Opinion
Civil Action No. 03-2516-KHV.
November 16, 2004
MEMORANDUM AND ORDER
Stanley L. Smith brings suit against Turner Unified School District 202 ("the District") under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., claiming that a proposed transfer to another teaching assignment was discriminatory, and resulted in a termination of employment through firing or constructive discharge. The matter is before the Court on Defendant's Motion For Judgment On The Pleadings (Doc. #9) filed April 12, 2004. For reasons stated below, the Court construes defendant's motion as a motion for summary judgment and, so construed, finds that it should be denied.
Applicable Standards
A court may convert a motion for judgment on the pleadings into a summary judgment proceeding in order to consider matters outside of the pleadings. Fed.R.Civ.P. 12(c). In support of its motion for judgment on the pleadings, defendant submitted affidavits and other materials. Therefore, on July 19, 2004, the Court directed plaintiff to respond to defendant's motion as a motion for summary judgment. Order (Doc. #19).
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 a judgment as a matter of law. Fed.R.Civ.P. 56(c); 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. See 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 Secs., 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 his 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 summary judgment. See Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). Summary judgment may be granted if the nonmoving party's evidence is merely colorable or is not significantly probative. See 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.
Factual Background
The following facts are either undisputed or, where disputed, construed in the light most favorable to plaintiff.
The Turner Unified School District employed plaintiff to teach music for 31 years, from August 15, 1971 until July 1, 2002. During 2001-2002, it employed ten music teachers. The parties identify each teacher by number, with plaintiff as Teacher 1. For 2001-2002, the ten teachers maintained the following certification and teaching assignments:
• Plaintiff/Teacher 1: certified in instrumental and vocal music; taught elementary and middle school instrumental.
• Teacher 2: certified in instrumental and vocal music; taught elementary and middle school instrumental.
• Teacher 3: certified in instrumental and vocal music; taught elementary vocal and assisted with high school band.
• Teacher 4: certified in vocal music; taught middle and high school vocal.
• Teacher 5: certified in instrumental music; taught elementary and high school instrumental.
• Teacher 6: certification unknown; taught elementary and high school (Endeavor High) vocal.
• Teacher 7: certified in instrumental and vocal music; taught elementary vocal.
• Teacher 8: certified in vocal music; taught middle school vocal.
• Teacher 9: certified in music and special education; taught elementary vocal.
• Teacher 10: certified in vocal music and English; taught elementary vocal.
Defendant claims that Teacher 3 "taught band (instrumental music) and vocal music at Muncie Elementary and Turner High School." Memorandum In Support Of Motion For Judgment On The Pleadings ("Memorandum In Support") (Doc. #10) ¶ 22(c).
The record does not indicate whether Teacher 9 was certified for vocal and/or instrumental music.
At the end of 2001-2002, Teacher 6 retired and Teacher 2 resigned. Because of budget constraints, the District decided not to replace Teacher 6, and it restructured its music program for 2002-2003.
Teacher 2 did not receive a tentative assignment for 2002-2003. The record does not reflect when Teacher 2 resigned, whether the District failed to provide Teacher 2 a tentative assignment because it knew that Teacher 2 was resigning or whether the lack of a tentative assignment played a role in the teacher's decision to resign.
In 2001-2002, the District had offered daily vocal music instruction for first through sixth grades and daily instrumental music instruction for fifth and sixth grades. After restructuring, the District continued the daily instruction in vocal music, but reduced instrumental music instruction to Monday, Wednesday and every other Friday. On May 10, 2002, the District tentatively reassigned plaintiff, who was then age 55, from elementary and middle school instrumental music to elementary vocal music and band. Plaintiff had not taught vocal music in 30 years and even though he was certified to teach vocal music, he did not feel qualified to do so.
After learning of the tentative reassignment, plaintiff, Teacher 2 and a third (unidentified) music teacher met with Superintendent Harry Austin. At the meeting, plaintiff observed that the main assignment schedule in the superintendent's office differed from the tentative assignment which he had received: it showed that he would teach only vocal music (not band) and that he would be assigned to Endeavor, a school where "students unable to function in the regular schools in the district are sent."Plaintiff's Memorandum In Opposition To Defendant's Judgement [sic] On The Pleadings ("Plaintiff's Memorandum") (Doc. #20) ¶ 27. Instrumental music is not offered at Endeavor. Id. Based on this assignment, plaintiff believed that the District was forcing him out. The superintendent's schedule slated Teacher 3, the youngest instrumental music teacher (age 47), who was also experienced in vocal music, for plaintiff's middle school band position. Plaintiff requested a copy of the superintendent's schedule, but the superintendent refused to provide it.
Plaintiff and a number of music teachers also met with Bobby Allen, assistant superintendent. Allen told the teachers that he would correct the schedule to put them back in their areas of expertise. Plaintiff's Memorandum ¶ 6. Believing the matter to be resolved, plaintiff cancelled a meeting which he had scheduled with Allen and Pat Pettey, president of the Kansas National Education Association Turner No. 202, to discuss the assignments. Plaintiff later learned that Allen did not correct the assignments.
On May 31, 2002, three weeks after the initial reassignment, plaintiff wrote defendant the following letter:
To Whom It May Concern:
After more than 30 years as a band instructor in the Turner School District, I find it necessary to decline the proposed teaching assignment for the 2002-2003 school year. My expertise is in instrumental music (named in the Who's Who in Education for the last two years, International Association of Jazz Educators Outstanding service award, numerous top ratings in regional instrumental music contests, etc.), yet I have been informed that next year's assignment is teaching vocal music. This is a disservice to the children and the music program in general. Our beginning band program has seen success due to people teaching in their field of concentration. I do not feel qualified to teach vocal music. The district has several qualified vocal music instructors to fill these voids. These instructors have agreed to help with the vocal music schedule and are opposed to having us assigned to cover classes for which they have been trained to teach.
The district schedule has me slated for vocal music only, while the written notification from Becky Letcher stated I was to teach vocal music and band with no building assignment. This is in violation of the agreement. This should preclude any financial penalty.
I am dismayed that the two teachers with the most instrumental music experience were given assignments outside of our primary field while those with less seniority were given all instrumental assignments. It would appear that the district in giving these assignments is looking to eliminate the older teachers. This is blatant age discrimination.
As you know, statistics show that children involved in a band program at an early age tend to stay in school, score higher on standardized tests, and go on to college so why would the district wish to cut this program at the elementary level?
I would hope to continue to serve the children of the Turner community as an instrumental music instructor. I have been extremely proud of past bands and students that have excelled under my tutelage.
Sincerely, Stanley L. Smith
Exhibit A-6 to Memorandum In Support (Doc. #10).
The collective bargaining agreement ("CBA"), which governs the terms of teacher employment in the District, contains a liquidated damages clause which applies to any teacher who resigns after May 15. For a resignation tendered between June 1 and June 30, the District assesses the resigning teacher $300.00. The Board, however, may waive the liquidated damages. On June 4, 2002, the Board of Education approved plaintiff's "resignation" and waived the statutory liquidated damages penalty. The District hired entry level music teachers to replace plaintiff and Teacher 2. Plaintiff had reached the highest pay scale, and the District saved a significant amount of money by replacing him and Teacher 2 with entry level teachers.
The CBA authorizes the superintendent to make transfers and assignments. The CBA does not limit what factors the superintendent may consider, but it requires that in making transfers and assignments, the superintendent consider "teachers' professional qualifications, seniority in the district, major and minor fields of preparation, and teacher request for choice of vacant positions." Exhibit A-3 to Memorandum In Support (Doc. #10) at 18.
The CBA sets teacher salaries based on education and experience. In 2001-2002, plaintiff received a base salary of $43,457.00 and $2,250.00 for middle school instrumental music. In 2002-2003, plaintiff would have earned a base salary of $43,907.00 plus any supplemental contract. The supplemental contract for elementary music was $675.00. The difference in the supplemental contract would have reduced plaintiff's total salary and ultimately his retirement benefits.
It is unclear whether plaintiff would have earned a supplemental salary in 2002-2003. Even though the superintendent's schedule did not include any band assignment, the tentative schedule which plaintiff received included an unspecified "band" assignment. The Court construes this ambiguity in favor of plaintiff.
The CBA contains a grievance procedure to address "alleged misinterpretation, misapplication, violation, or disregard of the Agreement." Memorandum In Support (Doc. #10) ¶ 14. Plaintiff did not file a written grievance under the CBA. Plaintiff asserts that he did not file a grievance because "the time limit for signing a contract was due and it was too late" and he did not believe a grievance was necessary after meeting with the associate superintendent. Plaintiff's Memorandum (Doc. #20) ¶¶ 6, 15. He also states that he called Kansas Human Rights Commission ("KHRC") and understood from that call that his next step was to file a complaint with KHRC.
On November 25, 2002, plaintiff filed a charge of discrimination with KHRC. The next day, KHRC forwarded the charge to the Equal Employment Opportunity Commission ("EEOC") for dual filing. In the charging document, plaintiff stated as follows:
I. I was born May 3, 1947, and I am fifty-five (55) years old.
II. I was employed by the Respondent from August 1971, to June 4, 2002. I last held the position of Instrumental Music Instructor.
A. On May 31, 2002, I was subjected to a transfer to an alternative school and placed in a position not in my field of experience, to begin in the upcoming school year. However, younger employees with less seniority were not subjected to transfers.
B. On June 4, 2002, I was terminated due to my refusal to accept the transfer.
III. I hereby charge Turner School Disctrict [sic] #202 and its Representatives with a violation of the Kansas Age Discrimination in Employment Act, in that I was subjected to a transfer, change of duties, and terminated due to my age, fifty-five (55).
Exhibit A-9 to Memorandum in Support (Doc. #10). On July 17, 2003, the EEOC issued a right to sue letter.
On October 14, 2003, plaintiff filed this pro se lawsuit. Plaintiff claims that in transferring him and replacing him with a younger employee, the District discriminated against him. Plaintiff also alleges that defendant terminated his employment or constructively discharged him by assigning him to teach vocal music after 30 years of teaching instrumental music, all in violation of ADEA. Civil Complaint (Doc. #1) at 3. In the complaint, plaintiff also states that he considered the transfer a demotion.
Liberally construed, plaintiff's complaint alleges that because of his age, the District assigned him to a less desirable teaching position with less pay. In his form complaint, plaintiff alleges that defendant's misconduct included termination of employment and/or constructive discharge, unequal terms and conditions of employment and reduction in wages. In context, however, plaintiff's allegations center around a single claim that because of his age, defendant assigned him to a less desirable position with less pay.
Plaintiff does not claim a hostile work environment. Plaintiff cannot maintain independent causes of action based on terms and conditions to which defendant never subjected him and reductions in pay which he never suffered. Furthermore, the Court does not construe plaintiff's complaint as asserting an independent claim for constructive discharge. Plaintiff's allegation of constructive discharge is only relevant to the damages (if any) which plaintiff suffered on account of the decision to reassign him. See, e.g., Knabe v. Boury Corp., 114 F.3d 407, 407 n. 1 (3d Cir. 1997) (constructive discharge claim not separate ground for relief but factors into damages); Vitug v. Multistate Tax Comm'n, 88 F.3d 506, 517 (7th Cir. 1996) (absent discrimination, plaintiff cannot establish constructive discharge); Martinez v. Cole Sewell Corp., 233 F. Supp.2d 1097, 1122 n. 6 (N.D. Iowa 2002) (constructive discharge not separate claim under Title VII but regards effect of alleged discrimination and available relief).
Defendant argues that it is entitled to summary judgment because plaintiff's KHRC charge did not include constructive discharge and reduced wage claims, and the Court therefore lacks jurisdiction to hear them. Defendant also argues that plaintiff cannot establish a prima facie case of discrimination because he has not experienced adverse employment action. Finally, defendant asserts that even if plaintiff has set out a prima facie case, it had a legitimate business reason for its action and plaintiff has not shown that its reason is pretextual.
Analysis
I. Exhaustion of Administrative Remedies
Defendant argues that the Court does not have jurisdiction over any constructive discharge and reduced wage claims because plaintiff has not exhausted administrative remedies. As noted above, plaintiff cannot assert independent claims for constructive discharge or reduced wages for positions in which he never worked. Defendant's motion for summary judgment based on failure to exhaust these claims is therefore moot and is hereby overruled
Furthermore, the Court may consider complaints not expressly included in an EEOC or agency charge when the conduct alleged falls within the scope of an agency investigation which would reasonably grow out of the charges actually made. Martin v. Nannie The Newborns, Inc., 3 F.3d 1410, 1416 n. 7 (10th Cir. 1993), overruled on other grounds by Davidson v. Am. Online, Inc., 337 F.3d 1179 (10th Cir. 2003). Here, any reasonable KHRC investigation of plaintiff's charge would have included an investigation into the salary differential between his old and new positions and whether the proposed reassignment compelled plaintiff to quit. Defendant does not dispute that plaintiff exhausted administrative remedies on his claims of discrimination with respect to reassignment and alleged termination.
II. Age Discrimination
The ADEA makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against 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). To prevail on his ADEA claim, plaintiff must establish that age was a determining factor in the challenged decision. See Greene v. Safeway Stores, Inc., 98 F.3d 554, 557 (10th Cir. 1996) (citing Lucas v. Dover Corp., 857 F.2d 1397, 1400 (10th Cir. 1988)). Plaintiff need not show that age was the sole reason, but he must show that age "made the difference" in any adverse employment action.Id. (quoting E.E.O.C. v. Sperry Corp., 852 F.2d 503, 507 (10th Cir. 1988)). Plaintiff may meet this burden by direct evidence of age discrimination or by the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-56 (1981). See Wood v. City of Topeka, 17 Fed. Appx. 765, 767-68 (10th Cir. 2001); Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1225 (10th Cir. 2000).
Under McDonnell Douglas, plaintiff initially bears the burden of production to establish a prima facie case of discrimination. 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 back to plaintiff to present evidence from which a reasonable jury might conclude that defendant's proffered reason is pretextual, that is, "unworthy of belief." Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1165 (10th Cir. 1998) (quotingRandle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995)).
A. Prima Facie Case
Generally, to establish a prima facie case of age discrimination in termination or reassignment, plaintiff must show that (1) he was a member of the protected age group, over age 40; (2) he was doing satisfactory work; (3) he suffered an adverse employment action; and (4) a younger person replaced him.See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000); Greene, 98 F.3d at 558. Defendant does not dispute that plaintiff was a member of the protected age group, that he was doing satisfactory work and that it replaced plaintiff with someone younger. Defendant contends that it is entitled to summary judgment, however, because plaintiff cannot establish a prima facie case of adverse employment action.
To establish adverse employment action, plaintiff must experience "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). The Tenth Circuit liberally defines adverse employment action. Hill v. Steven Motors, Inc., 97 Fed. Appx. 267, 278 (10th Cir. 2004); An v. Regents of Univ. of Calif., 94 Fed. Appx. 667, 673 (10th Cir. 2004); Sanchez v. Denver Pub. Schs., 164 F.3d 527, 532 (10th Cir. 1998). Such actions are not simply limited to monetary losses in the form of wages or benefits. Id. The Tenth Circuit applies a "case-by-case" approach, examining the unique factors relevant to the situation before it. See Hill, 97 Fed. Appx. at 278;An, 94 Fed. Appx. at 673; Sanchez, 164 F.3d at 532. Nevertheless, adverse employment action does not include "a mere inconvenience or an alteration of job responsibilities." Id. (citations and quotations omitted).
Plaintiff asserts that the reassignment was an adverse employment action because it would have reduced his wages and lowered his retirement benefits. In Sanchez, the Tenth Circuit pointed out that an employee's negative view of a transfer does not make the transfer an adverse employment action. Id. at 532 n. 6. And while a truly lateral transfer does not inherently constitute adverse employment action, a transfer involving significant changes in employment conditions such as reduction in salary and benefits or job responsibilities may constitute adverse employment action, see id. at 532; McCrary v. Aurora Pub. Schs., 57 Fed. Appx. 362, 362, 368 (10th Cir. 2003) (transfer not adverse employment action when benefits, pay and seniority not reduced).
Defendant argues that the proposed transfer did not affect plaintiff's base salary. Defendant does not dispute, however, that a change from middle school instrumental music to elementary school vocal music would have reduced plaintiff's stipend income from $2,250.00 to $675.00, with a corresponding reduction of retirement benefits. Furthermore, in addition to reduced wages, the reassignment placed plaintiff outside his area of experience. Viewing the facts in the light most favorable to plaintiff, the Court finds that the proposed transfer involved significant changes in employment conditions and constituted adverse employment action.See Burlington, 524 U.S. at 761 (decision causing significant change in benefits or responsibilities may constitute tangible employment action). Because plaintiff has raised genuine issues of material fact whether the transfer constituted adverse employment action, defendant's motion for summary judgment on this issue must be overruled.
Defendant argues that plaintiff resigned before it determined supplemental contracts, so that any reduction in wages is speculative and cannot constitute adverse employment action. This argument misses the point because the gist of plaintiff's complaint is discrimination in reassignment, not an independent claim based on a discriminatory reduction in wages.
B. Legitimate Nondiscriminatory Reason
When plaintiff establishes a prima facie case, the burden shifts to defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. See McDonnell Douglas, 411 U.S. at 802. Defendant asserts that it restructured the music program for 2002-2003 because of budget cuts and the need to provide elementary teachers a daily planning period.
Budget cuts may constitute a legitimate, nondiscriminatory reason for adverse employment action. E.g., Trujillo v. Univ. of Colo. Health Scis. Ctr., 157 F.3d 1211, 1215 (10th Cir. 1998) (budget cuts constituted legitimate nondiscriminatory reason for termination of employment); Shikles v. Sprint/United Mgmt. Co., 2003 WL 22454012, at *14 (D. Kan. Oct. 28, 2003) (termination of employment as part of reduction in force brought about by budget cuts not facially discriminatory); Boyle v. McCann-Erickson, Inc., 949 F. Supp. 1095, 1105 (S.D.N.Y. 1997) (no evidence that termination due to budget cuts was pretextual). In this case, while defendant cites an alleged need to restructure its elementary music program for budgetary reasons, it offers no explanation which specifically addresses plaintiff's transfer. In short, defendant does not articulate how budget cuts related to its decision to transfer plaintiff and replace him with a younger teacher. Moreover, defendant does not explain the alleged correlation between plaintiff's reassignment and the need to provide elementary teachers a daily planning period. The District has not articulated a facially nondiscriminatory reason for plaintiff's transfer, and the Court need not address its arguments with respect to pretext.
C. Damage Theories
Defendant argues that it is entitled to summary judgment on plaintiff's damage theories because plaintiff voluntarily resigned and has no actionable claim for constructive discharge. As to termination, defendant argues that as a matter of law, plaintiff voluntarily resigned and even if he did not expressly resign, his refusal to transfer must be construed as a resignation. Plaintiff denies that he resigned, and claims constructive discharge.
The CBA authorizes the superintendent to transfer employees, Exhibit A-3 to Memorandum in Support at 18, but directs him to consider "teachers' professional qualifications, seniority in the district, major and minor fields of preparation, and teacher request for choice of vacant positions." Id. Defendant has presented no evidence that the superintendent considered these factors or properly exercised his authority under the CBA. Therefore the Court cannot conclude that as a matter of law, plaintiff's failure to concur in the transfer constituted a resignation. Furthermore, plaintiff notes that his alleged "resignation" letter in fact expressed his hope to continue employment as an instrumental music teacher. Viewed in the light most favorable to plaintiff, the letter does not conclusively show an intent to resign: a reasonable jury could construe it as a request that the District reconsider the proposed reassignment. Genuine issues of material fact remain as to whether plaintiff resigned or was terminated.
Defendant contends that it could not have terminated plaintiff's employment because it did not give him timely notice of termination as required by K.S.A. § 72-5411. This argument is unpersuasive. While state law requires timely notice of termination, failure to follow the statutory procedure does not mean that defendant did not terminate plaintiff's employment.
As to plaintiff's constructive discharge theory, defendant argues that as a matter of law, plaintiff cannot show constructive discharge. A constructive discharge exists when working conditions become so difficult that a reasonable person would feel compelled to resign. Phillips v. Moore, 164 F. Supp.2d 1245, 1256 (D. Kan. 2001); Redpath v. City of Overland Park, 857 F. Supp. 1448, 1464 (D. Kan. 1994) (citing Derr v. Gulf Oil Corp., 796 F.2d 340, 344 (10th Cir. 1986)). The question is not whether the employee's resignation resulted from the employer's actions, but whether the employee had any other reasonable choice but to resign in light of those actions. Tran v. Trs. of State Colls. in Colo., 355 F.3d 1263, 1270-71 (10th Cir. 2004) (citations omitted).
A perceived demotion or transfer to a job with lower status or lower pay may constitute aggravating factors that would justify finding of constructive discharge. James v. Sears, Roebuck Co., Inc., 21 F.3d 989, 992 (10th Cir. 1994). For a transfer to constitute a demotion, plaintiff must demonstrate that the new position involves less pay, less responsibility, or a lesser degree of skill than the previous assignment. Hooks v. Diamond Crystal Specialty Foods, Inc., 997 F.2d 793, 799 (10th Cir. 1993).
As explained above, plaintiff was reassigned to a position which(1) placed him outside his area of experience, (2) required him to teach in a school for troubled students, (3) involved what he perceived to be a demotion, and (4) reduced his salary and retirement benefits. When considering plaintiff's objections as a whole, on this record, a reasonable jury might find these facts sufficient to compel a reasonable person to resign.
IT IS THEREFORE ORDERED that Defendant's Motion For Judgment On The Pleadings (Doc. #9) filed April 12, 2004, be and hereby is DENIED.