Opinion
Civil Action No. 1:97cv27-D-D
February 2, 1998
MEMORANDUM OPINION
Presently before the court is the motion of the defendant for the entry of summary judgment as against the plaintiff's claims at bar. Finding that the motion is well taken, the court shall grant the motion and dismiss the plaintiff's claims.
In ruling on a motion for summary judgment, the court is not to make credibility determinations, weigh evidence, or draw from the facts legitimate inferences for the movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rather, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. Anderson, 477 U.S. at 255. The court's factual summary is so drafted. The court chooses not to provide an in-depth discussion of all of the facts surrounding this case, but rather will discuss pertinent facts in the body of its opinion as they become necessary.
The defendant Southern Diversified Industries, Inc. ("SDI"), initially hired the plaintiff Dorothy Dobbs in February of 1986. During the vast majority of the last six years Ms. Dobbs was employed with SDI, she worked as the plant custodian. In June of 1996, SDI plant manager Dave Carstensen transferred the plaintiff from her custodial job to a position as a production employee in the Fabrication Department. Ms. Dobbs did not receive a reduction in pay, benefits or seniority. Her daily working hours, however, were increased. SDI then hired younger males to perform the custodial tasks at the plant. After working one and one half days in her new position, the plaintiff left work and did not return. This action followed. After obtaining a right-to-sue letter from the EEOC, the plaintiff filed her complaint with this court, charging that her transfer constituted age and gender discrimination. The defendant has moved for an entry of summary judgment against the plaintiff's claims, and the court is prepared to address the motion.
Whether these persons were independent janitorial contractors or employees of SDI is at issue in this case.
II. Discussion
Summary Judgment Standard
Summary judgment shall be granted "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." Fed.R.Civ.P. 56(c). The burden rests upon the party seeking summary judgment to show to the district court that an absence of evidence exists in the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); see Jackson v. Widnall, 99 F.3d 710, 713 (5th Cir. 1996); Hirras v. Nat'l R.R. Passenger Corp., 95 F.3d 396, 399 (5th Cir. 1996). Once such a showing is presented by the moving party, the burden shifts to the non-moving party to demonstrate, by specific facts, that a genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Texas Manufactured Housing Ass'n, Inc. v. City of Nederland, 101 F.3d 1095, 1099 (5th Cir. 1996); Brothers v. Klevenhagen, 28 F.3d 452, 455 (5th Cir. 1994). Substantive law will determine what is considered material. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 40 (5th Cir. 1996). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see City of Nederland. 101 F.3d at 1099; Gibson v. Rich. 44 F.3d 274. 277 (5th Cir. 1995). Further, "[w]here the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510;see City of Nederland, 101 F.3d at 1099. Finally, all ferefrom.See Anderson, 477 U.S. at 254, 106 S.Ct. at 2513; Banc One Capital Partners Corp. v. Kneipper, 67 F.3d 1187, 1198 (5th Cir. 1995); Taylor v. Gregg, 36 F.3d 453. 455 (5th Cir. 1994); Matagorda County v. Russell Law, 19 F.3d 215, 217 (5th Cir. 1994). However, this is so only when there is "an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994); Guillory v. Domtar Industries Inc., 95 F.3d 1320, 1326 (5th Cir. 1996); Richter v. Merchants Fast Motor Lines. Inc., 83 F.3d 96, 97 (5th Cir. 1996). In the absence of proof, the court does not "assume that the nonmoving party could or would prove the necessary facts." Little. 37 F.3d at 1075 (emphasis omitted); see Luian v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 3188, 111 L.Ed.2d 695 (1990).
The Plaintiff's Claims
The plaintiff's claims arise under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act. 42 U.S.C. § 2000, et. seq.; 29 U.S.C. § 621. In her complaint, she alleges that her transfer from a custodial position with the defendant to a job on a production line constitutes both age and sex discrimination. Plaintiff's Complaint, ¶ X. In evaluating these claims of discrimination, the court employs the venerable McDonnell-Douglas shifting burden of production when direct evidence of discrimination is lacking.Meinecke v. H R Block Income Tax Sch., Inc., 66 F.3d 77, 83 (5th Cir. 1995); Valdez v. San Antonio Chamber of Commerce. 974 F.2d 592, 596 (5th Cir. 1992); Thornbrough v. Columbus Greenville R. Co., 760 F.2d 633, 642 (5th Cir. 1985) (citingWilliams v. General Motors Corp., 656 F.2d 120, 129 (5th Cir. 1981)), cert. denied, 455 U.S. 943, 102 S.Ct. 1439, 71 L.Ed.2d 655 (1982). In this case, the undersigned finds that there is before the court no direct evidence of discrimination. Therefore, in order to avoid the entry of summary judgment, the plaintiff must first demonstrate a genuine issue of material fact as to each element of t he prima facie case. A common element of iheprima facie in employment discrimination claims, including those asserted by the plaintiff in this case, is that the plaintiff has suffered an adverse employment decision. See, e.g., Woodhouse v. Magnolia Hosp., 92 F.3d 248, 252 (5th Cir. 1996); Holt v. JTM Industries. Inc., 89 F.3d 1224, 1225 (5th Cir. 1996);Long v. Eastfield College, 88 F.3d 300, 305 (5th Cir. 1996).
Under both Title VII and the ADEA, a plaintiff may only recover if she has suffered an adverse "ultimate employment decision," which must reach a defined quantum of damage in order to become actionable. See, e.g., Messer v. Meno, 130 F.3d 130 (5th Cir. 1997) (1997 WL 728500, *8) ("Ultimate employment decisions include hiring, discharging, promoting, compensating, or granting leave, but not `events such as disciplinary filings, supervisor's reprimands, and even poor performance by the employee — anything which might jeopardize employment in the future.'"). "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." Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997) (quoting Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995) (citing Page v. Bolger, 645 F.2d 227, 233 (4th Cir.), cert. denied, 454 U.S. 892, 102 S.Ct. 388, 70 L.Ed.2d 206 (1981))).
While a transfer to another position may indeed constitute an "adverse employment decision," it will not necessarily do so. A mere lateral transfer does not constitute and "adverse employment decision" unless the terms and conditions of her employment are otherwise affected to such an extent as to violate Title VII or the ADEA. For example, a transfer may constitute a demotion or be attended by a reduction in pay. In this case, however, it appears without dispute that this transfer did not diminish the plaintiff's pay, nor did it affect her benefits or seniority. Defendant's Exhibit 4, Affidavit of Dave Carstensen. While there is evidence before the court that the plaintiff's working hours were increased, the court cannot say that such a change itself raises the plaintiff's transfer to the level of an "adverse employment decision." There is insufficient evidence before this court for a reasonable juror to conclude that the plaintiff's transfer, standing alone, constitutes an "adverse employment decision."
The only other avenue available to the plaintiff to satisfy this element of her prima facie cases is to demonstrate that she was constructively discharged as a consequence of her transfer. To do so, the plaintiff must demonstrate that the conditions of her transfer were such that her working conditions were made so intolerable that a reasona (5th Cir. 1997); Ward v. Bechtel Corp., 102 F.3d 199, 202 (5th Cir. 1997); Barrow v. New Orleans S.S. Ass'n, 10 F.3d 292, 297 (5th Cir. 1994). As already noted by this court, however, the only appreciable change in the plaintiff's working conditions was the amount of her working hours. The plaintiff worked a total of one and one half days for the defendant after her transfer before leaving her employment with the defendant. There is no evidence that other employees in the same department were not required to work under the same conditions, nor that the plaintiff's new duties were "remedial or degrading work" when compared to the plaintiff's original duties as a custodian. See Barrow. 10 F.3d at 297 (enumerating non-exclusive list of factors to consider in constructive discharge case). In sum, there is nothing beyond a "mere scintilla" of evidence before the undersigned that a reasonable person in the position of the plaintiff would have felt compelled to resign after one and one half days in her new position. The plaintiff cannot establish this element of her prima facie cases based upon the evidence presently before the court, and she is therefore incapable of establishing her claims. There is no genuine issue of material fact as to this matter, and the defendant is entitled to the entry of a judgment as a matter of law.
III. Conclusion
Upon consideration, the undersigned is of the opinion that the defendant's motion for the entry of summary judgment on the plaintiff's claims is well taken and should be granted. When faced with a properly supported motion for summary judgment, the plaintiff has failed to come forward with sufficient proof that she has suffered an adverse employment decision to serve as a basis for her claims. There are no genuine issues of material fact in this regard, and the defendant is entitled to the entry of a judgment as a matter of law.
A separate order in accordance with this opinion shall issue this day.
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND DISMISSING CAUSE
Pursuant to a memorandum opinion issued this day, it is hereby ORDERED THAT:) the defendant's motion for the entry of summary judgment with regard to the plaintiff's claims is hereby GRANTED;
) the plaintiff's claims in this cause are hereby DISMISSED; and
) this case is CLOSED.
SO ORDERED.