Opinion
Case No. 8:01CV575
February 3, 2003
MEMORANDUM AND ORDER
This matter is before the Court upon Defendant Memberworks, Inc.'s Motion for Summary Judgment (Filing No. 49). Plaintiff Marilyn Cotton ("Cotton") opposes the motion claiming that genuine issues of material fact remain in dispute, and Memberworks is not entitled to judgment as a matter of law. The parties have fully briefed the issues.
Cotton's Amended Complaint (Filing No. 15) sets forth two theories of recovery. First, Cotton claims that Memberworks, her former employer, failed to promote her to an online supervisor position in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. Second, Cotton claims that the termination of her employment constitutes unlawful retaliation. Memberworks seeks summary judgment on both claims. Having reviewed the parties' briefs and the evidence offered in support and in opposition to the Defendant's motion for summary judgment, the Court will grant the motion in part and deny it in part. The Court concludes that there are no genuine issues of material fact that preclude summary judgment in favor of Memberworks on Cotton's failure-to-promote claim, but that Memberworks is not entitled to summary judgment on the claim of unlawful retaliation.
Parties' Objections to the Evidence
Memberworks objects to portions of Cotton's evidentiary submission (Filing No. 59), arguing that some of the evidence is unreliable hearsay and that Cotton's affidavit includes irrelevant opinion, and statements that are self-serving or contradictory to her previously sworn deposition testimony. Likewise, Cotton objects to evidence submitted by Memberworks in support of its reply brief (Filing No. 65). Memberworks sought and was granted leave of the Court to file a reply brief (Filing Nos. 63). Without seeking contemporaneous leave of the Court, Memberworks filed additional evidence in support of its reply brief (Filing No. 60). Cotton objects to the filing of this additional evidence and seeks to have it stricken. In the alternative, Cotton requests an additional 14 days to respond to the new evidence. Memberworks has responded to Cotton's objection, in part by including a specific request for leave of the Court to file the evidence.
Beginning with the first-filed objection, Memberworks objects to portions of Cotton's affidavit, excerpts from the deposition of Cotton's co-worker, Veronica Mitchell, and Cotton's Exhibit 5. (Filing No. 53 at Exs. 1, 3 and 5.) Turning first to the Affidavit of Marilyn Cotton signed and sworn on December 4, 2002 (Filing No. 53, Ex. 1), the Court sustains the objections to paragraph 2 and paragraph 4 (first objection) as speculative, and to paragraph 4 (second objection) as irrelevant opinion and speculative. The objections to paragraphs 3 and 5 are overruled. Paragraph 3 can be read as explanatory of Cotton's deposition testimony and is not necessarily inconsistent with her deposition. Paragraph 5 references Cotton's own Exhibit 5 at Filing No. 53), and while Exhibit 5 is not relied upon by Memberworks in support of its motion for summary judgment, Cotton's affidavit at paragraph 5 makes sense only in reference to Exhibit 5 — Memberworks' business records. When Cotton's affidavit and Exhibit 5 are viewed in the light most favorable to Cotton, they may be construed as some evidence of "setting up" her discharge, and could be construed to support her claim of retaliation.
With regard to Memberworks' objections to excerpts of Veronica Mitchell's deposition, the Court sustains the objections to pages 21:24-22:3; page 33:21-25 (beginning with "but" to the end of line 25); and page 51:6-13 because the statements are inadmissible hearsay; and the objection to 50:1-20 based on relevance and inadmissible hearsay. Memberworks' objection to Exhibit 5 is overruled because it, read in conjunction with Cotton's affidavit at paragraph 5, is relevant to Cotton's claim of retaliation. Cotton's objection Memberworks' evidence offered in support of its reply brief shall be sustained. Leave of the Court is required before evidence is filed after the initial evidentiary submission is made in connection with a motion for summary judgment, but in this case leave to submit additional evidence was not sought, and it shall not, at this late date, be given. I have reviewed the evidence and have concluded that it contains nothing that would alter the Court's resolution of Memberworks' motion for summary judgment. It shall not be stricken from the record.
Factual Background
Marilyn Cotton, a black female, became employed at Memberworks in December 1991 as a Membership Services Representative ("MSR"), providing customer support for the members' programs and benefits over the telephone. From 1991 through 1998, Cotton received several promotions, moving from a floor representative, to a Q A trainer, to a Sales Supervisor, and eventually a Training Academy Supervisor. Academy Supervisors train and supervise newly hired MSRs.
In January and February 1993, Cotton received several written warnings relating to her job responsibilities such as her handling of customer inquiries, her adherence to Memberworks' break policies, inadequate product knowledge, and attendance issues. Filing No. 51, Ex. 1 (hereafter "Cotton Dep.") at Deposition Exs. 4 — 10. In her performance appraisals for the years 1995, 1996, and 1997, Cotton was commended for her strengths including team leadership, and was reminded of areas needing improvement, specifically verbal and written communication skills and computer software and word processing knowledge. Cotton Dep. at Deposition Exs. 12, 15, and 13, respectively. In 1997, she received a separate written criticism of her computer skills. Cotton Dep. at Deposition Ex. 11.
In the last quarter of 1998, John Steube became Cotton's supervisor. Sometime in mid-2000, Steube informed his supervisors at a general meeting that Memberworks intended to add on-line supervisory responsibilities to one supervisor's current responsibilities. The on-line supervisory job would require the person to supervise MSRs who communicated with and took orders from customers over the Internet. According to Steube, the on-line supervisor duties required "someone very skilled with personal computer[s], [the] Internet, [and] verbal and written skills." Filing No. 51, Exhibit 2 (hereafter "Steube Dep.") at 84:20-22, and 84-85. Steube recalled that only one supervisor, Katie Norris, continually expressed interest in the on-line supervisor position. While some supervisors had expressed preliminary interest, all of them, save Norris, failed to pursue the job after Steube informed them that there would not be an increase in pay or a change in hours for the person who assumed the on-line responsibilities. Steube Dep. at 87. See also Cotton Dep. at 109-113, 120.
Steube selected Norris to be the online supervisor. In Steube's opinion, Norris was more qualified than any other applicant for the position, stating: "[she was] very skilled in all functions of computer software and was extremely adept at virtually anything that we needed to do on a PC. She could certainly handle it." Steube Dep. at 86. After Norris was hired into the new position, her hours were changed at the request of her managing supervisor, Barb Olander, who petitioned her Department Manager, George Vogel, to change Norris' work hours to coincide with Olander's own hours. Id. at 88.
Steube prepared Cotton's annual performance appraisal and reviewed it with her during a meeting held on August 14, 2000. Filing No. 51, Cotton Dep. at Deposition Ex. 14. Another Memberworks employee, Dennis McQuillen, attended the meeting. In a memo prepared by him, dated 8/15/00, McQuillen memorialized the nearly two-hour meeting. Filing No. 53, Ex. 5. According to the memo, Cotton repeatedly informed Steube that she was not comfortable communicating with him, that she thought he was a poor supervisor, that he had failed to develop her skills as a supervisor, and that she felt his appraisal of her performance was unfair. Id. During the meeting, Steube advised Cotton that she was not performing at a satisfactory level, and gave Cotton one month's time to improve her performance. Steube Dep. at 91; Cotton Dep. at Deposition Ex. 14. Two areas that needed improvement, which were identified by Steube, were Cotton's completion of daily action plans for her MSRs in an Excel spreadsheet format and Cotton's attendance at daily meetings with him. Id.
Evidentiary submissions offered by Cotton, upon which Memberworks does not rely to support its motion, indicate that Steube apparently tracked Cotton's daily performance from the date of the appraisal through her termination. Filing No. 53 at Ex. 5. A written warning to Cotton dated September 12, 2000, stated that Cotton failed to inform Steube of a change in supervisory coverage which was contrary to Steube's expectations. Filing No. 53, Ex. 5. The copy of the warning submitted to the Court is neither signed nor dated. Id. Cotton also offered a copy of an e-mail message Steube sent to Nancy Lehman, another supervisor, dated April 19, 2000, in which Steube states that supervisors had a responsibility to obtain his prior approval for supervisory coverage changes. However, there is no indication that this memo was disseminated to Cotton. Cotton denies ever having been made aware that Steube's prior approval on coverage issues was required. Cotton Dep. at 174 — 177.
On September 15, 2000, Steube fired Cotton, finding that she had not demonstrated adequate improvement over the preceding 30 days. Cotton Dep. at 185-86 and Deposition Ex. 24. Specifically, Steube found that Cotton had repeatedly failed to attend daily meetings with him, and she had failed to prepare daily action plans for her MSRs. The appraisal sets forth several dates by which performance improvement objectives should be met, and Cotton notes that four of the six deadlines were set for a time after she was actually terminated. Cotton Dep. at Deposition Ex. 14.
On September 27, 2000, Cotton filed a charge of discrimination against Memberworks with the Nebraska Equal Opportunity Commission ("NEOC"). Filing No. 51, Ex. 3. Memberworks contends that it learned for the first time when it received a copy of the NEOC charge that Cotton was alleging that anyone at Memberworks had engaged in racially discriminatory conduct toward her and that she felt her termination was an act of unlawful retaliation. Steube testified that he knew that Cotton had complained that she had trouble communicating with him, but he does not ever recall that she complained that he acted with racially discriminatory animus toward her. Filing No. 53, Ex. 4, Steube Dep. at 6. Cotton agrees that she filed her NEOC charge on September 27, 2000, but she disputes that this was the first time Defendant knew about her claim of racial discrimination. Indeed, Cotton contends that she first told Steube and Steube's supervisor, Bill Arendt, that she felt Steube was "prejudiced" against her before either the on-line supervisor position became available and before the August 14, 2000, negative performance appraisal by Steube. Cotton Dep. at 126-27. The Court has searched the record for Cotton's testimony regarding the dates that these conversations occurred, but the month of June 2000 and the date of June 23, 2000 are identified only in the Amended Complaint. ¶¶ 7-8.
Summary Judgment Standard
In the context of a summary judgment motion, the Court's function is to consider the evidence and determine whether the moving party is entitled to judgment as a matter of law. 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, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). 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., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (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.
"[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "If the evidence is merely colorable . . . or is not significantly probative . . . summary judgment may be granted." Id. (citations omitted). In addition, "the mere existence of some alleged factual dispute between the parties is not sufficient by itself to deny summary judgment. . . . Instead, `the dispute must be outcome determinative under prevailing law.'" Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992) (citation omitted) (quoting Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989)).
Failure to Promote Claim
Memberworks seeks summary judgment on Cotton's claim that it failed to promote her because of her race. Memberworks contends that the transfer of on-line supervisory responsibilities was not a promotion, and that Cotton was not the most qualified person for the job.
The elements of the prima facie case for a failure-to-promote claim are well established: The plaintiff must demonstrate "(1) that she is a member of a protected group; (2) that she was qualified and applied for a promotion to a position for which the employer was seeking applicants; (3) that despite her qualifications, she was rejected; and (4) that other employees of similar qualifications who were not members of a protected group were promoted at the time plaintiff's request for promotion was denied." Marzec v. Marsh, 990 F.2d 393, 395-96 (8th Cir. 1993). Under the McDonnell Douglas framework, after a plaintiff makes a prima facie showing of liability, the employer must produce evidence that it had a legitimate, nondiscriminatory reason for its actions. If the employer meets this burden of production, then the burden shifts to the plaintiff to show that the employer's actions were a pretext for discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973).
Lyoch v. Anheuser-Busch Companies, Inc., 139 F.3d 612, 614 (8th Cir. 1998) (en banc).
Memberworks contends that the on-line supervisor position was not a promotion because it did not involve a material change in the conditions of Cotton's employment, including those related to pay and hours. Whether the change from Cotton's former position as an Academy Supervisor to the position that would have included her former responsibilities and supervisory responsibility for the on-line MSRs was a promotion is, in part, a question of fact. The Court finds that the material facts relative to this inquiry are not genuinely disputed, and are as follows.
Steube informed the supervisors during a general meeting that the online supervisor duties were to be added to someone's responsibilities, and he invited those interested in the position to contact him for more information. He stated that there would be no increase in pay and no change in hours for the person who would be assigned the additional responsibilities. Cotton testified that she approached Steube about the responsibilities, but she felt that he was discouraging her from applying. Steube does not specifically recall Cotton asking about the job, and he recalls only one worker seriously pursuing the responsibilities. He recalled that several employees who had expressed an early interest did not pursue the matter when they learned that their pay and hours would remain the same.
After Steube gave the new responsibilities to a white female, Katie Norris, Norris' hours were changed to accommodate the schedule of Barb Olander, Norris' new managing supervisor. There is no evidence that Steube knew that a change in the online supervisor's hours was anticipated, and there is no evidence that he participated in the effort to change Norris' hours. The undisputed evidence is that Olander petitioned her boss, George Vogel, to change Norris's hours from her previous schedule to 8 a.m. to 5 p.m. so that Norris's hours would coincide with Olander's hours. There is no evidence that Norris' pay changed as a result of her new responsibilities.
In an attempt to create a genuine issue with regard to these facts, Cotton has offered rumor, hearsay, and opinions relative to the reason for Norris' change in hours and her pay, in both affidavit and deposition form. However, conclusory statements and opinions are insufficient to overcome a properly supported motion for summary judgment. Fed.R.Civ.P. 56(e); Whitley v. Peer Review Systems, Inc., 221 F.3d 1053, 1055 (8th Cir. 2000) (affirming summary judgment in a 42 U.S.C. § 1981 context, finding plaintiff's conclusory statements that she adequately performed her job insufficient to overcome employer's specific evidence of deficiencies); Miller, 116 F.3d at 346-47 (stating that plaintiff's conclusory statements that he met company standards were insufficient to overcome summary judgment). The Court finds that Cotton's evidentiary submission relative to the failure-to-promote claims are insufficient to create a genuine issue relative to the material facts.
Memberworks argues, based on the undisputed facts, that it is entitled to summary judgment as a matter of law because the assumption of online supervisory responsibilities does not constitute a promotion, citing for example Stout v. Kimberly Clark Corp., 201 F. Supp.2d 593 (M.D.N.C. 2002). In the context of a failure to promote claim, the burden is on the plaintiff to show that she suffered some adverse employment action by not obtaining the promotion. In considering what constitutes an adverse employment action, the Eighth Circuit Court has indicated that a "material change in employment" must be shown, and that such change is not indicated when an employee's pay, benefits and title remain the same. Duffy v. McPhillips, 276 F.3d 988, 992 (8th Cir. 2002) (in the context of explaining an adverse employment action.) On the other hand, the Eighth Circuit Court has also observed, that "an employer cannot insulate itself from liability for discrimination merely by offering a transfer at the same salary and benefits." Ledergerber v. Stangler, 122 F.3d 1142, 1145 (8th Cir. 1997) (en banc) citing with approval Flaherty v. Gas Research Inst., 31 F.3d 451, 456-57 (7th Cir. 1994) (observing that moving an employee's office to an undesirable location or transferring an employee to an isolated corner of the workplace may also constitute adverse employment action.) On the facts of this case, the Court finds that Norris' assumption of on-line supervisor responsibilities, without an attendant increase in pay or change in hours, was not a promotion, and that Steube's selection of Norris over Cotton for the additional responsibilities does not rise as a matter of law to an adverse employment action.
Indeed, it could reasonably be argued that adding new responsibilities upon a supervisor without increasing her pay or other benefits constitutes an adverse employment action because no other similarly situated supervisors were required to take on the new responsibilities.
Even if the assumption of additional responsibilities without an increase in pay or beneficial change in hours could be viewed as a promotion, the Court is mindful of Steube's undisputed testimony that 1) Norris was the only supervisor who expressed a continuing interest in the job, even after she was told that there would not be a raise in pay; and 2) in his opinion, Norris was best qualified for the job, given her proficiency with a personal computer and the Internet. Filing Nos. 51 and 53 at Steube Dep. at 6, 84-86. Thus, Memberworks has submitted evidence of a legitimate, nondiscriminatory basis for giving Norris the additional responsibilities over Cotton. Cotton argues that she believes she was more qualified to assume the on-line responsibilities than Norris, and she felt that Steube discouraged her from pursuing the job (Filing No. 53 at Cotton Aff. ¶ 4 and Cotton Dep. at 116), but these opinions and feelings are not the kind of factual evidence that is required to overcome a properly supported motion for summary judgment under Rule 56(e).
Finally, Cotton failed to provide any evidence that Steube's reason for choosing to give Norris the additional responsibility of online supervisor was in any way based on a racially discriminatory animus. Indeed, the only motivation that Cotton ascribed to Steube for assigning the new responsibility to Norris was that Norris and Steube were neighbors, he knew of her child care issues, and he wanted to help her out. Cotton Dep. at 119-20. "Employers are free to make employment decisions based upon mistaken evaluations, personal conflicts between employees, or even unsound business practices. Federal courts do not sit as "super personnel departments reviewing the wisdom or fairness of the business judgments made by employers, except to the extent that those judgments involve intentional discrimination." Cronquist v. City of Minneapolis, 237 F.3d 920, 928 (8th Cir. 2001) (internal citations omitted). Edmund v. MidAmerican Energy Co., 299 F.3d 679, 685-686 (8th Cir. 2002). Finding no evidence of pretext, the Court concludes that Memberworks is entitled to summary judgment on Cotton's failure-to-promote claim as a matter of law.
Retaliation Claim
Memberworks also seeks summary judgment on Cotton's claims that Memberworks unlawfully retaliated against her in violation of Title VII. To demonstrate a prima facie case of unlawful retaliation under Title VII, Cotton must show:
[T]hat the employee engaged in some form of protected activity, that the employee was subject to adverse employment action, and that the adverse action was causally connected to the protected activity. See Kim v. Nash Finch Co., 123 F.3d 1046, 1060 (8th Cir. 1997).
Woodland v. Joseph T. Ryerson Son, Inc., 302 F.3d 839, 845 (8th Cir. 2002).
Whether Cotton engaged in protected activity is in dispute. Cotton claims that she complained to Steube and Arendt that she felt Steube was racially prejudiced against her. While Memberworks concedes that Cotton complained that she and Steube had trouble communicating, Memberworks does not concede that Cotton informed it of her concern that she was being discriminated against on the basis of her race.
If for purposes of this motion, the Court finds that Cotton engaged in protected activity and the Court acknowledges that her termination from Memberworks constitutes an adverse employment action. The inquiry then is whether Cotton can show a causal link between the two elements. Memberworks seeks summary judgment on Cotton's claim of unlawful retaliation claiming that she has no proof to link the two elements. The evidence is clearly disputed on at least one important fact relative to this inquiry. Cotton has testified that she informed Steube and his supervisor, Bill Arendt, that she believed Steube was racially prejudiced. In her Amended Complaint, she alleges that these conversations occurred in June 2000. If this is accurate, then Memberworks was aware of her complaint of racial discrimination before Steube prepared Cotton's August 14, 2002, performance appraisal and before her termination. Memberworks claims that they discovered that Cotton had complaints of racial discrimination only when it received a copy of her NEOC charge on or about September 27, 2000. However, Memberworks does not dispute that it was aware that Cotton believed Steube had treated her unfairly at least by the time of her performance appraisal in August 2000. Certainly Memberworks' awareness of the alleged unfairness is not the same as awareness of a claim of race discrimination. Memberworks argues that when it had knowledge of Cotton's complaints of racial discrimination is not material, because a temporal connection between the allegedly protected activity and the retaliatory conduct, without more, is not sufficient to state a claim of unlawful retaliation under Title VII. See Bradley v. Widnall, 232 F.3d 626, 633 (8th Cir. 2000) (finding that a plaintiff "must do more than point to the temporal connection between the filing of her first complaint and the . . . allegedly adverse actions." In this case, however, Cotton has submitted more evidence. In paragraph 5 of her affidavit (Filing No. 53, Ex. 1), Cotton disputes statements recorded by Steube and McQuillen that were apparently prepared shortly after the meeting to review her performance appraisal and during the month between Cotton's appraisal and her termination (Filing No. 53, at Ex. 5). Cotton also states that while she did not provide Steube with daily action plans on some days, Steube had excused her from doing so. Plaintiff Aff. ¶ 2; Filing No. 53, Cotton Dep. at 197. She also testified that with regard to the discipline that she received for failing to obtain Steube's prior approval for and change in coverage, she did not know that Steube required prior approval. Filing No. 53, Cotton Dep. at 174-78.
The foundation provided for Filing No. 53, Exhibit 5 is thin, but it is accepted because the index to evidence, which is signed by plaintiff's counsel, identifies Exhibit 5 as "business records generated by Defendant" presumably produced during discovery.
Certainly Memberworks provided strong evidence that Cotton was experiencing performance issues in her employment, in the form of her 2000 performance appraisal and Steube's testimony, and that she was terminated based on her failure to improve her performance. However, when the Court considers all the evidence in the light most favorable to the non-moving party, Cotton, the Court concludes that there are genuine issues of material fact relative to the true reason that Cotton was terminated. The Court cannot weigh evidence, and cannot say that no reasonable jury could return a verdict in Cotton's favor based on this record.
For these reasons,
IT IS ORDERED:
Defendant's Motion for Summary Judgment (Filing No. 49) is granted in part and denied in part. The motion is granted as to Plaintiff's claim that Defendant failed to promote her in violation of Title VII; and the motion is denied with respect to Cotton's claim that Memberworks unlawfully retaliated against her for engaging in protected activity.