Opinion
No. C98-73 MJM
August 26, 1999.
ORDER
This matter comes before the court pursuant to defendant's May 14, 1999 motion for summary judgment (docket number 21). Plaintiff filed a brief in resistance to defendant's motion and requested oral argument on the issue (docket number 30). Oral argument was heard concerning this motion on August 13, 1999. For the reasons set forth below, defendant's motion for summary judgment is granted.
In this case, plaintiff (Jones) claims that defendant, the Gates Corporation (Gates), denied him a promotion and constructively discharged him solely based on his age, thereby violating the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (ADEA), and § 16b of the Fair Labor Standards Act, 29 U.S.C. § 216(b) (FLSA). Gates argues that it is entitled to summary judgment with respect to Jones's failure to promote claim because it had a legitimate, non-discriminatory reason for denying Jones the promotion. Gates argues that it is entitled to summary judgment on Jones's constructive discharge claim because Jones failed to file an administrative claim based on constructive discharge and therefore failed to exhaust his administrative remedies. Alternatively, Gates contends that it is entitled because Jones was not, as a matter of law, constructively discharged.
Summary Judgment
A motion for summary judgment may be granted only if, after examining all of the evidence in the light most favorable to the nonmoving party, the court finds that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Kegel v. Runnels, 793 F.2d 924, 926 (8th Cir. 1986). "Summary judgment is appropriate when there is no genuine issue of material fact and, accordingly, no reasonable jury could find in favor of the nonmoving party." Hennessey v. Good Earth Tools, Inc., 126 F.3d 1107, 1108 (8th Cir. 1997). Once the movant has properly supported its motion, the nonmovant "may not rest upon the mere allegations or denials of [its] pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P . 56(e). "To preclude the entry of summary judgment, the nonmovant must show that, on an element essential to [its] case and on which [it] will bear the burden of proof at trial, there are genuine issues of material fact." Noll v. Petrovsky, 828 F.2d 461, 462 (8th Cir. 1987), cert. denied, 484 U.S. 1014 (1988) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). Although "direct proof is not required to create a jury question, . . . to avoid summary judgment, `the facts and circumstances relied upon must attain the dignity of substantial evidence and must not be such as merely to create a suspicion.'" Metge v. Baehler, 762 F.2d 621, 625 (8th Cir. 1985), cert. denied, 474 U.S. 1057 (1986) (quoting Impro Prod., Inc. v. Herrick, 715 F.2d 1267, 1272 (8th Cir. 1983), cert. denied, 465 U.S. 1026 (1984)).
In the context of employment discrimination cases, summary judgment should be used sparingly. Hardin v. Hussman Corp., 45 F.3d 262, 264 (8th Cir. 1995) (citations omitted). "`Because discrimination cases often depend on inferences rather than on direct evidence, summary judgment should not be granted unless the evidence could not support any reasonable inference for the nonmovant.'" Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir. 1995) (quoting Crawford v. Runyon, 37 F.3d 1338, 1340 (8th Cir. 1994)). See also Berg v. Norand Corp., 169 F.3d 1140, 1144 (8th Cir. 1999) ("summary judgment is generally inappropriate in discrimination cases because they are based on inferences that the fact finder may or may not draw); Breeding v. Arthur J. Gallagher Co., 164 F.3d 1151, 1156 (8th Cir. 1999) (same). However, there exists no "discrimination case exception" to applying Fed.R.Civ.P . 56, and summary judgment remains a valuable pretrial tool to determine whether or not any case, including an employment discrimination case, merits a trial. Berg, 169 F.3d at 1144.
Statement of Material Facts Not in Dispute
Jones was born on July 6, 1946. He was 51 years of age at the time all relevant events transpired. Jones began working for Gates on June 28, 1965 as an hourly employee. Over time, Jones held several different positions with Gates.
In 1980, Jones began working in field sales. In 1984, Jones transferred to Cedar Rapids to work as a territory manager. This job involved selling various Gates products. In 1986 Jones' job title was changed to district sales manager, and he began reporting to the regional office in Kansas City. From 1986 to approximately 1989 Jones was supervised by regional sales manager Jim Buchan. The regional office to which Jones reported was then changed to Minneapolis and he began reporting to regional sales manager Ray Poage.
In 1991, Jones became a hydraulic sales manager. This position later became known as a hose and coupling sales manager. Again, Jones' job duties involved traveling throughout his region and selling various Gates products. In this capacity, however, Jones was also responsible for training both distributors and other Gates personnel in the products, and ensuring that all products were satisfactory. In 1995, the Minneapolis regional office was closed, and Jones began reporting to Chicago regional sales manager David Mercer. Charlie Monahan, field sales manages for Gates' Industrial Sales Division and Mercer's supervisor, told Jones that he could continue to work out of his home in Cedar Rapids and would not have to move to the Chicago area. However, Mercer had reservations about Jones living outside of his territory. At this time, Jones' territory included Illinois, two-thirds of Wisconsin, and the upper peninsula of Michigan. Indiana was added to Jones' territory in 1997. The addition of Indiana required Jones to drive further than he had been driving when he reported to the Minneapolis office.
As a salesman, part of Jones' compensation was based on commission. If Jones met certain sales objectives, he could earn bonuses that would bring his total compensation up to twice base set salary. The Chicago region had a lower sales volume than the Minneapolis region, thereby reducing Jones' commission and overall compensation. Jones believed it would take five years to build the Chicago region to the same volume the Minneapolis region had been. Jones expressed, both verbally and in writing, his unhappiness with the pay deferential both to Mercer and to Gates' headquarters. Jones wanted Gates to guarantee that his total compensation would not be less than it was when he was based out of the Minneapolis region. Gates refused to do so.
In 1997, the Kansas City regional manager and Jones' former supervisor, Jim Buchan, announced that he intended to retire. Upon hearing this, Jones sent a memo to Charlie Monahan asking that he be considered a candidate for Kansas City regional manager. Jones had also asked to be considered for a regional manager's job in Atlanta in 1992 and for the same job when the Chicago region was formed in 1995. Jones was told that he would not be considered a manager for either the Atlanta or the Chicago position. There were five other applicants for the Kansas City job.
Prior to the interview process, Monahan asked Buchan (Jones' supervisor from 1986 — 1989) for his opinion of the applicants. Buchan responded that he could not recommend Jones for the position. Monahan interviewed Jones in Kansas City. Monahan posed the same 13 questions to all of the applicants. During the interview, Jones informed Monahan that he did not interview well, and that he did not answer the questions very well, but that he very much wanted the job. After the interview, Monahan was of the opinion that Jones did not do well at either answering the questions or demonstrating an in-depth understanding of the requisite market and industry issues. Jim Mitchell, who was approximately 34 years of age at the time, was selected to fill the position.
In approximately August of 1997, Jones' regional manager, Dave Mercer, asked Jones if he would consider moving to the Chicago area. Although Jones had been an exception, Gates generally required that hose and coupling sales managers live near their regional headquarters. The addition of Indiana to the territory would require Jones' presence to build up the area, and Mercer felt that Jones' working out of Cedar Rapids would compromise this objective. Due to the higher cost of living and the fact that Jones would not benefit financially from moving to Chicago, Jones informed Mercer that he did not want to move.
In September of 1997, Jones investigated the amount of retirement benefits available to him if he were to retire. On October 23, 1997, Monahan informed Jones that he did not receive the Kansas City regional manager position. Jones responded that since he had not been promoted, he would probably retire.
In November of 1997, Mercer again asked Jones about relocating to Chicago. Jones inquired as to what the company would provide if he agreed to move to Chicago. When asked what he wanted, Jones said that he wanted Gates to guarantee his compensation at the level it was prior to the closing of the Minneapolis office, to pay to move him (including unpacking expenses), and Jones wanted Gates to give him five percent of his previous year's pay to cover miscellaneous expenses. Gates agreed to provide Jones its standard moving package, which did cover some moving expenses and the five percent miscellaneous expenses, but did not include unpacking expenses or guaranteed compensation. Unsatisfied with the offer, Jones informed Mercer on January 10, 1998 that he felt he did not have many choices but to retire. Mercer instructed Jones to consult with higher management if he was uncomfortable with being asked to move to Chicago. Jones never did this. Jones was never told by anyone at Gates that he would be fired if he refused to move to Chicago.
After announcing his retirement, Jones and Mercer arranged it so that Jones' last date of employment would take him through the end of the fiscal year. This way, Jones would receive his year-end bonus. Therefore, Jones continued to work for Gates until February 28, 1998 and then used accrued vacation time through April 30, 1998, the end of the fiscal year.
On December 11, 1997, Jones filed discrimination charges against Gates with the Iowa Civil Rights Commission (ICRC) and the Equal Employment Opportunity Commission (EEOC). On the charge form, Jones listed October 23, 1997, the date he was informed that he had not been selected for the Kansas City position, as the "last date something negative happened" to him. Jones never sought to amend his complaint to include constructive discharge after deciding to retire.
Conclusions of Law Failure to Promote Claim
The ADEA makes it "unlawful for an employer . . . to discharge 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). Persons forty years of age and over are protected by the ADEA. 29 U.S.C. § 631. The elements of a prima facie case of discriminatory failure-to-promote are well settled. To establish a prima facie case, the plaintiff must demonstrate the following elements:
that [he] is a member of a protected group;
that [he] was qualified and applied for a promotion to a position for which the employer was seeking applicants;
that despite [his] qualifications, [he] was rejected; and
that other employees of similar qualifications who were not members of a protected group were promoted at the time plaintiff's request for promotion was denied.Lyoch v. Anheuser-Busch Co., Inc., 139 F.3d 612, 614 (8th Cir. 1998) (quoting Marzec v. Marsh, 990 F.2d 393, 395-96 (8th Cir. 1993).
Jones has offered no direct evidence of age discrimination. Therefore, the court will analyze this case under the McDonnell Douglas burden shifting framework. Under the McDonnell Douglas framework, once a plaintiff demonstrates a prima facie case of liability, the employer must then produce evidence of a legitimate, nondiscriminatory reason for its actions. If the employer satisfies this burden of production, the burden then shifts back to the plaintiff to show that the employer's actions were a pretext for discrimination. Id. (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253-54 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973)). Thus, the following issues must be determined at the summary judgment stage:
It is well-settled that the McDonnell Douglas burden shifting approach applies to claims made pursuant to the ADEA. See Ryther v. KARE 11, 108 F.3d 832, 836 (8th Cir. 1997 (en banc), cert. denied, ___ U.S. ___, 117 S. Ct. 2510, 138 L. Ed. 2d 1013 (1997); Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 776 (8th Cir. 1995).
whether plaintiff has sufficiently established a prima facie case of age discrimination;
whether defendant has sufficiently met his burden of producing a legitimate nondiscriminatory explanation to rebut plaintiff's prima facie case; and
whether plaintiff has sufficiently demonstrated that the proffered reasons were not the true reasons for the employment decision and that there is a genuine issue of material fact regarding the ultimate question of age discrimination.Widoe v. District #111 Otoe County Sch., 147 F.3d 726, 729 (8th Cir. 1998).
At the second stage of the analysis, the "defendant need not persuade the court that it was actually motivated by the proffered reasons." Texas Dep't of Community Affairs, 450 U.S. at 254.
It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection. The explanation provided must be legally sufficient to justify a judgment for the defendant.Id. at 254-55; 1094.
For purposes of this motion only, Gates does not dispute Jones' ability to establish a prima facie case. However, Gates contends that it has produced a legitimate, nondiscriminatory explanation as to why Jones was not promoted to Kansas City regional manager. Moreover, Gates argues that Jones has presented no evidence that its explanation is pretext.
Charlie Monahan testified that Jim Mitchell was selected for the Kansas City job because Mitchell's interview demonstrated that he possessed the business acumen, industry knowledge, and communication skills required for the job. Charlie Monahan also testified that Jones was not offered the job because he felt that Jones did not do a very good job answering the interview questions, a fact which Jones himself admitted. Jones also admitted that he had not prepared very well for his interview. Furthermore, Monahan testified that Jones did not do a good job of verbalizing and communicating an in-depth understanding of the market and industry issues that arise on a daily basis. Finally, Monahan testified that he was negatively influenced by the fact that Jim Buchan, Jones' former supervisor, told Monahan that he would not recommend Jones for the position.
Jones claims that Monahan's stated reasons for denying him the Kansas City position were not the true reasons for the employment decision, but were merely pretext for unlawful discrimination. Jones argues that the real reason he was rejected for the Kansas City position was his age.
In support of his pretext argument, Jones cites to allegedly contradictory testimony given by Monahan. Jones asserts that Monahan's testimony was contradictory in that after stating that Monahan would not have interviewed candidates without knowing something about their administrative skills, business acumen, and other things, he later stated that he had no knowledge of either Mitchell's or Jones' understanding of the industry aside from what he gathered in the interview. Gates contends that Jones is misconstruing Monahan's testimony. The court agrees.
The court has thoroughly examined the relevant portions of Monahan's testimony, and has not found them to be contradictory. Monahan did give testimony to the effect that he would not have interviewed candidates for the Kansas City position without knowing something about their "administrative skills and their business acumen and lots of other things." (Monahan Depo. p. 72). Monahan further testified that he had gained such knowledge of both Mitchell's and Jones' administrative skills and business acumen not only from their interviews, but also by working with them and observing them in the field over the years. Monahan testified that he learned of Mitchell's and Jones' understanding of the industry and markets only through the interview. While Monahan's testimony may have been somewhat confusing, it is not contradictory. But more to the point, Monahan's testimony is not evidence of pretext.
Jones also argues, as evidence of pretext, that Monahan's acknowledgment that none of the candidates were given any information regarding the qualifications for the job prior to their interviews negates his own admission that he did not do a good job answering the interview questions. Jones further emphasizes that, just prior to the interviews, Jim Mitchell attended a distributor training school that covered the questions which were the focus of the interview. Again, the court fails to see how these facts constitute evidence of pretext.
Jones' argument that none of the candidates were given job qualification information prior to the interview demonstrates, if anything, that all candidates were treated equally. Moreover, the mere fact that Mitchell attended some training shortly before the interviews, without more, does not support the argument that Gates' reason for denying him the promotion was pretext. Jones has produced no evidence from which an inference could be drawn that Gates sent Mitchell to the training with the intention of ensuring that he would be the most qualified candidate for the Kansas City job.
Finally, Jones sets forth a series of reasons as to why he was a more qualified job candidate than Mitchell. For example, Jones claims that he had ample managerial experience while Mitchell had none. Jones also claims that he was more qualified because he had been with Gates longer, had better sales skills, and was viewed as a veteran.
As the Eighth Circuit Court of Appeals has noted repeatedly, "employment-discrimination laws have not vested in the federal courts the authority to sit as super-personnel departments reviewing the wisdom or fairness of the business judgments made by employers, except to the extent that those judgements involve intentional discrimination." Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 780 (8th Cir. 1995) (citing Krenik v. County of Le Sueur, 47 F.3d 953, 960 (8th Cir. 1995); Beith v. Nitrogen Prods., Inc., 7 F.3d 701, 703 (8th Cir. 1993); Holley v. Sanyo Mfg., Inc., 771 F.2d 1161, 1166 n. 8 (8th Cir. 1985)). As long as an employer's personnel and business decisions do not discriminate unlawfully, the courts are in no position to second-guess them. Hanebrink v. Brown Shoe Co., 110 F.3d 644, 646 (8th Cir. 1997). Absent an intent to discriminate on any unlawful basis, it was for Gates to determine the selection criteria for the Kansas City position, not Jones, and not this court. See Hutson, 63 F.3d at 780 (finding that employee's opinion that different criteria should have been evaluated in reduction in force case did not constitute evidence of pretext, but was merely an attack on the business judgment of the employer in how it chose to evaluate its employees).
After examining all of the evidence in the light most favorable to Gates, the court finds that no genuine issues of material fact exist on the failure-to-promote claim and that Gates is entitled to summary judgment.
Constructive Discharge
Jones contends that he was constructively discharged from Gates based on his age. In support of his contention, Jones argues that Gates pressured him to relocate to Chicago, a move Jones claims he was financially unable to make. Jones maintains that he believed he had no choice but to retire or be fired. Jones also argues that the fact that he was passed over for two promotions prior to the opening in Kansas City supports his constructive discharge claim.
Gates contends that it is entitled to summary judgment on Jones' constructive discharge for several reasons. First, Gates argues that Jones' constructive discharge claim is not properly before this court as Jones has failed to exhaust his administrative remedies by not filing a constructive discharge claim with either the EEOC or the ICRC prior to initiating this civil action. Second, Gates claims that Jones was not, as a matter of law, constructively discharged. Third, Gates argues that Jones cannot establish a prima facie case of constructive discharge because he was never replaced. Finally, even assuming Jones' ability to establish an age-based constructive discharge, Gates claims that Jones has offered no evidence that Gates' stated reasons for its actions are pretext.
Failure to Exhaust Administrative Remedies
Gates claims that Jones' constructive discharge claim is not properly before the court because he has failed to exhaust his administrative remedies on this issue. In support of its claim, Gates points to the fact that the age discrimination complaint Jones filed with the ICRC was based upon a failure-to-promote theory and made no mention of a constructive discharge. Therefore, Jones' alleged constructive discharge was never investigated nor subjected to conciliation. Jones argues that his failure-to-promote discrimination charge was "like or reasonably related" to his constructive discharge and is properly before the court.
Under both the ADEA and the Iowa Civil Rights Act of 1965, a discrimination charge must be timely filed with either the EEOC or the ICRC before the initiation of a civil action under those statutes. Boge v. Ringland-Johnson-Crowley Co., 976 F.2d 448, 451 (8th Cir. 1992) (citing 29 U.S.C. § 626(d) and Iowa Code Ann. § 216.15(12)). See also Fink v. Kitzman, 881 F. Supp. 1347, 1361 (N.D. Iowa 1995) (filing with the EEOC is a condition precedent to later filing a suit under the ADEA); Mummelthie v. City of Mason City, 873 F. Supp. 1293,1310 (N.D. Iowa 1995) (under the ADEA, a civil action may not be commenced until sixty days after a charge alleging unlawful discrimination has been filed with the EEOC). "Allowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would circumscribe the EEOC's investigatory and conciliatory role, as well as deprive the charged party of notice of the charge, as surely as would an initial failure to file a timely EEOC charge." Wallin v. Minn. Dep't of Corrections, 153 F.3d 681, 688 (8th Cir. 1998) (quoting Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 223 (8th Cir. 1994). However, a plaintiff will be deemed to have exhausted his administrative remedies as to allegations in a judicial complaint that are "like or reasonably related" to the substance of the charges timely brought before the EEOC. Wallin, 153 F.3d at 688. See also Boge, 976 F.2d at 451 (in order for plaintiff to have exhausted his administrative remedies, the allegations of the judicial complaint must be like or reasonably related to the administrative charges that were timely brought); Reiss v. ICI Seeds, Inc., 548 N.W.2d 170, 174 (Iowa App. 1996) ("[i]n district court cases involving multiple claims of unfair employment practice, the district court retains authority to hear evidence on all claims reasonably related to the plaintiff's initial administrative complaint").
The original charge is sufficient to support EEOC action, including a civil suit, for any discrimination stated in the charge or developed during a reasonable investigation of the charge, so long as the additional allegations of discrimination are included in the reasonable cause determination and subject to a conciliation proceeding.EEOC v. Delight Wholesale Co., 973 F.2d 664, 668-69 (8th Cir. 1992).
Jones filed a charge of age discrimination with the ICRC on December 5, 1997. When asked on the complaint form to explain why Jones felt he had been discriminated against, Jones outlined the chronology of events surrounding Gates' selection of Jim Mitchell for the Kansas City regional manager position. Jones also noted on the complaint form that October 23, 1997 (the day he was notified that he did not receive the Kansas City position) was the last date something negative happened to him. Jones did not inform David Mercer, his regional manager, of his decision to retire until January 10, 1998. Jones continued working for Gates until February 28, 1998 and then used up his accrued vacation. This brought Jones' official last day of employment with Gates to April 30, 1998, the end of the fiscal year, and ensured that Jones received his year-end bonus totaling approximately $8,000.00.
Jones' administrative claim makes no explicit mention that he was constructively discharged. Therefore, the issue is whether an age discrimination claim based on a failure-to-promote theory is sufficiently "like or reasonably related" to an age-based constructive discharge claim so that Jones has properly exhausted his administrative remedies. Under the facts of this case, the court finds that it is not.
Several courts have faced the issue of whether a claim of constructive discharge is "like or reasonably related" to a claim of failure-to-promote. See Less v. Nestle Co., Inc., 705 F. Supp. 110 (W.D.N.Y. 1988); Kent v. AVCO Corp., 815 F. Supp. 67 (D. Conn. 1992); Ong v. Cleland, 642 F.2d 316 (9th Cir. 1981). In Kent, plaintiff's administrative complaint alleged that his former employer coerced plaintiff into early retirement by threatening to reduce his insurance benefits if he did not retire. Id. at 70. In his civil action, plaintiff also alleged additional acts of age discrimination such as disparate compensation, insufficient working accommodations, and denials of promotions. Id. at 68. The court held that plaintiff had failed to exhaust his administrative remedies under the ADEA. Id. at 70. "Nowhere in the administrative complaint did plaintiff allege that his working conditions were made so difficult that a reasonable person in his position would have felt compelled to resign." Id.
The Ninth Circuit Court of Appeals reached a similar result in Ong. V. Cleland, 642 F.2d 316, 320 (9th Cir. 1981). In Ong, the plaintiff filed an administrative charge alleging that she was denied a promotion on the basis of national origin. Id. at 317. In her civil action in federal court, plaintiff claims that the discriminatory promotional decision of her employer resulted in her constructive discharge. Id. at 319. The court found that plaintiff's administrative charge of discriminatory failure-to-promote did not encompass her later judicial complaint of constructive discharge. Id. at 320. Therefore, the court refused to consider plaintiff's constructive discharge claim as she had failed to exhaust her administrative remedies. Id. See also Albano v. Schering-Plough Corp., 912 F.2d 384, 387 (9th Cir. 1990), cert. denied, 498 U.S. 1085 (1991) ("A constructive discharge is not a factor or component of a promotion denial claim and therefore, it would not likely arise in an EEOC investigation of discriminatory promotion practices.").
The Eighth Circuit analyzed this issue in EEOC v. Delight Wholesale Co., 973 F.2d 664 (8th Cir. 1992). In Delight, the plaintiff filed an administrative complaint in which she claimed that she was demoted based on her sex. Id. at 667. Plaintiff subsequently resigned from her position. Id. The EEOC office in charge of plaintiff's case began an investigation and requested additional information from plaintiff's employer. Id. at 668. After receipt of the additional information, the EEOC notified plaintiff's employer that the case also raised issues of constructive discharge. Id. Upon the conclusion of its investigation, the EEOC issued a Determination Letter which mentioned evidence of constructive discharge. Id. Conciliation efforts failed and plaintiff brought suit in federal court alleging that her employer had engaged in several unlawful practices, including constructive discharge. Id. Finding that plaintiff's constructive discharge claim was properly before the district court, the court noted that the EEOC uncovered evidence of the constructive discharge during its investigation. Id. at 669. The court further noted that the EEOC included allegations of constructive discharge in its reasonable cause determination and gave the defendant an opportunity to conciliate the allegations. Id. "The original charge is sufficient to support EEOC action, including a civil suit, for any discrimination stated in the charge or developed during a reasonable investigation of the charge, so long as the additional allegations of discrimination are included in the reasonable cause determination and subject to a conciliation proceeding." Id. at 668-69.
In the case presently before the court, Jones filed his administrative claim with the EEOC over one month before he announced his decision to retire. Jones never sought to amend his initial complaint. In his administrative complaint, Jones never alleged anything to the effect that his working conditions were so difficult that a reasonable person in his position would have felt compelled to resign. See Tidwell v. Meyer's Bakeries, Inc., 93 F.3d 490, 494 (8th Cir. 1996) (requiring that plaintiff demonstrate that employer deliberately created intolerable working conditions with the intention of forcing plaintiff to quit and the plaintiff must quit in order to support claim of constructive discharge). Unlike the administrative proceedings in Delight, in Jones' case the EEOC did not include allegations of constructive discharge in its reasonable cause determination and Gates was not given an opportunity to conciliate the allegations of constructive discharge. The court finds that Jones' constructive discharge claim is not properly before the court since he has failed to exhaust his administrative remedies on this issue.
Constructive Discharge — Adverse Employment Action
Gates alternatively argues that it is entitled to summary judgment on Jones' constructive discharge claim because Jones cannot, as a matter of law, demonstrate that he suffered an adverse employment action. Rather, Gates contends that Jones voluntarily retired. Jones claims that he has demonstrated a genuine issue of material fact on his constructive discharge claim, thereby precluding summary judgment.
To establish a prima facie case of age discrimination, a plaintiff must demonstrate that:
plaintiff is within the protected age group,
plaintiff met applicable job qualifications and legitimate expectations of the employer,
despite these qualifications, plaintiff suffered a discharge or other adverse employment action, and
Plaintiff was replaced by a younger worker. Johnson v. Runyon, 137 F.3d 1081, 1082 (8th Cir. 1998), cert. denied, ___ U.S. ___ 119 S. Ct. 264 (1998). Voluntary retirement does not amount to an adverse employment action. Id. "Absent an adverse employment action, [plaintiff] could only recover if he demonstrated that he was constructively discharged." Id. at 1082-83.
Gates further contends that it is entitled to summary judgment because Jones cannot establish a prima facie case of age discrimination as he was never replaced by a younger worker. A determination of this issue is not dispositive, and therefore will not be considered by the court. The same is true of Gates' pretext argument.
"To constitute a constructive discharge, the employer must deliberately create intolerable working conditions with the intention of forcing the employee to quit and the employee must quit." Tidwell, 93 F.3d at 494. The intent requirement is satisfied if the employee demonstrates that he quit as a reasonably foreseeable consequence of the employer's discriminatory actions. Id. (citing Hukkanen v. Int'l Union of Operating Eng'rs, 3 F.3d 281, 285 (8th Cir. 1993)) "A constructive discharge arises only when a reasonable person would find the conditions of employment intolerable." Id. To support a constructive discharge claim under the ADEA, an employer's conduct must be "severe or pervasive enough to create an objectively hostile work environment," and the plaintiff must "subjectively perceive the environment to be abusive." Johnson, 137 F.3d at 1083 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). "To act reasonably, an employee has an obligation not to assume the worst and not to jump to conclusions too quickly." Tidwell, 93 F.3d at 494 (citing West v. Marion Merrell Dow, Inc., 54 F.3d 493, 498 (8th Cir. 1995)). An employee had not been constructively discharged if he quits without affording his employer a reasonable opportunity to work out a problem. Id.
The Minneapolis regional office closed in 1995. As a result, Jones began reporting to the Chicago office. Jones was allowed to continue working out of Cedar Rapids. In 1997, the state of Indiana was added to Jones' territory, thereby increasing Jones' amount of driving from Iowa. In August of 1997, Mercer asked Jones whether he would be interested in moving to Chicago. In September of 1997, Jones inquired into the amount of his retirement benefits. On October 23, 1997, Jones was informed that he was not selected for the Kansas City position. At that time, Jones said that he would probably retire. In November of 1997 Mercer again asked Jones about the possibility of relocating to Chicago. Negotiations ensued, and Jones told Mercer that he was not interested. In January of 1998, Jones announced his retirement. Mercer suggested that Jones consult higher management concerning the relocation issue. Jones never did this. Jones continued to work for Gates until the end of February, 1998, and then used up his accrued vacation so that he would still receive his year-end bonus.
Jones claims that he could not afford to move to Chicago due to the higher cost of living and the decreased commissions he was earning. Even assuming this as true, no one at Gates ever told Jones that he would be fired if he refused to move to Chicago. Moving to Chicago was suggested and encouraged, but not required. Moreover, retirement was never suggested or encouraged by anyone at Gates. It was always Jones' idea. Furthermore, Jones never acted upon Mercer's suggestion to consult with higher management on the relocation issue. See Howard v. Burns Bros., Inc., 149 F.3d 835, 842 (8th Cir. 1998) (constructive discharge claims were dismissed, in part, due to the employee's failure to pursue internal grievance procedures). Finally, the fact that Jones was passed over for the Atlanta and Chicago regional manager positions do not support his constructive discharge claim. Jones himself testified that Tom Wells, the person selected for the Atlanta position, had the advantage because he was from that area and knew the territory better. Jones also testified that Mercer was a qualified candidate when selected for the Chicago position. See Tidwell, 93 F.3d at 495 (noting that losing out on a single promotion to an arguably more qualified candidate will not create, as a matter of law, the "overwhelming compulsion" to quit that is necessary for constructive discharge). Occasional inquiries concerning relocation and being passed over for three promotions over a five year period are not, as a matter of law, "severe or pervasive enough to create an objectively or abusive work environment." Harris, 510 U.S. at 21, 114 S. Ct. at 370. Moreover, a reasonable person would not "subjectively perceive the environment to be abusive." Id. Therefore, even assuming that Jones' constructive discharge claim was properly before this court, summary judgment is warranted.
Order
For the foregoing reasons, the Court grants defendant's May 14, 1999 motion for summary judgment (docket number 21). The Clerk shall enter judgment in favor of Gates.