Opinion
No. C 01-0113
November 25, 2002
ORDER
This matter comes before the court pursuant to the defendant's September 6, 2002 motion for summary judgment (docket number 9). The parties have consented to the exercise of jurisdiction by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the court grants the motion for summary judgment.
In this case, the plaintiff, Cynthia Armstrong, alleges that her former employer, Systems Unlimited Inc., demoted her in August of 1999 because of her gender and pregnancy in violation of Title VII and the Pregnancy Discrimination Act (PDA), 42 U.S.C. § 2000 et. seq., the Iowa Civil Rights Act, Iowa Code Chapter 216, and the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601-2654 (1994). The defendant moves for summary judgment, arguing: (1) that the plaintiff cannot establish a claim of discrimination based on pregnancy; (2) that the plaintiff cannot establish a claim of discrimination based on sex; and (3) that the plaintiff cannot establish an FMLA violation.
Summary Judgment: The Standard
A motion for summary judgment may be granted only if, after examining all of the evidence in the light most favorable to the nonmoving party, the court finds that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. Kegel v. Runnels, 793 F.2d 924, 926 (8th Cir. 1986). Once the movant has properly supported its motion, the nonmovant "may not rest upon the mere allegations or denials of [its] pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "To preclude the entry of summary judgment, the nonmovant must show that, on an element essential to [its] case and on which it will bear the burden of proof at trial, there are genuine issues of material fact." Noll v. Petrovsky, 828 F.2d 461, 462 (8th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). Although "direct proof is not required to create a jury question, . . . to avoid summary judgment, `the facts and circumstances relied upon must attain the dignity of substantial evidence and must not be such as merely to create a suspicion.'" Metge v. Baehler, 762 F.2d 621, 625 (8th Cir. 1985) (quoting Impro Prod., Inc. v. Herrick, 715 F.2d 1267, 1272 (8th Cir. 1983)).
The nonmoving party is entitled to all reasonable inferences that can be drawn from the evidence without resort to speculation. Sprenger v. Fed. Home Loan Bank of Des Moines, 253 F.3d 1106, 1110 (8th Cir. 2001). The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. Id. Although it has been stated that summary judgment should seldom be granted in employment discrimination cases, summary judgment is proper when a plaintiff fails to establish a factual dispute on an essential element of her case. Helfter v. UPS, Inc., 115 F.3d 613, 615-16 (8th Cir. 1997). The standard for the plaintiff to survive summary judgment requires only that the plaintiff adduce enough admissible evidence to raise genuine doubt as to the legitimacy of the defendant's motive, even if that evidence did not directly contradict or disprove defendant's articulated reasons for its actions. O'Bryan v. KTIV Television, 64 F.3d 1188, 1192 (8th Cir. 1995). To avoid summary judgment, the plaintiff's evidence must show that the stated reasons were not the real reasons for the plaintiff's discharge and that sex or other prohibited discrimination was the real reason for the plaintiff's discharge. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000) (quoting the district court's jury instructions).
Statement of Undisputed Material Facts
The plaintiff, Cynthia Armstrong, first worked for the defendant, Systems Unlimited, Inc., from 1994 to 1995 when she left to take a job with another agency. The defendant is an Iowa corporation that provides a wide variety of services to people with disabilities in eastern Iowa. In 1997, the plaintiff again sought employment with the defendant and was hired in December of 1997 as a Supported Living Coordinator. The plaintiff's duties included supervising facilities where children and adults with disabilities were placed for supervised care, assisting with consumers, and maintaining records.
In April of 1998, the plaintiff was nominated for an Employee Recognition Award and she received the award in May of 1998. In the plaintiff's initial six-month performance review, she was ranked overall as "good." Some performance issues were also noted in this review, including notes to return phone calls in a more timely manner to case managers, staff and parents, and to improve her ability to meet deadlines.
In the spring of 1998, Michael McKay, the director of support services for the defendant, first began hearing complaints about the plaintiff's work performance. He heard complaints regarding the plaintiff's failure to return phone calls and her failure to ensure that an appropriate number of employees were hired at the facilities she was supervising. He also noted that the turnover rate among employees the plaintiff supervised was very high as were her overtime reports. The plaintiff admitted that she did not return phone calls in a timely manner and that the work she was expected to do was "very hard" and she was "too busy to do everything." She also admitted that her facilities had a high turnover rate, however, she claimed this was "a chronic problem" of the defendant's. She claimed that the job was "literally impossible" so anyone could have been fired for poor performance. She further claimed that it was "impossible" for her to be at each of her locations and keep all the paperwork current. Two of the plaintiff's employees complained to Mr. McKay indicating that she was intimidating and failed to provide them with adequate support and direction. Upon hearing these complaints, Mr. McKay began to investigate the allegations by talking to other employees.
In August of 1998, the plaintiff advised Mary Rupert, director of supported living and the plaintiff's direct supervisor, that she was trying to conceive a child. Complaints regarding the plaintiff had also been brought to the attention of Ms. Rupert. Human resources personnel complained that the plaintiff failed to follow up on job candidates. The accounting department complained that the plaintiff was consistently late in turning in her payroll and house spending reports and she failed to return their phone calls. Direct care staff raised concerns that the plaintiff was unprofessional and that she hung up on them during phone calls, failed to listen to them, and she failed to give them adequate information regarding job requirements.
In the fall of 1998, Ms. Rupert attended a meeting of the plaintiff's staff and noted significant anger on the part of the staff directed towards the plaintiff. Specifically, she heard complaints that they felt unsupported by the plaintiff, that she had not provided them with adequate training, and that she was not physically present very often.
On October 7, 1998, the plaintiff advised Ms. Rupert that she was pregnant. Two months later, the plaintiff received an annual pay raise. The plaintiff also informed Ms. Rupert that she would not be able to do any heavy lifting due to her pregnancy.
In January of 1999, a counselor in one of the houses supervised by the plaintiff resigned, citing concerns about the plaintiff as a coordinator. At about this same time, another employee complained to Ms. Rupert that the plaintiff was not providing enough support or information.
As a result of the complaints against the plaintiff, Ms. Rupert gave her a list of "performance expectations" on February 25, 1999. Included in this list, Ms. Rupert noted the plaintiff's lack of professionalism, failure to listen, failure to follow through with things, and attendance and participation problems. The performance expectations were consistent with the job description for the coordinator position and were expected of all coordinators at the time. When the plaintiff received the list, she requested more specific examples of her performance problems, which Ms. Rupert provided to her. At the plaintiff's request, Ms. Rupert agreed to mediate the situation using a third-party mediator.
In April of 1999, another employee complained to Mr. McKay and Ms. Rupert that the plaintiff was unsupportive. The employee indicated she was frightened of the plaintiff because she had verbally attacked her at a meeting.
On April 20, 1999, the plaintiff applied for FMLA leave to begin on June 7, 1999. The request was granted and on June 7, 1999, the plaintiff began her leave. She intended to return to work on August 16, 1999.
After the plaintiff went on leave, Ms. Rupert discovered that the plaintiff had not adequately prepared to leave, specifically, she was not caught up with her paperwork, she had not been properly maintaining records and had lost important documents. Two counselors supervised by the plaintiff threatened to quit if the plaintiff remained their supervisor when she returned from leave.
Ms. Rupert drafted a performance review of the plaintiff dated August of 1999. She determined that the plaintiff did not have the capability to continue serving as a Supported Living Coordinator and, along with Mr. McKay and Bill Gorman, executive director of the agency, decided to offer the plaintiff a position of reduced responsibility once she returned to work. In an effort to create a genuine issue of material fact about the review, the plaintiff states only that she disputes some of it and believes that some of it is a misunderstanding or taken out of context. The plaintiff was offered a position of either a counselor or trainer. Both positions offered lower pay and fewer benefits. The plaintiff refused the proposed demotion and never returned to work after the demotion was offered. She appealed the decision, but her appeal was denied.
From 1992 through 2001, at least 51 of the defendant's employees have taken maternity or FMLA leave for the birth or adoption of a child or for pregnancy-related heath conditions. Of these employees, 19 remain employed by the defendant and 32 chose not to return from leave or voluntarily resigned. The defendant has hired at least two pregnant females and promoted one employee while she was on maternity leave. From 1997 through 1999, 23 coordinators worked for the defendant. Of these 23 coordinators, 16 were female. As of June 1, 1999, when the plaintiff was employed as a coordinator, there were 11 coordinators. Of these 11, two were male. The plaintiff was paid more than one of the male coordinators and less than the other. Two female coordinators were paid more than the highest paid male coordinator at the time.
Conclusions of Law Pregnancy Discrimination
The plaintiff brings her pregnancy discrimination claim under both Title VII and the Iowa Civil Rights Act (ICRA). She alleges that the defendant discriminated against her by "giving her poor performance evaluations and constructively discharging her." "As a preliminary matter, it should be noted that in considering [the plaintiff's] discrimination claims, the court will generally make no distinction between claims based on federal law and comparable claims based on state law." Wensel v. State Farm Mut. Auto. Ins. Co., 218 F. Supp.2d 1047, 1055 (N.D.Iowa 2001). The Iowa Supreme Court has recognized that federal precedent is applicable to discrimination claims under the ICRA. Id. (citing Vivian v. Madison, 601 N.W.2d 872, 873 (Iowa 1999).
Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer "to discriminate against any individual, with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex. . . ." 42 U.S.C. § 2000e-2(a)(1). The PDA defined the phrase "because of sex" to include "pregnancy, childbirth, or related medical conditions." A claim under the PDA is given the same effect as a Title VII claim. "The [PDA] does not require that employers make accommodations for their pregnant workers; '[e]mployers can treat pregnant women as badly as they treat similarly affected but nonpregnant employees.'" Grier v. Medtronic, Inc., 99 F.3d 238, 242 (7th Cir. 1996) (quoting Troupe v. May Dep't Stores Co., 20 F.3d 734, 738 (7th Cir. 1994)).
There are two alternative methods of analysis in deciding employment discrimination cases. The first is the Price Waterhouse direct evidence framework. Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989). The second is the McDonnell Douglas indirect evidence or burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). In this case, the defendant argues, and the plaintiff concedes, that there is no direct evidence that the defendant took an adverse employment action against the plaintiff because of her pregnancy, and therefore, the McDonnell Douglas analysis is appropriate. See McDonnell Douglas Corp. v. Green, 411 U.S. at 809.
There are three stages under the indirect evidence framework: (1) prima facie case; (2) nondiscriminatory reason by the employer; and (3) pretext. See Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (citing McDonnell Douglas Corp. v. Green, 411 U.S. at 802-04). The plaintiff bears the initial burden to establish her prima facie case of discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). In order to establish a prima facie case, the plaintiff must demonstrate:
(1) that she is within the protected class; (2) that she was qualified to perform her job; (3) that she suffered an adverse employment action; and (4) that nonmembers of her class . . . were treated the same.
Breeding v. Arthur J. Gallagher Co., 164 F.3d 1151, 1156 (8th Cir. 1999). If the plaintiff fails to establish a prima facie case, the employer is entitled to summary judgment. If the plaintiff does establish a prima facie case of employment discrimination, the burden "shifts to the employer to demonstrate a legitimate, nondiscriminatory reason for the adverse employment action." Id. "The employer need only articulate, not prove, its legitimate reason, because the employee continues to bear the burden of proving that he or she was subjected to unlawful discrimination." Bauer v. Metz Baking Co., 59 F. Supp.2d 896, 908 (N.D.Iowa 1999) (citing Walton v. McDonnell Douglas Corp., 167 F.3d 423, 427 (8th Cir. 1999)). "This burden is one of production, not persuasion; it `can involve no credibility assessment.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 509. To overcome the employer's proffered legitimate reason, the employee "`must present affirmative evidence'" that discrimination was the real reason for the adverse employment action. Bauer v. Metz Baking Co., 59 F. Supp.2d at 909 (quoting Walton v. McDonnell Douglas Corp., 167 F.3d at 428). "If the plaintiff's prima facie case is weak, the quantum of additional evidence necessary to establish pretext for summary judgment purposes increases." Id. at 906 (citing Montgomery v. John Deere Co., 169 F.3d 556, 560 (8th Cir. 1999)).
Applying this framework to this case, the court must first determine whether the plaintiff has established her prima facie case of pregnancy discrimination. First, the plaintiff has clearly established that she was within a protected class as a pregnant woman. Second, the plaintiff must show that she was qualified to perform the job. There is no dispute that she was qualified when she was hired. Taking the evidence in a light most favorable to the plaintiff, she was qualified to do her job. Third, the plaintiff must show that she suffered an adverse employment action. "[A]n adverse employment action is exhibited by a material employment disadvantage, such as change in salary, benefits, or responsibilities." LaCroix v. Sears, Roebuck, Co., 240 F.3d 688, 691 (8th Cir. 2001); see also Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999) (holding that adverse employment action includes demotion and reduction in pay). Here, the plaintiff was offered a position with less pay and fewer benefits, so the defendant's action would qualify as an adverse employment action.
Finally, the plaintiff must show that similarly situated individuals were not treated the same way as she was. "The test for whether employees are `similarly situated' to warrant a comparison to a plaintiff is a `rigorous' one." Palesch v. Mo. Comm'n on Human Rights, 233 F.3d 560, 568 (8th Cir. 2000) (internal citations omitted). "[T]he 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." Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000) (citing Lynn v. Deaconess Med. Ctr.-W. Campus, 160 F.3d 484, 487-88 (8th Cir. 1998)). The plaintiff has provided no evidence to show that she was treated differently from similarly situated employees. The plaintiff does point to the fact that no other coordinator was given a list of performance expectations, however, there is no evidence that any other coordinator had as many complaints against them as the plaintiff. Also, the plaintiff asserts that Mr. McKay was singling her out and was attempting to get "dirt" on her. However, this is nothing more than a subjective belief by the plaintiff. It is undisputed that Mr. McKay was talking to other employees regarding the plaintiff's performance but it was only after the complaints about her came to his attention. The plaintiff also alleges that she was assigned to all the most difficult locations, however, even if that were true, she cannot prove that there is a connection between that fact and her pregnancy. These allegations by the plaintiff are not enough to pass the "rigorous test" and show that she was treated differently from similarly situated employees. Therefore, the court finds that the plaintiff has not established her prima facie case.
However, assuming that the plaintiff had established her prima facie case, the burden would shift to the defendant to demonstrate a legitimate, non-discriminatory reason for its adverse employment action. The defendant has done so by showing that the plaintiff's performance was not meeting expectations and there were several complaints from employees regarding her performance.
Upon the defendant's showing of a legitimate, nondiscriminatory reason, the burden returns to the plaintiff to show that the reasons given by the defendant were not the true reasons for the adverse employment action, but were only a pretext for pregnancy discrimination. The plaintiff has offered no substantial evidence to show the reasons given were in fact only pretextual. The plaintiff points to her six-month performance evaluation in which she was rated "good." She therefore argues the reasons given must have been pretextual or she would not have received a positive evaluation. However, that evaluation was filled out only six months after she resumed her employment and over a year before the decision to offer her the demotion. Since the time of that evaluation, the plaintiff has admitted that she failed to return phone calls, was often absent from meetings, and felt overwhelmed by all the work she was expected to do. The plaintiff presented no evidence to show that her managers were mistaken in finding that she could no longer perform her job effectively. "In the absence of any evidence of discriminatory intent . . . it is not the prerogative of the courts or a jury to sit in judgment of employers' management decisions." Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (en banc). Accordingly, the defendant is entitled to summary judgment on the plaintiff's pregnancy discrimination claim.
The plaintiff also claimed gender discrimination in her complaint. This claim would be analyzed under the same framework as her pregnancy discrimination claim. The plaintiff has presented no additional evidence in support of this claim. Therefore, the defendant is entitled to summary judgment on this claim also.
Finally, the defendant seeks summary judgment on the plaintiff's constructive discharge claim. When an employer does not directly terminate an employee, the employee "must offer evidence sufficient to establish that she was constructively discharged. . . ." Hanenburg v. Principal Mut. Life Ins. Co., 118 F.3d 570, 574 (8th Cir. 1997). A constructive discharge occurs when an employer deliberately makes an employee's working conditions intolerable and therefore forces her to quit her job. Klein v. McGowan, 198 F.3d 705, 709 (8th Cir. 1999). The plaintiff must show that the employer intended to have the employee quit by demonstrating that quitting was "a reasonably foreseeable consequence of the employer's discriminatory actions." Howard v. Burns Bros., Inc., 149 F.3d 835, 841 (8th Cir. 1998). The employee does have an obligation to act reasonably and not to immediately assume the worst. See id. at 842-43. "[I]ntolerability of working conditions is judged by an objective standard, not the [employee's] subjective feelings." Allen v. Bridgestone/Firestone, Inc., 81 F.3d 793, 796 (8th Cir. 1996) (quoting Johnson v. Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir. 1981)).
In this case, the plaintiff claims that she was constructively discharged because she was demoted upon her return from leave with the expectation that she would quit rather than accept the demotion. However, she presents no evidence to support this assertion. There is no evidence that the plaintiff was demoted on the basis of her pregnancy. A demotion based on the facts of this case was not so intolerable so as to compel the plaintiff to resign. The plaintiff herself admitted that she had fallen behind in several of her assignments. She admitted she felt overwhelmed with work so she was offered a position with less responsibility. There is no evidence presented that the defendant did in fact intend for the plaintiff to resign after offering her the demotion. Instead, the plaintiff simply makes conclusory statements that this was in fact the defendant's intention. While the demotion might have induced stress for the plaintiff, there is no evidence to support her argument that her supervisors' conduct created the compulsion to quit that is necessary for a constructive discharge claim. See Hanenburg v. Principal Mut. Life Ins. Co., 118 F.3d at 575. Because the plaintiff cannot show that her working conditions were so intolerable that a reasonable person would have resigned, the defendant is entitled to summary judgment on her constructive discharge claim.
Failure to Reinstate
The plaintiff also asserts that the defendant failed to reinstate her to her previous position in violation of the FMLA once she returned from leave. The FMLA entitles eligible employees to take up to twelve weeks of leave during any twelve-month period for certain family or medical conditions. 29 U.S.C. § 2612(a)(1)(D) (2000). The Act prohibits employers from discriminating against employees for exercising their rights under it. Id. § 2615(a)(2). The FMLA also provides that upon return from leave, an employee is generally entitled to be restored to the position of employment she held when the leave began or to an equivalent position with equivalent benefits, pay and other terms and conditions of employment. Id. § 2416(a). However, "[a]n employee is only entitled upon return from leave to that which she would have been entitled absent the leave time." Hatchett v. Philander Smith Coll., 251 F.3d 670, 677 (8th Cir. 2001) (citations omitted). "The FMLA does not require an employer to allow an employee to stay in a position that the employee cannot perform." Id.
The plaintiff claims that she was retaliated against for taking FMLA leave. In order to establish a claim of FMLA retaliation, a variant of the McDonnell Douglas standard may be used. Smith v. Allen Health Sys., Inc., 302 F.3d 827, 832 (8th Cir. 2002). To establish her prima facie case, the plaintiff must demonstrate that she exercised rights afforded by the Act, that she suffered an adverse employment action, and that there was a causal connection between her exercise of rights and the adverse employment action. Darby v. Bratch, 287 F.3d 673, 679 (8th Cir. 2002). It is undisputed that the plaintiff went on FMLA leave after having her baby. It is also clear that she suffered an adverse employment action upon her return from leave. However, there is some question as to whether the plaintiff has established that these two events are connected. "Generally, more than a temporal connection between the protected conduct and the adverse employment action is required to present a genuine factual issue on retaliation." Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (en banc). However, the length of time between the exercising of rights and the adverse employment action is important. Smith v. Allen Health Sys., Inc., 302 F.3d at 833. "`The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be very close.'" Id. (quoting Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per curiam) (internal citations omitted)). In this case, the plaintiff was demoted the day before she returned from her FMLA leave. These two events are extremely close in time and therefore, under Eighth Circuit precedent, this is sufficient, though barely so, to complete the plaintiff's prima facie case.
If the employer presents evidence of a legitimate, nondiscriminatory reason for its adverse employment action, the employee must point to some evidence that the employer's proffered reason is pretextual. Kiel v. Select Artificials, Inc., 169 F.3d at 1135. The defendant has come forward with evidence that the plaintiff's demotion was the result of mounting complaints against her by her employees which led the defendant to the conclusion that she was unable to perform her job effectively.
The plaintiff in this case has failed to rebut the evidence presented by the defendant to show its proffered reason was pretextual. "To carry the burden of showing pretext, [the plaintiff] had to show that [the defendant's] justification for the [demotion] was unworthy of credence." Smith v. Allen Health Sys., Inc., 302 F.3d at 833-34. It is possible for strong evidence of a prima facie case to establish pretext as well. Id. at 834 (citing Erickson v. Farmland Indus., Inc., 271 F.3d 718, 726 (8th Cir. 2001). However, in this case, the plaintiff just barely established her prima facie case, relying only on the timing of the demotion. "[T]emporal proximity sufficed to create a prima facie case of . . . discrimination, but not to show that the defendant's proffered reason was pretextual." Id. "An employee's attempt to prove pretext or actual discrimination requires more substantial evidence [than it takes to make a prima facie case], however, because unlike evidence establishing the prima facie case, evidence of pretext and discrimination is viewed in light of the employer's justification." Id. (quoting Sprenger v. Fed. Home Loan Bank of Des Moines, 253 F.3d 1106, 1111 (8th Cir. 2001)). The sole fact that the plaintiff was demoted at around the same time as her FMLA leave cannot support an inference of pretext. Id. The plaintiff does point to her positive six-month review in her attempt to prove pretext. However, at the time of that review, the plaintiff's supervisors were not aware of the complaints against her and the other problems she was experiencing at the agency. Further, if the defendant planned on firing her for taking FMLA and planned on using her performance problems as a pretext for her termination, it would have been strange to give her a positive six-month evaluation and an annual pay raise.
There are other facts present in this case that further weaken the plaintiff's argument that the defendant's proffered reason was pretextual. For example, the plaintiff herself has stated her frustration with the amount of work she was expected to do and she also has acknowledged some of her recent difficulties with her job. Also, before the plaintiff went on FMLA leave, her supervisors confronted her about the complaints they had received from her employees. "Evidence that the employer had been concerned about a problem before the employee engaged in the protected activity undercuts the significance of the temporal proximity." Id. (citing Smith v. Ashland, Inc., 250 F.3d 1167, 1174 (8th Cir. 2001). After the plaintiff began her leave, her supervisors found out more about her recent problems. The decision was then made to reinstate the plaintiff to an appropriate position. Upon the foregoing,
IT IS ORDERED that the defendant's motion for summary judgment (docket number 9) is granted. The clerk shall enter judgment for the defendant.