Opinion
Civil Action No. 99-T-1499-N
January 19, 2001
SHARON E. BONHAM, plaintiff, M. Wayne Sabel, Maricia B. Woodham, Sabel Sabel, P. C., Montgomery, AL.
REGIONS MORTGAGE, INC., defendant, David R. Boyd, Charles B. Paterson, J. Beth Moscarelli, Balch Bingham, Montgomery, AL.
ORDER
This cause is now before the court on defendant Regions Mortgage, Inc.'s motion, filed January 8, 2001, to reconsider this court's partial denial of summary judgment. Regions argues that the court erred in finding that there was sufficient evidence for a reasonable jury to believe that the legitimate, nondiscriminatory reason it proffered for not promoting plaintiff Sharon E. Bonham was pretext. Regions concludes, therefore, that summary judgment should be granted as to the remaining claims in this case. For the reasons stated below, this motion is due to be denied.
Regions has argued that it did not promote Bonham because she lacked prior supervisory experience. The court found that three reasons which Bonham offered to discredit this reason would enable, but not require, a reasonable jury to conclude that this reason was pretext. First, the court found that Bonham presented evidence that the relevant decision maker, Rory Luther, after perusing her file during her promotion interview, commented on her age saying that she was "getting kind of old," and "getting real old." Deposition of Sharon Bonham at 57. He also told her: "You may have to stop — stop staying up so late and partying at night." Id. Second, Bonham presented evidence that at least one other person, Stallings, whom Luther selected for a supervisory position that is relevant to Bonham's remaining claim, lacked such experience. And, finally, Bonham presented evidence that the requirements for supervisory positions at Regions were changed after she had been considered for the positions that remain at issue in this litigation.
Regions has stated in a telephone conference held on January 12, 2001, that there are two ways that Bonham's lack of such experience is a legitimate reason for her non-selection. First, it has asserted that supervisory experience is a requirement for supervisory positions at Regions. Second, and perhaps more significantly, it has argued that despite this requirement, the company prefers to promote individuals with prior supervisory experience to positions as supervisors. Thus, Regions contends where a person without such experience vies for a supervisory position with a someone who possesses such experience, the person with the experience is preferred.
Regions concedes that, for the purposes of summary judgement, the court must give credence to Bonham's evidence regarding the comments that Luther made to her in her interview. Therefore, even assuming that Regions is correct that Stallings had supervisory experience and the job requirements did not change, the court concludes that the comments that Luther made to Bonham in her promotion interview could permit, but not require, a reasonable jury to conclude that Region's proffered reason is pretext.
This is a close question. There are cases that state that "a single age-related comment, even if made by a decisionmaker may not be `sufficient to infer discriminatory intent.'" McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1129 (10th Cir. 1998) (stray remarks be decision maker not relevant to show bias). In this case, the court believes that it would not require much to demonstrate that the employers legitimate nondiscriminatory reason was not pretextual.
Nevertheless, this court has found no Eleventh Circuit cases that state that comments alone cannot show pretext. And there is Eleventh Circuit precedent that holds that the weight to be attributed to such comments depends on their "substance, context, and timing." Damon v. Fleming Supermarkets, 196 F.3d 1354, 1362 (11th Cir. 1999) (finding that remark following termination of older employee to his replacement that "aggressive, young men" were wanted by decision maker, along with other evidence, sufficed to show pretext); see also Beaver v. Rayonnier, Inc., 200 F.3d 723 (11th Cir. 1999) (statements by a decision maker permit a jury to infer some age bias); Burrell v. Board of Trustees, 125 F.3d 1390, 1393 (11th Cir. 1997) (statements by a decision maker may be used as circumstantial evidence of discriminatory motive). Accordingly, whether comments standing alone show pretext depends on whether their substance, context, and timing could permit a finding that the comments are causally related to the adverse employment action at issue.
The Eleventh Circuit Court of Appeals is in line with other Courts of Appeals in looking not to the fact of comments but to the strength of the inference of discrimination that can be drawn from them. See, e.g., Ritter v. Hill n' Dale Farm, Inc., 231 F.3d 1039, 1043 (7th Cir. 2000) (holding that ageist statements did not show pretext because "pretext is not demonstrated by isolated statements unrelated to the employment decision at issue"); Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1140 (10th Cir. 2000) (holding that a "stray remark" is insufficient to create a jury issue, but that "[a]ge related comments referring directly to the plaintiff can support an inference of age discrimination"); Dominquez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 432 (1st Cir. 2000) (holding that comments made by key decision maker in conjunction with notes regarding decision to terminate sufficed to show pretext); Montgomery v. John Deere Co., 169 F.3d 356, 560-61 (8th Cir. 1999) (finding that ageist comments alone, coupled with weak showing of prima facie case did not amount to evidence of pretext).
What this court therefore concludes is that statements can suffice to meet the burden of showing pretext if the inference that they support can be drawn strongly enough. The court stresses that by deciding this it is not weighing the evidence that Bonham has presented, but is instead determining whether a reasonable jury could itself give sufficient weight to it. To decide this, the court must look to the substance, context and timing of the statements. See Damon, 196 F.3d at 1362. Bonham's deposition testimony regarding her interview with the decision maker, Rory Luther, reads:
"A: Brandi called me. I did talk with her. She told me that I would be — Rory was going to interview me.
"Q: And that's when he came to your desk and got you and y'all went in his office and talked about the job?
"A: Yes.
"Q: Tell me about — that was shortly after — That was within a week or so after you applied?
"A: Yes, maybe less than that.
"Q: Tell me to the best of your recollection sitting here today, tell me what was the substance of that conversation with you and Rory in his office?
"A: When he sat down, he looked through my file maybe a minute or so, and he said that I was getting kind of old. He didn't — He said, but you're not much older than I am.
He said, you're getting real old. You may have to stop — stop staying up so late and partying at night.
"Q: How did that conversation come up?
"A: He just brought it up. It didn't have anything to do with the application.
"Q: Had y'all talked about partying or anything?
"A: I never discussed partying with him. I don't talk to him in that manner.
"Q: He just brought it up?
"A: He just brought it up."
Deposition of Sharon Bonham at 56:10 through 57:16. From this exchange it appears that the substance of the comment is not altogether damning. Luther stated that Bonham was getting kind of old, but noted that she was not much older than he was. In particular, the substance of the statement is not explicitly about Bonham's age as a disqualification for the job. That is, it is not direct evidence such as: "Sharon, you are too old to be promoted." However, the law is clear that comments that are not direct evidence of discrimination can support an inference of discrimination.See, e.g. Burrell, 125 F.3d at 1393 (statements by a decision maker may be used as circumstantial evidence of discriminatory motive)
What is troubling about the comment is its timing, who made it, to whom it was directed and about whom it was phrased. It was made during the job interview — specifically right after Luther had just perused Bonham's file, and, thus, while he was in the process of developing an impression of her as a candidate for promotion. A reasonable jury could conclude that her age struck Luther and that it was a factor that caused his decision not to promote her. Bonham's testimony that it had nothing to do with the application, seen in a light most favorable to her is not an indication that it was a statement unconnected to her application for promotion, but that it was anomalous in the context of a job interview. The second thing that is troubling about the statement is that it was made by the relevant decision maker who determined that Bonham should not receive the promotion. It could not have come from one more crucially placed as far as the specific employment decisions that are at issue in this case. Third, it was made to the plaintiff in this case, and, fourth, it was specifically about the plaintiff and appears clearly to convey his impression of her.
Where courts have discounted biased statements as evidence of pretext in employment cases, the reasons generally given have been that they were not made by the responsible decision maker, see, e.g., Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 531 (10th Cir. 1994), or they were made in circumstances that were either temporally remote from the adverse employment action at issue, see, e.g., Ritter v. Hill n' Dale Farm, Inc., 231 F.3d 1039, 1043 (7th Cir. 2000) (comment made at lease six months before adverse employment action), or that they were "stray" comments, see, e.g., Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1140 (10th Cir. 2000). Here, the comment does not appear to be stray because it was made by the relevant decision maker in the interview for the positions at issue; it was made to the plaintiff, and it was about her.
Accordingly, it is ORDERED that the motion for reconsideration, filed by defendant Regions Mortgage, Inc., on January 8, 2001, is denied.