Opinion
CIVIL ACTION NO. 3:00-CV-1925-G.
September 24, 2001.
MEMORANDUM ORDER
Before the court is the motion of defendant Haggar Clothing Company ("Haggar") for summary judgment. For the reasons set forth below, the motion is denied.
I. BACKGROUND
This suit alleges age discrimination and gender discrimination. The plaintiff, Jimmy Palasota ("Palasota"), is a 56 year old male. Original Complaint and Jury Demand ("Complaint") at 2. He was 51 years old at the time of the acts complained of in this suit. Id. Palasota was employed by Haggar as a sales associate from 1968 to May 10, 1996, a total of 28 years. Id. Throughout most of his career with Haggar, Palasota's major account was Dillard's Department Stores ("Dillard's"). Brief in Support of Defendant's Motion for Summary Judgment ("Motion") at 6. Additionally, Palasota serviced some trade accounts and eight J.C. Penney stores in the Dallas/Ft. Worth market. Id. at 7. In December, 1995, Dillard's ceased purchasing Haggar products altogether. Id. Subsequently, Haggar created an independent trade account territory specifically for Palasota. Id. On April 29, 1996, Haggar informed Palasota that as a result of a reconfiguration of its sales staff, Palasota's position of sales associate was being eliminated, effective May 10, 1996. Id. at 7-8; Complaint at 2. Haggar terminated Palasota on May 10, 1996. Motion at 8; Complaint at 2.
According to Palasota, Haggar's management felt that the company was not reaching the younger market, and in the mid-1990's began efforts to portray a younger, sexier image for the company. Brief in Support of Plaintiff's Response to Defendant's Motion for Summary Judgment ("Response") at 3; see also Deposition of Tim Lyons at 9-11, Appendix to Plaintiff's Brief in Support of Plaintiff's Response to Defendant's Motion for Summary Judgment ("App. to Response") at 419. Palasota alleges that, as part of Haggar's attempt to change its market image with consumers and retailers, Haggar created the Retail Marketing Associate ("RMA") program to put "a younger look in the field" to sell its clothes to retailers. Response at 8-10; Deposition of Douglas Moore ("Moore Dep.") at 19-20, App. to Response at 12. Palasota asserts that over the few years prior to his termination, Haggar implemented policies in which responsibilities previously performed by sales associates were transferred to persons employed as RMA's. Complaint at 2. As a result of these changes, Palasota avers, the only apparent differences between the sales associate positions and the retail marketing associate positions are the title and pay, because many of the job responsibilities are essentially the same. Id. During this time, Haggar allegedly decreased the number of sales associates while increasing the number of retail marketing associates. Id. Palasota alleges that persons employed as sales associates were generally males over forty years old, while persons employed as retail marketing associates have generally been females under forty years old. Id.; see also Response at 3-4, 9-10; Moore Dep. at 19-20, App. to Response at 12. Thus, Palasota alleges, Haggar's reconfiguration of its sales force over the past few years has effectively shifted the sales responsibilities from men over forty years old to women under forty years old. Complaint at 3.
Palasota filed this suit on September 1, 2000, alleging claims against Haggar of age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and gender discrimination under Title VII, 42 U.S.C. § 2000e et seq. Id. at 1. Haggar brings this motion for summary judgment on both claims. Motion at 1, 3, 6.
II. ANALYSIS A. Evidentiary Burdens on Motion for Summary Judgment
Summary judgment is proper when the pleadings and evidence on file show that no genuine issue exists as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The movant makes such a showing by informing the court of the basis of its motion and by identifying the portions of the record which reveal there are no genuine material fact issues. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). The pleadings, depositions, admissions, and affidavits, if any, must demonstrate that no genuine issue of material fact exists. FED. R. CIV. P. 56(c).
The disposition of a case through summary judgment "reinforces the purpose of the Rules, to achieve the just, speedy, and inexpensive determination of actions, and, when appropriate, affords a merciful end to litigation that would otherwise be lengthy and expensive." Fontenot v. Upjohn Company, 780 F.2d 1190, 1197 (5th Cir. 1986).
Once the movant makes this showing, the nonmovant must then direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. Celotex, 477 U.S. at 323-24. To carry this burden, the "opponent must do more than simply show . . . some metaphysical doubt as to the material facts." Matsushita Electric Industrial Company, Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 586 (1986). Instead, the nonmovant must show that the evidence is sufficient to support a resolution of the factual issue in her favor. Anderson, 477 U.S. at 249.
While all of the evidence must be viewed in a light most favorable to the motion's opponent, Anderson, 477 U.S. at 255 (citing Adickes v. S.H. Kress Company, 398 U.S. 144, 158-59 (1970)), neither conclusory allegations nor unsubstantiated assertions will satisfy the non-movant's summary judgment burden. Little v. Liquid Air Corporation, 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825 (1992). Summary judgment in favor of the movant is proper if, after adequate time for discovery, the motion's opponent fails to establish the existence of an element essential to his case and as to which he will bear the burden of proof at trial. Celotex, 477 U.S. at 322-23.
Haggar has moved for summary judgment on both Palasota's age discrimination claim and his gender discrimination claim. Each will be examined separately.
B. Age Discrimination
The ADEA prohibits employers from discharging employees based upon their age. 20 U.S.C. § 623(a)(1). To establish a violation of the ADEA, Palasota must prove intentional discrimination. See Armendariz v. Pinkerton Tobacco Company, 58 F.3d 144, 149 (5th Cir. 1995), cert. denied, 516 U.S. 1047 (1996). Because there is little, if any, direct evidence in this case, the three-step McDonnell Douglas burden-shifting framework applies. See Hanchey v. Energas Company, 925 F.2d 96, 97 (5th Cir. 1990); see also St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-11 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-56 (1981); McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-05 (1973).
In the first step, Palasota must establish a prima facie case of discrimination by showing that he was (1) discharged; (2) qualified for the position; (3) within the protected class; and (4) either (i) replaced by someone outside the protected class, (ii) replaced by someone younger, or (iii) otherwise discharged because of his age. Armendariz, 58 F.3d at 149. When an employee has not been replaced, prong (iii) of the fourth element applies. See Meinecke v. H R Block of Houston, 66 F.3d 77, 83 (5th Cir. 1995).
Haggar asserts that Palasota cannot establish a prima facie case of age discrimination. Motion at 6. For the purposes of this motion, Haggar admits that Palasota can satisfy the first three elements of his prima facie case. Id. The court will do the same. Haggar contends, however, that Palasota's prima facie case fails with respect to the fourth element. Id. Haggar focuses on Palasota's alleged failure to introduce evidence to show that he was replaced by someone outside the protected class or replaced by someone younger. Id. Rather, Haggar maintains, Palasota's duties were merely spread among existing sales staff after his termination. Id. at 9-10.
Even if Haggar is correct in this contention, failure of Palasota's prima facie case does not necessarily mean that Haggar's motion for summary judgment should be granted. See Thornbrough v. Columbus and Greenville Railroad Company, 760 F.2d 633 (5th Cir. 1985):
To make out a prima facie case, the plaintiff must prove the necessary elements "by a preponderance of the evidence." Even if the plaintiff has not succeeded in meeting this burden of proof, if he has raised a genuine issue of material fact, he should survive summary judgment. . . . [T]here is no inherent relation between the failure to establish a prima facie case and summary judgment. The failure to establish a prima facie case means merely that the plaintiff has failed to establish facts sufficient to create a legally mandatory, rebuttable presumption. It means that the fact finder is not required to find in the plaintiff's favor; it does not mean that the factfinder is not permitted to find in the plaintiff's favor. A fact may be material for purposes of defeating a motion for summary judgment and yet fail to create a rebuttable presumption.Id. at 641 n. 8 (emphasis in original) (citation omitted). See also Amburgey v. Corhart Refractories Corporation, 936 F.2d 805, 811-12 (5th Cir. 1991).
Palasota points out that although he asserts he has shown evidence that Haggar replaced him by someone outside the protected class, under the ADEA, he does not have to make this showing, as long as he can raise a genuine issue of material fact on whether he was otherwise discharged because of his age. Response at 30. See Russell v. McKinney Hospital Venture, 235 F.3d 219, 223-24 (5th Cir. 2000); Meinecke, 66 F.3d at 83. Palasota has introduced evidence that there was an ongoing and developing plan to transfer the responsibilities of the sales associates, a largely older male group, to the RMA's, a largely younger female group, constituting replacement by someone outside the protected class. See, e.g., Response at 34. Specifically, Palasota has tendered evidence showing that within a year after Palasota's termination, all of the sales associates assigned to the J.C. Penney's account were terminated and replaced with an RMA force consisting predominantly of younger females. Response at 35; Moore Dep. at 22, App. to Response at 13; Deposition of Timothy D. Markham ("Markham Dep.") at 71-74, App. to Response at 570-571.
"The necessary elements of a prima facie employment discrimination case are not Platonic forms, pure and unchanging; rather, they vary depending on the facts of a particular case." Amburgey, 936 F.2d at 812 (quoting Thornbrough, 760 F.2d at 641). Cf. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715 (1983) ("The prima facie case method established in McDonnell Douglas was `never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination."') (quoting Furnco Construction Corporation v. Waters, 438 U.S. 567, 577 (1978)).
Additionally, Palasota has submitted evidence that he was otherwise discriminated against because of his age. For example, Palasota alleges that in the mid-1990's, Haggar President and Chief Operating Officer Frank Bracken made several age-related comments about the sales force at company gatherings. One such comment was made during a national sales meeting in late 1994 or early 1995, where Bracken commented to a group of people that there was a "significant graying of the sales force" and intimated that this "graying" sales force was not particularly open to change. See Response at 4; see also Deposition of James L. Thompson at 99-101, App. to Response at 116-117; Deposition of Jimmy Palasota at 399-400, App. to Response at 291; Deposition of Calvin M. Williams at 45-49, App. to Response at 331-332; Deposition of Dennis Bowie at 49-50, App. to Response at 381. Furthermore, after a two and a half year investigation, the Equal Employment Opportunity Commission ("EEOC") issued a determination letter finding "reasonable cause to believe that the Charging Party and similarly situated Sales Associates were discharged based on their age, in violation of the ADEA." Response at 28; App. to Response at 697. In the Fifth Circuit, "EEOC determinations and findings of fact, although not binding on the trier of fact, are admissible as evidence in civil proceedings as probative of a claim of employment discrimination at the issue in the civil proceedings." Lindsey v. Prive Corporation, 161 F.3d 886, 894 (5th Cir. 1998).
Viewing the summary judgment evidence in the light most favorable to Palasota as the nonmovant, the court finds that Palasota has met his burden of presenting a genuine issue of material fact whether Haggar discriminated against him because of his age. See Thornbrough v. Columbus and Greenville Railroad Company, 760 F.2d 633, 641 (5th Cir. 1985). Thus, Haggar's motion for summary judgment on Palasota's age discrimination claim is denied.
C. Gender Discrimination
Palasota brings his gender discrimination claim under Title VII of the Civil Rights Act of 1964, which makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1). As with the claim of age discrimination, the court applies the McDonnell Douglas/Burdine/St. Mary's burden shifting framework to Palasota's claim that Haggar dismissed him and replaced him with a female. Travis v. Board of Regents of the University of Texas System, 122 F.3d 259, 263 (5th Cir. 1997), cert. denied, 522 U.S. 1148 (1998). The prima facie elements of this gender discrimination claim resemble those of Palasota's claim for age discrimination: (1) that he was a member of a protected group, male; (2) that he was qualified for his position; (3) that he was dismissed or suffered an adverse employment action; and (4) that the defendants replaced him with a similarly qualified female employee. See, e.g., Ward v. Bechtel Corporation, 102 F.3d 199, 202 (5th Cir. 1997).
Haggar admits for the purposes of this motion that Palasota has established the first three elements of his gender discrimination claim. Motion at 6. Haggar avers, however, that Palasota has failed to proffer any evidence showing that Haggar sought to replace him with a similarly qualified female, in this case according to the allegations of the complaint, a RMA. Id. Much of the same evidence offered to rebut Haggar's motion regarding age discrimination also applies to Haggar's motion regarding gender discrimination. In fact, both parties collapse their discussions of age discrimination and gender discrimination together, citing the cumulative nature of the evidence. Motion at 3; Response at 42.
For Palasota to defeat Haggar's motion for summary judgment, he must show that there is a genuine issue of material fact as to whether Haggar sought to replace him with a similarly qualified female. In his efforts to do so, Palasota has produced a variety of evidence showing that Haggar sought to replace the predominantly male sales associates with younger, female, RMA's, or younger females holding positions similar to RMA's. See, e.g., Response at 42; Markham Dep. at 111-112, App. to Response at 580; Moore Dep. at 22-23, 169-70, App. to Response at 13, 50. Additionally, the EEOC also found "that there is reasonable cause to believe that males, as a class, were not selected for the RMA positions based upon their sex, in violation of Title VII." Response at 28, App. to Response at 698. After reviewing the record, the court finds that Palasota has presented sufficient evidence to create a fact issue regarding the fourth element of his prima facie case of gender discrimination. Haggar's motion for summary judgment as to Palasota's claim of gender discrimination is also denied.
Palasota asserts that a similar position to the RMA position was created, made up of predominantly females between the ages of twenty-five and thirty. Response at 24-25; Moore Dep. at 22-23, 169-70, App. to Response at 13, 50.
III. CONCLUSION
For the foregoing reasons, Haggar's motion for summary judgment is DENIED.