Rose v. Buckeye Telesystem, Inc.

181 F.Supp.2d 772

Barbara J. ROSE, Plaintiff, v. BUCKEYE TELESYSTEM, INC., et al., Defendants.

No. 3:00 CV 7530.

United States District Court, N.D. Ohio, Western Division.

December 4, 2001.

Beth M. Rivers, Pitt, Dowty, McGehee & Mirer, Royal Oak, MI, Bonnie R. Rankin, Rankin & Sharkey, Michelle L. Kranz, Zoll & Kranz, Toledo, OH, for Plaintiff.

Fritz Byers, Margaret Mattimoe Sturgeon, Eastman & Smith, Robert J. Gilmer, Jr., Eastman & Smith, Toledo, OH, for Defendants.

ORDER

CARR, District Judge.

Plaintiff Barbara J. Rose brings this action against Defendants Buckeye Telesystem Inc. ("Buckeye") and Block Communications claiming she was discriminated against on the basis of age and sex. This court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. Pending is defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56(c). For the following reasons, defendants' motion shall be granted.

BACKGROUND

In August, 1998, plaintiff began employment with Buckeye as an Account Executive. Plaintiff's complaint alleges several incidents. In August, 1999, plaintiff complained to her manager, John Martin, alleging that male account executives stole accounts from her. In November, 1999, defendant offered an Account Specialist position to plaintiff. Plaintiff rejected this position on December 1, 1999, alleging the position was a demotion.

In January, 2000, defendant announced a new commission program which eliminated the base salary of the account executive positions. Following a meeting to discuss the program, Buckeye disciplined plaintiff for making a negative comment during the meeting.

On February 7, 2000, Buckeye suspended plaintiff for a negative attitude. When she returned to work, plaintiff was told to move her work space to another cubicle.

STANDARD OF REVIEW

Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting FED. R. CIV. P. 56(e)).

Once the burden of production shifts, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is insufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324, 106 S.Ct. 2548.

In deciding the motion for summary judgment, the evidence of the non-moving party will be believed as true, all doubts will be resolved against the moving party, all evidence will be construed in the light most favorable to the non-moving party, and all reasonable inferences will be drawn in the non-moving party's favor. Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). Summary judgment shall be rendered only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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).

DISCUSSION

Plaintiff claims that defendants subjected her to unlawful discrimination based on age and sex under the Age Discrimination in Employment Act, 29 U.S.C. § 623 ("ADEA"), and Title VII, 42 U.S.C. § 2000e-2(a)(1).

Section 623 provides that an employer may not discriminate under the ADEA on the basis of age:

(a) Employer practices. It shall be unlawful for an employer —

(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age;

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age; or

(3) to reduce the wage rate of any employee in order to comply with this Act.

Title VII provides, "It shall be an unlawful employment practice for an employer — (1) to fail or refuse to hire or 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 ... sex."

A plaintiff's prima facie case under Title VII¹ and the ADEA essentially is the same. To establish a prima facie case of age discrimination, a plaintiff must prove: "(1) [plaintiff] was at least 40 years old at the time of the alleged discrimination; (2) [plaintiff] was subjected to an adverse employment action; (3) [plaintiff] was otherwise qualified for the position; and (4) after [plaintiff] was rejected, a substantially younger applicant was selected." Burzynski v. Cohen, 264 F.3d 611, 622 (6th Cir.2001) (citing Barnett v. Dep't of Veterans Affairs, 153 F.3d 338, 341 (6th Cir. 1998)).

To demonstrate a prima facie case of sex discrimination, the plaintiff must prove: "(1) [plaintiff] is a member of a protected class, (2) [plaintiff] was subjected to an adverse employment action, (3) [plaintiff] was qualified, and (4) [plaintiff] was treated differently than similarly-situated male employees for the same or similar conduct." Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 928 (6th Cir.1999) (citing Mitchell v. Toledo Hosp., 964 F.2d 577, 582-83 (6th Cir.1992)).

Defendants argue that plaintiff cannot establish her prima facie case for either the ADEA or the Title VII claim. Defendants argue that plaintiff: 1) offered no evidence that she suffered an adverse employment action; 2) did not establish, under the ADEA framework, that she was replaced by a substantially younger person; 3) did not offer, under Title VII, evidence that she was treated differently than similarly-situated employees; and 4) failed to demonstrate that age or sex was a motivating factor in an employment decision. Because I find that plaintiff cannot prove that she suffered an adverse employment action and, therefore, cannot prove her prima facie case under Title VII or the ADEA, I decline to address defendants' remaining arguments.

I. Adverse Employment Action

Plaintiff alleges that she suffered adverse employment action because she was disciplined, forced to accept a demotion, and constructively discharged. Defendants argue that plaintiff's allegations do not constitute adverse employment actions. Defendants also argue that plaintiff cannot establish that she was constructively discharged.

An adverse employment action is a "materially adverse change in the terms and conditions of ... employment." Hollins v. Atlantic Co., Inc., 188 F.3d 652, 662 (6th Cir.1999). In Hollins, the Sixth Circuit stated,

[T]he Seventh Circuit explained the requirements for establishing a materially adverse employment action in the context of an age discrimination case:

[A] materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.

Id. (citing Crady v. Liberty Nat'l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)); see also Black v. Columbus Pub. Schools, 124 F.Supp.2d 550, 565 (S.D.Ohio 2000) ("The United States Supreme Court has defined an adverse employment action as a `significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits as well as the denial of a raise or promotion.'") (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)).

A. Discipline

Plaintiff claims that she suffered an adverse employment action because she allegedly was warned and suspended for making negative comments about Buckeye and was removed from accounts after customer complaints. Defendants argue that an oral reminder, a written warning, and a one-day suspension with pay do not constitute adverse employment actions.

Discipline can constitute an adverse employment action if it is a "materially adverse change in the terms and conditions of [plaintiff's] employment." Hollins, 188 F.3d at 662. For example, discipline constitutes an adverse employment action when it involves suspension from work for several days or when the suspension is without pay. See e.g., Russell v. Board of Trs. of the Univ. of Ill., 243 F.3d 336, 341 (7th Cir.2001) (suspension for five days without pay was an adverse employment action); Biolchini v. General Elec. Co., 167 F.3d 1151, 1154 (7th Cir.1999) (one-week disciplinary suspension was a materially adverse employment action); Silk v. City of Chicago, 194 F.3d 788, 800 (7th Cir.1999) (five-day disciplinary suspension was materially adverse).

Discipline...