Opinion
Civ. No. 99-1849, SECTION: "D"(2).
March 30, 2000
Before the court are the following motions:
(1) Cross-Motions for Summary Judgment filed by Defendant, General Electric Company, and Plaintiff, Jane F. Smolensky. These motions, set for hearing on Wednesday, March 22, 2000, are before the court on briefs, without oral argument; and
(2) Plaintiff's Motion for Leave to File an Amended Complaint of Defamation and Filing a False Statement. This motion (filed on March 17, 2000) is set for hearing on April 5, 2000, and it is also before the court on the briefs, without oral argument.
Having reviewed the memoranda of counsel and the applicable law, the court now rules.
I. Background
General Electric Medical Systems (GEMS), a division of General Electric Company, is involved in the sales and service of various types of diagnostic imaging equipment including Magnetic Resonance Imaging machines, CT scanners, ultrasound equipment, X-ray equipment, and nuclear medicine equipment. The office located in Metairie, Louisiana is responsible for providing administrative support for sales and service personnel who sell and service the diagnostic equipment in the southeastern portion of the United States.
In January 1998, there were six people who worked out of the Metairie office: a Senior Operations Specialist (Grover McDaniel), who exercised supervision over the administrative staff; a Regional Sales Administrator; two LCT Business Coordinators; a receptionist; and a sales secretary.
On May 29, 1998, Plaintiff (a former General Electric employee who worked for three different divisions of GE for some 28 years, but who had been laid off in 1996 for lack of work) was interviewed for the position of "sales secretary" by Grover McDaniel, the Senior Operations Specialist for GEMS. At the time of this interview, plaintiff was 51 years old.
Plaintiff claims that when she interviewed for the sales secretary position, she had 28 years and 3 months, and 1 year added of Pension Qualified Service during her "lack of work" status. Thus, she claims that she was less than 9 months from the 30 years needed for retirement. ( See Plaintiff's Declaration, p. 4, attached to Plaintiff's Opp. to Defendant's MSJ).
Plaintiff repeatedly placed telephone calls to Mr. McDaniel to determine if she had gotten the job. On or about June 28, 1998, plaintiff was told verbally by Melissa Schultheis, a friend of Plaintiff's who was working as a receptionist for GEMS, that Plaintiff did not get the position. Mr. McDaniel claims that Plaintiff did not get the position because:
I came away from the interview feeling that Ms. Smolensky did not have the level of enthusiasm and teamwork spirit that I felt was essential for someone in the sales secretary position.
In any event, decisions concerning the filling of the sales secretary position became moot because of a decision to reorganize the office and to make it more efficient and to bring the New Orleans LCT staffing in line with the other LCTs in the Southeast Zone. A number of organizational changes were made, including the elimination of the sales secretary position and the assumption of her duties by the Regional Sales Administrator. . . . This was accomplished shortly after the incumbent sales secretary, Tracey Knoepfler, quit on or about May 29, 1998.
(Declaration of G. McDaniel, pp. 2-3, attached to Defendant's Memo. in support of Motion for Summary Judgment).
However, plaintiff contends that the "Sales Secretary" position was not eliminated, but simply renamed as the "Parts Analyst" job. Plaintiff claims that she was never offered the "Parts Analyst" position, that whether it is called "Sales Secretary" or "Parts Analyst" that was the job she interviewed for, and that it was given to Randy Polk, who was under the age of 40.
Plaintiff also points out that in the position letter Defendant submitted to the EEOC, Defendant categorizes this position as a "receptionist" position. However, Defendant now concedes in its papers before the court that Plaintiff did apply for the position of "sales secretary".
On or about July 10, 1998, the Regional Sales Administrator, Barbara Garcia, resigned. Grover McDaniel called Plaintiff and asked her to come interview for this position. Mr. McDaniel stated that:
I did not feel it would ever be appropriate to share details concerning office reorganization or changes, such as whether a job had been eliminated or the duties assumed by someone else in the office, with someone outside the office who was applying for a job. Accordingly, rather than telling Ms. Smolensky that the Sales Secretary position had been eliminated and the duties assumed by the Regional Sales Administrator, Barbara Garcia, I simply said the position had been filled, and then proceeded to ask Ms. Smolensky if she was interested in interviewing for the Regional Sales Administrator job.
(Declaration of G. McDaniel, p. 2 attached to Defendant's Opp. tp Plaintiff's Motion for Summary Judgment).
Mr. McDaniel also explained that:
Although based on my previous interview with Ms. Smolensky I was concerned about her level of enthusiasm and teamwork spirit, since the job [of Regional Sales Administrator] involved working very closely with the Regional Sales Manager, Eric Sumner, I wanted to ensure I was being as fair as possible to Ms. Smolensky and perhaps Mr. Sumner would have a different opinion of Ms. Smolensky's enthusiasm.
( Id. at 2-3)
Plaintiff was subsequently interviewed by both Mr. McDaniel and the Regional Sales Manager, Eric Sumner. Mr. Sumner found that:
[Ms. Smolensky] had not held prior positions where she would have exercised the type and level of responsibility that someone in the Regional Sales Administrator would have to exercise. I also did not feel that Ms. Smolensky displayed the type of enthusiasm and energy that I wanted from someone in that position.
(Declaration of Eric Sumner, p. 3, attached to Defendant's memo. in support of Motion for Summary Judgment).
Mr. McDaniel also found that, during his interview of Ms. Smolensky for the Regional Sales Administrator position, Ms. Smolensky seemed to have difficulty understanding a chart which the Regional Sales Administrator works with. (Declaration of G. McDaniel, p. 4, attached to Defendant's Memo. in support of Motion for Summary Judgment).
Before hiring anyone for the position of Regional Sales Administrator, Mr. McDaniel received notice from the GEMS home office that there was a hiring freeze. The position was eventually given to the prior sales secretary, Tracey Knoepfler, working as a contract employee working 30 hours a week for a staffing company. Ms. Knoepfler was under the age of 40.
In October 1998, Plaintiff filed a complaint with the Equal Employment Opportunity Commission (EEOC). In its position submitted to the EEOC, Defendant writes that Plaintiff first inquired about a "receptionist" position (rather than the Sales Secretary position). Defendant further writes that when Plaintiff "learned that the position would be part-time and that it would be a temporary position through an agency rather than a GEMS position, she decided that she wasn't interested in pursing it." ( See Schaefer letter, Plaintiff's Ex. 4, attached to Plaintiff's Opp. to Defendant's Motion for Summary Judgment).
In Olitsky v. Spencer Gifts, Inc., 964 F.2d 1471, 1477 (5th Cir. 1992), the Fifth Circuit found the employer's position letter to the EEOC to be admissible because it set forth purely factual information and related the employer's position on the merits of the employee's claim, rather than conciliation material which would render it inadmissible.
Similarly, Defendant writes in its EEOC position paper, that when Plaintiff found that the second position she applied for, the Regional Sales Administrator, was not a full-time position, Plaintiff was "not interested in a job that was not a full-time GE position." ( Id.). Defendant claims that Plaintiff was not "denied employment" for either position. ( Id.).
Plaintiff ultimately sued GEMS (and Mr. McDaniel) is state court alleging age discrimination under the Louisiana Age Discrimination in Employment Act (LSA-R.S. 23:311 et seq.) for GEMS' failure to hire her for both the Sales Secretary position and the Regional Sales Administrator. Additionally, Plaintiff alleged that GE breached certain contractual obligations (Complaint, ¶¶ 29-38), and violated her rights under the Louisiana Constitution (Complaint, ¶ 39).
In Plaintiff's Motion for Summary Judgment, she argues that GEMS refused to honor its obligations to her for preferential hiring and early retirement either as set forth in the 1995 and/or 1998 versions of the " Your GE Benefits Handbook", or through unwritten obligations. ( See Plaintiff's Supporting Memo., pp. 16-19).
Regarding damages, plaintiff asserts that she "is not making any demand for particular unpaid claims for health or other benefits that accrued prior to her application for jobs at GE in May, 1998." ( See Plaintiff's Memo. in Support of her Motion for Summary Judgment, p. 19). Rather, Plaintiff claims that "[t]he claim for damages in this lawsuit is a claim for salary and benefits that would have attached to GE jobs after May of 1998." Id. Additionally, Plaintiff seeks attorney's fees and punitive damages. Id. at 19-20.
Defendant removed the matter to this court under federal question jurisdiction, claiming that "Plaintiff seeks to recover health benefits which are provided under the provisions of an employee welfare benefit plan within the meaning of . . . the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001, et seq." (Doc. No. 1, Notice of Removal, ¶ 2).
Defendant also asserted diversity jurisdiction, claiming that there was diversity between Plaintiff and GE, and that while Grover McDaniel was a citizen of Louisiana, he was fraudulently joined. ( Id. at ¶¶ 6-8)
Plaintiff filed a Motion to Remand for lack of jurisdiction, but the court denied that motion finding that the court had jurisdiction based on either federal question or diversity jurisdiction. The court also granted the Defendants' Motion to Dismiss Claims Against Grover C. McDaniel, finding that there was no possibility of Plaintiff's recovery from Defendant McDaniel. (Minute Entry, Doc. No. 13). Now, the court must decide if either party is entitled to summary judgment.
II. Legal Analysis
A. Plaintiff's age discrimination claims
Plaintiff's age discrimination claims are asserted under the Louisiana Age Discrimination in Employment Act, LSA-RS. 23:311 et seq. Because the prohibition against age discrimination under the Louisiana Act is identical to that of the federal statute prohibiting discrimination on the basis of age, courts look to federal case law for guidance when faced with age discrimination claim asserted under the state law. Barbe v. A.A. Harmon Co., 705 So.2d 1210, 1215 (La.App. 4th Cir. 1998). Thus, here the court will evaluate Plaintiff's age discrimination claims under federal case law.
Plaintiff admits that there is no direct evidence of Defendant's alleged discriminatory intent. In analyzing indirect evidence discrimination claims, the court first determines whether or not Plaintiff has satisfied her initial burden of establishing a prima facie case of age discrimination in the hiring context by showing that:
(1) she is a member of a protected group (over 40 years old);
(2) she applied for and was qualified for the job for which the employer was seeking applicants;
(3) she was not hired; and
(4) the position she sought was filled by someone (younger than 40 years old) not within her protected class.McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973); Haas v. Advo Systems, Inc., 168 F.3d 732, 733 (5th Cir. 1999).
Once the Plaintiff establishes a prima facie case of discrimination, the Defendant must articulate a legitimate, nondiscriminatory reason for not hiring Plaintiff. If the Defendant does so, the inference of discrimination raised by the prima facie case disappears, and the Plaintiff must prove, by preponderance of the evidence, both that the defendant's articulated reason is falseand that the defendant intentionally discriminated because of Plaintiff's age. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 510-11, 113 S.Ct. 2742, 2748-49, 125 L.Ed.2d 407 (1993); Walton v. Bisco Industries, Inc., 119 F.3d 368, 370 (5th Cir. 1997); Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 149 (5th Cir. 1995).
The Fifth Circuit has elucidated:
Although the St. Mary's Court noted that "rejection of the proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination," it continued that rejection of the proffered reasons does not compel judgment for the plaintiff. Id. at 511, 113 S.Ct. at 2749 (emphasis in the original) n. 4 ("Even though (as we say here) rejection of the defendant's proffered reasons is enough at law to sustain a finding of discrimination, there must be a finding of discrimination." (emphasis in original). Thus, "nothing in law would permit us to substitute for the required finding that the employer's action was the product of unlawful discrimination, the much different (and much lesser) finding that the employer's explanation of its action was not believable." Id. at 514-15, 113 S.Ct. at 2750-51.Walton v. Bisco Industries, Inc., 119 F.3d 368, 371 (5th Cir. 1997).
Simply put, "there is no disparate treatment under the [age discrimination statute] when the factor motivating the employer is some feature other than the employee's age." Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S.Ct. 1701, 1706 (1993)
In applying the burden-shifting analysis to this case, the court finds that for both positions Plaintiff sought (i.e., Sales Secretary/Parts Analyst and Regional Sales Administrator), Plaintiff has submitted just enough evidence to create genuine issues of material fact regarding whether or not Plaintiff can a establish a prima facie case of age discrimination. Unquestionably, plaintiff meets the first and third prongs of the prima facie case: She was over the age of 40, and she was not hired. The genuine issues of material fact involve the second and fourth prongs of the prima facie case, i.e.:
(2) did Plaintiff apply for and was she qualified for the job for which the employer was seeking applicants?; and
(4) was the position she sought filled by someone (younger than 40 years old) not within her protected class?
Regarding the first position sought by Plaintiff, Plaintiff asserts that she interviewed for the position of "Sales Secretary". Defendant, however, claims that this position was subsumed into the position of "Regional Sales Administrator". Further, while the position of "Parts Analyst" was filled by a male younger than 40 years old, Defendant contends that this position was not the "Sales Secretary" position. Of course, Plaintiff argues that the two positions are one and the same, and in any event she should have been offered the position of "Parts Analyst".
Regarding the second position sought by Plaintiff, Plaintiff interviewed for the position of "Regional Sales Administrator". While this position was also given to someone younger than 40 years old, this person was a contract employee working 30 hours a week for a staffing company.
Nevertheless, assuming plaintiff could establish (for each position sought) a prima facie case thus creating a presumption that Defendant unlawfully discriminated against her, Defendant has carried its burden of producing evidence that Plaintiff was not hired for legitimate, non-discriminatory reasons, thereby rebutting the Plaintiff's prima facie cases. Defendant claims that plaintiff did not exude the requisite enthusiasm and teamwork spirit for the job of Sales Secretary, and that in any event the position of Sales Secretary was subsumed into the Regional Sales Administrator position for which plaintiff was later interviewed. Defendant also claims that the position of Parts Analyst was different from that of Sales Secretary, and thus plaintiff was not interviewed for the Parts Analyst position. With regard to the Regional Sales Administrator position, Defendant again claims that Plaintiff did not exude the requisite enthusiasm and teamwork position for that position, and that in any event a "hiring freeze" prompted Defendant to hire a part-time, contract employee for that position. The court finds that these explanations, if believed, would support a finding that the decision not hire plaintiff were not discriminatory.
The Defendant's "production" (whether ultimately persuasive or not) having been made, the court must then decide whether or not plaintiff can avoid summary judgment. "[A] jury issue will be presented and a plaintiff can avoid summary judgment . . . if the evidence taken as a whole (1) creates a fact issue as to whether each of the employer's stated reasons was what actually motivated the employer and (2) creates a reasonable inference that age was a determinative factor in the actions of which plaintiff complains." Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1996) ( en banc) (emphasis and underscore added).
"The employer, of course, will be entitled to summary judgment if the evidence taken as a whole would not allow a jury to infer that the actual reason for the discharge was discriminatory." Rhodes, 75 F.3d at 994. Although the evidence necessary to support an inference of discrimination may vary from case to case, "if the evidence put forth by the plaintiff to establish the prima facie case and to rebut the employer's reasons is not substantial , a jury cannot reasonably infer discriminatory intent." Id. (emphasis and underscore added).
Plaintiff argues that Defendant's reasons for not hiring her are false because of contradictory statements contained in the Defendant's position paper submitted to the EEOC. (See Plaintiff's Declaration, pp. 8-11, and Addendum, attached to her memorandum in support of Motion for Summary Judgment). Plaintiff also submits that Defendant "hid" the position of "Parts Analyst" from her and that it was simply the disguised continuation of the "Sales Secretary" position, and that even if that position was different from the "Sales Secretary" position, she was better qualified than Randy Polk, the person who got the job of "Parts Analyst". ( See Plaintiff's Declaration, pp. 5-7 attached to her memorandum in support of Motion for Summary Judgment).
With regard to the "Regional Sales Administrator" position, plaintiff claims that she was never told about any GE request that she work through a temporary agency, and she would have worked through a temporary agency had she been asked. Finally, Plaintiff contends that while Defendant has reasoned that she did not get either the "Sales Secretary" position or the "Regional Sales Administrator" position because she did not exude the requisite enthusiasm and teamwork spirit in her interviews, she previously had glowing evaluations from her former GE jobs. ( See Plaintiff's Declaration, pp. 29-37, and Exhibits 9-11, attached to her memorandum in support of Motion for Summary Judgment).
The court finds that the summary judgment evidence Plaintiff has submitted is sufficient to create a fact issue as to whether the Defendant's stated reasons were what actually motivated the Defendant not to hire Plaintiff. And while such evidence may support an inference that the Defendant's reasons are untrue, it isnot that type of "substantial" evidence that supports a reasonable inference of discriminatory intent.
Thus, the court concludes that Plaintiff's summary judgment evidence, taken as a whole, just barely creates fact issues as to both: (1) whether or not Plaintiff has established a prima facie case for either position sought; and (2) whether or not the Defendant's stated reasons actually motivated Defendant in not hiring Plaintiff. Such "bare bones" evidence, without more, is insufficient to independently support a reasonable inference of discriminatory intent to avoid summary judgment. Walton, 119 F.3d at 372; Grimes v. Texas Dept. of Mental Health and Mental Retardation, 102 F.3d 137, 140-41 (5th Cir. 1996)
Plaintiff argues that Defendant's motive behind not hiring her for the "Receptionist/Sales Secretary/Parts Analyst" position was age discrimination because:
Mrs. Smolensky was, after all, old. Worse, she was an experienced and loyal GE worker with long service and fidelity to GE, not to Messieurs McDaniel and Sumner. They knew her to be honest and highly capable, two virtues not trusted by the managers. As a practical matter, Mr. McDaniel knew her to be capable of upward mobility (toward his job) and lateral mobility (toward another GE division). Because her long service gave Mrs. Smolensky this mobility, Mr. McDaniel was not interested ( sid) losing his position or losing her position to another GE division. Mr. McDaniel would have to start over. ( sic) knew Mrs. Smolensky to be overqualified. He also knew that, because she was a 28 or 29 year performer, she might be able to retire under several early retirement options available only for older GE workers. He also knew that as an older GE worker she could have as many as 66 days off a year.
More importantly to Mr. McDaniel's age motivation (and GE's cover up) is that he knew that, when he stealthily hired Polk, he and GE were facing an age discrimination claim. So Mr. McDaniel or some as yet unknown presence at GEMS created the fictions in the Schaefer letter [submitted to the EEOC].
(Plaintiff's Memo. in support of her Motion for Summary Judgment, pp. 12-13) (citations to Plaintiff's Statement of Uncontested Material Facts omitted).
The court notes that Plaintiff's 87-page Statement of Uncontested Material Facts (containing 809 enumerated items) are replete with references to Plaintiff's 64-page Declaration (i.e., the Smolensky Declaration), which is attached to Plaintiff's memorandum in support of her Motion for Summary Judgment.
In ruling on the motions before the court, the court has thoroughly reviewed Plaintiff's Declaration, Plaintiff's 54 Exhibits attached to her memorandum in support of her Motion for Summary Judgment, as well as all other declarations and exhibits attached to other memoranda submitted by the respective parties. To the extent that the declarations and exhibits are competent summary judgment evidence, the court has considered them as such.
With regard to the "Regional Sales Administrator" position, Plaintiff maintains that "[t]he age discrimination motives of Mr. McDaniel and Mr. Sumner were the same for this job as they were for the Sales Secretary position." ( Id. at 15) (citation to Plaintiff's Statement of Uncontested Material Facts omitted) Plaintiff argues that:
The managers were concerned about Mrs. Smolensky's age, her long GE experience, the quality of her work, her high level of enthusiasm, her leadership, her commendations for integrity, her loyalty to GE (not to Messieurs McDaniel and Sumner), her "overqualified" status, her ability to take over their own jobs, her job mobility, her early retirement options under SERO and PCPO, and her six weeks of vacation, and twenty days of personal/illness pay, and eleven holidays.
( Id. at pp. 15-16)
At the outset, the court finds that plaintiff's arguments regarding "discriminatory age motive" are just that — argument. Further, such argument (which portrays Defendant as believing that Plaintiff was extremely competent and productive) in large part belies the essence of what is sought to be prohibited in the antiage discrimination laws. "It is the very essence of age discrimination for an older employee to be [adversely affected by an employment decision to non-hire or fire] because the employer believes that productivity and competence decline with old age." Hazen, 113 S.Ct. at 1706.
Plaintiff also submits her own Declarations wherein plaintiff self-servingly asserts why she should have been offered the positions she sought. While such assertions, if true, may help to establish that Defendant's proffered reasons for not hiring her were imprudent or even untrue, they do not establish that the proffered reasons were a pretext for age discrimination. While plaintiff truly believes that Defendant made an unfair business decision in not hiring her, the court recognizes that:
In many instances, Plaintiff touts her years of experience. However, the Fifth Circuit has repeatedly stated that "an attempt to equate years served with qualifications . . . is unpersuasive." Nichols v. Lewis Grocer, 138 F.3d 563, 569 (5th Cir. 1998) (internal quotation marks and citations omitted)
The ADEA was not intended to be a vehicle for judicial second-guessing of employment decisions, nor was it intended to transform courts into personnel managers. The ADEA cannot protect older employees from erroneous or even arbitrary personnel decisions, but only from decisions which are unlawfully motivated.Bienkowski v. American Airlines, Inc., 851 F.2d 1503, 1507-08 (5th Cir. 1988) ( citations omitted); Walton, 119 F.3d at 372.
Plaintiff's "subjective belief of discrimination, however genuine, [may not] be the basis of judicial relief." Lawrence v. University of Texas Medical Branch, 163 F.3d 309, 313 (5th Cir. 1999) (citations omitted).
In response to a defendant's motion for summary judgment in an age discrimination context, it is incumbent upon the plaintiff to present evidence — not just conjecture and speculation — that the defendant did not hire her on the basis of her age.
Summary judgment, to be sure, may be appropriate, even in cases where elusive concepts such as motive or intent are at issue, . . . if the nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation.Grimes v. Texas Dept. of Mental Health and Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996) (citations omitted).
Finally, the court rejects plaintiff's position that Defendant discriminated against her on the basis of her age because by not hiring plaintiff, Defendant prevented Plaintiff from receiving benefits such as early retirement and generous vacation and sick days. In Hazen, the Supreme Court held that "an employer does not violate the ADEA just by interfering with an older employee's pension benefits that would have vested by virtue of the employee's years of service." Hazen, 113 S.Ct. at 1707-08.
In a pre- Hazen case, the Fifth Circuit noted that:
[S]eniority and age discrimination are unrelated. The ADEA targets discrimination against employees who fall within a protected age category, not employees who have attained a given seniority status. This is borne out, to be sure, by the simple observation that a 35-year old employee might have more seniority than a 55-year old employee. . . . We state without equivocation that the seniority a given plaintiff has accumulated entitles him to no better or worse treatment in an age discrimination suit.Williams v. General Motors Corp., 656 F.2d 120, 130 n. 17 (Fifth Cir. 1981).
"This is true even if the motivating factor is correlated with age, as pension status typically is." Id. at 1706. As the Hazen court explained:
Pension plans typically provide that an employee's accrued benefits will become nonforfeitable, or "vested," once the employee completes a certain number of years of service with the employer. On average, an older employee has had more years in the work force than a younger employee, and thus may well have accumulated more years of service with a particular employer. Yet an employee's age is analytically distinct from his years of service. An employee who is younger than 40, and therefore outside the class of older workers as defined by the ADEA . . ., may have worked for a particular employer his entire career, while an older worker may have been newly hired. Because age and years of service are analytically distinct, an employer can take account of one while ignoring the other, and thus it is incorrect to say that a decision based on years of service is necessarily "age based."Id. at 1706-07. See also, Armendariz, 58 F.3d at 152, 153 ("ADEA prohibits discrimination on the basis of age, not salary or seniority"; "ADEA does not provide a cause of action for interference with retirement benefits that are based on seniority, without evidence the decision was motivated by age").
Thus, in this case, the court concludes that a jury could not infer age-motivation from the implausibility of Defendant's explanations where the unsavory motive of interference with Plaintiff's early retirement or vacation/sick days may be present. And Plaintiff has fallen well short of her obligation to submit other sufficient, competent evidence from which a jury could reasonably infer that Defendant more likely than not did not hire Plaintiff because of her age. In short, while Plaintiff may have proven the existence of a crusade not to hire her, she has offered insufficient proof to show that the crusade was motivated by age, rather than by some other motivation which is not discriminatory.
Accordingly, the court will dismiss Plaintiff's age discrimination claims.
B. Plaintiff's contractual claims
In her Motion for Summary Judgment, Plaintiff claims that Defendant GEMS refused to honor its obligations to her for early retirement, preferential hiring, job search assistance and special placement. (Plaintiff's Memo., pp. 16-19).
To the extent Plaintiff is seeking retirement benefits under the GE retirement plan, only the Pension Plan, not GEMS, is the proper party defendant. ERISA, 29 U.S.C. § 1132(a)(1)(B); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 53, 107 S.Ct. 1549, 1556 (1987). Further, Plaintiff must first exhaust her administrative remedies before she can pursue an action in court.
In her Reply to Defendant's Opposition, Plaintiff states that: "on the possibility that the claims [for early retirement] are in fact ERISA claims, the plaintiff hereby withdraws from [her] Motion for Summary Judgment, the claim for actual, accrued early retirement, but solely under the Plant Closing Pension Option, in 1996 and 1997. (Plaintiff's Reply at 12).
With regard to her claims for preferential hiring, job search assistance and special placement, Plaintiff can cite no contractual basis for such claims. Rather, Plaintiff improperly relies on statements in a GE Benefits Book which was not issued until 1998, more than a year after she was laid off. Finally, any of Plaintiff's contractual claims which are based on alleged verbal statements are both factually and legally unsupportable.
Accordingly, the court will dismiss Plaintiff's contractual claims.
C. Plaintiff's claims alleging constitutional violations
In Paragraph 39 of her Complaint, Plaintiff alleges that:
[Defendant's actions] are violations of [her] rights under Article I, Section 3 of the Louisiana Constitution for which [she] is entitled to a private remedy.
The Louisiana Constitution, Article 1, Section 3 provides that:
No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex culture, physical condition, or political ideas or affiliations. . . .
This Article on its face only deals with laws that discriminate against an individual. It does not create a cause of action against a private individual or a company. Hornsby v. Enterprise Transportation Co., 987 F. Supp. 512 (M.D.La. 1997) (Polozola, J.).
Accordingly, the court will dismiss Plaintiff's claims alleging violations of the Louisiana constitution.
D. Plaintiff's Motion for Leave File an Amended Complaint of Defamation and Filing a False Statement
On March 17, 2000 (within four weeks of the Pre-Trial Conference and Trial), Plaintiff filed a "Motion for Leave to File an Amended Complaint of Defamation and Filing a False Statement" against both General Electric Company and Grover McDaniel (who the court had. long age dismissed from this litigation as fraudulently joined). The basis of filing such an amended Complaint is the "Schaefer letter", which was GE's position letter submitted to the EEOC.
The court finds that plaintiff should not be allowed to file this amended Complaint because: (1) the motion is untimely and plaintiff has failed to show that the delay in filing an Amended Complaint was due to oversight, inadvertence or excusable delay; and (2) Defendant's right to develop facts concerning the new claims and file appropriate dispositive motions would be prejudiced, especially when Defendant had already filed a Motion for Summary Judgment seeking dismissal of Plaintiff's original claims. III. Conclusion
A party's attempt to raise new theories of recovery by amendment when the opposing party has filed a motion for summary judgment is more carefully scrutinized. Parish v. Frazier, 195 F.3d 761, 764 (5th Cir. 1999).
For the reasons set forth above,
IT IS ORDERED that Defendant General Electric Company's Motion for Summary Judgment be and is hereby GRANTED, dismissing all of Plaintiff's claims against Defendant;
IT IS FURTHER ORDERED that Plaintiff Jane F. Smolensky's Cross-Motion for Summary Judgment be and is hereby DENIED;
IT IS FURTHER ORDERED that Plaintiff Jane F. Smolensky's Motion for Leave to File Amended Complaint be and is hereby DENIED.