Opinion
CASE NO. 7:01CV5008
March 31, 2003
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on the Defendants' Motion for Summary Judgment on Claims I through IV of the Amended Complaint (Filing No. 54). Both parties have briefed the motion and submitted evidence in support of their respective positions (Filing Nos. 56 and 58-64). For the reasons provided below, the Court will grant the motion as it relates to the wrongful discharge claim of Count I of the Amended Complaint and deny the motion as it relates to Counts II, III, and IV of the Amended Complaint.
Procedural Background
On July 20, 2001, Plaintiff Katherine Boyer filed a petition in the District Court of Lincoln County, Nebraska, alleging that the Defendants Edward D. Jones Co. ("Edward Jones") and Calvin Robinson wrongfully discharged her from her employment and failed to pay her for overtime that she had worked, and in so doing, violated state and federal laws. The Defendants removed the action on August 16, 2001, pursuant to 28 U.S.C. § 1331, 1441(c) and 1446(b). (Filing No. 1). On September 14, 2001, the Defendants moved to dismiss certain counts of the Complaint, and before the Court ruled on the motion, Boyer filed an Amended Complaint. The Court found that the Amended Complaint rendered moot the Defendants' Motion to Dismiss and denied it. The Defendants filed a motion for reconsideration of that order, and the Court now denies the motion to reconsider as moot for the reasons provided herein on the Defendants' Motion for Summary Judgment. In effect, the proceedings have been stayed pending resolution of the summary judgment motion (Filing No. 70).
Factual Background
Edward Jones is a full-service retail brokerage firm. In 1985, after 18 years of employment with her former employer which had gone out of business, Katherine Boyer began looking for employment. She applied for a job as a Branch Office Administrator at Edward Jones' North Platte, Nebraska, office. Boyer was interviewed for the position by Investment Representative Calvin Robinson, who would directly supervise the employee who filled the position.
During the interview, Robinson explained the job responsibilities, which included daily work on the Edward Jones computer system, answering the telephone, mail responsibilities, and arranging appointments with customers. (Boyer Dep. at 64-65, 73-74; and Ex. 4). According to Boyer, Robinson explained to her that he was just starting the Edward Jones' office in North Platte, and he promised that if she stuck with him through tough times, then she would have permanent employment with Edward Jones as his assistant until her retirement. (Id. at 65-66). Boyer states that Robinson also promised her health insurance and other employment benefits, including a 10-percent share of his periodic profitability bonuses, known as trimester profitability bonuses, if he were to earn them in the future. Id., and at 85.
All references in the memorandum to deposition testimony will provide the witness's last name and page number to the deposition transcript. The transcripts are located in the record as follows: Pavlik and Armstead at Filing No. 56, Tabs G, K L; Boyer at Filing Nos. 59-60; Robinson at Filing Nos. 61-62; Kadlecek at Filing No. 63; and Steve Rarick at Filing No. 64.
Accordingly to Edward Jones' policy, whether investment representatives pay a trimester profitability bonus to their own office administrators is a matter left wholly in the investment representatives' discretion. (Id. at 83-87; Boyer Ex. 2). Boyer concedes that she had no assurance that she would receive a trimester profitability bonus, and that it was dependent upon Robinson's profitability. (Id. at 85). Boyer's only claim to the bonus is through the representation that Robinson made to her at the time of her hiring. (Id. and 278).
Boyer states that she relied on Robinson's promises when foregoing other employment opportunities and when accepting the position with Edward Jones. (Id. at 59-62). Boyer never received anything in writing stating that she could work for Edward Jones until she chose to retire, and she never received anything in writing that she would receive any specific level of bonus. (Id. at 72, 86, 202-03). Boyer has admitted that she knew that she could resign any time she wanted to resign, and she acknowledged that Edward Jones could have terminated her employment at any time. (Id. at 114-6, 201).
Boyer worked for Edward Jones and as Robinson's assistant from 1985 through February 14, 2000. During that period, Boyer received annual performance evaluations from Robinson. For every year through 1998, Boyer received excellent performance evaluations from Robinson and always received the highest performance rating from Robinson. (Robinson Dep. at 42-63)
Boyer acknowledges that, on a few occasions, she agreed that Robinson could change their agreement on the bonus award. For example, there were times between 1985 and 2000 when Boyer told Robinson that he could raise her base rate of pay and forgo paying her a trimester profitability bonus. (Boyer Dep. at 184-85).
In 1997, a representative from Edward Jones inquired about the amount of overtime hours that Boyer had worked but for which she had not been paid. As a result of the company's inquiry, Edward Jones compensated Boyer for the overtime she had worked but had not paid in 1997. (Robinson at 78-80). In 1998, Boyer claimed 2.5 hours of overtime per week, even though she had worked more overtime than claimed, because she understood that 2.5 hours was the maximum amount that she could claim. When, in January 1999, Robinson learned that she had claimed 2.5 hours of overtime per week in 1998, Boyer states that he confronted her about it, slammed his fist on the desk, and ordered her not to claim any more overtime because the overtime compensation that she received diminished Edward Jones' calculation of Robinson's overall income and profitability. (Id. at 95). After that conversation, although Boyer continued to work overtime hours, she did not claim them. (Id. at 97).
In January 1998, Jean Pavlik, who had been trained by Edward Jones in its St. Louis office, was assigned to be a second investment representative for Edward Jones' North Platte office. For a time, Boyer was the office assistant for both Robinson and Pavlik. (Robinson Dep. at 93-94). In March 1998, Pavlik recommended that Connie Kadlecek, a 32-year-old female, be hired by Edward Jones as Pavlik's office assistant. Edward Jones approved the hire. (Id. and Pavlik Dep. at 11-12; Boyer Dep. at 127, 129-30). Kadlecek is a Nebraska native who had worked for approximately two years as a branch office administrator in an Edward Jones office in Colorado, and she was seeking to relocate back to Nebraska. (Kadlecek Dep. at 4-5).
In May 1999, more than a year after Kadlecek had begun working at the North Platte office, Boyer took an annual vacation. When she returned to work, Kadlecek told her that in Boyer's absence, Robinson, Pavlik and she had a discussion about work assignments and they had decided that Kadlecek should take Boyers' job (Boyer Dep. at 210). Kadlecek never stated when the transition was to occur, and Boyer testified that she thought Kadlecek was joking at the time she made the comment. (Id. at 212, 217).
In early 2000, Boyer discovered through checking her income tax records that she had been awarded fewer in bonuses for 1999 than she had been awarded in 1998 even though the North Platte office's profitability was greater in 1999 than in 1998. (Id. at 144-145). When Boyer asked Robinson the reason for the decrease, he told her that he had awarded a portion of her 10-percent profitability bonus to Kadlecek. (Id. at 148-149).
On February 9, 2000, Boyer and Robinson met again to discuss the profitability bonus awards. Robinson explained to Boyer that he had given a portion of the bonus to Kadlecek because Boyer had taken a ten week sick leave in 1999, and Kadlecek had performed Boyer's job duties during that leave. (Id. at 149). Boyer told him that she had taken only nine weeks of leave, not ten weeks, and that she felt she was being punished for taking leave. (Id. at 150, 223-224). Robinson told Boyer to check with Edward Jones' branch office administrators in McCook and Grand Island to learn how much compensation they earned, because he was willing to make her the best paid office administrator in the region. (Id. at 163-64). When she checked with other Edward Jones' office administrators throughout Nebraska, she learned that she was not the best paid office administrator in the region.
According to Robinson, he told Boyer during that meeting that his payment to her of a share of his trimester profitability bonus was discretionary, and that he paid the bonus for showing up and working. To this comment, Boyer responded that maybe she should give her two weeks notice that she was quitting. (Robinson Dep. at 163). Boyer denies that she ever threatened to quit — on that day or on any day. (Boyer Dep. at 152).
On February 9 and 10, Boyer sold $43,000 in investments to pay off her margin account. (Id. at 155-59). On February 10, Kadlecek overheard Boyer talking on the phone. (Kadlecek Dep. at 66-67). During the conversation, Kadlecek heard Boyer say that if Robinson did not pay her the commission that she was owed, she would quit at the worse possible time for Robinson, in the middle of tax season. (Id. at 24-25, 27). Kadlecek reported what she had heard to Pavlik, who, in turn, told Robinson. (Id. at 24-25; Pavlik Dep. at 66-67).
Robinson and Boyer had another meeting to discuss Boyer's 1999 bonus on February 14, 2000. During that meeting, Robinson advised Boyer that he would not change the 1999 bonus payments, and that she would not receive a full 10 percent of the trimester profitability bonus for 1999. In response, Boyer told him that she had 28 days of sick leave accumulated and five weeks of vacation, and that she was taking a few sick days. Robinson told her she could not use her sick time to leave work because she was not sick. Robinson told him that she had lost sleep the previous weekend, that she was sick, and that she was taking a couple days off for sick leave. According to Boyer, Robinson then told her to take her things with her when she left, which she interpreted to mean that she was being fired. According to Boyer, Robinson also said that if she tried to take any accounts with her when she left, Edward Jones would sue her. (Id. at 186-191, 276).
Robinson recalled this key conversation differently. Robinson recalled that he asked Boyer whether she was coming back after her sick leave, and Boyer said, "no." (Robinson Dep. at 171-72; 220-21). Robinson testified that he considered Boyer's departure a voluntary resignation, and he contacted Edward Jones' human resources office and told them that Boyer had resigned. Boyer also contacted Edward Jones' corporate human resources department. Edward Jones' associate relation's representative, Steve Rarick, told Boyer that the company considered her termination a voluntary resignation. (Rarick Dep. at 76-78).
Pavlik and Kadlecek were scheduled to open their own Edward Jones office in North Platter, separate from Robinson's office, on February 16, 2000. However, after Boyer left the office on February 14, 2000, Pavlik suggested to Kadlecek that she apply for Robinson's vacant office administrator position because Kadlecek would have an opportunity to receive significantly greater compensation with Robinson than with Pavlik due to his greater volume of business. (Kadlecek at 38-41). Though she was initially reluctant to apply for Boyer's former position, Kadlecek did apply and was given the job.
Boyer and Kadlecek both testified in their depositions that, from time to time, Boyer expressed her desire to retire, occasionally mentioning the year 2001 as her retirement year. (Boyer at 164; Kadlecek at 17). On the day of her termination from Edward Jones, Boyer was 55 years old (Filing No. 1).
SUMMARY JUDGMENT STANDARD
The Court must examine the record in the light most favorable to the nonmoving party in the context of a summary judgment motion. U.S. ex rel. Quirk v. Madonna Towers, Inc., 278 F.3d 765, 767 (8th Cir. 2002). The proponent of a motion for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)). The proponent need not, however, negate the opponent's claims or defenses. Id. at 324-25.
In response to the proponent's showing, the opponent's burden is to "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)). A "genuine" issue of material fact is more than "some metaphysical doubt as to the material facts." Id. at 586.
Summary judgment is "properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp., 477 U.S. at 327. Nevertheless, the Court's function is not to weigh the credibility and persuasiveness of evidence in the context of a motion for summary judgment. Kampouris v. St. Louis Symphony Soc'y, 210 F.3d 845, 847 (8th Cir. 2000).
ANALYSIS COUNT I: Claim for Wrongful Discharge
Defendants' seek summary judgment on Boyer's claim that she was wrongfully discharged in violation of state law. Nebraska is an at-will employment state, and the Nebraska Supreme Court has held that an employer may terminate the employment of an at-will employee at any time with or without reason without incurring liability, provided that such action is not constitutionally, statutorily, or contractually prohibited. See, e.g., Walpus v. Milwaukee Elec. Tool Corp., 248 Neb. 145, 532 N.W.2d 316, 322 (Neb. 1995). While acknowledging that Nebraska recognizes oral contracts, the Defendants contend that because Boyer cannot demonstrate that her alleged verbal agreement with Robinson had a definite term of duration, the agreement is not a legal contract such that it would take her out of an employee-at-will status. Hamersky v. Nicholson Supply Co., 246 Neb. 156, 517 N.W.2d 382 (Neb. 1994) (holding that promise of employment "until [employee's] retirement" was promise of employment for an indefinite term and therefore, the employee could be terminated at any time without employer liability), and Goodlet v. Blue Cross Blue Shield, Inc., 234 Neb. 5, 449 N.W.2d 9 (1989) (holding that when employment is not for a definite term, there are no contractual or statutory limitations on the right of discharge.)
The Court is persuaded that there are no genuine issues of material fact at issue with regard to the duration of employment "agreement" that Boyer and Robinson discussed. Considering the facts in the light most favorable to Boyer as the nonmoving party, she was intending to remain employed by Edward Jones "until Boyer decided to retire." Under Nebraska law, that statement is insufficient to create a definite term of employment. Accordingly, under Nebraska law there is no contract that would remove this case from an employment-at-will analysis.
Boyer argues that the Defendants are estopped from discharging her based on the holding in Goff-Hamel v. Obstetrician Gynecologists, Inc., 256 Neb. 19, 588 N.W.2d 798 (Neb. 1999). The Court disagrees. There is nothing in the record before the Court that demonstrates the kind of detrimental reliance necessary to state a claim based on the promissory estoppel exception to the employment-at-will doctrine set forth in Goff-Hamel. In Goff-Hamel, the plaintiff quit her job of more than 10 years in order to accept the offer of employment with the defendant in that case. Several of the terms of her new employment were negotiated, although the term and duration of her employment were not. The Nebraska Supreme Court held that the plaintiff was allowed to assert a theory of promissory estoppel in connection with the offer of at-will employment. Id. at 804. The facts surrounding Boyer's case are distinguishable from Goff-Hamel because Boyer did not resign her former employment based on the promise of employment with Edward Jones. Rather, she was already unemployed, having been laid off when her former employer went out of business. That she chose the Edward Jones' position over other positions because of a "promise" of better benefits and the hope of employment until she retired does not sufficiently demonstrate how her acceptance of that Edward Jones' offer worked to her detriment. To now argue that she passed up preferable employment elsewhere to accept the Edward Jones' offer is speculative based on the record before the Court. For these reasons, the Court will grant Defendants' motion for summary judgment on the wrongful discharge claim.
COUNT II: Claim for Tortious Interference with Employment Contract
As a preliminary matter, the Court notes that it previously dismissed the Defendants' Motion to Dismiss Count II of Plaintiff's Complaint as moot based on Boyer's amendment of her original Complaint. The Defendants asked the Court to reconsider its denial of their motion to dismiss (Filing No. 41), which the Court now denies, based in part on the reasons that follow.
The Defendants contend that Boyer's claim for tortious interference with an employment contract should be dismissed because there is no evidence that Robinson, against whom this claim is solely alleged, interfered with Boyer's employment for any reason other than a lawful purpose of the employer. See Huff v. Swartz, 258 Neb. 820, 606 N.W.2d 461, 466 (Neb. 2000). Defendants contend that there is no evidence in the record that Robinson acted in furtherance of some individual or private interest in discharging Boyer. The Court disagrees, and concludes that there are genuine issues of material fact relative to Robinson's purpose in his dealings with Boyer relative to her discharge from employment. Boyer has presented evidence that Robinson urged her not to claim overtime because payment of her overtime affected his personal income and profitability. In addition, a reasonable inference could be made that Robinson felt bound to his "agreement" to pay Boyer ten percent of his trimester profitability bonuses, but that he may not have felt compelled to pay Kadlecek a similar percentage. Given this disputed evidence, the Court concludes that Robinson is not entitled to summary judgment on Boyer's tortious interference claim.
The Court recognizes that there are genuine issues of material fact regarding whether Robinson terminated Boyer or whether she voluntarily resigned.
Count III: Fair Labor Standards Act
Defendants also seek summary judgment on Boyer's claim that the Defendants have violated her rights under the Fair Labor Standards Act, 29 U.S.C. § 206 et. seq. ("FLSA"). The Fair Labor Standards Act requires that non-exempt employees be paid minimum wage, and generally, time-and-a-half for all hours over 40 hours worked in one week. 29 U.S.C. § 206, 207. See also Bouchard v. Regional Governing Board of Region V Mental Retardation Servs., 939 F.2d 1323, 1327 (8th Cir. 1991). Defendants contend that Boyer is estopped from claiming a violation of the FLSA because she was instructed in 1997 by Edward Jones' human resources representatives to claim as overtime all time in excess of 40 hours per week that she worked, and because all time cards that she submitted to Edward Jones after that time were verified by her as being accurate. (Boyer Dep. at 89-90, 95, and Ex. 3). However, the Court finds that there is a genuine issue of material fact remaining as to whether Robinson instructed Boyer, subsequent to the human resource representative's 1997 instruction, not to record the overtime that she worked because it was coming out of his profitability and income. If Robinson instructed Boyer consistent with Boyer's testimony, and if she in fact worked overtime that she did not claim because of his instruction, then Boyer may have a claim under the FLSA. Because there remain genuine issues of material fact relative to this claim, the Court denies Defendants' motion for summary judgment on Count III.
Count IV: Age Discrimination in Employment under State and Federal Law
Boyer contends that Edward Jones violated her rights under the Age Discrimination in Employment Act, 28 U.S.C. § 621 et. seq. ("ADEA") and Nebraska's Act Prohibiting Unjust Discrimination in Employment Because of Age, 48 Neb. Rev. Stat. § 1001 et. seq. The Nebraska Supreme Court has construed Nebraska's age discrimination act consistently with the ADEA, see Billingsley v. BFM Liquor Management, Inc., 259 Neb. 992, 613 N.W.2d 478 (Neb. 2000), and, therefore, the Court will consider Boyer's age discrimination claims under ADEA and the McDonnell Douglas burden-shifting analysis.
To demonstrate a prima facie case under the ADEA, Boyer must show: (1) she is within a protected class; (2) she was qualified to perform the office administrator position; (3) she was subjected to adverse employment action by Edward Jones; and (4) she was replaced by a younger employee. Britton v. City of Poplar Bluff, 244 F.3d 994 (8th Cir. 2001). It appears that, at least for purposes of this motion, all elements of Boyer's prima facie case except for the third element are conceded.
With respect to the third element, Defendants contend they are entitled to summary judgment because Boyer cannot demonstrate that Edward Jones' decision not to award her a full 10 percent of the 1999 trimester profitability bonus is an "adverse employment action," and that she cannot demonstrate that her discharge from employment was involuntary. With regard to termination as an adverse employment action, the Defendants contend that the undisputed facts establish that Boyer resigned. The Court disagrees and finds that there are material facts in dispute regarding whether Boyer was voluntarily or involuntarily discharged, based upon the differences between Boyer's recollection of the events surrounding the discharge and Robinson's recollection of those facts. (Cf. Boyer Dep. at 186-191 to Robinson Dep. at 220-21; see also Armstead Dep. at 14-17 and Ex. 102).
With regard to the bonus, Defendants argue that Boyer admitted that she knew the trimester profitability bonuses were wholly discretionary (Boyer Dep. At 83, 85, 87, 278) and that based on Rabinovitz v. Pena, 89 F.3d 482 (7th Cir. 1996), her loss of a portion of that bonus does not constitute an adverse employment action. It is true that the Seventh Circuit Court of Appeals has held that the "loss of a bonus is not an adverse employment action in a case . . . where the employee is not automatically entitled to the bonus." Rabinovitz, 89 F.3d at 488-489. However, because there are genuine issues of material fact remaining as to the nature of the bonus and whether it was "automatic" or not, this issue shall be tried.
If the Court assumes for purposes of this motion only that Boyer can successfully demonstrate her prima facie case, then the Court may inquire into Edward Jones' stated reason for her discharge. Edward Jones states that Boyer told them that she had resigned, and that she was discharged for this reason. However, given the differences between Boyer's testimony and Robinson's testimony relative to their final meeting, and the fact that Robinson was Boyer's supervisor at Edward Jones, the Court concludes that genuine issues of material fact remain for trial.
In addition, the following disputed facts weigh against granting summary judgment in this case: (1) that Robinson allegedly inquired into Boyer's age at the time of her hiring, and again in January before her termination (Boyer Dep. at 63, 164); (2) that Kadlecek made a comment to Boyer about taking over Boyer's job with their supervisors' approval; (3) that a 32-year-old was immediately hired into Boyer's position; and (4) that Boyer made inconsistent statements to the Edward Jones human resources representative. Because the Court finds many material facts are genuinely disputed, Defendants' motion for summary judgment on the state and federal claims of age discrimination are denied.
For all the reasons provided in this memorandum,
IT IS ORDERED:
1) Defendants' Motion for Reconsideration (Filing No. 41) is denied;
2) Defendants' Motion for Summary Judgment (Filing No. 54) is granted in part and denied in part. Defendants' motion is granted as to Plaintiff's claim that she was wrongfully discharged as stated in Count I; and it is denied as to the remaining allegations of the Amended Complaint;
3) Plaintiff's Motion in Limine (Filing No. 67) is denied without prejudice to reassertion at a date closer to trial, consistent with the Court's order of September 23, 2002 (Filing No. 70); and
4) Defendants' Motion for Leave (Filing No. 68) to file a motion in limine out of time is granted, consistent with the Court's order of September 23, 2002 (Filing No. 70).