Opinion
Civil Action No. 3:03-CV-0075-M.
July 29, 2004
MEMORANDUM OPINION
The Court has before it the summary judgment motion of Defendant City of Dallas. For the reasons described below, the Motion is GRANTED.
UNDISPUTED FACTS
Plaintiff Doyle A. Peterson was hired in March of 1997 as the General Sales Manager of WRR, the classical music radio station owned by the City of Dallas. At the time of his hiring, Peterson was 58. He supervised up to eight sales representatives, and a sales assistant. At some times during his tenure, and at all times after January 18, 2001, one or more of the sales representative positions which reported to him were vacant. Peterson was authorized to fill those vacancies. The WRR sales representatives were compensated with commissions on sales they generated. Peterson received a salary, plus 4% commission on (1) the gross sales generated by the sales representatives, (2) sales generated by Allied Radio Partners, an independent organization that marketed advertising for WRR to national accounts, and (3) house accounts that Peterson worked directly. From 1998-2001, local sales accounted for 84% of revenue at WRR and national sales accounted for the balance.In March of 2001, John Chiocco, VP/Director of Sales of Allied Radio Partners, recommended in a letter to Greg Davis, WRR's general manager, that WRR dedicate a person to work exclusively with national accounts, to increase national business. Defendant's App. at 113. That letter was copied to Mr. Peterson. From 1987-94, WRR had divided local and national sales. On April 16, 2001 Wilhemina ("Mina") Boyd, Director of the City's Convention Event Services, sent a memo to Davis, expressing disappointment in WRR's poor showing in the national sales market, and agreeing with Chiocco's recommendation for the creation of a national sales position. Boyd's recommendation went to Assistant City Manager Ramon Miguez, who recommended it to the City Manager (Defendant's App. at 175). Miguez did not know Peterson's age. Boyd also sent a memo to Human Resources to obtain approval for creation of the new position. Human Resources supported the reclassification of a sales position to National Sales Manager ("NSM"). Without knowing Peterson's age, Human Resources representative Patsy Palmer took action on the new position, which eventually was approved by the Dallas City Council (Defendant's App. at 184-89).
Upon City Council approval, the position of NSM was created, and the position was posted and advertised. The NSM was to be responsible for all sales outside the local market, and would work with Allied Partners, but would not supervise any sales representatives. The title of Peterson, who did not apply for the NSM position, became Local Sales Manager. Peterson supervised the same sales positions, and received the same salary and same commission rate. However, he no longer handled house accounts, worked to a lesser degree with Allied, and his sales force focused exclusively on sales in the local market. Peterson considers the reorganization, which was effective on September 30, 2001, a demotion. He filed a grievance with the City, which was denied. On June 11, 2002, he resigned, claiming he had been demoted and constructively discharged because of his age.
LEGAL ANALYSIS
Under the burden shifting paradigm of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Peterson must establish a prima facie case of age discrimination. If he does so, the City must articulate a legitimate, non-discriminatory reason for the conduct complained of. If the City gives such an explanation, then Peterson has the burden of demonstrating that the articulated reason is a pretext for unlawful discrimination.
To establish a prima facie case of age discrimination, Peterson must show that he is over forty, that he is qualified for the position not given, that he suffered an adverse employment action, and that he was replaced by someone younger or treated less favorably than similarly situated younger employees. Webster v. Bass Enters. Prod Co., 192 F. Supp. 2d 684, 693 (N.D. Tex. 2002).
Without reaching the other issues, the Court concludes that Plaintiff cannot make out a prima face case, because the facts before the Court show that Plaintiff did not suffer an adverse employment action. Plaintiff claims to have been demoted or constructively discharged.
Constructive discharge occurs when an employer makes "the employee's working conditions so intolerable that a reasonable employee would feel compelled to resign." Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir. 2000) (quoting Barrow v. New Orleans S.S. Ass'n, 10 F.3d 292, 297 (5th Cir. 1994)); Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001). Factors considered relevant by the Fifth Circuit, either singly or in combination are "(1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger supervisor; (6) badgering, harassment, or humiliation calculated to encourage the employee's resignation; and (7) offers of early retirement [or continued employment on terms less favorable than the employee's former status] . . ." Bunge, supra, at 782 (alteration in original) (quoting Barrow v. New Orleans S.S. Ass'n, 10 F.3d 292, 297 (5th Cir. 1994)).
Apart from the alleged demotion, which is analyzed below, Peterson claims two bases for his claim of constructive discharge — first, that he was forced to work with the NSM, Brent Sanderson, and second, that he was not permitted to belong to the Dallas Executives Association ("DEA"). As to the first issue, Peterson's deposition testimony was that he did not work for Sanderson, and that Sanderson showed no age animus to Peterson, nor did he ever mock or ridicule him. ( See Defendant's App. at 18-19). Peterson acknowledged that "there wasn't any real contact" between him and Sanderson, who was formerly a sales representative reporting to Peterson, after Sanderson became the NSM. ( Id.)
WRR is a member of numerous broadcasting associations. Davis chose to disassociate WRR from the DEA. In his affidavit, Davis stated his view that DEA membership did not benefit WRR as a whole, said he had observed that only some sales people participated in costly breakfasts DEA hosted at country clubs, and said he did not like the way the DEA staff treated him at one of the breakfasts. Peterson presents no evidence that Davis's decision not to continue to associate WRR with DEA made Peterson's working conditions so intolerable that a reasonable employee would feel compelled to resign.
The only other basis for Peterson's allegation of a constructive discharge is that when the NSM position was created, he was demoted. Plaintiff claims the elimination of his national sales responsibilities and commission opportunities was a demotion, and thus an adverse employment action. However, Peterson's work hours, salary, location and commission structure were all unchanged after the reorganization, as was his supervisory responsibility over the same nine positions. The changes in his job were that house and national accounts were reassigned to the NSM, most of the Allied relationship was handled by the NSM, and ultimately, Peterson's income was lower, because the sales representatives under him did not sell sufficient additional local advertising to make up the difference for his commission on business transferred to the NSM. The Court is of the view that as a matter of law, the evidence before the Court does not support the conclusion that the reorganization was a demotion. There is a complete absence of evidence that Peterson could not make up (or even exceed) lost commissions from national and house accounts by assisting the sales representatives he supervised in increasing local sales. Cf. Kirsch v. Fleet St., Ltd., 148 F.3d 149 (2d Cir. 1998) (reduction in compensation from a commission structure that first paid plaintiff $80,000 — $100,000 annually, then $60,000 plus an override, then a fixed salary of $26,000 was sufficient to support constructive discharge claim); Stephens v. CIT Group/Equip. Financing, Inc., 955 F.2d 1023 (5th Cir. 1992) (combination of actual demotion in title, elimination of supervisory responsibilities, reduction of 20% in salary, plus evidence that employer was trying to force employee out, were sufficient to support constructive discharge claim). None of the factors noted in Bunge exists here. Peterson was not demoted. He was not badgered, harassed, humiliated or offered early retirement. He was not assigned to another supervisor or given menial or degrading work. A portion of his former sales area was moved to someone else and his title modestly changed. Under these circumstances, those events do not constitute a demotion or support a claim of constructive discharge.
Here, Plaintiff cannot satisfy the prima face case for age discrimination, because he cannot show he suffered an adverse employment action. Although the WRR reorganization may have resulted in a reduction in Peterson's income over the roughly nine months he remained after it took effect, there is no evidence that the restructuring did not have the potential to result in the same or even a higher income to Peterson. His job responsibilities were not materially altered, and a reasonable employee would not have felt compelled to resign due to those changes. There is no thus legal basis for the conclusion that Peterson suffered an adverse employment action, and since that is a necessary element of Plaintiff's prima facie case, summary judgment is GRANTED for Defendant.
SO ORDERED.