Opinion
Civil No. CCB-03-3466.
March 23, 2005
MEMORANDUM
The defendants, Rita Ann Distributors and Amerisource Bergen Corporation, have moved for summary judgment against the plaintiff, Laurie Canavan, who alleges pregnancy discrimination in violation of Title VII of the Civil Rights Act of 1991 ("Title VII"), 42 U.S.C. § 2000e et seq. The issues have been fully briefed and no hearing is necessary. See Local Rule 105.6. For the reasons stated below, the motion for summary judgment will be denied.
BACKGROUND
From April 22, 2002 to January 31, 2003, Laurie Canavan ("Canavan") worked as a merchandiser for Rita Ann Distributors ("Rita Ann") in their mid-Atlantic division, which primarily includes Maryland, Virginia, and Washington D.C. (Amended Complaint ¶ 10.) Rita Ann is a nationwide cosmetics distributor that contracts with supermarket chains to set up and replenish cosmetic displays in grocery stores. (Defs.' Mem., Miley Dep., Ex. B at 12-16.) Rita Ann is a wholly owned subsidiary of defendant Amerisource Bergen Corporation ("Amerisource"). (Answer to Amended Complaint ¶ 7.) As a merchandiser, Canavan was required to drive to approximately eighteen stores per week to set up and clean displays, order new products, and process returns. (Defs.' Mem., King Dep., Ex. C at 19; id., Terry Dep., Ex. D at 32-35; id., Employee Territory List for Period 4/02-2/03, Ex. K at 3.)
Changes were made to her route when other merchandisers were fired or unavailable to service their stores.
Merchandisers were compensated on an hourly basis and reimbursed for their daily driving mileage at the rate of $.365 per mile. (Defs.' Mem., King Dep., Ex. C at 74-75.) Compensation and mileage began the moment the merchandiser left home. (Id., L. Canavan Dep., Ex A at 66-67.) Thus, Rita Ann generally hired merchandisers who lived in the geographic area where the territory stores were located. (Id., Miley Dep., Ex. B, at 20;id., King Dep., Ex. C at 75-76; id., Terry Dep., Ex. D at 53-55; id., C. Canavan, Ex. F at 57, 64; id., Simpson Dep., Ex. G at 79.)
Canavan was hired after her sister, Carina Canavan ("Carina"), was promoted from her position as a merchandiser for Rita Ann to merchandising supervisor. (Pl.'s Opp'n Mem., L. Canavan Dep., Ex. B at 48-9.) Carina had been one of the original three merchandisers when the mid-Atlantic region began its operations in 2000. She, Debbie Witzen ("Witzen"), and a part-time merchandiser were all supervised by Judy Terry ("Terry"), a merchandising manager. (Defs.' Mem., Terry Dep., Ex. D at 143-4;id., Employee Territory List for Period 9/00-5/01, Ex. H.) As Rita Ann's mid-Atlantic operations grew, Terry was elevated to key account manager for the region and Witzen was promoted to merchandising manager. (Id., Terry Dep., Ex. D at 125; id., Employee Territory List for Period 4/02-2/03, Ex K.) In April 2002, Terry was promoted to director of field operations, a newly created position conceived to coordinate all seven key account managers throughout the United States. (Id., Terry Dep., Ex. D at 45-6.) Witzen was promoted to Terry's job as key account manager which left Witzen's former merchandising manager position open for Carina. (Id., C. Canavan Dep., Ex. F at 24.)
Terry asked Carina if she knew anyone who lived in her geographic area who would be interested in the newly open merchandiser position. Carina recommended her sister. (Pl.'s Opp'n Mem., C. Canavan Dep., Ex. E at 73.) Canavan was hired and essentially took over the same store territory that had been serviced by Carina. (Defs.' Mem., L. Canavan Dep., Ex. A at 221;id., C. Canavan Dep., Ex. F at 52-3.) Canavan performed well on the job, receiving a performance evaluation of "exceeds position requirements" in twenty-six of thirty-three categories. (Pl.'s Opp'n Mem., Performance Evaluation, Ex. 4.) In the remaining categories, she was rated as an employee who fully meets all position requirements. (Id.)
Canavan's evaluations were done by her sister, Carina. Terry testified, however, that she agreed with Canavan's ratings. (Pl.'s Mem., Terry Dep., Ex.C. at 104.)
In August 2002, Rita Ann's President, Farnum Miley ("Miley"), and Vice President, Carol King ("King"), decided to move Terry back to her key account manager position and to eliminate the director of field operations position. (Defs.' Mem., King Dep., Ex. C at 133-4.) This change led to the demotion of Witzen from key account manager to merchandising manager. (Id., Terry Dep., Ex. D at 165-6.) Carina remained a merchandising manager. (Id. at 166.)
Concerned about the company's financial circumstances, Miley sent an email to Terry and other key account managers on December 11, 2002 stating that measures should be taken to reduce expenses. (Id., Miley email, Ex L.) He suggested that managers use more part-time than full-time employees. (Id.) Terry responded that she recently eliminated two full-time positions and could convert others into part-time positions starting in January. (Id.) But Miley was not satisfied with this proposal. Terry's region had two managers for only nine merchandisers, while the Pacific Northwest region had one manager for twenty four merchandisers and the Northern California region had one manager for eighteen or nineteen merchandisers. (Id., Miley Dep., Ex. B at 30.) On January 10, 2003, Miley e-mailed Terry asking whether "there is an absolute need for a Key Account Manager and two Merchandising Supervisors." (Id., Miley e-mail, Ex. M.)
Terry testified that she was not referring to Canavan's position when she wrote this email. (Defs.' Mem., Terry Dep., Ex. D at 219, 232-233.)
Miley followed up his first e-mail with another on January 13, 2003 and shared his concern with Carol King in e-mails dated January 14 and 27, 2003. (Id., Miley e-mails, Exs. N, P.) King contacted Terry in response to the January 27 e-mail, and told her that Miley wanted her to remove one supervisor. (Id., King Dep., Ex. C at 154.) Terry had taken no action prior to that because she "was hoping it would go away." (Id., Terry Dep., Ex. D at 234.)
Canavan had discovered she was pregnant in November 2002 but waited until January to inform management of her pregnancy, for fear of losing her job. (Pl.'s Opp'n Mem., L. Canavan Dep., Ex. B at 135-137; id., C. Canavan Dep., Ex. E at 77-8.) She had recently overheard Terry stating that she was scaling back another merchandiser, Kathy Marshall ("Marshall"), from full-time to part-time in order to stop paying her health insurance coverage. (Id., L. Canavan Dep., Ex. B at 105-6; 137-140). Marshall was being treated for cancer at that time. (Id. at 141.) On January 20, 2003, Canavan phoned Stefanie Simpson ("Simpson"), the Human Resources coordinator, to tell Simpson she was pregnant and to schedule maternity leave. (Id. at 143-5;id., Simpson Dep., Ex. F at 41-42.) Canavan expressed her fear of being fired "because of the way people talking [sic] around here about that lady Kathy." (Defs.' Mem., L. Canavan Dep., Ex. A at 145-6.) Simpson reassured Canavan that she would not be fired, told her how to apply for leave benefits, and advised her to inform Terry. (Id. at 146). On January 21, 2003, Canavan told Terry that she was pregnant. (Id. at 147; Pl.'s Opp'n Mem., Terry Dep., Ex. C at 177.) Terry also reassured Canavan that she would not be fired. (Defs.' Mem., L. Canavan Dep., Ex. A at 147.)
On January 27, 2003, Miley e-mailed King asking, "[m]aybe this has already happened . . . has Judy relieved a supervisor? . . . eliminated a position?" (Id., Miley e-mail, Ex. P.) King thereafter called Terry and told her she needed to eliminate one manager position immediately. (Id., King Dep., Ex. C at 164-65;id., Terry Dep., Ex. D at 235.) Terry proceeded to call both Witzen and Carina to inform them that she needed to choose between them. (Id., Terry Dep., Ex. D at 236-237.) Carina pressed her to demote Witzen because Witzen's husband had a good job and Witzen could better afford the reduction in pay. (Id. at 237-238; id., C. Canavan Dep., Ex. F at 99.) When Terry consulted King, King directed her to choose the more experienced and qualified candidate to remain as manager and not to consider external factors. (Id., Terry Dep., Ex. D at 238-239; id., King Dep., Ex. C at 173-174.) Subsequently, Terry notified Carina that she was being moved back into her merchandiser position and that one of them needed to tell Canavan that she would be dismissed. (Id., Terry Dep., Ex. D at 249-251; id., C. Canavan Dep., Ex. F at 33.) Carina asked Terry whether she could take over Halcyon Meersman's ("Meersman") territory instead of Canavan's. (Id., Terry Dep., Ex. D at 251; id., C. Canavan Dep., Ex. F at 43; id., Employee Territory List for Period 4/02-2/03, Ex. K at 2.) Meersman was the newest merchandiser in the region, having started on October 21, 2002. (Id., Employee Territory List for Period 4/02-2/03, Ex. K at 2.) Carina had serviced the Meersman route for a couple of months until Meersman was hired to replace her predecessor. (Id.; Pl.'s Opp'n Mem., C. Canavan Dep., Ex. E at 68-69.) Carina offered to drive that route with a cap on her mileage reimbursement but Terry rejected the idea. (Defs.' Mem., Terry Dep., Ex. D at 251-2.)
As reflected in their performance evaluations, Canavan was a better performer than Meersman. (Pl.'s Opp'n Mem., Performance Evaluation, Exs. 4, 43.) Meersman only received an evaluation of "exceeds position requirements" in eight categories. Miley testified that performance was a factor, though not the most important factor, in selecting merchandisers for layoff. (Pl.'s Opp'n Mem., Miley Dep., Ex. H at 134.) Another merchandiser, Lisa Cooper, had a worse reputation as a performer and had been disciplined on August 1, 2002 for not properly filling out time sheets. (Pl.'s Opp'n Mem., Warning Sheet, Ex. 52.) Terry conceded that at the end of 2002, Canavan was a better merchandiser than Cooper, but asserted that performance had nothing to do with her decision. (Pl.'s Opp'n Mem., Terry Dep., Ex. C at 140, 255-256.) Canavan lived within 30 miles of 14 of Cooper's 17 stores and both she and Carina, who lived near her, could have serviced that territory. (Id., Canavan Decl., Ex. J at ¶ 5 and Ex. B to Ex. J.)
Others had previously worked without getting mileage reimbursements, including Terry's husband, Shawn Terry, and others hired as "casual labor." (Pl.'s Opp'n Mem., Terry Dep., Ex. C at 193-4.) Terry was not aware of any written policy that would preclude her from accepting Carina's and Canavan's proposals to cap their mileage expenses, nor did she consult with King or Miley about this possibility. (Id., Terry Dep., Ex. C at 258-9.)
Canavan received a tearful phone call from her sister on January 28, 2003, informing her that she was being terminated effective January 30, 2003. (Id., L. Canavan Dep., Ex. A at 153.) Canavan called Simpson on January 29, 2003, offering to take a cut in expenses or pay so that she could keep her job and medical insurance. (Id. at 158-9.) Canavan also spoke to Terry and told her that she knew she was being terminated because of her pregnancy and that she would be hearing from Canavan's lawyer. (Id., Terry Dep., Ex. D at 260.) Terry proceeded to write an e-mail to Miley, King, and Simpson stating the following:
Just a heads up. As you know, Laurie is being let go effective 2/1/03. I informed her that I had to terminate her due to downsizing. Moving Carina back to merchandiser meant that I had to let a merchandiser go so that Carina could fill that space. Laurie's area is the one Carina used to service and it is area [sic] closest to Carina in geography. Laurie has informed me that she is getting a lawyer, due to the fact that she feels she is being let go because she is pregnant. I assured her that this is not the case, but she does not believe me. Laurie informed myself and Stephanie that she was pregnant last week and she just knows that this is why she is being let go. My decision was based solely on geography and expenses. Just wanted to keep you in the loop. (Id., Terry e-mail, Ex. R.)
After reading that e-mail, Miley sent King an e-mail saying, "[s]ince Judy and Stephanie knew of Laurie's condition, one would think that a discussion should take place before the notification. Comes back to "weighing" risk factors. I am not saying we should not have made the move; only we should have known up front and considered all options." (Id., Miley e-mail, Ex. R.) Prior to that email, neither Miley nor King had heard of Canavan's pregnancy. (Id., Miley Dep., Ex. B at 46; id., King Dep., Ex. C at 180-181.)
Canavan timely filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and now sues Rita Ann and Amerisource for unlawfully terminating her on the basis of her pregnancy in violation of Title VII, 42 U.S.C. 2000e-2(a). Canavan seeks reinstatement, an award of back pay, compensatory and punitive damages, and injunctive relief.
ANALYSIS
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment
shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion:
By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
"A party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of [his] pleadings,' but rather must `set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)). The court must "view the evidence in the light most favorable to . . . the nonmovant, and draw all reasonable inferences in her favor without weighing the evidence or assessing the witness' credibility," Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002), but the court also must abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial." Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).
Title VII provides that an employer shall not "fail or refuse to hire or discharge any individual, or otherwise discriminate against any individual . . . because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). The Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k), extended the scope of discrimination based on "sex" to include discrimination "on the basis of pregnancy, childbirth, or related medical conditions." 42 U.S.C. § 2000e(k). Thus, a pregnancy discrimination claim is analyzed in the same manner as any other Title VII sex discrimination claim. See DeJarnette v. Corning, Inc., 133 F.3d 293, 297 (4th Cir. 1998) (quoting Boyd v. Harding Academy, 88 F.3d 410, 413 (6th Cir. 1996).
In the absence of direct evidence of pregnancy discrimination, Canavan has proceeded under the burden-shifting scheme ofMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-5 (1973). To establish a prima facie case of pregnancy discrimination in the context of a reduction in force, the plaintiff must show that: (1) she was pregnant; (2) she was performing her job satisfactorily; (3) she was discharged or demoted; and (4) similarly situated individuals outside of her protected class were treated differently. See Ilhardt v. Sara Lee Corp., 118 F.3d 1151, 1154-55 (7th Cir. 1997); see also Trammell v. Baltimore Gas Elec. Co., 279 F.Supp.2d 646, 655 (D.Md 2003) (quotingNichols v. Harford County Bd. of Educ., 189 F.Supp.2d 325, 340 (D.Md. 2002)).
Canavan has established a prima facie case of pregnancy discrimination as she was pregnant, was performing satisfactorily, and was fired, while two other nonpregnant employees (Meersman and Cooper) were retained. The burden of production therefore shifts to Rita Ann to articulate a legitimate, non-discriminatory reason for Canavan's termination.Id. Rita Ann has proffered that the company was downsizing and that Terry was instructed by Miley and King to reduce her supervisory staff. (Defs.' Mem., Miley e-mails, Exs. L, N, P;id., King Dep., Ex. C at 154, 164-65; id, Terry Dep., Ex. D at 235.) Drawing on King's advice, Terry chose Carina for demotion because Witzen had superior experience. (Id., Terry Dep., Ex. D at 238-9; id., King Dep., Ex. C at 173-74.) Carina was placed in her previous position, thereby, according to Terry, necessitating Canavan's discharge. (Id., Terry emails, Exs. Q, R.) Rita Ann contends that it had a practice of hiring merchandisers based on their geographical proximity to the territory to be serviced. (Id., Miley Dep., Ex. B, at 20; id., King Dep., Ex. C at 75-76; id., Terry Dep., Ex. D at 53, 55; id., C. Canavan, Ex. F at 57, 64; id., Simpson Dep., Ex. G at 79; id. Employee Territory Lists, Exs. I-K.) Rita Ann argues that Terry's indecision as to which manager to demote, Witzen or Carina, undercuts any argument that she was improperly motivated by Canavan's pregnancy. Finally, Rita Ann has provided evidence that Miley and King were not aware of Canavan's pregnancy when they directed Terry to reduce her staff. (Id., Miley e-mails, Exs. N, P, R; id., Terry e-mails, Exs. Q, R.)
This practice reduced expenses, as merchandisers were reimbursed for their daily driving mileage. It also enabled merchandisers to spend more time in the stores they serviced, because they spent less time driving.
Canavan argues that Rita Ann's explanation for her discharge is pretextual based on the (1) temporal proximity between her informing Terry and Simpson of her pregnancy and her termination; (2) shifting explanations provided by Rita Ann over the course of the litigation process; and (3) absence of any firm policy or guidelines indicating that geographic proximity is an essential factor in hiring merchandisers or delineating how close a merchandiser must live to territory stores.
First, it was only eight days after she informed Rita Ann of her pregnancy that Canavan was advised she was being terminated, effective almost immediately. (Pl.'s Opp'n Mem., L. Canavan Dep., Ex. B at 143; Defs.' Mem., L. Canavan Dep., Ex. A at 148.) Temporal proximity between a protected activity and an adverse employment action may support an inference of discrimination.See Rhoads v. FDIC, 257 F.3d 373, 393-94 (4th Cir. 2001);Carter v. Ball, 33 F.3d 450, 460 (4th Cir. 1994).
Second, Canavan insists that Rita Ann has shifted its explanation for her discharge, thereby proving that their alleged reasons are pretextual. See EEOC v. Sears Roebuck and Company, 243 F.3d 846, 852-53 (4th Cir. 2001) (holding that an employer's use of different justifications for an adverse employment action is probative of pretext). Canavan asserts that Rita Ann proffered a false explanation in its letter to the EEOC in July 2003, namely that she was "the least senior member of her geographic region." (Defs.' Mem., Amerisource Letter, Ex. S at 3.) This was not true because Meersman was the least senior merchandiser at the time. (Id., Employee Territory List for Period 4/02-2/03, Ex. K at 2.) Rita Ann also explained to the EEOC that Canavan was discharged because Carina had most recently serviced Canavan's territory. Again, Canavan objects to this explanation because Carina had most recently serviced Meersman's route before Meersman was hired. (Pl.'s Opp'n Mem., C. Canavan Dep., Ex. E at 68-9.)
Rita Ann, on the other hand, contends that when its statement to the EEOC is considered in its entirety, it is consistent with Terry's explanation that "Laurie's area is the one Carina used to service and it is area [sic] closest to Carina in geography." (Defs.' Mem., Terry e-mail, Ex. R.) Though Carina serviced Meersman's route before Meersman was hired, she did that as a manager and as an interim measure until they found a permanent person for the position. (Pl.'s Opp'n Mem., C. Canavan Dep., Ex. E at 69.)
Third, Canavan contends that Rita Ann never had any written policy or guidelines indicating that geographic proximity is an essential factor in hiring merchandisers. Likewise, judging from the inconsistent answers given by company officials, there was apparently no single rule as to how close a merchandiser must live to territory stores. (Pl.'s Opp'n Mem., Terry Dep., Ex. C at 146-47; id., Miley Dep., Ex. H at 134; id., King Dep., Ex. D at 119-21.)
In Reeves, the Supreme Court explained that "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Id. at 148. See also EEOC v. Sears, 243 F.3d at 852. While the burden ultimately is on the plaintiff to prove intentional discrimination, and a jury may well accept Terry's explanation of her decision-making process, there are sufficient circumstances from which a jury also could conclude that this explanation is a pretext for discrimination and that the selection of Canavan for dismissal was motivated by her pregnancy. See Hill v. Lockheed Martin Logistics Management, Inc., 354 F.3d 277, 285 (4th Cir. 2004). Considering the conflicting inferences that could be drawn by reasonable fact-finders, Rita Ann's motion for summary judgment must be denied.
A separate order follows.
ORDER
For the reasons stated in the accompanying Memorandum, it is hereby Ordered that:
1. defendants' motion for summary judgment (docket entry no. 16) is DENIED;
2. copies of this Order and the accompanying Memorandum shall be sent to counsel of record; and
3. counsel will be contacted to set a trial date.