Opinion
Civil Action No. 3:99-CV-2170-D
June 18, 2001
MEMORANDUM OPINION AND ORDER
Plaintiff James B. Bowe ("Bowe"), who was discharged by defendant Exide Corporation ("Exide") as part of a reduction-in-force ("RIF"), sues Exide for age discrimination, in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., and for intentional infliction of emotional distress under Texas state law. Exide moves for summary judgment as to each claim and for partial summary judgment concerning Bowe's requests under the ADEA for back pay and front pay. For the reasons that follow, the court grants summary judgment as to Bowe's action for intentional infliction of emotional distress but declines to dismiss his ADEA claim or to limit the back pay or front pay for which he sues.
I
Bowe worked for Exide, a battery manufacturer, as one of three salesmen in its Dallas branch. Exide discharged him as part of a RIF after a business decision resulted in the loss of a major customer. Exide maintains that it eliminated Bowe's position based on the evaluations of his supervisors, who concluded that he was the lowest performing salesman of the three. It asserts that it offered him, but he refused, an office job in lieu of termination. Bowe responds in relevant part that, the day after he was notified of his termination, his supervisor made age-related comments that would permit a reasonable jury to find that he was discharged based on his age. He also complains that Exide intentionally inflicted emotional distress on him by denying him a raise, failing to provide him a new car in accordance with company policy, not paying him commission checks while paying other salesmen, moving him into a new office where he could not make sales calls and then holding lack of sales calls against him, terminating him without considering company policy that preferred seniority and then offering him a job at a 25% salary reduction that it knew he would not take, and offering, and then refusing, to allow him to keep his company car.
II
The court begins by addressing two procedural matters. In its motion, Exide's "summary" exceeds two pages. See D. Mot. at 2-4. It is not a concise statement limited to the first page. The factual grounds upon which it relies consist of almost six pages. See id at 4-9. They are more extensive than the local rules contemplate. As the court pointed out in Page v. UNUM Life Insurance Co. of America, 1999 WL 1000493 (N.D. Tex. Nov. 3, 1999) (Fitzwater, I):
In 1998 the court adopted new local civil rules governing summary judgment motions. Two components of N.D. Tex. Civ. R. 56.3(a) have caused some confusion, perhaps with attorneys who were accustomed to practicing under former Rule 56.1 (repealed April 15, 1998) and its predecessors. Rule 56.3(a) provides, in relevant part, that "[e]xcept as provided in subsection (b) of this rule, a motion for summary judgment must (1) on the first page, under the heading `summary,' contain a concise statement that identifies the elements of each claim or defense as to which summary judgment is sought, [and] (2) contain the legal and/or factual grounds on which the moving party relies[.]" The "summary" requirement of Rule 56.3(a)(1) is intended to give the court a "snapshot" of the motion before it. It therefore requires that on the first page of a motion, the moving party set out a "concise statement that identifies the elements of each claim or defense as to which summary judgment is sought." Id, UNUM's "summary" begins on the second page and extends for more than one page. It does not comply with Rule 56.3(a)(1). Rule 56.3(a)(2) requires that the motion "contain the legal and/or factual grounds on which the moving party relies[.]" This requirement is intended simply to apprise the court and the opposing party why the movant is seeking summary judgment. It can be as simple as stating in a negligence case that there is no evidence of causation, or in a discrimination case of pointing the court to the absence of genuine evidence of intentional discrimination.Id at * 1 (footnotes omitted).
In his summary judgment response, Bowe includes an introduction and summary that exceeds four pages, see P. Resp. at 1-5, and separately lists in 13 pages the factual grounds on which he relies, see id. at 5-17. The introduction contains argument, in violation of Rule 56.4(c) ("A response to a motion for summary judgment must not contain argument and authorities."). See P. Resp. at 5 (arguing that position could not be used as basis for summary judgment because it was not substantially similar). Moreover, the extensive listing of facts in the response, rather than including them in the pertinent parts of the brief, does not comport with the current summary judgment local rules. As the court wrote in James v. City of Forney, Civil Action No. 3:99-CV-0354-D (N.D. Tex. Feb. 14, 2001) (Fitzwater, J.):
Although defendants' briefing is generally well crafted, the court notes one procedural defect. In their brief, defendants set out 17 pages of numerically listed contentions of fact and law. See Ds. Br. at 1-17. This effort appears to be a throwback to former N.D. Tex. Civ. R. 56.1, which stated: "A motion for summary judgment must list in numerical order: (1) the undisputed facts upon which the motion relies; and (2) the issues of law." Rule 56.1 was simply a restatement of Local Rule 5.2(a) (repealed 1997), which had long imposed the same requirement. In 1998, however, this court extensively revised its summary judgment local rules. One revision eliminated the requirement that a summary judgment movant list in numerical order the undisputed facts and the issues of law. The reason for abrogating the Rule is aptly illustrated in the present case. Defendants' multi-page list of contested facts and law, set out separately from their substantive arguments, provides the court little assistance in deciding defendants' motion. The list itself does not make clear why the contentions are substantively significant. And defendants' citations to specific factual and legal contentions, see, e.g., Ds. Br. at 23, require the court to move back and forth through the brief to link them up rather than allow the court to consider the contentions within the confines of the relevant arguments. With the advent of the 1998 summary judgment local rules, a brief in support of a motion for summary judgment should look more like an appellate brief, with assertions about the evidence and law set out under an argument heading that states clearly and with particularity why summary judgment is warranted on the basis asserted.Id at 3 n. 5.
The court will not at this time unfile the parties' summary judgment pleadings because it has now made its way through them and is ready to render a decision. But the point the court made in Page bears emphasis: "By limiting the role of the motion and emphasizing the role of the brief, the court is relieved from flipping back and forth between two documents in its efforts to decide the motion." Page, 1999 WL 1000493, at *1 (footnote omitted). And what the court said in James is worth repeating in the context of a summary judgment opposition brief, since it bears significantly on the court's ability to decide summary judgment motions with dispatch: "With the advent of the 1998 summary judgment local rules, a brief in [opposition to] a motion for summary judgment should look more like an appellate brief, with assertions about the evidence and law set out under an argument heading that states clearly and with particularity why summary judgment is [not] warranted on the basis asserted." Id.
With these observations in mind, the court now turns to the merits.
III
Exide moves for summary judgment concerning Bowe's ADEA claim, contending first that he cannot demonstrate a prima facie case in a RIF lawsuit. It assumes arguendo that Bowe can meet the first three elements and focuses on the fourth component of the RIF formulation, asserting that Bowe cannot show that he was not treated age neutrally, either because Exide consciously refused to retain him because of his age or because it regarded age as a negative factor in its consideration, as recognized by cases like Amburgey v. Corhart Refractories Corp., 936 F.2d 805, 812 (5th Cir. 1991). Exide maintains that Bowe relies on the following evidence of age discrimination: (1) he did not receive a new company car when his car reached 60,000 miles; (2) he had more seniority and experience than the two salesmen who were retained; and (3) the day after Exide informed him he would be laid off, his former supervisor, Terence G. Tufford ("Tufford"), told him Exide needed younger people to accomplish the company's objectives. It contends that none of this evidence is sufficient to establish a prima facie case.Assuming arguendo that Bowe must rely on indirect, rather than direct, evidence of age discrimination, the court holds that he has met his prima facie case burden. "[A] prima facie case is fairly easily made out." Id Bowe has adduced evidence that he was 63 years old at the time he was terminated and the two retained salesmen were 48 and 45 years of age. He had 12 years of experience and the others had approximately 18 months of experience. On the day after Bowe was informed of his termination, Tufford, who made the decision to discharge him, told him "he wanted younger people there." P. App. 33. He said "he really needed some younger people to do what he wanted to do" to change the Dallas branch around and put in a retail center. Id. at 34; see id. at 35. This evidence is sufficient to establish that Exide did not treat him age neutrally. See Amburgey, 936 F.2d at 813; Thornbrough v. Columbus Greenville R. R. Co., 760 F.2d 633, 643 (5th Cir. 1985).
"Direct evidence is evidence which, if believed, proves the fact [of intentional discrimination] without inference or presumption." Portis v. First Nat'l Bank of New Albany, MS, 34 F.3d 325, 328-29 (5th Cir. 1994) (quoting Brown v. East Miss. Elec. Power Ass'n, 989 F.2d 858, 861 (5th Cir. 1993)). Such evidence typically involves statements made by the employer or certain of its personnel that indicate that an employment decision was based on a forbidden factor. To qualify as such a statement, the comment must be (1) age related, (2) proximate in time to the termination, (3) made by an individual with authority over the termination, and (4) related to the employment decision. Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir. 1996). As the court notes below, Bowe relies on direct evidence of age discrimination.
Exide maintains that Bowe cannot rely on the evidence of Tufford's alleged remarks to establish a prima facie case. The court addresses and rejects Exide's arguments infra at § IV(B) in the context of the pretext component of Bowe's ADEA claim.
IV
Exide maintains next that it has adduced evidence of a legitimate, nondiscriminatory reason for including Bowe in the RIF and that he cannot prove pretext.A
Exide has met its production burden by introducing evidence that it terminated Bowe, based on his comparative job performance, as part of a RIF undertaken after Exide lost business that significantly impacted the company. The burden now shifts to Bowe to raise a genuine issue of material fact on the issue of intentional discrimination. See Tutton v. Garland Indep. Sch. Dist., 733 F. Supp. 1113, 1116 (N.D. Tex. 1990) (Fitzwater, J.).
B
Among the evidence that Bowe has submitted is proof that Tufford made statements to him that revealed an age-related animus for including him in the RIF. Exide argues that Bowe cannot rely on this evidence and that, even if he can, the proof would not permit a reasonable inference of discrimination. The court disagrees. Exide contends that Tufford's comments are at best stray remarks because Kenneth Scheid ("Scheid"), the South Central Region Regional Operations Manager, not Tufford, put in place Exide's RIF to reduce overhead costs and expenses. It asserts that Scheid and Tufford collectively agreed that the poorest performing salesman must be eliminated and that Bowe cannot causally connect the remark to his discharge. Bowe has introduced evidence, however, that would permit a reasonable jury to find that Tufford himself made the decision. See P. App. 98-99 (containing Tufford's deposition testimony that he laid Bowe off, initiated the decision, made the decision with input from Scheid and Human Resources, and that Scheid's input consisted primarily of his telling Tufford to document what he was planning to do and why he was going to do it, so that Scheid would understand why Tufford made the decision).
Exide initially challenges Bowe's testimony concerning comments made by Tufford in the context of attacking Bowe's prima facie case. See D. Br. at 8-9. Because Exide adopts these arguments in contesting Bowe's evidence of pretext, see id. at 13 (adopting earlier arguments), the court addresses them here as if they were advanced in full under both components of Bowe's claim.
Exide maintains that Bowe's testimony regarding the alleged comments is contradictory and inconsistent because he did not mention the statements in his discrimination charge filed with the Equal Employment Opportunity Commission ("EEOC"), his complaint in this case, or in his answer to Interrogatory No. 20. Exide has not demonstrated that Bowe's deposition testimony is materially contradictory of, or inconsistent with, his EEOC charge or his complaint. It has cited no authority that requires that such evidentiary detail be set forth in an administrative charge or a federal court notice pleading.
Exide's argument concerning the inconsistency between his answer to Interrogatory No. 20 and his deposition testimony, however, presents a different matter. It is settled that "a nonmovant cannot defeat a motion for summary judgment by submitting an affidavit which directly contradicts, without explanation, his previous testimony." Albertson v. T.J. Stevenson Co., 749 F.2d 223, 228 (5th Cir. 1984). "If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact." Reid v. Sears, Roebuck Co., 790 F.2d 453, 460 (6th Cir. 1986). In his response, Bowe overlooks this principle. He incorrectly maintains that Exide is asking the court to make a credibility determination in the context of a summary judgment motion by comparing his interrogatory answer to his deposition testimony.
The court is not assessing Bowe's credibility but is instead deciding whether he has explained his failure to disclose the Tufford comments in his interrogatory answers. The court finds an adequate explanation is the text of the answer to Interrogatory No. 20. In that question, Exide asked Bowe to disclose inter alia every comment that Bowe heard or read that was related to his age. See D. App. 100. Bowe responded that he did not "recall any specific age-related comments at this time." Id. (emphasis added). Juxtaposing the interrogatory answer and the deposition testimony, it appears that while Bowe did not recall several age related statements at the time he answered Interrogatory No. 20, he did remember them on the date his deposition was taken. Although a jury may easily find Bowe's testimony regarding such comments to be fabricated-considering his failure at the interrogatory stage to recall statements so significant to his age discrimination claim, made by the alleged decisonmaker a mere day after Bowe was told of his termination-the court cannot conclude that what he said during his deposition is unexplained, contradictory testimony that must be disregarded. Exide also argues that the statements are stray remarks that do not create a genuine issue of material fact. The court disagrees. Stray remarks do not independently support a finding of intentional discrimination because they do not reveal the likely reasons a decisionmaker subjected an individual to an adverse employment action. One example is the statement in Turner v. North American Rubber, Inc., 979 F.2d 55, 59 (5th Cir. 1992), that a supervisor was sending the plaintiff "three young tigers" to assist in operations. Such a comment does not indicate that the motivation behind an adverse employment action was the protected characteristic. It merely refers to a protected characteristic colloquially, without regard to whether it formed the basis for an adverse employment decision. Here, the remarks on which Bowe relies bear directly on why Tufford selected him for inclusion in the RIF: he wanted and really needed younger people to do what he wanted to do" at the Dallas branch.
The Fifth Circuit has cautioned that "[i]n light of the Supreme Court's admonition in Reeves [v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000)], our pre-Reeves jurisprudence regarding so-called `stray remarks' must be viewed cautiously." Russell v. McKinney Hosp. Venture, 235 F.3d 219, 229 (5th Cir. 2000) (footnote omitted). Bowe has adduced sufficient evidence for a reasonable jury finding of intentional discrimination.
V
Exide also moves for partial summary judgment limiting Bowe's claims for back pay and front pay based on his failure to mitigate damages. Although it is plaintiff's duty to mitigate his damages, the employer has the burden of proving failure to mitigate. Sellers v. Delgado College, 902 F.2d 1189, 1193 (5th Cir. 1990) (addressing Title VII). Because Exide will have the burden of proof on this issue at trial, to obtain summary judgment it must adduce evidence that establishes "beyond peradventure all of the essential elements of the . . . defense." Bank One, Tex., N.A. v. Prudential Ins. Co. of Am., 878 F. Supp. 943, 962 (N.D. Tex. 1995) (Fitzwater, J.) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)). It has not met this burden, and its motion is denied in this respect.
VI
Exide moves for summary judgment dismissing Bowe's claim for intentional infliction of emotional distress. The court grants this part of the motion.
To establish this claim, Bowe must prove that (1) Exide acted intentionally or recklessly, (2) its conduct was extreme and outrageous, (3) its actions caused him emotional distress, and (4) the emotional distress was severe. See Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993); see also Stults v. Conoco, Inc., 76 F.3d 651, 658 (5th Cir. 1996). Extreme and outrageous conduct is that which is so extreme in degree, or so outrageous in character, as to go beyond all bounds of decency, to be regarded as atrocious, and utterly intolerable in a civilized community. Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex. 1993); see also Stults, 76 F.3d at 658. "Generally, the case is one in which a recitation of the facts to an average member of the community would lead him to exclaim, `Outrageous."' Cantu v. Rocha, 77 F.3d 795, 810 (5th Cir. 1996) (quoting Dean v. Ford Motor Credit Co., 885 F.2d 300, 306 (5th Cir. 1989)). "It is for the court to determine, in the first instance, whether the defendants conduct may reasonably be regarded as so extreme and outrageous as to permit recovery." McKethan v. Texas Farm Bureau, 996 F.2d 734, 742 (5th Cir. 1993) (quoting Wornick Co., 856 S.W.2d at 734). Whether a party's conduct may reasonably be regarded as extreme and outrageous is a question of law. Bradford v. Vento, ___ S.W.3d ___, ___, 2001 WL 421238, *8 (Tex. Apr. 26, 2001). Bowe alleges that he is entitled to relief because Exide subjected him to a series of seemingly small events (denial of a raise, failure to provide a new car in accordance with company policy, not paying him commission checks while paying other salesmen, moving him into a new office where he could not make sales calls and then holding lack of sales calls against him) to drive him out of the work place; terminating him without considering company policy that preferred seniority and then offering him a job at a 25% salary reduction that it knew he would not take; and offering to allow him to keep his company car as a carrot, only to snatch it away. The court holds as a matter of law that this conduct does not qualify as extreme and outrageous conduct. Therefore, Exide is entitled to
summary judgment dismissing this claim.
* * *
The court grants in part and denies in part Exide's motion for summary judgment.
SO ORDERED