Opinion
Civil Action No. 3:98-CV-2479-D.
July 10, 2000.
MEMORANDUM OPINION AND ORDER
Plaintiff Sandra Christiason ("Christiason") sues defendant Hilite Industries, Inc. ("Hilite") alleging age discrimination and retaliation, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and a pendent state-law claim for intentional infliction of emotional distress. Hilite moves for summary judgment. For the reasons that follow, the court grants the motion as to Christiason's retaliation and intentional infliction of emotional distress claims and denies it as to Christiason's age discrimination claim.
I
In April 1997 Hilite hired Christiason, who was then age 50, as an employee. In September 1997 she began working as an assembler on the T.O.D. coil line. In November 1997 the position of Lead Person I of the T.O.D. coil line became open. Christiason was among eight employees who applied for the job. Hilite selected Beverly Moore ("Moore"), who was younger than Christiason. Christiason maintains that this was age discrimination.
Christiason vaguely refers in her response brief to Hilite's failure to promote her to various other supervisory positions that she did not learn about until after the positions had already been filled. See P. Br. at 11-12. She has failed, however, to adduce evidence that would permit the finding that these positions existed or that she was eligible to apply for them. See id. Therefore, the court grants Hilite summary judgment to the extent that Christiason's promotion claim is based on any conduct other than Hilite's decision not to select her for the job of Lead Person I.
Christiason avers that Hilite terminated her in June 1998 due to her age and in retaliation for having complained to management that she was being required to work in debilitatingly dusty conditions that injured her health by causing her respiratory problems. She also contends that Hilite is liable for the tort of intentional infliction of emotional distress.
II
Hilite seeks summary judgment dismissing Christiason's promotion-based age discrimination claim.
A
The ADEA makes it "unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). Plaintiffs may prove age discrimination by direct evidence or by circumstantial evidence under the familiar McDonnell Douglas burden-shifting framework. See Reeves v. Sanderson Plumbing Prods., Inc., ___ U.S ___, 120 S.Ct. 2097, 2105 (2000). Under McDonnell Douglas the plaintiff must establish a prima facie case of discrimination. Id. at 2106. Once she meets that burden, the employer is obligated to produce a legitimate, nondiscriminatory reason for the employment decision at issue. See id. This is a burden of production, not persuasion. Id. Once the employer meets this production burden, the presumption of discrimination disappears. Id. The plaintiff must prove by a preponderance of the evidence that the legitimate reasons offered were not the true reasons but were a pretext for discrimination. Id. "[T]he plaintiff may attempt to establish that [s]he was the victim of intentional discrimination "by showing that the employer's proffered explanation is unworthy of credence.'" Id. (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981)). "[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 2109. "[I]t is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation." Id. at 2108. "Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive." Id. At the summary judgment stage, the plaintiff need only raise a genuine issue of material fact. See Tutton v. Garland Indep. Sch. Dist., 733 F. Supp. 1113, 1116 (N.D. Tex. 1990) (Fitzwater, J.).
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
In the Fifth Circuit, McDonnell Douglas applies to age discrimination claims. See, e.g., Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993). In Reeves the Supreme Court noted that it had yet to decide this question. It assumed arguendo that the McDonnell Douglas framework was "fully applicable." Reeves, 120 S.Ct. at 2105.
B
Hilite argues that Christiason' s claim fails at the first step. It maintains that she has not met her prima facie burden.
Christiason may satisfiy this requirement by demonstrating that (1) she was not promoted, (2) she was qualified for the position she sought, (3) she was within the protected class at the time of the failure to promote, and (4) either the position she sought was filled by someone outside the protected class, the position was filled by someone younger, or she was otherwise not promoted because of her age. Bennett v. Total Minatome Corp., 138 F.3d 1053, 1060 (5th Cir. 1998). Hilite asserts that Christiason has not shown that she was qualified for the promotion because the Lead Person I position required someone who possessed knowledge of the T.O.D. coil line assembly process, demonstrated a willingness to learn the different assembly stations on the line, and exhibited the ability to work well with other coil line employees, and Christiason has not demonstrated that she possessed any of these qualifications.
Regarding the first qualification, the summary judgment record shows that Christiason began working as an assembler on the T.O.D. coil line in September 1997. The Lead Person I position opened in November 1997. Christiason adduced sufficient proof for a prima facie case that she possessed knowledge of the T.O.D. coil line assembly process,
The court declines to hold on the basis of the other criteria — a willingness to learn the different assembly stations and the ability to work well with others — that Christiason has failed to make the required showing that she was qualified because these measures are subjective. See Lindsey v. Prive Corp., 987 F.2d 324, 327 (5th Cir. 1993) ("Subjective criteria should not be considered a part of the prima facie evaluation in a summary judgment proceeding.").
Because Hilite does not dispute the other elements of Christiason's prima facie case, the court holds that she has otherwise met her burden.
C
Hilite is now obligated to produce evidence of a legitimate, nondiscriminatory reason for denying the promotion. The court holds that it has met its burden.
Moreover, Christiason concedes in her brief that "Defendant has articulated that Plaintiff was not as qualified as the person who was promoted, thus justifying to Defendant the failure to promote her, and Defendant has articulated that Plaintiff was excessively absent, thus justifying to Defendant her termination." P. Br. at 8.
Hilite has introduced evidence that it did not promote Christiason to the Lead Person I position because she was not the most qualified applicant. It hired someone for the job who had better knowledge of the processes and tasks on the line and was able to cooperate better with the other workers. Hilite based its decision on the fact that Christiason had been involved in several disagreements with coworkers and thus lacked necessary personal skills to handle the job. This is sufficient evidence of legitimate, nondiscriminatory reasons for failing to promote Christiason, and satisfies its burden of production. See, e.g., Laurence v. Chevron, U.S.A., Inc., 885 F.2d 280, 283-84 (5th Cir. 1989) (holding that employer met production burden by showing that ADEA plaintiff was not promoted because he was not qualified for higher position and younger employee who was promoted was qualified and was considered an outstanding performer).
D
Christiason is now obligated to introduce evidence that would permit a reasonable trier of fact to find that Hilite's proffered reasons are pretextual.
Without suggesting that Christiason's other evidence is sufficient, the court holds that she has presented a genuine issue of material fact through statements she attributes to Jim Nantz ("Nantz"), her supervisor and the person responsible for filling the Lead Person I position. Christiason has sworn under oath that Nantz "told [her] specifically that her age was a reason that he did not give her the promotion over the younger person who was promoted[.]" P. Br. at 9. She testified in her deposition that after Moore told her she had gotten the job, she was upset and went to talk to Nantz, asking him why she had not been selected. Nantz told Christiason that she had not even placed second in the rankings. P. App. 19. When she inquired why, he replied that he did not think she would get along with people down the road. Id. Christiason also testified that, during the meeting, Nantz mentioned that "[Moore] was younger than I." Id. She stated under oath that Nantz told her that Moore got the job because "she was younger than I was and he thought that I would have trouble down the road with people." Id. at 21.
"In order for an age-based comment to be probative of an employer's discriminatory intent, it must be direct and unambiguous, allowing a reasonable jury to conclude without any inferences or presumptions that age was a determinative factor in the decision to terminate the employee." Wyvill v. United Cos. Life Ins. Co., 212 F.3d 296, 2000 WL 621305, at *7 (5th Cir. May 31, 2000) (citing EEOC v. Texas Instruments, Inc., 100 F.3d 1173, 1181 (5th Cir. 1996)). Mere "stray remarks" are insufficient to prove pretext. Id.
Christiason's testimony raises the genuine fact issue whether Hilite's proffered reasons were pretextual in nature. Nantz's comments cannot be properly classified as mere "stray remarks." In contrast to cases that have found spatially unrelated, amorphous age-based comments to be insufficient proof of pretext, Christiason testified that her meeting with Nantz occurred the same day she learned that Moore was being promoted over her, P. App. 18, and that Nantz's age-based comments were made in direct response to her inquiry about why she did not receive the promotion, id. at 21. Her evidence is more akin to that introduced by the plaintiff in Weaver v. Amoco Production Co., 66 F.3d 85, 86-87 (5th Cir. 1995). In Weaver the Fifth Circuit upheld a jury verdict of age discrimination based on evidence of a conversation between the plaintiff and his supervisor in which the supervisor informed the plaintiff that he was being discharged and made age-related comments in explaining the company's decision. Id. A reasonable trier of fact could infer discriminatory intent from Nantz's comments. The court therefore denies Hilite's motion for summary judgment on Christiason's age discrimination promotion claim.
Hilite objects to Christiason's deposition testimony on this issue as not supporting the proposition for which it is cited and as inadmissible hearsay. See D. Objs. at 3. The court denies the objections. Christiason testified directly that age was a reason Nantz gave her for not promoting her. See P. App. at 21. Furthermore, Nantz's alleged comments are not hearsay because they are admissions by a party-opponent. See Fed.R.Evid. 801(d)(2).
See, e.g., Wyvill, 2000 WL 621305, at *7 (chief executive officer's comments that were neither direct and unambiguous nor related in time to plaintiff's claim were not probative of discriminatory intent); Price v. Marathon Cheese Corp., 119 F.3d 330, 337 (5th Cir. 1997) (supervisor's comment that he wanted to hire "young blood" uttered two years prior to plaintiff's firing not supportive of discriminatory intent); Mooney v. Aramco Serv. Co., 54 F.3d 1207, 1218 (5th Cir. 1995) (amorphous age-related comments by supervisors were not probative of discriminatory intent where the comments did not directly pertain to defendant's motives for terminating plaintiffs); Waggoner v. City of Garland, Tex., 987 F.2d 1160, 1166 (5th Cir. 1993) (supervisor's statements that a younger person could work faster and his references to plaintiff as an "old fart" not sufficient to demonstrate discriminatory intent); Turner v. North Am. Rubber, Inc., 979 F.2d 55, 59 (5th Cir. 1992) (boss' comment that he was sending him "three young tigers" made more than one year prior to plaintiff's discharge was not indicative of discriminatory intent),
III
The court next considers Hilite's motion for summary judgment concerning Christiason's cause of action for retaliation.
Christiason alleges that Hilite terminated her because she complained to management that she was being required to work in black dust. See P. Br. at 12. To prove retaliation, Christiason must establish that she engaged in an activity protected by the ADEA. As Hilite correctly points out, Christiason has not adduced evidence that, if believed by a jury, would permit the finding that she engaged in such an activity. In her response brief, the only protected activity to which Christiason alludes is her "meeting with management to discuss and bring to their attention her concerns about the black dust in November 1997[.]" Id. This clearly does not involve a protected activity under the ADEA. The court therefore dismisses Christiason's retaliation claim.
IV
Hilite moves for summary judgment dismissing Christiason's cause of action for intentional infliction of emotional distress.
To recover on such a cause of action, Christiason must establish that (1) Hilite acted intentionally or recklessly, (2) its conduct was extreme and outrageous, (3) its actions caused her emotional distress, and (4) the emotional distress was severe. See Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993); see also Stults v. Conoco, Inc., 76 F.3d 651, 658 (5th Cir. 1996). Extreme and outrageous conduct is that which is so extreme in degree, or so outrageous in character, as to go beyond all bounds of decency, to be regarded as atrocious, and utterly intolerable in a civilized community. Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex. 1993); see also Stults, 76 F.3d at 658. "Generally, the case is one in which a recitation of the facts to an average member of the community would lead him to exclaim, `Outrageous.'" Cantu v. Rocha, 77 F.3d 795, 810 (5th Cir. 1996) (quoting Dean v. Ford Motor Credit Co., 885 F.2d 300, 306 (5th Cir. 1989)). "It is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery." McKethan v. Texas Farm Bureau, 996 F.2d 734, 742 (5th Cir. 1993) (quoting Wornick Co., 856 S.W.2d at 734). "The essential ingredient of extreme and outrageous conduct required for such a claim has been narrowly construed in the employment context." Hagen v. BeautiControl Cosmetics, Inc., 1998 WL 355479, at *2 (N.D. Tex. June 30, 1998) (Fitzwater, J.) (quoting Pilarcik v. Silicon Sys., Inc., Civil Action No. 3:91-CV-1935-D, slip op. at 7 (N.D. Tex. Apr 21, 1983 (Fitzwater, J.)). Such a construction makes establishing "extreme and outrageous" conduct in the employment context very difficult. See id.
The court holds as a matter of law that Christiason has failed to adduce evidence that would permit a reasonable jury to find intentional infliction of emotional distress. Christiason apparently maintains that Hilite committed this tort essentially by causing her illness due to her reaction to hazardous workplace material and then terminating her for seeking treatment. P. Br. at 13. She is obligated to adduce evidence that, if believed by a jury, would support these assertions. Under this court's local civil rules, she "must include in [her] brief citations to each page of the appendix that supports each assertion that the party makes concerning the summary judgment evidence." N.D. Tex. Civ. R. 56.5(c).
Christiason cites nine pages from her deposition in support of this claim. See P. Br. at 13 (citing P. App. 27-32, 36-38). As a matter of law, the evidence addressed in these excerpts would not permit a reasonable finding of conduct that it is so extreme in degree, or so outrageous in character, as to go beyond all bounds of decency, to be regarded as atrocious, and utterly intolerable in a civilized community. This proof refers to Christiason's being taken off the coil line and put on bending wires, P. App. 27; working in a hostile work environment with sarcastic remarks, id. at 28; when she left the line to go to the bathroom, inquiring where she had been and how long she had been gone and asking her why the line was not running as if she was the one preventing it from doing so, id at 29; Nantz, her supervisor, prohibited smoking in the T.O.D. coil line area, yet he smoked and Hilite permitted smoking everywhere else in the building, id. at 29-30; limiting smoking in one area to one side of a table, id.; Nantz came out of an office, a little mad, and made an arm gesture, Id. at 31; and Nantz let a coworker bang on an iron rack because he knew it would irritate her, id. at 32. Additionally, Christiason has not adduced evidence that would permit a reasonable trier of fact to find that her emotional distress was severe. See P. App. 36-38 (addressing worry, nervousness, upset at inability to pay bills, and use of muscle relaxer-type pills for one month).
The other appendix pages cited, see P. App. 36-38, concern the symptoms of emotional distress that she says she suffered, not the acts that she alleges constitute extreme and outrageous conduct.
V
Christiason alleges that Hilite discriminated against her based on her age by terminating her employment. Hilite has not moved for summary judgment on this basis. It addresses the issue of termination, but only in the context of Christiason's retaliation cause of action. See D. Br. at 13-17. Although there is obviously substantial overlap between the termination issue as it relates to age discrimination and as it pertains to retaliation, it is error for the court to grant summary judgment on a ground not properly raised. See John Deere Co. v. American Nat'l Bank, Stafford, 809 F.2d 1190, 1192 (5th Cir. 1987). Accordingly, today's summary judgment decision does not address Christiason' s claim that Hilite terminated her based on her age.
* * *
Hilite's motion for summary judgment is granted in part and denied in part.
SO ORDERED.