442 F.3d 1112 (8th Cir. 2006), 04-3345, Wallace v. DTG Operations, Inc.

Docket Nº:04-3345.
Citation:442 F.3d 1112
Party Name:Terri WALLACE, Plaintiff--Appellant, v. DTG OPERATIONS, Inc., a Foreign Corporation, also known as Dollar Rent-A-Car Systems, Inc.; Dollar Rent-A-Car, Inc., a Foreign Corporation, Defendants--Appellees.
Case Date:March 29, 2006
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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442 F.3d 1112 (8th Cir. 2006)

Terri WALLACE, Plaintiff--Appellant,


DTG OPERATIONS, Inc., a Foreign Corporation, also known as Dollar Rent-A-Car Systems, Inc.; Dollar Rent-A-Car, Inc., a Foreign Corporation, Defendants--Appellees.

No. 04-3345.

United States Court of Appeals, Eighth Circuit.

March 29, 2006

        Submitted: April 14, 2005.

        Appeal from the United States District Court for the Western District of Missouri.

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        Lynne J. Bratcher, argued, Kansas City, MO, for appellant.

        John D. Dunbar, argued, Kansas City, MO, for appellant.

        Before MELLOY, COLLOTON, and GRUENDER, Circuit Judges.

        MELLOY, Circuit Judge.

        Plaintiff-Appellant Terri Wallace appeals the district court's adverse grant of summary judgment on her retaliatory discharge claim. Because we find outstanding questions of material fact regarding the issue of retaliatory intent, we reverse.

        I. Factual Background

        We present the facts in a light most favorable to Ms. Wallace, the non-moving party, and draw all reasonable inferences in her favor. Buettner v. Arch Coal Sales Co., 216 F.3d 707, 713 (8th Cir. 2000).

        On May 9, 2001, Ms. Wallace began working for DTG Operations, Inc. (the "Company"), as a station manager in its Kansas City International Airport, Dollar Rent-A-Car station. Ms. Wallace's immediate supervisor was the Company's city manager for Kansas City, Brad Kjar. Mr. Kjar's immediate supervisor was the regional manager for the midwest region, Tom Mierendorf. Mr. Mierendorf's immediate supervisor was Stephen Duffy, the Company's vice-president of operations. Ms. Wallace was the least-senior station

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manager at the location. Mark Lovelace, another station manager at the Kansas City International Airport location, had one day of seniority over Ms. Wallace.

        On April 9, 2002, Ms. Wallace complained via email to Mr. Mierendorf about sexually inappropriate comments and contact from Mr. Kjar. Her complaints related to four alleged incidents as follows. On February 27, 2002, Mr. Kjar called Ms. Wallace and others into his office where he used the speaker phone to dial a number that played a recorded message about masturbation. Later, Mr. Kjar called Ms. Wallace and others into his office to view pornographic computer images of the cartoon character Popeye. On November 21, 2001, and again on March 4, 2002, he commented to Wallace on the size of her "butt," once while lifting her arm to create an unobstructed view of the object of his comment. Regarding the Popeye cartoon, he warned the employees that some people might find the material offensive, and Ms. Wallace walked out of his office. She did not complain directly to Mr. Kjar about any of these incidents.

        The Company's sexual harassment policy stated that an employee could complain to the supervisor of an alleged harasser if the employee was not comfortable complaining directly to his or her own supervisor or directly to the harasser. In fact, before April 9, Ms. Wallace had become upset with Mr. Kjar's behavior, checked with a human resources employee named George Corneau, and received instructions to bypass Mr. Kjar and complain directly to Mr. Mierendorf. Also, Mr. Duffy stated in his deposition that Ms. Wallace reported the incidents to an appropriate supervisor.

        Notwithstanding the propriety of Ms. Wallace's reporting procedure, Mr. Mierendorf testified in his deposition that he "was not happy that she did not feel comfortable or take the time to actually just communicate with [Mr. Kjar]." Mr. Mierendorf conceded that Ms. Wallace followed a correct procedure by going over Mr. Kjar's head, but stated that "what [he] was not pleased about [was] that she did not feel comfortable just to go to him and talk to him." Mr. Mierendorf also testified that he liked to joke around with employees to "liven up the workplace," he thought joking "should happen openly and freely," and he thought Ms. Wallace's complaint would put a "muzzle on interaction that should happen freely and openly and that was no longer going to occur."

        Twenty-eight days after Ms. Wallace reported these acts to Mr. Mierendorf, he and Mr. Kjar met with Ms. Wallace in Mr. Kjar's office and terminated her employment with the Company. Mr. Mierendorf testified in his deposition that he actually made the termination decision at an earlier date, only fifteen days after her report. Before Mr. Mierendorf arrived in Kansas City for the meeting where he fired Ms. Wallace, he told Ms. Wallace that he was coming to Kansas City to discipline Mr. Kjar. Mr. Mierendorf testified that, in general, he made termination decisions jointly with city managers. He claimed, however, that in this instance, Mr. Kjar was not involved in making the decision to terminate Ms. Wallace.

        At the meeting, Mr. Mierendorf told Ms. Wallace that there were too many station managers at the Kansas City International Airport location, a downturn in business following September 11, 2001 had reduced revenue at the location, and she was the least-senior manager at the location. Mr. Mierendorf told her that there was a policy at the Company that stated seniority should determine who to lay off. Ms. Wallace conceded in her deposition that the statements of fact surrounding a downturn in business and overstaffing at the management level were true. Ms. Wallace's attorney also conceded at oral argument

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before our court that these statements were true. Ms. Wallace, however, did not concede that these true statements accurately described the true motivation behind Mr. Mierendorf's decision to fire her.

        Also at the meeting, Ms. Wallace asked to be transferred laterally to one of several open station manager positions in other cities. Mr. Mierendorf and Mr. Kjar refused to consider her for a transfer. They claimed that there was a November 2001 "written warning" in her personnel file in Kansas City that, under Company policy, prohibited their consideration of her as a possible candidate for transfer for a period of one year. Notwithstanding their claims regarding the Company's policy, Mr. Mierendorf had encouraged Ms. Wallace to apply for a transfer to Kentucky after the purported "written warning" appeared in her Kansas City file.

        The Company, in fact, had a policy consistent with the supervisors' claim. The Company, however, did not consistently follow this policy. Rather, the policy was discretionary, as shown by the fact that employees with written warnings received transfers or were encouraged to apply for transfers within their respective one-year windows. Under Mr. Mierendorf's authority, Mr. Kjar himself received a transfer less than a year after he received a "written warning." Also, Mr. Mierendorf and Mr. Kjar had repeatedly told Mr. Lovelace to apply for positions at other locations. This occurred less than a year after Mr. Kjar gave Mr. Lovelace a "written warning." Further demonstrating the discretionary nature of this policy, Mr. Corneau and Mr. Duffy made clear in their depositions that there was not a regular practice at the Company of checking employees' personnel files for "written warnings" before granting transfers or promotions.

        The parties dispute not only the nature of the Company's policy on transfers, but also the propriety of applying that policy against Ms. Wallace. Ms. Wallace's personnel file at the local office in Kansas City contained a written record of a "verbal warning." This written record of a verbal warning was documentation of a verbal notice that Ms. Wallace had received in November 2001 for failing to meet a sales quota. Ms. Wallace's signature appeared on the document. Her official personnel file with the human resources office at headquarters in Tulsa, Oklahoma, however, did not receive this written record of a verbal notice until October 2002, five months after her termination. Mr. Kjar and Mr. Mierendorf stated that this document was a "written warning" sufficient under Company policy to disqualify Ms. Wallace from eligibility for transfer for one year. Ms. Wallace contests this characterization of the document. She relies on the deposition testimony of Mr. Duffy to demonstrate that the Company recognizes a distinction between written warnings and written records of verbal warnings. Mr. Duffy testified that verbal warnings and/or written records of verbal warnings are insufficient to trigger the company's one-year, no-transfer policy.

        Suffice it to say, questions of fact abound regarding the Company's policy and the effect of the information in Ms. Wallace's personnel file. As discussed below, these questions of fact are material to the extent that they reveal what Ms. Wallace's supervisors actually believed about the nature of the Company's policy and what they actually believed about the applicability of that policy to Ms. Wallace.

        During the depositions of Mr. Mierendorf, Mr. Corneau, and Mr. Duffy, counsel for Ms. Wallace explored the issue of whether anyone at the Company had considered terminating Ms. Wallace prior to her report of harassment. Mr. Mierendorf stated that he had not been involved in any discussions specifically regarding the termination

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of Ms. Wallace prior to her report of harassment. Neither Mr. Mierendorf nor Mr. Duffy could recall exactly when they first discussed the issue of terminating Ms. Wallace. When asked about notes, records of communication, or other evidence that might help pin down the timing of such discussions—or of related discussions on the more general topic of manager lay-offs—Mr. Duffy stated that he had no such records because his personal computer had crashed over the course of "the past couple of years." Also, Mr. Mierendorf explained that he too had experienced a...

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