Opinion
CIVIL ACTION No. 01-2389-KHV
January 13, 2003.
MEMORANDUM AND ORDER NUNC PRO TUNC
Peggy J. Fairbrother brings employment discrimination claims against her former employer, Orkin Exterminating Company, Inc., under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. as amended, the Age Discrimination In Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. This matter comes before the Court on Defendant's Motion For Summary Judgment (Doc. #63) filed September 30, 2002. For reasons stated below, the Court finds that defendant's motion should be sustained.
Summary Judgment Standards
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P.; accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir. 1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252.
The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City of Watonga, Okla., 942 F.2d 737, 743 (10th Cir. 1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.
The Court must view the record in a light most favorable to the party opposing the motion for summary judgment. Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52.
Facts
The following facts are either uncontroverted or construed in a light most favorable to plaintiff.
The Court commends counsel for both parties on their excellent briefing in this case.
In 1986 plaintiff began work as a commercial account executive for Orkin Exterminating Company, Inc., selling pest control services to commercial customers. Plaintiff later managed the Orkin branch office in Las Vegas. From December 1990 until 1996, she worked as a national account manager, a position that required frequent air travel. In April 1996, plaintiff fractured her pelvis in an automobile accident. After she recovered, plaintiff asked Orkin to transfer her to a job that required less air travel. Defendant responded by transferring her to regional account manager position in the Kansas City area. Plaintiff, however, complained that the position required too much driving. Tim Zimmerman, supervisor for national account representatives, approached Jim Bailey, who managed defendant's Kansas City commercial branch, about hiring plaintiff as a branch account manager. On October 31, 1997, Bailey hired plaintiff to work in the Kansas City commercial branch. Bailey believed that plaintiff could use her extensive training and sales experience to increase sales of pest control services to commercial accounts. When Bailey hired plaintiff, she was 59 years old and Bailey was 51 years old.
The accident was not related to plaintiff's work with Orkin, but it paid her while she recovered from the accident and she did some work from the hospital and rehabilitation center.
Bailey made the employment decisions for the Kansas City branch office. He reported to John Wilson, the regional manager for Orkin's central commercial region, which includes the Kansas City commercial branch office. Wilson focused on the overall profitability of theregion, which included branch offices in cities throughout nine states. Wilson visited each branch about four times a year.
Bailey had no authority over Orkin employees outside of the Kansas City commercial branch. Bailey has worked for Orkin for 31 years and has managed the Kansas City commercial branch for approximately six years.
When plaintiff started work for Bailey, he allowed her a three-month transition period to finish her work on national accounts. Bailey did not monitor plaintiff's sales during this three month period. The record reflects that branch account managers performed the same job functions as commercial account executives — a position which plaintiff had previously held . Plaintiff testified that the branch account manager position was different from any other position which she had held, however, and in particular that the manner in which she was expected to make inspections and sales proposals was different. Plaintiff, however, also testified that
When I was a branch manager and/or a sales manager, I did similar things to what Jim [Bailey] did. I think one of the things that was important to learn was to do — first, I think we taught people to do a good inspection. That was the most important thing, because you had to find the evidence to justify the solution we offered in that particular job. And then to learn to do a proposal that was suited to the person you were talking to or the business that you were with — or dealing with. That was the most difficult part for most people.
Defendant's Reply In Support Of Its Motion For Summary Judgment (Doc. #68) filed November 22, 2002, Ex. F at 95. Plaintiff's new position as a branch account manager also required "cold-calling" and different paperwork.
Bailey provided weekly training to the sales staff in the Kansas City commercial office and because of plaintiff's extensive sales training and experience, she helped Bailey train other employees.
In her position as a branch account manager, plaintiff earned $3,000.00 a month and received a monthly car allowance of $400.00. The next highest compensated branch account manager in the Kansas City branch earned $2,000 per month and received a monthly car allowance of $300.00.
Plaintiff's performance as a branch account manager during 1998 can be summarized as follows: In January, plaintiff sold only $2,240.00 worth of pest control services and her gross sales did not cover her salary. Bailey evaluated plaintiff's performance that month and told her that she needed to increase productivity. Plaintiff sold $12,037.50 in February, but only $3,025.00 in March. On April 2 and again on April 6, Bailey informed plaintiff in writing that based on her experience she should be bringing in $15,000.00 a month in sales. On April 8, Bailey appraised plaintiff's performance. He stated that plaintiff was not meeting her sales goals or selling up to her standards and that she needed to improve her organization and spend more time calling on customers. On April 15, Bailey again told plaintiff that he expected her to sell $15,000.00 a month. Plaintiff believed that this expectation was reasonable.
In February of 1998, Bailey gave plaintiff a lead on selling pest control services at John Knox Village. Later that month, plaintiff sold it services worth more than $10,000.00. Thus out of the $12,037.50 plaintiff sold in February, she sold more than $10,000 to one customer.
Plaintiff sold only $4,928.00 in April, 1988 and on May 28, 1998, Bailey gave her a field sales training report which stated that she needed to increase her monthly sales numbers. In May, plaintiff sold $8,511.00.
On June 24, Wilson visited the Kansas City commercial branch and sat in on a meeting between Bailey and plaintiff. During the meeting, Bailey told plaintiff that she needed to sell $10,000.00 a month to keep her job. This was plaintiff's first news that $10,000 a month was a requirement. After the meeting, Bailey gave plaintiff a letter which reiterated this requirement and reminded plaintiff that given her extensive experience, she should sell more than the $10,000.00 quota.
At plaintiff's deposition, defense counsel asked plaintiff whether she understood at that time that it was important to make $10,000.00 in sales. Plaintiff responded that: "I . . . just thought it was a general pie-in-the-sky kind of thing that they wish I would do because I came on board with so much experience. That's how I looked at it." Memorandum In Support of Defendant's Motion For Summary Judgment (Doc. #64) filed September 30, 2002, Ex. A, Fairbrother deposition at 133. Defense counsel then asked "you didn't take it as seriously as they intended?" Plaintiff answered "No. If they did intend it." Id.
On July 2, Bailey evaluated plaintiff's performance. Bailey stated that plaintiff was not thorough with paperwork, that she needed to arrive on time and that she needed to increase her monthly sales by $5,000.00. Plaintiff believes that the evaluation was fair.
Plaintiff's sales in June and July totaled $11,436.00 and $12,734.00, respectively. On August 5, Bailey wrote on plaintiff's sales training report that she needed to increase her sales. In August, plaintiff sold $7,459.00. During June, July and August, plaintiff sold more than many other sales people in the central commercial region and based on the monthly sales comparatives, Bailey agrees that through June, plaintiff performed in the "middle of the pack." Plaintiff's Memorandum In Opposition to Defendant's Motion For Summary Judgment (Doc. #67) filed October 30, 2002, Ex. 1, Bailey deposition at 118. According to the year-to-date sales comparatives for August of1998 plaintiff sold about the same amount as Monte Barbour and more than many others in the central commercial region, including Mike Ritchie, Deborah Nickle, James Dunnuck, Ross Arnold, Don Spedale, Nancy Svabek, David Bowman and Catha Gaines. Id., Ex. 10.
At the beginning of September, Bailey wrote plaintiff a letter which stated that if she did not sell $10,000.00 during that month, he would terminate her employment. According to plaintiff, Bailey told her that Wilson "told him he had to write the letter and fire me if I didn't make $10,000 in sales." Id., Ex. 5, Fairbrother deposition at 103-04.
In September, plaintiff sold only $1,405.00. Based on her conversation with Bailey at the beginning of the month, plaintiff assumed that she was terminated and that her employment ended on or about October 1.
Orkin's employment policy prohibits discrimination on the basis of age, sex or disability. Although plaintiff was aware of this policy, she never complained of discrimination of any type. On October 1, however, plaintiff wrote a letter to defendant's human resources department stating that
I believe that my termination is unfair and should be reconsidered. I believe that I am being treated in a discriminatory manner due to gender, age and physical disability. When I received my written warning, other Branch Account Managers in the Central Commercial Region had achieved $10,000 for 3 or less months this year and sold a few hundred dollars more or less than I have in 1998. They did not receive the intent to terminate warning.
Id., Ex. 4. The same day, plaintiff sent Wilson a copy of a letter which stated essentially the same thing. In a telephone call shortly thereafter, a human resources employee told plaintiff that she was still on the books as an employee. Plaintiff responded that maybe the records just hadn't "caught up" with things.
Bailey signed plaintiff's termination notice on October 12, 1998.
The parties dispute whether Wilson approved plaintiff's termination. Plaintiff points out that on June 4, 1999, defendant's outside counsel stated in a letter to the Equal Employment Opportunity Commission that Wilson had approved plaintiff's discharge on October 13, 1998. In response to plaintiff's request for admission, however, defendant denied that counsel's representation was true. See id., Ex. 2, Defendant's Supplemental Responses To Plaintiff's Requests For Admissions at 1-2. Furthermore, defendant cites evidence that Wilson authorized his administrative assistant to sign his name on plaintiff's termination notice. Wilson testified that his assistant acknowledged plaintiff's termination by signing Wilson's name to the discharge form after the termination, and that the signature merely finalized the paperwork. See Defendant's Memorandum In Support Of Its Motion For Summary Judgment (Doc. #64), Ex . E., Wilson deposition at 52. According to affidavits from Wilson and Bailey, Bailey decided to fire plaintiff without input from Wilson and Wilson did not know about it until after plaintiff had been fired. See id., Ex. F, G.
Defendant's outside counsel who wrote the letter to the EEOC (and who allegedly made other misrepresentations to the EEOC) is not the same counsel whom the Court commended in footnote one. In fact, they are not associated with the same law firm.
The letter to the EEOC stated in relevant part:
Mr. Bailey met with the charging party on October 1, 1998 and told her that because of her continued poor performance she was to be discharged. Ms. Fairbrother appealed her discharge to Mr. Wilson in the region office. After a thorough investigation of the charging party's concerns, the charging party's discharge was approved by John Wilson on October 13, 1998.
Plaintiff's Memorandum In Opposition (Doc. #67) Ex. 12 at 3.
Defendant expected branch account managers and commercial account executives in the central commercial region to sell $10,000.00 each month, and it created monthly sales comparisons which showed their monthly and year-to-date sales figures. Defendant has attempted to establish that based on various circumstances, including experience and sales conditions peculiar to that branch, individual managers in the region had varying expectations for individual employees. See Defendant's Reply (Doc. #68) Ex. D, Declaration of Wayne Sutphen (branch manager in Indianapolis, stating that although he hoped sales staff would meet $10,000.00 quota, he did not terminate employee who fell below quota because branch was working out of a house and just starting up and did not have listing in phone book); Ex. E, Declaration of Jim Bailey. Plaintiff points to record evidence that defendant generally expected sales employees of the central commercial region to sell $10,000.00 each month, but the record also reflects uncontroverted evidence that the $10,000.00 monthly figure was not enforced as a "drop-dead" quota.
Plaintiff acknowledges that in the eight months leading to September of 1998, she sold $10,000.00 in only three months. Plaintiff was familiar with defendant's cost structures and also knew that based on those cost structures, she needed to increase her sales.
Bailey knew that plaintiff was 60 years old when he fired her. No one made inappropriate comments about plaintiff's age, gender or sex while she worked at the Kansas City commercial branch. Bailey respected plaintiff's knowledge and experience and treated her as an experienced salesperson. Plaintiff does not claim that Bailey unfairly scrutinized her performance. Bailey told plaintiff that she need to complete more sales proposals and increase her sales and he tried to help her make more sales.
Plaintiff was born on July 10, 1938.
Bailey and Fairbrother were close friends and continued to socialize after Bailey fired her.
Defendant presented plaintiff's deposition testimony that she could not identify any co-workers who did not meet sales expectations and still kept their jobs. Plaintiff, however, testified to her belief that defendant discriminated against her because other branch account managers did not sell $10,00.00 a month and still kept their jobs.
Comparisons to other employees Monte Barbour
Monte Barbour, a male employee in his fifties, started work as a commercial account executive the year before plaintiff started work as a branch account manager. Barbour had the same duties as plaintiff but much less experience than plaintiff and defendant paid him $2,000.00 a month (as compared to plaintiff's $3,000.00 a month). As of August, 1998, Barbour and plaintiff had year-to date sales of $68,996.00 and $62,371.00, respectively. In late August, defendant warned plaintiff that it would fire her if she did not sell $10,000.00 in September. Bailey discussed with Barbour the $10,000.00 quota but did not give him such a warning. Barbour did not meet the quota in September, October or November, however, and Bailey gave him repeated warnings. Finally, in December, Bailey warned Barbour that he would lose his job if he did not meet his quota. At that point Barbour applied for and obtained a position with defendant's residential pest control branch. Mike Ritchie
In August of 1998, the branch manager in Indianapolis (which was within the central commercial region) hired Mike Ritchie, a male who was then 54 years old. Ritchie consistently sold less than $10,000.00 a month in 1998, and as of August his year-to-date sales were lower than plaintiff's. In May of 2000, however, Ritchie still worked for defendant. Ritchie's branch manager testified that he did not expect Ritchie to sell $10,000.00 a month in 1998 because the new branch was in a house and it did not have an advertisement in the telephone book.
Deborah Nickle
In 1998, Deborah Nickle, a 45-year-old branch account manager in San Antonio (which was also in the central commercial region) consistently sold less than $10,000.00 a month. Through August of 1998 she had sold less than plaintiff. In November of 1999, defendant counseled Nickle for poor sales and gave her an ultimatum to increase sales or lose her job. Before the end of that month, Nickle claimed a worker's compensation injury and took leave until November of 2000, when her employment terminated.
Robert Miller
In August of 1998, Robert Miller, who was then 34years old, had worked for defendant for a few months in Dallas (again in the central commercial division). His sales averaged less then $10,000.00 a month through August of 1998, but as of May, 2000, he still worked for defendant.
In its reply memorandum, defendant says that Miller had been a branch account manager in Dallas for less than two months when plaintiff was terminated. The record, however, reflects that defendant originally hired Miller in 1990 and that he transferred from Denver to Dallas in June of 1998.
Barry Johnson
In September of 1998, the Kansas City commercial branch hired Barry Johnson as a branch account manager. He averaged more than $10,000.00 a month in 1999, 2000 and 2001, and he never had a month in which his gross sales did not cover his salary and car allowance. Johnson did not sell $10,000.00 in October or November in 1999, 2000 or 2001, however, and he did not sell $10,000.00 in December of 1999 or 2001. Johnson's sales were $175,974.00 in 1999 and $151,637.00 in 2000. He earned a draw of $2,000.00 a month.
Bailey knew that plaintiff had injured her hip in a car accident because his wife was one of plaintiff's massage therapists. When plaintiff started work for Bailey in September of 1997, she used crutches for perhaps six weeks. After that she could walk without assistance except in rain or snow. While she worked for Bailey, plaintiff had difficulty walking and standing for long periods of time. She used a cane in bad weather to avoid a fall. The cane may have affected her job performance but it did not prevent her from calling on customers. Plaintiff never asked Orkin for to accommodate any purported disability, and she did not talk about the car accident. Plaintiff testified that she was proud of the fact that she could function without her impairment being obvious.
In September of 1998, Dr. William Bohn evaluated plaintiff for worsening hip pain and difficulty in putting weight on her left leg. He indicated that plaintiff was walking well, without limping and that she had probable left sided sciatica coupled with post fracture pain deep in the buttock, as well as potential for rheumatoid arthritis or osteoarthritis or other problems in the left hip area. In the four years since Orkin fired her, plaintiff has experienced increasing problems with accident-related arthritis. Nonetheless, plaintiff lives alone and maintains her home (with some assistance). A cleaning woman visits every other Saturday and someone mows her lawn.
In January 1999, plaintiff began work as a sales person for a funeral home. She worked there until January of 2000, when she accepted a sales position at Sprint. Plaintiff earns an average of $4,000.00 a month at Sprint.
On February 22, 1999, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission, alleging age, sex and disability discrimination.
In her statement of additional facts, plaintiff includes several paragraphs concerning misrepresentations to the EEOC by defendant's outside counsel — including the statement that Wilson had approved plaintiff's termination after a thorough investigation of plaintiff's concerns. Defendant initially represented that it fired Ritchie for failure to make his sales quota, but it now admits that this statement is untrue. Further, defendant admits that its attorney represented to the EEOC that plaintiff was one of five branch account managers who were discharged in the fall of 1998, but that this representation was not true.
Analysis
Plaintiff claims that defendant discriminated against her on the basis of sex, age, disability or a combination of two or more or these factors. Defendant contends that it is entitled to summary judgment because plaintiff cannot establish a prima facie case of disparate treatment.
The burden-shifting framework which the Supreme Court set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973), applies equally to plaintiff's claims under Title VII and the ADEA. See Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1225 (10th Cir. 2000); Wood v. City of Topeka, 17 Fed. Appx. 765, 767-68 (10th Cir. 2001). Under this approach, plaintiff initially bears the burden of production to establish a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802. If plaintiff establishes a prima facie case, the burden shifts to defendant to articulate a facially nondiscriminatory reason for its actions. See Reynolds v. Sch. Dist. No. 1, 69 F.3d 1523, 1533 (10th Cir. 1995). If defendant articulates a legitimate nondiscriminatory reason, the burden shifts to plaintiff to present evidence sufficient on which a reasonable jury might conclude that defendants' proffered reason is pretextual, that is, "unworthy of belief." Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1165 (10th Cir. 1998) (quoting Randle v. City Of Aurora, 69 F.3d 441, 451 (10th Cir. 1995)).
A. Plaintiff's Claim of Discriminatory Discharge Based on Sex and Age
Plaintiff asserts that in order to set forth a prima facie case of discriminatory discharge based on sex, she must show that (1) she belongs to a protected class; (2) she was qualified for her job; (3) she was discharged; and (4) the job was not eliminated after her discharge. Kendrick, 220 F.2d at 1226. Defendant contends that in order to establish a prima facie case of sex discrimination, plaintiff must show that (1) she is a member of a protected class; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) she was treated less favorably than others not in the protected class. See Mitani v. IHC Health Servs., 2002 WL 31813051 (10th Cir. Dec. 16, 2002) (citing Sanchez v. Denver Pub. Sch., 164 F.3d 527, 531 (10th Cir. 1998) (citations omitted)). The Tenth Circuit has stated that a plaintiff alleging discriminatory discharge based on sex may satisfy her prima facie burden through evidence that defendant did not eliminate her position — without also demonstrating that it replaced her with someone outside the protected class. See Toth v. Gates Rubber, 2000 WL 796068 *7 n. 7 (citing Perry v. Woodward, 199 F.3d 1126, 1140 (10th Cir. 1999)); (Hispanic plaintiff established prima facie case without proof that replacement was outside protected class). In the end, the Court finds that defendant is entitled to summary judgment because plaintiff does not show evidence of pretext. It therefore applies the prima facie standard which is most favorable to plaintiff. To establish a prima facie case of age discrimination, a plaintiff must show that (1) she was a member of the protected age group (over 40); (2) she was performing satisfactorily; (3) she was discharged; and (4) evidence exists from which a reasonable fact finder might conclude that the employer intended to discriminate in the termination decision. Carter v. Newman Mem'l County Hosp., 49 Fed. Appx. 243, 245 (10th Cir. 2002); see also McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998) (plaintiff typically must show that (1) she was within the protected age group; (2) she was doing satisfactory work; (3) she was discharged; and (4) her position was filled by younger person); O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312 (1996) (plaintiff not required to show replacement by someone outside protected class); Bullington, 186 F.3d at 1315-16 (quoting Sanchez, 164 F.3d at 531) (plaintiff can satisfy fourth element by showing less favorable treatment than others not in protected class).
In Perry v. Woodward, 199 F.3d 1126 (10th Cir. 1999), the Tenth Circuit stated that plaintiff in a race discrimination case could satisfy the fourth element in a wrongful termination case by showing that defendant did not eliminate his former position or that defendant hired someone outside the protected class to replace him. Id. at 1135, 1138. Perry involved a race discrimination claim under Section 1981, however, and the Tenth Circuit has not decided whether Perry applies to ADEA claims. See Munoz, 221 F.3d at 1166 n. 3. As with plaintiff's sex discrimination claim, the Court will evaluate plaintiff's age discrimination claim under the test which is more favorable to plaintiff since it does not affect the ultimate outcome. Cf. Fester v. Farmer Bros. Co. 49 Fed. Appx. 785, 791 (10th Cir. 2002) (not necessary to decide whether Perry applies to ADEA claim because plaintiff could satisfy both tests).
In this case, plaintiff has undisputably produced evidence of the first and third elements of her age and sex discrimination claims. Plaintiff was in protected classes — she was a 60-year-old woman and defendant discharged her. Plaintiff summarily asserts that she can establish the fourth element — by showing that her job was not eliminated — but she cites no evidence on that point. In the argument section of its reply brief, defendant states that "in fact, her sales responsibilities were absorbed by the other branch account managers at the branch at the time of her termination," Defendant's Reply (Doc. #68) at 13, but defendant likewise cites no record evidence for this statement.
Defendant also asserts that plaintiff has failed to establish the second element of a prima facie case — that she was qualified for her job, or that she was satisfactorily performing it, when she was fired. Defendant points out that in three of the nine months for which it monitored plaintiff's sales, she did not make enough gross sales to cover her salary and car allowance. Furthermore, plaintiff never met the $15,000.00 sales goal that Bailey expected, and which she considered fair. Plaintiff reached the $10,000.00 quota in only three of nine months. Defendant warned her more than ten times in writing that her sales were not satisfactory and Bailey repeatedly tried to help increase plaintiff's sales.
As plaintiff points out, however, she can show that she is qualified for the position if she testifies that when defendant fired her, she held the same objective qualifications that she held when defendant hired her. See MacDonald v. E. Wyo. Mental Health Ctr, 941 F.2d 1115, 1121 (10th Cir. 1991). Plaintiff cites evidence that in the months before defendant fired her, she was in the "middle of the pack" in sales. Although plaintiff's prima facie case is weak, the Court assumes for purposes of this analysis that plaintiff has met her prima facie burden under Title VII and the ADEA. The burden thus shifts to defendant to articulate a facially nondiscriminatory reason for its actions.
Defendant asserts that it fired plaintiff because her sales performance was unsatisfactory, particularly since her gross sales did not cover her salary in several months. Defendant also points out that Bailey repeatedly counseled plaintiff about her sales performance, but finally determined that her results, effort and attitude did not meet his reasonable expectations. "Discharging an employee for failure to adequately perform job duties is a legitimate, nondiscriminatory reason." Valdivia v. Univ. of Kansas Med. Ctr., 24 F. Supp.2d 1169, 1174 (D.Kan. 1998). Because defendant has presented legitimate, nondiscriminatory reasons for terminating plaintiff, see, e.g., Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1261 (10th Cir. 2001) (courts should not "second guess" employer's business judgment), the burden shifts to plaintiff to demonstrate that age and/or sex was a determining factor in the employment decision. Plaintiff can meet this burden either by demonstrating a genuine issue of material fact whether the proffered reason is pretextual (unworthy of belief) or by offering direct evidence that sex or age was a determining factor. Plaintiff does not claim to have direct evidence of sex or age discrimination. Instead, she cites indirect evidence that defendant's proffered reason was a pretext for discrimination.
Once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Thus, 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. Reeves, 530 U.S. at 147-48.
Plaintiff attempts to show pretext by demonstrating that (1) defendant more favorably treated similarly situated non-class members, see EEOC v. Horizon/CMS, 220 F.3d 1184, 1195, n. 6 (10th Cir. 2000), and (2) because of weaknesses, inconsistencies and contradictions in the record, a reasonable factfinder could find that defendant's proferred legitimate reason is unworthy of belief, see Munox. St. Mary-Corwin Hosp., 221 F.3d 1160, 1167 (10th Cir. 2000).
Disparate treatment of similarly situated employees
Plaintiff asserts that defendant did not fire younger and/or male employees who made sales similar to hers. Defendant asserts these employees are not similarly situated. An employee is similarly situated to plaintiff if the employee deals with the same supervisor and is subject to the "`same standards governing performance evaluation and discipline.'" Kendrick, 220 F.3d at 1232 (quoting Aramburu, 112 F.3d at 1404). In determining whether employees are similarly situated, a court should compare relevant employment circumstances such as work history and company policies. Id.
Defendant asserts that plaintiff is not similarly situated to employees outside the Kansas City commercial branch because those employees did not have the same supervisor as plaintiff. "In considering whether similarly situated employees were treated differently, a court will look at employees who work with the same supervisor and are subject to the same standards governing discipline and performance evaluation." Munoz v. W. Res., Inc., No. 00-4105-JAR, 2002 WL 31175522, *4 (D.Kan. Sept. 26, 2002). The Court agrees that employees who worked in other branch offices for different supervisors are not similarly situated to plaintiff. Therefore, Mike Ritchie, Deborah Nickle and Robert Miller are not similarly situated. Furthermore, even if Wilson was involved in the decision to fire plaintiff, plaintiff cites no evidence that Wilson was involved in decisions to retain, discipline or terminate Ritchie, Nickle, or Miller. Therefore plaintiff cannot rely on comparisons to those employee.
Plaintiff also seeks to compare treatment of herself to two younger male employees in the Kansas City branch: Monte Barbour and Barry Johnson. Plaintiff asserts that Barbour and Johnson were similarly situated because they both worked in sales, as branch account managers in Kansas City, and Bailey supervised them. Plaintiff points out that as of August, 1998, when she received her final warning, she and Barbour had about the same year-to-date sales. Rather than terminate Barbour, Bailey repeatedly warned him that he needed to make more sales and Barbour eventually transferred to another position. As for Johnson, plaintiff points out that defendant did not discharge him although he did not meet the $10,000.00 quota in several months in 1999 through 2002.
Defendant asserts that plaintiff has not shown that Barbour and Johnson were similarly situated in all material respects. In determining whether employees are similarly situated, the Court must compare relevant employment circumstances, including work history. See Aramburu v. The Boeing Co., 112 F.3d 1398, 1404 (10th Cir. 1997). Defendant notes that plaintiff had worked at Orkin for 12 years and had specialized training as well as experience as a branch manager and in national sales. By contrast, Johnson had less than a year of experience and Barbour had less than two years of experience with Orkin. Defendant places heavy reliance on the fact that it paid plaintiff 50 per cent more than other branch account managers in the Kansas City office (including Barbour and Johnson) and provided her a substantially larger car allowance.
Based on their significantly lower pay alone, Barbour and Johnson were not similarly situated to plaintiff. Therefore, plaintiff cannot establish that defendant's proferred reason for termination was a pretext for sex or age discrimination through proof that defendant treated similarly situated employees more favorably.
Defendant also notes that Johnson met or exceeded his sales goals in most of the months that he worked for Orkin. In 1999, he sold more than $10,000.00 in eight separate months, and he sold $175,974.00 for the year. In 2000, Johnson sold $151,637.00. By contrast, for the nine months that plaintiff worked in 1998, she sold $63,776.00, which would annualize to $80,000.
As for Barbour, defendant warned him in November and December of 1998 that it would discharge him if his sales did not increase. Barbour then left his job at the Kansas City commercial branch and obtained a position with the residential branch.
Other evidence of pretext
Plaintiff asserts that because defendant has changed its stated reason for termination, a jury might reasonably conclude that its proffered reason for termination was pretextual. See Maschka v. Genuine Parts Co., 122 F.3d 566, 570 (8th Cir. 1997) (inconsistent reasons for employment decision support finding of pretext); Schindler v. Bierwirth Chrysler/Plymouth, Inc., 115 F. Supp.2d 1054, 1058 (D.Kan. 1998).
Plaintiff testified that Wilson set the $10,000.00 sales quota and that Bailey told her that Wilson told him to terminate plaintiff's employment. Plaintiff points out that although defendant told the EEOC that Wilson had approved the termination, it now asserts that Bailey made the decision on his own. Plaintiff asserts that "[t]his attempt to remove Wilson from the termination decision is evidence of pretext that casts doubt on defendant's stated reasons for plaintiff's termination." The Court notes, however, that whether Wilson and/or Bailey made the termination decision, the stated reason for the termination has remained unchanged: plaintiff did not meet its sales expectations.
Plaintiff also asserts other evidence of pretext, including defendant's admission that it falsely informed the EEOC that plaintiff was one of five account managers whom defendant had terminated in the fall of 1998. Plaintiff asserts that this misrepresentation supports an inference of intentional discrimination. See Reeves v. Sanderson Plumbing, Inc., 120 S.Ct. 2097, 2108 (2000) (in appropriate circumstances, trier of fact can reasonably infer from falsity of explanation that employer is dissembling to cover up discriminatory purpose; inference is consistent with general principle of evidence law that fact-finder may consider party's dishonesty about material fact as evidence of guilt). In this case, however, defendant corrected the misrepresentation to the EEOC, and plaintiff has produced no evidence that defendant purposefully made the misrepresentation in the first instance.
In sum, the undisputed facts reveal substantial differences between plaintiff's circumstances and those of the employees to whom she asserts she was similarly situated. Plaintiff has not presented other evidence from which a jury could find that defendant's proffered reason for termination was a pretext for discrimination. Defendant is therefore entitled to summary judgment on plaintiff's claims of sex and age discrimination.
Defendant notes that Bailey hired plaintiff and discharged her less than a year later, and that such circumstances create a presumption against discrimination. See, e.g., Lohr v. Northwest Community Hosp., No. 99-C03912, 2000 WL 1721039, *5 (N.D.Ill. 2000) (granting defendant summary judgment when same decision-maker hired employee and withdrew offer within two months), citing Chiaramonte v. Fashion Bed Group, 129 F.3d 391, 399 (7th Cir. 1997) (common actor presumption exists when same decision-maker hires and fires employee in protected class in relatively short time span); Lowe v. J.B. Hunt Trans., Ins., 963 F.2d 173, 175 (8th Cir. 1992) (highly doubtful that person who hires employee in protected age group would fire same employee as result of sudden "aversion to older people"). Plaintiff asserts that Bailey did not act alone in hiring or firing plaintiff, and that this presumption therefore does not apply. Because the Court finds that plaintiff has failed to present evidence of pretext, this point is not determinative.
B. Disability Discrimination Claim
Plaintiff also asserts that defendant discharged her because of disability in violation of the ADA, 42 U.S.C. § 12112(a). Defendant asserts that it is entitled to summary judgment on this claim because plaintiff has not set forth a prima facie case of disability discrimination.
The ADA prohibits a covered entity from discriminating against a "qualified individual with a disability" because of the individual's disability with respect to terms, conditions and privileges of employment. See 42 U.S.C. § 12112(a). The ADA defines a "qualified individual with a disability" as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." Pack v. Kmart Corp., 166 F.3d 1300, 1302 (10th Cir. 1999) (quoting 42 U.S.C. § 12111(8)).
To establish a prima facie case under the ADA, plaintiff must show that (1) she is disabled within the meaning of the ADA; (2) she is qualified, that is, with or without reasonable accommodation, she is able to perform the essential functions of the job; and (3) defendant discriminated against her because of her disability. See Pack, 166 F.3d at 1302.
Defendant asserts that it is entitled to summary judgment because plaintiff has not shown a genuine issue of material fact whether she is a qualified individual with a disability. Under the ADA, a person is considered to have a disability if that individual either (A) has a physical or mental impairment that substantially limits one or more of the major life activities of such individual, (B) has a record of such an impairment or (C) is regarded by the employer as having such an impairment. 42 U.S.C. § 12102(2). Plaintiff alleges that she is disabled because she has a physical impairment which substantially limits a major life activity. The Court utilizes a three-step process for determining whether a plaintiff has a disability under the first subsection of the ADA's disability definition. See Bragdon v. Abbott, 524 U.S. 624, 631 (1998).
Under the first step, the Court must determine if plaintiff suffers from a physical or mental impairment. Plaintiff has a fractured pelvis and she therefore has a physical impairment which meets the first element. Defendant does not appear to contest that point.
The Court next identifies those life activities which are affected by the impairment and determines whether they are major life activities under the ADA. Plaintiff contends that her impairment affects the major life activity of walking. The applicable regulations include walking as a major life activity. See 29 C.F.R. Pt. 1630, App. 1630.2(i). Defendant does not question whether walking is a major life activity.
Third, plaintiff must show that her impairment "substantially limits" the major life activity identified in step two. Id. The EEOC regulations which implement the ADA define the term "substantially limits" to mean that plaintiff is:
(i) Unable to perform a major life activity that the average person in the general population can perform; or
(ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.29 C.F.R. § 1630.2(j)(1). The three factors to be considered when determining whether an individual is substantially limited in a major life activity are "(i) [t]he nature and severity of the impairment; (ii) [t]he duration or expected duration of the impairment; and (iii) [t]he permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." 29 C.F.R. § 1630.2(j)(2).
Plaintiff's testimony is that she is extremely limited in walking and that she has difficulty walking any substantial distance. At the time she worked for defendant, however, she had difficulty walking and standing "for long periods of time." At about the time of her termination, plaintiff's doctor noted that she could walk without a limp. She used a cane in wet or snowy weather and to ensure that she did not fall. Plaintiff offers no other evidence of the nature and severity of her impairment at the time she worked for defendant. As to the duration and long term impact of her impairment, the record suggests that plaintiff's problem is long term and may worsen due to arthritis. On the whole, however, plaintiff has not produced evidence that her ability to walk was substantially limited when defendant fired her. Thus she cannot show that she was disabled at that time.
Even assuming plaintiff has shown a disability at the time of termination, plaintiff has cited no evidence that defendant terminated her because of that disability. As set forth in the Courts's analysis of plaintiff's claims of sex and age discrimination, defendant has articulated a legitimate non-discriminatory reason for terminating plaintiff's employment. Plaintiff has presented no evidence that defendant's proferred reason was a pretext for disability discrimination. Defendant therefore is entitled to summary judgment on plaintiff's disability discrimination claim.
IT IS THEREFORE ORDERED that Defendant's Motion For Summary Judgment (Doc. #63) filed September 30, 2002, be and hereby is SUSTAINED.