Callahan v. Bancorpsouth Ins. Services of Miss., CIV.A. 1:01-CV-62(BR).

• Decision Date: 28 February 2002
• Docket Number: No. CIV.A. 1:01-CV-62(BR).,CIV.A. 1:01-CV-62(BR).
• Citation: 244 F.Supp.2d 678
• Parties: Patty CALLAHAN Plaintiff v. BANCORPSOUTH INSURANCE SEVICES OF MISSISSIPPI, INC. (Stewart Sneed Hewes Division) f/k/a Stewart Sneed Hewes, Inc. Defendant
• Court: U.S. District Court — Southern District of Mississippi

Page 678

244 F.Supp.2d 678

Patty CALLAHAN Plaintiff v. BANCORPSOUTH INSURANCE SEVICES OF MISSISSIPPI, INC. (Stewart Sneed Hewes Division) f/k/a Stewart Sneed Hewes, Inc. Defendant

No. CIV.A. 1:01-CV-62(BR).

United States District Court, S.D. Mississippi, Southern Division.

February 28, 2002.

Jack C. Pickett, Kitchens & Ellis, Pascagoula, MS, Wynn E. Clark, Gulfport, MS, for Plaintiff.

Paul O. Miller, III, Phelps Dunbar, Jackson, MS, Defendant.

MEMORANDUM OPINION AND ORDER

BRAMLETTE, District Judge.

This cause is before the Court on the defendant BancorpSouth Insurance Services of Mississippi, Inc. (Stewart Sneed Hewes Division), f/k/a Stewart Sneed Hewes, Inc. ("BancorpSouth")'s motion for summary judgment (docket entry 22). Having carefully considered the motion, the response, the memoranda and all supporting documents, as well as the applicable law, and being fully advised in the premises, the Court finds as follows:

The plaintiff alleges that BancorpSouth discharged her from employment on November 4, 1999, in retaliation for her engaging in activity protected by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). Specifically, the plaintiff alleges that she was discharged because she complained about gender discrimination against her on November 3, 1999. The plaintiff also alleges that she was not compensated for overtime work in violation of the Fair Labor Standards Act (FLSA). In addition to her federal claims, the plaintiff includes a breach of contract claim against her employer for failure to provide 30 days written notice of her termination, and failure to pay vacation pay and bonuses.¹ On April 13, 2000, the plaintiff filed an EEOC charge, and on January 21, 2001, she filed suit in the Circuit Court of Harrison County, First Judicial District. The case was removed to this Court by the defendant on February 15, 2001. The defendant now moves for summary judgment.

The Supreme Court has held that Rule 56(c) mandates summary judgment in any case where a party fails to establish the existence of an element essential to the case and on which that party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A complete failure of proof on an essential element renders all other facts immaterial because there is no longer a genuine issue of material fact. Id. at 323, 106 S.Ct. at 2552. In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the Court stated:

By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. . . . As to materiality, the substantive law will identify which facts are material . . . .

Anderson, 477 U.S. at 247-48, 106 S.Ct. at 2510 (emphasis in original). When the moving party has carried the Rule 56(c) burden, the opposing party must present more than a metaphysical doubt about the material facts in order to preclude the grant of summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Indeed, once the defendant has moved for summary judgement, the non-moving party is required to respond with proof of a prima facie case, sufficient for a jury to enter a verdict in its favor. Washington v. Armstrong World, Indus., 839 F.2d 1121, 1122-23 (5th Cir. 1988) (citing Anderson, 477 U.S. at 249, 106 S.Ct. at 2511). A claim that further discovery or a trial might reveal facts which the plaintiff is currently unaware of is insufficient to defeat the motion. Woods v. Federal Home Loan Bank Bd., 826 F.2d 1400, 1414-15 (5th Cir.1987).

The essential elements of a Title VII employment discrimination case, in the absence of direct evidence of discrimination, are set forth in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In a retaliation claim, the plaintiff makes out a prima facie case if she can establish "(1) that there was statutorily protected participation [in EEO activity], (2) that an adverse employment action occurred, and (3) that there was a causal link between the participation and the adverse employment action." Whatley v. Metropolitan Atlanta Rapid Transit, 632 F.2d 1325, 1328 (5th Cir.1980). If a prima facie case is established, the employer bears the burden of articulating a legitimate, nondiscriminatory business reason for its action, which the plaintiff has the burden of proving is pretextual. See De Anda v. St. Joseph Hospital, 671 F.2d 850, 856 (5th Cir.1982); E.E.O.C. v. MCI Telecommunications Corp., 820 F.Supp. 300, 309 (S.D.Tex.1993).

The FLSA generally requires, for employees covered under its provisions, overtime compensation of one and one-half times the regular rate of pay for time worked in excess of forty hours per workweek. See 29 U.S.C. § 207. However, the FLSA exempts from its overtime requirements any salaried employee who works in a bona fide executive, administrative or professional capacity. 29 U.S.C. § 213(a)(1); Smith v. City of Jackson, 954 F.2d 296 (5th Cir.1992).

Summary judgment is available in employment discrimination cases, see, e.g., Slaughter v. Allstate Ins. Co., 803 F.2d 857, 861 (5th Cir.1986) (case brought under Age Discrimination in Employment Act), and is appropriate where "critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant, or where it is so overwhelming that it mandates judgment in favor of the nonmovant." Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir. 1993) (Title VII retaliation case). The Fifth Circuit has held that summary judgment is appropriate where the plaintiff fails to show a genuine issue of fact on the pretext issue. See, e.g., Amburgey v. Corhart Refractories Corp., Inc., 936 F.2d 805, 813 (5th Cir.1991); Hanchey v. Energas Co., 925 F.2d 96 (5th Cir.1990). Summary judgment is also available in cases brought under the FLSA, Vela v. City of Houston, 276 F.3d 659 (5th Cir.2001); Lott v. Howard Wilson Chrysler-Plymouth, Inc., 203 F.3d 326 (5th Cir.2000), and is appropriate where the plaintiff fails to show a genuine issue of fact on the exemption issue. See, e.g., Triplett v. Engineering Development Group, Inc., 1998 WL 164851 (E.D.La. April 7,1998).

The plaintiffs version of the facts is taken from her brief in response to the motion for summary judgment. The plaintiff, a female, was first employed with Stewart Sneed Hughes ("SSH") in 1993 as a secretary to President John Sneed, and Vice-President Wayne Tisdale. The plaintiff was an hourly employee and was paid overtime. On January 9, 1995, the plaintiff became Sales and Public Relations Coordinator with a salary of $25,000 a year. A majority of her duties were with Thompson Plan Administrators ("TPA"), a division of SSH that was the administrator of Associated General Contractor's ("AGC") Workers' Compensation Fund. This was TPA's only business. The plaintiff was involved in coordinating activities of TPA and the fund under Tisdale's direction. The plaintiff was a salaried employee from this point on, and no longer received overtime pay although she requested to be put back on an hourly wage numerous times.

On October 1, 1997, the plaintiff was placed on a direct sales producer contract. However, the plaintiffs salary of $30,000 and duties with respect to TPA and the AGC Workers' Compensation Fund remained the same. In February of 1998, the plaintiffs job as a producer was eliminated. In the spring of 1998, the plaintiff resigned her employment with SSH because she was in limbo as her sales coordinator and producer jobs had been eliminated. The plaintiff agreed to stay on until July to help with the renewal of the AGC fund.

On August 1, 1998, Tisdale named the plaintiff Manager of TPA with a salary of $38,000. The plaintiff considered this to be an acknowledgment of what she had been doing. Tisdale, by letter dated September 3, 1998, informed the plaintiff of her job description as the manager of TPA. The plaintiffs duties and responsibilities included managing TPA under his direction. The fund was actually managed by the Board of Directors of AGC. According to the plaintiff, she had been performing basically the same duties since she was secretary.

On June 30, 1999, SSH merged with BancorpSouth, and the plaintiff signed a new employment agreement, with her salary and benefits remaining the same.

On November 3, 1999, the plaintiff met with Tisdale who asked her what her plans were for continuing with SSH. The plaintiff stated that "she had no intention of leaving, and was going to take one day at a time and see what happens." (Plaintiffs Deposition, at 89). The plaintiff also discussed with Tisdale his denial of an incentive bonus she had been promised, and requested as she had in the past to be put back on an hourly wage so as to compensate her for the many hours of overtime she had been putting in. She also complained that she had been treated unfairly. The plaintiff also asked Tisdale "if he had ever had this type of conversation with any of the guys and told him that if she were a guy, there would be a secretary sitting out there and we wouldn't be having this conversation." Tisdale responded by saying "It sounds like you're going to sue me," and left the meeting angry. (Plaintiffs Deposition, at 92).

On November 4, 1999, the plaintiff was called into John Sneed's office. Sneed, president of SSH, had Tisdale in the office with him. Sneed told the plaintiff that she had maxed out on the value of her position, and that any additional compensation goals she had would not be met. Sneed told the plaintiff she was to pack her belongings and leave, but that she would be...