Calvert v. Dairy Farmers of America, Inc.

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In the United States District Court
for the District of Kansas
_____________
Case No. 24-cv-02565-TC
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KEVIN CALVERT,
Plaintiff
v.
DAIRY FARMERS OF AMERICA, INC.,
Defendant
_____________
MEMORANDUM AND ORDER
Plaintiff Kevin Calvert sued his former employer Dairy Farmers of
America, Inc., (DFA) alleging age and disability discrimination. Doc.
40. DFA moves for summary judgment. Doc. 41. For the following
reasons, that motion is granted.
I
A
Summary judgment is proper under the Federal Rules of Civil Pro-
cedure when the moving party demonstrates “that there is no genuine
dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” when it
is necessary to resolve a claim. Adler v. Wal-Mart Stores, Inc., 144 F.3d
664, 670 (10th Cir. 1998). And disputes over material facts are “genu-
ine” if the competing evidence would permit a reasonable jury to de-
cide the issue in either party’s favor. Id. Disputes—even hotly con-
tested ones—over facts that are not essential to the claims are irrele-
vant. Brown v. Perez, 835 F.3d 1223, 1233 (10th Cir. 2016). Indeed, be-
laboring such disputes undermines the efficiency that Rule 56 seeks to
promote. Adler, 144 F.3d at 670.
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At the summary judgment stage, material facts “must be identified
by reference to affidavits, deposition transcripts, or specific exhibits
incorporated therein.” Adler, 144 F.3d at 671; see also D. Kan. R.
56.1(a)–(c). To determine whether a genuine dispute exists, the court
views all evidence, and draws all reasonable inferences, in the light
most favorable to the nonmoving party. See Allen v. Muskogee, Okla.,
119 F.3d 837, 839–40 (10th Cir. 1997). That said, the nonmoving party
cannot create a genuine factual dispute by making allegations that are
purely conclusory, Adler, 144 F.3d at 671–72, 674, or unsupported by
the record. See Scott v. Harris, 550 U.S. 372, 378–81 (2007).
The moving party bears the initial burden of showing the absence
of any genuine issue of material fact and entitlement to judgment as a
matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Savant
Homes, Inc. v. Collins, 809 F.3d 1133, 1137 (10th Cir. 2016). Once the
moving party meets its burden, the burden shifts to the nonmoving
party to demonstrate that genuine issues as to those dispositive matters
remain for trial. Celotex, 477 U.S. at 324; Savant Homes, 809 F.3d at 1137.
B
This is an employment discrimination case. In short, Calvert con-
tends that his former employer, Dairy Farmers of America, Inc.,
(DFA), fired him because of his age and disability. The following re-
flects the context in which this lawsuit arose.
DFA is a farmer-owned cooperative in Kansas. Doc. 40 at ¶ 2.a.i.1
Calvert started working at DFA in 1998. Id. at ¶ 2.a.ii. In 2019, while
Calvert worked as a business analyst for DFA, Chuck Quick became
Calvert’s supervisor. Id. at ¶ 2.a.iii. Calvert’s previous supervisor, Deb-
orah Schmitz, briefed Quick on Calvert’s performance when Quick
became Calvert’s supervisor. Id. at ¶ 2.a.xxi; Doc. 42 at ¶ 41. Schmitz
explained to Quick that there were issues with the quality of Calvert’s
work as well as his ability to work independently and collaboratively
with others. Doc. 42 at ¶ 41.
Calvert’s performance did not improve in 2019. Quick surveyed
DFA’s business partners and user community about Calvert after he
received feedback from Schmitz. Doc. 42 at ¶ 42. The results of that
1 All document citations are to the document and page number assigned in
the CM/ECF system. All facts are uncontroverted unless otherwise specified.
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survey indicated that DFA’s business partners and users wanted Cal-
vert removed from vendor payroll. Id. Quick then removed Calvert
from managing vendor payroll so that Calvert could see how others
did the work. Id. at ¶ 43. Calvert ultimately received a poor perfor-
mance review in 2019 of 1.7 out of 3. Id. at ¶¶ 44, 45, 47. His perfor-
mance review noted that he struggled to conduct efficient meetings,
was disengaged and unresponsive when working from home, and
lacked knowledge about certain tasks. Id. at ¶ 46.
Calvert’s performance also failed to improve in 2020 and 2021.
Quick observed Calvert ask for help with tasks that he should have
been able to perform without guidance. Doc. 42 at ¶ 51. And Calvert’s
coworkers complained to Quick that Calvert was committing errors
that they had to fix, which took time away from their own tasks. Id.
Calvert received a poor rating of 2.0 for both 2020 and 2021. Id. at
¶¶ 47–50.
Calvert’s performance worsened in 2022. Quick’s supervisor,
Bryan Madel, asked Quick to start having one-on-one meetings with
Calvert so they could address his performance issues. Doc. 42 at ¶ 52.
Quick started having weekly meetings with Calvert to discuss com-
plaints that he had received about Calvert’s work and to review Cal-
vert’s work. Id. at ¶¶ 53–55. Quick also had a meeting with Calvert and
DFA’s human resources director Dawn Wissing wherein Quick re-
minded Calvert about his job responsibilities and informed him that
he could be fired if his performance did not improve. Id. at ¶ 56. Later
in the Fall of 2022, Calvert issued a payment in error, which led to his
coworkers doing extra work to correct the mistake. Id. at ¶ 58. Calvert
finished 2022 with a low rating of 1.4. Id. at ¶ 59.
Early in 2023, Madel initiated the process to fire Calvert. Doc. 42
at ¶¶ 67, 68. Calvert was fired in April 2023. Id. at ¶ 68. He was sixty
years old. Doc. 40 at ¶ 2.a.xi. He was not replaced by another em-
ployee. Rather, his work was distributed to his coworkers. Doc. 42 at
¶ 69.
Calvert’s claims revolve around his alleged disability. Thus, a brief
primer on his disability and the facts surrounding it will help contex-
tualize the dispute.
In April 2022, Calvert went to the hospital and was diagnosed with
atrial fibrillation and high blood pressure. Doc. 40 at ¶ 2.a.xii; Doc. 42
at ¶¶ 17, 18. Calvert was in the hospital for three days. Doc. 42 at ¶ 19.
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When he returned to work, he told his coworkers that he had atrial
fibrillation. Id. at ¶ 21. But he did not mention that he had high blood
pressure. Id. at ¶ 23. Calvert admits that neither atrial fibrillation nor
high blood pressure prevented him from doing his work or otherwise
affected his ability to work. Id. at ¶¶ 19, 20. Calvert did not request a
reasonable accommodation on account of the two diagnoses. Doc. 40
at ¶ 2.a.xxiii.
Based on these facts, Calvert filed suit in federal court. Doc. 40.
He brings two counts of employment discrimination: Count I for age
discrimination in violation of the Age Discrimination in Employment
Act, 29 U.S.C. § 623, and Count II for disability discrimination in vio-
lation of the Americans with Disabilities Act, 42 U.S.C. § 12112. Id. at
¶¶ 4.a.i, 4.a.ii. DFA requests summary judgment. Doc. 41. It argues
that Calvert has not made a prima facie case of age or disability dis-
crimination, and that it had legitimate, non-pretextual reasons for firing
Calvert.
II
Calvert argues that DFA unlawfully terminated him because of his
age and disability. Doc. 40 at ¶¶ 4.a.i, 4.a.ii. Even assuming he had ev-
idence in support of a prima facie case, his claims still fail because DFA
offers a legitimate, non-pretextual reason for firing Calvert and Calvert
lacks any evidence that this reason was pretext for discrimination.2 Ac-
cordingly, DFA’s motion is granted.
2 It does not appear that Calvert has made a prima facie claim of age or disa-
bility discrimination. See Doc. 42 at 19–28 (arguing as much). As to age, the
parties agree that Calvert was not replaced by any employee, much less a
younger one. Doc. 40 at ¶ 2.a.xvii; see Frappied, 966 F.3d at 1056 (noting that
it is an element of a prima facie case of age discrimination that the plaintiff
was “replaced by a younger person”). And as to disability, Calvert did not
request a reasonable accommodation, Doc. 40 at ¶ 2.a.xxiii, and he testified
that neither atrial fibrillation nor high blood pressure affected his ability to
work or caused any ongoing symptoms. Doc. 42 at ¶¶ 19, 20; see 42 U.S.C.
§ 12102(1) (a disability is “a physical or mental impairment that substantially
limits one or more major life activities”). But, out of an abundance of caution,
this Memorandum and Order will assume without deciding that he has satis-
fied the prima facie test for both claims because there is no evidence to show
that DFA’s reasons for firing him were pretextual.
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A
Calvert’s age discrimination claim is governed by the Age Discrim-
ination in Employment Act, 29 U.S.C. §§ 621–634, which makes it
“unlawful for an employer . . . to discharge any individual . . . because
of such individual’s age . . . .” 29 U.S.C. § 623(a). This prohibition on
discrimination applies to protect “individuals who are at least 40 years
of age.” 29 U.S.C. § 631(a). A plaintiff suing under the ADEA must
prove that the challenged employment action was motivated by age.
Markley v. U.S. Bank Nat’l Ass’n, 59 F.4th 1072, 1080–81 (10th Cir.
2023). While it is not necessary that age was the exclusive reason for
the action, a plaintiff seeking to survive summary judgment must pro-
duce evidence “that age was the ‘but-for’ cause of the employer’s ad-
verse decision.” Frappied v. Affinity Gaming Black Hawk, LLC, 966 F.3d
1038, 1056 (10th Cir. 2020) (quoting Gross v. FBL Fin. Servs., Inc., 557
U.S. 167, 176 (2009)).
And the Americans with Disabilities Act governs his disability dis-
crimination claim. The ADA makes employment discrimination
against “a qualified individual on the basis of disability” illegal. 42
U.S.C. § 12112(a). As with an ADEA claim, in the “absence of direct
evidence,” courts evaluate an ADA discrimination claim using the
McDonnell Douglas burden-shifting framework. Lincoln v. BNSF Ry. Co.,
900 F.3d 1166, 1192 (10th Cir. 2018). The prima facie case for discrim-
ination requires a plaintiff to show that he is disabled under the statute,
qualified for the job, and that the discriminatory conduct was because
of his disability. Id. (citing Kilcrease v. Domenico Transp. Co., 828 F.3d
1214, 1218–19 (10th Cir. 2016)).
When a defendant seeks summary judgment on a discrimination
claim based on circumstantial evidence, federal courts apply the famil-
iar McDonnell Douglas framework.3 DePaula v. Easter Seals El Mirador, 859
F.3d 957, 968–69 (10th Cir. 2017). Under that framework, a plaintiff
bears the initial burden of establishing a prima facie case of unlawful
discrimination. Id. at 969. If he or she does so, the burden shifts to the
defendant to articulate a “legitimate, nondiscriminatory reason” for
taking its adverse action. Id. at 970. If the defendant satisfies its burden,
the burden shifts back to the plaintiff to prove that the defendant’s
3 Neither party contends that there is any direct evidence of discrimination,
and each analyzes Calvert’s claims under McDonnell Douglas. See Docs. 42 at
18 & 45 at 7.
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proffered reasons were pretextual—i.e., “not the true reason for the
employment decision.” Id.
B
If a plaintiff meets his burden of stating a prima facie claim (and
this analysis presumes Calvert has done so), the burden shifts to the
employer to provide a legitimate reason for its decision. Lincoln, 900
F.3d at 1193. The burden to establish a legitimate, nondiscriminatory
reason is “exceedingly light.” DePaula, 859 F.3d at 970. On a motion
for summary judgment, a defendant need only “articulate a reason for
the [action] that is not, on its face, prohibited and that is reasonably
specific and clear.” Frappied, 966 F.3d at 1058 (quotations omitted). It
“need not persuade the court that it was actually motivated by the prof-
fered reasons.” Tex. Dep’t of Comm. Affairs v. Burdine, 450 U.S. 248, 254
(1981).
DFA has met that burden. It claims to have fired Calvert for poor
performance. Doc. 42 at 28. There is a voluminous record that shows
Calvert’s performance was subpar for several years before his termina-
tion. Doc. 42 at ¶¶ 41, 42, 44–51, 58. And poor performance is a legit-
imate reason to fire an employee. Bryant v. Farmers Ins. Exch., 432 F.3d
1114, 1125 (10th Cir. 2005). Calvert makes no argument to the con-
trary. Doc. 45 at 12.
C
Once an employer satisfies its obligation to identify a lawful reason
for the termination, the burden returns to the employee to show that
the reason for his termination was pretext for discrimination. Lincoln,
900 F.3d at 1193. A plaintiff “may show pretext by demonstrating the
proffered reason is factually false, or that discrimination was a primary
factor in the employer’s decision.” Id. (quoting DePaula, 859 F.3d at
970). In other words, a plaintiff may show that the defendant’s reason
is “so incoherent, weak, inconsistent, or contradictory that a rational
factfinder could conclude [it is] unworthy of belief.” EEOC v. C.R.
England, Inc., 644 F.3d 1028, 1039 (10th Cir. 2011); see also Bekkem v.
Wilkie, 915 F.3d 1258, 1267 (10th Cir. 2019).
Pretext probes the true intentions of the defendant, so the focus is
limited to “whether the employer honestly believed its reasons and
acted in good faith upon them.” Riggs v. AirTran Airways, Inc., 497 F.3d
1108, 1119 (10th Cir. 2007). A court’s role “is to prevent intentional
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discriminatory . . . practices, not to act as a ‘super personnel depart-
ment,’ second guessing employers’ honestly held (even if erroneous)
business judgments.” Dewitt v. S.W. Bell Tele. Co., 845 F.3d 1299, 1312
(10th Cir. 2017) (quoting Young v. Dillon Cos., Inc., 468 F.3d 1243, 1250
(10th Cir. 2006)). All facts are examined “as they appear to the person
making the decision, not as they appear to the plaintiff.” Debord v. Mercy
Health Sys. of Kan., Inc., 737 F.3d 642, 655 (10th Cir. 2013) (citation and
internal quotations omitted) (emphasis in original). Any doubts con-
cerning pretext are resolved in the plaintiff’s favor, but conjecture and
bare allegations are not enough to show pretext. Jencks v. Modern Wood-
men of Am., 479 F.3d 1261, 1267 (10th Cir. 2007).
Calvert makes two main points in support of pretext. Doc. 45 at
14–17. Both fail.
First, Calvert takes issue with his poor performance. In essence, he
argues that he was not a poor performer, that three out of his four
reviews under Quick were “at target,” and that he consistently received
good reviews before Quick became his supervisor. Doc. 45 at 14.
These arguments fail for at least two reasons. For one, the record is
clear that Calvert’s performance issues preceded Quick. When Quick
took over supervising Calvert from Schmitz, Schmitz spoke to Quick
to explain to him the issues with Calvert. Doc. 42 at ¶ 41. And for
another, Calvert’s subjective assessment of his performance is imma-
terial; the relevant inquiry is whether DFA—and his supervisor, Quick,
in particular—believed that Calvert performed poorly. Swackhammer v.
Sprint/United Mgmt. Co., 493 F.3d 1160, 1170 (10th Cir. 2007). The un-
controverted evidence confirms that DFA generally and Quick specif-
ically believed Calvert had performed poorly. Doc. 42 at ¶¶ 41, 42, 44–
51, 58. And even if Quick’s perception of Calvert’s performance had
been erroneous or unduly critical, that would not, standing alone, show
pretext because Calvert’s evidence fails to give reason to suspect that
discriminatory animus played any part in the decision to fire him. See
Dewitt v. S.W. Bell Tel. Co., 845 F.3d 1299, 1311 (10th Cir. 2017) (noting
that “when an employee is discharged because of an employer’s honest
mistake, federal anti-discrimination laws offer no protection”).
Second, Calvert argues that DFA did not afford him the opportunity
to have “progressive discipline.” Doc. 45 at 16. That argument fails as
a matter of law for several reasons. For one, Calvert was an at-will
employee in Kansas. Campbell v. Husky Hogs, L.L.C., 255 P.3d 1, 3 (Kan.
2011). Pursuant to this doctrine, “an employer can terminate an em-
ployee for good cause, for no cause, or even for a wrong cause, without
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incurring liability to the employee for wrongful discharge.” Bracken v.
Dixon Industries, Inc., 38 P.3d 679, 682 (Kan. 2002); see Berry v. T-Mobile
USA, Inc., 490 F.3d 1211, 1222 (10th Cir. 2007) (finding no pretext
where an at-will employee was fired allegedly in violation of the em-
ployer’s progressive discipline policy). And for another, DFA does not
have a policy that requires progressive discipline. Doc. 42 at ¶ 36; see
also Doc. 45 at 16 (failing to identify any evidence that DFA has a man-
datory progressive discipline policy). Calvert attempts to controvert
this fact by pointing to the deposition testimony of Dawn Wissing,
DFA’s human resources director. Doc. 45 at ¶ 36. But Wissing testified
that DFA does not have a mandatory progressive discipline policy,
Doc. 42-8 at ¶ 8, and she explained that DFA’s use of progressive dis-
cipline “varies person-to-person and situation-to-situation.” Doc. 45-
3 at 29. As a result, there is no reason to believe that DFA’s decision
to fire Calvert was pretextual because DFA failed to follow a manda-
tory progressive discipline policy it did not have. See Iweha v. Kansas,
121 F.4th 1208, 1226 (10th Cir. 2024) (“Where progressive discipline
is entirely discretionary, and the employer did not ignore any estab-
lished company policy in its choice of sanction, the failure to imple-
ment progressive discipline is not evidence of pretext.”) (alterations
omitted); cf. Kincaid v. Unified Sch. Dist. No. 500, Kansas City, Kansas, 94
F.4th 936, 949 (10th Cir. 2024) (“[A]n inference of pretext does not
follow from every departure from standard procedure.”).
III
For the foregoing reasons, DFA’s Motion for Summary Judgment,
Doc. 41, is GRANTED.
It is so ordered.
Date: April 8, 2026 s/ Toby Crouse
Toby Crouse
United States District Judge
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