Opinion
Civil Action No. 04-716 Section "K" (3).
March 21, 2005
Before the Court is defendant's Motion For Summary Judgment (Rec. Doc. 20). After reviewing the pleading, the memorandum, the relevant law, the Court GRANTS defendant's motion regarding plaintiff's gender discrimination claims and DENIES defendant's motion regarding plaintiff's retaliation claims.
BACKGROUND
Plaintiff was hired as a permanent Hourly Associate in early 1992, at Sam's Club in Alexandria, Louisiana. In April 2002, plaintiff was promoted to the position of Business Manager. See Exhibit A-Defendant's Motion, Cleveland Deposition, page 45. Thereafter, plaintiff was moved back to Front End Manager, a position she held prior to her Business Manager position. Id. at 22. She worked in this position until March 2003 when Director of Operations, Joe Boone, offered plaintiff the position of "Merch I" manager position in Baton Rouge. Id. at 49-54. Plaintiff accepted the job because she considered it to be a promotion and wanted to be closer to her family. Id. After moving to Baton Rouge, plaintiff was informed that she would be assuming the "Merch I" position at the Kenner Club. Id. at 57-61. Plaintiff maintained her Business Manager's salary and also received a "GAP" pay increase, which was an increase awarded to managers based on the distance that they moved away from their original Club. Id. at 61. In June 2003, less than three months after transferring to Kenner, female Associates complained to management that plaintiff had made some inappropriate remarks to them. Id. at 70-78. According to the plaintiff, the associates complained because they were attempting to deflect attention from her attempt to discipline them. Id. Plaintiff believed that the management acted improperly because instead of inquiring into plaintiff's attempt to discipline them, the management instead concentrated on the Associate's complaints against her. Id. at 83-92, 101-102. As a result on June 17, 2003, plaintiff was suspended for 10 days with pay and received a formal Coaching in the form of a Decision-Making Day on June 26, 2003. Id. at 73-73, 78-79. Plaintiff filed an EEOC complaint, discussed infra, regarding the suspension because she believed that she was unfairly treated, as she had never seen a male manager suspended for 10 days, when she had witnessed major incidents that had taken place with male managers. Id. at 76. Plaintiff returned to work late August 2003, due to medical leave. Id. at 125-126. Kenner General Manager, Art Mauterer, advised plaintiff that she was being moved to an Outside Sales Position so that she would not be working with the same people that had complained about her. Id. at 100-101. Plaintiff saw this position as a demotion. See Exhibit G EEOC Charge. On September 4, 2003, two weeks in her new position, plaintiff was offered the Merch I position in Baton Rouge. Id. at 127-129.
Any allegations of discrimination occurring at the Alexandria Office are not before this Court for failure to exhaust administrative procedures. See Analysis Section, infra.
Pursuant to Sam's policies, a Decision-Making Day is a paid day off in which the Associate is given the opportunity to think about what has occurred. The Decision-Making Day is the final step in the disciplinary process prior to termination and remains in effect for one year.
Plaintiff was in Baton Rouge from September 2003-May 6, 2004 when plaintiff was terminated for purchasing liquidated merchandise. See Exhibit 8 Exit Interview Form, Defendant's Motion. The circumstances surrounding this incident are unclear and is the subject of plaintiff's retaliation claim. On March 11, 2004, plaintiff filed the instant lawsuit alleging gender discrimination in violation of 42 U.S.C. § 2000e, et seq. On May 6, 2004, plaintiff was terminated due to the incident with the liquidated item. On May 28, 2004, plaintiff filed an Amended Complaint, asserting an additional claim for retaliation in violation of Title VII, alleging that she was terminated in retaliation for filing the original lawsuit.
LEGAL STANDARD
Summary judgment should 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). "Where 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." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Substantive law determines the materiality of facts, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant meets this burden, the burden shifts to the non-movant "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. "[M]ere allegations or denials" will not defeat a well-supported motion for summary judgment. Fed.R.Civ.P. 56(e). Rather, the non-movant must come forward with "specific facts" that establish an issue for trial. Id. When deciding a motion for summary judgment, the Court must avoid a "trial on affidavits. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts" are tasks for the trier-of-fact. Anderson, 477 U.S. at 255. To that end, the Court must resolve disputes over material facts in the non-movant's favor. "The party opposing a motion for summary judgment, with evidence competent under Rule 56, is to be believed." Leonard v. Dixie Well Service Supply, Inc. 828 F.2d 291, 294 (5th Cir. 1987).
ANALYSIS
I. GENDER DISCRIMINATION
Regarding the gender discrimination claims, the Court must first determine what allegations in the Original and Amended Complaint have been exhausted administratively. "The filing of an administrative complaint is ordinarily a jurisdictional prerequisite to Title VII action." Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995) (citations omitted). "Because of this requirement, we must examine[Cleveland's] complaint in light of the charges filed in her administrative complaint in order to determine whether she satisfied this jurisdictional prerequisite." Id. A condition precedent for bringing suit on an employment discrimination claim under Title VII is the timely filing and exhaustion of an EEOC charge. See 42 U.S.C. 2000e-5(e)(1); Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002), cert. denied, 537 U.S. 1200, 123 S.Ct. 1287, 154 L.Ed.2d 1041 (2003). "The scope of a Title VII complaint is limited to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Thomas v. Texas Department of Criminal Justice, 220 F.3d 389, 395 (5th Cir. 2000) ( citing Young v. City of Houston, 906 F.2d 177, 179 (5th Cir. 1990)).
On July 11, 2003 Cleveland filed a charge of sex discrimination with the EEOC. See Exhibit G, Defendant's Motion. The Charge refers to incidents that occurred when Cleveland was employed at the Kenner Office where she was given the position of Merch I Manager. On the Charge, plaintiff checked the box-discrimination based on sex. On the form, she wrote that on June 17, 2003, she was given a 10-day suspension (with pay) by General Manager, Arthur Mauterer, and had been Coached upon her return to work on June 26, 2003. The reason for the coaching was "for the use of profanity with partners in the club and for sharing personal information with partners about [her] sex life. Also, racial statements made about other members of the management team to hourly partners on three different occasions." Plaintiff also indicated on the Charge that her job title changed from "Merch I" Manager to going out and visiting business members to increase sales. The basis for the gender discrimination claim was that "no action" had been taken against Frank Tedesco, Merch I Manager for making sexual comments concerning female employees and against Craig Bailey in 2000, her supervisor, when she submitted a complaint for sexual harassment against him. In her deposition, plaintiff stated that no male managers had been given a Suspension when the complaints lodged against them were in her opinion more serious. Id. at 76. Allegations relating to gender discrimination claims occurring prior to the June 17, 2003 and were not alleged in the EEOC Charge are not properly before this Court. After examining the original Complaint, the Amended Complaint, and EEOC Charge, the Court construes plaintiff's claims as a disparate treatment claim. Furthermore, the basis for plaintiff's claim involves plaintiff's suspension for ten days with pay, Coaching, and alleged demotion from "Merch #1 Manager" to an "Unclassified position" at the Kenner branch for allegedly using profanity and discussing her sex life with female associates. Plaintiff claims that two other male employees did not receive similar treatment for complaints brought against them.
These claims include plaintiff's alleged demotion from Business Manager at Store #8181 in Alexandria, Louisiana to Front-End Manager. See First Amended Complaint ¶ 4.
A. Disparate Treatment Analysis
In order to establish disparate treatment, plaintiff must show that: (1) she is a member of a protected class; (2) she is qualified for the position; (3) she suffered an adverse employment action; (4) others outside of the class who were similarly situated were treated more favorable than she. Thompson v. Exxon Mobil Corp., 344 F.Supp.2d 971, 980 (E.D.Tex. 2004); Okoye v. University of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512 (5th Cir. 2001) (citations omitted).
Plaintiff has established the first two elements of her prima facie case, i.e., she is a member of a protected class and she was qualified for her position. Defendant has not argued these two points and the Court finds that she was qualified for her position as Merch I Manager. The Court must determine whether the third and fourth element of plaintiff's prima facie case are established. "[T]itle VII was only 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." Burger v. Central Apartment Mgmt., Inc., 168 F.3d 875, 878 (5th Cir. 1999) (quoting Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir.). See Felton v. Polles, 315 F.3d 470, 479-80 (5th Cir. 2002) (ultimate employment decision requirement applies in disparate treatment as well as retaliation cases). "[A]n employment action that `does not affect job duties, compensation, or benefits' is not an adverse employment action." Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004). "An employer's action does not rise to the level of an `adverse employment action' when it fails to have more than `mere tangential effect on a possible future ultimate employment decision.'" Mota v. University of Tex. Houston Health Sci. Ctr., 261 F.3d 512, 519 (5th Cir. 2001). Standing alone, plaintiff's 10 day suspension with pay in addition to the Coaching that subsequently followed does not constitute an adverse employment action, as plaintiff's pay, benefits, and level of responsibility remained the same. However, because plaintiff's allegation is that the 10 day Suspension and Coaching led to her demotion, the Court must also take into consideration the alleged demotion.
A demotion can be an adverse employment action if it meets the appropriate criteria. Evans v. City of Houston, 246 F.3d 344, 353 (5th Cir. 2001). "These criteria include `reassignment with significantly different responsibilities' and employment decisions `causing a significant change in benefits.'" Coker v. Dixie Motors, Inc., 2002 WL 32123992 (E.D.La.) ( citing Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 2268 (1998). Plaintiff claims that her transfer to an outside sales position was a demotion as there was no clear job description, this was a non-existent sales job, and she was unfamiliar with Kenner's geography, businesses, and people. Defendant argues the Outside Sales Job was a lateral move in order to separate the plaintiff from employees who had filed complaints against her which resulted in the 10 day suspension. Defendant argues that while plaintiff's responsibilities were reduced, her pay as a Business Manager was not. Despite defendant's arguments, the Court finds that plaintiff's new position as Outside Sales Management had significantly different responsibilities and although she retained her salary, her benefits did not remain the same in terms of future employment opportunities and current status. Although this is a close call, the Court finds that plaintiff did suffer an adverse employment action.
Furthermore, to establish a prima facie case, Cleveland must show that male employees were treated differently under circumstances "nearly identical" to hers. Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995). "[W]hen relying on comparisons to prove discrimination, the plaintiff has the burden to establish that [she] was discharged for misconduct that was `nearly identical' to that engaged in by a non-minority who was retained." Parikh v. United Artists Theaters Circuit, Inc. 934 F.Supp. 760, 765 (S.D.Miss. 1996); Wyville v. United Cos. Life Insurance Co., 212 F.3d 296, 304 (5th Cir. 2000). "[T]o establish disparate treatment a plaintiff must show that the employer `gave preferential treatment to [another] employee under `nearly identical circumstances;' that is, `that the misconduct for which [the plaintiff] was discharged was nearly identical to that engaged by . . . [other] employee[s].'" Okoye, 245 F.3d at 514.
The Court notes that female Associates made accusations against plaintiff in the Kenner Office; that Ms. Jo Lafayette, the Regional Personnel Director, advised plaintiff that she had obtained five to six statements that supported the allegations of those long-term Associates. Exhibit A, Cleveland Deposition at 102-104. Cleveland compares herself to two male Assistant Managers who were in the Alexandria Office. Mr. Boone (Regional Director of Operations) and Marietta Polk (General Manager) were the management personnel at the Alexandria office who handled plaintiff's complaints against the men. Id. at 49-54; See Plaintiff's Opposition, page 3. Mr. Mauterer (General Manager) and Ms. Lafayette (Regional Personal Director) were the management personnel involved in Kenner who handled the Associates' complaints against the plaintiff. See Little v. Republic Refining Co., Ltd. 924 F.2d 93, 97 (5th Cir. 1997) (circumstances were not nearly identical when employees' actions were reviewed by different supervisors). Plaintiff's complaint was made against her male supervisor Craig Bailey in March 2000 to Mr. Boone and Marietta Polk. Id. at 130-131, 330, 340-41. This is an entirely different situation than female associates bringing complaints against Ms. Cleveland in 2003. Furthermore, the allegations made against Mr. Tedesco are altogether unclear. Plaintiff testified that he made "jokes" about "blacks," "whites," "religions," and "sexual comments" at some undetermined time. Id. at 332-335. Plaintiff believed that she complained to Mr. Boone or another Manger, Mr. Lancloss. Id. at 130-132, 335. Plaintiff also admitted that she did not know what action was taken in response to her complaints. Id. at 333. In sum, there is no evidence that male employees in "nearly identical" circumstances have been treated differently. Mayberry, 55 F.3d at 1090. As such, plaintiff fails to make a prima facie case on this basis. Id. Furthermore, the Court notes that there are no specific arguments or objections in the Opposition as to defendant's position that plaintiff and the other male employees were not similarly situated.
II. RETALIATION
Plaintiff was fired on May 6, 2004 for the reason of "violating company policy by purchasing liquidated Mdse." See Exhibit F Exit Interview Defendant's Motion. Plaintiff asserts that this reason is pretextual and she was fired in retaliation for filing the present lawsuit on March 11, 2004 for gender discrimination. On May 28, 2004, plaintiff amended this lawsuit to add the facts of this alleged retaliatory termination. Defendant argues plaintiff's retaliation claim is procedurally barred because she failed to file an EEOC Charge on this claim and that plaintiff's termination can in no way relate to plaintiff's administrative Charge alleging gender discrimination claims. This argument fails. The Fifth Circuit stated "it is unnecessary for a plaintiff to exhaust administrative remedies prior to urging a retaliation claim growing out of an earlier charge; the district court has ancillary jurisdiction to hear such a claim when it grows out of an administrative charge that is properly before the court." Gupta v. East Texas State University, 654 F.2d 411 (5th Cir. 1981); See also, Green v. Louisiana Casino Cruises, Inc., 319 F.Supp.2d 707 (M.D.La. 2004) ("Ancillary Jurisdiction existed over Title VII retaliatory discharge claim even though plaintiff did not file a complaint with the EEOC on that claim").
Therefore, for plaintiff to establish a prima facie case of retaliation, she must establish (1) that she participated in a statutorily-protected activity as described in Title VII; (2) she suffered an adverse employment action; and (3) a causal link exists between the protected activity and the adverse action. Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 684 (5th Cir. 2001). Plaintiff has clearly satisfied the first and second prong of the prima facie case. Plaintiff filed an EEOC Charge alleging gender discrimination and a lawsuit alleging gender discrimination and retaliation. Grimes v. Texas Dept. of Mental Health and Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996). Furthermore, it is well settled that termination is an "ultimate employment decision" that satisfies the second prong. The Court also finds that a causal link exists between the protected activity and the adverse action, as there was only two months between the time plaintiff filed this lawsuit and plaintiff's termination. From the temporal nature of the firing, there is a prima facie case of linkage demonstrated. Furthermore, "a `causal link' is established when the evidence demonstrates that `the employer's decision to terminate was based in part on knowledge of the employee's protected activity.'" Medina, 238 F.3d at 684 ( citing Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998) and "when the plaintiff shows that the employment decision and his protected activity `were not wholly unrelated.'" Medina, 238 F.3d at 684 ( citing Simmons v. Camden County Bd. of Educ., 75 F.2d 1187, 1189 (11th Cir. 1985). The evidence shows that defendant knew about the EEOC Charge and the lawsuit and that the termination was not wholly unrelated to the protected activity.
Once the plaintiff establishes a prima facie case of retaliation, the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for the termination of plaintiff. Medina, 238 F.3d at 684. On the Exit Interview, defendant's written reason for plaintiff's Involuntary Termination was "Violation of Company Policy — Purchasing Liquidated Mdse." See Exhibit F. The box checked on the Exit Interview was labeled "misconduct with Coachings." Defendant has produced a legitimate non-discriminatory reason for plaintiff's termination.
Finally, plaintiff has the burden to provide evidence that defendant's reason for the termination was merely a pretext for retaliation. Medina, F.3d at 685. "To meet this burden, [Cleveland] must demonstrate that [she] would not have been terminated `but for' engaging in a protected activity. Id. ( citing Sherrod, 132 F.3d at 1123). "While this portion of the analysis may seem identical to the `causal link' step in the prima facie case, the burden here is more stringent." Medina, F.3d at 685 (citations omitted). "The plaintiff must reveal `a conflict in substantial evidence on the ultimate issue of retaliation in order to withstand a motion for summary judgment.'" Id. (citations omitted). Cleveland testified in her deposition that when she bought the Hot Wheels set on or about April 7, 2004, it was clearly not marked for liquidation. She testified that a liquidated item is supposed to be wrapped with a piece of paper with "liquidated" written on the paper. See Affidavit of Wanda Cleveland, Plaintiff's Opposition, pages 224-240. Defendant alleges that plaintiff's deposition testimony and her two statements relating to the purchase of the Hot Wheels Set were inaccurate. There is confusion as to whether the Hot Wheels Set was liquidated merchandise; however, defendant argues that it is against company policy for plaintiff to purchase any merchandise from an area that is not accessible to customers. Therefore, defendant argues, plaintiff would have been similarly coached for purchasing an item out of the Claims Area and would still have been terminated for "Misconduct with Coachings" because of her Decision-Making Day Status. Plaintiff argues that defendant cannot show that plaintiff purchased a liquidated item and after filing the Motion for Summary Judgment now attempts to redefine its reasons for termination. Plaintiff argues that defendant had every opportunity to state these reasons earlier.
The defendant focuses on the fact that the reason for termination — "misconduct of coachings" — could encompass either purchasing a liquidated item or an item located in an unaccessible area. However, the Court cannot ignore defendant's written statement for plaintiff's termination — purchasing liquidated merchandise. Because it is far from clear whether the merchandise was actually liquidated, the Court finds that there is "a conflict in substantial evidence on the ultimate issue of retaliation." Medina v. Ramsey Steel Co., 238 F.3d at 685. Plaintiff's assertion of pretext is not, at this point, "only an indisputably tenuous inference of pretext." Sandstad v. C.B. Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002). The Court finds that the reason for plaintiff's firing could be considered to be pretextual. As such, summary judgment on the retaliation claims must be denied.
Accordingly,
IT IS ORDERED that defendant's Motion for Summary Judgment (Rec.Doc.20) is GRANTED in part and DENIED in part. Defendant's Motion regarding plaintiff's claims for gender discrimination is GRANTED; defendant's Motion for Summary Judgment regarding plaintiff's retaliation claim is DENIED.