Juneau, et al v. Quality Christmas Tree, Ltd
Filing
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MEMORANDUM OPINION AND ORDER GRANTING 12 MOTION for Summary Judgment .(Signed by Judge Gray H. Miller) Parties notified.(rkonieczny, 4)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
EILEEN JUNEAU , et al.,
Plaintiffs,
v.
QUALITY CHRISTMAS TREE, LTD .,
Defendant.
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CIVIL ACTION H-13-2535
MEMORANDUM OPINION & ORDER
Pending before the court is defendant Quality Christmas Tree, Ltd.’s (the “defendant”)
motion for summary judgment. Dkt. 12. Defendant moves for summary judgment on the Age
Discrimination in Employment Act (“ADEA”) claims filed by plaintiffs Eileen Juneau (“Juneau”)
and Loretta Gould (“Gould”) (collectively, the “plaintiffs”). Id. Upon consideration of the briefing,
the summary-judgment record, and applicable law, defendant’s motion (Dkt. 12) is GRANTED.
I. BACKGROUND
A. Factual Background
After reviewing resumes on a job website, Matt Hooper (“Hooper”), the defendant’s owner
and president, called Juneau in early March 2007 to interview for an open store merchandiser
position. Dkt. 12, Ex. A (Hooper declaration) at 1 ¶ 4; Dkt. 12, Ex. D (Baxmann declaration) at 1
¶ 4. Because she graduated from high school in 1971, Hooper assumed that Juneau was about his
age (late 50s at the time). Dkt. 12, Ex. A at 1 ¶ 4; Dkt. 12, Ex. D at 1 ¶ 4. And based on her
experience with Target, he believed that she would be a good fit as a merchandiser. Dkt. 12, Ex. A
at 1 ¶ 4. A merchandiser travels to the defendant’s various stores, organizes the dry goods section
of the store, and maintains each store’s overall appearance. Id. at 1 ¶ 3. Hooper hired Juneau, and
she started with the defendant on March 5, 2007. Id.; Dkt. 12, Ex. D at 1 ¶ 4; Dkt. 1, Ex. A (original
petition) at 2 ¶ 9. Thereafter Mark Baxmann (“Baxmann”), Juneau’s direct supervisor and
defendant’s general manager, called Juneau each Sunday evening and told her the first two stores
he wanted her to cover the following Monday. Dkt. 12, Ex. B (Juneau dep.) at 27:13–24.
On October 26, 2007, Juneau recommended Gould, her friend, for a second merchandiser
position with the defendant. Dkt. 12, Ex. D (Baxmann declaration) at 2 ¶ 7; id., Ex. D-1 (Juneau
recommendation letter). Juneau’s written recommendation stated that “[s]he [Gould] is around my
age and [her] children are all grown.” Dkt. 12, Ex. D-1. Hooper called Gould in for an interview
and hired her to start work on November 12, 2007. Dkt. 12, Ex. A at 2 ¶ 6; Dkt. 12, Ex. C (Gould
dep.) at 13:23–14:4. Gould and Juneau’s job duties as merchandisers were identical, and they each
had approximately 10 stores assigned to them in the Houston region. Id. at 35–36.
During the early stages of their employment, Hooper generally believed that Juneau and
Gould were satisfactory employees. Dkt. 12, Ex. A at 2 ¶ 7. However, his opinion reportedly
changed in the six to nine months leading to their termination. Id. He did not feel that the
merchandise in the store appeared as he wanted, and he believed that plaintiffs had become
complacent in their job performance. Id. Hooper consulted with Baxmann and decided to terminate
plaintiffs’ employment in September 2010. Id. at 2 ¶ 8; Dkt. 12, Ex. D at 2 ¶ 9. Hooper and
Baxmann stated that plaintiffs were told that their positions were being eliminated in order to make
it easier for them to collect unemployment benefits. Dkt. 12, Ex. A at 2 ¶ 9; Dkt. 12, Ex. D at 2 ¶ 11.
B. Procedural Background
Plaintiffs filed EEOC charges of discrimination and thereafter filed this suit alleging ADEA
violations. Dkt. 1, Ex. A at 3 ¶ 12. After the discovery period concluded, defendant moved for
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summary judgment. Dkt. 12. Defendant argues that plaintiffs lack sufficient evidence as to whether
the reasons for their dismissal are pretextual. Id. at 3. Plaintiffs respond that defendants’ purported
justification for their termination is inconsistent with previous statements to the EEOC and not
worthy of credence. Dkt. 13 at 3–4. The motion is now ripe for decision.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is proper if “the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to a judgment as a matter of law.” FED . R. CIV . P. 56(a); see
also Carrizales v. State Farm Lloyds, 518 F.3d 343, 345 (5th Cir. 2008). The moving party bears
the initial burden of informing the court of all evidence, if any, demonstrating the absence of a
genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548
(1986). Only when the moving party has met its initial burden does the burden shift to the nonmoving party to demonstrate that there is a genuine dispute of material fact. Id. at 322. A dispute
is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505 (1986); Cooper Tire
& Rubber Co. v. Farese, 423 F.3d 446, 454 (5th Cir. 2005). A dispute is “material” if its resolution
could affect the outcome of the action. Anderson, 477 U.S. at 248.
III. ANALYSIS
A.
Background Law
Under the ADEA, an employer may not “discharge any individual or otherwise discriminate
against any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1); see Rachid v. Jack In the
Box, Inc., 376 F.3d 305, 309 (5th Cir. 2004). In order to proceed to trial in an age discrimination
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case with circumstantial evidence, the court engages in the familiar McDonnell Douglas three-step
analysis. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04, 93 S. Ct. 1817 (1973); Bauer
v. Albermarle Corp., 169 F.3d 962, 966 (5th Cir. 1999). First, a plaintiff must show a genuine
dispute of material fact as to all four elements of a prima facie case of discrimination. Willis v.
Coca-Cola Enters., Inc., 445 F.3d 413, 420 (5th Cir. 2006). To establish a prima facie case, the
plaintiff must show (1) she is a member of a protected class; (2) she was qualified for her position;
(3) she suffered an adverse employment action; and (4) others similarly situated were treated more
favorably, she was replaced by someone younger, or she was otherwise discharged because of her
age and not replaced. Bauer, 169 F.3d at 966. Once the plaintiff makes this showing, the burden
of production shifts to the defendant-employer to identify a legitimate, non-discriminatory reason
for the adverse employment action. Johnson v. Louisiana, 351 F.3d 616, 621 (5th Cir. 2003). The
defendant’s burden in this second step is met by producing evidence which, “taken as a true, would
permit the conclusion that there was a nondiscriminatory reason for the adverse action.” St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S. Ct. 2742 (1993) (emphasis in original). Finally, at
the third stage of the McDonnell Douglas framework, the plaintiff must raise a genuine dispute of
material fact that the proffered non-discriminatory reason is not true and is instead a pretext for
intentional discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142–43, 120
S. Ct. 2097 (2000); Willis, 445 F.3d at 420.
B. Application of the Law to the Facts
The defendant does not dispute, for purposes of the summary-judgment analysis, that
plaintiffs have shown a prima facie case of discrimination. Dkt. 12 at 9. Defendant has asserted as
its legitimate, non-discriminatory reason that plaintiffs were terminated for poor performance but
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told that their positions were eliminated so that they could collect unemployment insurance
payments. Id. at 10–11; see also Dkt. 12, Ex. A at 2 ¶¶ 7–9; Dkt. 12 Ex. D at 2 ¶¶ 9–11.1 Thus, the
dispute on summary judgment in this case centers around McDonnell Douglas’s pretext stage.
A plaintiff can establish pretext either through evidence of disparate treatment or by showing
that the employer’s reason for the adverse action is not true. Laxton v. Gap Inc., 333 F.3d 572, 578
(5th Cir. 2003); Reeves, 530 U.S. at 143. “Evidence demonstrating that the employer’s explanation
is false or unworthy of credence, taken together with the plaintiff’s prima facie case, is likely to
support an inference of discrimination even without further evidence of defendant’s true motive.”
Laxton, 333 F.3d at 578. Again, to survive summary judgment, the plaintiff’s evidence must be
sufficient to raise a genuine dispute of material fact that the defendant’s reason is merely pretextual
and masks a discriminatory purpose. Willis, 445 F.3d at 420.
Plaintiffs present two general categories of pretext evidence: (1) plaintiffs’ deposition
testimony that they were initially told that their jobs were being eliminated, not that they were
terminated for poor performance; and (2) Hooper and Baxmann’s documents and statements
provided during the EEOC investigation that tend to show, according to plaintiffs, that the
defendant’s current non-discriminatory reason is not credible. Dkt. 13 at 6–11.
First, Juneau and Gould testified that they were told at the time of their termination that their
jobs were being eliminated. Dkt. 12, Ex. B at 21:2–5; Dkt. 12, Ex. C at 28:19–22. Plaintiffs contend
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Plaintiffs argue that the defendant did not articulate a legitimate, non-discriminatory reason for its adverse
employment actions due to certain inconsistencies in Hooper and Baxmann’s declarations. Dkt. 13 at 3. But the
employer’s burden at the second stage “is only one of production, not persuasion, involving no credibility assessments.”
McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007). In other words, as long as the defendant presents an
explanation that, if taken as true, could defeat the plaintiffs’ discrimination claims, the presumption of discrimination
drops out and the plaintiffs bear the ultimate burden to prove that the adverse actions were motivated by an unlawful,
discriminatory purpose. Hicks, 509 U.S. at 506. Here, the defendant presented admissible evidence in the form of
Hooper and Baxmann’s declarations that meets its burden of production, and plaintiffs’ contentions regarding the
explanation’s believability is only relevant to the third stage of the analysis, i.e., whether the explanation is pretextual.
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that this creates a fact issue because the defendant’s proffered non-discriminatory reason is that
plaintiffs had become complacent in their job performance. Dkt. 13 at 6. This contention, however,
is incomplete and incorrect. Defendant has already admitted that plaintiffs were told that their jobs
were being eliminated to permit them to apply for unemployment benefits, and thus the plaintiffs’
testimony merely confirms, rather than vitiates, defendant’s explanation.
Second, regarding the evidence provided to the EEOC, particularly the investigator’s notes,
the plaintiffs argue that a fact issue arises due to inconsistencies in Hooper and Baxmann’s prior
statements. Id. at 6–9. In this circuit, however, while EEOC findings and reports are generally
admissible evidence, documents in the EEOC file are not admissible absent an independent hearsay
exception. FED . R. EVID . 803(8)(A)(iii) (delineating a hearsay exception for the “factual findings
from a legally authorized investigation”); McClure v. Mexia Indep. Sch. Dist., 750 F.2d 396, 400 (5th
Cir. 1985) (“EEOC determinations and findings of fact, although not binding on the trier of fact, are
admissible as evidence in civil proceedings . . . . However, neither under the [circuit] precedents nor
under Rule [803(8)(A)(iii)] is the entire EEOC file admissible”); see also Cruz v. Aramark Servs.,
Inc., 213 F. App’x 329, 332 (5th Cir. 2007) (holding that otherwise inadmissible EEOC statements
and documents are only considered if they satisfy a hearsay exception). The EEOC investigator’s
notes are out-of-court statements offered for the truth of the matter asserted, FED . R. EVID . 801(c),
namely that the investigator accurately recorded Hooper and Baxmann’s initial explanations for
plaintiffs’ terminations. Plaintiffs have not argued any recognized hearsay objection for admission
of the EEOC documents, nor can the court discern any in its review of the law and record.
Accordingly, defendant is correct that the notes are inadmissible hearsay and thus insufficient to
create a genuine dispute of material fact on the question of pretext.
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IV.
CONCLUSION
In sum, plaintiffs have not offered any admissible evidence to survive summary judgment
as to their ADEA claims against the defendant. After reviewing the parties’ arguments, the
summary-judgment record, and the applicable law, defendant’s motion for summary judgment (Dkt.
12) is GRANTED. Plaintiffs’ claims against defendant are DISMISSED WITH PREJUDICE.
The court will enter a separate final judgment consistent with this opinion.
It is so ORDERED.
Signed at Houston, Texas on Jul 30, 2014.
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Gray H. Miller
United States District Judge
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