Opinion
Civil Action No. 01-574
February 11, 2003
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. RECOMMENDATION
For the reasons stated below, it is respectfully recommended that the District Court grant the Defendants' Motion for Summary Judgment (Doc. 13) and dismiss this case with prejudice.
II. REPORT BACKGROUND
The Plaintiff Loretta L. Robinson ("Ms. Robinson" or "the Plaintiff") has filed this age discrimination lawsuit against her former employer(s), BT Financial Corporation and Laurel Bank ("the Bank"). See generally Compl. (Doc. 1). Ms. Robinson asserts parallel claims of discrimination under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("the ADEA") and the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. § 951, et seq. ("the PHRA"), and her pleadings state the following allegations in support thereof.
The Defendant-financial institutions indicate that they became the Plaintiff's employer through "[a] series of mergers and acquisitions." See generally Defs.' Br. in Supp. of Mot. for Summ. J. (Doc. 14, hereinafter cited as "Defs.' Br.") at 1-2. For the sake of simplicity, Defense counsel's papers refer to the Defendants collectively as "the Bank," see id. at 2, and the court follows counsel's lead.
In 1963, the Plaintiff began working for the Bank at its branch in Kittanning, Pennsylvania ("the Kittanning Branch"). See Compl. at ¶ 9. She worked at the Kittanning Branch until approximately December 2, 1999, when her employment was terminated. See id. at ¶¶ 13, 20. At the time of her termination, Ms. Robinson was fifty-four years old and she held the title of "Supervisor of Tellers" at the Kittanning Branch, a position she acquired through a series of promotions. See generally id. at ¶¶ 8, 10-14.
The Plaintiff describes the circumstances leading to her termination as follows. On approximately November 19, 1999, the Bank informed Ms. Robinson that she "would be required to transfer" to one of three other branches, "any of which would require [her] to engage in substantial additional travel." See id. at ¶ 15. The Bank informed her that, "if she did not transfer to one of the other [three] branch[es] . . ., her employment would be terminated." See id. at ¶ 16.
At the time this "ultimatum was issued," the Bank "was aware that [Ms. Robinson] was not comfortable driving long distances and would not be able to make the commute." See id. at ¶ 17. On this basis, the Plaintiff "requested on numerous occasions to be assigned to a position at the Kittanning [Branch,] as she did not want to commute to any of the other [three] branch[es]." See id. at ¶ 19. The Bank declined Ms. Robinson's requests, and it terminated her employment when she refused to accept the transfer. See id. at ¶ 20.
In support of her discrimination claims, the Plaintiff alleges that: at the time she was terminated, "employees who were substantially younger than" her "were treated more favorably in that they were hired or retained to work in the Kittanning" Branch, see id. at ¶ 21; the Bank's denial of her requests to remain in Kittanning was "motivated by . . . age," see id. at ¶ 22; and the Bank's decision to terminate her was similarly motivated. See id. at ¶ 23.
The Defendants filed their Motion for Summary Judgment on June 27, 2002. See Defs.' Mot. for Summ. J. (Doc. 13). Among other things, their counsel asserts that the Plaintiff has failed to sufficiently refute the Bank's legitimate, non-discriminatory reason for terminating her employment. See generally, e.g., Defs.' Br. at 22. The undersigned agrees, and therefore recommends that the Defendants' Motion for Summary Judgment be granted.
ANALYSIS
The age discrimination claims presented in this case are subject to analysis under the familiar McDonnell Douglas framework. Cf. generally Fakete v. Aetna, Inc., 308 F.3d 335, 337-38 n. 3 (3d Cir. 2002). First, the Plaintiff must establish her prima facie case by showing that: "(1) [she] was a member of a protected class, i.e., . . . she was over forty, (2) [she wa]s qualified for the position, (3) [she] suffered an adverse employment decision, (4) and [she] was ultimately replaced by[, or treated less favorably than,] a person sufficiently younger to permit an inference of age discrimination." See Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 167 (3d Cir. 2001) (citation omitted). If the Plaintiff makes her prima facie case, the burden shifts to the Defendants to identify "a legitimate, nondiscriminatory reason" for the adverse employment action. See generally Fakete, 308 F.3d at 338, n. 3. Once the Defendants proffer a legitimate, nondiscriminatory reason, the Plaintiff "must demonstrate that the proffered reason was merely a pretext for unlawful discrimination." See Hubbard v. Ashcroft, 2002 WL 1769003, *1 (3d Cir. Aug. 1, 2002) (citation omitted). To show pretext, the Plaintiff "must submit evidence [that] . . . casts sufficient doubt upon . . . the legitimate reason" identified by the Defendants or that "allows the factfinder to infer . . . discrimination was more likely than not a motivating or determinative cause of the adverse employment action." See id. (citation and internal quotations omitted).
"There is no need to differentiate between" Ms. Robinson's ADEA and PHRA claims because "the same analysis is used for both." See generally Connors v. Chrysler Fin. Corp., 160 F.3d 971, 972 (3d Cir. 1998) (citations omitted).
In this case, the undersigned has serious doubts regarding Ms. Robinson's ability to satisfy one of her prima facie elements, namely that she "suffered an adverse employment decision." See generally discussion supra. Even assuming the Plaintiff has made her prima facie case, however, she has completely failed to meet her burden on pretext.
As further addressed below, it was the Bank's decision to transfer Ms. Robinson, not her being terminated for refusing the transfer, that forms the crux of the Plaintiff's discrimination claims. See generally discussion infra. As also seen below, the Bank's decision to transfer her does not qualify as an "adverse employment decision." See id. Thus, if the court focuses on the true employment decision being challenged, the Plaintiff fails even to state a prima facie case. Nevertheless, the fact that Ms. Robinson ultimately was terminated, an archetypical adverse employment decision, causes the undersigned sufficient pause to forego a recommendation of dismissal based on her prima facie case, alone. At a minimum, however, the shortcoming in Ms. Robinson's prima facie case provides additional grounds for entering summary judgment against her.
At the onset, the court notes that the parties have expended the bulk of their energy debating whether the Bank was justified in requiring Ms. Robinson to transfer. Compare Defs.' Br. at 20-23 (arguing that Bank had legitimate reasons for transferring Plaintiff and for not requiring younger employees to transfer) with Pl.'s Opp'n Br. at 4-5, 8-11 (arguing opposite). Although ultimately misguided, this approach is somewhat understandable in light of the express allegations of the Complaint. See, e.g., Compl. at ¶ 21 (asserting that "substantially younger" employees "were treated more favorably" because they were "retained to work in . . . Kittanning"). As seen below, however, the Bank's decision to transfer Ms. Robinson has no bearing on whether it had a legitimate, non-discriminatory reason for terminating her employment.
The flaw in the Plaintiff's reasoning is best exemplified through the Pennsylvania district courts' analyses in Hussein v. Genuardi's Family Mkts., 2002 WL 56248 (E.D.Pa. Jan. 15, 2002) and in Grande v. State Farm Mut. Auto. Ins. Co., 83 F. Supp.2d 559 (E.D.Pa. 2000). In Hussein, the plaintiff was transferred from one of the defendant-employer's stores to another, while retaining "the same responsibilities and pay as [she had in her former] position. . . ." See id. at *2. Shortly thereafter, she was terminated by her employer when she "abandon[ed]" the new position. See id.
In the lawsuit that followed, the plaintiff sought to establish that her former employer discriminated against her by requiring the transfer. The Hussein court rejected this approach, reasoning:
[Although the p]laintiff . . . establishes the [adverse employment decision] element of [her] prima facie case because[,] as a formal matter, she was terminated[, her transfer to another store]. . . . do[es] not constitute [an] adverse employment action. . . .
[T]he record indicates that [she] was provided essentially the same job with the same responsibilities at the same pay at th[e] new location. . . . Even viewing the evidence in the light most favorable to [the p]laintiff, an essentially lateral transfer such as this does not equal an adverse employment action. . . . This is true even if . . . [the d]efendant forced [the p]laintiff to accept [the] transfer . . . against her will.
See id., 2002 WL 56248 at *5-6 (citation omitted, some emphasis added, some in original).
The Hussein Court's holding that an "essentially lateral transfer" does not constitute an adverse employment decision is hardly unique. As seen below, a multitude of federal courts have issued decisions, both before and after Hussein, reaching the very same conclusion. See generally discussion infra. Hussein is particularly instructive here, though, in its recognition that an employer "need not offer legitimate, nondiscriminatory reasons for" a decision to transfer that "ultimately do[es] not constitute [an] adverse employment action." See id. at *5 (emphasis added). This conclusion demonstrates why the parties' debate as to whether the Bank's proposed transfer was supported by a legitimate, non-discriminatory reason (as opposed to pretext) misses the mark.
Of course, this conclusion is based on the undersigned's finding that Ms. Robinson's anticipated transfer did not rise to the level of an adverse employment decision. The Pennsylvania district court's analysis in Grande further supports this proposition.
In Grande, the plaintiff "was offered a lateral transfer to another" of the defendant-employer's offices. See id., 83 F. Supp. d at 561. When the plaintiff "decided not to report" to the new location, his employer "fired [him] . . . for his failure to" show. See id.
In his discrimination lawsuit, the plaintiff "argue[d] that the long commute to" the new location "made [the] transfer an adverse employment decision." The court disagreed:
To be an adverse action, an employment decision must be serious and tangible enough to alter an employee's compensation, terms, conditions or privileges of employment. . . . [Although the court declines to hold that] a lateral transfer can never constitute an actionable employment decision,. . . . [none of the requisite] qualifying circumstances exist[.] . . .
[The] plaintiff has presented no evidence suggesting that the transfer was anything but a full-fledged job. [He] conceded in his deposition . . . that he did not believe the transfer was a first-step towards a termination or demotion. . . . [The] plaintiff has provided no evidence suggesting that his pay, promotion, or other benefits would have been harmed by [the] transfer. . . . In fact, in his deposition . . ., he conceded that there would have been no difference in pay or benefits and that he could have performed the job, which would have had the same title. . . .
He also stated that he could have made the commute to [said location], . . . although he stressed that the drive would have been longer. . . .
In these circumstances, . . . there has been no adverse employment decision. While the court does not minimize the effect of a lengthened commute . . ., without some evidence of actual harm to [the] plaintiff's career or some indication that he could not perform the job, these factors do not create . . . a prima facie case.
[Relatedly, t]he simple increase in the commuting distance is not enough to find [a] constructive discharge. . . . While [the plaintiff] may have found the [additional] distance impossible to tolerate, . . . the test looks to the reasonable person. . . . [Thus, for example,] . . . while an employer cannot transfer an employee to a job the employee cannot do, a desire to live in a certain city is not a job-related factor supporting a claim of constructive discharge. . . . Similarly, subjective feelings, on their own, are insufficient to find [a] constructive discharge.
As a purely technical matter, the plaintiff in Grande suffered an adverse employment action in that he was terminated for his failure to appear at the new location. See generally discussion supra in text. The Grande Court nevertheless held that the plaintiff could not state a prima facie case, implicitly recognizing that his termination was a mere formality resulting from his refusal to appear. Cf. Grande. This court is inclined to agree with Grande, and disagree with Hussein, that Ms. Robinson's ability to state a prima facie case should not turn on whether she was terminated, as opposed to having resigned, based on the anticipated transfer. Indeed, to entertain such a distinction would be to elevate form over substance. For this reason, the undersigned's recommended dismissal of the Plaintiff's discrimination claims would be equally justified at the prima facie stage of the McDonnell Douglas analysis. Cf. Grande, 83 F. Supp. d at 564.
See id. at 563-64 (citations and internal quotations omitted, emphasis added).
As referenced above, the holdings in Hussein and Grande are far from unique. A number of other federal courts, in Pennsylvania and elsewhere, have likewise concluded that a truly "lateral" transfer is not converted to an adverse employment decision, notwithstanding complaints regarding additional commute time. See, e.g., Jenkins v. Philadelphia Housing Auth., 2001 WL 1298988, *5 (E.D.Pa. Oct. 24, 2001) (transfer to "division [that] was less geographically convenient" to plaintiff did not constitute adverse employment action because her "assigned shift, days off, pay [and] responsibilities [did not] change depending on [the] site at which she work[ed]"); Spears v. Missouri Dep't. of Corr. Human Res., 210 F.3d 850, 853-54 (8th Cir. 2000) (transfer resulting in "mere . . . inconvenience" to plaintiff, absent "any impact on her job title, salary, benefits, or any other material aspect of her employment," was not adverse employment decision); Anzaldua v. Chicago Transit Auth., 2002 WL 31557622, *3-4 (N.D.Ill. Nov. 15, 2002) (even transfer "add[ing] up to an hour and a half each way to [plaintiff's] daily commute" was insufficient to establish adverse employment decision; such increased commute is "merely an inconvenience," not an actionable employment decision) (emphasis added); Johnson v. Eastchester Union Free Sch. Dist., 211 F. Supp.2d 514, 517-18 (S.D.N.Y. 2002) (plaintiff's "mere dissatisfaction" with transfer, based on "inconvenience of the change in location," was not actionable as adverse employment decision).
In Hussein, the district court stated in dicta that the failure to show the "new location was particularly inconvenient for or placed a[n undue] burden on" the plaintiff further supported the court's conclusion that her lateral transfer was not an adverse employment decision. See id., 2002 WL 56248 at *6. In light of the numerous court decisions holding that mere "inconvenience" fails to establish an adverse employment decision, however, the undersigned cannot agree with the dicta in Hussein. Thus, even assuming Ms. Robinson can satisfy the overly-liberal standards suggested in Hussein, the District Court should decline to adopt them here. Cf. generally cases cited supra in text (repeatedly concluding that mere inconvenience does not constitute adverse employment decision).
Under the aforementioned standards, Ms. Robinson has failed to show that the Bank's ordered transfer rose to the level of an adverse employment decision. Her counsel has neither urged nor shown that the transfer would have "any [adverse] impact on her job title, salary, benefits, or any other material aspect of her employment." See Spears, 210 F.3d at 853-54. In fact, Ms. Robinson has expressly admitted that the proposed transfer to the Bank's branch in Sarver, Pennsylvania would have resulted in a job promotion. Compare Defs.' Am. Statement of Uncontested Material Facts (Doc. 17) at ¶ 33 (stating that Plaintiff "would receive a promotion" upon transfer to Sarver) with Pl.'s Resp. to Defs.' Statement of Material Facts (Doc. 21) at ¶ 33 (stating that said "averment [was] admitted") (emphasis added). Simply put, there is no evidence in the record that the Bank's proposed transfer would have had any negative impact on Ms. Robinson's present or future conditions of employment.
This conclusion renders inapposite the holding in Torre v. Casio, Inc., 42 F.3d 825 (3d Cir. 1994), the only potentially relevant decision cited in the Ms. Robinson's opposition papers. In Torre, the plaintiff was transferred "to [a] dead-end position, . . . from which he could [more easily] . . . be fired." See id. at 827 (emphasis added). Indeed, the plaintiff's employment was terminated within five weeks of the transfer, see id., and the Torre Court considered the "transfer and . . . discharge" collectively when discussing the adverse employment decision presented. See id. at 831. In this case, no evidence exists that the Bank sought to transfer Ms. Robinson into a "dead-end position" or to make easier a later discharge. The Plaintiff's refusal to accept the transfer, moreover, negates any speculative allegations regarding the same.
The only other conceivable basis for distinguishing Ms. Robinson's claims is her counsel's bald assertion that "Sarver was too far for her to drive." See generally, e.g., Pl.'s Br. in Opp'n to Defs.' Mot. for Summ. J. (Doc. 20, hereinafter cited as "Pl.'s Opp'n Br.") at 10. Unfortunately for the Plaintiff, however, she has failed to show that her purported difficulties in driving are relevant to the adverse employment inquiry.
At the onset, the undersigned finds telling the Plaintiff's express averment in her pleadings that she "was not comfortable driving long distances. . . ." See Compl. at ¶ 17 (emphasis added). And while this averment is followed by the bare assertion Ms. Robinson "would not be able to make the commute," see id. (emphasis added), there is absolutely no evidence supporting this conclusion. To the contrary, the record plainly reveals that Ms. Robinson "has been a licensed driver since the age [of] 18," she has "no restrictions on her driver's license," and she has no medical restrictions regarding her ability to drive. See Defs.' Br. at 11 (citing evidentiary support in record). In addition, the record confirms that the additional commute required by the transfer to Sarver would have been a mere nineteen miles, the difference between a seven-mile drive from her home to the Kittanning Branch and a twenty-six mile drive to Sarver. See id. at 11-12 (citing record support).
As just seen, the Plaintiff has failed to identify any evidence supporting her assertion she was unable to make the additional commute: no restrictions on her driver's license, no findings or testimony of a medical health professional establishing her inability to drive the additional distance, et cetera. Instead, she offers only her subjective statements that the additional commute would be "difficult" and that she "intensely dislike[s] driving." See Pl.'s Opp'n Br. at 10. This type of evidence is insufficient for the purposes of establishing an adverse employment action. Cf., e.g., Grande, 83 F. Supp.2d at 564 ("subjective feelings, on their own, are insufficient to find" an adverse employment decision); see also, e.g., Pimentel v. City of New York, 2002 WL 977535, *4 (S.D.N.Y. May 14, 2002) ("purely subjective feelings about a transfer which, by objective standards, [do] not negatively alter the terms and conditions of [the plaintiff's] employment in any respect have no bearing on whether an adverse employment action has occurred"; "[i]nterference with sleeping, therapy, eating and medication schedules are purely subjective matters that [unrelated discrimination statutes] do not address") (citations and internal quotations omitted, emphasis added).
For all of these reasons, the Plaintiff has failed to show that the Bank's proposed transfer constituted an adverse employment decision. Even assuming this conclusion is not fatal to her prima facie case, the Bank owed no duty to "offer legitimate, nondiscriminatory reasons for" its decision to transfer the Plaintiff. See Hussein, 2002 WL 56248 at *5.
As referenced above, the undersigned concludes that the Bank's proposed transfer, and not the mere formality of Ms. Robinson's being terminated based on her refusal to accept it, constitutes the purported adverse employment decision placed before the court. See generally discussion supra. The undersigned also has doubts regarding the Plaintiff's ability to show that younger employees were treated more favorably. See generally Compl. at ¶ 21 (alleging that "substantially younger" employees "were treated more favorably in that they were hired or retained to work in . . . Kittanning") (emphasis added). Ms. Robinson's supposition that working in Kittanning would, in fact, be more favorable to younger employees enjoys no evidentiary support. Stated differently, there is no reason for the court to presume that younger workers likewise would have preferred to stay in Kittanning; it seems equally likely that working in one or more other location(s) may have been of greater convenience to any given worker. This analytical disconnect further evidences the infirmity of Ms. Robinson's approach.
The proper inquiry is whether the Defendants have proffered, and whether the Plaintiff has sufficiently refuted, the Bank's non-discriminatory reason for Ms. Robinson's termination. The bank's stated reason is clear, and it seems beyond meaningful dispute: the Plaintiff was terminated for refusing to accept the transfer. And though the Plaintiff's Complaint alleges that the termination was "motivated by . . . age," see id. at ¶ 23, her counsel has failed to identify one shred of evidence supporting this assertion and/or refuting the Bank's stated non-discriminatory reason. See generally Pl.'s Opp'n Br. Rather, in arguing that the transfer was not supported by legitimate reasons, Ms. Robinson implicitly concedes that her termination was based on her refusal to agree to the same. See id.
As seen above, the Bank's decision to transfer was not an adverse employment action, and it therefore is not subject to the "legitimate non-discriminatory reason" analysis under McDonnell Douglas. See discussion supra. Having failed to identify evidence that she was terminated for any reason other than her refusal to transfer, the Plaintiff cannot meet her burden on pretext.
In conclusion, Ms. Robinson's grievances boil down to her displeasure with the Bank's reassigning her to a different location. "The realities of the workplace," however, "dictate that employees do not always have the option to work in the location they desire." See Nonnenmann v. City of New York, 174 F. Supp. d 121, 133 (S.D.N.Y. 2001) (citation and internal quotations omitted, emphasis added) (holding that employer's denial of request for transfer to facility "13.5 miles closer to [plaintiff's] home [wa]s insufficient to constitute an adverse employment action"). Nothing in the ADEA bestows upon Ms. Robinson the right to demand employment at the Bank branch of her choosing, and for this reason, as well as the others stated above, the Defendants' Motion for Summary Judgment is well taken.
CONCLUSION
For the reasons stated above, it is recommended that the District Court grant the Defendants' Motion for Summary Judgment (Doc. 13) and dismiss this case with prejudice.
In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.1.4(B) of the local Rules for Magistrates, objections to this report and recommendation are due by February 27, 2003. Responses to objections are due by March 10, 2003.