Summary
In Stallworth, the court reasoned that because on two occasions the defendant said that a particular reason was the sole reason for termination, but then on a subsequent occasion gave an additional reason, even if the second reason could be viewed as complementing the first, because the defendant had previously insisted that there was only one reason, a jury could conclude that the reasons are inconsistent and, therefore, incredible.
Summary of this case from Lett v. RuskinOpinion
Civil Action 99-D-1503-N.
February 12, 2001
Lee Winston, Gordon, Silberman, Wiggins Childs, Birmingham, AL, For Plaintiff.
B. Barry Johnson, David W. Long, Sirote Permutt, For Defendant.
MEMORANDUM OPINION AND ORDER
Before the court is Defendant's Motion For Summary Judgment, which was filed November 21, 2000. Plaintiff filed a Response on December 11, 2000, and Defendant issued a Reply on December 18, 2000. After careful consideration of the arguments of counsel, the relevant law, and the record as a whole, the court finds that the Motion is due to be denied.
I. JURISDICTION AND VENUE
The court has subject matter jurisdiction over this lawsuit under 28 U.S.C. § 1331 (federal question), 42 U.S.C. § 1981 (Civil Rights Act of 1867), and 42 U.S.C. § 2000e (Title VII). The parties do not contest personal jurisdiction or venue.
II. SUMMARY JUDGMENT STANDARD
The court construes the evidence and makes, factual inferences in the light most favorable to the nonmoving party. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). Summary judgment is entered only if it is shown "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). At this juncture, the court does not "weigh the evidence and determine the truth of the matter," but solely determines whether there is more than "some metaphysical doubt" about the material facts and whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted); Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
III. FACTUAL BACKGROUND
This is a case in which Defendant E-Z Serve Convenience Stores has produced remarkably few pieces of admissible evidence to support its claim that Plaintiff Janice Stallworth was terminated for a legitimate, non-discriminatory reason. Plaintiff contends that her firing as a store manager at one of Defendant's stores was racially motivated. Plaintiff had worked at the store since September 1995, and she was promoted to store manager in January 1996. (Resp. at 2.) Apparently, the store was in a crime-ridden area, and it repeatedly suffered inventory shortages that could be attributed to any number of factors. (Id. at 2-3.)
In her position as store manager, Plaintiff was responsible for filling out inventory control forms that documented the flow of products offered for sale. (Thomas Decl. ¶ 7) In October 1998, Hazel Thomas, the district manager of operations, issued Plaintiff an "Employee Counseling Statement" that warned Plaintiff that she might be subject to termination, due to an inability to perform her job satisfactorily. (Def. Ex. J.) Plaintiff was terminated in February 1999 after four separate audits showed that her store continued to suffer inventory shortages. (Id. Ex. K.) She subsequently filed this civil action, alleging violations of Title VII and § 1981.
IV. DISCUSSION A. Defendant's Burden of Production
At the outset, the court finds that summary judgment is inappropriate because Defendant has never shifted the burden of production to Plaintiff to show that there is a genuine dispute of material fact. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-17 (11th Cir. 1993) (articulating summary judgment standard when non-moving party bears ultimate burden of proof).
The court construes Defendant's pleadings as designating the following material in support of its version of events concerning Plaintiff's termination: the Employee Counseling Statement, and the Personnel Action Form, and the deposition testimony of Thomas. (Mot. at 10, 17) (designating Thomas's Dep. at 88, 168-69; Def. Ex. J, K.) However, the parties agree that it was Whitney, not Thomas, who terminated Plaintiff. Thomas's speculations as to why Whitney took this step is a conclusion based on hearsay. See FED. R. EVID. 602, 801. "[I]n ruling on summary judgment motions, the court will not consider inadmissible hearsay." Givhan v. Electronic Eng'rs Inc., 4 F. Supp.2d 1331, 1334 (M.D. Ala. 1998).
Plaintiff raised this issue in her Response. (Resp. at 17.) Defendant ignored it in its Reply.
As to the other designated documents, Defendant has never informed the court why the information contained therein can be "`reduced to admissible evidence at trial.'" Cf. Macuba v. Deboer, 193 F.3d 1316, 1323 (11th Cir. 1999) (collecting cases). If the court were to draw inferences in Defendant's favor, it might conclude that the documents are business records. See FED. R. EVID. 803(6). But this is by no means clear, and the onus is on the parties — not the court — to provide arguments to support their positions. See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1999). Defendant could have easily submitted affidavits or pointed to other evidence laying the groundwork for admissibility of Exhibits J and K. But Defendant has failed to do so, and therefore has failed to provide admissible evidence regarding Plaintiff's termination. Therefore, the court finds that Defendant has failed to satisfy its burden of production. Summary judgment is due to be denied.See Fitzpatrick, 2 F.3d at 1115-17.
B. Basic Substantive Law
For purposes of a more complete record, however, the court analyzes this case on its merits. The ultimate question in a discriminatory discharge case is whether the defendant acted with discriminatory intent. See Jones v. Gerwens, 874 F.2d 1534, 1539 (11th Cir. 1989). Plaintiff may seek to prove discrimination by relying on either direct, circumstantial, or statistical evidence. See Holifield v. Reno, 115 F.3d 1555, 1561-62 (11th Cir. 1997). In this case, Plaintiff argues that she has produced sufficient circumstantial evidence for her claims to survive summary judgment. Thus, the familiar McDonnell-Douglas burden-shifting analysis applies. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
In part, the court does so because Plaintiff has relied on Exhibits J and K in her argument. See Chandler v. James, 985 F. Supp. 1094, 1098 (M.D. Ala. 1997), aff'd in relevant part sub nom. Chandler v. Siegelman, 230 F.3d 1313 (11th Cir. 2000) (court has discretion to consider uncontested documents).
The McDonnell-Douglas framework is identical in cases involving Title VII and § 1981. Therefore, the court may rely upon cases interpreting either statute in analyzing Plaintiff's claims.
Under McDonnell-Douglas, Plaintiff must first raise an inference of discrimination by establishing a prima facie case. In discriminatory discharge cases, this generally requires showing that: (1) Plaintiff is a member of a protected class; (2) Plaintiff was qualified for the job from which she was discharged; (3) Plaintiff was discharged in fact; and (4) Plaintiff's former position was filled by someone outside her protected class, or a similarly situated employee was treated more favorably. See Holifield, 115 F.3d at 1561-62; Edwards v. Wallace Community College, 49 F.3d 1517, 1521 (11th Cir. 1995); Moore v. State, 989 F. Supp. 1412, 1417-19 (M.D. Ala. 1997).
Production of a prima facie case shifts the burden to the defendant, who must proffer a legitimate, non-discriminatory reason for the adverse employment action. The employer's burden is "exceedingly light." Meeks v. Computer Assoc. Int'l, 15 F.3d 1013, 1019 (11th Cir. 1994). The burden then shifts back to the plaintiff, who must show that the employer's proffered reasons are a pretextual cover for discrimination. Combs v. Plantation Patterns, 106 F.3d 1519, 1539 (11th Cir. 1997).
If the employee does not offer sufficient evidence showing that each and every proffered reason is pretextual, then summary judgment is generally appropriate. See Chapman v. AI Transp., 229 F.3d 1012, 1024, 1030, 1037 (11th Cir. 2000) (en banc). If the employee meets this burden, however, then summary judgment is generally inappropriate, see id. at 1025 n. 11, and the trier of fact may then infer the ultimate fact of discrimination from the falsity of the employer's explanation. See Reeves v. Sanderson Plumbing Prods., 120 S.Ct. 2097, 2108-09 (2000).
1. Plaintiff's prima facie case
Defendant is entitled to summary judgment unless Plaintiff can first raise an inference of discrimination from the establishment of a prima facie case. Here, the first three elements are not seriously disputed; the court finds that Plaintiff is a black female, who was qualified for the position from which she was terminated. Defendant moves for summary judgment by arguing that Plaintiff cannot point to a similarly situated, non-protected employee who avoided Plaintiff's fate. (Resp. at 17.) The court disagrees.
In order to make a proper comparison, the court must first ascertain the precise grounds for Plaintiff's termination. Thus, in moving for summary judgment, the employer must clearly articulate its reasons for its actions. Otherwise, the court cannot analyze the fourth element of Plaintiff's prima facie case without substituting its judgment for the employer's. See Elrod v. Sears, Roebuck Co., 939 F.2d 1466, 1470 (11th Cir. 1991). Cf. Chapman, 229 F.3d at 1030 (employer is responsible for setting forth the criteria motivating its decisions).
The employer is master of the shop. Thus, if it proffers inconsistent reasons for termination, the court should analyze comparators at the most general level articulated. The employer's inconsistent statements, in and of themselves, can sometimes be evidence of discrimination, see Tidwell v. Carter Prods., 135 F.3d 1422, 1428 (11th Cir. 1998), and the Federal Rules of Civil Procedure mandate construction of evidence in the light most favorable to the plaintiff. See Celotex, 477 U.S. at 322. Put another way, if the employer is unsure of the reasons for termination, it should not expect the court to cobble together an argument on its behalf. See Vickers v. FedEx Corp., 2000 WL 1725356 at *6 (S.D. Fla. 2000) (courts should follow employer's statements in order to avoid "confusing apples with oranges.")
At this juncture, the court finds that a proper comparator is an employee who incurred inventory shortages at similar or greater levels than Plaintiff. While Defendant argues that the relevant inquiry is between Plaintiff and other managers who have failed to fill out inventory forms properly, (Reply at 4), such a narrow framework for inquiry is inappropriate. The elements of the prima facie case, are flexible, and the analysis is designed to identify the presence of possible discrimination. They should not be applied in a manner that venerates form over substance. See Moore, 989 F. Supp. at 1417-19; Peters v. Community Action Committee, Inc., 977 F. Supp. 1428, 1435 (M.D. Ala. 1997).
Defendant's proffered point of comparison is not viable, for evidence suggests that Plaintiff's failure to fill out forms properly may not be related to Defendant's adverse employment decision. The Personnel Action Form, for example, lists Plaintiff's "failure to control inventory" as the grounds for termination. (Pl. Ex. 13.) Three weeks later, apparently referring to Plaintiff's inability to control inventory, Thomas told the Alabama Department of Industrial Relations that she "had no problem with [plaintiff's] work other than this." (Id. Ex. 14) (emphasis supplied). In its letter to the EEOC, however, Defendant states something different; namely, that it terminated Plaintiff "not simply because of the extent of her inventory shortages," but also because of "her failure to perform inventory controls." (Id. Ex. 17 at 3.)
The court finds that these materials designate two separate reasons for Plaintiff's termination: her failure to control inventory, and her failure to complete inventory paperwork adequately. To be sure, one might infer that the reasons are linked; the failure to complete paperwork perhaps led to a failure to control inventory. But such an inference could be difficult to reconcile with Defendant's earlier statement that it had "no problem" with Plaintiff's work other than her repeated inventory shortages. (Id. Ex. 14.) "No problem," of course, suggests that Plaintiff's alleged inability to complete paperwork was not a problem. This is a reasonable inference, anyway, and Defendant bears the burden of showing the absence of a genuine issue of material fact.
After drawing inferences in Plaintiff's favor, the court finds evidence for a jury to conclude that Defendant's statement about Plaintiff's incomplete paperwork is simply a post hoc rationalization that may be a cover for the originally articulated reason of failure to control inventory. (Pl. Ex. 13-14.) Thus, the court finds that this original reason serves as the proper point of comparison, and the court finds that Plaintiff has established a prima facie case of discrimination. See Anderson v. Twitchell-A Tyco Int'l Ltd., 76 F. Supp.2d 1279, 1286 (M.D. Ala. 1999).
Several of Defendant's non-minority store managers had inventory shortages that were never audited. (Pl. Ex. 21.)
2. Defendant's proffered reasons and Plaintiff's showing of pretext
Because Plaintiff has raised an inference of discrimination, the burden of production shifts to Defendant to articulate a legitimate reason for her termination. Although the burden is exceedingly light, it does exist. "If there [is] no evidence that asserted reasons for discharge were actually relied on, the reasons are not sufficient to meet defendant's rebuttal burden." Bates v. Geryhound Lines, Inc., 81 F. Supp.2d 1292, 1302 (N.D. Fla. 2000) (quoting Lee v. Russell County Bd. of Educ., 684 F.2d 769, 775 (11th Cir. 1982)). As noted previously, while Defendant argues that Plaintiff "failed to complete and maintain inventory control paperwork in. the manner required of all managers," (Mot. at 2), the court sees little admissible evidence, if any, that reflects upon whether Whitney truly made her decision because of this reason. See supra Part IV.A.
Assuming that Defendant has met its burden of production, the court finds that Plaintiff has produced sufficient evidence to avoid summary judgment. Defendant proffers that Plaintiff "was fired simply because she continually failed to complete the forms in the manner required." (Mot. at 20.) This is legitimate. See Meeks, 15 F.3d at 1019; see also Chapman, 229 F.3d at 1030 n. 19. Thus, the burden shifts back to Plaintiff to show that it is pretextual.
In Bechtel Constr. Co. v. Secretary of Labor, 50 F.3d 926 (11th Cir. 1995), the Eleventh Circuit held that sufficient evidence of pretext exists when an employer offers inconsistent reasons for its decision. The employer in Brechtel originally stated that it terminated an employee due to the employee's "attitude, his `gung ho nature.'" Then, the employer stated that the layoff was "entirely . . . due to poor job performance." The Court held that the employer's "shifting explanations for its actions" demonstrated pretext. Id. at 935.
Employment law is not a game of "Gotcha!" and an employer's differing statements are not necessarily and automatically inconsistent. This case, however, differs from Bechtel in no appreciable way. On at least two occasions, Defendant suggested that the sole reason for termination was Plaintiff's failure to control inventory. (Pl. Ex. 13-14, 16.) On one subsequent occasion, though, Defendant stated that termination also resulted from the failure to complete paperwork. (Id. Ex. 17 at 3.) While the parties quibble over whether Defendant has offered two inconsistent reasons or one complimentary one, the court finds sufficient evidence for a rational jury to conclude that Defendant's explanation is inconsistent and, therefore, incredible. See Reeves, 120 S.Ct. at 2108-09.
The court cannot arrive at any other conclusion, given that Defendant has not produced the paperwork that Plaintiff allegedly failed to complete. Thomas cannot relate Plaintiff's inaccuracies with any degree of accuracy or reliability, and Plaintiff disputes Thomas's version of events. (Thomas's Dep. at 99; Stallworth's Dep. at 100, 203-04.) Thus, even after crediting Defendant's statement that Plaintiff failed to complete her inventory paperwork, there is a genuine factual dispute over this material issue.
V. CONCLUSION
All in all, the court finds that Plaintiff has addressed Defendant's proffered reason head-on and rebutted it. See Combs, 106 F.3d at 1539; see also Walker v. Nations Bank of Fla., 53 F.3d 1548, 1564 (11th Cir. 1995) (listing possible ways to show pretext). Although this is apparently a marginal case, a jury may properly find in Plaintiff's favor. Therefore, summary judgment is due to be denied. See Reeves, 120 S.Ct. at 2108-09.
VI. ORDER
It is CONSIDERED and ORDERED that Defendant's Motion For Summary Judgment be and the same is hereby DENIED.