Unit 6 Discussions

Case Study 14.4 ZIPPITTELLI V. J.C. PENNEY CO.

United States District Court, (M.D. Pa. 2007)

[The promotion decision about which plaintiff Joanne Zippittelli complains came in 2004. In the summer of that year, plaintiff applied for the shift operations manager job after Personnel Manager James Johnson informed her it had become available. At the time, she was working as a general lead clerk in the Call Ser- vice Center. She was one of four women—all of whom had the same job title at the time—who applied for that job. Johnson interviewed the candidates, determining that three of the candidates, including the plaintiff, were qualified for the position. Johnson then ranked the three candidates, making plaintiff his third choice. Patti Cruikshank was John- son’s first choice, and after he consulted with his supervisor, J.C. Penney hired Cruikshank as shift operations manager. Plaintiff blamed her age for her lack of success in seeking the promotion and told her supervisor, Anita Benko, of this suspicion. This supervisor asked her how old she was. When Benko found out she was 63, Benko said she would “probably not” get the position. Plaintiff made no formal complaint of age discrimination immediately after hearing this comment. She did file a complaint of age discrimination with the Equal Employment Opportunity Commission in 2004, however. She received a right-to-sue letter from the EEOC in 2005. The matter was tried in U.S. district court.] (M.D. PA. 2007). MUNLEY, J.... The Age Discrimination in Employment Act prohibits discrimination against an individual over age 40 with respect to “compensation, terms, conditions, or privileges of employment, because of an individual’s age.”... To recover under the act, “a plaintiff must prove by a preponderance of the evidence that age was the determinative factor in the employer’s decision at issue.”... Plaintiff here apparently contends that she has direct evidence of discrimination in the comment made by Anita Benko that she would “probably not” get a job after plaintiff revealed to Benko her age. We apply the same “direct evidence” test to claims of age discrimination that we do to claims of sex discrimination.... She points to only one remark about age from a person not involved in the decision about whether to promote her. Plaintiff could not convince a reasonable juror that this evidence proves that age was a substantial factor in the decision made by Johnson not to promote the plaintiff. Accordingly, we find that no direct evidence exists to prove that defendants discriminated on the basis of age. Lacking direct evidence of discrimination, a plain- tiff seeking recovery under the ADEA must first make out a prima facie case by showing (1) he is within the protected age class, i.e. over forty; (2) that he was qualified for the position at issue; (3) he was dismissed despite being qualified; and (4) he was replaced by a person sufficiently younger to permit an inference of age discrimination.... Once the plain- tiff establishes this prima facie case, “the defendant has the burden of producing evidence that it had ‘a legitimate, nondiscriminatory reason for the discharge.’”... If the defendant produces such evidence, the burden shifts back to the plaintiff, who [must] provide “evidence ‘from which a factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate reasons[;] or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.’” ... Here, plaintiff was sixty- three years old at the time she applied for the promotion, and thus within the protected class. She has shown that she was qualified for the position, regard- less of age. She did not get the promotion applied for, and the job went to a woman younger than forty. Defendants agree that plaintiff has made out the prima facie case required by federal law.

Defendants argue, however, that it had legitimate, non-discriminatory reasons for its promotion decision and that plaintiff has no evidence with which to rebut that case. ... [The defendants claim that their employment decision was based on a careful assessment of which employee best fit the demands of the position and that they found the plaintiff less qualified than the successful candidate in the area of ability to make independent decisions. The employer also found the candidate who was hired to be highly qual- ified based on her motivation to do the job and her ability to work with and inspire other employees.] We find that the defendants have met their burden, advancing legitimate non-discriminatory reasons to explain why they passed plaintiff over for a promotion. The burden now lies with plaintiff to demonstrate that defendants’ reasons serve as pretext to avoid liability for their actual motivations. In order to meet her burden of demonstrating that defendants’ stated reasons for their promotion decision were pretext to mask a discriminatory motive, plaintiff must “[produce] sufficient evidence to raise a genuine issue of fact as to whether the employer’s proffered reasons were not its true reasons for the challenged employment action.”... A plaintiff must do more, however, than simply demonstrate that the employer did not make the correct hiring decision: “to discredit the employer’s proffered reason, the plaintiff cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether a discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.’”

Plaintiff contends that she had better performance evaluations and that the younger worker actually promoted to the job had an inferior record in areas supposedly determinative of eligibility for promotion, like attendance. A jury could not use this evidence to find that defendants’ stated reasons for its employment decision were mere pretext. That evidence could only be used to convince a jury that defendants were wrong in the employment decision they made, not that their mistake was motivated by an animus towards plaintiff because of her age. Federal courts do not sit to pass judgment on the wisdom of an employer’s hiring decisions, but only on whether those decisions were made in a way that violated anti-discrimination law. ...

The only evidence plaintiff supplies of a discriminatory intent in relation to plaintiff’s age comes in Benko’s remark that plaintiff “probably” would not get the job when plaintiff revealed her age. We do not find this evidence sufficient for a jury to find that defendants’ stated reasons served as a pretext to hide a discriminatory practice. Plaintiff has introduced no evidence that Benko was involved in the decision to award the promotion, nor that she was privy to the considerations of the managers who did make that decision. Benko made her remark in informal conversation, and it was not intended as any statement of company policy, formal or informal. Indeed, the comment seems to represent a pessimistic and sympathetic statement from a coworker who assumed that younger people had more advantages in the workplace. The remark was too temporally and situationally distant from the actual hiring decision to be seen as strong evidence of the employer’s practice or attitude. This case is therefore like Brewer Quaker State Oil Refining Corp., 72 F.3d 326 (3d Cir. 1995). In that age discrimination lawsuit, the plaintiff pointed to a statement by the company’s chief executive in a newsletter that two executives in their 40s represented the age group the company sought to hire and promote. The comment, made two years before the company decided to fire the plaintiff, seemed to the court simply a “stray remark” “made by a non-decisionmaker and temporally remote from the decision” in question. The comment was thus not worthy of “commanding weight.”

The remark here is not relevant to the defendants’ hiring decision. There is no evidence that the supervisor who made the remark had anything to do with the decision to promote Cruikshank instead of the plaintiff. Unlike the statement made by the Quaker State chief executive in a company publication, the statement here was made in an off-hand, informal way by a supervisor who had no role in the hiring decision. We cannot find that a jury could conclude that the statement was one that demonstrates that age was a motivating factor in the hiring decision that Johnson and J.C. Penney executives in Dallas made. [Defendants’ motion for summary judgment is GRANTED.]

Case Questions

1. Given a conversation that an employee had with her supervisor about applying for a promotion, which resulted in a question about age and a response by the supervisor when she found out that the applicant was 63 that the applicant would “probably not” get the position, coupled with the fact that the applicant had better performance evaluations than the younger woman who was awarded the position, would not a reasonable layperson in the position of the applicant think that she had been discriminated against because of age?

2. Was the fact that the plaintiff had better perfor- mance evaluations than the younger worker promoted to the job evidence of discriminatory intent because of age?

3. Was Benko’s remark that the plaintiff would “probably not get the job” when the plaintiff revealed her age sufficient evidence for a jury to find that the defendant’s stated reasons served as a pretext to hide a discriminatory practice?

CASE 15.5 HUBER V. WAL-MART STORES, INC.

UNITED STATES COURT OF APPEALS, 486 F.3D 480 (8TH CIR. 2007).

[Pam Huber worked for Wal-Mart as a dry grocery order filler earning $13.00 per hour, including a $0.50 shift differential. While working for Wal-Mart, Huber sustained a permanent injury to her right arm and hand. As a result, she could no longer perform the essential functions of the order filler job. The parties stipulated that Huber’s injury is a disability under the ADA. Because of her disability, Huber sought, as a reasonable accommodation, reassignment to a router position, which the parties stipulated was a vacant and equivalent position under the ADA. Wal-Mart, however, did not agree to reassign Huber automatically to the router position. Instead, pursuant to its policy of hiring the most qualified applicant for the position, Wal-Mart required Huber to apply and compete with other applicants for the router position. Ultimately, Wal-Mart filled the job with a nondisabled applicant and denied Huber the router position. Wal-Mart indicated that although Huber was qualified with or with- out an accommodation to perform the duties of the router position, she was not the most qualified candidate. The parties stipulated that the individual hired for the router position was the most qualified candidate. Wal-Mart later placed Huber at another facility in a maintenance associate position (janitorial position), which paid $6.20 per hour. Huber continues to work in that position and now earns $7.97 per hour.

Huber filed suit under the ADA, arguing that she should have been reassigned to the router position as a reasonable accommodation for her disability. Wal- Mart filed a motion for summary judgment, contending that it had a legitimate nondiscriminatory policy of hiring the most qualified applicant for all job vacancies and was not required to reassign Huber to the router position. Huber filed a cross-motion for summary judgment, and the district court granted Huber’s motion. Wal-Mart appealed.]

RILEY, C. J....

To make a prima facie case in a reasonable accommodation claim under the ADA, the plaintiff must show she (1) has a disability within the meaning of the ADA, (2) is a qualified individual, and (3) suffered an adverse employment action as a result of the disability. To be a qualified individual within the meaning of the ADA, an employee must (1) possess the requisite skill, education, experience, and training for her position; and (2) be able to perform the essential job functions, with or without a reasonable accommodation. Here, the parties do not dispute Huber (1) has a disability under the ADA, (2) suffered an adverse employment action, or (3) possessed the requisite skills for the router position. The parties’ only dispute is whether the ADA requires an employer, as a reasonable accommodation, to give a current disabled employee preference in filling a vacant position when the employee is able to perform the job duties, but is not the most qualified candidate. The ADA states the scope of reasonable accommodation may include:

[J]ob restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for indivi-duals with disabilities.

42 U.S.C. § 12111(9)(B) (emphasis added).

Huber contends Wal-Mart, as a reasonable accommodation, should have automatically reas- signed her to the vacant router position without requiring her to compete with other applicants for that position. Wal-Mart disagrees, citing its non- discriminatory policy to hire the most qualified applicant. Wal-Mart argues that, under the ADA, Huber was not entitled to be reassigned automatically to the router position without first competing with other applicants. This is a question of first impression in our circuit. As the district court noted, other circuits differ with respect to the meaning of the reassignment language under the ADA.

The Tenth Circuit in Smith v. Midland Brake, Inc., 180 F.3d 1154, 1164–65 (10th Cir. 1999) (en banc), stated:

[I]f the reassignment language merely requires employers to consider on an equal basis with all other applicants an otherwise qualified existing employee with a disability for reassignment to a vacant position, that language would add noth- ing to the obligation not to discriminate, and would thereby be redundant.... Thus, the reassignment obligation must mean something more than merely allowing a disabled person to compete equally with the rest of the world for a vacant position.

In the Tenth Circuit, reassignment under the ADA results in automatically awarding a position to a qualified disabled employee regardless whether other better qualified applicants are available, and despite an employer’s policy to hire the best applicant.

On the other hand, the Seventh Circuit in EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024, 1027–28 (7th Cir. 2000), explained:

The reassignment provision makes clear that the employer must also consider the feasibility of assigning the worker to a different job in which his disability will not be an impediment to full performance, and if the reassignment is feasible and does not require the employer to turn away a superior applicant, the reassignment is mandatory.

In the Seventh Circuit, ADA reassignment does not require an employer to reassign a qualified disabled employee to a job for which there is a more qualified applicant, if the employer has a policy to hire the most qualified applicant. Wal-Mart urges this court to adopt the Seventh Circuit’s approach and to conclude (1) Huber was not entitled, as a rea- sonable accommodation, to be reassigned automati- cally to the router position, and (2) the ADA only requires Wal-Mart to allow Huber to compete for the job, but does not require Wal-Mart to turn away a superior applicant. We find this approach persuasive and in accordance with the purposes of the ADA. As the Seventh Circuit noted in Humiston-Keeling:

The contrary rule would convert a nondiscrimi- nation statute into a mandatory preference stat- ute, a result which would be both inconsistent with the nondiscriminatory aims of the ADA and an unreasonable imposition on the employers and coworkers of disabled employees. A policy of giving the job to the best applicant is legitimate and nondiscriminatory. Decisions on the merits are not discriminatory.

Id. at 1028. “[T]he [ADA] is not a mandatory preference act.” Id.

We agree and conclude the ADA is not an affirmative action statute and does not require an employer to reassign a qualified disabled employee to a vacant position when such a reassignment would violate a legitimate nondiscriminatory policy of the employer to hire the most qualified candidate. This conclusion is bolstered by the Supreme Court’s decision in U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 406, (2002), holding that an employer ordinarily is not required to give a disabled employee a higher seniority status to enable the disabled employee to retain his or her job when another qualified employee invokes an entitlement to that position conferred by the employer’s seniority system. We previously have stated in dicta that “an employer is not required to make accommo- dations that would subvert other, more qualified applicants for the job.” Kellogg v. Union Pac. R.R. Co., 233 F.3d 1083, 1089 (8th Cir. 2000) (per curiam).

Thus, the ADA does not require Wal-Mart to turn away a superior applicant for the router position in order to give the position to Huber. To conclude otherwise is “affirmative action with a vengeance. That is giving a job to someone solely on the basis of his status as a member of a statutorily protected group.” Humiston-Keeling, 227 F.3d at 1029.

Here, Wal-Mart did not violate its duty, under the ADA, to provide a reasonable accommodation to Huber. Wal-Mart reasonably accommodated Huber’s disability by placing Huber in a maintenance associate position. The maintenance position may not have been a perfect substitute job, or the employee’s most preferred alternative job, but an employer is not required to provide a disabled employee with an accommodation that is ideal from the employee’s perspective, only an accommodation that is reasonable. See Cravens v. Blue Cross & Blue Shield of Kan. City, 214 F.3d 1011, 1019 (8th Cir. 2000). In assigning the vacant router position to the most qualified applicant, Wal-Mart did not discriminate against Huber. On the contrary, Huber was treated exactly as all other candidates were treated for the Wal-Mart job opening, no worse and no better.

Conclusion

We reverse the judgment of the district court, and we remand for entry of judgment in favor of Wal-Mart consistent with this opinion.

Case Questions

1. Pam Huber sustained a permanent injury while working for Wal-Mart and could no longer per- form her order filler job. The parties agreed that she was qualified for the vacant router position, possessing the required skill, education, experience, and training. The ADA requires reasonable accommodation, including “reassignment to a vacant position.” Do you believe the quoted reassignment language means something more than allowing her to compete equally with all other candidates for this vacant position? Explain.

2. Comment on the court’s statement “Wal-Mart reasonably accommodated Huber’s disability by placing Huber in a maintenance associate position.”

3. Read the introductory text for the EEOC’s position. What is your view of this position?