Cusick v. Yellowbook, Inc.
Filing
52
OPINION AND ORDER GRANTING Defendant's 33 Motion for Summary Judgment. The 40 Motion to Seal Documents and 49 Motion for Leave to File Sur-Reply are DENIED AS MOOT. Signed by Judge William S. Duffey, Jr on 3/11/2014. (anc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ROBERT CUSICK,
Plaintiff,
v.
1:12-cv-3466-WSD
YELLOWBOOK, INC.,
Defendant.
OPINION AND ORDER
This matter is before the Court on Defendant Yellowbook, Inc.’s
(“Defendant”) Motion for Summary Judgment.
I.
BACKGROUND
A.
Facts
Defendant provides “advertising and business solutions to small and medium
sized companies” throughout the United States. Plaintiff’s Statement of Material
Facts at ¶ 1 (“PSMF”). Specifically, the Defendant provides its customers with a
platform for print and electronic advertising, direct mail advertising, resale
advertising and electronic marketing solutions. Id. at ¶ 2. Plaintiff Robert Cusick
(“Plaintiff”) is a former Area General Sales Manager (“AGSM”), who was
responsible for maintaining and growing Defendant’s business in several markets
in the State of Georgia, including Atlanta, Athens, Conyers and Barrow.
Defendant’s Statement of Material Facts at ¶¶ 1-2 (“DSMF”). As an AGSM,
Plaintiff also was responsible for supervising lower-level sales managers and sales
representatives that served Defendant’s customers in Georgia. Id. at ¶ 3. Plaintiff
reported to Linda Terrizzi (“Terrizzi”), who was a Regional Vice President at
Yellowbook. Id. at ¶ 3. Terrizzi reported to Russell Michels, who served as the
Vice President of Sales for the Mid-Atlantic and Southeast regions at Yellowbook.
Id.
On September 26, 2010, Plaintiff’s daughter was diagnosed with an
incurable kidney disease.1 There is no dispute that Terrizzi and Michels were
aware of Plaintiff’s daughter’s incurable kidney disease and that it required a
transplant in the future. PSMF at ¶ 3.
On February 27, 2011, Defendant demoted Plaintiff to the position of a
Client Services Executive (“CSE”). As a CSE, Plaintiff had no management
responsibilities and earned less salary than he received as an AGSM. In February,
2011, Defendant restructured its operations and eliminated the AGSM position
entirely. At that time, Terrizzi and Michels decided not to transition the Plaintiff
1
Defendant does not dispute that Plaintiff’s daughter qualifies as a person with a
disability under the Americans with Disabilities Act (“ADA”) for the purposes of
this Motion.
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into another management role at Yellowbook. Defendant alleges that Terrizzi and
Michels demoted the Plaintiff to a CSE position because, among other things,
Plaintiff lacked leadership skills, exhibited poor communication skills, and
mismanaged the expectations of his sales team. Plaintiff denies the Defendant’s
allegations. Plaintiff argues that his performance consistently exceeded the
Defendant’s objectives, and that he was a top producer at Yellowbook.
On June 21, 2011, Plaintiff filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (“EEOC”) in which he alleged that
Defendant discriminated against him because of his daughter’s disability by
demoting him to an inferior position at Yellowbook.
Defendant alleges that Plaintiff failed to meet his sales objectives after he
was demoted to the CSE position, and failed to correct the deficiencies despite
repeated warnings. On August 16, 2011, Defendant terminated the Plaintiff’s
employment. On September 1, 2011, Plaintiff filed another EEOC charge in which
he alleged that the Defendant retaliated against him for filing an EEOC charge
based on his demotion to a CSE position.
B.
Procedural History
On October 4, 2012, Plaintiff filed a Complaint in which he alleged that the
Defendant demoted him to a CSE position and ultimately terminated his
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employment because of his daughter’s disability. The Complaint also alleged that
the Defendant terminated the Plaintiff’s employment in retaliation for filing a
charge with the EEOC. On July 31, 2013, Defendant moved for summary
judgment on all of the Plaintiff’s claims. Defendant contends that Plaintiff failed
to exhaust his remedies regarding his wrongful termination claim because the
second EEOC charge was only a retaliation claim that was not based on unlawful
discrimination. Defendant also argued that the Plaintiff failed to establish a prima
facie case of “association discrimination,” and that even if the Plaintiff had made a
prima facie showing, he has not shown that Defendant’s legitimate, nondiscriminatory reasons for demotion and termination are a pretext for unlawful
discrimination. On September 10, 2013, Plaintiff replied to the Defendant’s
Motion for Summary Judgment in which he abandoned his claims of “association
discrimination” based on termination and retaliation. In his response, Plaintiff only
addressed his claim that Defendant violated the ADA by demoting him to a CSE
position because of his daughter’s disability.
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II.
DISCUSSION
A.
Legal Standard
1.
Summary Judgment
A court “shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). Parties “asserting that a fact cannot be or is
genuinely disputed must support that assertion by . . . citing to particular parts of
materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers, or other
materials.” Fed. R. Civ. P. 56(c)(1).
The party seeking summary judgment bears the burden of demonstrating the
absence of a genuine dispute as to any material fact. Herzog v. Castle Rock
Entm’t, 193 F.3d 1241, 1246 (11th Cir. 1999). Once the moving party has met this
burden, the non-movant must demonstrate that summary judgment is inappropriate
by designating specific facts showing a genuine issue for trial. Graham v. State
Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999). Non-moving parties
“need not present evidence in a form necessary for admission at trial; however,
[they] may not merely rest on [their] pleadings.” Id.
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The Court must view all evidence in the light most favorable to the party
opposing the motion and must draw all inferences in favor of the non-movant, but
only “to the extent supportable by the record.” Garczynski v. Bradshaw, 573 F.3d
1158, 1165 (11th Cir. 2009) (quoting Scott v. Harris, 550 U.S. 372, 381 n.8
(2007)). “[C]redibility determinations, the weighing of evidence, and the drawing
of inferences from the facts are the function of the jury . . . .” Graham, 193 F.3d at
1282. “If the record presents factual issues, the court must not decide them; it must
deny the motion and proceed to trial.” Herzog, 193 F.3d at 1246. But, “[w]here
the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party,” summary judgment for the moving party is proper. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
2.
ADA
The ADA protects a “qualified individual” from discrimination in the
“terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a) (2000).
The ADA defines the term “discriminate” to include “excluding or otherwise
denying equal jobs or benefits to a qualified individual because of the known
disability of an individual with whom the qualified individual is known to have a
relationship or association.” 42 U.S.C. § 12112(b)(4).
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A plaintiff may show discrimination through direct or circumstantial
evidence. The Eleventh Circuit defines direct evidence as “evidence, that, if
believed, proves [the] existence of [a] fact without inference or presumption.”
Morris v. Emory Clinic, Inc., 402 F.3d 1076, 1081 (11th Cir. 2005); Wilson v. B/E
Aerospace, Inc., 367 F.3d 1079, 1086 (11th Cir. 2004) (quoting Burrell v. Bd. of
Trustees of Ga. Military Coll., 125 F.3d 1390, 1393 (11th Cir. 1997)). Direct
evidence consists of “only the most blatant remarks, whose intent could be nothing
other than to discriminate.” Carter v. City of Miami, 870 F.2d 578, 582 (11th Cir.
1989). Where a plaintiff offers direct evidence of discrimination, summary
judgment typically is inappropriate. See Carter v. Three Springs Residential
Treatment, 132 F.3d 635, 641 (11th Cir. 1998).
Where a plaintiff relies on circumstantial evidence to establish
discrimination, courts assess the propriety of summary judgment using the
framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See also Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000).
Under this framework, a plaintiff must first establish a prima facie case of
discrimination, which creates a rebuttable presumption that the employer acted
illegally. A prima facie case based on “association discrimination” is established
when the plaintiff shows that “(1) [he] was subjected to an adverse employment
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action, (2) [he] was qualified for the job at that time, (3) [he] was known by [the
Defendant] at the time to have a relative with a disability, and (4) the adverse
employment action occurred under circumstances which raised a reasonable
inference that the disability of the relative was a determining factor in [the
Defendant’s] decision.” Hilburn v. Murata Electronics North America, Inc., 181
F.3d 1220, 1230-31 (11th Cir. 1999); see also Wascura v. City of S. Miami, 257
F.3d 1238, 1242 (11th Cir. 2001).
If the plaintiff makes this prima facie showing, the defendant must
articulate a legitimate, nondiscriminatory reason for the adverse employment
action. Wascura, 257 F.3d at 1242-43. If the defendant satisfies this requirement,
the burden then shifts to the plaintiff to show that the defendant’s legitimate,
nondiscriminatory reason is a pretext for unlawful disability discrimination. Id. at
1243.
B.
Analysis
1.
Demotion
Defendant is entitled to summary judgment because Plaintiff has failed to
establish a prima facie case of association discrimination under the ADA. It is
undisputed that there is no direct evidence of discrimination in this matter.
Plaintiff relies on the testimony of Terrizzi and Michels to argue that there is
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circumstantial evidence of discrimination in this case. Plaintiff’s argument is
unconvincing. On June 6, 2013, Michels testified as follows:
Q: Well, do you know, when you demoted Mr. Cusick, or were you aware through
any source that [his daughter] Peyton had an illness?
A: Yes, I was.
Q: Were you aware at that time of the nature of the illness?
A: Not specifically.
Q: Were you aware that it was a serious illness?
A: Yes.
Q: Did that play any part in your offering Mr. Cusick a position as CSE instead of
firing him?
A: Yes.
Q: What part did Peyton’s illness play in that?
A: Compassion.
...
Q: Did Ms. Terrizzi also express compassion for Mr. Cusick because of Peyton’s
illness?
A: Yes.
Michels Dep. at 63: 7-22; 67: 1-8.
On June 6, 2013, Terrizzi testified at her deposition that she did not recall
9
whether “compassion” played a role in the decision to demote the Plaintiff to a
CSE position. Terrizzi Dep. at 18:1-24. Terrizzi unequivocally denied that
Plaintiff’s daughter’s disability was one of the motivating factors for the demotion.
Id. at 17: 18-22.
The crux of the Plaintiff’s argument against summary judgment is that the
inconsistency between Michels’ testimony and Terrizzi’s testimony “is a key factor
[that may allow a] reasonable jury [to] conclude from this inconsistency that more
than compassion was discussed when Michels and Terrizzi discussed Cusick’s
daughter’s condition in the context of making the decision to demote him.” Pl.’s
Mem. of Law in Opp. to Def.’s Mot. for Summ. J. at 14-15. Plaintiff’s argument is
based on conjecture and speculation, and it is a regrettable manipulation of the
testimony. “Speculation does not create a genuine issue of fact; instead it creates a
false issue, the demolition of which is a primary goal of summary judgment.”
Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (quoting Hedberg
v. Ind. Bell Tel. Co., 47 F.3d 928, 931-32 (7th Cir. 1995) (emphasis in original)).
“Although ‘[a]ll reasonable inferences arising from the evidence must be resolved
in favor of the non-movant’ on a motion for summary judgment, ‘inferences based
upon speculation are not reasonable.’” Sims v. Nguyen, 403 App’x 410, 412 (11th
Cir. 2010) (quoting Marshall v. City of Cape Coral, Florida, 797 F.2d 1555, 1559
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(11th Cir. 1986)).
Michels, the senior management member in this employment decision,
stated that his compassion for Plaintiff’s daughter’s disability was one of the
motivating factors for his demotion rather than termination. Michels’ testimony on
this point is undisputed:
Q: Did that play any part in your offering Mr. Cusick a position as CSE
instead of firing him? (emphasis added)
A: Yes.
Michels Dep. at 63: 17-22.
Michels answered “yes” because demotion rather than termination was the
compassionate decision to make.2 A fair reading of Michels’ testimony shows that
Defendant intended to terminate the Plaintiff’s employment in February, 2011, but
2
Terrizzi also stated that compassion for Plaintiff based on his tenure and position
with the company factored into the employment action taken. She did not recall
that compassion for Plaintiff’s daughter’s disability was actually discussed with
Michels. Plaintiff asserts in his response that “. . . Michels and Terrizzi have given
inconsistent testimony as to whether they discussed Cusick’s daughter’s condition
in the context of the demotion decision . . . ” Pl.’s Mem. of Law in Opp. to Def.’s
Mot. for Summ. J. at 15. The testimony is not inconsistent at all. Michels said that
his compassion for Plaintiff’s daughter was the reason he supported demotion
rather than termination. Michels did not state, and he was not specifically asked,
whether he discussed this factor with Terrizzi. Terrizzi did not recall discussing
the Plaintiff’s daughter’s condition with Michels when considering whether to
demote or terminate the Plaintiff. The testimony is complimentary, not
inconsistent.
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it instead chose to demote the Plaintiff out of concern for his daughter’s disability.
Michels also testified that Plaintiff was not placed in another management role
after the AGSM position was eliminated at Yellowbook because Michels and
Terrizzi were unsatisfied with his leadership and communication skills. The only
inference to be drawn from Michels’ testimony, taken as a whole, is that Plaintiff’s
association with a disabled person protected him from outright termination. In
other words, Plaintiff’s association with a disabled individual had a positive impact
on his employment status at Yellowbook.
“[T]he ADA imposes a ‘but-for’ liability standard.” McNelly v. Ocala StarBanner Corp., 99 F.3d 1068, 1077 (11th Cir. 1996). It does not permit mixedmotive claims. Id.; see also Serwatka v. Rockwell Automation, Inc., 591 F.3d 957,
961 (7th Cir. 2010). To establish a prima facie case of discrimination, Plaintiff is
required to show that he was demoted “because of” his daughter’s disability,
McNelly 99 F.3d at 1077, or that his demotion occurred “under circumstances
which raised a reasonable inference that the disability . . . was a determining factor
in [the Defendant’s] decision.” Hilburn at 181 F.3d at 1230-31 (emphasis added).
Even assuming that Terrizzi was unable or unwilling to recall that Plaintiff’s
association with a disabled person was a motivating factor for the demotion, which
is not supported by the record, Plaintiff has failed to establish a prima facie case of
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discrimination. No reasonable juror could find otherwise. There is no support in
the record that Plaintiff would not have been demoted but for his daughter’s
condition. There is also no evidence to show that an adverse employment action
occurred under circumstances which raise a reasonable inference that Plaintiff’s
daughter’s disability was a determining factor in the Defendant’s decision to take
adverse action. It was only a factor, which mitigated the severity of the action,
resulting in an inference that no discrimination took place in this matter. See
Magiera v. Ford Motor Co., No. 97 C 0421, 1998 WL 704061, at *6 (N.D. Ill. Sep.
30, 1998) (granting summary judgment in favor of Ford because “in light of the
fact that Ford offered [the plaintiff] another job, a reasonable person could not
conclude that Ford fired [the plaintiff] because of his disability. Rather, Ford’s
actions indicate that Ford attempted to comply with its own policy of not firing
disabled employees by offering [the plaintiff] another job.”).
Plaintiff has failed to show any evidence that the decision to demote him
was based on a discriminatory animus. In the absence of any evidence to suggest
that Plaintiff was subjected to unlawful discrimination, the Defendant is entitled to
judgment as a matter of law. See Dulaney v. Miami-Dade County, 481 Fed. App’x
486, 490-91 (11th Cir. 2012) (holding that plaintiff failed to establish a prima facie
case of discrimination under the ADA because there was no evidence to suggest
13
that the employer’s actions resulted from a discriminatory animus); accord Angel
v. Fairmount Fire Protection District, No. 12-1465, 2013 WL 6654044, at *4 (10th
Cir. Dec. 18, 2013).
The Court also concludes that Plaintiff failed to establish that Defendant’s
reasons for demoting him to a CSE position were a pretext for unlawful
discrimination. Plaintiff’s claim that the reasons for his demotion were a pretext
for unlawful discrimination fails. Plaintiff has not presented any evidence of
discrimination based on his daughter’s disability. The purpose of the pretext
inquiry is to determine “not merely that the defendant’s employment decisions
were mistaken, but that they were in fact motivated by discriminatory animus.”
Dulaney, 481 Fed. App’x at 490 (citations omitted). “[A]n employer may fire an
employee for a good reason, a bad reason, a reason based on erroneous facts, or for
no reason at all, as long as its action is not for a discriminatory reason.” Id.
Plaintiff quarrels with the Defendant’s decision to demote him to a CSE position
on several grounds, but none of his complaints are actionable if there is no
evidence to suggest that Defendant made the adverse employment decision
because of Plaintiff's association with a disabled person. See Plaintiff's Response
to Defendant's Statement of Material Facts at ¶¶ 5-12. The ADA does not provide
a cause of action for an adverse employment decision unless the decision is taken
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for a discriminatory reason. Plaintiff's attempt to discredit the Defendant’s
legitimate, non-discriminatory explanations for his demotion is irrelevant to the
resolution of this dispute. Dulaney, 481 Fed. App’x at 490.
The Defendant's Motion for Summary Judgment regarding the Plaintiff's
claim that he was demoted because of his daughter's disability is granted.
2.
Termination and Retaliation
In opposing a motion for summary judgment, a “‘party may not rely on his
pleadings to avoid judgment against him.’” Resolution Trust Corp. v. Dunmar
Corp., 43 F.3d 587, 599 (11th Cir. 1995) (quoting Ryan v. Int’l Union of Operating
Eng’rs, Local 675 (11th Cir. 1990)). “Grounds alleged in the complaint but not
relied upon in summary judgment are deemed abandoned.” Id. (internal citations
omitted). Here, the Plaintiff abandoned his termination and retaliation claims.
Defendant is entitled to summary judgment on the Plaintiff's remaining claims.
III.
CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Defendant’s Motion for Summary
Judgment is GRANTED [33].
IT IS FURTHER ORDERED that Plaintiff’s Motion to File Documents
Under Seal is DENIED AS MOOT [40].
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IT IS FURTHER ORDERED that Plaintiff’s Motion to File a Sur-reply is
DENIED AS MOOT [49].
SO ORDERED this 11th day of March 2014.
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