Opinion
No. 57004-8-I.
May 21, 2007.
Appeal from a judgment of the Superior Court for King County, No. 03-2-19825-1, Jeffrey M. Ramsdell, J., entered August 8, 2005.
Affirmed by unpublished opinion per Becker, J., concurred in by Coleman and Agid, JJ.
Appellant Kay Cunningham has failed to raise a material issue of fact tending to prove that her former employer's explanation for her discharge was merely a pretext for discrimination. Her suit was properly dismissed on summary judgment.On an appeal from summary judgment, the appellate court engages in the same inquiry as the trial court, construing the facts and reasonable inferences therefrom in the manner most favorable to the nonmoving party to ascertain whether there is a genuine issue of material fact. DeLisle v. FMC Corp., 57 Wn. App. 79, 82, 786 P.2d 839 (1990). We review an order of summary judgment de novo. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982).
Pacific Foods is a food manufacturing company that sells food products to restaurants, distributors, and other manufacturers. Kay Cunningham began working for Pacific as an outside sales representative in February 1998 when she was 58 years old. Pacific terminated Cunningham's employment four years later, in June 2002.
Clerk's Papers at 4 (Complaint, March 7, 2003).
Cunningham sued Pacific in March 2003 alleging age and gender discrimination. The lawsuit also included a hostile work environment claim. Pacific successfully moved for summary judgment. The court explained its reasoning:
In making this determination, the Court has considered only those portions of the affidavits that are based upon personal knowledge that would be admissible in evidence. CR 56(e). While plaintiff has established prima facie claims of age and/or sex discrimination defendants have articulated legitimate non-discriminatory reasons for their decisions. Despite plaintiff's efforts, it is this Court's opinion that plaintiff's admissible evidence in support of pretext is too weak to survive defendants' motion for summary judgment.
Clerk's Papers at 1039 (Order Granting Summary Judgment, August 9, 2005).
Cunningham appeals and asks this court to reverse the summary judgment order and remand the case for trial.
In an action alleging age discrimination in employment, the employee has the initial burden of presenting a prima facie case of age discrimination. Roberts v. Atlantic Richfield Co., 88 Wn.2d 887, 892, 568 P.2d 764 (1977). To make out a prima facie case an employee must show that: (1) he or she was within the statutorily protected age group; (2) was discharged; (3) was doing satisfactory work; and (4) was replaced by a younger person. Grimwood v. University of Puget Sound, Inc., 110 Wn.2d 355, 362, 753 P.2d 517 (1988) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)). The protected age group includes employees 40 years of age and older. RCW 49.44.090(1). "A prima facie case under McDonnell Douglas raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Sellsted v. Washington Mutual Savings Bank, 69 Wn. App. 852, 862, 851 P.2d 716 (1993) quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S. Ct. 2943, 57 L. Ed. 2d 957 (1978). It is undisputed that Cunningham presented enough evidence to make out a prima facie case of discrimination.
Once the employee makes out a prima facie case, the burden then shifts to the employer who "must articulate a legitimate, non-discriminatory reason for termination. The employer's burden at this stage is not one of persuasion, but rather a burden of production." Grimwood, 110 Wn.2d at 364. Pacific has met this burden with its statement that the reason for terminating Cunningham was the result of a company reorganization compelled by a recent downturn in profits.
Once the employer meets its burden, the presumption of discrimination raised by the prima facie case is rebutted. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 255, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). The employee resisting summary judgment then must produce evidence that raises a genuine issue of material fact on whether the reasons given by the employer for discharging the employee are unworthy of belief or are mere pretext for what is in fact a discriminatory purpose. Sellsted, 69 Wn. App. at 859. The employee is not required to produce evidence beyond that offered to establish the prima facie case, nor introduce direct or "smoking gun" evidence. Sellsted, 69 Wn. App. at 860. Here, the issue at this point is whether, notwithstanding Pacific's articulation of a nondiscriminatory reason for termination, Cunningham's evidence is sufficient to support a reasonable inference that a discriminatory or retaliatory motive was a substantial factor in her discharge. See Mackay v. Acorn Custom, 127 Wn.2d 302, 310, 898 P.2d 284 (1995).
An employee can show that the employer's proffered reason is pretextual in several ways:
(1) the company's reasons have no basis in fact; or
(2) if they have a basis in fact, by showing that they were not really motivating factors; or (3) if they are factors, by showing they were jointly insufficient to motivate the adverse employment decision, [e.g.], the proffered reason was so removed in time that it was unlikely to be the cause or the proffered reason applied to other employee[s] with equal or greater force and the company made a different decision with respect to them.
Sellsted, 69 Wn. App. at 859, n. 14, quoting Grabb v. Bendix Corp., 666 F. Supp. 1223, 1244 (N.D. Ind. 1986).
Cunningham contends that the language of the trial court's order — "plaintiff's admissible evidence in support of pretext is too weak" — demonstrates that the court impermissibly weighed the evidence presented at summary judgment. Because our review is de novo, we need not be concerned with the trial court's stated rationale for granting summary judgment. As a leading treatise on employment discrimination law explains, a trial court's role at summary judgment is to identify claims that lack admissible factual support:
Many motions for summary judgment filed by employers continue to be granted, and affirmed on appeal, because plaintiffs improperly oppose them by relying on affidavits or deposition testimony that is not based on personal knowledge; that is based on inadmissible hearsay statements; that consists of conclusory, self-serving or personal opinions; or that contradict prior sworn testimony.
Barbara Lindemann Paul Grossman, Employment Discrimination Law 1028 (3d ed. Supp. 2002) (footnotes omitted). Since our inquiry is the same as the trial court's, we have reviewed the record to determine if it contains admissible evidence raising a genuine issue of material fact. Like the trial court, we conclude it does not.
In moving for summary judgment, Pacific presented admissible evidence explaining how the downturn in the company's profits led to Cunningham's termination. Between 1998 and 2002, Pacific's gross sales declined by nearly 25 percent which translated into several million dollars in losses. The company hired Dave Pellegrini in 2002 to reverse the company's poor financial performance. Pacific instructed Pellegrini to "promptly institute operational and staffing adjustments needed to increase sales, increase margins, and/or reduce overhead." Shortly after Pellegrini came on board, Pacific lost two of its largest accounts. These losses made Pellegrini's job even more urgent. He decided to discharge Cunningham because she had been the least productive salesperson nearly every year she was employed with Pacific. Pellegrini believed that the elimination of Cunningham's position would not impact overall sales because other employees could absorb her viable accounts and Pacific would retire her less productive accounts.
Clerk's Papers at 376 (Pellegrini's Declaration).
In addition to presenting evidence of a nondiscriminatory reason for discharge, Pacific's motion for summary judgment rebutted Cunningham's allegations of discrimination by methodically tracing them back to rumor and hearsay. For example, Cunningham testified in her deposition that Pellegrini once told another female employee that "women should not take aggressive roles but wait on the sidelines." This employee, when deposed, explained that Pellegrini did not actually say those words; they were merely her own summary of what she perceived Pellegrini's beliefs to be. Other employees cited by Cunningham as sources of evidence supporting her discrimination claims denied making the statements attributed to them.
Clerk's Papers at 174 (Cunningham's Deposition, January 14, 2004).
Clerk's Papers at 337 (Stolarski's Deposition, April 20, 2005).
Cunningham responded to Pacific's motion for summary judgment by attempting to show, primarily through her own declaration, that the company's decision to lay her off was discriminatory. She claims that some of her job responsibilities were shifted to a newly hired male employee, Victor Cadice, and other accounts she had been managing were dispersed between two female employees, ages 37 and 53. But the fact that other female employees, including one within the statutorily protected age group, absorbed some of Cunningham's responsibilities does not further her claim of company-wide age and gender discrimination. And her claim about Cadice is based on hearsay. When Pacific questioned Cunningham's sources of information about this claim, one employee testified in a deposition that she was not sure to what extent Cadice took over Cunningham's former business and that he may have assumed only one account. Another employee stated in a declaration that she was never told specifically what Cadice's role was at Pacific Foods. Pacific submitted documentation that Cadice had been hired to manage direct export sales to China, an area in which Cunningham had no experience. Thus, Cunningham failed to present admissible evidence demonstrating that Cadice replaced her.
Cunningham claims that management purposefully set her up to fail while favoring male employees and younger workers. Her declaration states that management assigned her a failing account so that the loss would reflect in her sales numbers. But this claim contradicts Cunningham's deposition testimony that a different employee was ultimately blamed for the loss of that account. Cunningham's declaration states that she received a portfolio of customers worth $1.8 million and she argues that this was significantly smaller than what other new employees were given to start out with. Yet in deposition, Cunningham offered as evidence of discrimination the statement that a younger, female employee was given a book of business worth only $1.5 million. Cunningham mentions that a specific account that she requested, Jack in the Box, was given to a younger colleague. Yet Cunningham acknowledged in deposition that the younger employee who received the account had previously worked at Jack in the Box. In light of this existing relationship, the assignment of this account would not tend to prove an unfair distribution of business opportunities. As these examples illustrate, the record does not furnish evidence from which a reasonable factfinder could find disparate treatment in assignments, compensation, and other material terms and conditions of employment.
In order to suggest that the company's stated reason for terminating her was pretextual, Cunningham states that the company gave conflicting reasons at different times. Management told Cunningham at the time she was laid off that the decision had "nothing to do with her performance." Pacific stated in moving for summary judgment, however, that Cunningham's discharge was connected to her low sales numbers and that she was seen as being "the least productive salesperson."
Clerk's Papers at 804 (Cunningham's Declaration, July 25, 2005).
Clerk's Papers at 57 (Defendants' Motion for Summary Judgment).
When a company gives various incompatible reasons for an employee's termination, it may suggest that none of the reasons given were the real reason, and raise an inference that those reasons are pretextual and unworthy of belief. Sellsted, 69 Wn. App. at 861. In Sellsted, the bank management at different times told employee Sellsted that his termination was the result of workforce reduction and also that it was the result of his inability to meet redefined job responsibilities. Sellsted, 69 Wn. App. at 859. Sellsted introduced evidence that only employees within the protected age group were placed on probation for failure to meet new standards while younger employees simply received individual counseling. Sellsted, 69 Wn. App. at 861. Further, Sellsted's manager was told to "specially scrutinize" a department whose members were all within the protected age group. Sellsted, 69 Wn. App. at 861. And Sellsted was quickly replaced by a newly hired and considerably younger individual who assumed the same job responsibilities that he had performed. This evidence was held sufficient to call into question the otherwise legitimate reasons proffered by the bank.
In this case, Pacific did not give inconsistent or incompatible reasons for Cunningham's discharge. Pellegrini consistently stated that the "reorganization" prompted him to eliminate a position and that he selected Cunningham's position because of her "low numbers." Her termination had nothing to do with her performance in that she would probably have stayed on but for the company's financial distress. But the decline in sales meant they had to cut somewhere, and the person who had low numbers was the obvious target. Unlike in Sellsted, the two reasons that Pacific gave Cunningham to explain her discharge are not incompatible. And Cunningham did not submit other proof to cast doubt upon Pacific's proffered reason as was done in Sellsted. The trial court properly concluded that Cunningham failed to create a material issue of fact regarding the reason for her discharge and properly dismissed her discrimination claim.
Respondents' Brief at 18.
Cunningham's hostile work environment claim suffers from the same deficiencies as her discrimination claim in that the primary support for it is hearsay evidence. Also, declarations from Pacific employees detail that the former manager who allegedly created the hostile work environment was a man both liked and disliked by male and female employees of all ages. Cunningham testified in deposition that the manager's harassing behavior ended when a different manager replaced him in January 1999. Cunningham did not file this lawsuit until September 2003, more than three years after the allegedly improper behavior had ceased. Employment discrimination claims must be brought within three years under the general three year statute of limitations for personal injury actions. Antonius v. King County, 153 Wn.2d 256, 261-262, 103 P.3d 729 (2004). The statute of limitations bars Cunningham's hostile work environment claim.
In summary, Pacific has exposed Cunningham's arguments as conclusory allegations based on inadmissible evidence. The trial court did not err in granting summary judgment to Pacific Foods.
Affirmed.