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Calhoun v. EPS Corp.

United States District Court, N.D. Georgia, Atlanta Division

August 8, 2014

MYRA CALHOUN, Plaintiff,
v.
EPS CORPORATION, Defendant

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[Copyrighted Material Omitted]

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For Myra Calhoun, Plaintiff: Chuck Richard Pardue, LEAD ATTORNEY, Chuck R. Pardue, Attorney at Law, Martinez, GA USA.

For Eps Corporation, Defendant: Erin Jennifer Krinsky, LEAD ATTORNEY, Robert W. Capobianco, Jackson Lewis LLP-Atl, Atlanta, GA USA.

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ORDER

Timothy C. Batten, Sr., United States District Judge.

This age-discrimination case is before the Court on cross-motions for summary judgment brought by Plaintiff Myra Calhoun and Defendant EPS Corporation.

I. Background

EPS is a private corporation that provides technology training to United States Army personnel at Fort Gordon, near Augusta, Georgia. EPS hires trainers and then posts them at Fort Gordon; Calhoun was one of those trainers. EPS hired her in August 2009, and she worked at Fort Gordon until she was terminated in June 2011.

The nature of Calhoun's employment is somewhat more complex than the average employee's. Although EPS hired Calhoun, paid her wages, and eventually made the decision to terminate her, much (if not

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most, or even all) of her work was for the Army. She was based at Fort Gordon, she trained Army personnel, she reported directly to Army supervisors, and her Army supervisor exercised some influence over EPS's personnel decisions. She was employed by EPS but was, in essence, contracted out to the Army. As the EEOC put it: EPS and the Army were her joint employers.

Calhoun alleges two violations of the Age Discrimination in Employment Act, 29 U.S.C. § 621. She first claims that she did not receive raises because of her age. She previously filed a complaint with the Army's equal employment opportunity office alleging as much.

When EPS discovered that Calhoun filed that initial complaint, it terminated her. EPS believed that she had filed a meritless EEO complaint against the Army to meddle with an internal matter involving her husband, who was a full-fledged Army employee. EPS thought that because it was Calhoun's employer, she should have brought her discrimination complaint against it. EPS believed that she acted improperly by instead bringing her complaint against the Army. Her termination gave rise to her second claim: that she was terminated in violation of the ADEA's prohibition on retaliation.

Due to Calhoun's unusual employment relationship, both EPS employees and Army personnel are relevant to her action.

Charles White was the president of EPS's field services division. He was the ultimate EPS decision-maker on personnel matters; he determined Calhoun's pay and eventually made the decision to terminate her.

Mike Martinez was a civilian employee in the Army's Communications-Electronics Command. He was responsible for coordinating training for Army personnel, and he interacted with private-sector companies, such as EPS, that provided training to the Army. He would go to EPS or other contractors, telling them what was needed, including the kinds of instructors required. To that end, he exercised some influence in EPS's personnel decisions. For instance, Martinez would interview prospective instructors and ask EPS to hire those that he " really wanted." And while he did not make any final decisions on behalf of EPS, he recommended that EPS hire Calhoun, which it did; and, as explained below, he could have recommended her for a raise but did not. He was also the most senior Army employee responsible for day-to-day supervision of trainers, like Calhoun, who worked at Fort Gordon. Subordinate to Martinez were either one or two Army civilian employees who supervised Calhoun. Fred Andrews was the leader of Calhoun's team, making him her direct supervisor at Fort Gordon. Initially, Andrews reported directly to Martinez, but later he reported to Don Berard, who then reported to Martinez.

When Calhoun was hired, Martinez told her that she would be eligible for a raise after her ninety-day performance review. In December 2009, approximately ninety days after she was hired and after she had received a positive review, she asked Martinez about a raise, but he was noncommittal. After that, Calhoun did not speak to anyone about a raise until early 2011. At that time she again asked Martinez, and he said his " budget was not going to allow for a raise." In March 2011, she asked White, the ultimate decision-maker at EPS, how raises were handled. He said he would get a phone call from the relevant Army personnel recommending an EPS employee for a raise, which indicated to him that the employee deserved a raise. After receiving such a call, he would consider the recommendation and other factors to determine whether a raise was warranted.

For Calhoun to receive a raise, then, a chain of Army personnel would have to

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recommend it. Andrews, the Army civilian employee who directly supervised her, would first recommend a raise to Berard, Andrews's supervisor. If Berard agreed, he would recommend a raise to Martinez. And if Martinez agreed, he would recommend a raise to White, the ultimate EPS decision-maker. Andrews did recommend Calhoun for a raise at the end of 2010, near the time of her ninety-day performance review, but the chain of recommendations apparently stopped there, never making it to White. White explained that because he never received a recommendation that Calhoun's pay be raised, he believed her performance did not warrant a raise, so he did not give her one. Calhoun alleges that while she did not receive raises, other, younger employees did.

Finally, Calhoun's husband, Rory Calhoun, is also relevant. Mr. Calhoun, like Martinez, was a civilian employee in the Army's Communications-Electronics Command. Mr. Calhoun reported directly to Martinez. In March 2011 Mr. Calhoun had a dispute with Martinez that resulted in the former's early return from deployment in Afghanistan. Calhoun knew that her husband either had filed or intended to file an EEO complaint related to his early return. She also knew that Martinez was somehow involved. This is germane because EPS believed that Calhoun's first EEO complaint--which she made against the Army--was false and made merely to support her husband and to discredit Martinez.

On May 26, 2011, Calhoun filed that first complaint with the Army's EEO office. In it she stated that the Army discriminated against her based on her age by denying her raises while other, younger employees received raises. EPS terminated Calhoun on June 10, fifteen days after she filed her complaint. She later amended her complaint to add a charge of retaliation.

In July 2011 her complaint was dismissed by the Army, which, because it is a federal agency, reviewed her complaint in the first instance. The Army determined that Calhoun was an EPS employee, not an Army employee, so she lacked standing to bring an EEO complaint against the Army. She appealed the dismissal to the EEOC, which held that the Army was in fact Calhoun's joint employer. The commission reversed and remanded the Army's decision for consideration of the merits of her complaint. On remand, the Army held that it did not discriminate against Calhoun on the basis of her age in denying her a raise. It did find evidence of retaliation, but it held that EPS was solely responsible for her termination.

In August 2011 Calhoun filed a charge with the EEOC alleging age discrimination and retaliation on the part of EPS. After conducting an investigation, the commission found no merit in Calhoun's discrimination complaint. It did, however, find " reasonable cause to conclude that [Calhoun] was retaliated against for opposing unlawful employment practices, in violation of the ADEA," and it held " that retaliatory animus was the primary motivating factor for [Calhoun]'s discharge."

After the EEOC issued a right-to-sue letter, Calhoun filed this suit against EPS in September 2013. She brings the same two claims here: that EPS violated the ADEA by (1) denying her raises because of her age and (2) retaliating against her after she filed the first discrimination complaint against the Army. Both Calhoun and EPS move for summary judgment; EPS on both claims, and Calhoun on only the second.

II. Applicable Law

A. Summary Judgment Standard

Summary judgment is appropriate when " there is no genuine dispute as to any

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material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). There is a " genuine" dispute as to a material fact if " the evidence is such that a reasonable jury could return a verdict for the nonmoving party." FindWhat Investor Grp. v. FindWhat.com, 658 F.3d 1282, 1307 (11th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In making this determination, however, " a court may not weigh conflicting evidence or make credibility determinations of its own." Id. Instead, the court must " view all of the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor." Id.

" The moving party bears the initial burden of demonstrating the absence of a genuine dispute of material fact." Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). If the moving party would have the burden of proof at trial, that party " must show affirmatively the absence of a genuine issue of material fact: it 'must support its motion with credible evidence . . . that would entitle it to a directed verdict if not controverted at trial.'" United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1438 (11th Cir. 1991) (quoting Celotex, 477 U.S. at 331). " If the moving party makes such an affirmative showing, it is entitled to summary judgment unless the nonmoving party, in response, 'come[s] forward with significant, probative evidence demonstrating the existence of a triable issue of fact.'" Id. (quoting Celotex, 477 U.S. at 331).

B. ADEA

The ADEA prohibits employers from discriminating against employees based on their age and retaliating against employees who engage in ADEA-protected activity. An employee can use direct or circumstantial evidence to make out either type of claim. See Kragor v. Takeda Pharms. Am., Inc.., 702 F.3d 1304, 1308 (11th Cir. 2012) (discrimination); de la Cruz v. Children's Trust of Miami-Dade Cnty., 843 F.Supp.2d 1273, 1281 (S.D. Fla. 2012) (retaliation) (citing Strickland v. Water Works & Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1207 (11th Cir. 2001)).

Direct evidence is " evidence that reflects 'a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee.'" Van Voorhis v. Hillsborough Cnty. Bd. of Cnty. Comm'rs, 512 F.3d 1296, 1300 (11th Cir. 2008) (quoting Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004)). It conclusively shows discrimination or retaliation without any inference or presumption. Wilson, 376 F.3d at 1086. Circumstantial evidence is " indirect evidence," Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1320 (11th Cir. 2012), that " suggests--but does not prove--a discriminatory motive," Burrell v. Board of Trustees., 125 F.3d 1390, 1394 (11th Cir. 1997).

ADEA claims based on circumstantial evidence follow the familiar McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), burden-shifting framework. See Sims v. MVM, Inc., 704 F.3d 1327, 1332-33 (11th Cir. 2013) (discrimination); Cobb v. City of Roswell, Ga. ex rel. Wood, 533 F.App'x 888, 895 (11th Cir. 2013) (citing Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 919 (11th Cir. 1993)) (retaliation). Under that framework, an aggrieved employee must first make out a prima facie case of an ADEA violation. Kragor, 702 F.3d at 1308. The elements of a prima facie case differ for discrimination and retaliation claims.

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For a prima facie case of discrimination, an employee must show that (1) she was a member of a protected class; (2) she was subjected to an adverse employment action; (3) her employer treated similarly situated employees outside the protected class more favorably; and (4) she was qualified to do her job. See Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1997) (Title VII).[1] Only the third element is disputed here.

For a prima facie case of retaliation, an employee must show that (1) she engaged in protected conduct; (2) she suffered an adverse employment action; and (3) there is a causal relationship between the two events. Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002).

Protected conduct comes in two forms: opposition and participation. See 29 U.S.C. § 623(d). As will be discussed, the ADEA provides much more robust protection to participation than opposition. The second element is not in dispute. The third element, a causal relationship, requires an employee to demonstrate that the decision-maker was aware of her protected conduct and that the protected conduct and the adverse action were not wholly unrelated. McCann v. Tillman, 526 F.3d 1370, 1376 (11th Cir. 2008).

For both discrimination and retaliation claims, after an employee establishes a prima facie case, the McDonnell Douglas framework is identical. Establishing a prima facie case creates a presumption of discrimination (or retaliation), and the employer can rebut that presumption by presenting evidence of one or more nondiscriminatory (or nonretaliatory) reasons for its action. See Kragor, 702 F.3d at 1308 (citing McDonnell Douglas, 411 U.S. at 802-03). The employer's burden on rebuttal is only one of production. See id. (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). The employer need not convince the Court that its proffered reasons ...


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