Thomas v. Dillard Department Stores, Inc.

Plaintiff-Appellant, THOMAS, Sue E. STORES, DEPARTMENT

DILLARD Corporation

INC., a Delaware Defendant-Appellee. Fortune, Beach, Atlantic Thomas Scott FL, plaintiff-appellant.

No. 96-2966. DC, Ami- Gregory, Washington, Robert J. Appeals, States Court United cus, for EEOC. Circuit. Eleventh McAdams, Johnson, P. Smith John Lorien July Ward, FL, Carlton, Fields, Tampa, for defen- dant-appellee. HATCHETT, Judge,

Before Chief BARKETT, *, Judge, and Circuit PROPST Judge. District Senior BARKETT, Judge: Circuit appeals E. from the district granting judgment order as a matter court’s Department Dillard of law the defendant Stores, alleges Inc. Thomas her with Dillard from age in violation of the ADEA. because argues that the district court erred of law that she as matter actually from was not “terminated” employer removed her from ment where her subsequently ap- present position peared to offer her an alternative Because we find that the of whether terminated should have jury, we vacate the been submitted judgment. district court’s I. BACKGROUND charge June Thomas filed On age discrimination with Jacksonville Commission, Opportunity Equal alleging she had been terminated from (ASM) Dillard an Area Sales Thereafter, May age. because alleg- against filed suit age willful violation * Propst, ting by designation. U.S. B. Senior District Honorable Robert Alabama, Judge sit- for the Northern District Act, verdict, Age Employment contrary Discrimination in granting the of the motion[ ] §§ proper. hand, as amended. is U.S.C. On the if there is opposed substantial evidence to the mo- trial, April Shortly the before ], is, quality tion[ evidence of such and stipulation parties regarding into a entered weight reasonable and fair-minded jury the to be and issues impartial men in the of judgment exercise damages the she Thomas would recover if conclusions, reach different the mo- jury partic- favorable verdict.1 In received a tion should be denied. ular, stipulated that Walls, 1 F.3d at pursuing discharge theory. (reversing a constructive the district judgment court’s jury the threshold as a matter of the law the case). in in defendant an ADEA was whether Thomas fact fired been merely resigned being or had demot- Appellant contends the district court chief, plaintiffs ed.2 At the close of in case holding in erred as a matter of law that there judgment defendant moved for as a matter was no actual termination because pursuant of law Fed.R.Civ.P. 50. subsequently offered an alternative granted district court defendant’s motion organization. joined Appellant, by Equal the law, the of “[a]s basis a matter where Employment Opportunity Commission employee the is in offered an alternative (EEOC) curiae, argues as amicus that under organization, express the is of the facts issue of whether she legally ... [T]here nation. is no sufficient received bona-fide offer of alternative em- evidentiary jury basis for a reasonable ployment was, fired, reality, in jury ais express find that there was an of termination question. Appellant argue and the EEOC employment.” the Plaintiffs employee as to whether an Thereafter, terminated under ADEA timely is filed a Rule fact-sensitive, 59(e) automatically cannot be fore- motion to alter or amend the court’s simply by apparent closed an of an judgment, ap- which offer was denied. Thomas position, peals and involves of judgment. the district court’s order and intent circum- and II. DISCUSSION challenged job stances which the action Appellant was taken. contends that there is grant We review district court’s order permit sufficient evidence in this case to novo, judgment as a of matter law de minds reasonable to conclude that her em- applying applied by the same standard so, ployer intended to terminate and did district court. Walls v. Button Gwinnett and that the offer of an alternative Inc., Bancorp, Cir. reluctant insincere of 1993). Thus, we must view the evidence: re-employment.3 and with all infer- party ences most favorable opposed Dillard contends considering appel- motion. If approach long- the facts and inferences lant’s we would overturn point strongly overwhelmingly body jurisprudence so standing relating party theory favor one Court believes discharge, constructive at a employee may reasonable men could arrive holds that an be deemed to out, stipulation provided pre- points 1. The that if Thomas cere. EEOC an trial, $50,000 employer may improve vailed pay legal would receive in back seek to its $20,000 pay, illegal discharge achieving for a front total after an while its still $70,000. purpose employee by making terminating accepted. an offer it knows will be Addition- ally, employer keep up Thomas concedes that should the have a desire to demotion, termination, appearances public by leading found a not a believe others to judgment would be entitled to a as a has not result it fired an individual who is a stipulation. group protected by their member of a antidis- federal making By crimination laws. of re- "offer” Appellee argues employer accepted, that an knows will not assert, no reason offer an to a can as Dillard does in this "quit.” employee simply sin- unless offer was that the shows that charged where the evidence discharged the terms or where have been quit after a demotion. employment under which is conditions that a rea- so intolerable work are asked ease law makes clear would have person sonable has oc- to whether actual See, Morgan e.g., resign. to compelled been employer’s analysis involves of the curred (11th 750, Cir.1993); Ford, 755 Co., v. 6 F.3d Payne v. 560 F.2d intent. See Crane L.P., Co., Acquisition 940 (5th Cir.1977) L v. & 198, (finding Wilson S that a 199 termi- (11th Cir.1991); 1429, Bourque v. 1436 purposes F.2d occurs for of the statute of nation (5th Co., 61, 65 Mfg. F.2d when an em- 617 limitations under the ADEA Elec. Powell words, Cir.1980). argues “by acts or a clear inten- ployer Dillard shows Specifically, dispense services of an em- to alter the burden tion approach would appellant’s Cos., 4; Whatley Skaggs see v. ployee”) also discharge cases be- in constructive proof (10th Inc., F.2d n. 1137-38 707 1133 longer no to employees would cause Cir.1983) (relying descrip- employer’s own on leave their em- their decision to prove that job finding that actual action in tion light in of the condi- ployers was occurred). The decisional law also nation suggests employment. tions of the issue of whether actu- establishes quit to be able employees in is determined al termination has occurred they claim and then were after demotions particular circumstances of the light of reasonableness discharged regardless of the See, e.g., Schneider controverted action. resignations. of their (8th Shack, Inc., F.2d v. 794 385 Jax misplaced argument because Dillard’s is Cir.1986) (explaining inquiry advocated the actual termination occurred, actual has “the whether con- the traditional is distinct from appellant situation, employee’s well realities of as and contains its discharge doctrine structive action, employer’s for its as the label plaintiffs must shoulder. burdens own account”); be taken into see also should require employ- approach would Appellant’s v. Ins. Chertkova Connecticut General Life intended employers that their to to show Cir.1996) (“An ees Co., (2d F.3d actual 92 88 spe- them in of the and did terminate discharge ... occurs when the uses challenged em- cific circumstances language engages or in conduct ‘would unlike con- inquiry, ployment action. This prudent a to logically person lead believe his analysis of discharge, terminated’.”); involves no structive has been v. tenure EEOC (4th Co., conditions were so News Service Cir.1990) (“No compel person specific pres- a reasonable need be words intolerable employees prevent support finding of actual dis- resign, but it does ent charge.”).5 merely asserting were dis- from Appellee suggests Payne directly point v. Although that EEOC Service News analysis Co., Cir.1990), (4th of when termination involved is that it 898 F.2d distin- purposes the statute of limita- occurred tions, guishable because did not involve an offer of general prop- that it stands for the position. we an alternative find that manifesting employer’s conduct osition that general proposi- case to be instructive as to the employee's dispense with an clear intention necessary tion that words are when services is relevant occurred, and actual to have occurred under termination has actual analysis proper of all the cir- involves Additionally, subsequent cases we have ADEA. News, pregnancy cumstances. Service dis- placed emphasis on the intent ex- VII, plaintiff Title crimination under terminate, plaining that the actual decision discharged alleged that she had been a result giving of that deci- notice employer in which he did of a with her sion, illegal acts under the are the relevant explicitly was terminated but tell her she E.g., Mortg. Nat. Calhoun v. Federal ADEA. expressed repeatedly that she concern would be Cir.1987) ("The Ass’n, 823 F.2d pregnant injured if she to work while continued illegal is itself an act. fact of termination pregnant where recounted instances illegal alleged acts were the decision to here job. problems Id. on the at 960. to [the the decision terminate and notice of employer argued plaintiff had been Lynch employee].”); see also Cocke v. Merrill & constructively discharged than Co., Inc., (11th Cir.1987) rather (same). Id. The Fourth Circuit held at 962. ADEA, Moreover, note that several other case under the the Fifth Circuit re- specific jected have relied courts employer’s argument the defendant concluding that an facts of each case actual actual termination had occurred employ termination occurred even where the separated where from her em- made an of an er ployment after her boss told “It’s either Cos., Inc., Skaggs Whatley 707 F.2d at time, part you’re here”, out 89 F.3d at 3, 1137-38, origin 1133 n. a Title national VII analyzed 267. The court the issue as follows: the Tenth Circuit ad argues, [Defendant] for first time now an actual dressed issue whether termi inanely, somewhat that Miller was not ac- where nation occurred was told tually employment. terminated from In- lobby id. manager,” that “he was no stead, the defendant contends that Miller at and was transferred to a lower- part-time position was offered a which she ranking position pleading supe after with his refused. [defendant] asserts that rior, id. at For of purposes 1138. voluntarily resigned_ Miller The evi- pay whether the back awarded dence at trial allowed the appropriate, the trial court was the court conclude that Miller was terminated.... actually plaintiff had been ter held merely minated than at 267. Appellee rather demoted. Id. Id. at contends that Mil- emphasized rejected 1133 n. argument 1137-38. court ler court the defendant’s testimony by plaintiffs supe there that was simply because it raised for the was first revealing riors that had intended appeal. time on While that have been a Id. terminate him. analysis, factor in the court’s it is obvious agree that the court did not with the sub- Shack, Inc., In Schneider Jax 794 F.2d appellee’s argument stance of and that Eighth at Circuit considered court found that the evidence was sufficient was an whether actual support finding a of termination.7 See id. plaintiff, informing where the after her em- pregnant, ployer she was was removed from agree We that an offer of an alternative position a was a as bartender and offered position automatically does preclude an waitress, part-time as a cocktail inquiry plaintiff as to a was Id. at 384. declined. The court Rather, “actual sufficiently that held had demon- nation” must undertaken with that discharge” strated there was an “actual scrutiny close of evidence in each case. purposes establishing prima for of a facie pregnancy of discrimination under Title Turning to the facts before VII. Id. at court 384-85. The focused us, thorough review of the record and plaintiffs situation, the “realities” of the not- briefs, find reasonable minds only “vague that she had received was actu differ whether Thomas of employment offer” and that ally this ease. The evidence at Jax “the Shack was not committed to em- following. trial E. reflected the ploying her.”6 Id. 29,1932, years was born on June 63was Distributors, In began working Miller v. Butcher old at the time of trial. Cir.1996), age Ivey’s May for J.B. & full-time Co. 1972. discharge Appellee suggests that “actual rather than constructive 7. court found that discharge appropriate finding was case." Id. there was sufficient evidence for a of discharge because constructive the court noted “[cllearly, very was at Miller least con- attempts We note that Dillard to draw factual Miller, structively 89 F.3d at 267. distinctions between the instant case and terminated". However, However, regarding Whatley. rely statement Schneider and we do not constructive did not undermine the analogies on those exact cases for factual import language opinion clear present in the one. we cite those cases for the rejecting argument proposition defendant’s an offer Miller of alternative “actually appel- Id. at As ment does not foreclose as a matter of terminated.” law the admits, fact-intensive lee to whether court “decided the case as if there actually terminated. were an actual termination.” what there was” at the the Area “was sure Thomas became Sales In (ASM) Lingerie Ivey’s Manager he also testified Avenues Store. Jacksonville, From 1988 until June Florida. “would been made avail- Thomas remained [there].” able Department 1990 Dillard June ASM. that Warner did not ask Thomas testified Ivey’s Stores, and Thomas con- acquired Inc. an immediate decision about the her make tinued Instead February of Chris Dillard. office, go get to her the Dillard instructed her the Store became Store, where Thomas was Regency Square keys testi- purse, and home. Warner material to this case. all times employed home, “go let that he told Thomas fied time, approximately 30 Warner was At do know would like to on Mon- me what years old. day.” that at the conclusion stated meeting, she 12,1993, of this March had a On Thomas testified when Warner. that she had been terminated. How- doubt office, he told ever, Warner’s seated admitted on the stand —after “Sue, got problem. You can we’ve impeachment deposition with her testimo- Manager this be longer an Area Sales ny given had her an offer of Warner —that stopped point, At that Warner store.” meeting. position at March him, “Excuse speaking, so Thomas asked explained she Thomas that did consider repeated, “You response, Warner me?” was genuine this “offer” because it Manager Area Sales longer can no be an mouth” “pull[ed] out of Mr. Warner’s allegedly then asked store.” Thomas examination, repeated pleas. how- On direct Warner, ‘Why replied, “You me?” Warner ever, referring the label “offer” used your plan for not make sales 1992.”8 did event. relevant began crying. Thomas testi- Thomas then that that Warner’s words fied she believed later, 22, days March re- Ten on longer she no had a and actions meant that give in order to turned to the store Warner Warner, job then asked at Dillard. card, store, keys charge and I supposed am to do?” the world “What security pass. told at She also Warner replied, “Figures talk.” Warner accept time that she could not his offer that asked, again “What When position. at lesser War- allegedly going am I to do?” Warner world 22, concerning his March ner’s notes stated, really anything, I don’t have ‘Well with Thomas reflect follow- conversation put I in Accessories.”9 War- but could ing events: telling that remembered ner testified he came said that she wouldn’t [and] really open- he did not Thomas that working here further. said she She ing. also testified that he Warner sign separation until knew would not “arranged” had for her told Thomas he 401(k) vacation; about said that associate at either the to take sales appreciate she didn’t that she was let Square the “Avenues Regency store being and that she felt that she was treat- trial, During Warner admitted that Store”. unfairly. appreciate didn’t ed She also Thomas, at the time he offered card, gossip. gave keys, me her credit not certain if a in Accessories he was security Regency at and that he code card.10 existed Store 1993, Appellee 8. concedes that “it is true that ASMs and re-extended offer all Regency Square plan employment. failed make impeached at (i.e. sales Warner was on goal) year however, their sales for fiscal 1992.” point, deposition because in his he said never the offer to Thom- re-extended a sales 9. in Accessories was associ- Likewise, after testi- March 1993. ate re-employment was fied March 1993. During trial testified that he called Warner Thomas back on the afternoon of March produced also Evidence was and the label for action are telling Regency was at relevant for whether a termi- store, immediately Square occurred, Chertkova, Dillard’s his nation has 92 F.3d at Thomas, meeting 88; Schneider, March with at is also longer Company. Thomas was no with the in light clear case law that the lack of trial, Darryl McCoy, Opera- specific see, At the current dispositive, is not e.g., words Regency Square Chertkova, Dil- 88; News, tions at Service lard, immediately after testified that Mr. F.2d at 962. to the extent that the Thomas, McCoy Warner met with he let district court determined that the longer know that Thomas was “no dispositive words were implicit was —which Though Company.” McCoy unable in the court’s statement that Thomas could specify the on which he prevail date was informed “express because there Compa- “no Thomas was analysis termination” —that was incorrect. ny,” juror might a reasonable have inferred proper legal standard requires McCoy which was refer- intent, the employer’s be in- ring was the that occurred March one ferred not from words but also from fact, conduct, had the court admitted the as well as the circumstances testimony Vanscyoe, proffered of Katherine the challenged Applying action. which it should have because it was proper to the facts of this standard proffered to of utterance establish time find that Thomas sufficient evi- was, therefore, hearsay, it would dence to raise a toas whether McCoy told her on established o’clock,” “around 3 longer Company.” Thomas was “no III. CONCLUSION evidence, all evidence, considering After all the we con- could reasonable minds conclude War- jurors clude in the exercise longer ner’s no statements Thomas “can impartial judgment reach different be an Area in this store” Sales conclusions Thomas was actu- go instructing home her to constituted termi- ally Accordingly, terminated. we reverse the nation under the circumstances. Thomas judgment granting district court’s order as a testified that after Mr. told her Warner pro- matter of law and remand for further position, was removed from behaved ceedings opinion. with this consistent though as the conversation were finished on REVERSED and REMANDED. telling several different occasions before Thomas, “[w]ell, really I don’t anything, PROPST, have Judge, concurring: District I put but could Accessories.” Warner I solely concur in result. I the do so manager the thereafter told that she had basis the that a of fact exists as to jury reasonably been fired. the could whether the defendant’s offer of sales associ- concluded Warner position(s) Among ate was bona fide offer. nated and made a reluctant and the the matters that will to consid- re-employment. insincere offer of availability regard er will be the Appellee position(s) contends that there was no such intent of the position(s) actual termination because Thomas was nev to create and fill the on a reason- basis, quotes ably permanent told Appellee meaning sig- er that she fired. findings by the district court’s allegedly “[a]t the nificance of the statements made on the Plaintiff was not to other the March meeting, told was not etc. I not attach as significance majority opinion told that fired. She was told much as the longer subjective opinions that she could work the Defen does dant. told that she could no or to whether the offer was reluctant one. I longer suggest continue as an area further sales would not manager.” While words used can recover on an “actual” termination claim employer had showing that

merely by accept- not be will “an offer knows

made unnecessarily blurs distinction This

ed.” discharge and “con- “actual”

between analysis.1 long As

structive” offer, in fact offer is employee’s

speculation or belief offer should affect

reaction to offer or relieve

legitimacy of the discharge in proving a “constructive”

ee of agree I also do prevail.

order majority opinion “[We]

statement could minds conclude

find that reasonable that Thomas ‘can

that Warner’s statements Manager in this Area Sales instructing home consti-

store’ and the circumstances.” termination under

tuted emphasize this isolated evi-

I would not so

dence. GORDAN, Plaintiff-

Gerald Alan

Appellant, individually COCHRAN,

Ronald County, Broward Sheriff

Defendant-Appellee. Bellis, BELLIS and Carol

Fred

Plaintiffs-Appellants. individually COCHRAN,

Ronald County, of Broward

as Sheriff

Defendant-Appellee.

Nos. 96-4649. Appeals, Court

United States

Eleventh Circuit.

July majority note 3.

1. See opinion supra

Case Details

Case Name: Thomas v. Dillard Department Stores, Inc.

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jul 14, 1997

Citation: 116 F.3d 1432

Docket Number: 96-2966

Court Abbreviation: 11th Cir.