Opinion
Civil Action No. 3:01-CV-2277-N
September 29, 2003
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant's motion for summary judgment on Plaintiffs claims for race discrimination and intentional infliction of emotional distress. Defendant Parker College of Chiropractic ("Parker College") alleges that summary judgment is appropriate as to all claims, because (1) Plaintiff Lisa Whitby ("Whitby") alleged only discriminatory discharge in her EEOC charge, thus barring her from raising any other claims for relief under Title VII; (2) Whitby fails to establish her prima facie case, as required by Title VII; (3) Parker College has articulated a legitimate, non-discriminatory rationale for Whitby's termination, and Whitby cannot establish a triable issue regarding pretext; and (4) Whitby cannot establish any of the elements required for a claim of intentional infliction of emotional distress under Texas law.
Upon review of Whitby's allegations and the applicable law, the Court holds that Whitby has established her prima facie case as to discriminatory discharge under Title VII and has raised a genuine issue of material fact as to pretext. However, the allegations of wrongdoing short of termination do not constitute "adverse actions," and thus fail to raise a prima facie case under Title VII. Whitby's claim for intentional infliction of emotion distress similarly fails to raise a genuine issue of material fact, since Parker College's alleged actions do not rise to the level of outrageousness required for conduct actionable under Texas law. Accordingly, Parker College's motion for summary judgment is granted in part and denied in part.
I. BACKGROUND
Plaintiff Lisa Whitby began work as an Admissions Counselor at Parker College in 1991. She held the position of Assistant Director of Admissions from August, 1993 until February, 1999, at which time she was named Director of Admissions. Whitby alleges that beginning in October, 1999, Parker College took a number of adverse steps evidencing race-based discrimination, culminating in her termination on November 20, 2000. Whitby claims that prior to her discharge, she was subject to actions including (1) a threat of termination because she did not have a Doctor of Chiropractic degree; (2) the hiring of two employees without bachelor's degrees for similar positions within the same department; (3) improper reprimand for bringing work home; (4) a poor work performance appraisal by a new supervisor; (5) being told misleading comments about the pay raises of co-workers; (6) diminishment of job responsibilities; (7) termination, purportedly for failure to complete a task that was adequately completed; and (8) replacement with a less qualified Caucasian employee. Whitby further alleges that these acts, and her eventual termination, resulted in extreme amounts of stress and pressure, and resulted in her poor health and strained relationships with her family.
II. ANALYSIS A. Rule 56 Standard
Summary judgment is appropriate under Rule 56 when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits presented, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c), Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A dispute about a material fact is "genuine" only 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). The moving party must demonstrate the absence of any genuine issue of material fact, Celotex, 477 U.S. at 322-23, and the Court construes all evidence in favor of the party opposing the motion. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962), Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). The party moving for summary judgment must "demonstrate the absence of a genuine issue of material fact, but need not negate the elements of the nonmovant's case." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994), citing Celotex, 477 U.S. at 323.
B. The McDonnell Douglas Framework
Lacking direct evidence of discrimination, the Court analyzes employment discrimination claims, including allegations of race-based discrimination, under the three-step, burden-shifting framework established in McDonnell Douglas. Medina v. Ramsey Steel Co., 238 F.3d 674, 680 (5th Cir. 2001). As the Fifth Circuit explained in Medina v. Ramsey Steel Co., the McDonnell Douglas test requires the following steps:
First, the employee must raise a genuine issue of material fact as to each element of his prima facie case. Then, the employer must articulate a legitimate, nondiscriminatory reason for its employment decision. Finally, the employee must raise a genuine issue of material fact as to whether the employer's proffered reason was merely a pretext for age discrimination.Id. (citing Lindsey v. Prive Corp., 987 F.2d 324, 326 (5th Cir. 1993)).
1. Plaintiffs Prima Facie Case
In order to establish a prima facie case for race-based discrimination under Title VII, a plaintiff must show that (1) she belongs to the protected class; (2) she was qualified for the job that she held; (3) she was discharged; and (4) after her discharge, her employer filled the position with a person who is not a member of the protected group. Vaughn v. Edel, 918 F.2d 517, 521 (5th Cir. 1990). The Fifth Circuit has also allowed plaintiffs to establish a prima facie case by showing adverse employment actions short of termination, where similarly-situated employees outside the protected class were treated more favorably. Nieto v. LH Packing Co., 108 F.3d 621, 623 n. 5 (5th Cir. 1997). The Fifth Circuit has consistently cautioned that, "to establish a prima facie case, a plaintiff need only make a very minimal showing." Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996) (quoting Thornbrough v. Columbus Greenville R.R. Co., 760 F.2d 633, 639 (5th Cir. 1985)); see also Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) ("the burden of establishing a prima facie case of disparate treatment is not onerous.").
Parker College argues that Whitby can only establish membership in a protected class. First, Parker College claims that Whitby is not qualified for the position she held, because Parker College became dissatisfied with her ability to perform the duties of Director of Admissions. However, the Fifth Circuit has specifically rejected the argument that an employer can defeat an employee's prima facie case simply by claiming that supervisors became unsatisfied with the employee's work. Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1505-06 (5th Cir. 1988). In Bienkowski, defendant American Airlines alleged that a security guard suing under the Age Discrimination in Employment Act failed to establish that he was "qualified" because his supervisors became dissatisfied with his job performance and terminated his employment. Id. at 1504-05. Judge Edith Jones explained that to place a plaintiffs qualifications at issue in both the prima facie case and the pretext stage of analysis is "an unnecessary redundancy." Id. at 1505. Instead, the Court held that:
a plaintiff challenging his termination or demotion can ordinarily establish a prima facie case of . . . discrimination by showing that he continued to possess the necessary qualifications for his job at the time of the adverse action. The lines of battle may then be drawn over the employer's articulated reason for its action and whether that reason is a pretext for . . . discrimination.Id. at 1506; see also Medina v. Ramsey Steel Co., 238 F.3d at 681 (because subjective criteria can be used to mask discriminatory intent, "an employee must demonstrate that he meets objective . . . criteria at the prima facie case stage, and the issue of whether he meets subjective . . . criteria is dealt with at the later stages of the analysis."). Because Whitby was sufficiently qualified to work in the admissions department for over 9 years and acted as Admissions Director for twenty-one months prior to her termination, the Court holds that she was "qualified" for the purposes of making a prima facie case of discrimination.
Parker College argues that the allegations of wrongdoing short of discharge do not constitute "adverse actions" under Title VII, and thus are not actionable. The Court agrees. The Fifth Circuit has concluded that "Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions." Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995). The Court has explained that ultimate employment decisions "include acts such as hiring, granting leave, discharging, promoting, and compensating." Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997) (citations omitted). Significantly, the Fifth Circuit has consistently held that actions by an employer which make employment stressful, unpleasant, or demeaning are "interlocutory or mediate decisions having no immediate effect upon employment conditions which therefore were not intended to fall within the direct proscriptions of Title VII." Id. at 708 (citations omitted). Therefore, Whitby's allegations — that Parker College (1) threatened her with termination; (2) hired unqualified workers; (3) denied Whitby's request to have an Assistant Director; (4) unfairly reprimanded Whitby for taking work home; (5) provided a poor work appraisal of Whitby despite lacking sufficient information; (6) misrepresented the pay increases provided to other employees; (7) reduced Whitby's job responsibilities; and (8) replaced Whitby with a Director of Admissions who did not have a college degree or Doctor of Chiropractic degree — do not constitute "adverse employment actions" actionable under Title VII. Accordingly, Whitby fails to satisfy her prima facie case with respect to all claims except discharge.
Because these allegations do not constitute "adverse employment actions," they are not actionable under Title VII; therefore, the Court need not address whether these claims were encompassed by Whitby's EEOC charge.
Parker College alleges that Whitby cannot establish that similarly situated members of non-protected classes were treated more favorably. However, because Whitby was replaced by a Caucasian employee, the Court holds that Whitby satisfies the fourth element of her prima facie case.
2. Defendant's Asserted Legitimate, Nondiscriminatory Rationale
Once a plaintiff makes a prima facie case for discrimination, the defendant must articulate a legitimate, nondiscriminatory reason for its employment decision. Medina v. Ramsey Steel Co., 238 F.3d at 682-83. The defendant's burden during this second step is satisfied by producing evidence which, "taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993) (emphasis in original).
Here, Parker College states that Whitby was terminated because "she was ineffective at recruiting students, she had an uncooperative, disobedient and disrespectful attitude toward Dr. Tomlinson [her supervisor], she failed to follow college policies and failed to follow the proper chain of command." Defendant's Brief in Support of Motion for Summary Judgment, at 19. Parker College points to deposition testimony, much of which was uncontested, that suggests that Whitby was discharged due to legitimate business concerns. The Court therefore holds that the evidence produced by Parker College, if taken as true, would permit the conclusion that there was a nondiscriminatory reason for terminating Whitby's employment. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 509. Therefore, Parker College has satisfied its burden under the second stage of the McDonnell Douglas test.
3. Whitby's Claim of Pretext
With Parker College having carried this burden of production, "the presumption of discrimination [established by the prima facie case] fades, and the plaintiff must prove that the employer's articulated reason is a pretext for unlawful discrimination." Reeves v. Sanderson Plumbing Prods., Inc., 197 F.3d 688, 692 (5th Cir. 1999) (citing Price v. Marathon Cheese Corp., 119 F.3d 330, 337 (5th Cir. 1997)). It is well-settled that a nonmoving plaintiff can defeat a motion for summary judgment "by submitting evidence which, taken as a whole, creates a fact issue as to whether the employer's stated reasons actually motivated the employer." Burns v. Checkpoint Software Technologies, Inc., No. 3:01-CV-1906-P, 2002 WL 31455598, at *8 (N.D. Tex. Oct. 31, 2002) (Solis, J.). Factors relevant to this inquiry include "the strength of the plaintiff prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered." Id. (quoting Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002)). In the instant matter, Whitby's evidence in opposition to Parker College's motion for summary judgment, in addition to her claims of unfair treatment by Parker College, sufficiently raise a fact question as to pretext, and therefore summary judgment is inappropriate.
In this third stage of the McDonnell Douglas framework, the plaintiff "need only present evidence sufficient to suggest that Defendant's stated reasons are false." Burns v. Check Point Software Technologies, Inc., No. 3:01-CV-1906-P, 2002 WL 31455598, at *11. It is not the province of the Court to weigh the evidence if a genuine issue has been raised by the plaintiff. Here, Parker College raised seven non-discriminatory reasons for Whitby's dismissal, each of which is disputed by Whitby.
Parker College argues that "when the employer's stated reasons . . . are plausible . . . the employee's burden to raise a triable issue concerning pretext is `a heavy one indeed.'" Defendant's Brief in Support of Motion for Summary Judgment, at 23 (citing Elliott v. Group Med. Surgical Serv., 714 F.2d 556, 567 (5th Cir. 1983)). However, in Elliott, the Court characterized the plaintiffs burden as heavy because it was considering a case where the reasons for termination were "rational ones, the objective truth of which is not seriously disputed. . . ." Id. (emphasis added). In the instant matter, Whitby challenges the objective truth of Parker College's rationale for her termination.
First, Parker College claims that Whitby was ineffective at recruiting students, which was a legitimate reason for her discharge. However, Whitby alleges that as Director of Admissions, she was only minimally responsible for recruiting, and Parker College had a separate department dedicated to recruitment. She suggests that the public dispute between former president Dr. James Parker and the college was largely responsible for the downturn in recruiting. In addition, she asserts that the performance evaluation completed just six weeks prior to her termination does not document any problems with regard to job performance and indeed includes comment that Whitby possessed "outstanding knowledge on all phases of own related work." If believed by a trier of fact, this evidence would cast doubt upon Parker College's proffered rationale for Whitby's termination.
Second, Parker College asserts that Whitby was discharged because of an uncooperative, disobedient, and disrespectful attitude toward her supervisor, Dr. Tomlinson. Whitby raises a fact issue by suggesting that her evaluation contains no documentation of such problems. She claims that a report that she allegedly failed to complete was, in fact, satisfactorily completed. In addition, Parker College concedes in its recitation of undisputed facts that many employees of Parker College found Dr. Tomlinson to be difficult to work with. The Court notes that factors such as poor attitude are subjective and are capable of being used to mask discriminatory intent.
Third, Parker College claims that Whitby failed to follow college policies by, among other things, bringing her child to work and taking work home to "make up." However, Whitby suggests that other similarly-situated employees were treated differently, and that her employee evaluations never cited any problems to this effect.
Fourth, Parker College alleges that Whitby flouted the "chain of command" by, among other things, working directly with Dr. Tomlinson's superiors. Whitby responds that her purported failure to follow the chain of command was, in reality, her comfort working with the College President, and her early misunderstanding of the exact role Dr. Tomlinson played within the department.
The Court also notes that Whitby's allegations of wrongdoing short of termination, if believed by a factfinder, could support the conclusion that Parker College's rationale for termination was pretext for discrimination. For example, Whitby contends that she was encouraged to resign in 1999 because she lacked a Doctor of Chiropractic degree; however, Whitby was preceded and then replaced by Directors of Admissions who lacked bachelor's degrees altogether. In addition, the Court notes that Whitby was replaced by Tricia Young, a Caucasian employee who had no experience reading transcripts and, at the time, had not completed her bachelor's degree. Ms. Young was allegedly paid a starting salary higher than that of Whitby at her termination. In sum, the Court holds that Whitby has raised a fact issue as to pretext, thus making summary judgment inappropriate.
C. Plaintiffs Claim for Intentional Infliction of Emotional Distress
Parker College argues that Whitby's claim for intentional infliction of emotional distress fails to raise a genuine issue of fact, and that it is entitled to judgment as a matter of law. The Court agrees.
To prevail on a claim for intentional infliction of emotional distress in Texas, a plaintiff must prove that: (1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the defendant's actions caused the plaintiff emotional distress; and (4) the emotional distress suffered by the plaintiff was severe. Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995) (citations omitted). It is generally recognized that "the central element of the tort is extreme and outrageous conduct." Twyman v. Twyman, 855 S.W.2d 619, 630 (Tex. 1993) (Hecht, J., concurring and dissenting). Liability for outrageous conduct should be found "only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Twyman v. Twyman, 855 S.W.2d at 621 (citing RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (1965)); see also Dean v. Ford Motor Credit Co., 885 F.2d 300, 306 (5th Cir. 1989) (citing RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (1965)) (outrageous conduct exists where "a recitation of the facts to an average member of the community would lead him to exclaim, `Outrageous.'").
Here, Whitby alleges that the collective actions of Parker College rise to the level of "extreme and outrageous." However, the sum and substance of Whitby's allegations consist only of claims that: (1) Whitby was asked to resign because she did not have a Doctor of Chiropractic degree, despite the fact that the Directors of Admissions preceding and succeeding her did not hold Doctor of Chiropractic degrees; (2) Parker College denied her an Assistant Admissions Director; (3) Whitby believes that Dr. Tomlinson was placed in her position in order to force Whitby to resign; (4) Whitby received a smaller raise than some of her colleagues, despite a positive work review; (5) Whitby was excluded from a number of decisions; (6) Whitby was not allowed to bring work home; (7) Parker College hired employees who Whitby believed were not fully qualified; (8) Whitby's termination was premised on her failure to complete an assignment that she had, in fact, completed; and (9) Whitby was replaced by a higher-paid Caucasian employee who Whitby asserts was less qualified. Taken as true, these allegations simply do not rise to the level of "outrageousness" actionable as intentional infliction of emotional distress.
The Restatement of Torts, adopted by the state of Texas in Twyman v. Twyman, 855 S.W.2d at 621-22, explains that:
The liability [for intentional infliction of emotional distress] clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one's feelings are hurt.
RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (1965). Whitby's allegations fall far short of satisfying the heavy burden of establishing outrageousness. They are, at best, evidence of an unpleasant work environment which culminated in a demoralizing termination. This is not enough to make out the element of outrageousness. See City of Midland v. O `Bryant, 18 S.W.3d 209, 217 (Tex. 2000) (recognizing that employers "supervise, review, criticize, demote, transfer, discipline, and terminate employees," resulting in emotional distress that is not actionable under tort law). Therefore, there is no fact question as to Whitby's claim for intentional infliction of emotional distress, and summary judgment is granted.
Because Whitby has not raised a fact issue as to outrageousness, her claim for intentional infliction of emotional distress fails. Accordingly, the Court need not consider Parker College's allegations that Whitby fails to raise a material issue of fact as to the other elements of the tort.