Opinion
Civil Action No. 02-0929, Section "N"
January 27, 2003
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment on Discrimination Claim and Partial Summary Judgment on Fair Labor Standards Act Claim, filed by defendant, Hard Rock Construction Company ("Hard Rock"). For the reasons that follow, the motion is DENIED.
I. BACKGROUND
Hard Rock hired plaintiff, Tiffany Templet, in July 1999. She began as a receptionist, but soon took on other responsibilities. In less than one year, she was promoted to Accounting and Administrative Assistant. Hard Rock agrees that, up until a few months before she was fired, plaintiff was a "stellar," "ten out often stars" employee. In July 2001, plaintiff announced that she was pregnant. Shortly thereafter, on July 24, 2001, she was demoted to receptionist. Eight weeks later, on September 24, 2001, she was fired.
See Statement of Uncontested Facts at ¶ 2; Depo. of J. Young, Opp. Memo, Exh. F at p. 110.
Plaintiff filed this suit, alleging wrongful demotion and discharge for pregnancy discrimination, in violation of Title VII of the Civil Rights Act and the Louisiana Employment Discrimination Law ("LEDL"). Hard Rock claims that it removed plaintiff from her accounting position because her performance had declined and that it fired her because of three occurrences in the three work days preceding her discharge: (1) making a Thursday bank deposit after the bank's three o'clock posting deadline; (2) failing to have a new radio-phone in the office on Friday, as requested; and (3) arriving thirty minutes late for work Monday morning. Plaintiff maintains that these proffered reasons are pretextual and that she would not have been fired under these circumstances had she not also been pregnant. Plaintiff also seeks overtime compensation under Section 7 of the Fair Labor Standards Act (FLSA), which requires employers to pay overtime to employees who work more than forty hours per week. See 29 U.S.C. § 207 (a)(1).
La. Rev. Stat. §§ 23:332, 341-42.
II. LAW AND ANALYSIS
Defendant seeks summary judgment dismissing plaintiff's pregnancy discrimination claims on grounds that, under the McDonnell Douglas method of proving intentional discrimination, plaintiff cannot establish a prima facie case and cannot prove that the defendant's proffered reasons for its actions are false. Defendant argues that plaintiff's FLSA claim should be dismissed for failure of proof (except for the one month for which plaintiff has records of her overtime work), even though Hard Rock has failed in its FLSA obligation to maintain overtime records.
Because plaintiff has submitted direct evidence (as opposed to only circumstantial evidence) that pregnancy was a motivating factor in Hard Rock's decision making, the Court concludes that the McDonnell Douglas method does not govern its analysis of plaintiff's pregnancy discrimination claims. Plaintiff's direct evidence of discriminatory animus is more than adequate to demonstrate a genuine issue as to whether pregnancy was a motivating factor in the decisions, thereby precluding summary judgment on the pregnancy discrimination claims. Plaintiff's evidence that she regularly worked through the lunch hour is sufficient to demonstrate a genuine issue as to five hours of uncompensated overtime per week, thereby precluding summary judgment on the ELSA claim.
A. Summary Judgment Standard:
"A motion for summary judgment is properly granted only if there is no genuine issue as to any material fact." Roberts v. Cardinal Services, Inc., 266 F.3d 368, 373 (5th Cir. 2001), cert. denied, 122 S.Ct. 1357 (2002). "An issue is material if its resolution could affect the outcome of the action." Id. "A factual dispute precludes a grant of summary judgment if the evidence would permit a reasonable jury to return a verdict for the nonmoving party." Hunt v. Rapides Healthcare System, LLC, 277 F.3d 757, 762 (2001). In making this determination, "`the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.'" Id. at 764 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)). It "must disregard all evidence favorable to the moving party that the jury is not required to believe, and should give credence to the evidence favoring the nonmoving party as well as that evidence supporting the moving party that is uncontradicted and unimpeached." Roberts, 266 F.3d at 373.
B. Pregnancy Discrimination:
Title VII makes it unlawful for an employer to discharge or otherwise discriminate against an employee with respect to a condition of employment because of her sex. See 42 U.S.C. § 2000e-2 (a)(1). Discrimination against an employee because of pregnancy, childbirth, or related medical conditions constitutes discrimination "because of sex" within the meaning of Title VII. See 42 U.S.C. § 2000e(k).
The LEDL likewise prohibits employers from discriminating against female employees affected by pregnancy, childbirth, or related medical conditions. See La. Rev. Stat. § 23:341-42. However, Louisiana's courts look to federal Title VII jurisprudence in applying the LEDL. See King v. Phelps Dunbar, L.L.P., 743 So.2d 181, 187 (La. 1999) ("Louisiana courts have looked to federal jurisprudence to interpret Louisiana discrimination laws."); see also Asbestos Plaintiffs v. Borden, Inc., 826 So.2d 581, 589, writ denied, 829 So.2d 1046 (La. 2002). Moreover, neither party has cited Louisiana jurisprudence (other than to acknowledge that Louisiana courts follow federal precedent) or argued for a separate analysis of plaintiff's discrimination claims under Louisiana law. The Court therefore analyzes plaintiff's pregnancy discrimination claims "under the applicable federal precedents." See La Day v. Catalyst Technology, Inc., 302 F.3d 474, 477 (5th Cir. 2002).
"There are two methods for proving intentional sex . . . discrimination in the employment setting." Hill v. Lockheed Martin Logistics Management, Inc., ___ F.3d ___, 2003 WL 57550 *4 (4th Cir. 2003). "The more commonly used method of proving discrimination is by the use of circumstantial evidence under the three-step, or burden shifting, `pretext' method laid out by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 . . . (1973)." Id. "If the plaintiff produces only circumstantial evidence of discrimination," then the McDonnell Douglas burden-shifting analysis "guides [the] inquiry." Wallace v. Methodist Hosp. System, 271 F.3d 212, 219 (5th Cir. 2001) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)), cert. denied, 122 S.Ct. 1961 (2002). Under this framework, the plaintiff must first make out "a prima facie case of discrimination, which, if established, raises a presumption of discrimination." Wallace, 271 F.3d at 219. This presumption shifts the burden to the employer to "produce a legitimate nondiscriminatory reason for the adverse employment decision." Id. If the employer does so, "the presumption of discrimination created by the prima facie case disappears, and the plaintiff is left with the ultimate burden of proving discrimination." Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002) (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511-12 (1993)). "The plaintiff may meet its ultimate burden with evidence tending to show that the reason offered by the defendant is a pretext for discrimination." Id. (citing McDonnell Douglas, 411 U.S. at 804).
To establish a prima facie case for wrongful discharge under Title VII, "the plaintiff must prove that she is a member of a protected class, she was qualified for the position that she held, she was discharged, and after her discharge was replaced with a person who is not a member of the protected class." Bauer v. Albemarle Corp., 169 F.3d 962, 966 (5th Cir. 1999). However, "[t]he elements of a plaintiff's prima facie case necessarily vary according to the facts of the case and the nature of the claim." LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 (5th Cir. 1996). Where the claim is for wrongful demotion, the third element is satisfied by proof that the plaintiff "`was demoted from that position and ultimately discharged.'" LaPierre, 86 F.3d at 448. "In cases where the employer discharges the plaintiff and does not plan to replace her, . . . the fourth element is . . . that after [the] discharge others who were not members of the protected class remained in similar positions." Faruki v. Parsons S.I.P., Inc., 123 F.3d 315, 318 (5th Cir. 1997) (internal quotations omitted).
The second method of proving discrimination is by direct evidence. "Direct evidence is evidence that, if believed, proves the fact of discriminatory animus without inference or presumption." Sandstad, 309 F.3d at 897. Where a plaintiff presents direct evidence of discrimination, the McDonnell Douglas framework does not apply in determining whether a genuine issue of material fact exists. See Fierros v. Texas Dept. of Health, 274 F.3d 187, 195 (5th Cir. 2001) ("Unlike a case in which the plaintiff has presented only circumstantial evidence of retaliatory animus, we do not apply the McDonnell Douglas burden-shifting framework to determine whether Fierros's direct evidence presents a factual issue for a jury.") (citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985) ("[T]he McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination."). Thus, "if a plaintiff is able to produce direct evidence of discrimination, he may prevail without proving all the elements of a prima facie case." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002). Instead, where "a plaintiff presents credible direct evidence that discriminatory animus in part motivated or was a substantial factor in the contested employment action, the burden of proof shifts to the employer to establish by a preponderance of the evidence that the same decision would have been made regardless of the forbidden factor." Brown v. East Mississippi Elec. Power Ass'n, 989 F.2d 858, 861 (5th Cir. 1993); see also Sandstad, 309 F.3d 893 at 896 ("If the plaintiff produces direct evidence that discriminatory animus played a role in the decision at issue, the burden of persuasion shifts to the defendant, who must prove that it would have taken the same action regardless of discriminatory animus.").
This second, "mixed-motive" framework was established in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), "which recognized that an employment decision may be motivated by both legitimate and illegitimate considerations." Hill, 2003 WL 57550 at *5. "Once the burden of persuasion shifts to the employer under Price Waterhouse, the employer may escape liability only if it proves that it would have made the same employment decision based on purely legitimate reasons." Hill, 2003 WL 57550 at *5. "[P]roving that the same decision would have been justified . . . is not the same as proving that the same decision would have been made." Price Waterhouse, 490 U.S. at 252 (internal quotations omitted). Nor may an employer "meet its burden in such a case by merely showing that at the time of the decision it was motivated only in part by a legitimate reason." Id. "The very premise of a mixed-motives case is that a legitimate reason was present . . . ." Id. "The employer instead must show that its legitimate reason, standing alone, would have induced it to make the same decision." Id.
Moreover, the Civil Rights Act of 1991 has "modified the Price Waterhouse framework, making mixed-motive treatment more favorable to plaintiffs." Hill, 2003 WL 57550 at *5. Under the 1991 Act, if a plaintiff proves that sex was a "motivating factor" for an employment practice, the employer cannot escape liability altogether by proving that "it would have made the same decision even without the illegitimate factor." Hill, 2003 WL 57550 at *5. Such proof "only limits the remedies available to the plaintiff." Id. The Court "may still award declaratory and injunctive relief, as well as attorney's fees and costs." Clark v. Hess Trucking Co., 879 F. Supp. 524, 530 (W.D. Pa. 1995) (citing 42 U.S.C. § 2000e-5 (g)(2)(B)); see Garcia v. City of Houston, 201 F.3d 672, 676 (5th Cir. 2000).
Here, plaintiff has submitted direct evidence that Hard Rock demoted her to receptionist because of her pregnancy. See Opp. Memo, Exh. A at ¶ 18. She attests that Jeffrey Young and Carl Panebiango (the two owners of Hard Rock) told her that they were going to demote her to receptionist and that "they were doing so because [she] was pregnant." Id. She attests that Young told her that "since [she] was pregnant [she] would be missing work due to morning sickness, doctor's appointments and maternity leave and that [she] would be tired a lot more and that once the baby came [she] would miss work if the baby was sick or had to go to the doctor." Id. Plaintiff's deposition testimony is consistent with her affidavit. See Opp. Memo, Exh. D at pp. 6-7. ("I remember them telling me that it wasn't because of any work I was not doing properly, or any lack of work. They specifically told me, since I was pregnant, the receptionist's job would be less stressful, and me having doctors' appointments, maybe having morning sickness, didn't know if I was going to be able to work through my pregnancy, and then with maternity leave, that they were going to move me to the receptionist.").
Although plaintiff's pay was not reduced, "receptionist" plainly is a less distinguished title than "Accounting and Administrative Assistant." See Gawley v. Indiana University, 276 F.3d 301, 314 (7th Cir. 2001) (noting that "a less distinguished title" can be a materially adverse change in employment conditions, actionable under Title VII). Moreover, the record contains substantial evidence that the reassignment entailed a significant diminishment in plaintiff's job responsibilities, evidencing a demotion, which is actionable under Title VII even if it does not inflict economic harm. See, e.g., Green v. Tulane, 284 F.3d 642, 654-55 (5th Cir. 2002) (demotion with substantial diminishment of job responsibilities "was sufficient to constitute a tangible employment action," even though it did not inflict economic harm); Patrolmen's Benevolent Ass'n. of City of New York v. City of New York, 310 F.3d 43, 51 (2nd Cir. 2002) (a demotion can be "evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices"); Ford v. General Motors Corp., 305 F.3d 545, 553 (6th Cir. 2002) (same).
Plaintiff's affidavit and deposition testimony in this regard constitute direct evidence that Hard Rock had a discriminatory motive in demoting her to the receptionist position. Fierros v. Texas Dept. of Health, 274 F.3d 187, 195 (5th Cir. 2001) (plaintiff's affidavit attesting that employer made statement that on its face evidenced discriminatory motive); see also Vance v. Union Planters Corp., 209 F.3d 438, 442 (5th Cir. 2000) (employer's remark "that he wanted to hire a `mature man' . . . . qualifies as direct and material evidence of sex discrimination," even if the plaintiff "were the only witness" to testify about the remark). Moreover, plaintiff's testimony is buttressed by the deposition testimony of Carl Panebiango, which also contains direct evidence that plaintiff's pregnancy was a motivating factor in demoting her to receptionist. See Opp. Memo, Exh. B at p. 35 ("We moved her from where she was at to a receptionist because she was pregnant, because she wasn't able to do her job.").
This evidence triggers the Price Waterhouse mixed-motive framework and is more than adequate to demonstrate a genuine issue as to whether plaintiff's pregnancy was a motivating factor in Hard Rock's decision to demote her. See Fierros, 274 F.3d at 195 ("Fierros's affidavit by itself precludes summary judgment because it presents a genuine issue of material fact regarding whether `[retaliatory] animus in part motivated or was a substantial factor in the contested employment action.'"). Thus, Hard Rock's motion for summary judgment must be denied with respect to plaintiff's claim for wrongful demotion.
Summary judgment is precluded because, even if Hard Rock were successful in proving that its legitimate reasons, standing alone, would have caused it to make the same decision, this proof would simply limit plaintiff's remedies; it would not defeat liability altogether. As the Fourth Circuit recently explained in Hill:
If the factfinder credits Hill's evidence and determines that Hill's sex played a role in her termination, then Lockheed is liable regardless of whether it would have made the same decision absent the discrimination: "an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e-2 (m). In other words, if sex was a motivating factor in Hill's discharge, Lockheed is liable under Title VII. Consequently, even if Lockheed is able to prove that it would have made the same decision despite discriminatory animus, that showing would only limit the relief available to Hill under Title VII. See 42 U.S.C. § 2000e-5 (g)(2)(B). It would not affect Lockheed's Title VII liability on the sex discrimination claim.Hill, 2003 WL 57550 at *12.
The effect of plaintiff's direct evidence on her wrongful discharge claim is a closer call. However, the Fifth Circuit has found that direct evidence of discriminatory animus can trigger the Price Waterhouse framework even if the evidence is not connected directly to the particular employment decision at issue. See, e.g., Brown v. East Mississippi Elec. Power Ass'n, 989 F.2d 858, 861-62 (5th Cir. 1993). In Brown, for example, the plaintiff had no direct evidence showing that race was a motivating factor in his employer's decision to demote him. However, he did have direct evidence showing that one manager's racism had motivated other instances of discipline against the plaintiff. According to the Fifth Circuit, this evidence showed that race had motivated "decisions of the type at bar." Id. at 862. Thus, the evidence "justifie[d] shifting the burden to [the employer] to prove it would have made the same decision regardless of [plaintiff's] race," and the district court erred in applying the McDonnell Douglas framework. Id. at 862; see also EEOC v. Alton Packaging Corp., 901 F.2d 920, 924 n. 6 (11th Cir. 1990) (general manager's statement that if it were his company he would not hire blacks qualified as direct evidence of discriminatory animus in failing to promote the plaintiff; district court erred in applying McDonnell Douglas test).
Here, plaintiff's discharge occurred just eight weeks after the statements that, according to plaintiff, Young and Panebiango made to her regarding their reasons for demoting her. This evidence, if credited, directly proves strong prejudices on the part of Hard Rock's decision-makers regarding the general ability of pregnant and post-partum women to function in the workplace. If believed, it also directly demonstrates these decision-maker's inclination and willingness to make these biases a motivating factor in their decisions regarding plaintiff's employment. Thus, for purposes of this motion, the Court finds that plaintiff's direct evidence of discriminatory animus on the part of Young and Panebiango is sufficient to trigger the Price Waterhouse analysis with respect the discharge claim and to demonstrate a genuine issue of fact as to whether plaintiff's pregnancy was a motivating factor in Hard Rock's decision to fire her. See 42 U.S.C. § 2000e-2 (m). Accordingly, Hard Rock is not entitled to judgment as a matter of law with respect to any portion of plaintiff's Title VII claim.
Whether a Price Waterhouse or McDonnell Douglas jury instruction is given at trial with respect to the wrongful discharge claim will depend upon the strength of the evidence presented at trial.
C. Plaintiff's FLSA Claim:
Section 7 of the Fair Labor Standards Act (FLSA) (the "Act") "requires employers to pay overtime to employees who work more than forty hours per week." Dalheim v. KDFW-TV, 918 F.2d 1220, 1224 (5th Cir. 1990); see 29 U.S.C. § 207 (a)(1). "When an employer has failed to maintain the payroll records required by the Act, the employees' initial burden is to make out a prima facie case that the Act has been violated and to produce some evidence to show the amount and extent of the violation." Beliz v. W.H. McLeod Sons Packing Co., 765 F.2d 1317, 1330 (5th Cir. 1985) (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88 (1946)). This burden is satisfied if the employee produces "sufficient evidence to show the amount and extent of [her] work as a matter of just and reasonable inference." Anderson, 328 U.S. at 687. Employees "may satisfy their burden with admittedly inexact or approximate evidence." Beliz, 765 F.2d at 1330-31 (emphasis added). "The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence." Id. at 687-88. "If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate." Anderson, 328 U.S. at 688.
"The employer cannot be heard to complain that the damages lack the exactness and precision of measurement that would be possible had he kept records in accordance with the requirements of . . . the Act." Anderson, 328 U.S. at 688. "Nor is such a result to be condemned by the rule that precludes the recovery of uncertain and speculative damages." Id. "The uncertainty lies only in the amount of damages arising from the statutory violation by the employer." Id. "In such a case `it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts.'" Id. (quoting Story Parchment Co. v. Paterson Parchment Co., 282 U.S. 555, 563 (1931)). "It is enough under these circumstances if there is a basis for a reasonable inference as to the extent of the damages." Id. To hold otherwise "would place a premium on an employer's failure to keep proper records in conformity with his statutory duty" by allowing the employer "to keep the benefits of an employee's labors without paying due compensation." Id. at 687.
Defendant argues that, except for the one month for which plaintiff herself kept time records, plaintiff's overtime claim should be dismissed because she cannot produce reliable evidence of the amount of overtime worked. The Court agrees that plaintiff's deposition contains only very general statements regarding the extent of the overtime worked. However, she attests in her affidavit that she worked (even in her starting position as a receptionist) from 7:00 a.m. to 4:00 p.m. (longer after she took on accounting duties) and did not take lunch breaks. See Opp. Memo, Exh. A at ¶¶ 4-7. That she worked through lunch is corroborated by other employees. See Depo of J. Callaghan, Opp. Memo, Exh. B at p. 14 (Q: Normally do you work through lunch? A: Yes. Q: Do other Hard Rock employees normally work through lunch? A: Yes. Q: When Tiffany worked there, did she work through lunch? A: Yes. I can't recall if it was every day. Sometimes we'd take a 15-minute break. I can't really say for sure if it was even 15 minutes. We'd chitchat while we were eating, but mostly — Q: You worked through lunch? A: — we worked through.). This evidence is admittedly inexact and approximate. However, "admittedly inexact or approximate evidence" can be enough to shift the burden to an employer who has failed in its statutory duty to keep accurate time records. Beliz, 765 F.2d at 1330-31. A reasonable jury could find from this evidence that plaintiff has produced sufficient evidence to show five hours of overtime per week "as a matter of just and reasonable inference." Anderson, 328 U.S. at 687. Accordingly, the defendant is not entitled to judgment as a matter of law on this issue at this time.
Plaintiff testified that, beginning in mid-2000, she regularly worked longer than 7:00 a.m. to 4:00 p.m. See Def. Exh. C, p. 41 (Q: In mid-2000, can you tell me how often it was that you worked before 7:00 or after 4:00? . . . . A: Probably on a regular basis. Possibly every day. It would fluctuate on how much workload I had.). However, as the questions became more demanding of precision, plaintiff was unable to answer them. Id. at p. 41-42 (Q. I want to be sure we're clear. Is it your testimony that from mid-2000 until your last day of employment, you worked every day longer than either before 7:00 or after 4:00? A: I can't say every day. Q: I need you to tell me, if you would, how many hours you worked, on average, from mid-2000 until the time that you were terminated. A: It would fluctuate weekly. Some weeks it might be forty, and it would fluctuate from forty to fifty, fifty-five. I can't pinpoint a number. Q: Well, when we talk mid-2000, we're talking June 2000. Is that what we mean? Since mid is half a year, June is six months? A: I can't recall right now.).
The defendant may reurge its motion under Rule 50 after the close of plaintiff's case at trial.