Rollins v. TechSouth, Inc., 86-7872

• Decision Date: 15 December 1987
• Docket Number: No. 86-7872,86-7872
• Citation: 833 F.2d 1525
• Parties: 45 Fair Empl.Prac.Cas. 1129, 45 Empl. Prac. Dec. P 37,644, 56 USLW 2422 Norma ROLLINS, Plaintiff-Appellant, v. TechSOUTH, INC., Defendant-Appellee,
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1525

833 F.2d 1525

45 Fair Empl.Prac.Cas. 1129,

45 Empl. Prac. Dec. P 37,644, 56 USLW 2422

Norma ROLLINS, Plaintiff-Appellant, v. TechSOUTH, INC., Defendant-Appellee,

No. 86-7872.

United States Court of Appeals, Eleventh Circuit.

Dec. 15, 1987.

Before FAY, Circuit Judge, HENDERSON ^*, Senior Circuit Judge, and BLACK ^**, District Judge.

FAY, Circuit Judge:

In this wrongful discharge case, claimant Norma Rollins appeals a grant of summary judgment against her. After reviewing the record, we have determined that Rollins has raised issues of material fact regarding her claim of discriminatory treatment. Accordingly, we reverse the district court's order and remand for a trial on the merits.

Appellee in this case is TechSouth, Inc. ("TechSouth"). TechSouth maintains and annually updates databases for the telephone directories in Alabama, Louisiana, Mississippi, and Tennessee. The databases contain the names of all businesses listed in the yellow pages, along with a record of the number of ads each client places in the directories.

Rollins began working for Datacomp, Inc. ("Datacomp"), TechSouth's predecessor corporation, on January 20, 1981, as an ad verifier in the in-column department. She was thirty-nine years old at the time. After several months in that position, she received a promotion and became an in-column unit leader. In this position Rollins worked directly under the supervisor of the in-column department, Lynn Hill. Rollins continued working in this capacity until 1983, when she moved to the accounting department. Although she did not receive a decrease in pay, she did assume a non-supervisory position.

The reasons for Rollins' transfer are disputed by the parties. It is clear that there was friction between Rollins and Hill. Rollins claims that Hill, who was approximately thirty years old at the time of Rollins' transfer, had repeatedly made comments to Rollins about her age. Rollins alleges that, in addition to commenting on how good Rollins looked for her age, Hill told Rollins that she did not like working with older women. She therefore argues that Hill disliked her because of her age.

TechSouth, on the other hand, points to appellant's performance as a unit leader. Steve Davis, who supervised the accounting division when Rollins first worked in that department, stated that Rollins had been causing discord and discontent in the in-column department. Hill had recommended that the company fire Rollins; instead, Davis and others decided to move Rollins into the accounting department, where she would be more isolated and therefore less likely to cause problems.

Rollins received evaluations indicating that her work in accounting was adequate. ¹ Davis did issue a written reprimand to Rollins because she had discussed Hill's personal life with other employees; however, Davis later removed this from her record because Rollins discontinued this practice. In addition, Davis had to tell Rollins to spend less time talking to other employees when she picked up her work from them. Again, she corrected the problem promptly.

When Davis moved to another position at TechSouth, Elizabeth Abernathy took his place in accounting. Abernathy also gave Rollins a satisfactory evaluation, although she noted that Rollins did not like to take on extra responsibility. Abernathy's evaluation further stated that she did not know whether Rollins could be trusted with confidential matters. ² No adverse employment action resulted due to Abernathy's concerns; in fact, Rollins received a raise during her stay in the accounting department.

Then, in 1984, some changes occurred at TechSouth. In July, TechSouth was "spun off" from Datacomp. Along with this change, TechSouth had to absorb Datacomp's accounting functions for the region. In addition, TechSouth began renegotiating its contract with Bell South Advertising and Publishing Company. TechSouth decided to consider changing the billing procedure specified in the old contract. Instead of billing based on a count of the individual ads, the company wanted to adopt a system in which it would bill based on a page count.

This change, the company realized, would affect Rollins' job. For, Rollins' primary responsibility as an accounting clerk had been to count the corrections on each ad and prepare a worksheet and invoice for each customer. Rollins knew that TechSouth was considering making a change in the system, and had even worked on a report that discussed the change. But, she did not realize that the company was going to eliminate her job when it adopted the new procedure.

Another development, coupled with the possible change in the billing process, alerted appellant to the possibility that the company was planning to fire her. In November of 1984, Mike Richardson, a twenty-five year old male, was hired to work in TechSouth's accounting department. Rollins' supervisors told her to train Richardson to do her work. Rollins then went to Davis and asked him whether her job was in any danger. Davis assured her that the changes would have no effect on her job. A few months later, on January 14, 1985, TechSouth fired appellant. ³

When a group of TechSouth executives discussed the decision with Rollins, Rollins said that she wanted to stay with the company. Dewey Crim, president of TechSouth, assured her that they wanted to keep her on, but added that they could not find a place for her in the company. Rollins states that at this point she named three positions she felt she could fill. TechSouth, however, did not move her into one of these positions. In fact, appellee denies that there were any jobs open. ⁴ Appellee does assert that, prior to terminating Rollins, the company considered moving her back into the in-column department. Hill, one of the participants in the decision, stated that she did not want Rollins transferred back into the division because of the previous problems. Consequently, TechSouth did not move Rollins back.

Appellant believed that she had been fired because of her age and her sex. She therefore filed a charge with the Equal Employment Opportunity Commission. Subsequently, she received a right to sue letter and, on December 9, filed a complaint in the United States District Court for the Northern District of Alabama. Following discovery, TechSouth moved for summary judgment. On November 12, 1986 the district court granted this motion. Rollins then appealed to this court.

In reviewing a grant of summary judgment, we must give the judgment plenary review, applying the same legal standards that bound the district court. Carlin Communication, Inc. v. Southern Bell, 802 F.2d 1352, 1356 (11th Cir.1986) (citation omitted). Summary judgment is appropriate in those cases in which there is no genuine issue of material fact. Fed.R.Civ.P. 56(c). In determining whether a factual issue exists, a court must consider all the evidence in the light most favorable to the non-moving party. Mauter v. Hardy Corp., 825 F.2d 1554, 1556 (11th Cir.1987) (citation omitted). As the Supreme Court recently noted, this does not lessen the burden of the non-moving party in any way. The non-moving party still bears the burden of coming forward with sufficient evidence of every element that he or she must prove. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In addition, a court ruling on a summary judgment motion must evaluate the evidence in light of the proper standard of proof. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) In a discrimination case, the plaintiff bears the ultimate burden of proving discriminatory treatment by a preponderance of the evidence. See, e.g., Lincoln v. Board of Regents, 697 F.2d 928, 937 (11th Cir.1983) (race discrimination).

We find that appellant has raised issues of material fact regarding age discrimination. As this court has noted, there is not simply one method for establishing age discrimination. Pace v. Southern Railway System, 701 F.2d 1383, 1386 (11th Cir.1983). The plaintiff may present direct evidence of discrimination. By producing direct evidence, the plaintiff effectively shifts the burden of proof to the defendant, who must then show that there was no discrimination. It is rare that direct evidence of discrimination exists, however; consequently, plaintiffs more frequently attempt to prove their cases by presenting some form of circumstantial evidence. See Williams v. General Motors Corp., 656 F.2d 120, 130 (5th Cir. Unit B 1981). ⁵

In the case before us, appellant relied on circumstantial evidence of discrimination to prove her case. ⁶ This court applies a slightly modified version of the test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). ⁷ The plaintiff must first establish a prima facie case of age discrimination, by showing (1) that plaintiff was between forty and seventy, and thus in the protected age group, (2) that plaintiff was qualified to do the work, (3) that the employer discharged plaintiff, and (4) that the employer subsequently replaced plaintiff or sought a replacement. If plaintiff can establish a prima facie case, a presumption arises that defendant fired plaintiff for discriminatory reasons. Defendant can easily rebut this presumption, however, by articulating some legitimate business reason for its actions. Once defendant states a legitimate reason, plaintiff must show that defendant's articulated reason is merely a pretext and that defendant's true reason for discharging plaintiff was discrimination. Plaintiff can establish pretext by showing that despite the stated business reason, plaintiff would not have been fired but for discrimination, or by proving that employer's explanation is not credible. See Reynolds v. CLP Corp., 812 F.2d 671 (11th Cir.1987) (per curiam).

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