plaintiff EEOC; Bruce C. Young, Esq., and Roger L. Grandgenett, Esq., appeared at the hearing on behalf of Defendants. After reviewing the motion and the supporting and opposing memoranda, the Court GRANTS IN PART AND DENIES IN PART Defendants’ motion for summary judgment. The Court GRANTS the summary judgment motion with respect to the disparate treatment claims of the following individuals: Randy Johnson; Daron Barnes-Reid; Eddie Wilson; Roderick Jones; Curtis Howard; Jesus Chanez; Lorrance Wilder, Jr.; Carlos Rasool as to the driver position; Albert Vassar; Dock Hines; Jimmy Hilton; James Cornell; Timothy Gittus; Jon Krieger; Elmo Walker; Laura Lucido; William Adams; Louis “Buster” Thomas; and Michael Barnes. The Court DENIES the motion with respect to the disparate treatment claims of the following individuals: Jeffrey Banks; Ron Thompson, Sr.; Vincent Marrazzo; Manual Encinas; Carlos Rasool as to the mechanic position; Billy Taylor; David Suazo; Keith Brown; Mid Jackson; Nico Kelley; Eddie Williams; William Lacy; Robert LaRocca; Clayton Hickman; Kevin Stockton; Sharon Derengowski; Bernard Lucido; Michael Miller; and Jessie Williams. This Court GRANTS the motion with respect to the EEOC’s pattern and practice claim. Pursuant to Nevada Local Rule Part II, 78-2, the Court finds the motion to strike suitable for disposition without a hearing. After reviewing the motion, and the supporting and opposing memoranda, the Court DENIES Defendants’ Motion to Strike New Portions of Plaintiffs Lacy’s and LaRocca’s Opposition to Defendants’ Motion for Summary Judgment and Declaration of Gerald Benford. (Doc. #225.) BACKGROUND The Equal Employment Opportunity Commission (“EEOC”) has brought suit pursuant to the Age Discrimination in Employment Act (“ADEA”) against Defendants Republic Services, Inc. (“RSI”) and Republic Silver State Disposal, Inc. (“RSSD”) (collectively “Defendants”) on behalf of a class of 36 individuals who were terminated from employment allegedly based on their age of 40 years or older. Plaintiffs Lacy and LaRocca have also brought ADEA claims. The EEOC’s case was consolidated with the lawsuit brought by the individual Plaintiffs William Lacy and Robert LaRocca. Defendants collect trash in the Las Vegas area. RSI is the parent company of RSSD. Defendants have various facilities in Nevada including: the Cheyenne Transfer Station; the Sloan Transfer Station; the Henderson Transfer Station; and the Las Vegas administrative office. The claimants fall into three groups: foremen, administrative support, and trash-collection. On July 18, 2008, Defendants filed the instant motion for summary judgment seeking dismissal of all claims by all individuals in both cases. (Doc. # 208.) Plaintiffs Lacy and LaRocca filed an opposition on July 29, 2008. The EEOC filed an opposition on August 5, 2008. Defendants filed a reply to Lacy and LaRocca’s opposition on August 12, 2008. Defendants filed a reply to the EEOC’s opposition to their summary judgment motion on September 4, 2008. Defendants also filed on August 12, 2008, a Motion to Strike New Portions of Plaintiffs Lacy’s and LaRocca’s Opposition to Defendants’ Motion for Summary Judgment and Declaration of Gerald Benford. (Doc. # 225.) Plaintiffs Lacy and LaRocca filed an opposition on August 15, 2008. Defendants filed a reply on August 29, 2008. On November 26, 2008, this Court granted Defendants’ Motion to Strike EEOC’s declaration of Marla Stern and portions of the EEOC’s opposition and exhibits relating to Marla Stern’s declaration and purported statistical analysis. (Doc. #243.) This Court denied the EEOC’s motion for reconsideration of that order on February 13, 2009. Because the factual background is lengthy, this Court will discuss the facts in the discussion section as they pertain to each particular claimant. STANDARD OF REVIEW Rule 56 requires summary judgment to be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Porter v. Cal. Dep’t of Corrections, 419 F.3d 885, 891 (9th Cir.2005); Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.2000). A main purpose of summary judgment is to dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment must be granted against a party that fails to demonstrate facts to establish what will be an essential element at trial. See id. at 323, 106 S.Ct. 2548. A moving party without the ultimate burden of persuasion at trial — usually, but not always, the defendant — has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir.2000). The burden initially falls upon the moving party to identify for the court those “portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.1987) (citing Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548). - Once the moving party has carried its burden under Rule 56, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial” and may not rely on the mere allegations in the pleadings. Porter, 419 F.3d at 891 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In setting forth “specific facts,” the nonmoving party may not meet its burden on a summary judgment motion by making general references to evidence without page or line numbers. S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir.2003); Local Rule 56.1(f) (“When resolving motions for summary judgment, the court shall have no independent duty to search and consider any part of the court record not otherwise referenced in the separate concise statements of the parties”). “[A]t least some ‘significant probative evidence’ ” must be produced. T.W. Elec. Serv., 809 F.2d at 630 (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). “A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact.” Addisu, 198 F.3d at 1134. When “direct evidence” produced by the moving party conflicts with “direct evidence” produced by the party opposing summary judgment, “the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact.” T.W. Elec. Serv., 809 F.2d at 631. In other words, evidence and inferences must be construed in the light most favorable to the nonmoving party. Porter, 419 F.3d at 891. The court does not make credibility determinations or weigh conflicting evidence at the summary judgment stage. Id. However, inferences may be drawn from underlying facts not in dispute, as well as from disputed facts that the judge is required to resolve in favor of the nonmoving party. T.W. Elec. Serv., 809 F.2d at 631. DISCUSSION The ADEA makes it unlawful “to discharge any individual ... because of such individual’s age.” 29' U.S.C. § 623(a)(1). Plaintiffs have brought claims against Defendants for age discrimination under both a theory that specific individuals were subjected to disparate treatment based upon their age, and a theory that Defendants engaged in a pattern and practice of intentional age discrimination. The EEOC argues that Defendants implemented a reduction-in-foree in name only, but later advertised for the very jobs that they eliminated. The EEOC also asserts that it has direct evidence of age bias because Defendants’ top executives allegedly made age-biased comments in connection with the reduction-in-force and fostered a corporate culture of open hostility to older workers. This Court will first address the disparate treatment cause of action as it pertains to each individual employee and then this Court will discuss the pattern and practice cause of action. The various individuals in this lawsuit worked in different positions, at different locations, and some were covered by a collective bargaining agreement, while others were not. This Court also notes that Defendants made a motion to strike Gerald Benford’s declaration used by Plaintiffs Lacy and LaRocca. (Doc. #225.) That motion is discussed separately herein. I. Disparate Treatment Cause of Action In order to establish a disparate treatment claim, the plaintiff must produce evidence that gives rise to an inference of unlawful discrimination, either through direct evidence of discriminatory intent or through the burden shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Vasquez v. County of Los Angeles, 349 F.3d 634, 640 (9th Cir.2003); Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir.2008). Direct evidence is “evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir.1998) (internal quotation marks omitted) (alteration in original). In the context of an ADEA claim, direct evidence “is defined as evidence of conduct or statements by persons involved in the decision-making process that may be viewed as directly reflecting the alleged discriminatory attitude sufficient to permit the fact finder to infer that that attitude was more likely than not a motivating factor in the employer’s decision.” Enlow v. Salem-Keizer Yellow Cab Co., Inc., 389 F.3d 802, 812 (9th Cir. 2004) (citation, internal quotation marks, and ellipses omitted). “When a plaintiff has established a prima facie inference of disparate treatment through direct or circumstantial evidence, he will necessarily have raised a genuine issue of material fact with respect to the legitimacy or bona fides of the employer’s articulated reason for its employment decision[.]” Id. (citation and brackets omitted). Where no direct evidence exists, the plaintiff must proceed under the McDonnell Douglas framework. Under that framework, the plaintiff must first establish a prima facie case of discrimination. Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1123-24 (9th Cir. 2000). To prove a prima facie ease of an ADEA violation, the plaintiff must show he or she was: “(1) at least forty years old, (2) performing his job satisfactorily, (3) discharged, and (4) either replaced by substantially younger employees with equal or inferior qualifications or discharged under circumstances otherwise ‘giving rise to an inference of age discrimination.’ ” Diaz, 521 F.3d at 1207 (citation omitted). As noted by the Ninth Circuit in Diaz, [generally, an employee can satisfy the last element of the prima facie case only by providing evidence that he or she was replaced by a substantially younger employee with equal or inferior qualifications. The test for the prima facie case changes somewhat, however, where a discharge occurs in the context of a general reduction in the employer’s workforce. In this context, circumstantial evidence other than evidence concerning the identity of a replacement employee may also warrant an inference of discrimination. The reason for this difference is that in most reduction-in-force cases no replacements will have been hired. Id. at 1209 n. 3. The fourth prong may be met by “showing the employer had a continuing need for [the employees’] skills and services in that their various duties were still being performed ... or by showing that others not in their protected class were treated more favorably.” Id. at 1207-08 (citations and internal quotation marks omitted). If the plaintiff meets the prima facie burden, he or she is entitled to a presumption of discrimination. Id. at 1207. “[T]he burden of production, but not persuasion, then shifts to the employer to articulate some legitimate, nondiscriminatory, reason for the challenged action.” Chuang, 225 F.3d at 1123-24 (internal quotation marks and citation omitted). If the employer provides a legitimate non-discriminatory reason, the McDonnell Douglas presumption drops out of the picture. “The final stage of the McDonnell Douglas analysis requires [the plaintiff] to raise a genuine issue of fact concerning whether the facially legitimate reasons proffered by [the employer] are pretextual.” Diaz, 521 F.3d at 1212. Pretext can be established “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Chuang, 225 F.3d at 1123-24 (internal quotation marks and citation omitted). “A showing that the [employer] treated similarly situated employees outside [the plaintiffs] protected class more favorably would be probative of pretext.” Vasquez, 349 F.3d at 641. Individuals must be similarly situated “in all material respects.” Moran v. Selig, 447 F.3d 748, 755 (9th Cir.2006). “[I]ndividuals are similarly situated when they have similar jobs and display similar conduct.” Vasquez, 349 F.3d at 641. The misconduct engaged in by the employees must be “of comparable seriousness.” McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817. The “ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 659 (9th Cir. 2002). “As a general matter, [however,] the plaintiff in an employment discrimination action need produce very little evidence in order to overcome an employer’s motion for summary judgment.” Diaz, 521 F.3d at 1207 (citation and internal quotation marks omitted). A. Employees Allegedly Terminated for Attendance Issues The Collective Bargaining Agreement (“CBA”) between the Employer and the Teamsters Union Local 631 covers certain former employees at issue in this suit. The attendance provision of the CBA provides that employees may be terminated if, beginning on June 11 of each year, they have more than ten unexcused absences in one year. In addition, an employee may be terminated where they have more than five no-call/no-show incidents in a six-month period. Finally, an employee may be terminated for three consecutive no-call/no shows. A doctor’s note will allow multiple days off due to a medical reason to be counted as only one incident for purposes of the attendance policy. However, the first day of missed work, even if excused by a doctor, counts as an incident. If an employee returns to work after an excused illness and then goes out again with another doctor’s note, the subsequent absence will be counted as another incident day. (Defs.’ Ex. 42 at 12.) With respect to the following individuals, the EEOC argues that the attendance policies were not consistently enforced between younger and older workers. 1. Jeffrey Banks -[14] Jeffrey Banks, born 1962, was hired by Silver State Disposal. In June 2003, Banks worked as a Commercial FrontALoader Driver at the Cheyenne Transfer Station. The attendance records indicate that on February 26, March 7, May 13, June 7, and June 20, 2003, Banks either failed to call in to report an absence or was late to work. The attendance records also indicate that Banks failed to appear for work without providing notice on June 21, 2003. Defendants considered this failure to be Banks’s sixth no-call/no-show incident in a 180-day period. Defendants, therefore, terminated Banks in June 2003, pursuant to the CBA provision which states that employees may be terminated after six no-call/no-show incidents. Because the EEOC has not presented direct evidence of age bias with respect to Banks, the EEOC must proceed through the McDonnell Douglas framework by proving a prima facie case and presenting evidence of pretext. The EEOC argues that it can establish the second prong of Banks’ prima facie case because he had only three or four no-call/no-shows in the 180-day period, not six no-call/no-shows. First, the EEOC states that Banks returned to work on June 19, 2003, but was told by his supervisor Chris Hannah to get another note from his doctor since Banks was still injured. Banks believed that he was on medical leave on June 20, 2003, and that his supervisor Chris Hannah was aware of this. The EEOC, therefore, argues that the June 20 and June 21, 2003 absences should not have been counted as no-call/no-show incidents. In addition, on June 24, Banks provided a doctor’s note dated June 19, 2003, which covered his absences from June 19 to 24, 2003, and he also had a doctor’s note covering the period of June 12 through June 19, 2003. The EEOC argues that this entire period should be counted as one absence because the doctor’s note covers this period. Banks did not report to work on June 26, 2003. Banks states that he was terminated on June 23 or 24, days before June 26, 2003. Defendants claim they accepted his late doctor’s note and voided the earlier termination and instructed Banks to show-up for work on June 26. When Banks did not call or show up for work on the June 26, 2003, his employment was terminated. Banks argues that even if June 26 were counted as a no-call/no-show, it was not his sixth incident and could only be counted as his fifth incident because the June 20 and June 21 alleged no-call/no show incidents were voided by the provision of his doctor’s note. Because some of the possible no-call/no-shows were excused, there is a question of fact as to whether Banks actually violated the attendance policy and/or whether it was reasonable for Defendants to believe he violated the policy. Taking the evidence in the light most favorable to the EEOC, it is sufficient to prove the second prong of the prima facie case that Banks was satisfactorily performing his duties. The EEOC next argues that it can prove the fourth prong of its prima facie case and pretext because younger employees were retained despite violating the attendance policy. For example, Michael Jones, age 18 at the time, violated the attendance policy seven times during his four months of employment as a casual employee. In addition, casual employee Geraldine Lacy, born 1968, had eight no-call/no-show and tardies between April 11 and 19, 2003, but was not terminated until after the ninth incident. Donavin Morgan, age 22, had six no-call/no-shows in less than two months, yet continued to work for Defendants until August 2005, when he was terminated for insubordination. Defendants counter that casual employees are not held to the same attendance standards as regular employees and that each of the younger comparators listed by the EEOC were casual employees, whereas Banks was a regular employee. In addition, there is no evidence that casual employees had the same supervisor as Banks. Thus, Defendants argue that the comparators are not similarly situated to Banks. Defendants further state that during a seven-year period, 32 regular employees at the Cheyenne Transfer Station were terminated'for them sixth no-call/no-show attendance violation. Of those 32 employees, only seven were over the age of 40. Defendants’ arguments are unpersuasive as a matter of law because although Defendants claim that casual employees are not subject to the same attendance standards as regular employees, Defendants also stated that they often hold casual employees to the same standard as regular employees. In addition, although only seven of 32 persons terminated were over 40, evidence was not presented as to how many persons over 40 were employed such that the court could make a percentage comparison. Therefore, given that there is a question of fact as to whether Banks actually violated the attendance policy and whether it was reasonable for Defendants to believe that the policy had been violated, taking the facts in the light most favorable to the EEOC as the non-moving party, there is a question of fact as to whether an inference of age discrimination has been raised. Although the EEOC’s evidence is not particularly strong, it is sufficient to raise a question of an inference of age discrimination. For these reasons, the motion with respect to Banks is DENIED. 2. Ron Thompson, Sr. Ron Thompson, Sr., born 1964, was hired on June 20, 2002, as a casual pitcher at the Cheyenne Transfer Station Commercial Rear-Loader business line. Thompson became a regular employee on March 4, 2003, and states that he understood the proper procedure for reporting an anticipated absence. Thompson was listed as a no-call/no-show on February 3, March 28, April 2, April 9, and June 7, 2004. Thompson received an Employee Corrective Notice on June 8, 2004, which he signed, warning him that he had reached his fifth attendance violation in the past six months and that further violations would result in termination. On July 30, 2004, Thompson called in to notify his supervisor that he would be late for his shift. Defendants noted that his call was received at 8:01 p.m. Defendants terminated his employment for the sixth violation of the attendance policy, as set forth in the CBA. In his termination notice, Thompson stated that he called in at 7:58 p.m. and that he assumes that the discrepancy in time was because it took a few minutes for the tape to run out. The EEOC asserts that Thompson’s termination was pretext for age discrimination because younger employees with more attendance violations were not terminated. For example, the EEOC refers to the following three employees who were discussed with respect to Banks: casual employee Michael Jones, age 18 at the time, violated the attendance policy seven times during his four months of employment as a casual employee, casual employee Geraldine Lacy, born 1968, had eight no-call/no-show and tardies between April 11 and 19, 2003, but was not terminated until after the ninth incident. Casual employee Donavin Morgan, age 22, had six no-call/no-shows in less than two months, yet continued to work for Defendants until August 2005, when he was terminated for insubordination. In addition to the employees set forth under Banks, Maurice Calcóte, born 1969, was a no-call/no-show six times in a six-month period but was not terminated. Despite these excessive absences, Mr. Paul Labruzzo allowed him to voluntarily resign. Defendants respond that regrettably, a mistake was made in counting the no-call/ no-shows for Calcóte. Defendants also state that Calcóte was allowed to voluntarily resign because a resignation would allow him to more easily get another job after his incarceration. Defendants also counter that these four comparators are insufficient to create a genuine issue of fact, especially in light of the fact that the EEOC located only one clerical counting error out of the more than 900 employee files produced, and that of the 40 regular employees at the Cheyenne Transfer Station who were terminated for their sixth attendance violation, only ten were over the age of 40. This Court disagrees with Defendants. Although Thompson does not dispute that the call was not registered until 8:01 p.m. or that it was his sixth violation in six months, given that Defendants treated younger casual employees better by allowing them more violations of the attendance policy, and taking the evidence in the light most favorable to the EEOC, Thompson has provided enough evidence to show that he was satisfactorily performing his duties. In addition, three of the comparators were casual employees as was Thompson. Given that Defendants should enforce the attendance provisions of the CBA evenly across transfer stations and given that there is no explanation as to why these three younger employees were allowed more violations, Thompson has created a genuine issue of fact regarding pretext. Although the EEOC’s evidence is weak, it is enough to survive summary judgment. Summary judgment is therefore DENIED with respect to Thompson’s claims. 3. Randy M. Johnson Randy Johnson, born 1954, was hired by RSSD on August 2, 2004, to work at the Henderson Transfer Station. It is disputed as to whether he was hired as a casual diver/pitcher or to work in the roll-off department. Johnson was required to report to work every morning to see what this specific job assignment would be. Johnson reported to work for seven or eight days, but was not selected to work. He, therefore, chose to stop coming to work. Johnson states that he stopped reporting for work because he was the only trained roll-off driver among the casual employees waiting for work and he could no longer afford to go without pay. Johnson questioned why he had not been selected for work and was told that the person who was selecting employees was getting to it and did not forget him. Johnson, who was hired by the personnel office, asked his trainer “Sarge” why he was not being selected for work, and Sarge replied “the old guys ain’t got a chance” and that the new supervisor did not want anybody that old. (EEOC Ex. 28 at 74-75.) Johnson also testified that the person in charge of selecting causal employees for assignment to roll-off trucks never made any age-related comments to him, about him, or about any other employee. Likewise, the supervisor, Brown, never made any age-related comments to him. Johnson did not complain to human resources that he felt he was not being selected for work because of his age. After not being selected for work for seven or eight days, Johnson decided not to report to work anymore. Defendants considered Johnson to be a no-call/no-show for three consecutive days of scheduled work on August 27, 30, and 31, 2004. The line supervisor terminated Johnson pursuant to the attendance policy. The EEOC points to the three comparators discussed above under Banks, (e.g.Morgan, Lacy, and Jones)' as younger employees who were not terminated although they violated the attendance policy. The EEOC also points to a younger employee, James Linton, who was a no-call/no-show for two months. The EEOC states that although Linton was incarcerated,. it appeared that he had not requested a leave of absence until after he was a no-call/no-show for months. Between January 2001 and May 2006, 41 casual piteher/drivers at the Henderson Transfer Station were terminated for violating the three-day no-call/no-show attendance policy. Of those 41 employees, only ten were over the age of 40. In addition, Pablo Beauchamp, born 1951, was hired as a casual employee in June 2004. Beauchamp is older than Johnson and he remained employed by Defendants. It is undisputed that Johnson decided not to report to work and was a no-call/no-show for three consecutive days. The only question is whether Johnson can prove a constructive discharge claim. This Court finds that Johnson does not meet that high standard. Where an employee quits or retires they must prove that they were constructively discharged. “Constructive discharge occurs when the working conditions deteriorate, as a result of discrimination, to the point that they become sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer.” Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir.2000). To prove a constructive discharge claim, “a plaintiff must show there are triable issues of fact as to whether a reasonable person in his position would have felt that he was forced to quit because of intolerable and discriminatory working conditions.’ Hardage v. CBS Broad., Inc., 427 F.3d 1177, 1184 (9th Cir. 2005), as amended by, 433 F.3d 672 (9th Cir.2006); see also Watson v. Nationwide Ins., Co., 823 F.2d 360, 361 (9th Cir.1987) (a plaintiff must show that their working environment was “so intolerable and discriminatory” that a reasonable employee would be compelled to quit). The plaintiff must show that “the abusive working environment became so intolerable that [his] resignation qualified as a fitting response.” Pennsylvania State Police v. Suders, 542 U.S. 129, 134, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004). The standard to prove a constructive discharge claim is higher than that required to prove-a hostile work environment claim. Brooks, 229 F.3d at 930 (“[w]here a plaintiff fails to demonstrate the severe or pervasive harassment necessary to support a hostile work environment claim, it will be impossible for her to meet the higher standard of constructive discharge: conditions so intolerable that a reasonable person would leave the job.”). A plaintiff must at least show some aggravating factors that compelled him or her to quit, such as a continuous pattern of discriminatory treatment. Schnidrig v. Columbia Machine, Inc., 80 F.3d 1406, 1412 (9th Cir.1996). Here, the EEOC has not provided sufficient evidence to create a genuine issue of fact regarding constructive discharge for Johnson. One comment made by a trainer, and not being assigned to work for seven days is insufficient to ere-ate a factual issue of whether there was a pattern of discriminatory conduct or working conditions so intolerable based upon discrimination that a reasonable person would have quit. Moreover, an inference of discrimination is not raised by the alleged comparator evidence because the three younger persons referred to by the EEOC worked at a different transfer station and were being dispatched by different supervisors. Even if they were to be compared with Johnson, the attendance record for one of the younger employees, Jones, shows that he reported but was not selected for work for ten days in a row, more days than Johnson. Finally, Linton was a no-call/no-show because he was incarcerated. For these reasons, summary judgment is GRANTED in favor of Defendants on Johnson’s claim. 4. Daron Barnes-Reid [20] Daron Barnes-Reid, born 1961, was 43 years old when he was hired by RSSD at the Cheyenne Transfer Station on September 13, 2004. He became a regular employee effective May 12, 2005. On October 17, 2005, Barnes-Reid received a corrective notice warning him that he had reached his limit of ten incidents of absences as set forth in the CBA for missing work on June 13 and 17, July 1,15, and 19, August 4 and 12, September 11 and 19, and October 14, 2005. Barnes-Reid was terminated on October 30, 2005, for failing to report for work that day, which according to Defendants, resulted in eleven incidents of absences in one year. Barnes-Reid disputes that there were ten incidents of absences. Barnes-Reid states that he did not improperly miss work on the following five days, June 13 and 17, July 1, 15, and 19, 2005. Barnes-Reid has provided evidence that on each of those days he was manually clocked in. He argues that the reverse-seniority system should apply to those dates. Foreman Freddie Stampley testified that manually-clocking in and be replaced was known as reverse-seniority and was allowed between 1995 and 2006 on days when the company had enough drivers and the most senior drivers either with the company or the union were allowed to go home without the day counting as an absence. Barnes-Reid testified that the reverse-seniority system should apply to the five days in question because he had recently had a surgery and was on medication for the pain and Stampley was aware of that. Barnes-Reid testified that he told his union representative about that and his union representative stated that Stampley should have allowed the reverse-seniority system to apply to him given that he was sick. In addition to the dates above, Defendants state that Barnes-Reid was a no-call/no-show on the following five days: May 12, 30, and 31, and October 2, 24, and 28, 2005. Barnes-Reid disputes that he was a no-call/no-show on four of the days. Defendants’ attendance records show that Barnes-Reid was manually clocked in on May 30 and 31. Barnes-Reid states that he should have been replaced on these days under the reverse-seniority policy discussed above. In addition, Barnes-Reid had a doctor’s note for October 24th, and May 12 was his regularly scheduled day off. Thus, Barnes-Reid states that only two of the dates listed above should count as a no-call/no-show absence, not six. Barnes-Reid testified that he believed older employees were assigned the outlying routes because those routes were less desirable and assignment of such routes was viewed as punishment. Of the 21 regular employees at the Cheyenne Station who were terminated for excessive absences, only seven were over 40 years old. Defendants assert that Barnes-Reid cannot establish that the reverse-seniority policy should have applied to him for the days in question. This Court agrees. All Barnes-Reid has shown was that there was a reverse-seniority practice in place and that the attendance records show that Barnes-Reid was manually clocked in. There is no evidence, even from Barnes-Reid himself, that Barnes-Reid showed up for work on the dates in question and asked that the reverse-seniority system apply to him, that he was eligible for the system based upon seniority, or that anyone had told him that those days would not count against him because of the system. Moreover, Stampley had no recollection of Barnes-Reid requesting reverse seniority. Finally, even if May 12 and October 24 did not count as absences based upon the regularly scheduled day off and the doctor’s note, Barnes-Reid still exceeded the allotted ten absences when he failed to report to work on October 30, 2005. Accordingly, the EEOC has not shown that Barnes-Reid was satisfactorily performing his duties or that the attendance policy was misapplied to him. Moreover, even if one or two of the dates were mistakenly counted as absences and Barnes-Reid did not incur the maximum number of absences, the EEOC has not presented any evidence showing pretext. Barnes-Reid’s testimony pertaining to alleged age-bias relates to assigning allegedly undesirable routes to older employees. It did not pertain to the application of the attendance policy. Moreover, Barnes-Reid did not identify any specific younger comparators. Accordingly, summary judgment is GRANTED in favor of Defendants with respect to Barnes-Reid’s claim. 5. Eddie Wilson Eddie Wilson, born 1951, was hired by Silver State Disposal in December 1996 as a casual pitcher. Wilson was 45 years old at the time. Wilson left after a few weeks and was re-hired in 1997 as a transfer truck driver. In June 2003, Wilson worked as a Roll-Off Driver at the Cheyenne Transfer Station. On June 17, 2003, Wilson called into the hotline to report he would be out sick. Wilson spoke to his supervisor Gene Harris on June 18, 2003, and June 21, 2003, and informed him that he could not work due to illness. Wilson admittedly did not call in on June 19, 20, 22, 23, or 24. Wilson was terminated on June 23, 2003, for failing to call in or otherwise report to work for three consecutive days, as required by the CBA. A termination letter was mailed to him, but was returned undelivered. On June 25, 2003, Wilson submitted notes from his doctor for his absence. Wilson filed a grievance with his Union over his termination, but his Union did not pursue it because he did not have a case. During the time frame in question, 42 union employees were terminated from the Cheyenne Transfer Station for the violating the three-day no-call/no-show attendance rule. Of those 42 persons, only nine were over the age of 40. At sometime prior to his termination, foreman Harris allegedly made a few comments to Wilson, referring to Wilson as “old man.” The EEOC argues that the above evidence proves pretext. This Court will first address the remarks of “old man.” In general, “‘stray’ remarks are insufficient to establish discrimination.” Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438 (9th Cir.1990) (citations omitted). In Merrick, the Ninth Circuit held that a comment by the decision-maker that he chose a certain employee because he was a bright young man was insufficient to raise a triable issue of fact of whether the decision-maker refused to promote the plaintiff based upon the plaintiffs age. It was held to be a stray remark that did not show that the decision not to promote was based on age. Id. at 1438-39; Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir.1993) (supervisor’s use of the phrase we “don’t necessarily like grey hair” was uttered in an ambivalent manner and was not tied directly to the employee’s termination, thus, “it is at best weak circumstantial evidence of discriminatory animus”); Rose v. Wells Fargo & Co., 902 F.2d 1417, 1420-21 (9th Cir.1990) (use of the phrase “old-boy network” did not support inference of discriminatory motive). Here, the use of the term “old man” a few times has not been connected to Wilson’s termination either in conduct or in closeness of time. They are therefore nothing more than stray remarks, which are insufficient to constitute direct evidence of age discrimination. Therefore, the EEOC must prove a prima face case of discrimination through the burden shifting framework set forth in McDonnell Douglas. The EEOC cannot meet this burden. The EEOC argues that the termination reason was pretextual because Wilson called in and submitted a doctor’s note for the period from June 17, 2003 to August 7, 2003. In addition, the EEOC cites to one younger employee, Jacob Mines, who allegedly violated a different part of the attendance policy by having more than 12 absences in less than six months but was not fired. Even if this could establish pretext, however, which it does not, the EEOC has not provided sufficient evidence of a prima facie case of discrimination. The EEOC has not shown, as it argues, that Wilson did not violate the no-call/no-show rule. Even if a termination date of June 23rd was premature because Wilson called his supervisor on June 21, Wilson admitted that he did not call and did not show up for work on June 22, 23, or 24, 2003. Accordingly, Wilson violated the no-call/no-show rule on these three dates. Indeed, Wilson’s union did not believe that Defendants violated the CBA with respect to terminating his employment for violating the three consecutive day no-call/no-show rule. Therefore, the EEOC cannot establish that Wilson was satisfactorily performing his duties. Accordingly, summary judgment is GRANTED in favor of Defendants on Eddie Wilson’s claim. 6. Roderick Jones Roderick Jones, born April 18, 1959, was 44 years old when he was hired as a casual pitcher/driver by RSSD on December 24, 2003. Jones worked 5.5 hours on December 29, 2003. Jones testified that he was assigned to work with a younger man who asked him “you up for this old man?” The younger co-worker threw a trash can, which accidently hit Jones in the mouth. Jones went home early that day. Jones was not selected to work on December 30 and 31, 2003, January 1 and 2, 2004. Defendants attendance records show that Jones did not report for work or call in on January 3, 5, 6, and 7, 2004. Jones testified that he reported for work, but was not selected, for a period of three weeks. Jones testified that after these three weeks, he decided to stop reporting for work. Pursuant to the terms of the CBA, due to the failure to report to work for three consecutive days, Jones was terminated. Jones testified that while he and two other guys, whom he believed were his age, were sitting on a bench waiting for assignments, supervisors pointed to them and said that they were “out of their minds” if they believed they would be selected for work because the job would “f— them up.” (EEOC Ex. 29 at 36-37.) Jones believed this statement was'made because of his age. Jones also testified that people in their twenties were being selected for work. Ten individuals were hired on the same day as Jones in the residential line of business at the Cheyenne Transfer Station, five of whom were over the age of 40. Of those five individuals, Jones was the only one who stopped reporting for work. The other four individuals remained employed by Defendants as of May 2006, two- and-a-half years later. In addition, the oldest person hired on the same day as Jones, Sherdell Mardis, was almost nine years older than Jones and remains employed by Defendants. Only the following two employees, who were hired on the same date as Jones have been terminated: Javon Howard, born 1979, and Roger Hughes, born 1983. Hughes was the youngest person hired on the same date as Jones. During 2003, 165 residential drivers were hired at the Cheyenne Transfer Station, 31 of whom were over the age of 40 and 134 of whom were under the age of 40. As of July 2006, 11 of the 31 employees over the age of 40 remained employed, representing 35.5%. Of the 134 employees who were under 40 when hired, 41 remained employed as of July 2006, representing 30.6%. The EEOC argues that Jones was constructively discharged by Defendants’ refusal to select him for work. As discussed above with respect to Randy Johnson, a constructive discharge claim has a high standard. Jones cannot meet this standard. . At most, Jones has presented evidence that he was not selected for work for a period of three weeks, and one comment was made from which he personally inferred age bias, and he witnessed younger employees being selected for work. This is insufficient to create a genuine issue of fact as to whether Jones’s employment was so discriminatory that a reasonable person would have quit. There is no showing of a continuous pattern of discriminatory treatment. Indeed, courts have found that work environments that were filled with many more instances of discriminatory conduct and more severe conduct were not sufficient to create hostile work environment that would cause a reasonable person to quit. See Morgan v. City and County of San Francisco, No. C-96-3573-VRW, 1998 WL 30013, at *8 (N.D.Cal. Jan.13, 1998) (finding that being subjected to insensitive coworker remarks such as “You don’t fit in,” poor performance evaluations, inaccurate reporting of sick leave and having to tell the receptionist when she left her work station did not rise to the level of a hostile work environment. “Occasional hurtful remarks by a coworker or supervisor do not reach the appropriate level of severity.”); Meritor Savings Bank v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (mere utterance of epithet which engenders offensive feelings would not affect conditions of employment to sufficiently significant degree necessary for violation of Title VII). Moreover, although the statistics presented by Defendants as to the number of persons hired and their age may possibly be skewed or incomplete as they do not address how often employees were selected for work, the EEOC has not disputed the evidence presented. Instead, the EEOC only argues that it is irrelevant. This Court finds that the evidence is relevant because it demonstrated that older workers remained employed, from which one could infer that they were being selected for work. In addition, the EEOC has not presented any contrary evidence from which an inference of age discrimination could be made. For these reasons, summary judgment with respect to Jones’s claim is GRANTED. 7. Curtis Howard Curtis Howard, born 1961, was hired in June 2004 as a casual piteher/driver at the Sloan Transfer Station. There is a dispute as to whether Howard was hired into the Roll-Off Driver department or as a pitcher in the Front Loader line of business. Attendance records indicate that Howard worked in the roll-off department at the higher driver pay rate for a few days in late June, and Howard testified that it was his understanding that he was hired as a driver. In addition, Howard possessed a Class A license, which is a higher class license than needed to drive most of the trucks. On June 28, 2004, Howard was assigned to work as a pitcher, which has a lower rate of pay by five dollars per hour. There is also a dispute as to whether Howard again worked as a driver on July 1 and 2, 2004. Defendants state that attendance records indicate he was paid the driver rate of pay for those days, but Howard testified that he did not drive and he only worked as a pitcher/assistant. There is a dispute as to whether Howard worked on July 3 or whether he received an excused absence for that day. On July 6, 2004, Howard spoke with Hope Graham and Romeo Vellutini of Human Resources to complain about not being assigned to work as a driver, when he had moved from California for the position. Howard testified that he was told there was no work as a driver, and that he should continue to report to work as pitcher. Howard did not report back to work. Howard was terminated on July 7, 2004, for failing to call in or report back to work for three consecutive days. Although Howard does not dispute that he did not return to work after July 3, 2004, he states he did not do so because there was no work in the driver position for which he was hired, and for which he moved from California to accept. Howard also states that he was not supposed to report to work on July 5, 2004, because in accordance with the CBA that was the day that the Fourth of July holiday was observed, since it fell on a Sunday. Therefore, Howard argues that it could not count as a no-call/no-show. Howard further testified that on his third day of work, the roll-off supervisor asked to see his driver’s license and then told him there was no work as a driver. The EEOC asserts that because the supervisor must have known there was no work as a driver, the only reason to check Howard’s license was to find out his age. Howard testified that despite what the supervisor said, he had seen postings for roll-off drivers and thus he believed there were driver positions needed. Howard testified that he was not subjected to any age-related comments, nor did he observe that he was treated differently than younger employees. The EEOC argues that Howard was constructively discharged because he was told there were no driving positions and he was not given a chance to drive. The EEOC has not met its burden to create a genuine issue of fact regarding a constructive discharge claim. At most, Howard reported to work several times and worked and/or got paid as a pitcher, rather than a driver, and his supervisor viewed his license, which contains his birthdate. These allegations are insufficient to show that Howard was subjected to a pattern of discriminatory conduct that would cause a reasonable person to quit. For these reasons, summary judgment is GRANTED in favor of Defendants on Curtis Howard’s claim. B. Employees Allegedly Terminated for Performance/Safety Issues 1. Vincent Marrazzo Vincent Marrazzo, born 1943, worked at the Cheyenne Transfer Station as a pitcher/driver since approximately 1997. He was 53 years old at the time he was hired. Over the course of his employment, Marrazzo was written up for approximately 15 incidents of causing damage to property or failing to report damage. In 2003, Marrazzo was involved in an accident where his truck rolled over onto its side. Marrazzo was terminated based upon the seriousness of the rollover accident. Marrazzo filed a grievance with his Union, and after an arbitration, was returned to work in November 2004. On April 21, 2005, Marrazzo was suspended from work because he was involved in an accident which damaged private property while backing up his truck. After an investigation, Marrazzo was prohibited from operating a truck for three months. He worked as a pitcher during that time and he accepted a Letter of Commitment. The Letter of Commitment stated that “I understand that if I do not correct my unsatisfactory performance problem, I will be terminated without further warning.” (Defs.’ Young Decl. Ex. 46 at Ex. 12.) Not long after returning to work as a driver, Marrazzo was involved in another accident where he damaged a privately owned vehicle while backing up his truck. Marrazzo was terminated from employment based upon this most recent accident and based upon the Letter of Commitment. Marrazzo grieved his termination with his Union. An arbitrator upheld the termination. The EEOC attempts to establish pretext by citing to the comparators for Manuel Encinas (discussed below), stating that younger drivers with worse accidents were retained. In addition, the EEOC refers to several other younger drivers who were involved in accidents, but were not terminated. For example, Adán Cano, 40 years younger than Marrazzo, was involved in eight accidents in 15 months of employment. In addition, Phillip Shamburger, who is 23 years younger, injured two different co-workers by backing into or running over them with his truck, but he was not fired until after he injured the second co-worker. Tutankhamun Johnson, who is 35 years younger, was involved in three accidents but received no more than a warning. Jesse Flanagan, born 1972, was involved in several accidents involving property damage, but was not terminated. Nolan Burke, born 1983, hit two privately owned vehicles (“POV”) in a seventh-month period, but was not terminated. Jahati Bell, who is about 34 years younger than Marrazzo, was involved in many accidents and was given a Letter of Commitment on August 2001. In October 2002, he backed into a POV. In May 2003, he received another Letter of Commitment because his truck rolled into another packed vehicle. He was promoted to a regular driver position to an AM lead man position. Yusuf Shahid, born 1969, was involved in numerous accidents, but was not terminated. Defendants counter that none of these employees are proper comparators because they did not work as Commercial front loader drivers at the Henderson Transfer Station at the same time as Marrazzo and were not disciplined by the same supervisors. In addition, Defendants state that because the comparator drivers operate in different lines of business, such as residential and R/O, they have different types of accidents and property damage. Defendants cite to four other employees, R. Wayne Haag, Zachary Marapo, Larry Catron, and Freddie Starkey, all of whom were over 40 years old and received discipline similar to Cano and Shamburger, and were not terminated. Marrazzo testified that he believed he was terminated based upon his age because his direct supervisor Dennis Bennett said that Marrazzo was getting too old for the job more than once a week for a few months prior to his termination. Given that Marrazzo’s direct supervisor told him that he was getting too old to do the job close in time to his termination and the comments related to his ability to do the job, the comments are sufficient to create a genuine issue of fact regarding pretext. For these reasons, summary judgment on Marrazzo’s claim is DENIED. 2. Jesus Chanez Jesus Chanez was born in 1958 and was 45 years old when he was hired as a casual employee on March 16, 2004. He later was assigned to work as a Roll-Off Driver out of the Cheyenne Transfer Station, where he was supervised by Eugene Harris, who is less than two years younger than Chanez. On April 25, 2004, Chanez received a Corrective Notice based upon backing up a truck into a gate at the Treasure Island Hotel and Casino, and the gate was damaged. On May 25, 2004, Harris signed a performance evaluation for Chanez, stating that Chanez was not performing well and did not recommend him for continued employment. Defendants sent a letter to the Union informing it that Chanez, as a casual employee, was being sent back to the Union hall, effective May 21, 2004. Chanez testified that Harris told him that he was taking too long to complete his routes. Chanez felt that it was age-related because he was safety conscious and therefore took longer, whereas the younger employees drove without taking all the necessary safety precautions. Chanez also testified that younger employees would get lost on their routes, and therefore become slow, but that Harris did not criticize those employees. The EEOC also refers to the fact that Harris made comments to claimant Eddie Wilson such as “let’s get to work, old man.” Defendants assert that Chanez cannot prove his prima facie case since he cannot establish that he was satisfactorily performing his duties. This Court agrees. Indeed, Chanez acknowledged that he was taking too long to complete his routes. In addition, as set forth below the EEOC cannot prove an inference of discrimination or pretext because the younger comparators are not similarly situated to Chanez. Specifically, the EEOC provided the following evidence of younger casual employees who were involved in multiple accidents or more severe accidents with damage and yet were not fired after only once incident: Jensen Calavan, born 1984, backed into a wall at a residence on May 18, 2006, while working as a casual employee. On July 23, 2006, Calavan was promoted to a regular employee. In October 2006, Calavan received a warning for failing to pull more than one load for the entire shift. In February 2007, Calavan failed to set his brake, causing damage to a parked car. In September 2007, Calavan received another written warning for failing to stop properly. Lannie Bolden, born 1984, was hired as a casual in December 2005. Bolden damaged a customer’s roof on March 12, 3006. Bolden was written up for failing to strap down his roll-off container to his truck on April 20, 2006. Bolden did not strap down his roll-off container again on May 19, 2006. Bolden damaged a curb at the Paris Hotel on July 20, 2006. Bolden damaged company property on August 10, 2006. After these five incidents of damage, Bolden became a regular employee on August 18, 2006. Johnie Martin, Jr., born 1979, was hired in June 2005. While working as a casual employee, Martin damaged another vehicle while backing up his truck. Martin thereafter became a regular employee on February 27, 2006. On March 17, 2006, Martin received a Letter of Commitment. Martin damaged a customer’s gate on June 16, 2006. On December 5, 2006, Martin received a warning for receiving a speeding ticket. Martin received another warning on July 24, 2006 for failing to clean his truck. Mark Nieto, born 1976, was hired in November 2005. He received a write up for running over carpet. On April 18, 2006, he damaged a parked vehicle. Nieto was promoted to regular employee status on July 21, 2006. John Lee, III, born 1973, was hired on June 16, 2006. He damaged a gate while driving the truck on July 28, 2006. Lee cased damage to private property on August 3, 2006. On November 17, 2006, Lee failed to report damages to steps. Lee backed into a fence on January 18, 2007. Marcus Whitfield, born 1964, was hired in May 2005. He damaged a chain link fence on November 2, 2005. On November 10, 2005, he refused to service a route that had been assigned to him and he was terminated. Defendants assert that these employees are not appropriate comparators because they were all hired more than a year after Chanez was terminated, none of them worked as Roll-Off Drivers at the Cheyenne Transfer Station, and none of them were supervised by Harris. Instead, Defendants point out that 87 casual employees who worked at the Cheyenne Transfer Station were terminated between January 2001 to May 2006 based upon performance issues not related to attendance, accidents or specific policy violations. Of those 87 employees, 36 were over the age of 40 and 51 were under the age of 40 at the time of termination. The EEOC has not proven that these comparators are similarly situated to Chanez. The EEOC did not produce evidence establishing that other than being a driver, the comparators were similarly situated in all material aspects. For example, there is no evidence that the comparators worked in the same line of business as Chanez, drove the same type of vehicles or routes, were supervised by the same person, or that they worked as the same transfer station. There is nothing in the record indicating what type of license or training is needed to drive the various vehicles or what the job duties entail. Neither is there information comparing the types of vehicles. In addition, each of these comparators were hired more than one year after Chanez was terminated. Merely being a driver at some point in time does not establish that these younger individuals were similarly situated to Chanez in all material respects. See EEOC v. Kohler Co., 335 F.3d 766, 776 (8th Cir.2003) (“the individuals used for comparison must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances”); Visco v. Community Health Plan, 957 F.Supp. 381, 389 (N.D.N.Y.1997) (“in order to be similarly situated, other employees must have reported to the same supervisor as the plaintiff, must have been subject to the same standards governing performance evaluation and discipline, and must have engaged in conduct similar to the plaintiffs, without such differentiating or mitigating circumstances that would distinguish their conduct or the appropriate discipline for it”). Finally, the one age-related comment is insufficient to create a genuine issue of fact with respect to pretext because it was made to another employee and was not tied in anyway to Chanez himself, his termination, or his ability to the job. For these reasons, summary judgment is GRANTED with respect to Chanez’s claim. 3. Lorrance Wilder, Jr. Lorrance Wilder, Jr., born 1957, was hired as a casual pitcher/driver at the Cheyenne Transfer Station in May 2005. Wilder was terminated in December 2005 for inadequate work performance and sent back to the union hall. Wilder was never subjected to any age-related comments. Of the 87 casual employees at the Cheyenne Transfer Station that were terminated between January 2001 and May 2006 for performance issues unrelated to attendance, accidents, or specific policy violations, 36 were over 40 years old, and 51 were under 40 years of age at the time of termination. The EEOC argues that because no one could recall the specific performance problem that Wilder had, the reason for his termination was pretext for age discrimination. In addition, Wilder believes he was discriminated against based upon his age because he noticed that younger casual employees with less seniority would be assigned work but that he was not assigned work and was sent home. The EEOC’s argument shifts the burden of its prima facie case to Defendants. The EEOC has to prove that Wilder was adequately performing his duties. The EEOC has not done so. Accordingly, the EEOC has not met its prima facie burden that Wilder was adequately performing his duties. Moreover, Wilder was hired and fired within seven months of time. Although there is no evidence as to whether the same person hired and fired Wilder, the fact that Wilder was the same age at his hiring as he was at firing counsels against an inference of age discrimin