Booker v. Syngenta Crop Protection, LLC
Filing
39
ORDER granting in part and denying in part 28 Motion for Summary Judgment. Signed by Judge Jon Phipps McCalla on 10/8/2015. (McCalla, Jon)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
SAM L. BOOKER,
Plaintiff,
v.
SYNGENTA CROP PROTECTION, LLC,
Defendant.
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No. 2:14-cv-02604-JPM-dkv
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
Before the Court is Defendant’s Motion for Summary
Judgment, filed July 22, 2015.
(ECF No. 28.)
For the following
reasons, the Motion is GRANTED IN PART as to the constructive
discharge, front pay, back pay, and punitive damages claims and
DENIED IN PART as to the failure to promote claims.
I.
BACKGROUND
A.
Factual Background
The following is a summary of the undisputed facts relevant
to this Order.
Sam Booker began his employment with Novartis in
March 1997 as a Marketing Specialist.
(Booker Dep. 102:8-103:6,
ECF No. 28-5; Statement of Undisputed Facts (“SUF”) ¶ 3, ECF No.
28-2; Pl’s Resp. to Statement of Undisputed Facts (“Resp. to
SUF”) ¶ 3, ECF No. 31-1.)
On January 1, 2001, after Syngenta
was formed by the merger of Novartis and AstraZeneca, Booker’s
job title changed to Sales Representative in the Mid-South
District of the Southern Commercial Unit (“CU”).
104:3-7; SUF ¶ 4; Resp. to SUF ¶ 4.)
(Booker Dep.
In the role of Sales
Representative, Plaintiff did not have formal managerial
responsibilities, but managed interns and Developmental Sales
Representatives (“DSR”).
(Booker Dep. 106:22-107:9; Booker
Decl. ¶ 29, ECF No. 31-3; SUF ¶ 5; Resp. to SUF ¶ 5.)
On July 1, 2011, after Syngenta integrated its crop
protection and seed businesses, Booker moved into the newly
created role of Retail Business Representative (“RBR”).
(Booker
Dep. 105:4-24; Booker Dep. Ex. 14, ECF No. 28-5 at PageID 206;
SUF ¶ 6; Resp. to SUF ¶ 6.)
In that position, Booker assisted
District Manager Bruce Zurface with the day-to-day operations of
the Mid-South District.
to SUF ¶ 6.)
(Booker Dep. 51:14-18; SUF ¶ 6; Resp.
Booker alleges that he also was “responsible for
managing the business programs of customers (Zurface Dep., pp
36-37), managing the seed portfolio (Booker Dep. p. 51), being
‘in charge of crop production allocations, the seed allocations,
the seed budgets...the forecasting and things like that for the
entire district.’
1.
(Id.)” (Resp. to SUF ¶ 6.)
Regional Account Lead (“RAL”) Position
On July 31, 2013, Syngenta internally posted an opening for
a Regional Account Lead (“RAL”) position.
112:8; SUF ¶ 7; Resp. to SUF ¶ 7.)
2
(Booker Dep. 111:19-
This particular RAL position
serviced the customer Crop Production Services (“CPS”).
(Colburn Dep. 8:3-12, ECF No. 28-6; Booker Dep. 113:8-10; SUF
¶ 8; Resp. to SUF ¶ 8.)
CPS is headquartered in Tampa, but its
Southern Region stretches from Florida to New Mexico, so most
meetings between CPS and Syngenta’s RAL were to take place in
Memphis.
(Campbell Dep. 8:17-9:5, ECF No. 28-7; SUF ¶ 8; Resp.
to SUF ¶ 8.)
On August 9, 2013, Booker spoke with Jon Colburn,
the hiring manager for the RAL position, who encouraged Booker
to apply for the position.
(Booker Dep. 130:25-132:3; SUF ¶¶ 9-
10; Resp. to SUF ¶¶ 9-10.)
Booker also felt that Michael Boden,
Head of the Southern CU, encouraged him to apply for the RAL
position.
(Booker Dep. 130:21-24, 134:9-11; SUF ¶ 11; Resp. to
SUF ¶ 11.)
During the internal interview process, Syngenta interviewed
Booker and Tommy Killebrew for the RAL position. (Colburn Dep.
21:17-24; Campbell Dep. 11:9-10; SUF ¶ 12; Resp. to SUF ¶ 12.)
Syngenta ultimately offered the position to Killebrew on or
around September 18, 2013.
SUF ¶ 14.)
(ECF No. 31-14; SUF ¶ 14; Resp. to
When Booker was advised that he was not selected for
the position, Colburn informed Booker that they were looking for
something with “district manager” or “district manager-like
experience.”
(Booker Decl. ¶ 14; Colburn Dep. 43:7-21; Resp. to
SUF ¶ 14.) Over the course of litigation, Syngenta has
continuously asserted that Killebrew was selected because he was
3
“the better candidate in light of his experience with CPS, the
support expressed by key members of CPS’ management team, and
his overall diverse business experience in the seed business.”
(SUF ¶ 14; Resp. to SUF ¶ 14; see also Campbell Dep. 17:1418:12, 20:1-21:1; Colburn Dep. 23:9-25:16; White Dep. 68:2069:15.)
Defendants have also asserted that Killebrew had wide
geographic experience, while Booker’s experience was limited to
a single geographic area.
(SUF ¶ 15; see also Campbell Dep.
20:1-19.)
Booker was informed that he was not selected for the RAL
position on October 4, 2013.
(Booker Dep. Ex. 10, ECF No. 28-5
at PageID 197; Colburn Dep. 42:13-43:6; SUF ¶ 16; Resp. to SUF
¶ 16.)
reasons.
Mr. Killebrew declined the position for personal
(Campbell Dep. 19:1-4; Colburn Dep. 26:20-27:4; SUF
¶ 17; Resp. to SUF ¶ 17.)
Colburn and Campbell then decided to
post the RAL position externally.
(Campbell Dep. 19:12-17;
Colburn Dep. 27:15-23; SUF ¶ 18; Resp. to SUF ¶ 18.)
When a
position is posted externally, Syngenta employees are still
permitted to apply internally for the position.
55:9-21; SUF ¶ 18; Resp. to SUF ¶ 18.)
for the RAL position.
Resp. to SUF ¶ 18.)
(White Dep.
Booker did not reapply
(Booker Dep. 143:22-144:17; SUF ¶ 18;
Syngenta ultimately selected Adam Hensley,
an internal candidate who had a Master’s of Business
Administration and who had worked as a Sales Representative in
4
the Northern Field Crops Territory and as a Customer Campaign
Lead in the Coastal Commercial Unit.
(Campbell Decl. ¶ 3;
Colburn Decl. ¶ 3; SUF ¶ 20; Resp. to SUF ¶ 20.)
2.
District Manager (“DM”) Position
Also on October 4, 2013, Booker’s District Manager Bruce
Zurface announced his plan to retire as District Manager.
(Booker Dep. Ex. 10, ECF No. 28-5 at PageID 197; SUF ¶ 22; Resp.
to SUF ¶ 22.)
Booker applied for the District Manager (“DM”)
position that day.
to SUF ¶ 22.)
(Booker Dep. 143:25-144:6; SUF ¶ 22; Resp.
Out of six or seven applicants, four were
selected for in-person interviews, including Booker.
(Boden
Dep. 20:24-22:9, ECF No. 28-9; SUF ¶ 23; Resp. to SUF ¶ 23.)
Boden, Jeff Taber, the Head of Field Force Excellence and
Training, and Courtney White, an African-American Business
Partner in Human Resources conducted the in-person interviews on
November 11, 2013.
(Boden Dep. 22:15-17; Booker Dep. Ex. 10,
ECF No. 28-5 at PageID 199-200; SUF ¶ 24; Resp. to SUF ¶ 24.)
They selected Greg Dickinson for the DM position.
(White Dep.
76:12-18; Boden Decl. ¶ 5; SUF ¶ 25; Resp. to SUF ¶ 25.) Booker
alleges that he was “initially told that the reason he was not
selected was due to a lack of leadership and that he needed to
take the classes DNA and Purposeful Coaching.”
(Resp. to SUF
¶ 25; see also Booker Decl. ¶ 22; SUF ¶ 27; Resp. to SUF ¶ 27.)
Booker had already taken these leadership classes and had
5
multiple recognitions for his leadership.
(Zurface Dep. 30:8-
24, ECF No. 31-10; ECF Nos. 31-16, 31-17, 31-18.)
Boden, Taber,
and White assert that they offered the position to Dickinson
because he had broad and varied work experience, which included
people management, and had “one of the best interviews” Taber
could recall.
(Taber Dep. 18:23-19:16, ECF No. 28-12; SUF ¶ 25;
Resp. to SUF ¶ 25.)
Comparatively, Boden, Taber, and White
assert that they found “Booker’s experience was narrower in
scope, as it was confined to two roles in the same geographic
region for his entire tenure with Syngenta and did not involve
any experience managing other employees.”
(SUF ¶ 26 (citing
White Dep. 76; Boden Decl. ¶ 6; Taber Decl. ¶ 3).)
After Booker
was informed that he was not selected for the DM position, he
met with Boden to discuss the decision.
28:22; SUF ¶ 27; Resp. to SUF ¶ 27.)
(Boden Dep. 27:15-
During this conversation,
Boden encouraged Booker to continue exploring promotional
opportunities with Syngenta outside of the Southern CU.
(Boden
Decl. ¶ 8; Booker Dep. 203:13-16, 204:15-20; SUF ¶ 31; Resp. to
SUF ¶ 31.)
3.
Resignation
On December 30, 2013, Booker tendered his resignation and
Syngenta accepted his resignation that day, which was his last
day of employment.
(Booker Dep. 68-69, 72; White Decl. ¶ 5; SUF
¶ 32; Resp. to SUF ¶ 32.)
Booker believed that he was denied
6
the RAL and DM positions because of his race, largely based on
the fact that there was a lack of African-Americans in
leadership positions.
(Booker Dep. 233:7-20, ECF No. 31-2.)
According to Booker, he resigned because he realized that he had
“plateaued,” due to “an unwritten rule” in Syngenta.
Dep. 254:7-16.)
(Booker
Hensley and Dickinson did not start in the RAL
and DM positions, respectively until January 1, 2014.
Decl. ¶ 6; SUF ¶ 32; Resp. to SUF ¶ 32.)
(White
Booker began new
employment with Bayer as a Technical Sales Specialist on January
6, 2014.
B.
(SUF ¶ 32; Resp. to SUF ¶ 32.)
Procedural Background
On August 4, 2014, Plaintiff filed a Complaint against
Defendant.
(ECF No. 1.)
an Answer.
On September 17, 2014, Defendant filed
(ECF No. 15.)
Defendant filed its Motion for Summary Judgment on July 22,
2015.
(ECF No. 28.)
on August 19, 2015.
Plaintiff filed a Response in Opposition
(ECF No. 31.)
Defendant filed a reply
brief on August 31, 2015 (ECF No. 32), and a supplemental reply
on September 8, 2015 (ECF No. 34).
The Court held a hearing on the motion for summary judgment
on September 1, 2015. (Minute Entry, ECF No. 33.)
II.
LEGAL STANDARD
A party is entitled to summary judgment if “the movant
shows that there is no genuine dispute as to any material fact
7
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
“A fact is ‘material’ for purposes of
summary judgment if proof of that fact would establish or refute
an essential element of the cause of action or defense.”
Bruederle v. Louisville Metro Gov’t, 687 F.3d 771, 776 (6th Cir.
2012).
“In considering a motion for summary judgment, [the] court
construes all reasonable inferences in favor of the nonmoving
party.”
Robertson v. Lucas, 753 F.3d 606, 614 (6th Cir. 2014)
(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986)).
“The moving party bears the initial
burden of demonstrating the absence of any genuine issue of
material fact.”
Mosholder v. Barnhardt, 679 F.3d 443, 448 (6th
Cir. 2012) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986)).
“Once the moving party satisfies its initial burden, the
burden shifts to the nonmoving party to set forth specific facts
showing a triable issue of material fact.”
Mosholder, 679 F.3d
at 448-49 (citing Matsushita, 475 U.S. at 587; Fed. R. Civ.
P. 56(e)).
“‘When the non-moving party fails to make a
sufficient showing of an essential element of his case on which
he bears the burden of proof, the moving parties are entitled to
judgment as a matter of law and summary judgment is proper.’”
Martinez v. Cracker Barrel Old Country Store, Inc., 703 F.3d
8
911, 914 (6th Cir. 2013) (quoting Chapman v. UAW Local 1005, 670
F.3d 677, 680 (6th Cir. 2012) (en banc)); see also Kalich v.
AT&T Mobility, LLC, 679 F.3d 464, 469 (6th Cir. 2012).
“To show that a fact is, or is not, genuinely disputed,
both parties are required to either ‘cite[] to particular parts
of materials in the record’ or ‘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.’”
Bruederle, 687 F.3d at 776 (alterations in
original) (quoting Fed. R. Civ. P. 56(c)(1)); see also
Mosholder, 679 F.3d at 448 (“To support its motion, the moving
party may show ‘that there is an absence of evidence to support
the nonmoving party’s case.’”) (quoting Celotex Corp., 477 U.S.
at 325).
“Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge[.]”
Martinez,
703 F.3d at 914 (alteration in original) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)) (internal
quotation marks omitted).
“The court need consider only the cited materials, but it
may consider other materials in the record.”
P. 56(c)(3).
Fed. R. Civ.
“[T]he district court has no ‘duty to search the
entire record to establish that it is bereft of a genuine issue
of material fact.’”
Pharos Capital Partners, L.P. v. Deloitte &
9
Touche, 535 F. App’x 522, 523 (6th Cir. 2013) (per curiam)
(quoting Tucker v. Tennessee, 539 F.3d 526, 531 (6th Cir.
2008)).
“‘[J]udges are not like pigs, hunting for truffles’
that might be buried in the record.”
Emerson v. Novartis Pharm.
Corp., 446 F. App’x 733, 736 (6th Cir. 2011) (alteration in
original) (quoting United States v. Dunkel, 927 F.2d 955, 956
(7th Cir. 1991)).
The decisive “question is whether ‘the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law.’”
Johnson v. Memphis Light Gas & Water Div., 777
F.3d 838, 843 (6th Cir. 2015) (quoting Anderson, 477 U.S. at
251–52).
“[A] mere ‘scintilla’ of evidence in support of the
non-moving party’s position is insufficient to defeat summary
judgment; rather, the non-moving party must present evidence
upon which a reasonable jury could find in her favor.”
Tingle
v. Arbors at Hilliard, 692 F.3d 523, 529 (6th Cir. 2012)
(quoting Anderson, 477 U.S. at 251).
III. ANALYSIS
Defendant argues that it is entitled to summary judgment
for three reasons: first, Defendant argues that Plaintiff fails
to establish a claim for employment discrimination (ECF No. 28-1
at 3-12); second, Defendant argues that the constructive
discharge claim is foreclosed because it is based solely on the
10
failure to promote (id. at 13-14); and third, Defendant argues
that Plaintiff cannot recover back pay, front pay, or punitive
damages because he voluntarily resigned before the date the
promotions took place, there is no evidence of malice or
reckless indifference, and Defendant made a good-faith effort to
comply with Title VII (id. at 14-15).
The Court addresses each
claim in turn.
A.
Employment Discrimination
To establish a prima facie case of employment
discrimination under Title VII, a plaintiff must demonstrate
that: (1) he is a member of a protected class; (2) he applied
for and was qualified for a promotion; (3) he was considered for
and denied the promotion; and (4) another employee of similar
qualifications who is not a member of the protected class
received the promotion.
Sigall-Krakulich v. City of Columbus,
156 F. App’x 791, 796 (6th Cir. 2005); see also White v. Baxter
Healthcare Corp., 533 F.3d 381, 391 (6th Cir. 2008) (describing
the general requirements of establishing a prima facie case
under Title VII).
“The prima facie burden is not intended to be
onerous,” and the plaintiff is not required to show that he and
the person ultimately promoted had the exact same
qualifications.
Provenzano v. LCI Holdings, Inc., 663 F.3d 806,
814 (6th Cir. 2011).
11
“Once the plaintiff establishes this prima facie case, the
burden shifts to the defendant to offer evidence of a
legitimate, non-discriminatory reason for the adverse employment
action.”
White, 533 F.3d at 391.
“Finally, if the defendant
succeeds in this task, the burden shifts back to the plaintiff
to show that the defendant’s proffered reason was not its true
reason, but merely a pretext for discrimination.”
Id. at 391–
92.
To establish pretext, the plaintiff must demonstrate that
the proffered reasons: (1) had no basis in fact; (2) were not
the actual reasons; or (3) were insufficient to explain the
employer’s actions.
Sigall-Drakulich, 156 F. App’x at 797.
“Title VII does not diminish lawful traditional management
prerogatives in choosing among qualified candidates.”
Gee-
Thomas v. Cingular Wireless, 324 F. Supp. 2d 875, 887 (M.D.
Tenn. 2004) (quoting Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir.
1987).
Moreover, “a[n] employer has even greater flexibility in
choosing a management-level employee . . . because of the nature
of such a position.”
Id.
A “[p]laintiff cannot demonstrate
pretext merely by showing that Defendant’s hiring rationale was
‘mistaken, foolish, trivial, or baseless,’ so long as Defendant
honestly believed in the rationale and based this belief on
particularized facts before it at the time.”
Sigall-Drakulich,
156 F. App’x at 797 (quoting Smith v. Chrysler Corp., 155 F.3d
12
799, 806 (6th Cir. 1998)).
The Sixth Circuit has recognized,
however, that “evidence of pretext may consist of a defendant’s
changing explanations.”
Cichewicz v. UNOVA Indus. Auto. Sys.,
Inc., 92 F. App’x 215, 220-21 (6th Cir. 2004) (finding that
evidence of the defendant’s shifting explanations was sufficient
for the plaintiff to survive summary judgment).
Defendant argues that it is entitled to summary judgment on
Plaintiff’s employment discrimination claim for four reasons:
(1) “[w]ith respect to the RAL promotion, Booker cannot
establish the fourth prong of the prima facie case because he
did not possess qualifications similar to those of Killebrew or
Hensley” (ECF No. 28-1 at 4-6); (2) with respect to the DM
position, “Booker likewise lacked qualifications similar to Greg
Dickinson” (id. at 6-7); (3) Plaintiff cannot prove that
Defendant’s legitimate non-discriminatory reason for its RAL
promotional decision was pretextual (id. at 8-11); and (4)
Plaintiff cannot prove that Defendant’s legitimate nondiscriminatory reason for its DM promotional decision was
pretextual (id. at 11-12).
The Court addresses Defendant’s
first two arguments in turn, and then addresses Defendant’s
third and fourth arguments together.
13
1.
Prima Facie Case for Regional Account Lead
Position
According to Defendant, Plaintiff cannot sustain his burden
to establish a prima facie case for employment discrimination
because no similarly qualified employee was selected for a
promotion to the RAL position over him.
(See id. at 4-6.)
The Court is unpersuaded by this argument.
While Plaintiff
has not shown that he was similarly qualified to Killebrew, he
has shown that he was similarly qualified to Hensley.
The undisputed facts show that Plaintiff and Killebrew did
not possess similar qualifications.
The RAL position involves
working with a single customer, namely CPS.
(Colburn Dep. 8:3-
12, ECF No. 28-6; Booker Dep. 113:8-10; SUF ¶ 8; Resp. to SUF
¶ 8.)
Killebrew had worked for CPS for six years before coming
to Syngenta and had strong recommendations from CPS management.
(ECF No. 28-7 at PageID 284-85; Colburn Dep. 23:11-24:9, 24:2325:16.)
Although Plaintiff worked with CPS in his roles in
Syngenta, his experience is not comparable.
112-13.)
(See Booker Dep.
There is no evidence that Plaintiff had knowledge of
CPS’s internal organization structure and strategies or that he
had strong recommendations from the CPS manager with whom the
RAL would be working.
Killebrew’s past experience with CPS made
him uniquely qualified for the position, and Plaintiff could not
be considered similarly situated.
14
On the other hand, viewing the evidence in the light most
favorable to Plaintiff, he was at least as qualified as Hensley. 1
Hensley graduated college in 2007 and earned an Executive
Masters of Business Administration (“Executive MBA”) in 2011.
(Campbell Dep. Ex. 15, ECF No. 28-7 at PageID 277; Campbell
Decl. ¶ 3; Colburn Decl. ¶ 3)
In total, Hensley had six years
of work experience at Sygenta, which included experience as a
Sales Representative in Syngenta’s Northern Field Crops
Territory and as a Customer Campaign Lead in Syngenta’s Coastal
CU.
(Campbell Dep. Ex. 15, ECF No. 28-7 at PageID 277; Campbell
Decl. ¶ 3; Colburn Decl. ¶ 3.)
By contrast, Plaintiff lacked a graduate degree, but had
approximately twenty years of work experience in the field.
(Booker Resume, ECF No. 31-4.)
Moreover, there is evidence that
Plaintiff worked with CPS in his role as Sales Representative
1
Defendant argues that Hensley should not be used as a comparator
because Plaintiff did not re-apply for the RAL position after it was opened
up to external candidates, and therefore did not directly compete with
Hensley for the position. (ECF No. 28-1 at 4 n.2.) It is uncontroverted
that Plaintiff had already been told that he would not be selected for the
position and that the RAL position might not be filled at all. (Booker Dep.
127, ECF No. 31-2.) In the instant matter, Plaintiff did not merely express
a general interest to be considered, (see Williams v. Hevi-Duty Elec. Co.,
819 F.2d 620 (6th Cir. 1987)), but rather, had specifically applied to the
position in question just weeks earlier. Moreover, Mr. Colburn and Mr.
Campbell both testified that they could have considered Mr. Booker for the
RAL position after Mr. Killebrew turned down the offer. (See Colburn Dep.
27:7-11; Campbell Dep. 21:5-11.) Accordingly, the Court finds that Plaintiff
reasonably believed re-application to be futile and did not need to re-apply
to the RAL position. See Wanger v. G.A. Gray Co., 872 F.2d 142, 145 (6th Cir.
1989) (quoting Babrocky v. Jewel Food Co., 773 F.2d 857, 867 (7th Cir. 1985))
(“Because an employer may create an atmosphere in which employees understand
that their applying for certain positions is fruitless, even nonapplicants
can in appropriate circumstances qualify for relief . . . .”).
15
and RPR, but no evidence that Hensley had any experience working
with CPS.
Although Hensley and Plaintiff may have had different
strengths and weaknesses, viewing the evidence in the light most
favorable to Plaintiff, Plaintiff’s depth of experience made him
similarly qualified to Hensley.
Accordingly, Plaintiff has established a prima facie case
for the RAL position sufficient to avoid summary judgment on
this issue.
2.
Prima Facie Case for District Manager Position
Defendant argues that Plaintiff was not similarly qualified
to Dickinson for the DM position because Plaintiff lacked prior
management experience.
(ECF No. 28-1 at 6-7.)
The Court finds this argument unpersuasive.
The undisputed
facts reflect that Dickinson started as a Sales Representative
in the South Delta District in 2002, transitioned to an AgriEdge
Specialist in the Southwest District in 2007, and was promoted
to an AgriEdge Manager in the Horticulture Business Unit in
2009.
(White Decl. ¶ 4; SUF ¶ 25; Resp. to SUF ¶ 25.)
In these
roles, Dickinson worked in the Southern CU and the Coastal CU,
as well as in the east coast region. (White Decl. ¶ 4; SUF ¶ 25;
Resp. to SUF ¶ 25.)
By contrast, Plaintiff had significant experience in the
Mid-South region, where the DM position was located.
Booker Decl. ¶¶ 29-35.)
He had started as a Sales
16
(See
Representative in 1997 and was promoted to RBR in 2011.
(See
Booker Resume; Booker Dep. 32:10-15, ECF No. 31-2; Zurface Dep.
30:2-7.))
In that capacity, he worked closely with the District
Manager and managed some business accounts for customers in the
district.
(Booker Dep. 51:12-23)
Although he did not have
formal managerial responsibilities, he supervised interns and
Developmental Sales Representatives.
(Booker Dep. 106-108;
Booker Dec. ¶¶ 29-30.)
Again, although Dickinson and Plaintiff offered varying
strengths and weaknesses, viewing the evidence in the light most
favorable to Plaintiff, Plaintiff has satisfied the modest
burden of establishing a prima facie case.
3.
Pretext for Regional Account Lead and District
Manager Positions
The question of pretext “is ordinarily for the jury to
decide at trial rather than for the court to determine on a
motion for summary judgment.”
258 F.3d 62, 79 (2d Cir. 2001).
Holtz v. Rockefeller & Co., Inc.,
“[U]nless the defendants’
proffered nondiscriminatory reason is dispositive and forecloses
any issue of material fact, summary judgment is inappropriate.”
Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107,
124 (2d Cir. 2004) (internal quotation marks omitted).
Although
Defendant points to evidence in the record that supports its
contention that its decision not to promote Plaintiff was for a
17
non-discriminatory reason, Plaintiff maintains that Defendant’s
shifting explanations for its decisions not to promote him
indicate pretext.
(See ECF No. 31 at 12-15.)
Specifically, Plaintiff points to the fact that, with
respect to the decision not to promote him to the RAL position,
Mr. Colburn initially informed Plaintiff that he was not
selected because Plaintiff lacked “District Manager-type
experience.”
(Colburn Dep. 43:7-12.)
Plaintiff notes that
during litigation, however, Defendant has asserted “that Mr.
Killebrew was selected because of his experience with CPS, the
recommendation of CPS’ management team, and his diverse business
experience in the seed business” and that “[t]he selection of
Mr. Hensley casts further doubt on these reasons.”
at 12.)
(ECF No. 31
With respect to the decision not to promote him to the
DM position, Plaintiff points to the fact that he was initially
told that he lacked leadership experience and that Defendant has
since emphasized Mr. Dickinson’s “opportunity to observe”
Syngenta’s business operations in the Southern and Coastal CU’s
as a reason for Mr. Dickinson’s selection.
(Id. at 14.)
Evidence of an employer’s shifting explanations for its
employment decisions is sufficient to demonstrate pretext for
the purpose of summary judgment.
220-21.
See Cichewicz, 92 F. App’x at
Accordingly, viewing the evidence in the light most
favorable to Plaintiff, the evidence in the record is sufficient
18
for a reasonable jury to find that the asserted rationale for
the failures to promote Plaintiff were pretextual.
Summary
judgment on these claims would therefore be inappropriate.
B.
Constructive Discharge
“To constitute a constructive discharge, the employer must
deliberately create intolerable working conditions, as perceived
by a reasonable person, with the intention of forcing the
employee to quit[,] and the employee must actually quit.”
v. KUKA Welding Sys., 171 F.3d 1073, 1080 (6th Cir. 1999).
Moore
When
analyzing working conditions, relevant factors include:
(1) demotion; (2) reduction in salary; (3) reduction
in job responsibilities; (4) reassignment to menial or
degrading work; (5) reassignment to work under a
younger supervisor; (6) badgering, harassment, or
humiliation by the employer calculated to encourage
the employee’s resignation; or (7) offers of early
retirement or continued employment on terms less
favorable than the employee’s former status.
Logan v. Denny’s, Inc., 259 F.3d 558, 569 (6th Cir. 2001)
(quoting Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir.
2000)).
The Sixth Circuit has further held that “a plaintiff cannot
establish a constructive discharge by claiming, without more,
that his employer’s ‘failure to promote [him] to what [he]
perceives as [his] rightful position created intolerable work
conditions.
If [the court] were to accept this line of
reasoning, every person passed over for a purportedly deserved
19
promotion could bring an illegal discharge suit, and the
distinction between the two would be erased.’”
Gold v. FedEx
Freight E., Inc., 487 F.3d 1001, 1011 (6th Cir. 2007) (quoting
Hartsel v. Keys, 87 F.3d 795, 800 (6th Cir. 1996)).
Defendant argues that it is entitled to summary judgment on
Plaintiff’s constructive discharge claim because “[t]he Sixth
Circuit does not recognize a constructive discharge claim based
on failure to promote.
(ECF No. 28-1 at 13.)
Plaintiff argues that he was subject to “intolerable
working conditions” because he would be required to work with
and train the individual selected over him for the DM position.
(ECF No. 31 at 15-16.)
Plaintiff further argues that the “false
reasons for denying him the promotions” given by Defendant
evince an intolerable working environment.
(Id. at 16.)
Plaintiff asserts that these circumstances, together with the
lack of African-American DM’s, RAL’s, or RBR’s in the Southern
CU, eliminated any opportunity for advancement and constituted
constructive discharge.
(Id. at 15-16.)
The Court finds that Plaintiff has failed to present
sufficient evidence of constructive discharge.
Plaintiff
asserts that it would be “intolerable” to train the individual
selected for the DM position over him.
This responsibility,
however, was simply a result of circumstance.
Because the RBR
reported to the DM, Plaintiff would have to report to whomever
20
held the DM position.
Moreover, Plaintiff was informed that he
would need to support Dickinson in this role because Dickinson
had previously worked in another district of Syngenta.
Even if
Plaintiff had not applied for the DM position, he still would
have had to support a new DM who entered from another district.
This condition was not deliberately created by Syngenta with the
intention of forcing Plaintiff to quit.
It was simply a
consequence of Syngenta’s decision to select Dickinson for the
DM position.
Furthermore, Plaintiff’s argument that Defendant created
intolerable working conditions by giving him false reasons for
denying him the promotions is strictly related to his failure to
promote claim.
Plaintiff’s argument regarding Defendant’s
“shifting explanations” relates to the differences in
Defendant’s articulated explanations at the time of each
decision and at the time of litigation.
At the time that
Plaintiff resigned from Syngenta, however, Plaintiff had been
informed that (1) he was not selected for the RAL position
because he lacked District Manager-type experience (Booker Decl.
¶ 14) and (2) he was not selected for the DM position based on
leadership (id. ¶ 22).
There is no evidence indicating that
Plaintiff perceived these reasons to be false at the time of his
21
resignation. 2
Accordingly, Plaintiff’s argument that Defendant’s
allegedly false reasons for denying him the promotions created
intolerable working conditions is meritless.
Finally, Plaintiff fails to present sufficient evidence to
support his argument that the lack of African-Americans in
leadership at Syngenta created intolerable working conditions
and forced him to resign.
Although Plaintiff has submitted
proof that there was only one management personnel within the
sales organization who was African-American (Booker Dep. 125:715; White Dep. 77:22-78:1), he has not submitted any evidence
regarding the number of African-American applicants for these
positions, or even the total number of African-American
employees at Syngenta and specifically in the Southern CU.
Additionally, Plaintiff has conceded that he did not experience
racial harassment during his employment with Syngenta.
¶ 33; Resp. to SUF ¶ 33.)
(SUF
Moreover, there is no evidence that
these conditions were “deliberately created” with the purpose of
forcing Plaintiff to resign.
Accordingly, there is insufficient evidence for a
reasonable jury to find that Syngenta deliberately created
intolerable working conditions, as perceived by a reasonable
2
Plaintiff asserts that Mr. Boden informed Plaintiff that he needed to
take specific courses, which Plaintiff had already taken. At that same
meeting, however, Mr. Boden retracted his statement regarding the specific
courses and reasserted that the decision was based “around leadership.”
(Boden Dep. 27:22-28:22.)
22
person, with the intention of forcing Plaintiff to quit.
Despite Plaintiff’s assertions, the record reflects that he was
not subject to “intolerable working conditions” deliberately
created by Defendant.
Even viewing the facts in the light most favorable to
Plaintiff, Plaintiff cannot establish that he was constructively
discharged, and Defendant is entitled to summary judgment on
this claim.
C.
Back Pay, Front Pay, and Punitive Damages
Defendant argues that it is entitled to summary judgment on
Plaintiff’s back pay and front pay claims because “an employee
cannot recover back pay or front pay after voluntarily resigning
[his] employment.”
(ECF No. 28-1 at 14 (citing Lulaj v.
Wackenhut Corp., 512 F.3d 760, 767 (6th Cir. 2008)).)
Defendant
further argues that it is entitled to summary judgment on
Plaintiff’s punitive damages claim for two reasons: first,
because Plaintiff “concedes that he was not subject to
intolerable racial harassment and that none of the
decisionmakers at issue made any racist remarks” (id.); and
second, because Defendant “engaged in good-faith efforts to
comply with Title VII” (id.).
1.
Back Pay and Front Pay
“To place the plaintiff in the position []he would have
occupied had the discrimination not taken place, a successful
23
plaintiff in an employment discrimination case is generally
entitled to an award of back pay from the date of discharge
through the date of judgment.”
Gaddy v. Radio Sys. Corp., 59 F.
Supp. 3d 857, 861 (E.D. Tenn. 2014).
“[I]n order for an
employee to recover back pay for lost wages beyond the date of
his retirement or resignation, the evidence must establish that
the employer constructively discharged the employee.”
Lulaj,
512 F.3d at 767 (alteration in original) (quoting Jurgens v.
EEOC, 903 F.2d 386, 389 (5th Cir. 1990)) (upholding the district
court’s reduction of the back pay award to “the difference in
pay between the two positions over the period between
[plaintiff’s] denied promotion and her voluntary departure”).
Where reinstatement is not appropriate, Title VII provides
for front pay.
See Pollard v. E.I. du Pont de Nemours & Co.,
532 U.S. 843, 850 (2001).
“Front pay is . . . simply
compensation for the post-judgment effects of past
discrimination.”
Shore v. Fed. Express Corp., 777 F.2d 1155,
1158-59 (6th Cir. 1985).
“In a promotion case, the period of
liability will end if plaintiff voluntarily quits his employment
with the defendant absent a constructive discharge.”
Lulaj, 512
F.3d at 767 (quoting EEOC v. Monarch Mach. Tool Co., 737 F.2d
1444, 1453 (6th Cir. 1980)).
Defendant argues that it is entitled to summary judgment on
Plaintiff’s back pay and front pay claims because “Booker’s
24
resignation precludes any award of front or pay back after
December 30, 2013.”
(ECF No. 28-1 at 14.)
Defendant asserts
that “Hensley and Dickinson did not start in the RAL and
District Manager positions, respectively, until January 1, 2014,
two days after Booker’s resignation . . . .”
The Court agrees with Defendant.
(Id.)
The law is well-
established that a plaintiff who voluntarily resigns is not
entitled to back pay or front pay beyond the date of his
resignation.
See Lulaj, 512 F.3d at 767.
It is undisputed that
Plaintiff’s last day of employment was December 30, 2013, and
Dickinson and Hensley started their new positions after January
1, 2014.
(SUF ¶ 32; Resp. to SUF ¶ 32.)
Under these facts, no
reasonable jury could find that Plaintiff is entitled to back
pay or front pay.
As discussed above, Plaintiff’s constructive
discharge claim fails as a matter of law.
Accordingly, the law
precludes an award of back pay or front pay after the date of
his resignation.
Because Plaintiff would only be entitled to
back pay or front pay beginning on the date that the promotions
took effect, and that date is after the date of his resignation,
he cannot recover back pay or front pay.
Accordingly, Defendant is entitled to judgment as a matter
of law on Plaintiff’s back pay and front pay claims.
25
2.
Punitive Damages
Punitive damages are available under Title IV if the
plaintiff can “demonstrate[] that the [defendant] engaged in a
discriminatory practice or discriminatory practices with malice
or with reckless indifference to the federally protected rights
of an aggrieved individual.”
42 U.S.C. § 1981a(b)(1).
“[A]n
employer must at least discriminate in the face of a perceived
risk that its actions will violate federal law to be liable in
punitive damages.”
Kolstad v. Am. Dental Ass’n, 527 U.S. 526,
536 (1999).
The employer may also avoid punitive damages by
demonstrating that it made good faith efforts to comply with
anti-discrimination laws.
Id. at 544-45.
This defense
“accomplishes Title VII’s objective of motivating employers to
detect and deter Title VII violations.”
quotation marks and brackets omitted).
Id. at 545-46 (internal
“With this in mind,
courts interpreting this criteria since Kolstad have focused
both on whether the defendant employer had a written []
harassment policy and whether the employer effectively
publicized and enforced its policy.”
West v. Tyson Foods, Inc.,
374 F. App’x 624, 638 (6th Cir. 2010) (quoting Parker v. Gen.
Extrusions, Inc., 491 F.3d 596, 602-03 (6th Cir. 2007)).
Defendant argues that “Booker has made no allegations that
would entitle him to punitive damages.”
26
(ECF No. 28-1 at 14.)
Defendant therefore argues that it is entitled to summary
judgment for two reasons: first, Defendant argues that Plaintiff
has not established that Defendant engaged in discriminatory
practices with malice or with reckless indifference to his
rights (id.); and, second, Defendant argues that it “is fully
committed to the principles of equal opportunity employment” and
is entitled to “the good-faith defense enunciated in Kolstad”
(id. at 15).
The Court finds Defendant’s arguments persuasive.
With
respect to Defendant’s first argument -- that Plaintiff can
point to no evidence that Defendant acted maliciously or with
reckless indifference in making the promotional decisions -- the
Court agrees.
Plaintiff concedes that he did not hear any
racist remarks made by any of the decisionmakers in this case.
(Resp. to SUF ¶ 33.)
He further concedes that he was not
subjected to racial harassment.
(Id.)
Although Plaintiff
argues that he was subjected to racism generally, he puts forth
no evidence to support this contention.
Instead, the record
reflects that Mr. Colburn and Mr. Boden encouraged Plaintiff to
apply for the RAL position (Booker Dep. 130:25-131:3, 131:22-24,
134:9-11; SUF ¶¶ 10, 11; Resp. to SUF ¶¶ 10, 11), and that Mr.
Boden encouraged Plaintiff to apply for other promotional
opportunities in other areas of the company at their meeting on
November 15, 2013.
(Booker Dep. 203:13-16, 204:15-20; SUF ¶ 31;
27
Resp. to SUF ¶ 31.)
There is no evidence that Defendant acted
maliciously or with reckless indifference to Plaintiff’s rights
in making employment decisions; rather, the evidence indicates
that Defendant valued Plaintiff as an employee and encouraged
him to look for other promotional opportunities going forward.
The Court also agrees with Defendant’s argument that it is
entitled to Kolstad’s good-faith defense.
It is undisputed that
Defendant maintained an Equal Opportunity policy, which strictly
prohibits discrimination on the basis of any protected category,
including race.
(White Decl. ¶ 3; Booker Dep. 209:14-210:6;
Booker Dep. Ex. 19, ECF No. 28-5 at PageID 211; SUF ¶ 2; Resp.
to SUF ¶ 2.)
It is further undisputed that Defendant trains its
employees regarding its anti-discrimination policy, that
Defendant makes the policy available to new employees through
the company intranet, and that Plaintiff received a copy of the
policy and had knowledge of its contents.
¶ 2; Resp. to SUF ¶ 2.)
(White Decl. ¶ 3; SUF
There is therefore no genuine dispute
of fact that Defendant engaged in good-faith efforts to comply
with Title VII.
Accordingly, Defendant is entitled to summary
judgment on this claim.
IV.
CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary
Judgment (ECF No. 28) is GRANTED IN PART as to the constructive
28
discharge, front pay, back pay, and punitive damages claims and
DENIED IN PART as to the failure to promote claims.
IT IS SO ORDERED, this 8th day of October, 2015.
/s/ Jon P. McCalla
JON P. McCALLA
UNITED STATES DISTRICT JUDGE
29
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