West v. Marion Merrell Dow, Inc.
| Decision Date | 26 June 1995 |
| Docket Number | Nos. 94-1294,94-2644,s. 94-1294 |
| Citation | 54 F.3d 493 |
| Parties | 67 Fair Empl.Prac.Cas. (BNA) 1209, 66 Empl. Prac. Dec. P 43,541 Myrna WEST, Plaintiff-Appellee/Cross-Appellant, v. MARION MERRELL DOW, INC., Defendant-Appellant/Cross-Appellee. , and 94-2924. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Michael J. Gallagher, Kansas City, MO, argued, for appellant.
Dennis E. Egan, Kansas City, MO, argued (David S. Jones, on the brief), for appellee.
Before LOKEN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and JONES, * Senior District Judge.
Myrna West commenced this employment discrimination suit against her former employer, Marion Laboratories, Inc., now Marion Merrell Dow, Inc. ("Marion"), alleging sex, age, and retaliation discrimination. After a six-day trial, the jury awarded West $350,000 in compensatory damages on her claim that Marion had retaliated after West filed a charge accusing Marion of sex and age discrimination. The district court awarded additional front-pay damages and attorney's fees, and Marion appeals.
West's retaliation claim is that Marion reneged on a promise that it would find her a position in Atlanta if she married and moved there. After West committed to move, Marion advised that it had no openings in Atlanta, and West took the position she was constructively discharged. However, before West resigned, Marion reconsidered and offered her a choice of Atlanta-based positions. West nonetheless immediately resigned her employ with Marion. Because West unreasonably refused Marion's attempt to accommodate her desire to transfer, we conclude that there is insufficient evidence that Marion reneged on a promise, or that West was constructively discharged. Accordingly, we reverse.
The jury rejected West's claims of sex and age discrimination, so we limit our discussion to the facts relevant to her retaliation claim. We view the evidence in the light most favorable to West and give her the benefit of all reasonable inferences that may be drawn from that evidence. Smith v. Goodyear Tire & Rubber Co., 895 F.2d 467, 471 (8th Cir.1990).
Marion hired West in February 1978. In late 1986, she was promoted to district manager of the Wound Care Division, marketing products used in treating major wounds and burns. As district manager, West was based in Dallas, Texas, and managed eight field sales representatives who covered the western half of the country.
In November 1988, West told her supervisor, James Laufenberg, that she was planning to marry an Atlanta resident in June 1989. West advised that she wanted to remain with Marion but, following the marriage, would need to relocate to Atlanta, or to Marion's headquarters in Kansas City where her new husband could relocate. West hoped that she would be promoted to regional manager for the Wound Care Division in Kansas City, but Laufenberg was "not particularly positive" that she would attain that position.
On May 5, 1989, West again expressed concern about her upcoming wedding and need to relocate. Laufenberg assured her that she could remain with the Wound Care Division and transfer to Atlanta. At a minimum, Laufenberg explained, he would split an existing sales territory and give West an entry level field sales position until the Division grew enough to justify creating a new district manager position in Atlanta.
On May 16, 1989, West filed a sex and age discrimination charge with the Equal Employment Opportunity Commission, alleging that Marion had violated Title VII and the ADEA by repeatedly failing to promote her to regional manager. At the end of May, she postponed her marriage and request to transfer. On August 8, however, she advised Laufenberg that the marriage would take place on October 7, and she asked to be transferred to Atlanta. Though he acknowledged his earlier assurances to the contrary, Laufenberg replied that he had no available Atlanta position in the Wound Care Division because "too much is up in the air now." He suggested that West ask Mike Gianini of Marion's Human Resources staff if there were openings in Atlanta elsewhere in the company.
On August 29, West met with both Laufenberg and Gianini. Laufenberg advised that there was no opening in the Wound Care Division in Atlanta. Gianini advised that he had looked but was unable to find her an Atlanta position elsewhere in the company. West then wrote a lengthy letter to Laufenberg on September 2, and she filed a charge of retaliation discrimination on September 5. In both documents, she asserted that Laufenberg had withdrawn his offer to find her a Wound Care Division position in Atlanta, that Gianini had made a perfunctory effort to find her an alternative opportunity in Atlanta, and therefore that she was "forced to leave Marion" because the company refused to offer her "the same [transfer] opportunities that countless others had received."
On September 11, Laufenberg wrote West and asked that she provide the specific date of her move to Atlanta to "help me to start the process of interviewing for a [district manager] in Dallas." Treating this as a request to resign, West again wrote Laufenberg on September 20, asserting that she had endured eleven years of sexual discrimination and harassment, and concluding:
I am now forced to tender my resignation effective September 30, 1989. It is my belief that because I have protested the treatment I have received that the position you promised to make for me in Atlanta was withdrawn.
On September 21, apparently before he received West's September 20 resignation letter, Laufenberg responded to her September 2 letter. Expressing surprise at this letter, Laufenberg commented, "you know very well that I sincerely want you to remain with Marion, in the Wound Care Division if possible." Laufenberg stated that the Wound Care Division's expansion plans were on hold, so he could not add a new Atlanta district manager. He suggested the following alternatives to permit West to remain with Marion:
"[R]emain in your District Manager position in Dallas pending resolution of these workforce scale-up issues."
Apply for any of five executive positions then available at Marion's Kansas City headquarters. (None was a regional manager's position, the subject of West's first discrimination charge.)
Though Marion has no open field sales positions in the Atlanta area, "[y]ou may take" any of several territories open in the southeastern United States.
Alternatively, Marion's Prescription Products Division in Atlanta.
After receiving Laufenberg's September 21 letter, West declined all of the positions offered and resigned on September 30. She testified that, by late September 1989, she had committed to reside in Atlanta after her marriage. She rejected Laufenberg's offer of sales positions in Atlanta because they were "too little, too late," they were not bona fide offers but only invitations to "interview for a position," and she was not willing to accept an insulting demotion to a field sales position.
At trial the parties differed as to why Laufenberg in May had assured West of at least a field sales position with the Wound Care Division in Atlanta, but then in August told her nothing was available. West argued this was retaliation for her May 16 discrimination charge. She presented evidence that Marion had specially accommodated many other employees who asked to relocate. She also introduced an August 23 handwritten note by Laufenberg reciting that Edward Connolly told Laufenberg, "[regarding] Myrna's request for special consideration or exploration of work in Atlanta area ... not to attempt to create anything 'special' we would not ordinarily do." Connolly was Marion's Director of Associate Relations responsible for responding to West's EEOC charge.
On the other hand, Laufenberg testified that the Wound Care Division's business conditions changed dramatically between May 5 and August 8, 1989, eliminating his ability to offer West a Wound Care Division position in Atlanta. First, the Division encountered production problems with two significant products. Then, in mid-July, Marion agreed to merge with Merrell Dow Pharmaceuticals, Inc. That merger froze Laufenberg's expansion plans for the Wound Care Division. Indeed, he explained, in October 1989, after West had resigned, Marion decided to divest the entire Wound Care Division because its product line did not fit the post-merger company's global marketing strategy.
At the close of the evidence, the district court denied Marion's motion for judgment as a matter of law and submitted West's retaliation claim to the jury. The jury found that Marion withdrew its offer to transfer West to Atlanta and constructively discharged her because she filed the initial charge of sex and age discrimination. 1 Following the jury's verdict, the district court denied Marion's renewed motion for judgment as a matter of law, and these appeals followed.
An employer may not retaliate against an employee for bringing charges of age or sex discrimination. See 29 U.S.C. Sec. 623(d); 42 U.S.C. Sec. 2000e-3(a). To prove unlawful retaliation discrimination, a plaintiff must show "(1) statutorily protected participation [in Title VII or ADEA processes]; (2) adverse employment action; and (3) a causal connection between the two." Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir.1980), cert. denied, 450 U.S. 979, 101 S.Ct. 1513, ...
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