BRIAN DELAPAZ аnd, MICHELLE DELAPAZ, Plaintiffs, v. MAGNIFIQUE PARFUMES and COSMETICS, INC., d/b/a PERFUMANIA, and VICTORIA BURTON, in her individual capacity, Defendants.
Cause No. 4:09-CV-026-JD
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION AT LAFAYETTE
September 26, 2012
Plaintiffs Brian DeLapaz (“DeLapaz“) and Michelle DeLapaz sued defendants Magnifique Parfumes and Cosmetics, Inc, d/b/a Perfumania (“Magnifique“) and Victoria Burton (“Burton“) in a three-count complaint. [DE 29]. In Count 1, DeLapaz alleges that Magnifique unlawfully terminated his employment for the purpose of preventing him from receiving ERISA benefits, in violation of
Magnifique hired DeLapaz to serve as the manager of its Lafayette, Indiana, retail store in August, 2008. [DE 29 ¶ 9]. As manager of thе store, DeLapaz was ultimately responsible for overseeing all activities at the store. [DE 50-1 at 5]. DeLapaz reported to Burton, who served as the acting district manager for the region that contained the Lafayette store from November, 2008, (shortly after DeLapaz was hired) until March, 2009. [DE 50-1 at 4; DE 50-2 at 5].
The chain of events that led to DeLapaz‘s separation from Magnifique began on December 24, 2008. DeLapaz was scheduled to manage the Lafayette store from open to close, but he did not work all of his scheduled hours. Instead, he took a two-hour break without approval to watch Santa Claus lift off in a helicopter. [DE 50-1 at 8]. The next day DeLapaz was scheduled to work was December 26, 2008, but he never made it to the store. Instead, that afternoon, DeLapaz sent an e-mail message to Burton stating that he had injured his foot and would be seeing his physician on Monday or Tuesday of the following week. [DE 50-3 at 5]. DeLapaz informed Burton that he had slipped while leaving his home for work. The slip re-aggravated a foot injury DeLapaz had originally sustained nine years earlier, and which had required extensive medical attention. [DE 50-1 at 6].
DeLapaz‘s e-mail to Burton began a series of misunderstandings between the two. DeLapaz asked Burton to put in sick hours for him to cover his shifts until he was able to see a doctor. [DE 50-3 at 5]. Burton responded that she could not do that; putting in sick days had to be done at DeLapaz‘s store on his payroll, and Burton was off-site. She told DeLapaz he needed to get his sick
Despite committing to meeting with Burton at the store on Tuesday, December 30, 2008, DeLapaz went straight to the store from his doctor‘s appointment on Monday, December 29, 2008. [DE 50-1 at 8]. While there, he dropped off his keys to the store, and he carried out his personal belongings, which included some medications and medical equipment as well as more casual items like a microwave. [DE 50-1 at 8; DE 54-5 at 2]. He told the employee on duty at the store that he would need an operation on his foot, and he left her with a doctor‘s note. [DE 50-1 at 8]. With that, he left. He did not meet with Burton on Tuesday. He did not speak to Burton at any time thereafter.
On Wednesday, December 31, 2008, Burton sent an e-mail to Wendy Mahle, Magnifique‘s human resources director, asking how to proceed with respect to DeLapaz. She asked whether his conduct constituted a voluntary resignation. [DE 50-2 at 16, 18; DE 54-5 at 2-3]. Mahle told Burton
STANDARD OF REVIEW
Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.
In determining whether a genuine issue of material fact exists, this court must construe all facts in the light most favorable to the non-moving party, as well as draw all reasonable and
DISCUSSION
Count 1: Unlawful Termination under ERISA
The defendants have argued two grounds for summary judgment on Count 1, alleging unlawful termination under ERISA. First, they argue that the relief sought by the plaintiffs is unavailable under the statute, and that the claim must be dismissed as a result. Second, they argue that the claim fails because DeLapaz cannot show that the stated reason for his separation from the company was a pretext. The court disagrees with the former argument, but agrees with the latter. The defendants are entitled to summary judgment on Count 1.
A. Requested Relief Issue
The first argument Magnifique raises in support of summary judgment on Count 1 pertains to justiciability, rather than to the merits. In Cоunt 1, DeLapaz alleges that Magnifique discharged him from his employment for the purpose of preventing him from receiving ERISA benefits, in violation of
In this case, DeLapaz laid out the relief he seeks in both specific and general terms:
As a result of DeLapaz‘s termination of employment in violation of Section 510 of ERISA, Plaintiff is entitled to “appropriate equitable relief[“] pursuant to [§ 1132(a)(3)]. Such “appropriate equitable relief” includes an entitlement to lost benefits, back pay, reinstatement or front pay in lieu of reinstatement and such other equitable restitution, injunctive and remedial relief available pursuant to ERISA.
[DE 29 at 3]. Magnifique argues that DeLapaz seeks only legal damages which he cannot recover, and that his claim must therefore be dismissed. Magnifique‘s theory is that a claim for relief not available under the statute is outside the court‘s jurisdiction. That theory does find some historical support in the case law. See, e.g., Crosby v. Bowater Inc. Ret. Plan for Salaried Emps. of Great N. Paper, Inc., 382 F.3d 587 (6th Cir. 2004) (finding a lack of subject matter jurisdiction where
After Newpage, the best way of looking at the issue may be as one of justiciability. “Even
The initial question is whether the remedies DeLapaz seeks are considered legal or equitable relief. In Sereboff v. Mid. Atl. Med. Servs., 547 U.S. 356 (2006), and Great-West, 534 U.S. 204, thе Supreme Court made clear that the court‘s primary consideration should be whether the category of relief requested was historically available in equity. Other cases, from the Supreme Court and elsewhere, have answered that question with respect to particular forms of damages. Compensatory damages, for example, are quintessential legal relief, and they are not available under
Of course, that still leaves the plaintiff‘s request for “reinstatement or front pay in lieu of reinstatement,” as well as his generic request for all equitable relief available under the statute. Reinstatement is clearly a form of equitable, injunctive relief. See Lorillard v. Pons, 434 U.S. 575, 583 n. 11 (1978) (noting thаt it is “clear that judgments compelling employment, reinstatement, or
Thus, neither “lost benefits, back pay, reinstatement or front pay in lieu of reinstatement”
In short, Magnifique‘s argument with respect to the relief requested does not entitle it to summary judgment, or to a dismissal of Count 1. While it is true that DeLapaz cannot recover any compensatory damages or obtain an order for reinstatement or its financial equivalent, other appropriate equitable relief may be available. That is enough to keep his сlaim alive. The court therefore moves on to the merits.
DeLapaz has elected to try to make a prima facie case for unlawful termination under the indirect, burden-shifting method. [DE 54 at 8]. The plaintiff bears the burden of showing “that the reason he was terminated was to interfere with his rights under ERISA.” Fairchild v. Forma Scientific, Inc., 147 F.3d 567, 576 (7th Cir. 1998). He must begin by making his prima facie case. He must show “‘that he (1) belongs to the protected class; (2) was qualified for his job position; and (3) was discharged or denied employment under circumstances that provide some basis for believing that the prohibited intent to retaliate’ or to prevent the use of benеfits was present.” Isbell v. Allstate Ins. Co., 418 F.3d 788, 796 (7th Cir. 2005) (quoting Grottkau v. Sky Climber, Inc., 79 F.3d 70, 73 (7th Cir. 1996)). In a § 1140 case like this one, however, the court can skip ahead in the analysis. It “need not ‘determine whether a plaintiff has established a prima facie case where a defendant has advanced a legitimate, nondiscriminatory reason for its action.‘” Id. “Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant.” Lindemann v. Mobil Oil Corp., 141 F.3d 290, 296 (7th Cir. 1988) (internal citations omitted). Magnifique has produced a legitimate, non-discriminatory reason for its “termination” of the рlaintiff (if it can even be called that, given the evident confusion surrounding the whole affair): it thought DeLapaz quit. Accordingly, the court skips over the prima facie case to consider whether or not DeLapaz has carried his burden of showing that Magnifique‘s stated reason for their separation is a pretext.
When an employer meets their burden of producing a legitimate, non-discriminatory reason for its action, the burden shifts back to the employee to show that the stated reason is pretextual. Gates v. Caterpillar, Inc., 513 F.3d 680, 690 (7th Cir. 2008). Pretext is not established when the
DeLapaz has failed to carry his burden. The court notes that he has successfully created an issue of material fact as to whether he actually did quit, or intended to quit, when he stopped appearing at work, removed his belongings (microwave and medical devices), and returned his key to the store. But the question at the pretext stage is not whether he has created a genuine issue of
First, he points to “suspicious timing.” Magnifique аnd DeLapaz parted ways shortly after DeLapaz informed Burton that he re-injured his foot and would need to see a doctor. That is circumstantial evidence, DeLapaz argues, that Magnifique concocted the resignation story as a cover-up for terminating him before his benefits might have come due. But suspicious timing, without more, is insufficient to show pretext. Harper, 687 F.3d at 313.
Second, DeLapaz emphasizes a chain of emails between human resources employees. In it, a junior human resources employee named Gail Vick notified Wendy Mahle, Perfumania‘s human resources directоr, that DeLapaz was applying for his STD (short-term disability), and asked if she had to give it to him. Mahle responded, “He quit. He doesn‘t [have] STD.” Vick replied, “[C]ool happy new year to us!!” DeLapaz argues that this email chain amounts to a “celebration,” but does not explain how it tends to show pretext. There are two speakers in the email chain. No reasonable person could conclude, based on her email, that Wendy Mahle was lying when she said DeLapaz quit. She may have been wrong, but there simply is no evidence here that she did not honestly hold that belief. On the other hand, it is true that Gail Vick‘s remark could be seen as “celebratory,” when the court draws all inferences in favor of DeLapaz as the nonmovant. But not every stray remark by every employee is relevant to the pretext analysis. See Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 491 (7th Cir. 2007). For a particular remark to provide an inference of discrimination - and therefore pretext - it must be “(1) made by the decision maker, (2) around the time of the decision, and (3) in reference to the adverse employment action.” Id. (citing Merillat v. Metal Spinners, 470 F.3d 685, 694 (7th Cir. 2006)). The “celebratory” remark here was made by Gail Vick, and no
Third, Delapaz produced a “separation form” filled out by a Magnifique employee on Januаry 2, 2009, shortly after he was separated from the company. [DE 54-2]. There is no signature line, but whoever completed the form was not careful about following instructions. The form instructs the individual completing it to “select one reason for separation” from any of three categories: resignation; discharge; or lay off. The individual completing the form nonetheless selected six reasons for DeLapaz‘s separation, including “job abandonment” and “other” from the resignation category, and “unsatisfactory performance,” “insubordination,” “violation of company policy” and “failure to work scheduled hours” from the discharge category. This is certainly indicative of some confusion, or laziness, on the part of a Magnifique employee, but even drawing all inferences in DeLapaz‘s favor it is difficult to see how it could prove that Magnifique did not actually believe he abandoned his job, let alone prove that Magnifique‘s statement to that effect is a cover for an illegal motive. At most, it could be seen as evidence that DeLapaz was “discharged” for job abandonment, as opposed to “quitting” through job abandonment, but neither of those paths leads to recovery for DeLapaz. His burden is to show that Magnifique‘s stated reason for discharge was a pretext for terminating him with the specific intent to deprive him of ERISA benefits, not that
Fourth, DeLapaz alleges that Burton made a statement at an unemployment compensation proceeding subsequent to his separation from Magnifique claiming that he took a substantial sum of money from Magnifique. [DE 54-4 ¶ 5]. It is undisputed that Burton‘s statement was inaccurate. But, like Gail Vick‘s “celebratory” email, it was a “stray remark” not material to the pretext analysis. See Hemsworth, 476 F.3d at 491. Burton was not the decision maker, and she made the remark some time (roughly thirteen weeks) after the decision was made. [DE 50-1 at 5]. Beyond a single affidavit sentence confirming that Burton made the remark, no context has been presented to the court, either. [DE 54-4 ¶ 5]. As a result, the court cannot say at all whether the remark was made in reference to DeLapaz‘s separation from the company or in reference to something else, such as his financial situation. It is DeLapaz‘s burden to make those connections - to show how these stray remarks can support a finding of pretext. That burden is not discharged simply by showing that at some point, some time after the decision was made, an actor who was not the decision maker said something false.
In short, DeLapaz has failed to carry his burden of showing pretext by a preponderance of the evidence. His evidence that Magnifique‘s explanation of the separation - that he quit - is a lie amounts to suspicious timing, a separation report that shows confusion but in no way supports a finding that a lie was told, and a pair of immaterial remarks by employees who did not make the decision to terminate him. Burton‘s remark, in particular, pertained only to missing money. But the reason Magnifique has put forth for its separation from DeLapaz is that he quit, not that he took money from the company. Burton‘s allegation that DeLapaz took money from the company, made thirteen weeks after his separation from the company in an unrelated proceeding, simply is not
Counts 2 and 3: Defamation and Loss of Consortium
This case came to the court under its federal question jurisdiction, and the parties are not completely diverse. [DE 29 ¶ 8]. At this point, Count 1, the only claim over which this court had original jurisdiction, has been resolved. Count 1 was also the only independent claim against Magnifique; Count 2 alleges defamation against Burton, and Count 3 is a derivative claim against both defendants. Without Count 1 as a hook against Magnifique, the Count 3 derivative claim against Magnifique cannot stand. Accordingly, the case has been reduced to Count 2, alleging defamation against Burton, and Count 3, a derivative loss of consortium claim against Burton. To summarize, that means this case now consists of an Indiana plaintiff suing an Indiana defendant for defamation and loss of consortium, both quintessential state law claims. According to
- the claim raises a novel or complex issue of State law,
- the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
- the district court has dismissed all claims over which it has original jurisdiction, or
- in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
CONCLUSION
In conclusion, summary judgment is GRANTED with respect to Count 1. Counts 2 and 3 are DISMISSED WITHOUT PREJUDICE. The clerk is instructed to close the case.
SO ORDERED.
ENTERED: September 26, 2012
/s/ JON E. DEGUILIO
Judge
United States District Court