Opinion
No. 3:00-CV-0340-D
February 5, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court, Defendants' Motion for Summary Judgment has been referred to the United States Magistrate Judge for consideration. The findings, conclusions and recommendation of the Magistrate Judge follow:
I. Procedural History
The District Court previously narrowed Plaintiff's claims. Defendants now seek summary judgment on Plaintiff's claims that (1) her employer, Stein Mart, Inc., discriminated against her on the basis of her age, in violation of the ADEA; (2) retahated against her for filing an age-based EEOC charge; and (3) Sullivan defamed her by giving defamatory references to prospective employers.
On September 7, 2000, the District Court dismissed Plaintiff's claims against Leslie Sullivan and Cassandra Stokes, individually, under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., on the basis the individuals are not employers who can be held liable under Title VII. On September 22, 2000, the District Court dismissed Plaintiffs Title VII claims (including retaliation) and her common law retaliation claim.
Defendants claim that Plaintiff fails to make out a prima facie case of age discrimination with regard to her ADEA claims, or, if she does, that their uncontroverted summary judgment evidence demonstrates legitimate, non-discriminatory and non-retaliatory reasons for their actions. (Motion for Summary Judgment at 2.) Defendants' motion is supported by a brief and appendix, filed July 2, 2001. Plaintiff responds that (1) she makes a prima facie case of age discrimination, retaliation, and defamation with respect to each respective claim, and (2) she can establish that Defendants' reasons for their actions are not legitimate and non-discriminatory. (Plaintiffs Response at 1.) Plaintiff's response is supported by an Appendix, filed July 17, 2001, and a memorandum of law, filed August 6, 2001.
Defendants filed a reply brief which they attempted to support with new evidence contained in an appendix. The District Court struck Defendants' August 21, 2001 reply appendix and their August 23, 2001 amended appendix to the reply brief and ordered the clerk of court to unfile them from the record. (Orders of August 23 and 27, 2001). Accordingly, the Court will not consider Defendants' newly presented evidence.
II. Background
Stein Mart employed Plaintiff, who was fifty-nine years old, as a Full-Time Sales Associate in the Ladies' Department at Stein Mart #123 from May 20, 1998 until June 1, 1999. Stein Mart terminated her for failing to call in or report for work. Leslie Sullivan, who was thirty-two years old when Plaintiff was hired, was the Store Manager during Plaintiffs employment. Plaintiff claims Stein Mart (1) denied her promotion to three management positions because of her age; (2) fabricated non-discriminatory reasons; (3) exaggerated her altercations with co-workers, blaming her (the victim); (4) constructively discharged her; and (5) defamed her with two prospective employers. The Court must consider whether Plaintiff has adduced sufficient summary judgment evidence to show that there is a genuine issue of material fact for trial.
III. Standard of Review
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed R. Civ. P. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986). The proper inquiry for the trial court is whether there are any "genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id The moving party is entitled to summary judgment when the nonmoving party fails to make a sufficient showing with respect to an element of its claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The trial court must consider all of the properly submitted summary judgment pleadings and documents and construe them in the light most favorable to the non-moving party. Id. at 323.
IV. Age Discrimination
Direct evidence of discrimination is rare. For this reason, courts use an evidentiary procedure devised by the Supreme Court that allocates the burden of production and establishes an orderly presentation of proof in discrimination cases. Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 40 (5th Cir. 1996); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). This burden shifting framework applies to ADEA cases. Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 n. 4 (5th Cir. 1993) (noting that "The Fifth Circuit . . . has adopted the St. Mary's procedural roadmap for ADEA cases."). A plaintiff must first establish a prima facie case of discrimination. Walton v. Bisco Indus., Inc., 119 F.3d 368, 370 (5th Cir. 1997). If she succeeds, the defendant must articulate some legitimate, nondiscriminatory reason for the challenged employment action. Id. This burden is one of production, not of proof. If the defendant meets its production burden, the plaintiff must adduce evidence that would permit a reasonable trier of fact to find that the articulated reason is a pretext for intentional discrimination. See St. Mary's Honor Ctr., 509 U.S. at 506-11; Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 992-93 (5th Cir. 1996) (en banc); Tutton v. Garland Indep. Sch. Dist., 733 F. Supp. 1113, 1116 (N.D.Tex. 1990) (Fitzwater, J.) (holding that at the summary judgment stage, a plaintiff must present a fact issue that requires resolution by trial). To survive a summary judgment, a plaintiff must present evidence which, considered as a whole, creates (1) a fact issue regarding whether the employer was actually motivated by each of its stated reasons and (2) a reasonable inference that age was a determinative factor with respect to the complained-of actions. Walton, 119 F.3d at 370. See St. Mary's Honor Ctr., 509 U.S. at 515 (holding that to prove that a reason is a pretext for discrimination, a plaintiff must show both that the reason was false, and that discrimination was the real reason). For a jury to reasonably infer discriminatory intent, the plaintiffs rebuttal evidence must be substantial. Rhodes, 75 F.3d at 994.
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993).
Failure to Promote
Generally, a prima facie ADEA case of failure to hire or promote consists of evidence that the plaintiff: (1) was within the protected class and was adversely affected; 2) was qualified for the position; and (3) the job remained open or was filled by someone younger. Bienkowski v. American Airlines, Inc., 851 F.2d 1503 (5th Cir. 1988). In her EEOC complaint, Plaintiff claimed she was denied a promotion to a position of "Manager Trainee." In its response, Stein Mart pointed out that in Plaintiff's letter to Ms. Sullivan discussing her career goals, she asked what she needed to do to qualify for the position of Ladies' Department Manager, rather than "Manager Trainee." In her Complaint, Plaintiff claims Stein Mart discriminated against her because of her age by failing to promote her to Accessories Department Manager, Linens/Children's Department Manager, and Ladies' Department Manager. Although Plaintiffs response to Defendants' Motion for Summary Judgment addresses only Stein Mart's failure to promote her to Ladies' Department Manager, the Court will consider the evidence as a whole with respect to the promotions to Accessories Department Manager, Linens/Children's Department Manager, and Ladies' Department Manager.
In her complaint, Plaintiff alleges she was denied three promotions, and that the Gifts' Department Manager Position was unfilled when she was transferred to the Men's Department. (Complaint ¶ 45; Def. App. at 11.) In her deposition, she testified the three positions she was denied were Accessories Department Manager, Linens /Children's Department Manager, and Ladies' Department Managers. Plaintiff does not claim she should have been promoted to Gifts' Department Manager. If she intended make that claim, although it is not properly alleged, she has not made a prima facie case with respect to that position. In her response to Defendants' motion for summary judgment, Plaintiff apparently concedes she cannot succeed on her failure to promote claims with respect to the Accessories Department Manager and Linens /Children's Department Manager because her response to the summary judgment motion mentions only Stein Mart's failure to promote her to Ladies' Department Manager.
Accessories Department Manager
On September 14, 1998, Stein Mart promoted Melissa Omernick, who was born on July 19, 1963, to the Accessories Department Manager position. Stein Mart contends that Plaintiff failed to make out a prima facie case of discrimination with respect to the Accessories Department Manager position because she did not apply for the promotion. Generally, a plaintiff who alleges discrimination with respect to a promotion must actually apply for the position. See, e.g., Shackelford v. Deloitte Touche, L.L.P., 190 F.3d 398, 406 (5th Cir. 1999). Nevertheless, when an employer promotes another without notifying an aggrieved individual of an opening, a plaintiff can still make out a prima facie case of discrimination, especially when a relatively informal system of promotion exists. See Bernard v. Gulf Oil Corp., 841 F.2d 547, 570 (5th Cir. 1988).
According to Plaintiff, when she was hired, Stein Mart told her she would be given management training and considered for promotions when positions became available. (Telkamp 65:16-18; 67:15-17; Def. App. at 39, 41). Plaintiff talked to the Ladies' Department Manager (Deborah Creashak) about wanting to be promoted. (Telkamp 78:11-25; Def. App. at 47.) Creashak knew she was generally interested in advancement. (Telkamp 269:20-270:7.) Plaintiff did not apply for the Accessories Department position because she did not know it was available. (Telkamp 269:20-270:7; Def. App. at 125-26.) A reasonable trier of fact could find that Plaintiff would have applied had she known the position was open. Accordingly, the Court will assume Plaintiff has made out a prima facie case of failure to promote.
A prima facie case raises an inference of unlawful discrimination. Rhodes, 75 F.3d at 992. The burden of production then shifts to the defendant to proffer a legitimate, nondiscriminatory reason for the challenged employment action. Id. The defendant may meet this burden by presenting evidence that "if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action." Id (quoting St. Mary's Honor Ctr. 509 U.S. at 506-08). Stein Mart has articulated a legitimate, non-discriminatory reason for promoting Omernick, i.e., she was more qualified for the manager's position. Plaintiff had no management experience when Stein Mart hired her. (Telkamp 51 :24-56; 12; Def. App. at 32-36.) Omemick, on the other hand, had run her own painting business for approximately two years. (Def. App. at 181-82.) Sullivan considered Omemick's having run her own business to be management experience and valued the fact that she had mastered billing, accounts payable, time-management, and other business details. (Sullivan 137:5-138:9; Def. App. at 143-44.) Additionally, Plaintiff did not have a high school diploma, whereas Omernick had three years of college. If believed by the trier of fact, these reasons would support a finding that unlawful discrimination was not the cause of the adverse employment decision. Accordingly, the presumption raised by Plaintiffs prima facie case disappears. Rhodes, 75 F.3d at 992.
Next, the plaintiff is given the opportunity to demonstrate that the defendant's articulated rationale is merely a pretext for discrimination. Id. If Plaintiff can raise a genuine issue of material fact as to whether she has established pretext, that will suffice to avoid summary judgment. No additional evidence of discrimination is needed to defeat the summary judgment motion. See id at 993 ("In tandem with a prima facie case, the evidence allowing rejection of the employer's proffered reasons will often, perhaps usually, permit a finding of discrimination without additional evidence."). A genuine issue of material fact exists when evidence shows the plaintiff was "clearly better qualified" than the younger employee. Bodenheimer, 5 F.3d at 959. However, this evidence must be more than merely subjective and speculative. See Molnar v. Ebasco Constructors, Inc., 986 F.2d 115, 119 (5th Cir. 1993); Elliott v. Group Medical Surgical Serv., 714 F.2d 556, 564 (5th Cir. 1983).
As evidence of pretext, Plaintiff contends she was hired two months before Omemick. Stein Mart had no seniority policy with respect to promotions. (Hawkins Aff. at ¶ 5; Def. App. at 206.) Moreover, an "attempt to equate years served with superior qualifications . . . [is] unpersuasive." Bodenheimer, 5 F.3d at 959. Obviously, work experience is one component of defining who is more "qualified." Nevertheless, experience alone will not suffice to raise a fact question as to whether one person is clearly more qualified than another. Bodenheimer, 5 F.3d at 959. Plaintiff's summary judgment evidence does not contain sufficiently specific reasons to support her subjective opinion that she was more qualified than Omernick. Plaintiff failed to raise a genuine issue of material fact with respect to her claim that Stein Mart's proffered reason for promoting Omemick was a pretext for unlawful age discrimination.
Linens/Children's Department Manager
Stein Mart promoted Donna Berry to manager of the Linens Department on January 10, 1999. (Def. App. at 183.) Berry had worked as a Ladies' Department Sales Associate from October 27, 1998 until she was promoted. On February 7, 1998, she was given additional duties as the manager of both the Linen's and the Children's Departments. (Def. App. at 183). Plaintiff did not apply for the position because she was not aware it was available. (Complaint ¶ 40; Def. App. at 10.) She knew nothing of Berry's qualifications for the position (Telkamp 83:13-20; Def. App. at 48) and did not complain when Berry was selected. (Telkamp 128:18-20; Def. App. at 63.)
Assuming Plaintiff has made out a prima facie case of failure to promote, Stein Mart has proffered a legitimate non-discriminatory reason for promoting Berry rather than Plaintiff. Berry had retail management experience and had been hired with the expectation she would go into management. (Sullivan 151:9-152:25; Def. App. at 145-46.) Plaintiff had no retail management experience. Moreover, at the time Berry was promoted, Plaintiff had experienced difficulties with her co-workers, had received a final written warning, and had been suspended for three or four days. Plaintiff's only evidence that she was more qualified than Berry are her conclusory allegations that (1) she had shown management abilities too (Telkamp 85:12-13; Def. App. at 50.), (2) "had not had any disciplinary problems," (3) ". . . was training [Berry]," and (4) "was a very dependable worker." (Telkamp 85:3-5; Def. App. at 48.) Plaintiff "felt like she had proven [herself], that she was not a troublemaker." (Telkamp 127:18-20; Def. App. at 62.) Plaintiff failed to adduce summary judgment evidence to show that she was more qualified for the position than Berry. Stein Mart has met its burden of producing legitimate, nondiscriminatory reasons for promoting Berry rather than Plaintiff. Plaintiff has not introduced sufficient evidence to raise a genuine issue of material fact with respect to the issue of pretext.
Ladies' Department Manager
Plaintiff claims Stein Mart should have made her manager of the Ladies' Department in January, 1999. (Complaint at ¶ 18; Telkamp 129:5; Def. App. at 7, 64.) Plaintiff told Sullivan she wanted to be the Ladies' Department Manager when the position became available in January, 1999. (Telkamp 129:3-5; Def. App. at 64.) The Ladies' Department Manager position is a Department Manager "1" position. Plaintiff was a Sales Associate. Sales Associates were eligible for Department Manager "2" positions, but not for Department Manager "1" positions. (Hawkins Aff. ¶ 4. Def. App. at 205-206.) Accordingly, Plaintiff has failed to make a prima facie case by showing that she was eligible for the position. Moreover, even if Plaintiff had been eligible, Stein Mart did not fill the open position. Instead, Cassandra Stokes, Assistant Store Manager, managed the Ladies' Department from January, 1999 until after Plaintiff left Stein Mart's employment on June 1, 1999. (Telkamp 139:9-12; Def. App. at 69.)
Plaintiff contends that Stein Mart was "grooming a younger employee, Mekdes Sebsebie, to become the Ladies' Department Manager." Nevertheless, Sebsebie was not the Ladies' Department Manager while Plaintiff was employed. (Telkamp 139:3-8; Def App. at 69, 170.) Accordingly, Plaintiff's comparisons of her own qualifications to those of Sebsebie are not material. Stein Mart is entitled to judgment as a matter of law on Plaintiffs claim of age discrimination based upon Stein Mart's failure to promote her to Ladies' Department Manager.
Disparate Treatment with Respect to Pay
Plaintiff claims that she was paid less than similarly-situated younger employees because of her age. (Complaint ¶ 46; Def. App. at 11). Plaintiff did not raise the pay issue in her EEOC charge. (Def. App. at 14.) In the administrative proceeding Stein Mart responded to charges that it failed to promote Plaintiff, subjected her to disparate discipline, and constructively discharged her because of her age. (Def. App at 184.) The record contains no evidence that Plaintiff exhausted her administrative remedies by presenting a disparate pay issue to the EEOC.
Nevertheless, the Court will assume that Plaintiffs EEOC charge alleging disparate treatment was broad enough to include a claim of disparate pay. To establish a claim of disparate treatment, a plaintiff must show that her employer gave preferential treatment to a younger employee under "nearly identical circumstances." Plaintiff does not show she was similarly situated to the younger, more recently hired employees to whom she compares herself. Plaintiff has not shown that a genuine issue of material fact exists with respect to a disparate treatment claim. See Ross v. University of Texas at San Antonio, 139 F.3d 521, 526-27 (5th Cir. 1998) (holding that higher pay of younger, more recently hired assistant and associate professors was not sufficient to establish age discrimination where employer articulated market forces and performance-related issues as a basis for pay disparity). Plaintiff was hired at $6.50 an hour. Sullivan testified that shortly after Plaintiff was hired, she determined that the market demanded higher rates of pay for Sales Associates. Associates hired (or rehired) after Plaintiff was hired received higher starting rates of pay. (Sullivan 156:22-158:7; Def. App. at 147-149.) Plaintiff has adduced no evidence to rebut this legitimate business reason for any disparities in pay.
Harassment by Co-workers and Disparate Discipline
Plaintiff also argues that Stein Mart allowed younger workers to harass her, subjected her to disparate discipline, always took the side of the younger worker when she was involved in a dispute, set her up for failure, and blamed her, the victim. Plaintiff supports these assertions only with her own beliefs, complaining that Stein Mart should have accepted her version of the facts concerning various incidents with co-workers. Plaintiff details each incident claiming that, in each altercation, she was right and the other employee and management were wrong.
Plaintiff claims she was not "rude and demeaning" to another employee, did not "verbally and physically abuse" another employee and did not "confront another employee in a loud voice over the issue of the fitting room." The validity of Plaintiffs version of the facts is not material. In disparate treatment situations, the question is whether the employer reasonably believed what the other employee said and acted on it in good faith, or, to the contrary, did not actually believe the co-employee but instead used the incident as a pretext for an otherwise discriminatory employment action. Waggoner v. City of Garland, Texas, 987 F.2d 1160, 1165 (5th Cir. 1993). Plaintiff adduced no evidence that Stein Mart management did not in good faith believe the other employees but used the situations in bad faith to discriminate against Plaintiff on the basis of her age. Plaintiff admits that she was involved in numerous incidents with co-workers. Although Plaintiff disagreed with and disputed, both orally and in writing, management's handling of the incidents, Plaintiffs beliefs are ineffective to rebut the employer's fact-based judgment that Plaintiff had difficulty getting along with her fellow workers. See Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 152 (5th Cir. 1995); Little v. Republic Refining Co., 924 F.2d 93, 94 (5th Cir. 1991); see also Waggoner, 987 F.2d at 1165 ("The ADEA was not intended to be a vehicle for judicial second-guessing of business decisions, nor was it intended to transform the courts into personnel managers") (internal quotations omitted). Plaintiff failed to submit competent summary judgment evidence sufficient to rebut her employer's non-discriminatory explanation for its handling of the various disputes in which Plaintiff was involved.
Constructive Discharge
To establish a constructive discharge, a plaintiff must prove that her employer made her working conditions so intolerable that a reasonable person would feel compelled to resign. Barrow v. New Orleans Steamship Assoc., 10 F.3d 292, 297 (5th Cir. 1994). Important considerations are whether the employee has been subject to (1) demotion; (2) salary reduction; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to a younger supervisor; or (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation. Barrow, 10 F.3d at 297. This test is objective; the question is not whether the employee felt compelled to resign, but whether a reasonable employee would have felt compelled to resign. Guthrie v. J.C. Penney Co., Inc., 803 F.2d 202, 207 (5th Cir. 1986).
Plaintiff complains that she was assigned to work under a younger supervisor, Mekdes Sebsebie. In support of this assertion, Plaintiff claims Sebsebie told an employee from another department that "she [Sebsebie] thought she was the new manager, "and the employee from the other department thought she saw Sebsebie doing a manager's job (inventory). (Rangel Dep. 7:5-25, 8:1-8, 9:7-9; Pl's App. at 6-8.) Plaintiff states that Sebsebie complained about Plaintiff to an Assistant Manager. Plaintiff alleges in her complaint that Plaintiff then reported Sebsebie to Ms. Stokes, Acting Manager of the Ladies' Department. The record contains no evidence that Stein Mart assigned Plaintiff to work under Mekdes Sebsebie.
Plaintiff claims that she was "slandered, badgered, harassed and humiliated by Stein Mart in an effort to encourage her resignation." Plaintiff was issued a "Final Warning" for verbally and physically abusing a fellow employee. Plaintiff makes the conclusory assertion that Stein Mart "fabricated" this incident. However, Stein Mart's investigation, based upon the account of an Assistant Manager who witnessed the incident, found that Plaintiff grabbed another employee's arm and yelled at her. (Telkamp 90:6-13; 95:17-20; Def. App. at 52, 55, 131, 132.) Plaintiff described the incident in a letter she appended to the written Final Warning. (Def. App. at 166-67.) She admitted that she yelled at the fellow employee and lost her temper. (Id.) At the time of the final warning, she did not deny grabbing the fellow employee's arm. (Id.) Moreover, employees who were younger than Plaintiff also received discipline. (Def. App. at 169-70; 175; 200-202.)
Sebsebie received counseling as a result of the incident on May 3, 1999. She did not receive a Final Warning because it was her first disciplinary proceeding. Accordingly, she was not similarly situated to Plaintiff who had previous disciplinary complaints. Pat Harris received counseling in the form of a strong warning on June 1, 1999 for her confrontation of Plaintiff and counseling on June 26, 1999. Apryl Solis received a Final Warning on August 17, 1998.
On May 3, 1999, Plaintiff was given another "Final Warning" after another confrontation with a fellow employee and told she would be assigned to the Men's Department, but Plaintiff refused the assignment. (Telkamp 196:25-197:7.) Plaintiff took a medical leave of absence from May 3-11, 1999. Plaintiff returned to work on May 11, 1999 in the Ladies' Department. (Telkamp 211:15-16; Def. App. at 109.) She worked there until May 26, 1999, but she failed to report for work after that date. She had seen a work schedule "transferring [her] to the men's department without addressing [her] issues." (Telkamp 242:6-9; Def. App. at 123.) She did not call Stein Mart or tell them she would be absent. She was considered a "no call/no show" on May 29, 31, and June 1, 1999. Stein Mart terminated her employment for job-abandonment on June 5, 1999, effective June 1, 1999. (Def. App. at 174.) Plaintiff admits that her pay, hours, and status would have been the same in the Men's Department and that she never tried working in the Men's Department (Telkamp 197:10-15; 211:7-11; 229:19-230:20; 237:13-238:6; 240:12-241:10; Def. App. at 104; 109, 113-14; 118-19; 121-22.)
When Sullivan first transferred Plaintiff to the Men's Department and Plaintiff refused the transfer, Sullivan told Plaintiff she could not handle the Ladies' Department. Plaintiff interpreted this remark to be an age-based comment. (Telkamp 198:15-199:5; Def. App. at 105-06.) The record does not disclose why Plaintiff was not charged with insubordination for refusing the transfer, but Sullivan apparently let the incident go and then later decided to schedule Plaintiff to work in the Men's Department. Plaintiff points to the testimony of the Gifts' Department Manager, Sylvia Rangel, who stated Sullivan said in a management meeting, "Move [Plaintiff] over to [the Men's Department] and maybe she will get tired of that job, of that position there." Rangel thought that the Men's Department was harder and more stressful than the Ladies' Department. (Rangel Dep. 24:5-25, 25:1-10, Pl's App. 21-22.) However, in deciding constructive discharge cases, the fact finder must focus on the employee's state of mind; the employer's intent in creating the alleged intolerable condition is irrelevant at this stage. See Shawgo v. Spradlin, 701 F.2d 470, 481 (5th Cir. 1983); Junior v. Texaco, 688 F.2d 377, 379-80 (5th Cir. 1982); Bourque v. Powell Electrical Manufacturing Co., 617 F.2d 61, 65 (5th Cir. 1980).
Plaintiffs subjective feelings that (1) she was assigned to work under a younger supervisor and (2) slandered, badgered, harassed and humiliated by Stein Mart in an effort to encourage her resignation, all because of her age, do not raise a genuine issue of material fact that warrants submitting her constructive discharge claim to the jury. Viewing the facts most favorably to Plaintiff, the Court cannot conclude that, due to Plaintiff's age, Stein Mart made Plaintiffs working conditions so intolerable that a reasonable person in her position would have been compelled to resign.
Transfer To Another Department
Plaintiff claims that Stein Mart discriminated against her because of her age by transferring her to the Men's Department. (Complaint ¶ 41. Def. App. at 10.) Stein Mart records show Plaintiff was "not permanently transferred" to the Men's Department but scheduled to work there June 1, 2 and 5 and to work in the Ladies' Department May 29, 31, and June 3. (Def. App. at 189.) The determination of whether an employee has suffered an adverse employment action in an age discrimination case must be based upon an objective standard. See Doe v. Dekalb County Sch. Dist., 145 F.3d 1441, 1443 (11th Cir. 1998). "A purely lateral transfer, that is, a transfer that does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action. A transfer involving no reduction in pay and no more than a minor change in working conditions will not rise to such level, either. Otherwise every trivial personnel action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit." Burger v. Central Apartment Management, Inc., 168 F.3d 875, 879 (5th Cir. 1999) (quoting Williams v. Bristol-Meyers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1999). Thus, "not everything that makes an employee unhappy is an actionable adverse action." See Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996).
Plaintiff considers the proposed temporary transfer to the Men's Department to be the "ultimate humiliation." She claims "it was tantamount to being banished like a naughty child to another room, until Plaintiff stopped pouting." (Plaintiffs Aug. 6, 2001 Memorandum at 8.) The prospect of a transfer made Plaintiff unhappy. Nevertheless, considered objectively, the proposed transfer was a lateral one that did not rise to the level of an adverse employment action
In this case, Stein Mart is entitled to summary judgment on Plaintiffs claim with respect to the transfer. Plaintiff's proof that Stein Mart discriminated against her by transferring her based upon her age fails because (1) she did not accept the transfer, (2) under an objective standard of review, the transfer did not constitute an adverse employment action, and (3) Plaintiff presented no evidence linking the transfer to her age.
V. Retaliation
In a September 22, 2000 order, the District Court dismissed Plaintiffs Title VII-based retaliation claim, but did not dismiss any ADEA-based retaliation claim that Plaintiff intended to assert. The Court explained that an ADEA-based retaliation claim may be brought when the plaintiff is complaining that her employer retaliated against her for filing the EEOC charge itself.
Plaintiff alleges Stein Mart retaliated against her in that Sullivan "maliciously defamed Plaintiff by providing untrue and damaging references to prospective employers, thus preventing Plaintiff from finding a new job." (Complaint, ¶ 48; Def. App. at 11.) To establish a prima facie case of retaliation, Plaintiff must show: (1) she engaged in an activity protected by the ADEA; (2) she suffered an adverse employment action; and (3) a causal connection exists between the protected activity and the adverse action. Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996). Plaintiff need not prove that the protected activity engaged in was the sole factor for the adverse employment action in order to establish a causal connection between the two. Id. at 305. The McDonnell Douglas framework applies to retaliation claims as well as discrimination claims, so that once a plaintiff establishes a prima facie case of retaliation, the burden shifts to the defendant to offer legitimate, non-discriminatory reasons for the adverse employment action. Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998); Long, 88 F.3d at 304. The plaintiff must then submit sufficient evidence that would permit the trier of fact to determine that the defendant's proffered reasons are pretextual. Sherrod, 132 F.3d at 1122. The Fifth Circuit Court of Appeals has held that once a retaliation claim reaches the pretext stage, "[t]he plaintiff must reveal a conflict in substantial evidence on the ultimate issue of retaliation in order to withstand a motion for summary judgment." Id. at 1122 (citing Rhodes, 75 F.3d at 993). At that point, the plaintiff must prove "but-for" causation, a burden higher than the "causal link" burden involved in presenting a prima facie case. Sherrod, 132 F.3d at 1122 (citing Long, 88 F.3d at 305 n. 4).
The term employee as used in the anti-retaliation statutes can include a former employee. Robinson v. Shell Oil, 519 U.S. 337, 348 (1997). To prove an employer's blacklisting has prevented the ex-employee from working elsewhere, the ex-employee must prove that a particular employer would have hired her but for her former employer's retaliatory comments concerning her involvement in the protected activity. Sherman v. Burke Contracting, Inc., 891 F.2d 1527, 1538 n. 2 (11th Cir. 1990) (concurring opinion).
The record in this case is devoid of evidence that someone from Bed Bath Beyond or Borders Book Store contacted Stein Mart to check Plaintiffs references. (Sullivan 166:13-14; Stokes 33:1-11; Def. App. at 150, 160; Telkamp 40:21-41; Def. App. at 26-27.) Plaintiff is unable to show why Bed Bath and Beyond failed to hire her. (Telkamp 40:9-13; Def. App. at 26.) Stokes and Sullivan deny Plaintiffs unsupported assertion that they gave her a negative reference. (Sullivan 166:13-14; Stokes 33:1-11; Def. App. at 150, 160.) In response to subpoenas, neither Bed Bath Beyond nor Borders produced any record of a reference from Stein Mart regarding Plaintiff. (Hawkins Aff. at ¶ 10; Def. App. at 207.)
In response to Stein Mart's quest for summary judgment on Plaintiffs defamation and retaliation claims, Plaintiff claims that Stein Mart's policy of providing only "dates of employment" and "last position held" to prospective employers "defamed her by innuendo." She further claims that the very existence of the libelous documents (her employment records) puts her at risk. She points to no evidence in the record that would satisfy the requirements for a prima facie case of retaliation. Accordingly, Stein Mart is entitled to judgment as a matter of law on Plaintiff's retaliation claim.
VI. Plaintiff's Claims Against Sullivan
Plaintiff claims Sullivan retaliated against her because she filed an age discrimination claim with the EEOC. She alleges Sullivan maliciously defamed her by providing untrue and damaging references to prospective employers, thus preventing Plaintiff from finding a new job. Plaintiff also claims Sullivan committed perjury by slandering Plaintiff in testimony before the Texas Workforce Commission (TWC) and that she altered documents in the record presented to the TWC.
The Court has previously determined that the record contains no evidence that Sullivan gave negative references to prospective employers. Even if she had done so, Texas law provides a qualified privilege for former employers after the plaintiff consents to, authorizes, invites or procures the contact. See Saucedo v. Rheem Manufacturing Co., 974 S.W.2d 117, 120-122 (Tex.App. 1998); Smith v. Holley, 827 S.W.2d 433, 436 (Tex.App. 1992). Sullivan's statements to the Texas Workforce Commission in response to Plaintiffs application for unemployment compensation are privileged. Holley, 827 S.W.2d at 436-37. Plaintiff has been given the opportunity to state her best case, but she fails to state a claim against Sullivan.
Recommendation
Plaintiff has not adduced any competent evidence that Stein Mart discriminated against her because of her age. Her evidence is insufficient to support an inference of age discrimination, retaliation, or defamation. Stein Mart and Sullivan are entitled to judgment as a matter of law. The Court should grant Defendants' motion for summary judgment.