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finding a four-month time lapse could be sufficient (citing Garrett v. Constar Inc., No. Civ.A. 3:97-CV-2575, 1999 WL 354239, at *5 (N.D. Tex. May 25, 1999))
Summary of this case from Alva v. Tex. A&M Int'l Univ.Opinion
Civ. No. 3:98-CV-1352-M.
Filed March 30, 2000.
MEMORANDUM OPINION AND ORDER
Plaintiff sues for retaliation. Before the Court is Defendant's Motion for Summary Judgment on that claim, filed November 24, 1999, its brief in support thereof, and all responses and replies thereto.
Plaintiff originally brought a claim for both sex discrimination and retaliation, but has since voluntarily dismissed her sex discrimination claim.
Having considered the record, applicable law, and arguments of counsel in a hearing held in open court on March 13, 2000, for the reasons stated below, the Court GRANTS Defendant's Motion for Summary Judgment.
I. Background
Plaintiff Katherine G. Weeks ("Weeks") was employed by Defendant NationsBank ("the Bank") from November 1977 until February 24, 1997. During those nineteen years, Weeks held various positions with the Bank. On or about September 16, 1996, Weeks took a leave of absence so that she could tend to an urgent child-care issue. At that time, she was employed as the Credit Policy Administrative Manager in the Bank's Credit Policy Department.
Sue Tarantino ("Tarantino"), a bank employee in the Human Resources Department, served the personnel needs of the Credit Policy Department, as well as other areas of the Bank. In that capacity, Tarantino outlined the terms of Weeks' leave of absence in a memo dated September 12, 1996, which she forwarded to Weeks before she commenced her leave. Those terms provided that: 1) the leave was unpaid; 2) if Weeks returned to the Bank within three months of the first day of leave, the Bank would guarantee her a comparable position, which was defined as "equivalent grade, salary and geographic location"; 3) if Weeks' current position was filled, she would return to the Credit Policy Department in an overstaff position at her current salary until she could locate another position within the Bank; provided, however, if Weeks had not obtained a position within three months, the Bank would reevaluate her situation at that time; and 4) if Weeks returned to the Bank after three months, Weeks would remain on unpaid status while she and the Bank worked together to locate a position for her. In late September 1996, the Bank hired Paul Pettefer ("Pettefer") to fill Weeks' position.
On or about October 10, 1996, Weeks informed Tarantino that she would be returning to work on October 15, 1996. Before Weeks returned, Tarantino offered her an overstaff position in the Credit Policy Department, which Weeks declined because, according to Weeks, she would not feel comfortable in that position. Specifically, Weeks alleges she did not want to work for Vernon Kidd ("Kidd"), the new supervisor in the Credit Policy Department, because she was unhappy about the process he had used to fill her position and, furthermore, she did not want to train her replacement. According to Tarantino, Weeks complained that Kidd had replaced her with Pettefer, who Weeks believed was an unqualified male. Tarantino, understanding that comment to constitute at least an indirect complaint of discrimination by Weeks, referred her to Margaret "Peggy" Walker ("Walker"), the Bank's Manager of Equal Employment Opportunity and Affirmative Action. On that same day, Weeks contacted Walker to discuss her complaints, although Walker's deposition testimony reflects that she did not understand Weeks to be making a discrimination complaint. After these conversations, but before Weeks actually returned to the Bank, Walker and Tarantino decided to return Weeks to paid status while she remained at home and attempted to locate another position within the Bank.
Weeks' job search lasted from mid-October 1996 until she began working as a business manager at a church on February 10, 1997. The record establishes that in late December 1996, Jeri Leach ("Leach"), another manager at the Bank, offered Weeks a comparable job that she initially refused. On January 15, 1997, Tarantino sent Weeks a letter stating that if she did not find employment within the Bank by February 24, 1997, her employment would be terminated. The day after she received the letter, Weeks called Tarantino and Walker to see if she might be reconsidered for Leach's position. However, Weeks did not obtain the Leach position because Leach, who did not know of the complaint to Walker, decided not to hire Weeks for the position, having heard that she had allegedly divulged privileged salary information to an associate in Leach's area.
Weeks alleges that, during her search for jobs at the Bank, Tarantino retaliated against her by failing to find her a comparable position, failing to diligently look for a such a position and having a negative attitude toward Weeks after she lodged her complaint. Weeks further asserts that the Bank's allegedly non-retaliatory reason for terminating her, as set out in its summary judgment motion, differs from the reason proffered by it during discovery, and that this eleventh-hour "change" reveals the Bank's truly retaliatory motives. Finally, Weeks alleges that the Bank's retaliatory motive is evidenced by the fact that it did not have to terminate her, but could have instead returned her to unpaid status while she continued looking for another position.
These allegations form the basis of this lawsuit, in which Weeks has filed a retaliation claim against the Bank pursuant to Title VII of the Civil Rights Act of 1964, as amended. 42 U.S.C. § 2000e-3(a).
II. Summary Judgment Standard
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when the pleadings and record evidence show that no genuine issue of material fact exists and that, as a matter of law, the movant is entitled to judgment. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). A material fact is one that "might affect the outcome of the suit under the governing law" and a "dispute about a material fact is `genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In a motion for summary judgment, the burden is on the movant to prove that no genuine issue of material fact exists and if the movant fails to meet its burden, the motion must be denied, regardless of the nonmovant's response. Little, 37 F.3d at 1075. If, however, the movant does meet its burden, then the nonmovant must go beyond the pleadings and "designate specific facts showing that there is a genuine issue for trial." Id. The record before the court must be considered in the light most favorable to the nonmovant. Harrison v. Byrd, 765 F.2d 501, 504 (5th Cir. 1985).
III. Analysis and Decision
In Title VII retaliation cases, the Fifth Circuit has adopted the burden-shifting structure set out by the United States Supreme Court in Title VII disparate treatment cases. Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996) (adopting the test articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973)). Under this structure, the plaintiff must first prove a prima facie case of retaliation by a preponderance of the evidence. Garrett v. Constar Inc., No. Civ.A. 3:97-CV-2575, 1999 WL 354239, at *3 (N.D. Tex. May 25, 1999) (citing Tex. Dep't. of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)). In order to do so, the plaintiff must prove (1) she engaged in activity protected by Title VII; (2) an adverse employment action occurred; and (3) a causal link exists between the protected activity and the adverse employment action. Long, 88 F.3d 300, 304. Should the plaintiff make out her prima facie case, the burden of production shifts to the defendant to articulate a legitimate, non-retaliatory reason for the adverse employment action. Id. at 304-05. If the defendant introduces evidence which, if true, would permit the conclusion that the adverse employment action was non-retaliatory, the plaintiff must prove, by a preponderance of the evidence, either that 1) the non-retaliatory reason offered by the defendant is really just a pretext for retaliation or, since the burden of persuasion on the ultimate issue of retaliation remains with the plaintiff at all times, 2) the adverse employment action would not have occurred "but-for" the protected activity. See Burdine, 450 U.S. at 256; see also Long, 88 F.3d at 305 n. 4.
A. Prima Facie Case
Weeks makes out her prima facie case. The parties do not dispute that Weeks engaged in activity protected by Title VII, in that she complained to the Bank of what could amount to sex discrimination, and was terminated. They only dispute the third element — whether a causal link exists between Weeks' protected activity and her eventual termination.
The Fifth Circuit has emphasized that the standard of proof applicable to the "causal link" prong of the prima facie test is much less stringent than is the "but-for" test applicable to the ultimate question of whether the defendant unlawfully retaliated against the plaintiff. Long, 88 F.3d at 305 n. 4. In fact, as the Fifth Circuit has noted, "[c]lose timing between an employee's protected activity and an adverse action against [her] may provide the `causal connection' required to make out a prima facie case of retaliation," Swanson v. General Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997) (citing Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir. 1993)). Although "the mere fact that some adverse action is taken after an employee engages in some protected activity will not always be enough for a prima facie case," ( Swanson, 110 F.3d at 1188, n. 3), a time lapse of up to four months has been found sufficient to satisfy the causal connection for summary judgment purposes. Garrett v. Constar Inc., No. Civ.A. 3:97-CV-2575, 1999 WI., 354239, at *5 (N.D. Tex. May 25, 1999). In Garrett, the defendant decreased the plaintiff's pay four months after he was identified as an individual with knowledge of relevant facts in a co-worker's Title VII sexual harassment lawsuit and two months after he signed an affidavit, describing an incident he witnessed, in the co-worker's case. Id.
The record in the instant case establishes that Tarantino knew in mid-October 1996 of a complaint by Weeks, which the Bank treated as a sex discrimination complaint, and that, three months later in the January 15, 1997 letter, she set a date by which to terminate Weeks. In the Court's view, those facts, considered in light of all the undisputed facts, demonstrate the causal connection required to show a prima facie case.
B. The Bank's Non-Retaliatory Reasons
The burden thus shifts to the Bank to articulate a non-retaliatory reason for Weeks' termination. To do so, the Bank must offer evidence that, if believed, would permit the trier of fact to conclude that the termination was non-retaliatory. Long v. Eastfield College, 88 F.3d 300, 308 (5th Cir. 1996). In this case, it has done so.
In its summary judgment motion, the Bank asserts that it decided to end Weeks' employment on February 24, 1997, if she did not find a comparable position before then, solely for business reasons; specifically, it could no longer justify, or afford, to keep Weeks on the payroll, given that she had turned down a comparable position at the Bank and was still not actually working there. Weeks alleges that these "business reasons" are not supported by the evidence, but her claim is unpersuasive. In their respective depositions, Tarantino and Walker testified that they sent the January 15, 1997 letter to Weeks because, despite the Bank's efforts on her behalf and the job offers that the Bank claims resulted from those efforts, she had rejected the offered positions, at least one of which the parties agree was comparable. Tarantino and Walker reiterated this reason in their respective affidavits, in which they also stated that the Bank could not afford to keep Weeks on the payroll indefinitely when she was not working there. In the Court's view, these "business reasons" satisfy the Bank's burden of production, on the issue of non-retaliatory reasons, such that the Court is obligated to decide whether Weeks can show, by a preponderance of the evidence, that the Bank would not have terminated her "but-for" her sex discrimination complaint.
C. The "But-For" Test
In order to withstand the Bank's Motion for Summary Judgment, Weeks must show a "conflict in substantial evidence" by which the trier of fact could find that she would not have been terminated but for her sex discrimination complaint, Id. (citing Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir. 1996) (quoting Boeing Co. v. Shipman, 411 F.2d 365, 375 (5th Cir. 1969))). She has not done so.
As did the Court in Long, this Court focuses its analysis on the "but-for" test instead of a pretext analysis. The terms have been used interchangeably in several cases. See, e.g., Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122-23 (5th Cir. 1998); Shackelford v. Deloitte Touche, L.L.P., 190 F.3d 398, 407 (5th Cir. 1999).
Weeks alleges that Tarantino was intentionally dilatory in attempting to secure a comparable position for her, and that Tarantino failed to find her a comparable position. Specifically, Weeks asserts that 1) Tarantino did not distribute her resume until mid-November, one month after she had notified Tarantino that she planned on returning to the Bank; 2) she was only offered one overstaff position, which did not constitute a "comparable" position; and 3) she, not Tarantino, located the Leach position which she subsequently refused. Weeks also avers that Tarantino did not investigate Leach's allegation that Weeks had divulged privileged salary information to an associate in Leach's area. Weeks further asserts that the Bank did not offer to put Weeks on unpaid status while she continued to search for a position, but instead chose to set a date by which the Bank would terminate Weeks if she still had not located a position within the Bank.
The summary judgment evidence establishes that it was not Tarantino's sole responsibility to locate a position for Weeks and that Weeks was to participate in the endeavor. As to this joint responsibility, the record contains ample and undisputed evidence of Tarantino's efforts to secure a position for Weeks. Tarantino distributed a letter, along with Weeks' resume, to eleven other personnel generalists in mid-November, 1996, asking that anyone knowing of potential opportunities for Weeks contact her. Tarantino had conversations regarding Weeks' job search with six personnel generalists between the end of 1996 and the beginning of 1997. During the same time period, she had conversations about specific positions with at least two of these six individuals. At best, Weeks' proof establishes that because Tarantino did not distribute Weeks' resume until one full month after she had informed Tarantino of her desire to return to work, Tarantino might have been somewhat lackadaisical in commencing her efforts on Weeks' behalf. The Court concludes that the mere tardiness of the effort does not establish the requisite "but-for" link. Weeks asserts that Tarantino was not only tardy in her efforts, but also negative in her attitude, and that evidence of Tarantino's attitude establishes the requisite "but-for" link. To this end, Weeks has introduced deposition testimony that, during the job search, Tarantino became exasperated with her and that Tarantino had, at least on one occasion, threatened to take Weeks off the payroll if she did not become more cooperative. Although this evidence indicates that Tarantino was frustrated with Weeks, the Court holds, as a matter of law, that such evidence is not sufficient to satisfy the necessary "but-for" link. See, e.g., Grimes v. Tex. Dept. of Mental Health, 102 F.3d 137, 143 (5th Cir. 1996) ("[E]vidence of mere dislike is not enough to prove pretext under Title VII."). The facts establish that the Bank complied with the terms of the September 12, 1996 memo, outlining the terms of Weeks' leave of absence, which was prepared before Weeks' discrimination complaint was made. Finally, as to the lack of investigation by Tarantino of the salary incident, the Court finds that Tarantino had no duty to do so and since it was Leach who determined not to hire Weeks for the position in her department, and she had no knowledge of the discrimination complaint, the absence of such an investigation by Tarantino does not satisfy the "but-for" test.
The Court searched the evidence for proof that the Bank violated internal policies or procedures regarding its handling of the Weeks job search. Such evidence, or the lack thereof, has been central to the Fifth Circuit's analysis of similar cases. See Long, 88 F.3d at 308-09; Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1123 (5th Cir. 1998); Casarez v. Burlington Northern/Santa Fe Co., 193 F.3d 334, 339 (5th Cir. 1999). The plaintiff in Sherrod had worked as an American Airlines flight attendant for almost twenty years when she re-injured her neck, having injured it on the job two years before. Sherrod, 132 F.3d at 1116. American Airlines placed her on sick leave for a term of five years. Id. Three years into the leave, the plaintiff sought reinstatement as a flight attendant, but was denied such after two doctors, including the plaintiff's personal physician, found that her neck injury placed significant lifting limitations on her. Id. At the end of the plaintiff's sick leave, American Airlines' Personnel Department assisted the plaintiff in looking for another position with the airline. Id. The plaintiff interviewed for one position, but was turned down. Id. When the airline later offered her another interview for the same position, she refused it. Id. Two months later, the airline terminated the plaintiff, citing the expiration of her five year sick leave and her refusal to interview for a position. Id. Almost two years later, the plaintiff "applied for another position within American but learned that she was ineligible for rehire for any position." Id. The district court granted the airline's motion for summary judgment on the plaintiff's claim of unlawful retaliation under the Age Discrimination in Employment Act and the American with Disabilities Act. Id. at 1117. The Fifth Circuit affirmed, stating:
Although [the plaintiff] produced unsubstantiated evidence that American does not have a policy of terminating employees for declining interviews or listing former employees as ineligible for rehire, this evidence is not sufficient to overcome American's legitimate, nondiscriminatory explanation for the action it took against [the plaintiff]. American refuted any hint of retaliation by producing evidence that [the plaintiff] declined to interview for any position other than flight attendant, for which she had already received five years of disability pay due to medical inability to perform the duties.Id. at 1123. In contrast, the Fifth Circuit reversed a district court's grant of summary judgment when the proof established, among other things, that the African-American plaintiff's termination was "in tight proximity" to her protected activity and that, unlike the plaintiff in that case, a similarly situated white employee was not given poor work evaluations even though she had engaged in exactly the same activity as did the plaintiff. Shackelford v. Deloitte Touche, L.L.P., 190 F.3d 398, 409-10 (5th Cir. 1999).
Both the plaintiff and her white co-worker complained about each other to their supervisors, but only the plaintiff received poor reviews for interpersonal skills. Id. at 409 n. 10.
In the instant case, the record establishes that the Bank complied with the September 12, 1996 letter, which described the terms of Weeks' leave of absence, in that it offered Weeks an overstaff position in the Credit Policy Department as well as a comparable position in Leach's area. Under the circumstances of her return, the terms of the leave did not at all require the Bank to keep Weeks on unpaid status while she continued her job search. The Bank's actions are within the guidelines set out in the letter and Weeks introduced no evidence of any other policy or standard procedure from which the Bank deviated in this regard.
Finally, Weeks asserts that the Bank's proffered non-retaliatory reasons, as set out in its Motion for Summary Judgment, differ from the non-retaliatory reasons set out in the deposition evidence, and that the disparity reveals the Bank's truly retaliatory motive so as to establish the necessary "but-for" link. However, the evidence does not support this allegation. As noted above (see supra part III.B). the depositions and affidavits of Tarantino and Walker, collectively, identified essentially the same reasons for Weeks' termination as are stated in the Bank's Motion for Summary Judgment, and thus cannot satisfy the "but-for" link.
IV. Conclusion
For the reasons stated above, the summary judgment evidence establishes, as a matter of law, that Plaintiff has not satisfied the requisite "but-for" link. Defendant's Motion for Summary Judgment is, therefore, GRANTED and Plaintiff's retaliation claim is DISMISSED WITH PREJUDICE, with costs taxed in favor of Defendant.
SO ORDERED.