Opinion
Civil Action No. SA-04-CA-0928 NN.
September 26, 2005
ORDER AND OPINION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
I. Introduction
The matter before me is defendant's motion for summary judgment (Docket Entry 22). I have jurisdiction over this matter under 28 U.S.C. § 636(c). The parties have consented to proceed before a magistrate judge for all matters in this case, including trial and entry of judgment (Docket Entries 6, 7, 10). Having reviewed the pending motion, the submissions of the parties (Docket Entries 25, 27), the pleadings and the applicable law, defendant's motion for summary judgment is GRANTED in part and DENIED in part for the reasons set forth below.
II. Statement of the Case
Plaintiff Gilbert L. Perales, Jr., an Hispanic male, began working for defendant American Retirement Corporation in August of 2000 as Director of Rehabilitation for its Corpus Christi, Texas network. In the Summer of 2002, plaintiff requested a transfer to San Antonio. Plaintiff's request was granted in the Fall of 2002, and plaintiff assumed the position of Director of Rehabilitation for defendant's San Antonio network.
At the time of his transfer, plaintiff's annual salary was $66,150. For a period of time after his request for transfer was granted, plaintiff served as director of both the Corpus Christi and San Antonio networks. To fill the Corpus Christi directorship, defendant originally hired an individual named David Carter at a salary of approximately $65,000 per year. When Carter subsequently revoked his acceptance, defendant hired Jackie Bresler, an Anglo female, at an annual salary of $72,000.
Defendant alleges that plaintiff's job performance began to deteriorate shortly after his transfer to San Antonio. On September 25, 2003, plaintiff was issued a written action plan designed to increase revenue. On the heels of this action plan, however, plaintiff received an above satisfactory annual performance review, along with a two percent merit based pay raise, bringing his annual salary to $67,472.98. On January 29, 2004, plaintiff was issued an "employee counseling report" after failing two consecutive internal quality improvement audits. Labeled as a "first reminder," this report implemented an action plan giving plaintiff 30 days to correct the deficiencies identified in the audits. Plaintiff corrected these deficiencies, and subsequently passed the next audit in mid-February. Defendant nevertheless made the decision to remove plaintiff from his position as the Director of Rehabilitation of the San Antonio network on February 16, 2004. Subsequent to his removal, plaintiff was offered the position of Director of Rehabilitation in Jacksonville, Florida, which he refused. Plaintiff was then terminated on March 1, 2004. At the time of his termination, plaintiff was earning $67,472.98 annually. To fill the vacancy created by plaintiff's termination, defendant promoted Jennifer Tingle, an Anglo female, from her position as Inpatient Coordinator for the San Antonio office. Tingle's starting annual salary as plaintiff's replacement was $66,000.
On August 31, 2004, plaintiff filed suit in the 57th Judicial District, Bexar County, Texas, seeking relief against defendant under the Equal Pay Act of 1963. Defendant removed the action to this court on October 15, 2004 (Docket Entry 1). In his first amended complaint, plaintiff alleges that he received unequal compensation for his work as compared to his female replacement in Corpus Christi in violation of the Equal Pay Act of 1963, 29 U.S.C. § 206(d). He also alleges that his termination constitutes unlawful gender and national origin discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Docket Entry 5).
As his first amended complaint and response to defendant's motion for summary judgment make clear, plaintiff does not pursue his wage discrimination claim under Title VII. See Docket Entries 5 and 25. Further, plaintiff's sole comparator for purposes of his EPA claim is Bresler. See Docket Entry 25.
Defendant has moved for summary judgment on all of plaintiff's causes of action. Defendant argues that plaintiff cannot establish a prima facie case of gender discrimination under the Equal Pay Act, or of gender or national origin discrimination under Title VII. Alternatively, defendant argues that plaintiff fails to raise a material fact issue as to whether defendant's reasons for the pay disparity and plaintiff's termination were pretextual.
III. Summary Judgment Standard
Federal Rule of Civil Procedure 56 governs motions for summary judgment. Rule 56 provides in pertinent part:
The judgment sought shall be rendered forthwith if 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 that the moving party is entitled to judgment as a matter of law.
FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Rule 56 requires that there be no genuine issue of material fact. A fact is material if it might affect the outcome of the lawsuit under the governing law. A dispute concerning a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Therefore, summary judgment is proper if, under governing laws, there is only one reasonable conclusion as to the verdict; if reasonable finders of fact could resolve a factual issue in favor of either party, summary judgment should not be granted.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Thomas v. LTV Corp., 39 F.3d 611, 616 (5th Cir. 1994).
Anderson, 477 U.S. at 248; Wise v. E.I. DuPont De Nemours Co., 58 F.3d 193, 195 (5th Cir. 1995).
Anderson, 477 U.S. at 249.
The movant for summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record which it alleges demonstrate the absence of a genuine issue of material fact. To satisfy this burden, the movant must either submit evidentiary documents that negate the existence of some material element of the nonmoving party's claim or defense, or if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidentiary documents in the record contain insufficient proof concerning an essential element of the nonmoving party's claim or defense. Regardless of whether the movant accompanies its summary judgment motion with affidavits or other evidentiary materials, the motion must be granted if the evidence before the court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied. Once the movant has carried that burden, the burden then shifts to the party opposing the motion to present affirmative evidence to defeat a properly supported motion for summary judgment.
Celotex Corp., 477 U.S. at 323.
Edwards v. Aguillard, 482 U.S. 578, 595 n. 16 (1987); and Celotex Corp., 477 U.S. at 325.
Id.
Anderson, 477 U.S. at 257.
Importantly, the non-moving party cannot discharge this burden by referring to the mere allegations or denials of the non-moving party's pleadings. Rather, the non-movant must, either by submitting opposing evidentiary documents or by referring to evidentiary documents already in the record, set out specific facts showing the existence of a genuine issue for trial. The court will look at the record in the light most favorable to the non-movant drawing all inferences most favorable to that party.
FED. R. CIV. P. 56(e); Anderson, 477 U.S. at 250; State of Texas v. Thompson, 70 F.3d 390, 393 (5th Cir. 1995).
Celotex Corp., 477 U.S. at 324; Neff v. Am. Dairy Queen Corp., 58 F.3d 1063, 1065 (5th Cir. 1995), cert. denied, 516 U.S. 1045 (1996); Fields v. City of South Houston, Tex., 922 F.2d 1183, 1187 (5th Cir. 1991).
Hibernia Nat'l Bank v. Carner, 997 F.2d 94, 97 (5th Cir. 1993). See also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (holding that a nonmovant cannot discharge her burden with doubt as to the material facts, by conclusory allegations, unsubstantiated assertions, or by only a scintilla of evidence).
IV. Analysis
A. The Equal Pay ActDefendant first moves for summary judgment on plaintiff's Equal Pay Act claim. Defendant alleges that plaintiff cannot establish a prima facie case of discrimination under the Act, or alternatively that any differential in pay was justified by an exception to the Act. Specifically, defendant argues that plaintiff and his comparator did not work at the same establishment or perform equal work as required by the EPA. Alternatively, defendant argues that the pay differential was justified under one of the four recognized exceptions to the EPA.
The Equal Pay Act amended the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq., to require that men and women who perform equal work receive equal pay, unless a difference in pay is justified by reasons other than gender. The allocations of burdens of production and persuasion in cases alleging a violation of the EPA are well established. To establish a prima facie case of discrimination under the EPA, the plaintiff must show: (1) the employer is subject to the Act; (2) plaintiff performed work in a position requiring equal skill, effort, and responsibility under similar working conditions; and (3) plaintiff was paid less than employees of the opposite sex. A showing of "equal work" requires only that the plaintiff prove that the skill, effort, and responsibility required in the performance of the jobs compared are substantially equal. The plaintiff must identify at least one comparator of the opposite sex for purposes of the inquiry.
29 U.S.C. § 206(d)(1). The EPA reads in pertinent part as follows:
No employer having employees subject to any provision of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsbility, and which are performed under similar working conditions.Id.
Chance v. Rice Univ., 984 F.2d 151, 153 (5th Cir. 1993).
Peters v. City of Shreveport, 818 F.2d 1148, 1153 (5th Cir. 1987).
Strag v. Bd. of Trustees of Craven Cmty. Coll., 55 F.3d 943, 948 (4th Cir. 1995).
Once the plaintiff has established his prima facie case, the burdens of production and persuasion shift to the employer to demonstrate that the difference in pay is justified by one of the exceptions specified under the EPA. The exceptions include: (1) a seniority system; (2) a merit system; (3) a system that measures earnings by quantity or quality of production; or (4) a differential based on any factor other than sex. Once the employer establishes a defense, the employee may show that the purported reason is a pretext for discrimination. Because the exceptions to the Equal Pay Act are to be narrowly construed, summary judgment is proper only if the defense is so clearly established that no rational jury could find to the contrary.
Corning Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974); Peters, 818 F.2d at 1153 (citing Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1136 (5th Cir. 1983)).
29 U.S.C. § 206(d)(1); Corning Glass, 417 U.S. at 196; Fallon v. State of Illinois, 882 F.2d 1206, 1211 (7th Cir. 1989) ("The fourth affirmative defense (any other factor than sex) is a broad `catch-all' exception and embraces an almost limitless number of factors, so long as they do not involve sex.").
See Plemer, 713 F.2d at 1137 n. 8 (applying Title VII pretext standard to Equal Pay Act cases).
Corning Glass, 417 U.S. at 207 ("The Act is broadly remedial and it should be construed and applied so as to fulfill the underlying purposes which Congress sought to achieve."); Hodgson v. Behrens Drug Co., 475 F.2d 1041, 1047 (5th Cir.), cert. denied, 414 U.S. 822 (1973).
Buntin v. Breathitt County Bd. of Educ., 134 F.3d 796, 800 (6th Cir. 1998) (citing EEOC v. State of Del. Dep't of Health and Soc. Servs., 865 F.2d 1408, 1414 (3d Cir. 1989)).
1. Prima Facie Case
Defendant does not contest the first and third elements of plaintiff's prima facie case; that defendant is subject to the Equal Pay Act and that plaintiff's female comparator was paid more than plaintiff. Defendant argues, however, that plaintiff cannot meet his prima facie burden because (1) plaintiff and his comparator did not work at the same "establishment" for purposes of the EPA, and (2) plaintiff did not work in a position requiring equal skill, effort and responsibility as his comparator.
In arguing that plaintiff cannot satisfy his prima facie burden under the EPA because plaintiff and his comparator did not work at the same "establishment" as that term is defined by the Act, defendant asserts that its San Antonio and Corpus Christi networks are distinct physical places of business. In response, plaintiff has argued that the Corpus Christi and San Antonio networks may be considered a single establishment for purposes of an EPA analysis. Plaintiff relies on two Fifth Circuit cases in which custodial employees of a school district who worked in separate school buildings were held to be part of the same "establishment" for purposes of the Equal Pay Act.
Marshall v. Dallas Indep. Sch. Dist., 605 F.2d 191 (5th Cir. 1979); Brennan v. Goose Creek Consolidated Indep. Sch. Dist., 519 F.2d 53 (5th Cir. 1975).
Defendant also argues that plaintiff cannot meet his prima facie burden because plaintiff's position in San Antonio did not require the same "skill, effort and responsibility" as that of his Corpus Christi comparator. In support of its position, defendant relies exclusively on plaintiff's testimony that the San Antonio network is comprised of more facilities than the Corpus Christi network. Defendant argues that the management of the San Antonio network therefore required a higher level of effort and responsibility on the part of plaintiff, thereby precluding a finding of "equal work" under the EPA. In response, plaintiff argues that the work required of the two positions was sufficiently equal to make out a prima facie case of wage discrimination under the Act.
In order to establish a prima facie case under the Act, plaintiff must present evidence that he and his comparator work in the same "establishment" performing work which was substantially similar. Although the Equal Pay Act does not specifically define the term "establishment," the Secretary of Labor refers to the "well settled meaning" which that term has acquired in providing regulatory guidance for statutory compliance. The applicable regulation explains:
[Establishment] refers to a distinct physical place of business rather than to an entire business or `enterprise' which may include several separate places of business. Accordingly, each physically separate place of business is ordinarily considered a separate establishment.
Mulhall v. Advance Security, Inc., 19 F.3d 586, 590 (11th Cir.), cert. denied, 513 U.S. 919 (1994).
The regulations go on to provide, however, that in "unusual circumstances . . . two or more distinct physical portions of a business enterprise" may be treated as a single establishment.
For example, a central administrative unit may hire all employees, set wages, and assign the location of employment; employees may frequently interchange work locations; and daily duties may be virtually identical and performed under similar working conditions.
The regulations caution, however, that "barring unusual circumstances . . . the term `establishment' will be applied according to its "well-settled" meaning. Cases that construe the regulations tend to focus on evidence of centralized control of job descriptions and salary administration, standardization of wage rates across locations, similarity of operations at the separate locations, and interchangeability of job assignments and functions.
Id.
See Francis M. Dougherty, What Constitutes "Establishment" for Purposes of § 6(d)(1) of Equal Pay Act, 124 A.L.R. Fed. 159 (1995).
Mindful that ordinarily "each separate place of business [will be] considered a separate establishment," having carefully reviewed the applicable authorities, and considering the evidence which the parties presented in the light most favorable to plaintiff, I find that plaintiff has not met his burden to show that the Corpus Christi and San Antonio offices were the same establishment. Plaintiff argues in his response to the summary judgment motion that the two locations were centrally managed out of Tennessee, but he fails to provide evidence for this global statement, other than that a person in Tennessee (Ms. Fein) supervised the individual (Mr. Carney) who in turn supervised the plaintiff and his comparator in Corpus Christi, and that both supervisors participated in the decision to terminate plaintiff. Evidence that defendant imposed uniform wage scales throughout its national network after plaintiff's termination is only minimally relevant to whether there was sufficient centralization during the time of his San Antonio employment. Plaintiff has failed to point to any evidence that hiring was centralized, that employees at the Corpus Christi and San Antonio networks frequently interchanged work locations, that daily duties and working conditions were virtually identical, or other sufficient evidence to overcome the general rule that physically separate places of business constitute separate establishments. Having failed to demonstrate that the San Antonio and Corpus Christi networks were the same "establishment," plaintiff's Equal Pay Act claim based on a comparison between his San Antonio salary and that paid to the Corpus Christi Director fails to survive defendant's motion for summary judgment.
However, plaintiff's first amended complaint can be read to assert an alternate claim under the Equal Pay Act based on the disparity of wages paid to him as Director of the Corpus Christ network as compared to his successor for the same position. Plaintiff alleges that he was paid $67,000 while supervising the Corpus Christi network, and that his female successor was paid $72,000. Clearly, two persons holding the same position in immediate succession at the same location satisfies the "same establishment" requirement, as well as the requirement that the two jobs involve substantially similar skills, efforts, and responsibilities. Accordingly, insofar as plaintiff argues that defendant violated the Equal Pay Act by paying him less for his duties as Corpus Christi Director than was paid to his female successor, plaintiff has made out a prima facie case.
First Amended Complaint, ¶¶ 9-12 (docket entry 5).
2. Factor Other than Sex
Although plaintiff has made out a prima facie case of wage discrimination involving the Corpus Christi position, defendant may nevertheless be entitled to judgment if it can show that the pay differential was justified under one of four exceptions. Defendant argues that the pay differential here does not violate the EPA because it was attributable to a factor other than sex. Specifically, defendant maintains that Bresler's higher salary was justified by: (1) the immediate need for a replacement; (2) the limited market of qualified candidates; (3) her credentials; and (4) her negotiation demands.
In support of its motion, defendant offered evidence that after plaintiff's transfer to San Antonio, the Corpus Christi Director of Rehabilitation position was initially offered to David Carter, a male from Cincinnati, Ohio, at an approximate annual salary of $65,000. When Carter subsequently revoked his acceptance, defendant offered the position to Bresler. In her affidavit, Bresler stated that she was previously employed as an Operating Manager for Physical Medicine at an annual salary of $72,000. Bresler further testified that she only accepted the Corpus Christi position when defendant agreed to match her prior salary. Citing a limited applicant pool and its immediate need to fill the position, defendant argues that Bresler's experience, credentials, and negotiating demands justified a higher salary than plaintiff's.
Docket Entry 22, Exhibit B (affidavit of Jack Carney).
Docket Entry 22, Exhibit H (affidavit of Jackie Bresler).
Bresler was a Registered Therapist and had some personnel management experience at the time of her hire. Docket Entry 22, Exhibit D, p. 10 (deposition testimony of Jack Carney).
Defendant's reliance on these factors finds support in the law. "Any factor other than sex" is a general, catch-all exception to the application of the EPA. The exception has been found to apply "when the disparity results from unique characteristics of the same job; from an individual's experience, training or ability; or from special exigent circumstances connected with the business." Accordingly employers typically do not violate the EPA where the payment of disparate wages was based on an applicant's credentials or experience, plus the demand that the prospective employer match her previous salary. Here, defendant's proffered rationale fits within this framework. Bresler's credentials and negotiating demands, when combined with defendant's alleged exigent business circumstances, may support a finding that defendant did not violate the EPA when it salaried Bresler at a rate higher than plaintiff.
Irby v. Bittick, 44 F.3d 949, 956 n. 10 (11th Cir. 1995) (citing Glenn v. General Motors Corp., 841 F.2d 1567, 1571 (11th Cir.), cert. denied, 488 U.S. 948 (1988)).
Glenn, 841 F.2d at 1571 (interpreting legislative history behind the EPA).
See, e.g., Irby, 44 F.3d at 955 ("[A]n Equal Pay Act defendant may successfully raise the affirmative defense of `any other factor other than sex' if he proves that he relied on prior salary and experience in setting a `new' employee's salary."); Mazella v. RCA Global Communications, Inc., 642 F.Supp. 1531, 1551 (S.D.N.Y. 1986) (holding that higher salary did not violate Act where it was based on previous salary, skills and experience of applicant).
However, even a legitimate, non-discriminatory reason for the pay differential will not justify summary judgment where plaintiff is able to show that defendant's proffered reasons are a pretext for gender discrimination. Plaintiff argues defendant did not face an immediate need to fill the position. The record does lend some support to plaintiff's position. Specifically, plaintiff testified that he managed both the Corpus Christi and San Antonio networks during the time that defendant was seeking his replacement for the Corpus Christi position. It is not disputed that plaintiff managed both networks for a period of time immediately prior to his transfer to San Antonio in November of 2002. The record indicates that plaintiff was compensated for this "double-duty." Plaintiff has also testified that he was willing to continue managing both networks "as long as they needed me to do it." Defendant failed to rebut this evidence.
Deposition testimony of plaintiff, p. 64.
Docket Entry 25, Exhibit E.
Deposition testimony of plaintiff, p. 56.
Where, as here, the defendant has moved for summary judgment, I am required to examine all evidence proffered by plaintiff in the light most favorable to plaintiff's case. Furthermore, in arguing an exception to the EPA, the defendant bears a heavy burden to demonstrate a total absence of any issue for jury resolution. In the instant case, I cannot find that defendant has met this burden. While the record does support defendant's proffered explanation for the pay disparity, plaintiff has adduced sufficient evidence of pretext to survive summary judgment. Thus, the credibility and weight to be given to defendant's explanation for the pay differential in this case is a matter properly left to the consideration of the jury. For these reasons, defendant's motion for summary judgment on plaintiff's claim that he was paid less as Director of the Corpus Christi network than his successor in violation of the Equal Pay Act is DENIED.
See Buntin v. Breathitt County Bd. of Educ., 134 F.3d 796, 800 (6th Cir. 1998) (citing EEOC v. State of Del. Dep't of Health and Soc. Servs., 865 F.2d 1408, 1414 (3rd Cir. 1989)).
See Mulhall v. Advance Security, Inc., 19 F.3d 586, 590 (11th Cir.), cert. denied, 513 U.S. 919 (1994) ("At summary judgment, plaintiff's burden is simply to raise a genuine factual question as to the existence of pretext."); Kennett-Murray Corp. v. Bone, 622 F.2d 887, 892 (5th Cir. 1980) ("[T]he district court must not resolve factual disputes by weighing conflicting evidence, since it is the province of the jury to assess the probative value of the evidence.") (citations omitted); National Screen Serv. Corp. v. Poster Exchange, Inc., 305 F.2d 647, 651 (5th Cir. 1962) ("The fact that it may be surmised that the party against whom the motion is made is unlikely to prevail at the trial is not sufficient to authorize summary judgment against him.") (citations omitted).
B. Title VII
Defendant also moves for summary judgment on plaintiff's Title VII claims. Defendant argues that plaintiff's gender and national origin discrimination claims fail as a matter of law because (1) plaintiff cannot prove he was qualified to hold the position from which he was terminated; and (2) plaintiff cannot meet his burden of establishing that defendant's legitimate, non-discriminatory reasons for terminating him were merely pretextual.
Title VII provides that it is "an unlawful employment practice for an employer . . . to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. . . ." A plaintiff can prove a claim of intentional discrimination by either direct or circumstantial evidence. Direct evidence is "evidence which if believed, proves the fact [in question] without inference or presumption." Absent direct evidence of discriminatory intent, proof via circumstantial evidence is evaluated using the framework set forth in the seminal case of McDonnell Douglas Corporation v. Green. To create a presumption of intentional discrimination, the plaintiff must first establish a prima facie case of discrimination. A plaintiff establishes a prima facie case of intentional discrimination by showing that he (1) is a member of a protected class; (2) was qualified for his position; (3) was subjected to an adverse employment action; and (4) was replaced by someone outside the protected class. If the plaintiff establishes a prima facie case, a rebuttable presumption arises that the employer unlawfully discriminated. The burden of production then shifts to the defendant to present admissible evidence that the plaintiff was terminated for a legitimate, nondiscriminatory reason. If defendant satisfies this burden, the presumption disappears and the plaintiff has the opportunity to prove that the reason articulated by the employer was a pretext for discrimination.
42 U.S.C. §§ 2000e-(2)(a)(1).
Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th Cir. 2003).
411 U.S. 792 (1973).
Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989); Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981).
Septimus v. Univ. of Houston, 399 F.3d 601, 609 (5th Cir. 2005).
Patterson, 491 U.S. at 187; Burdine, 450 U.S. at 254.
Burdine, 450 U.S. at 254.
Patterson, 491 U.S. at 187; Burdine, 450 U.S. at 256.
For purposes of proving pretext, it is not enough to show the stated reason was false; plaintiff must show both the stated reason was false and discrimination was the actual reason for the adverse employment action. It is, however, permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation. Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude the employer unlawfully discriminated. Therefore, the plaintiff need not produce independent evidence of discrimination. Instead, "rejection of the defendant's proffered reasons will permit a trier of fact to infer the ultimate fact of intentional discrimination."
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 516-17 (1993).
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000).
Id. at 148.
St. Mary's Honor Ctr., 509 U.S. at 511.
1. Plaintiff's Prima Facie Case of Discrimination
Defendant does not dispute that plaintiff is a member of a protected class, that he was terminated, and that he was replaced by someone outside his class. Defendant argues, however, that plaintiff must also show that he was qualified for the position he held in order to establish his prima facie case. Defendant argues that plaintiff was not qualified for his position because of his failure to meet performance criteria. Specifically, defendant points to the subjective criticisms of plaintiff's supervisor, Jack Carney, as proof that defendant was not qualified to serve as Director of Rehabilitation of the San Antonio network.
See affidavit of Jack Carney. Defendant summarizes its justification for terminating plaintiff as follows:
Mr. Perales' performance as Director of Rehabilitation at ARC's Parklane West facility in San Antonio began to deteriorate during the Summer of 2003, when Plaintiff began to experience a number of significant difficulties in his personal life. The deficiencies in Mr. Perales' work performance included, without limitation: his increasingly "aloof," unaccountable, or out-of-touch management practices; his failure to turn in accurate or complete records; his failure to meet deadlines; his failure to meet budget expectations; his failure to meet minimum standards on compliance audits (including his unprecedented two consecutive failures on a standardized audit test); his overly casual, lackadaisical, and/or arrogant interaction with co-workers and senior personnel on important matters; and his regular unavailability to co-workers and senior personnel who needed his assistance. Due to his ongoing failure to resolve all of the aforementioned performance problems, Mr. Perales was removed from his position as Director of Rehabilitation at the Parklane West facility in San Antonio on March 1, 2004. In conjunction with its removal of Mr. Perales from his position in San Antonio, ARC offered Mr. Perales the Director of Rehabilitation position in Jacksonville, Florida, which would have provided Mr. Perales with an opportunity to lead a smaller program that ARC felt better matched his abilities and skill set. Because Mr. Perales declined the Jacksonville position, his employment with ARC was terminated.Id.
Plaintiff responds, and this court agrees, that plaintiff's objective qualifications to hold the Director of Rehabilitation position satisfy this element of his prima facie case. Importantly, defendant does not argue that plaintiff was not objectively qualified to hold his position at the time he was terminated. Furthermore, defendant concedes that it did not follow company procedures in arriving at the decision to terminate plaintiff, nor utilize purely objective criteria when evaluating plaintiff's performance.
Docket Entry 27, p. 3; deposition testimony of Jack Carney, p. 10.
The Fifth Circuit has held that subjective criteria such as that relied upon by defendant "should not be considered a part of the prima facie evaluation in a summary judgment proceeding." In Lindsey v. Prive Corporation, the Court explained:
Lindsey v. Prive Corp., 987 F.2d 324, 327 (5th Cir. 2000).
If a plaintiff's failure to establish that she met the employer's subjective criteria could defeat her prima facie case, the court would then not be required to consider evidence of pretext. Thus the use of the subjective criteria would go unchallenged. This result is clearly at odds with the mandate of McDonnell Douglas that a plaintiff be afforded a full and fair opportunity to demonstrate that the stated reason for rejection was in fact pretext.
Id. (quoting Burrus v. United Tel. Co. of Kansas, Inc., 683 F.2d 339, 342 (10th Cir.), cert. denied, 459 U.S. 1071 (1982)). See also Medina v. Ramsey Steel Co., Inc., 238 F.3d 674 (5th Cir. 2001); Jayasinghe v. Bethlehem Steel Corp., 760 F.2d 132 (7th Cir. 1985); Lynn v. Regents of the Univ. of Cal., 656 F.2d 1337 (9th Cir. 1981), cert. denied, 459 U.S. 823 (1982).
Thus, allowing defendant to attack plaintiff's prima facie case with its subjective criticisms of plaintiff's work performance would sidestep the analytical framework consistently applied in Title VII cases.
Defendant attempts to distinguish Lindsey on the basis that it involved an action for failure to promote while the claims before this court involve termination. The analysis applies equally to termination cases, however. In Bienkowski v. American Airlines, Inc., the Fifth Circuit explained that "[p]lacing a plaintiff's `qualifications' in issue at both the prima facie case and pretext stages of a termination case is an unnecessary redundancy." In holding that the defendant could not argue dissatisfaction with plaintiff's work at the prima facie stage of the case, the Court noted that
851 F.2d 1503 (5th Cir. 1988).
Bienkowski, 851 F.2d at 1505. In Bienkowski, plaintiff alleged wrongful termination in violation of the Age Discrimination in Employment Act. In the Fifth Circuit, claims under the ADEA are analyzed using the burden shifting framework of Title VII. See Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002), cert. denied, 539 U.S. 982 (2003) (citing Russell v. McKinney Hospital Venture, 235 F.3d 219, 222 n. 3 (5th Cir. 2000)). Thus, to the extent that defendant attempts to distinguish Bienkowski on the ground that it was brought under the ADEA as opposed to Title VII, I find this argument without merit. Further, as will be discussed in the pretext analysis section of this Order and Opinion, multiple fact issues surround defendant's subjective criticisms of plaintiff's work performance. Thus, even if I were to accept defendant's argument that plaintiff's subjective qualifications may be used to defeat his prima facie case, issues of material fact would still preclude summary judgment.
a plaintiff challenging his termination or demotion can ordinarily establish a prima facie case of age discrimination by showing that he continued to possess the necessary qualifications for his job at the time of the adverse action. The lines of battle may then be drawn over the employer's articulated reason for its action and whether that reason is a pretext for age discrimination.
Bienkowski, 851 F.2d at 1506 (footnote omitted).
The Court elaborated on "necessary qualifications" by explaining that "[b]y this we mean that plaintiff had not suffered physical disability or loss of a necessary professional license or some other occurrence that rendered him unfit for the position for which he was hired." Thus, a plaintiff need only show that he was objectively qualified to hold the position from which he was terminated in order to satisfy this element of his prima facie case.
Id. at n. 3.
In arguing that plaintiff's alleged poor performance eviscerates his prima facie case of discrimination, defendant also directs the court to the Fifth Circuit's opinion in Sreeram v. Louisiana State University Medical Center. In Sreeram, the Court analyzed the plaintiff's poor performance in a medical residency program at the prima facie stage of her Title VII gender and national origin discrimination case and in the context of a motion for summary judgment. After reviewing the record, the Court concluded that plaintiff failed to produce any evidence of her non-objective qualifications to continue in the residency program from which she was terminated. The record in that case was replete with uncontradicted testimony that plaintiff lacked the requisite skill to remain in the residency program as a practicing surgeon. Finding that her objective qualifications for entry into the program had not translated into the "real world" skills required of a surgeon, the Court upheld the district court's determination that she was not qualified to continue as a third year resident in the program. The Court, citing Bienkowski, held that where the plaintiff has presented no significant evidence of her qualifications, summary judgment may be granted. Sreeram, however, is distinguishable from the instant case. First, defendant here has expressly conceded that plaintiff was objectively qualified for his position. Second, and as will be discussed below, plaintiff has adduced sufficient evidence to raise a fact question concerning defendant's attack on his subjective qualifications. In contrast to plaintiff in Sreeram, plaintiff here has presented sufficient evidence that he was qualified for the position from which he was terminated so as to survive summary judgment.
188 F.3d 314 (5th Cir. 1999).
Id. at 319 (citing Bienkowski, 851 F.2d 1503).
See Docket Entry 27, p. 3; deposition testimony of Lee Anne Fein, p. 63.
In an unpublished opinion, the Fifth Circuit recently reached the same conclusion under similar circumstances. See Mayberry v. Tarrant County Cmty. Supervision and Corrections Dep't, 34 Fed.Appx. 962, 2002 WL 663713 (5th Cir. 2002). In Mayberry, a Title VII action for wrongful termination, the Court acknowledged the apparently contradictory holdings of Sreeram and Bienkowski, but concluded that because the plaintiff had presented sufficient evidence to establish that he was qualified under either analysis, it was not necessary to attempt to harmonize or distinguish those decisions. Id. at n. 5.
2. Defendant's Legitimate, Non-Discriminatory Reason for Terminating Plaintiff
As already noted, defendant alleges that a legitimate, non-discriminatory reason motivated its decision to terminate plaintiff, namely plaintiff's poor job performance. The record reflects that plaintiff's alleged performance problems began approximately eight months before his termination. Plaintiff's own testimony establishes that he was "verbally counseled" on multiple occasions concerning his performance and that he did not disagree with the substance of these counselings. The record also indicates that plaintiff was put on a corrective "written action plan" in September of 2003 and again in January of 2004, requiring plaintiff to meet certain performance related objectives.
Deposition testimony of Jack Carney, p. 17; deposition testimony of Lee Anne Fein, p. 74.
Deposition testimony of plaintiff, pp. 116-117.
Deposition testimony of plaintiff, p. 123.
Deposition testimony of Jack Carney, p. 102; deposition testimony of Marilyn Cervantes, pp. 66-67.
Plaintiff argues, and this court agrees, that genuine issues of material fact concerning defendant's rationale for terminating plaintiff make summary judgment inappropriate. First, the record reveals that during the time defendant alleges plaintiff's performance was deficient, plaintiff earned a substantial year-end bonus based on the performance of his network. In addition, defendant awarded plaintiff a partial merit-based pay raise approximately four months before the decision was made to terminate him. Plaintiff has also submitted credible evidence that plaintiff's assisted living facilities were outperforming Bresler's in terms of CPT code generation in the months leading up to his termination. Lastly, the decision to fire plaintiff was made approximately two weeks before his deadline to complete the goals laid out in the performance improvement plan of January 29, 2004. Defendant provides no justification for its decision to terminate plaintiff prior to the stated deadline, other than to repeat its laundry list of alleged performance deficiencies. Importantly, however, the record reveals that plaintiff met all of the performance-based objectives of the January 29 action plan within the allotted time frame.
Docket Entry 25, Exhibit F (email from Jack Carney to plaintiff indicating that plaintiff's bonus for the third and fourth quarters of 2003 equaled "[$]8,096.76 or 96% of your bonus."); deposition testimony of Jack Carney, pp. 44-46; deposition testimony of Lee Anne Fein, pp. 134-36.
Docket Entry 25, Exhibit F (personnel action form indicating 2% merit-based pay increase).
Deposition testimony of Jack Carney, pp. 98-99.
Id. at p. 16.
Id. at pp. 43-44.
I note that although there is not a large quantity of evidence to support plaintiff's allegations of intentional gender or national origin discrimination, the Fifth Circuit has made it clear that summary judgment is strongly disfavored in Title VII actions. As plaintiff has presented evidence raising a material fact issue as to whether defendant's reasons for terminating him were pretextual, I cannot find that defendant is entitled to summary judgment on plaintiff's Title VII cause of action. Defendant's motion for summary judgment on plaintiff's Title VII cause of action is therefore DENIED.
See Fierros v. Texas Dept. of Health, 274 F.3d 187, 190 (5th Cir. 2001) ("The Supreme Court recently emphasized the paramount role that juries play in Title VII cases, stressing that in evaluating summary judgment evidence, courts must refrain from the making of credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts, which are jury functions, not those of a judge.") (internal quotations and alteration omitted) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986)).
V. Conclusion
For the foregoing reasons, it is ORDERED that defendant's motion for summary judgment (Docket Entry 22) is:
1. GRANTED as to plaintiff's Equal Pay Act claim based on the salary differential for the San Antonio and Corpus Christi Director positions,
2. DENIED with respect to the Equal Pay Act claim alleging plaintiff was paid less as Corpus Christi Director as compared to his successor in that position, and
3. DENIED as to plaintiff's Title VII claim.
With respect to those claims for which this motion has been denied, trial will proceed as previously scheduled.