Summary
In Bradshaw v. Marketing Specialists Sales Co., ___ 2001 WL ___, Civil Action No. 3:98-CV-1312-D, slip op. at 5 (N.D. Tex. Mar. 29, 2001) (Fitzwater, J.), the court ruled adversely to summary judgment movants and nonmovants where inter alia they failed to comply with Rule 56.5(c).
Summary of this case from Johnson v. City of Dallas, TexasOpinion
Civil Action No. 3:98-CV-1312-D
March 29, 2001
MEMORANDUM OPINION AND ORDER
Three plaintiffs sue their former employer and an executive officer of the employer alleging claims for discrimination and retaliation under the Equal Pay Act of 1963 ("EPA"), 29 U.S.C. § 206(d), and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. One plaintiff also sues for violations of the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601, et seq., and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq. Defendants move for summary judgment. For the reasons that follow, the court grants the motion in part and denies it in part.
I
Defendant Marketing Specialists Sales Company d/b/a Marketing Specialists Tower ("MSSC") is a national food brokerage business that provides sales, marketing, merchandising, and other management services to manufacturers and retailers. It acts as an independent sales and marketing representative, selling grocery and consumer products on behalf of manufacturers and coordinating the execution of manufacturers' marketing programs with retailers. Defendant Jon Riewoldt ("Riewoldt") serves as MSSC's Regional Vice President and, prior to holding that position, was the Branch Manager of MSSC's Dallas Office.
Plaintiffs Donna Bradshaw ("Bradshaw"), Elizabeth Whale ("Whale"), and Jackie D. Kennemer ("Kennemer") are former MSSC employees. All three worked at the Dallas Branch Office during the time periods relevant to this lawsuit. MSSC employed Bradshaw as an Account Executive in the Produce, Frozen and Perishable Foods, and Grocery Departments. Whale worked as Director of Retail, Retail Representative, Set Specialist, Retail Merchandiser, Retail Supervisor, Field Sales Manager, and Retail Category Manager. MSSC employed Kennemer as a Set Specialist, Retail Supervisor, and Retail Category Manager.
Bradshaw, Whale, and Kennemer assert that MSSC and Riewoldt are liable under the EPA because MSSC paid them less in salary and bonuses, and provided them fewer perquisites, than it did their male counterparts. They allege that MSSC and Riewoldt are also liable under the EPA for retaliating against them by demoting and terminating them in response to their lodging internal discrimination complaints and filing charges of discrimination with the Equal Employment Opportunity Commission ("EEOC").
Plaintiffs sue MSSC under Title VII contending that it paid them lower compensation than it did their male counterparts, retaliated against them for complaining of discrimination, and otherwise discriminated against them based on their sex.
Whale brings a claim against MSSC and Riewoldt under the FMLA, asserting that they violated the Act by coercing her into resigning her position as Director of Retail upon her return to work from medical leave and accepting a demotion to a lower paying position, failing to provide her information required by law concerning her FMLA rights, and telephoning her at home during her leave and making thinly-veiled threats concerning being terminated, thereby compelling her to return to work earlier than her doctor had advised.
Whale sues MSSC under the ADA, contending that it discriminated against her based on a disability by (1) forcing her to resign her position as Director of Retail upon her return to work from medical leave and accept a demotion to a lower paying position, (2) obtaining information about her medical condition and failing to maintain it in a separate medical file or to treat it confidentially, and (3) failing to make a reasonable accommodation of her disability.
Defendants move for summary judgment on various grounds.
Plaintiffs filed on September 20, 2000 a motion to strike and objections to defendants' supporting evidence, and defendants filed on October 26, 2000 their objections to plaintiffs' appendix and motion to strike. Where it is necessary to rule on a specific objection — because the court is relying in its ruling on evidence to which a proper objection has been lodged — the court explicitly addresses the objection. Otherwise, the court overrules the objections and denies the motions to strike as moot because they do not affect the outcome of defendants' motion for summary judgment.
Defendants filed on October 27, 2000 a supplemental appendix in support of factual assertions made in their reply brief. The court has not considered this appendix for any purpose because it is impermissible under either the pre-1998 or the present summary judgment rules. See Tovar v. United States, 2000 WL 425170, at *4 n. 8 (N.D. Tex. Apr. 18) (Fitzwater, J), aff'd, ___ F.3d ___ (5th Cir. Dec. 12, 2000) (table) (per curiam).
II
The court begins by addressing a threshold procedural matter that impacts the court's resolution of several of the issues presented by defendants' motion. At various critical points in the briefing, plaintiffs and defendants fail to cite any summary judgment evidence to support the assertions contained in their briefs or fail to refer to the specific page in the record that backs their contentions, instead citing several pages of their appendix as a group. For reasons the court now explains, it bases certain rulings on the parties' respective failures to comply with their obligations to cite the record in the required manner.Fed.R.Civ.P. 56 obligates a party to designate the specific facts in the record that create genuine issues precluding summary judgment. "Rule 56 does not impose a duty on the district court to sift through the record in search of evidence to support a party's opposition to summary judgment." Doddy v. Oxy USA, Inc., 101 F.3d 448, 463 (5th Cir. 1996) (citing Jones v. Sheehan, Young Culp, P.C., 82 F.3d 1334, 1338 (5th Cir. 1996)); accord Stults v. Conoco, Inc., 76 F.3d 651, 657 (5th Cir. 1996). The court has no obligation to consider evidence that the nonmovants do not bring forth in opposition to the summary judgment motion. Doddy, 101 F.3d at 463 (citing Copsey v. Swearingen, 36 F.3d 1336, 1347 n. 9 (5th Cir. 1994)). To satisfy their burden, the nonmovants are required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports their claim. Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (citing Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992)). When the parties fail to refer to items in the record, the evidence is not properly before the court in deciding whether to grant the motion. Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 (5th Cir. 1992); Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir. 1988) (on rehearing) (denying rehearing after plaintiff asserted that deposition was of record when district court granted partial summary judgment, and holding that because plaintiff failed to designate, or in any way refer to, deposition as source of factual support for response to motion, deposition was never made part of competent summary judgment record before district court). Plaintiffs' appendix is 434 pages long. Defendants' appendix numbers 834 pages. The court has no duty to search these lengthy documents in search of the kernel of evidence that might present a basis for granting summary judgment or denying it due to the presence of a genuine issue of material fact.
Additionally, N.D. Tex. Civ. R. 56.5(c) provides:
A party whose motion or response is accompanied by an appendix must include in its brief citations to each page of the appendix that supports each assertion that the party makes concerning the summary judgment evidence.
N.D. Tex. Civ. R. 56.5(c) ( reprinted in Texas Rules of Court: Federal at 242 (West Pamp. Supp. 2000)). Even before the court adopted Rule 56.5(c) in 1998, but especially after it was promulgated, it has been settled in this district that a party seeking or opposing summary judgment may not cite multiple, undifferentiated pages of the record when making an assertion about the summary judgment evidence.
See Craig v. Ryder Truck Rental, Inc., Civil Action No. 3:97-CV-1533-D, slip op. at 5 (N.D. Tex. June 12, 1998) (Fitzwater, J.) (holding inadequate nonmovant's chart, which cited large groups of deposition pages and exhibits, without specifying portions on which nonmovant relied), aff'd, 174 F.3d 198 (5th Cir. Feb. 24, 1999) (table) (per curiam).
See Batte v. Twin City Fire Ins. Co., 1999 WL 1068470, at *3 n. 8 (N.D. Tex. Nov. 24, 1999) (Fitzwater, J.) (holding that nonmovant's global citation to pages 2-32 of appendix and to transcript of hearing did not comply with Rule 56.5(c)), aff'd, 234 F.3d 29 (5th Cir. Sept. 15, 2000) (table) (per curiam).
Accordingly, where the parties have failed to comply with the applicable requirements for citing the record, the court has ruled against them.
III
Defendants move for summary judgment dismissing plaintiffs' EPA claims, and MSSC seeks similar relief concerning plaintiffs' Title VII-based pay claims. Defendants contend that plaintiffs were not paid less than their male counterparts for performing the same jobs and that any discrepancies were due to nondiscriminatory factors, such as experience, seniority, and merit. MSSC maintains on similar grounds that it did not violate Title VII by discriminating against plaintiffs by paying them less based on their sex.
A
Because plaintiffs assert equal pay claims under both the EPA and Title VII, the court will address them in tandem. See Schulte v. Wilson lndus., Inc., 547F. Supp. 324, 337(S.D. Tex. 1982) ("Where, as here an `unequal pay for equal work' claim is raised under both the Equal Pay Act and Title VII, the statutes should be construed harmoniously.").
Sex discrimination claims under Title VII are subject to the basic McDonnell Douglas burden-shifting framework. See, e.g., Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998). Plaintiffs must first establish a prima facie case of discrimination. If they satisfy this obligation, then the burden shifts to MSSC to "articulate a legitimate, nondiscriminatory reason for its allegedly discriminatory action." Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1136 (5th Cir. 1983) (Title VII unequal pay case). If MSSC meets this production burden, plaintiffs must adduce evidence that would permit a reasonable trier of fact to find that the articulated reasons are pretexts for intentional discrimination. Id. This is a burden of production, not persuasion, and involves no credibility assessment. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2106 (2000). Once MSSC meets this production burden, the presumption of discrimination disappears. Id. Plaintiffs must then prove by a preponderance of the evidence that the legitimate reasons offered are not the true reasons but are pretexts for discrimination. Id. "[T]he plaintiff may attempt to establish that [s]he was the victim of intentional discrimination `by showing that the employer's proffered explanation is unworthy of credence.'" Id. (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981)). "[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Id. at 2109. "[I]t is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation." Id. at 2108. "Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive." Id. At the summary judgment stage, plaintiffs need only raise a genuine issue of material fact. See Tutton v. Garland Indep. Sch. Dist., 733 F. Supp. 1113, 1116 (N.D. Tex. 1990) (Fitzwater, J.) (holding that at summary judgment stage, plaintiff must raise fact issue).
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The EPA prohibits employers from discriminating on the basis of sex by paying wages to employees of one sex that are less than the rate paid employees of the opposite sex for equal work on jobs that require equal skill, effort, and responsibility and are performed under similar working conditions. 29 U.S.C. § 206(d)(1). Plaintiffs' EPA claims are subject to a burden-shifting framework that is similar to that used in Title VII claims, but with one critical difference. "In a Title VII case, the burden of persuasion always remains with the plaintiff." Plemer, 713 F.2d at 1136. In an EPA case, however, the defendant has the burden of persuasion if a plaintiff establishes a prima facie case. Id.
"Under the Equal Pay Act, the plaintiff has the burden of proof to `show that an employer pays different wages to employees of opposite sexes "for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions."' Id. (quoting Corning Glass Works v. Brennan, 417 U.S. 188, 195(1974)). "If the plaintiff meets this burden, the burden of proof' shifts to the employer to show that the differential is justified under one of the Act's four exceptions.'" Id. (quoting Corning Glass Works, 417 U.S. at 196). These exceptions are: the pay differential is based on (1) a seniority system, (2) a merit system, (3) a system that measures earnings by quantity or quality of production, or (4) a differential based on any factor other than sex. 29 U.S.C. § 206(d)(1); Schulte, 547 F. Supp. at 338-39. "The exceptions are affirmative defenses on which the employer has the burden both of production and of persuasion." Plemer, 713 F.2d at 1136 (quoting Corning Glass Works, 417 U.S. at 197).
Defendants focus first on plaintiffs' EPA claims, see Ds. Br. at 12-20, and argue for essentially the same reasons that plaintiffs' Title VII pay-based claims fail, see id. at 26-28.
B
The court turns initially to Bradshaw's EPA and Title VII pay claims, which arise from her employment as an Account Executive from July 17, 1995 to June 2, 1997. See Ps. Br. at 10.
Bradshaw worked as an Account Executive in Produce from July 17, 1995 to December 31, 1995, in Frozen from January 1, 1996 to August 1996, and in Grocery from August 1996 to June 2, 1997. See id.
1
Defendants argue that Bradshaw cannot show that she was paid less than were males performing the same duties. They maintain that she incorrectly compares herself to five males who were full Account Executives who represented larger manufacturers, had larger territories to supervise, and larger staffs. Defendants assert that, by contrast, Bradshaw was a junior Account Executive who managed smaller product lines with smaller staffs to supervise and less area to cover.Defendants also maintain that even if the jobs are comparable, each male in question was paid more based on objective criteria of seniority, experience, and merit, and that these factors, rather than an employee's sex, account for the differences in salaries. They argue that Bradshaw fails to point out that, based on experience and job responsibilities, several male Account Executives were paid less than was she, and that other female Account Executives were paid substantially more than was Bradshaw by reason of their additional experience, seniority, and responsibilities.
Defendants also deny that MSSC deprived her of employment perquisites (car upgrades, company paid telephone or club memberships, and tickets to sporting events), contending such employment benefits were not provided to MSSC employees under the circumstances on which she relies to establish disparate treatment.
2
Under both the EPA and Title VII, to establish a prima facie case Bradshaw must inter alia show that MSSC paid her lower compensation than it paid males for work that required equal skill, effort, and responsibility and that was performed under similar working conditions. In her interrogatory answers, Bradshaw identifies five male employees who she contends were paid higher salaries for comparable work: Tommy Dormán ("Dormán"), Scott Woodby ("Woodby"), John Milliken, Phil Swim ("Swim"), and Richard Johnson ("Johnson"). Defendants maintain that Bradshaw cannot demonstrate the requisite comparability as to any of these individuals.
To defeat the job-comparability component of Bradshaw's prima facie case, defendants principally rely on distinctions between Account Executives and so-called junior Account Executives. Bradshaw has introduced affidavit evidence, however, that would permit a reasonable trier of fact to find the requisite equal skill, effort, and responsibility in jobs performed under similar working conditions. In August 1996 MSSC transferred her to the position of Grocery Account Executive, a job that Swim had briefly held. She became responsible for handling the same manufacturer product lines as had Swim. An MSSC document that refers to the principals (i.e., clients) and accounts handled by Account Executives Bradshaw, Johnson, Woodby, and Dormán, and the 14 key principals of the MSSC Dallas branch, would permit a reasonable trier of fact to find, in tandem with other evidence that Bradshaw has introduced, that she performed equal work. Bradshaw has also produced proof that she handled some important clients, that her three performance evaluations categorized her as an Account Executive, not as a junior Account Executive, and that each evaluation measured her performance using the same criteria and assuming the same expectations as those applied to Account Executives in the Frozen and Grocery Departments.
In their reply brief, defendants do a more thorough job of refuting the alleged comparability between the positions in question. See Ds. Rep. Br. at 3-5. While the trier of fact may be fully persuaded concerning the validity of these arguments, the court concludes that Bradshaw has adduced sufficient evidence to permit a jury to find that she has established a prima facie case.
Defendants' objections to the evidence the court relies on in this section of its opinion are overruled. Bradshaw's affidavit evidence is based on personal knowledge and is not, in pertinent part, conclusory, self-serving, or a statement of expert opinion. Even if the court holds that the MSSC documents on which the court relies have not been properly authenticated, Bradshaw has testified to their contents based on her personal knowledge, and the contents are not inadmissible hearsay.
The trier of fact may ultimately find from the trial evidence that Bradshaw did not hold a position that was comparable to those of the five male employees in question. But because the record contains evidence that would allow it reasonably to find either way, the court holds that she has presented a genuine issue of material fact concerning this element of her prima facie case under the EPA and Title VII.
3
Because Bradshaw has met her prima facie burden under the EPA and Title VII, the burden now shifts to defendants. With respect to the EPA, defendants have the burden of persuasion and must show that the pay differential is based on (1) a seniority system, (2) a merit system, (3) a system that measures earnings by quantity or quality of production, or (4) a differential based on any factor other than sex. Concerning Title VII, MSSC must produce evidence of a legitimate, nondiscriminatory reason for the pay disparity. If MSSC meets its burden of production, Bradshaw must introduce evidence that would permit a reasonable trier of fact to find that the proffered reasons are pretextual, i.e., proof that creates a genuine issue of material fact.Because the Title VII burden is more onerous on Bradshaw, the court will consider it first. If she overcomes summary judgment as to her Title VII claim, it follows that her EPA cause of action survives as well. See Robb v. James Helwig Son, Inc., Civil Action No. 3:96-CV-2063-D, slip op. at 13 (N.D. Tex. Sept. 25, 1997) (Fitzwater, J.) ("Because Robb's burden in a Title VII pay case is higher than it is in the Equal Pay Act context, Helwig's explanations also must fail to survive summary judgment under the Equal Pay Act.").
Defendants have produced evidence that each male in question was paid more based on objective criteria of seniority, experience, and merit and that these factors, rather than an employee's sex, account for the differences in salaries. They have also introduced proof that several male Account Executives were paid less than was Bradshaw and that other female Account Executives were paid substantially more than was Bradshaw by reason of their additional experience, seniority, and responsibilities. Defendants have therefore met their production burden under the Title VII standard and Bradshaw is obligated to introduce evidence that would permit a reasonable trier of fact to find pretext.
Bradshaw has offered sufficient evidence to create a genuine issue of material fact regarding her pay disparity with male Account Executives who were similarly situated. Bradshaw replaced Swim as Frozen Account Executive in 1995. Swim's salary at the time was $67,200. Bradshaw assumed all of Swim's responsibilities and accounts, but was paid $36,000. When Woodby was hired in 1994 as a Grocery Account Executive, MSSC paid him $52,200. When Bradshaw took over this position in 1996, MSSC paid her a starting salary of $42,000. Bradshaw has also produced evidence that she had more relevant experience than MSSC represents that she had, and that MSSC did not assign her to lines that were significantly smaller or otherwise less challenging than those handled by the males in question. The summary judgment evidence would permit a reasonable jury to find that Bradshaw was paid less than similarly-situated males because she is female.
Defendants' objections to this evidence are overruled.
The court need not address in detail each argument that the parties advance in their briefs. In view of the grounds set out above to conclude that there are genuine issues of fact that remain to be tried, it is sufficient to deny summary judgment on the basis of this analysis. It would unnecessarily prolong this opinion to discuss components of larger issues that must ultimately be decided by the trier of fact.
4
Concerning Bradshaw's EPA and Title VII claims based on the alleged denial of perquisites of employment, the court grants summary judgment. Defendants have pointed the court to the absence of evidence to support these claims. See Ds. Br. at 16-17. When the summary judgment movants will not have the burden at trial concerning a cause of action, they can meet their summary judgment obligation by pointing the court to the absence of evidence to support the claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once they do so, the nonmovant must then go beyond her pleadings and designate specific facts showing that there is a genuine issue for trial. See id. at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). Moreover, the summary judgment nonmovant must produce evidence to establish the existence of each element for which she bears the burden of proof. See Dunn v. State Farm Fire Cas. Co., 927 F.2d 869, 872 (5th Cir. 1991). Summary judgment is mandatory when the nonmoving party fails to meet this burden. Little, 37 F.3d at 1076. By contrast, when the movants will have the burden of proof at trial, to obtain summary judgment they must adduce evidence that establishes "`beyond peradventure all of the essential elements of the . . . defense.'" Bank One, Tex., N.A. v. Prudential Ins. Co. of Am., 878 F. Supp. 943, 962 (N.D. Tex. 1995) (Fitzwater, J.) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)). Defendants have introduced evidence that establishes without genuine and material dispute that these alleged perquisites were not provided under any circumstances relevant to Bradshaw's claim. Bradshaw has not offered contrary evidence. Accordingly, regardless whether Bradshaw or defendants will have the burden proof at trial on this issue, defendants have met their summary judgment obligation under the applicable standard. Bradshaw's EPA and Title VII claims are dismissed to the extent based on her contention that MSSC denied her perquisites of employment made available to male employees.C
The court next determines whether defendants are entitled to summary judgment concerning Whale's EPA and Title VII pay claims, which are based on her position as Director of Retail from October 26, 1995 to January 6, 1997. See Ps. Br. at 16.
Defendants argue that MSSC paid Whale according to her job responsibilities and experience. They assert that the position of Director of Retail cannot be compared to the jobs of the other four director-level positions at the Dallas Branch Office because it did not involve the same work. Defendants posit that Whale's assertion that she was paid less than Terry Stevens ("Stevens"), the person who replaced her, is meritless because MSSC paid him less than it did Whale.
Although Whale disputes MSSC's contention that the job of Director of Retail is not comparable to the other Dallas director positions, she initially attempts to satisfy her obligation to establish a prima facie case by relying on disparities between her pay as Director of Retail and the pay received by males who held the same position before and after she did. Defendants acknowledge that Whale performed work equal to the males who occupied the position of Director of Retail. The court will therefore determine whether Whale's EPA and Title VII-based pay claims are sufficient to withstand summary judgment when assessed in the context of Whale's compensation in relation to male Directors of Retail.
Because defendants' motion for summary judgment is grounded in this respect on a comparison between Whale's position as Director of Retail and the four director-level positions — not the males who held the Director of Retail position — defendants do not address the relevant basis for Whale's opposition to summary judgment until their reply brief. Since the court will not consider a new basis for summary judgment raised in a reply brief, see, e.g., Senior Unsecured Creditors' Comm. of First RepublicBank Corp. v. FDIC, 749 F. Supp. 758, 772 (N.D. Tex. 1990) (Fitzwater, J.), the court denies defendants' motion in this respect. Although in their brief defendants cite evidence that Stevens was paid less than was Whale, this proof is insufficient to support the entry of summary judgment where, as here, there is evidence that other Directors of Retail who preceded and followed Whale were paid more.
To the extent defendants' argument concerning the basis for paying a higher salary to Keith Prazak, who succeeded Whale as Director of Retail, is adequate to raise in their initial brief the comparison on which Whale relies to establish this claim, this assertion does not address Whale's causes of action to the extent they rely on comparisons with Robin Schofield and Doug Bittinger, her predecessors.
The court denies defendants' motion as it pertains to Whale's EPA and Title VII-based pay claims.
D
Kennemer's EPA and Title VII-based pay claims arise from her employment as Retail Supervisor from February 1996 to September 1996, and from May 6, 1997 to December 1997, and her employment as Retail Category Manager from September 1996 to May 6, 1997. See Ps. Br. at 19.
1
Defendants move for summary judgment on the ground that Kennemer is improperly comparing herself to Richard Frantkowski ("Frantkowski"), the male who had previously held the position of Retail Category Manager, because she did not perform the same duties. They also maintain that Frantkowski was eminently more qualified and had more seniority. Defendants also argue that the differences between the compensation MSSC paid Frantkowski and Kennemer are attributable to experience, and that Kennemer was replaced by plaintiff Whale, who had more experience and was therefore paid more than was Kennemer. Concerning Kennemer's claim based on her employment as Retail Supervisor, defendants maintain that the males in question were paid based on seniority, work assigned, experience, and qualifications and that Kennemer was paid more than were two of the three males to whom she compares herself.
2
Kennemer has satisfied her prima facie burden concerning the position of Retail Category Manager. She has introduced evidence that would permit a reasonable trier of fact to find that MSSC paid Frantkowski more than it paid Kennemer for a position that carried the same title and involved substantially the same work. Frantkowski was paid $54,900 and Kennemer was paid $28,800. The evidence is sufficient to shift the burden to MSSC.Under Title VII, MSSC has a burden of production. It has met this obligation by introducing evidence that it paid Frantkowski more based on his qualifications and seniority. The burden has therefore shifted to Kennemer to adduce evidence that would permit a reasonable trier of fact to find that these reasons are pretextual. Kennemer's evidence that Frantkowski was paid nearly double her compensation, for substantially the same work, would permit a reasonable trier of fact to reject MSSC's explanation as pretextual.
Under the EPA, MSSC has the burden of persuasion. Because the evidence that Kennemer has adduced is sufficient to withstand summary judgment under Title VII, it follows that it is adequate to preclude summary judgment concerning her EPA cause of action. See Robb, Civil Action No. 3:96-CV-2063-D, slip op. at 13.
3
Kennemer alleges that MSSC violated Title VII and the EPA by paying her less than it did males who held the position of Retail Supervisor. MSSC does not appear to dispute that Kennemer is comparing her compensation to that received by three male Retail Supervisors — Bill Redd ("Redd"), Bill Jarrett ("Jarrett"), and Burrell Smalley ("Smalley"). See Ds. Br. at 19-20; Ps. Br. at 19 ("Defendants do not dispute that the several Retail Supervisor (and Shelf Team Supervisor) positions constitute equal work[.]"). Instead, MSSC posits that all three men were paid based on seniority and that Kennemer was paid more than were Redd and Jarrett. See Ps. Br. at 19.
Kennemer has not directly refuted defendants' evidence that MSSC paid her more than it paid Redd and Jarrett. See id. at 21. She has therefore failed to meet her prima facie burden based on comparing her pay to theirs. Concerning Smalley, Kennemer has satisfied her prima facie obligation and the burden has shifted to defendants.
Defendants have met their Title VII burden of production and their EPA burden of persuasion by introducing proof that MSSC paid Smalley more based on qualifications and seniority. Kennemer has not cited any summary judgment evidence that would permit a reasonable trier of fact to find that these reasons are pretextual. See id. To the extent that Kennemer relies on general assertions and evidence that MSSC did not rely on experience and merit to set salaries, see id. at 21-22, the court holds that this evidence is inadequate to create a genuine issue of fact because a reasonable trier of fact could not find from that proof that MSSC did not base the specific compensation decisions in question on qualifications and seniority.
Accordingly, the court grants summary judgment dismissing Kennemer's EPA and Title VII-based pay claims concerning the position of Retail Supervisor but denies summary judgment regarding her employment as Retail Category Manager.
IV
Plaintiffs bring other claims under Title VII alleging that MSSC engaged in sex discrimination affecting their pay, promotional opportunities, job assignments, and performance evaluations.A
The court must first determine the precise contours of these Title VII claims. In their brief, plaintiffs argue that MSSC has mistakenly perceived the claims to "simply rehash those raised under equal pay and retaliation." Id. at 22-23. MSSC responds that plaintiffs rely on Title VII theories that are not pleaded, are not ripe because plaintiffs failed to exhaust their administrative remedies before the EEOC, or are not supported by evidence that creates a genuine issue of material fact.
MSSC maintains that plaintiffs have not pleaded or disclosed in interrogatory answers that it discriminated against them by delaying promised salary increases. Plaintiffs assert by way of example that Kennemer and Stevens were both promoted to mid-level management positions but that Stevens, who is male, received his raise more quickly and that Kennemer never received her 1997 bonus despite the fact that male employees did. Plaintiffs' fourth amended complaint ("amended complaint") alleges that MSSC denied Kennemer a bonus in 1997. Am. Compl. ¶ 97. This component of her Title VII claim is properly raised. Kennemer's claim that MSSC delayed paying promised salary increases is asserted, however, as a basis for her retaliation cause of action, see id. at ¶ 60, not as a Title VII discrimination claim. Plaintiffs do not cite in their brief any specific summary judgment evidence that demonstrates that Kennemer adequately raised this claim. See Ps. Br. at 23-24. They have not properly raised it as a component of their discrimination causes of action.
To the extent that plaintiffs intend their citation to Ps. App. 192-215 to satisfy this requirement, see id. at 24, their reliance on a collective citation to 24 pages of their appendix is insufficient for the reasons explained supra at § II.
Whale maintains that MSCC denied her a promotion to handle the Wal-Mart account. She addresses this claim in her EEOC charge. See Ps. App. 163. In their amended complaint, plaintiffs allege that Whale was denied opportunities for upward mobility based on her sex. See Am. Compl. ¶ 87. Defendants have not moved for summary judgment as to this component of Whale's Title VII claim. Evaluating plaintiffs' complaint under the applicable notice pleading standard, and considering that Whale put defendants on notice of this claim by advancing the allegation in her EEOC charge, the court holds that it remains for trial.
Whale also asserts that Doug Bittinger was promoted to Director of Retail faster than she was, got a bigger salary increase, and received his raise more quickly. The court has not found this claim in plaintiffs' amended complaint, and plaintiffs in their brief cite no place where they disclosed it as a basis for Whale's Title VII cause of action. See Ps. Br. at 24-25.
Plaintiffs assert that Riewoldt rebuffed Bradshaw's inquiries and requests for salaries, bonuses, and car upgrades. This claim is not pleaded in the amended complaint as a basis for Title VII relief, and plaintiffs do not cite in their brief where they disclosed this cause of action. See id. at 25-26.
Plaintiffs also advert in a heading in their brief to the contention that they were given "discriminatory job assignments." Id. at 26. The analysis that follows neither clearly sets out the grounds for these claims nor specifically cites the evidence on which they are based. See id. at 26-27.
Although in their amended complaint plaintiff's assert that Bradshaw was required to perform additional duties not required of male Account Executives, see Am. Compl. ¶ 76, the court has found no similar Title VII allegations concerning Whale and Kennemer. The court thus holds that Whale and Kennemer have not adequately preserved a cause of action that MSSC discriminated in violation of Title VII with respect to job assignments. The court addresses below Bradshaw's discriminatory job assignment claim.
B
MSSC moves for summary judgment dismissing Bradshaw's Title VII claim based on performance reviews, promotional opportunities, treatment with open contempt in front of customers, and request that she perform additional duties. It argues that Bradshaw cannot prevail on these claims because she received four promotions and numerous raises, she was given bad reviews due to poor work, she has no damages because she has not shown that a promotion to a new position would have resulted in a new and distinct relationship, and she has not demonstrated that she was treated with open contempt in front of customers or asked to perform additional duties because of her sex. MSSC has pointed the court to the absence of evidence in support of these claims. See Ds. Br. at 27-28. Because MSSC will not have the burden of proof at trial on this issue, Bradshaw is obligated to introduce evidence that would permit a reasonable finding of discrimination.
Bradshaw asserts that she and the other plaintiffs were less likely than were males to receive prompt performance evaluations. Plaintiffs' over-broad citations to the summary judgment record, see Ps. Br. at 27, do not comply with Rule 56.5(c) and are insufficient to withstand summary judgment. See supra § II.
Concerning Bradshaw's promotion claim, she has introduced evidence that when she interviewed with Riewoldt for the position of Account Executive in the Grocery Department, he told her she was qualified and would be considered, James Cagle interviewed her and told her that her age and sex would be against her, and Woodby, who was hired for the job, had no experience in the food brokerage business. This evidence is sufficient to present a genuine issue of material fact to be resolved by a trial.
Defendants' objections to this evidence are overruled.
Bradshaw does not explicitly address her claim that women were treated with open contempt in front of customers. See id at 22-27. This component of her cause of action is dismissed.
Regarding Bradshaw's contention that she was requested to perform additional duties, plaintiffs' brief makes global assertions that are unsupported by citations to the summary judgment record, see id. at 26-27, and therefore do not comply with Rule 56.5(c), see supra § II. This element of her Title VII claim is also dismissed.
C
MSSC seeks summary judgment dismissing Whale's Title VII claim that she was treated less favorably than were two male employees on extended medical leave. It contends that Whale has failed to say how she was treated differently and points to the absence of evidence that her sex was the basis for any disparate treatment.
Because Whale has the burden of proof on this claim, and MSSC has pointed to the absence of evidence to support it, Whale is obligated to introduce evidence that would allow a reasonable trier of fact to find in her favor. Her only support for this proposition, however, is part of her affidavit in which she states: "I was aware of the fact that Phil Swim and Jerry Bonniol had both been off on extended medical leaves but were kept on the payroll and returned to their same jobs at the end of their leave." Ps. App. 55. This conclusory allegation, which is devoid of any details that permit a reasoned comparison of the particular circumstances of each employee, would not permit a finding that MSSC treated the males more favorably based on their sex. The court therefore dismisses this component of her Title VII claim.
D
MSSC moves for summary judgment as to Kennemer's Title VII claims, contending that she cannot show that the decision to promote Stevens rather than her to the position of Director of Retail was based on her sex. It argues that she did not receive a bonus for 1997 because she transferred jobs near the end of the year and did not appear on either supervisor's bonus list. MSSC does not assert that Kennemer has failed to meet her initial obligation to establish a prima facie case. See Ds. Br. at 29. The court will therefore consider the other two steps in the burden-shifting paradigm.
MSSC has met its burden of production concerning the promotion issue by introducing evidence of legitimate, nondiscriminatory reasons why it promoted Stevens to Director of Retail based on his superior qualifications. Kennemer has satisfied the requirement that she raise a genuine issue of fact concerning pretext by adducing proof that would permit a reasonable trier of fact to find that her qualifications were superior to those of Stevens. This claim must be resolved by trial.
Defendants' objections to this evidence are overruled.
Kennemer also argues that her failure to receive a bonus in 1997 was an act of sex discrimination. MSSC asserts that "Kennemer did not receive a 1997 bonus because she transferred jobs near the end of the year and did not show up on either supervisor's bonus list." Id. at 29. MSSC has not met its burden of production, however, because the evidence it cites — Ds. App. 333-34 — does not pertain to this issue. These pages appear to refer to deposition testimony regarding organizational charts. This does not constitute evidence of a legitimate, nondiscriminatory reason for Kennemer's failure to receive a bonus in 1997. Because MSSC has not met its production burden, it is not entitled to summary judgment on this component of Kennemer's Title VII cause of action.
V
Plaintiffs allege that defendants are liable under the EPA, and MSSC is liable under Title VII, for retaliation.
A
Defendants move for summary judgment contending there is no evidence that any adverse action was taken in response to plaintiffs' complaints to the EEOC, that it never informed Bradshaw's prospective employers that she had filed an EEOC complaint, that plaintiffs cannot demonstrate a causal connection between filing their EEOC complaints and the adverse employment actions, that Whale's claim that MSSC demoted her to Account Executive exceeds the scope of her EEOC charge, and that Kennemer complains of retaliatory acts that do not qualify as ultimate employment decisions.
In response to defendants' motion, plaintiffs have narrowed their retaliation claims to each plaintiffs respective termination. See Ps. Br. at 28; Ds. Rep. Br. at 16 ("Plaintiffs seek to limit their retaliation claims to three incidents: The termination (or constructive termination) of the three Plaintiffs."). The court therefore grants summary judgment dismissing all other grounds on which plaintiffs rely to recover for retaliation.
The court does not suggest that evidence of other allegedly retaliatory acts is per se inadmissible. Such evidence may be probative of the merits of plaintiffs' remaining retaliation claims or relevant to other causes of action in the case. The admissibility of this evidence must be resolved in the context of trial.
B
The parties do not appear to dispute that plaintiffs' retaliation claims under both the EPA and Title VII are subject to the same burden shifting framework. To establish a prima facie case of retaliation, a plaintiff must demonstrate that (1) she was engaged in a protected activity, (2) an adverse employment action occurred, and (3) there was a causal connection between the participation in the protected activity and the adverse employment decision. Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 407-08 (5th Cir. 1999). A prima facie case gives rise to an inference of retaliation, and the burden of production then shifts to the defendant, who must articulate a legitimate, nondiscriminatory reason for the challenged employment action. See id at 408. To survive summary judgment, plaintiffs must then make a showing sufficient to allow a reasonable factfinder to conclude that defendants' rationale is pretextual.C
Defendants maintain that Bradshaw "was terminated for her attitude and performance." Ds. Br. at 22. In discussing the basis for this legitimate, nondiscriminatory reason, defendants do not cite any supporting evidence. Just as the court has held plaintiffs to the applicable standards for citing the summary judgment record, defendants must comply with these requirements. Because they have not cited any record evidence, they have not met their burden of production and Bradshaw has no obligation to introduce evidence of pretext. To the extent that defendants have properly cited summary judgment evidence in their reply brief, see Ds. Rep. Br. at 17-18, the court will not consider it. See Senior Unsecured Creditors' Comm., 749 F. Supp. at 772.
D
Defendants have introduced evidence that Whale was terminated because, after MSSC acquired another company, it was left with too many Account Managers. The Director of each group evaluated and ranked the group employees. After Prazak, the Director of Retail, ranked his Account Manager and retail staff, MSSC directed him to eliminate two Account Manager positions. Whale's position was eliminated because she ranked in the bottom two. She was then offered the job of Retail Representative, but declined it. Defendants have met their burden of production, obligating Whale to introduce evidence that would permit a reasonable trier of fact to find pretext.
Whale has offered proof that she received her Right-to-Sue letter, and MSSC received notice of the letter, in late August 1998. MSSC eliminated her job four months later, on December 18, 1998. Close proximity in time between an employer's receiving notice that its employee has complained of discrimination, and the date of the employee's discharge, can support an inference of retaliation. See Hocevar v. Purdue Frederick Co., 223 F.3d 721, 726 (8th Cir. 2000) (reversing summary judgment because inter alia jury could infer that retaliation was true reason for discharge based on close proximity between plaintiffs filing of EEOC charge and her discharge); Love v. Re/Max of Am., Inc., 738 F.2d 383, 386 (10th Cir. 1984) ("The causal connection may be demonstrated by evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action." (quoting Burrus v. United Tel. Co. of Kan., Inc., 683 F.2d 339, 343 (10th Cir. 1982))). Whale has also introduced evidence that Prazak's February 13, 1998 evaluation of her performance was the lowest she had ever received at MSSC. Without addressing all the proof that is sufficient to preclude summary judgment, see supra note 11, the court holds that there is circumstantial evidence that MSSC eliminated Whale's position within months of receiving a copy of the EEOC Right-to-Sue letter, based on a questionable performance ranking, as an act of retaliation in response to her having complained of discrimination to the EEOC.
Defendants' objections to this evidence are overruled.
E
Defendants have introduced evidence that Kennemer was discharged because of poor performance. They have met their burden of production, and Kennemer is now obligated to adduce evidence that would permit a reasonable trier of fact to find unlawful retaliation.
Kennemer has failed to meet her summary judgment burden. She was terminated on February 14, 2000, well after her discrimination complaints became known. Kennemer attempts to close this wide temporal gap by arguing that when oral depositions in the case were scheduled, she faced "open hostility." Ps. Br. at 32. This assertion does not even purport to link such animosity to a specific person with authority to terminate her employment or who was in a position to influence the decisionmaker. Cf. Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 444 (4th Cir. 1998) ("The nail in the coffin of [plaintiff] 's prima facie case is that she provides no evidence that the supervisor who fired her . . . even knew that [she] had filed a claim for discrimination."). Moreover, to raise an issue concerning the essential element of causation, she relies in her brief on numerous and discrete factual statements either without citing the relevant pages of her appendix, see Ps. Br. at 29-32, or by citing several pages as a group, see id. at 32. The court is not obligated to search the record for evidence that is not cited or to read multiple pages of the record that are cited collectively. See supra § II.
The court grants summary judgment dismissing Kennemer's retaliation claims under the EPA and Title VII.
VI
Whale alleges that defendants violated the FMLA by coercing her into accepting a demotion to a lower paying position upon her return to work from medical leave, failing to provide her required information concerning her FMLA rights, and telephoning her at home during her leave and making thinly-veiled threats concerning being terminated, thereby compelling her to return to work earlier than her doctor had advised.
A
In an abbreviated, one paragraph opposition argument, see Ps. Br. at 34-35, Whale focuses only on her assertion that MSSC violated the FMLA by improperly urging her to return to work earlier than she would have otherwise. See Ds. Rep. Br. at 21 (asserting that "Whale's entire claim under the FMLA has now limited itself to whether or not Whale was coerced into returning to work earlier than medically indicated."). Accordingly, the court dismisses her claims that she was given improper notice of her FMLA rights and was demoted in violation of the FMLA, and addresses on the merits her allegation that defendants are liable for coercing her to return to work.
B
"Pursuant to the plain language of [29 U.S.C.] § 2615, the FMLA is violated if the employer interferes with, restrains, or denies the exercise or the attempt to exercise `any' right provided within the FMLA." Sherry v. Protection, Inc., 981 F. Supp. 1133, 1136 (N.D. I11. 1997) (emphasis in original) (citing 29 U.S.C. § 2615(a)(1)). Because Whale will have the burden of proof on this cause of action at trial, defendants can satisfy their summary judgment obligation by pointing the court to the absence of evidence to support it. Once they do so, Whale must go beyond her pleadings and designate specific facts showing that there is a genuine issue for trial. If she fails to meet this burden, summary judgment is mandatory. Defendants have pointed the court to the absence of evidence that this conduct rose to the level of harassment. See Ds. Br. at 34 (citing Gunderson v. Neiman-Marcus, 982 F. Supp. 1231, 1235 (N.D. Tex. 1997) (Maloney, J.) (holding that employer's regular questioning concerning employee's work restrictions did not establish hostile work environment in violation of ADA)). Whale now has the burden of introducing evidence that would permit a reasonable trier of fact to find that defendants violated her FMLA rights.
In plaintiffs' response brief, they assert, without specific citation, that "Whale's affidavit also adduces evidence that Schofield had threatened her with job loss if she did not return to work." Ps. Br. at 5; see id. at 34. They conclude their response to this part of defendants' motion by citing pages 55 and 56 of their appendix. See id. at 35. Nothing in these pages addresses harassing telephone calls by Schofield or anyone else while Whale was on FMLA leave. Instead, the pages pertain to MSSC's alleged failure to notify Whale of her FMLA rights, a letter signed by MSSC Director of Human Resources Cyndi Henderson that said Whale would not be continued on full salary after December 31, 1996, and extreme pressure that Whale felt to return to work because she was in fear of losing her job. Because the FMLA only guarantees unpaid leave, this evidence does not constitute proof that MSSC interfered with her rights under the FMLA. Whale's FMLA claim is therefore dismissed in its entirety.
VII
Whale alleges that MSSC violated the ADA by forcing her to resign her position as Director of Retail on her return to work from medical leave and accept a demotion to a lower paying position, and failing reasonably to accommodate her disability.A
MSSC moves for summary judgment contending that Whale cannot qualify as disabled under the ADA because her illness caused only temporary loss of hearing in one ear and prevented her from lifting more than 20 pounds, a condition that does not qualify as disabled. It acknowledges that a brain lesion is an impairment, but maintains that Whale has failed to show that it limits a major life activity. MSSC argues that Whale's only evidence concerning the impact of her disability relates to her inability to lift over 20 pounds or do heavy pushing or pulling, which is insufficient to establish a substantial limitation on a major life activity. It also posits that the nature of Whale's disease is insufficient to qualify as an APA disability.Whale argues in opposition that her condition is not temporary and that it affects her ability to enjoy life. She also maintains that even if she does not qualify as an individual with an actual impairment, she comes within the protection of the Act as one whom MSSC regarded as having such an impairment.
B
The ADA mandates that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual[.]" 42 U.S.C. § 12112(a). To prevail on a discrimination claim under this provision, Whale "must prove that 1) [s]he has a `disability'; 2) [s]he is `qualified' for the job; and 3) an adverse employment decision was made solely because of [her] disability." Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1092 (5th Cir. 1996) (per curiam) (citing Rizzo v. Children's World Learning Ctrs., Inc., 84 F.3d 758, 763 (5th Cir. 1996)). The ADA defines disability as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). "A physical impairment, standing alone, is not necessarily a disability as contemplated by the ADA. The statute requires an impairment that substantially limits one or more of the major life activities." Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995).
The ADA does not define "substantially limits" or "major life activities." EEOC regulations promulgated pursuant to the ADA, however, provide significant guidance. Major life activities mean functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29C.F.R. § 1630.2(i) (1998). Substantially limits means (1) unable to perform a major life activity that the average person in the general population can perform, or (2) significantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform the same major life activity. 29 C.F.R. § 1630.2 (j)(1). Whether an impairment substantially limits a major life activity is determined in light of (1) the nature and severity of the impairment, (2) its duration or expected duration, and (3) its permanent or expected permanent or long-term impact. 29 C.F.R. § 1630.2(j)(2).
C
MSSC has pointed the court to the absence of evidence that Whale has (or had at the pertinent times) a physical impairment that substantially limits one or more major life activities. See Ds. Br. at 35. In her response, Whale cites summary judgment evidence that her impairment is permanent, see Ps. Br. at 33, but she does not refer the court to proof that the impairment substantially limits a major life activity, see id Whale relies on testimony of her primary care physician, Nancy L. Bafus, D.O. ("Dr. Bafus"), that supports the finding that Whale has a permanent physical condition (an inoperable brain tumor and tinnitus) and a permanent physical impairment. Dr. Bafus testified, in pertinent part:
Whale's condition has profoundly affected her hearing; she is totally deaf in her right ear and has lost all directional hearing; in addition because of the constant ringing, she has seriously impaired hearing in her left ear.
The result of such profound hearing loss substantially limits [Whale's] ability to enjoy social gatherings and personal interactions. In addition, the constant ringing in her ear, and the ear pressure contributes to severe headaches, anxiety, and depression, which conditions all affect [Whale's] ability to enjoy life and to engage in a wide range of activities.
Ps. App. 38.
Whale's summary judgment evidence is insufficient to preserve her ADA claim for trial. The life activities that are the subject of Dr. Bafus' testimony are hearing, the enjoyment of social gatherings and personal interactions, and the ability to enjoy life and engage in a wide range of activities. Although hearing is a major life activity, and it is possible for someone with hearing in only one ear, who hears ringing sounds and suffers related maladies, to be substantially limited in the major life activity of hearing, see Perkins v. St. Louis County Water Co., 160 F.3d 446, 449 (8th Cir. 1998) ("Hearing impairment, depending on its severity, can be a disability under the ADA."), Whale has not introduced sufficient evidence to permit a finding of a substantial limitation. "`[S]ubstantially' suggests `considerable' or `specified to a large degree.'" Sutton v. United Airlines, Inc., 527 U.S. 471, 491 (1999). "The EEOC has codified regulations interpreting the term `substantially limits' in this manner, defining the term to mean `[u]nable to perform' or `[s]ignificantly restricted.'" Id. (quoting 29 C.F.R. § 1630.2(j)(1)(i),(ii) (1998)). The summary judgment evidence shows, however, that Whale's good ear functioned sufficiently for her to navigate the tasks of daily living and continue employment at MSSC. Cf. Still v. Freeport-McMoran, Inc., 120 F.3d 50, 52 (5th Cir. 1997) (per curiam) (holding that permanent blindness in one eye did not qualify as disability under ADA where it was undisputed that plaintiffs good eye functioned normally, even though his peripheral vision was limited by his partial blindness, where plaintiff was able to perform normal daily activities, including driving cars and motorcycles, and was certified marksman, and plaintiff offered no evidence that he was unable to engage in any usual activity because of his partial blindness). Whale has not introduced sufficient evidence to make the required showing of substantial limitation. In Albertson's Inc. v. Kirkinburg, 527 U.S. 555 (1999), the Court made clear that merely demonstrating the existence of an impairment and a difference in the manner in which one performs her own major life activities does not constitute a sufficient showing of disability, see id. at 565. This holding is particularly apposite to the instant case because the Court in Albertson's reversed the Ninth Circuit's conclusion that monocular vision constitutes a per se disability.
Dr. Bafus' reference to an unspecified "wide range of activities" is insufficient to permit a reasonable finding that any one of these is a major life activity under the ADA. Accordingly, the court need not address this part of the doctor's opinion testimony.
Dr. Bafus' opinion testimony concerning limits on Whale's ability to socialize and engage in personal interaction is also insufficient to enable Whale to withstand summary judgment. See, e.g., Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 643 (2d Cir. 1998) (recognizing that driving, doing mechanical work on cars, performing housework other than basic chores, going shopping in the mall with spouse, skiing, and golfing are not major life activities); Francis v. Chemical Banking Corp., 62 F. Supp.2d 948, 963 (E.D.N. Y.I 999) (holding that "the activities of `thinking normally' and `socializing' do not constitute major life activities as contemplated under the ADA.").
D
Whale also argues that she qualifies as disabled under the ADA because MSSC regarded her as disabled.
To make out a claim under the "regarded as" prong of the ADA, "it is necessary that a covered entity entertain misperceptions about the individual[.]" Sutton, 527 U.S. at 489. Such misperceptions may include "either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting." Id. "[I]n order for an employer to have regarded an impairment as substantially limiting in the activity of working, the employer must regard an individual as significantly restricted in the ability to perform a class or broad range of jobs." Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1121 (5th Cir. 1998).
Whale's supporting evidence is sparse. Not only does it not allow the finding that MSSC regarded her as significantly restricted in the ability to perform a class or broad range of jobs, the record evidence would only permit the finding that MSSC did not regard her as disabled. Whale cites "her description of Schofield's reaction to her `medical diagnosis.'" Ps. Br. at 34. This evidence would not permit a reasonable finding that MSSC regarded Whale as disabled and incapable of performing her duties. Instead, it would reasonably allow only the conclusion that MSSC personnel believed she was actually quite able to carry out her duties but was exaggerating her condition, i.e., that she was not disabled.
E
Under the ADA, only individuals with disabilities are entitled to reasonable accommodations. See Weber v. Strippit, Inc., 186 F.3d 907, 916 (8th Cir. 1999), cert. denied, 528 U.S. 1078 (2000); Cannizzaro v. Neiman Marcus, Inc., 979 F. Supp. 465, 475 (N.D. Tex. 1997) (Soulis, J.) ("[T]he duty to make a reasonable accommodation arises only when the individual is disabled[.]"). Because Whale cannot establish that she is disabled under the ADA, the reasonable accommodation component of her cause of action also fails.
Whale's ADA claim is dismissed.
VIII
Plaintiffs sue Riewoldt under the EPA and FMLA. Riewoldt moves for summary judgment contending that he never acted in a discriminatory manner toward them. The court has already determined above, see supra § VI, that Whale cannot prevail on her FMLA cause of action. Accordingly, the only question is whether plaintiffs can recover from Riewoldt individually on their EPA claims.
In their motion, defendants have pointed the court to the absence of evidence that Riewoldt discriminated against plaintiffs. See Ds. Br. at 7, 43 (asserting that "Plaintiffs have presented no evidence or arguments to demonstrate that he engaged in any type of improper or unlawful behavior. In fact, they have not adduced any evidence or argument that Riewoldt was even involved[.]"). Plaintiffs are therefore obligated to introduce sufficient evidence to present a genuine issue of material fact.
Plaintiffs have introduced evidence that Riewoldt exercised final authority to set salaries. Although Riewoldt disputes this evidence and squarely denies that he had or exercised such authority, plaintiffs have introduced evidence that he did. The court therefore denies summary judgment concerning plaintiffs' EPA claims against Riewoldt individually.
Defendants' objections to this evidence are overruled.
* * *
In sum, the court grants summary judgment dismissing the following causes of action or components of plaintiffs' claims:
Bradshaw: (1) her EPA and Title VII claims based on the alleged denial of perquisites of employment; (2) her non-unequal-pay-based Title VII claims, except those explicitly allowed supra at § IV(B); and (3) her EPA and Title VII retaliation claims, except those based on her termination.
Whale: (1) her non-unequal-pay-based Title VII claims, except the one explicitly allowed supra at § IV(A); (2) her EPA and Title VII retaliation claims, except those based on her termination; (3) her FMLA claim; and (4) her ADA claim.
Kennemer: (1) her EPA and Title VII-based pay claims, except those based on her position as Retail Category Manager; (2) her non-unequal-pay-based Title VII claims, except those explicitly allowed supra at § IV(D); and (3) her EPA and Title VII retaliation claims.
Defendants' motions are otherwise denied.
SO ORDERED.