Opinion
Civil File: 02-482 (MJD/JGL)
January 8, 2004
Nicholas May, Nicols, Kaster Anderson, for and on behalf of the Plaintiff
Kathlyn Noecker, Faegre Benson, for and on behalf of the Defendant
ORDER
I. INTRODUCTION
This matter is before the Court on Defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the following reasons, the Court denies Defendant's motion.
II. BACKGROUND
Plaintiff Delores Rubel ("Rubel") began her employment with Defendant Century Bancshares, Inc., ("Century") on August 20, 2001. Century terminated her employment on October 23, 2001. Rubel was sixty-seven years old. Rubel brought this current action against Century for age discrimination.
In October 2000, Mary Board ("Board"), Assistant Branch Manager for Century's St. Louis Park branch, and Dan Roberts ("Roberts"), Branch President, unsuccessfully attempted to recruit Rubel to work as a financial service representative ("FSR") at the St. Louis Park Branch. An FSR is essentially a bank teller. Rubel was working for a competitor bank in a similar capacity at the time. At that time, Roberts and Board did not know Rubel's age. Roberts claims that he suspected Rubel to be approximately sixty years old and Board claims that she thought Rubel to be in her late fifties or early sixties. In fact, Rubel was sixty-six years old.
In June 2001, Board and Roberts successfully recruited Rubel to work for Century. Century agreed to pay Rubel a signing bonus payable upon the completion of a ninety day probation period and to reimburse Rubel for transitional health and dental costs until Rubel was covered under Century's health benefits. Rubel's employment package with Century made Rubel the highest paid FSR at the bank. On August 20, 2001, at age sixty-seven, Rubel began working as a FSR for Century.
FSRs assist customers and process transactions. According to Century, however, it hired Rubel to replace a FSR who served as a mentor for the other FSRs. Century asserts that it expected Rubel, because of her three and one-half years of experience as a teller, to take on these additional roles in conjunction with the normal FSR duties. Rubel asserts that Century never communicated those expectations to her during the interview process. The parties agree that during her two months with Century, Rubel was meeting the basic functions of the FSR position. The parties dispute, however, whether Rubel was meeting Century's expectations related to leadership, mentoring, and customer service.
On October 18, 2001, Rubel met with Marya Asher ("Asher"), Century's employee relations coordinator, to discuss payment of Rubel's transitional benefits. Asher asked Rubel if COBRA payments could be made directly to Rubel's former employer. Rubel informed Asher that the payment was actually a payment to Medicare. Asher responded, "You're not sixty-five, are you?" Rubel told Asher that she was. Asher was surprised by Rubel's age. Rubel asked Asher whether there were any other Century employees who were over age sixty-five. Asher responded that only the bank's CEO was over sixty-five. Asher then asked Rubel whether she was taking any medications. Rubel responded that she was not.
Later that day, Rubel approached Board about enrolling her daughter as a customer in Century's private banking program. Later, Rubel claims that Board approached Rubel to ask how old Rubel's daughter was. Rubel revealed her daughter's age to Board.
Five days later, on October 23, 2001, Century terminated Rubel's employment. Board and Roberts, after consultation with Asher, made the decision to terminate Rubel.
On March 1, 2002, Rubel brought this action alleging age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and the Minnesota Human Rights Act, Minn. Stat. § 363.01 et seq. Defendant now moves for summary judgment on all claims.
III. DISCUSSION
A. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if, viewing all facts in the light most favorable to the non-moving party, there is no genuine issue as to any material fact, and 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, 322-23 (1986). The party seeking summary judgment bears the burden of showing that there is no disputed issue of material fact.Celotex, 477 U.S. at 323. The Court notes that "summary judgment should seldom be granted in the context of employment actions, as such actions are inherently fact based." Hindman v. Transkrit Corp., 145 F.3d 986, 990 (8th Cir. 1998). It is difficult for plaintiffs in employment discrimination cases to prove their case by direct evidence, so they must often rely on inference to establish their case. Johnson v. Minn. Historical Soc'y, 931 F.2d 1239, 1244 (8th Cir. 1991). Summary judgment is only appropriate when "there is no dispute of fact and where there exists only one conclusion."Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994) (citation omitted).
Three issues are before the Court in this summary judgment motion: (1) whether Rubel has raised a genuine issue of material fact on her claim under the Age Discrimination in Employment Act ("ADEA"); (2) whether Rubel has raised a genuine issue of material fact on her age discrimination claim under the Minnesota Human Rights Act ("MHRA"); and (3) whether Rubel has, as a matter of law, failed to mitigate her damages. The Court will address each issue in turn.
B. AGE DISCRIMINATION CLAIMS
1. Standard Governing Rubel's ADEA Claim
The ADEA makes it unlawful for an employer to discharge or otherwise discriminate against an individual with regard to compensation and other terms and conditions of employment on the basis of age. 29 U.S.C. § 623(a)(1). Persons forty years of age or older are protected by the ADEA. 29 U.S.C. § 631.
Under the traditional McDonnell Douglas burden-shifting analysis, as applied to the ADEA, Rubel must first establish a prima facie case, which creates a legal presumption of unlawful discrimination.Ryther v. KARE 11, 108 F.3d 832, 836 (8th Cir. 1997) (en bane). Once Rubel establishes her prima facie case, the burden of production shifts to Century to articulate a legitimate nondiscriminatory reason for terminating Rubel's employment. Id. If Century proffers such a reason, the presumption of discrimination drops out. Rubel must present evidence sufficient to raise a question of material fact as to whether Century's proffered reason was pretextual and to create a reasonable inference that age was a determinative factor in the adverse employment decision. Hindman v. Transkrit Corp., 145 F.3d 986, 991 (8th Cir. 1998). Rubel's prima facie case, along with sufficient evidence that Century's proffered reason is pretextual, may permit a jury to find for Rubel and entitle her claim to survive summary judgment.Ryther, 108 F.3d at 837.
Rubel argues that the burden-shifting analysis of McDonnell Douglas has been modified by the recent Supreme Court decision inDesert Palace, Inc. v. Costa, 539 U.S. — 123 S.Ct. 2148 (2003). She argues that the ultimate effect of the Desert Palace decision is that an employee no longer needs to establish pretext in order to survive summary judgment: if the employee presents circumstantial or direct evidence of age discrimination, the burden of proof shifts to the employer to prove that it would have terminated the employee even if it had not considered the employee's age. In this case, however, the Court does not need to fully explore the impact of Desert Palace on Rubel's ADEA claim, because it concludes that even under the more stringent McDonnell Douglas analysis, required for Rubel's MHRA claim, Rubel's age discrimination claims survive summary judgment.
2. Standard Governing Rubel's MHRA Claim
Because the Minnesota Supreme Court has rejected application of the mixed-motive analysis to age discrimination claims under the MHRA, claims under the MHRA are analyzed under the traditional McDonnell Douglas analysis. See Erickson v. Farmland Indus., Inc., 271 F.3d 718, 724 n. 2 (8th Cir. 2001); Anderson v. Hunter, Keith, Marshall Co., 417 N.W.2d 619, 626-27 (Minn. 1988). TheDesert Palace decision has not been adopted by the Minnesota Supreme Court, and does not alter the analysis under the MHRA. Thus, the parties and the Court agree that Rubel's MHRA claim must be analyzed under the McDonnell Douglas framework explained above.
3. Analysis of Rubel's Claim under McDonnell Douglas
a. Rubel's Prima Facie Case
To establish her prima facie case, Rubel must show that (1) she was age forty or older; (2) she met the applicable job qualifications; (3) she was discharged; and (4) Century did not discharge nonmembers of Rubel's class, or Rubel was replaced by someone substantially younger.Mayver v. Nextel West Corp., 318 F.3d 803, 807 (8th Cir. 2003);Kneibert v. Thomson Newspapers, Mich. Inc., 129 F.3d 444, 452 n. 4 (8th Cir. 1997). See also Jones v. Reliant Energy-ARKLA, 336 F.3d 689, 691 (8th Cir. 2003). Century does not dispute that Rubel can establish prongs (1), (3), and (4) of the test.
Century argues that Rubel has not established a prima facie case, because she cannot show that she was meeting Century's legitimate performance expectations. Century argues that within five weeks after Rubel began work, co-workers complained to Board regarding excessive personal calls, shouting for assistance in the workplace, not assisting customers at the drive-up window, and misdirecting customers to FSRs who were busy with other customers. These complaints demonstrated Rubel's inability to work in a team atmosphere and provide customer service. Board met with Rubel on September 26, 2001, and on September 28, 2001, regarding these issues.
Rubel responds that the standard for assessing employee performance is "not that of the ideal employee, but rather what the employer could legitimately expect." See, e.g., Keathley v. Ameritch Corp., 187 F.3d 915, 920 (8th Cir. 1999). Board admitted that Rubel was doing well with regard to FSR functions that could be objectively measured. Rubel also notes the opinion of her trainer, Maria Duenas ("Duenas"). Board testified that she "absolutely" trusted Duenas's judgment and that Duenas would "definitely" know if Rubel was meeting Century's expectations or not. Duenas testified that, in her opinion, Rubel was doing well at her job. Additionally, during her employment Rubel won an award related to correctly balancing her drawer, an important FSR function. As late as October 11, 2001, two weeks before Rubel was terminated, Board sent an email to Roberts suggesting that Century assign additional duties and responsibilities to Rubel. Rubel argues that Board would not delegate additional responsibilities to an employee who was not meeting expectations. Board admitted that no event occurred after October 11 that caused Board to make the decision to terminate Rubel.
Finally, Rubel argues that Century did not discharge younger FSRs who demonstrated the same performance problems that Century claims Rubel had. For example, Century admonished FSR Shawna Busiahn multiple times for interrupting coworkers and being impatient with employees and customers. Busiahn also demonstrated problems accurately balancing her drawer. Despite Busiahn's problems with patience, interruption, and accuracy, Board did not consider terminating Busiahn and Century did not to terminate Busiahn's employment. Busiahn was between eighteen and twenty years old during her employment with Century.
The Court finds that Rubel has met her burden to defeat summary judgment by offering "specific facts [to] show that there is a genuine issue for trial" on the issue of her "qualification." Federal Rule of Civil Procedure 56(e). Rubel was meeting the objective measures of her job, was meeting Century's expectations in the opinion of her trainer, whose opinion Board trusted, and was performing well enough that Board wanted to assign additional responsibilities to her. Rubel has also presented evidence that Century did not terminate younger FSRs for displaying performance problems similar to those that Century claimed Rubel exhibited.
b. Century's Non-discriminatory Reason
Because Rubel has met her burden of establishing a prima facie case, Century must produce a legitimate nondiscriminatory reasons for terminating Rubel's employment. Century meets its burden by claiming that Rubel failed to meet Century's expectations regarding leadership, mentoring, and exceptional customer service. Century argues that Rubel was hired to replace a former experienced FSR who provided those qualities. Century claims that with her experience, and high salary, Rubel was expected to perform at a level higher than the average Century FSR. Rubel now bears the burden of showing that Century's reason was pretextual and of creating a reasonable inference that Century's decision to terminate Rubel was motivated by her age.
c. Rubel's Proof of Pretext and Discrimination
i. Same Actor Principle
Century argues that under the same actor principle, Rubel cannot meet her burden at the pretext stage. In the absence of other evidence of discrimination, when the same person hires an employee with the protected characteristic and then fires that same employee a short time later, there is a strong inference of non-discrimination. Rothmeier v. Inv. Advisers, Inc., 85 F.3d 1328, 1337 (8th Cir. 1996); Lowe v. J.B. Hunt Transp., Inc., 963 F.2d 173, 175 (8th Cir. 1992) ("It is simply incredible, in light of the weakness of plaintiff's evidence otherwise, that the company officials who hired him at age fifty-one had suddenly developed an aversion to older people less than two years later."). However, the Eighth Circuit has clarified that the same actor principle does not compel a grant of summary judgment when the employee presents inferential evidence of overt discrimination. Kells v. Sinclair Buick-GMC Truck, Inc., 210 F.3d 827, 835 (8th Cir. 2000).
Additionally, although not explicitly articulated in the Eighth Circuit's decisions, the same actor principle presupposes that the person who hired the plaintiff was aware of the plaintiff's protected characteristic at the time of hiring. If the hirer does not know of the employee's characteristic at the time of hiring, subsequently discovers that the employee does possess the protected characteristic, and then promptly fires the employee, it is not at all illogical to infer that the employer was motivated by animus. In fact, as explained below, such a sequence of events may help the employee's claim to survive a summary judgment motion.
In this case there is evidence that Century did not know Rubel's age when it hired her. Board and Roberts both admit that they did not think that Rubel was over sixty-five years old when they hired her. Additionally, Marya Asher's comment, "You're not over 65 are you?" could lead a reasonable jury to infer that Century was not aware of Rubel's true age when it hired her, and was surprised that Rubel was over the age of sixty-five. Five days after Century learned that Rubel was, in fact, over 65, Century terminated her employment. Because Century was unaware of Rubel's age when it hired her, the same actor principle does not apply.
ii. Rubel's Evidence of Pretext
Rubel disputes Century's contention that she had failed to meet its expectations. She argues that Maria Duenas, her trainer, whose judgment Board "absolutely" trusted and who would "definitely" know if Rubel was meeting expectations or not, testified that, in her opinion, Rubel was meeting Century's expectations. Some of the other tellers, on whose complaints Board relied in making the decision to terminate Rubel, testified that Board exaggerated the number and extent of their complaints and that Rubel's performance improved after their complaints. Finally, Rubel notes that Century did not terminate the employment of younger tellers, such as Busiahn, who admittedly practiced the same behavior allegedly shown by Rubel.
While "the issue is not whether the reason articulated by the employer warranted the [action], but whether the employer acted for a nondiscriminatory reason," Halsell v. Kimberly-Clark Corp., 683 F.2d 285, 292 (8th Cir. 1982), "[i]n appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose."Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 134 (2000). "Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision." Id. Thus, Rubel's evidence that Century's proffered reason was pretextual and that younger FSRs were treated differently supports Rubel's claim that Century's decision to terminate her was motivate by her age.
iii. Timing of Rubel's Termination
Rubel's claim is also supported by the suspicious timing of her termination. Century did not know Rubel's age when it hired her, but days after Asher discovered her approximate age, Century fired her. "Although timing alone may be insufficient to raise an inference of discrimination, coupled with `other circumstances [that] are inferential proof of overt discrimination,' suspicious timing can support a finding of discrimination." Moysis v. DTG Datanet, 278 F.3d 819, 826 (8th Cir. 2002) (citation omitted). See also O'Brvan v. KTIV Television, 64 F.3d 1188, 1194-95 (8th Cir. 1995) (holding that close temporal proximity, along with circumstances such as increased job scrutiny and employer comments, created a genuine issue of material fact on employee's ADEA retaliation claim).
In this case, Rubel has presented evidence that she was meeting Century's performance expectations. Asher then discovered that Rubel was over sixty-five. Five days later, after consultation with Asher, Century terminated Rubel. Although Century argues that Board and Roberts did not know Rubel's age when they fired her, Century's claimed lack of knowledge presents a question of fact for the jury. Combined with Rubel's evidence of pretext, Century's interest in Rubel's age, demonstrated by Asher's inquiry into Rubel's age and Board's inquiry into Rubel's daughter's age, and Asher's question of whether Rubel was on medication after discovering that Rubel was over sixty-five, the Court finds that the suspicious timing of Rubel's termination permits an inference of discrimination.
iv. Conclusion
When deciding a motion for summary judgment, the Court does not decide which party's version of events is most reasonable. Rather, the Court must determine whether no reasonable jury could find for the non-moving party. A reasonable jury could find that Century's explanation is false, and that finding, coupled with Rubel's prima facie case, the suspicious timing of her termination, and comments by Asher and Board, could permit a reasonable jury to find that Century's decision to terminate Rubel was motivated by her age. Because "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge," the Court must allow Rubel the opportunity to put her claims before a jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
C. MITIGATION OF DAMAGES
Century also seeks summary judgment on the issue of whether Rubel failed to mitigate her damages after the first week following her discharge. Thus, Century seeks to limit Rubel's recovery of back pay the first week following her discharge.
Century argues that although Rubel contacted various U.S. Bank branches and another non-banking employer during the week following her discharge, after that first week she only contacted three more banks, a department store and a bridal shop. Rubel then took on only one part-time non-banking position. Century argues that Rubel's actions were clearly unreasonable, because eight Sunday editions of the Star Tribune from November 2002 to February 2003 advertised twenty-five banking positions similar to Rubel's position at Century, but yet Rubel did not inquire into or apply for any of the positions. Additionally, as of January 12, 2003, Rubel had ceased looking for full-time work, because she hoped to turn her current part-time position at Skin Body Therapese into a full-time position.
Rubel counters that after her discharge, she inquired into four U.S. Bank positions and into a position at Bremer Bank. She also inquired at Marshall Fields at Ridgedale, Main Street Gallery, and Rush's Bridal Shop. She then started a job one day per week at Skin and Body Therapese in August or September 2002. Beginning in January, her job expanded to two days per week. In her deposition, Rubel testified that she was collecting unemployment and, thus, had to visit the unemployment office "every so often and go through what's available" and that she could not find available suitable jobs. Additionally, Rubel testified that she did look at the want ads on a daily basis.
Under the ADEA, a plaintiff's damages will be reduced unless she demonstrates that she attempted to mitigate her damages. Newhouse v. McCormick Co., Inc., 110 F.3d 635, 641 (8th Cir. 1997). The plaintiff must use reasonable diligence to find another suitable job and cannot refuse a job that is substantially equivalent to the lost job.Id. The plaintiff's duty to mitigate "is not onerous and does not requires success," but merely requires "an honest, good faith effort.'" Id. (citations omitted). A plaintiff may meet her burden although she only manages to find part-time work. Id. See also Brooks v. Woodline Motor Freight, Inc., 852 F.2d 1061, 1065 (8th Cir. 1988) (holding that a plaintiff who only searched for work for one month before starting his own business, and then turned down an offer for employment was not, as a matter of law, unreasonable). The burden of proving that the plaintiff could have mitigated her damages rests on the defendant. Hartley v. Dillard's, Inc., 310 F.3d 1054, 1061 (8th Cir. 2002).
Rubel has raised a genuine issue of material fact as to whether she made reasonable efforts to seek suitable employment. Whether Rubel did indeed search the want ads, whether her efforts to search were reasonable, and whether her decision to settle for part-time employment was reasonable, are all questions for the jury.
IV. CONCLUSION
In summary, because genuine issues of material fact exist regarding Rubel's ADEA and MHRA claims, and regarding Rubel's mitigation of damages, the Court denies Century's motion for summary judgment.
IT IS HEREBY ORDERED:
The defendant's motion for summary judgment [Docket No. 21] is DENIED.