Terri WALLACE, Plaintiff-Appellant,
v.
DTG OPERATIONS, INC., a Foreign Corporation, also known as Dollar Rent-A-Car Systems, Inc.; Dollar Rent-A-Car, Inc., a Foreign Corporation, Defendants-Appellees.
No. 04-3345.
United States Court of Appeals, Eighth Circuit.
Submitted: April 14, 2005.
Filed: March 29, 2006.
Lynne J. Bratcher, argued, Kansas City, MO, for appellant.
John D. Dunbar, argued, Kansas City, MO, for appellant.
Before MELLOY, COLLOTON, and GRUENDER, Circuit Judges.
MELLOY, Circuit Judge.
Plaintiff-Appellant Terri Wallace appeals the district court's adverse grant of summary judgment on her retaliatory discharge claim. Because we find outstanding questions of material fact regarding the issue of retaliatory intent, we reverse.
I. Factual Background
We present the facts in a light most favorable to Ms. Wallace, the non-moving party, and draw all reasonable inferences in her favor. Buettner v. Arch Coal Sales Co.,
On May 9, 2001, Ms. Wallace began working for DTG Operations, Inc. (the "Company"), as a station manager in its Kansas City International Airport, Dollar Rent-A-Car station. Ms. Wallace's immediate supervisor was the Company's city manager for Kansas City, Brad Kjar. Mr. Kjar's immediate supervisor was the regional manager for the midwest region, Tom Mierendorf. Mr. Mierendorf's immediate supervisor was Stephen Duffy, the Company's vice-president of operations. Ms. Wallace was the least-senior station manager at the location. Mark Lovelace, another station manager at the Kansas City International Airport location, had one day of seniority over Ms. Wallace.
On April 9, 2002, Ms. Wallace complained via email to Mr. Mierendorf about sexually inappropriate comments and contact from Mr. Kjar. Her complaints related to four alleged incidents as follows. On February 27, 2002, Mr. Kjar called Ms. Wallace and others into his office where he used the speaker phone to dial a number that played a recorded message about masturbation. Later, Mr. Kjar called Ms. Wallace and others into his office to view pornographic computer images of the cartoon character Popeye. On November 21, 2001, and again on March 4, 2002, he commented to Wallace on the size of her "butt," once while lifting her arm to create an unobstructed view of the object of his comment. Regarding the Popeye cartoon, he warned the employees that some people might find the material offensive, and Ms. Wallace walked out of his office. She did not complain directly to Mr. Kjar about any of these incidents.
The Company's sexual harassment policy stated that an employee could complain to the supervisor of an alleged harasser if the employee was not comfortable complaining directly to his or her own supervisor or directly to the harasser. In fact, before April 9, Ms. Wallace had become upset with Mr. Kjar's behavior, checked with a human resources employee named George Corneau, and received instructions to bypass Mr. Kjar and complain directly to Mr. Mierendorf. Also, Mr. Duffy stated in his deposition that Ms. Wallace reported the incidents to an appropriate supervisor.
Notwithstanding the propriety of Ms. Wallace's reporting procedure, Mr. Mierendorf testified in his deposition that he "was not happy that she did not feel comfortable or take the time to actually just communicate with [Mr. Kjar]." Mr. Mierendorf conceded that Ms. Wallace followed a correct procedure by going over Mr. Kjar's head, but stated that "what [he] was not pleased about [was] that she did not feel comfortable just to go to him and talk to him." Mr. Mierendorf also testified that he liked to joke around with employees to "liven up the workplace," he thought joking "should happen openly and freely," and he thought Ms. Wallace's complaint would put a "muzzle on interaction that should happen freely and openly and that was no longer going to occur."
Twenty-eight days after Ms. Wallace reported these acts to Mr. Mierendorf, he and Mr. Kjar met with Ms. Wallace in Mr. Kjar's office and terminated her employment with the Company. Mr. Mierendorf testified in his deposition that he actually made the termination decision at an earlier date, only fifteen days after her report. Before Mr. Mierendorf arrived in Kansas City for the meeting where he fired Ms. Wallace, he told Ms. Wallace that he was coming to Kansas City to discipline Mr. Kjar. Mr. Mierendorf testified that, in general, he made termination decisions jointly with city managers. He claimed, however, that in this instance, Mr. Kjar was not involved in making the decision to terminate Ms. Wallace.
At the meeting, Mr. Mierendorf told Ms. Wallace that there were too many station managers at the Kansas City International Airport location, a downturn in business following September 11, 2001 had reduced revenue at the location, and she was the least-senior manager at the location. Mr. Mierendorf told her that there was a policy at the Company that stated seniority should determine who to lay off. Ms. Wallace conceded in her deposition that the statements of fact surrounding a downturn in business and overstaffing at the management level were true. Ms. Wallace's attorney also conceded at oral argument before our court that these statements were true. Ms. Wallace, however, did not concede that these true statements accurately described the true motivation behind Mr. Mierendorf's decision to fire her.
Also at the meeting, Ms. Wallace asked to be transferred laterally to one of several open station manager positions in other cities. Mr. Mierendorf and Mr. Kjar refused to consider her for a transfer. They claimed that there was a November 2001 "written warning" in her personnel file in Kansas City that, under Company policy, prohibited their consideration of her as a possible candidate for transfer for a period of one year. Notwithstanding their claims regarding the Company's policy, Mr. Mierendorf had encouraged Ms. Wallace to apply for a transfer to Kentucky after the purported "written warning" appeared in her Kansas City file.
The Company, in fact, had a policy consistent with the supervisors' claim. The Company, however, did not consistently follow this policy. Rather, the policy was discretionary, as shown by the fact that employees with written warnings received transfers or were encouraged to apply for transfers within their respective one-year windows. Under Mr. Mierendorf's authority, Mr. Kjar himself received a transfer less than a year after he received a "written warning." Also, Mr. Mierendorf and Mr. Kjar had repeatedly told Mr. Lovelace to apply for positions at other locations. This occurred less than a year after Mr. Kjar gave Mr. Lovelace a "written warning." Further demonstrating the discretionary nature of this policy, Mr. Corneau and Mr. Duffy made clear in their depositions that there was not a regular practice at the Company of checking employees' personnel files for "written warnings" before granting transfers or promotions.
The parties dispute not only the nature of the Company's policy on transfers, but also the propriety of applying that policy against Ms. Wallace. Ms. Wallace's personnel file at the local office in Kansas City contained a written record of a "verbal warning." This written record of a verbal warning was documentation of a verbal notice that Ms. Wallace had received in November 2001 for failing to meet a sales quota. Ms. Wallace's signature appeared on the document. Her official personnel file with the human resources office at headquarters in Tulsa, Oklahoma, however, did not receive this written record of a verbal notice until October 2002, five months after her termination. Mr. Kjar and Mr. Mierendorf stated that this document was a "written warning" sufficient under Company policy to disqualify Ms. Wallace from eligibility for transfer for one year. Ms. Wallace contests this characterization of the document. She relies on the deposition testimony of Mr. Duffy to demonstrate that the Company recognizes a distinction between written warnings and written records of verbal warnings. Mr. Duffy testified that verbal warnings and/or written records of verbal warnings are insufficient to trigger the company's one-year, no-transfer policy.
Suffice it to say, questions of fact abound regarding the Company's policy and the effect of the information in Ms. Wallace's personnel file. As discussed below, these questions of fact are material to the extent that they reveal what Ms. Wallace's supervisors actually believed about the nature of the Company's policy and what they actually believed about the applicability of that policy to Ms. Wallace.
During the depositions of Mr. Mierendorf, Mr. Corneau, and Mr. Duffy, counsel for Ms. Wallace explored the issue of whether anyone at the Company had considered terminating Ms. Wallace prior to her report of harassment. Mr. Mierendorf stated that he had not been involved in any discussions specifically regarding the termination of Ms. Wallace prior to her report of harassment. Neither Mr. Mierendorf nor Mr. Duffy could recall exactly when they first discussed the issue of terminating Ms. Wallace. When asked about notes, records of communication, or other evidence that might help pin down the timing of such discussions—or of related discussions on the more general topic of manager lay-offs—Mr. Duffy stated that he had no such records because his personal computer had crashed over the course of "the past couple of years." Also, Mr. Mierendorf explained that he too had experienced a crash of his personal computer, that his crash was a total loss of all data, and that the data was not backed-up because it was a laptop computer. Mr. Mierendorf claimed that the lost data included "all of my files that we worked on for what our requirements were from each city for reducing head counts and instructions and requirements that came to us." There is no evidence to suggest that these two computer crashes were related.
Mr. Corneau did have documentation that related to Ms. Wallace from around the time of her termination. This documentation was a single entry in a log of telephone calls. It was dated April 29, 2002, and read, "Tom, about Terri Wallace write-up from Brad. Have not received any write-up." This entry was made after Ms. Wallace's report of harassment.
Although no one from the Company actually claimed to have specifically discussed or considered the termination of Ms. Wallace prior to her report of harassment, Mr. Mierendorf did claim that before Ms. Wallace made her report of harassment, he knew he had too many station managers at the Kansas City International Airport location. Mr. Kjar also stated that he knew before Ms. Wallace's report of harassment that he could not keep all of his station managers. Mr. Mierendorf and Mr. Kjar both stated that there were too many managers at the location because one of the station managers, Mr. Lovelace, had completed an in-house management training program and was expected to apply for city manager positions at other locations but had not applied for any such positions.
Mr. Lovelace left the Company in February or March of 2003. After he left, the Company advertised the open position of station manager at the Kansas City International Airport location on more than one occasion. This was the same position Ms. Wallace had held. Ms. Wallace repeatedly applied for the open position but received no response. She alleges that this is further evidence to refute the Company's claim that she was terminated out of economic necessity rather than as an act of retaliation.
To further refute the Company's explanation for her termination, Ms. Wallace emphasizes the isolated nature of her termination relative to the broad downturn in business. All employees of the Company who were deposed testified that the terrorist attacks had a broad and severe impact on the travel industry. In his deposition, however, Mr. Mierendorf stated that no other managers in the Midwest Region were laid-off as a result of the downturn in business that followed September 11, 2001. Following September 11, some manager positions across the country remained vacant after managers left the Company or transferred to other locations. Also, some non-management employees were laid off in the two months that followed September 11. The Company later hired back some of these non-management employees. No management employees other than Ms. Wallace were laid-off during all of 2002, and no Midwest Region employees at all, other than Ms. Wallace, were laid-off during 2002.
Finally, Ms. Wallace makes reference to two other incidents in the history of her employment with the Company that she believes to be material to her case. Prior to her termination, Ms. Wallace asked Ms. Kjar about a possible transfer or promotion to the position of revenue manager at another location. Mr. Kjar did not respond, and as a deadline approached, Ms. Wallace contacted the human resources department directly. When Mr. Kjar found out that she had done so, he became upset and stated, "how dare she" to another employee. Also, following her termination, Ms. Wallace contacted a city manager at another location, Clayton Hopkins, to seek help in obtaining a possible transfer. The practice of contacting personnel at locations with openings was commonplace within the Company. Nevertheless, when Mr. Kjar or others working under him discovered emails from Ms. Wallace to Mr. Hopkins, Mr. Kjar reported this fact to his superiors, and Mr. Hopkins was disciplined for having tried to assist Ms. Wallace.
Ms. Wallace instituted proceedings against the Company by timely filing a pro-se charge of discrimination with the EEOC. On the one-page form that comprised her charge, she alleged discrimination and retaliation. She did not check the box labeled "Continuing Action." Also, she stated that the earliest and latest date of discrimination took place on May 6, 2002, the date of her termination.
Ms. Wallace then brought suit alleging a claim of sexual harassment based on Mr. Kjar's actions. She also included a claim of retaliatory discharge. On summary judgment, the district court found that her claim of sexual harassment failed as a matter of law under the severe and pervasive prong of our framework for the analysis of hostile work environment sexual harassment claims. The district court also found that Ms. Wallace's retaliatory discharge claim failed because the Company stated a legitimate reason for her termination and she failed to present evidence sufficient to raise a material question of fact as to whether the Company's explanation was merely pretextual. In this appeal, Ms. Wallace abandons her harassment claim and argues only that she is entitled to a trial on her retaliation claim. She alleges that the Company's stated reason for her termination is merely a pretext to hide the true motivation for her termination, namely, intentional retaliation for complaining about Mr. Kjar's actions.
We also note that, although not advanced by the Company as an argument below, the record demonstrates that the Company terminated Ms. Wallace's employment one day before certain benefits would have vested. On appeal, the Company argues that this fact lends further support to its claim that Ms. Wallace's termination was not the result of intentional retaliation. Also, although not stated to Ms. Wallace as a reason for her termination at the time of her termination, the Company claims that she performed poorly while temporarily assigned to work in a Chicago office. There was no disciplinary action taken, nor written record created, concerning her alleged poor performance while temporarily stationed in Chicago. Notwithstanding these arguments concerning Ms. Wallace's work performance, Mr. Mierendorf insisted in his deposition that the decision to terminate Ms. Wallace was based strictly on seniority.
II. Standard of Review
We review a grant of summary judgment de novo. Buettner v. Arch Coal Sales, Co.,
Taken together, the above cases demonstrate that, although Rule 56 contains only one standard, we must exercise particular caution when examining the factual question of intent to ensure that we dutifully extend all justifiable inferences in favor of the non-moving party. See Gill v. Reorganized Sch. Dist. R-6,
III. Discussion
Title VII of the Civil Rights Act of 1964 prohibits employers from taking adverse actions against employees in retaliation for employee reports of harassment or discrimination. 42 U.S.C. § 2000e-3(a). "A claim for retaliation is not based upon [prohibited] discrimination, but instead upon an employer's actions taken to punish an employee who makes a claim of discrimination." Haas,
We apply the burden shifting framework set forth in McDonnell Douglas Corp. v. Green,
To succeed under this analytical framework, the plaintiff must first present evidence sufficient to establish a prima facie case. Hesse v. Avis Rent A Car Sys., Inc.,
It is undisputed that Ms. Wallace took part in protected conduct and that the Company took adverse action against her. Mr. Mierendorf admits that he made the decision to terminate Ms. Wallace's employment only fifteen days after her report of harassment. The actual termination occurred twenty-eight days after her report. For the purpose of our analysis, the conceded date of the decision to terminate rather than the date of actual termination is critical. This is because the inference of a cause and effect relationship between the protected conduct and the adverse action relates to the employer's motivations for the action rather than its method or timing in the execution of the action. See Kipp v. Missouri Highway and Transp. Comm'n,
"An inference of a causal connection between a charge of discrimination and termination can be drawn from the timing of the two events, but in general more than a temporal connection is required to present a genuine factual issue on retaliation." Peterson v. Scott County,
Because Ms. Wallace set forth a prima facie case, a presumption of retaliation arose and the burden of production shifted to the Company to articulate a legitimate, non-retaliatory reason for the adverse action. Buettner,
Ms. Wallace was left with "the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision." Id. The Supreme Court has recognized that, at this final stage of the burden shifting analysis, the plaintiff's burden "merges with the ultimate burden of persuading the court that she has been the victim of intentional [retaliation]." Id. (discussing the burden shifting analysis in the context of a discrimination claim). In making a showing at this final stage, evidence used to support the prima facie case is considered along with other evidence before the court to determine whether there exists a triable fact on the ultimate issue of retaliation. Reeves v. Sanderson Plumbing Prods., Inc.,
There are at least two routes by which a plaintiff may demonstrate a material question of fact at this final stage of the analysis. First, a plaintiff may succeed "indirectly by showing that the employer's proffered explanation is unworthy of credence," Burdine,
The first route, directly rebutting the proffered reason as false, usually involves more than a rebuttal of the employer's ultimate claims regarding its subjective motivations. It typically involves a broader rebuttal of the employer's underlying factual claims. See, e.g., Reeves,
The second route, in contrast, does not necessarily involve disproving the underlying factual claims of the employer. It focuses instead on rebuttal of the employer's ultimate factual claim regarding the absence of retaliatory intent. See Strate v. Midwest Bankcentre, Inc.,
The facts that Ms. Wallace relies upon to show intentional retaliation and to show that the Company's explanation was pretextual may be grouped as follows: (1) timing issues, (2) issues related to the Company's policy restricting transfers, (3) supervisors' comments that reflected animus, and (4) the Company's change in its explanation for the termination. We address these facts in turn.
A. Timing Issues
The Company argues that temporal proximity, standing alone, is insufficient to prove retaliatory intent. While this is generally true, see Kiel v. Select Artificials, Inc.,
Here, because only fifteen days elapsed between Ms. Wallace's report of harassment and Mr. Mierendorf's decision to fire her, temporal proximity provides strong support for an inference of retaliatory intent. Peterson,
Also, when viewed against this time frame, a reasonable jury could find support for an inference of retaliation based on the lack of evidence to show that supervisors had considered Ms. Wallace's termination before her report of harassment. In this regard, we note that Mr. Mierendorf and Mr. Duffy claimed that they had previously discussed the general issue of manager overstaffing and lay-offs. These claims, however, were undocumented, and a finder of fact could infer that the purported loss of data by supervisors at two levels calls into doubt the truth of their claims. Further, the fact that there was an extra station manager at the location and the fact that the supervisors had encouraged Mr. Lovelace to apply for a transfer do not demonstrate that these supervisors had discussed or considered terminating Ms. Wallace prior to her complaint of harassment.
Another timing issue relates to the isolated nature of Ms. Wallace's termination, eight months after the terrorist attacks, when compared to other terminations at the Company purportedly linked to September 11. As described above, Ms. Wallace was the only management employee in the Midwest Region actually terminated due to the downturn in business. Also, she was the only Midwest employee actually terminated in 2002. A finder of fact need not reject the factual assertion that there was a general downturn in business to infer that Ms. Wallace's termination, as a relatively isolated event, was motivated by retaliatory animus rather than by the broad economic concerns cited by the Company.
B. Transfer Policy
Regarding the Company's transfer policy, a reasonable jury could infer that Mr. Mierendorf and Mr. Kjar knew that the policy was discretionary and/or not applicable based on the facts of Ms. Wallace's case. Mr. Kjar himself received a transfer under Mr. Mierendorf's authority at a time when Mr. Kjar should have been barred under the policy, if the policy actually applied in the mandatory way claimed by Mr. Kjar and Mr. Mierendorf. Also, Mr. Mierendorf encouraged Mr. Lovelace to apply for a transfer at a time when a transfer would have been barred under the Company's policy. Both of these examples, combined with the outstanding question of fact regarding characterization of the contents of Ms. Wallace's personnel file, suggest that Mr. Mierendorf knew the policy did not actually bar Ms. Wallace from receiving a transfer. Viewed in a light most favorable to Ms. Wallace, a reasonable jury could find Mr. Mierendorf's adverse and selective application of the policy to be evidence that his reliance on the policy was merely pretext to hide a retaliatory motive. The Company's refusal to consider Ms. Wallace for rehire after Ms. Lovelace's termination further strengthens this inference
The Company argues that we may not consider the denial of a transfer or a refusal to rehire because Ms. Wallace did not check the continuing action box on her EEOC complaint and because she stated that the first and last day of discrimination occurred on May 6, 2002, the date of her termination. The Company's arguments are misplaced for two reasons.
First, the Company misconstrues the nature of Ms. Wallace's reliance on the denial of a transfer and the failure to rehire. She does not argue that she has separate retaliation claims based on separate adverse actions. Rather, she argues that the subsequent facts provide evidence of the Company's motivation for her earlier termination. She clearly claimed only one retaliatory act. We have never held that evidence of retaliatory motive for action on a fixed date is limited to evidence that existed on that date or evidence that existed before a date listed on an EEOC form. Here, with the issue of retaliatory intent in play, it is reasonable, in fact expected, that the Company's post-termination actions would be relevant to assessing the veracity of claims of economic necessity. In effect, the Company argues that the EEOC form serves to make evidence that followed May 6, 2002, infirm or irrelevant. We find no support for this position.
Second, the Company construes our precedent regarding the restrictive effect of an EEOC filing too narrowly. We have held that claims based on an EEOC charge must "grow out of" or be "like or reasonably related to" the claim stated in the EEOC charge. Wentz v. Maryland Cas. Co.,
C. Supervisor's Comments
The evidence just discussed must be viewed against the backdrop of Mr. Mierendorf's comments. Had the uncertainty surrounding the transfer policy occurred in a vacuum, then it might not be reasonable for a jury to infer retaliatory intent. Here, however, the temporal proximity and the supervisor's comments make such an inference justifiable. Mr. Mierendorf was displeased that Ms. Wallace had gone over Mr. Kjar's head. Also, Mr. Mierendorf stated that he thought her report of harassment would put a muzzle on kidding that he considered beneficial in the workplace. These comments are not general, offhand comments by a coworker. Rather, they are comments from a supervisor, specific to Ms. Wallace, specific to the off-color humor she complained about, and specific to the impact of Ms. Wallace's report on the future environment of the workplace. Taken as a whole, we believe that this evidence is sufficient for a reasonable fact finder to conclude that the Company terminated Ms. Wallace because of her report of harassment and that the proffered explanation was merely an after-the-fact explanation for actions that truly grew from a retaliatory intent. Hitt,
D. Shifting Explanations
Finally, we note that the Company's position has not been consistent throughout these proceedings or the time surrounding Ms. Wallace's termination. Prior to Ms. Wallace's report of harassment, Mr. Mierendorf had encouraged her to apply for a transfer to Kentucky. There was no evidence of dissatisfaction with Ms. Wallace's performance, other than the written record of a verbal warning, as discussed above. Also, Mr. Mierendorf claimed reliance on a policy that mandated consideration of seniority to the exclusion of other factors, including performance. At her termination, no one from the Company suggested that performance factored into the termination decision. Nevertheless, in these proceedings, the Company raises performance issues as a make-weight and non-retaliatory motive for Ms. Wallace's termination. As another make-weight and non-retaliatory motive, the Company notes that it saved itself from paying Ms. Wallace certain benefits by terminating her employment just short of an anniversary that would have caused those benefits to vest. While these factors might provide evidence of a non-retaliatory motive, a jury could reasonably infer that the Company's after-the-fact reliance on these facts is evidence that the Company is dissembling to cover up an impermissible motive. See Kobrin v. Univ. of Minn.,
While a jury certainly need not resolve the factual issue of retaliatory intent in favor of Ms. Wallace, we believe that it reasonably could. As such, summary judgment is inappropriate, and Ms. Wallace is entitled a jury trial on her retaliation claim.
We reverse the judgment of the district court and remand for proceedings consistent with this opinion.
Notes:
Notes
As referenced by the dissent inHaas, if a plaintiff's underlying claim is frivolous, a reasonable fact finder could infer that the plaintiff knew the claim was frivolous and that the plaintiff did not bring the claim in good faith, but merely raised the underlying claim as a device to prevent or delay an anticipated adverse action. Cf. Mesnick v. Gen. Elec. Co.,
As the Court made clear inReeves, a strong prima facie case coupled with proof of pretext may suffice to create a triable question of fact. Id. ("Thus, a plaintiff's prima facie case, combined with sufficient evidence to find the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.").
Nothing in today's opinion should be construed to dilute the "determinative factor" standard set forth inPrice Waterhouse v. Hopkins,
COLLOTON, Circuit Judge, dissenting.
This case presents a plaintiff, Terri Wallace, who was laid off from her position as a manager at an airport rental car station. It is undisputed that the employer, Dollar Rental Car ("Dollar"), advised her at the time of the lay-off that the action was taken because the company had experienced a downturn in revenue at her location, there were too many managers at her location, and she was the least senior of the one-too-many managers. Wallace now concedes that, indeed: (1) the events of September 11, 2001, greatly affected the travel industry, including car rental agencies, (J.A. at 66-67; see also id. at 45, ¶ 27); (2) there was a downturn in the revenue at her location at the time of her layoff, (id. at 68); (3) four managers at her location were too many, particularly in light of the downturn of business since September 11, (id. at 68); and (4) she was the least senior of the four managers at her location. (Id. at 76). There is likewise no genuine dispute that the employer promulgated lay-off procedures on September 21, 2001, providing that "[f]or field locations, layoffs must be based upon the employee's seniority." (Id. at 96). Under those circumstances, the district court ruled that there was no genuine issue of fact concerning whether the plaintiff was laid off for a legitimate business reason, and dismissed the complaint.
The plaintiff claims, nonetheless, that she was terminated in retaliation for making a complaint of sexual harassment.4 The governing statute prohibits discrimination against an employee "because [s]he has opposed any practice made an unlawful employment practice by this subchapter." 42 U.S.C. § 2000e-3(a). Wallace does not claim to have opposed an employment practice that was actually unlawful, but our court has held that the statute also encompasses opposition to practices that are not unlawful, if an employee acted based on a good faith, objectively reasonable belief that the practices were unlawful. Evans v. Kansas City, Mo. Sch. Dist.,
Wallace's retaliation claim is thus considered under the traditional burden-shifting framework of McDonnell Douglas Corp. v. Green,
The court cites the correlation of timing between the plaintiff's complaint and the lay-off, a factor that we have said repeatedly is generally insufficient to make even a prima facie case of retaliatory motive. Gagnon v. Sprint Corp.,
The precise condition that led to the layoff of Wallace, however, did not exist for several months before the employment action. The supervisor, Tom Mierendorf, had hoped to avoid a lay-off by arranging to promote one of the extra managers at the Kansas City location, but in April 2002, this manager, Mark Lovelace, performed inadequately during a trial management opportunity in Louisville. (J.A. at 322-23). Dollar thus "realized that Mark Lovelace was not going to be leaving any time soon," (id. at 336), and the company was left with the "business condition" that necessitated a layoff — one manager too many, with no prospect of an impending departure to resolve the problem. (Id. at 209, 322, 336). This circumstance led Dollar's vice president for operations, Jim Duffy, in consultation with Mierendorf, to conclude that a lay-off was necessary. (Id. at 190, 209, 336). Mierendorf testified that the possibility of a lay-off had been under consideration for months before Wallace's report of Kjar's behavior, but that the ultimate decision to reduce the workforce was made "right after Louisville," that is, right after Lovelace was deemed unready for a promotion. (Id. at 332). "[T]he simple fact that the employer's testimony is necessarily self-interested" is not "enough under our previous cases to allow the jury to find that the employer's proffered reasons were pretextual." Nelson,
The court also finds it significant that the plaintiff was the only manager laid off in the Midwest region in 2002, but the evidence presented was that other stations were able to reduce staff through attrition or reduction of non-management employees, and at least one departing manager was not replaced. (J.A. at 313-17, 339). Most important, there was no evidence that other stations retained managers that everyone — employee and employer alike — agreed were excessive. The absence of layoffs in stations that were not shown to be overstaffed does not support an inference of retaliatory motive.
Although Wallace made no claim that she was denied an opportunity to transfer based on retaliatory motive, the court concludes that the company's failure to provide an opportunity to transfer supports a finding of discriminatory motive for the lay-off. There is a logical disconnect, however, between Wallace's argument regarding a transfer and the disputed lay-off. Wallace contends that the company treated her differently than it might have treated another person who was laid off and sought to transfer. But even if true, this in no way undermines Dollar's explanation that the underlying lay-off occurred because of overstaffing in Kansas City. Having failed to bring an action alleging a retaliatory refusal to transfer, Wallace cannot now bootstrap an abandoned claim into an entirely separate allegation concerning the company's decision to reduce its workforce at the Kansas City Airport.
Snippets of testimony from supervisor Mierendorf also do not make this a submissible retaliation case. Mierendorf never objected to Wallace opposing Kjar's behavior. To the contrary, Mierendorf testified that "[s]he has the right to make someone stop," (J.A. at 335), that it was "appropriate" for Wallace to report the matter to him rather than to Kjar, (id. at 331), and that he had "no problem" with her approaching him directly. (Id. at 336). Mierendorf himself assured Wallace in writing on the very date of her initial report that there "cannot be retribution" for the report, and that he would "make Brad [Kjar] very clear on that." (Id. at 87). Mierendorf merely expressed disappointment that communication within his Kansas City office had failed, because Wallace and Kjar could not resolve the situation through informal discussions, even though five months had passed between the date of the incidents and Wallace's report. (Id. at 336). Mierendorf felt no sympathy for Kjar, because he "caused an event to occur," and Mierendorf's regret that the atmosphere of the workplace might become more tense and less lively was a comment on the entire "situation"—i.e., Kjar's inappropriate behavior and the breakdown of communication in the Kansas City office—not on Wallace's decision to make a report. (Id..).
But even assuming, for the sake of argument, that Mierendorf's comments reasonably could be read as indicating displeasure that Wallace had opposed Kjar's conduct, this inference would not demonstrate that Dollar's legitimate explanation was pretextual. At most, it would show that Mierendorf's allegedly improper motive coincided with the company's legitimate motive to eliminate overstaffing, a circumstance that is insufficient to state a retaliation claim under Title VII, unless the improper motive had a determinative influence on the outcome. See Miller,
It is further asserted that the employer has given "shifting explanations" for the layoff, ante, at 1124, but Dollar has maintained consistently since the date of the employment action that Wallace was laid off because the station had too many managers, and she was the least senior manager. The employer's reference to the vesting of the plaintiff's benefits was simply a response to the plaintiff's argument that raised the topic: "Plaintiff failed to present evidence that defendant's reason was pretextual, admitted the reason was true and, in fact, articulated an additional non-retaliatory reason for her own layoff alleging in her Petition that she was `informed that she was being laid off one day before her benefits vested.'" (Appellee's Br. at 19). Similarly, the plaintiff's performance was not offered as a reason for the lay-off; it was discussed in response to the plaintiff's entirely different argument (not raised in her complaint or EEOC charge) that the company impermissibly failed to transfer her to another location.
The parties agree that the business reason stated for Dollar's employment action was entirely legitimate and dictated by business economics. The reason was determined and articulated at the time of the lay-off; it was not an "after-the-fact explanation." Cf. ante, at 1124. The evidence does not support the uneconomic conclusion that but for the employee's report of unprofessional workplace behavior by a colleague, Dollar would have retained an unnecessary employee. I would therefore affirm the judgment of the district court.
Notes:
There is no claim on appeal that Wallace was actually a victim of sexual harassment. The district court dismissed Wallace's allegation of sexual harassment, concluding as a matter of law that she failed to establish that Brad Kjar's conduct created a hostile work environment actionable under Title VII
The Civil Rights Act of 1991 amended Title VII to provide that a plaintiff establishes an unlawful employment practice when she "demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e-2(m). This amendment does not affect the analysis here, because it does not apply to retaliation claims under Title VIINorbeck v. Basin Elec. Power Coop.,