Parker v. Zale Corporation
Filing
34
MEMORANDUM OPINION in support of the following Order on summary judgment.Signed by District Judge R Leon Jordan on 3/29/12. (ADA)
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF TENNESSEE
GREENEVILLE DIVISION
LINDA PARKER,
Plaintiff,
v.
ZALE CORPORATION,
Defendant.
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No. 2:09-CV-287
MEMORANDUM OPINION
This civil action is before the court for consideration of “Defendant’s Motion
for Summary Judgment” [doc. 13]. Plaintiff has filed a response [doc. 25], and defendant has
submitted a reply [doc. 29]. Oral argument is unnecessary, and the motion is ripe for the
court’s determination.
Plaintiff has filed suit pursuant to the Tennessee Human Rights Act (“THRA”),
Tenn. Code Ann. §§ 4-21-101 et seq., for alleged discrimination, hostile work environment,
and retaliation based upon her age. For the reasons that follow, the motion will be granted,
and this case will be dismissed.
I.
Background
Defendant1 operates retail jewelry stores nationally. Plaintiff is a female in her
fifties who worked for defendant as a sales associate for 14 years. At the time of her
termination, she was working in a store located in Johnson City, Tennessee, and the manager
of that store was Terry “Steve” Ferguson.
Plaintiff states that Ferguson hired young female associates to work in the
store, some of whom he dated and saw socially outside of work. She says that the younger
associates were permitted to stay in the back area and off the sales floor during work hours
to do homework, visit with friends, and sleep , leaving her to wait on customers.2 According
to plaintiff, she made more than one complaint to defendant’s Human Resources (“HR”)
office.
In the fall of 2008, plaintiff engaged in a merchandise return that ultimately led
to her dismissal. She wanted to return a necklace that had been a gift from a boyfriend,
whom she later learned was married. The return should have been put on a store gift card,
but at the time the store was out of gift cards. With Ferguson’s approval, plaintiff processed
1
Defendant points out in its summary judgment memorandum that the complaint incorrectly
identifies the defendant as “Zale Corporation.” The correct name is “Zale Delaware, Inc.”
2
In the complaint plaintiff states that she “let the younger associates take credit for some of
her jewelry sales so each associate could make her individual sales quota and not be subjected to
disciplinary action or discharge.” However, in response to defendant’s summary judgment, plaintiff
claimed that her manager directed her to assign her sales to younger associates so he would not have
to write them up or discipline them for not meeting sales quotas.
2
the return by putting the amount of the necklace on her personal debit card and signing the
name of the original purchaser on the return receipt.3
According to his affidavit, in December 2008, Bryan Peek, Human Resources
Representative for Zale Delaware, Inc., received a copy of an anonymous complaint from
defendant’s Legal Ethics Hotline alleging that plaintiff had returned jewelry on her debit card
and that the customer’s name was used. Peek sent the complaint to loss prevention for
investigation. After the investigation he received a copy of plaintiff’s statement admitting
to making the return as described. After consulting with the director of human resources,
who concurred with his recommendation to terminate plaintiff, the decision was made to
terminate plaintiff’s employment.
Plaintiff says that Keith Howlett, the loss prevention investigator, accused her
of returning a necklace she had had for years and of forging the purchaser’s signature. She
also says that he made her rewrite her statement to admit to something. Additionally,
plaintiff states that Howlett showed favoritism to young sales associates involved in loss
prevention matters so they would not disciplined. These matters occurred in other of
defendant’s stores, not the Johnson City store where plaintiff worked.
Additionally, plaintiff states that although Ferguson said he would tell Howlett
that he had approved the return, she found out from the area manager Steve Haralson that he
3
In the complaint and her deposition testimony, there is no reference to plaintiff’s exboyfriend being on the phone during the transaction. However, in response to the summary
judgment motion, plaintiff says that he was on the phone and OK’d the procedure because he did
not want the return to appear on his credit card for his wife to see.
3
had not told them about his approval. Haralson was involved in the investigation with
Howlett.
II.
Standard of Review
Defendant’s motion is brought pursuant to Federal Rule of Civil Procedure 56,
which governs summary judgment.4 Rule 56(a) sets forth the standard for governing
summary judgment and provides in pertinent part: “The 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.” The procedure set out in Rule 56(c) requires that
“[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion.”
This can be done by citation to materials in the record, which include depositions,
documents, affidavits, stipulations, and electronically stored information. Fed. R. Civ. P.
56(c)(1)(A). Rule 56(c)(1)(B) allows a party to “show[] that the materials cited do not
establish the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.”
After the moving party has carried its initial burden of showing that there are
no genuine issues of material fact in dispute, the burden shifts to the non-moving party to
4
Federal Rule of Civil Procedure 56 was amended effective December 1, 2010. The
Advisory Committee Notes to the 2010 amendments reflect that the standard for granting summary
judgment “remains unchanged,” and “[t]he amendments will not affect continuing development of
the decisional law construing and applying [that standard].” Fed. R. Civ. P. 56 advisory committee’s
note.
4
present specific facts demonstrating that there is a genuine issue for trial. Matsushita Elec.
Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). “The ‘mere possibility’ of
a factual dispute is not enough.” Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992)
(citing Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986)).
In order to defeat the motion for summary judgment, the non-moving party
must present probative evidence that supports its complaint. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-50 (1986). The non-moving party’s evidence is to be believed, and all
justifiable inferences are to be drawn in that party’s favor. Id. at 255. The court determines
whether the evidence requires submission to a jury or whether one party must prevail as a
matter of law because the issue is so one-sided. Id. at 251-52.
III.
Analysis
Hearsay Objections
In its reply in support of its motion for summary judgment, defendant identified
multiple paragraphs in plaintiff’s affidavit and in the affidavit of Denice Osborne that
according to defendant contain “inadmissible hearsay testimony, descriptions of events of
which [the affiant] has no personal knowledge, and opinions of layperson.” Plaintiff initially
made no effort to respond to defendant’s specific arguments, which under the circumstances
would have been appropriate and permitted by the court.
5
Anticipating a hearsay problem with the affidavits, plaintiff included in a
footnote her response to the motion for summary judgment, which states the following:
The plaintiff insists that the statements of Meaghan Roberts and
Tona Miller regarding their actions and Manager Ferguson’s
comments are admissible as evidence of the young ladies’ then
existing mental or emotional conditions, motives, or intent under
FRE # (sic) 803(3) and FRE # (sic) 404(b) and as the statements
of co-conspirators with Manager Ferguson under FRE # (sic)
801(d)(2)(E).
It is apparent to the court, however, the most if not all of the statements are
needed by the plaintiff for the truth of the matter asserted. Therefore, the court by order [doc.
30] gave plaintiff the opportunity to respond to the hearsay objections, which she timely did
[doc. 32]. Defendant timely submitted its response [doc. 33]. The court will address the
substance of the hearsay objections to the extent necessary to rule on the issues presently
before the court.
Age Discrimination
Plaintiff’s claim for age discrimination is brought pursuant to the THRA, “a
‘comprehensive anti-discrimination law,’ which is ‘intended to further the policies embodied
in the similar federal laws against employment discrimination.’” Johnson v. Collins &
Aikman Auto. Interiors, Inc., No. 1:02-CV-365, 2004 WL 1854171, at *3 (E.D. Tenn. Feb.
26, 2004). The statute provides in relevant part that it is a discriminatory practice for an
employer to “[f]ail or refuse to hire or discharge any person or otherwise to discriminate
6
against an individual with respect to compensation, terms, conditions or privileges of
employment because of such individual’s race, creed, color, religion, sex, age or national
origin.” Tenn. Code Ann. § 4-21-401(a)(1). The Age Discrimination in Employment Act
(“ADEA”) “prohibits employers from discriminating ‘against any individual with respect to
his compensation, terms, conditions, or privileges of employment, because of such
individual’s age.” Bender v. Hecht’s Dept. Stores, 455 F.3d 612, 620 (6th Cir. 2006) (citing
29 U.S.C. § 623(a)).
The stated purpose of the THRA is to “[p]rovide for execution within
Tennessee of the policies embodied in the federal Civil Rights Acts of 1964 . . . and the Age
Discrimination in Employment Act of 1967 . . . .” Tenn. Code Ann. § 4-21-101(a)(1). Thus,
courts “apply the same analysis to age-discrimination claims brought under the THRA as
those brought under the ADEA.” Bender, 455 F.3d at 620; see also Dennis v. White Way
Cleaners, L.P., 119 S.W.3d 688, 693 (Tenn. Ct. App. 2003) (“Because of the commonality
of purpose between the Tennessee Human Rights Act and the federal statutes, we may look
to federal law for guidance in enforcing our own anti-discrimination laws.” (internal
quotation marks and citations omitted)). Therefore, under both the THRA and the ADEA,
plaintiff “must prove by a preponderance of the evidence . . . that age was the ‘but-for’ cause
of the challenged employer decision.” Gross v. FBL Fin. Servs., 557 U.S. 167, 129 S. Ct.
2343, 2351 (2009); see also Harris v. Metro. Gov’t of Nashville & Davidson Cnty, 594 F.3d
476, 485 (6th Cir. 2010).
7
In order to establish a prima facie case of age discrimination, a plaintiff must
demonstrate that “(1) he is a member of the protected class, that is, he is at least forty years
of age; (2) he was subjected to an adverse employment action; (3) he was qualified for the
position; and (4) he was treated differently from similarly situated employees outside the
protected class.”5 Briggs v. Potter, 463 F.3d 507, 514 (6th Cir. 2006) (quoting Mitchell v.
Vanderbilt Univ., 389 F.3d 177, 181 (6th Cir. 2004)). Once plaintiff makes this showing, the
burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the
adverse action. Id. (citing Rowan v. Lockheed Martin Energy Sys., 360 F.3d 544, 547 (6th
Cir. 2004)). If the defendant makes the necessary showing, the burden shifts back to the
plaintiff “to show that the employer’s proffered reason was mere pretext for intentional age
discrimination.” Harris, 594 F.3d at 485 (citations omitted). “The plaintiff retains the
ultimate burden of proving that age was the “but-for” cause of the employer’s adverse
action.” Id. (citing Gross, 129 S. Ct. at 2351).
Plaintiff can clearly establish the first three factors of the prima facie case. The
problem for plaintiff arises in establishing the fourth prong of the prima facie showing,
demonstrating that she was treated differently than similarly situated employees outside the
protected class. The situation presented by plaintiff is basically that she was the oldest
person in the store and the manager liked the younger associates better than her, so he treated
5
Plaintiff’s response only references use of the “treated differently” method of establishing
the fourth prong of the prima facie case. She offers no argument or cogent showing that she was
replaced by a younger person. See Grubb v. YSK Corp., 401 F. App’x 104, 113 (6th Cir. 2010).
8
them better. The following exchange occurred in her deposition:
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
. . . “Mr. Ferguson told us you’ve alleged age
discrimination”?
No.
Okay.
No.
Okay.
I’m not aware of that.
Okay.
But what I’m saying, you know, he would never hire
anybody in that would actually work. He allowed them
to do things that - - off the floor and he favored them. I
mean, he would hire them in to date them. He’d hire
them in to do everything. He let them work on their
laptop. He let them do all kinds of different things, be
late and still pay them for it.
And, you’ve obviously alleged that that was because of
the difference in your age. Is it possible because he liked
them better?
Well, he liked dating them.
I mean, I - - I’m trying to understand why you are
relating it directly to age. Is that because you were the
oldest one in the store?
Yes.
Plaintiff was terminated for violation of company policy because she
improperly returned merchandise she did not originally purchase. She put the purchase price
of the merchandise on her debit card and signed the original customer’s name to the return
receipt. However, the different treatment about which she complains centers around the
favoritism shown to the younger sales associates “at the Zale’s Johnson City store who were
outside of the protected category (in their twenties and thirties).” These sales associates,
however, did not engage in conduct similar to that engaged in by plaintiff. Plaintiff contends
9
that the other associates did not work on the retail floor, they slept, did homework, or
socialized with friends in the back room, and went drinking with Ferguson after hours. This
conduct, though, is not the conduct that plaintiff engaged in that resulted in her termination.
“[I]n determining whether the plaintiff was treated less favorably than other ‘similarlysituated’ employees, courts should look to whether the allegedly comparable employees have
‘engaged in the same conduct without such differentiating or mitigating circumstances that
would distinguish their conduct or the employer’s treatment of them for it.’” Jones v. St. Jude
Med. S.C., Inc., No. 2:08-CV-1047, 2011 WL 4543837, at *21 (S.D. Ohio Sept. 29, 2011)
(quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)). Plaintiff must show
that the proposed comparators are similar in all relevant aspects and engaged in acts of
comparable seriousness to the acts in which she engaged. Bobo v. United Parcel Serv., Inc.,
665 F.3d 741, 751 (6th Cir. 2012). The conduct at issue must be similar in type and severity.
Clayton v. Meijer, Inc., 281 F.3d 605, 611 (6th Cir. 2002).
The associates in the Johnson City store to which plaintiff compares herself did
not engage in returning a piece of jewelry against company policy for which they were not
disciplined. Nor was plaintiff disciplined for the type of conduct engaged in by the younger
associates, because she herself did not engage in such conduct. The plaintiff’s conduct and
the comparators’ conduct were not the same, and therefore plaintiff cannot establish that she
was treated differently than similarly situated employees outside the protected class. Thus,
10
her age discrimination prima facie case fails.6
Nevertheless, even assuming arguendo that plaintiff could establish a prima
facie case, in the court’s opinion, plaintiff cannot demonstrate pretext. The defendant has met
its burden of stating a legitimate non-discriminatory reason for its adverse employment
decision. Plaintiff was terminated for violation of company policy by improperly returning
merchandise she did not purchase.
Once defendant has stated a legitimate, non-discriminatory reason for its
adverse action, plaintiff must show that defendant’s proffered reason is a pretext for
discrimination. In her response, plaintiff makes no effort to address specifically pretext.
“[P]laintiff must produce sufficient evidence from which the jury may reasonably reject the
employer’s explanation.” Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1083
(6th Cir. 1994), abrogated on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167
6
In the context of her “me too” evidence argument, plaintiff states, without any
developmental argument or discussion, that the female associates in the Bristol, Kingsport, and
Johnson City stores under Howlett’s investigative jurisdiction are all comparators for demonstrating
disparate treatment. “[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort
at developed [argumentation], are deemed waived. It is not sufficient for a party to mention a
possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones.” United
States v. Cole, 359 F.3d 420, 428 n.13 (6th Cir. 2004) (citation omitted). In any event, plaintiff has
not argued the specifics regarding these incidents to document the details for comparison. The other
female associates were located in different stores under different managers and engaged in different
conduct than plaintiff, who admitted to making an improper credit card merchandise return.
Also, the court understands that the personnel records of defendant’s employees produced
to plaintiff were to be viewed by plaintiff’s counsel only, unless plaintiff’s counsel first obtained
permission of the court. However, that directive was in the context of discovery disclosure, not in
for purposes of responding to summary judgment. Rather than requesting that the records be
provided under seal or redacted, plaintiff’s counsel testified to the content of the records in a
declaration, thus acting as a witness and also presenting hearsay evidence.
11
(2009); see also Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 804 (6th Cir. 1994)
(plaintiff must do more than impugn employer’s asserted justification; “plaintiff must also
adduce evidence of the employer’s discriminatory animus”).
With regard to pretext, the Sixth Circuit has stated:
To raise a genuine issue of material fact on the validity of an
employer’s explanation for an adverse job action, the plaintiff
must show, again by a preponderance of the evidence, either (1)
that the proffered reasons had no basis in fact; (2) that the
proffered reasons did not actually motivate the action; or (3)
that they were insufficient to motivate the action.
Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 883 (6th Cir. 1996)(citations omitted); see
also Chen v. Dow Chem. Co., 580 F.3d 394, 400 n.4 (6th Cir. 2009) (the court asks “whether
the plaintiff has produced evidence that casts doubt on the employer’s explanation, and, if
so how strong it is.”). “To prove pretext, the plaintiff must introduce admissible evidence
to show ‘that the proffered reason was not the true reason for the employment decision’ and
that racial animus was the true motivation driving the employer’s determination.” Barnes v.
United Parcel Serv., 366 F. Supp. 2d 612, 616 (W.D. Tenn. 2005) (quoting St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 508 (1993)). Plaintiff “must produce sufficient evidence from
which the jury could reasonably reject [the defendant’s] explanation and infer that the
defendants intentionally discriminated against him.” Braithwaite v. Timken, 258 F.3d 488,
493 (6th Cir. 2001) (internal quotation marks and citations omitted). At all times, the
ultimate burden of persuasion remains with the plaintiff. Burdine, 450 U.S. at 253.
12
Pretext cannot be shown herein on the grounds that the proffered reason has
no basis in fact since plaintiff admits to the conduct which resulted in her termination. She
even states that she should have been put on probation rather than terminated for her conduct.
Plaintiff also cannot successfully show pretext by attempting to demonstrate that the
proffered reason was insufficient to motivate termination. Peek’s affidavit makes clear that
no employee has engaged in similar conduct and kept his or her position, and plaintiff has
offered no proof to question the validity of that proof.
Without specifically arguing that the evidence is an attempt to show pretext,
plaintiff makes an effort to demonstrate discriminatory animus by contending that this case
involves the “cat’s paw” theory of imputed animus, presumably to show that the proffered
reason did not actually motivate the decision to terminate plaintiff. The court does not agree.
Plaintiff’s theory is that the alleged age animus of Ferguson, Howlett, and Roberts can be
imputed to the decision maker Peek and that these employees were somehow “defacto”
decision makers.
Roberts was a store associate with no decision making capacity of any kind,
and none will be imputed to her, defacto or otherwise. In addition, the information plaintiff
relies on from Roberts comes in the form of hearsay and is not admissible on summary
judgment. “[H]earsay evidence may not be considered on a motion for summary judgment.”
Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). In paragraph 34 of plaintiff’s deposition,
plaintiff relates a conversation she had with a sales associate named Tona Miller who told
13
plaintiff that Roberts had called the corporate hot-line accusing plaintiff of fraud after
Ferguson told Miller and Roberts during an evening out that plaintiff had complained about
them. Plaintiff contends that the statement is not hearsay but a party opponent admission.
A statement is not hearsay if “offered against an opposing party and . . . was made by the
party’s agent or employee on a matter within the scope of that relationship and while it
existed.” Fed. R. Evid. 801(d)(2)(D). Relating information obtained during an evening out
partying was not within the scope of Miller’s employment nor within Miller’s authority as
an employee. The statement is rank hearsay and inadmissible.
The other information from Roberts that is excluded from consideration is in
paragraph 11 of the Denise Osborne affidavit. Osborne relates that Roberts came by her
store shortly after plaintiff’s termination and told Osborne that she had finally gotten the
plaintiff fired. The arguments offered by plaintiff that this statement is admissible have no
merit. Roberts’s statement is clearly hearsay and not admissible on summary judgment.
Hartsel, 87 F.3d at 799.
As to Howlett and Ferguson in connection with the cat’s paw theory, plaintiff
has the problem of not being able to establish a causal nexus between them and the ultimate
decision maker and his decision to terminate plaintiff. In Romans v. Michigan Department
of Human Services, 668 F.3d 826, 836 (6th Cir. 2012), the Sixth Circuit stated:
We have recognized that plaintiff may show discrimination by
offering evidence of a “‘causal nexus’ between the ultimate
decisionmaker’s decision to terminate the plaintiff and the
14
supervisor’s discriminatory animus.” Madden v. Chattanooga
City Wide Serv. Dep’t, 549 F.3d 666, 677 (6th Cir. 2008).
Plaintiff must show that “[b]y relying on this discriminatory
information flow, the ultimate decisionmakers acted as the
conduit of [the supervisor’s] prejudice – his cat’s paw.” Id. at
678 (internal quotations omitted). Plaintiff cannot make this
showing.
The dilemma for plaintiff herein is that she cannot demonstrate that Peek was connected to
a “discriminatory information flow” let alone that he relied on such a flow of information in
making his termination decision. “[A] plaintiff must submit competent evidence that one
employee’s ‘discriminatory motives somehow influenced’ the decisionmaker.” Noble v.
Brinker Int’l Inc., 391 F.3d 715, 723 (6th Cir. 2004) (citation omitted). “Unless the
statements or conduct of nondecisionmakers can be imputed to the ultimate decisionmaker,
such statements or conduct [can not] suffice to satisfy the plaintiff’s burden . . . of
demonstrating animus.” Id. at 724 (citing Bush v. Dictaphone Corp., 161 F.3d 363, 369 (6th
Cir. 1998) (internal quotation marks omitted)).
Even assuming arguendo that Howlett and/or Ferguson displayed a bias toward
plaintiff based on her age, plaintiff has not presented any evidence that either Howlett’s or
Ferguson’s alleged opinions and attitudes influenced Peek’s ultimate decision to terminate
her. After receiving the anonymous complaint and forwarding it to loss prevention, Peek
received plaintiff’s statement. In her statement, while disavowing any intent to defraud the
company, plaintiff readily admits that she made the merchandise return by putting the amount
15
on her debit card and signing the customer’s name.7 She also admits that she should have
waited and placed the purchase amount on a gift card. In the undated letter plaintiff contends
she sent to Peek after her termination, she continues to try and explain why the purchase
price for the necklace was not put on her ex-boyfriend’s credit card and also that she should
have been put on probation rather than terminated. Throughout, plaintiff has never denied
that she made the merchandise return as reported to Peek.
Peek makes clear in his affidavit that he consulted with defendant’s Human
Resources Director Vern Martin with his recommendation to terminate plaintiff. Peek also
makes clear that prior to making the decision he did not consult with the store manager where
plaintiff worked and “relied solely on the information provided by Plaintiff in her signed
statement.” Peek’s affidavit closes with the statement, “I am not aware of any situation in
which a Zale Delaware, Inc. employee has engaged in conduct similar to Plaintiff and known
to Zale Delaware, Inc. and has not been terminated.”
Plaintiff has presented no proof to put in question Peek’s lack of contact with
Ferguson. Without competent evidence that Ferguson influenced Peek’s decision to
terminate plaintiff, there is no causal nexus, no discriminatory information flow, and no
animus can be imputed to Peek through Ferguson. See Noble, 391 F.3d at 723. “‘[M]ere
knowledge’ of another’s ill-perceptions of a plaintiff, and the plaintiff’s ‘mere speculation;
7
Neither the complaint nor plaintiff’s deposition reference that the ex-boyfriend was on the
phone when the return was being processed. In response to summary judgment, plaintiff contends
that he was on the phone with her during the return transaction.
16
that the ill-perceptions must have been transmitted to the decisionmaker in a way that
contaminated the decisionmaker, is insufficient for a causal nexus.” Kelly v. Warren Cnty.
Bd. of Comm’rs, 396 F. App’x 246, 255 (6th Cir. 2010) (citing Noble, 391 F.3d at 723-24).
The same argument holds true with regard to Howlett. Plaintiff argues that
there were two lines of animus operating. She, however, fails to establish a causal nexus
between Howlett and Peek’s ultimate decision to terminate her. While plaintiff complains
about how Howlett allegedly conducted the loss prevention investigation and his attitude
about her statement, the bottom line fact is that plaintiff admits to the offending conduct. At
no time has she ever denied doing the improper merchandise return, even to the point of
arguing that she should have been disciplined with probation rather than termination.
Further, there is no showing in the record that Peek had direct contact with
Howlett. Neither Peek nor Howlett were deposed. Peek’s affidavit reflects that he consulted
HR Director Martin and relied on the statement of plaintiff in making his decision. There
is no reference to any contact with Howlett. Again, there is no competent evidence to
establish a direct discriminatory information flow between Howlett and Peek, so there is no
evidence to show that the alleged discriminatory motives of Howlett influenced Peek’s
decision. See Noble, 391 at 723. Without such competent evidence, there is no showing of
a causal nexus and no animus can be imputed to Peek. Any contention by plaintiff that it
“must have been transmitted” is purely speculative and insufficient to establish a causal
nexus. Kelly, 396 F. App’x at 255.
17
Plaintiff’s main contention, however, seems to be that there was exculpatory
information kept from Peek, i.e., that Ferguson gave her permission to do the return as she
did. The problem with this logic is that plaintiff has not shown that this is in fact exculpatory
information that would have made a difference in the outcome of the decision making
process. Peek’s affidavit clearly states that company policy prohibits employees from
falsifying transactional documents in any way since such action can lead to credit card fraud
and create legal problems. The affidavit further demonstrates that no one in defendant’s
employ has engaged in conduct similar to that engaged in by plaintiff and not been
terminated. This evidence has not been questioned. Thus, there is no reason to believe that
defendant would have condoned Ferguson’s violation of company policy by approving the
return in the manner it was performed. Plaintiff’s contention that Ferguson’s approval of the
transaction is exculpatory and would have kept plaintiff from termination is speculative at
best. She has not shown how his approval of a transaction done in a manner strictly
prohibited by the company would have kept her from being terminated.
The court concludes that plaintiff cannot demonstrate a material issue of fact
on the genuineness and motivation behind defendant’s legitimate, non-discriminatory reason
for her termination and therefore cannot show pretext. Her imputed animus theory fails
because she cannot connect the alleged discriminatory flow of information from Howlett and
Ferguson to the decision maker Peek. Plaintiff has the ultimate burden of showing that her
age was the “but for” cause of her termination, or in other words, that she would not have
18
been terminated “but for her age.” Plaintiff has failed to present sufficient evidence to raise
a material issue of fact as to whether Peek’s ultimate decision to terminate plaintiff was based
on intentional age discrimination. Accordingly, summary judgment is appropriate in favor
of defendant.
Hostile Work Environment
Additionally, plaintiff is alleging a hostile work environment based on age. In
order to prove a prima facie case of hostile work environment, a plaintiff must show:
1. The employee is 40 years old or older;
2. The employee was subjected to harassment, either through
words or actions, based on age;
3. The harassment had the effect of unreasonably interfering
with the employee’s work performance and creating an
objectively intimidating, hostile, or offensive work environment;
and
4. There exists some basis for liability on the part of the
employer.
Crawford v. Medina Gen. Hosp., 96 F.3d 830, 834-35 (6th Cir. 1996). “With respect to the
third element, [the Sixth Circuit has] stated that while a plaintiff must also subjectively feel
that an environment is hostile, ‘[c]onduct that is not severe or pervasive enough to create an
objectively hostile or abusive work environment - an environment that a reasonable person
would find hostile or abusive,’ is beyond the purview of the AEDA (sic).” Peecook v.
Northwestern Nat’l Ins. Group, No. 96-4318, 1998 WL 476245, at *2 (6th Cir. Aug. 3, 1998)
(quoting Crawford, 96 F.3d at 835). A court must look at the totality of the circumstances
19
when applying this standard. “[W]hether an environment is ‘hostile’ or ‘abusive’ can be
determined only by looking at all the circumstances. These may include the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.” Crawford, 96 F.3d at 835 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17,
23 (1993)).
In her response to defendant’s motion for summary judgment, plaintiff did not
respond to defendant’s arguments addressing summary judgment on the hostile work
environment claim. By failing to respond, plaintiff has abandoned this claim. Abdulsalaam
v. Franklin Cnty. Bd. of Comm’rs, 637 F. Supp. 2d 561, 578 (S.D. Ohio 2009) (“Plaintiffs
do not clearly respond to that argument in their brief and that failure alone warrants summary
judgment in Defendants’ favor on that issue) (citing Dage v. Time Warner Cable, 395 F.
Supp. 2d 668, 679 (S. D. Ohio 2005) (plaintiff abandoned claim by failing to address it in his
responsive pleading)); see also Kattar v. Three Rivers Area Hosp. Auth., 52 F. Supp. 2d 789,
798 n.7 (W.D. Mich. 1999) (“The Court will treat that claim as abandoned because Kattar
did not address it in his brief in response to Defendants’ motion for summary judgment.”);
Knittel v. First Fin. Mortg. Corp., No. 08-44-JBC, 2009 WL 1702174, at *3 (E.D. Ky. June
17, 2009) (“By failing to respond specifically to Citimortgage’s arguments on those claims,
the plaintiffs have abandoned them, and the court will grant summary judgment to
Citimortgage.”); Nat’l Info. & Commc’ns Equip. Network v. Willigan, No. 06-28-DLB, 2007
20
WL 2979928, at *10 (E.D. Ky. Oct. 11, 2007) (“By failing to specifically respond to
Defendants’ arguments on the tortious interference claim, the Court concludes that Plaintiff
has abandoned this claim.”). Therefore, the court will grant summary judgment to defendant
on plaintiff’s claim for a hostile work environment.
However, even if plaintiff had not abandoned the claim, she has not
demonstrated an objectively hostile and offensive work environment. Plaintiff actually stated
in her letter to Peek that she “really enjoyed” her job. Crawford, 96 F.3d at 836 (no evidence
harassment interfered with work performance and plaintiff claimed she liked her job).
Plaintiff also continued to perform her job at a high level by generating over $700,000 in
sales per year. While dealing with co-workers who do not always perform their job duties
or work as hard as they should is unpleasant and difficult, it does not necessarily constitute
a hostile or offensive work environment. “The hallmarks of a hostile work environment are
a workplace permeated with discriminatory intimidation, ridicule, and insult, that is
sufficiently severe or pervasive to alter the conditions of the victim’s employment and create
an abusive working environment.” Hale v. ABF Freight Sys., Inc., No. 1:10-CV-184, 2011
WL 5238672, at *11 (E.D. Tenn. Nov. 1, 2011) (citing Harris, 510 U.S. at 21) (internal
quotation marks omitted)). Plaintiff has not made this required showing.
21
Retaliation
Plaintiff also alleges a claim of retaliation based upon age. To make a prima
facie case of retaliation under the ADEA, a plaintiff must establish that: “(1) he engaged in
protected activity when he made his age discrimination complaint; (2) Defendant knew about
his exercise of the protected activity; (3) Defendant thereafter took adverse employment
action against him; and (4) there was a causal connection between the protected activity and
the adverse employment action.” Spengler v. Worthingon Cylinders, 615 F.3d 481, 491-92
(6th Cir. 2010). Once plaintiff makes that showing, the burden shifts to the defendant to
articulate a legitimate, nondiscriminatory reason for its action. Id. (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). If defendant successfully makes this
showing, the burden shifts back to the plaintiff to demonstrate that “ the proffered reason was
not the true reason but merely a pretext for retaliation.” Harris, 594 F.3d at 485 (citing Ladd
v Grand Trunk W. R.R. 552 F.3d 495, 502 (6th Cir. 2009)). “The burden of persuasion
remains with the plaintiff throughout.” Id. (citing Ladd, 552 F.3d at 502).
Plaintiff contends that she made complaints to the corporate office. She has
no documentation to support these transmittals, and defendant has no record of receiving
them. The one letter from plaintiff that is in the record was written after her termination and
was addressed to Peek. It is undated and has no fax transmittal information on it. The
handwritten cover page says, “one package was mailed 2-15-09. Don’t think you received.
So I’m faxing this one and I hope to hear from you.” Peek stated in his affidavit that he did
22
not receive any complaints or correspondence from the plaintiff.
Assuming without deciding, however, that plaintiff has made out a prima facie
case of retaliation, the claim fails at the pretext stage for the reasons already discussed at
length above related to her age discrimination claim and for those that follow. Again, as
already noted, in order to show pretext, plaintiff must present admissible evidence to show
that the proffered reason was not the true reason for defendant’s employment action. Barnes,
366 F. Supp. 2d at 616. This can be done by showing that (1) the employer’s reason for
termination has no basis in fact, (2) the reason offered for the employee’s termination was
not the actual reason, or (3) the reason offered was insufficient to warrant the employer’s
action. Manzer, 29 F.3d at1084.
Plaintiff’s termination has a basis in fact as she readily admitted to the conduct
that resulted in her termination.
She has never denied that she made the return
inappropriately using her debit card and signing the original customer’s name herself.
Plaintiff has not demonstrated or raised and issue of fact as to whether that the conduct was
insufficient to warrant dismissal. Peek’s affidavit makes clear that no one employed by the
company has engaged in a similar type behavior and not been terminated. Additionally,
plaintiff has not offered sufficient evidence to raise a material issue of fact concerning the
reason for her termination. She has not presented evidence to show that the motivation for
her termination was other than her improper return of the necklace in violation of company
policy.
23
Peek’s affidavit states that he initiated his investigation based on an anonymous
call to the loss prevention line. Plaintiff has not presented admissible proof that links that
Ferguson or Howlett.
As already discussed, plaintiff has not linked any alleged
discriminatory animus to Peek through Ferguson or Howlett. Further, plaintiff does not show
how these alleged letters, complaining about the young associates in the store, altered Peek’s
investigation that was begun from the anonymous call and his ultimate termination decision.8
Plaintiff has not made cogent arguments or presented sufficient evidence to convince a
reasonable trier of fact that the true reason for her termination was retaliation for complaining
about age discrimination rather than the improper merchandise return in violation of
company policy, conduct which plaintiff admitted doing. Therefore, the court concludes that
plaintiff’s retaliation claim fails on the basis of pretext, and summary judgment is
appropriate.
Judicial Estoppel
Defendant contends that plaintiff’s claims are barred by the doctrine of judicial
estoppel because she did not list her employment discrimination claim on her Chapter 13
bankruptcy property schedule and signed a declaration that the bankruptcy schedules were
true. Defendant argues that the bankruptcy court adopted plaintiff’s position by taking
8
While the alleged letters arguably make a connecting link with Peek in the context of
plaintiff’s retaliation claim, they do not advance the required showing of a causal nexus for imputed
animus in her age discrimination claim.
24
several actions regarding plaintiff’s bankruptcy.
“The doctrine of judicial estoppel bars a party from (1) asserting a position that
is contrary to one that the party has asserted under oath in a prior proceeding, where (2) the
prior court adopted the contrary position either as a preliminary matter or as part of a final
disposition.” Lorillard Tobacco Co. v. Chester, Willcox & Saxbe, 546 F.3d 752, 757 (6th
Cir. 2008) (quoting Browning v. Levy, 283 F.3d 761, 775 (6th Cir. 2002)) (internal quotation
marks omitted); see also New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (“[W]here a
party assumes a certain position in a legal proceeding, and succeeds in maintaining that
position, he may not thereafter, simply because his interests have changed, assume a contrary
position, especially if it be to the prejudice of the party who has acquiesced in the position
formerly taken by him.”). The purpose of the doctrine is “to protect the integrity of the
judicial process by prohibiting parties from deliberately changing positions according to the
exigencies of the moment.” New Hampshire, 532 U.S. at 749-50 (citations omitted). The
Sixth Circuit “has stressed that the doctrine of judicial estoppel is utilized in order to preserve
‘the integrity of the courts by preventing a party from abusing the judicial process through
cynical gamesmanship.’” Browning, 283 F.3d at 776 (quoting Teledyne Indus., Inc. v. NLRB,
911 F.2d 1214, 1218 (6th Cir. 1990)).
The application of judicial estoppel is not appropriate, however, in cases
involving conduct that amounts to mistake or inadvertence. Browning, 283 F.3d at 776. In
the bankruptcy context, “[t]wo circumstances in which a debtor’s failure to disclose might
25
be deemed inadvertent are: (1) ‘where the debtor lacks knowledge of the factual basis of the
undisclosed claims,’ and (2) where ‘the debtor has no motive for concealment.’” White v.
Wyndham Vacation Ownership, Inc., 617 F.3d 472, 476 (6th Cir. 2010) (quoting Browning,
283 F.3d at 776). The Sixth Circuit in Eubanks v. CBSK Financial Group, Inc., 385 F.3d 894
(6th Cir. 2004), noted that the “absence of bad faith” was also a factor to be considered when
determining whether judicial estoppel applies. When determining whether there was an
absence of bad faith, the court particularly looks at “attempts” by the plaintiffs to notify the
bankruptcy court about their claim. White, 617 F.3d at 478. In sum, then, to support a
finding of judicial estoppel, the court must find that: (1) “[plaintiffs] assumed a position that
was contrary to the one that [they] asserted under oath in the bankruptcy proceedings; (2) the
bankruptcy court adopted the contrary position either as a preliminary matter or as part of a
final disposition; and (3) [plaintiffs’] omission did not result from mistake or inadvertence.”
White, 617 F.3d at 478.
Pursuant to the requirements of the Bankruptcy Code, a debtor has an
affirmative duty to disclose all assets at the time of filing a bankruptcy petition. 11 U.S.C.
§ 521. “It is well-settled that a cause of action is an asset that must be scheduled under §
521(1).” Lewis v. Weyerhaeuser Co., 141 F. App’x 420, 424 (6th Cir. 2005); see also
Eubanks, 385 F.3d at 897. “Moreover, ‘[t]he duty of disclosure is a continuing one, and a
debtor is required to disclose all potential causes of action.’” Lewis, 141 F. App’x at 424
(quoting In re Coastal Plains, Inc., 179 F.3d 197, 208 (5th Cir. 1999)).
26
Plaintiff has provided to the court documentation demonstrating her efforts to
notify the bankruptcy court of her pending discrimination claim that her bankruptcy attorney
left off her schedule. Plaintiff notified the Chapter 13 Trustee at her creditors’ meeting that
the claim had not been listed. The record also includes an agreed order reflecting that any
proceeds from the debtor’s possible discrimination claim are to be paid into the debtor’s plan
as well as authorization for her attorney in this civil action to represent her. The court
concludes that plaintiff made sufficient good faith attempts to notify the bankruptcy court,
and therefore application of judicial estoppel to bar her claims is inappropriate in this case.
IV.
Conclusion
Accordingly, for the reasons stated herein, defendant’s motion for summary
judgment will be granted, and this case will be dismissed. An order consistent with this
opinion will be entered.
ENTER:
s/ Leon Jordan
United States District Judge
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