Summary
holding a severance offer does not constitute admissible evidence
Summary of this case from Ramsey v. Labette County Medical CenterOpinion
NO. 4:01-CV-594-A
July 31, 2002
MEMORANDUM OPINION and ORDER
Came on for consideration the motion of defendants, Gernsbacher's, Inc., ("Gernsbacher's") and Strategic Equipment and Supply Corporation ("Strategic"), for summary judgment. The court, having considered the motion papers, the record, and applicable authorities, finds that defendant's motion should be granted in part and denied in part.
I. Plaintiff's Complaint
Plaintiff, Dedra Haynes, alleges that defendants (1) terminated her on the basis of her gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"); (2) violated the requirements of the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA") by failing to reinstate her to her former position after taking FMLA leave; and (3) terminating her in retaliation for taking such leave.
II. Defendants' Motion For Summary Judgment
Defendants move for summary judgment on the grounds that (1) plaintiff cannot establish a prima facie case as to either her Title VII discrimination or FMLA retaliation claims, and (2) they had a legitimate non-discriminatory reason for terminating plaintiff.
Defendants' motion is more accurately described as a motion for partial summary judgment as it does not address plaintiff's substantive FMLA claim.
Defendants assert as a third ground that they are entitled to an affirmative defense as to plaintiff's hostile environment harassment claims. Plaintiff, however, asserts no such claim.
III. Undisputed Facts
The following is an overview of evidence pertinent to the motion for summary judgment that is undisputed in the summary judgment record:Strategic purchased Gernsbacher's in January, 2000. Gernsbacher's is in the business of selling kitchen equipment. Harold Gernsbacher is the president of Gernsbacher's.
Although the court could presume that Gernsbacher's and Strategic are legally separate entities based on the fact that plaintiff chose to sue them as such, their legal relationship is unclear from the record before the court. If they are legally separate entities, then Gernsbacher's may not be a covered entity under the FMLA. The court, however, is not required to resolve that issue at this time.
Plaintiff, a female, was hired by Gernsbacher's on February 26, 1998, for the position of showroom sales manager. Mr. Gernsbacher was the individual who made the decision to hire plaintiff. The actual offer of employment was presented by Denise Frazier, vice president for administration for Gernsbacher's.
In early 2000, plaintiff asked to have a word with Mr. Gernsbacher on the showroom floor. In response, Mr. Gernsbacher stated, "as long as it doesn't have to do with money, because all you women want is money." Pl. App. at 11.
While plaintiff states in her brief that Mr. Gernsbacher denies making the statement, Pl. Br. at 14, there is no evidence in the summary judgment record of this denial. The statement, therefore, is an undisputed fact for purposes of this motion.
On or around March, 2000, plaintiff drafted an "employee self-appraisal" wherein she stated that she would like to train herself out of her then current position and into a position with responsibility over all marketing and advertising campaigns for defendants. Gernsbacher's did not have such an existing position and chose not to create such a position.
In a March 17, 2000, e-mail plaintiff stated "I am very bothered by the philosophies of this organization, and I question my continued employment with Gernsbacher's." Def. App. at 4. Then in early to mid-April, plaintiff stated to Ms. Frazier that, "if I have to continue to work in an environment like this, I may as well go and find another job." Def. App. at 11.
On or about May 2, 2000, plaintiff informed Ms. Frazier that she would be having an operation and would be out of work anywhere from a minimum of two to five days to a maximum of four to six weeks, depending upon the procedure used. Ms. Frazier gave plaintiff permission to take leave for the surgery.
On May 5th, 2000, plaintiff underwent an operation to have her ovaries removed. A few days after the surgery plaintiff contacted Ms. Frazier and informed her that, due to the nature of the surgery, she would be out for four weeks. While she was out, plaintiff phoned Ms. Frazier approximately once a week. During the month of May, 2000, plaintiff attended an employee meeting conducted by Mr. Gernsbacher. Plaintiff and Mr. Gernsbacher spoke briefly at the meeting.
On June 5, 2000, plaintiff returned to work. Later that same day, Mr. Gernsbacher directed Ms. Frazier to terminate plaintiff's employment. Mr. Gernsbacher made the decision to terminate plaintiff. Ms. Frazier told plaintiff that the reason for her termination was that Gernsbacher's did not wish to create the position that plaintiff desired and that plaintiff did not appear to be happy in her current position. During the meeting, defendants made an offer, by letter, of severance pay.
Since plaintiff's termination, her duties have been performed by Darryl Cowles, a male.
IV. General Summary Judgment Principles
A party is entitled to summary judgment on all or any part of a claim as to which there is no genuine issue of material fact and as to which the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party has the initial burden of showing that there is no genuine issue of material fact. Anderson, 477 U.S. at 256. The movant may discharge this burden by pointing out the absence of evidence to support one or more essential elements of the non-moving party's claim "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). Once the moving party has carried its burden under Rule 56(c), the non-moving party must do more than merely show that there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party opposing the motion may not rest on mere allegations or denials of pleading, but must set forth specific facts showing a genuine issue for trial. Anderson, 477 U.S. at 248, 256. To meet this burden, the nonmovant must "identify specific evidence in the record and articulate the `precise manner' in which that evidence support[s] [its] claim[s]." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). An issue is material only if its resolution could affect the outcome of the action. Anderson, 477 U.S. at 248. Unsupported allegations, conclusory in nature, are insufficient to defeat a proper motion for summary judgment. Simmons v. Lyons, 746 F.2d 265, 269 (5th Cir. 1984).
The standard for granting a summary judgment is the same as the standard for a directed verdict. Celotex Corp., 477 U.S. at 323. If the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.Matsushita, 475 U.S. at 597.
V. Analysis
A. Title VII Discrimination Claim
Title VII makes it an unlawful employment practice for an employer to discriminate against any individual with respect to her terms conditions, or privileges of employment on the basis of gender. See Rutherford v. Harris County, Texas, 197 F.3d 173, 183-84 (5th Cir. 1999). To establish a prima facie case of discrimination under Title VII, plaintiff must show that (1) she is a member of a protected class, (2) she was qualified for the position, (3) she suffered an adverse employment action, and (4) she was replaced by a person not a member of the protected class. See Bauer v. Albermarle Corp., 169 F.3d 692, 966 (5th Cir. 1999) at 184. If a plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate some legitimate, non-discriminatory reason, which if established shifts the burden back to the plaintiff to demonstrate that the proferred reason is merely a pretext for the kind of unlawful discrimination claimed by the plaintiff.See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973);Rubenstein v. Adm'rs of the Tulane Educ. Fund, 218 F.3d 392, 399 (5th Cir. 2000).
As defendants do not specifically dispute establishment of a prima facie case, the court will presume for purposes of this analysis that plaintiff has met her initial burden and turn to the second element in the burden shifting framework. Defendant proffers that plaintiff was terminated on grounds that she (1) was unhappy in her then present position and wanted to create a new position into which she could be promoted, which defendant did not wish to provide for business reasons, (2) had overused her vacation and personal leave allowance, and (3) had expressed dissatisfaction with the company and threatened to quit. The court finds that defendant has provided a non-discriminatory explanation.
A plaintiff may meet her burden of establishing a fact question as to pretext and survive summary judgment, by adducing sufficient evidence to establish a prima facie case and that the employer's asserted justifications are false. See Russell v. McKinney Hospital Venture, 219, 223 (5th Cir. 2000) quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). Where, as here, the same actor, i.e. Mr. Gernsbacher, is responsible for the decision to both fire and hire the complaining employee, the court may infer a lack of pretext. See Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996) citing Proud v. Stone, 945 F.2d 796, (4th Cir. 1991). While Brown and Proud were age discrimination cases, their reasoning, context, and logic apply as well or better to issues of gender. See, e.g., Buhrmaster v. Overnite Transp. Co., 61 F.3d 461, 464 (6th Cir. 1995) (noting that doctrine applies to all types of discrimination, including sex discrimination). As noted in Proud, "[i]t hardly makes any sense to hire workers from a group one dislikes (thereby incurring the psychological costs of associating with them), only to fire them once they are on the job." 945 F.2d at 797. In other words, if Mr. Gernsbacher fired plaintiff because she was female, it is illogical that he would have hired her in the first place.
Over time a person's age status changes, i.e. a person hired when "younger" naturally becomes "older" during the course of her employment. It would be highly unusual, however, for a person hired as a female to be fired as anything else.
This inference is not absolute, but may be overcome only by a showing of "sufficiently egregious" facts. See Brown, 82 F.3d at 658. The facts asserted by plaintiff as evidence of pretext are that (1) the company did not follow its policy of progressive discipline before terminating plaintiff, (2) Mr. Gernsbacher, who was primarily responsible for her termination remarked to plaintiff that "all you women want is money," and (3) at termination, defendants made an unsolicited offer of severance in exchange for a release of any legal claims.
In support of her first assertion, plaintiff relies upon Russell, for the proposition that a company's failure to provide the terminated individual with either a formal oral warning, a written warning, or a corrective action plan as required by the companies internal procedures was deemed to be evidence of pretext. See 235 F.3d at 224. In the present case, plaintiff may have been orally warned about her excessive absences in early 2000. The parties dispute whether defendants' policy required all three steps to be taken in every case or even what the policy consisted of other than the statement that Gernsbacher's employed a "progressive discipline" policy.
It is unclear from the record adduced by plaintiff whether she disagrees that a meeting regarding her use of leave took place in early 2000 or whether she merely disagrees that the conversation regarding her allegedly excessive use of leave constituted a "warning." Compare Pl. App. at 27 and Pl. Supp. App. at 9.
The parties do appear to agree that the "progressive discipline" policy was defined in Gernsbacher's employee manual. Neither side, however, submitted that document to be considered as part of the summary judgment record.
Plaintiff's second assertion also relies on Russell for the proposition that pretext may be supported by evidence that the individual principally responsible for the plaintiff's firing made remarks containing discriminatory animus. See id. at 225. Post-Russell, the Fifth Circuit Court of Appeals has ruled that a remark made in the workplace may provide sufficient evidence of discrimination if it is (1) related to the protected class in question, (2) proximate in time, (3) made by an individual with authority over the employment decision at issue, and (4) related to the employment decision at issue. See Wallace v. Methodist Hospital System, 271 F.3d 212, 222 (5th Cir. 2001). The comment in question in this case does not appear to satisfy these requirements as, at a minimum, it is not related to and took place as much as five months before plaintiff's termination.
Plaintiff's reliance on Cassino v. Reichhold, 817 F.2d 1338, 1342 (9th Cir. 1987), for the principle that an offer of severance is evidence of pretext may be misplaced. A more recent appellate decision holds that such offers are not admissible as evidence of pretext. See Courtney v. Biosound, Inc., 42 F.3d 414, 420 (7th Cir. 1994). Further, the Fifth Circuit has noted its doubt as to the continuing precedential value ofCassino. See Haun v. Ideal Industries, Inc., 81 F.3d 541, 547 n. 3 (5th Cir. 1996). The court is unpersuaded that such an offer constitutes admissible evidence.
The court finds that plaintiff has not adduced evidence of pretext. She certainly has not presented evidence of "sufficiently egregious" facts so as to overcome the Proud inference. Therefore, summary judgment should be granted as to plaintiff's Title VII gender discrimination claim.
B. FMLA Claims
The FMLA supports two distinct potential causes of action. First, the FMLA provides for a substantive right allowing a plaintiff to sue for damages if she is not allowed to return to her previous position at the end of her FMLA qualifying leave. See 29 U.S.C. § 2612, 2614, and 2617. Second, the FMLA makes it unlawful to retaliate against an employee for exercising her right to FMLA qualifying leave. See 29 U.S.C. § 2615(a) and 2617.
In the present action, plaintiff asserts relief pursuant to both provisions. Defendant's summary judgment motion, however, only addresses plaintiff's FMLA retaliation claim and entirely ignores her substantive FMLA claim. The court has determined that plaintiff's retaliation claim should go forward along with her substantive claim as her evidence on the two FMLA claims will likely be similar if not identical.
VI. ORDER
For the reasons discussed herein,
The court ORDERS that defendants' motion for summary judgment be, and is hereby, granted as to plaintiff's claims under Title VII and denied as to her claims under the FMLA.
The court further ORDERS that plaintiff's Title VII gender discrimination claim be, and is hereby, dismissed.