Opinion
Civil Action Cause Number 2:01-CV-264-J
May 16, 2002
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This is an employment discrimination case wherein Plaintiff Barbara Fowkles alleges she was retaliated against for engaging in protected employment activity, and then terminated because of her age. Defendant moves for summary judgment on all claims.
Factual Background
Plaintiff is 47 years of age. She alleges in her complaint that because of her age she was terminated from employment at the Amarillo facility of Defendant SITEL Corp. Plaintiff further alleges that before her termination she was retaliated against by supervisors and co-workers, allegedly because she complained to supervisors at Defendant SITEL's corporate headquarters about local hiring and supervisory practices which she believed were in violation of Title VII (specifically, prohibition against discrimination on the basis of pregnancy and sex/gender), the ADA (disability discrimination), and/or the ADEA (age discrimination).
Summary Judgment Standards
Once the moving party has initially shown its entitlement to judgment by tendering competent evidence, "the non-movant cannot rest on the pleadings." Green v. Touro Infirmary, 992 F.2d 537, 538-39 (5th Cir. 1993). The party opposing judgment must point the Court to "specific facts with sufficient particularity to meet all the elements necessary to lay a foundation for recovery, including those necessary to negate the defense" offered by the movant. Brown v. Texas AM University, 804 F.2d 327, 333 (5th Cir. 1986). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (initial burden is on movant to show entitlement to summary judgment with competent evidence); Fed.R.Civ.Pro. 56(c) (e).
Accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Celotex Corp., 477 U.S. at 323-25, 106 S.Ct. at 2553; Liberty Lobby, Inc., 477 U.S. at 247-48, 106 S.Ct. at 2510. The nonmoving party must designate specific facts showing there exists a genuine issue of material fact on those elements sought to be negated by the movant. Ibid.
Discussion and Analysis Age Discrimination Claim
Age discrimination claims are brought under the Age Discrimination in Employment Act (ADEA). The legal standards for a prima facie case and the shifting burden of persuasion and the ultimate burden of proof are similar to Title VII cases. "A prima fade case under the ADEA includes: (1) that plaintiff was discharged; (2) that [she] was qualified for the position; (3) that [she] was within a protected class at the time of discharge; (4) that [she] was replaced by someone outside the protected class, or (5) replaced by someone younger, or (6) show otherwise that [her] discharge was because of age." Young v. City of Houston, 906 F.2d 177, 180 (5th Cir. 1990). Plaintiff may also prove her case by showing that an adverse employment action short of discharge happened to her because of her age. Price v. Federal Express Corp., 283 F.3d 715, 722-23 (5th Cir. 2002).
29 U.S.C. § 623(a)(1) provides: "It shall be unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual . . . because of such individual's age."
See Vadie v. Miss. State Univ., 218 F.3d 365, 374 n. 23 (5th Cir. 2000), cert. denied, 531 U.S. 1113, 121 S.Ct. 859, 148 L.Ed.2d 772 (2001), and cert. denied, 531 U.S. 1150, 121 S.Ct. 1092, 148 L.Ed.2d 966 (2001) (stating that a plaintiff can avoid summary judgment when the "evidence taken as a whole (1) creates a fact issue as to whether each of the employer's stated reasons was what actually motivated the employer and (2) creates a reasonable inference that age was a determinative factor in the actions of which the plaintiff complains").
It is undisputed that Plaintiff belongs to a protected class and that she was qualified to do her job. However, Plaintiff's employment position was filled by a woman who was at least 54 years of age. It is therefore undisputed that Plaintiff's position was filled by some who was inside, not outside, her protected class.
Plaintiff testified in her deposition that during her employment at SITEL no adverse employment action occurred to her, either because of her age or otherwise. Plaintiff testified that she was never refused any requested promotion, raise in pay or leave request, and that no other adverse employment action occurred. Plaintiff testified that she was terminated not because of her age but because SITEL's new facility manager wanted to make room within Plaintiff's department for the new manager's wife. For these reasons, Plaintiff has failed to make a prima fade case of age discrimination.
Plaintiff testified that she withdrew the only promotion request she ever applied for at SITEL.
Plaintiff testified in her deposition that she left work at SITEL when she applied for and was granted a 120-day family medical leave. When that leave expired she did not go back to work because, in part, her doctor never released her to return to any employment "If an employee who . . . does not have an employment contract cannot work because of illness, nothing in Title VII [or the ADEA] requires the employer to keep the employee on the payroll." Troupe v. May Dept. Stores Co., 20 F.3d 734, 737 (7th Cir. 1994) (citing Bush v. Commonwealth Edison Co., 990 F.2d 928, 931 (7th Cir. 1993); Rush v. McDonald's Corp., 966 F.2d 1104, 1107, 1115 (7th Cir. 1992)).
Retaliation Claim
Title VII provides in relevant part that "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice under this subchapter." 2 U.S.C. § 2000e-3(a). "A retaliation claim has three elements: (1) the employee engaged in activity protected by Title VII; (2) the employer took adverse employment action against the employee; and (3) a causal connection exists between that protected activity and the adverse employment action." Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir.), cert. denied, 522 U.S. 932, 118 S.Ct. 336, 139 L.Ed.2d 260 (1997) (citing Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992). Because Plaintiff testified in her deposition that during her employment at SITEL no adverse employment action occurred to her, she was never refused any requested promotion, raise in pay, or leave request, she has not been given a poor employment reference by SITEL post-discharge, that no other material adverse employment action occurred in intentional retaliation against her, and that she was terminated not in retaliation but because SITEL's new facility manager wanted to make room within Plaintiff's department for the new manager's wife, Plaintiff has also failed to make a prima fade case of retaliation.
Conclusions
For the above reasons, Defendant is entitled to summary judgment on Plaintiff's age discrimination and retaliation claims.
It is SO ORDERED.